U.S. v. Curb

• Decision Date: 16 November 2010
• Docket Number: No. 09-2510,09-2510
• Citation: 626 F.3d 921
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Elgin CURB, also known as Shiesty, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

626 F.3d 921

UNITED STATES of America, Plaintiff-Appellee,

v.Elgin CURB, also known as Shiesty, Defendant-Appellant.

No. 09-2510.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 21, 2010.

Decided Nov. 16, 2010.

Peter M. Flanagan, Attorney (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Steven Shobat, Attorney (argued), Chicago, IL, for Defendant-Appellant.

Before BAUER, SYKES and HAMILTON, Circuit Judges.

BAUER, Circuit Judge.

Defendant-appellant Elgin Curb pleaded guilty and was convicted of conspiracy to possess and distribute heroin, cocaine, and crack cocaine, in violation of 21 U.S.C. § 846. The district court found that Curb was a supervisor in a criminal activity subject to the managerial enhancement and that he had willfully obstructed justice. Curb was sentenced to 270 months' imprisonment. On appeal, he challenges his sentence. We affirm.

I. BACKGROUND

From January 2003 through May 2006, Curb participated in a large-scale drug operation in a small low-income housing area in Chicago known as "the Square." In May 2006, Chicago police officers arrested more than fifty individuals, including Curb, in connection with the drug operation. Pursuant to a written plea agreement, Curb pleaded guilty to Count One of the indictment, which charged Curb with conspiracy to possess with the intent to distribute heroin, cocaine, and crack cocaine.

Days before Curb's sentencing hearing, the government filed an objection to the Presentence Investigation Report, challengingthe probation department's assessment of Curb's role in the conspiracy. The government asserted that Curb qualified for the "manager or supervisor" enhancement pursuant to Section 3B1.1(b) of the United States Sentencing Guidelines.

The court held an evidentiary hearing in January 2009 on the issue of Curb's role in the criminal conspiracy. Codefendant Lamont Harris, who pleaded guilty to the drug conspiracy, testified on behalf of the government at this hearing. Harris testified that Curb, among other acts, (1) approached him and recruited him to sell drugs for the conspiracy; (2) determined the amount of drugs Harris would sell and provided him with those drugs; (3) collected a larger share of the proceeds from Harris' drug sales; (4) occasionally directed potential customers to Harris; and (5) helped promote Harris to a greater role in the conspiracy. Harris also admitted that when he was first interviewed by government agents about his role in the drug conspiracy, he lied to the agents about information regarding the conspiracy. As a part of Harris' plea agreement, however, he agreed to cooperate with the government and tell the whole truth at the evidentiary hearing.

Curb's sentencing hearing was scheduled for February 19, 2009, but Curb failed to appear and a bench warrant was issued for his arrest. He remained missing for two-and-a-half months until he was arrested by officers of the Chicago Police Department on April 28, 2009. Curb explained to the officers that he failed to appear at his sentencing hearing because he was "scared" of his impending sentence.

At Curb's sentencing hearing on June 3, 2009, the district court found that Curb had willfully obstructed justice under United States Sentencing Guidelines Section 3C1.1. The district court factored in the enhancements for Curb's managerial role in the conspiracy and his willful obstruction of justice and also gave him a three-point deduction for acceptance of responsibility notwithstanding his flight. The district court found that Curb's advisory guidelines range was 292 to 365 months; however, it sentenced Curb to 270 months' imprisonment.

II. DISCUSSION

A. Managerial Enhancement

Curb challenges the district court's application of the three-level managerial enhancement to his sentence, a determination we review for clear error. United States v. Hankton, 432 F.3d 779, 793 (7th Cir.2005) (quoting United States v. Brown, 900 F.2d 1098, 1101 (7th Cir.1990)). Reversal is warranted "only if, after reviewing the entire evidence, [the court] is left with the definite and firm conviction that a mistake has been made." United States v. Sheikh, 367 F.3d 683, 687 (7th Cir.2004) (quoting United States v. Schuh, 289 F.3d 968, 972 (7th Cir.2002)).

Sentencing Guidelines Section 3B1.1(b) directs a sentencing judge to increase a defendant's offense level by three levels if "the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive." U.S. Sentencing Guidelines Manual § 3B1.1(b) (2010). The Sentencing Guidelines do not define the terms "manager" or "supervisor," though this court has found the following seven factors to be relevant in determining an individual's role in a criminal conspiracy:

(1) the exercise of decision-making authority; (2) the nature of participation in the commission of the offense; (3) the recruitment of accomplices; (4) the claimed right to a larger share of the fruits of the crime; (5) the degree ofparticipation in planning and organizing the offense; (6) the nature and scope of the illegal activity; and (7) the degree of control and authority exercised over others.

United States v. Howell, 527 F.3d 646, 649 (7th Cir.2008) (citing United States Sentencing Guidelines Manual § 3B1.1, cmt. n. 4 (2010)).

After reviewing the record, we are not left with a definite or firm conviction that the district court erred in applying the managerial enhancement. The district court judge credited co-defendant Harris' witness testimony at Curb's evidentiary hearing, as well as Curb's own testimony and plea agreement. He then applied the three-level managerial enhancement based on the existence of several of the seven factors.

As a preliminary matter, Curb bases the majority of his argument regarding this issue on attacking the credibility of Harris, who testified at Curb's evidentiary hearing. However, we note, as the district court did, that the managerial enhancement is not based solely upon Harris' testimony; Curb's own plea agreement and statements from other co-defendants likewise support the district court's finding. In any case, this court "do[es] not second-guess the judge's credibility determinations because he or she has had the best opportunity to observe the subject's facial expressions, attitudes, tone of voice, eye contact, posture and body movements." United States v. Mancillas, 183 F.3d 682, 701 n. 22 (7th Cir.1999) (citing United States v. Garcia, 66 F.3d 851, 856-57 (7th Cir.1995)). The district court considered Harris' testimony and determined that it was not in conflict with prior statements and that any variances had been explained away.

Turning to the application of the seven managerial factors, we agree with the district court in finding that several factors apply to Curb's role in the drug enterprise. All factors need not be present for a finding that the defendant is subject to the managerial enhancement, but the defendant must have "exercised some control over others involved in the commission of the offense." United States v. Pagan, 196 F.3d 884, 892 (7th Cir.2000) (citing United States v. House, 110 F.3d 1281, 1287 (7th Cir.1997)). This court has upheld a sentencing increase where less than all factors are present. United States v. Fones, 51 F.3d 663, 665 (7th Cir.1995). We find that at least four of the factors are applicable to Curb's role in the conspiracy and that Curb "exercised some control over others," particularly co-defendant Harris.

First, Curb appreciably exercised "decision-making authority" and a "degree of control over others." Curb's own plea agreement and the admissions of other codefendants indicate that Curb supplied Harris and others with packs of crack cocaine and heroin to sell around the Square. Furthermore, Curb exercised discretion in determining the amounts of crack cocaine and heroin that others would sell. Curb was also responsible for directing customers seeking drugs to the other workers around the Square. Lastly, Curb helped promote Harris to a higher level in the enterprise.

Second, Curb was involved in the recruitment of accomplices to the conspiracy. Specifically, Harris provided testimony at the evidentiary hearing that Curb recruited him. The evidence shows that while Curb and Harris were playing basketball, Curb asked Harris if he wanted to sell drugs in the Square. After Harris answered that he wanted to sell drugs, Curb immediately went over to Terrell Covens—the man in charge of selling crack cocaine in the Square—and informed Covens that Harris was interested in selling drugs, to which Covens agreed. Curb maintains that because Covens had to first approve of Harris, Curb's role in recruiting Harris was "superfluous." Despite his role as a middleman in the recruitment, the evidence shows that it was in fact Curb who acted as the recruiter. This court has previously held that "[m]iddlemen are not, of course, immune from application of § 3B1.1." United States v. Brown, 944 F.2d 1377, 1381 (7th Cir.1991).

Next, Curb had "the claimed right to a larger share of the fruits of the crime." As Harris admitted, for every pack of crack cocaine that Harris sold, he kept only $10-$30 of the $50-$150 proceeds, and Curb collected the remainder.

Finally, Curb argues that other co-defendants involved in the drug operation did not identify him as occupying a managerial position, and therefore he did not occupy that role. Curb seems to be focusing on what was not said instead of what the evidence does show; Curb's own plea agreement and testimony, and the testimony and plea agreements of Harris and other co-defendants, all support the finding that Curb occupied a managerial position in the drug conspiracy.

B. Sentence Reasonableness

Curb also argues that his sentence is both procedurally and substantively unreasonable. Specifically, he contends that the district court did not consider nor articulate its...