United States v. Davis

• Decision Date: 31 May 2012
• Docket Number: 11–2062,11–2061,Nos. 11–1313,11–2071.,11–1323,11–2057,s. 11–1313
• Citation: 682 F.3d 596
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Aaron M. DAVIS, Bobby Suggs, William J. Davison, Seantai Suggs, Terraun Price, Terence Dilworth, Defendants–Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

682 F.3d 596

UNITED STATES of America, Plaintiff–Appellee,

v.Aaron M. DAVIS, Bobby Suggs, William J. Davison, Seantai Suggs, Terraun Price, Terence Dilworth, Defendants–Appellants.

Nos. 11–1313, 11–1323, 11–2057, 11–2061, 11–2062, 11–2071.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 20, 2012.

Decided May 31, 2012.

David E. Hollar, Emily Kathleen Kerkhof (argued), Joshua Paul Kolar, Attorneys, Office of the United States Attorney, Hammond, IN, for Plaintiff–Appellee.

John E. Martin, Viniyanka Prasad (argued), Kerry C. Connor, Attorneys, Indiana Federal Community Defenders, Inc., Hammond, IN, for Defendants–Appellants.

Bobby Suggs, Terre Haute, IN, pro se.

Before FLAUM and ROVNER, Circuit Judges, and CASTILLO, District Judge.^*

CASTILLO, District Judge.

This is a consolidated appeal of the denial of six defendants' motions to reduce their sentences pursuant to 18 U.S.C. § 3582(c)(2) based on the retroactive crack cocaine amendments to the United States Sentencing Guidelines. Defendants raise a number of challenges on appeal. For the reasons discussed below, we affirm the judgments entered by the district court.

I. BACKGROUND

Bobby Suggs, Aaron Davis, Seantai Suggs, Terraun Price, Terence Dilworth, and William Davison were all members of the Concord Affiliated (“CCA”) street gang in Gary, Indiana. From 1994 until 2001, CCA street gang members conspired to distribute crack cocaine and other drugs in the Concord neighborhood of Gary. United States v. Suggs, 374 F.3d 508, 512 (7th Cir.2004); United States v. Price, 418 F.3d 771, 775 (7th Cir.2005).¹ The drug trafficking occurred near a government housing complex known as “the Hill.” Suggs, 374 F.3d at 508;Price, 418 F.3d at 775. The conspiracy eventually came to be led by Bobby, who obtained kilogram quantities of powder cocaine from Tomas Unzueta. Suggs, 374 F.3d at 508;Price, 418 F.3d at 775. Bobby and his co-conspirators converted the powder cocaine into crack cocaine, which was then distributed to trusted associates. Suggs, 374 F.3d at 508. Those trusted associates then distributed the crack cocaine to others or directly sold the crack cocaine to customers. Id.

The convictions of Bobby, Davis, Seantai, and Price stem from an 18–person, 33–count superseding indictment for conspiracy and distribution of crack cocaine returned by a grand jury in 2001. The convictions of Dilworth and Davison stem from a 6–person, 14–count indictment for conspiracy and distribution of crack cocaine returned by a grand jury in 2002.

In July 2002, Bobby, Davis, and Seantai proceeded to a jury trial and were convicted on all counts. Bobby, Davis, and Seantai were each convicted of one count of conspiracy to distribute crack cocaine in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2, in addition to other related drug offenses. At sentencing, the district court concluded that each was responsible for distributing in excess of 1.5 kilograms of crack cocaine. In late 2002, the district court sentenced Bobby and Seantai to life imprisonment. In early 2003, the district court sentenced Davis to 405 months' imprisonment.

On March 31, 2003, Price, Dilworth, and Davison proceeded to a jury trial. On April 9, 2003, the jury found Price and Dilworth guilty of conspiracy to distribute crack cocaine in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2, and found Davison not guilty of this count. The jury also convicted Dilworth and Davison of two counts of distribution of crack cocaine in violation of 21 U.S.C. § 841(a)(1). Price was also convicted of one count of use of a communications facility for the distribution of crack cocaine in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2. At sentencing, the district court concluded that each was responsible for distributing in excess of 1.5 kilograms of crack cocaine. In October 2003, the district court sentenced Price to life imprisonment, and Dilworth and Davison to 360 months' imprisonment.

We later affirmed the convictions of each defendant. Suggs, 374 F.3d at 521;Price, 418 F.3d at 788. Bobby, Davis, and Seantai did not appeal their sentences, Suggs, 374 F.3d at 511, while Price, Dilworth, and Davison appealed their sentences. Price, 418 F.3d at 775. Because Price, Dilworth, and Davison were sentenced prior to the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we ordered a limited remand in accordance with the procedure set forth in United States v. Paladino, 401 F.3d 471, 483–84 (7th Cir.2005). We asked the district court to determine whether it would have imposed a different sentence on Price, Dilworth, and Davison had it understood the Guidelines to be advisory. Price, 418 F.3d at 786–88. The district court responded that it would have imposed the same sentences, and we then affirmed those sentences in separate opinions. United States v. Price, 155 Fed.Appx. 899 (7th Cir.2005); United States v. Dilworth, 168 Fed.Appx. 89 (7th Cir.2006); United States v. Davison, 166 Fed.Appx. 246 (7th Cir.2006).

In late 2007, the United States Sentencing Commission adopted Amendment 706, which lowered the base offense level for crack cocaine offenses by two levels to alleviate problems associated with the penalty structure commonly known as the “100–to–1 drug-quantity ratio” between crack cocaine and powder cocaine offenses as found in § 2D1.1 of the United States Sentencing Guidelines. United States Sentencing Commission, Guidelines Manual, App. C, 226–231 (Nov.2011) (Amendment 706) (USSG). Amendment 706, subsequentlyfine-tuned by Amendments 711 and 715, was made retroactive by the Sentencing Commission via Amendment 713. USSG App. C, 241–244 (Nov.2011) (Amendments 711, 713, 715). At the time defendants were sentenced, offenses involving 1.5 kilograms or more of crack cocaine were assigned the highest possible base offense level of 38. USSG § 2D1.1(c) (Nov.2002). As a result of Amendment 706, only offenses involving 4.5 kilograms or more of crack cocaine are assigned an offense level of 38, whereas offenses involving between 1.5 kilograms and 4.5 kilograms of crack cocaine are assigned a base offense level of 36.²SeeUSSG § 2D1.1(c) (2007); United States v. Hall, 582 F.3d 816, 817 (7th Cir.2009) (hereinafter “ Mark Hall ”). After the enactment of Amendment 706, each defendant filed a motion to reduce his sentence pursuant to § 3582(c)(2). Section 3582(c)(2) allows “a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission” to move for a reduction in his sentence. 18 U.S.C. § 3582(c)(2).

We commend the district court for the procedure it followed. The district court appointed counsel in connection with each defendants' § 3582(c)(2) motions, and probation prepared new reports as to each defendants' request for a reduced sentence. After considering each defendants' request for a sentence modification, the district court prepared written orders detailing the basis of its decision.

Each addendum to the defendants' presentence investigation reports (“PSRs”), with the exception of Davison's, concluded that Amendment 706 did not impact their sentences because they were each responsible for more than 4.5 kilograms of crack cocaine. As to Davison, the 2008 addendum to his PSR advised that his base offense level should be reduced by two levels because he was responsible for more than 1.5 kilograms of crack cocaine but less than 4.5 kilograms, yielding a lower Guideline range. In separate rulings, the district court denied each defendants' § 3582(c)(2) motions.

A. Bobby Suggs

Bobby's original PSR established that he was the leader of the CCA street gang and that from at least 1996 until the summer of 2001, the conspiracy distributed “in far excess of 1.5 kilograms of crack cocaine.” The PSR reported that Bobby received kilogram quantities of cocaine from certain suppliers, which was converted to crack cocaine. He then distributed the crack cocaine to select members of the CCA street gang, including Davis, Seantai, and Dilworth, who in turn distributed the crack cocaine to other CCA street gang members. For sentencing purposes, the PSR advised that Bobby could be held responsible for at least 17.1 kilograms of crack cocaine. This amount was established by statements from Unzueta estimating that he delivered seven kilograms ³of powder cocaine to Bobby, which converts to 6.2 kilograms of crack cocaine.⁴ Unzueta also indicated that he supplied Anthony Evans, known to have assisted Bobby in obtaining kilogram quantities of cocaine and with cooking powder cocaine, with at least 12 kilograms of powder cocaine, which converts to 10.68 kilograms of crack cocaine. The PSR also advised that Bobby could be held responsible for an additional 28.34 grams of crack cocaine, and 177 grams of crack cocaine that the FBI recovered from the CCA street gang. These amounts add up to approximately 17.1 kilograms of crack cocaine, resulting in a base offense level of 38. Additionally, the PSR recommended a two-level enhancement because the FBI recovered approximately 41 weapons from the CCA street gang, 11 of which were traced to Bobby and Seantai. Bobby also received a four-level enhancement because of his role as the leader of the CCA street gang, and a two-level enhancement for obstructing proceedings. Bobby's total offense level was 46, and when combined with his criminal history category of II, his Guideline range for imprisonment was life. The district court sentenced Bobby to life imprisonment.

In connection with Bobby's motion for a reduced sentence, probation submitted an addendum to the PSR informing the district court that Bobby was not eligible for a sentence reduction because his criminal activity involved the distribution of more than 4.5 kilograms of crack cocaine. The district court denied Bobby's motion after concluding that it lacked statutory authority and jurisdiction to reduce his sentence...