United States v. Gray
| Decision Date | 26 October 2021 |
| Docket Number | 20-3019,20-3223,20-3393 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSEPH P. GRAY, JR., LARRY JACKSON, and SHONDELL MACK, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR PUBLICATION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
Before: SILER, KETHLEDGE, and BUSH, Circuit Judges.
An organization called the "Grovewood Boys" trafficked heroin, often mixed with fentanyl or fentanyl analogues, and crack cocaine in east Cleveland, Ohio. Three group members who pleaded guilty, bring this appeal. Two, Joseph Gray, Jr. and Shondell Mack, challenge their sentences. The third Larry Jackson, argues that his guilty plea is invalid. None of these arguments has merit, so we affirm.
We need only summarize this sprawling conspiracy to resolve these appeals. In total, twenty-two defendants were indicted for their role in the organization; all pleaded guilty.
Law enforcement began investigating the Grovewood Boys in January 2018. Wiretaps revealed that the group obtained drugs in bulk quantities and divided them for re-sale among the members. Dealers either sold to their own customer bases or communicated with customers via a single, shared phone line open to any customer. Known as the "customer phone," this device was passed among the various dealers. When a physical phone became unusable, the customer phone's number and data was simply transferred to a new device. As a result, potential customers could reach the Grovewood Boys nearly twenty-four hours a day.
The Grovewood Boys said they dealt heroin and cocaine. But their labels were inaccurate: the "heroin" was more often fentanyl, fentanyl analogues, or heroin laced with fentanyl or its analogues; the "cocaine" was usually crack cocaine. Slang was commonplace in the transactions: the heroin or fentanyl was called "boy," while the crack cocaine was called "girl." The dealers operated primarily on the east side of Cleveland and in nearby suburbs.
The defendants here were members of the Grovewood Boys. Their roles in the conspiracy varied, and different parts of the proceedings below are relevant to each appeal, so we address each defendant separately.
Joseph P. Gray.
When a dealer needed access to the customer phone, he "had to go through Joseph Gray." Gray monitored dealers' supply levels, obtained the bulk drugs, and coordinated the sales to customers. Put simply, he led the Grovewood Boys. A federal grand jury returned a twenty-two count indictment against Gray, which included one charge for conspiracy to possess with intent to distribute controlled substances, two charges for distribution, eight charges for possession with intent to distribute, two firearms-related charges, and nine counts for using a communication facility in furtherance of a drug trafficking crime.
He pleaded guilty to the indictment without an agreement. In its presentence investigation report (PSR), the probation office determined that Gray was responsible for 1, 528 grams of heroin and fentanyl analogues and 992.5 grams of cocaine base, or crack cocaine. Converted to 15, 280 kilograms and 992.5 kilograms, respectively, he was responsible for 16, 272.5 kilograms of converted drug weight.[1] It thus recommended an initial base offense level of 34. USSG § 2D1.1(c)(3).
The PSR also suggested three enhancements and one reduction. For engaging in a pattern of criminal conduct as a livelihood, it applied the two-level increase of § 2D1.1(b)(16)(E). Another increase of four levels applied under § 3B1.1(a) because of his leadership role. And the PSR applied a two-level increase under § 3C1.2 for fleeing from police in a residential area. After a three-level decrease for acceptance of responsibility, § 3E1.1, the resultant offense level of 39 and criminal history category of VI produced a 360-months to life guidelines range recommendation.
Gray objected to the drug quantity calculation and to each recommended enhancement.[2]In response, the government presented testimony from Drug Enforcement Administration Task Force Officer Orlando Almonte at the sentencing hearing. Officer Almonte first addressed the drug quantity calculation. He explained that both Gray's personal phone and the customer phone were intercepted from October to December 2018. For forty-eight days, officers tracked any transaction agreed to over these phones. They also tested drugs seized during traffic stops or in controlled buys. Lab results confirmed that the heroin was most often a mixture of heroin and fentanyl or its analogues. The crack cocaine seized generally was not mixed with other substances. Officer Almonte testified that these tested samples were a fair representation of the organization's usual product.
Gray nevertheless argued that because he did not plead guilty to some conduct mentioned in Officer Almonte's testimony and the PSR, the district court should err conservatively and apply an offense level of 32. It declined and stuck with the recommended offense level of 34, finding that the government established the drug quantity by a preponderance of the evidence based on the testimony, the lab reports, and the wide-ranging nature of the conspiracy. Further, officers counted only transactions agreed to over intercepted phone lines during the forty-eight day period. Because the deal must have been clear on substance and quantity or price, many drug deals were undoubtedly excluded from the calculation.
Gray next argued that his role in the conspiracy warranted only the two-level increase of § 3B1.1(c), but not the four-level increase of subsection (a).[3] The district court again heard from Officer Almonte, who testified that dealers had to go through Gray to access the customer phone and sell drugs. He also organized testers to sample the product and determine its potency. Even from jail, Gray gave his co-conspirators instructions on replacing the customer phone. Based on this testimony and the conduct described in the PSR, the district court overruled Gray's objection to the four-level increase.
Finally, Gray objected to the two-level increase for reckless endangerment during flight. The government justified the enhancement with two incidents: a pursuit on September 6, 2018, in a residential area near a school zone at speeds of over 60 miles per hour, and a high-speed pursuit on January 8, 2019, on Interstate 90 and the streets of Cleveland where, after stopping his vehicle, Gray dropped a loaded pistol before fleeing on foot. He admitted to these incidents. But, he said, the government did not establish the potential risk of harm. Unpersuaded, the district court overruled the final objection.
The district court then turned to determining a proper sentence. It heard from the mother of an overdose victim who purchased his drugs from a member of the Grovewood Boys. Gray and his counsel also had the opportunity to address the court, and the government sought a life sentence. The district court then weighed each of the factors of 18 U.S.C. § 3553(a), focusing on the size of the conspiracy, Gray's attempts to flee from law enforcement, and his prior convictions. It paid particular attention to the effects of Gray's drug dealing on his community and his lack of remorse for the damage it caused. Finding a lengthy sentence essential, it imposed an aggregate 480-month term of imprisonment.
Shondell Mack.
Mack's role in the Grovewood Boys was not quite so large. He was one of many dealers who operated the customer phone. Ultimately, he was indicted on one conspiracy charge and one count of using a communication facility in furtherance of a drug trafficking crime. He pleaded guilty with a plea agreement.
The district court gave the parties over a month to prepare for a second hearing.
Prior to that sentencing hearing, an updated PSR suggested a 57-71 month guidelines range. Mack and the government agreed to that calculation. But the district court found it insufficient to meet the goals of § 3553(a). For one, it found Mack was "an extremely high risk offender" because of his history of violence towards women and his numerous prior arrests. It also determined that a variance was necessary to protect the public from Mack and deter him from future crimes. Varying upward, it imposed a 96-month sentence.
Larry Jackson.
Jackson, another Grovewood Boy, also dealt drugs. He was indicted on one conspiracy charge, two charges of possession with intent to distribute, and one charge of using a communication facility in furtherance of a drug trafficking crime. He pleaded guilty and was sentenced to a 210-month term of imprisonment. His appeal concerns only the validity of his guilty plea, so we focus here on the facts surrounding that process.
Recall that twenty-two defendants were named in the indictment. So when the district court held its first status conference on April 3, 2019, it emphasized the need for a cutoff...
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