United States v. Ham
| Docket Number | 22-12240 |
| Decision Date | 05 July 2023 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. NICHOLAS HAM, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
DO NOT PUBLISH
Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:20-cr-00179-WFJ-SPF-2 Before JILL PRYOR, NEWSOM, and HULL, Circuit Judges.
Nicholas Ham appeals his 66-month sentence for distribution of fentanyl, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). On appeal, Ham argues that his above-advisory-guidelines sentence is substantively unreasonable because (1) the district court found, without sufficient justification, that the 18 U.S.C. § 3553(a) factors support his sentence and (2) his sentence resulted in unwarranted sentencing disparities. After careful review of the record, we affirm Ham's 66-month sentence.
On September 18, 2019, 21-year-old Ham purchased what he believed were several bags of heroin from his supplier. Ham loaded some of the substance into a smoking device, smoked it, and then gave the device to his minor girlfriend, G.W G.W. overdosed. Ham administered two doses of Narcan to G.W and attempted to resuscitate her. G.W.'s friend contacted emergency services, who treated G.W. on the scene and then took her to a hospital. Law enforcement officers apprehended and arrested Ham. A laboratory analysis of the substance consumed by G.W. detected fentanyl.
While in jail, Ham placed several relevant phone calls to his mother and G.W. In one phone call with his mother, Ham instructed her to retrieve a stash of Xanax that he had stored in a post office box and told her that he intended to flee if he made bail.
In another call, Ham and his mother discussed her progress in selling the Xanax to make money to pay for Ham's attorney.
Further, in several phone calls with his mother, Ham indicated that he intended to obstruct justice, either by promising to assault G.W. or otherwise preventing her from cooperating with law enforcement. Specifically, Ham declared his intent to (1) beat G.W., (2) kill G.W. by "spray[ing] her house" with an AR-15, and (3) rob G.W.'s new boyfriend and "sho[o]t up" his house. In addition, Ham asked his mother to persuade G.W. not to cooperate with authorities.
Ham also contacted G.W. himself to try to convince her to lie to protect him. In one call, Ham instructed G.W. to lie in her deposition about his role in the overdose. In another call, Ham asked G.W. to skip her deposition, advising that she was required to attend only the trial.
After Ham was released from jail on bail, Ham repeatedly called, texted, and emailed G.W., despite a court order forbidding him from contacting her. On March 6, 2020, G.W. recorded a phone call during which she twice asked Ham to stop calling her and Ham said, "I'm only talking to you so you don't testify." On March 9, 2020, authorities arrested Ham for violating the no-contact order, but Ham was released on bond that same day.
On March 29, 2020, Ham attended a party where G.W. and her new boyfriend were also present. At that party, Ham "sucker-punched" G.W. in the face multiple times, causing her to fall to the ground. Ham then climbed on top of G.W. and continued punching her. G.W. suffered two black eyes and a concussion. A bystander called 911, an officer arrived on the scene, and Ham was arrested.
Back in jail, Ham placed more phone calls to his mother. During those phone calls, Ham said (1) he "should have killed [G.W.'s] bitch ass" and (2) G.W. "deserved to get the fuck beaten out of her." Ham also asked his mother to pay G.W. money in exchange for her refusal to cooperate with the prosecution.
In June 2020, a federal indictment charged Ham with one count of distribution of fentanyl resulting in serious bodily injury, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C).
Pursuant to a written plea agreement, Ham waived his right to be charged by indictment and pleaded guilty to a superseding information charging him with distribution of fentanyl-without serious bodily injury-in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C).
Ham's PSR recommended (1) a base offense level of 12, (2) a two-level increase under U.S.S.G. § 3C1.1 for Ham's several attempts to obstruct justice by attempting to threaten G.W. and convince her not to testify against him, and (3) a two-level reduction under U.S.S.G. § 3E1.1(a) for acceptance of responsibility. Ham's adjusted offense level was 12.
With four criminal history points, Ham's criminal history category was III. Ham's advisory guidelines range was 15 to 21 months' imprisonment.
At sentencing, the government did not (1) request a specific sentence or (2) make a motion for an upward variance. Ham requested a sentence of time served because of the time he had already served (27 months) on related state charges.
The district court found that an upward variance was warranted and sentenced Ham to 66 months' imprisonment, followed by 5 years of supervised release.
The district court noted that it had considered (1) the record, (2) the nature and circumstances of the offense, (3) the violence involved, (4) the need for public safety, (5) the advisory guidelines range, and (6) all the factors identified in 18 U.S.C. § 3553(a)(1)-(7).[1]
The district court explained that the upward variance was supported by the following: (1) the severity of the conviction; (2) the underlying violence described in the PSR; (3) the need for the public to be protected; (4) the need for specific and general deterrence; and (5) the fact that Ham's guilty plea to the charge in the information allowed Ham to avoid an adjusted offense level of 38 that accompanied the initial charge in the indictment.
Indeed, if Ham had been convicted of the original serious-bodily-injury charge in the indictment, (1) he would have been subject to a 20-year statutory minimum sentence, and (2) his base offense level would have been 38. See 21 U.S.C. § 841(b)(1)(C) (); U.S.S.G. § 2D1.1(a)(2) ().
Ham appealed his 66-month sentence.
Ham contends that his above-advisory-guidelines sentence is substantively unreasonable. "We review the substantive reasonableness of a sentence for abuse of discretion, considering the totality of the circumstances." United States v. Oudomsine, 57 F.4th 1262, 1266 (11th Cir. 2023). Ham "bears the burden of establishing that his sentence is unreasonable based on the record and the § 3553(a) factors." Id.
The district court must impose a sentence that is "sufficient, but not greater than necessary." 18 U.S.C. § 3553(a). The district court abuses its discretion when it (1) fails to consider relevant factors that were due significant weight, (2) gives an improper or irrelevant factor significant weight, or (3) commits a clear error of judgment by balancing the proper factors unreasonably. Oudomsine, 57 F.4th at 1266.
"We will vacate a defendant's sentence as substantively unreasonable only if we are 'left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.'" Id. (quoting United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc)).
To begin with, Ham argues that his 66-month sentence is substantively unreasonable because the district court found, without sufficient justification, that the § 3553(a) factors support his sentence. We disagree. The district court clearly explained its reasons for imposing the 66-month sentence, and the court did so in light of the § 3553(a) sentencing factors.
The record establishes that Ham (1) distributed fentanyl to G.W. (his minor girlfriend) who then overdosed and nearly died, (2) urged G.W. to lie to authorities to protect him, (3) said in recorded phone calls that he would beat or kill G.W. to prevent her from cooperating and "sho[o]t up" her new boyfriend's house, and (4) "sucker-punched" and hit G.W. until she had two black eyes and a concussion.
When sentencing Ham, the district court expressly stated that it had considered (1) the record, (2) the nature and circumstances of the offense, (3) the violence involved, (4) the need for public safety, (5) the advisory guidelines range, and (6) all the § 3553(a) factors.[2]
In varying upward, the district court relied on the following: (1) the severity of the conviction; (2) the underlying violence described in the PSR; (3) the need for the public to be protected; (4) the need for specific and general deterrence; and (5) the fact that Ham's guilty plea to the charge in the information allowed Ham to avoid an adjusted offense level of 38 that accompanied the initial charge in the indictment. Accordingly, the district court sufficiently explained its reasoning for its sentence.
Ham also takes issue with the district court's consideration of the 20-year statutory minimum penalty that he would have faced if he had been convicted of the initial charge in the indictment. In deciding what sentence to impose, a district court may consider the penalty related to uncharged conduct. See, e.g., United States v. Camiscione, 591 F.3d 823,...
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