United States v. Jones, 08-3033

• Decision Date: 14 March 2014
• Docket Number: c/w 10-3108,c/w 11-3031,No. 08-3033,08-3033
• Parties: UNITED STATES OF AMERICA, APPELLEE v. JOSEPH JONES, ALSO KNOWN AS JO JO, APPELLANT
• Court: U.S. Court of Appeals — District of Columbia Circuit

UNITED STATES OF AMERICA, APPELLEE v. JOSEPH JONES, ALSO KNOWN AS JO JO, APPELLANT

No. 08-3033

c/w 10-3108

c/w 11-3031

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 13, 2013

Decided March 14, 2014

Appeals from the United states District Court

for the District of Columbia

(No. 1:05-cr-00100-16)

Stephen C. Leckar, appointed by the court, argued the cause and filed the joint brief for appellant Antwuan Ball.

Anthony D. Martin, appointed by the court, argued the cause and filed the joint brief for appellant Joseph Jones.

Jonathan Zucker, appointed by the court, argued the cause and filed the joint brief for appellant Desmond Thurston.

Jeffrey T. Green, Timothy O'Toole, and Arthur B. Spitzer were on the brief for amici curiae The National Association of Criminal Defense Lawyers, et al. in support of appellants.

Stratton C. Strand, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and Elizabeth Trosman, Assistant U.S. Attorney.

Before: GRIFFITH and KAVANAUGH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: Following a lengthy trial, a jury convicted Joseph Jones, Desmond Thurston, and Antwuan Ball of distributing small quantities of crack cocaine, but acquitted them of conspiracy to distribute drugs. At sentencing, the district court nevertheless found that all three defendants had engaged in the charged conspiracy and, based largely on that finding, sentenced them to terms of imprisonment ranging from fifteen to nearly nineteen years. They now appeal, arguing that their sentences were procedurally and substantively unreasonable and were unconstitutionally predicated upon acquitted conduct. Thurston and Ball also argue that the district court impermissibly delayed sentencing them. Finding no merit in appellants' arguments, we affirm.

I

In 2005, a grand jury charged appellants and fifteen named coconspirators with narcotics and racketeering offenses arising from their alleged membership in the Congress Park Crew, a loose-knit gang that ran a market forcrack cocaine in the Congress Park neighborhood of Southeast Washington, D.C., for nearly thirteen years. After eleven of the coconspirators pled guilty and one was convicted at a trial of his own, appellants proceeded to their trial in February 2007 on charges that included crack distribution and participation in a crack distribution conspiracy.¹ The government's evidence included recordings of appellants engaging in sales of crack and testimony from several cooperating witnesses, including members of the alleged conspiracy and individuals who had purchased crack from appellants. On November 28, 2007, the jury returned its verdict, acquitting appellants of the conspiracy charge but convicting them of distribution. Based on appellants' criminal records, Jones's conviction carried a maximum sentence of thirty years' imprisonment and Thurston's a maximum of twenty years. Because of the larger quantity of crack involved, Ball's conviction carried a minimum of five years and maximum of forty years. See 21 U.S.C. § 841(b)(1)(B)(iii), (C).

At Jones's sentencing in May 2008, the district court found by a preponderance of the evidence that his crimes were part of a common scheme to distribute crack in Congress Park and that he could foresee sales of over 500 grams of crack by his coconspirators. Based on these findings, the district court determined that the U.S. Sentencing Guidelines recommended a sentence of 324 to 405 months' imprisonment. The court then imposed an actual sentence ofonly 180 months, varying below the Guidelines due to concerns about the overall severity of punishments for crack offenses and considerations related to Jones's background and crimes more particularly.

Thurston was sentenced on October 29, 2010, some 35 months after the jury's verdict, and Ball was sentenced on March 17, 2011, some 40 months after. Although the district court originally planned to sentence Thurston and Ball around the same time as Jones, it postponed their sentencing hearings after a co-defendant, who is not a party to this appeal, filed a post-trial motion that the district court believed might affect their convictions but that ultimately did not. That motion, which was filed in March 2008, was not resolved until July 2010. During that period, Thurston and Ball repeatedly requested sentencing.

At sentencing, the district court found that their crimes, like Jones's, were part of a conspiracy to distribute crack in Congress Park and that they could foresee that their coconspirators would distribute at least one-and-a-half kilograms of crack. Based primarily on those findings, the district court calculated Thurston's Guidelines range as 262 to 327 months and Ball's as 292 to 365 months. Varying below the Guidelines again, the district court sentenced Thurston to 194 months and Ball to 225 months. The district court justified these downward variances on grounds similar to those given at Jones's sentencing. The district court also explained that it was reducing Thurston's sentence by another twelve months, and Ball's by another fifteen, to remedy any prejudice from the delays in their sentencings.

Appellants timely appealed their sentences, and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

II

We use a two-step analysis to review sentences. See Gall v. United States, 552 U.S. 38, 51 (2007). At the first step, we ensure that the district court committed no significant procedural error in determining the Guidelines ranges, such as calculating them based on factual findings that are clearly erroneous. See United States v. Settles, 530 F.3d 920, 923 (D.C. Cir. 2008). We review purely legal questions de novo and factual findings for clear error, and we give "due deference" to the district court's application of the Guidelines to facts. United States v. Henry, 557 F.3d 642, 645 (D.C. Cir. 2009). At the second step, we consider the substantive reasonableness of the sentences in light of the totality of the circumstances, reversing only if we conclude that the district court abused its discretion. See Gall, 552 U.S. at 51; United States v. Gardellini, 545 F.3d 1089, 1093 (D.C. Cir. 2008).

A

Appellants challenge the procedural reasonableness of their sentences principally on the ground that it was clear error for the district court to find that they had formed an agreement with members of the Congress Park Crew to distribute crack. See United States v. Graham, 83 F.3d 1466, 1471 (D.C. Cir. 1996) ("The essential element of conspiracy is an agreement with at least one other person to violate the law."). Under the clear error standard, we must affirm the district court's findings unless we are "'left with the definite and firm conviction that a mistake has been committed.'" United States v. Brockenborrugh, 575 F.3d 726, 738 (D.C. Cir. 2009) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)); see also United States v. Mohammed, 693 F.3d 192, 202 (D.C. Cir. 2012) (holding that a district court's factual findings were not clearly erroneous where theinferences it drew from evidence were "plausible"). We give especially strong deference to credibility determinations, see United States v. Delaney, 651 F.3d 15, 18 (D.C. Cir. 2011), because the district court has a "unique opportunity 'to evaluate the credibility of witnesses and to weigh the evidence,'" Brockenborrugh, 575 F.3d at 738 (quoting Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 855 (1982)).

Appellants argue that the district court should not have credited the testimony of the cooperators, whom they describe as a rogues' gallery unworthy of credence. Appellants catalog evidence that the cooperators repeatedly deceived authorities, perjured themselves, framed loved ones, abused drugs, breached plea agreements, and took money from the government. But while such facts may undercut the cooperators' credibility generally, they do not establish that it was implausible for the district court to credit particular aspects of their testimony, especially where, as here, the cooperators offered mutually corroborative accounts that appellants associated with named conspirators, sold crack in Congress Park during the period of the conspiracy, shared sales proceeds with other conspirators, and protected their control of the Congress Park drug trade against outside competitors. Cf. Graham, 83 F.3d at 1471-72 (rejecting sufficiency of the evidence challenge to narcotics conspiracy conviction where the government's evidence consisted of testimony from six cooperating drug dealers, all of whom vouched for the existence of a conspiracy and testified that the defendants were part of it). Indeed, for each of these critical facts concerning appellants' involvement in the conspiracy, the district court relied only on testimony corroborated by at least one, and usually several, other witnesses.

Furthermore, the district court was well aware of the cooperators' credibility issues. For instance, the court declined to impose an obstruction-of-justice enhancement on Ball based solely on one cooperator's "uncorroborated report." At the same time, the court explained that even giving "full effect" to appellants' impeachment of several cooperators would "not undermine the mutually corroborative evidence[]" establishing appellants' involvement in the conspiracy. Given the highly corroborated accounts of appellants' conspiratorial conduct and the district court's evident care in weighing the evidence, it was not clearly erroneous to find that appellants had conspired to distribute crack in Congress Park.

Nor was it clearly erroneous for the district court to find that the evidence established a single conspiracy—a finding appellants challenge in hopes of reducing the amount of crack sales attributable to them. In determining whether evidence...