United States v. Jones, s. 10–3130

• Citation: 696 F.3d 695
• Decision Date: 05 September 2012
• Docket Number: Nos. 10–3130,11–1395.,10–3505,s. 10–3130
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Patrick JONES, Deshaun Germany and Ivory Watson, Defendants–Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

696 F.3d 695

UNITED STATES of America, Plaintiff–Appellee,

v.Patrick JONES, Deshaun Germany and Ivory Watson, Defendants–Appellants.

Nos. 10–3130, 10–3505, 11–1395.

United States Court of Appeals,Seventh Circuit.

Argued Oct. 21, 2011.

Decided Sept. 5, 2012.

Anthony P. Garcia (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Stephen E. Eberhardt (argued), Attorney, Tinley Park, IL, Steven Shobat (argued), Attorney, Chicago, IL, Mark S. Rosen (argued), Attorney, Rosen & Holzman, Waukesha, WI, for Defendants–Appellants.

Ivory Watson, Anthony, TX, pro se.

Before BAUER and TINDER, Circuit Judges, and MAGNUS–STINSON, District Judge.^*

BAUER, Circuit Judge.

This is a consolidated appeal by three defendants convicted of assorted drug offenses. They contend, inter alia, that the district court erred in determining their sentences. We affirm the district court's sentences with respect to petitioners Patrick Jones and Deshaun Germany and we remand Ivory Watson's case for re-sentencing.

I. BACKGROUND

Near the intersection of West 54th Street and South Hoyne Avenue, in Chicago, a faction of the Gangster Disciples Nation, headed by Isaiha Hicks, operated a drug organization that controlled the retail street sales of crack cocaine. The organization created charming nicknames for its employees, and like a legitimate business, adhered to the sound economic principle of division of labor; Deshaun Germany, also known as “Big Sin” (“Germany”), was one of several “distributors” for the organization; Ivory Watson, also known as “Bird” (“Watson”), functioned as a “runner,” meaning he collected money from, and delivered drugs to, the organization's customers; and Patrick Jones, also known as “Hog” (“Jones”) was a customer. The organization also utilized “brokers” who arranged drug transactions for a commission fee.

After a lengthy federal investigation—code-named “Operation Dead Eye”—into Hicks' drug organization, a grand jury, on August 21, 2008, charged 29 defendants with drug-related offenses. Jones, Germany, and Watson were 3 of the 29 defendants indicted. On March 5, 2010, Jones pleaded guilty to Count 9 of the indictment: possession with intent to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The district court sentenced Jones to 180 months' imprisonment on August 31, 2010.

A jury trial began on March 23, 2010, in the charges against Germany and other co-defendants pertaining to a superseding indictment issued on March 2, 2010. After a mistrial, but shortly before the case was to be retried, Germany and the Government reached an agreement; Germany pleaded guilty to one count in the superseding indictment: using a communication facility in furtherance of a drug offense, in violation of 21 U.S.C. §§ 841(a)(1) and 843(b). The district court sentenced Germany to 48 months' imprisonment to be served consecutively to the term of imprisonment imposed by the Superior Court of Lake County, Indiana.¹

On March 10, 2010, Watson pleaded guilty to both counts in the superseding indictment of March 2, 2010 that applied to him: (1) conspiracy to distribute crack cocaine in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2; and (2) knowingly and intentionally distributing crack cocaine on or about March 13, 2008, in violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 2. Watson was sentenced to 180 months' imprisonment and 5 years of supervised release.

Jones, Germany, and Watson appeal their sentences. Watson's attorney seeks to withdraw as counsel and has filed an Anders brief contending that there are no non-frivolous grounds for appeal. In accordance with Circuit Rule 51(a), Watson was informed of his attorney's motion and took advantage of the opportunity to respond.

II. DISCUSSION

All three cases in this consolidated appeal involve petitioners who committed crimes before enactment of the Fair Sentencing Act, but who were sentenced after the Act's effective date.

Federal drug statutes that impose mandatory minimum sentences for federal drug crimes determine the length of a minimum sentence based upon the kind and amount of the drug involved. Generally, drug crimes involving crack cocaine, as opposed to powder cocaine, carry harsher sentences. In other words, it takes a lesser amount of crack cocaine than it does powder cocaine to trigger a longer minimum sentence. Before enacting the Fair Sentencing Act, Congress had adopted a ten-year mandatory minimum sentence that was triggered by 5,000 grams of powder cocaine or 50 grams of crack cocaine, and a five-year mandatory sentence that was triggered by 500 grams of powder cocaine or 5 grams of crack cocaine. The FSA reduced the crack-to-powder cocaine disparity from 100–to–1 to 18–to–1. Specifically, the FSA increased the crack cocaine threshold needed to trigger the five-year minimum mandatory sentence from 5 grams to 28 grams and the ten-year minimum mandatory sentence from 50 grams to 280 grams.

The FSA went into effect on August 3, 2010, and the issue arose as to whether the FSA would apply to offenders who committed a crack cocaine crime before the FSA's effective date but were not sentenced until after that date. We had held that it did not—and that was the law of this Circuit at the time when each petitioner was sentenced. See United States v. Fisher, 635 F.3d 336, 340 (7th Cir.2011). But in Dorsey v. United States, ––– U.S. ––––, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012), the Supreme Court held that the FSA does apply retroactively to defendants whose offenses predated the Act's effective date. So in light of Dorsey, we review each petitioner's appeal in turn.

A. Patrick Jones

Jones makes two arguments. He first argues that the district court erred in not applying the new, more lenient crack cocaine threshold under the Fair Sentencing Act. The record, however, suggests that the district court did apply the 18–to–1 ratio under the FSA. During Jones' sentencing hearing, the Government recommended that the district court “impose a sentence within what is not technically the guideline applicable but what would be the guideline applicable if the 18 to 1 ratio were in play.” Applying an 18–to–1 ratio, Jones' Guidelines sentence range was 210 to 262 months. The district court agreed with the Government that an 18–to–1 ratio “is within the realm of reason” and sentenced Jones to 180 months' imprisonment—a sentence well below the minimum under the FSA. We therefore find that the district court did not err by failing to apply the crack cocaine thresholds required under the FSA.

Jones next argues that the district court's sentence violated the Eighth Amendment's Cruel and Unusual Punishment Clause because it was grossly disproportionate to the crime he committed. We presume the district court's imposition of a below-Guidelines sentence to be reasonable and review it for abuse of discretion. United States v. Poetz, 582 F.3d 835, 837 (7th Cir.2009). We review de novo its procedures during sentencing, including the court's consideration of the § 3553 factors. Id.

Jones contends that the disparity between his sentence and that of his co-conspirators violated the Eighth Amendment's prohibition against cruel and unusual punishment. Jones received a sentence of 180 months' imprisonment while one of his co-conspirators was sentenced to 80 months' imprisonment, and another co-conspirator, at the time of Jones' sentencing, was facing 171 months' imprisonment.

We reject Jones' cruel and unusual punishment argument. If the sentence is within the statutory limits, a claim of cruel and unusual punishment is normally without merit. See United States v. Gray, 611 F.2d 194, 197 n. 2 (7th Cir.1979). Moreover, if a district court has correctly calculated the Guidelines range, we assume that significant consideration has been given to avoid unwarranted disparities between sentences. United States v. Statham, 581 F.3d 548, 556 (7th Cir.2009). In Jones' case, the presentence report recommended a Sentencing Guidelines range of 262 to 327 months' imprisonment. The district court correctly determined the Guidelines range, accepting the probation office's recommendation, but then in its discretion, sentenced Jones below the minimum.

Section 3553 requires the judge to consider, among other things, whether a particular sentence would create unwarranted disparities with other defendants, but only among defendants with “similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). The district court indicated that it considered the disparity Jones complains of but found it warranted in light of the seriousness of the offenses, Jones' history, and the fact that he, unlike his co-defendants, had little to offer the Government in terms of cooperation. For instance, the district court stated, “Partly my sentence in this case is influenced by my views of the relative culpability of this defendant in connection with other defendants.... And due to ... my view of the severity of this individual's offense which I do regard as severe....” The district court thus adequately considered any disparity between Jones' sentence and those of his co-defendants; and in any event, the record indicates that Jones' conduct, level of cooperation with the Government, and history warranted such a disparity. See United States v. Statham, 581 F.3d 548, 556 (7th Cir.2009) (holding that the district court was entitled to consider the co-defendants' cooperation with the Government in choosing their sentences). The district court did not abuse its discretion; Jones' sentence will stand.

B. Deshaun Germany

On appeal, Germany brings several procedural and substantive challenges to the reasonableness of his sentence. Again, we presume the district court's imposition of a within-Guidelines sentence to be reasonable and review it for abuse of discretion. United States v. Poetz, 582 F.3d 835, 837 (7th Cir.2009). We review de novo...