United States v. Major

• Decision Date: 27 April 2022
• Docket Number: 20-2829
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David D. MAJOR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

33 F.4th 370

UNITED STATES of America, Plaintiff-Appellee,

v.David D. MAJOR, Defendant-Appellant.

No. 20-2829

United States Court of Appeals, Seventh Circuit.

Argued November 2, 2021

Decided April 27, 2022

Jeffrey Kienstra, Attorney, Office of the United States Attorney, Peoria, IL, for Plaintiff-Appellee.

Mark S. Rosen, Attorney, Rosen & Holzman, Waukesha, WI, for Defendant-Appellant.

Before Sykes, Chief Judge, and Flaum and Jackson-Akiwumi, Circuit Judges.

Flaum, Circuit Judge.

David Major pleaded guilty without the benefit of a plea agreement to three charges stemming from his activities dealing heroin and fentanyl. Major was sentenced to twenty years' imprisonment. He now challenges the basis of his sentence, arguing that the district court's factual findings were erroneous and caused it to calculate an incorrect Sentencing Guidelines range. He also argues that his designation as a "career offender" overstated his past criminal conduct, so that his sentencing under the career offender Guidelines range was therefore unreasonable.

Because the district court made no clear errors in its findings of fact and did not abuse its discretion in deciding Major's sentence, we affirm.

I. Background

A. A.K.'s Overdose Death and the Government's Subsequent Investigation

In December 2018, a twenty-six-year-old woman, A.K., was found dead in her bedroom in Pekin, Illinois, with fresh needle marks on her arm consistent with heroin use. An autopsy later determined that her cause of death was the "combined toxic effects of acetyl fentanyl

, fentanyl, and Mitragynine," though officers did not find any drugs in the home.

Officers began investigating A.K.'s death and learned that the night before she died, she had taken an Uber home from an address where a person named Dawn Bukowski lived with her boyfriend. When the officers interviewed Bukowski, she admitted that she used heroin and had provided some to A.K. around 6:30 PM the night before she was found dead. Bukowski explained that A.K. had reached out to Bukowski's boyfriend through the "dark web," looking for heroin because she was afraid she was about to start experiencing withdrawal symptoms. A.K. did not know where else to obtain the drugs since she had only recently moved to the area. Bukowski's account was confirmed by text messages recovered from her phone. Bukowski's texts also revealed that she told her boyfriend A.K. was "really fucked up" after she injected the drugs at Bukowski's home immediately after purchasing them. Bukowski later testified that she "could tell that [A.K.] was really, really messed up" shortly after taking the drugs, though she appeared to "snap[ ] out of it" by the time she left Bukowski's house, around 7:30 PM.

A.K. took the rest of her unused drugs with her when she left Bukowski and got in her Uber. The driver later told officers that A.K. seemed "intoxicated but not overly intoxicated" during the ride to her home. When A.K. arrived home, she greeted her parents, who said that she appeared normal, before heading to her room for the night. Her mother discovered her unresponsive in her bedroom around 5:30 AM the next morning.

Bukowski told the investigating officers that she had purchased the drugs she resold to A.K. from someone named "Don," whom the officers soon determined to be the Defendant, David Major. In February and March 2019, police set up a series of controlled drug buys from Major. Often, these buys resulted in the source receiving drugs directly from Major, but sometimes, Major would direct the source to contact "the girls," his associates Stephanie Lobb and Natalia Menchaca.

After the controlled buys, police arrested Lobb and Menchaca as they were returning to the Peoria area from Chicago. In their possession, the women had 9.4 grams of heroin and fentanyl. Both provided cooperative statements to law enforcement. Menchaca stated that she had been acquiring heroin from Major for about eight months and had worked for him for the last three months. She further stated that she and Lobb traveled to Chicago about once a week to purchase between a half-ounce and an ounce of heroin for Major. Lobb provided similar information and estimated that the pair had made about fifteen trips to Chicago over the last few months for this purpose. Police subsequently arrested Major, who waived his Miranda rights and admitted that he sold drugs and had purchased them from a contact in Chicago. Text messages between Major and Bukowski confirmed that he sold her drugs and that his heroin was laced with fentanyl. For instance, he sent her a picture of a white, rock-like substance, with a caption referring to "that fintnal."

In April 2019, a grand jury indicted Major, Menchaca, and Lobb with drug-trafficking and conspiracy offenses (none of which directly pertained to the December 2018 drug transaction that led to A.K.'s death). Major eventually pleaded guilty to three charges: one count of conspiring between December 2018 and March 2019 to distribute and possess with intent to distribute heroin and fentanyl, see 21 U.S.C. § 846, and two counts of distributing heroin and fentanyl in February 2019, see 21 U.S.C. § 841(a)(1), (b)(1)(C). At the change-of-plea hearing, he specifically admitted under oath that he "actually distribute[d] heroin and fentanyl."

B. Incident Involving Major's Co-Defendant

After Major entered his guilty plea, the Probation Office prepared a presentence investigation report ("PSR"), which, among other things, described the statements Lobb and Menchaca made to the police. Based on Menchaca's statements, the PSR indicated that the conspiracy involved over 100 grams of heroin and 0.4 grams of fentanyl.

A few months after the Probation Office filed its first PSR and while Lobb was on bail, she called her attorney to describe a disturbing incident, which her attorney then relayed to the police. Lobb stated that on the afternoon of April 28, 2020, she was approached at her place of work (Burger King) by someone she knew as "Ray Ray." She had met Ray Ray before and knew him as Major's close friend (at the time, she thought they were brothers) and his "enforcer." Ray Ray entered the drive-through lane going the opposite direction and pulled up to Lobb. He held up his phone and told her that Major wanted to talk to her. She responded that she could not talk to him, and Ray Ray then stated that he thought he had seen her walking a few days earlier. Ray Ray then drove off.

Lobb later testified that she felt "threatened and intimidated" by the incident, specifically because she had heard stories about Ray Ray's violent past and knew that Major relied on Ray Ray to "tak[e] care of things for him." In fact, Lobb testified, she had received a letter from Major from jail regarding the instant criminal conspiracy, instructing her to "stand tall or stay strong," because Major "kn[ew] who set [them] up" and "Ray Ray's gonna handle it." Lobb was sufficiently spooked by the incident that two days later she arranged with Pretrial Services to move out of the area.

To investigate this incident, officers obtained recordings of Major's phone calls from jail. From these calls, officers learned that Major told a variety of people that it was "very important" that he speak with Lobb. On April 27, Major placed one such call to his daughter, in which he asked if she remembered the "girl that people was talking about that you was supposed to be looking for?" His daughter responded that she did not remember her name, and Major explained that it was Lobb and further advised his daughter to call the Burger King where Lobb worked immediately after hanging up with him. He told his daughter to tell Lobb that Major was not mad at her and that nothing was going to happen to her. Later that day, Major made a similar call to another woman. He told this woman to tell Lobb that Major was "not mad at her and ain't nobody going do shit to her. I need to talk to her, it's very important."

The next day, Major made a call and spoke to Ray Ray, whose real name is Kimmit Smith. Ray Ray told Major, "That bitch is scared as hell," to which Major replied that he knew it and that he hoped Ray Ray did not scare her. Major then laughed and said, "I hope you don't try and tell the people I'm trying to do anything ... what they say?" Ray Ray told Major that the woman had asked what Major wanted her to say. Ray Ray then said, "Some things a mother fucker can't say over these lines." Major replied, "I know, that's the truth ... that's why I needed the number." When Ray Ray told Major that he didn't ask for the woman's phone number because "she got scared and I [Ray Ray] got scared," Major began laughing again.

Major then told Ray Ray that Menchaca had said that Major was buying an ounce of heroin per week, which he said was "bullshit" and was why he needed to speak to Lobb. Ray Ray replied that Lobb had told him that she could not talk to Major. Major then said that he did not want Ray Ray to scare her and that he needed to "clean it up." Major told him to "get on it today." A few minutes later, Major called Ray Ray back and told him that he didn't need anybody saying, "These people came up here and blew on me[,] so you got to calm a mother fucker down today." Major said that he was upset because Menchaca had lied about the amount of drugs they had dealt and that he needed Lobb to tell the truth that it was a lesser amount than what Menchaca had claimed. Major gave Ray Ray the phone number for Burger King and told him he needed to go up there that day. He said it would "help him out a lot" if Lobb said they never went up there (presumably Chicago) for ounces and "that's the truth." He later clarified that Lobb's testimony to this effect would undermine the credibility of Menchaca's statements during sentencing.

C. Major's Sentencing

The Probation Office filed its final, revised PSR on September 10, 2020, a few days before sentencing. In addition to recounting the above facts (including Major's phone calls...