Criminal Practice — Drug Dealer’s Life Sentence ‘Unreasonable’

U.S. v. Howard (Lawyers Weekly No. 001-202-14, 38 pp.) (Davis, J.) No. 13-4296, Dec. 4, 2014; USDC at Raleigh, N.C. (Dever, J.) 4^th Cir.

Holding: The 4^th Circuit vacates a life sentence as “substantively unreasonable” and orders resentencing for a defendant with a history of selling PCP who was convicted of conspiracy, a weapons charge and multiple counts of distribution; the district court abused its discretion by focusing too heavily on defendant’s juvenile criminal history to label defendant a career offender.

There was sufficient evidence to support the conspiracy conviction against defendant. Several witnesses testified to defendant’s role in the PCP drug trade in Wilson, N.C. Defendant and D.W. sourced PCP from the same Washington, D.C. supplier, and the two dealers shared customers and purchased PCP from one another. Defendant also sold PCP to frequent customers who often resold the drugs. Taken together, the evidence demonstrated defendant was part of a loosely-knit association of members linked only by their mutual interest in sustaining the overall enterprise of catering to the ultimate demands of a particular drug consumption market in the Wilson area.

We also uphold the distribution convictions in counts two through 10, based on evidence of controlled purchases between defendant and several others, including two confidential informants and a cooperating individual. We uphold the conviction for knowingly possessing a firearm in furtherance of a drug offense. Officers found a loaded pistol with a round in the chamber and ammunition in the living room of defendant’s residence. In the adjoining den, officers found a working police scanner and plastic vial caps. While police did not find drugs in defendant’s home at the time of the search, it is plausible that the presence of the firearm served to protect defendant from a potential theft of his drugs or profits. The firearm and drug paraphernalia were in close proximity to one another, as they were found in adjoining rooms. The firearm was readily accessible to defendant; it was hidden beneath a couch cushion in the living room and ammunition was stored nearby in the couch’s center console.

The district court reached its life imprisonment sentence by making an upward departure based on defendant’s de facto career offender status and by reasoning that the 18 U.S.C. § 3553(a) factors supported a sentence at the top of the guidelines range determined after the departure. Because we are persuaded that the extent of the upward departure is unwarranted and amounts to an abuse of discretion, and because, in any event, a sentence of life in prison on this record is not justified by consideration of the § 3553(a) factors as articulated by the district court, we conclude the sentence imposed is substantively unreasonable.

Defendant’s original guidelines range called for 120-121 months imprisonment, plus a consecutive 60 months for the firearm offense. The district court made an upward departure and treated defendant as a de facto career offender. While the de facto career offender doctrine is settled law in the 4^th Circuit, the district court’s departure to de facto career offender status in this case resulted in a sentencing range – and ultimately, an actual sentence – that was greater than necessary to achieve the purposes of federal sentencing.

Defendant’s conviction in 1997 for conspiracy to distribute and possess with intent to distribute cocaine and cocaine base undoubtedly qualified for consideration. The district court found three otherwise stale convictions, incurred by defendant from 1990 and earlier, justified career offender status. We acknowledge that defendant would never be mistaken for a model citizen, but we cannot ignore the fact that most of his serious criminal convictions occurred when he was 18 years old or younger. The district court abused its discretion by focusing too heavily on defendant’s juvenile criminal history in its evaluation of career offender status.

Defendant was 41 years old when he was sentenced, and studies demonstrate that the risk of recidivism is inversely related to an inmate’s age. Defendant was not a drug kingpin; he was little more than a run-of-the-mill drug dealer. The prosecutor herself twice urged the court to impose a far shorter sentence than that ultimately imposed by the district court, advocating for a sentence of 175 months.

Convictions on all counts affirmed, sentence vacated as substantively unreasonable and case remanded for resentencing.