United States v. Demond Glover , 816 F.3d 468 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14-2811, 14-3189, 14-3684
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTHONY LOMAX, DEMOND GLOVER &
BRANDON LOMAX,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
Nos. 12-CR-00189-1,-2,-3 — Sarah Evans Barker, Judge.
____________________
ARGUED NOVEMBER 30, 2015 — DECIDED MARCH 8, 2016
____________________
Before ROVNER and WILLIAMS, Circuit Judges, and SHAH,
District Judge. ∗
WILLIAMS, Circuit Judge. A jury found Anthony Lomax,
Brandon Lomax, and Demond Glover guilty of conspiring to
∗ Of the Northern District of Illinois, sitting by designation.
2 Nos. 14-2811, 14-3189, 14-3684
possess with the intent to distribute and to distribute 1,000
grams or more of heroin. 21 U.S.C. § 841(a)(1). On appeal,
the defendants argue that the evidence did not prove be-
yond a reasonable doubt that they joined the conspiracy
with the intent to further the goals of the conspiracy. They
maintain they were running three separate heroin business-
es. We reject this argument. Anthony Lomax separately ar-
gues that he was not a part of the conspiracy, but instead
had a buyer-seller relationship with Brandon Lomax. As
such, he claims that the district court erred by refusing to in-
struct the jury about the buyer-seller relationship. We agree
and remand Anthony Lomax’s case for a new trial to include
the buyer-seller jury instruction.
Brandon Lomax argues that he was entitled to a jury de-
termination on whether he had two prior drug convictions,
and the district court’s finding that he had two prior drug
convictions, which enhanced his mandatory minimum sen-
tence to life imprisonment, violated the Constitution. We
disagree and affirm his sentence.
Demond Glover also challenges his sentence stating that
his case should be remanded for resentencing because he
was erroneously classified as a career offender in light of
Johnson v. United States, 135 S. Ct. 569 (2015). Because we find
that the error was harmless, we affirm his sentence.
Nos. 14-2811, 14-3189, 14-3684 3
I. BACKGROUND
A. Evidence of the Conspiracy
The government suspected Anthony Lomax, Brandon
Lomax, and Demond Glover 1 of being part of a conspiracy
to distribute heroin. Anthony and Brandon are cousins and
Brandon and Demond are cousins. To gather evidence about
defendants’ operation, the government got court orders to
wiretap each defendant’s phone. It also used confidential in-
formants to purchase drugs from the defendants, captured
the defendants’ actions on videotape, and secretly followed
the defendants. Over a three-month period, the government
intercepted phone calls and text messages among the de-
fendants as well as their communications with their heroin
suppliers or customers. Bureau of Alcohol, Tobacco, Fire-
arms and Explosives Task Force Detective Jake Hart re-
viewed videotapes of and occasionally followed the defend-
ants. The government also captured the defendants’ sale of
heroin on videotape. Most of the evidence collected focused
on events that occurred at Brandon’s business, Spray’Em
Auto Body. A grand jury indicted Brandon, Anthony, and
Demond, charging them with one count of conspiracy to
possess with intent to distribute and to distribute 1,000
grams or more of heroin under 21 U.S.C. § 841(a)(1). The in-
dictment charged that the conspiracy lasted from 2009 until
October 2012. The grand jury also charged the defendants
with additional distribution or possession with intent to dis-
tribute counts, which they do not challenge on appeal.
1 To avoid confusion, we will use first names when referring to de-
fendants separately since Anthony and Brandon share the same last
name.
4 Nos. 14-2811, 14-3189, 14-3684
At trial, the government showed that Brandon and
Demond purchased heroin from two main sources and that
all defendants sold heroin. James Kelley testified that Bran-
don purchased heroin from him. Gary Tate testified that
Demond purchased heroin from him. Describing one of the
wiretap conversations he listened to, Hart testified that a
phone conversation Demond had suggested that Demond
bought heroin for himself and Brandon from Tate. There was
no evidence that Anthony purchased from Kelley or Tate.
Instead, the evidence showed that Anthony purchased hero-
in from Brandon. He also purchased heroin from Demond at
least once, explained in more detail below. There was also
evidence of controlled purchases by confidential informants,
eight purchases of heroin from Brandon, three purchases of
heroin from Demond, and five purchases of heroin from An-
thony.
Brandon’s supplier Kelley provided evidence that
Demond and Brandon were in business together. Kelley tes-
tified that on one occasion, Brandon and Kelley drove to-
gether to Demond’s house so that Brandon could pick up
money from heroin sales that he owed to Kelley. Kelley
stayed in the car while Brandon collected the money from
Demond. They then drove to another location where Bran-
don collected more money he owed to Kelley. Kelley also
testified that Brandon told him that Brandon, Brandon’s
cousin, and Brandon’s brothers were selling one kilogram of
heroin per month.
There was additional evidence that Brandon and
Demond were business partners. The government showed
the jury a text message from Brandon to Demond that said
“needed to borrow 50 until he call, got somebody, won’t
Nos. 14-2811, 14-3189, 14-3684 5
wait.” Hart testified that he interpreted the text to mean that
Brandon was telling Demond that he borrowed fifty grams
of heroin from Demond’s supply until his supplier delivered
additional heroin, so he could sell heroin to an impatient
customer. Demond did not respond to the text.
There was other evidence of Brandon and Demond dis-
cussing supplier issues. After Demond met with his suppli-
er, Tate, he called Brandon. Hart testified that during the
call, Demond and Brandon discussed how to settle an out-
standing debt with Tate. Demond stated that he told Tate,
“we just trying to get that shit out of the way, man, because
we ain’t trying to keep making no payments and doing all
that.” Hart interpreted this to mean that Demond was telling
Brandon that he had told Tate that they would like to clear
their drug debt.
The defendants conducted most of their transactions at
Spray’Em and each sold their supply to various customers.
Hart testified that Anthony and Demond were often at
Spray’Em even though neither of them worked there during
the relevant period. He also stated that Demond and Antho-
ny conducted hand-to-hand transactions outside of
Spray’Em on multiple occasions, selling heroin to multiple
buyers. Hart also witnessed Anthony conducting additional
transactions at other locations.
Most of the evidence showed that the defendants had dif-
ferent customers, but there was some evidence of shared
customers. Communications between Brandon and Demond
suggest they shared some customers. For example, Brandon
and Demond discussed a shared customer named “Fat-Fat.”
There was evidence of a phone conversation where Demond
told Brandon that Fat-Fat needed heroin by saying that “Fat-
6 Nos. 14-2811, 14-3189, 14-3684
Fat just wanted his shit.” Brandon and Demond also shared
Anthony as a buyer. In an intercepted phone call, Anthony
referred to Spray’Em as “the mall” and told Brandon he
wanted to “buy something … at the mall.” In another phone
call, Demond instructed Anthony to “pull over to Auntie’s,”
where video surveillance showed Demond and Anthony
conducting a hand-to-hand drug transaction. Rodney John-
son, one of Brandon’s customers, testified that Anthony tried
to convince him to buy his heroin from Anthony instead of
Brandon.
There was one piece of evidence that Anthony and Bran-
don shared one customer. Marcus Perry testified that on at
least one occasion, Brandon did not have heroin with him
and sent Perry to Spray’Em where he could purchase the
heroin from Anthony. There is additional evidence of a joint
heroin business that included Anthony. Perry testified that
Anthony drove Brandon to heroin deals in Indianapolis and
was visibly armed while the transactions occurred. In Octo-
ber 2012, Demond was arrested for heroin possession. Im-
mediately after the arrest, a friend of the defendants called
Spray’Em to tell Anthony the police had arrested Demond.
He asked where Brandon was and encouraged Anthony to
find him. In a follow-up call, the friend told Anthony he
thought “the block [was] hot,” indicating that the police
were near Spray’Em.
B. Jury Instruction and Motion for Judgment of Ac-
quittal
The district court provided the parties with a set of jury
instructions, which included a buyer-seller instruction.
Thereafter, the government filed proposed jury instructions
requesting that the court add an aiding and abetting instruc-
Nos. 14-2811, 14-3189, 14-3684 7
tion, as well as one regarding transcripts. Before the jury in-
struction conference, the court replaced the preliminary ver-
sion with a version that excluded the buyer-seller instruc-
tion. The defendants objected to the exclusion of the buyer-
seller instruction. The district court explained that it re-
moved the buyer-seller instruction because the facts were
not “typical of buyer-seller facts” and for the reasons it out-
lined in its order denying the motions for judgment of ac-
quittal.
Each defendant filed a motion for judgment of acquittal.
The primary argument in Anthony’s and Demond’s motions
was that the government had only proven a buyer-seller re-
lationship, not a conspiracy. The court denied both motions.
Brandon also moved for judgment of acquittal. He argued
that the evidence was insufficient to sustain a conspiracy
conviction. The court also denied his motion.
C. Verdict and Sentencing
Before trial, the government filed a notice of intention to
seek an enhanced sentence under 21 U.S.C. § 851, referenc-
ing Brandon’s two prior felony convictions, which increased
the mandatory minimum from ten years to life imprison-
ment. After a nine-day jury trial, the jury found all defend-
ants guilty of conspiracy to distribute 1,000 grams or more of
heroin. Demond was sentenced to 330 months in prison. An-
thony was sentenced to 400 months in prison. Brandon was
sentenced to life imprisonment because of his prior convic-
tions. Brandon objected, arguing that the district court’s de-
termination that he had two prior drug convictions was a
violation of his constitutional rights because it increased the
mandatory minimum and he was entitled to a jury determi-
nation of any fact that increased the mandatory minimum
8 Nos. 14-2811, 14-3189, 14-3684
sentence. The district court noted Brandon’s objection but
overruled it. Each defendant filed an appeal challenging the
sufficiency of the evidence to sustain the conspiracy convic-
tion. Anthony also challenges the exclusion of the buyer-
seller jury instruction. Brandon challenges the constitutional-
ity of his sentence. We consolidated the three appeals.
II. ANALYSIS
A. Evidence Sufficient to Sustain Brandon’s and
Demond’s Convictions
Each defendant challenges his conspiracy conviction and
argues that the government failed to provide sufficient evi-
dence to prove the existence of a conspiracy between them.
The defendants further argue that they were each in busi-
ness for themselves and that the government failed to prove
that they intended to join an agreement in furtherance of a
common goal. They do not challenge the drug quantity. Be-
cause we are vacating Anthony’s conviction and remanding
for a new trial on other grounds, we will not discuss Antho-
ny’s conspiracy conviction. 2 We review the jury’s decision
by considering the evidence in the light most favorable to
the government. United States v. Warren, 593 F.3d 540, 546
(7th Cir. 2010); see also United States v. Jones, 713 F.3d 336,
339–40 (7th Cir. 2013). We will overturn a guilty verdict “on-
ly when the record contains no evidence, regardless of how
it is weighed, from which the jury could” find defendants
guilty beyond a reasonable doubt. United States v. Huddle-
ston, 593 F.3d 596, 601 (7th Cir. 2010).
2 We note, however, as discussed below in the context of the buyer-
seller instruction, that there is evidence from which a jury could find An-
thony guilty of conspiracy.
Nos. 14-2811, 14-3189, 14-3684 9
To sustain a conviction for conspiracy to distribute or
possess with intent to distribute 1,000 grams or more of her-
oin, the government must have proven beyond a reasonable
doubt: (1) the existence of an agreement by each defendant
to distribute or to possess with intent to distribute 1,000
grams or more of heroin; (2) the defendants knew of the
agreement; and (3) each defendant intended to work with
the other to further their collective aims. See United States v.
Taylor, 600 F.3d 863, 868 (7th Cir. 2010). Proof of conspiracy
may come from direct evidence or circumstantial evidence,
United States v. Hightower, 96 F.3d 211, 214 (7th Cir. 1996), as
well as “the reasonable inferences … concerning the parties’
relationships, their overt acts, and their overall conduct,”
United States v. Miller, 405 F.3d 551, 555 (7th Cir. 2005) (quot-
ing United States v. Navarrete, 125 F.3d 559, 562 (7th Cir.
1997)).
Here, the evidence is sufficient for a reasonable jury to
find that Brandon and Demond agreed to form a heroin dis-
tribution enterprise. The government established that a con-
spiracy existed through its evidence of the communications
between Brandon and Demond and the testimony suggest-
ing that they shared customers, a supplier, and heroin, and
pooled funds. The intercepted communications showed the
jury that Brandon and Demond shared customers Fat-Fat
and Anthony. The defendants discussed what Fat-Fat want-
ed, which showed that Brandon and Demond had agreed to
communicate regularly on customer issues and were on the
same side of the sale to Fat-Fat. When two individuals sell
drugs and are on the same side of a sale to a third party, suf-
ficient evidence of a conspiracy exists. See United States v.
Sachsenmaier, 491 F.3d 680, 684 (7th Cir. 2007).
10 Nos. 14-2811, 14-3189, 14-3684
Through a combination of wiretaps and testimony, the
government also established that Brandon and Demond
shared a supplier and pooled funds and heroin. Brandon
and Demond discussed their outstanding debt with Tate, a
supplier, which suggested to the jury that Brandon and
Demond shared a supplier and used shared funds. Bran-
don’s supplier Kelley testified that Brandon took him to
Demond’s house to retrieve the money owed to him, which
suggested that Brandon and Demond pooled funds. Further,
the evidence that Brandon sent a text to Demond saying he
needed to borrow “50” grams of heroin suggested to the jury
that the defendants also pooled their product. Kelley’s testi-
mony also suggested that a shared heroin pool existed. He
stated that Brandon told Kelley that his cousin and brothers
sold one kilogram of heroin per month. The jury could have
concluded that the “cousin” was Demond. A reasonable jury
could have found that the shared supplier, funds, and prod-
uct indicated an agreement between Brandon and Demond
and that their communications suggested a common goal
between them to sell the heroin, which is sufficient to estab-
lish a conspiracy. See United States v. Harris, 567 F.3d 846, 851
(7th Cir. 2009) (finding that sharing resources and pooling
money over a prolonged period is evidence of a conspiracy).
B. Evidence Merited Buyer-Seller Instruction for An-
thony
At the jury instruction conference, Anthony requested
that the district court instruct the jury about the difference
between a conspiracy and a buyer-seller relationship. He re-
quested the following instruction:
A conspiracy requires more than just a buyer-seller rela-
tionship between the defendant and another person. In
Nos. 14-2811, 14-3189, 14-3684 11
addition, a buyer and seller of [heroin] do not enter into
a conspiracy to distribute [heroin] simply because the
buyer resells [heroin] to others, even if the seller knows
that the buyer intends to resell the [heroin].
Seventh Circuit Pattern Criminal Jury Instructions § 5.10(A),
at 73 (2012 ed.). He argues that he purchased heroin from
Brandon to further his own interest of re-selling the drug to
his customers for profit, but he was not part of the conspira-
cy. The district court concluded that the facts that typically
support a buyer-seller jury instruction were not present in
the case and elected not to give the instruction. It stated that
the instruction is warranted when the facts indicate that a
buyer is being drawn into the conspiracy by virtue of buying
drugs from the seller.
The government argues that the court reviews a district
court’s decision regarding a jury instruction for abuse of dis-
cretion. While we have said that in several criminal cases,
see, e.g., United States v. Chavis, 429 F.3d 662, 671 (7th Cir.
2005) (reviewing the denial of a buyer-seller jury instruction
for abuse of discretion), we have also said that we review the
issue de novo, see, e.g., United States v. Cruse, 805 F.3d 795,
814 (7th Cir. 2015) (reviewing the denial of a buyer-seller ju-
ry instruction de novo). When we review a denied jury in-
struction, we essentially are reviewing the district court’s
decision regarding whether a defendant has presented suffi-
cient evidence to become entitled to a jury instruction on a
theory of defense. See United States v. Meyer, 157 F.3d 1067,
1074 (7th Cir. 1998). This is a question of “[t]he legal suffi-
ciency of a proffered defense[, which] is a question of law
and therefore is reviewed de novo.” See United States v. San-
tiago-Godinez, 12 F.3d 722, 726 (7th Cir. 1993); see also United
States v. Young, 613 F.3d 735, 743–44 (8th Cir. 2010) (finding
12 Nos. 14-2811, 14-3189, 14-3684
“the district court’s denial of a proffered legal defense” is
reviewed de novo and the “district court’s formulation of jury
instructions” is reviewed for abuse of discretion.) So the
proper standard of review here is de novo. See Santiago-
Godinez, 12 F.3d at 726 (finding that the refusal to instruct the
jury on an entrapment defense is reviewed de novo, not for
abuse of discretion). We will review the issue under that
standard. Cruse, 805 F.3d at 814.
Anthony was only entitled to the buyer-seller instruction
“if: (1) [he] proposed a correct statement of the law; (2) the
evidence lends some support to the defendant’s theory; (3)
[his] theory of defense is not part of the charge; and (4) the
failure to include [his] instruction would deny him a fair tri-
al.” Id. We have repeatedly stated that a district court
“should give a buyer-seller instruction where the jury could
rationally find, from the evidence presented, that the de-
fendant merely bought or sold drugs but did not engage in a
conspiracy.” Id. (quoting United States v. Love, 706 F.3d 832,
838 (7th Cir. 2013)). When the evidence of a conspiracy is
strong, we often uphold the district court’s refusal to give a
buyer-seller instruction. See Cruse, 805 F.3d at 814–15 (col-
lecting cases).
The government does not challenge whether the instruc-
tion was a correct statement of the law or whether the theory
of defense was already part of the charge. It argues that the
evidence did not support the theory of defense; instead, “the
evidence demonstrated a strong conspiracy among the three,
in which [Demond] and Anthony were able to utilize Spray
Em auto to distribute their heroin, and in which Brandon
and [Demond] freely communicated regarding the status of
their sources of heroin.” The government also maintains that
Nos. 14-2811, 14-3189, 14-3684 13
the refusal to include the instruction did not deny Anthony a
fair trial because no evidence showed that the three defend-
ants had only a buyer-seller relationship. Only Anthony
challenges the district court’s refusal to give the buyer-seller
instruction. If Brandon or Demond made this challenge on
appeal, we might agree with the government. However, be-
cause there is evidence of merely a buyer-seller relationship
between Brandon and Anthony and Demond and Anthony,
we disagree.
There is some evidence that Anthony was part of the
conspiracy. Like Brandon and Demond, he sold heroin at
Spray’Em Auto. Perry, a customer, testified that on one oc-
casion, when he went to buy heroin from Brandon, Brandon
sent him to Spray’Em to purchase the heroin from Anthony.
Perry also testified that Anthony drove Brandon to Indian-
apolis to conduct heroin deals, and Anthony was visibly
armed.
But, there is also evidence that Anthony was merely
Brandon’s customer. There is evidence that Anthony bought
heroin from mostly Brandon, but also bought heroin at least
once from Demond. Anthony would re-sell the heroin to his
own customers, not at the direction of Brandon. Also, John-
son, one of Brandon’s customers, testified that Anthony tried
to get him to buy heroin from Anthony instead of Brandon.
This suggests that Anthony did not have a shared common
goal with Brandon. Moreover, Kelley, Brandon’s supplier,
testified that Brandon moved drugs with a cousin and his
brothers. If a rational jury assumed Demond was the one
cousin mentioned, then it could have excluded Anthony
from the conspiracy.
14 Nos. 14-2811, 14-3189, 14-3684
Some of the evidence is equivocal. For example, after
Demond’s arrest, a mutual friend told Anthony that
Demond had been arrested and encouraged Anthony to find
Brandon. This could be because the friend knew Anthony
and Demond were in business together and wanted Antho-
ny to know his partner was arrested. Alternatively, the jury
could have reasonably concluded that the friend told An-
thony this information just to get a message to Brandon that
Brandon’s business partner had been arrested because An-
thony could get in touch with Brandon.
Furthermore, there is no evidence of the many character-
istics that distinguish a conspiracy from a buyer-seller rela-
tionship. Evidence such as “sales on credit, an agreement to
look for customers, commission payments, evidence that one
party provided advice for the other’s business, or an agree-
ment to warn of future threats to each other’s business from
competitors or law enforcement,” United States v. Villasenor,
664 F.3d 673, 680 (7th Cir. 2011), is not present. On this rec-
ord, a rational jury could have rejected the government’s
theory that Anthony was part of the conspiracy. On this rec-
ord, we find that there was sufficient evidence to support
Anthony’s theory of defense and that a reasonable jury
could have found that he had only a buyer-seller relation-
ship with the other defendants and was not a co-conspirator.
Because there was sufficient evidence to support the
buyer-seller instruction for Anthony, he was denied a fair
trial when the judge refused to give the instruction. See
Cruse, 805 F.3d at 816 (finding that “[i]f the evidence was
such that a reasonable jury could have found that the de-
fendant was merely a buyer from the conspiracy, the failure
to give a buyer-seller instruction denied [him] a fair trial”
Nos. 14-2811, 14-3189, 14-3684 15
(quoting Meyer, 157 F.3d at 1075)). A failure to give the buy-
er-seller instruction under these circumstances is not harm-
less error. Id. Therefore, Anthony is entitled to a new trial.
See id.
C. Brandon’s Sentence Did Not Violate Constitution
Brandon argues that his sentence is unconstitutional.
Specifically, he maintains that his two prior convictions,
which increased his mandatory minimum sentence from ten
years to life in prison, had to be proven to the jury and de-
termined beyond a reasonable doubt in light of United States
v. Alleyne, 133 S. Ct. 2151 (2013). We review this issue de no-
vo. See United States v. Vallejo, 373 F.3d 855, 859 (7th Cir.
2004).
Since Brandon was convicted under 21 U.S.C. § 841(a)(1)
for distribution of 1,000 grams or more of heroin, the jury’s
guilty verdict required Brandon to serve at least ten years. 21
U.S.C. § 841(b)(1)(A)(i). Before trial, the government filed a
21 U.S.C § 851 notice regarding Brandon’s two prior felony
drug convictions, indicating that Brandon’s prior convictions
subjected him to a mandatory minimum sentence of not ten
years, but life if he was convicted of the new drug offense.
See id. §§ 851, 841(b)(1)(A)(i). After trial, the district court
found that Brandon had two prior felony drug convictions
and concluded that those convictions increased his manda-
tory minimum sentence to life imprisonment.
Generally, under the Sixth Amendment, any fact that in-
creases the mandatory minimum sentence is an element of
the offense that must be submitted to a jury. Alleyne, 133 S.
Ct. at 2155. However, a sentencing enhancement based on a
prior conviction is not subject to the Sixth Amendment re-
16 Nos. 14-2811, 14-3189, 14-3684
quirement for a jury determination. Almendarez-Torres v.
United States, 523 U.S. 224, 246–47 (1998). Therefore, the ex-
istence of Brandon’s prior drug convictions was not a fact the
jury was required to find. See id. We recognize that there is
some tension between Alleyne and Almendarez-Torres, but that
is for the Supreme Court to resolve. We have already deter-
mined that we must follow Almendarez-Torres and have fore-
closed Brandon’s argument. See United States v. Shields, 789
F.3d 733, 741 (7th Cir. 2015) (finding that “unless the Court
acts, we are bound to follow Almendarez-Torres,” so the fact
of a prior conviction that increases a mandatory minimum
does not have to be determined by a jury even in light of Al-
leyne). Thus, we affirm Brandon’s sentence.
D. Demond Erroneously Designated a Career Offender,
But Error Was Harmless
As a final matter, we note that prior to oral argument,
Demond filed a letter pursuant to Federal Rule of Appellate
Procedure 28(j) challenging his career offender status. He
argues,
[Demond] had a prior conviction for Indiana’s offense of
vehicular flight from a law enforcement officer, which
was considered a violent felony. Since the decision in
Johnson v. United States, 135 S. Ct. 2551 (June 2015), it ap-
pears that this would no longer apply to [Demond] and
his Criminal History Category would change from a VI
to a V. It will not effect his Total Offense Level.
[The district court] found [Demond] to have a Total Of-
fense Level of 42 and a Criminal History Category of VI.
His Criminal History Category would decrease to a level
V. This would not affect his sentencing range of 360
months to life. [Demond] received a sentence of 330
months which actually falls well below his Total Offense
Level. We ask this Court to Remand [Demond] to the
Nos. 14-2811, 14-3189, 14-3684 17
District Court for a new determination of his guideline
calculation and sentencing.
The government agrees that the district court erred, but con-
tends that the error was harmless. Since the parties do not
dispute the error, we will only address whether the error
was harmless. To show that the error was harmless, the gov-
ernment must be able to show that the error had no effect on
the sentence the district court imposed. United States v.
Hines-Flagg, 789 F.3d 751, 757 (7th Cir. 2015).
The district court classified Demond as a career offender
under the guidelines. As such, two different offense-level
calculations were made. His career offender guidelines cal-
culation resulted in an offense level of 37. His non-career of-
fender guidelines offense level was 42. Because the non-
career offender offense level was higher, the district court
did not sentence Demond under the career-offender guide-
lines.
The district court also determined Demond’s criminal
history category. Because of Demond’s career offender clas-
sification, his criminal history category was VI instead of V.
With an offense level of 42 and a category VI criminal histo-
ry, his guidelines range was 360 months to life. If the district
court had properly determined his criminal history, his
guidelines range would also have been 360 months to life.
While announcing Demond’s sentence, the district court
stated,
The guidelines that apply to this case don’t just happen.
They are the cumulative total of the assessed harm that
was caused by your criminal conduct, [Demond], a main
part of which is, of course, your substantial criminal his-
tory, which has accumulated on you here now.
18 Nos. 14-2811, 14-3189, 14-3684
…
So at the age of 35 when you stand before the Court, it’s
a different situation, a different challenge than it would
be than when you were 25. Although, as has been noted,
your criminal history goes back to when you were just
really a kid in all the ways in which you found even
then, and over the years, to be in trouble with the law.
So the fact that the guideline range for your sentence is
life sort of underscores how serious your criminal con-
duct has been. The range of 360 months up to life is basi-
cally, if not all your life, and of course we all hope for
some longevity on your part, but it’s a big part of what
remains of your life at age 35.
…
So in trying to decide on a sufficient sentence, it’s not too
harsh or too extreme, it does seem to me that there’s
some leeway in the guideline range of 360 months up to
life to take into account that the way in which you will
be serving your sentence, because of your disability, will
be harder on you because of the way in which healthcare
is provided.
…
So I will vary from the 360-month low end and impose a
sentence of 330 months, which is a variance that I think
is warranted under 3553(a) given the history and charac-
teristics of you.
On this record, we find that the error is harmless. The
district court did not rely on the career offender guideline
when determining Demond’s sentence. Additionally, the fo-
cus of the district court’s analysis was the guidelines range
of 360 months to life, which was not affected by the error. It
is apparent to us that had the guidelines range been properly
calculated, the sentence would have been the same. We do
note, however, that had the district court relied on
Nos. 14-2811, 14-3189, 14-3684 19
Demond’s career offender status when choosing the appro-
priate sentence, the error would not have been harmless
even though the guideline range would have been the same.
III. CONCLUSION
For the reasons stated, we AFFIRM Brandon Lomax’s con-
viction and sentence and Demond Glover’s conviction and
sentence. We VACATE Anthony Lomax’s conviction and re-
mand for a new trial.