United States v. Kenneth Douglas , 885 F.3d 145 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 15-1754
______________
UNITED STATES OF AMERICA
v.
KENNETH R. DOUGLAS,
Appellant
______________
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT OF
PENNSYLVANIA
(D.C. No. 2-09-cr-00105-009)
District Judge: Hon. David S. Cercone
______________
Argued March 23, 2016*
______________
Before: GREENAWAY, JR., VANASKIE, and SHWARTZ,
Circuit Judges.
*
One sentencing issue was argued en banc on October
18, 2017, and will be addressed in a separate opinion.
(Filed: March 15, 2018)
Arnold P. Bernard, Jr., Esq. [ARGUED]
437 Grant Street
Suite 407
Frick Building
Pittsburgh, PA 15219
Counsel for Appellant
Michael L. Ivory, Esq. [ARGUED]
Rebecca R. Haywood, Esq.
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
______________
OPINION OF THE COURT
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SHWARTZ, Circuit Judge.
Kenneth Douglas appeals his sentence, arguing that the
District Court incorrectly held him responsible for trafficking
more than 450 kilograms of cocaine, erroneously applied
sentencing enhancements for abuse of a position of trust under
U.S.S.G. § 3B1.3 and obstruction of justice under U.S.S.G.
§ 3C1.1, and failed to appropriately consider the disparity
between his sentence and those imposed on his co-
conspirators. For the reasons discussed below, we will affirm
2
the sentence with respect to the drug calculation and reverse
the obstruction of justice enhancement.1
I
Douglas participated in a conspiracy to distribute
cocaine. The conspiracy began years before he joined it, when
Tywan Staples, who lived in the San Francisco area, began
supplying marijuana to his cousin Robert Russell Spence in
Pittsburgh. Staples and Spence went from selling small
amounts of marijuana to shipping four to six kilograms of
cocaine across the country several times a month. After law
enforcement intercepted several packages containing money
and drugs, the conspirators began using couriers to carry drugs
and money on commercial flights. By 2008, six different
couriers were transporting cocaine out of the Oakland,
California airport. After two of the couriers were arrested, the
conspirators began using San Francisco International Airport
(“SFIA”) instead.
1
The Panel filed an opinion on February 22, 2017, that
affirmed the drug calculation, reversed the imposition of the
obstruction of justice enhancement, and affirmed the abuse of
position of trust enhancement. The Court granted the petition
to rehear the application of the abuse of position of trust
enhancement, and upon rehearing en banc, the Court en banc
determined that the enhancement does not apply. The en banc
opinion is filed contemporaneously with this opinion. United
States v. Douglas, No. 15-1754, --- F.3d --- (3d Cir. _______)
(en banc). This Panel opinion essentially reinstates the original
Panel opinion except for the issue addressed by the Court en
banc.
3
Staples, who worked at the “maintenance base” at
SFIA, knew Douglas, who was an airline mechanic for United
Airlines. Douglas had an Airport Operation Authority
(“AOA”) badge that enabled him to enter the airport terminal
without being screened at a Transportation Security
Administration (“TSA”) checkpoint.2 Unlike Douglas, Staples
did not have the ability to enter the terminal without inspection.
For that reason, when Douglas asked Staples if he had “any
way [Douglas] could make some extra money,” Staples invited
him to join the conspiracy. Douglas accepted.
Staples and Douglas facilitated the movement of
cocaine in a simple way. Staples would deliver the cocaine to
Douglas packed in a bag with clothing. Douglas would then
smuggle the bag into the terminal and either transfer it to a
courier once inside the secured area of the terminal, or board
the plane as a passenger with the drugs.
Staples testified that Douglas assisted with the
movement of the cocaine “40 to 50 times,” transporting ten to
thirteen kilograms of cocaine on each occasion. App. 102.
Douglas transported drugs himself on seventeen occasions.
Unlike the couriers, he was not required to bring cash back to
California, so as to avoid any risk of being caught, which
would, in turn, shut down the conspiracy’s San Francisco
2
Douglas’s supervisor described the way Douglas
would access the terminal. To enter the terminal through a
secured employee entrance, an employee has to use his AOA
badge as well as place his hand on a biometric scanner.
However, to leave the terminal, only the AOA badge is
required. On a random basis, the TSA would search employees
entering the terminal.
4
distribution activities. Staples testified that Douglas was paid
$5,000 each time that he smuggled cocaine into the airport, and
another $5,000 each time he delivered a shipment himself.
Using airline records, the Government identified forty-
six specific flights departing from SFIA between January and
November of 2009 that were associated with the conspiracy,
including seventeen flights on which Douglas personally
transported drugs, sometimes using his employee benefit
tickets. These flights included very short round trips that were
inconsistent with personal travel, and corresponded to phone
calls among the conspirators, the use of pre-paid credit cards,
and the timing of deposits into Douglas’s bank account.
Following an investigation, a grand jury returned an
indictment against Douglas and twenty-one co-defendants.
Douglas was charged with conspiracy to distribute and to
possess with intent to distribute five kilograms or more of
cocaine, in violation of 21 U.S.C. § 846, and conspiracy to
engage in money laundering, in violation of 18 U.S.C.
§ 1956(h). Douglas was arrested and released on bail, subject
to several conditions, including travel restrictions and a
requirement that he appear for court proceedings. While
Douglas was on bail, the Probation Office discovered that he
had booked a flight to Jamaica without permission. At his bail
revocation hearing, Douglas claimed he had mistakenly
booked a flight for himself while booking a flight for his wife.
The District Court did not revoke his bail, but modified his
conditions of release to require him to call probation daily to
verify his whereabouts.
Douglas’s trial was scheduled to begin on January 8,
2014. He failed to appear for the first day of trial. The next
5
day, he filed a motion for a continuance claiming that he “was
receiving medical attention on January 8, 2014 and was unable
[to be] in court for that reason.” Supp. App. 47. In connection
with the motion, Douglas submitted documents showing that
he was admitted to the emergency room around 2:00 a.m. on
January 8, complaining of chest pain. The records show that
he was treated with aspirin and intravenous insulin, transported
via ambulance to an urgent care facility, and had a series of
tests in both medical facilities. Douglas’s EKG revealed
possible heart blockage, and his blood tests indicated he had an
abnormal white blood cell count, as well as an elevated enzyme
level that can be indicative of a heart attack. He received
instructions for taking eight over-the-counter and prescription
medications, in addition to the medication he was already
taking for diabetes. Douglas was also instructed to schedule
follow-up testing and appointments with several specialists.
Douglas was also given a doctor’s note bearing the time 4:12
p.m. asking that he be excused from court on January 8.
Based on this evidence, the Government argued that it
was “possible that [Douglas] went there [at] 2:00 in the
morning faking this illness, so he wouldn’t have to be here
today. It is also possible that that was a legitimate illness. I
don’t think that anything in the records tells us one way or the
other.” App. 388. Despite the hospital records, the District
Court stated that “[t]here’s no solid evidence, at least
presented, that he was suffering from a medical condition that
warranted him not to appear. It’s really sort of ambiguous.”
App. 390–91. Expressing concern that Douglas would not
appear for jury selection the following Monday, the District
Court revoked his bail.
6
On January 13, 2014, a jury was selected for the joint
trial of Douglas and a codefendant, but the next day, Douglas’s
attorney withdrew, Douglas’s case was severed, and his trial
was adjourned. His bail was reinstated but modified to require
home detention and electronic monitoring.
Douglas obtained new counsel and later waived his
right to a jury trial. At the bench trial, the Government offered
testimony from several coconspirators, law enforcement
officers, and a United Airlines supervisor. The Government
also presented documents corroborating their testimony.
Following the trial, the District Court convicted Douglas of
both charges.
Before sentencing, the Probation Office submitted a
pre-sentence investigation report (“PSR”) recommending that
Douglas be held responsible for 450 kilograms of cocaine,
resulting in a base offense level of 38. Applying the grouping
rules, the PSR recommended a two-level enhancement
pursuant to U.S.S.G. § 2S1.1(b)(2)(B), because Douglas had
been convicted of conspiracy to engage in money laundering.
The PSR also recommended a two-level enhancement for
abuse of a position of trust, pursuant to U.S.S.G. § 3B1.3, and
a two-level enhancement for obstruction of justice, pursuant to
U.S.S.G. § 3C1.1, for a total offense level of 44, which is
treated as a 43, the maximum offense level under the
Guidelines, which corresponds to a Guidelines sentence of life
imprisonment. Douglas objected to the drug quantity as well
as to the upward adjustments for obstruction of justice and
abuse of a position of trust.
At sentencing, the District Court overruled Douglas’s
objections, citing Staples’s testimony that Douglas smuggled
7
between 10 and 13 kilograms of cocaine between 40 and 50
times, and concluding based on the number of trips that “there
is ample evidence to show that [he] was responsible for more
than 450 kilograms of cocaine.” Supp. App. 236, 393, 403
(noting that his involvement was not an “anomaly”), 411
(observing that the evidence against him was
“overwhelming”).
The District Court also noted the presence of
“aggravating factors,” including that Douglas “use[d] [his]
position of trust with the airlines and, more specifically, [his]
level of security clearance to aid [him] in being part of th[e]
conspiracy to distribute controlled substances and the amount
of drugs that . . . [was] transported with [his] assistance was
enormous.” App. 411. As to the obstruction of justice
enhancement, the District Court relied upon Douglas’s failure
to appear on the first day of trial, but made no findings beyond
those it made in its tentative findings, in which it deemed the
objection to the enhancement to be “without merit.” Supp.
App. 237-47.
After determining the total offense level to be 43, the
District Court noted that it had “gone through all of the 3553
factors[,] [ ] looked at them all to determine a sentence that
[wa]s sufficient but not greater than necessary,” decided to
vary downward from the Guidelines sentence of life
imprisonment, App. 411-12, and imposed a sentence of 240
months’ imprisonment for each count, to be served
concurrently, followed by five years of supervised release.
Douglas appeals.
8
II3
We review sentences for both procedural and
substantive reasonableness. United States v. Tomko, 562 F.3d
558, 567 (3d Cir. 2009) (en banc). At the first stage, in which
we review for procedural reasonableness, we seek to
ensure that the district court committed no
significant procedural error, such as failing to
calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain
the chosen sentence—including an explanation
for any deviation from the Guidelines range.
Id. (alteration omitted) (quoting Gall v. United States, 552 U.S.
38, 50-51 (2007)). If the district court’s sentencing procedure
3
The District Court had jurisdiction under 18 U.S.C. §
3231. We have jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a). We exercise plenary review over the
construction of the Sentencing Guidelines themselves. United
States v. Greene, 212 F.3d 758, 760 (3d Cir. 2000). We review
the factual determinations underlying a sentence for clear error.
“A finding is ‘clearly erroneous’ when, although there is
evidence to support it, the reviewing body on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.” United States v. Grier, 475 F.3d
556, 570 (3d Cir. 2007) (en banc) (alterations and citations
omitted).
9
“passes muster, we then, at stage two, consider its substantive
reasonableness,” based on the totality of the circumstances.
Tomko, 562 F.3d at 567 (internal quotation marks omitted); see
also Gall, 552 U.S. at 51. Absent significant procedural error,
“we will affirm [the sentence as substantively reasonable]
unless no reasonable sentencing court would have imposed the
same sentence on th[e] particular defendant for the reasons the
district court provided.” Tomko, 562 F.3d at 568.
We will first review Douglas’s challenge to the drug
quantity calculation and then address his argument concerning
the Guidelines enhancement.
A
At sentencing, “the government bears the burden of
[proving drug quantity] by a preponderance of the evidence.”
United States v. Paulino, 996 F.2d 1541, 1545 (3d Cir. 1993).
While “some degree of estimation must be permitted,” United
States v. Collado, 975 F.2d 985, 998 (3d Cir. 1992), the district
court must satisfy itself that the evidentiary basis for its
estimate has sufficient indicia of reliability. See United States
v. Miele, 989 F.2d 659 (3d Cir. 1993) (drug quantity estimation
based solely on grand jury testimony of single drug-addicted
witness who had contradicted himself was not sufficiently
reliable). “‘Indicia of reliability may come
from . . . corroboration by or consistency with other evidence .
. . .’” United States v. Freeman, 763 F.3d 322, 337 (3d Cir.
2014) (quoting United States v. Smith, 674 F.3d 722, 732 (7th
Cir. 2012)).
The evidence supports the District Court’s factual
determination that Douglas was responsible for more than 450
10
kilograms of cocaine. Staples testified that Douglas smuggled
“[10] or 13 kilograms” of cocaine through SFIA “40 to 50
times,” App. 102, which totals between 400 and 650 kilograms
of cocaine. Staples knew the amount of drugs because he
provided Douglas with the cocaine, and nothing in the record
suggests that his perception or memory was impaired in any
way or that he provided inconsistent information on this topic.
Cf. Miele, 989 F.2d at 666.
Furthermore, the Government corroborated Staples’s
testimony with flight records, telephone toll records, and bank
deposits. It identified forty-six flights taken out of SFIA by
various drug couriers, including Douglas, all of which
depended on Douglas to smuggle drugs past security into the
terminal. Even if each flight involved only the minimum 10
kilograms of cocaine, this would justify an estimate of over 450
kilograms. The fact that the number of flights was established
through circumstantial evidence does not mean that reliance on
it was error. See, e.g., United States v. Jones, 531 F.3d 163,
175 (2d Cir. 2008) (“The quantity of drugs attributable to a
defendant is a question of fact. As such, if the evidence—
direct or circumstantial—supports a district court's
preponderance determination as to drug quantity, we must
sustain that finding.”).
Furthermore, the fact that Douglas used employee
benefit tickets for some of the trips does not undermine the
conclusion that the trips were taken for the conspiracy. Staples
testified that Douglas sometimes used his benefits for these
flights, despite the fact that doing so was riskier because he
might be required to wait longer to board a flight.
11
Douglas’s argument that cash deposits into his bank
account could have come from gambling is also unavailing.
The regularity of the deposits and the correspondence between
the dates of the deposits and the suspicious flights provides a
reasonable basis to infer that the flights were related to the
conspiracy.4
In sum, Staples’s testimony and the documentary
evidence provide ample support for the determination that
Douglas was responsible for more than 450 kilograms of
cocaine, and the District Court did not err in so finding.
B
We next examine the application of the § 3C1.1
enhancement for obstruction of justice. Section 3C1.1
provides a two-level increase in the offense level where “the
defendant willfully obstructed or impeded . . . the
administration of justice with respect to the . . . prosecution . .
. of the instant offense of conviction, and [ ] the obstructive
conduct related to . . . the defendant’s offense of conviction . .
4
Douglas attempts to argue in the alternative that the
District Court should have calculated the total drug quantity
based only on the seventeen flights he personally took because
the Government presented more specific evidence concerning
its identification of these flights. While these flights were
substantiated in more detail at trial, Staples’s testimony,
combined with the flight records for the other drug couriers and
the deposits into Douglas’s bank account, provide a sufficient
basis for the District Court to conclude that Douglas was
involved in smuggling drugs approximately forty-six, rather
than seventeen, times.
12
. .” U.S.S.G. § 3C1.1. “[W]illfully failing to appear, as
ordered, for a judicial proceeding” is covered conduct. Id.
§ 3C1.1 cmt. n.4(E). “Willfully” in this context means
“deliberately or intentionally; in other words, not negligently,
inadvertently, or accidentally.” United States v. Jenkins, 275
F.3d 283, 287 (3d Cir. 2001) (internal quotation marks
omitted). The word “willful . . . when used in a criminal
statute . . . generally means an act done with a bad purpose.”
United States v. Belletiere, 971 F.2d 961, 965 (3d Cir. 1992)
(internal quotation marks omitted). The government bears the
burden of proving that the defendant “willfully obstructed or
impeded . . . the administration of justice” by a preponderance
of the evidence. Id.The District Court adopted the PSR’s recommendation
to impose the obstruction of justice enhancement based on
Douglas’s “fail[ure] to appear for trial on January 8, 2014.”
PSR ¶ 27. During the hearing addressing his failure to appear,
the District Court was provided with medical records and
informed that Douglas had been in the hospital. The District
Court considered the records and arguments and said that
“[t]here’s no solid evidence, at least presented, that he was
suffering from a medical condition that warranted him not to
appear. It’s really sort of ambiguous.” App. 390-91. As a
result, the District Court concluded that there was a
“substantial risk” that Douglas would not appear at trial and
thereby disrupt the administration of justice. App. 391. In
connection with sentencing, the District Court relied on these
facts to impose the § 3C1.1 enhancement, making no additional
13
factual findings on the subject, and declared the objection to
the enhancement to be “without merit.” 5 Supp. App. 236.
Douglas asserts that the District Court erred in
imposing the enhancement. He points out that he provided a
medical explanation for his absence from trial, notes that the
District Court made no findings that he willfully failed to
appear for trial, and argues that the subsequent reinstatement
of his bail and the granting of travel requests shows that the
District Court “did not find that the Appellant’s failure to
appear on his jury selection date was willful.” Appellant’s Br.
at 35.
While there is no question that Douglas was aware of
the date of trial and he intentionally did not appear in court, the
record does not show that he willfully failed to appear.
Douglas provided medical documentation that explained his
absence. These records show that he awoke the morning of
5
At the sentencing hearing, the District Court requested
clarification for the basis on which the Government sought the
enhancement, asking that it “[b]e more specific with regard to
obstruction” and whether its basis was “[f]ailure to appear for
court.” App. 407. The Government said it was but also listed
several allegedly false statements Douglas made that caused
law enforcement to waste investigatory effort. Douglas’s
attorney then stated that he had been under the impression the
obstruction of justice enhancement “was predicated on failure
to appear for trial.” App. 408. The Government repeated that
there were multiple reasons but that “[b]oth the probation
office and [the Court] already ruled on them.” App. 408-09.
The District Court then stated “I agree. That matter has already
been thoroughly covered. The Court has ruled on it.” App.
409.
14
trial with chest pain and went to the emergency room at 2:00
a.m., underwent tests showing a possible heart blockage,
abnormal white blood cell count, and elevated heart enzyme
levels, and was treated with insulin and aspirin. His complaints
were taken seriously, as reflected by the fact that he was
transported by ambulance to the hospital’s urgent care facility
for tests. Most significantly, the documentation included a
page entitled “verification of treatment” signed by a medical
doctor at 4:12 p.m. on January 8, 2014, which stated that
Douglas received care and requested that the court “[p]lease
excuse Mr. Douglas’ absence from court today.” Given this
documentation, we are unable to determine why the District
Court viewed his medical excuse skeptically or described the
documentation as “ambiguous.” App. 391.
Moreover, the Government bears the burden of proof
and offered no evidence to show Douglas’s conduct was
willful, in the sense that Douglas deliberately schemed not to
appear in court by feigning illness. See United States v.
Batista, 483 F.3d 193, 195-97 (3d Cir. 2007) (five mental
health evaluations showed defendant was feigning a mental
illness to avoid being found competent). In fact, during the bail
review hearing the Government stated it was “possible that he
went to the [hospital] faking this illness, so he would not have
to be here. It is also possible that that was a legitimate illness.
I don’t think that anything in the records tell us one way or the
other.” App. 388. The Government therefore viewed the
record as being in equipoise. This is not proof by a
preponderance of the evidence that Douglas willfully failed to
appear. Absent such proof from the Government showing
willfulness, and in light of the medical documentation
presented indicating a lack of willfulness, the application of a
15
§ 3C1.1 enhancement was improper.6
By improperly applying the obstruction of justice
enhancement, the District Court did not accurately calculate
Douglas’s Guidelines range. See United States v. Wright, 642
F.3d 148, 152 (3d Cir. 2011) (noting that the application of
sentence enhancements is used in calculating a defendant’s
Guidelines range). Failure to make a “correct computation of
6
Because we will remand for resentencing due to the
erroneous application of the enhancement (and the Court en
banc remands because the enhancement under § 3B1.3 does
not apply), we need not address the substantive reasonableness
of the sentence. United States v. Merced, 603 F.3d 203, 214
(3d Cir. 2010). We do note, however, that with respect to
substantive reasonableness, Douglas argued only that the
District Court did not consider § 3553(a)(6)’s mandate that
courts avoid unwarranted sentencing disparities among
codefendants. He asserts that his 240-month sentence is
excessive in comparison with his coconspirators who he claims
held managerial roles and participated in the conspiracy for a
longer time. Putting aside the fact that Douglas was a lynchpin
of the conspiracy’s San Francisco activities and that he played
a more significant role than other conspirators, and thus he
does not share “exactly parallel[ ]” circumstances with them,
United States v. Iglesias, 535 F.3d 150, 161 n.7 (3d Cir. 2008),
his parity complaint would not entitle him to any relief.
“Congress’s primary goal in enacting § 3553(a)(6) was to
promote national uniformity in sentencing rather than
uniformity among co-defendants in the same case.” United
States v. Parker, 462 F.3d 273, 277 (3d Cir. 2006). As a result,
Douglas “cannot rely upon § 3553(a)(6) to seek a reduced
sentence” based on alleged disparity between his sentence and
those imposed on his co-defendants. Id.
16
the Guidelines range” constitutes procedural error. Id. (citing
United States v. Langford, 516 F.3d 205, 214 (3d Cir. 2008)).
Here, Douglas’s total offense level with the
enhancement was 43, which corresponds to life imprisonment.
Without the § 3C1.1 enhancement, Douglas’s total offense
level corresponds to 360 months to life imprisonment.7
Ultimately, the District Court applied a downward variance
and imposed a sentence of 240 months. While the District
Court may still have imposed a sentence of 240 months absent
the § 3C1.1 enhancement, we cannot be sure. See, e.g.,
Vazquez-Lebron, 582 F.3d at 446 (“[W]e cannot be sure that
the district court would have imposed the same sentence if not
for the error.”); Langford, 516 F.3d at 219 (“[This] is not that
rare case where we can be sure that an erroneous Guidelines
calculation did not affect the sentencing process and the
sentence ultimately imposed.”); see also Molina-Martinez v.
United States, 136 S. Ct. 1338, 1345 (2016) (“When a
defendant is sentenced under an incorrect Guidelines range—
whether or not the defendant’s ultimate sentence falls within
the correct range—the error itself can, and most often will, be
sufficient to show a reasonable probability of a different
outcome absent the error.”). We will therefore reverse the
application of the § 3C1.1 enhancement and remand for
resentencing.
III
For the foregoing reasons, we will affirm the District
Court’s conclusion regarding drug quantity, reverse the
7
Without the § 3B1.3 enhancement, Douglas’s total
offense level corresponds to 324 to 405 months’ imprisonment.
17
enhancement for obstruction of justice, and remand for
resentencing.
18