United States v. Joseph Host ( 2010 )

                                 File Name: 10a0455n.06
                                              No. 08-4003                                  FILED
                                                                                        Jul 26, 2010
                                   UNITED STATES COURT OF APPEALS                 LEONARD GREEN, Clerk
                                        FOR THE SIXTH CIRCUIT
    UNITED STATES OF AMERICA,                             )
              Plaintiff-Appellee,                         )
                              v.                          )   ON APPEAL FROM THE UNITED
                                                          )   STATES DISTRICT COURT FOR
    JOSEPH HOST,                                          )   THE NORTHERN DISTRICT OF
                                                          )   OHIO
              Defendant-Appellant.                        )
    Before:          KEITH, BOGGS, and GRIFFIN, Circuit Judges.
              PER CURIAM.
              Defendant Joseph Host (“Host”) pleaded guilty to a count of conspiring to distribute
    Schedule II controlled substances. 21 U.S.C. §§ 841(a)(1) and 846. After dismissing sixty-three
    related counts against him, the district court imposed a below-Guidelines sentence of 168 months.
    Host appeals the district court’s enhancement of his offense level pursuant to U.S.S.G. § 3B1.1(a).
    We affirm.
              From March 1 until June 25, 2007, local and federal law enforcement agents directed
    confidential informants to purchase methamphetamine from Host. Host executed six such sales of
    between one and five ounces. By August 2007, agents were intercepting Host’s cellular calls.
    United States v. Host
    These authorized wiretaps revealed Host’s regular communication with sellers, distributors, and
    prospective customers about drug-related matters. Host’s co-conspirators included cocaine supplier
    Miguel Gonzales Morfin (“Morfin”); methamphetamine supplier Adolfo Barragain-Rodriguez
    (“Rodriguez”); methamphetamine distributor Cory Armstrong (“Armstrong”); methamphetamine
    manufacturer Michael Clapper (“Clapper”); and a number of prospective methamphetamine
    purchasers, including David Knepp, Patricia Knepp, and Dennis Grimes. Among the conspirators,
    Host christened himself “the master.”
           On August 3, 2007, Host stated that he was waiting for a shipment from Rodriguez and
    working with Morfin. Host and Morfin would later discuss the prices to be paid per kilogram of
    cocaine, the means of transport, and the site of delivery. When Host announced the impending
    shipment to Armstrong, and asked whether the distributor could effectively sell the drugs, Armstrong
    indicated that he could complete the sale within two days. Host also contacted the Knepps, assuring
    them that a “nice big chunk” would arrive soon. While organizing the distribution of the drugs, Host
    complained that Rodriguez was “slacking” and repeatedly called customers to alert them to delivery
    updates. In the meanwhile, Host discussed purchasing Sudafed, a common methamphetamine
    ingredient, with Clapper.
           During the month of August 2007, Host spoke with fellow conspirators nearly every day
    regarding the date of delivery of methamphetamine and Sudafed, barriers to transfer, and market
    rates. He arranged up-front cash sales of methamphetamine on August 21, 2007, a shipment of
    which was delivered to Armstrong the following day. On September 17, 2007, three of Morfin’s
    associates traveled from California to deliver six kilograms of cocaine to Host’s home in Ohio. Host
    United States v. Host
    and Rodriguez had already agreed to deliver one of the kilograms to an undisclosed individual on
    consignment for $26,000. However, the sale never took place. Agents executed a search warrant
    at Host’s residence, seized all six kilograms of cocaine, and arrested the three drug couriers, who had
    converged in Host’s garage. All told, Host received six kilograms of cocaine and at least five pounds
    of methamphetamine during the course of the conspiracy.
           On December 5, 2007, a federal grand jury in the Northern District of Ohio returned a sixty-
    four-count superseding indictment against Host and fifteen other individuals. The first count charged
    all sixteen with conspiracy to distribute five kilograms or more of cocaine and fifty grams or more
    of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Counts four, five, and
    six respectively charged Host individually with the knowing and intentional distribution of 138, 82.3,
    and 55 grams of methamphetamine. Counts seven and eight charged Host and others with the
    knowing and intentional distribution of one and six kilograms, respectively, of cocaine. Finally,
    counts nine through sixty-four charged all sixteen defendants with the knowing and intentional use
    of a communication facility to facilitate acts constituting a felony under 21 U.S.C. § 841(a)(1) and
    846, in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2.
           On January 31, 2008, Host appeared before the district court with counsel and pleaded guilty
    to conspiracy to distribute, and conspiracy to possess with intent to distribute, five kilograms or more
    of a mixture or substance containing a detectable amount of cocaine and fifty grams or more of
    methamphetamine, pursuant to a plea agreement. Host conceded that he had supplied the drugs to
    other individuals with the intention that they be distributed in Ohio.
    United States v. Host
           Host appeared before the district court for sentencing on July 23, 2008. In determining his
    applicable Guidelines range, Host’s PSR indicated that he was responsible for six kilograms of
    cocaine hydrochloride and five pounds of methamphetamine, resulting in a marijuana equivalency
    of 5,736 kilograms and a base offense level of 34. Host objected to the PSR’s recommendation of
    a four-level enhancement for his leadership role in the offense. The district court denied his
    objection at sentencing:
           “I’m rejecting the plea agreement for the two-level. I’m accepting the four-level
           increase. If it were a close call, I’d go with the two level. It’s not even close. . . .
           [Sixteen] defendants in this case . . . have you[] . . . as the band leader, orchestrating
           all of this – all . . . the drugs coming in, who’s going to get it, when they’re going to
           arrive, who’s going to distribute it . . . .”
           After applying a full three-level reduction for acceptance of responsibility under U.S.S.G.
    § 3E1.1, the district court determined that the total offense level was 35 and the criminal history
    category was III. The court calculated a Guidelines range of 210 to 262 months. After downward
    adjustments for Host’s cooperation with the Government, the court imposed a 168-month sentence,
    followed by three years of supervised release. Host timely appealed.
           The Sixth Circuit has not yet established the standard that governs review of § 3B1.1
    sentencing enhancements. A district court's factual findings are generally reviewed for clear error;
    its legal conclusions are reviewed de novo. United States v. Jeross, 
    521 F.3d 562
    , 569 (6th Cir.
    2008). However, the Supreme Court has suggested that appellate courts should review a district
    court’s application of sentencing enhancements “deferentially.” Buford v. United States, 
    532 U.S. 59
    , 64 (2001); U.S.S.G. §§ 4B1.1, 4B1.2. While Buford is apposite to our review of cases under §
    United States v. Host
    3B1.1, see, e.g., United States v. Lalonde, 
    509 F.3d 750
    , 764 (6th Cir. 2007), we need not determine
    what standard to apply at this juncture because the enhancement was proper under either standard.
           Host challenges the district court’s Guidelines calculations.         “When considering the
    Guidelines, the district court must calculate the correct sentencing range. In practice, this means that
    the court must begin at the proper base-offense level, apply any applicable enhancements or
    reductions to arrive at the adjusted-offense level, and use the resulting offense level with the
    appropriate criminal-history category to arrive at a sentencing range.” United States v. Thompson,
    515 F.3d 556
    , 561 (6th Cir. 2008) (citation omitted). In the instant case, Host argues that the district
    court improperly applied a four-level leadership enhancement.
           Under U.S.S.G. § 3B1.1(a), a four-level enhancement is warranted “[i]f the defendant was
    an organizer or leader of a criminal activity that involved five or more participants or was otherwise
    extensive.” Accordingly, we consider “the exercise of decision making authority, the nature of
    participation in the commission of the offense, the recruitment of accomplices, the claimed right to
    a larger share of the fruits of the crime, the degree of participation in planning or organizing the
    offense, the nature and scope of the illegal activity, and the degree of control and authority exercised
    over others.” U.S.S.G. § 3B1.1 app. n.4. Significantly, Host need only have organized or led one
    other participant. See United States v. Bennett, 
    291 F.3d 888
    , 897 (6th Cir. 2002). The district
    court’s factual findings regarding the § 3B1.1 enhancement control absent “the definite and firm
    conviction that a mistake has been made.” United States v. Jeross, 
    521 F.3d 562
    , 569 (6th Cir.
    United States v. Host
    2008). In the instant case, the district court determined that Host served as the drug conspiracy’s
    “band leader” and was at“the center of it all:”
            The drugs were being shipped to you, procured by you, and you were handling
            distribution to Armstrong and the rest of the gang after that . . . . It’s your own words
            that help sink you, too. ‘I am the master,’ [you declared on August 12, 2007, while
            discussing a drug deal with a co-defendant]. Well I guess you are; until now.
            Because Host directed the actions of Morfin, Rodriguez, and Armstrong, the district court’s
    imposition of the leadership enhancement was not error. Host was the only defendant to participate
    in every one of the overt acts described in his PSR. He communicated daily with numerous co-
    defendants regarding the supply and distribution of methamphetamine and cocaine. He directed
    deliveries and set the prices of drug sales. He served as sole contact for the methamphetamine and
    cocaine supply.
            Host’s role as supplier does not minimize his role as leader. While it is true that “mere
    buying and selling, without other evidence, is not sufficient to show that a defendant is a leader,
    organizer, manager, or supervisor . . . these principles do not mean that the defendant must directly
    employ or control a partnership or enterprise.” United States v. Schultz, 
    14 F.3d 1093
    , 1099 (6th Cir.
    1994) (internal citations omitted). Instead, “coordinating an interstate . . . scheme of distribution that
    [continually] brings contraband into the community for distribution . . . should . . . qualify a
    [defendant] as an ‘organizer’ of criminal activity.” Id. Host was certainly a leader or organizer
    under this standard, having coordinated a conspiracy spanning several states and more than ten
    participants. For example, on five occasions between March 1 and June 25, 2007, Host sold between
    one and five ounces of methamphetamine to confidential informants. He organized and coordinated
    United States v. Host
    the purchase of methamphetamine from a Californian supplier and designated an Ohio-based
    distributor. Host further served as a frequent point of contact between suppliers and purchasers. For
    example, during the month of August 2007 alone, Host had almost daily discussions with fellow
    conspirators regarding the date of delivery of methamphetamineand Sudafed, barriers to transfer, and
    market rates. Finally, upon executing a search warrant of Host’s home, police discovered not only
    six kilograms of cocaine, but several co-defendants who had assisted with the sale. It follows that
    Host offered not only his organizational savvy, but also his own home, in service of the drug
           Finally, contrary to Host’s contention, the district court had no obligation to hold a hearing
    before rejecting the parties’ stipulation to a two-level offense enhancement. Host’s PSR indicated
    that he coordinated the drug trafficking organization. It also detailed conversations between Host
    and other individuals, which indicated that Host was the organizer and leader of the conspiracy.
    Because Host did not object to the PSR's factual allegations, with the exception of clarifying that the
    charge was for cocaine rather than crack, the district court was entitled to accept them as true. See
    United States v. Carter, 
    355 F.3d 920
    , 925 (6th Cir. 2004) (“‘The district court is allowed to accept
    as true all factual allegations in a presentence report to which the defendant does not object.’”)
    (quoting United States v. Levy, 
    250 F.3d 1015
    , 1018 (6th Cir. 2001)). See also Letter from Nathan
    A. Ray, Counsel, Burdon & Merlitti, to David T. Abraham, Officer, Federal Probation Office (Mar.
    31, 2008) (clarifying that the offense involved powder cocaine rather than crack cocaine, and
    objecting to a four-level increase in Host’s offense level under U.S.S.G. § 3B1.1(c)). Based upon
    the evidence before it, the district court did not clearly err in finding that Host was the organizer or
    United States v. Host
    leader of at least one participant in the offense. Further, the district court was in no way bound by
    the parties’ agreement to a two-level offense enhancement under § 3B1.1. Indeed, Host concedes
    that the plea agreement’s recommendations were not binding on the Court. (Appellant’s Br. at 10.)
    (“Appellant Host recognizes that the Plea Agreement specifically states that the recommendations
    contained therein are not binding on the Court.”) Defendant’s plea colloquy only reinforced that
    sentencing “rest[ed] within [the court’s] discretion.”
           The district court appropriately applied § 3B1.1(a), whether its findings are reviewed
    deferentially or de novo. The evidence overwhelmingly suggests that Host’s leadership warranted
    the four-level enhancement. Despite Host’s unsupported assertions on appeal, the district court
    properly concluded that he “was an organizer or leader of a criminal activity that involved five or
    more participants,” and therefore did not err in enhancing his sentence pursuant to § 3B1.1(a).
           For the foregoing reasons, we AFFIRM the sentence.