United States v. Ngatia, Jayne ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-4629 & 05-4520
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Cross-Appellant,
v.
JAYNE NGATIA,
Defendant-Appellant,
Cross-Appellee.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 1004—Blanche M. Manning, Judge.
____________
ARGUED DECEMBER 7, 2006—DECIDED FEBRUARY 16, 2007
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Before BAUER, MANION, and SYKES, Circuit Judges.
BAUER, Circuit Judge. Jayne Ngatia pleaded guilty to
intentionally importing heroin into the United States in
violation of 21 U.S.C. § 952(a) and § 960(a)(1). In calculat-
ing her sentence, the district court increased the guide-
line range based on the quantity of heroin smuggled by
other Kenyan women at Ngatia’s direction and her role as
a leader in the smuggling scheme. The district court then
sentenced her below the advisory sentencing guideline
range to 84 months’ incarceration, which both the gov-
ernment and Ngatia challenge on appeal. We affirm.
2 Nos. 05-4629 & 05-4520
I. Background
On October 14, 2003, Ngatia, a native of Kenya and a
travel agent, embarked on a trip from Nairobi, Kenya to
Chicago, Illinois to smuggle heroin. Before leaving Kenya,
she swallowed numerous pellets of heroin and taped
pellets of heroin to her body under her clothing. When
she arrived at O’Hare International Airport, custom
inspectors conducted a pat down search which revealed
the pellets of heroin attached to her body. Suspecting
that she had also smuggled heroin internally, inspectors
took her to a hospital where they recovered additional
heroin from her bowel movements. In all, inspectors
recovered 691.1 grams of heroin.
Over the course of three sentencing hearings, the
government offered evidence that Ngatia had recruited
and trained other Kenyan women, Anne Njanja and
Millicent Njogu, to work as heroin couriers. Njanja testi-
fied that she had met Ngatia through a travel agency and
that Ngatia had taken her to a hotel room where she
taught Njanja how to swallow heroin pellets. According
to Njanja, Ngatia gave her an airline ticket to Newark,
New Jersey, a destination address in Piscataway, New
Jersey to declare on her customs form, and the address of
a hotel in Detroit, Michigan where Njanja was to meet
with a man named Chris. Following these instructions,
Njanja met with Chris, expelled the drugs, and gave the
heroin to him. Njanja was arrested in May 2004 at
Hartsfield airport in Atlanta, Georgia while on an unre-
lated trip. On her customs form, she had listed as her
destination an address that law enforcement had found
included among Ngatia’s papers, which prompted a
secondary inspection. When taken to a medical center
for x-rays, Njanja admitted that she had swallowed pellets
of heroin. She subsequently identified both Ngatia and
Chris from photo lineups and, later, identified Ngatia
in court.
Nos. 05-4629 & 05-4520 3
In a sentencing proffer, Njogu stated that she had met
Ngatia through a man who had helped her obtain a
passport. Like Njanja, Njogu agreed to transport heroin
pellets to the United States for Ngatia. Njogu stated that
Ngatia had taught her how to swallow heroin pellets and,
in May 2002, Ngatia gave her sixty-three heroin pellets
to swallow, a plane ticket to Detroit, a destination address
in Boston, Massachusetts to declare on her customs form,
and the address of a hotel where she was to meet Chris
and deliver the heroin. Njogu successfully delivered the
drugs to Chris and returned home. Njogu also stated that
she had smuggled drugs into the United States an addi-
tional four times for Ngatia. In each instance, Ngatia had
given Njogu the heroin, airline tickets, addresses to use on
her customs form, and addresses where to bring the
heroin. And with the exception of one trip to Chicago
when she gave the heroin to a man named Id, she deliv-
ered the drugs to Chris each time. In November 2003,
Njogu was caught smuggling heroin in an unrelated trip
and arrested. A search of her belongings uncovered a
promissory note from Ngatia. Njogu confessed to agents,
telling them about her previous involvement with Ngatia
and identifying for them both Ngatia and Chris from photo
lineups.
The government also offered evidence that Ngatia her-
self smuggled heroin into the United States on six prior
occasions. On these trips, Ngatia made short stays to the
same destinations that Njogu had listed on her customs
forms with periods of unexplained absences.
Additionally, the government offered Ngatia’s safety
valve interview with Special Agent Sharon Morissette.
During the interview, Ngatia denied smuggling heroin on
the earlier trips. She also failed to provide details con-
cerning the heroin importation trip with which she was
charged. She claimed to have been recruited to courier
heroin by two individuals in Kenya whom she knew only
4 Nos. 05-4629 & 05-4520
by first-names and who had taught her how to swallow
heroin. She had no contact information for anyone in the
United States and never mentioned recruiting others to
import heroin or knowing Chris.
Special Agent Morissette testified that she had previ-
ously spoken to one Kafayat Abimbola-Amoo, who was
housed with Ngatia at the Metropolitan Correctional
Center. Amoo, who is also from Kenya, was incarcerated
for importing heroin. According to Amoo, Ngatia had
told her that she had received the heroin that she smug-
gled from a man named Akin and that she was to deliver
the heroin to Akin’s brother, Id, who lived in Chicago. At
the final sentencing hearing, the government acknowl-
edged that Amoo might not be a reliable witness and
withdrew any reliance on her testimony.
In calculating Ngatia’s sentence, the district court des-
ignated a base offense level of 28 and a criminal history
category of I. After accounting for Ngatia’s relevant
conduct, which included the quantity of heroin smuggled
by other Kenyan women at her direction and her role as
a leader in the scheme, the district court increased the
base offense level to 36. The district court declined to
apply downward adjustments for acceptance of responsi-
bility and the safety valve, finding that (1) the prior trips
of Njogu and Njanja were relevant conduct; (2) the five
prior trips of Njogu and one prior trip of Njanja were
linked to the same scheme of importing heroin for which
Ngatia was charged by common time frame, destinations,
individuals, and method; (3) the government had not
established that Ngatia’s prior trips involved drug smug-
gling; (4) a two-level increase for leadership applied based
on Ngatia’s recruitment of Njogu and Njanja; and (5) a
reduction for acceptance of responsibility was not ap-
plicable based on Ngatia’s lies to the government in her
post-arrest interviews. The district court then sentenced
Nos. 05-4629 & 05-4520 5
Ngatia to 84 months’ incarceration, which was below the
guideline range of 188 to 235 months’ incarceration.
II. Discussion
A. Relevant Conduct
The district court’s findings of drug quantity, role in
the offense, and whether uncharged offenses are part of
the same course of conduct are reviewed for clear error.
United States v. Hankton, 432 F.3d 779, 789 (7th Cir.
2005); United States v. Townsend, 73 F.3d 747, 751 (7th
Cir. 1996). Determinations of witness credibility are
entitled to great deference and can virtually never be
clear error. United States v. White, 360 F.3d 718, 720 (7th
Cir. 2004).
In her appeal, Ngatia first challenges the district
court’s determination that the couriers’ prior heroin
importation trips were reliable evidence of relevant
conduct and that the government failed to show this by
a preponderance of the evidence. Ngatia advances a
purely factual argument by citing the credibility weak-
nesses of the government’s two primary witnesses: Njogu
and Njanja.
The district court’s sentencing determinations as to
factual disputes must be based on reliable evidence, not
speculation or unfounded allegations. United States v.
Romero, 469 F.3d 1139, 1146 (7th Cir. 2006). We accord
a sentencing court’s credibility determinations excep-
tional deference. United States v. Anaya, 32 F.3d 308, 314
(7th Cir. 1994). Although Ngatia has maintained that she
was not involved in Njogu’s and Njanja’s heroin importa-
tion trips, the district judge was entitled to credit the
contrary version of events as described in the pre-sentence
report. We defer to the district court’s findings in that
regard.
6 Nos. 05-4629 & 05-4520
Ngatia next asserts that the evidence was insufficient
to show that the couriers’ prior trips were part of a
common scheme or same course of conduct with her
offense. Section 1B1.3(a)(2) of the Sentencing Guidelines
calls for an increase in the defendant’s base offense level
to account for all “relevant conduct,” which includes “all
acts and omissions” committed by the defendant that are
“part of the same course of conduct or common scheme or
plan as the offense of conviction.” Offenses are part of a
common scheme or plan when they are “substantially
connected to each other by at least one common factor,
such as common victims, common accomplices, com-
mon purpose, or similar modus operandi.” U.S.S.G.
§ 1B1.3(a)(2), app. n. 9. Offenses are part of the same
course of conduct when they are sufficiently connected or
related to each other as to warrant the conclusion that
they are part of a single episode, spree, or ongoing series
of offenses. Id. In assessing whether two or more offenses
are part of the same course of conduct, we consider factors
that “point to a strong relationship between the uncharged
conduct and the convicted offense, focusing on whether
the government has demonstrated a significant ‘sim-
ilarity, regularity, and temporal proximity between the
uncharged acts and the offense of conviction.’ ” United
States v. Acosta, 85 F.3d 275, 281 (7th Cir. 1996) (quoting
United States v. Sykes, 7 F.3d 1331, 1336 (7th Cir. 1993)).
The district court aptly identified the factors that
connected the prior heroin importations of Njogu and
Njanja to the charged importation by the defendant.
Ngatia recruited both couriers and trained them how to
swallow heroin pellets. She provided heroin, airline
tickets, directions, and destination addresses. The evidence
showed that the defendant and her couriers had identical
destination addresses as well. She instructed both Njogu
and Njanja to deliver the drugs to Chris. Further, the
proximity of the trips, involving the same drug from the
Nos. 05-4629 & 05-4520 7
same country, indicates a common scheme. All of these
factors point to a strong relationship between the un-
charged conduct and the convicted offense. We find no
abuse of discretion.
B. Leadership Enhancement
Ngatia also asserts that the evidence that she was a
leader in the scheme was unreliable and not proven by a
preponderance of the evidence. The district court’s deter-
minations of a defendant’s role in the offense are reviewed
for clear error. Hankton, 432 F.3d at 789. Under U.S.S.G.
§ 3B1.1(c), a defendant’s offense level should be increased
if “the defendant was an organizer, leader, manager, or
supervisor in any criminal activity.” Again, the district
court aptly recognized Ngatia’s role in recruiting and
training other drug couriers. The evidence showed that
both Njogu and Njanja had independently identified
Ngatia as their recruiter. These statements were corrobo-
rated by their identification of Ngatia and Chris from
photo lineups and their similar accounts of their dealings
with Ngatia. Therefore, we find that the district court
did not err.
C. The Cross-Appeal
In its appeal, the government challenges the defendant’s
sentence as unreasonable. The district court sentenced
Ngatia below the guideline range based on her rehabilita-
tion efforts, as evidenced by her certificates of achievement
while incarcerated; her shame, as reflected by a letter from
a fellow inmate and Ngatia’s own letter to the district
court; and her good character, to which her friends and
family attested. The district court found that a seven-year
sentence was sufficient to satisfy the goals of sentencing:
deterrence, incapacitation, and rehabilitation. The gov-
8 Nos. 05-4629 & 05-4520
ernment asserts that Ngatia was not entitled to a below-
range sentence because she lied to federal agents about her
knowledge of the scheme to import heroin from Kenya.
Additionally, the government asserts that common-
place opinions from family members and friends cannot
reasonably comprise the basis for the downward deviation.
When imposing a sentence, a district court must first
calculate the advisory guideline range and then select a
sentence within or outside the range in light of the factors
set forth in 18 U.S.C. § 3553(a). United States v. Robinson,
435 F.3d 699, 700-01 (7th Cir. 2006). The factors under
Section 3553(a) include the nature and circumstances of
the offense, the history and characteristics of the defen-
dant, the need for the sentence to reflect the seriousness of
the offense, the need to promote the respect for the law,
the need to provide just punishment for the offense, the
need to afford adequate deterrence to criminal conduct
and the need to protect the public from further crimes of
the defendant. 18 U.S.C. §§ 3553(a)(1) & (2)(A-C). In the
post-Booker era, we continue to review the district court’s
application of the Sentencing Guidelines de novo and its
factual findings for clear error. United States v. Bothun,
424 F.3d 582, 586 (7th Cir. 2005). “The farther the judge’s
sentence departs from the guidelines sentence (in either
direction—that of greater severity, or that of greater
lenity), the more compelling the justification based on
factors in Section 3553(a) that the judge must offer in
order to enable the court of appeals to assess the reason-
ableness of the sentence imposed.” United States v.
Castro-Juarez, 425 F.3d 430, 433 (7th Cir. 2005) (quoting
United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005)).
However, the district court’s choice of sentence, whether
inside or outside the guideline range, is discretionary
and subject therefore to only light appellate review. United
States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006).
Nos. 05-4629 & 05-4520 9
The district court observed that Ngatia’s incarceration
did not incapacitate the drug smuggling organization
because two couriers had smuggled drugs into the United
States after she was incarcerated. Considering that it is
almost certain that Ngatia will be deported following her
release, she will be incapacitated from further drug
importation to the United States. As far as Ngatia’s
rehabilitation is concerned, the district court did not
clearly err in finding that Ngatia had demonstrated a
commitment to reform with her words and actions. The
district court credited her statements of repentance, and
Ngatia had already obtained numerous certificates of
achievement by taking nearly every offered class at the
Metropolitan Correctional Center. Although the district
court accepted that Ngatia had coordinated the smuggling,
this finding is in no way inconsistent with its decision to
give her a sentence below the recommended guideline
range. The district court’s findings support the below-
range sentence, resulting in a reasonable sentence. We
find that the court did not err.
III. Conclusion
Accordingly, Ngatia’s sentence is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-16-07