United States v. Anthony Howard ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3216
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTHONY HOWARD,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 05 CR 8—John C. Shabaz, Judge.
____________
ARGUED APRIL 14, 2006—DECIDED JULY 21, 2006
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Before BAUER, ROVNER, and EVANS, Circuit Judges.
BAUER, Circuit Judge. Anthony Howard pleaded guilty to
conspiracy to possess heroin and cocaine base with the
intent to distribute. The district court sentenced him to 227
months’ imprisonment. He appeals the sentence, and we
affirm.
I. Background
Howard sold heroin and cocaine base in Madison, Wiscon-
sin. After several controlled purchases, he was arrested,
tried, and convicted on state charges. On January 24, 2005,
a federal grand jury charged him with conspiracy to possess
heroin and cocaine base with the intent to distribute.
2 No. 05-3216
Howard pleaded guilty. By agreement, the government
recommended the maximum reduction for his acceptance of
responsibility, an adjustment to reflect the time served on
his state sentence, and imposition of a sentence concurrent
with the remainder of the state sentence. The Presentence
Report (PSR) recommended adjustments for his role in the
offense and acceptance of responsibility that resulted in a
base offense level of 31, which, together with a criminal
history category of VI, yielded a Guidelines range of 188 to
235 months.
The PSR also identified Edwin Tallard as an active heroin
user who purchased heroin two to three times per day.
Howard and his cohort Shane Bradley sold heroin to
Tallard, who died of a heroin overdose on October 11, 1999.
Although the PSR concluded that it was unknown whether
Howard supplied the heroin that killed Tallard, the district
court noted that Bradley was “fairly certain Tallard pur-
chased the heroin either directly from Howard or from
Howard by way of Bradley.” A witness testified that Tallard
obtained heroin directly from Howard, and that it was more
concentrated than Bradley’s supply; it had caused at least
one person to overdose. Howard boasted that it had
“dropped” another person, causing loss of consciousness,
and cautioned a buyer “to be careful because some people
had died” from it.
At the July 13, 2005, sentencing hearing, the court
selected 293 months as an appropriate sentence, but
reduced it to reflect the 66 months that Howard already
served on his state sentence for the same conduct. The
district court then sentenced him to 227 months. At a
separate hearing, the court sentenced Bradley to 223
months. Howard appealed his sentence.
No. 05-3216 3
II. Discussion
Howard now claims that the district court erred in finding
that he was responsible for Tallard’s death, and imposed an
unreasonable sentence.
A. Finding of Fact Regarding Tallard’s Death
Howard claims that the district court’s finding that he
was responsible for Tallard’s death was not supported by a
preponderance of the evidence. Although the Guidelines are
no longer mandatory, a district court may still make
findings of fact that were neither admitted by the defendant
nor found by a jury beyond a reasonable doubt without
raising Sixth Amendment concerns. United States v. Bryant,
420 F.3d 652, 656 (7th Cir. 2005). The district court made
an explicit finding on this contested issue, as required by
United States v. Dean, 414 F.3d 725, 730 (7th Cir. 2005). We
review the district court’s findings of fact for clear error.
United States v. Arnaout, 431 F.3d 994, 998 (7th Cir. 2005).
To establish clear error, “an appellant must convince [this
Court] to a certainty that the district court’s factual find-
ings were incorrect; merely suggesting the possibility of
error is not enough.” United States v. Ramuno, 133 F.3d
476, 480-81 (7th Cir. 1998). The court’s finding will be
upheld unless we “have a definite and firm conviction that
a mistake has been made.” United States v. Fudge, 325 F.3d
910, 920 (7th Cir. 2003).
The present facts do not warrant reversal. During
Tallard’s period of heroin use, from August to October 1999,
he purchased from both Howard and Bradley. Bradley was
“fairly certain” that Tallard purchased the heroin in
question directly from Howard or from Howard through
Bradley. The district court stated that this “positive” and
“powerful” testimony outweighed his suggestion that
Tallard could have purchased additional heroin from “two
4 No. 05-3216
other individuals” that he did not identify. During this
period Howard was Bradley’s exclusive source of heroin;
heroin that was heavily concentrated, was described as “the
bomb,” was strong enough to cause loss of consciousness,
and had caused at least one other overdose. Howard himself
warned one buyer to be careful because he knew the heroin
had caused others to overdose.
Howard did not object to these facts in the PSR, although
he denied knowing Tallard at the sentencing hearing.
Where the district court chooses one of two permissible
views of the evidence, the choice is not clearly erroneous.
See United States v. Granado, 72 F.3d 1287, 1290 (7th Cir.
1995). The district court did not err in finding that Tallard’s
death resulted from Howard’s offenses.
B. Reasonableness
Howard also claims that his sentence was unreasonable.
After Booker, the district court must first calculate the
proper Guidelines range and then, by reference to the
factors specified in 18 U.S.C. § 3553(a), select an appro-
priate sentence. See Dean, 414 F.3d at 729. Although a
sentence outside the range does not enjoy the presumption
of reasonableness that one within the range does, it does
not warrant a presumption of unreasonableness. United
States v. Jordan, 435 F.3d 693, 698 (7th Cir. 2006). It does,
however, necessitate a more thorough explanation based on
the § 3553(a) factors; the further a sentence strays from the
range, the more compelling the district court’s explanation
must be. United States v. Johnson, 427 F.3d 423, 426-27
(7th Cir. 2005). Howard’s argument in terms of “departures”
is misplaced because the concept “has been rendered
obsolete in the post-Booker world.” Arnaout, 431 F.3d at
1003. Our only consideration is whether the district
court’s sentence—58 months longer than the high end of the
Guidelines range—was appropriately justified under the
No. 05-3216 5
§ 3553(a) factors. The court gave two independent justifica-
tions. It looked first to a provision that contemplates loss of
life resulting from drug offenses. See 18 U.S.C. § 3553(a)(4).
When a death occurs, the Guidelines authorize courts to
“increase the sentence above the authorized guideline
range” up to the statutory maximum for the offense of
conviction. U.S.S.G. § 5K2.1. The court should determine
the amount of an increase after consideration of several
listed factors. See id. One relevant consideration is “the
extent to which death or serious injury was intended or
knowingly risked.” Id. Howard’s knowledge of the risk is
apparent from his warnings to customers, discussed above,
regarding the heroin’s potency and its role in earlier deaths.
Another factor to address is the extent to which the applica-
ble offense level “already reflects the risk of personal
injury.” Id. The district court specifically indicated that the
highest guideline sentence “is not sufficient in this case.” As
discussed above, the court’s finding regarding Howard’s
contribution to Tallard’s death was not clearly erroneous. A
relatively modest increase based in part on that finding was
also reasonable.
Second, the district court stated that the Guidelines range
was insufficient “regardless of the death which
here occurred because of the fact that there was the preda-
tor who was selling his wares with the attempt of overdos-
ing as many people as would come in his vicinity.” This
statement identifies a wholly independent justification for
the increase—namely, protecting the public. In articulating
the need for the sentence, the court employed several 18
U.S.C. § 3553(a) factors. It characterized Howard’s involve-
ment in drug activity for most of his adult life and convic-
tions for numerous offenses, including crimes of violence, as
“heinous and reprehensible” and deserving a grade of
“about a Z.” See 18 U.S.C. § 3553(a)(1). Further, the court
found that the evidence of overdosing caused by his heroin
supply, outlined above, contributed to the seriousness of the
6 No. 05-3216
offense. See 18 U.S.C. § 3553(a)(2)(A). The court emphasized
the goal of deterrence, concluding that his previous terms
of imprisonment had been ineffective in that respect, as
indicated by his continued direction of drug sales from
prison. See 18 U.S.C. § 3553(a)(2)(B). As a result, the
district court felt compelled to protect the public from
Howard’s likely future crimes. See 18 U.S.C. § 3553(a)(2)(C).
The district court found that together these concerns
constituted aggravating circumstances that the Guidelines
did not adequately address. After contemplating Howard’s
troubled childhood and mitigating factors, the court decided
that his significant criminal history and the harm inflicted
outweighed those concerns. Nonetheless, the court consid-
ered the alternative sentences available, including assign-
ing an offense level of 43, see U.S.S.G. § 2D1.1(a)(1), a
three-level increase for endangering human life, see
U.S.S.G. § 2D1.10(b)(1)(B), or simply imposing life impris-
onment, the statutory maximum, see U.S.S.G. § 5K2.1.
After reviewing the options and opining that Howard
deserved life imprisonment, the court selected 293 months
as “appropriate in light of the heinous and reprehensible
conduct in which this defendant has continued his entire
lifetime.” In so doing, the court acted in accordance with its
charge to evaluate the sentences available, see 18 U.S.C.
§ 3553(a)(3), and to impose the one necessary to provide just
punishment, see 18 U.S.C. § 3553(a)(2)(A).
The court justified its choice of the appropriate sen-
tence with compelling reasons in light of the § 3553(a)
factors. The reasonableness standard of review is neces-
sarily deferential because the district court is uniquely
positioned to discern the appropriate sentence. See United
States v. Williams, 425 F.3d 478, 481 (7th Cir. 2005).
Although the court imposed a sentence longer than the
applicable Guidelines range, its justification “is commensu-
rate to the difference between the sentence imposed and the
advisory range.” Johnson, 427 F.3d at 429.
No. 05-3216 7
Lastly, Howard claims that the fact that co-defendant
Bradley received a 223 months’ sentence for the same
conduct demonstrates the error in Howard’s sentence. As
we have previously held, however, “the kind of ‘disparity’
with which § 3553(a)(6) is concerned is an unjustified
difference across judges (or districts) rather than among
defendants to a single case.” United States v. Boscarino, 437
F.3d 634, 638 (7th Cir. 2006). Even so, the difference in
sentences conformed to the defendants’ respective criminal
histories and reflected the court’s finding that Howard
rather than Bradley was responsible for Tallard’s death.
III. Conclusion
For the foregoing reasons, we AFFIRM the sentence
imposed by the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-21-06