United States v. Antonio Outlaw ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-2958
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Antonio Alonzo Outlaw, also known as Mike,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: September 26, 2019
Filed: January 8, 2020
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Before LOKEN, COLLOTON, and KOBES, Circuit Judges.
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COLLOTON, Circuit Judge.
Antonio Alonzo Outlaw was convicted by a jury of conspiracy to distribute
heroin and aiding and abetting the distribution of heroin. He also pleaded guilty to
two counts of distributing heroin. The district court1 sentenced him within the
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The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
advisory guideline range to 365 months’ imprisonment. On appeal, Outlaw
challenges the sufficiency of the evidence to support the jury verdicts, and he asserts
error by the district court at sentencing. We affirm.
I.
The prosecution’s theory of the case was that Outlaw engaged in heroin
trafficking with a group of drug dealers who identified themselves as “We the Best.”
Outlaw admitted guilt on two counts of distribution that were based on controlled
transactions with a person cooperating with law enforcement. To prove the
conspiracy count, the government called numerous witnesses who testified that they
acquired heroin from Outlaw or persons associated with him between 2013 and
January 2017. The aiding and abetting charge was based on a controlled transaction
on December 10, 2014. A cooperator testified that he met with Outlaw and an
associate nicknamed “Black,” and received fifteen bags of heroin—five from Outlaw
and ten from “Black.” The associate “Black,” however, testified that while Outlaw
drove the two men to the drug transaction, only “Black” distributed heroin to the
cooperator on that occasion.
Outlaw contends on appeal that there was insufficient evidence to support his
convictions by the jury. On claims of insufficient evidence, we affirm a conviction
if, viewing the evidence in the light most favorable to the verdict, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt. United States v. El Herman, 583 F.3d 576, 579 (8th Cir. 2009); see Jackson
v. Virginia, 443 U.S. 307, 319 (1979).
The conspiracy charge required the government to prove three elements: (1)
that there was an agreement to distribute heroin, (2) that Outlaw voluntarily and
intentionally joined the conspiracy, and (3) that Outlaw knew the purpose of the
conspiracy when he joined. United States v. Hickman, 764 F.3d 918, 924 (8th Cir.
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2014). “An agreement to join a conspiracy need not be explicit but may be inferred
from the facts and circumstances of the case.” United States v. Conway, 754 F.3d
580, 587 (8th Cir. 2014) (internal quotation omitted).
In the course of proving a conspiracy to distribute heroin, the government
presented overwhelming evidence that Outlaw distributed heroin during the relevant
period. Outlaw pleaded guilty to two counts of distribution, and the government
presented evidence of these controlled transactions. More than a dozen separate
witnesses testified that Outlaw distributed heroin to them on occasions totaling in the
hundreds during the time of the charged conspiracy.
There was ample evidence to show that Outlaw knowingly and intentionally
joined a conspiracy to distribute heroin. Several witnesses testified that after they
obtained a telephone number at which to contact Outlaw to purchase heroin, they
called the number to place an order for drugs. The witnesses testified that different
persons answered their calls: sometimes it was Outlaw, and sometimes it was one of
several other persons. According to the testimony, sometimes Outlaw arranged a
transaction on the telephone, but a “runner” would deliver the drugs to the buyer.
Other times, Outlaw answered the call and delivered the drugs himself; in another
scenario, a third person would answer the phone and deliver the drugs. Some
witnesses also testified that they communicated with Outlaw’s telephone by text
message to arrange heroin purchases. Return text messages from Outlaw’s phone
number typically included the “We the Best” group moniker at the end.
Taking the evidence as a whole, a reasonable jury could infer that Outlaw
distributed heroin as part of a conspiracy with other persons involved with the “We
the Best” group. Outlaw attacks the credibility of several prosecution witnesses who
admitted to drug use or cooperation agreements with the government. Credibility,
however, is almost exclusively matter for the jury, and the sheer number of witnesses
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who testified to a similar pattern of activity with Outlaw gave the jury sound reason
to believe that Outlaw was a member of the charged conspiracy.
The aiding and abetting conviction arose from Outlaw’s involvement in a
controlled drug transaction on December 10, 2014. The government had the burden
to prove that Outlaw “took an affirmative act to further the underlying criminal
offense, with the intent of facilitating the offense.” United States v. Borders, 829
F.3d 558, 565 (8th Cir. 2016). The intent element required proof that Outlaw had
advance knowledge of all the characteristics of the transaction that made it
illegal—“knowledge that enable[d] him to make the relevant legal (and indeed,
moral) choice” to facilitate the offense. Rosemond v. United States, 572 U.S. 65, 78
(2014).
The prosecution’s evidence established that Outlaw drove to the site of the
drug transaction with an associate nicknamed “Black” as a passenger. The
cooperating person testified that Outlaw and “Black” transferred heroin to him.
“Black” admitted distributing heroin, but denied that Outlaw did so. Whether or not
the jury was convinced that Outlaw personally transferred heroin on this occasion, the
jury reasonably could have inferred that Outlaw knew in advance that he was driving
to a drug transaction, and did so intentionally to facilitate his associate’s transfer of
heroin. In addition to the evidence about this particular transaction, the jury also
heard other testimony that Outlaw and “Black” worked together in trafficking heroin.
Evidence of the larger conspiracy reinforced the inference that Outlaw was not an
unwitting driver on December 10, but that he knowingly and intentionally
participated in the charged transaction.
For these reasons, there was sufficient evidence to support the convictions.
The district court properly denied Outlaw’s motion for a judgment of acquittal.
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II.
Outlaw raises several claims of procedural error in the district court’s
calculation of the advisory guideline range at sentencing. We review the district
court’s interpretation of the guidelines de novo and its factual findings for clear error.
United States v. Sesay, 937 F.3d 1146, 1153 (8th Cir. 2019).
Outlaw first argues that the district court erred by applying a four-level increase
for an aggravating role in the offense. That adjustment applies where a defendant was
“an organizer or leader of a criminal activity that involved five or more participants
or was otherwise extensive.” USSG § 3B1.1(a). The district court found that Outlaw
oversaw a number of runners in the heroin distribution conspiracy, and that the
criminal activity involved five or more participants.
We conclude that the district court’s determinations were supported by
sufficient evidence. In deciding whether a defendant played an aggravating role, the
court should consider “the exercise of decision making authority . . . and the degree
of control and authority exercised over others.” USSG § 3B1.1, comment. (n.4).
Several witnesses testified that Outlaw exercised control over “runners” whom he
dispatched to deliver heroin. This sort of control and authority, exerted with respect
to several persons over a period of years, sufficed to establish Outlaw as an organizer
or leader. See United States v. Rodriguez, 112 F.3d 374, 377 (8th Cir. 1997). The
record also supports the finding of five or more participants. Two associates,
nicknamed “Black” and “Little Man,” were prominent in the testimony, and witnesses
identified at least two more people who participated in the conspiracy. One witness
testified that she knew of three individuals other than Outlaw who were members of
“We the Best,” and that she herself had assisted the group on one occasion. Another
witness said that when he called the number associated with “We the Best” to order
drugs, four or five people other than Outlaw answered the phone and facilitated
transactions. There was no clear error in applying the four-level increase.
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Outlaw next disputes a two-level increase for obstruction of justice under
USSG § 3C1.1. The guideline commentary provides that “escaping or attempting to
escape from custody before trial or sentencing” is the type of conduct to which the
guideline applies. USSG § 3C1.1, comment. (n.4(E)). The district court found that
Outlaw was a co-conspirator with another inmate in an effort to escape from a county
jail while he was detained pending trial. The court concluded that Outlaw “may not
have been the brains of the outfit, but he was definitely conducting overt acts in
furtherance of the conspiracy to do a jailbreak.”
There was sufficient evidence to support the court’s finding. A jail
administrator testified that he received a report from an inmate that Outlaw and
another prisoner named Valencia were planning an escape from the jail. The inmate
testified that Valencia told him of a plan for Valencia’s associates to drill a hole
through the window of Outlaw’s cell from the outside and hand Outlaw a saw blade
that he or Valencia could use to cut through bricks and escape. At around this time,
jailers found physical evidence that someone had applied a blowtorch and acid to the
window of Outlaw’s cell. Jailers then moved Outlaw to the second floor of the jail,
but Valencia offered marijuana to an inmate on the ground floor in exchange for
allowing Outlaw to move into his cell. Outlaw also requested to move back to the
ground floor based on supposed “medical issues.” The prosecution introduced
recorded jailhouse telephone calls between Valencia and outside parties in which they
discussed tools and other matters; these communications supported a reasonable
inference that Valencia was planning an escape. The government also presented
evidence that Outlaw arranged for a female associate to place money in a jail
telephone account for Valencia so that he could plan the escape. There was no clear
error in the court’s finding that Outlaw participated in a conspiracy to escape from the
jail.
Outlaw’s final argument is that the district court should have granted a
downward variance from the advisory guideline range of 292 to 365 months to the
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statutory minimum term of 240 months. He cites a difficult upbringing, during which
his parents abused drugs and engaged in criminal activity, and he suggests that his
criminal history was overstated because a number of convictions were sustained
twenty years before the sentencing in this case. The district court reasonably
concluded, however, that there was no basis for a downward variance. The court
observed that despite turmoil in Outlaw’s youth, he had a good grandmother and
aunts who supported him, and he was not “out on the street.” The court found that
the aggravating factors far outweighed the mitigating factors, and that a sentence
within the recommended range was appropriate. We presume that a term within the
advisory range is reasonable, and the court did not abuse its discretion by following
the guidelines here.
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The judgment of the district court is affirmed.
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