United States v. Thurston ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________
)
UNITED STATES OF AMERICA, )
)
v. )
) Criminal Action No. 05-100 (RWR)
ANTWUAN BALL, et al., )
)
Defendants. )
____________________________ )
MEMORANDUM OPINION AND ORDER
Defendants Antwuan Ball, Desmond Thurston, and Joseph Jones
were convicted of distribution of cocaine base (“crack”) and are
currently appealing their sentences in the court of appeals. The
defendants moved for release pending their appeal. Because the
defendants have not met their burden to show that they pose no
flight risk or danger to the community during release or that
their appeal raises a substantial question likely to result in a
reversal, the defendants’ motion will be denied.
BACKGROUND
Eighteen people were indicted for a multitude of narcotics
offenses and crimes of violence committed in the Congress Park
area. Ball, the alleged leader, Thurston, and Jones were among
the eighteen. Eight1 pled guilty to conspiring for thirteen
years with Ball, Thurston, and Jones, to engage in narcotics
1
Gerald Bailey, Jasmine Bell, Raymond Bell, Lucious Fowler,
Arthur Handon, Marcus Smith, Phillip Wallace, Daniel Collins.
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racketeering. One2 was tried separately and convicted of, among
other charges, engaging in a thirteen-year narcotics conspiracy
with Ball, Thurston, and Jones; another3 pled guilty to engaging
in a lengthy narcotics conspiracy with Ball and Thurston. Yet
another4 pled guilty to manslaughter while armed.
Ball, Thurston, and Jones were tried together with others
and convicted of multiple crack sales, but acquitted of
conspiracy. Each defendant’s sentencing guidelines range,
though, was calculated using as relevant conduct evidence of the
1.5 kilograms of crack cocaine involved in the conspiracy. Ball
was convicted under 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii) of
one count of distribution of 11.6 grams of crack cocaine. His
guidelines range was 292 to 365 months imprisonment. He was
sentenced to 225 months in prison and 60 months of supervised
release. Thurston was convicted under 21 U.S.C. § 841(a)(1) and
(b)(1)(C) of two counts of unlawful distribution of a total of
approximately 1.7 grams of crack cocaine. His guidelines range
was 262 to 327 months imprisonment. He was sentenced to 194
months in prison and 36 months of supervised release on each
count to be served concurrently. Jones was convicted under 21
U.S.C. § 841(a)(1) and (b)(1)(C) of two counts of unlawful
2
Newett Ford.
3
Burke Johnson.
4
Dominic Samuels.
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distribution of a total of approximately 1.8 grams of crack
cocaine. His guidelines range was 324 to 405 months
imprisonment. He was sentenced to 180 months in prison and 72
months of supervised release on each count to be served
concurrently. The defendants are currently appealing their
sentences in the court of appeals.
The defendants move for release pending their appeal arguing
that they are not flight risks and do not pose a danger to the
community, and that their appeals raise substantial questions of
law which likely will result in reversal. The government
opposes, arguing that none of the requirements for release
pending appeal has been met.
DISCUSSION
The Bail Reform Act provides that
“a person who has been found guilty of an offense and
sentenced to a term of imprisonment, and who has filed
an appeal” shall be detained unless the court finds
“that the person is not likely to flee or pose a danger
to the safety of any other person or the community if
released” and “that the appeal is not for purpose of
delay and raises a substantial question of law or fact
likely to result in reversal.”
United States v. Perholtz, 836 F.2d 554, 555 (D.C. Cir. 1988)
(per curiam) (quoting 18 U.S.C. § 3143(b)). Generally, a
judicial officer must detain any person found guilty of “an
offense for which a maximum term of imprisonment of ten years or
more is prescribed in the Controlled Substances Act[.]” 18
U.S.C. §§ 3142(f)(1)(C), 3143(b)(2). However, a person subject
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to detention under § 3143(b)(2) “who meets the conditions of
release . . . may be ordered released, under appropriate
conditions, by the judicial officer, if it is clearly shown that
there are exceptional reasons why such person’s detention would
not be appropriate.” 18 U.S.C. § 3145(c). Here, it is
undisputed that the defendants were convicted of offenses that
trigger the mandatory detention provision. See Defs.’ Mem. of P.
& A. Supporting Defs.’ Mot. for Release (“Defs.’ Mem.”) at 5;
Govt.’s Opp’n to Defs.’ Mot. for Release at 5. Thus, § 3143
would normally bar release for these defendants. To qualify for
release pending appeal, then, the defendants must show that the
statutory requirements of 18 U.S.C. § 3143(b) are met and that
there are “exceptional reasons” for release.5 See United States
v. Jones, 800 F. Supp. 2d 90, 93 (D.D.C. 2011).
I. FLIGHT RISK AND DANGER TO THE COMMUNITY
For the defendants to qualify for release under the Bail
Reform Act, the court must find “by clear and convincing evidence
that the person is not likely to flee or pose a danger to the
safety of any other person or the community if released under
section 3142(b) or (c)[.]” 18 U.S.C. § 3143(b). Under § 3142,
the court is required to consider
5
Because the defendants have failed to show that the
requirements of § 3143(b) have been met, it is unnecessary to
determine whether the defendants have provided provide sufficient
“exceptional reasons” for release to satisfy 18 U.S.C. § 3145(c).
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(1) the nature and circumstances of the offense . . . ;
(2) the weight of evidence against the person;
(3) the history and characteristics of the person,
including --
(A) the person’s character, physical and mental
condition, family ties, employment, financial
resources, length of residence in the community,
community ties, past conduct, history relating to
drug or alcohol abuse, criminal history, and
record concerning appearance at court proceedings;
and . . .
(4) the nature and seriousness of the danger to any
person or the community that would be posed by the
person’s release.
18 U.S.C. § 3142(g). “The burden of establishing that the
defendant will not flee or pose a danger to any other person or
to the community rests with the defendant.” Fed. R. Crim. P.
46(c). The D.C. Circuit has recognized that “society is
endangered when courts release those individuals onto the
community whose past conduct indicates that they are likely to
possess, control or distribute controlled substances.” United
States v. Anderson, 670 F.2d 328, 330 (D.C. Cir. 1982) (per
curiam). In particular, the Anderson court found that a
defendant’s repeated drug possession offenses and involvement in
narcotics distribution sufficed to show that the defendant was “a
substantial danger to any community.” Id. Further, a
defendant’s previous arrests can also be accorded “some weight in
determining whether appellant is likely to be danger to the
community if released pending appeal.” Russell v. United States,
402 F.2d 185, 186 (D.C. Cir. 1968) (citing Rhodes v. United
States, 275 F.2d 78, 82 (4th Cir. 1960)).
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The defendants assert that they are not flight risks because
they grew up in the Washington, D.C. area, their families are
located here, and they lack the financial resources to flee the
jurisdiction if they are released. Defs.’ Mem. at 12-13. In
addition, the defendants state that they did not flee the
jurisdiction during the investigation of their crimes despite
public knowledge of the investigation. Id. The defendants also
assert that Thurston has attempted to change his lifestyle, that
Jones was employed before his indictment, that Ball has an
employment offer, and, thus, the defendants no longer present a
danger to the community. Id. at 13-14.
These assertions are insufficient to satisfy the defendants’
burden to show by clear and convincing evidence that they are not
flight risks or a danger to the community. Even assuming the
truth of the defendants’ statements about their family ties,
employment opportunities, and limited financial resources, those
considerations pale in comparison to the seriousness of their
present convictions and lengthy criminal histories of convictions
and arrests. In particular, Ball’s criminal history includes a
firearm possession conviction and fifteen other adult arrests for
several offenses including possession with intent to distribute
cocaine, possession of marijuana, firearm possession, aggravated
assault while armed, and first degree murder. See Ball
Presentence Investigation Report ¶¶ 100, 106-20. Thurston’s
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criminal history reflects four other adult convictions for theft,
assault, and cocaine and marijuana possession and eleven other
adult arrests for offenses including unlawful entry, cocaine
distribution, assault and aggravated assault while armed,
robbery, firearm offenses, and escape and fugitive offenses. See
Thurston Presentence Investigation Report ¶¶ 81-85, 95-105. As
an adult, Jones has been convicted seven other times for offenses
including attempted assault with a dangerous weapon, attempted
cocaine distribution, marijuana and cocaine possession, and
driving under the influence. He incurred twelve other adult
arrests on charges including armed robbery, carrying a dangerous
weapon, marijuana possession and distribution, assault with the
intent to kill, firearm possession during a violent offense,
assault with a dangerous weapon, carrying a concealed deadly
weapon, cocaine possession, and assault. Jones Presentence
Investigation Report ¶¶ 66-72, 80-91. Each of these defendants’
sentences was based in part on the defendants’ involvement in a
long-term conspiracy to distribute large quantities of crack
cocaine and the defendants actions to violently protect and
further the conspiracy. The defendants’ willing participation in
the ongoing distribution of dangerous narcotics and the violence
attending it make them no candidates for release. Their criminal
histories corroborate that the defendants remain a danger to the
community. Thus, the defendants’ motion for release does not
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show by clear and convincing evidence that the defendants are not
likely to flee or pose a danger to the community.
II. SUBSTANTIAL QUESTION OF FACT OR LAW ON APPEAL
Wholly aside from the defendants’ failure to satisfy their
burden on the first issue, their appeal does not raise “a
substantial question of law or fact.” A “substantial question of
law or fact” in § 3143(b) is “a close question or one that very
well could be decided the other way.” Perholtz, 836 F.2d at 555(internal quotation marks omitted). To determine whether a
defendant has met the Perholtz standard, courts have also
considered precedent in other circuits in addressing whether
there is a consensus of authority on a legal issue. See United
States v. Alston, Criminal Action No. 02-57 (JDB), 2006 WL
1518952, at *2-3 (D.D.C. May 30, 2006); United States v. Hubbard,
Criminal Action No. 94-128 (LFO), 1995 WL 13266, at *2 (D.D.C.
Jan. 5, 1995). “Defendant bears the burden of showing that a
‘substantial’ question exists.” United States v. Keleta, 534 F.
Supp. 2d 106, 107 (D.D.C. 2008) (citing United States v. Libby,
498 F. Supp. 2d 1, 3 (D.D.C. 2007)).
The defendants argue that there is a substantial question of
law about whether sentences based on acquitted conduct violate
the Fifth and Sixth Amendments. However, the D.C. Circuit has
directly addressed the defendants’ claim by stating that
the District Court’s reliance on acquitted conduct in
calculating the Guidelines range no longer poses a
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problem because the post-Booker Guidelines are only
advisory. For Sixth Amendment purposes, the relevant
upper sentencing limit established by the jury’s
finding of guilt is thus the statutory maximum, not the
advisory Guidelines maximum corresponding to the base
offense level. And the Supreme Court has “never
doubted the authority of a judge to exercise broad
discretion in imposing a sentence within a statutory
range.” United States v. Booker, 543 U.S. 220, 233
(2005). In short, because the [acquitted conduct] was
proved by a preponderance of the evidence and because
[the defendant’s] sentence did not exceed the statutory
maximum of 10 years, the District Court’s consideration
of acquitted conduct in sentencing him did not violate
the Fifth or Sixth Amendment.
United States v. Settles, 530 F.3d 920, 923 (D.C. Cir. 2008); see
also United States v. Brown, 516 F.3d 1047, 1050-51 (D.C. Cir.
2008) (holding that the district court did not err in imposing
upward adjustments based on acquitted conduct because the court
did not impose a sentence that exceeded the statutory maximum).
The Settles court noted that judges and commentators have argued
against the use of acquitted conduct in sentencing, “[b]ut under
binding precedent, the Constitution does not prohibit a
sentencing court from relying on acquitted conduct.” Id. at 924.
Thus, where a sentence is below the statutory maximum and any
acquitted conduct was proven by a preponderance of the evidence,
the sentencing does not violate the Fifth or Sixth Amendment.
Here, there is no circuit split as to whether district
courts may use acquitted conduct in sentencing. The circuit
courts that have addressed this issue have held that the use of
acquitted conduct in sentencing is constitutional. See United
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States v. Waltower, 643 F.3d 572, 577 (7th Cir. 2011) (citations
omitted) (citing cases from the First, Second, Fourth, Fifth,
Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh and D.C. Circuits
and stating that “[e]very circuit to have considered the question
post-Booker, including ours, has held that acquitted conduct may
be used in calculating a guidelines sentence, so long as proved
by a preponderance standard”).
The defendants argue that Settles’ interpretation of Supreme
Court precedent is incorrect and that the principle that a
defendant’s sentence may not be increased based on a fact not
found by the jury beyond a reasonable doubt applies to the
Guidelines. Thus, the defendants argue that the upper limit of
the judge’s sentencing discretion is the top of the sentencing
guideline range for the convicted offense and any increase above
that range based on facts not found by the jury is
unconstitutional. See Defs.’ Mem. at 8-10; Defs.’ Reply to
Govt.’s Opp’n to Mot. for Release (“Defs.’ Reply”) at 7. To
support their argument, the defendants cite United States v.
Booker, 543 U.S. 220 (2005). There, the Supreme Court held in
part that the Sixth Amendment applies to the mandatory Sentencing
Guidelines. Id. at 233. However, the basis for applying the
Sixth Amendment to the Sentencing Guidelines was that
the relevant sentencing rules are mandatory and impose
binding requirements on all sentencing judges. If the
Guidelines as currently written could be read as merely
advisory provisions that recommended, rather than
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required, the selection of particular sentences in
response to differing sets of facts, their use would
not implicate the Sixth Amendment.
Id. In the remedial portion of the Booker opinion, the Supreme
Court held that the Guidelines were no longer mandatory, but
instead advisory. Id. at 245-46. The defendants were sentenced
when the Guidelines were advisory. Thus, the Sixth Amendment’s
protection against the use of non-jury found facts is not
implicated by the use of acquitted conduct in sentencing these
defendants because they were sentenced under the advisory
Guidelines.
The defendants also cite the Supreme Court’s decision in
Southern Union Company v. United States, 132 S. Ct. 2344 (2012)
to argue that “the material facts used to establish the
defendant’s so-called Relevant Conduct cannot be enhanced by a
court beyond those found by the jury or admitted by the defense.”
Defs.’ Reply at 7. However, the Southern Union case does not
undermine Settles’ holding that using acquitted conduct in
sentencing is permissible where the judge finds the facts by a
preponderance of the evidence and the sentence does not exceed
the statutory maximum. Instead, the Southern Union case held
that the imposition of criminal fines is subject to the Apprendi
rule -- “[t]he Sixth Amendment reserves to juries the
determination of any fact, other than the fact of a prior
conviction, that increases a criminal defendant’s maximum
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potential sentence.” Southern Union, 132 S. Ct. at 2348 (citing
Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v.
Washington, 542 U.S. 296 (2004)). Southern Union merely recited
the Apprendi rule, explained the basis for the rule, and applied
the rule to criminal fines without disturbing the legal standards
for using acquitted conduct in sentencing or stating that the
advisory Guidelines implicated the Apprendi rule when a
defendant’s sentence is increased within the statutory maximum.
See id. at 2350-57. Thus, Booker and Southern Union do not
reflect that Settles’ holding regarding acquitted conduct is
inconsistent with Supreme Court precedent.
The defendants also argue that their sentences violate the
Sixth Amendment because the sentences are substantively
unreasonable. The substantive reasonableness inquiry requires
the appellate court to consider, under an abuse of discretion
standard, “the totality of the circumstances, including the
extent of any variance from the Guidelines range.” Gall v.
United States, 552 U.S. 38, 51 (2007). The essential inquiry for
substantive reasonableness is: “[i]n light of the facts and
circumstances of the offense and offender, is the sentence so
unreasonably high or unreasonably low as to constitute an abuse
of discretion by the district court?” United States v.
Gardellini, 545 F.3d 1089, 1093 (D.C. Cir. 2008). The Gardellini
court also stated that
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appellate courts may not reverse a district court
simply because the Sentencing Commission, a reviewing
appellate court, or another district court “might
reasonably have concluded that a different sentence was
appropriate.” Gall, 128 S. Ct. at 597. . . .
District judges now have far more substantive
discretion in sentencing than they had pre-Booker.
Therefore, whether the defendant receives a sentence
within, above, or below the Guidelines range, both the
Government and defense counsel would be well-advised to
understand that it will be an unusual case where an
appeals court overturns a sentence as substantively
unreasonable -- as the post-Rita, post-Gall case law in
the courts of appeals shows.
Id. at 1096. The D.C. Circuit “afford[s] a presumption of
substantive reasonableness to within-Guidelines sentences . . .
[and] this Court has not as yet reversed any within-Guidelines
sentence as substantively unreasonable.” United States v.
Harrison, 356 Fed. App’x 423, 425 (D.C. Cir. 2009) (citations
omitted). The Harrison court also reaffirmed that “a sentence
may be based on facts determined by the sentencing judge by a
preponderance of the evidence, as long as the sentence is not
greater than the statutory maximum.” Id. (citations omitted).
Here, the defendants argue that the sentences are
substantively unreasonable because “the norm for the offense of
conviction is far less than the sentences handed out.” Defs.’
Mem. at 11; Defs.’ Reply at 2. Defendants rely on Justice
Scalia’s concurrence in Rita v. United States, 551 U.S. 338, 368-
75 (2007). Rita held that “a court of appeals may apply a
presumption of reasonableness to a district court sentence that
reflects a proper application of the Sentencing Guidelines.”
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Rita, 551 U.S. at 347. There, Justice Scalia recognized that
“there will inevitably be some constitutional violations under a
system of substantive reasonableness review, because there will
be some sentences that will be upheld as reasonable only because
of the existence of judge-found facts.” Id. at 374 (Scalia, J.,
concurring). These include sentences within the Guidelines range
which were “substantially enhanced by certain judge-found facts.”
Id. at 371 (Scalia, J., concurring). Thus, Justice Scalia notes
that the Rita majority opinion “does not rule out as-applied
Sixth Amendment challenges to sentences that would not have been
upheld as reasonable on the facts encompassed by the jury verdict
or guilty plea.” Id. at 375 (Scalia, J., concurring). In
essence, the defendants argue that the consideration of acquitted
conduct increased the sentences too much by adjusting the offense
level based on the amount of cocaine base involved in the drug
conspiracy -- 1.5 kilograms -- rather than the amount of cocaine
base that the defendants were convicted of distributing.
Although Justice Scalia’s concurrence provides some basis for the
defendants’ argument, it is clear that the upper limit of the
sentencing court’s discretion is the statutory maximum and that
binding precedent allows the use of acquitted conduct to increase
the defendants’ sentences up to that level. See Settles, 530
F.3d at 923; Brown, 516 F.3d at 1050.
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The statutory maximum for Ball was 40 years, the statutory
maximum for Thurston was 20 years per count, and the statutory
maximum for Jones was 30 years per count. Ball’s guidelines
range was 292 to 365 months imprisonment, Thurston’s guidelines
range was 262 to 327 months imprisonment, and Jones guidelines
range was 324 to 405 months imprisonment. All of the defendants’
sentences were substantially below both the statutory maximum and
the guidelines range: Ball was sentenced to 225 months, Thurston
was sentenced to 194 months, and Jones was sentenced to 180
months. The defendants have not cited any binding precedent
which reflects that imposing sentences below the statutory maxima
and below the guidelines ranges calculated using acquitted
conduct establishes that the defendants’ sentences are
substantively unreasonable. Thus, the defendants’ motion for
release does not raise a substantial question of law on the
substantive reasonableness of the defendants’ sentences.
The defendants also argue that their sentences are
procedurally unreasonable because the government witnesses who
testified to the existence of a narcotics conspiracy were
untrustworthy and unreliable. In reviewing the procedural
reasonableness of a sentence, the appellate court must
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
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explain the chosen sentence -- including an explanation
for any deviation from the Guidelines range.
Gall, 552 U.S. at 51. Here, the defendants argue that the
district court based its findings on “clearly erroneous facts” by
failing to address and give specific reasons why it rejected the
defendants’ claims that the witnesses were not trustworthy
because they were cooperating witnesses. Defs.’ Mem. at 10-12;
Defs.’ Reply at 14-15. The defendants also argue that the record
reflects that there were multiple conspiracies rather than a
single conspiracy. Defs.’ Mem. at 11. Factors to consider in
determining whether there was a single conspiracy are “whether
the conspirators share a common goal, such as the possession and
distribution of narcotics for profit[,] . . . the degree of
dependence inherent in the conspiracy . . . [and] the overlap of
participants in the various operations claimed to comprise a
single conspiracy.” United States v. Tarantino, 846 F.2d 1384,
1393 (D.C. Cir. 1988) (citations omitted).
The record at the sentencings included the trial evidence
and the factual proffers from the plea agreements of the other
co-defendants who admitted participation in the narcotics
conspiracy. The presentence investigation reports based the
conspiracy finding on the testimony of numerous individuals
including cooperating witnesses and police officers who described
the nature and duration of the narcotics conspiracy. See Ball
Presentence Investigation Report ¶¶ 16-84; Thurston Presentence
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Investigation Report ¶¶ 17-62; Jones Presentence Investigation
Report ¶¶ 18-49.
At Jones’ sentencing, the court noted that the offense level
was calculated based in part on activity which other co-
defendants admitted to in guilty plea proffers and that co-
defendant Newett Ford was convicted of conspiracy by a jury.
Jones Sent., May 1, 2008 Tr. 20:7-17. The court described the
direct and circumstantial evidence which showed by a
preponderance of the evidence that the defendant was involved in
a narcotics conspiracy. Id. at 20:18-23:8. The court
specifically found that the defendant knew the other conspirators
and that the defendant and co-conspirators were selling crack
cocaine together in the Congress Park area. Id. at 20:7-23:8.
Similarly, at Thurston’s sentencing, the court explained
that its conspiracy finding was based on trial witness testimony
and evidence showing Thurston’s association with the other co-
conspirators and involvement in selling crack cocaine. Thurston
Sent., Oct. 29, 2010 Tr. 18:19-19:8. The court then reviewed the
witness testimony and explained why the testimony was credible
despite the defendant’s cross-examination and credibility
challenges. Id. at 19:9-20:16. The court also cited Joe
Langley’s and Burke Johnson’s guilty plea proffers and those of
seven other co-defendants who pled guilty without cooperation
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agreements which supported the conspiracy finding. Id. at 21:10-
22:8.
Finally, at Ball’s sentencing, the court stated that the
conspiracy finding rested on evidence which established that Ball
knew and was seen with the other co-conspirators in the Congress
Park area based on the testimony of numerous witnesses who
explained Ball’s direct involvement in the conspiracy. Ball
Sent., Mar. 17, 2011 Tr. 31:2-34:7. The court specifically
addressed the defendants’ arguments about witness credibility by
explaining why witnesses were credible and finding that “[i]n any
event, given -- full effect to this impeachment does not
undermine the mutually corroborative evidence, which I have
identified and credited that demonstrates concerted activity and
the volume of crack involved in the relevant conduct.” Id. at
34:8-35:6. Further, the court based the conclusion about the
relevant conduct quantity and the conspiracy finding in part on
the sworn guilty plea proffers. “Joe Langley, Burke Johnson, and
Mary McClendon each pled guilty under oath to conspiring to
distribute crack for at least a decade, . . . and they named in
signed proffers numerous named conspirators in this case as
customers.” Id. at 36:5-11. In addition, other co-defendants,
including co-defendants without cooperation agreements “pled
guilty under oath to conspiring for many years with Mr. Ball and
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other named conspirators in this case to distribute crack.” Id.
at 36:16-18.
Here, the conspiracy finding was supported by witnesses from
the drug market at the time and the court described in detail the
evidence upon which the conspiracy finding rested and addressed
the credibility concerns raised by the defendants at that time.
By simply re-raising the overruled objection about witness
credibility, the defendants have not satisfied their burden of
showing how the sentences were based on “clearly erroneous facts”
or how the court failed to adequately explain its findings. The
findings at sentencing also support the presence of a single
conspiracy because the distribution of narcotics for profit was
the common goal and the witness testimony and evidence reflected
both a level of dependence and an overlap of participants in the
conspiracy. Thus, the defendants’ procedural unreasonableness
challenge also does not raise a substantial question of law and
release pending appeal is unwarranted.6
CONCLUSION AND ORDER
The defendants have not shown by clear and convincing
evidence that they do not pose a risk of flight or danger to the
6
The defendants also assert that “there is a substantial
question of law as to whether the extended delay in sentencing
Thurston and Ball, and by extension, Jones, . . . was
unconstitutional.” Defs.’ Mot. for Release at 1. However, the
defendants do not discuss this issue further in their motion or
reply brief. The burden rests on the defendants, and they have
not carried it on this claim.
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community. Binding precedent in this circuit supports the use of
acquitted conduct in calculating the defendants’ total offense
levels under the Sentencing Guidelines and there is no circuit
split on this issue. No other binding precedent reflects that
imposing sentences below the statutory maxima and below the
Guidelines range calculated using acquitted conduct establishes
that the defendants’ sentences are substantively unreasonable.
The defendants have also not shown that their sentences were
procedurally unreasonable. Accordingly, it is hereby
ORDERED that the defendants’ motion [1478] for release be,
and hereby is, DENIED.
SIGNED this 23rd day of August, 2013.
/s/
RICHARD W. ROBERTS
Chief Judge