Opinion
01 CR 1.
April 21, 2006
OPINION AND ORDER
Before the court is a limited remand from the Seventh Circuit Court of Appeals pursuant to United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), directing this court to indicate whether it would have sentenced the Defendants differently, had the Federal Sentencing Guidelines ("Guidelines") been advisory rather than mandatory at the time of sentencing. For the following reasons, the court determines that it would not have sentenced these Defendants differently had the Guidelines been advisory rather than mandatory.
I. INTRODUCTION
A. Facts
Clarence Hankton ("Hankton") held the title of "King of Kings" within the "Mickey Cobras" ("MC's"), a violent, well-organized, and hierarchically structured Chicago area street gang. Gregory Davis ("Davis") held the title of "Sultan Supreme" within the MC's. The MC's are heavily involved in the sale of controlled substances, including powdered cocaine and cocaine base ("crack"), on the north, west, and south sides of Chicago. As "King of Kings," Hankton held the second highest rank within the MC's, while Davis was also a high-ranking member within that gang. The MC's membership is believed to total over 1000 members, and its influence is thought to extend throughout the City of Chicago, and into the greater Midwestern area, including Milwaukee and southern Wisconsin.
In October 1999, the FBI Joint Task Force on Gangs in the Chicago field office began an investigation into the MC's illegal distribution of controlled substances. The investigation was initiated based on information derived from a confidential informant ("CI") who had infiltrated the MC's, and apparently gained the trust of Hankton and other gang members. The CI participated in several controlled narcotics purchases with Hankton. In addition, the FBI investigation included physical surveillance of the MC's, interviews with MC members, telephone record analysis, and Title III wiretaps of conversations between various MC members discussing the purchase and sale of controlled substances. This investigation revealed that Hankton, Davis, and other members of the MC's were involved in an extensive conspiracy to purchase and distribute large quantities of cocaine.
B. Procedural History
Following the investigation, on January 2, 2001, the United States filed a Criminal Complaint in the Northern District of Illinois charging Hankton, Davis, and seventeen other co-conspirators with conspiring to possess with the intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1). On May 15, 2002, Hankton, Davis, and another co-conspirator were charged, in a nine-count superceding indictment, with the following crimes: conspiracy to possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2; knowingly and intentionally distributing and possessing with the intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1); and using a communication facility, namely a telephone, in commission of a felony, in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2.
On November 21, 2002, Hankton signed a Plea Agreement in which he consented to plead guilty to Counts Two, Three, and Four of the superceding indictment. In that Plea Agreement, Hankton admitted distributing approximately 166 grams of cocaine base to a CI, in violation of 21 U.S.C. § 841(a)(1). The next day Davis signed a Plea Agreement in which he consented to plead guilty to Count Six of the superceding indictment, and admitted possessing with the intent to distribute approximately 250 grams of substances containing cocaine, also in violation of 21 U.S.C. § 841(a)(1). In Hankton's Plea Agreement, the parties agreed to disagree as to the drug quantity involved, and as to Hankton's alleged leadership role in the conspiracy. In Davis' Plea Agreement, the parties also agreed to disagree as to Davis' alleged leadership role, and as to whether Davis possessed crack or powdered cocaine. The parties reserved their rights to argue their respective positions at sentencing.
At Hankton's sentencing hearing, the government presented evidence concerning Hankton's role as a leader of the MC's. A Chicago Police Detective testified that Hankton had ordered the beating of fellow MC Annette Williams in retaliation for Williams having stolen $3,000 from the gang. Williams died from her injuries. A member of the FBI's joint gang task force testified to Hankton's role as a "King" within the MC's. Other government witnesses, including a co-defendant, gave testimony or sworn statements indicating that Hankton had been the leader of the MC's at Cabrini-Green, a public housing development on the near north side of Chicago, and eventually became "King" over the entire north side of Chicago. The court found these witnesses credible, and determined that Hankton was in fact a leader of the MC's. The court therefore enhanced Hankton's offense level by four pursuant to Guidelines § 3B1.1(a). The court also determined that, based on the Plea Agreement and the testimony given at the sentencing hearing, Hankton "could reasonably have foreseen that the amount of [crack] he was dealing . . . was well in excess of 500 grams." The court therefore increased Hankton's offense level by two pursuant to Guidelines § 2D1.1. Subtracting three points for acceptance of responsibility, the court determined that Hankton's offense level was 37, with a criminal history category of III. The appropriate sentencing range was therefore 262 to 327 months. The court sentenced Hankton to 300 months imprisonment, at the middle of the appropriate Guideline range.
At Davis' sentencing hearing, the government presented the testimony of an FBI agent as to a series of wiretapped conversations between Hankton and Davis regarding the proper methods of "cooking," or converting powdered cocaine into crack. The government also presented testimony from that same agent attesting to Davis' leadership role in the MC's. To corroborate the agent's testimony on these matters, the government presented Plea Agreements from other co-defendants in which the co-defendants admitted purchasing crack from Davis, and in which the co-defendants referred to Davis as a "Sultan Supreme" within the MC's. The court again found this evidence credible, and determined that Davis possessed crack with the intent to distribute, which made his base offense level 32. The court also determined that Davis was a "manager or supervisor" of a criminal activity within the meaning of Guidelines § 3B1.1, which added 3 points to his offense level. After subtracting 3 points for acceptance of responsibility, the court concluded that Davis' offense level was 32 with a criminal history category of VI. The court sentenced Davis to 210 months imprisonment, at the low end of the appropriate 210 to 262 month Guideline range.
On appeal, both Defendants challenged the reliability of the evidence presented by the government at sentencing. In addition, Hankton asserted that the court engaged in impermissible "double counting" in applying the Guidelines to his sentence. The Seventh Circuit, however, determined that "the district court did not impermissibly consider unreliable evidence in enhancing Hankton or Davis' sentences for drug quantity and their respective leadership roles," and "reject[ed] Hankton's claim that the sentencing judge's application of U.S.S.G. §§ 2D1.1 and 3B1.1 to his sentence constituted improper double counting." United States v. Hankton, 432 F.3d 779, 797 (7th Cir. 2005). The Appellate court therefore upheld Hankton and Davis' sentencing enhancements, but remanded the case for the limited purpose of determining whether "the district court would have imposed a different sentence had it known that the Sentencing Guidelines were merely advisory."Id. at 796.
II. DISCUSSION
A. Standard for Paladino remand
In 1987, Congress promulgated the United States Sentencing Guidelines, which provided for a set of mandatory sentences for federal crimes. See 18 U.S.C. § 3553. Then, in United States v. Booker, 543 U.S. 220 (2005), the Supreme Court declared these Guidelines advisory, rather than mandatory. Defendants sentenced under the pre-Booker mandatory Guidelines are now given limited remands to re-evaluate their sentences under the factors contained in 18 U.S.C. § 3553(a). United States v. Welch, 429 F.3d 702, 705 (7th Cir. 2005); see also United States v. Paladino, 401 F.3d 471, 484 (7th Cir. 2005). Under these limited remands, the trial judge is asked "whether he would have given the defendant a shorter sentence had he realized the guidelines are merely advisory." United States v. Goldberg, 406 F.3d 891, 894 (7th Cir. 2005); see Hankton, 432 F.3d at 796; United States v. Spano, 421 F.3d 599, 606 (7th Cir. 2005). The district court cannot take into account post-sentencing factors upon this limited remand. See United States v. Re, 419 F.3d 582, 584 (7th Cir. 2005) ("Post-sentencing events or conduct simply are not relevant to [the Paladino] inquiry."). Instead, the sole purpose of a "Paladino remand" is for the district judge to inform the Seventh Circuit "whether [the defendant's] sentence would have been different had the Guidelines been applied as advisory rather than mandatory."United States v. Santiago, 428 F.3d 699, 705-06 (7th Cir. 2005);see Paladino, 401 F.3d at 484.
If the district court judge would have imposed the same sentence had the Guidelines been advisory, the Seventh Circuit "will affirm the original sentence against a plain-error challenge, provided that the sentence is reasonable." Re, 419 F.3d at 583. "Any sentence that is properly calculated under the Guidelines is entitled to a rebuttable presumption of reasonableness." Welch, 429 F.3d at 705; see United States v. Johnson, 427 F.3d 423, 426 (7th Cir. 2005) (citing United States v. Bryant, 420 F.3d 652, 658 (7th Cir. 2005)). It is the rare sentence "within the Guidelines range that `stands out as unreasonable.'" Welch, 429 F.3d at 705 (quoting United States v. Newsom, 428 F.3d 685, 687 (7th Cir. 2005)). Sentences that vary from the Guidelines are "reasonable so long as the judge offers appropriate justification under the factors specified in § 3553(a)." Johnson, 427 F.3d at 426.
In the course of the limited Paladino remand, "the district court is to consider the sentencing factors set out in 18 U.S.C. § 3553(a)." Re, 419 F.3d at 583. These factors include, inter alia: the nature and circumstances of the offense, the history and characteristics of the defendant, the need to promote 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); United States v. Alburay, 415 F.3d 782, 786 (7th Cir. 2005).
B. Hankton
Hankton asserts the following in support of a reduction in his sentence. First, he argues that mitigating evidence which he was precluded from presenting at the sentencing hearing shows that he is the caring father of four children, and that he was a loyal and respectful neighbor and friend in his community prior to his conviction. Second, he asserts that since his sentencing, he has been a model prisoner. Third, he argues that his sentence for distributing crack is disproportionate in relation to sentences given for powdered cocaine. Finally, he asserts that he was not involved in Annette Williams' murder.
The court does not doubt that, prior to his conviction, Hankton was nice to his children and neighbors. However, the government has presented substantial evidence which indicates that Hankton was second-in-command of the MC's, a very large and well-organized street gang that was heavily involved in the sale of controlled substances, and was prone to using violence and murder as a means of disciplining its members and protecting its territory. The court will make no further comment on the content of Hankton's character. Suffice it to say that had Hankton presented this mitigating evidence at his sentencing hearing, the court would not have been moved, and this evidence does not persuade the court to reduce Hankton's sentence now.
The court accepts Hankton's repesentation that he has been a model prisoner since his sentencing. However, his behavior while incarcerated is irrelevant for the purposes of the court's present inquiry. In this Paladino remand, the court cannot consider post-sentencing conduct. See Re, 419 F.3d at 584 ("[I]n a Paladino remand the conduct or circumstances that bear on the § 3553(a) factors must have been in existence at the time the original sentence was imposed."). The court also declines Hankton's invitation to reconsider its determination that Hankton ordered the beating of Annette Williams. The Seventh Circuit has affirmed this finding, and the court will not revisit this issue. See Hankton, 432 F.3d at 794.
Finally, Hankton asserts that he should have received a lighter sentence because the Guideline sentences for crack cocaine are unfair when contrasted with the sentences for powdered cocaine. This argument is meritless. The Seventh Circuit has rejected assertions that Guideline sentences for crack cocaine are "grossly disproportionate," and therefore unreasonable, as compared to sentences for powdered cocaine. See United States v. Gipson, 425 F.3d 335, 337 (7th Cir. 2005); United States v. Westbrook, 125 F.3d 996, 1010 (7th Cir. 1997); United States v. Booker, 73 F.3d 706, 710 (7th Cir. 1996).
The court has considered the sentencing factors set out in 18 U.S.C. § 3553(a) and determines that it would reimpose Hankton's original 300 month sentence. Hankton was a "King of Kings" of the MC's, a violent Chicago street gang heavily involved in the purchase and sale of cocaine. This sentence reflects the seriousness of Hankton's offense, promotes respect for the law, and protects the public from further crimes of Hankton. See 18 U.S.C. § 3553(a)(2). The court has considered the nature of this offense, and Hankton's history and characteristics. See id. at § 3553(a)(1). For the reasons listed above, Hankton has not overcome the rebuttable presumption that his sentence is reasonable. See United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005) ("This is a deferential standard . . . The defendant can rebut this presumption only by demonstrating that his or her sentence is unreasonable when measured against the factors set forth in § 3553(a).").
C. Davis
Davis assets that the following considerations merit a reduction in his sentence. First, he asserts that statements contained in co-defendants' plea agreements presented by the government at his sentencing hearing were unreliable. Next, he argues, like Hankton, that the disparity between sentences for crack and powdered cocaine make his sentence unfair. Finally, he asserts that his status as a career criminal is unjustified due to his longtime drug abuse.
As to Davis' first assertion, the Seventh Circuit has evaluated the reliability of the plea agreements presented by the government at Davis' sentencing, and found the statements contained therein to be entirely credible. Hankton, 432 F.3d at 793. The court declines the invitation to revisit this issue. As to Davis second argument, the court again points out that arguments regarding the unfairness of the disparity in sentencing for offenses involving crack and powdered cocaine are unavailing in the Seventh Circuit. See Gipson, 425 F.3d at 337. As to Davis' final assertion, the court notes that Davis does not argue that the court incorrectly calculated his criminal history category under the Guidelines, rather, Davis argues that because his prior convictions were for drug-related offenses, the court should have lowered his criminal history category in the interest of fairness. Without a clear indication that the court's calculation of Davis' criminal history category was in error, however, the court will not now redetermine Davis' criminal history.
The court has considered the sentencing factors set out in 18 U.S.C. § 3553(a) and determines that it would reimpose Davis' original 210 month sentence. Davis attained the rank of "Sultan Supreme" in the MC's, and participated heavily in the purchase and sale of crack cocaine. This sentence reflects the seriousness of Davis' offense, promotes respect for the law, and protects the public from further crimes of Davis. See 18 U.S.C. § 3553(a)(2). The court has considered the nature of this offense, and Davis' history and characteristics. See id. at § 3553(a)(1). For the reasons listed above, Davis has not overcome the rebuttable presumption that his sentence is reasonable. See Mykytiuk, 415 F.3d at 608 ("This is a deferential standard . . . The defendant can rebut this presumption only by demonstrating that his or her sentence is unreasonable when measured against the factors set forth in § 3553(a).").
III. CONCLUSION
The Seventh Circuit has ordered this court to determine whether it would reimpose the Defendants' original sentences, in light of the fact that the Guidelines are now advisory rather than mandatory. These original sentences were within the appropriate Guideline range. See Gipson, 425 F.3d at 337 ("the district court imposed a sentence within the guideline range, which needs `little explanation' for our reasonableness review.") (quotingUnited States v. Dean, 414 F.3d 725, 730 (7th Cir. 2005)).Hankton and Davis attained positions of leadership and power in one of Chicago's largest and most dangerous street gangs, the Mickey Cobras. They have admitted to their involvement, along with several co-conspirators, in numerous transactions involving significant amounts of cocaine. Hankton ordered the vicious beating of another gang member, which resulted in that individual's death. To impose a lesser sentence on these Defendants would not serve as a deterrent to others, and would deprecate the seriousness of this conduct. For the foregoing reasons, the court determines that it would reimpose the Defendants' original sentences.