Judges: Williams
Filed: Oct. 13, 2015
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ Nos. 13-2882 & 13-2974 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RAHSHONE BURNETT, Defendant-Appellant. _ Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 11 CR 00571 and 09 CR 1030 — Matthew F. Kennelly, Judge, and Robert W. Gettleman, Judge. _ ARGUED NOVEMBER 4, 2014 — DECIDED OCTOBER 13, 2015 _ Before MANION, WILLIAMS, and SYKES, Circuit Judges. WILLIAMS, Circuit J
Summary: In the United States Court of Appeals For the Seventh Circuit _ Nos. 13-2882 & 13-2974 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RAHSHONE BURNETT, Defendant-Appellant. _ Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 11 CR 00571 and 09 CR 1030 — Matthew F. Kennelly, Judge, and Robert W. Gettleman, Judge. _ ARGUED NOVEMBER 4, 2014 — DECIDED OCTOBER 13, 2015 _ Before MANION, WILLIAMS, and SYKES, Circuit Judges. WILLIAMS, Circuit Ju..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 13‐2882 & 13‐2974
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
RAHSHONE BURNETT,
Defendant‐Appellant.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 11 CR 00571 and 09 CR 1030 — Matthew F. Kennelly, Judge, and
Robert W. Gettleman, Judge.
____________________
ARGUED NOVEMBER 4, 2014 — DECIDED OCTOBER 13, 2015
____________________
Before MANION, WILLIAMS, and SYKES, Circuit Judges.
WILLIAMS, Circuit Judge. We consolidated on appeal
Rahshone Burnett’s appeals of the sentences he received in
two separate cases. In his drug case, a jury convicted him of
buying and selling about 33 grams of heroin but acquitted
him of participating in a conspiracy. At sentencing, the gov‐
2 Nos. 13‐2882 & 13‐2974
ernment argued that one to three kilograms of drugs were
sold in the conspiracy and should be included in Burnett’s
relevant conduct for sentencing purposes. We find no clear
error in the district court’s attribution of 100 grams of heroin
to Burnett. Burnett conceded he had purchased 100 grams of
heroin, and this purchase was part of the same course of
conduct as the offenses of conviction. In his fraud case, Bur‐
nett pled guilty to mail and wire fraud after he bought ex‐
pensive cars and other items for his own benefit out of set‐
tlement funds meant for his sister’s surviving children. Al‐
though Burnett maintains he should not have received both
vulnerable victim and abuse of a position of trust enhance‐
ments, we find no clear error because the United States Sen‐
tencing Guidelines do not prohibit the application of both
enhancements, and the two enhancements punished differ‐
ent conduct here. We affirm the judgments in both cases.
I. BACKGROUND
On September 5, 2009, Tyotis Fields was driving to the
corner of Central Park Avenue and Huron Street in Chicago
when he was stopped for a traffic violation. A search of his
car turned up approximately 11.4 grams of heroin. The hero‐
in was in a plastic bag in five strips, each of which contained
twelve individual packets of heroin. Fields had obtained the
heroin from Rahshone Burnett. After his arrest, Fields called
Burnett and said the heroin had been seized. He also asked
Burnett to arrange for guns to be dropped off to the police in
exchange for Fields’s freedom by leaving the guns in a cer‐
tain trash can. Law enforcement officials then saw Burnett
Nos. 13‐2882 & 13‐2974 3
driving others to that trash can, and the officials recovered
guns from it.
A few weeks later, on September 29, 2009, video set up
by law enforcement captured Burnett mixing heroin with a
cutting agent in his basement and then, with Anthony Guer‐
ra’s assistance, packaging the heroin into individual tinfoil
packets. Cordell Davis left Burnett’s home with the heroin,
went to Central Park and Huron, and sold sixty tinfoil pack‐
ets of heroin to an undercover officer. The heroin weighed a
total of approximately 12.1 grams.
An indictment was filed in December 2009, and the case
against Burnett went to trial several years later on four
counts: conspiring to possess with the intent to distribute
heroin, using a communication facility in furtherance of that
conspiracy, possession of heroin with intent to distribute on
September 5, 2009, and possession of heroin with intent to
distribute on September 29, 2009. Burnett admitted at trial
that he was involved in drugs but maintained his involve‐
ment was limited to buying and selling and that he was not
part of a conspiracy. The jury agreed and acquitted Burnett
on the conspiracy and use of a communication facility to fur‐
ther a conspiracy counts, and it found him guilty on the two
individual distribution counts.
In addition to the drugs involved in Burnett’s offenses of
conviction, the government sought to have the drug sales
alleged in connection with the conspiracy considered rele‐
vant conduct during sentencing. The government argued at
trial that Burnett conspired with Richard Harrington and
others to obtain and distribute wholesale quantities of heroin
4 Nos. 13‐2882 & 13‐2974
from at least November 2008 until Burnett’s arrest in Octo‐
ber 2009.
The Presentence Investigation Report (“PSR”) prepared
by the United States Probation Office before sentencing
deemed Burnett responsible for at least one to three kilo‐
grams of heroin. After increases for possession of a firearm,
acting as a leader or organizer, and obstruction of justice, the
PSR’s calculation of an offense level of 40 combined with
Burnett’s criminal history category of I resulted in an adviso‐
ry range under the United States Sentencing Guidelines of
292 to 365 months’ imprisonment. A sentencing hearing took
place on August 26, 2013. After hearing argument from both
parties, the district court found Burnett responsible for 100
grams of heroin. The district court also declined to assess a
four‐level leader/organizer enhancement and instead as‐
signed a two‐level leadership increase. The district court
concluded that Burnett had an offense level of 32. The result‐
ing advisory guideline range was 135 to 168 months’ impris‐
onment. The district court imposed a sentence at the low end
of that range of 135 months’ imprisonment.
In August 2011, Burnett was charged in a separate case
with three counts of mail fraud in violation of 18 U.S.C.
§ 1341 and two counts of wire fraud in violation of 18 U.S.C.
§ 1343. Burnett’s sister and infant nephew died in a fire, and
a $5.75 million settlement was reached for the benefit of
Burnett’s sister’s five surviving children. Burnett was ap‐
pointed guardian of the minor children, which gave him ac‐
cess to settlement funds. He used portions of those settle‐
ment funds multiple times for his own gain, including by
Nos. 13‐2882 & 13‐2974 5
buying himself a Bentley, a Mercedes, and jewelry. He also
made several unauthorized disbursements of the settlement
funds, including the purchase of a BMW and an apartment
building. Burnett pled guilty to all five fraud counts. At sen‐
tencing, the district court imposed both the vulnerable vic‐
tim enhancement and an enhancement for abusing a posi‐
tion of trust. After calculating an advisory guideline range of
78 to 97 months, the district court sentenced Burnett to 90
months’ imprisonment.
We consolidated Burnett’s appeals for briefing and dis‐
position. In each appeal, he challenges the sentence he re‐
ceived.
II. ANALYSIS
A. Drug Quantity in Narcotics Case
Burnett first challenges the district court’s determination
at the sentencing in his drug case that he was responsible for
100 grams of heroin. It is undisputed that his counts of con‐
viction involved approximately 33 grams of heroin. The po‐
sition of both the PSR and of the government at sentencing
was that Burnett was responsible for over one kilogram of
heroin. The district court found Burnett responsible for 100
grams of heroin, and we review this finding for clear error.
United States v. Adams, 746 F.3d 734, 739 (7th Cir. 2014).
When calculating a defendant’s advisory guideline
range, U.S.S.G. § 1B1.3(a)(2) provides that the base offense
level is determined by taking into account “relevant con‐
duct” which includes “all acts and omissions” committed by
the defendant “that were part of the same course of conduct
6 Nos. 13‐2882 & 13‐2974
or common scheme or plan as the offense of conviction.” See
also United States v. Baines, 777 F.3d 959, 963 (7th Cir. 2015).
The “relevant conduct” provision in the guidelines allows
sentencing courts to consider drug quantities that are not
part of the offense of conviction, so long as “the unconvicted
activities bore the necessary relation to the convicted of‐
fense.” Barnes, 777 F.3d at 963 (quotation omitted). For of‐
fenses to be “part of a common scheme or plan, they must be
substantially connected to each other by at least one com‐
mon factor, such as common victims, common accomplices,
common purpose, or similar modus operandi.” U.S.S.G.
§ 1B1.3 cmt. n.9(A). “Offenses that do not qualify as part of a
common scheme or plan may nonetheless qualify as part of
the same course of conduct if 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. at n.9(B). Factors in making the “same course of
conduct” determination include “the degree of similarity of
the offenses, the regularity (repetition) of the offenses, and
the time interval between the offenses.” Id. The government
must establish relevant conduct by a preponderance of the
evidence. Baines, 777 F.3d at 963.
The district court did not clearly err when it found Bur‐
nett responsible for 100 grams of heroin. Burnett took the
stand at trial and testified in his own defense. He admitted
that he ran a heroin business, and he admitted that he
bought most of his heroin from Richard Harrington with the
intent to sell it to Guerra, Fields, Davis, and others. Burnett
testified that he began buying small quantities from Harring‐
Nos. 13‐2882 & 13‐2974 7
ton, and that the quantities he bought increased over time.
Burnett further testified that he ultimately bought 100 grams
of heroin from Harrington at one time that he resold to his
heroin customers including Guerra, Fields, and Davis.
The district court based its 100‐gram drug quantity find‐
ing on Burnett’s admission at trial that he bought that
amount from Harrington. In reaching this conclusion, the
district court did not take up the government’s invitation to
find Burnett responsible for the conspiracy. The district court
did, however, find him responsible for more than the 33
grams he was found guilty of selling, although it found a
much lower quantity than the one to three kilograms re‐
quested by the government. Recognizing the government’s
arguments for a much higher quantity, the district court
stated at sentencing, “although there are ways to come up
with a much greater quantity … Mr. Burnett admitted to
purchasing at least 100 grams.” There is no question that the
district court had evidence before it from which it could find
that Burnett bought 100 grams of heroin.
And it was not clear error for the district court to find
that the 100 grams of heroin Burnett admitted he purchased
from Harrington was relevant conduct to the offenses of
conviction. The court heard evidence demonstrating that
Burnett’s drug trafficking conduct was part of a single busi‐
ness and scheme. Burnett was convicted of possessing hero‐
in with the intent to distribute it on two occasions, Septem‐
ber 5, 2009 and September 29, 2009. The heroin seized on
September 5 from Fields had been obtained from Burnett
and was packaged for resale in individual user quantities,
8 Nos. 13‐2882 & 13‐2974
and Fields was delivering it to the corner of Central Park
and Huron. The government introduced evidence at trial
that Burnett was organizing and supervising the sale of her‐
oin on that corner by at least July 2009 and that he employed
Davis to manage the corner. On September 29, video showed
Burnett mixing and packaging heroin into individual user
quantities. Burnett had bought this heroin from Richard
Harrington and sold it to Davis, who was waiting while it
was being packaged. Davis sold the heroin on September 29
to an undercover officer on the corner of Central Park and
Huron.
The 100 grams of heroin for which the district court held
Burnett accountable involved the same supplier, the same
drug, the same purchasers, and the same continuous period
of time as the conduct of conviction. Burnett admitted on the
stand at trial that he regularly bought heroin from Harring‐
ton and distributed it to persons including Fields and Davis.
Burnett did so from at least early 2009 through his arrest in
October 2009, a period which overlaps with the September 5,
2009 and September 29, 2009 events that resulted in the con‐
victions at issue. He also testified that he bought heroin from
Harrington in July, August, and September 2009 “maybe
once a week, maybe twice.” Burnett said he initially bought
smaller quantities of heroin from Harrington and then
bought 100 grams on one occasion, and he admitted that he
bought it during the course of his ongoing drug business
and bought it with the intent to resell it. Cf. United States v.
Lomax, 712 F.3d 1087, 1089‐90 (7th Cir. 2013) (per curiam)
(including in relevant conduct the amounts of regular drug
Nos. 13‐2882 & 13‐2974 9
sales to customers even where the additional conduct in‐
volved purchases from different suppliers and sold at differ‐
ent locations because the sales were part of a “continuous
pattern of drug trafficking”).
The transactions also involved the same persons. Har‐
rington was involved in the offense of conviction as Bur‐
nett’s supplier, a connection which Burnett admitted when
he acknowledged that he bought the September 29 heroin
from Harrington. Burnett also admitted that Harrington
supplied him with heroin for months, and that he sold hero‐
in to the same people, including Guerra, Davis, and Fields.
In addition, Burnett’s admissions on the stand reflected that
the September 9 events were far from his only interaction
with Fields. Rather, he admitted he had sold to Fields from
the spring to summer of 2009 and that the amounts in‐
creased over time. See United States v. Farmer, 543 F.3d 363,
373 (7th Cir. 2008) (“where the defendant’s convicted offense
was merely the latest drug sale in an unbroken series of
deals regularly made, that is sufficient to find the defend‐
ant’s prior drug transactions were part of the same course of
conduct as the offense of conviction”).
The unbroken period of time from the offense of convic‐
tion and the other counted conduct distinguishes Burnett’s
case from the cases to which he points us. In United States v.
Ortiz, 431 F.3d 1035, 1041 (7th Cir. 2005), for example, the
conspiracy that the government had argued was responsible
for “relevant conduct” had been dismantled ten months be‐
fore the defendant’s conduct that led to his conviction. Simi‐
larly, we concluded in United States v. Johnson, 324 F.3d 875,
10 Nos. 13‐2882 & 13‐2974
879‐80 (7th Cir. 2003), that it was not the same course of con‐
duct where the purported relevant conduct was separated
from the offense conduct by more than a year, involved dif‐
ferent people, and involved different drugs. Here, however,
Burnett’s involvement was continuous. We find no clear er‐
ror in the determination that the 100 grams of heroin Burnett
bought from Harrington is relevant conduct to the offense
conduct.
Finally, Burnett contends that the district court failed to
adequately explain the reason for its conclusion that the 100
grams was relevant conduct. The sentencing transcript re‐
flects that the district court attributed 100 grams to Burnett
based on Burnett’s admission at trial that he had purchased
that amount from Harrington on a single occasion. This is
not a case where the record is devoid of evidentiary support
for the relevant conduct determination. Cf. United States v.
Locke, 643 F.3d 235, 245 (7th Cir. 2011); United States v.
Sumner, 265 F.3d 532, 540–41 (7th Cir. 2001). Nor is it a case
where the district court made no findings at all about the
drug amount for which it was holding the defendant re‐
sponsible and instead only stated an offense level. Cf. United
States v. Garrett, 757 F.3d 560, 572–74 (7th Cir. 2014). While
more explanation could have been helpful, we find this case
similar to the circumstances in Baines. There, we said, “Alt‐
hough the district court did not invoke the terms ‘common
scheme or plan’ or ‘same course of conduct,’ its considera‐
tion of the testimony presented and the government’s argu‐
ments made at sentencing are sufficient to show it made the
relevant factual findings.” 777 F.3d at 965; see also United
Nos. 13‐2882 & 13‐2974 11
States v. Williams, 272 F.3d 845, 852 (7th Cir. 2001). The same
is true here. As in Baines, we find no need to remand for fur‐
ther explanation. See Baines, 777 F.3d at 965.
B. Leader/Organizer Enhancement in Narcotics Case
Burnett also appeals the district court’s decision to im‐
pose a two‐level enhancement after it found that Burnett act‐
ed as a leader or organizer in the drug case. We review the
district court’s imposition of an organizer or leader en‐
hancement for clear error. United States v. Purham, 754 F.3d
411, 415 (7th Cir. 2014).
As with the drug quantity, both the PSR and the gov‐
ernment had sought more than what the district court as‐
sessed. The PSR recommended that Burnett receive a four‐
level enhancement for leading and organizing an extensive
drug enterprise, and the government requested a four‐level
enhancement as well. A four‐level enhancement is proper
under the guidelines where the defendant was “an organizer
or leader of a criminal activity that involved five or more
participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a).
The district court, however, declined to assess a four‐
level enhancement and instead imposed a two‐level en‐
hancement. The guidelines provide that a two‐level en‐
hancement is appropriate where “the defendant was an or‐
ganizer, leader, manager, or supervisor in any criminal ac‐
tivity other than described in (a) or (b).” U.S.S.G. § 3B1.1(c).
(Part (b), which is not at issue here, provides for a three‐level
enhancement where the defendant “was a manager or su‐
pervisor (but not an organizer or leader) and the criminal
12 Nos. 13‐2882 & 13‐2974
activity involved five or more participants or was otherwise
extensive.” U.S.S.G. § 3B1.1(b)).
There was no clear error. A videotape played at trial and
that is part of the record on appeal shows Burnett and Guer‐
ra mixing and packaging the heroin that would be sold in
the September 29, 2009 transaction. Burnett can be heard on
the video directing Guerra regarding what to do and how to
package the heroin. Although Burnett argues that the video
only shows Guerra packaging heroin for himself (Guerra),
the district court did not commit clear error when it re‐
viewed the videotape, considered Burnett’s arguments, and
concluded that Burnett was directing Guerra. A February 4,
2009 videotape further supports the district court’s finding
that Burnett acted as an organizer or leader over Guerra.
There, Harrington and Burnett discuss a proposal for Har‐
rington to give Burnett some free drugs in return for Burnett
bringing Guerra to Harrington to test heroin. There was no
clear error in the imposition of the enhancement.
C. Vulnerable Victim and Abuse of Trust Enhance‐
ments in Fraud Case
Finally, Burnett argues that the imposition of both vul‐
nerable victim and abuse of trust enhancements in his fraud
case was wrong because, he maintains, the application of
both enhancements in his case constituted impermissible
double counting. We review a district court’s application of
the guidelines de novo and its factual findings for clear er‐
ror. United States v. Jumah, 599 F.3d 799, 811 (7th Cir. 2010).
Nos. 13‐2882 & 13‐2974 13
The guidelines provide for a two‐level increase when a
defendant “knew or should have known that a victim of the
offense was a vulnerable victim.” U.S.S.G. § 3A1.1(b)(1). The
commentary to this provision states that a “vulnerable vic‐
tim” is one “who is unusually vulnerable due to age, physi‐
cal or mental condition, or who is otherwise particularly
susceptible to the criminal conduct.” U.S.S.G. § 3A1.1(b)(1)
cmt. n.2. Burnett does not contest that his sister’s minor chil‐
dren were unusually vulnerable due to their age. The guide‐
lines also provide for a two‐level enhancement if the de‐
fendant “abused a position of public or private trust, or used
a special skill, in a manner that significantly facilitated the
commission or concealment of the offense.” U.S.S.G. § 3B1.3.
Burnett also does not contest that he abused a position of
trust in a way that significantly helped him commit fraud.
Although Burnett does not dispute that he was eligible
for both enhancements individually, he maintains that im‐
posing both on him in this case was wrong. In support, he
points to Application Note 2 to U.S.S.G. § 3A1.1(b)(1), the
vulnerable victim enhancement, which provides that the en‐
hancement shall not apply “if the factor that makes the per‐
son a vulnerable victim is incorporated in the offense guide‐
line. For example, if the offense guideline provides an en‐
hancement for the age of the victim, this subsection would
not be applied unless the victim was unusually vulnerable
for reasons unrelated to age.” From this Burnett argues that
both the vulnerable victim and abuse of trust enhancements
should not have been applied to him because, he maintains,
both are predicated upon the same factor (age) that makes
14 Nos. 13‐2882 & 13‐2974
the victims vulnerable. Therefore, he argues, he was wrongly
punished twice for the same conduct.
We find no error in the imposition of both enhancements.
We have ruled that “double counting,” in the sense that the
same conduct is used more than once to increase a defend‐
ant’s guideline range, is generally permissible unless the text
of the guidelines prohibits it. See United States v. Vizcarra, 668
F.3d 516, 519–20 (7th Cir. 2012). The concept of double
counting is a matter of guidelines interpretation, and so tra‐
ditional statutory construction principles apply. Id. at 519.
Here, Application Note 2 to U.S.S.G. § 3A1.1(b)(1) only pro‐
hibits applying a vulnerable victim enhancement where the
“offense guideline” incorporates the vulnerability. So, for
example, when the offense was enticement of a minor, the
Ninth Circuit ruled that the vulnerable victim enhancement
would only apply if the minor was unusually vulnerable
compared to other minors. United States v. Nielson, 694 F.3d
1032, 1035 (9th Cir. 2012); see also United States v. Median‐
Argueta, 454 F.3d 479, 482–83 (5th Cir. 2006) (ruling that
where the crime is harboring illegal aliens, to receive the
vulnerable victim enhancement the victims must be unusu‐
ally vulnerable as compared to other illegal aliens). Here, the
“offense guideline” is the fraud guideline, and it does not
incorporate age into its guideline. Application Note 2 there‐
fore does not help Burnett. He would like the principle of
Application Note 2 to apply to other enhancements, not just to
other offense guidelines, but that is not what the text of the
note provides.
Nos. 13‐2882 & 13‐2974 15
Burnett’s argument fails for a more fundamental reason
as well. The district court recognized that while there was
some overlap in the facts that formed the bases of both en‐
hancements, it reasoned, properly, that the two enhance‐
ments punished different aspects of Burnett’s conduct. The
district court applied the vulnerable victim enhancement be‐
cause the victims were minors. It then applied the abuse of
trust enhancement not only for Burnett’s abuse of the trust
placed in him as the minors’ guardian and family member,
but also for abusing the trust that the probate court placed in
him when that court appointed him to be the minors’ guard‐
ian. The two enhancements here punished different conduct,
and there was no impermissible double counting.
III. CONCLUSION
The judgments of the district court are AFFIRMED.