Judges: Hamilton
Filed: Nov. 20, 2015
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 14-3135 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JASON AUSTIN, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No.1:10-cr-00971 — Joan Humphrey Lefkow, Judge. _ ARGUED OCTOBER 1, 2015 — DECIDED NOVEMBER 20, 2015 Before POSNER, MANION, and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge. Jason Austin was convicted of conspiracy to distribute he
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 14-3135 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JASON AUSTIN, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No.1:10-cr-00971 — Joan Humphrey Lefkow, Judge. _ ARGUED OCTOBER 1, 2015 — DECIDED NOVEMBER 20, 2015 Before POSNER, MANION, and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge. Jason Austin was convicted of conspiracy to distribute her..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐3135
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JASON AUSTIN,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No.1:10‐cr‐00971 — Joan Humphrey Lefkow, Judge.
____________________
ARGUED OCTOBER 1, 2015 — DECIDED NOVEMBER 20, 2015
Before POSNER, MANION, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Jason Austin was convicted of
conspiracy to distribute heroin. He appeals only his sen‐
tence, challenging the quantity of drugs attributable to him
and the court’s finding that he played a leading role in the
organization. In particular, he contends that a key witness
has been so thoroughly discredited by alleged misstatements
and contradictions that it was error for the court to credit his
testimony at least in part. We disagree. We also reject Aus‐
tin’s contention that Alleyne v. United States, 133 S. Ct. 2151
2 No. 14‐3135
(2013), prohibited the judge from basing the Sentencing
Guideline calculations on a higher drug quantity than that
for which Austin was convicted. We therefore affirm Austin’s
sentence.
I. Factual and Procedural Background
In 2008, defendant Austin was the leader of a street‐level,
retail drug‐trafficking operation. Working primarily from his
position at the intersection of Kedzie Avenue and Ohio Street
(“Kedzie–Ohio”) in Chicago, Austin received heroin and
crack cocaine from suppliers and sold the drugs to users,
with the help of many others. At the ground level of the op‐
eration were “pack workers,” who sold the drugs directly to
users seven days a week for over twelve hours a day. Money
was then passed up to “managers” or “bundle runners,”
who in exchange distributed drugs to the pack workers for
sales. Drug proceeds were then finally passed from the man‐
agers up to Austin as the leader of the Kedzie–Ohio opera‐
tion.
A double murder early in the morning on August 13,
2008 figures prominently in Austin’s arguments on appeal.
Off‐duty Chicago Police Detective Robert Soto and Kathryn
Romberg were shot and killed while sitting in Soto’s car on
the west side of Chicago. The investigation into their mur‐
ders focused on Austin and his operation. A number of wit‐
nesses suggested that Austin was responsible for the mur‐
ders. He was arrested a few days after the murders, but the
case quickly unraveled. Witnesses began to recant or contra‐
dict their previous statements. The state blamed the changes
on threats and witness tampering. Austin attributes the
changes to statements that had been coerced by the police.
No. 14‐3135 3
Whatever the reasons, within a month the murder case
against Austin was dismissed.
The Federal Bureau of Investigation and Chicago Police
Department then began what became a two‐year investiga‐
tion into Austin and the Kedzie–Ohio operation. The inves‐
tigation included numerous undercover drug purchases, ex‐
tensive surveillance, and interviews with informants and co‐
conspirators. At the end of the investigation in November
2010, over 100 people were arrested. Austin was indicted on
federal charges relating to his role in the drug‐trafficking
conspiracy, particularly for his participation from January
2008 through June 2010. A jury found Austin guilty of five
counts of drug distribution and one count of conspiracy to
distribute, but only for an amount of less than 100 grams of
heroin.
The sentencing hearing took several days. The testimony
ranged from the details of the drug‐trafficking operation to
Austin’s criminal background and the murders of Detective
Soto and Ms. Romberg. A key government witness
was Jeffrey Scott, who worked from 2008 to 2009 as a man‐
ager and bundle runner for the Kedzie–Ohio operation and
reported to Austin.
Scott’s testimony at trial and during sentencing provided
a detailed picture of the Kedzie–Ohio operation. Particularly
critical was Scott’s testimony at Austin’s trial regarding the
total drug sales of the conspiracy. The district judge found
this testimony credible, and it informed much of Austin’s fi‐
nal sentence. Scott testified that the organization’s sales rose
from $800 a day in April 2008 to $4000 a day in May, and
then higher still in June, July, and August. During that latter
period, the Kedzie–Ohio operation experienced a spike in
4 No. 14‐3135
sales to $8000 a day after a man overdosed near the sales lo‐
cation. (Addicts apparently reasoned that heroin strong
enough to cause an overdose was a particularly good prod‐
uct.) After Austin’s arrest on August 16, 2008, others took
over the operation temporarily and sales tapered off to ap‐
proximately $1600 a day. No later than May 2009, though,
Austin resumed leadership of the Kedzie–Ohio operation.
Scott also provided testimony as to Austin’s alleged role
in the murders of Detective Soto and Ms. Romberg. Austin
challenges Scott’s credibility as a witness in large part be‐
cause of this testimony, so it bears review even though it did
not directly affect the sentence in this drug case. Scott testi‐
fied that in 2008 a disagreement arose between Austin and a
rival dealer known as “Quick,” who had gone so far as to
shoot at Austin on one occasion. Austin then asked Scott to
bring him a gun he had previously given Scott for safekeep‐
ing. In the early morning of the Soto and Romberg murders,
Scott was awoken by his brother Terrance. Jittery and nerv‐
ous, Terrance told Jeffrey Scott that Austin had just shot
Quick and his girlfriend. Later that day, Scott claimed, Aus‐
tin confided that he had done something terrible: the people
he had thought were Quick and his girlfriend turned out to
be “a cop and a lady.” Scott understood Austin to be admit‐
ting to the murders. Austin insisted that Scott help keep the
incident quiet. Police quickly tracked Scott down, however,
and interviewed him at the police station.
Scott did not initially share with police what his brother
had told him. But after watching a video of his brother con‐
fess to his role in the shootings, Scott told the police what his
brother had told him the night of the murders. A few days
later, after Austin’s arrest, Austin’s brother Charles ap‐
No. 14‐3135 5
proached Scott, angry that Scott had implicated Austin in the
murders. Charles tried to choke Scott, leading to a brief scuf‐
fle. Charles left Scott with instructions to fix the situation. He
continued to threaten Scott in the days to come. Finally,
Charles ordered Scott to recant his statement to the police
and to claim that his previous statement implicating Austin
was made as a result of beatings by police. Scott claimed that
he worked with Austin’s lawyer to prepare a statement—at
points being instructed to “exaggerate it and … make it
seem[ ] like it was torture.” Scott signed the statement,
which he later claimed he knew to be false.
The district judge’s explanation of Austin’s sentence took
into account the extensive testimony available, including
Scott’s conflicting statements, to determine Austin’s proper
offense level. Judge Lefkow’s written decision contained a
detailed explanation for her estimate of the drug quantity
sold by Austin’s operation. From the beginning of April to
mid‐May 2008, the judge credited Scott’s trial testimony of
$800 in sales per day for the organization, yielding 0.7 kilo‐
grams of heroin sold for that period.1 For mid‐May to June
2008, again crediting Scott’s testimony, the judge estimated
that sales were approximately $4000 per day, yielding 3.6
kilograms for that period. For July through the August mur‐
ders, daily sales were estimated to have had a peak of $8000
and a conservative $5000 daily average, as supported by
Scott and testimony by other conspirators, Kevin Terry, Jr.
and Troy Davis. This yielded 4.5 kilograms for that period.
1 The transcript reads that the judge found Austin responsible for “.7
grams for this time period,” but the explanation of how this amount was
reached and the judge’s ultimate quantity finding show that she meant
0.7 kilograms.
6 No. 14‐3135
Even though there was evidence that Austin may have
continued to sell drugs from August 2008 to May 2009, the
judge, relying in part on Scott’s testimony, conservatively
held Austin responsible for no heroin sales during this peri‐
od. According to Scott, the arrests in August 2008 led to low‐
er sales under new manager Kenneth Terry. After Terry was
arrested later that year on heroin charges, the Kedzie–Ohio
operation moved in December 2008 or January 2009 to a new
location under the management of Kevin Terry, Jr. In May
2009, Scott testified, Jason Austin decided to move the opera‐
tion back to Kedzie and Ohio. Adopting well‐known market‐
ing tactics from legitimate businesses, Austin attracted cus‐
tomers during the move by offering a “pass‐out,” giving free
heroin to buyers to promote the operation’s return. Video
recordings showed that Austin may have been involved with
drug sales before he resumed leadership in May 2009. Given
the testimony of Austin and Scott to the contrary, however,
the judge took the conservative approach of attributing no
drug quantity to Austin for those months.
For the remainder of 2009 until the supply ran dry in Au‐
gust, the judge used Scott’s testimony in conjunction with
other government evidence to estimate 1.6 kilograms sold.
Based on these conservative estimates, the judge found that
Austin was responsible for 10.7 kilograms. The sum of 0.7 +
3.6 + 4.5 + 0 + 1.6 is 10.4 kilograms, not 10.7, but this minor
discrepancy does not affect the court’s finding that Austin
was responsible for over 10 kilograms of heroin and there‐
fore subject to a base offense level of 36 under the 2008 Sen‐
tencing Guidelines.
Other findings raised Austin’s guideline offense level.
The court found: that Austin had possessed a firearm in fur‐
No. 14‐3135 7
therance of the conspiracy, adding two levels; that he was a
leader of the conspiracy, adding four more; and that minors
had been used in furtherance of the drug conspiracy, adding
two more levels, to 44, meaning that the Guidelines’ highest
level of 43 applied. Due to two previous convictions, one for
delivery of a controlled substance and one for aggravated
battery, Austin was considered a career offender with a crim‐
inal history of Category VI. Offense level 43 and criminal
history Category VI is as high as the Sentencing Guidelines
go, recommending a sentence of life in prison, though none
of the offenses of conviction authorized a life sentence. In the
end, the district court sentenced Austin to a term of thirty‐
five years in prison, including thirty years for the conspiracy
conviction, followed by ten years of supervised release.
II. Analysis
On appeal Austin argues that his sentence was based on
two errors in calculating the guideline offense level: drug
quantity and aggravating role. Austin argues there were two
errors in calculating the drug quantity. First, he insists that
the district judge incorrectly determined the drug quantity
attributable to him by erroneously relying on the testimony
of Jeffrey Scott. Second, Austin argues that the judge could
not lawfully have found him responsible for a higher drug
quantity than the quantity for which he was convicted. Fi‐
nally, Austin argues that in determining his role as a leader
or organizer of the conspiracy, the court erred again by rely‐
ing on Scott’s testimony. We find no error.
A. Drug Quantity
To apply the Sentencing Guidelines, the district court de‐
termined that Austin was responsible for more than 10 kilo‐
8 No. 14‐3135
grams of heroin. See U.S.S.G. § 2D1.1(c). A district court’s
calculation of drug quantity is a factual determination that
we review only for clear error. United States v. Clark, 538 F.3d
803, 812 (7th Cir. 2008). At sentencing, the government must
prove by a preponderance of the evidence the quantity of
drugs attributable to a defendant. United States v. Longstreet,
669 F.3d 834, 836 (7th Cir. 2012), citing United States v. Krasin‐
ski, 545 F.3d 546, 551 (7th Cir. 2008). In a drug conspiracy, a
defendant is responsible under U.S.S.G. § 1B1.3 for “all rea‐
sonably foreseeable acts and omissions of others in further‐
ance of the jointly undertaken criminal activity.” United
States v. Soto‐Piedra, 525 F.3d 527, 531 (7th Cir. 2008). Accord‐
ingly, each conspirator is responsible for both the drug quan‐
tities directly attributable to him and amounts involved in
reasonably foreseeable dealings by co‐conspirators. United
States v. Turner, 604 F.3d 381, 385 (7th Cir. 2010), quoting
United States v. Acosta, 534 F.3d 574, 585 (7th Cir. 2008).
A district court may base its sentence only on infor‐
mation with “sufficient indicia of reliability to support its
probable accuracy.” U.S.S.G. § 6A1.3(a). But as we have often
said, determining drug quantities attributable to defendants
is “not an exact science.” United States v. Sewell, 780 F.3d 839,
849 (7th Cir. 2015). A district court may make reasonable es‐
timates of drug quantity based on evidence in the record. Id.,
citing Acosta, 534 F.3d at 582.
1. Scott’s Credibility
Relying upon co‐conspirator testimony, video records,
and evidence of Austin’s violent behavior toward rival drug
sellers, the district court determined that Austin controlled
the drug sales occurring at Kedzie and Ohio for much of
2008 and 2009. Austin therefore knew that drug sales were
No. 14‐3135 9
occurring at that site in furtherance of the conspiracy, mak‐
ing him responsible for the quantity of all drugs sold by his
co‐conspirators during that time. The district judge said that
determining “an exact number is impossible,” but she con‐
cluded that Austin was responsible for more than ten kilo‐
grams of heroin sold at the location during his time in con‐
trol. In doing so, the judge drew upon evidence of controlled
buys, seizures, and co‐conspirator testimony and admis‐
sions. On appeal, Austin challenges whether the testimony
of one of these co‐conspirators—Jeffrey Scott—was credible.
Austin argues that Scott is simply so untrustworthy that the
judge could not reasonably have credited his testimony.
“Determining witness credibility is especially within the
province of the district court and ‘can virtually never be
clear error.’” Longstreet, 669 F.3d at 837, quoting United States
v. Clark, 538 F.3d at 813; see also United States v. Johnson, 342
F.3d 731, 735 (7th Cir. 2003) (granting “exceptional deference
to a sentencing judge’s credibility determinations”). The dis‐
trict court is best situated to make credibility determinations
in light of the totality of the evidence, including the witness’s
statements and behavior, other witness statements, and fur‐
ther corroborating or contrary evidence. See United States v.
Contreras, 249 F.3d 595, 602 (7th Cir. 2001).
A district court may rely upon ambiguous testimony to
estimate drug quantity. See, e.g., United States v. Cross, 430
F.3d 406, 410 (7th Cir. 2005). A district court may even con‐
sider testimony that is “totally uncorroborated and comes
from an admitted liar, convicted felon, or large scale drug‐
dealing, paid government informant,” United States v. Clark,
538 F.3d at 813, quoting United States v. White, 360 F.3d 718,
10 No. 14‐3135
720 (7th Cir. 2004), as long as the court evaluates the evi‐
dence carefully.
Austin first argues that Scott’s testimony as to the drug
quantity was so inconsistent and so thoroughly unreliable
that crediting it was clear error despite the deferential appel‐
late review of credibility findings. His argument is based on
Scott’s trial testimony about dividing the money from heroin
sales. Each bundle of heroin sold at retail brought in $960.
Austin characterizes Scott’s testimony as follows: the suppli‐
er received $700 per bundle (leaving $260), then Austin re‐
ceived one out of every three bundles as payment, for an av‐
erage of $320 per bundle (leaving a shortage of $60), then the
storehouse received an average of $192 per bundle (raising
the shortage to $252), then the runners and pack workers re‐
ceived $100 and $160 per bundle, respectively (leaving a
shortfall of $512 per bundle). Thus, Austin contends, because
Scott’s testimony about the money was mathematically im‐
possible, the judge clearly erred by relying on his testimony
to estimate sales volume.
The accounting in Scott’s trial testimony was in fact quite
possible. Austin mischaracterizes Scott’s statements. Accord‐
ing to Scott’s testimony, every bundle of heroin contained 8
packs, and each pack contained 12 individual bags of heroin.
A total bundle would return $960 in proceeds. Pack workers
would keep $20 per pack sold, or $160 per bundle, and pass
the “rest of the money”—the remaining $800—to bundle
runners like Jeffrey Scott. Scott testified that he would then
receive $100 for every bundle sold for his work as a bundle
runner, leaving $700 in remaining proceeds to distribute. Fi‐
nally, Scott would turn over the remainder of the proceeds to
either Austin, as the leader of the operation, or Kenny Bell,
No. 14‐3135 11
the supplier. Bell would be paid twice as much as Austin.
Bell would keep the proceeds from ten bundles ($7000), and
then Austin would keep the proceeds from the next five
bundles ($3500), and so on. Averaged per bundle then, pack
workers would receive $160, bundle runners $100, Bell about
$467 per bundle ($7000 / 15), and Austin about $233 per
bundle ($3500 / 15), totaling $960.
Austin’s interpretation of Scott’s testimony arrives at an
impossible result by adopting the less probable version of
the order of payment. Under his understanding, Austin
would have been paid his one‐third share before the pack
workers or bundle runners were paid. If Austin had really
taken the entire share one third of the time, there would
have been no money left for other workers. Scott’s testimony,
however, also suggests a more reasonable interpretation:
that Austin and Bell were paid after the lower‐level members
had already been paid, making the payment division math‐
ematically possible. The judge did not clearly err by deem‐
ing credible Scott’s testimony on these points.
Moreover, even if Austin were correct that Scott’s testi‐
mony on how profits were divided was impossible, it was
not clear error to find Scott credible on his testimony on
overall sales figures. In determining the reliability of Scott’s
testimony concerning gross sales volume, and therefore drug
quantity, the judge made clear that she found him “credible
in this respect.” She went on to note that she would specifi‐
cally address Jeffrey Scott’s credibility further and later com‐
pared Scott’s testimony to other witness testimony to test its
reliability. The judge made a narrow credibility determina‐
tion on the question of sales figures. Her quantity estimates
were quite conservative and not clearly erroneous.
12 No. 14‐3135
Austin also challenges Scott’s drug quantity testimony by
pointing to inconsistencies in his statements regarding the
murders of Detective Soto and Ms. Romberg. Austin focuses
on Scott’s testimony about the make and color of the vehicle
driven by the shooter. Scott’s account was different from his
brother’s, which was different in turn from a dying declara‐
tion by Detective Soto. Because all of these accounts of the
vehicle cannot be true, and because Scott’s testimony regard‐
ing a number of other issues differed from that of other wit‐
nesses, Austin concludes that Scott’s testimony is so unrelia‐
ble that it was clear error to credit his testimony on drug
quantities.
To reiterate, though, the law gives the sentencing judge
the responsibility to determine the credibility of a testifying
witness on a particular issue, even in light of previous mis‐
conduct or misstatements. It is not unusual for witnesses in
drug cases to have all sorts of credibility problems. And any
witness may have been unable earlier to remember details
accurately, had reasons to bias his testimony, or just outright
lied, but his testimony on a separate drug quantity issue
may still be reasonably deemed credible. See, e.g., United
States v. Clark, 538 F.3d at 812–13. The judge carefully consid‐
ered Scott’s credibility and limited her credibility determina‐
tion to the drug quantity issue, as was proper. Again, we
find no clear error. Also, the judge’s guideline calculations
did not depend at all on whether Austin played any role in
the murders of Detective Soto and Romberg. Austin earned
the highest level of the Guidelines based solely on the drug
conspiracy and his criminal history.2
2 Austin briefly refers to Scott’s testimony on the use of weapons and
minors in the drug conspiracy. It is unclear from Austin’s brief if this is
No. 14‐3135 13
2. Acquitted Conduct
The fact that the jury found Austin guilty of conspiring to
distribute no more than 100 grams of heroin did not bar the
court from finding, for guideline purposes, that Austin was
responsible for more than 10 kilograms of heroin. It is well
established that a sentencing court may treat conduct for
which the defendant has been acquitted as relevant conduct
for guideline purposes. United States v. Watts, 519 U.S. 148,
154 (1997); United States v. Gonzalez, 765 F.3d 732, 738 (7th
Cir. 2014). An acquittal means that a charge has not been
proved beyond a reasonable doubt, but a sentencing court
may rely on facts established by a preponderance of the evi‐
dence. Gonzalez, 765 F.3d at 738, quoting United States v.
Horne, 474 F.3d 1004, 1006 (7th Cir. 2007). For purposes of
calculating drug quantity, the offense level is determined by
the amount of drugs attributable to the defendant during his
entire course of relevant conduct, “not simply the amount
associated with the particular offenses of conviction.” United
States v. Redmond, 667 F.3d 863, 875 (7th Cir. 2012).
The Supreme Court’s decision in Alleyne v. United States,
570 U.S. —, 133 S. Ct. 2151 (2013), did not change these prin‐
ciples of guideline sentencing. Alleyne held that facts that in‐
crease mandatory minimum sentences are elements of a
being used to show Scott’s unreliability or if Austin is actually challeng‐
ing the weapons and minors enhancements in the guideline calculation.
If the former was intended, we reject this argument for the reasons dis‐
cussed above. If the latter was intended, Austin did not sufficiently de‐
velop these arguments. “As we have said numerous times, undeveloped
arguments are deemed waived on appeal.” United States v. Foster, 652
F.3d 776, 793 (7th Cir. 2011), quoting United States v. Collins, 604 F.3d 481,
487 n.2 (7th Cir. 2010).
14 No. 14‐3135
crime and therefore must be admitted or found beyond a
reasonable doubt by a jury. Id. at 2158. But the Court’s opin‐
ion was, by its own terms, narrow. Alleyne continued to en‐
dorse broad sentencing discretion, noting that such discre‐
tion is not unlawful even if its exercise depends on facts
found by the judge. Id. at 2163. Accordingly, while statutory
drug quantity issues affecting maximum and minimum sen‐
tences must be submitted to a jury, the scope of the narcotics
conspiracy and drug responsibility under the advisory Sen‐
tencing Guidelines is subject to judicial fact‐finding during
sentencing. In the wake of Alleyne, we have repeatedly con‐
sidered the type of challenge Austin is making here, and we
have repeatedly held that Alleyne does not apply to such
challenges to drug quantity determinations under the Sen‐
tencing Guidelines. See, e.g., United States v. Garrett, 757 F.3d
560, 574–75 (7th Cir. 2014); United States v. Hernandez, 731
F.3d 666, 672 (7th Cir. 2013).
Austin finally argues that the district court erred by step‐
ping outside the bounds of U.S.S.G. § 1B1.3, which instructs
sentencing courts to consider conduct that was part of the
offense of conviction or the same course of conduct or com‐
mon scheme or plan. Because Austin’s conviction was for
conspiracy to distribute less than 100 grams of heroin, Aus‐
tin contends, it is impossible for him to be sentenced on the
basis of responsibility for more than 100 grams. Sections
1B1.3 and 3D1.2 have been interpreted together, however, to
provide “that a district court must increase a defendant’s
base offense level to account for ‘relevant conduct,’ which
includes drugs from any acts that ‘were part of the same
course of conduct or common scheme or plan’ as the con‐
victed offense, regardless of whether the defendant was
charged with or convicted of carrying out those acts.” United
No. 14‐3135 15
States v. Duarte, 950 F.2d 1255, 1263 (7th Cir. 1991) (emphasis
added), quoting United States v. Franklin, 902 F.2d 501, 504
(7th Cir. 1990). The judge did not err by determining for
purposes of the Guidelines that Austin was responsible for
more than 10 kilograms of heroin.
B. Leader or Organizer of Conspiracy
Finally, the district court also did not err in finding that
Austin had earned a four‐level aggravating role enhance‐
ment under U.S.S.G. § 3B1.1(a). According to Austin, the dis‐
trict court “cherry‐picked” among unreliable and inaccurate
testimony about his role in the conspiracy. This objection
was not raised during sentencing, however, and the district
judge reasonably described Austin’s leadership role as “un‐
disputed.” We therefore review this sentencing finding only
for plain error, which is a demanding standard. United States
v. Butler, 777 F.3d 382, 387–88 (7th Cir. 2015) (failure to object
during sentencing to guideline calculation forfeited issue
and warranted plain‐error review). To demonstrate plain er‐
ror, the defendant must show: “(1) an error or defect that (2)
is clear or obvious and (3) affects the defendant’s substantial
rights.” Id. Even then, the appellate court has discretion to
correct the error if it seriously affected the fairness, integrity,
or public reputation of the judicial proceedings, but it need
not do so. Id.
A defendant is subject to a four‐level aggravating role
enhancement where he was the organizer or leader of a
criminal activity that involved five or more participants or
was otherwise extensive. U.S.S.G. § 3B1.1(a). In determining
a defendant’s role in a criminal organization, the district
court should consider a number of factors, including “the
nature of the defendant’s participation in the offense, his
16 No. 14‐3135
claimed right to a larger share of the fruits of the crime, his
degree of participation in planning or organizing the offense,
and his degree of control and authority exercised over other
participants.” United States v. Reynolds, 714 F.3d 1039, 1043
(7th Cir. 2013).
There is no dispute that the Kedzie–Ohio organization
involved more than five persons. And there is ample evi‐
dence that Austin was the leader of the organization under
§ 3B1.1(a). Numerous co‐conspirators identified Austin in
their plea agreements, statements to police, and testimony as
maintaining control of the organization. The judge specifical‐
ly determined this testimony to be credible. Further, Austin
received a larger share of the drug profits than any other
member of the organization. He used threats of violence
against competitors and rivals in the drug‐trafficking busi‐
ness to defend the operation. He had decision‐making au‐
thority over the organization, determining the operation’s
direction on strategy and marketing. In the face of such sub‐
stantial evidence, Austin’s protests that Jeffrey Scott’s testi‐
mony is unreliable fall far short of showing plain error.
In the absence of some compelling evidence showing de‐
cisively that the aggravating role enhancement was wrong,
this plain‐error challenge is particularly weak. Without an
objection from Austin on the issue, the government had no
reason to waste the court’s time building an even more ex‐
tensive record on the issue. A defendant cannot show plain
error by merely pointing to possible gaps in evidence on an
issue that was not disputed in the trial court.
For the foregoing reasons, Austin’s sentence is
AFFIRMED.