JOSEPH F. BATAILLON, Senior District Judge.
This Sentencing Memorandum supplements findings made on the record at defendant's sentencing hearing on July 2, 2018. For the reasons set forth below, the court finds the defendant's objections to the presentence investigation report,
The defendant was charged, along with others, in a four count Second Superseding Indictment ("SSI"). He was charged in Count 1 with involvement in racketeering in violation of 18 U.S.C. § 1962(d) ("RICO"). He was charged with five overt acts in furtherance of the racketeering enterprise in Count 1: using a firearm to shoot at victim #1 on or about September 25, 2008 (¶ 14); selling and distributing crack cocaine in Omaha from August 2011 to May 2013 (¶ 15); possessing with intent to distribute cocaine on or about November 25, 2011 (¶ 16); and arguing with victim #2 and shooting at a residence occupied by victim #2 on or about September 6, 2012 (¶ ¶ 20-21). In Count 2, the defendant was charged with attempted murder of victim #2 in aid of racketeering, in violation of Nebraska state statue §§ 28-201, 28-302, and 28-303, and in violation of 18 U.S.C. § 1959(a)(5) and section 2. In Count 3, Haynie was charged with attempted assault with a firearm, in aid of racketeering, in violation of Nebraska state statue §§ 28-201 and 28-309, in violation of 18 U.S.C. § 1959(a)(6) and section 2 on or about September 6, 2012. In Count 4, he was charged with discharging a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and 924(c)(1)(A)(iii), on or about September 6, 2012.
The action was tried to a jury and the jury found Haynie guilty of racketeering (Count 1) but acquitted him of the remaining counts.
In the PSR, the Probation Office identified U.S.S.G. § 2E1.1 as the guideline applicable to a racketeering offense under 18 U.S.C. § 1962.
The Probation Office found four overt acts for purposes of grouping conduct connected to the underlying racketeering activity.
The probation office next determined the defendant's criminal history category was V, based on the assessment of 9 criminal history points for convictions for drug possession, misdemeanor assault, no operator's license, driving under suspension, reckless driving, and obstruction of justice, and 2 criminal history points for committing the offense while under a criminal justice sentence. Id. at 14-20. At base offense level 35 and criminal history category V, Haynie's Guidelines sentencing range would have been 262 to 327 months, but since that range exceeds the statutory maximum for the offense of conviction, the statutory maximum of 240 months is the Guidelines sentence. Id. at 24.
The defendant objected to the PSR,
Haynie's argument is generally based on the contention that conduct for which he was acquitted should not be considered in determining his Guidelines sentence. Although he acknowledges that uncharged or acquitted conduct could be considered at sentencing, he argues that the government should not now be able to use testimony and evidence that was problematic at trial to levy a more severe sentence when the government was unable to prove the facts at trial.
In the PSR, based primarily on the prosecutor's version of events, the Probation Office outlines as overt acts incidents involving Richard Johnson and Michael Liggins. Haynie objects to those portions of the PSR.
At the sentencing hearing, the government moved for judicial notice of the trial and offered evidence of other criminal acts. Specifically, it offered, and the court received, the grand jury testimony of Vernon Elmore; the proffer interview of Ron Newman; the report of a shooting incident on April 27, 2005; the proffer interviews of Shannon Reed and Otis Simmons; and a police report of law enforcement observation of Haynie in possession of firearm on September 15, 2009. See
Although a sentencing court must give respectful consideration to the Sentencing
Guidelines, the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), permits the court to tailor the sentence in light of other statutory concerns as well. Pepper v. United States, 131 S.Ct. 1229, 1241 (2011). The district court follows the sentencing framework set forth by the Supreme Court in Gall v. United States, 552 U.S. 38, 49-51 (2007). See United States v. Washington, 515 F.3d 861, 865-66 (8th Cir. 2008) ("We urge district courts to continue to engage in the three-step process of first ascertaining the applicable Guidelines range, then considering any permissible departures within the Guidelines' structure, and finally, deciding whether a non-Guidelines sentence would be more appropriate under the circumstances pursuant to § 3553(a)."). The first step is to calculate the defendant's advisory Guidelines sentencing range, which provides "the starting point and the initial benchmark" for any sentence. Gall, 552 U.S. at 49. Next, the court determines whether any traditional Guidelines departures are warranted. Washington, 515 F.3d at 865. Finally, the court considers whether to vary from the advisory Guidelines range based on the factors set forth in 18 U.S.C. § 3553(a).
The court is not to presume that the Guidelines range is reasonable, but is required to make an individualized assessment based on the facts of each case under 18 U.S.C. § 3553(a). Gall, 552 U.S. at 50. Ultimately, the court must impose a sentence "in line with § 3553(a)'s overarching instruction to `impose a sentence sufficient, but not greater than necessary,' to accomplish the sentencing goals advanced in § 3553(a)(2)." Kimbrough v. United States, 552 U.S. 85, 89 (2007).
The Sentencing Guidelines lay out a method for determining a numerical offense level for federal crimes, which, when combined with a defendant's criminal history score, yield a sentencing range. United States v. Gjeli, 867 F.3d 418, 424 (3d Cir. 2017), as amended (Aug. 23, 2017), cert. denied sub nom. Mustafaraj v. United States, 138 S.Ct. 697 (2018), and cert. denied, 138 S.Ct. 700 (2018). The Statutory Index, Appendix A of the Sentencing Guidelines, states that for 18 U.S.C. § 1962 convictions, the corresponding guideline is U.S.S.G. § 2E1.1. U.S.S.G. App A. Section 2E1.1 of the Guidelines provides that the base offense level for racketeering offenses is the greater of either level 19 or the level applicable to the underlying racketeering activity, which, if it involved more than one underlying offense, as it did here, is "treat[ed] [as if] each underlying offense [is] contained in a separate count of conviction." U.S.S.G. § 2E1.1, cmt. n. 1.
In a complex RICO conspiracy where the jury was not asked to find that the defendant committed specific predicate acts, determining the proper "underlying racketeering activity" for guidelines purposes is not simple. See United States v. Smith, No. 4:11 CR 246 CDP, 2013 WL 1667320, at *3 (E.D. Mo. Apr. 17, 2013). To calculate the level applicable to the underlying racketeering activity, the court "must launch on a journey through the Guidelines' labyrinthine provisions for grouping offenses." Gjeli, 867 F.3d at 424. The Third Circuit Court of Appeals explains:
Gjeli, 867 F.3d at 425. The district court may consider uncharged, dismissed, and even acquitted conduct at sentencing. United States v. Chambers, 878 F.3d 616, 622 (8th Cir. 2017).
In making its initial Guidelines calculation, the court generally accepts the presentence investigation report, but, for the reasons set out below, finds the defendants objections to the PSR's Guidelines calculations should be sustained in part. Most importantly, the court finds that the defendant's objection to the PSR determination of base offense level 35 should be sustained. The issue is whether the government has proved the real crux of the guideline calculation—what is the racketeering conduct underlying the defendant's conviction—by a preponderance of evidence.
The court finds the government has not shown by a preponderance of evidence that the defendant committed racketeering acts of attempted murder, so as to result in a Guidelines base offense level of 33, adjusted after grouping to 35. The conduct that the government has proved as an underlying racketeering activity is assault with a deadly weapon, rather than attempted murder. The court generally credits the testimony of Mr. Elmore. With respect to the Liggins incident, there is evidence that a shooting clearly took place on the night alleged. However, the jury's acquittal of Haynie on the charges involving that incident reflects a dearth of evidence as to the culpable conduct of attempted murder. The evidence, however, supports the finding, by a preponderance of evidence, that the conduct amounts to assault with a firearm. With respect to the Richard Johnson incident, the security guard's testimony was very confusing and not particularly credible. His testimony coupled with that of Mr. Johnson and the investigating officers established, by a preponderance of evidence, that a shooting occurred that night and that Johnson was shot at by members of Haynie's gang. The court finds by a preponderance of evidence that Haynie participated in the events that led up to the shooting and would clearly be liable at least an aider and abettor.
To apply the offense levels applicable to attempted murder (either first degree or second degree) would overstate the seriousness of the defendant's racketeering acts in connection with the two incidents. The record lacks evidence of intent. The court finds that the offense level applicable to the underlying racketeering activities for Haynie's conviction that are based on incidents involving Johnson and Liggins are more appropriately the offense levels for assaults than for attempted murders.
The evidence supports the finding that the defendant committed racketeering drug-trafficking acts and racketeering acts of assaults with deadly weapons. The parties agree that the base offense level for such conduct would be base offense level 19 (base offense level 14 for the assault plus 5 for the weapon). The court thus finds the defendant's base offense level is therefore 19 for each of the three Groups considered by the Probation Office, increased to 22 by application of 3 units pursuant to the grouping rules under U.S.S.G. § 3D1.4.
The court finds the defendant's motion for a downward departure for overstatement of criminal history should be denied and Haynie's criminal history category remains V. The objections to paragraphs 91 through 107 of the PSR, which includes paragraph 106 that gives the two extra points for a sentence during criminal justice act supervision, are all overruled except as consistent with the court's findings herein. Accordingly, the court finds the defendant's Guidelines sentencing range is 77 to 96 months.
In consideration of the sentencing factors under § 3553, the court finds that a sentence of 84 months is appropriate in this case. The defendant is presently serving time in state prison for the same actions the government charged in this case. He has been in state custody since June of 2013. He was sentenced in state court to roughly eight to sixteen years. Under state court guidelines and good-time rules, he could be released at any time from August of this year when a parole hearing is scheduled, to sometime in 2021, his mandatory release date. Defense counsel argues that it is unlikely that he will be paroled in state court because of the present charges and argues for a concurrent sentence. The government argues for a sentence of twenty years, the statutory maximum.
Based on the court's familiarity with state sentencing, the court finds Haynie's state sentence of three consecutive sentences on drug trafficking charges resulting in imprisonment for eight to sixteen years is a high sentence for state court. In the court's experience, the relatively high sentence Haynie received in state court for the drug crimes is clearly linked to his gang activity in addition to his drug dealing activity, and the gang activity includes shootings and all manner of violence. Accordingly, his culpable violent conduct has been accounted for, to some extent, in the state court sentence.
The fact remains that Haynie has not been held directly accountable for the violent criminal conduct that is part of the racketeering conviction herein. In order to reflect the seriousness of the offense, promote respect for the law, and provide just punishment, the court finds his federal sentence should include some time in addition to his state court sentence. A sentence roughly in the middle of the advisory Guidelines range seems appropriate under the circumstances of this case. Accordingly, the court finds the defendant should be sentenced to 84 months, beginning on the date of the sentencing hearing, July 2, 2018, and without credit for any related state sentence previously served.
This equates to a seven-year sentence that will extend beyond his period of state custody, regardless of whether or not the defendant is paroled on state charges. The court has also considered the history and characteristics of the defendant in making this determination. Haynie is presently thirty-six years old and has a criminal record dating back to 1996. He has been associated with Fortieth Avenue Crips gang and has several gang tattoos. He has engaged in violent acts and is known to carry handguns. He has abused alcohol, marijuana and cocaine, admits he has drug and alcohol abuse problems and is willing to attend counselling and treatment. In light of the defendant's criminal history, the court finds that a sentence including additional incarceration for some significant length of time beyond his state court sentence is warranted.
This sentence extends his state custody considerably, but not inordinately, in consideration of the seriousness of the crime and the defendant's criminal history and gang ties. By virtue of his state court sentence for the same conduct, the resulting sentence, in actual terms, is closer to the twenty years requested by the government and satisfies the sentencing factor of deterrence. The value of any additional prison time as a deterrent would be marginal. The sentence is adequate to achieve the goals of sentencing, to establish some level of proportionality with respect to other racketeering crimes, and to reduce the perception of unwarranted disparity.
In consideration of the sentencing factors set forth in 18 U.S.C. § 3553(a), the court finds that a sentence of 84 months (seven years), partially concurrent to his state court sentence, is sufficient, but not greater than necessary, to accomplish the goals of sentencing. In formulating this sentence, the court has considered the sentencing range established by the Guidelines and finds a Guidelines sentence, as determined by the court, is appropriate in this case and satisfies the purposes of sentencing. This sentence is within the Guidelines sentencing range under the court's calculation and application of the grouping rules. A sentence of any greater length, even if the guidelines range were calculated to be the statutory maximum of twenty years, would be greater than necessary to meet the sentencing objectives. Thus, even if the guidelines range had been higher, the court would have varied downward and would have imposed the same sentence.
Although the law is clear the court is required to consider evidence that supports the government's position by a preponderance, the court is reluctant to impose a sentence on a defendant as though the jury never acquitted the defendant of those same acts and offenses. In this court's opinion, it is important to give due deference to the jury's decision while recognizing the guidelines and following the statutory scheme. In the instant case, the court sentences the defendant for the drug conspiracy and related violent conduct but does not find the evidence supports the highest possible guideline calculation for conduct, some of which the defendant was acquitted. The court also finds the sentence imposed fairly reflects the §3553(a) sentencing factors.
A Judgment in accordance with the Sentencing Memorandum will issue this date.
