Argued September 17, 2014
Appeals from the United States District Court for the Eastern District of North Carolina, at Raleigh. (5:97-cr-00098-D-1; 5:12-cr-00009-D-1). James C. Dever III, Chief District Judge.
Robert Lonnie Cooper,
COOPER, DAVIS & COOPER, Fayetteville, North Carolina, for Appellant.
Yvonne Victoria Watford-McKinney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Thomas G. Walker, United
States Attorney, Jennifer P. May-Parker, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Before MOTZ and DIAZ, Circuit Judges, and DAVIS, Senior Circuit Judge.
DAVIS, Senior Circuit Judge:
In appeal No. 13-4296, a jury convicted Dennis Ray Howard on one count of conspiracy to distribute and possess with intent to distribute a controlled substance, phencyclidine (" PCP" ), nine counts of distribution of PCP, and one count of possession
of a firearm in furtherance of a drug trafficking offense. The district court sentenced Howard to a term of life imprisonment plus 60 months. In appeal No. 13-4299, the court imposed a consecutive sentence of 60 months for violation of supervised release arising from the convictions in appeal No. 13-4296.
Howard noted timely appeals from both judgments, but he has abandoned his appeal of the revocation sentence in No. 13-4299, which we dismiss. As to the drug trafficking appeal, he challenges the sufficiency of the evidence supporting each of his convictions and the substantive reasonableness of his sentence. For the reasons set forth within, we affirm the convictions, vacate the sentence as substantively unreasonable, and remand for resentencing.
In September 2010, Wilson, North Carolina narcotics investigator Jason Corprew was investigating drug activity at a residence on Black Creek Road when he learned from a confidential informant, C.B., that Howard, or " D" as he was commonly known, sold C.B. a " dipper" from the residence. Dippers are cigarettes that are saturated in PCP. Over the course of the next month, C.B., along with another informant, A.B., returned to the Black Creek Road residence at the direction of Corprew to make several controlled purchases of PCP from Howard. All told, the informants purchased PCP from Howard, either together or individually, six times between September 20 and October 13, 2010. A third confidential informant, A.I., participated in two controlled purchases of PCP from Howard in 2011. At the first transaction, a middle man for Howard, Desmond Farmer, delivered a one-ounce vial of PCP to A.I. on Howard's behalf. At the second transaction, however, Howard personally delivered two vials of PCP to A.I.
The controlled purchases continued with the assistance of T.W. In May 2011, Wilson Police arrested T.W. on drug charges. T.W. agreed to assist Corprew in the investigation of Howard, and arranged to purchase one ounce of PCP from him. Howard agreed to bring the PCP to T.W.'s house. Surveillance officers at Howard's house on Vick Street observed him leaving the residence and driving to T.W.'s house, talking to a woman who answered the door, and returning to his vehicle. Shortly thereafter, a Wilson police officer conducted a traffic stop of Howard's car and he detected the odor of PCP. A search of Howard's car revealed a glass vial containing one ounce of PCP. Officers placed Howard under arrest and then obtained a search warrant for Howard's home, where he lived with his girlfriend. Officers found a loaded pistol with one round in the chamber and a box of ammunition in the living room. In an adjoining den, officers found an operational police scanner, an envelope bearing Howard's name and address that contained black plastic caps of the type used in the sale of PCP, and a piece of cardboard with a description of vial containers and a " discountvial.com" web address. Officers did not find any PCP during their search of Howard's home.
On January 17, 2012, a federal grand jury in the Eastern District of North Carolina returned a nine-count indictment
against Howard. Count One charged Howard with conspiracy to distribute and possess with intent to distribute PCP, in violation of 21 U.S.C. § 846. Counts Two through Seven and Count Nine charged Howard with distribution of PCP, in violation of 21 U.S.C. § 841(a). Count Eight similarly charged Howard with distribution of PCP, and aiding and abetting another to do the same. On September 25, 2012, the grand jury returned a superseding indictment, which retained the original charges and added two new charges: an additional count of distribution of PCP in violation of 21 U.S.C. § 841(a), and one count of possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c). Prior to trial, the Government filed a notice of intent to seek an enhanced penalty based on Howard's previous convictions in state court in North Carolina of felony drug offenses.
Trial began on October 15, 2012. Investigator Corprew, two confidential informants, and T.W. testified to the controlled purchases, some of which were recorded by audio and video surveillance. Four cooperating individuals also testified to their previous PCP drug dealing with Howard. At the close of the evidence, the jury returned a verdict of guilty on all counts in the superseding indictment. On October 22, 2012, Howard timely renewed his motion for judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. The district court denied the motion.
During the above events, Howard was on supervised release based on a 1997 federal narcotics trafficking conviction. Accordingly, in January 2013, Howard's probation officer filed an amended petition for revocation of supervised release based on the instant convictions. Thereafter, the district judge conducted Howard's sentencing and revocation hearings.
The Presentence Investigation Report (" PSR" ) for the new drug trafficking convictions originally recommended a base offense level of 26 and a criminal history category of III, which equated to a Guidelines range of 78 to 97 months. As the Government had filed a notice of enhanced sentence pursuant to 21 U.S.C. § 851, however, the enhanced Guidelines range was 120 months, the statutory mandatory minimum sentence. The Government also objected to the drug weight described in the PSR, pointing to some of the anecdotal testimony of other drug deals from some of its trial witnesses. The district court agreed that the drug weight in the PSR
underestimated the amount of PCP within the realm of relevant conduct, and adopted an increased drug weight, which bumped Howard's base offense level from 26 to 28, slightly modifying the Guidelines range to 120 to 121 months.
The district court next considered whether to depart upwardly, a possibility the court had previously expressed pursuant to Federal Rule of Criminal Procedure 32(h). The Government argued that under U.S.S.G. § 4A1.3(a)(1), an upward departure was warranted because Howard's criminal history category (III) substantially underrepresented the seriousness of his criminal history. It requested an upward departure to a criminal history category of VI, which, at an offense level of 28, yielded a sentencing range on the drug trafficking counts of 140 to 175 months. Thus, in its initial allocution at sentencing, the Government urged the district court to impose a sentence within that Guidelines range.
The district court was not satisfied. It elected to analyze Howard as a " de facto" career offender and thereby consider Howard's otherwise stale (and thus unscored) prior convictions. In so doing, the court arrived at a criminal history category of VI and an offense level of 37. After following the Career Offender Guidelines, the district court arrived at a sentencing range of 420 months to life for the conspiracy charge in Count One, and a range of 360 months to life for the substantive charges in Counts Two through Ten, which carried a statutory maximum of 360 months.
The district court next considered the § 3553(a) factors and concluded that Howard deserved the maximum sentence of life in prison:
I do think for all the reasons outlined under the 3553 (a) factors, the nature and circumstances of the offense, these 11 very serious offenses, the history and characteristics of this defendant and the unrelenting, unrepenting, unreformed drug dealing, society needs to be protected. He needs to be incapacitated. People need to be deterred. There needs to be just punishment. There needs to be serious consequences for serious crimes.
J.A. 737-38. The court imposed a sentence of life imprisonment on Count One, 360 months imprisonment (concurrent) for Counts Two through Ten, and 60 months (consecutive) for Count Eleven. ...