United States v. Curb

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2510

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

E LGIN C URB, also known as SHIESTY,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:06-cr-00324-31—Samuel Der-Yeghiayan, Judge.

____________

A RGUED S EPTEMBER 21, 2010—D ECIDED N OVEMBER 16, 2010

____________

Before B AUER, S YKES and H AMILTON, Circuit Judges.

B AUER, Circuit Judge. Defendant-appellant Elgin Curb

pleaded guilty and was convicted of conspiracy to

possess and distribute heroin, cocaine, and crack

cocaine, in violation of 21 U.S.C. § 846. The district

court found that Curb was a supervisor in a criminal

activity subject to the managerial enhancement and that

he had willfully obstructed justice. Curb was sentenced

to 270 months’ imprisonment. On appeal, he challenges

his sentence. We affirm.

2 No. 09-2510

I. BACKGROUND

From January 2003 through May 2006, Curb participated

in a large-scale drug operation in a small low-income

housing area in Chicago known as “the Square.” In May

2006, Chicago police officers arrested more than fifty

individuals, including Curb, in connection with the drug

operation. Pursuant to a written plea agreement, Curb

pleaded guilty to Count One of the indictment, which

charged Curb with conspiracy to possess with the intent

to distribute heroin, cocaine, and crack cocaine.

Days before Curb’s sentencing hearing, the government

filed an objection to the Presentence Investigation Report,

challenging the probation department’s assessment of

Curb’s role in the conspiracy. The government asserted

that Curb qualified for the “manager or supervisor”

enhancement pursuant to Section 3B1.1(b) of the United

States Sentencing Guidelines.

The court held an evidentiary hearing in January 2009 on

the issue of Curb’s role in the criminal conspiracy. Co-

defendant Lamont Harris, who pleaded guilty to the drug

conspiracy, testified on behalf of the government at this

hearing. Harris testified that Curb, among other acts,

(1) approached him and recruited him to sell drugs for

the conspiracy; (2) determined the amount of drugs

Harris would sell and provided him with those drugs;

(3) collected a larger share of the proceeds from Harris’

drug sales; (4) occasionally directed potential customers

to Harris; and (5) helped promote Harris to a greater

role in the conspiracy. Harris also admitted that when

he was first interviewed by government agents about his

role in the drug conspiracy, he lied to the agents about

No. 09-2510 3

information regarding the conspiracy. As a part of Harris’

plea agreement, however, he agreed to cooperate with the

government and tell the whole truth at the evidentiary

hearing.

Curb’s sentencing hearing was scheduled for Febru-

ary 19, 2009, but Curb failed to appear and a bench warrant

was issued for his arrest. He remained missing for two-

and-a-half months until he was arrested by officers of the

Chicago Police Department on April 28, 2009. Curb ex-

plained to the officers that he failed to appear at his

sentencing hearing because he was “scared” of his im-

pending sentence.

At Curb’s sentencing hearing on June 3, 2009, the district

court found that Curb had willfully obstructed justice

under United States Sentencing Guidelines Section 3C1.1.

The district court factored in the enhancements for Curb’s

managerial role in the conspiracy and his willful obstruc-

tion of justice and also gave him a three-point deduction

for acceptance of responsibility notwithstanding his flight.

The district court found that Curb’s advisory guidelines

range was 292 to 365 months; however, it sentenced Curb

to 270 months’ imprisonment.

II. DISCUSSION

A. Managerial Enhancement

Curb challenges the district court’s application of the

three-level managerial enhancement to his sentence, a

determination we review for clear error. United States v.

Hankton, 432 F.3d 779, 793 (7th Cir. 2005) (quoting United

States v. Brown, 900 F.2d 1098, 1101 (7th Cir. 1990)). Rever-

4 No. 09-2510

sal is warranted “only if, after reviewing the entire evi-

dence, [the court] is left with the definite and firm convic-

tion that a mistake has been made.” United States v.

Sheikh, 367 F.3d 683, 687 (7th Cir. 2004) (quoting United

States v. Schuh, 289 F.3d 968, 972 (7th Cir. 2002)).

Sentencing Guidelines Section 3B1.1(b) directs a sen-

tencing judge to increase a defendant’s offense level by

three levels if “the defendant was a manager or supervisor

(but not an organizer or leader) and the criminal activity

involved five or more participants or was otherwise

extensive.” U.S. Sentencing Guidelines Manual § 3B1.1(b)

(2010). The Sentencing Guidelines do not define the terms

“manager” or “supervisor,” though this court has found

the following seven factors to be relevant in determining

an individual’s role in a criminal conspiracy:

(1) the exercise of decision-making authority;

(2) the nature of participation in the commission of

the offense; (3) the recruitment of accomplices;

(4) the claimed right to a larger share of the fruits

of the crime; (5) the degree of participation in

planning and organizing the offense; (6) the nature

and scope of the illegal activity; and (7) the degree

of control and authority exercised over others.

United States v. Howell, 527 F.3d 646, 649 (7th Cir. 2008)

(citing United States Sentencing Guidelines Manual

§ 3B1.1, cmt. n.4 (2010)).

After reviewing the record, we are not left with a definite

or firm conviction that the district court erred in applying

the managerial enhancement. The district court judge

credited co-defendant Harris’ witness testimony at Curb’s

No. 09-2510 5

evidentiary hearing, as well as Curb’s own testimony

and plea agreement. He then applied the three-level

managerial enhancement based on the existence of several

of the seven factors.

As a preliminary matter, Curb bases the majority of

his argument regarding this issue on attacking the credi-

bility of Harris, who testified at Curb’s evidentiary

hearing. However, we note, as the district court did, that

the managerial enhancement is not based solely upon

Harris’ testimony; Curb’s own plea agreement and state-

ments from other co-defendants likewise support the

district court’s finding. In any case, this court “do[es] not

second-guess the judge’s credibility determinations

because he or she has had the best opportunity to

observe the subject’s facial expressions, attitudes, tone

of voice, eye contact, posture and body movements.”

United States v. Mancillas, 183 F.3d 682, 701 n.22 (7th Cir.

1999) (citing United States v. Garcia, 66 F.3d 851, 856-57

(7th Cir. 1995)). The district court considered Harris’

testimony and determined that it was not in conflict

with prior statements and that any variances had been

explained away.

Turning to the application of the seven managerial

factors, we agree with the district court in finding that

several factors apply to Curb’s role in the drug enterprise.

All factors need not be present for a finding that the

defendant is subject to the managerial enhancement, but

the defendant must have “exercised some control over

others involved in the commission of the offense.” United

States v. Pagan, 196 F.3d 884, 892 (7th Cir. 2000) (citing

United States v. House, 110 F.3d 1281, 1287 (7th Cir. 1997)).

6 No. 09-2510

This court has upheld a sentencing increase where less

than all factors are present. United States v. Fones, 51 F.3d

663, 665 (7th Cir. 1995). We find that at least four of the

factors are applicable to Curb’s role in the conspiracy and

that Curb “exercised some control over others,” particu-

larly co-defendant Harris.

First, Curb appreciably exercised “decision-making

authority” and a “degree of control over others.” Curb’s

own plea agreement and the admissions of other co-

defendants indicate that Curb supplied Harris and others

with packs of crack cocaine and heroin to sell around the

Square. Furthermore, Curb exercised discretion in deter-

mining the amounts of crack cocaine and heroin that others

would sell. Curb was also responsible for directing cus-

tomers seeking drugs to the other workers around the

Square. Lastly, Curb helped promote Harris to a higher

level in the enterprise.

Second, Curb was involved in the recruitment of accom-

plices to the conspiracy. Specifically, Harris provided

testimony at the evidentiary hearing that Curb recruited

him. The evidence shows that while Curb and Harris were

playing basketball, Curb asked Harris if he wanted to sell

drugs in the Square. After Harris answered that he wanted

to sell drugs, Curb immediately went over to Terrell

Covens—the man in charge of selling crack cocaine in the

Square—and informed Covens that Harris was interested

in selling drugs, to which Covens agreed. Curb maintains

that because Covens had to first approve of Harris, Curb’s

role in recruiting Harris was “superfluous.” Despite his

role as a middleman in the recruitment, the evidence

No. 09-2510 7

shows that it was in fact Curb who acted as the recruiter.

This court has previously held that “[m]iddlemen are not,

of course, immune from application of § 3B1.1.” United

States v. Brown, 944 F.2d 1377, 1381 (7th Cir. 1991).

Next, Curb had “the claimed right to a larger share of the

fruits of the crime.” As Harris admitted, for every pack of

crack cocaine that Harris sold, he kept only $10-$30 of the

$50-$150 proceeds, and Curb collected the remainder.

Finally, Curb argues that other co-defendants involved

in the drug operation did not identify him as occupying a

managerial position, and therefore he did not occupy that

role. Curb seems to be focusing on what was not said

instead of what the evidence does show; Curb’s own plea

agreement and testimony, and the testimony and plea

agreements of Harris and other co-defendants, all support

the finding that Curb occupied a managerial position in the

drug conspiracy.

B. Sentence Reasonableness

Curb also argues that his sentence is both procedurally

and substantively unreasonable. Specifically, he contends

that the district court did not consider nor articulate its

reasoning regarding the mitigating factors presented by

him at the evidentiary hearing. This court uses an abuse-of-

discretion standard when reviewing sentencing decisions

for reasonableness. Gall v. United States, 552 U.S. 38, 46

(2007). A sentence within the Sentencing Guidelines range

is presumptively reasonable and the district court’s

decision will be reviewed deferentially. United States v.

8 No. 09-2510

Hurn, 496 F.3d 784, 790 (7th Cir. 2007) (citing Rita v. United

States, 551 U.S. 338, 346-48 (2007)).

1. Procedural Reasonableness

Curb argues that the district court’s sentencing was

procedurally unreasonable for two reasons: (1) the district

court did not consider or discuss Curb’s mitigating argu-

ments, and (2) the district court failed to articulate its

reasoning in selecting Curb’s sentence.

Under the post-Booker sentencing procedures, a district

court is to “(1) calculate the applicable Guidelines range;

(2) give the defendant an opportunity to identify any of the

18 U.S.C. § 3553(a) factors that might warrant a non-

Guidelines sentence; and (3) state which factors influenced

the final sentence.” United States v. Campos, 541 F.3d 735,

749-50 (7th Cir. 2008) (citing United States v. Millet, 510

F.3d 668, 680 (7th Cir. 2007)). “The sentencing judge should

set forth enough to satisfy the appellate court that he has

considered the parties’ arguments and has a reasoned basis

for exercising his own legal decision making authority.”

Rita v. United States, 551 U.S. 338, 356 (2007). The court does

not need to make factual findings about each of the sen-

tencing factors, and it is sufficient if the record shows that

the court considered them. Campos, 541 F.3d at 750 (citing

United States v. Price, 516 F.3d 597, 606 (7th Cir. 2008)).

In the instant case, the record indicates that the district

court followed the post-Booker sentencing procedures. The

district court calculated Curb’s applicable guidelines range

at 292 to 365 months’ imprisonment. It then allowed Curb

No. 09-2510 9

to make arguments related to sentencing. Finally, the

district court considered each argument that Curb made, as

evidenced by fourteen pages of the sentencing hearing

transcript. Specifically, the court addressed Curb’s argu-

ments regarding (1) the defendant’s young age; (2) the

inability of adolescents to make decisions like adults;

(3) the defendant’s limited criminal history; (4) low recidi-

vism rates for first-time offenders; (5) the high costs and

futile effects of incarcerating drug-trafficking offenders;

(6) the need for the defendant to support his two children;

(7) the defendant’s troubled childhood and lack of a

positive role model; (8) the defendant’s education and

steady employment since arrested; (9) the defendant’s drug

addiction treatment; (10) the unfairness and discrepancies

in illegal drug offense sentencing; (11) the sentencing

disparities between African Americans and Caucasians

in general; (12) the sentencing disparities between the

defendant and the other co-defendants; and (13) the

defendant’s remorse.

The district court judge then weighed the mitigating

circumstances against the aggravating circumstances and

noted: “While I’ve considered the above arguments, the

defendant committed a serious crime and the defendant

has acknowledged that fact.” The judge went on to identify

which aggravating factors he found significant, including

(1) the serious nature of the defendant’s crime and the

rampant illegal drug trade in this country; (2) the defen-

dant’s disrespect for the law upon prior arrests; (3) the

defendant’s role as a supervisor in the drug enterprise;

(4) the need to deter the defendant and others like him

from engaging in drug offenses; and (5) the need to pro-

10 No. 09-2510

tect the public from offenders like the defendant. After

weighing the factors and commending Curb for

pleading guilty and acknowledging responsibility for his

crime, the judge sentenced Curb to a below-Guidelines

sentence. We conclude that the district court judge’s

comments at Curb’s sentencing hearing clearly demon-

strate that the judge considered Curb’s arguments re-

garding the § 3553(a) factors and adequately explained

his determination of Curb’s sentence.

2. Substantive Reasonableness

Curb next argues that his sentence was substantively

unreasonable for three reasons: (1) his own youth; (2) the

fact that no comparable defendant was sentenced as long;

and (3) the unfair disparity in crack cocaine penalties.

However, “a sentence within the [Guidelines] range is

presumptively reasonable, and it follows that a sentence

below the range also is presumptively not too high.”

United States v. Anderson, 580 F.3d 639, 651 (7th Cir. 2009)

(citing United States v. Wallace, 531 F.3d 504, 507 (7th Cir.

2008)).

We do not find that the district court abused its discre-

tion when sentencing Curb to a below-range sentence. The

district court judge noted that, even though Curb was

young when he started the crime, the conspiracy lasted

several years. As to sentencing disparities among the

various co-defendants, the judge pointed out that “each

case rested on its own merits and facts and factors pre-

sented to the court.” Finally, the different sentencing levels

for powder and crack forms of cocaine have been the

subject of intense debate, and Kimbrough v. United States

No. 09-2510 11

gave district judges substantial discretion in addressing the

issue. See Kimbrough v. United States, 552 U.S. 85 (2007).

But we have never held that a district judge was required

to reject the Sentencing Guidelines applicable to crack

cocaine. A district judge’s reasoned agreement with

an advisory sentencing guideline will not be deemed

unreasonable on appeal. See United States v. Etchin,

614 F.3d 726, 740 (7th Cir. 2010) (“Kimbrough permits

district courts to deviate from the crack cocaine guidelines

but does not require them to do so.”); United States v.

Scott, 555 F.3d 605, 610 (7th Cir. 2009) (“If a district

court may deviate from the Guidelines based on its dis-

agreement with the Sentencing Commission’s policy, it is

equally within its authority to adhere to the Guidelines

because it concurs with the policy judgment the Guidelines

reflect.”). We are satisfied with the district court’s consid-

eration and application of the § 3553(a) factors, and we will

not disturb the district court’s sentencing determination.

C. Obstruction of Justice

Curb also challenges the district court’s finding that he

willfully obstructed justice under Sentencing Guidelines

Section 3C1.1 when he failed to appear for his sentencing

hearing and eluded police until he was arrested two-and-

a-half months later. “We review de novo whether the

district court made adequate findings to support an

enhancement for obstruction of justice, while we review

the underlying factual findings for clear error.” United

States v. House, 551 F.3d 694, 697 (7th Cir. 2008).

12 No. 09-2510

The Sentencing Guidelines provide for a two-level

enhancement if “the defendant willfully obstructed or

impeded, or attempted to obstruct or impede, the adminis-

tration of justice with respect to . . . sentencing of the

instant offense of conviction . . . .” U. S. Sentencing Guide-

lines Manual § 3C1.1 (2010). Application Note 4 to this

Section lists several examples of conduct to which the

enhancement applies, including “willfully failing to

appear, as ordered, for a judicial proceeding.” U.S. Sen-

tencing Guidelines Manual § 3C1.1, cmt. n.4(e) (2010).

Curb bases his argument on the notion that he does not

meet the willfulness requirement for the enhancement. In

support of this argument, Curb asserts that he had a

“panicked state of mind” and not a “bad intent or evil

purpose to obstruct justice.” Additionally, Curb maintains

that his situation does not warrant an obstruction of justice

enhancement because he “did not flee the jurisdiction,

change his name or obtain a fake identity, lie about who

he was, commit additional offenses or engage in conduct

specifically designed to obstruct justice.” This court

addressed this same argument in United States v. Bolden

and explained that it is not necessary that a defendant

flee the jurisdiction, change his identity, lie, or forcibly

resist arrest in order to make an obstruction of justice

finding. United States v. Bolden, 279 F.3d 498, 503 (7th Cir.

2002). We reaffirm that “a defendant’s failure to appear

is ‘willful’ . . . if the defendant knew that he was required

to appear in court and ‘voluntarily and intentionally’

failed to do so.” Id. at 502 (citing United States v. Teta, 918

F.2d 1329, 1334 (7th Cir. 1990)).

No. 09-2510 13

The obstruction of justice enhancement is appropriate

when a defendant’s actions have had a “delaying effect on

the administration of justice.” Id. at 502-03 (quoting

United States v. Gilleylen, 81 F.3d 70, 72 (7th Cir. 1996)).

Curb does not deny that he knew about his sentencing

hearing. The district court was able to obtain custody of

Curb and sentence him only because he was arrested by

the Chicago Police two-and-a-half months after the

original sentencing hearing. Curb’s intentional failure to

attend his original sentencing hearing delayed the final

sentencing by two-and-a-half months.

Next, we agree with the district court that Curb is

misapplying this court’s ruling in United States v. Draves to

his own situation. In Draves, we held that it was not error

to deny the obstruction of justice enhancement as applied

to a defendant’s “panicked, instinctive flight” from the

immediate scene of his arrest. United States v. Draves,

103 F.3d 1328, 1337 (7th Cir. 1997). But Curb’s situation is

not a case of “panicked, instinctive flight,” as was found in

Draves. In that case, the defendant had been handcuffed

and placed in the back seat of the officer’s car while officers

attended to a co-defendant. In a panicked state, the defen-

dant fled the car and was caught by arresting officers

minutes later. This court found that the defendant’s action

in that case was not a “calculated evasion” and therefore

not a proper basis for an obstruction of justice enhance-

ment. In this case, Curb was not engaging in an instinctive

flight a few moments after being placed under police

custody; he was well aware of the sentencing hearing.

He knew that he had pleaded guilty to a serious crime and

was facing a rather sizeable prison sentence. His behavior

14 No. 09-2510

can only be described as a “calculated evasion of the

criminal justice system.”

Lastly, Curb argues that his “disturbed mental state”

(presumably panic and fear) negates his willful intent to

obstruct justice. Curb attempts to loosely compare himself

to the defendant in United States v. Hanhardt, to whom this

court refused to apply the obstruction of justice enhance-

ment because the defendant had not appeared in court due

to a suicide attempt. United States v. Hanhardt, 361 F.3d 382,

388-89 (7th Cir. 2004), vacated on other grounds, Altobello

v. United States, 543 U.S. 1097 (2005). We recognize that

a “disturbed mental state” in very limited cases may be

taken into account, but Curb’s case is not one of those.

Curb’s choice not to attend his sentencing hearing and

to evade the justice system for two-and-a-half months

before being caught, whether caused by panic, fear, or any

other emotion, is clearly obstructive conduct deserving of

an enhancement.

III. CONCLUSION

For the reasons stated above, we A FFIRM the district

court.

11-16-10