U.S. v. Ihegworo

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 91-1779

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

DANIEL UGOCHI IHEGWORO,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Southern District of Mississippi

_________________________

Before SMITH and EMILIO M. GARZA, Circuit Judges, and RAINEY,*

District Judge.

JERRY E. SMITH, Circuit Judge:

Daniel Ihegworo was convicted of possession with intent to

distribute heroin in violation of 21 U.S.C. § 841(a)(1). He now

challenges his sentence, contending that the district court

misapplied U.S.S.G. § 5K2.1, which permits an upward departure

"[i]f death resulted" from the defendant's conduct. Finding no

error, we affirm.

*

District Judge of the Southern District of Texas, sitting by designa-

tion.

I.

On several occasions, Ihegworo sold heroin to Elnora Wilson

and to other women. On one of these occasions, Ihegworo gave a

quantity of heroin to Wilson and asked her to deliver it to

Elizabeth Love. Three or four hours after Wilson did so, she

learned that Love had died of an overdose. The heroin discovered

in Love's apartment was found to be ninety-three percent pure.

After learning of Love's death, Wilson called the police and

reported her involvement in the incident. She then agreed to act

as a confidential informant. When Wilson arrived at Ihegworo's

apartment on September 27, 1990, she wore a hidden microphone. At

that time, Ihegworo advised her not to talk to the police about

Love's death and told her that if she were arrested, he would make

arrangements to get her out of jail.

Wilson went to see Ihegworo the next day, accompanied by an

undercover police officer. The two purchased heroin from Ihegworo,

but he refused to let them leave with the substance. He expressed

his intent to supervise his purchasers' use of the heroin for fear

that one of them might die if allowed to use the heroin without

such supervision. Other officers then arrived on the scene and

arrested Ihegworo. The heroin Ihegworo had sold was ninety-seven

percent pure.

Ihegworo pleaded guilty to possessing 40.6 grams of heroin

with intent to distribute in violation of 21 U.S.C. § 841(a)(1).

At sentencing, the court noted that a base offense level of 18

would be applicable at the outset, reflecting an initial level of

2

201 reduced by two points for acceptance of responsibility.

U.S.S.G. § 3E1.1(a). Given that Ihegworo had no previous criminal

convictions, the court found that Criminal History Category I was

applicable; this yielded a sentencing range of twenty-seven to

thirty-three months.

The court then decided to depart upward from this range based

upon two factors. The first involved section 5K2.1, which permits

an upward departure "[i]f death resulted." The court concluded

that "[a] preponderance of the evidence . . . clearly relates

Elizabeth Love's overdose death to the heroin the defendant was

distributing." The second involved U.S.S.G. § 2D1.1 application

note 9, which allows the court to depart upward when the crime

involves "[t]rafficking in controlled substances . . . of unusually

high purity." The court noted that the average purity of heroin

sold "on the street[]" is "between 13 percent and 20 percent" S)Q

significantly lower than the purity of the heroin found in

Ihegworo's possession.

Based upon these two factors, the court sentenced Ihegworo to

ninety-seven months' imprisonment.2 Ihegworo now appeals the

1

U.S.S.G. § 2D1.1(c)(12) assigns a Base Offense Level of 20 to offenses

involving "[a]t least 40 G but less that 60 G of Heroin . . . ."

2

The court justified the length of sentence on the fact that had the

defendant been sentenced for distributing heroin that eventually caused death

or serious bodily injury, 21 U.S.C. § 841(b)(1)(C),

the offense level would have been 38. The 97 months is the top

end of an offense level of 26 which is a little less than midway

between the offense level of 18 and 38, and takes into account the

extent to which the Defendant's conduct reflected death was

knowingly risked.

It is plain from the record that the court was looking at the sentencing

ranges for level 28, which has a range of 78-97 months, and not for level 26.

3

upward departure.

II.

Section 5K2.1 permits sentencing courts to "increase the

sentence above authorized the guideline range" if "death resulted."

Ihegworo contends that an upward departure based upon section 5K2.1

was not warranted in his case because (1) his conduct did not fall

within the criteria listed in the section and (2) Love was not a

victim of the offense of conviction.

A departure from the guidelines is within the discretion of

the sentencing judge, and we affirm the decision to depart if it

was reasonable in light of the appropriate sentencing factors.

United States v. Siciliano, 953 F.2d 939, 942 (5th Cir. 1992). As

the Supreme Court recently stated, the congressional act establish-

ing the sentencing guidelines "did not alter a court of appeals'

traditional deference to a district court's exercise of its

sentencing discretion. . . . [T]he decision to depart from the

range in certain circumstances [is a] decision[] that [is] left

solely to the sentencing court." Williams v. United States, 60

U.S.L.W. 4206, 4209, 4210 (U.S. Mar. 9, 1992).

As noted below, see infra note 9, the defendant does not challenge the extent

of the departure but only the district court's decision to depart as an

initial matter. As the district court's apparent misstatement relates to the

extent of departure, we do not consider it as a ground for error.

4

A.

Section 5K2.1 provides that the sentencing judge

must give consideration to matters that would normally

distinguish among levels of homicide, such as the

defendant's state of mind and the degree of planning or

preparation. Other appropriate factors are whether

multiple deaths resulted, and the means by which life was

taken. The extent of the increase should depend on the

dangerousness of the defendant's conduct, the extent to

which death or serious injury was intended or knowingly

risked, and the extent to which the offense level for the

offense of conviction . . . already reflects the risk of

personal injury.

Ihegworo argues that his conduct does not fall within the factors

listed in section 5K2.1 as a factual matter and that therefore the

district court should not have departed from the guidelines based

upon that section. Among other things, he contends that he "did

not anticipate death resulting" from his actions, that he "did not

plan or prepare for the death of" Love, and that multiple deaths

did not result from his conduct.

As an initial matter, we reject Ihegworo's implicit argument

that his conduct must meet all the section 5K2.1 factors before a

court may use the section as a basis for an upward departure. The

only "mandatory" language in the section is that the judge "must"

consider matters that "normally distinguish among levels of

homicide," such as state of mind. In this case, the court utilized

this very approach: It found that "the Defendant appreciated the

dangerousness of the drug he was distributing" and that he

"reasonably foresaw death or serious bodily injury as a result of

the heroin he was distributing." It also noted that the sentence

reflected the fact that the "death was knowingly risked."

5

Ihegworo responds that, assuming that he had some connection

to the death of Love,3 he could have "appreciated" the risk of

death only after Love's death occurred and that the court improp-

erly considered post-death state-of-mind evidence. This argument

is without merit. Ihegworo was distributing extraordinarily pure

heroin directly to "junkies" and users, rather than to other

distributors who would be expected to dilute the drug for resale

purposes.4 In fact, by his own admission Ihegworo "did not allow

anyone to take heroin outside his presence to use." The fact that

he would not allow others to use the heroin outside of his presence

demonstrates his knowledge of the dangerousness of the drug.5

We accord the district court "wide discretion to decide

whether aggravating factors exist to support an upward departure."

Siciliano, 953 F.2d at 942 (quoting United States v. Hatch, 926

F.2d 387, 396-97 (5th Cir.), cert. denied, 111 S. Ct. 2239 (1991)).

In this case, we find that the departure was reasonable.

B.

3

Ihegworo contends that the district court's factual finding on this

issue was clearly erroneous. See infra note 8.

4

This is a slightly different concern from that underlying application

note 9, which suggests that "[t]rafficking in controlled substances . . . of

unusually high purity may warrant an upward departure . . . ." The note goes

on to state that "[s]ince controlled substances are often diluted and combined

with other substances as they pass down the chain of distribution, the fact

that a defendant is in possession of unusually pure narcotics may indicate a

prominent role in the criminal enterprise and proximity to the source of the

drugs." By contrast, in relation to § 5K2.1, the district court was concerned

with the risk of death associated with distributing extraordinarily pure

heroin directly to users.

5

Ihegworo also argues that the sentencing guidelines range for possession

of heroin with intent to distribute "reflects the risk of personal injury

inherent in the abuse of controlled drugs." In this case, however, the risk

was unique, given the purity of the drug.

6

Ihegworo also argues that section 5K2.1 is inapplicable as a

matter of law because Love was not the "victim" of the offense of

conviction.6 At the time Ihegworo committed the offense, section

5K2.0, entitled "Grounds for Departure," cautioned that

Harms identified as a possible basis for departure from

the guidelines should be taken into account only when

they are relevant to the offense of conviction . . . .7

In United States v. Roberson, 872 F.2d 597, 603 (5th Cir.), cert.

denied, 493 U.S. 861 (1989), we interpreted this limitation to

require "a nexus" between the harm caused and the offense of

conviction.8 We also noted that the nexus requirement applied to

section 5K2.1. Id. The district court in this case found such a

"nexus" between the death of Love and the offense of conviction.

Ihegworo contends that the death of Love could not meet the

6

We review the district court's legal conclusion de novo. Siciliano, 953

F.2d at 942.

7

Sentencing courts apply the version of the guidelines in place at the

time of sentencing unless such application would cause ex post facto concerns.

United States v. Suarez, 911 F.2d 1016, 1021-22 (1990); United States v.

Brown, 920 F.2d 1212, 1216 (5th Cir.), cert. denied, 111 S. Ct. 2034 (1991).

When the events in question took place in this case (September 1990), § 5K2.0

contained the relevancy limitation, which was deleted November 1, 1990,

because it was "unclear and overly restrictive." U.S.S.G., app. C, amend.

358. Given that the deletion of the relevancy limitation "is not simply a

change in procedure which does not affect a matter of substance," Suarez, 911

F.2d at 1022, the change raises ex post facto concerns. The district court,

therefore, was correct in applying the version of the guidelines in place at

the time the offense occurred.

8

The Ninth Circuit recently explained the § 5K2.0 relevancy requirement

in a similar fashion:

We conclude that, with respect to acts of misconduct

not resulting in conviction, the Commission intended

to preclude departures for acts bearing no relation-

ship to the offense of conviction, but to permit

departures for acts that relate in some way to the

offense of conviction, even though not technically

covered by the definition of relevant conduct.

United States v. Loveday, 922 F.2d 1411, 1417 (9th Cir. 1991) (quoting United

States v. Kim, 896 F.2d 678, 684 (2d Cir. 1990)).

7

"nexus" requirement because Love was not the "victim" of the

offense of conviction. He states that the only possible victims of

the offense for which he was convicted would be Wilson and the

undercover agent, and he adds that Love was not even involved in

the transaction that led to his conviction. Thus, he gives the

"nexus" requirement a very narrow reading: The "harms" covered by

section 5K2.1 must be not only offense-specific, but also victim-

specific. In other words, not only must there be a nexus between

the harm caused and the offense of conviction, but the harm must

have been suffered by the victim of the instant offense.

We decline to adopt such a narrow interpretation of section

5K2.0's limitation. It is true that Roberson speaks in terms of

the victim of the offense. At one point, the Roberson panel noted

that "section[] 5K2.1 . . . allow[s] the [sentencing] court to

depart from the Guidelines if the victim of the offense suffered

death . . . ." Id. But Roberson did not even address the question

of whether the harm, in order to be "relevant," must be suffered by

the victim of the instant offense. Rather, the Roberson panel was

asked to address whether the "nexus" limitation applied to section

5K2.8, which permits the court to enhance a defendant's sentence

where his "conduct was unusually heinous, cruel, brutal, or

degrading to the victim . . . ."

In Roberson, we discussed section 5K2.1 only in contrast to

section 5K2.8. We drew a distinction between those guideline

sections to which the nexus requirement applied and those to which

it did not; we held that the nexus requirement did not apply to

8

section 5K2.8 because it focused on the defendant's conduct, not

the harms resulting from the conduct. We used section 5K2.1 as an

example of a section to which the nexus requirement would apply,

noting that "[t]he victim's harm is the focal point" of section

5K2.1. Id. Our point was not that the victim of the offense of

conviction must suffer the harm for purposes of section 5K2.1, as

Ihegworo argues, but rather that the nexus limitation applies to

section 5K2.1 because that section focuses on harm.

In most cases, the harm involved will be suffered by the

victim of the instant offense. We obviously assumed this in

Roberson. However, the language of the guideline does not so

require. Rather, the section 5K2.0 merely states that the harm at

issue must be "relevant" to the offense of conviction. We decline

the defendant's invitation to narrow "relevancy" to victim-specific

harm when the language of the guideline does not require such a

reading.

Having decided that the "nexus" requirement does not include

a "victim-specific" component, we uphold the district court's

finding that the death of Love "clearly relates" to the offense of

conviction. Love died from ingesting the extraordinarily pure

heroin that Ihegworo was in the business of distributing.9 We find

9

Ihegworo argues that the court's finding "that the death of Elizabeth

Love resulted from the defendant's possession with intent to distribute is

clearly erroneous," and he "denies that the death of Elizabeth Love resulted

from a heroin overdose, contrary to the Court's finding." At the sentencing

hearing, Wilson testified that Ihegworo gave her some heroin and asked her to

delivery it to Love. Wilson did so, and when she returned to Love's residence

three or four hours later, she learned that Love had died. She then called

the hospital, and was told that Love had died of a heroin overdose. She

immediately called the police to report her involvement in the incident. The

heroin found in Love's apartment was 93% pure; the heroin found in Ihegworo's

possession at the time of his arrest was 97% pure.

9

that this is a sufficient nexus to satisfy the dictates of

Roberson.10

AFFIRMED.

We find that this is more than enough evidence to support the court's

finding that (1) Love died from an overdose and (2) she overdosed on drugs

distributed by the defendant. That the United States Attorney's Office

determined that it lacked sufficient evidence to charge Ihegworo with distrib-

uting heroin that caused death or serious bodily injury, see 21 U.S.C.

§ 841(b)(1)(C), does not require a different result.

Ihegworo makes a slightly different argument attacking the

"competen[cy]" of the death-by-overdose evidence. At the sentencing hearing,

Ihegworo's attorney objected, presumably on hearsay grounds, to Wilson's

testimony that she had learned of Love's overdose from the hospital. We find

that this evidence was properly admitted. Hearsay may be considered by a

sentencing court, provided that it is supported by sufficient indicia of

reliability. United States v. Chavez, 947 F.2d 742, 746 (5th Cir. 1991). In

this case, Wilson's testimony was sufficiently reliable; her testimony was

against her penal interest, and she was testifying without a grant of

immunity.

10

Ihegworo contests only the court's decision to depart from the

guidelines range as an initial matter and not the extent of the departure.

See Siciliano, 953 F.2d at 942 (review of upward departures is a two-step

process; reviewing court must first consider whether decision to depart was

reasonable in light of appropriate sentencing factors, and then must determine

"whether the extent, or length, or the departure is reasonable"). We

therefore do not consider whether the extent of the departure was reasonable.

See also Williams, 60 U.S.L.W. at 4209 (describing the two-step process as

follows: "First, was the sentence imposed either in violation of law or as a

result of an incorrect application of the Guidelines? . . . If [not]: is the

resulting sentence an unreasonably high or low departure from the relevant

guideline range?").

10