Petition for Writ of Certiorari — Bryan Reshad Hill, Petitioner v. United States
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United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
____________
No. 22-10460
____________
September 1, 2023
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Bryan Reshad Hill,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CR-86-20
______________________________
Before Duncan and Wilson, Circuit Judges, and Schroeder, District
Judge.*
Cory T. Wilson, Circuit Judge:
A jury found Bryan Reshad Hill guilty of conspiring to possess a
controlled substance with the intent to distribute it and distributing a
detectable amount of a substance containing cocaine base.
Hill now
challenges his sentence on several grounds. We affirm.
_____________________
*
United States District Judge for the Eastern District of Texas, sitting by
designation.
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I.
Su Mun purchased the HanGil Hotel in Dallas, Texas, sometime
before 2018. The facility was formerly a nursing home, but Mun quickly
converted it into a free-wheeling drug emporium, allowing dealers to use the
hotel’s rooms as “trap rooms” from which they sold a plethora of illegal
narcotics 24 hours a day, seven days a week. These trap rooms were
equipped with surveillance cameras, and individuals worked as armed
guards. For his trouble, Mun charged the drug dealers a higher room rate.
The HanGil first appeared on law enforcement’s radar in July 2018
following several overdose deaths there. After reading numerous Google
reviews that confirmed the hotel’s status as a drug market, law enforcement
began investigating the HanGil. But surveillance proved difficult, as all the
hotel’s rooms faced an interior hallway. Flummoxed, law enforcement put
up a “pole camera” near the hotel. The pole camera captured footage of
people coming and going from the hotel day and night; the open-air use of
narcotics; and individuals openly carrying firearms, including assault rifles.
Throughout 2018, Dallas police officers conducted numerous code
inspections of the HanGil, and each uncovered significant evidence of a large
drug operation—despite Mun’s warning his tenants of the inspections
beforehand. The cat-and-mouse game only ended when Erick Freeman, a
prolific HanGil drug dealer who had a penchant for violence—including use
of a blowtorch to torture people—was arrested in early 2019 and cooperated
with law enforcement.
Hill was involved in the HanGil’s activities throughout most of the
hotel’s sordid history. At first, he worked for Mun as hotel security. Then,
he operated a trap room selling cocaine base and heroin. But when Hill lost
most of his customers due to his own addiction and the arrival of other
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dealers, including Freeman, he began working for Freeman in several
capacities.
As Freeman’s enforcer, Hill, brandishing a firearm, stood guard at the
entrance of Freeman’s trap rooms. His job was to intimidate and coerce
Freeman’s customers and other people that Freeman believed owed him
money. On one occasion, Hill and two others beat a homeless man until he
was unconscious. On another, someone paid Hill $250 to remove a body
from one of the trap rooms. In addition to his enforcer and doorman duties,
Hill also cut, bagged, and sold drugs for Freeman, including heroin and
cocaine base.
But Hill’s behavior proved too abhorrent even for the HanGil. In the
early morning hours of December 27, 2018, Hill was working the door of one
of Freeman’s trap rooms. Freeman’s room surveillance camera captured the
events. A customer, L.R., was using drugs provided by Hill. After L.R.
smoked what appeared to be crack cocaine, she injected an unknown
substance into her arm as Hill watched. As L.R. was falling in and out of
consciousness, Hill put on gloves and took her into the bathroom of the trap
room. The two were in the bathroom for 26 minutes. Another person
working for Freeman testified that she heard people having sexual
intercourse. When Hill exited the bathroom, he was still wearing gloves but
neither his shirt nor his necklace. He threw his shirt into a trash can, put on
his necklace, and made the sign of the cross. Freeman’s other employee
entered the bathroom and found L.R. unresponsive with her hair covering
her face and her pants pulled down. Freeman subsequently investigated, and,
determining that L.R. had died, recruited two individuals to help him dispose
of her body. Freeman thereafter banished Hill from the HanGil.
After Freeman’s arrest in 2019, law enforcement used the recorded
surveillance footage of his trap rooms to build their case against the HanGil’s
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principals. A series of indictments followed, with Hill being indicted on
October 9, 2019. After a superseding indictment that charged Hill with one
count of conspiracy to possess with intent to distribute a controlled
substance, Hill went to trial on April 7, 2021. The jury deadlocked, and the
district court declared a mistrial. The Government responded with a threecount superseding indictment, charging Hill with conspiracy to possess with
intent to distribute a controlled substance (count one), possession with intent
to distribute a Schedule II controlled substance (count two), and distribution
of a Schedule II controlled substance (count three). After a seven-day trial,
the second jury convicted Hill on counts one and three but acquitted him on
count two.
Hill was sentenced under 21 U.S.C. § 841(b)(1)(A) for conspiracy to
possess with intent to distribute a controlled substance, which, unlike its
more lenient neighboring subsections, carries a sentence of 120 months to
life. § 841(b)(1)(A)(iii). To obtain a conviction under § 841(b)(1)(A), the
Government must show that the defendant knew that the conspiracy involved
a minimum quantity of the controlled substance. The threshold for heroin is
one kilogram; for cocaine base, 280 grams. § 841(b)(1)(A)(i) & (iii). In Hill’s
case, the jury charge and verdict form—specifically, whether they facilitated
a jury finding that Hill had knowledge of the drug quantities involved in the
HanGil conspiracy—are at issue.
The jury charge given by the district court instructed the jury to
convict if it found that Hill “knew that the scope of the conspiracy involved
at least a detectable amount of heroin or at least 280 grams of a mixture or
substance containing cocaine base.”
The verdict form used special
interrogatories for the jury to determine specific drug quantities involved in
the conspiracy. The first asked whether the “substance that was intended to
be distributed as part of the conspiracy contained a detectable amount of
cocaine base,” and the jury checked “yes.” The next asked for the amount
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of cocaine base, and the jury checked “280 grams or more.” The last
question asked whether the conspiracy included a detectable amount of
heroin, and again the jury checked “yes.” The jury was not specifically asked
via the verdict form whether Hill knew the scope of the conspiracy
envisioned these amounts.
Post verdict, Hill raised several objections to the presentence
investigation report (PSR). Relevant here, he objected to the PSR’s drug
quantity determination.
The PSR recommended that Hill be held
accountable for one kilogram of cocaine base and one kilogram of heroin per
month for nine months. The PSR did not explain how it arrived at that
number, only stating the amounts were “consistent with what other
codefendants were held accountable for through the case[.]” In fact, the PSR
conceded that “[t]he specific quantities of narcotics being sold from each
room in the HanGil Hotel [are] unknown[.]” The district court overruled
Hill’s objection, finding that the PSR’s drug quantity determination was
supported by “statements of several unindicted co-conspirators and codefendants, former customers of [Hill’s], criminal background checks, and
evidence introduced at [Hill’s] trial.” Specifically, the court cited Hill’s own
statements in which he admitted to selling drugs at the HanGil and the trial
testimony of other witnesses who testified as to the amount of drugs
distributed each day.
Hill’s total offense level was 44, reduced to the maximum level of 43
allowed by the Guidelines, and his criminal history category was III. See
U.S.S.G., Ch. 5, Pt. A, cmt. (n.2). The result was a Guidelines range of life
imprisonment. The district court varied downward, tracking the proposed
EQUAL Act, then-pending legislation in Congress that would have
eliminated the sentencing disparity between crack and powder cocaine.
Thus, the court gave Hill the benefit of an unenacted law and sentenced him
as if it applied. In the end, the district court sentenced Hill to 480 months on
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the first count and 240 months on the second count, to run concurrently. Hill
timely appealed.
II.
Hill raises four issues on appeal. He contends that (A) the district
court imposed a “trial penalty” in sentencing him, i.e, the court sentenced
Hill more harshly than it otherwise would have because he went to trial. Hill
also argues that (B) the district court erred in determining the quantity of
drugs attributable to him, and he challenges (C) the propriety of the jury
charge and verdict form. Finally, Hill asserts that (D) the district court
imposed a substantively unreasonable sentence. Reviewing these arguments
in turn, we find each to be without merit.
A.
Hill asserts that the district court sentenced him more harshly because
he went to trial, thereby imposing a trial penalty. The Sixth Amendment
provides, in part, that “[i]n all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial.” U.S. Const. amend. VI. “[A]
defendant cannot be punished by a more severe sentence because he
unsuccessfully exercises his constitutional right to stand trial.” United States
v. Gozes-Wagner, 977 F.3d 323, 335 (5th Cir. 2020) (citation and quotation
marks omitted). A defendant can show a trial penalty in two ways: (1) by
comparison to the sentences of “similarly situated” defendants, or (2) by the
district court’s “plain[] state[ment] that it was punishing the defendant more
severely than it otherwise would because she went to trial[.]” Id. at 337
(citation omitted). In assessing the question, though, we remain mindful that
the “bargained-for leniency inherent in the plea negotiation process is not
available once a trial has been held[.]” United States v. Velasquez, 881 F.3d
314, 343 (5th Cir. 2018) (citation and quotation marks omitted).
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We have previously utilized two standards of review for trial penalty
claims. In one unpublished case, we applied de novo review. See United States
v. Molina, No. 20-11232, 2022 WL 3971588, at *4–5 (5th Cir. Aug. 31, 2022),
cert. denied, 143 S. Ct. 619 (2023). But in another, we reviewed the sentence
for plain error. See United States v. Guy, 633 F. App’x 851, 855 (5th Cir.
2015), as revised (Dec. 15, 2015). In any event, we need not pick the correct
standard today because Hill’s claim fails under even de novo review. See
Gozes-Wagner, 977 F.3d at 335 n.7 (similar).
Hill argues that the district court explicitly stated that it was
sentencing him more harshly because he went to trial, thus imposing a trial
penalty. He points to two comments from his sentencing, one by the
Government and another by the district court. Arguing that Hill deserved
life in prison, counsel for the Government stated:
[O]f all the defendants in this case . . . the only defendant that
did not . . . provide the Government with some assistance to
stop this madness was [Hill]. That’s why Mr. Freeman is not
in prison for the rest his life, that is why Mr. Washington is not
in prison for the rest of his life. Yes, they engaged in some
horrific acts, they were involved in this conspiracy, they were
high up in the food chain, but when they were caught, they
stepped up, they helped find [L.R.’s] body, they cooperated
and help[ed] identify all the other individuals that were
involved in this case. This Defendant chose not to. That’s his
right. That is absolutely his right to put the Government to the
test to come in here and prove its case. We did.
And in relevant part, the district court explained that it “agree[d] with the
Government’s counsel that as heinous as the crimes by Messrs. Freeman and
Washington were, it’s a very different situation there than here. They
accepted responsibility. They were both [Rule] 11(c)(1)(C) agreements [sic]
and so on.” Hill contends that these statements, considered together,
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indicate that both the Government and district court relied on Hill’s not
pleading guilty, i.e., his going to trial, to justify a significantly higher sentence
than his co-conspirators, Freeman and Washington, who both received 360
months.
We disagree. The statements made by the Government at sentencing
are only relevant insofar as they inform the meaning of the district court’s
statements. And the district court’s statements during Hill’s sentencing
must be viewed in context. See Gozes-Wagner, 977 F.3d at 340 n.12 (“One
stray comment does not create error when it can be understood in the context
of a lengthy sentencing hearing.”). The district court’s comments came
during its discussion of the 18 U.S.C. § 3553(a) sentencing factors.
Specifically, the court mentioned the need to avoid unwarranted sentencing
disparities among defendants before making the challenged statement. It is
thus reasonable to assume that the district court sought to distinguish
Freeman and Washington as not similarly situated for purposes of 18 U.S.C.
§ 3553(a)(6). See United States v. Duhon, 541 F.3d 391, 397 (5th Cir. 2008)
(stating that a “[d]isparity in sentences between a defendant who provided
substantial assistance and one who provided no assistance . . . is not
unwarranted” (citation and quotation marks omitted)).
Further, we do not read the district court’s recognition that Freeman
and Washington “accepted responsibility” as centering on their forfeiture of
their right to jury trial. Rather, we read that statement as indicative of
Freeman’s and Washington’s cooperation with the Government, especially
considering the district court’s recognition that their plea agreements were
reached pursuant to Federal Rule of Criminal Procedure 11(c)(1)(B), which
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indicates some level of cooperation.1
Moreover, during its extended
explanation of Hill’s sentence, the district court listed various reasons for the
sentence it was imposing—which incorporated a downward variance—
including Hill’s involvement in the conspiracy from start to finish, his violent
behavior, and his sexual assault of an incapacitated victim.
Finally, the district court considered that Freeman and Washington
were inapt comparators because they cooperated with the Government.
“[A] defendant who cooperates with the Government is not similarly
situated to one who refuses to do so.” Gozes-Wagner, 977 F.3d at 337
(citation omitted). “We cannot compare apples to oranges when deciding
whether a sentence is ‘more severe’ for trial penalty purposes.” Id. Based
on the record before us, we conclude that the district court did not make any
statement, plain or otherwise, that it was sentencing Hill more harshly
because he went to trial. And Washington and Freeman were not “similarly
situated” to Hill, so their sentences are irrelevant. We discern no reversible
error as to this issue.
B.
Hill next argues that the district court erred in calculating the drug
quantity attributable to him. We disagree.
A participant in a drug conspiracy is responsible for all drug quantities
with which he was “directly involved,” as well as for quantities “involved in
transactions carried out by other participants, if those transactions were
within the scope of, and in furtherance of, the jointly undertaken criminal
activity and were reasonably foreseeable in connection with that criminal
_____________________
1
The hearing transcript states that the plea agreements were made under Rule
11(c)(1)(C). But the Government clarified in its briefing that Freeman’s and Washington’s
plea agreements were struck pursuant to Rule 11(c)(1)(B).
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activity.” U.S.S.G. § 1B1.3, cmt. (n.3(D)); see United States v. Johnson, 14
F.4th 342, 347 (5th Cir. 2021). We review the district court’s drug quantity
determination for clear error. See United States v. Ekanem, 555 F.3d 172, 175
(5th Cir. 2009).
In calculating the drug quantity attributable to Hill, the PSR provided:
The specific quantities of narcotics being sold from each room
in the HanGil Hotel [are] unknown, which is primarily a result
of the difficulty in investigating this case . . . . However,
because no other way to calculate drug quantities is available,
and to remain consistent with what other codefendants were
held accountable for through the case, the defendant will be
held accountable for 1 kilogram of heroin and 1 kilogram of
cocaine base (crack) for each month Hill was involved in the
conspiracy.
Hill attacks these statements as unsupported, and thus insufficiently reliable
to support the district court’s ultimate drug quantity attribution. So he
argues we should remand for resentencing.
A PSR generally “bears sufficient indicia of reliability to be considered
as evidence by the sentencing judge in making factual findings.” United
States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012) (citations omitted).
“However, mere inclusion in the PSR does not convert facts lacking an
adequate evidentiary basis with sufficient indicia of reliability into facts a
district court may rely upon at sentencing.” United States v. Gentry, 941 F.3d
767, 788 (5th Cir. 2019) (internal quotation marks and citation omitted).
“Bald, conclusionary statements do not acquire the patina of reliability by
mere inclusion in the PSR.” Harris, 702 F.3d at 230 n.2 (citation and
quotation marks omitted).
“If the factual recitation in the PSR lacks
sufficient indicia of reliability, then it is error for the district court to consider
it at sentencing—regardless of whether the defendant objects or offers
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rebuttal evidence.” United States v. Zuniga, 720 F.3d 587, 591 (5th Cir. 2013)
(cleaned up).
Hill might be correct that the PSR, viewed in isolation, does not
contain facts carrying sufficient indicia of reliability to substantiate the drug
quantity determination. However, “[w]hen making factual findings for
sentencing purposes, a district court may consider any information which
bears sufficient indicia of reliability to support its probable accuracy.” Id. at
590 (citation and quotation marks omitted). Here, the district court “[found]
that the facts in the PSR [were] supported by statements of several
unindicted co-conspirators and co-defendants, former customers of [Hill’s],
criminal background checks, and evidence introduced at [Hill’s] trial.”
Specifically, the court cited Hill’s prior statements, in which he admitted to
selling drugs at the HanGil, and the trial testimony of other witnesses,
including Kimberly Robinson, who, like Hill, bagged and sold drugs for
Freeman. Robinson detailed the quantity of drugs distributed each day.2
_____________________
2
Robinson testified that she routinely sold at least two to three 25-gram “cookies”
of crack cocaine during a 12-hour shift, from just one of Freeman’s trap rooms. She also
testified that she sold “lots” of heroin, which was sold in 3.1-gram quantities for $125 each,
and could make as much as $3,000 during a good 12-hour shift. Working two or three shifts
a week, Robinson thus personally sold at least 100, and maybe over 200, grams of crack
cocaine during a week. Conservatively extrapolating, if approximately 100 grams of crack
cocaine were sold daily in this one trap room, well more than 1000 grams of crack cocaine
would plausibly have been sold from Freeman’s trap rooms each month. Based on
Robinson’s testimony alone, the PSR’s estimate was if anything conservative in its
calculations.
Similarly, Monica Saucedo testified that, as a bagger for Freeman, she sold
approximately $2,000 of heroin and five or six 14-gram “cookies” of crack cocaine (70
grams, on the low end) every day for Freeman. Assuming that 3.1-gram quantities of heroin
sold for $125, then Saucedo sold approximately 50 grams of heroin daily. Thus, well more
than one kilogram of heroin was sold monthly out of one of Freeman’s trap rooms, before
adding the quantity sold by Hill himself. As with the cocaine estimate, the PSR’s heroin
quantity calculation was, if anything, skewed in Hill’s favor.
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Considering this evidence, the court concluded that “the drug quantities in
the PSR [are] supported by a preponderance of the evidence.”
The district court’s reliance on evidence not expressly cited in the
PSR was consistent with our caselaw, see Zuniga, 720 F.3d at 590, and the
evidence provided an adequate basis for the PSR’s ultimate drug quantity
calculations, which the district court expressly found was calculated “to the
benefit of [Hill].” Notably, Hill also fails to rebut the evidence. The district
court’s determination of the quantity of drugs attributable to Hill was not
clearly erroneous.
C.
Hill challenges the propriety of the jury charge and verdict form as to
count one, which charged Hill with conspiracy to possess 280 grams or more
of a mixture containing a detectable amount of cocaine base with the intent
to distribute it, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A). As noted
supra in Part I, when the Government seeks an enhanced sentence under
§ 841(b)(1)(A), the jury must “determine the [drug] amount which each
defendant knew or should have known was involved in the conspiracy.”
United States v. Montemayor, 55 F.4th 1003, 1012 (5th Cir. 2022) (citation and
quotation marks omitted). A district court therefore errs if it imposes a
mandatory minimum under § 841(b)(1)(A) based on a jury finding of the drug
quantity attributable to the entire conspiracy, as opposed to the amount of
drugs the particular defendant knew, or should have known, was involved.
United States v. Haines, 803 F.3d 713, 741–42 (5th Cir. 2015).
Hill contends that the jury charge and verdict form did not require the
jury to find that he knew that the scope of the conspiracy included 280 grams
of cocaine base. The jury charge on this element instructed the jury to
determine whether Hill “knew that the scope of the conspiracy involved at
least a detectable amount of heroin or at least 280 grams of a mixture or
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substance containing cocaine base.” (emphasis added). Thus, though the
charge contained the requisite scienter, it was written in the disjunctive,
allowing for conviction under either a cocaine base or heroin theory of guilt.
According to Hill, because the verdict form did not include a special
interrogatory centered on his knowledge of the amount of cocaine base
involved in the conspiracy, the jury did not find that he had such knowledge.
Therefore, the Government failed to prove the required § 841(b)(1)(A)
elements, and Hill should not be subject to the mandatory minimum under
that subsection. Instead, the jury could only have convicted him of violating
§ 841(b)(1)(C), which carries a statutory maximum of 240 months, such that
his 480-month sentence under count one must be set aside.
Hill did not object to the jury charge or verdict form at trial.
Ordinarily, failure to abide by the contemporaneous objection rule
“precludes the raising on appeal of the unpreserved claim of trial error.”
Puckett v. United States, 556 U.S. 129, 135 (2009) (citation omitted). But
Federal Rule of Criminal Procedure 52(b) “recognizes a limited exception to
that preclusion,” in that “[a] plain error that affects substantial rights may be
considered even though it was not brought to the court’s attention.” Id.
(quoting Fed. R. Crim. P. 52(b)).
“To establish plain error, ‘a defendant must show (1) error, (2) that
is clear or obvious, and (3) that affected the defendant’s substantial rights.’”
Montemayor, 55 F.4th at 1010 (quoting United States v. Hinojosa, 749 F.3d
407, 411 (5th Cir. 2014)). If the first three prongs are satisfied, then the court
has the discretion to “remedy the error only if it (4) seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” Id. (citation
and quotation marks omitted). “Meeting all four prongs is difficult, as it
should be.” Puckett, 556 U.S. at 135 (quotation marks and citation omitted).
And the Supreme Court has “repeatedly cautioned that [a]ny unwarranted
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extension of the authority granted by Rule 52(b) would disturb the careful
balance it strikes between judicial efficiency and the redress of injustice[.]”
Id. (quotation marks and citation omitted).
We assume arguendo that there was clear or obvious error in the jury
charge and corresponding verdict form, though whether there actually was
plain error is at least debatable. The jury charge conformed to our pattern
jury instructions, see Fifth Circuit Pattern Jury Instructions
(Criminal Cases) 2.97 (2019), but contained two distinct theories of
guilt (cocaine and heroin). Any uncertainty caused by the “or” in the jury
charge is somewhat ameliorated by the verdict form’s special interrogatories,
because from them, we know that the jury convicted Hill of conspiracy to
possess with intent to distribute and found that the conspiracy involved at
least 280 grams of cocaine base. Nevertheless, we are left with the lack of an
express finding that Hill knew that the conspiracy involved at least 280 grams
of cocaine base, even if that is implied in the jury’s responses.
See
Montemayor, 55 F.4th at 1012–14; see also United States v. Benitez, 809 F.3d
243, 250 (5th Cir. 2015) (holding that the jury must find individualized drug
weight and a failure to do so “satisfies the first two prongs of the plain error
analysis”); cf. United States v. Gonzales, 841 F.3d 339, 346 (5th Cir. 2016)
(“With respect to special interrogatories, we have repeated the refrain that
they should not be used in criminal trials.” (cleaned up)).
More clearly, any error that occurred affected Hill’s substantial rights.
This prong of the analysis “may be satisfied by showing a reasonable
probability that, but for the error, the outcome of the proceeding would have
been different.” Montemayor, 55 F.4th at 1010 (citation and quotation marks
omitted). If Hill had not been convicted under § 841(b)(1)(A), then the
maximum sentence he faced for count one would have been 240 months, half
of the 480 months he received. See 21 U.S.C. § 841(b)(1)(C). Simply put,
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there is a reasonable probability that, but for the error, Hill would have
received a significantly shorter sentence. See Montemayor, 55 F.4th at 1013.
But even if Hill establishes the first three prongs of plain error, he
falters on the fourth. To succeed on plain error review, the error must
“seriously affect[] the fairness, integrity[,] or public reputation of judicial
proceedings.” Id. (citation omitted). Only then may we exercise our
discretion to remedy the error. See id. at 1010, 1013. In Montemayor, we
weighed whether to do so faced with a similar scenario, i.e., when the jury
had not made the requisite individualized drug finding. Id. at 1012–14. We
held that, notwithstanding clear error that affected their substantial rights,
the evidence against the defendants was “overwhelming,” so that the error
did not satisfy the fourth prong. Id. at 1014. We reach the same conclusion
in Hill’s case.
There was overwhelming evidence that Hill “knew or should have
known [the drug amount that] was involved in the conspiracy[.]” Haines,
803 F.3d at 741; see also Montemayor, 55 F.4th at 1014. Besides operating his
own trap room selling cocaine base, he also served as hotel security for Mun
and as an enforcer and bagger for Freeman. He served in these varied roles
from the time Mun bought the HanGil until late 2018. During his tenure
providing security, Hill would have been privy to each of the trap rooms and
known that cocaine base was being sold. And when working for Freeman,
Hill bagged cocaine base and facilitated its distribution while hundreds of
grams of cocaine base were sold out of Freeman’s trap rooms. See supra n.2.
Based on Hill’s personal involvement in the broader HanGil enterprise, his
personal drug dealing, and his work for Freeman, it is inconceivable that he
did not know that the conspiracy involved at least 280 grams of cocaine base.
Thus, regardless if there was plain error in the jury charge and verdict form,
Hill has “not shown that the fairness, integrity, or public reputation of the
judicial proceedings was seriously affected.” Monetmayor, 55 F.4th at 1014.
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D.
Finally, Hill asserts that the district court imposed a substantively
unreasonable sentence. Our review for substantive reasonableness “is highly
deferential[] because the sentencing court is in a better position to find facts
and judge their import under the § 3553(a) factors[.]” United States v. Diehl,
775 F.3d 714, 724 (5th Cir. 2015) (citation and quotation marks omitted). A
sentence below the Guidelines range enjoys a presumption of reasonableness.
United States v. Scully, 951 F.3d 656, 672 (5th Cir. 2020).
The Guidelines range calculated for Hill’s sentence was life
imprisonment. But the district court varied downward from the Guidelines
range, using the base offense level that would have applied under the
unenacted EQUAL Act to determine what the hypothetical range would be.
By sentencing Hill to 480 months, the district court thus gave Hill the benefit
of proposed legislation via a downward departure from the actual Guidelines
range. So the presumption of reasonableness most certainly applies here.
Hill can rebut this presumption “only upon a showing that the
sentence does not account for a [sentencing] factor that should receive
significant weight, it gives significant weight to an irrelevant or improper
[sentencing] factor, or it represents a clear error of judgment in balancing
sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009)
(citation omitted). Hill argues that the district court did not account for “the
need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct[.]” 18 U.S.C.
§ 3553(a)(6). Specifically, he points out that Mun, who owned the HanGil
hotel, only received 240 months; Freeman, the leader of the drug conspiracy
who tortured people with a blowtorch, only received 360 months; and
Washington, one of Freeman’s enforcers who helped Freeman torture
someone, only received 360 months.
16
Hill argues that his 480-month
Case: 22-10460
Document: 98-1
Page: 17
Date Filed: 09/01/2023
No. 22-10460
sentence creates an unwarranted disparity because he had a comparatively
minor role in the conspiracy and never tortured anyone.
Hill fails to rebut the presumption that his sentence was substantively
reasonable. For the same reasons as described supra in Part II.A., he was not
similarly situated to the other defendants. He did not plead guilty, and he did
not cooperate with the Government. See Duhon, 541 F.3d at 397 (stating that
a “[d]isparity in sentences between a defendant who provided substantial
assistance and one who provided no assistance . . . is not unwarranted”
(citation and quotation marks omitted)). The district court also expressly
considered the need to avoid unwarranted sentencing disparities among
defendants, but distinguished Hill from Freeman and Washington based on
their cooperation with the Government. We discern no abuse of discretion
in the district court’s sentencing Hill, and this claim lacks merit.
III.
Each of Hill’s four challenges to his sentence fails. The judgment of
the district court is therefore
AFFIRMED.
17
B
Case 3:19-cr-00086-S Document 1128 Filed 05/04/22
Page 1 of 7 PageID 6162
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS DALLAS DIVISION
UNITED STATES OF AMERICA
§
§
§
§
§
v.
BRYAN RESHAD HILL
§
§
JUDGMENT IN A CRIMINAL CASE
Case Number: 3:19-CR-00086-S(20)
USM Number: 59389-177
Kara Letisha Carreras
Defendant's Attorney
THE DEFENDANT:
D pleaded guilty to count(s)
D
D
pleaded guilty to count(s) before the U.S.
Magistrate Judge, which was accepted by the
Court
pleaded nolo contendere to count(s) which was
accepted by the Court
was found guilty on count(s) after a plea of not
guilty
Counts lss and 3ss of the Sixth Superseding Indictment, filed April
28,2021
The Defendant is adjudicated guilty of:
Title & Section/ Nature of Offense
21 U .S.C. § 846 Conspiracy to Possess with Intent to Distribute a Controlled Substance
21 U.S.C. § 84l(b)(l)(C) Distribution of a Schedule II Controlled Substance
Offense Ended
March 7, 2019
December 27, 2018
Count
lss
3ss
The Defendant is sentenced as provided in this Judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984.
The Defendant has been found not guilty on Count 2ss of the SL"\.1:h Superseding Indictment, filed April 28, 2021.
The Fourth Superseding Indictment, filed October 9, 2019, and the Fifth Superseding Indictment, filed July 7, 2020, are
dismissed on the motion of the United States as to this Defendant only.
It is ordered that the Defendant must notify the United States Attorney for this District within 30 days of any change of name, residence,
or mailing address m1til all fines, restitution, costs, and special assessments imposed by this Judgment are fully paid. If ordered to pay
restitution, the Defendant must notify the Court and United States Attorney of material changes in economic circumstances.
'Signature of Judge
KAREN GREN SCHOLER
UNITED STATES DISTRICT JUDGE
Name and Title of Judge
May 4, 2022
Date of Signahrre
22-10460.883
Case 3:19-cr-00086-S
Document
AO 245B (12/20-KGS)
Judgment in a Criminal
Case 1128 Filed 05/04/22
DEFENDANT:
CASE NUMBER:
Page 2 of 7 PageID 6163
Judgment -- Page 2 of 7
BRYAN RESHAD HJLL
3: 19-CR--00086-S(20)
IMPRISONMENT
The Defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of:
480 months as to Count lss and 240 months as to Count 3ss of the Sixth Superseding Indictment, to run concurrently.
The Court makes the following recommendations to the Bureau of Prisons:
that the Defendant be allowed to serve his sentence at FCI Seagoville, Seagoville, Texas or, alternatively, as close to the DallasFort Worth area as possible. Further, the Court recommends that the Defendant be allowed to participate in the Residential
Drug Abuse Program (RDAP) and any mental health treatment offered by the Bureau of Prisons, if eligible.
C8l
D
D
The Defendant is remanded to the custody of the United States Marshal.
The Defendant shall surrender to the United States Marshal:
D
at
D
0
as notified by the United States Marshal.
a.m.
D
p.m.
on
The Defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:
D
D
D
before#:## p.m./a.m. on
as notified by the United States Marshal.
as notified by the Probation or Pretrial Services Office.
RETURN
I have executed this Judgment as follows:
The Defendant delivered on
at
to
, with a certified copy of this Judgment.
UNITED STATES MARSHAL
By
DEPUTY UNITED STATES MARSHAL
22-10460.884
Case 3:19-cr-00086-S Document 1128 Filed 05/04/22
AO 245B (12/20-KGS) Judgment in a Criminal Case
DEFENDANT:
BRYAN RESHAD HILL
CASE NUMBER:
3:l 9-CR-00086-S(20)
Page 3 of 7 PageID 6164
Judgment -- Page 3 of 7
SUPERVISED RELEASE
Upon release from imprisomnent, the Defendant shall be on supervised release for a term of:
Five (5) years as to Count lss and three (3) years as to Count 3ss, to run concurrently.
MANDATORY CONDITIONS
You must comply with the standard conditions that have been adopted by this Court as well as with any additional conditions on
the attached page.
I.
You must not commit another federal, state, or local crime.
2.
You must not unlawfully possess a controlled substance.
3.
You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release
from imprisonment and at least two periodic drug tests thereafter, as detennined by the Court.
D
4.
D
s.
l8l
6.
D
7.
D
The above drug testing condition is suspended, based on the Court's determination that you pose a low risk of future
substance abuse (Check ifapplicable).
You must make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authori zing a sentence of
restitution (Check if applicable).
You must cooperate in the collection of DNA as directed by the probation officer (Check ifapplicable).
You must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C. § 2090 1, et seq.)
as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which you
reside, work, are a student, or were convicted of a qualifying offense (Check if applicable).
You must participate in an approved program for domestic violence (Check if applicable).
22-10460.885
Case 3:19-cr-00086-S Document 1128 Filed 05/04/22
AO 245B (12/20-KGS) Judgment in a Criminal Case
DEFENDANT:
CASE NUMBER:
Page 4 of 7 PageID 6165
Judgment-- Page 4 of7
BRYAN RESHAD HILL
3: l 9-CR-00086-S(20)
STANDARD CONDITIONS OF SUPERVISION
As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are
imposed because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed
by probation officers to keep informed of, report to the Court about, and bring about improvements in your conduct and condition.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of
your release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a
different time frame.
After initially reporting to the probation office, you will receive instructions from the Court or the probation officer about how
and when you must report to the probation officer, and you must report to the probation officer as instructed.
You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission
from the Court or the probation officer.
You must answer truthfully the questions asked by your probation officer.
You must live at a place approved by the probation officer. If you plan to change where you live or anything about your living
arrangements (such as the people you live with), you must notify the probation officer al least 10 days before the change. If
notifying the probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation
officer within 72 hours of becoming aware of a change or expected change.
You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation
officer to take any items prohibited by the conditions of your supervision that he or she obse1ves in plain view.
You must work full-time (at least 30 hours per week) at a la'vvful type of employment, unless the probation officer excuses you
from doing so. If you do not have full-time employment, you must try to find full-time employment, unless the probation
officer excuses you from doing so . If you plan to change where you work or anything about your work (such as your position
or your job responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the probation
officer at least 10 days in advance is not possible due to unanticipated circumstances, you must notify the probation officer
within 72 hours of becoming aware of a change or expected change.
You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has been
convicted of a felony, you must not knowingly communicate or interact with that person without first getting the permission of
the probation officer.
If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.
You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything
that was designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as
nunchakus or tasers).
You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant
without first getting the permission of the Court.
If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may
require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact
the person and confinu that you have notified the person about the risk.
You must follow the instructions of the probation officer related to the conditions of supervision.
U.S. Probation Office Use Only
A U.S. probation officer has instructed me on the conditions specified by the Court and has provided me with a written copy of this
Judgment containing these conditions. I w1derstand additional infonnation regarding these conditions is available at
www.txnp.uscourts.gov.
Defendant's Signature
Date
22-10460.886
Case 3:19-cr-00086-S Document 1128 Filed 05/04/22
AO 245B (12/20-KGS) Judgment in a Criminal Case
DEFENDANT:
CASE NUMBER:
Page 5 of 7 PageID 6166
Judgment -- Page 5 of 7
BRYAN RESHAD HJLL
3: l 9-CR-00086-S(20)
SPECIAL CONDITIONS OF SUPERVISION
The Defendant shall participate in outpatient mental health treatment services as directed by the probation officer until successfully
discharged. These services may include medications prescribed by a licensed physician. The Defendant shall contribute to the costs of
services rendered (copayment) at a rate of at least $10 per month.
The Defendant shall participate in an outpatient program approved by the probation officer for treatment of narcotic, drug, or alcohol
dependency that will include testing for the detection of substance use, abstaining from the use of alcohol and all other intoxicants during
and after completion of treatment, and contributing to the costs of services rendered (copayment) at the rate of at least $10 per month.
22-10460.887
Case 3:19-cr-00086-S Document 1128 Filed 05/04/22
AO 245B (12/20-KGS) Judgment in a Criminal Case
DEFENDANT:
CASE NUMBER:
Page 6 of 7 PageID 6167
Judgment -- Page 6 of 7
BRYAN RESHAD HlLL
3:19-CR-00086-S(20)
CRIMINAL MONETARY PENALTIES
The Defendant must pay the total criminal monetary pena !ties under the Schedule of Payments page.
TOTALS
D
D
Assessment
$200.00
Restitution
$.00
Fine
$.00
AVAA Assessment*
$.00
JVTA Assessment**
$.00
The determination of restitution is deferred until
An Amended Judgment in a Criminal Case (A 0245C) will be entered
after such determination.
The Defendant must make restitution (including community restitution) to the following payees in the amount listed below.
If the Defendant makes a partial payment, each payee shall receive an approximately proportioned payment. However, pursuant to 18
U.S.C. § 3664(i), all non-federal victims must be paid before the United States is paid.
D
D
D
Restitution amount ordered pursuant to plea agreement $
The Defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before
the fifteenth day after the date of the Judgment, pursuant to 18 U.S.C. § 3612(±). All of the payment options on the Schedule
of Payments page may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).
The Court detemrined that the Defendant does not have the ability to pay interest and it is ordered that:
D the interest requirement is waived for the
D
fine
D
restitution
D the interest requirement for the
D
fine
D
restitution is modified as follows:
* Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018, Pub. L. No. 115-299.
** Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22.
22-10460.888
Case 3:19-cr-00086-S
Document
1128
AO 245B (12/20-KGS)
Judgment in a Criminal
Case
DEFENDANT:
CASE NUMBER:
Filed 05/04/22
Page 7 of 7 PageID 6168
Judgment -- Page 7 of 7
BRYAN RESHAD HILL
3: l 9-CR-00086-S(20)
SCHEDULE OF PAYMENTS
Having assessed the Defendant' s ability to pay, payment of the total criminal monetary penalties is due as follows :
A
D
Lump sum payments of $ _ _ _ _ _ _ _ _ due immediately, balance due
D nol later than
, or
D in accordance with O C, D D, D E, or D F below; or
B
D
Payment to begin immediately (may be combined with D C, 0 D, D E, or D F below); or
C
D
Payment in equal _ _ ___ (e.g. , weekly, monthly, quarterly ) installments of$ _ __ __ over a period of
_ _ _ _ _ _ (e.g. , months or y ears), to commence _ _ __ (e.g., 30 or 60 days) after the date of this Judgment;
or
D
O
Paymenl in equal _ _ _ __ (e.g., weekly, monthly, quarterly) installments of$ _ _ _ _ _ over a period of
_ _ _ _ _ _ (e.g. , months or years), to commence _ _ _ _ (e.g., 30 or 60 days) after release from
imprisonment to a term of supervision; or
E
D
Payment during the tem1 of supervised release will commence wilhin _ _ _ _ _ (e.g. , 30 or 60 days) after release
from imprisonment.
The Court will set the payment plan based on an assessment of the Defendant' s ability to pay at that time; or
F
Special instructions regarding the payment of criminal monetary penalties:
It is ordered that the Defendant shall pay to the United States a special assessment of $100.00 for Count lss and $100.00
for Count 3ss of the Six1h Superseding Indictment, for a total aggregate of $200.00, which shall be due immediately. Said
special assessment shall be paid to the Clerk of the Court.
Unless the Court has exl)ressly ordered otheiwise, if this Judgment imposes imprisonment, payment of criminal monetary penalties is
due during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons' Inmate
Financial Responsibility Program, are made to the Clerk of the Court.
The Defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.
D
Joint and Several
See above for defendant and co-defendant names and case numbers (including the Defendant's number), total amount, joint and
several amount, and corresponding payee, if appropriate.
D
D
D
The Defendant shall pay the cost of prosecution.
The Defendant shall pay the following court cost(s):
The Defendru1t shall forfeit the Defendant' s interest in lhe following property to the United States:
Payments shall be applied in the following order: ( 1) assessment, (2) restitution principal, (3) restitution interest, (4) AVAA
assessment, (5) fine principal, (6) fine interest, (7) community restitution, (8) JVT A assessment, (9) penalties, and ( 10) costs,
including cost of prosecution and court costs.
22-10460.889
C
Case: 22-10460
Document: 109
Page: 1
Date Filed: 09/22/2023
No. 22–10460
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________________
United States of America,
Plaintiff–Appellee,
v.
Bryan Reshad Hill
Defendant–Appellant
__________________________________
On Appeal from the United States District Court
Northern District of Texas
Dallas Division
3:19-CR-00086-S
___________________________________
Appellant’s Petition for Rehearing
____________________________________
(Mr.) Leigh W. Davis
Texas bar no. 24029505
1901 Central Drive Suite 708
Bedford TX 76021
817.868.9500
817.591.4701 (fax)
lwd@leighwdavis.com
Case: 22-10460
Document: 109
Page: 2
Date Filed: 09/22/2023
Certificate of Interested Persons
The undersigned counsel of record certifies that the following listed
persons and entities as described in the fourth sentence of Rule 28.2.1
have an interest in the outcome of this case. These representations are
made so that the judges of this court may evaluate possible disqualification or recusal.
Parties
Bryan Reshad Hill
United States of America
Counsel
For Bryan Reshad Hill
Cody Lee Cofer
Cofer Luster Law Firm, PC
604 E. 4th Street, Suite 101
Fort Worth, TX 76102
682-777-3336
Fax: 682-238-5577
ccofer@coferluster.com
(trial counsel)
Kara Letisha Carreras
Carreras Law Group
2120 Mistletoe Suite 3
Fort Worth, TX 76110
Petition for Rehearing
No. 22-10460
Page i
Case: 22-10460
Document: 109
Page: 3
Date Filed: 09/22/2023
817-795-9956
kara@fortworthdefense.com
(trial counsel)
Melinda Joan Lehmann
The Law Office of Melinda Lehmann, P.C.
721 W. Abram St.
Arlington, TX 76013
817-559-2859
Fax: 817-402-2265
melinda@mlehmannlaw.com
(trial counsel)
(Mr.) Leigh W. Davis
1901 Central Drive, Suite 708
Bedford TX 76021
817.868.9500
817.887.2401 (fax)
leighwdavis@gmail.com
(appellate counsel)
For the United States of America
Rick Alan Calvert-DOJ, Jr
US Attorney's Office
1100 Commerce Street, 3rd Floor
Dallas, TX 75242
214-659-8675
rick.calvert@usdoj.gov
(trial counsel)
Amy J Mitchell-DOJ
US Attorney's Office
1100 Commerce St Third Floor
Dallas, TX 75242-1699
Petition for Rehearing
No. 22-10460
Page ii
Case: 22-10460
Document: 109
Page: 4
214-659-8771
Fax: 214-767-4104
amy.mitchell@usdoj.gov
(trial and appellate counsel)
Beverly Kristyne Chapman-DOJ
US Attorney
1100 Commerce Street 3rd Floor
Dallas, TX 75242
214-659-8747
Fax: 214-659-8803
beverly.chapman@usdoj.gov
(trial counsel)
Melissa A Childs-DOJ
United States Attorney's Office
1100 Commerce Street Third Floor
Dallas, TX 75242
214-659-8648
Fax: 214-659-8812
usatxn.ecfbounceback@usdoj.gov
(trial counsel)
Phelesa M Guy-DOJ
US Attorney's Office
1100 Commerce St 3rd Floor
Dallas, TX 75242
214-659-8600
Fax: 214-659-8809
phelesa.guy@usdoj.gov
(trial counsel)
Petition for Rehearing
No. 22-10460
Page iii
Date Filed: 09/22/2023
Case: 22-10460
Document: 109
Page: 5
Leigha Simonton
U.S. Attorney’s Office
Northern District of Texas
1100 Commerce Street Suite 300
Dallas, TX 75242-1699
214-659-8684
214-767-4104 (fax)
leigha.simonton@usdoj.gov
(appellate counsel)
s/ Leigh W. Davis_________
(Mr.) Leigh W. Davis
Petition for Rehearing
No. 22-10460
Page iv
Date Filed: 09/22/2023
Case: 22-10460
Document: 109
Page: 6
Date Filed: 09/22/2023
Statement Regarding Oral Argument
Oral argument would benefit the Court. The record is factually complex and presents significant issues for the Court’s resolution. This case
was orally argued on initial submission. If the Court grants rehearing,
Hill requests oral argument.
Petition for Rehearing
No. 22-10460
Page v
Case: 22-10460
Document: 109
Page: 7
Date Filed: 09/22/2023
Table of Contents
Certificate of Interested Persons ............................................................i
Statement Regarding Oral Argument....................................................v
Table of Contents ................................................................................vi
Table of Authorities ............................................................................vii
Statement of Jurisdiction .....................................................................ix
Statement of the Issues .........................................................................x
Statement of the Case ...........................................................................1
Summary of the Argument ...................................................................5
Argument and Authorities ....................................................................6
I. This panel should determine whether a PSR that bases a defendant’s relevant conduct drug quantity on bald, conclusionary statements without explanation or support is adequate as a initial matter.
This question is unanswered by the panel’s opinion. ........................6
Conclusion .........................................................................................11
Certificate of Service...........................................................................12
Certificate of Compliance ...................................................................13
Petition for Rehearing
No. 22-10460
Page vi
Case: 22-10460
Document: 109
Page: 8
Date Filed: 09/22/2023
Table of Authorities
Cases
Burns v. United States,
501 U.S. 129 (1991). ..........................................................................10
Gall v. United States,
552 U.S. 38 (2007). ..............................................................................9
United States v. Dabeit,
231 F.3d 979 (5th Cir. 2000). ...............................................................7
United States v. Diggles,
957 F.3d 551 (5th Cir. 2020) (en banc). .............................................10
United States v. Elwood,
999 F.2d 814 (5th Cir. 1993). ...............................................................7
United States v. Gentry,
941 F.3d 767 (5th Cir. 2019). ...............................................................8
United States v. Harris,
702 F.3d 226 (5th Cir. 2012). ...............................................................7
United States v. Huerta,
182 F.3d 361, 364–65 (5th Cir. 1999). .................................................7
United States v. Ollison,
555 F.3d 152 (5th Cir. 2009). ...............................................................7
United States v. Robinson,
741 F.3d 588, 599 (5th Cir. 2014). .......................................................9
Petition for Rehearing
No. 22-10460
Page vii
Case: 22-10460
Document: 109
Page: 9
Date Filed: 09/22/2023
United States v. Rochester,
898 F.2d 971 (5th Cir. 1990). .............................................................10
United States v. Zuniga,
720 F.3d 587 (5th Cir. 2013). ...............................................................8
Statutes, Rules, and other sources
18 U.S.C. § 3552..............................................................................5, 9
18 U.S.C. § 3553..................................................................................5
18 U.S.C. § 3742.................................................................................ix
21 U.S.C. § 846....................................................................................1
28 U.S.C. § 1291.................................................................................ix
Fed. R. Crim. P. 32. ..........................................................................5, 9
Petition for Rehearing
No. 22-10460
Page viii
Case: 22-10460
Document: 109
Page: 10
Date Filed: 09/22/2023
Statement of Jurisdiction
This Court’s jurisdiction is based on 18 U.S.C. § 3742 as Appellant is
appealing the imposition of an otherwise final sentence imposed pursuant to the Sentencing Reform Act of 1984 and on 28 U.S.C. § 1291
as Appellant is appealing the final judgment of conviction and sentence
in a United States District Court. Notice of Appeal was timely.
Petition for Rehearing
No. 22-10460
Page ix
Case: 22-10460
Document: 109
Page: 11
Date Filed: 09/22/2023
Statement of the Issues
I. This panel should determine whether a PSR that bases a defendant’s
relevant conduct drug quantity on bald, conclusionary statements
without explanation or support is adequate as a initial matter. This
question is unanswered by the panel’s opinion.
Petition for Rehearing
No. 22-10460
Page x
Case: 22-10460
Document: 109
Page: 12
Date Filed: 09/22/2023
Statement of the Case
Proceedings below
On September 26, 2019, a complaint was filed in the Northern District
of Texas charging Hill with a controlled substance offense in violation
of 21 U.S.C. § 846. ROA.41. Hill was arrested, and the government
sought his detention pending trial. ROA.56. He was appointed counsel
under the criminal justice act. ROA.60. Hill waived preliminary and
detention hearings, and the magistrate judge ordered him detained.
ROA.59, 61, 63. The Fourth Superseding indictment charged Hill with
two controlled substance conspiracies. ROA.65. After several continuances, Hill’s original attorney moved to withdraw from the case based
on a combination of her pregnancy, COVID, and pregnancy-related
risks. ROA.188, 196, 202. This motion was granted, ROA.10, and
new CJA counsel appointed. ROA.211. Due to the complexity of the
case, an additional attorney was appointed. ROA.220, 227. The July
2020 trial setting was continued to November 30, 2020. ROA.230.
The grand jury handed up the Fifth Superseding indictment.
ROA.237. Count One charged Hill with a drug conspiracy in violation
of 21 U.S.C. § 846. More specifically, Count One charged Hill with
Petition for Rehearing
No. 22-10460
Page 1
Case: 22-10460
Document: 109
Page: 13
Date Filed: 09/22/2023
conspiring to possess with intent to distribute a mixture and substance
containing a detectable amount of heroin and conspiring to possess
with intent to distribute 280 grams or more of a mixture and substance
containing a detectable amount of cocaine base. ROA.243.
After additional continuances, this case proceeded to trial on the
Fifth Superseding indictment on April 6, 2021. After 9 days of trial, the
jury was deadlocked, and the court declared a mistrial. ROA.21.
On April 28, 2021, the grand jury handed up a Sixth Superseding
indictment. ROA.512. That indictment repeated Count One from the
Fifth Superseding indictment, which charged Hill with a conspiracy to
possess with intent to distribute a detectable amount of heroin and
more than 280 grams of crack cocaine. ROA.518. It added two additional counts. Count Two charged Hill with possessing with intent to
distribute a mixture or substance containing a detectable amount of
cocaine base on November 27, 2018. ROA.521. Count Three charged
Hill with distributing a detectable amount of cocaine base on December 27, 2018. ROA.522.
On June 9, 2021, Hill proceeded to trial on the Sixth Superseding
indictment. ROA.27. After 8 days of trial, the jury reached a verdict.
The jury acquitted Hill of Count Two but convicted him of Counts
Petition for Rehearing
No. 22-10460
Page 2
Case: 22-10460
Document: 109
Page: 14
Date Filed: 09/22/2023
One and Three. Regarding Count One, the jury found Hill guilty of
both conspiring to possess with intent to distribute a mixture and substance containing a detectable amount of heroin and conspiring to possess with intent to distribute a mixture and substance containing 280
grams or more of cocaine base. ROA.856.
After several continuances, Hill was sentenced on April 25, 2022.
The district court sentenced Hill to 480 months on Count One and 240
months on Count Three to run concurrently. ROA.883.
Notice of appeal was timely. ROA.890. Trial counsel moved to
withdraw. ROA.892. This was granted and new counsel was appointed
for appeal. ROA.897.
This Court heard oral argument on August 9th. The opinion issued
on September 1st. The opinion affirmed. Appellant requested and the
Court granted a one-week extension to file a petition for rehearing.
This petition follows.
A brief case synopsis
The HanGil Hotel had been a nursing home. One of the defendants,
Mun, acquired it and converted it into a hotel. Mun allowed narcotics
traffickers to move in and take it over. In exchange, Mun charged them
Petition for Rehearing
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Date Filed: 09/22/2023
a higher room rate. Defendant Freeman led the drug conspiracy. He
was a very bad man. On at least two occasions he tortured someone
with a butane torch. These were captured on the video surveillance system Freeman had installed. Defendant Washington was one of Freeman’s enforcers and also sold narcotics. Washington assisted Freeman
in torturing one of the victims and recorded the other incident on his
phone. Hill had previously sold narcotics but at times relevant was an
enforcer for Freeman. Law enforcement became involved when several
deaths occurred at and from narcotics sold at the HanGil. Freeman,
Washington, and Mun waived trial and pleaded guilty. They were sentenced to 360, 360, and 240 months respectively. Hill went to trial,
was convicted, and was sentenced to 480 months. See generally
ROA.512–17, 4309–13.
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Date Filed: 09/22/2023
Summary of the Argument
Appellant Bryan Reshad Hill files this petition for rehearing asking that
the panel grapple with the one question left unanswered by its opinion:
whether a PSR that bases a defendant’s relevant conduct drug quantity
on bald, conclusionary statements without explanation or support is
adequate as a initial matter. The panel opinion did ultimately conclude
that the relevant conduct drug quantity in the PSR was supported by
adequate evidence—trial testimony and statements of codefendants and
coconspirators primarily—but left unanswered whether such a PSR
was adequate as an initial matter. Hill believes that this Circuit’s precedent; Fed. R. Crim. P. 32; 18 U.S.C. §§ 3552, 3553; and due process
require a PSR to provide information having an adequate evidentiary
basis and sufficient indicia of reliability so that a defendant may know
on what his sentencing guidelines are calculated. Therefore, Hill asks
the panel to address this issue.
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Document: 109
Page: 17
Date Filed: 09/22/2023
Argument and Authorities
I. This panel should determine whether a PSR that bases a defendant’s
relevant conduct drug quantity on bald, conclusionary statements
without explanation or support is adequate as a initial matter. This
question is unanswered by the panel’s opinion.
In the district court and on appeal, Hill complained that the PSR’s determination of his relevant conduct drug quantity was deficient. Appellant’s Brief at 19 et seq.; ROA.4288–4290. The PSR recognized that
there was no way to adequately calculate Hill’s relevant conduct, so it
opted to remain consistent with other defendants and use their relevant
conduct drug quantities. Appellant’s Brief at 20 (citing ROA.4262).
Hill complained that this was a guess and not a valid extrapolation
supported by evidence, that it was standardized sentencing amongst defendants, and that it was devoid of even any explanation for the
amounts attributed to other defendants and then to him. Appellant’s
Brief at 21–23. In the trial court, the Addendum’s response to Hill’s objection was merely that the quantities were calculated in his favor.
ROA.4299. At sentencing, the district judge concluded that the relevant conduct drug quantity calculation was supported by various types
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of evidence and overruled the objection. Slip Op. at 11. This panel affirmed on this basis. Slip Op. at 12.
Hill does not ask the panel to reconsider its conclusion that his relevant conduct drug quantity was supported by the sufficient evidence.
But he does ask this panel to consider the question left unanswered by
the opinion in this case—whether the PSR’s containing only bald, unsupported statements and conclusions about Hill’s relevant conduct
drug quantity is sufficient as a initial matter.
It is the rule in this Circuit that a PSR cannot merely include statements and thereby cloak them with the presumption of validity afforded information in the PSR. See United States v. Ollison, 555 F.3d 152,
164 (5th Cir. 2009). Rather, those statements must have“an adequate
evidentiary basis with sufficient indicia of reliability” before they are
“facts a district court may rely upon at sentencing.” United States v.
Harris, 702 F.3d 226, 230 n.2 (5th Cir. 2012). Only when the “facts
contained in the PSR … are supported by an adequate evidentiary basis
with sufficient indicia of reliability, … must [a defendant] offer rebuttal
evidence demonstrating that those facts are ‘materially untrue, inaccurate or unreliable.’” Id. at 230 (quoting United States v. Huerta, 182
F.3d 361, 364–65 (5th Cir. 1999)). This has long been the case.
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See United States v. Dabeit, 231 F.3d 979, 983 (5th Cir. 2000) (“The
PSR ... cannot just include statements, in hope of converting such
statements into reliable evidence, without providing any information
for the basis of the statements.”); United States v. Elwood, 999 F.2d
814, 817–18 (5th Cir. 1993) (“Bald, conclusionary statements do not
acquire the patina of reliability by mere inclusion in the PSR.”). A district court errs by considering such evidence at sentencing: “If the factual recitation in the PSR lacks sufficient indicia of reliability, then it is
error for the district court to consider it at sentencing.” United States v.
Zuniga, 720 F.3d 587, 591 (5th Cir. 2013) (cleaned up), quoted with
approval in United States v. Gentry, 941 F.3d 767, 788 (5th Cir. 2019).
Here, this panel has concluded that the district court did not err by
adopting the PSR’s relevant conduct drug quantity determination for
Hill. Slip Op. at 11 (relying on, amongst other things, trial evidence
and statements from co-defendants and co-conspirators). The panel
also placed emphasis on Hill’s failure to rebut this evidence: “Notably,
Hill also fails to rebut the evidence.” Slip Op. at 12. But there was no
evidence in the PSR or the Addendum. The evidence substantiating the
PSR’s relevant conduct drug quantity was from the trial and elsewhere
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and not even identified until the district judge cited it as a basis for
overruling Hill’s objection.
The obligation to prepare the PSR is on the probation officer. 18
U.S.C. § 3552(a). The PSR must comply with Rule 32. Id.; see also
Fed. R. Crim. P. 32(c)(1)(A). The PSR must “calculate the defendant's
offense level and criminal history category[.]” Fed. R. Crim. P. 32(d)(1)
(B). A properly calculated sentencing guidelines range is the beginning
point for sentencing in the post-Booker, advisory sentencing guidelines
world. United States v. Robinson, 741 F.3d 588, 599 (5th Cir. 2014)
(citing Gall v. United States, 552 U.S. 38, 49–50 (2007)).
In this case, overruling Hill’s procedural challenge to the sentencing
guidelines calculation in his PSR left him facing sentencing not knowing the basis of his relevant conduct drug quantity. In the absence of
facts with an adequate evidentiary basis and sufficient indicia of reliability, Hill had no obligation to rebut the PSR’s assertions. Only at sentencing when the district judge overruled his objections, did he learn
what the adequate evidentiary basis for his relevant conduct drug
quantity was. At that point, of course, it’s too late for him to rebut
that. This raises a serious due process concern about notice as a defendant is entitled to notice at sentencing. For example, Rule 32(e) is rePetition for Rehearing
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plete with minimum notice periods for the disclosure of the PSR and its
contents. A defendant must be given notice of an upward departure.
See Burns v. United States, 501 U.S. 129, 131 (1991). A defendant
must be given notice of conditions of supervised release. United States
v. Diggles, 957 F.3d 551, 557 (5th Cir. 2020) (en banc). Due process is
alive and well at sentencing. United States v. Rochester, 898 F.2d 971,
981 (5th Cir. 1990) (“Although, a defendant must be afforded some
degree of due process at sentencing, the same degree of process is not
required at sentencing as at trial.”). What’s more, this lack of an adequate evidentiary basis with sufficient indicia of reliability contravenes
circuit precedent for what is required in a PSR. This circuit’s caselaw
has been well-settled for three decades—the PSR must include facts
having an adequate evidentiary basis and with an adequate indicia of
reliability; unsupported, conclusionary statements are simply insufficient; only facially adequate information triggers the defendant’s obligation to rebut it. Affirming this sentence vitiates this caselaw.
Therefore, Hill asks this panel to reconsider its decision overruling
his procedural challenge to his sentence, vacate his sentence, and remand this case for re-sentencing with a PSR that determines his sen-
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tencing guidelines range and especially his relevant conduct drug quantity with sufficient facts.
Conclusion
Hill asks this panel to withdraw its opinion, find that the PSR was not
adequate, vacate his sentence, and remand this case for re-sentencing.
Respectfully submitted,
/s/ Leigh W. Davis__________
(Mr.) Leigh W. Davis
1901 Central Dr.
Suite 708 LB 57
Bedford, TX 76021
817.868.9500
817.591.4701 (fax)
State Bar No. 24029505
lwd@leighwdavis.com
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Date Filed: 09/22/2023
Certificate of Service
I certify that on September 22, 2023, I electronically filed this document with the Fifth Circuit of Appeals using the CM/ECF system
which will send notification of such filing to the following:
AUSA Amy Mitchell
/s/ Leigh W. Davis__________
(Mr.) Leigh W. Davis
Petition for Rehearing
No. 22-10460
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Document: 109
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Date Filed: 09/22/2023
Certificate of Compliance with Type-Volume Limitation, Typeface Requirements, and Type Style Requirements
1.
2.
This document complies with the type-volume limitation of Fed.
R. App. P. 32(a)(7)(B) because:
X
this brief contains 1,999 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or
□
this brief uses a monospaced typeface and contains [state
the number of] lines of text, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Fed. R.
App. P. 32(a)(5) and the type style requirements of Fed. R. App.
P. 32(a)(6) because:
X
this brief has been prepared in a proportionally spaced
typeface using Apple Pages 13.1 in 14 point Sabon LT Pro
with footnotes in 14 point Sabon LT Pro, or
□
this brief has been prepared in a monospaced typeface using [state name and version of word processing program]
with [state number of characters per inch and name of type
style].
s/ Leigh W. Davis______________
(Mr.) Leigh W. Davis
Attorney for Appellant
Dated September 22, 2023
Petition for Rehearing
No. 22-10460
Page 13
D
Case: 22-10460
Document: 111-1
Page: 1
Date Filed: 10/06/2023
United States Court of Appeals
for the Fifth Circuit
___________
No. 22-10460
___________
United States of America,
Plaintiff—Appellee,
versus
Bryan Reshad Hill,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CR-86-20
______________________________
ON PETITION FOR REHEARING
Before Duncan and Wilson, Circuit Judges, and Schroeder,
District Judge.*
Per Curiam:
IT IS ORDERED that the petition for rehearing is DENIED.
_____________________
* United
designation.
States District Judge for the Eastern District of Texas, sitting by
Case: 22-10460
Document: 111-2
Page: 1
Date Filed: 10/06/2023
United States Court of Appeals
FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE
CLERK
TEL. 504-310-7700
600 S. MAESTRI PLACE,
Suite 115
NEW ORLEANS, LA 70130
October 06, 2023
MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:
No. 22-10460
USA v. Hill
USDC No. 3:19-CR-86-20
Enclosed is an order entered in this case.
See FRAP and Local Rules 41 for stay of the mandate.
Sincerely,
LYLE W. CAYCE, Clerk
By: _________________________
Renee S. McDonough, Deputy Clerk
504-310-7673
Mr. Leigh Warren Davis
Mr. Brian W. McKay
Ms. Amy Jeannine Mitchell
Ms. Karen S. Mitchell
E
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.