LINDA R. READE, Chief District Judge.
The matter before the court is the sentencing of Defendant Dion Thomas.
II. RELEVANT PROCEDURAL HISTORY
On December 8, 2011, a grand jury returned a six-count Indictment (docket no. 7) against Defendant and five other individuals. Count 1 of the Indictment charged Defendant with conspiring to distribute and possess with the intent to distribute 100 grams or more of a mixture or substance containing a detectable amount of heroin after having been previously convicted of a felony drug crime. Such offense is a violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846 and 851. Count 3 of the Indictment charged Defendant with distributing.54 grams of a mixture or substance containing a detectable amount of heroin after having been previously convicted of a felony drug crime. Such offense is a violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 851. The Indictment also contained a forfeiture allegation. On May 18, 2012, the government filed an Information (docket no. 91) pursuant to 21 U.S.C. § 851, notifying the court and Defendant of the government's intent to seek enhanced penalties against Defendant based on his August 25, 2009 conviction for possession with intent to deliver a controlled substance in the Circuit Court of Cook County, Illinois.
Defendant elected to proceed to trial and, on August 27, 2012, a jury trial on Counts 1 and 3 of the Indictment commenced. See August 27, 2012 Minute Entry (docket no. 170). On August 28, 2012, at the close of all of the evidence, Defendant moved for a judgment of acquittal on Counts 1 and 3, which the court denied. See August 28, 2012 Minute Entry (docket no. 173). The case was submitted to the jury and, on August 29, 2012, the jury returned guilty verdicts on Counts 1 and 3. See Jury Verdicts (docket no. 180). The jury specifically found that Defendant conspired to distribute and possess with the intent to distribute 100 grams or more of a mixture or substance containing a detectable amount of heroin. See id. at 2-3.
On September 12, 2012, Defendant filed a "Motion for a New Trial" (docket no. 186), which the court denied on November 8, 2012. November 8, 2012 Order (docket no. 216) at 9. Meanwhile, the United States Probation Office conducted a presentence investigation. On January 4, 2013, the Presentence Investigation Report ("PSIR") (docket no. 258) was filed. The court ordered briefing on the contested issues. See February 27, 2013 Order (docket no. 287). On March 11, 2013, the government filed an Amended Information (docket no. 290), which "correct[ed] the name of [D]efendant's crime of conviction from possession with intent to deliver a controlled substance' to possession of a controlled substance.'" Amended Information at 2 n.1. That same date, the government filed its Sentencing Memorandum (docket no. 291) and Defendant filed his Sentencing Memorandum (docket no. 292).
On March 25, 2013, the court held a sentencing hearing. See March 25, 2013 Minute Entry (docket no. 294). At the sentencing hearing, Defendant offered evidence, which the court received, and the parties argued their positions. The court indicated that it would receive further briefing, issue a written order addressing the contested issues and then reconvene the hearing to impose judgment. On March 29, 2013, the government filed its Supplemental Sentencing Memorandum (docket no. 296). That same date, Defendant filed his Supplemental Sentencing Memorandum (docket no. 297).
III. RELEVANT FACTUAL BACKGROUND
The trial evidence establishes that Defendant lived in Chicago, Illinois, and made frequent trips to Waterloo, Iowa, between approximately 2009 and 2011. In Waterloo, Defendant spent considerable time with his mother's sister, Katina McKenzie-Jackson, and his mother's brother, Essex McKenzie. According to the testimony of cooperating witnesses, Defendant's travel to and from Chicago was for the purpose of transporting heroin and crack cocaine to Waterloo for distribution to a variety of individuals, including Katina McKenzie-Jackson, Essex McKenzie, Arthur Scott (street name "Donta") and others.
Defendant came to the attention of law enforcement as a result of a wiretap on Arthur Scott's phone. During conversations, voice messages and text messages that spanned December 15, 2010, to January 13, 2011, Defendant and Arthur Scott discussed their drug transactions and the money Arthur Scott owed to Defendant from prior drug deals. During their conversations, Defendant and Arthur Scott did not use the word "heroin" but, instead, used code words and phrases. Some of these conversations were recorded while Defendant was incarcerated at the Linn County Correctional Center on unrelated charges. Defendant told Arthur Scott that he was locked up and instructed Arthur Scott to get a money order and give it to Defendant's "Auntie." During another recorded conversation, Defendant told Arthur Scott that his girlfriend, Anita, would be contacting Arthur Scott to give him the address to which he was to send a money order. During that same conversation from the Linn County Correctional Center, Defendant told Arthur Scott to go to Defendant's "Auntie's" house, go to the washroom and then call Defendant. Defendant said he would tell Arthur Scott where the "stuff" was in the washroom. Defendant told Arthur Scott to get in and out of his "Auntie's" house before she discovered "what's goin' on." In a follow-up phone call, Arthur Scott expressed concern that Defendant's "Auntie" had or would find the "stuff." During Katina McKenzie-Jackson's testimony, she confirmed that Defendant had left heroin in her bathroom closet. During Arthur Scott's testimony, he explained the meanings of the words and phrases used during the recorded conversations.
Katina McKenzie-Jackson and Essex McKenzie lived in apartments on Sherwood Court, across the parking lot from one another. Some of the drug transactions took place in that parking lot, including Lucious Simmons's controlled buy of.54 grams of heroin from Defendant on June 23, 2011. Although law enforcement agents watched the controlled buy from a distance and monitored the transaction through a microphone, the recording device worn by Lucious Simmons was apparently inadvertently turned off during the buy and thus no audio of it was preserved.
Other cooperating individuals, including Katina McKenzie-Jackson and Essex McKenzie, testified to the drug transactions that they engaged in on behalf of or with Defendant. Essex McKenzie knew of Defendant's girlfriend, Anita, who lived in Chicago. Darryl Williams, Arthur Scott's "right-hand man" in the heroin trade, testified that Defendant supplied heroin to Arthur Scott. Lewis Bolden testified that he bought heroin from Katina McKenzie-Jackson, which Katina McKenzie-Jackson stated she had received from Defendant. VonVetta Sawyers testified that he bought heroin from Arthur Scott when Arthur Scott had heroin. At times, VonVetta Sawyers had to wait for the heroin to be delivered to Arthur Scott by or from Defendant. Jamar Jones testified that he bought crack cocaine from Essex McKenzie, which Essex McKenzie stated he had obtained from Defendant. After Defendant and Essex McKenzie had a falling out, Jamar Jones continued to buy crack cocaine either directly from Defendant or through Katina McKenzie-Jackson.
While being detained on the instant federal charges, Defendant confided to Christopher Grover, another federal inmate, that he was being held as a result of a controlled buy during which he sold an informant.54 grams of heroin. Defendant told Christopher Grover that the audio recorder was not working during the buy. Defendant also stated that he brought 30 to 40 grams of heroin to Waterloo from Chicago to sell and that his aunt and uncle were selling the heroin for him. Defendant told Christopher Grover that, although the agents had monitored his phone calls from the Linn County Correctional Center, the word "heroin" was never spoken during the conversations and, thus, that was going to be his defense.
Defendant cross-examined all of the government's witnesses and elected to present evidence. Katina McKenzie-Jackson's husband, Kevin Jackson, testified that he did not know his wife was involved in heroin distribution, although he thought she might be using drugs. Kevin Jackson denied that their apartment on Sherwood Court was used to store or sell drugs. Debra McKenzie, Defendant's mother, acknowledged that Defendant had a girlfriend named Anita who lived in Chicago. Debra McKenzie attempted to discredit the testimony of her siblings, Katina McKenzie-Jackson and Essex McKenzie, and also attempted to establish that Defendant was in Chicago on June 23, 2011-the date of the controlled buy with Lucious Simmons. According to Debra McKenzie, Defendant was with her in Chicago helping to celebrate her birthday. In passing, Debra McKenzie mentioned that Defendant liked to gamble and frequented a casino in the Waterloo area with Essex McKenzie.
During rebuttal, the government presented evidence through an agent from the Iowa Division of Criminal Investigation as well as Player's Club records from the Isle of Capri Casino suggesting that Defendant was in the Waterloo area at the Isle of Capri Casino and not in Chicago on June 23, 2011.
IV. SENTENCING FRAMEWORK
A "district court should begin [a sentencing proceeding] with a correct calculation of the [defendant's] advisory Sentencing Guidelines range." United States v. Braggs, 511 F.3d 808, 812 (8th Cir. 2008). A defendant's Guidelines range "is arrived at after determining the appropriate Guidelines range and evaluating whether any traditional Guidelines departures are warranted." United States v. Washington, 515 F.3d 861, 865 (8th Cir. 2008).
"[A]fter giving both parties a chance to argue for the sentence they deem appropriate, the court should consider all of the factors listed in 18 U.S.C. § 3553(a) to determine whether they support the sentence requested by either party." Braggs, 511 F.3d at 812. "The district court may not assume that the Guidelines range is reasonable, but instead must make an individualized assessment based on the facts presented.'" Id. (quoting Gall v. United States, 552 U.S. 38, 50 (2007)); see, e.g., Nelson v. United States, 555 U.S. 350, 352 (2009) ("Our cases do not allow a sentencing court to presume that a sentence within the applicable Guidelines range is reasonable.").
The district court "has substantial latitude to determine how much weight to give the various factors under § 3553(a)." United States v. Ruelas-Mendez, 556 F.3d 655, 657 (8th Cir. 2009); see also United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc) ("[I]t will be the unusual case when we reverse a district court sentence-whether within, above, or below the applicable Guidelines range-as substantively unreasonable." (quoting United States v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir. 2008)) (internal quotation mark omitted)). "If the court determines that a sentence outside of the Guidelines is called for, it must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.'" Braggs, 511 F.3d at 812 (quoting Gall, 552 U.S. at 50). "The sentence chosen should be adequately explained so as to allow for meaningful appellate review and to promote the perception of fair sentencing.'" Id. (quoting Gall, 552 U.S. at 50).
V. EVIDENTIARY RULES
At a sentencing hearing, the court makes findings of fact using a preponderance of the evidence standard. See, e.g., United States v. Bah, 439 F.3d 423, 426 n.1 (8th Cir. 2006) ("[J]udicial fact-finding using a preponderance of the evidence standard is permitted provided that the [Sentencing Guidelines] are applied in an advisory manner."). The court considers a wide variety of evidence, including the undisputed portions of the PSIR, as well as the testimony and other evidence the parties introduced at the sentencing hearing. The court does not "put on blinders" and only consider the evidence directly underlying the offenses of conviction. In calculating a Guidelines range, for example, the court applies the familiar doctrine of relevant conduct. See USSG §1B1.3. The Eighth Circuit Court of Appeals has repeatedly held that a district court may consider uncharged, dismissed and even acquitted conduct at sentencing. See, e.g., United States v. Whiting, 522 F.3d 845, 850 (8th Cir. 2008). When relevant and "accompanied by sufficient indicia of reliability to support the conclusion that it is probably accurate, " the court credits hearsay. United States v. Sharpfish, 408 F.3d 507, 511 (8th Cir. 2005). The sentencing judge is afforded great discretion in determining the credibility of witnesses and making findings of fact. United States v. Bridges, 569 F.3d 374, 377-78 (8th Cir. 2009).
In his Sentencing Memorandum, Defendant identifies several issues for the court to decide. First, Defendant contends that his August 25, 2009 state-court conviction is not a qualifying predicate offense under 21 U.S.C. § 851 and, consequently, he is not subject to the enhanced penalties, including the ten-year mandatory minimum term of imprisonment, under 21 U.S.C. § 841(b)(1)(B). Second, Defendant objects to the Guidelines calculation in the PSIR, including the base offense level, the upward adjustment for role in the offense and his criminal history category. The court shall address each of Defendant's arguments in turn.
A. Section 851 Predicate Offense
In his Sentencing Memorandum, Defendant argues that his August 25, 2009 conviction for possession of a controlled substance, specifically, cocaine, "is not a proper predicate pursuant to 21 U.S.C. [§] 851." Defendant's Sentencing Memorandum at 2. Specifically, Defendant contends that, because the PSIR writer found that Defendant's distribution of crack cocaine constitutes relevant conduct under USSG §1B1.3 and because "the alleged federal offenses occurred from January 2007 through December 2011... [and] the conduct that gives rise to the [§] 851 conviction occurred in January 2009, " Defendant's August 25, 2009 conviction for possession of cocaine is relevant conduct and cannot serve as a predicate offense under 21 U.S.C. § 851. Id.
In its Supplemental Sentencing Memorandum, the government argues that Defendant's prior conviction is severable and distinct from the instant offenses and, therefore, is not relevant conduct; however, the government argues that, even if it were relevant conduct, the conviction is nevertheless a qualifying predicate offense under 21 U.S.C. § 851. In support of its argument, the government relies on United States v. McCarther, 596 F.3d 438 (8th Cir. 2010), which holds that "prior convictions may be considered for the § 841 enhancements even when the conduct underlying the convictions was part of the conspiracy, so long as an overt act in furtherance of the conspiracy occurred after the date the conviction became final." Government's Supplemental Sentencing Memorandum at 2 (quoting McCarther, 596 F.3d at 444) (internal quotation mark omitted). The government contends that, because the trial evidence establishes that Defendant committed acts in furtherance of the conspiracy in 2010 and 2011, whether Defendant's August 25, 2009 offense for possession of a controlled substance is relevant conduct is of no consequence for purposes of the 21 U.S.C. § 841(b) enhancement. Thus, the government maintains that Defendant's prior conviction is a qualifying predicate offense under 21 U.S.C. § 851 and, therefore, Defendant is subject to the enhanced penalties provided for under 21 U.S.C. § 841(b).
Title 21, United States Code, Section 841(b) provides:
If any person commits [an offense involving 100 grams or more of a mixture or substance containing a detectable amount of heroin] after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years and not more than life imprisonment..., a fine not to exceed the greater of twice that authorized in accordance with the provisions of Title 18, or $8, 000, 000 if the defendant is an individual...., or both.
21 U.S.C. § 841(b)(1)(B). Title 21, United States Code, Section 851 sets forth the procedure by which the government must establish that a defendant has a qualifying predicate offense to trigger such enhanced penalties; specifically, the government must file an information. 21 U.S.C. § 851(a). If the defendant "denies any allegation of the information of prior conviction, or claims that any conviction alleged is invalid, he shall file a written response to the information" and "[t]he court shall hold a hearing to determine any issues raised by the response which would except the [defendant] from increased punishment." 21 U.S.C. § 851(c)(1). The government bears the burden of proving beyond a reasonable doubt that the prior conviction is a ...