March 23, 2016
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF PENNSYLVANIA (D.C. No. 2-09-cr-00105-009)
District Judge: Hon. David S. Cercone
P. Bernard, Jr., Esq. [ARGUED] Counsel for Appellant.
Michael L. Ivory, Esq. [ARGUED] Rebecca R. Haywood, Esq.
Office of United States Attorney Counsel for Appellee
Before: GREENAWAY, JR., VANASKIE, and SHWARTZ, Circuit
SHWARTZ, Circuit Judge.
Douglas appeals his sentence, arguing that the District Court
incorrectly held him responsible for trafficking more than
450 kilograms of cocaine, erroneously applied sentencing
enhancements for abuse of a position of trust under U.S.S.G.
§ 3B1.3 and obstruction of justice under U.S.S.G. §
3C1.1, and failed to appropriately consider the disparity
between his sentence and those imposed on his
co-conspirators. For the reasons discussed below, we will
affirm the sentence with respect to the drug calculation and
enhancement for abuse of a position of trust, but reverse the
obstruction of justice enhancement.
participated in a conspiracy to distribute cocaine. The
conspiracy began years before he joined it, when Tywan
Staples, who lived in the San Francisco area, began supplying
marijuana to his cousin Robert Russell Spence in Pittsburgh.
Staples and Spence went from selling small amounts of
marijuana to shipping four to six kilograms of cocaine across
the country several times a month. After law enforcement
intercepted several packages containing money and drugs, the
conspirators began using couriers to carry drugs and money on
commercial flights. By 2008, six different couriers were
transporting cocaine out of the Oakland, California airport.
After two of the couriers were arrested, the conspirators
began using San Francisco International Airport
who worked at the "maintenance base" at SFIA, knew
Douglas, who was an airline mechanic for United Airlines.
Douglas had an Airport Operation Authority ("AOA")
badge that enabled him to enter the airport terminal without
being screened at a Transportation Security Administration
("TSA") checkpoint. Unlike Douglas, Staples did not
have the ability to enter the terminal without inspection.
For that reason, when Douglas asked Staples if he had
"any way [Douglas] could make some extra money, "
Staples invited him to join the conspiracy. Douglas accepted.
and Douglas facilitated the movement of cocaine in a simple
way. Staples would deliver the cocaine to Douglas packed in a
bag with clothing. Douglas would then smuggle the bag into
the terminal and either transfer it to a courier once inside
the secured area of the terminal, or board the plane as a
passenger with the drugs.
testified that Douglas assisted with the movement of the
cocaine "40 to 50 times, " transporting ten to
thirteen kilograms of cocaine on each occasion. App. 102.
Douglas transported drugs himself on seventeen occasions.
Unlike the couriers, he was not required to bring cash back
to California, so as to avoid any risk of being caught, which
would, in turn, shut down the conspiracy's San Francisco
distribution activities. Staples testified that Douglas was
paid $5, 000 each time that he smuggled cocaine into the
airport, and another $5, 000 each time he delivered a
airline records, the Government identified forty-six specific
flights departing from SFIA between January and November of
2009 that were associated with the conspiracy, including
seventeen flights on which Douglas personally transported
drugs, sometimes using his employee benefit tickets. These
flights included very short round trips that were
inconsistent with personal travel, and corresponded to phone
calls among the conspirators, the use of pre-paid credit
cards, and the timing of deposits into Douglas's bank
an investigation, a grand jury returned an indictment against
Douglas and twenty-one co-defendants. Douglas was charged
with conspiracy to distribute and to possess with intent to
distribute five kilograms or more of cocaine, in violation of
21 U.S.C. § 846, and conspiracy to engage in money
laundering, in violation of 18 U.S.C. § 1956(h). Douglas
was arrested and released on bail, subject to several
conditions, including travel restrictions and a requirement
that he appear for court proceedings. While Douglas was on
bail, the Probation Office discovered that he had booked a
flight to Jamaica without permission. At his bail revocation
hearing, Douglas claimed he had mistakenly booked a flight
for himself while booking a flight for his wife. The District
Court did not revoke his bail, but modified his conditions of
release to require him to call probation daily to verify his
trial was scheduled to begin on January 8, 2014. He failed to
appear for the first day of trial. The next day, he filed a
motion for a continuance claiming that he "was receiving
medical attention on January 8, 2014 and was unable [to be]
in court for that reason." Supp. App. 47. In connection
with the motion, Douglas submitted documents showing that he
was admitted to the emergency room around 2:00 a.m. on
January 8, complaining of chest pain. The records show that
he was treated with aspirin and intravenous insulin,
transported via ambulance to an urgent care facility, and had
a series of tests in both medical facilities. Douglas's
EKG revealed possible heart blockage, and his blood tests
indicated he had an abnormal white blood cell count, as well
as an elevated enzyme level that can be indicative of a heart
attack. He received instructions for taking eight
over-the-counter and prescription medications, in addition to
the medication he was already taking for diabetes. Douglas
was also instructed to schedule follow-up testing and
appointments with several specialists. Douglas was also given
a doctor's note bearing the time 4:12 p.m. asking that he
be excused from court on January 8.
on this evidence, the Government argued that it was
"possible that [Douglas] went there [at] 2:00 in the
morning faking this illness, so he wouldn't have to be
here today. It is also possible that that was a legitimate
illness. I don't think that anything in the records tells
us one way or the other." App. 388. Despite the hospital
records, the District Court stated that "[t]here's
no solid evidence, at least presented, that he was suffering
from a medical condition that warranted him not to appear.
It's really sort of ambiguous." App. 390-91.
Expressing concern that Douglas would not appear for jury
selection the following Monday, the District Court revoked
January 13, 2014, a jury was selected for the joint trial of
Douglas and a codefendant, but the next day, Douglas's
attorney withdrew, Douglas's case was severed, and his
trial was adjourned. His bail was reinstated but modified to
require home detention and electronic monitoring.
obtained new counsel and later waived his right to a jury
trial. At the bench trial, the Government offered testimony
from several coconspirators, law enforcement officers, and a
United Airlines supervisor. The Government also presented
documents corroborating their testimony. Following the trial,
the District Court convicted Douglas of both charges.
sentencing, the Probation Office submitted a pre-sentence
investigation report ("PSR") recommending that
Douglas be held responsible for 450 kilograms of cocaine,
resulting in a base offense level of 38. Applying the
grouping rules, the PSR recommended a two-level enhancement
pursuant to U.S.S.G. § 2S1.1(b)(2)(B), because Douglas
had been convicted of conspiracy to engage in money
laundering. The PSR also recommended a two-level enhancement
for abuse of a position of trust, pursuant to U.S.S.G. §
3B1.3, and a two-level enhancement for obstruction of
justice, pursuant to U.S.S.G. § 3C1.1, for a total
offense level of 44, which is treated as a 43, the maximum
offense level under the Guidelines, which corresponds to a
Guidelines sentence of life imprisonment. Douglas objected to
the drug quantity as well as to the upward adjustments for
obstruction of justice and abuse of a position of trust.
sentencing, the District Court overruled Douglas's
objections, citing Staples's testimony that Douglas
smuggled between 10 and 13 kilograms of cocaine between 40
and 50 times, and concluding based on the number of trips
that "there is ample evidence to show that [he] was
responsible for more than 450 kilograms of cocaine."
Supp. App. 236, 393, 403 (noting that his involvement was not
an "anomaly"), 411 (observing that the evidence
against him was "overwhelming").
District Court also noted the presence of "aggravating
factors, " including that Douglas "use[d] [his]
position of trust with the airlines and, more specifically,
[his] level of security clearance to aid [him] in being part
of th[e] conspiracy to distribute controlled substances and
the amount of drugs that . . . [was] transported with [his]
assistance was enormous." App. 411. As to the
obstruction of justice enhancement, the District Court relied
upon Douglas's failure to appear on the first day of
trial, but made no findings beyond those it made in its
tentative findings, in which it deemed the objection to the
enhancement to be "without merit." Supp. App.
determining the total offense level to be 43, the District
Court noted that it had "gone through all of the 3553
factors[, ] [ ] looked at them all to determine a sentence
that [wa]s sufficient but not greater than necessary, "
decided to vary downward from the Guidelines sentence of life
imprisonment, App. 411-12, and imposed a sentence of 240
months' imprisonment for each count, to be served
concurrently, followed by five years of supervised release.
review sentences for both procedural and substantive
reasonableness. United States v. Tomko, 562 F.3d
558, 567 (3d Cir. 2009) (en banc). At the first stage, in
which we review for procedural reasonableness, we seek to
ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence-including
an explanation for any deviation from the Guidelines range.
Id. (alteration omitted) (quoting Gall v. United
States, 552 U.S. 38, 50-51 (2007)). If the district
court's sentencing procedure "passes muster, we
then, at stage two, consider its substantive reasonableness,
" based on the totality of the circumstances.
Tomko, 562 F.3d at 567 (internal quotation marks
omitted); see also Gall, 552 U.S. at 51. Absent
significant procedural error, "we will affirm [the
sentence as substantively reasonable] unless no reasonable
sentencing court would have imposed the same sentence on
th[e] particular defendant for the reasons the district court
provided." Tomko, 562 F.3d at 568.
first review Douglas's challenge to the drug quantity
calculation and then address his arguments concerning the two
sentencing, "the government bears the burden of [proving
drug quantity] by a preponderance of the evidence."
United States v. Paulino, 996 F.2d 1541, 1545 (3d
Cir. 1993). While "some degree of estimation must be
permitted, " United States v. Collado, 975 F.2d
985, 998 (3d Cir. 1992), the district court must satisfy
itself that the evidentiary basis for its estimate has
sufficient indicia of reliability. See United States v.
Miele, 989 F.2d 659 (3d Cir. 1993) (drug quantity
estimation based solely on grand jury testimony of single
drug-addicted witness who had contradicted himself was not
sufficiently reliable). "'Indicia of reliability may
come from . . . corroboration by or consistency with other
evidence . . . .'" United States v.
Freeman, 763 F.3d 322, 337 (3d Cir. 2014) (quoting
United States v. Smith, 674 F.3d 722, 732 (7th Cir.
evidence supports the District Court's factual
determination that Douglas was responsible for more than 450
kilograms of cocaine. Staples testified that Douglas smuggled
" or 13 kilograms" of cocaine through SFIA
"40 to 50 times, " App. 102, which totals between
400 and 650 kilograms of cocaine. Staples knew the amount of
drugs because he provided Douglas with the cocaine, and
nothing in the record suggests that his perception or memory
was impaired in any way or that he provided inconsistent
information on this topic. Cf. Miele, 989 F.2d at
the Government corroborated Staples's testimony with
flight records, telephone toll records, and bank deposits. It
identified forty-six flights taken out of SFIA by various
drug couriers, including Douglas, all of which depended on
Douglas to smuggle drugs past security into the terminal.
Even if each flight involved only the minimum 10 kilograms of
cocaine, this would justify an estimate of over 450
kilograms. The fact that the number of flights was
established through circumstantial evidence does not mean
that reliance on it was error. See, e.g., United
States v. Jones, 531 F.3d 163, 175 (2d Cir. 2008)
("The quantity of drugs attributable to a defendant is a
question of fact. As such, if the evidence-direct or
circumstantial-supports a district court's preponderance
determination as to drug quantity, we must sustain that
the fact that Douglas used employee benefit tickets for some
of the trips does not undermine the conclusion that the trips
were taken for the conspiracy. Staples testified that Douglas
sometimes used his benefits for these flights, despite the
fact that doing so was riskier because he might be required
to wait longer to board a flight.
argument that cash deposits into his bank account could have
come from gambling is also unavailing. The regularity of the
deposits and the correspondence between the dates of the
deposits and the suspicious flights provides a reasonable
basis to infer that the flights were related to the
Staples's testimony and the documentary evidence provide
ample support for the determination that Douglas was
responsible for more than 450 kilograms of ...