In the

United States Court of Appeals

For the Seventh Circuit

No. 15-3067

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

STEVEN SYMS,

Defendant-Appellant.

Appeal from the United States District Court for the 

Southern District of Illinois.

No. 3:13-cr-30125-DRH-5 — David R. Herndon, Judge.

ARGUED SEPTEMBER 27, 2016 — DECIDED JANUARY 17, 2017

Before BAUER, ROVNER, and HAMILTON, Circuit Judges.

BAUER, Circuit Judge. This case involves a conspiracy to

distribute cocaine in St. Louis, Missouri, and the surrounding

area. One of the conspirators, Steven Syms, pleaded guilty to

conspiracy to distribute and possess with intent to distribute

cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), and

846. The district court sentenced Syms to 151 months’ im-
2 No. 15-3067

prisonment. On appeal, Syms argues that the mandatory

minimum sentence contained in 21 U.S.C. § 841(b)(1)(A)(ii)

violates the separation-of-powers doctrine. He also argues that

the district court improperly based its drug-quantity calculation and sentencing enhancement on speculative and unreliable evidence, and further contends that he qualified for a

safety valve reduction in his sentencing, and that his sentence

violates the Eighth Amendment. For the reasons that follow,

we affirm Syms’ sentence. 

I. BACKGROUND

Beginning in April 2011, multiple law enforcement agencies, including the Drug Enforcement Administration, Internal

Revenue Service, and United States Marshals Service, began

investigating a drug-trafficking operation based on information that Tyrone Carraway of St. Louis, Missouri, was supplying cocaine to brothers Cortez and Richard Yarbough of East

St. Louis, Illinois. During the course of the investigation, agents

gatheredinformation and collectedevidence throughconfidential informants, controlled buys of cocaine, witness interviews,

surveillance, and searches. The investigation revealed that

Carraway and coconspirator Richard Graham distributed

cocaine to the Yarbough brothers, and other defendants and

unidentified individuals. 

The ultimate source of Carraway and Graham’s supply was

Huey Jones of Houston, Texas. The intermediaries between

Jones, Carraway, and Graham were Syms and coconspirator

Antoine Meeks. Syms, Meeks, and an unindicted coconspirator, traveled to Houston to obtain cocaine from Jones.

Syms also recruited Keith Harris to transport drugs and money
No. 15-3067 3

between Houston and St. Louis; Harris transported the cocaine

and money in the gas tank of the vehicles he drove to retrieve

the drugs.

On April 27, 2012, Harris’ vehicle was searched during a

traffic stop. The search revealed 40 packages that each contained around .5 kilograms of cocaine, for a total of 19.91

kilograms. A fingerprint analysis of the packages showed

latent prints belonging to Syms, Meeks, Jones, and others. 

On October 14, 2012, agents conducted surveillance on

Syms, Meeks, and another individual. Syms drove to a

residence in St. Louis, at which time agents searched the

vehicle, residence, and garage and recovered two packages

that contained 982 grams of cocaine. At a post-arrest interview,

Meeks revealed that he and Syms had traveled to Houston to

obtain the drugs.

On June 18, 2013, a grand jury charged Syms with conspiracy to distribute, and possession with intent to distribute five

kilograms or more of cocaine in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A)(ii), and 846. On June 27, 2013, Syms

was arrested and released on a $10,000 unsecured appearance

bond. In a September 6, 2013, interview, Jones implicated Syms

in several additional trips to Houston throughout 2011

obtaining a total of 41 kilograms of cocaine. Jones advised that

the final shipment of cocaine was 19.91 kilograms that was

seized by law enforcement, a shipment that Syms helped to

deliver. Jones also stated that Syms sought to increase his role

in the conspiracy and the amount of cocaine that was being

transported so that he could sell it in St. Louis.
4 No. 15-3067

Agents interviewed Harris on September 10, 2013, who

described how Syms recruited him to be a courier for the drugtrafficking operation, and of Syms’ involvement in the trips to

Houston to obtain cocaine. 

Syms pleaded guilty to the one-count charge against him on

August 28, 2014. The United States Probation Office prepared

Syms’ Presentence Investigation Report. It detailed the

interview notes from Jones and Harris. Syms’ PSR determined

that he was responsible for conspiring with multiple defendants and others to possess and/or distribute 61.8 kilograms of

cocaine. Although the amount contained in the indictment was

5 kilograms or more, the PSR, relying in part on statements

from coconspirators, determined that Syms’ relevant conduct

was 61.8 kilograms of cocaine. 

Using the 2013 Guidelines Manual, the PSR recommended

a base offense level of 36. The PSR applied a three-level

enhancement, pursuant to U.S.S.G. § 3B1.1(b), for being a

manager or supervisor of a criminal activity involving five

or more participants. Syms was credited for acceptance

of responsibility, pursuant to U.S.S.G. §§ 3E1.1(a) and (b).

Accordingly, his total offense level was 36.

Syms filed a written objection to the PSR, challenging the

inclusion of the uncharged drug amounts and the manager/supervisor enhancement. He complained that the statements taken from coconspirators used to increase the drug

amount and apply the manager/supervisor enhancement were

self-serving and unreliable. The government filed its response

outlining the basis for the information used in the PSR, and

Syms withdrew his objections. Syms then filed a sentencing
No. 15-3067 5

memorandum which did not raise any of the constitutional

claims he raises before us but requested that the district court

impose the statutory minimum sentence of ten years.

At sentencing, the district court accepted the PSR. The court

calculated Syms’ base offense level at 34 using the 2014

Guidelines, which contained a change from the 2013 Guidelines that decreased Syms’ base offense level by two. After

applying the manager/supervisor enhancement and crediting

Syms with acceptance of responsibility, the district court

calculated Syms’ total offense level to be 34. The court found

that the statutory minimum sentence was ten years, and the

maximum was a life sentence. The court determined the

Sentencing Guidelines range to be from 151 to 188 months.

Before sentencing Syms, the court specifically asked Syms’

counsel if there were any other arguments made in mitigation

that he had not fully addressed, to which counsel replied,

“No.” The court then ordered Syms to pay a $500 fine and

sentenced him to 151 months in prison with five years of

supervised release. This appeal followed.

II. DISCUSSION

Syms first argues that mandatory minimum sentences

violate the separation-of-powers doctrine by granting prosecutors sole discretion in deciding whether to pursue charges that

carrymandatoryminimumsentences and stripping the judicial

branch of discretion in sentencing.

We flatly rejected a similar argument in United States v.

Nigg, 667 F.3d 929, 934 (7th Cir. 2012). We held that mandatory

minimum sentences did not violate the separation-of-powers

doctrine, recognizing that “determinate sentences were found
6 No. 15-3067

in this country’s penal codes from its inception[.]” Id. (internal

alteration omitted) (quoting Chapman v. United States, 500 U.S.

453, 467 (1991)); see also United States v. Brucker, 646 F.3d 1012,

1019 (7th Cir. 2011) (“We have rejected separation of powers

challenges to mandatory minimum sentences, and we see no

reason to revisit that holding here.”). We decline Syms’

invitation to upend well-settled precedent in this case.

We also note that the district court went above the mandatory minimum sentence of ten years, sentencing Syms to

twelve years and seven months. The district court determined

the Guidelines range and then used the factors set forth in 18

U.S.C. § 3553(a) in fashioning Syms’ sentence. Contrary to

Syms’ contention, the district court did use its discretion in

sentencing him. Syms’ sentence did not violate the separationof-powers doctrine. 

Next, Syms contends that the district court violated his

rights under the Fifth and Sixth Amendments when it sentenced him based upon uncharged conduct contained in the

PSR. Specifically, Syms argues that the district court’s conclusion that he was involved in distributing 61.8 kilograms of

cocaine in the operation was based upon unreliable information provided by his coconspirators. He further argues that the

Probation Department’s recommendation that Syms receive a

leadership role enhancement was similarly based upon

unreliable information from coconspirators.

The government counters that Syms waived this argument

by withdrawing his objections to the PSR, and we agree. Prior

to sentencing, Syms objected to the PSR, challenging the drug

quantity calculationandthemanager/supervisor enhancement
No. 15-3067 7

on the basis that they were based on unreliable coconspirator

statements. He later withdrew these objections and did not

renew them at sentencing. We have repeatedly found that a

withdrawal of an objection generally results in a waiver of that

argument on appeal, see, e.g., United States v. Venturella, 585

F.3d 1013, 1019 (7th Cir. 2009) (collecting cases), and Syms has

not put forth any argument warranting a deviation from that

holding.

In addition, the district court judge specifically asked Syms’

counsel whether he had considered all arguments in mitigation

of the sentence, to which she replied in the affirmative. The

judge took this step in order to ensure that any countervailing

factors had been appropriately considered, a practice that in

our view is to be commended. In United States v. Garcia-Segura,

we admonished defendants that if defense counsel answered

this question in the affirmative during sentencing, subsequent

challenges to the defendant’s sentence for failure to address a

principal mitigation argument would be waived. 717 F.3d 566,

569 (7th Cir. 2013). Accordingly, we find that Syms has waived

his challenges to the district court’s fact-finding at sentencing. 

Syms also argues that the district court erred by not

applying the “safety valve” provision in U.S.S.G. § 5C1.2 of

the Sentencing Guidelines in order to reduce his sentence.

The government argues that Syms failed to qualify for

the safety valve according to the plain language of the Guidelines.

The Mandatory Minimum Sentencing Reform Act of 1994

includes a safety valve provision that created more flexibility

in sentencing by permitting courts to sentence below the
8 No. 15-3067

minimum sentences fixed by statute. See 18 U.S.C. § 3553(f).

The Sentencing Commission added an analogous provision to

the Guidelines. See U.S.S.G. § 5C1.2. The safety valve is

intended to benefit “first-time, non-violent drug offenders who

were not organizers of criminal activity and who have made a

good-faith effort to cooperate with the government.” United

States v. Arrington, 73 F.3d 144, 147 (7th Cir. 1996); see also

United States v. Thompson, 76 F.3d 166, 171 (7th Cir. 1996)

(discussing legislative history of the statute and guideline).

In order to apply the safety valve, the court must find that:

(1) the defendant does not have more than 1

criminal history point, as determined under the

sentencing guidelines; (2) the defendant did not

use violence or credible threats of violence or

possess a firearm or other dangerous weapon

(or induce another participant to do so) in connection with the offense; (3) the offense did not

result in death or serious bodily injury to any

person; (4) the defendant was not an organizer,

leader, manager, or supervisor of others in the

offense, as determined under the sentencing

guidelines and was not engaged in a continuing

criminal enterprise, as defined in section 408 of

the Controlled Substances Act; and (5) not later

than the time of the sentencing hearing, the

defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that

were part of the same course of conduct or of a

common scheme or plan, but the fact that the
No. 15-3067 9

defendant has no relevant or useful other information to provide or that the Government is

already aware of the information shall not

preclude a determination by the court that the

defendant has complied with this requirement.

18 U.S.C. § 3553(f); see also U.S.S.G. § 5C1.2.

Thedefendant bears the burden of proving by a preponderance of the evidence his eligibility for safety valve relief. United

States v. Ramirez, 783 F.3d 687, 692 (7th Cir. 2015). Generally,

we review the district court’s factual findings concerning a

defendant’s eligibility for the safety valve for clear error. United

States v. Rebolledo-Delgadillo, 820 F.3d 870, 879 (7th Cir. 2016).

However, Syms raises this issue for the first time on appeal,

which impacts the standard of review. Consequently, he has

either forfeited or waived the argument. We will generously

assume that Syms’ silence on this issue until this point is the

result of a “failure to make a timely assertion of a right” rather

than an “intentional relinquishment[.]” Ramirez, 783 F.3d at

693 (quoting United States v. Olano, 507 U.S. 725, 733 (1993)).

Accordingly, we assume Syms merely forfeited his safety valve

request, which permits plain error review. See id. at 694 n.5

(noting that, in addition to our circuit, other circuits have

applied plain error review where the defendant failed to

request safety valve consideration before the district court). 

In any case, it is clear that Syms is not entitled to relief. The

district court determined that Syms was a manager/supervisor

of the operation, which precludes his qualifying for the safety

valve. Indeed, providing Syms with relief under the safety

valve would run counter to the purpose of the statute, which
10 No. 15-3067

is to reward those who have cooperated with the government

and did not organize the criminal activity. See Arrington, 73

F.3d at 147; see also United States v. Marin, 144 F.3d 1085, 1095

(7th Cir. 1998). There was no plain error by the district court.

Finally, Syms argues that his 151-month sentence is so

grossly disproportionate to his crime that it constitutes cruel

and unusual punishment under the Eighth Amendment. The

crux of Syms’ argument is that his sentence is disproportionate

because it is the same as that of coconspirator Meeks, who has

a more extensive criminal history than Syms.

The Supreme Court has recognized that “[t]he Eighth

Amendment, which forbids cruel and unusual punishments,

contains a narrow proportionality principle that applies to

noncapital sentences.” Ewing v. California, 538 U.S. 11, 20 (2003)

(citation and quotation marks omitted). But “narrow” does not

equate to strict proportionality. Id. at 23. Only extreme sentences that are “grossly disproportionate” to the crime will be

deemed cruel and unusual. Id. (citation omitted). Additionally,

“eighth amendment challenges to sentences that are both

prescribed by the guidelines, and within the statutory maximums established by Congress, are looked on with disfavor.”

United States v. Saunders, 973 F.2d 1354, 1365 (7th Cir. 1992)

(citation omitted).

In determining whether a sentence isgrossly disproportionate, the Supreme Court has outlined a three-factor test, which

considers: “(i) the gravity of the offense and the harshness of

the penalty; (ii) the sentences imposed on other criminals in the

same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” Solem v. Helm,
No. 15-3067 11

463 U.S. 277, 292 (1983). The first factor is a threshold factor; if

an inference of gross disproportionality is not established, we

need not conduct any comparative analysis within and

between jurisdictions. United States v. Gross, 437 F.3d 691,

692–93 (7th Cir. 2006).

In examining the first factor, the Supreme Court has

found that “[p]ossession, use, and distribution of illegal drugs

represent ‘one of the greatest problems affecting the health

and welfare of our population.’” Harmelin v. Michigan, 501 U.S.

957, 1002 (1991) (quoting Nat’l Treasury Emps. Union v. Von

Raab, 489 U.S. 656, 668 (1989)). The Court further detailed the

violence, crime, and social displacement that is attendant to the

possession and distribution of drugs in this country. Id. at

1002–04. Thus, we recognize the serious nature of the offense

that Syms committed.

Regarding the harshness of Syms’ sentence, we note that he

was sentenced within the statutory range, and at the lowest

end of the Guidelines range. “We have not in the past looked

very favorably upon Eighth Amendment challenges to

sentences that are prescribed under the guidelines and are

within the statutory maximums established by Congress.”

United States v. Jones, 950 F.2d 1309, 1317 (7th Cir. 1991). 

We have also permitted lengthier sentences for similar

crimes. See Saunders, 973 F.2d at 1365–66 (defendant’s 262-

month sentence for conspiring to distribute and intent to

distribute 13 ounces of cocaine was not grossly disproportionate); United States v. Washington, 109 F.3d 335, 338 (7th Cir.

1997) (“The cruel and unusual punishments clause of the

eighth amendment permits life imprisonment for a single drug
12 No. 15-3067

crime.” (citation omitted)). Therefore, we conclude that Syms’

sentence does not give rise to an inference of gross disproportionality. As a result, we need not conduct any comparative

analysis with Meeks’ sentence, or within and between jurisdictions. 

III. CONCLUSION

For the reasons stated above, we AFFIRM Syms’ sentence.