United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 13, 2013 Decided March 14, 2014

No. 08-3033

UNITED STATES OF AMERICA,

APPELLEE

v.

JOSEPH JONES, ALSO KNOWN AS JO JO,

APPELLANT

Consolidated with 10-3108, 11-3031

Appeals from the United States District Court

for the District of Columbia

(No. 1:05-cr-00100-16)

Stephen C. Leckar, appointed by the court, argued the 

cause and filed the joint brief for appellant Antwuan Ball. 

Anthony D. Martin, appointed by the court, argued the 

cause and filed the joint brief for appellant Joseph Jones.

Jonathan Zucker, appointed by the court, argued the 

cause and filed the joint brief for appellant Desmond 

Thurston.
2

Jeffrey T. Green, Timothy O’Toole, and Arthur B. Spitzer 

were on the brief for amici curiae The National Association 

of Criminal Defense Lawyers, et al. in support of appellants.

Stratton C. Strand, Assistant U.S. Attorney, argued the 

cause for appellee. With him on the brief were Ronald C. 

Machen Jr., U.S. Attorney, and Elizabeth Trosman, Assistant 

U.S. Attorney.

Before: GRIFFITH and KAVANAUGH, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: Following a lengthy trial, a jury 

convicted Joseph Jones, Desmond Thurston, and Antwuan 

Ball of distributing small quantities of crack cocaine, but 

acquitted them of conspiracy to distribute drugs. At 

sentencing, the district court nevertheless found that all three 

defendants had engaged in the charged conspiracy and, based 

largely on that finding, sentenced them to terms of 

imprisonment ranging from fifteen to nearly nineteen years. 

They now appeal, arguing that their sentences were 

procedurally and substantively unreasonable and were

unconstitutionally predicated upon acquitted conduct. 

Thurston and Ball also argue that the district court 

impermissibly delayed sentencing them. Finding no merit in

appellants’ arguments, we affirm.

I

In 2005, a grand jury charged appellants and fifteen 

named coconspirators with narcotics and racketeering

offenses arising from their alleged membership in the 

Congress Park Crew, a loose-knit gang that ran a market for 
3

crack cocaine in the Congress Park neighborhood of 

Southeast Washington, D.C., for nearly thirteen years. After 

eleven of the coconspirators pled guilty and one was 

convicted at a trial of his own, appellants proceeded to their

trial in February 2007 on charges that included crack 

distribution and participation in a crack distribution 

conspiracy.1The government’s evidence included recordings 

of appellants engaging in sales of crack and testimony from 

several cooperating witnesses, including members of the 

alleged conspiracy and individuals who had purchased crack 

from appellants. On November 28, 2007, the jury returned its 

verdict, acquitting appellants of the conspiracy charge but 

convicting them of distribution. Based on appellants’ criminal 

records, Jones’s conviction carried a maximum sentence of 

thirty years’ imprisonment and Thurston’s a maximum of 

twenty years. Because of the larger quantity of crack 

involved, Ball’s conviction carried a minimum of five years 

and maximum of forty years. See 21 U.S.C. 

§ 841(b)(1)(B)(iii), (C). 

At Jones’s sentencing in May 2008, the district court 

found by a preponderance of the evidence that his crimes

were part of a common scheme to distribute crack in Congress 

Park and that he could foresee sales of over 500 grams of 

crack by his coconspirators. Based on these findings, the 

district court determined that the U.S. Sentencing Guidelines 

recommended a sentence of 324 to 405 months’ 

imprisonment. The court then imposed an actual sentence of 

 

1 The government also charged Jones and Ball with various 

violent crimes and all three appellants with participation in a 

racketeer influenced corrupt organization. Those charges are not 

relevant to this appeal, however, because the jury acquitted 

appellants of those charges, and the district court did not rely on the 

alleged conduct underlying them at sentencing. 
4

only 180 months, varying below the Guidelines due to 

concerns about the overall severity of punishments for crack 

offenses and considerations related to Jones’s background and 

crimes more particularly.

Thurston was sentenced on October 29, 2010, some 35 

months after the jury’s verdict, and Ball was sentenced on 

March 17, 2011, some 40 months after. Although the district 

court originally planned to sentence Thurston and Ball around 

the same time as Jones, it postponed their sentencing hearings 

after a co-defendant, who is not a party to this appeal, filed a 

post-trial motion that the district court believed might affect 

their convictions but that ultimately did not. That motion, 

which was filed in March 2008, was not resolved until July 

2010. During that period, Thurston and Ball repeatedly 

requested sentencing.

At sentencing, the district court found that their crimes, 

like Jones’s, were part of a conspiracy to distribute crack in 

Congress Park and that they could foresee that their 

coconspirators would distribute at least one-and-a-half 

kilograms of crack. Based primarily on those findings, the 

district court calculated Thurston’s Guidelines range as 262 to 

327 months and Ball’s as 292 to 365 months. Varying below 

the Guidelines again, the district court sentenced Thurston to 

194 months and Ball to 225 months. The district court 

justified these downward variances on grounds similar to 

those given at Jones’s sentencing. The district court also 

explained that it was reducing Thurston’s sentence by another 

twelve months, and Ball’s by another fifteen, to remedy any 

prejudice from the delays in their sentencings.

Appellants timely appealed their sentences, and we have 

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. 
5

II

We use a two-step analysis to review sentences. See Gall 

v. United States, 552 U.S. 38, 51 (2007). At the first step, we 

ensure that the district court committed no significant 

procedural error in determining the Guidelines ranges, such as 

calculating them based on factual findings that are clearly 

erroneous. See United States v. Settles, 530 F.3d 920, 923 

(D.C. Cir. 2008). We review purely legal questions de novo

and factual findings for clear error, and we give “due 

deference” to the district court’s application of the Guidelines 

to facts. United States v. Henry, 557 F.3d 642, 645 (D.C. Cir. 

2009). At the second step, we consider the substantive 

reasonableness of the sentences in light of the totality of the 

circumstances, reversing only if we conclude that the district 

court abused its discretion. See Gall, 552 U.S. at 51; United 

States v. Gardellini, 545 F.3d 1089, 1093 (D.C. Cir. 2008).

A

Appellants challenge the procedural reasonableness of 

their sentences principally on the ground that it was clear 

error for the district court to find that they had formed an 

agreement with members of the Congress Park Crew to

distribute crack. See United States v. Graham, 83 F.3d 1466, 

1471 (D.C. Cir. 1996) (“The essential element of conspiracy 

is an agreement with at least one other person to violate the 

law.”). Under the clear error standard, we must affirm the 

district court’s findings unless we are “‘left with the definite 

and firm conviction that a mistake has been committed.’”

United States v. Brockenborrugh, 575 F.3d 726, 738 (D.C. 

Cir. 2009) (quoting United States v. U.S. Gypsum Co., 333 

U.S. 364, 395 (1948)); see also United States v. Mohammed, 

693 F.3d 192, 202 (D.C. Cir. 2012) (holding that a district 

court’s factual findings were not clearly erroneous where the 
6

inferences it drew from evidence were “plausible”). We give 

especially strong deference to credibility determinations, see 

United States v. Delaney, 651 F.3d 15, 18 (D.C. Cir. 2011), 

because the district court has a “unique opportunity ‘to 

evaluate the credibility of witnesses and to weigh the 

evidence,’” Brockenborrugh, 575 F.3d at 738 (quoting 

Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 855 

(1982)). 

Appellants argue that the district court should not have 

credited the testimony of the cooperators, whom they describe 

as a rogues’ gallery unworthy of credence. Appellants catalog 

evidence that the cooperators repeatedly deceived authorities, 

perjured themselves, framed loved ones, abused drugs, 

breached plea agreements, and took money from the 

government. But while such facts may undercut the

cooperators’ credibility generally, they do not establish that it 

was implausible for the district court to credit particular 

aspects of their testimony, especially where, as here, the 

cooperators offered mutually corroborative accounts that 

appellants associated with named conspirators, sold crack in 

Congress Park during the period of the conspiracy, shared 

sales proceeds with other conspirators, and protected their 

control of the Congress Park drug trade against outside 

competitors. Cf. Graham, 83 F.3d at 1471-72 (rejecting 

sufficiency of the evidence challenge to narcotics conspiracy 

conviction where the government’s evidence consisted of 

testimony from six cooperating drug dealers, all of whom

vouched for the existence of a conspiracy and testified that the 

defendants were part of it). Indeed, for each of these critical 

facts concerning appellants’ involvement in the conspiracy, 

the district court relied only on testimony corroborated by at

least one, and usually several, other witnesses.
7

Furthermore, the district court was well aware of the 

cooperators’ credibility issues. For instance, the court

declined to impose an obstruction-of-justice enhancement on 

Ball based solely on one cooperator’s “uncorroborated 

report.” At the same time, the court explained that even giving

“full effect” to appellants’ impeachment of several 

cooperators would “not undermine the mutually corroborative 

evidence[]” establishing appellants’ involvement in the 

conspiracy. Given the highly corroborated accounts of 

appellants’ conspiratorial conduct and the district court’s 

evident care in weighing the evidence, it was not clearly 

erroneous to find that appellants had conspired to distribute 

crack in Congress Park.

Nor was it clearly erroneous for the district court to find 

that the evidence established a single conspiracy—a finding 

appellants challenge in hopes of reducing the amount of crack

sales attributable to them. In determining whether evidence 

establishes single or multiple conspiracies, we look for the 

presence of a number of factors, including, in descending 

order of importance, a common goal, interdependence among 

alleged participants, and overlapping membership. See 

Graham, 83 F.3d at 1471; United States v. Tarantino, 846 

F.2d 1384, 1393 (D.C. Cir. 1988) (per curiam). Appellants 

argue that the cooperators’ testimony established, at most, 

multiple drug cliques operating at different periods and 

comprising different members. But the evidence cited by the 

district court at sentencing establishes all three attributes of a 

single conspiracy: a common goal of selling crack for profit in 

Congress Park; interdependence in the forms of shared sales 

proceeds and the protection of turf against encroachment by 

outsiders; and overlap in membership both across time and 

among the different cliques. Given that we have found a 

single drug conspiracy even where the conspirators did not 

share profits with one another and “sometimes competed with 
8

each other for sales,” Graham, 83 F.3d at 1471, the degree of 

interdependence and overlap supports the district court’s 

finding that appellants engaged in a single conspiracy with the 

other members of the Congress Park Crew.

Appellants’ remaining challenges to the procedural 

reasonableness of their sentences need be addressed only 

briefly. They assert that the district court failed to show that

the acts of coconspirators attributed to them met the 

Guidelines’ definition of “relevant conduct.” See U.S.S.G. 

§ 1B1.3 (instructing courts to consider “relevant conduct” in 

determining Guidelines ranges). But “relevant conduct” 

includes acts “that were part of the same course of conduct or 

common scheme or plan as the offense of conviction,” id. 

§ 1B1.3(a)(2), and here, the district court specifically found 

that appellants’ crack distribution offenses were part of a 

“common scheme” with Congress Park Crew members, a 

finding that we have already determined was not clearly 

erroneous. Appellants also challenge the district court’s 

reliance on hearsay implicating them in the Congress Park 

Crew’s drug dealing, but such reliance poses no legal 

problem. Clear precedent permits hearsay to be used in 

sentencing decisions, United States v. Bras, 483 F.3d 103, 108

(D.C. Cir. 2007); see also 18 U.S.C. § 3661, and the 

testimony cited by the district court, which came from guilty 

plea proffers, was but one piece of a larger mosaic of 

evidence establishing appellants’ participation in a drug 

conspiracy.

B

Appellants challenge the substantive reasonableness of 

their sentences solely on the ground that their sentences far 

exceeded the norm for their crimes. But the average and 

median figures appellants cite reveal neither the full range of 
9

sentences meted out for their crimes nor how differences in 

individual levels of culpability affect variations in sentencing. 

Appellants’ Guidelines ranges, by contrast, reflect 

individualized assessments of their conduct, and those ranges, 

which were properly calculated, called for sentences 

significantly higher than those appellants actually received. 

Because it is well established that sentences that fall within 

the Guidelines range are entitled to a presumption of 

reasonableness, see United States v. Fields, 699 F.3d 518, 524 

(D.C. Cir. 2012) (citing United States v. Dorcely, 454 F.3d

366, 376 (D.C. Cir. 2006)), it is “hard to imagine” how we 

could find appellants’ below-Guidelines sentences to be 

unreasonably high, United States v. Mejia, 597 F.3d 1329, 

1343 (D.C. Cir. 2010); see also United States v. George, 403 

F.3d 470, 473 (7th Cir. 2005) (“It is hard to conceive of 

below-range sentences that would be unreasonably high.”). 

Appellants fail to show that their case is exceptional, and we

reject their challenges.

III

Appellants also argue that their sentences violated their 

Sixth Amendment right to trial by jury because they were 

based, in part, on appellants’ supposed involvement in the 

very conspiracy that the jury acquitted them of participating 

in. Take their acquitted conduct out of the calculation, they 

contend, and their Guidelines ranges would have been 

between 27 and 71 months, a mere fraction of the sentences 

they received.

Although we understand why appellants find sentencing 

based on acquitted conduct unfair, binding precedent of this 

court establishes that the practice does not violate the Sixth 

Amendment when the conduct is established by a 

preponderance of the evidence and the sentence does not 
10

exceed the statutory maximum for the crime. See United 

States v. Settles, 530 F.3d 920, 923-24 (D.C. Cir. 2008)

(citing United States v. Watts, 519 U.S. 148, 156-57 (1997)

(per curiam)); Dorcely, 454 F.3d at 371 (“[A] sentencing 

court may base a sentence on acquitted conduct without 

offending the defendant’s Sixth Amendment right to trial by 

jury.”). This is true even when consideration of the acquitted 

conduct multiplies a defendant’s sentence severalfold. See 

Dorcely, 454 F.3d at 370-71. Appellants, in effect, ask us to 

reconsider Settles and Dorcely. But not only do those 

decisions bind us, see LaShawn A. v. Barry, 87 F.3d 1389, 

1395 (D.C. Cir. 1996) (en banc), no subsequent decision by 

the Supreme Court or another circuit calls their validity into 

question. Cf. FED. R. APP. P. 35(b)(1) (suggesting contrary 

decisions by the Supreme Court or by another court of appeals 

as grounds for en banc review). Indeed, since the Supreme 

Court struck down the mandatory federal sentencing 

guidelines and freed judges “to exercise broad discretion in 

imposing a sentence within a statutory range,” United States 

v. Booker, 543 U.S. 220, 233, 243-44 (2005), every numbered 

circuit has addressed the constitutionality of sentencing based 

on acquitted conduct, and each one has reached the same 

conclusion reached by this court. See United States v. White, 

551 F.3d 381, 384-86 (6th Cir. 2008) (en banc); United States 

v. Mercado, 474 F.3d 654, 656-58 (9th Cir. 2007) (collecting 

cases from every numbered circuit but the Sixth). 

We also lack any basis to reconsider the settled rule that 

enhancing a sentence within the statutory range based on facts 

found by the judge, as opposed to the jury, does not violate 

the Sixth Amendment. See Settles, 530 F.3d at 923; Bras, 483 

F.3d at 107. Appellants’ challenge to this practice relies 

principally on Justice Scalia’s concurrence in Rita v. United 

States, 551 U.S. 338 (2007), which suggested that defendants 

should be permitted to challenge sentences that depend on 
11

judge-found facts to survive substantive reasonableness 

review. See Rita, 551 U.S. at 375 (Scalia, J., concurring)

(reading the majority’s opinion as not “rul[ing] out . . . Sixth 

Amendment challenges to sentences that would not have been 

upheld as reasonable on the facts encompassed by the jury 

verdict or guilty plea”); see also Gall v. United States, 552 

U.S. 38, 60 (2007) (Scalia, J., concurring). 

Whatever the merits of Justice Scalia’s argument, it is not 

the law. See Rita, 551 U.S. at 352 (majority opinion) (“This 

Court’s Sixth Amendment cases do not automatically forbid a 

sentencing court to take account of factual matters not 

determined by a jury and to increase the sentence in 

consequence.”). No Supreme Court majority has ever 

recognized the validity of such challenges, and among the 

courts of appeals the consensus is clearer still: every circuit to 

have considered such challenges has rejected them as 

inconsistent, in principle, with the post-Booker rule that “[f]or 

Sixth Amendment purposes, the relevant upper sentencing 

limit established by the jury’s finding of guilt is . . . the 

statutory maximum, not the advisory Guidelines maximum 

corresponding to the base offense level.” Settles, 530 F.3d at 

923; see United States v. Norman, 465 F. App’x 110, 120-21 

(3d Cir. 2012) (collecting cases). And though our circuit has 

not specifically considered such challenges, our precedent is 

equally categorical: judicial fact-finding does “not implicate 

the Sixth Amendment even if it yield[s] a sentence above that 

based on a plea or verdict alone.” Bras, 483 F.3d at 107

(internal quotation marks omitted). Accordingly, we must 

reject appellants’ Sixth Amendment claims. The district court 

did not violate their right to trial by jury by sentencing them 

within the statutory range based on acquitted conduct that it 

found by a preponderance of the evidence.
12

IV

Finally, Thurston and Ball argue that the district court 

violated their assumed right to speedy sentencing and ask that 

their sentences be reduced accordingly. Both the Supreme 

Court and this circuit have assumed without deciding that the 

Sixth Amendment protects the right to speedy sentencing. See 

Pollard v. United States, 352 U.S. 354, 361 (1957); United 

States v. Yelverton, 197 F.3d 531, 533 (D.C. Cir. 1999). We 

determine whether such a right was violated by balancing the 

four factors enumerated in Barker v. Wingo: the “‘[l]ength of 

[] delay, the reason for the delay, the defendant’s assertion of 

his right, and prejudice to the defendant.’” United States v. 

Gibson, 353 F.3d 21, 27 (D.C. Cir. 2003) (first alteration in 

original) (quoting Barker, 407 U.S. 514, 530 (1972)).

2

Here, however, we need not decide whether Thurston and 

Ball suffered a constitutional injury because we find that even 

if they did, the sentence reductions they received were 

adequate remedies. In Yelverton, we held that a reduction of 

“several months” was sufficient to remedy a 33-month delay 

where the defendant “ma[de] no claim that the delay affected 

 

2

Jones does not assert a speedy sentencing claim but suggests 

that the delays associated with Thurston and Ball’s sentencings 

denied him the right to a speedy appeal. We decline to consider this 

issue, however, because Jones offers only “bare-bones arguments”

unsupported by any citations to legal authority. Wash. Legal Clinic 

for the Homeless v. Barry, 107 F.3d 32, 39 (D.C. Cir. 1997); see 

also FED. R. APP. P. 28(a)(8)(A) (requiring an appellant’s brief to 

contain “appellant’s contentions and the reasons for them, with 

citations to the authorities . . . on which the appellant relies”); Ry. 

Labor Execs.’ Ass’n v. U.S. R.R. Ret. Bd., 749 F.2d 856, 859 n.6 

(D.C. Cir. 1984) (declining to resolve issue “on the basis of briefing 

which consisted of only three sentences . . . and no discussion of the 

relevant statutory text, legislative history, or relevant case law”).
13

his ability to present his position on his sentence or adversely 

affected the sentence he received.” Yelverton, 197 F.3d at 

538-39. Thurston and Ball similarly conceded at oral 

argument that the delay probably had little to no impact on the 

district court’s conspiracy finding, which drove the high 

sentences they received. Oral Arg. Recording at 47:45-48:18. 

Accordingly, we find that the twelve- and fifteen-month 

reductions that Thurston and Ball respectively received were 

adequate remedies for any speedy sentencing violation they 

may have suffered.

V

For the foregoing reasons, we affirm appellants’ 

sentences.