# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 13, 2013 Decided March 14, 2014

No. 08

- 3033

U NITED S TATES OF A MERICA
, A PPELLEE

v.

J OSEPH J ONES
, ALSO KNOWN AS J O J O
,

A PPELLANT

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

w ere 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. Atto rney, and Elizabeth Trosman , Assistant U.S. Attorney.

Before: G RIFFITH and K AVANAUGH
, Circuit Judges , and
W ILLIAMS
, Senior Circuit Judge

.

Opinion for the court filed by Circuit Judge G RIFFITH

.

G RIFFITH
, 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 subst antively 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

a ppellants’ arguments, we affirm.

I

In 2005, a grand jur y charged a ppellants 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 for3

crack cocaine in the Congress Park neighborhood of
South east Washington, D.C. , for nearly thirteen years. A fter eleven of the coconspirators pled guilty and one was
convicted at a trial of his own

, a ppellants proceeded to their
trial in February 2007 on charges that included crack
distribution and participation in a crack distribution conspiracy. 1 T he government’s evidence included recordings
of a ppellants engaging in sales of crack and testimony from several cooperating witnesses, including members of the alleged conspiracy and individuals who had purchased crack
from a ppellants

. 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 convictio n 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 distribu te crack in Congress
Pa rk and that he could foresee sales of over 500 grams of crack by his coconspirators. Based on th ese finding s , the
district court determined that the U.S. Sentencing Guidelines recommended a sentence of 324 to 405 months’ imprisonment. The court then imposed a n 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

o ffenses 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 dist rict 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 affe ct 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 crim es , 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. V arying below
the Guidelines again , the district court sentenced Thurston to
194 months and Ball to 225 month s. The district court justified these downward variances on grounds similar to
those given at Jones’s sentencing

. T he 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). W e review purely legal questions de novo
and factual findings for clear error, and we giv e “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 , w e consider the substantive
reasonableness of the sentence s 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; Uni ted
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 wit h 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 th at a mistake has been committed. ’ ” United States v. Brockenborrugh , 575 F.3d 726, 738 (D.C. Cir. 2009) ( quoting United Stat es 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 the6

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 witn esses 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 u nworthy 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 w hile 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 as sociated 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 a t 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 appella nts’ 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 fi nd 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 o f a number of factors , including, in descending order of importance, a common goal, interdependence among alleged participants, and overlap ping membership

. See
Graham , 83 F.3d at 1471; United States v. Tarantino , 846 F.2d 1384, 1393 (D.C. Cir. 1988) (per c uriam) . 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 attribute s 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 t he 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 with8

each other for sales,” Graham , 83 F.3d at 1471, the degree of interdependence and overla p 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 ra nges). 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 h ere, the district court specifically found
that appellants’ crack distribution offense s were part of a “common scheme” with Congress Park Crew members

, a finding that we have already determined was no t clearly erroneous. Appellants also challenge the district court’s
reliance on hearsay implicating them in the Congress Park Crew’s drug deal ing

, 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 sen tences solely on the ground that the ir sentences far
exceeded the norm for their crimes . But the average and median figures appellants cite reveal neither the full range of9

sentences meted out for their crimes nor how differences in
individual levels of cu lpabilit y 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 ac tually 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.”).
A ppellants fail to show that their case is exception al

, and w e 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 ca lculation, 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 pra c tice does not viola te the Sixth
Amendment when the conduct is established by a preponderance of the evidence and the sentence does not10

exceed the statutory maximum for the crime

. See United
States v. Settles , 530 F.3d 920, 92 3

- 2 4 (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 tria l by jury.”). This is true even when consideration of the acquitted conduct multipl i es 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 bin d 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. F ED

. R. A PP

. 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
i mposing 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 reach ed 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 ( 9 th Cir. 2007) (collecting cases from every numbered circuit but the Sixth).

We also lack any basis to reconsider the se ttled rule that enhancing a sentence within the statutory range bas ed 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 rel ies 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 on11

judge

- found facts to survive substantive reasonableness
review. S ee 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”); s ee also Gall v. United States , 552 U.S. 38, 60 (2007) (Scalia, J., concurring).

W hatever 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 f orbid 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 a mong the courts of appeals the consensu s is clearer still: e very circuit to
have considered such challenge s 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; se e United States v. Norman , 465 F. App’x 110, 120

- 21 (3d Cir. 2012) (collecting cases). And tho ugh our circuit has not specifically considered such challenge s , 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
fou nd 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 c ircuit 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 violate d 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, beca use 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 F ED

. R. A PP

. P . 28(a)(8)(A) (requiring an appellant’s brief to
contain “a ppellant’s contentions and the reasons for them, with
citations to the authorit ies . . . 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 bri efing 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 senten ce 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 rece ived. Oral Arg. Record ing 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.