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United States v. Howell

May 29, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
CHARLES C. HOWELL, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of Illinois. No. 05-CR-40113-Joe Billy McDade, Judge.

The opinion of the court was delivered by: Flaum, Circuit Judge

ARGUED FEBRUARY 21, 2008

Before FLAUM, RIPPLE, and ROVNER, Circuit Judges.

Charles Howell lived in Seattle, Washington and mailed drugs to the Midwest. He received assistance in this process from at least two individuals. Eventually, he was caught, and charged with possession with intent to distribute marijuana and ecstasy and conspiring to do the same. The district court increased his sentence for serving as a manager or supervisor in the context of the criminal activity, and we affirm.

Background

Early in 2003, Howell obtained a post office box at a mail service business called Mail Services and More. He used that service to mail packages of marijuana to Tennessee. Howell established a relationship with the sole Mail Services employee, Ben Guevarra. Every time Howell shipped a package from that location (and he did so over 100 times during the course of the conspiracy), he paid Guevarra $50 to $200 in cash on the side. Usually, Howell would bring the packages to the center himself. On some occasions, Howell would bring the package, give Guevarra the money, and ask him to fill out the packing slip and send it for him. The money for the drugs would often be sent back to the same location, so Howell would go to the center to pick up the cash. Guevarra would usually call Howell whenever a package arrived for him; this was not done for other customers. A few times, Guevarra kept the business open after closing at Howell's request.

At some point in 2002, Howell met Chad Scott, who also lived in Seattle. Scott started buying marijuana from Howell, and the two also appeared to become good friends. Scott learned that Howell shipped marijuana to Tennessee, and that he was about to take a trip there. He asked Howell if he could accompany him on this trip. At first, Howell refused, but then he changed his mind. He did not specify why he wanted Scott to come along, but Scott's understanding was that he was to serve as "the muscle to keep an eye on things." Scott was a significantly bigger and more intimidating figure than Howell. Howell paid all of Scott's expenses (e.g., plane ticket, meals) for the trip, which lasted a little over a week. They stayed in an apartment that Howell rented. Scott went along when Howell was conducting drug business, but he was never in the room when money was being counted or drugs were exchanged. At the end of the trip, Howell gave Scott $400 to $500.

In December 2002, Scott communicated to Howell that he needed money. It just so happened that Howell had given an individual in Memphis, Tennessee two pounds of marijuana in exchange for a Honda Prelude. Howell asked Scott and an unknown Asian male to travel to Memphis via plane and drive the vehicle from Memphis to Seattle. The two were to be given cash for their efforts. While in Memphis, Howell also wanted Scott and the unidentified male to pick up a dog that belonged to his half-brother, John Goode, and $4,000 from a female that owed him the money as part of a marijuana deal. Scott and his partner assented, and they eventually returned with the vehicle, the drug proceeds, and the dog.

Scott went down to Tennessee on a third occasion, this time with Howell, and stayed at a hotel. As was the case in their previous visit, Howell paid all expenses and did not explain why he wanted Scott to accompany him. Scott, again, assumed it was to protect Howell. Significantly,*fn1 when the two were flying back, Howell gave Scott a stack of cash (presumably drug proceeds) held together with a rubber band and asked him to carry it through airport security.*fn2 Agreeing to the task, Scott made his way through security without any problems. Once Howell cleared security, Scott gave him the money, and he then gave Scott a few hundred dollars. They parted ways at the airport, as Howell returned to Seattle and Scott flew to San Diego to visit his child and the child's mother.

At the end of 2003, Scott moved to Arizona, but he and Howell kept their relationship going. He would give Howell money, and Howell would then send him marijuana. During this period of time, Scott came into a substantial sum of money through a robbery. He subsequently sent several thousand dollars to Howell so that he would send three pounds of marijuana to Scott's uncle in the Quad Cities.*fn3 The thought was that the drugs could be sold at a higher price there as opposed to Arizona. This arrangement-where Scott would send money to Howell, and Howell would send drugs to Scott's uncle in the Quad Cities-continued for some time. Later, Howell introduced Scott to Guevarra, and told him to let Scott ship a package. Howell instructed Scott to pay Guevarra $100 to $150 extra per package. At this point, the nature of the arrangement changed, and Scott would obtain drugs from Howell and would then ship them himself to the Quad Cities through Mail Services and More. This continued for eight months, and during this time, Howell also started selling MDMA ("ecstasy") to Scott. Quantities ranged from 200 to 1000 pills per shipment. Scott then stopped buying ecstasy from Howell and instead bought directly from Howell's dealer.

In almost all instances, Scott would pay Howell up front before Howell would send him drugs. And the two never shared profits as a part of the Quad Cities operation. In total, about 25 to 30 of these packages were sent to the Quad Cities. Eventually, authorities intercepted one of these packages, and the arrangement fell apart.

On May 17, 2006, the grand jury returned a superseding indictment charging Howell with conspiracy to distribute both ecstasy and 100 kilograms or more of marijuana, and possession with intent to distribute the same substances. Howell pled guilty to the charges. The pre-sentence report recommended adding a four point enhancement to Howell's sentence for serving as an organizer or leader of the criminal activity. The district court stated that it was not convinced that Howell as an organizer or leader, but thought instead that his role was that of a manager or supervisor. As a result, Howell was given a three level enhancement under § 3B1.1(b) of the U.S. Sentencing Guidelines. This resulted in an advisory imprisonment range of 235 to 293 months, which was about 80 more months than would have been the case absent the enhancement. The district court subsequently sentenced Howell to 235 months' imprisonment. This appeal followed.

Discussion

The sole issue on appeal is whether the district court committed error in concluding that Howell managed or supervised at least one other participant in the drug distribution conspiracy. We review a district court's determination as to whether a defendant exercised a managerial role in the charged offense for clear error. United States v. Hall, 101 F.3d 1174, 1176 (7th Cir. 1996). The sentencing guidelines provide a three level increase for a defendant who was a manager or supervisor of the charged activity. U.S.S.G. § 3B1.1(b).*fn4 While the guidelines do not define the terms "manager" or "supervisor," the application note to this section suggests that the following seven factors be considered when deciding whether to enhance a defendant's offense level: (1) the exercise of decision-making authority; (2) the nature of participation in the commission of the offense; (3) the recruitment of accomplices; (4) the claimed right to a larger share of the fruits of the crime; (5) the degree of participation in planning and organizing the offense; (6) the nature and scope of the illegal activity; (7) the degree of control and authority exercised over ...


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