Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06 CR 631-2-Virginia M. Kendall, Judge.
The opinion of the court was delivered by: Flaum, Circuit Judge.
Before CUDAHY, FLAUM, and SYKES,Circuit Judges.
A federal jury convicted Adonis House of two counts of distribution of crack cocaine, and the district court sentenced him to 188 months in prison, followed by five years of supervised release. On appeal, House raises three challenges to his sentence. First, he contends that the district court improperly made a two-point adjustment to his base offense level under the United States Sentencing Guidelines for obstruction of justice. Second, he contends that the district court failed to consider the disparity in sentences between crack cocaine and powder cocaine under the sentencing guidelines. Third, he contends that the district court did not correctly apply the sentencing factors in U.S.S.G. § 3553(a). For the following reasons, we affirm the conviction and sentence of the district court.
Adonis House was arrested and prosecuted as part of a broader federal narcotics investigation in Chicago. House's involvement began in February 2005, when he met with Sylvester Avery, a man who claimed that he was looking to get into the cocaine trafficking business, at a barber shop on Madison Street on the west side of Chicago. Avery asked House if he knew of anyone who could sell him narcotics, and House apparently told Avery that he would try to find out who could supply him. What House did not know at this time was that Avery was working as a government informant pursuant to a cooperation agreement. Later, in March 2005, Avery introduced House to John D. Morton, supposedly a high-level dealer from Madison, Wisconsin, but in fact the undercover identity of Mark Horton, a Supervisory Special Agent with the FBI. During the course of the next month, Avery and House talked numerous times over the phone and met at the barber shop; eventually, they agreed that House would sell Avery and Horton four-and-one-half ounces of crack cocaine for $2600 to $2700.
On April 5, 2005, Horton and Avery caught up with House at the barbershop for a prearranged meeting.
Horton gave House $2700 in cash to purchase four-and-a-half ounces of crack cocaine. House and Avery then drove to another location where they met with LaPriest Gary, who was supplying the crack cocaine. Gary, Avery, and House then went to a third location, where Gary obtained about four ounces of crack, which he exchanged for $2350 from House and Avery. Gary then drove Avery and House back to the barbershop, where House gave Avery a white bag filled with crack cocaine. Avery waited for Horton to leave the barbershop, and the two then drove away in Horton's undercover car (the crack cocaine was seized by the FBI at that time). Later, House met Avery and gave him $200 for setting up the deal.
On April 11, 2005, Avery called House about setting up a second drug deal. House told Avery that he had another source for crack cocaine, but that the price would be higher. On May 20, 2005, Avery, Horton, and House met at the barbershop on Madison Street and discussed buying four-and-a-half ounces of crack. House told Avery and Horton that his source had that much available for purchase, and that he would only need to drive over to the supplier in order to get it. Horton then gave Avery $2900 for the purchase. When House told Avery and Horton he would need to take the money with him, Avery decided to go to the supplier's location as well. House, Avery, and a third man, Frederick Young, then drove away from the barbershop. Avery gave House the $2900, and while Avery apparently did not witness an exchange between House and his supplier, House and Avery returned to the barbershop with crack cocaine, which was then turned over to Horton. Later that same day, House met Avery and gave him $250 for setting up the second deal.
Horton and House apparently spoke twice more, and they discussed the possibility of House supplying drugs for Horton's operation. According to trial testimony, House speculated on the price for as much as nine ounces or a quarter kilogram of crack at a time. However, those discussions and agreements were not part of the charges brought in this case.
On August 31, 2006, a grand jury in the Northern District of Illinois returned an indictment charging House with two counts of knowingly and intentionally distributing cocaine in the form of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. A jury trial in House's case began on June 5, 2007, and on June 7, the jury found House guilty on both counts. Sentencing in the case was originally scheduled for August 29, 2007, but was continued twice, first until September 24, and then for November 13. Immediately before the November 13 sentencing hearing, however, House moved to continue sentencing because he was also charged in a separate indictment before Judge Matthew Kennelly in the Northern District of Illinois, and House wanted the district court in this case to consider the pending charges as part of his relevant conduct for sentencing. The district court granted House's motion, and held a sentencing hearing on December 13, 2007. The jury verdict in House's trial included a special jury form to include a determination of drug amounts, and based on the amounts in the present case as well as the separate indictment, the district court calculated a base offense level of 34. The district court then imposed a two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1, finding that House had improperly attempted to influence Avery's testimony in the case. Working from the new base offense level of 36, the district court sentenced House to 188 months in prison, followed by five years of supervised release. This appeal followed.
House raises three issues in his appeal. First, he claims that the district court should not have imposed a two-level sentencing enhancement for obstruction of justice, as House only intended to confirm that Avery would testify at trial, rather than to obstruct justice by persuading Avery not to appear. Second, he seeks a remand so that the district court can consider the disparity between sentences for crack cocaine and powder cocaine offenses in the sentencing guidelines. Third, House argues that his sentence was unreasonable, given that he has no criminal history, is not a threat to re-offend, and does not present a danger to his community.
A. Whether the District Court Properly Applied a Two-Level Enhancement for Obstruction of Justice ...