United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
On November 16, 2012, Defendant Gezo Goeong Edwards was convicted of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine from on or about January 2009 and continuing through at least April 26, 2011. Verdict Form, ECF No. . Prior to trial, which began in September 2012, the Government submitted a pre-trial notice pursuant to 21 U.S.C. § 851 regarding Defendant's prior conviction for Distribution of a Controlled Dangerous Substance. See Notice, ECF No. . The Government argues that as a result of this prior conviction, pursuant to 21 U.S.C. § 846, Defendant is subject to a sentence of not less than 20 years imprisonment nor more than life. Id. at 2. Following trial, the Government moved for an upward departure pursuant to the Sentencing Guidelines and filed a Notice of Intent to Present Evidence of Uncharged Criminal Conduct. See Govt.’s Mot. for Upward Departure (“Def.’s Mot.”), ECF No. . As part of Defendant’s history and characteristics, the Government sought to present evidence of three homicides and a home invasion, for which Defendant had never been charged, and one homicide for which Defendant was charged, but the charge was later dismissed in the District of Columbia Superior Court.
Def.’s Mot. at 2. The Government urged the Court to impose an upward variance in Defendant’s Guidelines sentence and impose a sentence of life imprisonment. Id. at 2. On November 5 and 7, 2013, the Court held a lengthy evidentiary hearing during which the Government presented evidence regarding Defendant’s alleged participation in the four homicides and the home invasion. The Government presented testimony from three witnesses, which the Defendant had the opportunity to cross-examine at length. The Defendant chose to call no witnesses, but entered documentary exhibits into evidence. The parties subsequently filed supplemental sentencing memoranda with the Court addressing the legal propriety of the Court considering such previous criminal conduct in determining Defendant’s sentence and the sufficiency of the evidence presented at the evidentiary hearing. See Def.’s Opp’n to Govt.’s Mot. for Upward Departure (“Def.’s Opp’n.”), ECF No. ; Govt.’s Reply to Def.’s Opp’n. (“Govt.’s Reply”), ECF No. .
This Memorandum Opinion exclusively addresses Defendant’s argument regarding the propriety of enhancing Defendant’s sentence pursuant to 21 U.S.C. § 851 and the Government’s Motion for an Upward Departure based on the homicides and the home invasion about which the Government presented evidence during the November 5 and 7, 2013, evidentiary hearing. The Court will also address Defendant’s Opposition to the Government’s Introduction of Victim Impact Statements and Motion to Recuse, which Defendant filed shortly before sentencing. See Motion to Recuse, ECF No. . All other matters related to the sentencing of Defendant Edwards will be addressed separately by the Court.
I. 21 U.S.C. § 851 Enhancement
As discussed above, prior to trial, the Government submitted a pre-trial notice pursuant to 21 U.S.C. § 851 regarding Defendant's prior conviction. This conviction has the effect of raising the mandatory minimum in this case from ten to twenty years. In his Memorandum in Aid of Sentencing, Defendant argues that the 21 U.S.C. § 851 enhancement “does not apply because it raises the mandatory minimum without a jury finding in violation of the Apprendi line of cases.” See Defendant’s Memorandum in Aid of Sentencing (“Def.’s Mem.”), ECF No. , at 13. Defendant cites to the Supreme Court's recent decision in Alleyne v. United States in which the Court held that "any fact that increases the mandatory minimum is an 'element' that must be submitted to the jury." 133 S.Ct. 2151, 2155 (2013). However, Defendant properly concedes that the Court in Alleyne continued to recognize the exception to the Apprendi rule for the fact of a prior conviction. See id. at 2160, n.1 ("In Almendarez-Torres v. United States, 523 U.S. 224 (1998), we recognized a narrow exception to this general rule for the fact of a prior conviction. Because the parties do not contest that decision's vitality, we do not revisit it for purposes of our decision today."). Defendant does not contest the underlying conviction on which the enhancement is based. Moreover, Defendant points to no legal authority questioning the prior conviction exception to Apprendi and courts have continued to apply this exception post-Alleyne. See, e.g., United States v. Cook, __Fed.Appx.__, 2014 WL 52749, *8 (6th Cir. 2014) (holding that the "district court's approach at sentencing complied with Alleyne" where the court "relied on the drug quantity found by the jury, the government's § 851 information, and [defendant's] admission to the charged prior felony drug offense to increase the statutory mandatory minimum penalty applicable to his drug convictions to ten years to life imprisonment."); United States v. Croft, 533 Fed.Appx. 187, 188 (4th Cir. 2013) (denying defendant's challenge to the increase of his mandatory minimum sentence based on the district court's finding of defendant's prior convictions by a preponderance of the evidence because Alleyne "did not disturb Almendarez– Torres v. United States, 523 U.S. 224 (1998), which authorizes a district court to apply an enhanced sentence based upon its finding of applicable prior convictions . . . ."); United States v. Stanley, __Fed.Appx.__, 2013 WL 6645423, *3 (10th Cir. 2013) (same). Accordingly, the Court denies Defendant's challenge to the increase in his mandatory minimum pursuant to 21 U.S.C. § 851.
II. Upward Departure Based on Uncharged Conduct
Defendant also challenges the Government’s Motion for an Upward Departure in Defendant’s sentence based on three homicides and one home invasion in which Defendant allegedly participated, but for which he has never been charged, and one homicide for which Defendant was charged, but the charge was later dismissed in the District of Columbia Superior Court. The Government argues that “regardless of the defendant’s Guidelines range . . . the Court may consider this conduct in imposing an upward variance in the defendant’s Guideline sentence, ” which the Government contends warrants a sentence of life imprisonment. Govt.’s Mot. at 2. In his Opposition to the Government’s Motion for an Upward Departure, Defendant effectively makes two arguments as to why the Court should not consider these prior uncharged acts of violence in calculating Defendant’s sentence. First, Defendant argues that sentence-enhancing facts must be proven to a jury beyond a reasonable doubt and that the Court’s reliance on this evidence would violate the Defendant’s Fifth and Sixth Amendment rights. Def.’s Opp’n. at 17. Second, Defendant argues that the Court should summarily reject the evidence presented at the evidentiary hearing because it is unreliable and Defendant was not given a “meaningful opportunity to rebut” the evidence. Id. at 3.
Each of Defendant’s arguments have been considered and rejected by the D.C. Circuit and other circuits. “[L]ong-standing precedents of the Supreme Court and [the D.C. Circuit] establish that a sentencing judge may consider uncharged or even acquitted conduct in calculating an appropriate sentence, so long as that conduct has been proved by a preponderance of the evidence and the sentence does not exceed the statutory maximum for the crime of conviction.” United States v. Settles, 530 F.3d 920, 923 (D.C. Cir. 2008)); see also United States v. Bras, 483 F.3d 103, 108 (D.C. Cir. 2007) (acknowledging that courts may rely on both acquitted and untried conduct when proven by a preponderance of the evidence); United States v. Dorcely, 454 F.3d 366 (D.C. Cir. 2006) (“consideration of acquitted conduct violates the Sixth Amendment only if the judge imposes a sentence that exceeds what the jury verdict authorizes”); United States v. Watts, 519 U.S. 148, 157 (1997) (“a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proven by a preponderance of the evidence”). This is true even if, as Defendant characterizes it, the uncharged conduct is unrelated to the offense of conviction. For example, in United States v. Moore, 484 Fed.Appx. 758 (4th Cir. 2012), cert. denied, 133 S.Ct. 676 (2012), the Fourth Circuit found the sentencing judge’s upward variance to the statutory maximum of life in prison reasonable where the defendant was convicted of one count of possession of ammunition by a convicted felon and one count of conspiracy to possess ammunition after having been convicted of a felony, but the Government had proven by a preponderance of the evidence the “[d]efendant’s violent and criminal history, including his possible participation in several [uncharged] murders.” Id. at 764. The sentencing judge considered the evidence of the uncharged murders in light of the 18 U.S.C. § 3553(a) factors and found that the “history and characteristics of the defendant” and the need for deterrence and “to protect the public from further crimes of the defendant” warranted an upward variance. Id. at 764-65. See also United States v. Santiago, 495 F.3d 820, 825-26 (7th Cir. 2007) (upward variance reasonable for defendant convicted of possession of crack cocaine with intent to distribute and with unlawful possession of ammunition by a felon where sentencing judge found by a preponderance of the evidence that defendant had participated in an unrelated and uncharged murder, which the Court considered in evaluating the 18 U.S.C. § 3553(a) sentencing factors).
Contrary to Defendant’s contentions, courts have repeatedly held that a sentencing judge’s consideration of such uncharged conduct does not violate the Fifth and Sixth Amendments, so long as the conduct is proved by a preponderance of the evidence. See, e.g., United States v. Powell, 650 F.3d 388, 391-93 (4th Cir. 2011) (holding that the Confrontation Clause does not apply at sentencing), cert. denied, 132 S.Ct. 350 (2011); United States v. Grubbs, 585 F.3d 793, 798-803 (4th Cir. 2009) (holding that, consistent with the Fifth and Sixth Amendments, a district court may consider uncharged conduct in determining a sentence, so long as that conduct is proven by a preponderance of the evidence); Santiago, 495 F.3d at 824 (rejecting defendant’s argument that sentencing judge could not consider uncharged conduct in calculating defendant’s sentence because the Sixth Amendment, as interpreted in Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v. Booker, 543 U.S. 220 (2005), required any fact that increased defendant’s sentence to be found beyond a reasonable doubt by a jury); Dorcely, 454 F.3d at 372 (“a sentencing court may ‘consider[ ] a defendant’s past criminal behavior, even if no conviction resulted from that behavior, ’ without violating due process.” (quoting Nichols v. United States, 511 U.S. 738, 747 (1994))); United States v. Miller, 450 F.3d 270, 273-74 (7th Cir. 2006) (holding that neither Crawford nor the combination of Crawford and Booker extend the defendant’s rights under the Confrontation Clause to sentencing proceedings).
Moreover, Defendant’s argument that he was not given a meaningful opportunity to rebut the evidence of Defendant’s involvement in the homicides and home invasion, is not correct. Prior to the evidentiary hearing, Defendant received substantial discovery related to each of the criminal incidents, including the names of witnesses, cooperating witnesses and informants, as well as their statements, grand jury transcripts of witness testimony, police reports, forensic reports, jail calls, and investigator notes. Govt.’s Reply at 4. These discovery materials also included information about other possible suspects and Defendant made use of this information in his cross-examination of the Government’s witnesses at the evidentiary hearing. Id. Defendant also had the opportunity to call his own witnesses, an opportunity that he did not take, and to introduce documentary evidence. See Miller, 450 F.3d at 274 (“The court offered [defendant] an opportunity to test his uncle's statements [at the sentencing hearing] in a way that could sift fact from fiction; the decision not to use this opportunity squelches [defendant’s] argument based on the due process clause.”). To the extent that Defendant is arguing that the Government’s reliance on hearsay precluded him from a meaningful opportunity to rebut the Government’s allegations, the Court notes that it is well established amongst the circuits that “the admission of hearsay testimony at sentencing does not violate confrontation rights.” Bras, 483 F.3d at 109 (assembling cases). Accordingly, the Court finds that the evidence the Government presented at the evidentiary hearing of Defendant’s participation in four homicides and a home invasion may properly be considered by the Court in determining Defendant’s sentence.
Nevertheless, the Court finds that the Government has not presented sufficient evidence upon which the Court can conclude, by a preponderance of the evidence, that Defendant actually participated in the homicides or the home invasion. Although the Court credits the testimony of the witnesses called by the Government during the evidentiary hearing, the Court finds that the testimony presented was either based on attenuated hearsay or lacked sufficient detail to link Defendant to the specific crime the Government alleged he participated in. The Court briefly addresses below the evidence related to each alleged criminal event.
As an initial matter, the Court notes that after the evidentiary hearing, Defendant submitted a sworn affidavit denying all of the criminal conduct for which the Government had presented evidence. See Gezo Edwards Affidavit, ECF No. [850-6], at ¶¶6-9. Defendant also submitted a sworn affidavit from Terrence Jones regarding the 1998 double homicide, in which Jones denies having any dispute with anyone at Clifton Terrace, where the homicide occurred. See Terrence Jones Affidavit, ECF No. [850-4], at ¶ 7. Even though Defendant had the opportunity to call witnesses at the evidentiary hearing, Defendant did not testify nor did he call any witnesses. The affidavits now submitted by Defendant offer broad, non-detailed denials of the Government’s allegations providing the Court with no way to evaluate their credibility. Thus, the Court shall give ...