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United States v. Haynie

United States District Court, D. Nebraska

July 31, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JARRELL HAYNIE, Defendant.

          SENTENCING MEMORANDUM

          JOSEPH F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE

         This Sentencing Memorandum supplements findings made on the record at defendant's sentencing hearing on July 2, 2018. For the reasons set forth below, the court finds the defendant's objections to the presentence investigation report, Filing No. 695, should be sustained in part and overruled in part, and the defendant's motions for a departure or a variance from the Guidelines, Filing No. 683 and Filing No. 687, should be denied.

         I. BACKGROUND

         The defendant was charged, along with others, in a four count Second Superseding Indictment (“SSI”). He was charged in Count 1 with involvement in racketeering in violation of 18 U.S.C. § 1962(d) (“RICO”). He was charged with five overt acts in furtherance of the racketeering enterprise in Count 1: using a firearm to shoot at victim #1 on or about September 25, 2008 (¶ 14); selling and distributing crack cocaine in Omaha from August 2011 to May 2013 (¶ 15); possessing with intent to distribute cocaine on or about November 25, 2011 (¶ 16); and arguing with victim #2 and shooting at a residence occupied by victim #2 on or about September 6, 2012 (¶ ¶ 20-21). In Count 2, the defendant was charged with attempted murder of victim #2 in aid of racketeering, in violation of Nebraska state statue §§ 28-201, 28-302, and 28-303, and in violation of 18 U.S.C. § 1959(a)(5) and section 2. In Count 3, Haynie was charged with attempted assault with a firearm, in aid of racketeering, in violation of Nebraska state statue §§ 28-201 and 28-309, in violation of 18 U.S.C. § 1959(a)(6) and section 2 on or about September 6, 2012. In Count 4, he was charged with discharging a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and 924(c)(1)(A)(iii), on or about September 6, 2012.

         The action was tried to a jury and the jury found Haynie guilty of racketeering (Count 1) but acquitted him of the remaining counts. Filing No. 633, Verdict. The court directed the United States Office of Probation (hereinafter, “the Probation Office”) to prepare a Presentence Investigation Report (hereinafter, “PSR”) that calculated the defendant's sentence under the United States Sentencing Guidelines (“the Guidelines”). Filing No. 635, Order on Sentencing Schedule.

         In the PSR, the Probation Office identified U.S.S.G. § 2E1.1 as the guideline applicable to a racketeering offense under 18 U.S.C. § 1962. Filing No. 704, PSR (Sealed). That guideline states that the base offense level for a racketeering offense is 19 or “the offense level applicable to the underlying racketeering activity.” U.S.S.G. § 2E1.1(a)(1) and (2). “Where there is more than one underlying offense, treat each underlying offense as if contained in a separate count of conviction for the purposes of subsection (a)(2).” U.S.S.G. § 2E1.1 cmt. n. 1. To determine whether subsection (a)(1) or (a)(2) results in the greater offense level, Chapter Three adjustments are applied, including adjustments for multiple counts, to both (a)(1) and (a)(2). Id.

         The Probation Office found four overt acts for purposes of grouping conduct connected to the underlying racketeering activity. Filing No. 704, PSR at 14. Group #1 included the conduct on September 25, 2008, involving the defendant shooting at victim #1 (Richard Johnson) who was believed to be an informant. Id. at 12. Group #2 included drug trafficking for which the defendant was sentenced in state court (Douglas County District Court case # CR13-1896), but because the conviction occurred after the last overt act, the conduct was treated as part of the instant offense, and not as a prior sentence under U.S.S.G. § 4A1.2(a)(1). Id. Group #3 included a drug trafficking offense for which the defendant was convicted in state court (Douglas County District Court case # CR11-2877), but because it resulted from a conviction prior to the last overt act of the instant offense, it was treated as a prior sentence under §4A1.2(a)(1) and not as part of the instant offense. Group #4 included the conduct on September 6, 2012, involving the defendant shooting at victim #2 (Michael Liggins) who was accused of talking to law enforcement. The conduct in Group #1 and Group # 4 was considered attempted murder and each group was assigned a base offense level of 33. The Group #2 conduct was considered drug distribution and assigned a base offense level of 19. Id. at 12-13. The group #3 drug distribution conduct was not assigned a base offense level because the defendant had been previously sentenced for the conduct. Id. at 13. The Probation Office conducted a multiple count adjustment under U.S.S.G. 3D1.4, which reslted in a 2-unit adjustment for a total offense level of 35. Id. at 14.

         The probation office next determined the defendant's criminal history category was V, based on the assessment of 9 criminal history points for convictions for drug possession, misdemeanor assault, no operator's license, driving under suspension, reckless driving, and obstruction of justice, and 2 criminal history points for committing the offense while under a criminal justice sentence. Id. at 14-20. At base offense level 35 and criminal history category V, Haynie's Guidelines sentencing range would have been 262 to 327 months, but since that range exceeds the statutory maximum for the offense of conviction, the statutory maximum of 240 months is the Guidelines sentence. Id. at 24.

         The defendant objected to the PSR, Filing No. 695, and moved for a downward departure/variance, Filing No. 683 and Filing No. 687. He argued for a downward departure for overstatement of criminal history category, contending that many criminal history points were assessed for numerous offenses that were not serious. He also objected to the assessment of 2 criminal history points for committing the crime while under a sentence for another crime, arguing that his state drug-court sentence conviction does not qualify as a criminal justice sentence. He argued that he properly belonged in criminal history category IV. He also asserted a blanket objection to the ultimate calculation of his guideline range, arguing that his total offense level should be 19, which, at criminal history category IV, would result in a guideline range of 46-57 months.

         Haynie's argument is generally based on the contention that conduct for which he was acquitted should not be considered in determining his Guidelines sentence. Although he acknowledges that uncharged or acquitted conduct could be considered at sentencing, he argues that the government should not now be able to use testimony and evidence that was problematic at trial to levy a more severe sentence when the government was unable to prove the facts at trial.

         At the sentencing hearing, the government moved for judicial notice of the trial and offered evidence of other criminal acts. Specifically, it offered, and the court received, the grand jury testimony of Vernon Elmore; the proffer interview of Ron Newman; the report of a shooting incident on April 27, 2005; the proffer interviews of Shannon Reed and Otis Simmons; and a police report of law enforcement observation of Haynie in possession of firearm on September 15, 2009. SeeFiling No. 698, Index of Evid., Exs. 134 to 138.[3]

         In the PSR, based primarily on the prosecutor's version of events, the Probation Office outlines as overt acts incidents involving Richard Johnson and Michael Liggins. Haynie objects to those portions of the PSR.[1] Those alleged incidents, characterized as attempted murder, are the basis for the Probation Office's attribution of base offense levels of 33 and a total offense level of 35. Essentially, the defendant argues that, although there is a preponderance of evidence to support using overt acts of drug trafficking as racketeering offenses, the government has not proved the attempted murder conduct by even a preponderance of evidence. He argues that base offense levels of 19 should be assigned to his drug trafficking grouped conduct under U.S.S.G. § 2E1.1(a)(1) and to his other grouped conduct (assault rather than attempted murder) under U.S.S.G. 2E1.1(b).[2] The government, on the other hand, argues for the statutory maximum sentence. Filing No. 700. It contends that the court should find Haynie culpable for the attempted murders of Michael Liggins and Richard Johnson.

         II. LAW

         Although a sentencing court must give respectful consideration to the Sentencing Guidelines, the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), permits the court to tailor the sentence in light of other statutory concerns as well. Pepper v. United States, 131 S.Ct. 1229, 1241 (2011). The district court follows the sentencing framework set forth by the Supreme Court in Gall v. United States, 552 U.S. 38, 49-51 (2007). See United States v. Washington, 515 F.3d 861, 865-66 (8th Cir. 2008) (“We urge district courts to continue to engage in the three-step process of first ascertaining the applicable Guidelines range, then considering any permissible departures within the Guidelines' structure, and finally, deciding whether a non-Guidelines sentence would be more appropriate under the circumstances pursuant to § 3553(a).”). The first step is to calculate the defendant's advisory Guidelines sentencing range, which provides “the starting point and the initial benchmark” for any sentence. Gall, 552 U.S. at 49. Next, the court determines whether any traditional Guidelines ...


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