United States v. Jason Austin

806 F.3d 425, 2015 U.S. App. LEXIS 20220, 2015 WL 7352280
CourtCourt of Appeals for the Seventh Circuit
DecidedNovember 20, 2015
Docket14-3135
StatusPublished
Cited by41 cases

This text of 806 F.3d 425 (United States v. Jason Austin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jason Austin, 806 F.3d 425, 2015 U.S. App. LEXIS 20220, 2015 WL 7352280 (7th Cir. 2015).

Opinion

HAMILTON, Circuit Judge.

Jason Austin was convicted of conspiracy to distribute heroin. He appeals only his sentence, challenging the quantity of drugs attributable to him and the court’s finding that he played a leading role in the organization. In particular, he contends that a key witness has been so thoroughly discredited by alleged misstatements and contradictions that it was error for the court to credit his testimony at least in part. We disagree. We also reject Austin’s contention that Alleyne v. United States, -U.S.-, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), prohibited the judge from basing the Sentencing Guideline calculations on a higher drug quantity than that for which Austin was convicted. We therefore affirm Austin’s sentence.

I. Factual and Procedural Background

In 2008, defendant Austin was the leader of a street-level, retail drug-trafficking operation. Working primarily from his po *428 sition at the intersection of Kedzie Avenue and Ohio Street (“Kedzie-Ohio”) in Chicago, Austin received heroin and crack cocaine from suppliers and sold the drugs to users, with the help of many others. At the ground level of the operation were “'pack workers,” who sold the drugs directly to users seven days a week for over twelve hours a day. Money was then passed up to “managers” or “bundle runners,” who in exchange distributed drugs to the pack workers for sales. Drug proceeds were then finally passed from the managers up to Austin as the leader of the Kedzie-Ohio operation.

A double murder early in the morning on August 13, 2008 figures prominently in Austin’s arguments on appeal. Off-duty Chicago Police Detective Robert Soto and Kathryn Romberg were shot and killed while sitting in Soto’s car on the west side of Chicago. The investigation into their murders focused on Austin and his operation. A number of witnesses suggested that Austin was responsible for the murders. He was arrested a few days after the murders, but the case quickly unraveled. Witnesses began to recant or contradict their previous statements. The state blamed the changes on threats and witness-tampering. Austin attributes the changes to statements that had been coerced by the police. Whatever the reasons, within a month the murder case against Austin was dismissed.

' The Federal. Bureau of Investigation and Chicago Police Department then began what became a two-year investigation into Austin and the Kedzie-Ohio operation. The investigation included numerous undercover drug purchases, extensive surveillance, and interviews with informants and co-conspirators. At the end of the investigation in November 2010, over 100 people were arrested. Austin was indicted on federal charges relating to his role in the drug-trafficking conspiracy, particularly for his participation from January 2008 through June 2010. A jury found Austin guilty of five counts of drug distribution and one count of conspiracy to distribute, but only for an amount of less than 100 grams of heroin.

The sentencing hearing took several days. The testimony ranged. from the details of the drug-trafficking operation to Austin’s criminal background and the murders of Detective Soto and Ms. Romberg. A key government witness was Jeffrey Scott, who worked from 2008 to 2009 as a manager and bundle runner for the Ked-zie-Ohio operation and reported to Austin.

Scott’s testimony at trial and during sentencing provided a detailed picture of the Kedzie-Ohio operation. Particularly critical was Scott’s testimony at Austin’s trial regarding the total drug sales of the conspiracy. The district judge found this testimony credible, and it informed much of Austin’s final sentence. Scott testified that the organization’s sales rose from $800 a day in April 2008 to $4000 a day in May, and then higher still in June, July, and August. During that latter period, the Kedzie-Ohio operation experienced a spike in sales to $8000 a day after a man overdosed near the sales location. (Addicts apparently reasoned that heroin strong enough to cause an overdose was a particularly good product.) After Austin’s arrest on August 16, 2008, others took over the operation temporarily and sales tapered off to approximately $1600 a day. No later than May 2009, though, Austin resumed leadership of the Kedzie-Ohio operation.

Scott also provided testimony as to Austin’s alleged role in the murders of Detective Soto and Ms. Romberg. Austin challenges Scott’s credibility as a witness in large part because of this testimony, so it bears review even though it did not direct *429 ly affect the sentence in this drug ease. Scott testified that in 2008 a disagreement arose between Austin and a rival dealer known as “Quick,” who had gone so far as to shoot at Austin on one occasion. Austin then asked Scott to bring him a gun he had previously given Scott for safekeeping. In the early morning of the Soto and Rom-berg murders, Scott was awoken by his brother Terrance. Jittery and nervous, Terrance told Jeffrey Scott that Austin had just shot Quick and his girlfriend. Later that day, Scott claimed, Austin confided that he had done something terrible: the people he had thought were Quick and his girlfriend turned out to be “a cop and a lady.” Scott understood Austin to be admitting to the murders. Austin insisted that Scott help keep the incident quiet. Police quickly tracked Scott down, however, and interviewed him at the police station.

Scott did not initially share with police what his brother had told him. But after watching a video of his brother confess to his role in the shootings, Scott told the police what his brother had told him the night of the murders. A few days later, after Austin’s arrest, Austin’s brother Charles approached Scott, angry that Scott had implicated Austin in the murders. Charles tried to choke Scott, leading to a brief scuffle. Charles left Scott with instructions to fix the situation. He continued to threaten Scott in the days to come. Finally, Charles ordered Scott to recant his statement to the police and to claim that his previous statement implicating Austin was made as a result of beatings by police. Scott claimed that he worked with Austin’s lawyer to prepare a statement — at points being instructed to “exaggerate it and ... make it seem[ ] like it was torture.” Scott signed the statement, which he later claimed he knew to be false.

The district judge’s explanation of Austin’s sentence took into account the extensive testimony available, including Scott’s conflicting statements, to determine Austin’s proper offense level. Judge Lefkow’s written decision contained a detailed explanation for her estimate of the drug quantity sold by Austin’s operation. From the beginning of April to mid-May 2008, the judge credited Scott’s trial testimony of $800 in sales per day for the organization, yielding 0.7 kilograms of heroin sold for that period. 1 For mid-May to June 2008, again crediting Scott’s testimony, the judge estimated that sales were approximately $4000 per day, yielding 3.6 kilograms for that period. For July through the August murders, daily sales were estimated to have had a peak of $8000 and a conservative $5000 daily average, as supported by Scott and testimony by other conspirators, Kevin Terry, Jr. and Troy Davis. This yielded 4.5 kilograms for that period.

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Cite This Page — Counsel Stack

Bluebook (online)
806 F.3d 425, 2015 U.S. App. LEXIS 20220, 2015 WL 7352280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jason-austin-ca7-2015.