In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2510
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
E LGIN C URB, also known as SHIESTY,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:06-cr-00324-31—Samuel Der-Yeghiayan, Judge.
____________
A RGUED S EPTEMBER 21, 2010—D ECIDED N OVEMBER 16, 2010
____________
Before B AUER, S YKES and H AMILTON, Circuit Judges.
B AUER, Circuit Judge. Defendant-appellant Elgin Curb
pleaded guilty and was convicted of conspiracy to
possess and distribute heroin, cocaine, and crack
cocaine, in violation of 21 U.S.C. § 846. The district
court found that Curb was a supervisor in a criminal
activity subject to the managerial enhancement and that
he had willfully obstructed justice. Curb was sentenced
to 270 months’ imprisonment. On appeal, he challenges
his sentence. We affirm.
2 No. 09-2510
I. BACKGROUND
From January 2003 through May 2006, Curb participated
in a large-scale drug operation in a small low-income
housing area in Chicago known as “the Square.” In May
2006, Chicago police officers arrested more than fifty
individuals, including Curb, in connection with the drug
operation. Pursuant to a written plea agreement, Curb
pleaded guilty to Count One of the indictment, which
charged Curb with conspiracy to possess with the intent
to distribute heroin, cocaine, and crack cocaine.
Days before Curb’s sentencing hearing, the government
filed an objection to the Presentence Investigation Report,
challenging the probation department’s assessment of
Curb’s role in the conspiracy. The government asserted
that Curb qualified for the “manager or supervisor”
enhancement pursuant to Section 3B1.1(b) of the United
States Sentencing Guidelines.
The court held an evidentiary hearing in January 2009 on
the issue of Curb’s role in the criminal conspiracy. Co-
defendant Lamont Harris, who pleaded guilty to the drug
conspiracy, testified on behalf of the government at this
hearing. Harris testified that Curb, among other acts,
(1) approached him and recruited him to sell drugs for
the conspiracy; (2) determined the amount of drugs
Harris would sell and provided him with those drugs;
(3) collected a larger share of the proceeds from Harris’
drug sales; (4) occasionally directed potential customers
to Harris; and (5) helped promote Harris to a greater
role in the conspiracy. Harris also admitted that when
he was first interviewed by government agents about his
role in the drug conspiracy, he lied to the agents about
No. 09-2510 3
information regarding the conspiracy. As a part of Harris’
plea agreement, however, he agreed to cooperate with the
government and tell the whole truth at the evidentiary
hearing.
Curb’s sentencing hearing was scheduled for Febru-
ary 19, 2009, but Curb failed to appear and a bench warrant
was issued for his arrest. He remained missing for two-
and-a-half months until he was arrested by officers of the
Chicago Police Department on April 28, 2009. Curb ex-
plained to the officers that he failed to appear at his
sentencing hearing because he was “scared” of his im-
pending sentence.
At Curb’s sentencing hearing on June 3, 2009, the district
court found that Curb had willfully obstructed justice
under United States Sentencing Guidelines Section 3C1.1.
The district court factored in the enhancements for Curb’s
managerial role in the conspiracy and his willful obstruc-
tion of justice and also gave him a three-point deduction
for acceptance of responsibility notwithstanding his flight.
The district court found that Curb’s advisory guidelines
range was 292 to 365 months; however, it sentenced Curb
to 270 months’ imprisonment.
II. DISCUSSION
A. Managerial Enhancement
Curb challenges the district court’s application of the
three-level managerial enhancement to his sentence, a
determination we review for clear error. United States v.
Hankton, 432 F.3d 779, 793 (7th Cir. 2005) (quoting United
States v. Brown, 900 F.2d 1098, 1101 (7th Cir. 1990)). Rever-
4 No. 09-2510
sal is warranted “only if, after reviewing the entire evi-
dence, [the court] is left with the definite and firm convic-
tion that a mistake has been made.” United States v.
Sheikh, 367 F.3d 683, 687 (7th Cir. 2004) (quoting United
States v. Schuh, 289 F.3d 968, 972 (7th Cir. 2002)).
Sentencing Guidelines Section 3B1.1(b) directs a sen-
tencing judge to increase a defendant’s offense level by
three levels if “the defendant was a manager or supervisor
(but not an organizer or leader) and the criminal activity
involved five or more participants or was otherwise
extensive.” U.S. Sentencing Guidelines Manual § 3B1.1(b)
(2010). The Sentencing Guidelines do not define the terms
“manager” or “supervisor,” though this court has found
the following seven factors to be relevant in determining
an individual’s role in a criminal conspiracy:
(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; and (7) the degree
of control and authority exercised over others.
United States v. Howell, 527 F.3d 646, 649 (7th Cir. 2008)
(citing United States Sentencing Guidelines Manual
§ 3B1.1, cmt. n.4 (2010)).
After reviewing the record, we are not left with a definite
or firm conviction that the district court erred in applying
the managerial enhancement. The district court judge
credited co-defendant Harris’ witness testimony at Curb’s
No. 09-2510 5
evidentiary hearing, as well as Curb’s own testimony
and plea agreement. He then applied the three-level
managerial enhancement based on the existence of several
of the seven factors.
As a preliminary matter, Curb bases the majority of
his argument regarding this issue on attacking the credi-
bility of Harris, who testified at Curb’s evidentiary
hearing. However, we note, as the district court did, that
the managerial enhancement is not based solely upon
Harris’ testimony; Curb’s own plea agreement and state-
ments from other co-defendants likewise support the
district court’s finding. In any case, this court “do[es] not
second-guess the judge’s credibility determinations
because he or she has had the best opportunity to
observe the subject’s facial expressions, attitudes, tone
of voice, eye contact, posture and body movements.”
United States v. Mancillas, 183 F.3d 682, 701 n.22 (7th Cir.
1999) (citing United States v. Garcia, 66 F.3d 851, 856-57
(7th Cir. 1995)). The district court considered Harris’
testimony and determined that it was not in conflict
with prior statements and that any variances had been
explained away.
Turning to the application of the seven managerial
factors, we agree with the district court in finding that
several factors apply to Curb’s role in the drug enterprise.
All factors need not be present for a finding that the
defendant is subject to the managerial enhancement, but
the defendant must have “exercised some control over
others involved in the commission of the offense.” United
States v. Pagan, 196 F.3d 884, 892 (7th Cir. 2000) (citing
United States v. House, 110 F.3d 1281, 1287 (7th Cir. 1997)).
6 No. 09-2510
This court has upheld a sentencing increase where less
than all factors are present. United States v. Fones, 51 F.3d
663, 665 (7th Cir. 1995). We find that at least four of the
factors are applicable to Curb’s role in the conspiracy and
that Curb “exercised some control over others,” particu-
larly co-defendant Harris.
First, Curb appreciably exercised “decision-making
authority” and a “degree of control over others.” Curb’s
own plea agreement and the admissions of other co-
defendants indicate that Curb supplied Harris and others
with packs of crack cocaine and heroin to sell around the
Square. Furthermore, Curb exercised discretion in deter-
mining the amounts of crack cocaine and heroin that others
would sell. Curb was also responsible for directing cus-
tomers seeking drugs to the other workers around the
Square. Lastly, Curb helped promote Harris to a higher
level in the enterprise.
Second, Curb was involved in the recruitment of accom-
plices to the conspiracy. Specifically, Harris provided
testimony at the evidentiary hearing that Curb recruited
him. The evidence shows that while Curb and Harris were
playing basketball, Curb asked Harris if he wanted to sell
drugs in the Square. After Harris answered that he wanted
to sell drugs, Curb immediately went over to Terrell
Covens—the man in charge of selling crack cocaine in the
Square—and informed Covens that Harris was interested
in selling drugs, to which Covens agreed. Curb maintains
that because Covens had to first approve of Harris, Curb’s
role in recruiting Harris was “superfluous.” Despite his
role as a middleman in the recruitment, the evidence
No. 09-2510 7
shows that it was in fact Curb who acted as the recruiter.
This court has previously held that “[m]iddlemen are not,
of course, immune from application of § 3B1.1.” United
States v. Brown, 944 F.2d 1377, 1381 (7th Cir. 1991).
Next, Curb had “the claimed right to a larger share of the
fruits of the crime.” As Harris admitted, for every pack of
crack cocaine that Harris sold, he kept only $10-$30 of the
$50-$150 proceeds, and Curb collected the remainder.
Finally, Curb argues that other co-defendants involved
in the drug operation did not identify him as occupying a
managerial position, and therefore he did not occupy that
role. Curb seems to be focusing on what was not said
instead of what the evidence does show; Curb’s own plea
agreement and testimony, and the testimony and plea
agreements of Harris and other co-defendants, all support
the finding that Curb occupied a managerial position in the
drug conspiracy.
B. Sentence Reasonableness
Curb also argues that his sentence is both procedurally
and substantively unreasonable. Specifically, he contends
that the district court did not consider nor articulate its
reasoning regarding the mitigating factors presented by
him at the evidentiary hearing. This court uses an abuse-of-
discretion standard when reviewing sentencing decisions
for reasonableness. Gall v. United States, 552 U.S. 38, 46
(2007). A sentence within the Sentencing Guidelines range
is presumptively reasonable and the district court’s
decision will be reviewed deferentially. United States v.
8 No. 09-2510
Hurn, 496 F.3d 784, 790 (7th Cir. 2007) (citing Rita v. United
States, 551 U.S. 338, 346-48 (2007)).
1. Procedural Reasonableness
Curb argues that the district court’s sentencing was
procedurally unreasonable for two reasons: (1) the district
court did not consider or discuss Curb’s mitigating argu-
ments, and (2) the district court failed to articulate its
reasoning in selecting Curb’s sentence.
Under the post-Booker sentencing procedures, a district
court is to “(1) calculate the applicable Guidelines range;
(2) give the defendant an opportunity to identify any of the
18 U.S.C. § 3553(a) factors that might warrant a non-
Guidelines sentence; and (3) state which factors influenced
the final sentence.” United States v. Campos, 541 F.3d 735,
749-50 (7th Cir. 2008) (citing United States v. Millet, 510
F.3d 668, 680 (7th Cir. 2007)). “The sentencing judge should
set forth enough to satisfy the appellate court that he has
considered the parties’ arguments and has a reasoned basis
for exercising his own legal decision making authority.”
Rita v. United States, 551 U.S. 338, 356 (2007). The court does
not need to make factual findings about each of the sen-
tencing factors, and it is sufficient if the record shows that
the court considered them. Campos, 541 F.3d at 750 (citing
United States v. Price, 516 F.3d 597, 606 (7th Cir. 2008)).
In the instant case, the record indicates that the district
court followed the post-Booker sentencing procedures. The
district court calculated Curb’s applicable guidelines range
at 292 to 365 months’ imprisonment. It then allowed Curb
No. 09-2510 9
to make arguments related to sentencing. Finally, the
district court considered each argument that Curb made, as
evidenced by fourteen pages of the sentencing hearing
transcript. Specifically, the court addressed Curb’s argu-
ments regarding (1) the defendant’s young age; (2) the
inability of adolescents to make decisions like adults;
(3) the defendant’s limited criminal history; (4) low recidi-
vism rates for first-time offenders; (5) the high costs and
futile effects of incarcerating drug-trafficking offenders;
(6) the need for the defendant to support his two children;
(7) the defendant’s troubled childhood and lack of a
positive role model; (8) the defendant’s education and
steady employment since arrested; (9) the defendant’s drug
addiction treatment; (10) the unfairness and discrepancies
in illegal drug offense sentencing; (11) the sentencing
disparities between African Americans and Caucasians
in general; (12) the sentencing disparities between the
defendant and the other co-defendants; and (13) the
defendant’s remorse.
The district court judge then weighed the mitigating
circumstances against the aggravating circumstances and
noted: “While I’ve considered the above arguments, the
defendant committed a serious crime and the defendant
has acknowledged that fact.” The judge went on to identify
which aggravating factors he found significant, including
(1) the serious nature of the defendant’s crime and the
rampant illegal drug trade in this country; (2) the defen-
dant’s disrespect for the law upon prior arrests; (3) the
defendant’s role as a supervisor in the drug enterprise;
(4) the need to deter the defendant and others like him
from engaging in drug offenses; and (5) the need to pro-
10 No. 09-2510
tect the public from offenders like the defendant. After
weighing the factors and commending Curb for
pleading guilty and acknowledging responsibility for his
crime, the judge sentenced Curb to a below-Guidelines
sentence. We conclude that the district court judge’s
comments at Curb’s sentencing hearing clearly demon-
strate that the judge considered Curb’s arguments re-
garding the § 3553(a) factors and adequately explained
his determination of Curb’s sentence.
2. Substantive Reasonableness
Curb next argues that his sentence was substantively
unreasonable for three reasons: (1) his own youth; (2) the
fact that no comparable defendant was sentenced as long;
and (3) the unfair disparity in crack cocaine penalties.
However, “a sentence within the [Guidelines] range is
presumptively reasonable, and it follows that a sentence
below the range also is presumptively not too high.”
United States v. Anderson, 580 F.3d 639, 651 (7th Cir. 2009)
(citing United States v. Wallace, 531 F.3d 504, 507 (7th Cir.
2008)).
We do not find that the district court abused its discre-
tion when sentencing Curb to a below-range sentence. The
district court judge noted that, even though Curb was
young when he started the crime, the conspiracy lasted
several years. As to sentencing disparities among the
various co-defendants, the judge pointed out that “each
case rested on its own merits and facts and factors pre-
sented to the court.” Finally, the different sentencing levels
for powder and crack forms of cocaine have been the
subject of intense debate, and Kimbrough v. United States
No. 09-2510 11
gave district judges substantial discretion in addressing the
issue. See Kimbrough v. United States, 552 U.S. 85 (2007).
But we have never held that a district judge was required
to reject the Sentencing Guidelines applicable to crack
cocaine. A district judge’s reasoned agreement with
an advisory sentencing guideline will not be deemed
unreasonable on appeal. See United States v. Etchin,
614 F.3d 726, 740 (7th Cir. 2010) (“Kimbrough permits
district courts to deviate from the crack cocaine guidelines
but does not require them to do so.”); United States v.
Scott, 555 F.3d 605, 610 (7th Cir. 2009) (“If a district
court may deviate from the Guidelines based on its dis-
agreement with the Sentencing Commission’s policy, it is
equally within its authority to adhere to the Guidelines
because it concurs with the policy judgment the Guidelines
reflect.”). We are satisfied with the district court’s consid-
eration and application of the § 3553(a) factors, and we will
not disturb the district court’s sentencing determination.
C. Obstruction of Justice
Curb also challenges the district court’s finding that he
willfully obstructed justice under Sentencing Guidelines
Section 3C1.1 when he failed to appear for his sentencing
hearing and eluded police until he was arrested two-and-
a-half months later. “We review de novo whether the
district court made adequate findings to support an
enhancement for obstruction of justice, while we review
the underlying factual findings for clear error.” United
States v. House, 551 F.3d 694, 697 (7th Cir. 2008).
12 No. 09-2510
The Sentencing Guidelines provide for a two-level
enhancement if “the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the adminis-
tration of justice with respect to . . . sentencing of the
instant offense of conviction . . . .” U. S. Sentencing Guide-
lines Manual § 3C1.1 (2010). Application Note 4 to this
Section lists several examples of conduct to which the
enhancement applies, including “willfully failing to
appear, as ordered, for a judicial proceeding.” U.S. Sen-
tencing Guidelines Manual § 3C1.1, cmt. n.4(e) (2010).
Curb bases his argument on the notion that he does not
meet the willfulness requirement for the enhancement. In
support of this argument, Curb asserts that he had a
“panicked state of mind” and not a “bad intent or evil
purpose to obstruct justice.” Additionally, Curb maintains
that his situation does not warrant an obstruction of justice
enhancement because he “did not flee the jurisdiction,
change his name or obtain a fake identity, lie about who
he was, commit additional offenses or engage in conduct
specifically designed to obstruct justice.” This court
addressed this same argument in United States v. Bolden
and explained that it is not necessary that a defendant
flee the jurisdiction, change his identity, lie, or forcibly
resist arrest in order to make an obstruction of justice
finding. United States v. Bolden, 279 F.3d 498, 503 (7th Cir.
2002). We reaffirm that “a defendant’s failure to appear
is ‘willful’ . . . if the defendant knew that he was required
to appear in court and ‘voluntarily and intentionally’
failed to do so.” Id. at 502 (citing United States v. Teta, 918
F.2d 1329, 1334 (7th Cir. 1990)).
No. 09-2510 13
The obstruction of justice enhancement is appropriate
when a defendant’s actions have had a “delaying effect on
the administration of justice.” Id. at 502-03 (quoting
United States v. Gilleylen, 81 F.3d 70, 72 (7th Cir. 1996)).
Curb does not deny that he knew about his sentencing
hearing. The district court was able to obtain custody of
Curb and sentence him only because he was arrested by
the Chicago Police two-and-a-half months after the
original sentencing hearing. Curb’s intentional failure to
attend his original sentencing hearing delayed the final
sentencing by two-and-a-half months.
Next, we agree with the district court that Curb is
misapplying this court’s ruling in United States v. Draves to
his own situation. In Draves, we held that it was not error
to deny the obstruction of justice enhancement as applied
to a defendant’s “panicked, instinctive flight” from the
immediate scene of his arrest. United States v. Draves,
103 F.3d 1328, 1337 (7th Cir. 1997). But Curb’s situation is
not a case of “panicked, instinctive flight,” as was found in
Draves. In that case, the defendant had been handcuffed
and placed in the back seat of the officer’s car while officers
attended to a co-defendant. In a panicked state, the defen-
dant fled the car and was caught by arresting officers
minutes later. This court found that the defendant’s action
in that case was not a “calculated evasion” and therefore
not a proper basis for an obstruction of justice enhance-
ment. In this case, Curb was not engaging in an instinctive
flight a few moments after being placed under police
custody; he was well aware of the sentencing hearing.
He knew that he had pleaded guilty to a serious crime and
was facing a rather sizeable prison sentence. His behavior
14 No. 09-2510
can only be described as a “calculated evasion of the
criminal justice system.”
Lastly, Curb argues that his “disturbed mental state”
(presumably panic and fear) negates his willful intent to
obstruct justice. Curb attempts to loosely compare himself
to the defendant in United States v. Hanhardt, to whom this
court refused to apply the obstruction of justice enhance-
ment because the defendant had not appeared in court due
to a suicide attempt. United States v. Hanhardt, 361 F.3d 382,
388-89 (7th Cir. 2004), vacated on other grounds, Altobello
v. United States, 543 U.S. 1097 (2005). We recognize that
a “disturbed mental state” in very limited cases may be
taken into account, but Curb’s case is not one of those.
Curb’s choice not to attend his sentencing hearing and
to evade the justice system for two-and-a-half months
before being caught, whether caused by panic, fear, or any
other emotion, is clearly obstructive conduct deserving of
an enhancement.
III. CONCLUSION
For the reasons stated above, we A FFIRM the district
court.
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