United States v. Thurston

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

____________________________
)
UNITED STATES OF AMERICA, )
)
v. )
) Criminal Action No. 05-100 (RWR)
ANTWUAN BALL, et al., )
)
Defendants. )
____________________________ )

MEMORANDUM OPINION AND ORDER

Defendants Antwuan Ball, Desmond Thurston, and Joseph Jones

were convicted of distribution of cocaine base (“crack”) and are

currently appealing their sentences in the court of appeals. The

defendants moved for release pending their appeal. Because the

defendants have not met their burden to show that they pose no

flight risk or danger to the community during release or that

their appeal raises a substantial question likely to result in a

reversal, the defendants’ motion will be denied.

BACKGROUND

Eighteen people were indicted for a multitude of narcotics

offenses and crimes of violence committed in the Congress Park

area. Ball, the alleged leader, Thurston, and Jones were among

the eighteen. Eight1 pled guilty to conspiring for thirteen

years with Ball, Thurston, and Jones, to engage in narcotics

1
Gerald Bailey, Jasmine Bell, Raymond Bell, Lucious Fowler,
Arthur Handon, Marcus Smith, Phillip Wallace, Daniel Collins.
 -2-

racketeering. One2 was tried separately and convicted of, among

other charges, engaging in a thirteen-year narcotics conspiracy

with Ball, Thurston, and Jones; another3 pled guilty to engaging

in a lengthy narcotics conspiracy with Ball and Thurston. Yet

another4 pled guilty to manslaughter while armed.

Ball, Thurston, and Jones were tried together with others

and convicted of multiple crack sales, but acquitted of

conspiracy. Each defendant’s sentencing guidelines range,

though, was calculated using as relevant conduct evidence of the

1.5 kilograms of crack cocaine involved in the conspiracy. Ball

was convicted under 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii) of

one count of distribution of 11.6 grams of crack cocaine. His

guidelines range was 292 to 365 months imprisonment. He was

sentenced to 225 months in prison and 60 months of supervised

release. Thurston was convicted under 21 U.S.C. § 841(a)(1) and

(b)(1)(C) of two counts of unlawful distribution of a total of

approximately 1.7 grams of crack cocaine. His guidelines range

was 262 to 327 months imprisonment. He was sentenced to 194

months in prison and 36 months of supervised release on each

count to be served concurrently. Jones was convicted under 21

U.S.C. § 841(a)(1) and (b)(1)(C) of two counts of unlawful

2
Newett Ford.
3
Burke Johnson.
4
Dominic Samuels.
 -3-

distribution of a total of approximately 1.8 grams of crack

cocaine. His guidelines range was 324 to 405 months

imprisonment. He was sentenced to 180 months in prison and 72

months of supervised release on each count to be served

concurrently. The defendants are currently appealing their

sentences in the court of appeals.

The defendants move for release pending their appeal arguing

that they are not flight risks and do not pose a danger to the

community, and that their appeals raise substantial questions of

law which likely will result in reversal. The government

opposes, arguing that none of the requirements for release

pending appeal has been met.
DISCUSSION

The Bail Reform Act provides that

“a person who has been found guilty of an offense and
sentenced to a term of imprisonment, and who has filed
an appeal” shall be detained unless the court finds
“that the person is not likely to flee or pose a danger
to the safety of any other person or the community if
released” and “that the appeal is not for purpose of
delay and raises a substantial question of law or fact
likely to result in reversal.”

United States v. Perholtz, 836 F.2d 554, 555 (D.C. Cir. 1988)

(per curiam) (quoting 18 U.S.C. § 3143(b)). Generally, a

judicial officer must detain any person found guilty of “an

offense for which a maximum term of imprisonment of ten years or

more is prescribed in the Controlled Substances Act[.]” 18

U.S.C. §§ 3142(f)(1)(C), 3143(b)(2). However, a person subject
 -4-

to detention under § 3143(b)(2) “who meets the conditions of

release . . . may be ordered released, under appropriate

conditions, by the judicial officer, if it is clearly shown that

there are exceptional reasons why such person’s detention would

not be appropriate.” 18 U.S.C. § 3145(c). Here, it is

undisputed that the defendants were convicted of offenses that

trigger the mandatory detention provision. See Defs.’ Mem. of P.

& A. Supporting Defs.’ Mot. for Release (“Defs.’ Mem.”) at 5;

Govt.’s Opp’n to Defs.’ Mot. for Release at 5. Thus, § 3143

would normally bar release for these defendants. To qualify for

release pending appeal, then, the defendants must show that the

statutory requirements of 18 U.S.C. § 3143(b) are met and that

there are “exceptional reasons” for release.5 See United States

v. Jones, 800 F. Supp. 2d 90, 93 (D.D.C. 2011).

I. FLIGHT RISK AND DANGER TO THE COMMUNITY

For the defendants to qualify for release under the Bail

Reform Act, the court must find “by clear and convincing evidence

that the person is not likely to flee or pose a danger to the

safety of any other person or the community if released under

section 3142(b) or (c)[.]” 18 U.S.C. § 3143(b). Under § 3142,

the court is required to consider

5
Because the defendants have failed to show that the
requirements of § 3143(b) have been met, it is unnecessary to
determine whether the defendants have provided provide sufficient
“exceptional reasons” for release to satisfy 18 U.S.C. § 3145(c).
 -5-

(1) the nature and circumstances of the offense . . . ;
(2) the weight of evidence against the person;
(3) the history and characteristics of the person,
including --
(A) the person’s character, physical and mental
condition, family ties, employment, financial
resources, length of residence in the community,
community ties, past conduct, history relating to
drug or alcohol abuse, criminal history, and
record concerning appearance at court proceedings;
and . . .
(4) the nature and seriousness of the danger to any
person or the community that would be posed by the
person’s release.

18 U.S.C. § 3142(g). “The burden of establishing that the

defendant will not flee or pose a danger to any other person or

to the community rests with the defendant.” Fed. R. Crim. P.

46(c). The D.C. Circuit has recognized that “society is

endangered when courts release those individuals onto the

community whose past conduct indicates that they are likely to

possess, control or distribute controlled substances.” United

States v. Anderson, 670 F.2d 328, 330 (D.C. Cir. 1982) (per

curiam). In particular, the Anderson court found that a

defendant’s repeated drug possession offenses and involvement in

narcotics distribution sufficed to show that the defendant was “a

substantial danger to any community.” Id. Further, a

defendant’s previous arrests can also be accorded “some weight in

determining whether appellant is likely to be danger to the

community if released pending appeal.” Russell v. United States,

402 F.2d 185, 186 (D.C. Cir. 1968) (citing Rhodes v. United

States, 275 F.2d 78, 82 (4th Cir. 1960)).
 -6-

The defendants assert that they are not flight risks because

they grew up in the Washington, D.C. area, their families are

located here, and they lack the financial resources to flee the

jurisdiction if they are released. Defs.’ Mem. at 12-13. In

addition, the defendants state that they did not flee the

jurisdiction during the investigation of their crimes despite

public knowledge of the investigation. Id. The defendants also

assert that Thurston has attempted to change his lifestyle, that

Jones was employed before his indictment, that Ball has an

employment offer, and, thus, the defendants no longer present a

danger to the community. Id. at 13-14.

These assertions are insufficient to satisfy the defendants’

burden to show by clear and convincing evidence that they are not

flight risks or a danger to the community. Even assuming the

truth of the defendants’ statements about their family ties,

employment opportunities, and limited financial resources, those

considerations pale in comparison to the seriousness of their

present convictions and lengthy criminal histories of convictions

and arrests. In particular, Ball’s criminal history includes a

firearm possession conviction and fifteen other adult arrests for

several offenses including possession with intent to distribute

cocaine, possession of marijuana, firearm possession, aggravated

assault while armed, and first degree murder. See Ball

Presentence Investigation Report ¶¶ 100, 106-20. Thurston’s
 -7-

criminal history reflects four other adult convictions for theft,

assault, and cocaine and marijuana possession and eleven other

adult arrests for offenses including unlawful entry, cocaine

distribution, assault and aggravated assault while armed,

robbery, firearm offenses, and escape and fugitive offenses. See

Thurston Presentence Investigation Report ¶¶ 81-85, 95-105. As

an adult, Jones has been convicted seven other times for offenses

including attempted assault with a dangerous weapon, attempted

cocaine distribution, marijuana and cocaine possession, and

driving under the influence. He incurred twelve other adult

arrests on charges including armed robbery, carrying a dangerous

weapon, marijuana possession and distribution, assault with the

intent to kill, firearm possession during a violent offense,

assault with a dangerous weapon, carrying a concealed deadly

weapon, cocaine possession, and assault. Jones Presentence

Investigation Report ¶¶ 66-72, 80-91. Each of these defendants’

sentences was based in part on the defendants’ involvement in a

long-term conspiracy to distribute large quantities of crack

cocaine and the defendants actions to violently protect and

further the conspiracy. The defendants’ willing participation in

the ongoing distribution of dangerous narcotics and the violence

attending it make them no candidates for release. Their criminal

histories corroborate that the defendants remain a danger to the

community. Thus, the defendants’ motion for release does not
 -8-

show by clear and convincing evidence that the defendants are not

likely to flee or pose a danger to the community.

II. SUBSTANTIAL QUESTION OF FACT OR LAW ON APPEAL

Wholly aside from the defendants’ failure to satisfy their

burden on the first issue, their appeal does not raise “a

substantial question of law or fact.” A “substantial question of

law or fact” in § 3143(b) is “a close question or one that very

well could be decided the other way.” Perholtz, 836 F.2d at 555

(internal quotation marks omitted). To determine whether a

defendant has met the Perholtz standard, courts have also

considered precedent in other circuits in addressing whether

there is a consensus of authority on a legal issue. See United

States v. Alston, Criminal Action No. 02-57 (JDB), 2006 WL

1518952, at *2-3 (D.D.C. May 30, 2006); United States v. Hubbard,

Criminal Action No. 94-128 (LFO), 1995 WL 13266, at *2 (D.D.C.

Jan. 5, 1995). “Defendant bears the burden of showing that a

‘substantial’ question exists.” United States v. Keleta, 534 F.

Supp. 2d 106, 107 (D.D.C. 2008) (citing United States v. Libby,

498 F. Supp. 2d 1, 3 (D.D.C. 2007)).

The defendants argue that there is a substantial question of

law about whether sentences based on acquitted conduct violate

the Fifth and Sixth Amendments. However, the D.C. Circuit has

directly addressed the defendants’ claim by stating that

the District Court’s reliance on acquitted conduct in
calculating the Guidelines range no longer poses a
 -9-

problem because the post-Booker Guidelines are only
advisory. For Sixth Amendment purposes, the relevant
upper sentencing limit established by the jury’s
finding of guilt is thus the statutory maximum, not the
advisory Guidelines maximum corresponding to the base
offense level. And the Supreme Court has “never
doubted the authority of a judge to exercise broad
discretion in imposing a sentence within a statutory
range.” United States v. Booker, 543 U.S. 220, 233
(2005). In short, because the [acquitted conduct] was
proved by a preponderance of the evidence and because
[the defendant’s] sentence did not exceed the statutory
maximum of 10 years, the District Court’s consideration
of acquitted conduct in sentencing him did not violate
the Fifth or Sixth Amendment.

United States v. Settles, 530 F.3d 920, 923 (D.C. Cir. 2008); see

also United States v. Brown, 516 F.3d 1047, 1050-51 (D.C. Cir.

2008) (holding that the district court did not err in imposing

upward adjustments based on acquitted conduct because the court

did not impose a sentence that exceeded the statutory maximum).

The Settles court noted that judges and commentators have argued

against the use of acquitted conduct in sentencing, “[b]ut under

binding precedent, the Constitution does not prohibit a

sentencing court from relying on acquitted conduct.” Id. at 924.

Thus, where a sentence is below the statutory maximum and any

acquitted conduct was proven by a preponderance of the evidence,

the sentencing does not violate the Fifth or Sixth Amendment.

Here, there is no circuit split as to whether district

courts may use acquitted conduct in sentencing. The circuit

courts that have addressed this issue have held that the use of

acquitted conduct in sentencing is constitutional. See United
 -10-

States v. Waltower, 643 F.3d 572, 577 (7th Cir. 2011) (citations

omitted) (citing cases from the First, Second, Fourth, Fifth,

Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh and D.C. Circuits

and stating that “[e]very circuit to have considered the question

post-Booker, including ours, has held that acquitted conduct may

be used in calculating a guidelines sentence, so long as proved

by a preponderance standard”).

The defendants argue that Settles’ interpretation of Supreme

Court precedent is incorrect and that the principle that a

defendant’s sentence may not be increased based on a fact not

found by the jury beyond a reasonable doubt applies to the

Guidelines. Thus, the defendants argue that the upper limit of

the judge’s sentencing discretion is the top of the sentencing

guideline range for the convicted offense and any increase above

that range based on facts not found by the jury is

unconstitutional. See Defs.’ Mem. at 8-10; Defs.’ Reply to

Govt.’s Opp’n to Mot. for Release (“Defs.’ Reply”) at 7. To

support their argument, the defendants cite United States v.

Booker, 543 U.S. 220 (2005). There, the Supreme Court held in

part that the Sixth Amendment applies to the mandatory Sentencing

Guidelines. Id. at 233. However, the basis for applying the

Sixth Amendment to the Sentencing Guidelines was that

the relevant sentencing rules are mandatory and impose
binding requirements on all sentencing judges. If the
Guidelines as currently written could be read as merely
advisory provisions that recommended, rather than
 -11-

required, the selection of particular sentences in
response to differing sets of facts, their use would
not implicate the Sixth Amendment.

Id. In the remedial portion of the Booker opinion, the Supreme

Court held that the Guidelines were no longer mandatory, but

instead advisory. Id. at 245-46. The defendants were sentenced

when the Guidelines were advisory. Thus, the Sixth Amendment’s

protection against the use of non-jury found facts is not

implicated by the use of acquitted conduct in sentencing these

defendants because they were sentenced under the advisory

Guidelines.

The defendants also cite the Supreme Court’s decision in

Southern Union Company v. United States, 132 S. Ct. 2344 (2012)

to argue that “the material facts used to establish the

defendant’s so-called Relevant Conduct cannot be enhanced by a

court beyond those found by the jury or admitted by the defense.”

Defs.’ Reply at 7. However, the Southern Union case does not

undermine Settles’ holding that using acquitted conduct in

sentencing is permissible where the judge finds the facts by a

preponderance of the evidence and the sentence does not exceed

the statutory maximum. Instead, the Southern Union case held

that the imposition of criminal fines is subject to the Apprendi

rule -- “[t]he Sixth Amendment reserves to juries the

determination of any fact, other than the fact of a prior

conviction, that increases a criminal defendant’s maximum
 -12-

potential sentence.” Southern Union, 132 S. Ct. at 2348 (citing

Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v.

Washington, 542 U.S. 296 (2004)). Southern Union merely recited

the Apprendi rule, explained the basis for the rule, and applied

the rule to criminal fines without disturbing the legal standards

for using acquitted conduct in sentencing or stating that the

advisory Guidelines implicated the Apprendi rule when a

defendant’s sentence is increased within the statutory maximum.

See id. at 2350-57. Thus, Booker and Southern Union do not

reflect that Settles’ holding regarding acquitted conduct is

inconsistent with Supreme Court precedent.

The defendants also argue that their sentences violate the

Sixth Amendment because the sentences are substantively

unreasonable. The substantive reasonableness inquiry requires

the appellate court to consider, under an abuse of discretion

standard, “the totality of the circumstances, including the

extent of any variance from the Guidelines range.” Gall v.

United States, 552 U.S. 38, 51 (2007). The essential inquiry for

substantive reasonableness is: “[i]n light of the facts and

circumstances of the offense and offender, is the sentence so

unreasonably high or unreasonably low as to constitute an abuse

of discretion by the district court?” United States v.

Gardellini, 545 F.3d 1089, 1093 (D.C. Cir. 2008). The Gardellini

court also stated that
 -13-

appellate courts may not reverse a district court
simply because the Sentencing Commission, a reviewing
appellate court, or another district court “might
reasonably have concluded that a different sentence was
appropriate.” Gall, 128 S. Ct. at 597. . . .
District judges now have far more substantive
discretion in sentencing than they had pre-Booker.
Therefore, whether the defendant receives a sentence
within, above, or below the Guidelines range, both the
Government and defense counsel would be well-advised to
understand that it will be an unusual case where an
appeals court overturns a sentence as substantively
unreasonable -- as the post-Rita, post-Gall case law in
the courts of appeals shows.

Id. at 1096. The D.C. Circuit “afford[s] a presumption of

substantive reasonableness to within-Guidelines sentences . . .

[and] this Court has not as yet reversed any within-Guidelines

sentence as substantively unreasonable.” United States v.

Harrison, 356 Fed. App’x 423, 425 (D.C. Cir. 2009) (citations

omitted). The Harrison court also reaffirmed that “a sentence

may be based on facts determined by the sentencing judge by a

preponderance of the evidence, as long as the sentence is not

greater than the statutory maximum.” Id. (citations omitted).

Here, the defendants argue that the sentences are

substantively unreasonable because “the norm for the offense of

conviction is far less than the sentences handed out.” Defs.’

Mem. at 11; Defs.’ Reply at 2. Defendants rely on Justice

Scalia’s concurrence in Rita v. United States, 551 U.S. 338, 368-

75 (2007). Rita held that “a court of appeals may apply a

presumption of reasonableness to a district court sentence that

reflects a proper application of the Sentencing Guidelines.”
 -14-

Rita, 551 U.S. at 347. There, Justice Scalia recognized that

“there will inevitably be some constitutional violations under a

system of substantive reasonableness review, because there will

be some sentences that will be upheld as reasonable only because

of the existence of judge-found facts.” Id. at 374 (Scalia, J.,

concurring). These include sentences within the Guidelines range

which were “substantially enhanced by certain judge-found facts.”

Id. at 371 (Scalia, J., concurring). Thus, Justice Scalia notes

that the Rita majority opinion “does not rule out as-applied

Sixth Amendment challenges to sentences that would not have been

upheld as reasonable on the facts encompassed by the jury verdict

or guilty plea.” Id. at 375 (Scalia, J., concurring). In

essence, the defendants argue that the consideration of acquitted

conduct increased the sentences too much by adjusting the offense

level based on the amount of cocaine base involved in the drug

conspiracy -- 1.5 kilograms -- rather than the amount of cocaine

base that the defendants were convicted of distributing.

Although Justice Scalia’s concurrence provides some basis for the

defendants’ argument, it is clear that the upper limit of the

sentencing court’s discretion is the statutory maximum and that

binding precedent allows the use of acquitted conduct to increase

the defendants’ sentences up to that level. See Settles, 530

F.3d at 923; Brown, 516 F.3d at 1050.
 -15-

The statutory maximum for Ball was 40 years, the statutory

maximum for Thurston was 20 years per count, and the statutory

maximum for Jones was 30 years per count. Ball’s guidelines

range was 292 to 365 months imprisonment, Thurston’s guidelines

range was 262 to 327 months imprisonment, and Jones guidelines

range was 324 to 405 months imprisonment. All of the defendants’

sentences were substantially below both the statutory maximum and

the guidelines range: Ball was sentenced to 225 months, Thurston

was sentenced to 194 months, and Jones was sentenced to 180

months. The defendants have not cited any binding precedent

which reflects that imposing sentences below the statutory maxima

and below the guidelines ranges calculated using acquitted

conduct establishes that the defendants’ sentences are

substantively unreasonable. Thus, the defendants’ motion for

release does not raise a substantial question of law on the

substantive reasonableness of the defendants’ sentences.

The defendants also argue that their sentences are

procedurally unreasonable because the government witnesses who

testified to the existence of a narcotics conspiracy were

untrustworthy and unreliable. In reviewing the procedural

reasonableness of a sentence, the appellate court must

ensure that the district court committed no significant
procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating
the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately
 -16-

explain the chosen sentence -- including an explanation
for any deviation from the Guidelines range.

Gall, 552 U.S. at 51. Here, the defendants argue that the

district court based its findings on “clearly erroneous facts” by

failing to address and give specific reasons why it rejected the

defendants’ claims that the witnesses were not trustworthy

because they were cooperating witnesses. Defs.’ Mem. at 10-12;

Defs.’ Reply at 14-15. The defendants also argue that the record

reflects that there were multiple conspiracies rather than a

single conspiracy. Defs.’ Mem. at 11. Factors to consider in

determining whether there was a single conspiracy are “whether

the conspirators share a common goal, such as the possession and

distribution of narcotics for profit[,] . . . the degree of

dependence inherent in the conspiracy . . . [and] the overlap of

participants in the various operations claimed to comprise a

single conspiracy.” United States v. Tarantino, 846 F.2d 1384,

1393 (D.C. Cir. 1988) (citations omitted).

The record at the sentencings included the trial evidence

and the factual proffers from the plea agreements of the other

co-defendants who admitted participation in the narcotics

conspiracy. The presentence investigation reports based the

conspiracy finding on the testimony of numerous individuals

including cooperating witnesses and police officers who described

the nature and duration of the narcotics conspiracy. See Ball

Presentence Investigation Report ¶¶ 16-84; Thurston Presentence
 -17-

Investigation Report ¶¶ 17-62; Jones Presentence Investigation

Report ¶¶ 18-49.

At Jones’ sentencing, the court noted that the offense level

was calculated based in part on activity which other co-

defendants admitted to in guilty plea proffers and that co-

defendant Newett Ford was convicted of conspiracy by a jury.

Jones Sent., May 1, 2008 Tr. 20:7-17. The court described the

direct and circumstantial evidence which showed by a

preponderance of the evidence that the defendant was involved in

a narcotics conspiracy. Id. at 20:18-23:8. The court

specifically found that the defendant knew the other conspirators

and that the defendant and co-conspirators were selling crack

cocaine together in the Congress Park area. Id. at 20:7-23:8.

Similarly, at Thurston’s sentencing, the court explained

that its conspiracy finding was based on trial witness testimony

and evidence showing Thurston’s association with the other co-

conspirators and involvement in selling crack cocaine. Thurston

Sent., Oct. 29, 2010 Tr. 18:19-19:8. The court then reviewed the

witness testimony and explained why the testimony was credible

despite the defendant’s cross-examination and credibility

challenges. Id. at 19:9-20:16. The court also cited Joe

Langley’s and Burke Johnson’s guilty plea proffers and those of

seven other co-defendants who pled guilty without cooperation
 -18-

agreements which supported the conspiracy finding. Id. at 21:10-

22:8.

Finally, at Ball’s sentencing, the court stated that the

conspiracy finding rested on evidence which established that Ball

knew and was seen with the other co-conspirators in the Congress

Park area based on the testimony of numerous witnesses who

explained Ball’s direct involvement in the conspiracy. Ball

Sent., Mar. 17, 2011 Tr. 31:2-34:7. The court specifically

addressed the defendants’ arguments about witness credibility by

explaining why witnesses were credible and finding that “[i]n any

event, given -- full effect to this impeachment does not

undermine the mutually corroborative evidence, which I have

identified and credited that demonstrates concerted activity and

the volume of crack involved in the relevant conduct.” Id. at

34:8-35:6. Further, the court based the conclusion about the

relevant conduct quantity and the conspiracy finding in part on

the sworn guilty plea proffers. “Joe Langley, Burke Johnson, and

Mary McClendon each pled guilty under oath to conspiring to

distribute crack for at least a decade, . . . and they named in

signed proffers numerous named conspirators in this case as

customers.” Id. at 36:5-11. In addition, other co-defendants,

including co-defendants without cooperation agreements “pled

guilty under oath to conspiring for many years with Mr. Ball and
 -19-

other named conspirators in this case to distribute crack.” Id.

at 36:16-18.

Here, the conspiracy finding was supported by witnesses from

the drug market at the time and the court described in detail the

evidence upon which the conspiracy finding rested and addressed

the credibility concerns raised by the defendants at that time.

By simply re-raising the overruled objection about witness

credibility, the defendants have not satisfied their burden of

showing how the sentences were based on “clearly erroneous facts”

or how the court failed to adequately explain its findings. The

findings at sentencing also support the presence of a single

conspiracy because the distribution of narcotics for profit was

the common goal and the witness testimony and evidence reflected

both a level of dependence and an overlap of participants in the

conspiracy. Thus, the defendants’ procedural unreasonableness

challenge also does not raise a substantial question of law and

release pending appeal is unwarranted.6

CONCLUSION AND ORDER

The defendants have not shown by clear and convincing

evidence that they do not pose a risk of flight or danger to the

6
The defendants also assert that “there is a substantial
question of law as to whether the extended delay in sentencing
Thurston and Ball, and by extension, Jones, . . . was
unconstitutional.” Defs.’ Mot. for Release at 1. However, the
defendants do not discuss this issue further in their motion or
reply brief. The burden rests on the defendants, and they have
not carried it on this claim.
 -20-

community. Binding precedent in this circuit supports the use of

acquitted conduct in calculating the defendants’ total offense

levels under the Sentencing Guidelines and there is no circuit

split on this issue. No other binding precedent reflects that

imposing sentences below the statutory maxima and below the

Guidelines range calculated using acquitted conduct establishes

that the defendants’ sentences are substantively unreasonable.

The defendants have also not shown that their sentences were

procedurally unreasonable. Accordingly, it is hereby

ORDERED that the defendants’ motion [1478] for release be,

and hereby is, DENIED.

SIGNED this 23rd day of August, 2013.

/s/
RICHARD W. ROBERTS
Chief Judge