United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 18, 2005
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-40377
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LORENZO HOWARD, also known
as Big Lo,
Defendant-Appellant.
__________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:03-CR-16-4-LED
_________________________________________________________________
Before REAVLEY, JOLLY, and PRADO, Circuit Judges.
PER CURIAM:*
Lorenzo, a.k.a. “Big Lo” Howard (“Howard”) argues that his 16-
count conviction for gang-related conspiracy, racketeering, drug
and firearms offenses was not supported by sufficient evidence. He
also argues that his sentence to over 131 years’ imprisonment is so
disproportionate to the crime that it constitutes a violation of
the Eighth Amendment’s prohibition of cruel and unusual punishment,
especially considering that his co-conspirators received sentences
ranging from 10-20 years in prison pursuant to plea agreements.
Howard maintains that the district court committed various errors
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
in calculating his sentencing range under the Sentencing
Guidelines. We find his arguments unavailing and affirm his
conviction and sentence.
Testimony at trial demonstrated that Howard was among the
principal members of a violent street gang, the East Side Locos
(ESL), operating in Tyler, Texas. Trial evidence also showed that
the ESL attempted to expand its influence in Tyler by killing
members of rival gangs, selling drugs, obtaining firearms,
committing burglaries, and generally instilling fear in the
community.
Howard was convicted of a RICO conspiracy in violation of 18
U.S.C. § 1962(d); a drug distribution conspiracy and substantive
distribution counts in violation of 21 U.S.C. §§ 841(a)(1) and 846;
violent crimes in aid of racketeering in violation of 18 U.S.C. §
1959(a)(3); use or carrying of firearms during and in relation to
crimes of violence and drug trafficking crimes in violation of 18
U.S.C. § 924(c); possession of an illegal firearm in violation of
26 U.S.C. §§ 5841, 5861(d), and 5871; witness tampering in
violation of 18 U.S.C. § 1512(b); and being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1).
In contending that his sentence of 131 years’ imprisonment
violates the Eighth Amendment, Howard characterizes himself as one
of the least involved members of the conspiracy, who, because he
refused to accept a plea agreement, received a much longer sentence
than any of his co-conspirators, most of whom were more culpable
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than he for the offenses committed in furtherance of the
conspiracy. The record does not show that he was only minimally
involved in gang activity. Furthermore, the disparity between
Howard’s sentence and those of his co-conspirators is a result of
Howard’s decision to reject the United States’ offer of a plea
agreement. That was his decision, and is not a basis on which to
overturn a conviction or sentence as violative of the Eighth
Amendment.
Of Howard’s total sentence, 110 years are attributable to the
five gun counts of which he was convicted. This portion of
Howard’s sentence is the result of mandatory minimum, consecutive
sentences established by Congress in 18 U.S.C. § 924(c). Pursuant
to § 924(c)(1)(A)(iii), if a firearm is discharged, the minimum
sentence to be imposed is ten years. Furthermore, §
924(c)(A)(C)(i) mandates that subsequent offenses under § 924(c)
should result in a minimum consecutive sentence of twenty-five
years. The district court, thus, followed Congressional guidance
in sentencing Howard to ten years for Count 12 and to twenty-five
years for each of Howard’s four subsequent offenses under this
statute.
With regard to the gun offenses, Howard argues that the
evidence was insufficient to support his conviction on Count 16,
which arose when police found three weapons in the house leased by
Howard. Howard also contends that the Government did not prove
that he possessed the weapons in connection with a crime of
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violence or a drug trafficking crime, as required by 18 U.S.C. §
924(c). Howard relies on the account of his brother, Rodgerick,
who testified at trial that the drugs found at the house were his
and that the weapons did not belong to Howard. Trial testimony
also included statements by three ESL gang members who testified
that Howard and other gang members sold drugs out of that house and
that Howard possessed the guns found in the house.
In reviewing a claim for insufficiency of evidence, we “must
view the evidence in the light most favorable to the verdict,
accepting all credibility choices and reasonable inferences made by
the jury[.]” United States v. McCord, 33 F.3d 1434, 1439 (5th Cir.
1995). There was evidence before the jury that showed that Howard
leased the house, that Howard and other gang members used the house
for storing weapons and selling drugs, and that Howard possessed
the weapons seized at the house. Because we accord substantial
deference to the jury’s apparent acceptance of the gang members’
testimony over that of Howard’s brother, we find the evidence
supporting the conviction on this count sufficient.
Howard further contends that the evidence supporting the other
gun counts was insufficient, largely because he was in jail at the
time the offenses were committed by ESL members. These offenses
stemmed from three shootings that occurred in June and October 2000
and May 2001. The record shows that Howard was in jail at those
times. Howard argues that he should not have been liable for these
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offenses because no evidence at trial demonstrated that he
participated in, encouraged, or even was aware of these offenses.
Howard’s argument is unpersuasive. In a conspiracy “an overt
act of one partner may be the act of all without any new agreement
specifically directed to that act” if the act is done in
furtherance of that conspiracy. Pinkerton v. United States, 328
U.S. 640, 647 (1946). Here, the record clearly shows that the
shootings were committed to advance the ESL’s goals of retaliating
against rival gangs and expanding its influence in Tyler. Although
Howard was in jail during the commission of these offenses, he was
indisputably a member of this gang who, the evidence at trial
showed, never attempted to withdraw from the conspiracy, even while
he was incarcerated. Moreover, his writing of a threatening letter
warning a fellow gang member not to cooperate with the police
investigation of the May 2001 shooting belies his argument that he
neither knew of nor encouraged the offense. Therefore, he was
appropriately held liable under Pinkerton for these offenses
committed by the other gang members in furtherance of the
conspiracy.
We also find no error in the district court’s calculation and
application of the Sentencing Guidelines. Specifically, we note
that the record demonstrates that the district court properly
considered as relevant conduct the April 1997 and May 2001
attempted murders because the record shows that they were both
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foreseeable to Howard and were within the scope of the conspiracy
that he joined. Trial testimony indicated that Howard was present
during the altercation that resulted in the April 1997 gunfight in
which one ESL member was killed. Furthermore, Howard later
attended a meeting at which gang members discussed possible
retaliation for the killing. Howard wrote a threatening letter
from prison warning a fellow gang member not to cooperate in the
police investigation of the May 2001 attempted murder. We
therefore conclude that the district court did not err in including
these attempted murders as relevant conduct under U.S.S.G. § 1B1.3.
We have reviewed Howard’s other arguments regarding the
calculation and application of the Sentencing Guidelines and find
them unpersuasive. In sum, we find no error in the district
court’s conviction of Howard and in its calculation and application
of the Sentencing Guidelines. Therefore, the conviction and
sentence imposed by the district court are
AFFIRMED.
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