IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 91-1779
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DANIEL UGOCHI IHEGWORO,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Mississippi
_________________________
Before SMITH and EMILIO M. GARZA, Circuit Judges, and RAINEY,*
District Judge.
JERRY E. SMITH, Circuit Judge:
Daniel Ihegworo was convicted of possession with intent to
distribute heroin in violation of 21 U.S.C. § 841(a)(1). He now
challenges his sentence, contending that the district court
misapplied U.S.S.G. § 5K2.1, which permits an upward departure
"[i]f death resulted" from the defendant's conduct. Finding no
error, we affirm.
*
District Judge of the Southern District of Texas, sitting by designa-
tion.
I.
On several occasions, Ihegworo sold heroin to Elnora Wilson
and to other women. On one of these occasions, Ihegworo gave a
quantity of heroin to Wilson and asked her to deliver it to
Elizabeth Love. Three or four hours after Wilson did so, she
learned that Love had died of an overdose. The heroin discovered
in Love's apartment was found to be ninety-three percent pure.
After learning of Love's death, Wilson called the police and
reported her involvement in the incident. She then agreed to act
as a confidential informant. When Wilson arrived at Ihegworo's
apartment on September 27, 1990, she wore a hidden microphone. At
that time, Ihegworo advised her not to talk to the police about
Love's death and told her that if she were arrested, he would make
arrangements to get her out of jail.
Wilson went to see Ihegworo the next day, accompanied by an
undercover police officer. The two purchased heroin from Ihegworo,
but he refused to let them leave with the substance. He expressed
his intent to supervise his purchasers' use of the heroin for fear
that one of them might die if allowed to use the heroin without
such supervision. Other officers then arrived on the scene and
arrested Ihegworo. The heroin Ihegworo had sold was ninety-seven
percent pure.
Ihegworo pleaded guilty to possessing 40.6 grams of heroin
with intent to distribute in violation of 21 U.S.C. § 841(a)(1).
At sentencing, the court noted that a base offense level of 18
would be applicable at the outset, reflecting an initial level of
2
201 reduced by two points for acceptance of responsibility.
U.S.S.G. § 3E1.1(a). Given that Ihegworo had no previous criminal
convictions, the court found that Criminal History Category I was
applicable; this yielded a sentencing range of twenty-seven to
thirty-three months.
The court then decided to depart upward from this range based
upon two factors. The first involved section 5K2.1, which permits
an upward departure "[i]f death resulted." The court concluded
that "[a] preponderance of the evidence . . . clearly relates
Elizabeth Love's overdose death to the heroin the defendant was
distributing." The second involved U.S.S.G. § 2D1.1 application
note 9, which allows the court to depart upward when the crime
involves "[t]rafficking in controlled substances . . . of unusually
high purity." The court noted that the average purity of heroin
sold "on the street[]" is "between 13 percent and 20 percent" S)Q
significantly lower than the purity of the heroin found in
Ihegworo's possession.
Based upon these two factors, the court sentenced Ihegworo to
ninety-seven months' imprisonment.2 Ihegworo now appeals the
1
U.S.S.G. § 2D1.1(c)(12) assigns a Base Offense Level of 20 to offenses
involving "[a]t least 40 G but less that 60 G of Heroin . . . ."
2
The court justified the length of sentence on the fact that had the
defendant been sentenced for distributing heroin that eventually caused death
or serious bodily injury, 21 U.S.C. § 841(b)(1)(C),
the offense level would have been 38. The 97 months is the top
end of an offense level of 26 which is a little less than midway
between the offense level of 18 and 38, and takes into account the
extent to which the Defendant's conduct reflected death was
knowingly risked.
It is plain from the record that the court was looking at the sentencing
ranges for level 28, which has a range of 78-97 months, and not for level 26.
3
upward departure.
II.
Section 5K2.1 permits sentencing courts to "increase the
sentence above authorized the guideline range" if "death resulted."
Ihegworo contends that an upward departure based upon section 5K2.1
was not warranted in his case because (1) his conduct did not fall
within the criteria listed in the section and (2) Love was not a
victim of the offense of conviction.
A departure from the guidelines is within the discretion of
the sentencing judge, and we affirm the decision to depart if it
was reasonable in light of the appropriate sentencing factors.
United States v. Siciliano, 953 F.2d 939, 942 (5th Cir. 1992). As
the Supreme Court recently stated, the congressional act establish-
ing the sentencing guidelines "did not alter a court of appeals'
traditional deference to a district court's exercise of its
sentencing discretion. . . . [T]he decision to depart from the
range in certain circumstances [is a] decision[] that [is] left
solely to the sentencing court." Williams v. United States, 60
U.S.L.W. 4206, 4209, 4210 (U.S. Mar. 9, 1992).
As noted below, see infra note 9, the defendant does not challenge the extent
of the departure but only the district court's decision to depart as an
initial matter. As the district court's apparent misstatement relates to the
extent of departure, we do not consider it as a ground for error.
4
A.
Section 5K2.1 provides that the sentencing judge
must give consideration to matters that would normally
distinguish among levels of homicide, such as the
defendant's state of mind and the degree of planning or
preparation. Other appropriate factors are whether
multiple deaths resulted, and the means by which life was
taken. The extent of the increase should depend on the
dangerousness of the defendant's conduct, the extent to
which death or serious injury was intended or knowingly
risked, and the extent to which the offense level for the
offense of conviction . . . already reflects the risk of
personal injury.
Ihegworo argues that his conduct does not fall within the factors
listed in section 5K2.1 as a factual matter and that therefore the
district court should not have departed from the guidelines based
upon that section. Among other things, he contends that he "did
not anticipate death resulting" from his actions, that he "did not
plan or prepare for the death of" Love, and that multiple deaths
did not result from his conduct.
As an initial matter, we reject Ihegworo's implicit argument
that his conduct must meet all the section 5K2.1 factors before a
court may use the section as a basis for an upward departure. The
only "mandatory" language in the section is that the judge "must"
consider matters that "normally distinguish among levels of
homicide," such as state of mind. In this case, the court utilized
this very approach: It found that "the Defendant appreciated the
dangerousness of the drug he was distributing" and that he
"reasonably foresaw death or serious bodily injury as a result of
the heroin he was distributing." It also noted that the sentence
reflected the fact that the "death was knowingly risked."
5
Ihegworo responds that, assuming that he had some connection
to the death of Love,3 he could have "appreciated" the risk of
death only after Love's death occurred and that the court improp-
erly considered post-death state-of-mind evidence. This argument
is without merit. Ihegworo was distributing extraordinarily pure
heroin directly to "junkies" and users, rather than to other
distributors who would be expected to dilute the drug for resale
purposes.4 In fact, by his own admission Ihegworo "did not allow
anyone to take heroin outside his presence to use." The fact that
he would not allow others to use the heroin outside of his presence
demonstrates his knowledge of the dangerousness of the drug.5
We accord the district court "wide discretion to decide
whether aggravating factors exist to support an upward departure."
Siciliano, 953 F.2d at 942 (quoting United States v. Hatch, 926
F.2d 387, 396-97 (5th Cir.), cert. denied, 111 S. Ct. 2239 (1991)).
In this case, we find that the departure was reasonable.
B.
3
Ihegworo contends that the district court's factual finding on this
issue was clearly erroneous. See infra note 8.
4
This is a slightly different concern from that underlying application
note 9, which suggests that "[t]rafficking in controlled substances . . . of
unusually high purity may warrant an upward departure . . . ." The note goes
on to state that "[s]ince controlled substances are often diluted and combined
with other substances as they pass down the chain of distribution, the fact
that a defendant is in possession of unusually pure narcotics may indicate a
prominent role in the criminal enterprise and proximity to the source of the
drugs." By contrast, in relation to § 5K2.1, the district court was concerned
with the risk of death associated with distributing extraordinarily pure
heroin directly to users.
5
Ihegworo also argues that the sentencing guidelines range for possession
of heroin with intent to distribute "reflects the risk of personal injury
inherent in the abuse of controlled drugs." In this case, however, the risk
was unique, given the purity of the drug.
6
Ihegworo also argues that section 5K2.1 is inapplicable as a
matter of law because Love was not the "victim" of the offense of
conviction.6 At the time Ihegworo committed the offense, section
5K2.0, entitled "Grounds for Departure," cautioned that
Harms identified as a possible basis for departure from
the guidelines should be taken into account only when
they are relevant to the offense of conviction . . . .7
In United States v. Roberson, 872 F.2d 597, 603 (5th Cir.), cert.
denied, 493 U.S. 861 (1989), we interpreted this limitation to
require "a nexus" between the harm caused and the offense of
conviction.8 We also noted that the nexus requirement applied to
section 5K2.1. Id. The district court in this case found such a
"nexus" between the death of Love and the offense of conviction.
Ihegworo contends that the death of Love could not meet the
6
We review the district court's legal conclusion de novo. Siciliano, 953
F.2d at 942.
7
Sentencing courts apply the version of the guidelines in place at the
time of sentencing unless such application would cause ex post facto concerns.
United States v. Suarez, 911 F.2d 1016, 1021-22 (1990); United States v.
Brown, 920 F.2d 1212, 1216 (5th Cir.), cert. denied, 111 S. Ct. 2034 (1991).
When the events in question took place in this case (September 1990), § 5K2.0
contained the relevancy limitation, which was deleted November 1, 1990,
because it was "unclear and overly restrictive." U.S.S.G., app. C, amend.
358. Given that the deletion of the relevancy limitation "is not simply a
change in procedure which does not affect a matter of substance," Suarez, 911
F.2d at 1022, the change raises ex post facto concerns. The district court,
therefore, was correct in applying the version of the guidelines in place at
the time the offense occurred.
8
The Ninth Circuit recently explained the § 5K2.0 relevancy requirement
in a similar fashion:
We conclude that, with respect to acts of misconduct
not resulting in conviction, the Commission intended
to preclude departures for acts bearing no relation-
ship to the offense of conviction, but to permit
departures for acts that relate in some way to the
offense of conviction, even though not technically
covered by the definition of relevant conduct.
United States v. Loveday, 922 F.2d 1411, 1417 (9th Cir. 1991) (quoting United
States v. Kim, 896 F.2d 678, 684 (2d Cir. 1990)).
7
"nexus" requirement because Love was not the "victim" of the
offense of conviction. He states that the only possible victims of
the offense for which he was convicted would be Wilson and the
undercover agent, and he adds that Love was not even involved in
the transaction that led to his conviction. Thus, he gives the
"nexus" requirement a very narrow reading: The "harms" covered by
section 5K2.1 must be not only offense-specific, but also victim-
specific. In other words, not only must there be a nexus between
the harm caused and the offense of conviction, but the harm must
have been suffered by the victim of the instant offense.
We decline to adopt such a narrow interpretation of section
5K2.0's limitation. It is true that Roberson speaks in terms of
the victim of the offense. At one point, the Roberson panel noted
that "section[] 5K2.1 . . . allow[s] the [sentencing] court to
depart from the Guidelines if the victim of the offense suffered
death . . . ." Id. But Roberson did not even address the question
of whether the harm, in order to be "relevant," must be suffered by
the victim of the instant offense. Rather, the Roberson panel was
asked to address whether the "nexus" limitation applied to section
5K2.8, which permits the court to enhance a defendant's sentence
where his "conduct was unusually heinous, cruel, brutal, or
degrading to the victim . . . ."
In Roberson, we discussed section 5K2.1 only in contrast to
section 5K2.8. We drew a distinction between those guideline
sections to which the nexus requirement applied and those to which
it did not; we held that the nexus requirement did not apply to
8
section 5K2.8 because it focused on the defendant's conduct, not
the harms resulting from the conduct. We used section 5K2.1 as an
example of a section to which the nexus requirement would apply,
noting that "[t]he victim's harm is the focal point" of section
5K2.1. Id. Our point was not that the victim of the offense of
conviction must suffer the harm for purposes of section 5K2.1, as
Ihegworo argues, but rather that the nexus limitation applies to
section 5K2.1 because that section focuses on harm.
In most cases, the harm involved will be suffered by the
victim of the instant offense. We obviously assumed this in
Roberson. However, the language of the guideline does not so
require. Rather, the section 5K2.0 merely states that the harm at
issue must be "relevant" to the offense of conviction. We decline
the defendant's invitation to narrow "relevancy" to victim-specific
harm when the language of the guideline does not require such a
reading.
Having decided that the "nexus" requirement does not include
a "victim-specific" component, we uphold the district court's
finding that the death of Love "clearly relates" to the offense of
conviction. Love died from ingesting the extraordinarily pure
heroin that Ihegworo was in the business of distributing.9 We find
9
Ihegworo argues that the court's finding "that the death of Elizabeth
Love resulted from the defendant's possession with intent to distribute is
clearly erroneous," and he "denies that the death of Elizabeth Love resulted
from a heroin overdose, contrary to the Court's finding." At the sentencing
hearing, Wilson testified that Ihegworo gave her some heroin and asked her to
delivery it to Love. Wilson did so, and when she returned to Love's residence
three or four hours later, she learned that Love had died. She then called
the hospital, and was told that Love had died of a heroin overdose. She
immediately called the police to report her involvement in the incident. The
heroin found in Love's apartment was 93% pure; the heroin found in Ihegworo's
possession at the time of his arrest was 97% pure.
9
that this is a sufficient nexus to satisfy the dictates of
Roberson.10
AFFIRMED.
We find that this is more than enough evidence to support the court's
finding that (1) Love died from an overdose and (2) she overdosed on drugs
distributed by the defendant. That the United States Attorney's Office
determined that it lacked sufficient evidence to charge Ihegworo with distrib-
uting heroin that caused death or serious bodily injury, see 21 U.S.C.
§ 841(b)(1)(C), does not require a different result.
Ihegworo makes a slightly different argument attacking the
"competen[cy]" of the death-by-overdose evidence. At the sentencing hearing,
Ihegworo's attorney objected, presumably on hearsay grounds, to Wilson's
testimony that she had learned of Love's overdose from the hospital. We find
that this evidence was properly admitted. Hearsay may be considered by a
sentencing court, provided that it is supported by sufficient indicia of
reliability. United States v. Chavez, 947 F.2d 742, 746 (5th Cir. 1991). In
this case, Wilson's testimony was sufficiently reliable; her testimony was
against her penal interest, and she was testifying without a grant of
immunity.
10
Ihegworo contests only the court's decision to depart from the
guidelines range as an initial matter and not the extent of the departure.
See Siciliano, 953 F.2d at 942 (review of upward departures is a two-step
process; reviewing court must first consider whether decision to depart was
reasonable in light of appropriate sentencing factors, and then must determine
"whether the extent, or length, or the departure is reasonable"). We
therefore do not consider whether the extent of the departure was reasonable.
See also Williams, 60 U.S.L.W. at 4209 (describing the two-step process as
follows: "First, was the sentence imposed either in violation of law or as a
result of an incorrect application of the Guidelines? . . . If [not]: is the
resulting sentence an unreasonably high or low departure from the relevant
guideline range?").
10