March 23, 2016 [*]
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF PENNSYLVANIA (D.C. No. 2-09-cr-00105-009)
District Judge: Hon. David S. Cercone
P. Bernard, Jr., Esq. [ARGUED] Counsel for Appellant
Michael L. Ivory, Esq. [ARGUED] Rebecca R. Haywood, Esq.
Office of United States Attorney Counsel for Appellee
Before: GREENAWAY, JR., VANASKIE, and SHWARTZ, Circuit
OPINION OF THE COURT
SHWARTZ, Circuit Judge.
Douglas appeals his sentence, arguing that the District Court
incorrectly held him responsible for trafficking more than
450 kilograms of cocaine, erroneously applied sentencing
enhancements for abuse of a position of trust under U.S.S.G.
§ 3B1.3 and obstruction of justice under U.S.S.G. §
3C1.1, and failed to appropriately consider the disparity
between his sentence and those imposed on his
co-conspirators. For the reasons discussed below, we will
affirm the sentence with respect to the drug calculation and
reverse the obstruction of justice enhancement.
participated in a conspiracy to distribute cocaine. The
conspiracy began years before he joined it, when Tywan
Staples, who lived in the San Francisco area, began supplying
marijuana to his cousin Robert Russell Spence in Pittsburgh.
Staples and Spence went from selling small amounts of
marijuana to shipping four to six kilograms of cocaine across
the country several times a month. After law enforcement
intercepted several packages containing money and drugs, the
conspirators began using couriers to carry drugs and money on
commercial flights. By 2008, six different couriers were
transporting cocaine out of the Oakland, California airport.
After two of the couriers were arrested, the conspirators
began using San Francisco International Airport
who worked at the "maintenance base" at SFIA, knew
Douglas, who was an airline mechanic for United Airlines.
Douglas had an Airport Operation Authority ("AOA")
badge that enabled him to enter the airport terminal without
being screened at a Transportation Security Administration
("TSA") checkpoint. Unlike Douglas, Staples did not
have the ability to enter the terminal without inspection.
For that reason, when Douglas asked Staples if he had
"any way [Douglas] could make some extra money, "
Staples invited him to join the conspiracy. Douglas accepted.
and Douglas facilitated the movement of cocaine in a simple
way. Staples would deliver the cocaine to Douglas packed in a
bag with clothing. Douglas would then smuggle the bag into
the terminal and either transfer it to a courier once inside
the secured area of the terminal, or board the plane as a
passenger with the drugs.
testified that Douglas assisted with the movement of the
cocaine "40 to 50 times, " transporting ten to
thirteen kilograms of cocaine on each occasion. App. 102.
Douglas transported drugs himself on seventeen occasions.
Unlike the couriers, he was not required to bring cash back
to California, so as to avoid any risk of being caught, which
would, in turn, shut down the conspiracy's San Francisco
distribution activities. Staples testified that Douglas was
paid $5, 000 each time that he smuggled cocaine into the
airport, and another $5, 000 each time he delivered a
airline records, the Government identified forty-six specific
flights departing from SFIA between January and November of
2009 that were associated with the conspiracy, including
seventeen flights on which Douglas personally transported
drugs, sometimes using his employee benefit tickets. These
flights included very short round trips that were
inconsistent with personal travel, and corresponded to phone
calls among the conspirators, the use of pre-paid credit
cards, and the timing of deposits into Douglas's bank
an investigation, a grand jury returned an indictment against
Douglas and twenty-one co-defendants. Douglas was charged
with conspiracy to distribute and to possess with intent to
distribute five kilograms or more of cocaine, in violation of
21 U.S.C. § 846, and conspiracy to engage in money
laundering, in violation of 18 U.S.C. § 1956(h). Douglas
was arrested and released on bail, subject to several
conditions, including travel restrictions and a requirement
that he appear for court proceedings. While Douglas was on
bail, the Probation Office discovered that he had booked a
flight to Jamaica without permission. At his bail revocation
hearing, Douglas claimed he had mistakenly booked a flight
for himself while booking a flight for his wife. The District
Court did not revoke his bail, but modified his conditions of
release to require him to call probation daily to verify his
trial was scheduled to begin on January 8, 2014. He failed to
appear for the first day of trial. The next day, he filed a
motion for a continuance claiming that he "was receiving
medical attention on January 8, 2014 and was unable [to be]
in court for that reason." Supp. App. 47. In connection
with the motion, Douglas submitted documents showing that he
was admitted to the emergency room around 2:00 a.m. on
January 8, complaining of chest pain. The records show that
he was treated with aspirin and intravenous insulin,
transported via ambulance to an urgent care facility, and had
a series of tests in both medical facilities. Douglas's
EKG revealed possible heart blockage, and his blood tests
indicated he had an abnormal white blood cell count, as well
as an elevated enzyme level that can be indicative of a heart
attack. He received instructions for taking eight
over-the-counter and prescription medications, in addition to
the medication he was already taking for diabetes. Douglas
was also instructed to schedule follow-up testing and
appointments with several specialists. Douglas was also given
a doctor's note bearing the time 4:12 p.m. asking that he
be excused from court on January 8.
on this evidence, the Government argued that it was
"possible that [Douglas] went there [at] 2:00 in the
morning faking this illness, so he wouldn't have to be
here today. It is also possible that that was a legitimate
illness. I don't think that anything in the records tells
us one way or the other." App. 388. Despite the hospital
records, the District Court stated that "[t]here's
no solid evidence, at least presented, that he was suffering
from a medical condition that warranted him not to appear.
It's really sort of ambiguous." App. ...