USA v. Eldridge et al

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Case 1:09-cr-00329-RJA Document 789 Filed 09/11/18 Page1of16

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA

DECISION AND ORDER
V. 09-CR-329A

KEVIN ALLEN,

Defendant.

INTRODUCTION

The defendant, Kevin Allen, is scheduled to be sentenced by this Court, on
October 2, 2018 at 12:30 p.m., on his previous conviction, following a jury trial, as to:
Count 1 of the redacted superseding indictment (Dkt. No. 164) charging participation in
the affairs of an enterprise through a pattern of racketeering activity in violation of
Sections 1962(c) and 1963(a) of Title 18 of the United States Code; Count 2 of the
redacted superseding indictment charging conspiracy to participate in the affairs of an
enterprise through a pattern of racketeering activity in violation of Sections 1962(d) and
1963(a) of Title 18 of the United States Code; Count 3 of the redacted superseding
indictment charging conspiracy to possess with intent to distribute, and to distribute,
controlled substances in violation of Sections 846, 841(a)(1), 841(b)(1)(d) and 851 of
Title 21 of the United States Code; Count 4 of the redacted superseding indictment
charging possession of a firearm in furtherance of a drug trafficking crime, in violation of
Sections 924(c)(1)(a)(i) and 2 of Title 18 of the United States Code; and Count 6 of the
redacted superseding indictment charging Hobbs Act robbery, in violation of Sections

1951(a) and 2 of Title 18 of the United States Code.

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

Both the Government and defense counsel have filed statements with respect to
sentencing factors and sentencing memorandums. (Dkt. Nos. 719, 756, 758, 768, 774)
Defendant objects to a number of factual and legal findings in the Presentence
Investigation Report (“PSR”). (Dkt. No. 787) Below is the Court’s ruling as to
defendant’s objections.
FACTUAL FINDINGS IN THE PSR
With respect to the factual findings contained in Paragraphs 4 through 45 of the
PSR, defendant argues that the following three categories of information should be
removed: (1) information pertaining to Counts and Racketeering Acts for which the jury
could not reach a verdict; (2) information pertaining to conduct for which defendant was
acquitted; and (3) information about uncharged conduct for which no specific findings
were made by the jury. To that end, defendant argues that Paragraphs 34 through 37
should be stricken from the PSR because the jury was unable to reach a verdict on the
Counts and Racketeering Acts related to his participation in the murder of Sam Jones
(Counts 13, 14 and 15). He further argues that since the jury was unable to reach a
verdict as to whether he kidnaped Woodie Johnson in aid of racketeering (Count 5) and
later possessed with intent to distribute cocaine taken from Woodie Johnson,
information about his participation in the kidnaping and robbery of cocaine should be
removed from Paragraph 8 and Paragraphs 16 through 21 of the PSR. Defendant
argues that Paragraph 23, which discusses a Racketeering Act involving the robbery of
Larry Kemp, should be removed because the jury acquitted him of this conduct.
Defendant also argues that Paragraphs 25 through 33, which discuss the murder of
Thedrus Laster, should be stricken from the PSR because he was not charged in those
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Counts or Racketeering Acts.
Section 1B1.4 of the Sentencing Guidelines states that, pursuant to Section
3661 of Title 18 of the United States Code, “in determining the sentence to impose
within the guideline range...the court may consider, without limitation, any information
concerning the background, character and conduct of the defendant.” The Supreme
Court has noted that, “as a general proposition, a sentencing judge may appropriately
conduct an inquiry broad in scope, largely unlimited either as to the kind of information
he may consider, or the source from which it may come.” Nichols v. United States, 511
U.S. 738, 747 (1994). Also, a sentencing court is permitted to consider “hearsay
evidence, evidence of uncharged crimes, dropped counts of an indictment and criminal
activity resulting in an acquittal.” United States v. Reese, 33 F.3d 166, 174 (2d Cir.
1994).
Paragraph 4 of the PSR states that information in the offense conduct section
was obtained by the Probation Officer, from the indictment, consultation with the
Assistant U.S. Attorney, trial testimony and other investigative materials provided by the
U.S. Attorney’s office. Indeed, these paragraphs provide, inter alia, background
information as to the conspiracy and crimes charged in this case, information about the
lengthy investigation of defendant and his co-conspirators, and a detailed description of
much of the trial testimony. Because a sentencing court is permitted to undertake a
broad inquiry as to the background, character and conduct of the defendant, all of the
factual information contained in the offense conduct section of the PSR was properly
included. The Court notes that it will discuss separately how charges in the indictment
for which the jury was unable to reach a unanimous verdict specifically affect
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defendant’s guideline range calculations. However, all of this factual information was
properly included in the Offense Conduct Section.
Defendant states that Paragraph 18 of the PSR contains an internal
inconsistency in that it states that Steve Martin testified that on February 24, 2005,
defendant arrived at Martin’s residence and informed him that he missed the robbery.
Martin further testified that defendant informed Martin that he, along with co-defendants
Thamud Eldridge and Kashika Speed, traveled to Woodie Johnson’s residence and
carried out the robbery. The Court finds that this sentence is not inconsistent and that it
is an accurate summary of Martin’s trial testimony. Defendant also objects to the
phrase “said time period” in Paragraph 8 of the PSR as confusing. Defendant argues
that it is unclear as to whether the time period refers to the mid 1990's through the early
2000’s or refers to 2003 through 2005, which is the period covered by the indictment.
The Court finds that Paragraph 8 is not unclear. Steve Martin and Timothy Jackson
testified that the Montana Bridge and NBC Gang sold heroin and cocaine base from the
mid 1990's to the early 2000's. Martin testified that he observed defendant selling
bundles of heroin during this same time frame. Indeed, the time period of the mid
1990's to the early 2000's overlaps with the period of 2003 through December of 2005,
which is covered by the indictment.
For these reasons, the Court adopts the findings of fact contained in the PSR as
its findings of fact.
APPLICATION OF THE GUIDELINES TO THE FACTS
Defendant was found guilty of Count 1 (Racketeering), Count 2 (Conspiracy to
Commit Racketeering), Count 3 (Narcotics Conspiracy), Count 4 (Possession of
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Firearm in Furtherance of Drug Trafficking); and Count 6 (Hobbs Act Robbery).
With respect to Counts 1 and 2, pursuant to Application Note 1 of Guideline
Section 2E1.1, where there is more than one underlying offense, each underlying
offense is treated as if it were contained in a separate count of conviction for the
purposes of Guideline Section 2E1.1(a)(2) and requires a determination as to whether
Subsection (a)(1) or (a)(2) results in the greater offense level after considering Chapter
3, Parts A, B, C, and D. Each Racketeering Act is treated as a separate incident,
therefore, the total offense level is determined by using the multi-count rules found in
Guideline Section 3D1.4.
Count Group 1: Conspiracy to Distribute Controlled Substances
Pursuant to Guideline Section 3D1.2(d), Racketeering Act 1 of Count 1, Overt Act
1 of Count 2, and Count 3 are grouped for guideline calculation purposes, as the offense
level is determined largely on the basis of the quantity of the substance involved. Pursuant
to Guideline Section 3D1.3(b), the offense level applicable to a group is the offense level
corresponding to the aggregated quantity, determined in accordance with Chapter Two and
Parts A, B, and C of Chapter Three of the Sentencing Guidelines.
Count 1- Racketeering Act 1: Conspiracy to Distribute Controlled Substances
Count 2 - Overt Act 1 - Conspiracy to Distribute Controlled Substances
Count 3 - Conspiracy to Possess with Intent to Distribute, and to Distribute,
Controlled Substances
For Count Group 1, the PSR recommends that defendant's base offense level
under Guideline Sections 2A1.1(a)(5) and 2D1.1(c)(4) is 32 because the offense
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involved the equivalent of at least 3,000 kilograms but less than 10,000 kilograms of
marijuana. Defendant objects to this assessment of the amount of drugs involved. He
argues that he was incarcerated during most of the time period of the conspiracy, that
the drug amount was not foreseeable to him, and that the drug quantity calculations are
not supported by specific testimony or evidence in the record.
The Court rejects these arguments. To begin, the drug amounts in Paragraph
54 of the PSR are supported by the trial testimony of Jay Renfro, Henry Lloyd, Steve
Martin, Woodie Johnson and Jerome Laser. According to Martin and Laster, the
Montana Bridge Gang sold approximately five to ten pounds of marijuana per week
from 1999 through 2005. Thus, over the duration of the drug conspiracy between 2003
through December 2005, the conspirators were involved in the distribution of
approximately 780 to 1,560 pounds of marijuana. This is the equivalent of
approximately 353.8 kilograms to 707.6 kilograms of marijuana. In addition, Martin
testified that he observed Allen sell bundles of heroin on five occasions, for a total of
approximately five grams during the time period of the conspiracy. Renfro testified that
he provided Eldridge with half a kilogram of cocaine base in 2003. Trial testimony
indicated that on February 23, 2005, members of the conspiracy abducted Woodie
Johnson, a known drug dealer, and stole two kilograms of cocaine from him. Lloyd
testified that in April 2003, Allen robbed him of an ounce of cocaine and $3,500 (the
equivalent of approximately 3.5 ounces of cocain base). There is also evidence that in
October of 2005, Allen, Eldridge and others robbed Lloyd again, this time of $21,000
(the equivalent of 10.5 ounces of cocaine) and 4.5 ounces of powder cocaine. These
amounts of heroin, cocaine and cocaine base were converted to their marijuana
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equivalents pursuant to Guideline Section 2D1.1. The amounts were then added to the
353.8 kilograms to 707.6 kilograms of marijuana distributed by conspirators, for a total
of at least 3,000 but less than 10,000 kilograms of marijuana.
The Court also rejects defendant’s arguments that he was incarcerated for the
majority of the conspiracy and that the amount of drugs was not foreseeable to him.
There is no evidence in the record that defendant attempted to withdraw from the
conspiracy at any time nor is there evidence to support his contention that the amount
of narcotics involved was not foreseeable. In fact, there was evidence that he not only
sold narcotics himself but also that he conspired to rob other drug dealers to obtain
both money and narcotics. Steve Martin testified that Allen planned robberies of drug
dealers while they were housed at Gouverneur Correctional Facility, demonstrating that
defendant’s criminal activity did not end during periods of incarceration. Morever, as
noted in the PSR, defendant was released to parole supervision on August 1, 2003 by
Erie County Court. Although he sustained several convictions thereafter, he was either
sentenced to conditional discharges or brief periods of incarceration in local jail
facilities. As such, defendant was residing in the community and not in state custody
during the majority of the conspiracy.
For these reasons, the Court finds that paragraph 54 of the PSR correctly states
that the instant offense involved at least 3,000 but less than 10,000 kilograms of
marijuana such that defendant’s base offense level for Count Group 1 is 32. The PSR
also recommends a 2 level upward adjustment pursuant to Guideline Section
2D1.1(b)(12) as the defendant maintained a drug involved premises. The Court adopts
this recommendation since there was testimony that Allen and others maintained a
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stash house on Reed Street.
For these reasons, the Courts finds that the adjusted offense level as to Count
Group 1 is correctly calculated as 34.
Count Group 2: Robbery and Kidnapping of W.J.
Pursuant to Guideline Section 3D1.2(a), Racketeering Act 3 of Count 1, Overt
Act 3 of Count 2, and Count 6 are grouped for guideline calculation purposes as the
counts involve the same victim (Woodie Johnson) and the same act or transaction
(robbery and kidnapping). Pursuant to Guideline Section 3D1.3(a), the offense level
applicable to a group is the offense level, determined in accordance with Chapter Two
and parts A, B, and C of Chapter Three of the sentencing guidelines, for the most
serious count comprising the group.
Count 1- Racketeering Act 3: Robbery and Kidnapping of Johnson
Count 2 - Overt Act 3 - Robbery and Kidnapping of Johnson
Count 6 - Hobbs Act Robbery
For Count Group 2, the presentence investigation report indicates that the most
serious offense is kidnaping. The PSR recommends that defendant's base offense
level is the offense level applicable to the underlying racketeering activity (kidnaping of
Johnson), which is found in Guideline Section 2A4.1. Pursuant to Guideline Section
2A4.1(a)(7)(b), if the victim was kidnaped, abducted, or unlawfully restrained during the
commission of or in connection with, another offense, increase to four (4) plus the
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offense level from the offense guideline applicable to that other offense if the resulting
offense level is greater than that determined using Guideline Section 2A4.1(a)(1)-(6).
The other offense is Hobbs Act Robbery, which has a base offense level of 20,
pursuant to Guideline Section 2B3.1(a). Therefore, the PSR recommends an initial
offense level of 24.
The PSR recommends a 6 level upward adjustment pursuant to Guideline
Section 2B3.1(b)(2)(B) as the victim was held at gunpoint with a weapon pressed to his
neck. The PSR recommends a 4 level upward adjustment pursuant to Guideline
Section 2B3.1(b)(4)(A) as the victim was abducted to facilitate the commission of the
instant offense. The PSR also recommends a 1 level upward adjustment pursuant to
Guideline Section 2B3.1(b)(6) as the defendant stole a controlled substance. The
presentence investigation report also recommends a 1 level upward adjustment
pursuant to Guideline Section 2B3.1(b)(7)(B) as the total loss in the instant offense was
$82,000, which is more than $20,000 but less than $95.000. Thus, the PSR
recommends an adjusted offense level of 36 for Count Group 2.
Count Group 3: Murder and Conspiracy to Commit Robbery of Sam Jones,
Jr., a/k/a Smokey
Pursuant to Guideline Section 3D1.2(a), Racketeering Act 6 of Count 1, and
Overt Act 6 of Count 2 are grouped for guideline calculation purposes as the counts
involve the same victim and the same act. Pursuant to Guideline Section 3D1.3(a), the
offense level applicable to a group is the offense level, determined in accordance with
Chapter Two and parts A, B, and C of Chapter Three of the Sentencing Guidelines, for
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the most serious count comprising the group.
Count 1-Racketeering Act 6- Murder and Conspiracy to Commit Robbery of
Sam Jones, Jr., a/k/a Smokey
Count 2- Overt Act 6 - Murder and Conspiracy to Commit Robbery of Sam
Jones, Jr., a/k/a Smokey
The PSR recommends that defendant's base offense level under Guideline
Sections 2E1.1(a)(2) and 2A1.1(a) is 43 for Count Group 3. Thus, the PSR
recommends an adjusted offense level for Count Group 3 of 43.
Defendant objects to the inclusion of Count Group 3. Defendant argues that
because the jury was unable to reach a verdict as to Racketeering Act 6 of Count 1 and
Overt Act 6 of Count 2, both of which involve the murder of Sam Jones, Count Group 3
should not be included in the multiple count adjustment to determine defendant’s
guideline range. The Government contends that because there is evidence in the record
to find, by a preponderance of the evidence, that defendant participated in the murder of
Sam Jones, the inclusion of Count Group 3 is accurate. Should the Court accept
defendant’s objections, Count Group 3 would not factor into defendant’s total offense
level or sentencing calculation.
The applicable Guidelines as to Count 4, which is not factored into the multi-
Count adjustment, are as follows:
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Count 4: Possession of Firearms in Furtherance of a Drug Trafficking Crime
The Sentencing Guidelines for a violation of Section 924(c)(1) of Title 18 of the
United States Code is found in Guideline Section 2K2.4(b). Pursuant to Guideline
Section 2K2.4(b), if the offense involved a firearm in furtherance of a drug trafficking
crime, the guideline sentence is the minimum term of imprisonment required by statute
and further, Chapters Three and Four shall not apply to this count of conviction.
Pursuant to Section 924(c)(1)(a)(i) of Title 18 of the United States Code, the required
minimum term of imprisonment is five (5) years, which is to be served consecutive to the
other counts of conviction.
The Court will now calculate defendant’s total offense level using the multiple
count adjustment pursuant to Guideline Section 3D1.4 and defendant’s guideline range.
The Court will calculate both the total offense level and the guideline range
recommended by the PSR and endorsed by the government, as well as the total offense
level and applicable guideline range should defendant’s objections be adopted.
Should the Court accept the calculations of the PSR and the position of the
Government, the combined adjusted offense level, after the multiple count adjustment
set forth in Guideline Section 3D1.4, is 44. This includes an adjusted offense level of 34
for Count Group 1, an adjusted offense level of 36 for Count Group 2, and an adjusted
offense level of 43 for Count Group 3. However, pursuant to Chapter 5, Part A, when
the total offense level is calculated in excess of 43, which is the highest offense level in
the guidelines, the offense level is 43. The PSR recommends that the total offense level
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be calculated at level 43 and that the criminal history category should be properly
calculated as Category VI.
With an offense level of 43 and a criminal history category of VI, the recommended
guideline range for Counts 1, 2, 3 and 6 is life on each Count. However, pursuant to
Sections 1963(a) and 1951(a) of Title 18 of the United States Code, the maximum term of
imprisonment for Counts 1, 2 and 6 is 240 months as to each Count. Pursuant to Section
841(b)(1)(d) of Title 21 of the United States Code, the maximum term of imprisonment as
to Count 3 is 60 months. Taking into account the statutory maximums, the guideline range
becomes 240 months as to each of Counts 1, 2, and 6 and 60 months as to Count 3.
Should the Court accept defendant’s objections, the combined adjusted offense level
set forth in Guideline Section 3D1.4, after the multiple count adjustment, is 38. This
includes an adjusted offense level of 34 as to Count Group 1, an adjusted offense level of
36 as to Count Group 2, and a removal of Count Group 3 entirely from the calculation.
Defendant’s criminal history category is properly calculated as Category VI. With a total
offense level of 38 and a criminal history category of VI, the guideline range for Counts 1,
2, 3 and 6 is 360 months to life for each count. However, taking into account the statutory
maximums just explained, defendant’s guideline range becomes 240 months as to each
of Counts 1, 2, and 6 and 60 months as to Count 3.
Thus, in light of the statutory maximums, defendant has the same guideline range
as to Counts 1, 2, 3 and 6 regardless of whether the Court adopts the calculations set forth
in the PSR and endorsed by the government or whether the Court accepts defendant’s
objections and does not consider Count Group 3. Therefore, the Court will not decide
defendant’s objections as to the inclusion of the conduct involving the robbery and murder
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of Sam Jones. The Second Circuit has held that “disputes about the applicable guidelines
need not be resolved where the sentence falls within either of two arguably applicable
guideline ranges and the same sentence would have been imposed under either guideline
range.” United States v. Bermingham, 855 F.2d 925 (2d Cir. 1988). See also United States
v. Borrego, 388 F.3d 66 (2d Cir. 2004) (sentence of 240 months imprisonment affirmed
where sentencing judge could have imposed a sentence of 240 months imprisonment
regardless of the outcome of the disputed sentencing issues, and made clear that the
sentence would have been the same regardless).
Pursuant to Guideline Sections 2K2.4(b) and 5G1.2(a), with respect to Count 4, the
guideline sentence is the minimum term of imprisonment required by Section 924(c)(1)(a)(i)
of Title 18 of the United States Code, which is 60 months, which must run consecutive to
any other counts.
Pursuant to Guideline Section 5G1.2(d), if the sentence imposed on the count
carrying the highest statutory maximum is less than the total punishment, then the sentence
imposed on one or more of the other counts shall run consecutively, but only to the extent
necessary to produce a combined sentence equal to the total punishment. In all other
respects, sentences on counts shall run concurrently, except to the extent otherwise
covered by law. Pursuant to Guideline Section 5G1.3(d), if a defendant is serving a prior
undischarged term of imprisonment, the sentence for the instant offense may be imposed
to run concurrently, partially concurrently, or consecutively to the prior undischarged term
of imprisonment to achieve a reasonable punishment for the instant offense. Section
3584(a) of Title 18 of the United States Code indicates that if multiple terms of
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imprisonment are imposed on a defendant at the same time, or if a term of imprisonment
is imposed on a defendant who is already subject to an undischarged term of imprisonment,
the terms may run consecutively or concurrently.
Here, defendant argues that his sentence as to Counts 1, 2, 3 and 6 should run
concurrent to each other. Defendant acknowledges that his sentence as to Count 4, which
is a mandatory minimum of 60 months, must then be imposed consecutively. Defendant
further contends that his sentence in this case should be imposed concurrently with his
current undischarged state sentence of 25 years to life imprisonment imposed in Erie
County Court on November 18, 2009, under Docket No. 2007-01846. The Government
contends that defendant’s sentences in all Counts in this case should run consecutively to
each other and consecutively to his undischarged state sentence. The Court will address
these arguments and make a ruling as to how the sentences as to each Count will be
imposed at the time of sentencing and after hearing argument from counsel on this issue.
CONCLUSION
The Court’s rulings as to the applicable sentencing guideline and defendant’s
objections are set forth herein and will be restated on the record at the time of defendant’s
sentencing on October 2, 2018. The Court will impose sentence at that time, after it has
heard from the Government, defense counsel and defendant. The Court notes that in
making the determinations set forth herein, it has considered all of the filings and arguments
by both the Government and defendant and that no further filings as to the objections are
needed.
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IT IS SO ORDERED.
____Richard J. Arcara____________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: September 11, 2018
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