Submitted: February 15, 2019
Appeal
from United States District Court for the District of
Minnesota - St. Paul
Before
LOKEN, COLLOTON, and KELLY, Circuit Judges.
COLLOTON, Circuit Judge
Ralph
Duke was sentenced in 1990 to a term of life imprisonment
plus forty years for committing several serious drug
trafficking and firearms offenses. A district court later
vacated his convictions on the firearms counts in light of an
intervening judicial decision, and the case was returned to
the District of Minnesota for resentencing. After considering
the matter anew, the district court[1] determined an advisory
guideline range of 360 months to life and sentenced Duke to a
term of life imprisonment. Duke argues that the district
court made procedural errors and imposed a substantively
unreasonable sentence, but we disagree and affirm.
Duke
controlled all phases of a drug trafficking organization in
the Minneapolis/St. Paul area from 1984 through June 1989. He
purchased cocaine primarily from a Colombian-affiliated
source in Houston or from sources in Los Angeles. The cocaine
was transported to Minnesota in vehicles owned by Duke and
driven by younger members of his drug trafficking
organization. Duke then distributed kilograms of cocaine to
dealers for resale at the street level in smaller quantities.
Duke laundered the proceeds of drug sales by purchasing homes
and cars in the names of others. All told, Duke and his
organization trafficked over fifty kilograms of cocaine
before law enforcement interrupted their operations. When
Duke was apprehended in May 1989, officers found two loaded
handguns in his bedroom and two assault shotguns and two
AR-15 semi-automatic rifles in his residence. The government
charged at least twenty-five people as a result of the
investigation of Duke's organization.
In
1989, a jury convicted Duke on eleven charges arising from
the drug trafficking activity. The district court sentenced
him to the statutory maximum penalty on each count. Three
counts carried concurrent terms of life imprisonment:
engaging in a continuing criminal enterprise (count 1),
see 21 U.S.C. § 848 (1988), aiding and abetting
the attempt to possess with intent to distribute twenty
kilograms of cocaine (count 2), see id. §§
841(a)(1), (b)(1)(A), 846; 18 U.S.C. § 2 (1988), and
conspiracy to possess with intent to distribute five
kilograms or more of cocaine (count 32), see 21
U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (1988). Five
other drug trafficking counts carried shorter terms that ran
concurrent with the life sentences. Three firearms
convictions resulted in consecutive terms of thirty, five,
and five years, respectively, for a total of forty years'
imprisonment.[2]
On
appeal, this court affirmed the judgment in all respects but
one: the court ruled that the convictions on count 1
(continuing criminal enterprise) and count 32 (cocaine
trafficking conspiracy) violated the Double Jeopardy Clause
and remanded with instructions to vacate one of those
convictions. United States v. Duke, 940 F.2d 1113,
1120-21 (8th Cir. 1991). The district court vacated
Duke's conviction on count 1, but the life sentence was
unchanged.
In
2016, the district court reduced Duke's sentence under 18
U.S.C. § 3582(c)(2), based on a retroactive amendment to
the sentencing guidelines that made certain drug offenders
eligible for a two-level decrease in their base offense
level. See USSG Supp. to App. C, Amend. 782 (2014);
USSG § 1B1.10(a)(1), (d), (e)(1) (2014). In Duke's
case, the two-level decrease yielded a new guideline range of
292 to 365 months for the drug trafficking charges, and the
court sentenced him to concurrent terms of 365 months on each
of the seven drug convictions. The consecutive terms for the
firearms offenses were unaffected, so Duke's new sentence
as of 2016 was 365 months plus forty years.
Duke
then petitioned for a writ of habeas corpus under 28 U.S.C.
§ 2241 in the Central District of Illinois, invoking
Bailey v. United States, 516 U.S. 137 (1995). The
court determined that Bailey required vacatur of
Duke's firearms convictions, and then transferred the
case to the District of Minnesota for resentencing. See
Duke v. Thompson, No. 17-cv-1024, 2017 WL 4397950, at
*4-7 (C.D. Ill. Sept. 29, 2017).
With
the firearms convictions vacated, the district court
recalculated Duke's advisory guideline range as 360
months to life imprisonment-the same range that applied at
the original sentencing in 1990. Although the retroactive
guideline amendment reduced the base offense level by two
levels from the original hearing, a firearms adjustment under
USSG § 2D1.1(b)(1) now applied and offset the reduction.
The court again sentenced Duke to the statutory maximum terms
on each count: a term of life imprisonment on each of counts
2 and 32, and a term of forty years on each of counts 4
through 8, all to run concurrently.
On
appeal, Duke first argues that the district court committed
procedural error at the resentencing by failing to consider
adequately the sentencing factors under 18 U.S.C. §
3553(a). See Gall v. United States, 552 U.S. 38, 51
(2007). He complains that the court "failed to address
the detailed assessment of § 3553(a) factors offered by
the defense." But a district court need not expressly
address every § 3553(a) factor if the record shows that
they were considered. United States v. Clayton, 828
F.3d 654, 657 (8th Cir. 2016). The court here received and
read Duke's assessment of the factors in his sentencing
memorandum, heard oral arguments at the hearing about the
factors, and specifically referenced some of the factors when
explaining the chosen sentence. We presume that the court
considered the arguments before it, see United States v.
Wisecarver, 644 F.3d 764, 774 (8th Cir. 2011), and we
are satisfied that the district court was aware of the
relevant factors and considered them in imposing sentence.
Duke
also complains that the district court provided an inadequate
explanation for the chosen sentence. See Gall, 552
U.S. at 50. Assuming without deciding that Duke raised a
proper objection to the adequacy of the court's
explanation, we conclude that there was no procedural error.
In
explaining its decision to impose a life term, the court
remarked that while the supportive letters submitted on
Duke's behalf were "heartfelt and compelling,"
they could not "undo the serious crimes committed by the
Defendant over the course of many years during which he not
only flooded his community with drugs but also corrupted
numerous young people, many of whom were his family."
The court emphasized "the staggering magnitude of the
criminal activity involved," and concluded as follows:
"The Court commends the Defendant for his rehabilitative
efforts while in prison and sincerely hopes that the
Defendant has indeed changed, but the Court simply cannot
conclude that he should be released from prison." The
court's reason for choosing the life sentence was
evident: the seriousness of Duke's crimes justified that
...