By: Derek Hawkins//November 25, 2015//
Criminal
7th Circuit Court of Appeals
Officials: POSNER, MANION, and HAMILTON, Circuit Judges.
Pleas & Sentencing – Court Error
14-3135 United States of America v. Jason Austin
The Court did not err by relying on key witness testimony for appellant sentencing.
“There is no dispute that the Kedzie–Ohio organization involved more than five persons. And there is ample evidence that Austin was the leader of the organization under § 3B1.1(a). Numerous co‐conspirators identified Austin in their plea agreements, statements to police, and testimony as maintaining control of the organization. The judge specifically determined this testimony to be credible. Further, Austin received a larger share of the drug profits than any other member of the organization. He used threats of violence against competitors and rivals in the drug‐trafficking business to defend the operation. He had decision‐making authority over the organization, determining the operation’s direction on strategy and marketing. In the face of such substantial evidence, Austin’s protests that Jeffrey Scott’s testimony is unreliable fall far short of showing plain error.
In the absence of some compelling evidence showing decisively that the aggravating role enhancement was wrong, this plain‐error challenge is particularly weak. Without an objection from Austin on the issue, the government had no reason to waste the court’s time building an even more ex‐ tensive record on the issue. A defendant cannot show plain error by merely pointing to possible gaps in evidence on an issue that was not disputed in the trial court.
Affirmed