USA v. Byron Hicks

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 19-13736
Non-Argument Calendar
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D.C. Docket No. 3:18-cr-00031-TJC-PDB-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BYRON HICKS,

Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(August 6, 2020)
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Before BRANCH, GRANT, and LUCK, Circuit Judges.

PER CURIAM:
Byron Hicks appeals his 78-month sentence after a jury found him guilty of
distributing a controlled substance. He argues that his above-guideline sentence
was based upon acquitted conduct in violation of the Fifth and Sixth Amendments.
After a careful review of the record, we disagree and affirm the sentence of the
district court.
Hicks was charged with five counts of distribution of a controlled substance
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Count One also alleged that an
individual, T.A., died because of the controlled substances Hicks distributed.
Hicks proceeded to trial and a jury found him guilty of all five counts of
distribution of a controlled substance. However, the jury acquitted him of the
charge in Count One that T.A. died because of the controlled substances
distributed by Hicks.
The probation office prepared a Presentence Investigation (PSI) report and
determined that Hicks’s guidelines range was 10 to 16 months imprisonment. The
government filed a motion requesting an upward departure or variance from the
guidelines to fifteen years. At sentencing, the government argued that the
guidelines range was not an appropriate sentence for Hicks because the
preponderance of the evidence showed that he was responsible for the victim’s
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death. The government also noted the opioids dealt by Hicks were extremely
potent, and Hicks displayed recklessness towards his buyers by resuming sales
within a week of the victim’s death. Hicks argued for a guidelines sentence, which
effectively would have been time served.
The court decided to postpone sentencing until it had an opportunity to
think longer about the appropriate sentence. Upon reconvening, the court noted
the difficulty when fashioning an appropriate sentence where the parties have such
a wide gap in their recommendations and said he used the postponement to “give
the matter some thought.” The court stated that “the government, in effect, seeks
me to hold Mr. Hicks accountable for” the victim’s death and that the court “under
established law . . . does have the authority to consider what’s called acquitted
conduct as part of a sentencing rationale.” The court, however, expressed that it
was “reluctant to do so” here because he thought the “jury’s not guilty verdict as to
this aspect of the case . . . deserves to be respected.” The court then made the
following statement: “Having said that, I -- I am not going to accept what I believe
to be the government’s invitation to, in effect, make my own conclusion and base
my sentence on the idea that [the victim’s] death was as a result of the drugs sold
to him by the -- by the defendant.” The court sentenced Hicks to a 78-month term
of imprisonment, followed by three years supervised release, citing the need to
deter Hicks from future crimes and account for the fact that Hicks continued to
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deal drugs even after he was aware of the fact that his drugs may have killed
someone.
Despite the court’s clear statement that it was rejecting the “government’s
invitation” to sentence Hicks based on acquitted conduct, Hicks argues that this is
precisely what the court did.
1
In essence, Hicks’s argument boils down to this: the
district court’s rationale are insufficient to justify the upward variance, therefore
the district court must have surreptitiously, relied on acquitted conduct. We
decline Hicks’s invitation to substitute mere speculation for the stated reasons of a
district court when pronouncing sentence.
AFFIRMED.

1
Notably, Hicks’s briefs do not even mention, let alone rebut, the district court’s clear
statement that it was not considering acquitted conduct.
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