                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 14-1641
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                                      BRYAN HILL,
                                 a/k/a “B”, a/k/a BASHIR

                                         Bryan Hill,
                                                 Appellant
                                     _______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (D.C. No. 10-cr-00620-07)
                       District Judge: Hon. Lawrence F. Stengel
                                   _______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    April 24, 2015

             Before: CHAGARES, JORDAN, and BARRY, Circuit Judges.

                                   (Filed: May 11, 2015)
                                     _______________

                                        OPINION
                                     _______________




       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.

       Bryan Hill appeals his conviction and sentence in the United States District Court

for the Eastern District of Pennsylvania based on his participation in a large-scale drug-

trafficking enterprise known as the “Harlem Boys” that operated in the Bartram Village

Housing Development (“Bartram Village”) in Philadelphia. On appeal, he raises three

grounds of alleged error. For the following reasons, we will affirm.

I.     Background

       The pertinent factual background surrounding the Harlem Boys drug-trafficking

operation is set forth more fully in the lead opinion in the case. See United States v.

Moten, No. 13-3801, Slip Op. at 2-5 (3d Cir. May 11, 2015). We provide here only the

facts relevant to Hill’s appeal.

       Stemming from his participation in the Harlem Boys enterprise, Hill was named

along with nineteen other defendants in an eighty-nine count superseding indictment.

More specifically, he was charged with conspiracy to participate in a racketeering

enterprise (count 1), in violation of 18 U.S.C. § 1962(d); conspiracy to distribute 280

grams of cocaine base (crack) and marijuana (count 2), in violation of 21 U.S.C. §§

841(b)(1)(A) and 846; possession with intent to distribute cocaine base (crack) (count 7),

in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); use of a communication facility in

furtherance of a drug crime (count 18), in violation of 21 U.S.C. § 843(b); and possession

of a firearm by a convicted felon (count 31), in violation of 18 U.S.C. § 922(g)(1). He

was convicted of all five counts and the District Court sentenced him to 240 months’



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imprisonment and five years’ supervised release and imposed various fines and special

assessments.

II.    Discussion1

       On appeal, Hill challenges the sufficiency of the evidence adduced at trial, argues

that the District Court incorrectly calculated his offense level, and contends that the Court

imposed an unreasonable sentence in light of the time he had already served.

       A.      Sufficiency of the Evidence2

       According to Hill, there was insufficient evidence to show that he was a part of the

Harlem Boys enterprise rather than merely a seller to – and occasional buyer from – the

enterprise. He argues that his conviction on counts 1 and 2 should therefore be vacated.

We disagree.

       Hill correctly cites to United States v. Gibbs for the proposition that a “simple

buyer-seller relationship, without any prior or contemporaneous understanding beyond

the sales agreement itself, is insufficient to establish that the buyer was a member of the

seller’s conspiracy.” 190 F.3d 188, 197 (3d Cir. 1999). That is not, however, the case

here. Rather, the government adduced substantial evidence that Hill was an integral

member of the Harlem Boys enterprise. For example, the evidence showed that he


       1
         The District Court had jurisdiction under 18 U.S.C. § 3231 and we have
jurisdiction pursuant to 28 U.S.C. § 1291.
       2
         “[T]he critical inquiry on review of the sufficiency of the evidence to support a
criminal conviction ... is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” United States v. Caraballo-Rodriguez, 726 F.3d
418, 424-25 (3d Cir. 2013) (en banc) (internal quotation marks omitted).
                                              3
obtained drugs for the Harlem Boys to sell on the streets of Bartram Village; he returned

a portion of his profits from those sales to one of the Harlem Boys; he was observed on

numerous occasions selling crack while standing next to – and in one instance physically

receiving objects from – the members of the Harlem Boys; and he was well-known as

one of the Harlem Boys’ “goons” – that is, someone who would “rob or shoot people, kill

people” on behalf of the enterprise. (App. at 6644.) The government also adduced

testimony that Hill participated in a carjacking along with members of the enterprise in

retaliation for an assault on a cousin of one of the Harlem Boys. Finally, Hill has

tattooed on his right forearm the letters “YHM,” an acronym for “Young Hit Men,”

which was an alternative name for the Harlem Boys. (App. at 1390.) See Moten, No. 13-

3801, Slip Op. at 1. Given those facts, a rational juror could certainly conclude that Hill

was part of the criminal enterprise.

       B.     Incorrect Offense Level3

       Hill next argues that the District Court incorrectly calculated his base offense level

under the Sentencing Guidelines. Again, he is mistaken.

       The District Court calculated Hill’s base offense level using the quantity of crack

the enterprise was distributing during the time period when Hill was part of the enterprise

and not incarcerated. The Court concluded that the entire weekly quantity of crack that

the Harlem Boys distributed was attributable to Hill – some 4.5 ounces – but only for the

weeks when he was participating in the enterprise – some 197 weeks. The District Court

       3
        We exercise plenary review over the District Court’s interpretation of the
Sentencing Guidelines and review its factual findings for clear error. United States v.
Smith, 751 F.3d 107, 118 (3d Cir. 2014).
                                             4
calculated that quantity to be more than 24 kilograms, which was the quantity used to

determine the offense level of 38.

       That conclusion depended upon the premise that Hill was not merely a street-level

dealer for the enterprise but rather was an active and substantial participant in its

operations and thus responsible for more of the crack than he was personally dealing. We

cannot see any error, let alone clear error, in that factual finding. See United States v.

Smith, 751 F.3d 107, 118 (3d Cir. 2014) (factual findings at sentencing are reviewed for

clear error). Based on that finding, the District Court could attribute to Hill the entire

quantity of drugs that it was reasonably foreseeable the enterprise would sell. United

States v. Collado, 975 F.2d 985, 992 (3d Cir. 1992) (“[W]hether a particular defendant

may be held accountable for amounts of drugs involved in transactions conducted by a

co-conspirator depends upon the degree of the defendant’s involvement in the conspiracy

and, of course, reasonable foreseeability with respect to the conduct of others within the

conspiracy.”).

       C.     Unreasonable Sentence4

       Finally, Hill argues that his sentence of 240 months’ incarceration was

substantively unreasonable because of the “irrational” sentencing disparity between crack

and powder cocaine, his lower degree of involvement in the enterprise, his previous

periods of incarceration for related offenses, more lenient sentences given to culpable



       4
        We review a District Court’s sentence for substantive reasonableness under an
abuse of discretion standard that takes into account the totality of the circumstances. Gall
v. United States, 552 U.S. 38, 51 (2007).
                                              5
cooperators, and various socioeconomic disadvantages that he faced as a child. (Opening

Br. at 48.) His arguments are unpersuasive.

       First, because Hill was sentenced after the enactment of the Fair Sentencing Act of

2010, which reduced the crack to powder ratio from 100:1 to 18:1, the District Court was

merely permitted – but not obligated – to vary downward based on the lower powder

Guidelines.5 Spears v. United States, 555 U.S. 261, 265-66 (2009). Any policy

disagreement Hill has with respect to the remaining sentencing disparity between crack

and powder cocaine must be directed to Congress. Second, the District Court based its

sentence on Hill’s role in the enterprise, which it found to be substantial and active, albeit

not one of leadership. (App. at 8930 (“[T]his is somebody who is deeply involved in the

regular, ongoing, dangerous criminal behavior which took place during the life of the




       5
          In his sentencing memorandum – but not at the hearing itself – Hill moved for a
discretionary downward variance based on the sentencing disparity between crack and
powder cocaine offenses. The District Court did not expressly rule on that request. In at
least one circuit, the failure to expressly address a downward variance request based on
the powder to crack disparity can be reversible error. See, e.g., United States v. Morris,
775 F.3d 882, 887 (7th Cir. 2015) (“Although it is true that the court granted [the
defendant] a below-guidelines sentence, it is impossible to discern from this record
whether the court credited [his] … argument[] [as to the crack-powder disparity] in
fashioning that sentence and so we must remand.”); United States v. Johnson, 643 F.3d
545, 549 (7th Cir. 2011) (“Johnson argues that the district court committed a procedural
error at resentencing by not expressly responding to his repeated requests for a 1:1 crack-
to-powder ratio. … We agree with Johnson that the district court erred.”). While we have
remanded cases decided prior to Spears on that basis, we have not done so after. Because
Hill does not argue that the District Court committed a procedural error, we only note that
the better course would have been to explicitly address Hill’s major arguments for
variance.


                                              6
conspiracy.”).) That factual finding was not clearly erroneous and the below-Guidelines

sentence the Court imposed based on that finding was not an abuse of discretion.

       Third, the District Court actually did consider Hill’s previous periods of

incarceration and granted a substantial downward variance – somewhere around five

years – based on the state sentences that Hill served for the predicate acts charged in the

RICO conspiracy. Fourth, the District Court also granted an additional downward

variance – somewhere around five years – based on the sentencing disparities between

Hill and the leaders of the enterprise who received lighter sentences because they pled

guilty. We cannot say it was an abuse of discretion for the Court not to grant a larger

downward variance. Finally, the District Court did consider the unfortunate

circumstances of Hill’s upbringing but ultimately chose not to grant an additional

downward variance on that basis. That was not an abuse of discretion.

III.   Conclusion

       For the forgoing reasons, we will affirm Hill’s conviction and sentence.




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