Dewanzel Singleton pleaded
guilty to conspiracy to possess with intent to distribute
over five kilograms of cocaine, in violation of 21 U.S.C.
§ 841(a)(1), and 21 U.S.C. § 846. The district judge sentenced
him to ninety-seven months in prison. Singleton
appeals the district court’s denial of his motion to withdraw
his guilty plea, his motion to dismiss the indictment
against him as insufficient, and the judge’s refusal
to issue a below-Guidelines sentence. We affirm.
I. BACKGROUND
On September 12, 2007, the government indicted Singleton
for conspiring to possess with intent to distribute
more than five kilograms of cocaine. On April 14, 2008,
he pleaded guilty as part of an agreement with the government.
Three months later, Singleton moved to withdraw
his plea and to dismiss the indictment against him
as insufficient. He argued that defense counsel provided
ineffective assistance at a hearing to suppress evidence
that was seized by police during a June 2003 traffic stop.
Singleton accused his counsel of failing to view a videotape
that showed an officer issuing a warning ticket to
the car’s driver, and then calling a canine unit to sniff
the outside of the vehicle. The dog alerted that the car
contained contraband. According to Singleton, had
counsel viewed the tape, she would have been prepared
to successfully challenge the admission of the evidence
obtained at the stop.
The record shows that during the two-day suppression
hearing, defense counsel presented witnesses and made
a number of arguments why the evidence obtained from
the stop should be suppressed. She suggested that
the officer’s proffered reason for stopping Singleton—
that his vehicle was speeding—was pretextual; that the
duration of the stop was unreasonable for purposes of a
warning ticket; and that officers somehow induced the
canine unit to alert on Singleton’s car. The judge denied
the motion to suppress and Singleton pleaded guilty on
April 14, 2008.
Following his guilty plea, Singleton retained new
counsel who moved to dismiss the indictment as insufficient
and to withdraw the guilty plea. The judge denied
both motions.
At the sentencing hearing, the judge noted that Singleton
had no prior criminal convictions, had been a model
member of his community while awaiting trial, and took
responsibility for his conduct. The record also indicates
that the judge considered the factors enumerated in
21 U.S.C. § 3553, including the dangerous quantity of
drugs Singleton introduced into his community, the
need for deterrence, Singleton’s request for alcohol treatment,
and the protection of the community. The judge
sentenced Singleton to ninety-seven months in prison, a
sentence at the low end of the recommended Guideline
range. Singleton timely appealed.
II. DISCUSSION
A. Sufficiency of Indictment
Singleton first challenges the district court’s denial of
his motion to dismiss the indictment. An indictment is
sufficient if it serves three main functions. It must state
the elements of the crime charged, adequately inform
the defendant of the nature of the charges, and allow
the defendant to plead the judgment as a bar to future
prosecutions. See Fed. R. Crim. P. 7(c)(1); United States
v. Torres, 191 F.3d 799, 805 (7th Cir. 1999). This Court
has consistently held that an indictment under 21 U.S.C.
§ 841(a) and § 846 fulfills these functions if it sets forth
the existence of a drug conspiracy, the operative time of
the conspiracy, and the statute violated. United States v.
Cox, 536 F.3d 723, 727-28 (7th Cir. 2008) (citing United
States v. Dempsey, 806 F.2d 766, 769 (7th Cir. 1986)); United
States v. Canino, 949 F.3d 928, 949 (7th Cir. 1991). We
review challenges to the sufficiency of an indictment
de novo. United States v. Smith, 230 F.3d 300, 305 (7th Cir.
2000).
The indictment here contains each of the required
elements and was sufficient to notify Singleton of what
the government intended to prove. See Canino, 949 F.3d
at 949. Though it does not allege an overt act or specific
drug transaction, our cases do not require such specificity.
See United States v. Brown, 934 F.2d 886, 889 (7th Cir.
1991). The indictment accuses Singleton of being involved
in a drug conspiracy and sets forth the time frame
involved—1995 through March 2003. It also identifies the
particular statute that Singleton conspired to violate—
§ 841(a). Thus, the indictment in this case fulfills each
of the required functions and sufficiently notified Singleton
of the charges against him.
B. Withdrawal of Guilty Plea
Singleton next argues that the district court erred in
denying his motion to withdraw the guilty plea. A
court may permit a defendant to withdraw a guilty plea
if he has a “fair and just reason” for doing so, but such
permission is not mandatory. United States v. Wallace, 276
F.3d 360, 366 (7th Cir. 2002). A fair and just reason
exists when the defendant shows that his plea was not
entered into knowingly and voluntarily. Id. We review
for clear error a district court’s factual findings about
the existence of a fair and just reason. Id. But we review
the ultimate decision to grant or deny withdrawal for
abuse of discretion. United States v. Carroll, 412 F.3d
787, 792 (7th Cir. 2005) (internal citation omitted).
Singleton fails to point to any clear error in the
district court’s fact finding, or demonstrate how the
court abused its discretion in ultimately denying his
motion to withdraw the guilty plea. His primary argument
is that defense counsel provided constitutionally
defective assistance by failing to view a video of the
traffic stop, leaving her unprepared to argue the suppression
motion. However, the district judge determined,
based on counsel’s affidavit, that she had viewed
the tape. At the hearing, counsel presented several witnesses
on Singleton’s behalf and cross-examined the
government’s witnesses. She made many of the same
arguments that Singleton now claims were not made
and led to his unknowing guilty plea, including that the
police somehow gave the dog a signal that caused it to
falsely alert on Singleton’s car door. While Singleton
also argues that defense counsel generally conducted
inadequate pretrial investigation and “failed to inform
[him] of options other than pleading guilty,” the only
support offered is the assertion, appropriately rejected
by the district judge, that counsel failed to view footage of
the traffic stop. Singleton points to nothing concrete in
the videotape that counsel did not raise at the hearing.
Finally, during the plea colloquy Singleton said he
agreed with the factual basis for his plea and was
satisfied with counsel’s efforts on his behalf. Singleton
received effective assistance during the suppression
hearing and guilty plea, and the district court did not
abuse its discretion in rejecting his motion to withdraw
the plea.
C. Reasonableness of Sentence
Singleton last argues that the within-Guidelines sentence
the district court imposed was unreasonable. Sentences
properly within the Guidelines are entitled to a
rebuttable presumption of reasonableness on appeal.
United States v. Tahzib, 513 F.3d 692, 694 (7th Cir. 2008);
United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).
This presumption is overcome if a defendant shows
that the district court failed to give proper consideration
to mitigation factors under § 3553. Tahzib, 513 F.3d at 695.
In this case, the district court gave meaningful consideration
to the § 3553 factors and issued a reasonable
sentence. Singleton’s offense warranted a range of 97 to
121 months. The court considered the applicable Guideline
range, the dangerous quantity of drugs Singleton
introduced into his community, and the need to provide
him with treatment while in prison. Even though the
judge decided against a downward departure, he
imposed a sentence at the very bottom of the Guideline
range. Singleton’s position essentially boils down to a
request that we abandon our well-established rule that
properly calculated Guideline-based sentences are
entitled to a rebuttable presumption of reasonableness.
See Mykytiuk, 415 F.3d at 608. We decline to do so and
find that the sentence imposed was reasonable.
III. CONCLUSION
The indictment in this case was sufficient, the district
court did not err in denying Singleton’s motion to withdraw
his guilty plea, and the sentence imposed was
reasonable. We AFFIRM.
12-2-09
Chicago Criminal Lawyer - Robert J Callahan
Tuesday, December 22, 2009
U.S. vs. Burnside
While on parole for a cocaine
distribution conviction and following months of police
investigation, defendant Brian Burnside was arrested
for possession of a controlled substance. In a search
incident to his arrest, police found large amounts of
crack cocaine on Burnside’s person. Police then searched
Burnside’s residence where they recovered more crack
cocaine, cocaine, a handgun, and more than $30,000 in
cash. A federal grand jury charged Burnside in a onecount
indictment with possession of more than fifty
grams of crack cocaine with the intent to distribute. See
21 U.S.C. §§ 841(a)(1), (b)(1)(A). Burnside filed a motion
to suppress evidence, arguing that the officers lacked
probable cause for his arrest. He also argued that his
unlawful arrest tainted both the evidence found incident
to that arrest and the search warrant later obtained. The
district court denied the motion. Burnside eventually
pled guilty to the charge and was later sentenced.
Burnside argues on appeal that the district court erroneously
denied the motion to suppress. He also seeks to
withdraw his guilty plea, arguing that the district
court judge inappropriately participated in the plea
colloquy. We find no merit to Burnside’s claims, and
we affirm.
I. BACKGROUND
Brian Burnside was a crack cocaine dealer. In
July 2007, Peoria Police Officer Chad Batterham
received information from two confidential informants
pertaining to Burnside’s drug activities. Both informants
identified Burnside as a high-volume crack cocaine
dealer. The first informant said that Burnside was a
cocaine dealer in the Peoria area and that he was
selling several kilograms of cocaine per month. The
informant also provided a detailed description of
Burnside’s residence. The second informant knew
Burnside by his street-name, Shorty Bank Roll. Because
of Officer Batterham’s personal knowledge and his
police experience in Peoria, as well as a detailed
physical description provided by the informant, he was
confident Shorty Bank Roll was in fact Burnside. To
further refine his identification, Officer Batterham asked
the informant to select a photograph from a photo array
of six men with similar characteristics. The informant
chose the photograph of Burnside and identified him
as Shorty Bank Roll.
Officer Batterham located the residence described by
the two informants. He performed a check on the white
Cadillac parked in the driveway. The car was registered
to Terry Burnside, Brian Burnside’s brother. In a records
check on the residence, Officer Batterham discovered a
police report of a prior burglary in which Terry
Burnside stated that the house belonged to his brother,
Brian. Finally, Officer Batterham ran a criminal history
check on Burnside, which revealed that Burnside was
currently on parole from a Minnesota conviction for
distributing cocaine, and that he had five prior felony
drug convictions.
In September, 2007, the Peoria Police Department’s
Vice and Narcotics Unit initiated surveillance of
Burnside. Officers observed and followed Burnside as
he left his home. Sergeant Bainter and Officer Miller
conducted their observation from two separate
unmarked police vehicles. Both officers saw a woman,
DeEva Hallam, approach Burnside’s vehicle, lean in for
approximately thirty to forty seconds, and leave
carrying a brown plastic grocery bag.
After Hallam left Burnside’s vehicle, Officer Miller and
Officer Manion1 saw Hallam throw the bag in a nearby
dumpster. Officer Miller then stopped Hallam and recovered
the bag. Hallam explained that she received the
bag from a friend who asked her to throw it away. Officer
Miller smelled a cocaine hydrochloride odor on the
bag, which also contained a kilogram wrapper, purple
rubber gloves, wet paper towels, and soda cans.2 Additionally,
he discovered a rock of cocaine clutched in Hallam’s
hand.
Officer Miller informed Officer Batterham of these
developments, who, in turn, alerted the team of officers
following Burnside. When Officers Allenbaugh and
Armentrout observed Burnside fail to signal a turn, they
activated the lights on their police vehicle and attempted
to pull Burnside over; however, Burnside began driving
erratically, slowing down and then speeding up. It also
appeared to the officers that Burnside was trying to
call somebody on his cell phone. Eventually, the officers
boxed in Burnside, who appeared to attempt to get out
of the vehicle while it was still moving.
Believing Burnside was going to flee, officers pulled
Burnside out of the car, forced him to the ground,
and placed him in handcuffs. Burnside was arrested for
possession of a controlled substance and for driving
without a valid Illinois driver’s license. While searching
Burnside, Officer Allenbaugh observed an unusual
“bulge” in Burnside’s pants, which Burnside claimed
was a hernia. Allenbaugh removed the object and found
a large plastic bag containing several individual bags
of crack cocaine.
Fearing Burnside had by cell phone instructed somebody
at his residence to destroy any further evidence, officers
returned to the house. After conducting a protective
sweep during which no one was found, the officers
sought and received a search warrant from a magistrate
judge. The officers relied on all of the evidence received
up to and through the arrest of Burnside as probable
cause justification for the warrant.
Subsequently, the officers searched the house, seizing
one half of a kilogram of crack cocaine, one full kilogram
of cocaine, a handgun, and more than $30,000 in cash.
Burnside now argues that neither of the officers had a
vantage point from which they could determine if
Hallam had been carrying the bag prior to approaching
Burnside’s vehicle. Burnside further asserts that both he
and Hallam told police that she had been carrying
two cartons of cigarettes prior to approaching the
vehicle, and that the two cartons were later found in
Burnside’s vehicle.
Burnside also argues that the police did not have probable
cause to conduct a Terry stop and frisk, or, in the
alternative, that they exceeded the permissible limits of
the Terry stop by manipulating and removing the bulge
in his pants.
Finally, Burnside argues that because officers lacked
probable cause to conduct the Terry stop and frisk, any
evidence found in the search of the residence thereafter
was “fruit of the poisonous tree.” He also argues that the
officers’ failure to include the protective search in the
warrant application prohibits them from relying on the
“good faith” exception to the exclusionary rule.
II. ANALYSIS
Burnside raises two issues on appeal. First, he argues that
the district court erred when it denied his motion to
suppress. Second, he argues that the district court’s
participation in the plea colloquy constitutes plain error.
We discuss each argument in turn.
A. The Motion to Suppress
When reviewing the district court’s denial of a motion
to suppress, we review factual findings for clear error
and legal questions de novo. United States v. Mosby, 541
F.3d 764, 767 (7th Cir. 2008) (citing United States v.
Groves, 530 F.3d 506, 509 (7th Cir. 2008); United States v.
McIntire, 516 F.3d 576, 578-79 (7th Cir. 2008)). Mixed
questions of law and fact are reviewed de novo. United
States v. Fiasche, 520 F.3d 694, 697 (7th Cir. 2008). We
accord special deference to the district court’s credibility
determinations because the resolution of a motion to
suppress is almost always a fact-specific inquiry, and it
is the district court which heard the testimony and observed
the witnesses at the suppression hearing. United
States v. Hendrix, 509 F.3d 362, 373 (7th Cir. 2007). A factual
finding is clearly erroneous only if, after considering all
the evidence, we cannot avoid or ignore a “definite and
firm conviction that a mistake has been made.” United
States v. Marshall, 157 F.3d 477, 480-81 (7th Cir. 1998)
(internal quotation marks omitted). We find no credible
reason here to disturb the district court’s denial of the
motion to suppress. We arrive at that determination
after considering two substantive issues: (1) whether
officers had probable cause to arrest Burnside, and properly
searched Burnside incident to that arrest; and
(2) whether officers had sufficient probable cause for the
search warrant.
1. The Arrest and Search
The district court found that the officers had probable
cause to arrest Burnside for possession of a controlled
substance. Accordingly, it follows, and the court held,
that the subsequent seizure of crack cocaine from
Burnside’s pants was lawful.
Burnside argues (weakly, we think, given the facts of
this case) that the officers lacked probable cause to arrest
him. Burnside concedes, as he must, that the police had
reasonable suspicion to conduct a Terry stop due to his
failure to signal when turning and because they
believed he was driving with an invalid driver’s license.
See Terry v. Ohio, 392 U.S. 1 (1968). But Burnside claims
that any evidence collected by the police prior to the
stop was insufficient to arrest him for possession of a
controlled substance. He also argues that because he was
unlawfully arrested, the evidence gathered from him
during the pat-down subsequent to his arrest must be
suppressed.
“The Fourth Amendment prohibits unreasonable
searches or seizures, and courts exclude evidence
obtained through an unreasonable search or seizure.”
Mosby, 541 F.3d at 767. But see Guzman v. City of Chicago,
565 F.3d 393, 398 (7th Cir. 2009) (noting that “[e]xclusion
is not a necessary consequence of a Fourth Amendment
violation, and the benefits of exclusion must outweigh
the costs.” (citing Herring v. United States, 129 S.Ct. 695,
700 (2009))). However, police may arrest an individual if
they have probable cause to believe that the individual
engaged in criminal conduct, Mosby, 541 F.3d at 767, as an
arrest supported by probable cause is reasonable by its
very nature, see Atwater v. City of Lago Vista, 532 U.S. 318,
354 (2001) (“If an officer has probable cause to believe
that an individual has committed even a very minor
criminal offense in his presence, he may, without
violating the Fourth Amendment, arrest the offender.”).
When police conduct a warrantless search, the court
of appeals makes an independent determination as to
whether the search was supported by probable cause or
reasonable suspicion. McIntire, 516 F.3d at 577 (citing
Ornelas v. United States, 517 U.S. 690, 697 (1996)). The
officers’ subjective motivations are irrelevant as long as
they have probable cause to justify the search and seizure.
See Whren v. United States, 517 U.S. 806, 812-13 (1996).
“[D]etermining whether probable cause exists involves
a ‘practical, common-sense decision whether, given all
the circumstances set forth . . . there is a fair probability
that contraband or evidence of a crime will be found in a
particular place.’ ” United States v. Ellis, 499 F.3d 686,
689 (7th Cir. 2007) (quoting United States v. Hines, 449
F.3d 808, 814 (7th Cir. 2006) (alterations in original)).
“ ‘Probable cause is a fluid concept based on common-sense
interpretations of reasonable police officers as to the
totality of the circumstances’ known at the time the
event occurred.” Id. at 689 (quoting United States v. Breit,
429 F.3d 725, 728 (7th Cir. 2005)). The events leading up
to an arrest are viewed from the standpoint of an objectively
reasonable police officer. Ornelas, 517 U.S. at 696.
We think the police officers in this case were armed
with more than a sufficient amount of information at the
time of Burnside’s arrest to constitute probable cause.
First, the officers were aware of Burnside’s five prior
felony convictions for the manufacture or delivery of a
controlled substance. Second, the officers knew that
Burnside was currently on parole from Minnesota for a
drug-related offense. Third, Officer Batterham received
reliable information from two different informants who
claimed that Burnside was a large-scale drug dealer;
furthermore, the information supplied by one of the
informants buttressed and was consistent with Officer
Batterham’s knowledge of Burnside’s alias, Shorty Bank
Roll. Fourth, officers observed Burnside participating in
conduct consistent with drug trafficking. Fifth, after
Burnside failed to use a turn signal and officers initiated
the traffic stop, Burnside drove erratically, made a
hurried call on his cell phone, and appeared to make
a flight attempt.
Burnside argues that the officers did not have a clear
vantage point from which to witness the alleged drug
transaction between Burnside and Hallam; therefore, he
argues that the officers could not conclusively determine
whether Hallam approached Burnside’s vehicle with the
brown grocery bag in her hands. Burnside asserts that he
did not give Hallam the bag, nor the rock of crack cocaine
later found in her fist, when she leaned into his vehicle.
Burnside’s arguments miss the mark. As the district
court noted, the officers did not need to prove an actual
drug transaction took place. For an arrest, officers only
need to believe objectively that the conduct observed
was consistent with drug trafficking. See United States v.
Brown, 366 F.3d 456, 458 (7th Cir. 2004). The officers,
employing even a modicum of common sense, had probable
cause to conclude that something illegal occurred.
Moreover, Officers Bainter and Miller were specially
trained in narcotics enforcement techniques. In forming
a reasonable belief that a drug transaction occurred,
they were permitted to view the events through the
prism of their training and experience. United States v.
Funches, 327 F.3d 582, 586 (7th Cir. 2003). Even without
the suspicious Hallam transaction, the police had
sufficient probable cause to arrest Burnside.
Burnside further argues that, even if officers had reasonable
suspicion to perform a Terry stop, they
impermissibly exceeded those limits when subsequently
searching him. We need not address this argument,
however, because the officers had probable cause to
arrest Burnside. It follows, a fortiori, that the officers’
seizure of crack cocaine from Burnside incident to his
arrest was lawful. See United States v. Tejada, 524 F.3d 809,
811 (7th Cir. 2008) (citing Chimel v. California, 395 U.S. 752,
763 (1969)).
Based on the totality of the circumstances the police
had an objectively reasonable basis to believe a crime
had been or was being committed. There was sufficient
probable case to arrest Burnside and to perform the
search incident to that arrest.
2. The Search Warrant
Burnside makes two arguments regarding the validity
of the search warrant. First, he argues that because the
officers used information recovered from his arrest in
the warrant application, the warrant was tainted by such
information. Therefore, he asserts, any evidence later
discovered in his home was fruit of the poisonous tree.
Second, assuming he is correct, Burnside argues that the
police cannot rely on the good faith exception to the
exclusionary rule because the police failed to notify the
judge of the protective sweep performed prior to
applying for the warrant.
When we review a district judge’s decision as to
whether a previously issued warrant was supported by
probable cause, our review is de novo. See McIntire, 516
F.3d at 578. However, we give “great deference” to the
issuing judge’s determination of the existence of probable
cause. Id.; cf. id. at 577 (“A magistrate’s ‘determination
of probable cause should be paid great deference by
reviewing courts.’ ”) (quoting Illinois v. Gates, 462 U.S. 213,
236 (1983)).
We will affirm a court’s finding of probable cause
unless the supporting affidavit, in light of the totality
of the circumstances, “fails to allege specific facts and
circumstances that reasonably lead to the belief that the
items sought in the search warrant are likely to be
located in the place to be searched.” United States v. Hobbs,
509 F.3d 353, 361 (7th Cir. 2007) (citing Illinois v. Gates, 462
U.S. 213, 238 (1983); United States v. Wiley, 475 F.3d 908,
914-15 (7th Cir. 2007)). In determining whether probable
cause exists, officers may draw reasonable inferences
about the likely storage location of evidence; these inferences
are based upon the type of offense and the nature
of the likely evidence. Id. (citing Ellis, 499 F.3d at 690).
With regard to drug dealers, evidence is likely to be
found at the dealers’ residence. Id. (citing Ellis, 499 F.3d
at 691).
Burnside cannot advance his subsequent search
warrant arguments, however, because the failure of his
unlawful arrest premise precludes any further examination.
Because we find that the police had probable
cause to arrest Burnside, the officers were permitted to
include in the warrant application the evidence
they discovered during the search incident to his arrest.
Considering the range of evidence, the police provided
sufficient probable cause, both from their investigation
and from the search incident to Burnside’s
arrest, for the magistrate judge to issue a valid warrant
to search Burnside’s home. Such finding renders the
protective sweep and attendant good faith argument
moot because it was never used by police as justification
for the warrant.
We hold that the issuing state court judge had a substantial
and legally sufficient basis for concluding that
probable cause existed to issue the warrant, and that the
district court’s denial of the motion to suppress
evidence recovered from the search was proper.
B. The Plea Colloquy
Finally, Burnside argues that the district court participated
in plea negotiations during the change-of-plea
hearing in violation of Federal Rule of Criminal Procedure
11(c)(1). Thus, he asserts his guilty plea is tainted, and
moves to withdraw it. We disagree.
Because Burnside did not seek to withdraw his guilty
plea prior to reaching this court, we review Burnside’s
claim of a Rule 11 violation for plain error. United States v.
Vonn, 535 U.S. 55, 59 (2002). To vacate such a plea under
the plain error standard, we must find that (1) an error
has occurred; (2) it was “plain”; (3) it affected a substantial
right of the defendant; and (4) it seriously
affected the fairness, integrity, or public reputation of the
judicial proceedings. Johnson v. United States, 520 U.S.
461, 466-67 (1997).
“Rule 11(c)(1) categorically prohibits the court from
participating in plea negotiations between the government
and the defendant’s attorney.”3 United States v.
Linder, 530 F.3d 556, 562 (7th Cir. 2008); see also
United States v. Kraus, 137 F.3d 447, 452 (7th Cir. 1998).
“Excluding the judge from the plea discussions serves
three purposes: it minimizes the risk that the defendant
will be judicially coerced into pleading guilty, it preserves
the impartiality of the court, and it avoids any appearance
of impropriety.” Kraus, 137 F.3d at 452; see In re
United States, 572 F.3d 301, 312 (7th Cir. 2009) (citing
United States v. O’Neill, 437 F.3d 654, 660 (7th Cir. 2006)
(Posner, J., concurring) (commenting that judges in our
adversarial system do not double as prosecutors)). The
judge who advocates for a particular plea bargain may
resent the government or the defendant for disagreeing.
See In re United States, 572 F.3d at 311.
But not all judicial observations expressed with respect
to plea agreements violate the rule. In fact, the district
judge should often take an active role. Linder, 530 F.3d at
562. For example, “once the parties have themselves
negotiated a plea agreement and presented that agreement
to the court for approval, it is not only permitted
but expected that the court will take an active role in
evaluating the agreement.” Kraus, 137 F.3d at 452; see
Fed. R. Crim. P. 11(e)(1) advisory committee note
(1974 amend.) (“It is contemplated that the judge may
participate in such discussions as may occur when the
plea agreement is disclosed in open court.”). This holds
true even if the agreement is informal and not binding.
See United States v. Carver, 160 F.3d 1266, 1269 (10th Cir.
1998).
The district court did not violate Rule 11(c)(1) because
there was no plea negotiation or agreement between
Burnside and the government. It is impossible for the
district court to have participated in plea negotiations
that never happened. The district court judge said, “I
think the record is clear that there is no cooperation
agreement between the defendant and the government
and according to the government [there] never has
been one and so that’s as the situation stands.” (Tr. at 27.)4
The record further reveals that the government denied
Burnside any hope for leniency by declining to file a
substantial assistance motion,5 noting that Burnside
repeatedly refused to cooperate. Similarly, the judge
made it abundantly clear that the court could not force
the government to negotiate with Burnside over the
question of whether the government might file a
motion for substantial assistance on his behalf. The
government stated in open court that it was prepared and
willing to go to trial and would not make such a motion.
Although Burnside expressed his desire for the government
to file a substantial assistance motion, he also
acknowledged that the government did not at any time
induce him to plead guilty in order to receive it. Burnside,
with five prior felony drug convictions, is no stranger
to criminal proceedings; nevertheless, he may have believed
that, by offering up his guilty plea, the government
might feel obligated to reciprocate with a substantial
assistance motion. Such an unsubstantiated
belief does not constitute the existence of a plea negotiation
or agreement. Moreover, given the incontrovertible
fact that a plea agreement with the government did not
exist, the district court provided Burnside with a recess
during which he could reconsider his plea with his
family and his lawyer. We do not see any evidence in
the record that the district court inappropriately participated
in a plea negotiation in violation of Rule 11.
But Burnside also argues that Rule 11(c)(1) can be
violated when there is in fact no plea agreement,7 and he
urges us to find that a Rule 11 violation occurs whenever
a judge participates in a plea discussion. Specifically,
he argues that the district court violated Rule 11(c)(1)—
regardless of the court’s motives and intentions—because
the district court judge addressed Burnside and his
counsel regarding the consequences of his plea prior to
Burnside entering a plea of guilty.
But Rule 11(c)(1) cannot be read in a vacuum. A principal
purpose of Rule 11(c) is to prescribe the responsibility
of the court to ensure that a defendant who pleads
guilty has made an informed plea. Fed. R. Crim. P. 11
advisory committee note (1974 amend.). Indeed, the
district court judge has a duty to make such inquiries
under Rule 11(c)(1) and other provisions of Rule 11. United
States v. Frank, 36 F.3d 898, 901-02 (9th Cir. 1994); see also
Fed. R. Crim. P. 11(b), (c). For example, the judge must
“address the defendant personally” before accepting a
guilty plea to ascertain the defendant’s understanding
of the charges and penalties and to ensure that the plea
is voluntary. Fed. R. Crim. P. 11(b), (c); see McCarthy v.
United States, 394 U.S. 459, 465-66 (1969). And, before the
court enters judgment on a guilty plea, the judge must
inquire and be fully satisfied that there is a factual basis
for the plea. Fed. R. Crim. P. 11(b). Substantially all of
the required colloquy occurs prior to the defendant
actually stating that he pleads guilty. Frank, 36 F.3d at 902.
Finally, Rule 11 is not intended to “ ‘establish a series of
traps for imperfectly articulated oral remarks.’ ” United
States v. Cano-Varela, 497 F.3d 1122, 1133 (10th Cir. 2007)
(quoting Frank, 36 F.3d at 903).
Burnside ignores the fact that a principal purpose of the
categorical bar against judicial participation in the plea
bargaining process is to protect the parties against
implicit or explicit pressure to settle criminal cases on
terms favored by the judge. Id. Here, the district court
was neither promoting a guilty plea nor a trial. The
record clearly reflects the fact that the judge informed
Burnside that without a substantial assistance motion
from the government, he would be sentenced to the
mandatory minimum of life imprisonment. Burnside
acknowledged that he heard and understood the judge’s
statements. The court further communicated the clear
expectation that the government would not make a substantial
assistance motion, and Burnside acknowledged
that fact as well. The court never took a position with
respect to Burnside’s likelihood of success at trial, with
or without the evidence Burnside sought to suppress.
Finally, the court went on to inform Burnside that, if
he pled guilty, he would be giving up his right to go to
trial. It is patently obvious to us that the district court
did not attempt to persuade or coerce Burnside into a
plea of guilty.
Burnside advances the after-the-fact argument that,
because there was no benefit to him from a change of
plea, the judge’s statements must have induced
Burnside to plead guilty.8 As previously stated, there is
no evidence of any such coercion. Rather, the record
reveals only the district court’s carefully articulated,
informational dialogue with Burnside concerning the
various options available to him, along with possible
consequences of each.
Finally, Burnside seemingly asserts that, because he
changed his mind several times during the colloquy,
concluding with his plea of guilty, there is something of a
de facto Rule 11(c)(1) violation. This argument is without
merit. “There is nothing inherently coercive about requiring
a defendant to make a decision—either plead
guilty or go to trial—so refusing to give a defendant
more time to mull his option simply does not fall within
the purview of the rule.” Cano-Varela, 497 F.3d at 1133
(internal quotation marks omitted). Here, the district
court provided a recess for Burnside to consider the
consequences of pleading guilty. Later, when Burnside
again claimed he was confused, the court offered a
second recess and began to reschedule the hearing for the
next day. Burnside then changed his mind again. Later,
when Burnside changed his mind yet another time, the
court advised, “Now, make sure this is what you want to
do now because I have been very patient for the past
30 minutes.” (Tr. 31.)
We find that the district court judge did not inappropriately
influence Burnside’s decision and that no violation
of Rule 11(c)(1) occurred. Rather, the judge’s comments
were simply an attempt to resolve the inconsistent
positions being taken by Burnside. Throughout
the colloquy, the district court patiently limited its comments
to relevant information of which Burnside should
have been made aware and considered when making
his choice.
III. CONCLUSION
Burnside presented no evidence that police officers
lacked probable cause for his arrest and the subsequent
search of his home. We therefore find that the district
court correctly denied the motion to suppress evidence.
Likewise, the district court did not violate Rule 11(c)(1)
during the plea colloquy. Accordingly, we AFFIRM.
12-4-09
Chicago Criminal Lawyer - Robert J Callahan
distribution conviction and following months of police
investigation, defendant Brian Burnside was arrested
for possession of a controlled substance. In a search
incident to his arrest, police found large amounts of
crack cocaine on Burnside’s person. Police then searched
Burnside’s residence where they recovered more crack
cocaine, cocaine, a handgun, and more than $30,000 in
cash. A federal grand jury charged Burnside in a onecount
indictment with possession of more than fifty
grams of crack cocaine with the intent to distribute. See
21 U.S.C. §§ 841(a)(1), (b)(1)(A). Burnside filed a motion
to suppress evidence, arguing that the officers lacked
probable cause for his arrest. He also argued that his
unlawful arrest tainted both the evidence found incident
to that arrest and the search warrant later obtained. The
district court denied the motion. Burnside eventually
pled guilty to the charge and was later sentenced.
Burnside argues on appeal that the district court erroneously
denied the motion to suppress. He also seeks to
withdraw his guilty plea, arguing that the district
court judge inappropriately participated in the plea
colloquy. We find no merit to Burnside’s claims, and
we affirm.
I. BACKGROUND
Brian Burnside was a crack cocaine dealer. In
July 2007, Peoria Police Officer Chad Batterham
received information from two confidential informants
pertaining to Burnside’s drug activities. Both informants
identified Burnside as a high-volume crack cocaine
dealer. The first informant said that Burnside was a
cocaine dealer in the Peoria area and that he was
selling several kilograms of cocaine per month. The
informant also provided a detailed description of
Burnside’s residence. The second informant knew
Burnside by his street-name, Shorty Bank Roll. Because
of Officer Batterham’s personal knowledge and his
police experience in Peoria, as well as a detailed
physical description provided by the informant, he was
confident Shorty Bank Roll was in fact Burnside. To
further refine his identification, Officer Batterham asked
the informant to select a photograph from a photo array
of six men with similar characteristics. The informant
chose the photograph of Burnside and identified him
as Shorty Bank Roll.
Officer Batterham located the residence described by
the two informants. He performed a check on the white
Cadillac parked in the driveway. The car was registered
to Terry Burnside, Brian Burnside’s brother. In a records
check on the residence, Officer Batterham discovered a
police report of a prior burglary in which Terry
Burnside stated that the house belonged to his brother,
Brian. Finally, Officer Batterham ran a criminal history
check on Burnside, which revealed that Burnside was
currently on parole from a Minnesota conviction for
distributing cocaine, and that he had five prior felony
drug convictions.
In September, 2007, the Peoria Police Department’s
Vice and Narcotics Unit initiated surveillance of
Burnside. Officers observed and followed Burnside as
he left his home. Sergeant Bainter and Officer Miller
conducted their observation from two separate
unmarked police vehicles. Both officers saw a woman,
DeEva Hallam, approach Burnside’s vehicle, lean in for
approximately thirty to forty seconds, and leave
carrying a brown plastic grocery bag.
After Hallam left Burnside’s vehicle, Officer Miller and
Officer Manion1 saw Hallam throw the bag in a nearby
dumpster. Officer Miller then stopped Hallam and recovered
the bag. Hallam explained that she received the
bag from a friend who asked her to throw it away. Officer
Miller smelled a cocaine hydrochloride odor on the
bag, which also contained a kilogram wrapper, purple
rubber gloves, wet paper towels, and soda cans.2 Additionally,
he discovered a rock of cocaine clutched in Hallam’s
hand.
Officer Miller informed Officer Batterham of these
developments, who, in turn, alerted the team of officers
following Burnside. When Officers Allenbaugh and
Armentrout observed Burnside fail to signal a turn, they
activated the lights on their police vehicle and attempted
to pull Burnside over; however, Burnside began driving
erratically, slowing down and then speeding up. It also
appeared to the officers that Burnside was trying to
call somebody on his cell phone. Eventually, the officers
boxed in Burnside, who appeared to attempt to get out
of the vehicle while it was still moving.
Believing Burnside was going to flee, officers pulled
Burnside out of the car, forced him to the ground,
and placed him in handcuffs. Burnside was arrested for
possession of a controlled substance and for driving
without a valid Illinois driver’s license. While searching
Burnside, Officer Allenbaugh observed an unusual
“bulge” in Burnside’s pants, which Burnside claimed
was a hernia. Allenbaugh removed the object and found
a large plastic bag containing several individual bags
of crack cocaine.
Fearing Burnside had by cell phone instructed somebody
at his residence to destroy any further evidence, officers
returned to the house. After conducting a protective
sweep during which no one was found, the officers
sought and received a search warrant from a magistrate
judge. The officers relied on all of the evidence received
up to and through the arrest of Burnside as probable
cause justification for the warrant.
Subsequently, the officers searched the house, seizing
one half of a kilogram of crack cocaine, one full kilogram
of cocaine, a handgun, and more than $30,000 in cash.
Burnside now argues that neither of the officers had a
vantage point from which they could determine if
Hallam had been carrying the bag prior to approaching
Burnside’s vehicle. Burnside further asserts that both he
and Hallam told police that she had been carrying
two cartons of cigarettes prior to approaching the
vehicle, and that the two cartons were later found in
Burnside’s vehicle.
Burnside also argues that the police did not have probable
cause to conduct a Terry stop and frisk, or, in the
alternative, that they exceeded the permissible limits of
the Terry stop by manipulating and removing the bulge
in his pants.
Finally, Burnside argues that because officers lacked
probable cause to conduct the Terry stop and frisk, any
evidence found in the search of the residence thereafter
was “fruit of the poisonous tree.” He also argues that the
officers’ failure to include the protective search in the
warrant application prohibits them from relying on the
“good faith” exception to the exclusionary rule.
II. ANALYSIS
Burnside raises two issues on appeal. First, he argues that
the district court erred when it denied his motion to
suppress. Second, he argues that the district court’s
participation in the plea colloquy constitutes plain error.
We discuss each argument in turn.
A. The Motion to Suppress
When reviewing the district court’s denial of a motion
to suppress, we review factual findings for clear error
and legal questions de novo. United States v. Mosby, 541
F.3d 764, 767 (7th Cir. 2008) (citing United States v.
Groves, 530 F.3d 506, 509 (7th Cir. 2008); United States v.
McIntire, 516 F.3d 576, 578-79 (7th Cir. 2008)). Mixed
questions of law and fact are reviewed de novo. United
States v. Fiasche, 520 F.3d 694, 697 (7th Cir. 2008). We
accord special deference to the district court’s credibility
determinations because the resolution of a motion to
suppress is almost always a fact-specific inquiry, and it
is the district court which heard the testimony and observed
the witnesses at the suppression hearing. United
States v. Hendrix, 509 F.3d 362, 373 (7th Cir. 2007). A factual
finding is clearly erroneous only if, after considering all
the evidence, we cannot avoid or ignore a “definite and
firm conviction that a mistake has been made.” United
States v. Marshall, 157 F.3d 477, 480-81 (7th Cir. 1998)
(internal quotation marks omitted). We find no credible
reason here to disturb the district court’s denial of the
motion to suppress. We arrive at that determination
after considering two substantive issues: (1) whether
officers had probable cause to arrest Burnside, and properly
searched Burnside incident to that arrest; and
(2) whether officers had sufficient probable cause for the
search warrant.
1. The Arrest and Search
The district court found that the officers had probable
cause to arrest Burnside for possession of a controlled
substance. Accordingly, it follows, and the court held,
that the subsequent seizure of crack cocaine from
Burnside’s pants was lawful.
Burnside argues (weakly, we think, given the facts of
this case) that the officers lacked probable cause to arrest
him. Burnside concedes, as he must, that the police had
reasonable suspicion to conduct a Terry stop due to his
failure to signal when turning and because they
believed he was driving with an invalid driver’s license.
See Terry v. Ohio, 392 U.S. 1 (1968). But Burnside claims
that any evidence collected by the police prior to the
stop was insufficient to arrest him for possession of a
controlled substance. He also argues that because he was
unlawfully arrested, the evidence gathered from him
during the pat-down subsequent to his arrest must be
suppressed.
“The Fourth Amendment prohibits unreasonable
searches or seizures, and courts exclude evidence
obtained through an unreasonable search or seizure.”
Mosby, 541 F.3d at 767. But see Guzman v. City of Chicago,
565 F.3d 393, 398 (7th Cir. 2009) (noting that “[e]xclusion
is not a necessary consequence of a Fourth Amendment
violation, and the benefits of exclusion must outweigh
the costs.” (citing Herring v. United States, 129 S.Ct. 695,
700 (2009))). However, police may arrest an individual if
they have probable cause to believe that the individual
engaged in criminal conduct, Mosby, 541 F.3d at 767, as an
arrest supported by probable cause is reasonable by its
very nature, see Atwater v. City of Lago Vista, 532 U.S. 318,
354 (2001) (“If an officer has probable cause to believe
that an individual has committed even a very minor
criminal offense in his presence, he may, without
violating the Fourth Amendment, arrest the offender.”).
When police conduct a warrantless search, the court
of appeals makes an independent determination as to
whether the search was supported by probable cause or
reasonable suspicion. McIntire, 516 F.3d at 577 (citing
Ornelas v. United States, 517 U.S. 690, 697 (1996)). The
officers’ subjective motivations are irrelevant as long as
they have probable cause to justify the search and seizure.
See Whren v. United States, 517 U.S. 806, 812-13 (1996).
“[D]etermining whether probable cause exists involves
a ‘practical, common-sense decision whether, given all
the circumstances set forth . . . there is a fair probability
that contraband or evidence of a crime will be found in a
particular place.’ ” United States v. Ellis, 499 F.3d 686,
689 (7th Cir. 2007) (quoting United States v. Hines, 449
F.3d 808, 814 (7th Cir. 2006) (alterations in original)).
“ ‘Probable cause is a fluid concept based on common-sense
interpretations of reasonable police officers as to the
totality of the circumstances’ known at the time the
event occurred.” Id. at 689 (quoting United States v. Breit,
429 F.3d 725, 728 (7th Cir. 2005)). The events leading up
to an arrest are viewed from the standpoint of an objectively
reasonable police officer. Ornelas, 517 U.S. at 696.
We think the police officers in this case were armed
with more than a sufficient amount of information at the
time of Burnside’s arrest to constitute probable cause.
First, the officers were aware of Burnside’s five prior
felony convictions for the manufacture or delivery of a
controlled substance. Second, the officers knew that
Burnside was currently on parole from Minnesota for a
drug-related offense. Third, Officer Batterham received
reliable information from two different informants who
claimed that Burnside was a large-scale drug dealer;
furthermore, the information supplied by one of the
informants buttressed and was consistent with Officer
Batterham’s knowledge of Burnside’s alias, Shorty Bank
Roll. Fourth, officers observed Burnside participating in
conduct consistent with drug trafficking. Fifth, after
Burnside failed to use a turn signal and officers initiated
the traffic stop, Burnside drove erratically, made a
hurried call on his cell phone, and appeared to make
a flight attempt.
Burnside argues that the officers did not have a clear
vantage point from which to witness the alleged drug
transaction between Burnside and Hallam; therefore, he
argues that the officers could not conclusively determine
whether Hallam approached Burnside’s vehicle with the
brown grocery bag in her hands. Burnside asserts that he
did not give Hallam the bag, nor the rock of crack cocaine
later found in her fist, when she leaned into his vehicle.
Burnside’s arguments miss the mark. As the district
court noted, the officers did not need to prove an actual
drug transaction took place. For an arrest, officers only
need to believe objectively that the conduct observed
was consistent with drug trafficking. See United States v.
Brown, 366 F.3d 456, 458 (7th Cir. 2004). The officers,
employing even a modicum of common sense, had probable
cause to conclude that something illegal occurred.
Moreover, Officers Bainter and Miller were specially
trained in narcotics enforcement techniques. In forming
a reasonable belief that a drug transaction occurred,
they were permitted to view the events through the
prism of their training and experience. United States v.
Funches, 327 F.3d 582, 586 (7th Cir. 2003). Even without
the suspicious Hallam transaction, the police had
sufficient probable cause to arrest Burnside.
Burnside further argues that, even if officers had reasonable
suspicion to perform a Terry stop, they
impermissibly exceeded those limits when subsequently
searching him. We need not address this argument,
however, because the officers had probable cause to
arrest Burnside. It follows, a fortiori, that the officers’
seizure of crack cocaine from Burnside incident to his
arrest was lawful. See United States v. Tejada, 524 F.3d 809,
811 (7th Cir. 2008) (citing Chimel v. California, 395 U.S. 752,
763 (1969)).
Based on the totality of the circumstances the police
had an objectively reasonable basis to believe a crime
had been or was being committed. There was sufficient
probable case to arrest Burnside and to perform the
search incident to that arrest.
2. The Search Warrant
Burnside makes two arguments regarding the validity
of the search warrant. First, he argues that because the
officers used information recovered from his arrest in
the warrant application, the warrant was tainted by such
information. Therefore, he asserts, any evidence later
discovered in his home was fruit of the poisonous tree.
Second, assuming he is correct, Burnside argues that the
police cannot rely on the good faith exception to the
exclusionary rule because the police failed to notify the
judge of the protective sweep performed prior to
applying for the warrant.
When we review a district judge’s decision as to
whether a previously issued warrant was supported by
probable cause, our review is de novo. See McIntire, 516
F.3d at 578. However, we give “great deference” to the
issuing judge’s determination of the existence of probable
cause. Id.; cf. id. at 577 (“A magistrate’s ‘determination
of probable cause should be paid great deference by
reviewing courts.’ ”) (quoting Illinois v. Gates, 462 U.S. 213,
236 (1983)).
We will affirm a court’s finding of probable cause
unless the supporting affidavit, in light of the totality
of the circumstances, “fails to allege specific facts and
circumstances that reasonably lead to the belief that the
items sought in the search warrant are likely to be
located in the place to be searched.” United States v. Hobbs,
509 F.3d 353, 361 (7th Cir. 2007) (citing Illinois v. Gates, 462
U.S. 213, 238 (1983); United States v. Wiley, 475 F.3d 908,
914-15 (7th Cir. 2007)). In determining whether probable
cause exists, officers may draw reasonable inferences
about the likely storage location of evidence; these inferences
are based upon the type of offense and the nature
of the likely evidence. Id. (citing Ellis, 499 F.3d at 690).
With regard to drug dealers, evidence is likely to be
found at the dealers’ residence. Id. (citing Ellis, 499 F.3d
at 691).
Burnside cannot advance his subsequent search
warrant arguments, however, because the failure of his
unlawful arrest premise precludes any further examination.
Because we find that the police had probable
cause to arrest Burnside, the officers were permitted to
include in the warrant application the evidence
they discovered during the search incident to his arrest.
Considering the range of evidence, the police provided
sufficient probable cause, both from their investigation
and from the search incident to Burnside’s
arrest, for the magistrate judge to issue a valid warrant
to search Burnside’s home. Such finding renders the
protective sweep and attendant good faith argument
moot because it was never used by police as justification
for the warrant.
We hold that the issuing state court judge had a substantial
and legally sufficient basis for concluding that
probable cause existed to issue the warrant, and that the
district court’s denial of the motion to suppress
evidence recovered from the search was proper.
B. The Plea Colloquy
Finally, Burnside argues that the district court participated
in plea negotiations during the change-of-plea
hearing in violation of Federal Rule of Criminal Procedure
11(c)(1). Thus, he asserts his guilty plea is tainted, and
moves to withdraw it. We disagree.
Because Burnside did not seek to withdraw his guilty
plea prior to reaching this court, we review Burnside’s
claim of a Rule 11 violation for plain error. United States v.
Vonn, 535 U.S. 55, 59 (2002). To vacate such a plea under
the plain error standard, we must find that (1) an error
has occurred; (2) it was “plain”; (3) it affected a substantial
right of the defendant; and (4) it seriously
affected the fairness, integrity, or public reputation of the
judicial proceedings. Johnson v. United States, 520 U.S.
461, 466-67 (1997).
“Rule 11(c)(1) categorically prohibits the court from
participating in plea negotiations between the government
and the defendant’s attorney.”3 United States v.
Linder, 530 F.3d 556, 562 (7th Cir. 2008); see also
United States v. Kraus, 137 F.3d 447, 452 (7th Cir. 1998).
“Excluding the judge from the plea discussions serves
three purposes: it minimizes the risk that the defendant
will be judicially coerced into pleading guilty, it preserves
the impartiality of the court, and it avoids any appearance
of impropriety.” Kraus, 137 F.3d at 452; see In re
United States, 572 F.3d 301, 312 (7th Cir. 2009) (citing
United States v. O’Neill, 437 F.3d 654, 660 (7th Cir. 2006)
(Posner, J., concurring) (commenting that judges in our
adversarial system do not double as prosecutors)). The
judge who advocates for a particular plea bargain may
resent the government or the defendant for disagreeing.
See In re United States, 572 F.3d at 311.
But not all judicial observations expressed with respect
to plea agreements violate the rule. In fact, the district
judge should often take an active role. Linder, 530 F.3d at
562. For example, “once the parties have themselves
negotiated a plea agreement and presented that agreement
to the court for approval, it is not only permitted
but expected that the court will take an active role in
evaluating the agreement.” Kraus, 137 F.3d at 452; see
Fed. R. Crim. P. 11(e)(1) advisory committee note
(1974 amend.) (“It is contemplated that the judge may
participate in such discussions as may occur when the
plea agreement is disclosed in open court.”). This holds
true even if the agreement is informal and not binding.
See United States v. Carver, 160 F.3d 1266, 1269 (10th Cir.
1998).
The district court did not violate Rule 11(c)(1) because
there was no plea negotiation or agreement between
Burnside and the government. It is impossible for the
district court to have participated in plea negotiations
that never happened. The district court judge said, “I
think the record is clear that there is no cooperation
agreement between the defendant and the government
and according to the government [there] never has
been one and so that’s as the situation stands.” (Tr. at 27.)4
The record further reveals that the government denied
Burnside any hope for leniency by declining to file a
substantial assistance motion,5 noting that Burnside
repeatedly refused to cooperate. Similarly, the judge
made it abundantly clear that the court could not force
the government to negotiate with Burnside over the
question of whether the government might file a
motion for substantial assistance on his behalf. The
government stated in open court that it was prepared and
willing to go to trial and would not make such a motion.
Although Burnside expressed his desire for the government
to file a substantial assistance motion, he also
acknowledged that the government did not at any time
induce him to plead guilty in order to receive it. Burnside,
with five prior felony drug convictions, is no stranger
to criminal proceedings; nevertheless, he may have believed
that, by offering up his guilty plea, the government
might feel obligated to reciprocate with a substantial
assistance motion. Such an unsubstantiated
belief does not constitute the existence of a plea negotiation
or agreement. Moreover, given the incontrovertible
fact that a plea agreement with the government did not
exist, the district court provided Burnside with a recess
during which he could reconsider his plea with his
family and his lawyer. We do not see any evidence in
the record that the district court inappropriately participated
in a plea negotiation in violation of Rule 11.
But Burnside also argues that Rule 11(c)(1) can be
violated when there is in fact no plea agreement,7 and he
urges us to find that a Rule 11 violation occurs whenever
a judge participates in a plea discussion. Specifically,
he argues that the district court violated Rule 11(c)(1)—
regardless of the court’s motives and intentions—because
the district court judge addressed Burnside and his
counsel regarding the consequences of his plea prior to
Burnside entering a plea of guilty.
But Rule 11(c)(1) cannot be read in a vacuum. A principal
purpose of Rule 11(c) is to prescribe the responsibility
of the court to ensure that a defendant who pleads
guilty has made an informed plea. Fed. R. Crim. P. 11
advisory committee note (1974 amend.). Indeed, the
district court judge has a duty to make such inquiries
under Rule 11(c)(1) and other provisions of Rule 11. United
States v. Frank, 36 F.3d 898, 901-02 (9th Cir. 1994); see also
Fed. R. Crim. P. 11(b), (c). For example, the judge must
“address the defendant personally” before accepting a
guilty plea to ascertain the defendant’s understanding
of the charges and penalties and to ensure that the plea
is voluntary. Fed. R. Crim. P. 11(b), (c); see McCarthy v.
United States, 394 U.S. 459, 465-66 (1969). And, before the
court enters judgment on a guilty plea, the judge must
inquire and be fully satisfied that there is a factual basis
for the plea. Fed. R. Crim. P. 11(b). Substantially all of
the required colloquy occurs prior to the defendant
actually stating that he pleads guilty. Frank, 36 F.3d at 902.
Finally, Rule 11 is not intended to “ ‘establish a series of
traps for imperfectly articulated oral remarks.’ ” United
States v. Cano-Varela, 497 F.3d 1122, 1133 (10th Cir. 2007)
(quoting Frank, 36 F.3d at 903).
Burnside ignores the fact that a principal purpose of the
categorical bar against judicial participation in the plea
bargaining process is to protect the parties against
implicit or explicit pressure to settle criminal cases on
terms favored by the judge. Id. Here, the district court
was neither promoting a guilty plea nor a trial. The
record clearly reflects the fact that the judge informed
Burnside that without a substantial assistance motion
from the government, he would be sentenced to the
mandatory minimum of life imprisonment. Burnside
acknowledged that he heard and understood the judge’s
statements. The court further communicated the clear
expectation that the government would not make a substantial
assistance motion, and Burnside acknowledged
that fact as well. The court never took a position with
respect to Burnside’s likelihood of success at trial, with
or without the evidence Burnside sought to suppress.
Finally, the court went on to inform Burnside that, if
he pled guilty, he would be giving up his right to go to
trial. It is patently obvious to us that the district court
did not attempt to persuade or coerce Burnside into a
plea of guilty.
Burnside advances the after-the-fact argument that,
because there was no benefit to him from a change of
plea, the judge’s statements must have induced
Burnside to plead guilty.8 As previously stated, there is
no evidence of any such coercion. Rather, the record
reveals only the district court’s carefully articulated,
informational dialogue with Burnside concerning the
various options available to him, along with possible
consequences of each.
Finally, Burnside seemingly asserts that, because he
changed his mind several times during the colloquy,
concluding with his plea of guilty, there is something of a
de facto Rule 11(c)(1) violation. This argument is without
merit. “There is nothing inherently coercive about requiring
a defendant to make a decision—either plead
guilty or go to trial—so refusing to give a defendant
more time to mull his option simply does not fall within
the purview of the rule.” Cano-Varela, 497 F.3d at 1133
(internal quotation marks omitted). Here, the district
court provided a recess for Burnside to consider the
consequences of pleading guilty. Later, when Burnside
again claimed he was confused, the court offered a
second recess and began to reschedule the hearing for the
next day. Burnside then changed his mind again. Later,
when Burnside changed his mind yet another time, the
court advised, “Now, make sure this is what you want to
do now because I have been very patient for the past
30 minutes.” (Tr. 31.)
We find that the district court judge did not inappropriately
influence Burnside’s decision and that no violation
of Rule 11(c)(1) occurred. Rather, the judge’s comments
were simply an attempt to resolve the inconsistent
positions being taken by Burnside. Throughout
the colloquy, the district court patiently limited its comments
to relevant information of which Burnside should
have been made aware and considered when making
his choice.
III. CONCLUSION
Burnside presented no evidence that police officers
lacked probable cause for his arrest and the subsequent
search of his home. We therefore find that the district
court correctly denied the motion to suppress evidence.
Likewise, the district court did not violate Rule 11(c)(1)
during the plea colloquy. Accordingly, we AFFIRM.
12-4-09
Chicago Criminal Lawyer - Robert J Callahan
U.S. vs. Crowder
Police arrested Maurice Crowder
after finding cocaine and marijuana in a hidden compartment
of a car that Crowder and a co-defendant shipped
from Arizona to Illinois. Crowder was indicted for conspiracy
and attempted possession, both in violation of
21 U.S.C. § 846. Following a bench trial, the district court
found Crowder guilty as charged and sentenced him to
240 months’ imprisonment on each count, to run concurrently.
Crowder appeals his conviction and sentence,
alleging numerous missteps below. Because we find that
the district court committed no reversible error, we
affirm the conviction and sentence.
I. BACKGROUND
Maurice Crowder traveled back and forth between
Chicago and Tucson, Arizona, with Charome Watkins1 in
January 2006. The men transported a dog from Tucson
to Chicago on January 23. The men traveled back to
Tucson the next day, allegedly to pick up additional dogs.
Police stopped the men in the Dallas/Fort-Worth Airport
and conducted a consensual interview, but later allowed
them to leave after a drug-sniffing dog did not alert on
the $46,000 in cash that Crowder was carrying.
Three days later, title to a 1998 Ford Mustang was
transferred to Watkins’s mother, Vickie Watkins,2 who
lived in Harvey, Illinois, with her son. That same day, a
woman arranged to have the driver of a car carrier pick
up the Mustang and transport it from Tucson to Harvey.
The driver arrived at the designated meeting place,
followed shortly thereafter by two unidentified Hispanic
men, one driving the Mustang and the other a pickup
truck. The driver checked the Mustang for damage prior
to loading it onto the carrier, filled out the bill of lading,
and gave the pink carbon-copy to the man who dropped
off the Mustang. The men left the area before the
driver loaded the Mustang, which the driver considered
unusual because it was his experience that most people
stayed to watch the driver load their vehicles onto the
carrier.
While en route to Harvey, the driver contacted the
Missouri Highway Patrol to report his suspicions about a
Grand Prix that he was transporting. He met the
highway patrol at a scale house, where he unloaded the
Grand Prix and gave the patrol permission to search it.
Using a K-9 unit, the patrol eventually discovered drugs
hidden in secret compartments in the Grand Prix. The
patrol then asked the driver if he was suspicious of any
other vehicle on his carrier. The driver identified the
Mustang based on his earlier observations. For example,
while inspecting and loading the Mustang, the driver
had noted a number of unusual things about the interior
of the Mustang: one of the seats did not work, it smelled
like spices, there were several air fresheners, and there
were no personal items in the vehicle. The body of the
Mustang was also missing the fender wells, trim items,
hood scoops, Mustang horse emblem, and rubber
molding around the lights. The driver also had opened the
trunk after the individual dropping off the Mustang
told him that there was a speaker box in the trunk. The
driver agreed to unload the Mustang from the top row of
the truck to facilitate the patrol’s search of the car.
The patrol made a number of observations from the
outside of the Mustang, including that the backseat
appeared to have been tampered with and there was
an interior screw sitting loose on the backseat. The patrol
then opened and searched the Mustang3 where they
discovered eighty pounds of marijuana and approximately
two kilograms of cocaine hidden in a secret compartment
behind the backseat.
The driver agreed to participate with law enforcement
officers in a controlled delivery of the Mustang. The
driver called the phone number of the intended recipient
of the Mustang and spoke with Watkins. The driver
told Watkins that he had been delayed but was still on
his way. The next day the driver again spoke with
Watkins to arrange a time and place for delivering the
Mustang. A police officer recorded the phone conversations
between the driver and Watkins.
Police set up surveillance at the delivery site and
filmed the controlled delivery. The driver was also
wearing audio recording equipment. Crowder and
Watkins arrived in a maroon Ford Taurus, with Crowder
driving. Both men got out of the Taurus, leaving the
doors open and the engine running. Crowder handed
Watkins cash to pay the driver for the delivery. The
men told the driver that they did not have any form
of identification, but Crowder told the driver that they
had received the paperwork directly from the men that
shipped the car from Arizona. Crowder gave the
driver the pink bill of lading that the driver had given
the unidentified Hispanic men in Arizona. The driver
gave Watkins the white bill of lading after Watkins
signed for the Mustang, and Watkins then handed the
white bill of lading to Crowder. The men then left the
delivery site, with Watkins driving the Mustang and
Crowder the Taurus. Both men were arrested shortly
thereafter.
A grand jury charged Crowder with conspiracy (Count
I) and attempted possession with intent to distribute
(Count II), both in violation of 21 U.S.C. § 846. Crowder
moved to suppress evidence of the drugs found in the
Mustang, based in part on his argument that the
search violated the Fourth Amendment. The district
court denied Crowder’s motion to suppress.
The day before the trial was to begin, the government
orally communicated to Crowder’s counsel a large
amount of new information that had not been disclosed
previously to Crowder, including transcripts of the
phone calls between Watkins and the driver.4 The government
indicated its preference to the district court
that Crowder’s counsel have time to review the evidence
once it had been reduced to writing. The court asked
Crowder’s counsel what the evidence was, apparently
in an effort to determine whether a continuance was
required or justified. Defense counsel indicated that he
was uncomfortable sharing with the judge the contents
of the new information because Crowder intended to
waive his right to a jury trial and defend himself in a
bench trial. The district court eventually denied
Crowder’s motion for continuance and started the trial
later that same day. Following a three-day bench trial,
the district court found that Crowder was guilty as
charged in the indictment.
After denying Crowder’s motion for a new trial, the
district court entered judgment against Crowder for
conspiracy and possession with intent to distribute (not
attempted possession, as charged in the indictment). At
sentencing, the government urged that Crowder’s
offense level include an enhancement for being a
career offender under section 4B1.1A of the Sentencing
Guidelines. The district court eventually sentenced
Crowder to 240 months’ imprisonment on each count, to
run concurrently, a term of imprisonment that falls
above the guideline range without any enhancements
(130 to 162 months) but below the range if all of the
proposed enhancements were included (360 months to
life).
Crowder filed a timely appeal, challenging both his
conviction and sentence. We find no error below and
therefore affirm.
II. ANALYSIS
On appeal, Crowder argues that (1) the district court
should have suppressed the evidence from the search of
the Mustang; (2) the district court should have granted
the motion for continuance; (3) his conviction on Count II
should be reversed because the indictment was constructively
amended; (4) he cannot be sentenced for both
conspiracy to possess and attempted possession arising
out of the same statute; (5) the evidence was insufficient
to support his conviction; and (6) his prior crimes
should not have triggered the career offender enhancement.
A. Fourth Amendment
Crowder argues that the police search of the Mustang
violated his Fourth Amendment rights, and that the
district court therefore erred when it denied his motion
to suppress the contents of the search. We review the
district court’s factual findings for clear error, but review
legal conclusions de novo. United States v. Mosby, 541
F.3d 764, 767 (7th Cir. 2008).
The Fourth Amendment protects “against unreasonable
searches and seizures.” U.S. Const. amend. IV. A
government agent’s search is unreasonable when it infringes
on “an expectation of privacy that society is prepared
to consider reasonable.” United States v. Jacobsen, 466
U.S. 109, 113 (1984). To challenge a search the defendant
must show that he had both a subjective and objective
expectation of privacy in the item or location searched.
United States v. Haywood, 324 F.3d 514, 515-16 (7th Cir.
2003) (citing United States v. Walker, 237 F.3d 845, 849 (7th
Cir. 2001)). A court usually excludes evidence obtained
in violation of the Fourth Amendment. Mosby, 541 F.3d
at 767. But see Herring v. United States, 19 S. Ct. 695, 700
(2009) (“The fact that a Fourth Amendment violation
occurred—i.e., that a search or arrest was unreasonable—
does not necessarily mean that the exclusionary
rule applies. Indeed, exclusion has always been our last
resort, not our first impulse . . . .” (citation and quotation
omitted)).
The district court found that Crowder lacked
standing to challenge the search of the Mustang because
he did not have a reasonable expectation of privacy in
the Mustang. The court also found that the search
did not violate the Fourth Amendment. United States v.
Crowder, No. 06 CR 102-2, 2007 WL 1424606, at *4-5 (N.D.
Ill. May 10, 2007). On appeal, Crowder focuses his challenge
on the district court’s finding that he “relinquished
control of the Mustang to a third party shipping company”
and thereby effectively waived his Fourth Amendment
protections. See id.
We agree with the district court’s conclusion that
Crowder did not have a reasonable expectation of privacy
in the Mustang after he turned it over to the shipper.6
The doors were left unlocked, the driver of the car
carrier was given the keys, and Crowder knew that the
driver would enter the Mustang and drive it. We conclude
that no one could have a reasonable expectation
of privacy in the contents of a vehicle under those circumstances.
Although there is no evidence that Crowder
directly authorized the driver to search the vehicle, in
light of the circumstances described above it is clear
that the driver was “authorized to act in direct contravention
to” Crowder’s privacy interest. See United States
v. Young, 350 F.3d 1302, 1308 (11th Cir. 2003) (holding
that the defendant did not have a reasonable expectation
of privacy in a package sent via Federal Express when
the defendant signed an air bill that gave Federal
Express the authority to search the package).
Crowder argues that United States v. Villarreal, 963 F.2d
770 (5th Cir. 1992), compels a different outcome. In
Villarreal, the defendants shipped drugs in sealed 55-
gallon containers. The shipper notified customs officials
after becoming suspicious of the contents of the drums.
Without first obtaining a warrant, customs agents
opened the drums and discovered the drugs. The court
found that the defendants had a reasonable expectation
of privacy in the sealed drums and that the agents’
search of the drums violated the defendants’ Fourth
Amendment rights. Id. at 774-75.
Crowder’s reliance on Villarreal is misplaced. The court
in Villarreal consistently referenced a reasonable expectation
of privacy in “closed containers.” See, e.g., id. at 773-74
(“Individuals do not surrender their expectations of
privacy in closed containers when they send them by
mail or common carrier.” (citing Jacobsen, 466 U.S. at 114
(recognizing a reasonable expectation of privacy in
“[l]etters and other sealed packages”))); id. at 774 (“The
drum opened by the customs agents in this case was a
closed container sent by common carrier in which the
sender and addressee had a reasonable expectation of
privacy.”). The Mustang at issue in this case can hardly
be considered a “closed container” analogous to the
sealed drums in Villarreal. The doors to the Mustang
were unlocked, the driver had the keys, and Crowder
knew that the driver would be opening the doors and
driving the car. The reasoning in Villarreal is therefore
inapposite to Crowder’s case.
Because Crowder lacked a reasonable expectation of
privacy in the Mustang, he does not have standing to
challenge the search of the car and subsequent seizure of
the drugs that were hidden inside. Consequently,
Crowder’s appeal based on the Fourth Amendment
must fail.
We also agree with the district court that, even if
Crowder had standing to challenge the search, the
search complied with the requirements of the Fourth
Amendment. The district court found that the driver of
the car carrier consented to the police search of the Mustang.
“[P]olice may reasonably search without a warrant
when a person with authority voluntarily consents
to the search, though a lack of apparent authority
would invalidate the search.” Mosby, 541 F.3d at 767 (citing
United States v. Groves, 530 F.3d 506, 509 (7th Cir. 2008)); see
also United States v. Grap, 403 F.3d 439, 443 (7th Cir. 2005)
(citing Illinois v. Rodriguez, 497 U.S. 177, 181 (1990); United
States v. Basinski, 226 F.3d 829, 833 (7th Cir. 2000)). Here,
the record supports the district court’s finding that the
driver consented to the search. After being asked if there
were any other suspicious vehicles on the truck, the
driver communicated his well-founded suspicion of the
Mustang. The driver then removed the Mustang from
the car carrier to facilitate the police’s search of the car.
The district court’s finding that the driver consented to
the search was not clearly erroneous.
The driver’s consent, however, is only relevant if he
had apparent authority7 to waive the protections afforded
by the Fourth Amendment. See Mosby, 541 F.3d at 767. A
third party has apparent authority when it “would
appear to a reasonable person, given the information that
law enforcement possessed,” that the individual had
“common authority over the property . . . .” United States v.
James, 571 F.3d 707, 714 (7th Cir. 2009) (citing Basinski, 226
F.3d at 834). The district court found that “Crowder
relinquished complete control of the vehicle which contained
the controlled substances to the driver of the
trailer, as per the terms of the lading contract,” and that
“[t]he driver had complete control and full access to the
Mustang when it was shipped to Illinois.” (App. at 9.)
The district court’s implicit finding that the driver had
authority to consent to the search of the Mustang is not
clearly erroneous. As discussed previously, the Mustang
was left unlocked, the driver of the car carrier had the key,
and the driver was required to drive the car to unload it
from the carrier. A reasonable person would conclude,
based on the amount of control over the Mustang that
the driver of the carrier exercised, that the driver had
authority to consent to the police search of the car. Accordingly,
even if Crowder had standing to challenge
the search, his Fourth Amendment challenge to the
search would fail.
B. Motion for Continuance
Crowder also argues that the district court erred by
denying his motion for a continuance after the government
disclosed voluminous amounts of new evidence
shortly before trial. We review the district court’s denial
of a continuance for abuse of discretion and a showing of
actual prejudice. United States v. Miller, 327 F.3d 598, 601
(7th Cir. 2003). A court should consider several factors
when ruling upon a motion for continuance, including,
but not limited to:
(1) the amount of time available for preparation;
(2) the likelihood of prejudice from denial of the
continuance; (3) the defendant’s role in shortening
the effective preparation time; (4) the degree of
complexity of the case; (5) the availability of discovery
from the prosecution; (6) the likelihood a
continuance would have satisfied the movant’s
needs; and (7) the inconvenience and burden to
the district court and its pending case load.
Id. The district court need not make “a rigid recitation
and analysis of each point before a continuance may be
denied,” and the court may place varying degrees of
importance on each factor, depending on the circumstances
of the case. United States v. Williams, 576 F.3d
385, 389 (7th Cir. 2009). The party requesting the continuance
should identify the specific risk of prejudice,
because a court may properly deny a motion to continue
that is based wholly on “vague and conclusory” statements.
See United States v. Robbins, 197 F.3d 829, 846 (7th
Cir. 1999).
Crowder argues that the district court denied his
motion for a continuance solely to preclude him from
filing additional motions that would further delay the
proceedings. But even a cursory review of the record
reveals that although the district court did consider the
prospect of additional motions, it also considered the
relevant Miller factors and ultimately decided to deny the
motion for a continuance based largely on Crowder’s
counsel’s unwillingness to state with any amount of
specificity the prejudice that might result to his client
absent a continuance. (App. at 55-56.) Given Crowder’s
counsel’s cryptic discussion of the prejudice that would
befall his client absent a continuance, the district court
would have had a difficult time assessing both the likelihood
of prejudice and the likelihood that a continuance
would cure that prejudice. The district court did explicitly
consider the complexity of the case (App. at 58) and the
inconvenience to the court (App. at 58, 59), and determined
that those factors weighed against granting the
continuance.
To be sure, the district court could have determined that
a continuance was prudent in light of the timing of the
disclosures, the lack of time available for Crowder to
consider the new materials, and the likelihood that a
continuance would have alleviated Crowder’s concern
about inadequate time to prepare. But because we
review the district court’s decision for an abuse of discretion,
we cannot say that the district court erred in
denying Crowder’s motion for a continuance.
Crowder’s appeal on this issue also fails because no
actual prejudice resulted from the district court denying
the continuance. See Miller, 327 F.3d at 601. The government
did not introduce into evidence substantial
portions of the information that was disclosed so close
to trial, including evidence of Crowder’s post-arrest
inculpatory statements and conduct. The only specific
prejudice that Crowder has identified is insufficient
time to prepare his cross-examination of the driver regarding
the recorded telephone calls between the driver
and Watkins. More generally, Crowder argues that
more time to review the documents “may have allowed
defense counsel to interview and consult additional
witnesses . . . .” (Appellant’s Brief at 30.) We have been
reluctant to assign error to the denial of a continuance
where the defendant failed to specify what new defense
or additional questions he could have raised had the
continuance been granted. See United States v. Vincent,
416 F.3d 593, 599 (7th Cir. 2005) (“Despite ample time
since trial, however, [the defendant] has neither pointed
to exculpatory evidence he would have found in the
discovery nor proposed additional questions he would
have asked the government’s witnesses.”); Bell v.
Duckworth, 861 F.2d 169, 170 (7th Cir. 1988) (“[D]efense
counsel had and exercised the opportunity to
cross-examine [the witness] fully; and to this day there
is no suggestion of what defense against his testimony
[the defendant’s] counsel might have developed if given
a continuance.”). Although Crowder is not required to
produce new evidence to show prejudice, Williams, 576
F.3d at 391, he cannot rely on vague and conclusory
statements about his abstract need for more time to
review the evidence. Because he cannot show that he
suffered actual prejudice from the district court’s denial
of a continuance, Crowder’s appeal on this issue is denied.
C. Constructive Amendment
Crowder was indicted for conspiracy and attempted
possession. (App. at 29-30.) But when the district court
entered judgment against Crowder, it listed the second
count of conviction as possession with the intent to distribute,
rather than attempted possession. (Id. at 24-28.)
Although neither party moved to correct the judgment
or commitment order below, Crowder now argues that
the error constitutes a constructive amendment of the
indictment and therefore warrants reversal of the conviction.
Because Crowder forfeited this argument below,
we review for plain error. United States v. LeShore, 543
F.3d 935, 939 (7th Cir. 2008). To show plain
error, the challenger must show that “(1) an error has
occurred, (2) it was ‘plain,’ (3) it affected a substantial
right of the defendant, and (4) it seriously affected the
fairness, integrity, or public reputation of the judicial
proceedings.” United States v. Gibson, 356 F.3d 761, 765-66
(7th Cir. 2004) (internal quotation marks omitted).
“A constructive amendment to an indictment occurs
when either the government (usually during its presentation
of evidence and/or its argument), the court (usually
through its instructions to the jury), or both, broadens
the possible bases for conviction beyond those presented
by the grand jury.” United States v. Cusimano, 148 F.3d
824, 829 (7th Cir. 1998) (internal quotation marks omitted).
Because a constructive amendment violates the
Fifth Amendment, see United States v. Baker, 227 F.3d
955, 960 (7th Cir. 2000), a conviction under an amended
indictment should almost always be reversed. See
Cusimano, 148 F.3d at 828 n.3.
The government argues that the appearance of possession
with intent in the judgement is simply a clerical error
that does not run afoul of the Fifth Amendment. As the
government concedes (Appellee’s Resp. at 46), the judgment
contains an error—it erroneously lists possession
with intent as Count II, rather than attempted possession.
However, we agree that it was not plain error because
it did not affect a substantial right of the defendant and
it does not negatively affect the integrity of the proceedings
below. Additionally, a correction pursuant to
Rule 36 of the Federal Rules of Criminal Procedure can
adequately resolve the error in the judgment.
Crowder has highlighted a few occasions, in the course
of the entire trial and sentencing, when the government
referred to actual possession rather than attempted
possession. In this regard, we find the government’s
actions readily distinguishable from the conduct found to
constitute a constructive amendment in United States v.
Combs, 369 F.3d 925, 935 (6th Cir. 2004), which Crowder
cited for support. The court and parties in Combs continuously
mixed and matched the elements from two
different crimes in the indictment and jury instructions
and throughout the proceedings, leading to what the
court called a “hopelessly jumbled mess” that warranted
reversal. Id. at 933-34 (internal quotation marks omitted).
Our review of the record in this case reveals that both
the parties involved in the trial and the district court
understood that Crowder was indicted for attempted
possession, and there is nothing about the proof provided
at trial or the comments made by the government
that warrants reversal of the conviction on Count II.
Accordingly, Crowder’s appeal on this issue is denied.
D. Conspiracy and Attempt
Crowder argues that the district court erred by sentencing
him for both conspiracy and attempt because
doing so punishes him twice for the same criminal undertaking.
Because Crowder failed to raise this argument
with the district court, we review the district court’s
imposition of the sentence for plain error. LeShore, 543
F.3d at 939. Our review of the district court’s legal conclusions
is de novo. United States v. Henton, 374 F.3d 467,
469 (7th Cir. 2004).
Both the conspiracy charge and the attempted possession
charge arise under 21 U.S.C. § 846, which provides:
“Any person who attempts or conspires to commit any
offense defined in this subchapter shall be subject to the
same penalties as those prescribed for the offense, the
commission of which was the object of the attempt or
conspiracy.” Crowder does not dispute that a defendant
may be charged with and convicted for both conspiracy
and attempt under § 846. United States v. Carrera, 250
F. App’x 731, 733 (7th Cir. 2007) (“[I]t has long been
settled that a prosecution for both conspiracy and
attempt does not violate the Double Jeopardy Clause
because each crime requires proof of a fact that the
other does not.”). However, we have not had occasion to
consider whether imposing separate sentences for conspiracy
and attempt improperly punishes a defendant
twice for the same criminal conduct.
Crowder urges us to follow the Ninth Circuit and
hold that a defendant cannot be sentenced for both conspiracy
and attempt under § 846 if the charges arise out
of a single criminal act. In United States v. Touw, the
Ninth Circuit held that, although a defendant could be
charged and convicted of both conspiracy and attempt,
the court could only sentence him on one count if the
underlying criminal activity constituted a “single course
of action.” 769 F.2d 571, 574 (9th Cir. 1985); see also
United States v. Palafox, 764 F.2d 558, 560 (9th Cir. 1985).
But the three circuits to consider this issue after Touw
have unanimously rejected the Ninth Circuit’s “single
course of action” inquiry, choosing instead to apply the
Supreme Court’s Blockburger test at the sentencing stage
to determine whether separate sentences are appropriate.
See United States v. Boykins, 966 F.2d 1240, 1245
(8th Cir. 1992); United States v. Barrett, 933 F.2d 355, 360-61
(6th Cir. 1991); United States v. Savaiano, 843 F.2d 1280, 1293
(10th Cir. 1988). Under Blockburger—which answered the
question of whether a single act could constitute
multiple crimes under different statutes—a court must
determine “whether each provision requires proof of a
fact which the other does not.” Blockburger v. United
States, 284 U.S. 299, 304 (1932). Conspiracy and attempt
are clearly separate offenses under this inquiry: conspiracy
requires an agreement with another person,
whereas attempt may be completed alone. See United
States v. Corson, 579 F.3d 804, 810 (7th Cir. 2009) (noting
that conspiracy requires an agreement); United States v.
Gladish, 536 F.3d 646, 648 (7th Cir. 2008) (noting that
attempt requires only intent to complete the crime and
a substantial step toward completion).
We agree with the Sixth, Eighth, and Tenth Circuits
and now hold that the Blockburger test should be applied
at the sentencing phase to determine whether separate
sentences are appropriate for the crimes charged and
convicted, even where those crimes arise out of a single
criminal act. The Blockburger test is easily administered
and does not lend itself to a fact-specific inquiry that
inevitably will lead to unnecessary appeals and leave
parties and courts “without hope of much guidance.”
Savaiano, 843 F.2d at 1293. Furthermore, district courts
retain their discretion at sentencing to address situations
where sentencing on both counts may effect an excessive
or otherwise inappropriate sentence. Because we find
that a defendant may be sentenced for both conspiracy
and attempt, Crowder’s appeal on this issue is denied.
We find Crowder’s remaining claims without merit
and therefore decline to discuss them.
III. CONCLUSION
Maurice Crowder’s conviction and sentence are AFFIRMED.
12-7-09
Chicago Criminal Lawyer - Robert J Callahan
after finding cocaine and marijuana in a hidden compartment
of a car that Crowder and a co-defendant shipped
from Arizona to Illinois. Crowder was indicted for conspiracy
and attempted possession, both in violation of
21 U.S.C. § 846. Following a bench trial, the district court
found Crowder guilty as charged and sentenced him to
240 months’ imprisonment on each count, to run concurrently.
Crowder appeals his conviction and sentence,
alleging numerous missteps below. Because we find that
the district court committed no reversible error, we
affirm the conviction and sentence.
I. BACKGROUND
Maurice Crowder traveled back and forth between
Chicago and Tucson, Arizona, with Charome Watkins1 in
January 2006. The men transported a dog from Tucson
to Chicago on January 23. The men traveled back to
Tucson the next day, allegedly to pick up additional dogs.
Police stopped the men in the Dallas/Fort-Worth Airport
and conducted a consensual interview, but later allowed
them to leave after a drug-sniffing dog did not alert on
the $46,000 in cash that Crowder was carrying.
Three days later, title to a 1998 Ford Mustang was
transferred to Watkins’s mother, Vickie Watkins,2 who
lived in Harvey, Illinois, with her son. That same day, a
woman arranged to have the driver of a car carrier pick
up the Mustang and transport it from Tucson to Harvey.
The driver arrived at the designated meeting place,
followed shortly thereafter by two unidentified Hispanic
men, one driving the Mustang and the other a pickup
truck. The driver checked the Mustang for damage prior
to loading it onto the carrier, filled out the bill of lading,
and gave the pink carbon-copy to the man who dropped
off the Mustang. The men left the area before the
driver loaded the Mustang, which the driver considered
unusual because it was his experience that most people
stayed to watch the driver load their vehicles onto the
carrier.
While en route to Harvey, the driver contacted the
Missouri Highway Patrol to report his suspicions about a
Grand Prix that he was transporting. He met the
highway patrol at a scale house, where he unloaded the
Grand Prix and gave the patrol permission to search it.
Using a K-9 unit, the patrol eventually discovered drugs
hidden in secret compartments in the Grand Prix. The
patrol then asked the driver if he was suspicious of any
other vehicle on his carrier. The driver identified the
Mustang based on his earlier observations. For example,
while inspecting and loading the Mustang, the driver
had noted a number of unusual things about the interior
of the Mustang: one of the seats did not work, it smelled
like spices, there were several air fresheners, and there
were no personal items in the vehicle. The body of the
Mustang was also missing the fender wells, trim items,
hood scoops, Mustang horse emblem, and rubber
molding around the lights. The driver also had opened the
trunk after the individual dropping off the Mustang
told him that there was a speaker box in the trunk. The
driver agreed to unload the Mustang from the top row of
the truck to facilitate the patrol’s search of the car.
The patrol made a number of observations from the
outside of the Mustang, including that the backseat
appeared to have been tampered with and there was
an interior screw sitting loose on the backseat. The patrol
then opened and searched the Mustang3 where they
discovered eighty pounds of marijuana and approximately
two kilograms of cocaine hidden in a secret compartment
behind the backseat.
The driver agreed to participate with law enforcement
officers in a controlled delivery of the Mustang. The
driver called the phone number of the intended recipient
of the Mustang and spoke with Watkins. The driver
told Watkins that he had been delayed but was still on
his way. The next day the driver again spoke with
Watkins to arrange a time and place for delivering the
Mustang. A police officer recorded the phone conversations
between the driver and Watkins.
Police set up surveillance at the delivery site and
filmed the controlled delivery. The driver was also
wearing audio recording equipment. Crowder and
Watkins arrived in a maroon Ford Taurus, with Crowder
driving. Both men got out of the Taurus, leaving the
doors open and the engine running. Crowder handed
Watkins cash to pay the driver for the delivery. The
men told the driver that they did not have any form
of identification, but Crowder told the driver that they
had received the paperwork directly from the men that
shipped the car from Arizona. Crowder gave the
driver the pink bill of lading that the driver had given
the unidentified Hispanic men in Arizona. The driver
gave Watkins the white bill of lading after Watkins
signed for the Mustang, and Watkins then handed the
white bill of lading to Crowder. The men then left the
delivery site, with Watkins driving the Mustang and
Crowder the Taurus. Both men were arrested shortly
thereafter.
A grand jury charged Crowder with conspiracy (Count
I) and attempted possession with intent to distribute
(Count II), both in violation of 21 U.S.C. § 846. Crowder
moved to suppress evidence of the drugs found in the
Mustang, based in part on his argument that the
search violated the Fourth Amendment. The district
court denied Crowder’s motion to suppress.
The day before the trial was to begin, the government
orally communicated to Crowder’s counsel a large
amount of new information that had not been disclosed
previously to Crowder, including transcripts of the
phone calls between Watkins and the driver.4 The government
indicated its preference to the district court
that Crowder’s counsel have time to review the evidence
once it had been reduced to writing. The court asked
Crowder’s counsel what the evidence was, apparently
in an effort to determine whether a continuance was
required or justified. Defense counsel indicated that he
was uncomfortable sharing with the judge the contents
of the new information because Crowder intended to
waive his right to a jury trial and defend himself in a
bench trial. The district court eventually denied
Crowder’s motion for continuance and started the trial
later that same day. Following a three-day bench trial,
the district court found that Crowder was guilty as
charged in the indictment.
After denying Crowder’s motion for a new trial, the
district court entered judgment against Crowder for
conspiracy and possession with intent to distribute (not
attempted possession, as charged in the indictment). At
sentencing, the government urged that Crowder’s
offense level include an enhancement for being a
career offender under section 4B1.1A of the Sentencing
Guidelines. The district court eventually sentenced
Crowder to 240 months’ imprisonment on each count, to
run concurrently, a term of imprisonment that falls
above the guideline range without any enhancements
(130 to 162 months) but below the range if all of the
proposed enhancements were included (360 months to
life).
Crowder filed a timely appeal, challenging both his
conviction and sentence. We find no error below and
therefore affirm.
II. ANALYSIS
On appeal, Crowder argues that (1) the district court
should have suppressed the evidence from the search of
the Mustang; (2) the district court should have granted
the motion for continuance; (3) his conviction on Count II
should be reversed because the indictment was constructively
amended; (4) he cannot be sentenced for both
conspiracy to possess and attempted possession arising
out of the same statute; (5) the evidence was insufficient
to support his conviction; and (6) his prior crimes
should not have triggered the career offender enhancement.
A. Fourth Amendment
Crowder argues that the police search of the Mustang
violated his Fourth Amendment rights, and that the
district court therefore erred when it denied his motion
to suppress the contents of the search. We review the
district court’s factual findings for clear error, but review
legal conclusions de novo. United States v. Mosby, 541
F.3d 764, 767 (7th Cir. 2008).
The Fourth Amendment protects “against unreasonable
searches and seizures.” U.S. Const. amend. IV. A
government agent’s search is unreasonable when it infringes
on “an expectation of privacy that society is prepared
to consider reasonable.” United States v. Jacobsen, 466
U.S. 109, 113 (1984). To challenge a search the defendant
must show that he had both a subjective and objective
expectation of privacy in the item or location searched.
United States v. Haywood, 324 F.3d 514, 515-16 (7th Cir.
2003) (citing United States v. Walker, 237 F.3d 845, 849 (7th
Cir. 2001)). A court usually excludes evidence obtained
in violation of the Fourth Amendment. Mosby, 541 F.3d
at 767. But see Herring v. United States, 19 S. Ct. 695, 700
(2009) (“The fact that a Fourth Amendment violation
occurred—i.e., that a search or arrest was unreasonable—
does not necessarily mean that the exclusionary
rule applies. Indeed, exclusion has always been our last
resort, not our first impulse . . . .” (citation and quotation
omitted)).
The district court found that Crowder lacked
standing to challenge the search of the Mustang because
he did not have a reasonable expectation of privacy in
the Mustang. The court also found that the search
did not violate the Fourth Amendment. United States v.
Crowder, No. 06 CR 102-2, 2007 WL 1424606, at *4-5 (N.D.
Ill. May 10, 2007). On appeal, Crowder focuses his challenge
on the district court’s finding that he “relinquished
control of the Mustang to a third party shipping company”
and thereby effectively waived his Fourth Amendment
protections. See id.
We agree with the district court’s conclusion that
Crowder did not have a reasonable expectation of privacy
in the Mustang after he turned it over to the shipper.6
The doors were left unlocked, the driver of the car
carrier was given the keys, and Crowder knew that the
driver would enter the Mustang and drive it. We conclude
that no one could have a reasonable expectation
of privacy in the contents of a vehicle under those circumstances.
Although there is no evidence that Crowder
directly authorized the driver to search the vehicle, in
light of the circumstances described above it is clear
that the driver was “authorized to act in direct contravention
to” Crowder’s privacy interest. See United States
v. Young, 350 F.3d 1302, 1308 (11th Cir. 2003) (holding
that the defendant did not have a reasonable expectation
of privacy in a package sent via Federal Express when
the defendant signed an air bill that gave Federal
Express the authority to search the package).
Crowder argues that United States v. Villarreal, 963 F.2d
770 (5th Cir. 1992), compels a different outcome. In
Villarreal, the defendants shipped drugs in sealed 55-
gallon containers. The shipper notified customs officials
after becoming suspicious of the contents of the drums.
Without first obtaining a warrant, customs agents
opened the drums and discovered the drugs. The court
found that the defendants had a reasonable expectation
of privacy in the sealed drums and that the agents’
search of the drums violated the defendants’ Fourth
Amendment rights. Id. at 774-75.
Crowder’s reliance on Villarreal is misplaced. The court
in Villarreal consistently referenced a reasonable expectation
of privacy in “closed containers.” See, e.g., id. at 773-74
(“Individuals do not surrender their expectations of
privacy in closed containers when they send them by
mail or common carrier.” (citing Jacobsen, 466 U.S. at 114
(recognizing a reasonable expectation of privacy in
“[l]etters and other sealed packages”))); id. at 774 (“The
drum opened by the customs agents in this case was a
closed container sent by common carrier in which the
sender and addressee had a reasonable expectation of
privacy.”). The Mustang at issue in this case can hardly
be considered a “closed container” analogous to the
sealed drums in Villarreal. The doors to the Mustang
were unlocked, the driver had the keys, and Crowder
knew that the driver would be opening the doors and
driving the car. The reasoning in Villarreal is therefore
inapposite to Crowder’s case.
Because Crowder lacked a reasonable expectation of
privacy in the Mustang, he does not have standing to
challenge the search of the car and subsequent seizure of
the drugs that were hidden inside. Consequently,
Crowder’s appeal based on the Fourth Amendment
must fail.
We also agree with the district court that, even if
Crowder had standing to challenge the search, the
search complied with the requirements of the Fourth
Amendment. The district court found that the driver of
the car carrier consented to the police search of the Mustang.
“[P]olice may reasonably search without a warrant
when a person with authority voluntarily consents
to the search, though a lack of apparent authority
would invalidate the search.” Mosby, 541 F.3d at 767 (citing
United States v. Groves, 530 F.3d 506, 509 (7th Cir. 2008)); see
also United States v. Grap, 403 F.3d 439, 443 (7th Cir. 2005)
(citing Illinois v. Rodriguez, 497 U.S. 177, 181 (1990); United
States v. Basinski, 226 F.3d 829, 833 (7th Cir. 2000)). Here,
the record supports the district court’s finding that the
driver consented to the search. After being asked if there
were any other suspicious vehicles on the truck, the
driver communicated his well-founded suspicion of the
Mustang. The driver then removed the Mustang from
the car carrier to facilitate the police’s search of the car.
The district court’s finding that the driver consented to
the search was not clearly erroneous.
The driver’s consent, however, is only relevant if he
had apparent authority7 to waive the protections afforded
by the Fourth Amendment. See Mosby, 541 F.3d at 767. A
third party has apparent authority when it “would
appear to a reasonable person, given the information that
law enforcement possessed,” that the individual had
“common authority over the property . . . .” United States v.
James, 571 F.3d 707, 714 (7th Cir. 2009) (citing Basinski, 226
F.3d at 834). The district court found that “Crowder
relinquished complete control of the vehicle which contained
the controlled substances to the driver of the
trailer, as per the terms of the lading contract,” and that
“[t]he driver had complete control and full access to the
Mustang when it was shipped to Illinois.” (App. at 9.)
The district court’s implicit finding that the driver had
authority to consent to the search of the Mustang is not
clearly erroneous. As discussed previously, the Mustang
was left unlocked, the driver of the car carrier had the key,
and the driver was required to drive the car to unload it
from the carrier. A reasonable person would conclude,
based on the amount of control over the Mustang that
the driver of the carrier exercised, that the driver had
authority to consent to the police search of the car. Accordingly,
even if Crowder had standing to challenge
the search, his Fourth Amendment challenge to the
search would fail.
B. Motion for Continuance
Crowder also argues that the district court erred by
denying his motion for a continuance after the government
disclosed voluminous amounts of new evidence
shortly before trial. We review the district court’s denial
of a continuance for abuse of discretion and a showing of
actual prejudice. United States v. Miller, 327 F.3d 598, 601
(7th Cir. 2003). A court should consider several factors
when ruling upon a motion for continuance, including,
but not limited to:
(1) the amount of time available for preparation;
(2) the likelihood of prejudice from denial of the
continuance; (3) the defendant’s role in shortening
the effective preparation time; (4) the degree of
complexity of the case; (5) the availability of discovery
from the prosecution; (6) the likelihood a
continuance would have satisfied the movant’s
needs; and (7) the inconvenience and burden to
the district court and its pending case load.
Id. The district court need not make “a rigid recitation
and analysis of each point before a continuance may be
denied,” and the court may place varying degrees of
importance on each factor, depending on the circumstances
of the case. United States v. Williams, 576 F.3d
385, 389 (7th Cir. 2009). The party requesting the continuance
should identify the specific risk of prejudice,
because a court may properly deny a motion to continue
that is based wholly on “vague and conclusory” statements.
See United States v. Robbins, 197 F.3d 829, 846 (7th
Cir. 1999).
Crowder argues that the district court denied his
motion for a continuance solely to preclude him from
filing additional motions that would further delay the
proceedings. But even a cursory review of the record
reveals that although the district court did consider the
prospect of additional motions, it also considered the
relevant Miller factors and ultimately decided to deny the
motion for a continuance based largely on Crowder’s
counsel’s unwillingness to state with any amount of
specificity the prejudice that might result to his client
absent a continuance. (App. at 55-56.) Given Crowder’s
counsel’s cryptic discussion of the prejudice that would
befall his client absent a continuance, the district court
would have had a difficult time assessing both the likelihood
of prejudice and the likelihood that a continuance
would cure that prejudice. The district court did explicitly
consider the complexity of the case (App. at 58) and the
inconvenience to the court (App. at 58, 59), and determined
that those factors weighed against granting the
continuance.
To be sure, the district court could have determined that
a continuance was prudent in light of the timing of the
disclosures, the lack of time available for Crowder to
consider the new materials, and the likelihood that a
continuance would have alleviated Crowder’s concern
about inadequate time to prepare. But because we
review the district court’s decision for an abuse of discretion,
we cannot say that the district court erred in
denying Crowder’s motion for a continuance.
Crowder’s appeal on this issue also fails because no
actual prejudice resulted from the district court denying
the continuance. See Miller, 327 F.3d at 601. The government
did not introduce into evidence substantial
portions of the information that was disclosed so close
to trial, including evidence of Crowder’s post-arrest
inculpatory statements and conduct. The only specific
prejudice that Crowder has identified is insufficient
time to prepare his cross-examination of the driver regarding
the recorded telephone calls between the driver
and Watkins. More generally, Crowder argues that
more time to review the documents “may have allowed
defense counsel to interview and consult additional
witnesses . . . .” (Appellant’s Brief at 30.) We have been
reluctant to assign error to the denial of a continuance
where the defendant failed to specify what new defense
or additional questions he could have raised had the
continuance been granted. See United States v. Vincent,
416 F.3d 593, 599 (7th Cir. 2005) (“Despite ample time
since trial, however, [the defendant] has neither pointed
to exculpatory evidence he would have found in the
discovery nor proposed additional questions he would
have asked the government’s witnesses.”); Bell v.
Duckworth, 861 F.2d 169, 170 (7th Cir. 1988) (“[D]efense
counsel had and exercised the opportunity to
cross-examine [the witness] fully; and to this day there
is no suggestion of what defense against his testimony
[the defendant’s] counsel might have developed if given
a continuance.”). Although Crowder is not required to
produce new evidence to show prejudice, Williams, 576
F.3d at 391, he cannot rely on vague and conclusory
statements about his abstract need for more time to
review the evidence. Because he cannot show that he
suffered actual prejudice from the district court’s denial
of a continuance, Crowder’s appeal on this issue is denied.
C. Constructive Amendment
Crowder was indicted for conspiracy and attempted
possession. (App. at 29-30.) But when the district court
entered judgment against Crowder, it listed the second
count of conviction as possession with the intent to distribute,
rather than attempted possession. (Id. at 24-28.)
Although neither party moved to correct the judgment
or commitment order below, Crowder now argues that
the error constitutes a constructive amendment of the
indictment and therefore warrants reversal of the conviction.
Because Crowder forfeited this argument below,
we review for plain error. United States v. LeShore, 543
F.3d 935, 939 (7th Cir. 2008). To show plain
error, the challenger must show that “(1) an error has
occurred, (2) it was ‘plain,’ (3) it affected a substantial
right of the defendant, and (4) it seriously affected the
fairness, integrity, or public reputation of the judicial
proceedings.” United States v. Gibson, 356 F.3d 761, 765-66
(7th Cir. 2004) (internal quotation marks omitted).
“A constructive amendment to an indictment occurs
when either the government (usually during its presentation
of evidence and/or its argument), the court (usually
through its instructions to the jury), or both, broadens
the possible bases for conviction beyond those presented
by the grand jury.” United States v. Cusimano, 148 F.3d
824, 829 (7th Cir. 1998) (internal quotation marks omitted).
Because a constructive amendment violates the
Fifth Amendment, see United States v. Baker, 227 F.3d
955, 960 (7th Cir. 2000), a conviction under an amended
indictment should almost always be reversed. See
Cusimano, 148 F.3d at 828 n.3.
The government argues that the appearance of possession
with intent in the judgement is simply a clerical error
that does not run afoul of the Fifth Amendment. As the
government concedes (Appellee’s Resp. at 46), the judgment
contains an error—it erroneously lists possession
with intent as Count II, rather than attempted possession.
However, we agree that it was not plain error because
it did not affect a substantial right of the defendant and
it does not negatively affect the integrity of the proceedings
below. Additionally, a correction pursuant to
Rule 36 of the Federal Rules of Criminal Procedure can
adequately resolve the error in the judgment.
Crowder has highlighted a few occasions, in the course
of the entire trial and sentencing, when the government
referred to actual possession rather than attempted
possession. In this regard, we find the government’s
actions readily distinguishable from the conduct found to
constitute a constructive amendment in United States v.
Combs, 369 F.3d 925, 935 (6th Cir. 2004), which Crowder
cited for support. The court and parties in Combs continuously
mixed and matched the elements from two
different crimes in the indictment and jury instructions
and throughout the proceedings, leading to what the
court called a “hopelessly jumbled mess” that warranted
reversal. Id. at 933-34 (internal quotation marks omitted).
Our review of the record in this case reveals that both
the parties involved in the trial and the district court
understood that Crowder was indicted for attempted
possession, and there is nothing about the proof provided
at trial or the comments made by the government
that warrants reversal of the conviction on Count II.
Accordingly, Crowder’s appeal on this issue is denied.
D. Conspiracy and Attempt
Crowder argues that the district court erred by sentencing
him for both conspiracy and attempt because
doing so punishes him twice for the same criminal undertaking.
Because Crowder failed to raise this argument
with the district court, we review the district court’s
imposition of the sentence for plain error. LeShore, 543
F.3d at 939. Our review of the district court’s legal conclusions
is de novo. United States v. Henton, 374 F.3d 467,
469 (7th Cir. 2004).
Both the conspiracy charge and the attempted possession
charge arise under 21 U.S.C. § 846, which provides:
“Any person who attempts or conspires to commit any
offense defined in this subchapter shall be subject to the
same penalties as those prescribed for the offense, the
commission of which was the object of the attempt or
conspiracy.” Crowder does not dispute that a defendant
may be charged with and convicted for both conspiracy
and attempt under § 846. United States v. Carrera, 250
F. App’x 731, 733 (7th Cir. 2007) (“[I]t has long been
settled that a prosecution for both conspiracy and
attempt does not violate the Double Jeopardy Clause
because each crime requires proof of a fact that the
other does not.”). However, we have not had occasion to
consider whether imposing separate sentences for conspiracy
and attempt improperly punishes a defendant
twice for the same criminal conduct.
Crowder urges us to follow the Ninth Circuit and
hold that a defendant cannot be sentenced for both conspiracy
and attempt under § 846 if the charges arise out
of a single criminal act. In United States v. Touw, the
Ninth Circuit held that, although a defendant could be
charged and convicted of both conspiracy and attempt,
the court could only sentence him on one count if the
underlying criminal activity constituted a “single course
of action.” 769 F.2d 571, 574 (9th Cir. 1985); see also
United States v. Palafox, 764 F.2d 558, 560 (9th Cir. 1985).
But the three circuits to consider this issue after Touw
have unanimously rejected the Ninth Circuit’s “single
course of action” inquiry, choosing instead to apply the
Supreme Court’s Blockburger test at the sentencing stage
to determine whether separate sentences are appropriate.
See United States v. Boykins, 966 F.2d 1240, 1245
(8th Cir. 1992); United States v. Barrett, 933 F.2d 355, 360-61
(6th Cir. 1991); United States v. Savaiano, 843 F.2d 1280, 1293
(10th Cir. 1988). Under Blockburger—which answered the
question of whether a single act could constitute
multiple crimes under different statutes—a court must
determine “whether each provision requires proof of a
fact which the other does not.” Blockburger v. United
States, 284 U.S. 299, 304 (1932). Conspiracy and attempt
are clearly separate offenses under this inquiry: conspiracy
requires an agreement with another person,
whereas attempt may be completed alone. See United
States v. Corson, 579 F.3d 804, 810 (7th Cir. 2009) (noting
that conspiracy requires an agreement); United States v.
Gladish, 536 F.3d 646, 648 (7th Cir. 2008) (noting that
attempt requires only intent to complete the crime and
a substantial step toward completion).
We agree with the Sixth, Eighth, and Tenth Circuits
and now hold that the Blockburger test should be applied
at the sentencing phase to determine whether separate
sentences are appropriate for the crimes charged and
convicted, even where those crimes arise out of a single
criminal act. The Blockburger test is easily administered
and does not lend itself to a fact-specific inquiry that
inevitably will lead to unnecessary appeals and leave
parties and courts “without hope of much guidance.”
Savaiano, 843 F.2d at 1293. Furthermore, district courts
retain their discretion at sentencing to address situations
where sentencing on both counts may effect an excessive
or otherwise inappropriate sentence. Because we find
that a defendant may be sentenced for both conspiracy
and attempt, Crowder’s appeal on this issue is denied.
We find Crowder’s remaining claims without merit
and therefore decline to discuss them.
III. CONCLUSION
Maurice Crowder’s conviction and sentence are AFFIRMED.
12-7-09
Chicago Criminal Lawyer - Robert J Callahan
U.S. vs. Kirkpatrick
After William Kirkpatrick
was arrested for possessing a gun—something his
felony convictions made unlawful, see 18 U.S.C.
§922(g)(1)—he confessed to committing four drug-related
murders. He also told a cellmate that he had arranged a
contract hit on the federal agent who was conducting the
investigation. After investing more than 200 hours in
investigations, agents concluded that Kirkpatrick had
neither killed anyone nor arranged for the agent’s death.
Kirkpatrick pleaded guilty to the felon-in-possession
charge. The Sentencing Guidelines recommended a range
of 37 to 46 months. The judge gave him more—sensibly
so. Lying to a federal agent is a crime, see 18 U.S.C. §1001,
and so is threatening the life of a federal agent, see 18
U.S.C. §115(a)(1)(B). Enhancements on account of an
offender’s additional crimes are normal and proper. See
United States v. Watts, 519 U.S. 148 (1997).
Kirkpatrick contests not the fact of the enhancement
but its magnitude. The district court imposed a sentence
of 108 months’ imprisonment, more than double the top
of the Guidelines’ range. Kirkpatrick calls this unreasonable:
an extra five years in prison is an exceptionally
harsh sentence for wasting 200 hours of federal employees’
time. Whenever a court gives a sentence substantially
different from the Guidelines’ range, it risks creating
unwarranted sentencing disparities, in violation of 18
U.S.C. §3553(a)(6), for most other judges will give sentences
closer to the norm. That’s a major reason why
substantial variances from the Sentencing Commission’s
recommendations require careful thought. See Gall v.
United States, 552 U.S. 38 (2007). Cf. Spears v. United
States, 129 S. Ct. 840 (2009); Nelson v. United States, 129
S. Ct. 890 (2009).
When a variance is carefully explained, appellate
review is deferential. But when a sentence appears to be
chosen arbitrarily, it is problematic. That is the case here.
The judge said that Kirkpatrick’s lies, which put the
case agent in fear and wasted the time of agents who
had better things to do, justified a higher sentence. That
cannot be gainsaid. But five years’ extra time in prison? The
judge proceeded as if any sentence within the statutory
maximum (10 years) needs no explanation beyond
the conclusion that something more than the top of the
Guidelines’ range is in order. Yet every sentence must
be justified under the criteria in §3553(a), and the
district judge does not appear to have recognized that
leaping close to the statutory maximum creates a risk of
unwarranted disparity with how similar offenders
fare elsewhere—not only because this may overpunish
braggadocio, but also because it leaves little room for
the marginal deterrence of persons whose additional
deeds are more serious (for example, actually putting out
a contract on an agent’s life).
Before United States v. Booker, 543 U.S. 220 (2005), made
the Guidelines advisory, we had held that departures
must be explained in the Guidelines’ own terms. Thus if
the district court’s reason for an upward departure was
an additional crime, the departure could not exceed
the incremental sentence that would have been appropriate
had the defendant been charged with, and convicted
of, that additional crime. See United States v. Ferra, 900 F.2d
1057, 1062 (7th Cir. 1990); United States v. Horton, 98 F.3d
313, 317 (7th Cir. 1996); United States v. Rogers, 270 F.3d
1076, 1082 (7th Cir. 2001). Booker and its successors have
changed that rule. The Guidelines are no longer binding,
so a judge need not explain why a sentence differs from
the Sentencing Commission’s recommendation. See
United States v. Bartlett, 567 F.3d 901, 909 (7th Cir. 2009). It
is enough to explain why the sentence is appropriate
under the statutory criteria. But a judge still must start by
using the Guidelines to provide a benchmark that curtails
unwarranted disparities. See Gall, 552 U.S. at 49, and Rita
v. United States, 551 U.S. 338, 351 (2007). And this implies
that, when a judge believes that extra crimes justify extra
punishment, it is wise to see how much incremental
punishment the Sentencing Commission recommends.
Otherwise a particular sentence could get out of line
without the judge recognizing the problem. Before
giving an unusually high sentence on account of additional
crimes, the judge should know that it is unusually
high; without this knowledge the judge cannot give
proper weight to §3553(a)(6).
Kirkpatrick’s range of 37 to 46 months comes from his
offense level of 20 and criminal history category of II.
Suppose his lying were treated as incompatible with
accepting responsibility, costing Kirkpatrick the twolevel
reduction he had received. That would produce a
total of 22 and a recommended range of 46 to 57 months.
(Kirkpatrick’s offense level of 20 already included an
enhancement for obstructing justice.) If Kirkpatrick also
were charged with, and convicted of, lying to federal
agents and making threats designed to intimidate agents,
the offense level could reach 24 (depending on how
the grouping rule, U.S.S.G. §3D1.2, treated the §1001 and
§115 convictions, which have lower base levels than the
felon-in-possession crime). At offense level 24 and
criminal history category II, Kirkpatrick’s recommended
range would have been 57 to 71 months. There are some
other ways of classifying his additional acts that might
produce higher ranges, but level 24 seems most likely. To
get as high as level 28 (which corresponds to a range of
87 to 108 months), the district judge would have to find
that Kirkpatrick actually set out to have the case agent
murdered. Given the judge’s belief that Kirkpatrick was
all bark and no bite, however, the Sentencing Commission’s
recommendation is for a sentence substantially
below 108 months.
Booker and its successors mean that this recommendation
is not conclusive. But before exercising discretion
the judge should know what that recommendation is,
and thus how Kirkpatrick’s sentence will compare
with the punishment of similar persons elsewhere. The
Supreme Court has never questioned the principal goal
of the Sentencing Reform Act of 1984: to curtail the
variable sentencing caused by different judges’ perceptions
of the same criminal conduct. The allowable band of
variance is greater after Booker than before, but intellectual
discipline remains vital. “[A] motion to [a court’s] discretion
is a motion, not to its inclination, but to its judgment;
and its judgment is to be guided by sound legal principles.”
United States v. Burr, 25 F. Cas. 30, 35 (No. 14692d)
(C.C. Va. 1807) (Marshall, C.J.). We think that the
district court would benefit from the guidance offered by
the Sentencing Commission’s approach. The sentence
therefore is vacated, and the case is remanded for proceedings
consistent with this opinion.
12-14-09
Chicago Criminal Lawyer - Robert J Callahan
was arrested for possessing a gun—something his
felony convictions made unlawful, see 18 U.S.C.
§922(g)(1)—he confessed to committing four drug-related
murders. He also told a cellmate that he had arranged a
contract hit on the federal agent who was conducting the
investigation. After investing more than 200 hours in
investigations, agents concluded that Kirkpatrick had
neither killed anyone nor arranged for the agent’s death.
Kirkpatrick pleaded guilty to the felon-in-possession
charge. The Sentencing Guidelines recommended a range
of 37 to 46 months. The judge gave him more—sensibly
so. Lying to a federal agent is a crime, see 18 U.S.C. §1001,
and so is threatening the life of a federal agent, see 18
U.S.C. §115(a)(1)(B). Enhancements on account of an
offender’s additional crimes are normal and proper. See
United States v. Watts, 519 U.S. 148 (1997).
Kirkpatrick contests not the fact of the enhancement
but its magnitude. The district court imposed a sentence
of 108 months’ imprisonment, more than double the top
of the Guidelines’ range. Kirkpatrick calls this unreasonable:
an extra five years in prison is an exceptionally
harsh sentence for wasting 200 hours of federal employees’
time. Whenever a court gives a sentence substantially
different from the Guidelines’ range, it risks creating
unwarranted sentencing disparities, in violation of 18
U.S.C. §3553(a)(6), for most other judges will give sentences
closer to the norm. That’s a major reason why
substantial variances from the Sentencing Commission’s
recommendations require careful thought. See Gall v.
United States, 552 U.S. 38 (2007). Cf. Spears v. United
States, 129 S. Ct. 840 (2009); Nelson v. United States, 129
S. Ct. 890 (2009).
When a variance is carefully explained, appellate
review is deferential. But when a sentence appears to be
chosen arbitrarily, it is problematic. That is the case here.
The judge said that Kirkpatrick’s lies, which put the
case agent in fear and wasted the time of agents who
had better things to do, justified a higher sentence. That
cannot be gainsaid. But five years’ extra time in prison? The
judge proceeded as if any sentence within the statutory
maximum (10 years) needs no explanation beyond
the conclusion that something more than the top of the
Guidelines’ range is in order. Yet every sentence must
be justified under the criteria in §3553(a), and the
district judge does not appear to have recognized that
leaping close to the statutory maximum creates a risk of
unwarranted disparity with how similar offenders
fare elsewhere—not only because this may overpunish
braggadocio, but also because it leaves little room for
the marginal deterrence of persons whose additional
deeds are more serious (for example, actually putting out
a contract on an agent’s life).
Before United States v. Booker, 543 U.S. 220 (2005), made
the Guidelines advisory, we had held that departures
must be explained in the Guidelines’ own terms. Thus if
the district court’s reason for an upward departure was
an additional crime, the departure could not exceed
the incremental sentence that would have been appropriate
had the defendant been charged with, and convicted
of, that additional crime. See United States v. Ferra, 900 F.2d
1057, 1062 (7th Cir. 1990); United States v. Horton, 98 F.3d
313, 317 (7th Cir. 1996); United States v. Rogers, 270 F.3d
1076, 1082 (7th Cir. 2001). Booker and its successors have
changed that rule. The Guidelines are no longer binding,
so a judge need not explain why a sentence differs from
the Sentencing Commission’s recommendation. See
United States v. Bartlett, 567 F.3d 901, 909 (7th Cir. 2009). It
is enough to explain why the sentence is appropriate
under the statutory criteria. But a judge still must start by
using the Guidelines to provide a benchmark that curtails
unwarranted disparities. See Gall, 552 U.S. at 49, and Rita
v. United States, 551 U.S. 338, 351 (2007). And this implies
that, when a judge believes that extra crimes justify extra
punishment, it is wise to see how much incremental
punishment the Sentencing Commission recommends.
Otherwise a particular sentence could get out of line
without the judge recognizing the problem. Before
giving an unusually high sentence on account of additional
crimes, the judge should know that it is unusually
high; without this knowledge the judge cannot give
proper weight to §3553(a)(6).
Kirkpatrick’s range of 37 to 46 months comes from his
offense level of 20 and criminal history category of II.
Suppose his lying were treated as incompatible with
accepting responsibility, costing Kirkpatrick the twolevel
reduction he had received. That would produce a
total of 22 and a recommended range of 46 to 57 months.
(Kirkpatrick’s offense level of 20 already included an
enhancement for obstructing justice.) If Kirkpatrick also
were charged with, and convicted of, lying to federal
agents and making threats designed to intimidate agents,
the offense level could reach 24 (depending on how
the grouping rule, U.S.S.G. §3D1.2, treated the §1001 and
§115 convictions, which have lower base levels than the
felon-in-possession crime). At offense level 24 and
criminal history category II, Kirkpatrick’s recommended
range would have been 57 to 71 months. There are some
other ways of classifying his additional acts that might
produce higher ranges, but level 24 seems most likely. To
get as high as level 28 (which corresponds to a range of
87 to 108 months), the district judge would have to find
that Kirkpatrick actually set out to have the case agent
murdered. Given the judge’s belief that Kirkpatrick was
all bark and no bite, however, the Sentencing Commission’s
recommendation is for a sentence substantially
below 108 months.
Booker and its successors mean that this recommendation
is not conclusive. But before exercising discretion
the judge should know what that recommendation is,
and thus how Kirkpatrick’s sentence will compare
with the punishment of similar persons elsewhere. The
Supreme Court has never questioned the principal goal
of the Sentencing Reform Act of 1984: to curtail the
variable sentencing caused by different judges’ perceptions
of the same criminal conduct. The allowable band of
variance is greater after Booker than before, but intellectual
discipline remains vital. “[A] motion to [a court’s] discretion
is a motion, not to its inclination, but to its judgment;
and its judgment is to be guided by sound legal principles.”
United States v. Burr, 25 F. Cas. 30, 35 (No. 14692d)
(C.C. Va. 1807) (Marshall, C.J.). We think that the
district court would benefit from the guidance offered by
the Sentencing Commission’s approach. The sentence
therefore is vacated, and the case is remanded for proceedings
consistent with this opinion.
12-14-09
Chicago Criminal Lawyer - Robert J Callahan
U.S. vs. Villalpando
Christopher Villalpando pleaded
guilty to one count of possessing cocaine with intent to
distribute and was sentenced to 70 months in prison. In
his plea agreement, he reserved the right to appeal the
denial of a motion he filed to suppress incriminating
statements he gave to the police after he was arrested.
These statements led to the search of his apartment that
turned up the aforementioned cocaine. We agree with the
district court that the statements were voluntary and
therefore affirm Villalpando’s conviction.
I. Background
Christopher Villalpando, at the time a 21-year-old
college student on probation for Wisconsin state drug
convictions, was stopped by police after leaving his home
and consented to the search of his SUV. In the vehicle,
police found 3.6 grams of marijuana. At this point,
Villalpando faced a dilemma. If the presence of the drugs
in his vehicle were reported to his probation officer,
Villalpando could be subject to a probation hold, put
back in jail and unable to return to school. Similarly, if
he were locked up on the marijuana charge, he would be
forced to miss school (and his detention would come to
the attention of his probation officer). Denise Markham,
a Madison detective, interrogated Villalpando in her
squad car, after reading his rights and reminding him of
these potential problems.
After going over Villalpando’s potential probation
difficulties, Detective Markham indicated that she would
try and use her influence on the district attorney and
Villalpando’s probation officer to work out a situation
where they would offer leniency in return for Villalpando’s
help. After Villalpando equivocated, Markham continued
to ask for his help, repeatedly explaining that she
would intercede on his behalf and maintaining that her
interest was in another guy (presumably Villalpando’s
supplier). The police were not interested in the marijuana
in Villalpando’s car; instead they were interested in his
cocaine sales.
Ultimately, Villalpando made a series of admissions—
that there was marijuana in his apartment, that
there was money and a pistol in a safe in the apartment,
and finally that there were 9 ounces of cocaine in the
apartment. The police used this information to get a
search warrant for the apartment and Villalpando
pleaded guilty to possessing the cocaine found within.
Villalpando filed a motion to suppress the evidence,
arguing that his admissions were involuntary because
they were induced by Detective Markham’s false
promises, and therefore that the evidence found in his
house was the fruit of the involuntary admissions. The
magistrate judge’s report (adopted by the district court)
found his statements to be voluntary and denied the
motion. Villalpando then entered a conditional guilty
plea that preserved his right to appeal the denial of his
motion to suppress. He asks us to find his statements
involuntary and remand the case to the district court to
order the suppression of his inculpatory statements
and the search warrant they supported.
II. Standard of Review
We review the denial of a motion to suppress under
a dual standard. We review all factual determinations for
clear error, with special deference to the district court’s
credibility determinations. We review conclusions of law
de novo. United States v. Montgomery, 555 F.3d 623, 629
(7th Cir.), cert. denied, 129 S. Ct. 2413 (2009).
Villalpando argues that we should review the facts
here de novo since there was no evidentiary hearing
below and we, like the district court, have the entire
transcript of the interview forming the basis of his claim.
The government counters that the district court made
inferences from the transcript and that these are entitled
to our deference. The Supreme Court has held in
similar circumstances that the deferential standard of
review afforded to a trial court’s finding of fact is not
based solely on the trial court’s superior ability to
evaluate live witnesses but also on concerns of judicial
economy. “The rationale for deference to the original
finder of fact is not limited to the superiority of the trial
judge’s position to make determinations of credibility.
The trial judge’s major role is the determination of fact,
and with experience in fulfilling that role comes expertise.
Duplication of the trial judge’s efforts in the court of
appeals would very likely contribute only negligibly to the
accuracy of fact determination at a huge cost in diversion
of judicial resources.” Anderson v. City of Bessemer City,
N.C., 470 U.S. 564, 574-75 (1985); see also Ginsu Prods., Inc. v.
Dart Indus., Inc., 786 F.2d 260, 263 (7th Cir. 1986) (“Where
there are two permissible views of the evidence, the factfinder’s
choice between them cannot be clearly erroneous.
This is so even when the district court’s findings do not
rest on credibility determinations, but are based instead on
physical or documentary evidence or inferences from other
facts.”) (citations and emphases omitted).
Whether a statement is voluntary is a matter of law.
Montgomery, 555 F.3d at 629. We judge, however, the
voluntariness of a confession under the totality of the
circumstances, id., which of course means that we
consider whether the underlying facts as found by the
trial court support the conclusion that the confession
was voluntary, Schneckloth v. Bustamonte, 412 U.S. 218,
227 (1973). (While the Court in Schneckloth characterized
the conclusion we should draw as a factual one, we
recognized in United States v. D.F., 115 F.3d 413, 419 (7th
Cir. 1997) that the Supreme Court’s decision in Ornelas
v. United States, 517 U.S. 690 (1996), mandated that we
treat voluntariness as a matter of law mandating
de novo review.)
Accordingly, the defendant’s argument for a de novo
construction of the facts appears to be foreclosed by
both Supreme Court precedent and our previous cases.
As we proceed through the analysis, however, we will
see that the district court’s factual findings are unchallenged,
while the legal conclusions drawn from them
are well-supported. In other words, the standard of
review we employ has no effect on the outcome of this
case.
III. Analysis
An incriminating statement is voluntary if it is “the
product of rational intellect and free will and not the
result of physical abuse, psychological intimidation, or
deceptive interrogation tactics that have overcome the
defendant’s free will.” United States v. Dillon, 150 F.3d 754,
757 (7th Cir. 1998). Villalpando alleges that his free will
was overcome by the interrogating detective’s offer of
deceptive promises of leniency. To date, our cases
dealing with this issue have generally imagined the
hypothetical circumstance where a false promise
would make a confession involuntary even as we
found that such a circumstance did not exist in the case
at issue. See, e.g., United States v. Kontny, 238 F.3d 815, 818
(7th Cir. 2001); Sprosty v. Buchler, 79 F.3d 635, 646-47 (7th
Cir. 1997); United States v. Baldwin, 60 F.3d 363, 365 (7th
Cir. 1995), vacated and remanded on other grounds, 517 U.S.
1231 (1996); United States v. Rutledge, 900 F.2d 1127, 1130
(7th Cir. 1990). In these cases, we made clear that while
a false promise of leniency may render a statement involuntary,
police tactics short of the false promise are usually
permissible. “Trickery, deceit, even impersonation do not
render a confession inadmissible . . . unless government
agents make threats or promises.” Kontny, 238 F.3d at 817.
In a situation similar to Villalpando’s we found that a
confession induced by a promise “to bring cooperation by
the defendant to the attention of prosecutors [did] not
render a confession involuntary.” United States v. Charles,
476 F.3d 492, 497 (7th Cir. 2007). So, for Villalpando to
succeed here, he has to establish that his interrogator
made him a promise that was materially false and thus
sufficient to overbear his free will. See Montgomery, 555
F.3d at 630 (collecting cases and noting that not every
false promise constitutes coercion).
The reason we treat a false promise differently than
other somewhat deceptive police tactics (such as cajoling
and duplicity) is that a false promise has the unique
potential to make a decision to speak irrational and the
resulting confession unreliable. Police conduct that influences
a rational person who is innocent to view a false
confession as more beneficial than being honest is necessarily
coercive, because of the way it realigns a suspect’s
incentives during interrogation. “An empty prosecutorial
promise could prevent a suspect from making a rational
choice by distorting the alternatives among which the
person under interrogation is being asked to choose.” Id.
at 629 (quoting Sprosty, 79 F.3d at 646). The ultimate
result of a coercive interrogation is unreliable.
So, our task is to examine whether Villalpando was not
able to make a rational decision due to promises made by
the interrogating detective. As noted, we review
Villalpando’s decision to speak by considering the
“totality of the circumstances,” including “whether the
defendant was read his Miranda rights, the defendant’s
age, the duration and nature of the questioning, and
whether the defendant was punished physically.” Charles,
476 F.3d at 497. The burden is on the government to
prove the voluntariness of Villalpando’s statements by a
preponderance of the evidence. Lego v. Twomey, 404 U.S.
477, 489 (1972); United States v. Church, 970 F.2d 401, 404
(7th Cir. 1992). The evidence the government offers is
the entire transcript of the interview.
Villalpando’s claim is simple. He claims that the investigating
detective offered to keep him out of jail in exchange
for his cooperation. This is true—but only to a
limited extent. Unfortunately for Villalpando, the devil
is in the details. Villalpando argues that cooperation
meant simply revealing the presence of cocaine in his
house, but it is clear from the transcript that the conversation
between Villalpando and Detective Markham
concerned his future cooperation with the investigation
of his supplier. It was in the context of negotiating this
future cooperation that Villalpando chose to come
clean about what was in his apartment.
Our conclusion that the conversation was a negotiation
matches the findings of the district court. The
district court noted Villalpando’s familiarity with the
criminal justice system, the fact that he was not
physically threatened, and the first-name basis he was
on with the detective and considered the full circumstances
as demonstrating that Villalpando was negotiating
with the police. (The conversation between the
detective and the defendant was remarkably relaxed,
with both of them addressing each other by their first
names throughout.) We agree and find that his choice
to reveal the cocaine in his safe was rationally made
within the context of these negotiations.
Of course the scales in the negotiation weren’t evenly
balanced. As Vilalpando himself noted during the interrogation,
the police had leverage over him and were
seeking more. But, as the district court found, Villalpando
was looking for the best deal he could get, knowing that
he was facing potential jail time for the marijuana violation.
The explicit promises offered by the detective
were these: she would try to persuade the probation
officer not to revoke his probation and she would not
arrest him that night if he cooperated with the investigation
against the unnamed target.
Thus, the actual promises made during the interview
belie Villalpando’s contention that he struck a bargain
with the detective that would secure his release in return
for information about his own drug possession. The
conversation reveals that the detective sought a more
extensive cooperation from Villalpando and reveals that
her promises in regard to that cooperation were less
than solid. She offered, for instance “to go to bat” for
Villalpando and indicated that she would “sit down” with
the DEA, the police, and his probation officer to “work
this out.” She indicated that “we don’t have to charge
you.” None of these, standing alone or in the context of
the interview, represented a solid offer of leniency in
return solely for his admission to cocaine possession.
Furthermore, the detective’s statements that Villalpando
challenges are merely offers of her help, not the help of the
district attorney, the police, or Villalpando’s PO. (For
example, “I’m going to go to bat for you tonight.”)
Villalpando himself recognized that she was not offering
him anything specific beyond her efforts to intervene on
his behalf, saying toward the end of the interview, “But
the whole point is, Denise, that what you’re basically
telling me is that like—is you don’t know for sure if I’m
not going to be able to go to jail,” and earlier that “you’re
not telling me that I’m not going to jail, you’re just telling
me that you’re going to work at it.” It is far different
to offer to intercede on someone’s behalf than to promise
that such an intercession will be effective (which she
did not do). Villalpando also alleges that Markham’s
statement that he would “see how I uphold my end of the
bargain” is evidence that she had made promises to
Villalpando, promises that she would not keep. But as we
noted, the bargain to which Detective Markham
repeatedly alludes is one in which Villalpando offers
continued help to the police, not simply revealing the
presence of cocaine in his home.
Finally, Villalpando argues that the detective offered to
use her pull with the DA to make things easier for him.
Whether or not she did so, Charles appears to foreclose
that argument even if we accept, arguendo, that
Markham promised Villalpando the DA’s leniency. In
Charles, we considered an identical argument and
rejected it, finding that the defendant “apparently cooperated
with the police, but he saw that goodwill with the
state prosecutor turn to naught when the federal authorities
took over the case.” 476 F.3d at 497. The record before
us is silent on how this became a federal case, but
Charles makes clear that “promises to seek favorable
consideration from the prosecutor do not undermine the
voluntariness of a confession.” Id. at 498. “The circumstances
at the time of the statement determine whether
it was voluntary, not where the case was later prosecuted.”
Id. Here, the evidence shows that at the time of
Villalpando’s interrogation the detective honestly sought
to exploit him as an informant; Villalpando does not
argue that he made a deal to inform for the police and
that they later reneged on the deal.
IV. Conclusion
Villalpando was in trouble as soon as the police discovered
the marijuana in his vehicle. The interrogating
detective offered to help him, but her offer of help did not
amount to a false promise of leniency. In light of the
totality of the circumstances, the statements were voluntary
and the district court’s decision is AFFIRMED.
12-16-09
Chicago Criminal Lawyer - Robert J Callahan
guilty to one count of possessing cocaine with intent to
distribute and was sentenced to 70 months in prison. In
his plea agreement, he reserved the right to appeal the
denial of a motion he filed to suppress incriminating
statements he gave to the police after he was arrested.
These statements led to the search of his apartment that
turned up the aforementioned cocaine. We agree with the
district court that the statements were voluntary and
therefore affirm Villalpando’s conviction.
I. Background
Christopher Villalpando, at the time a 21-year-old
college student on probation for Wisconsin state drug
convictions, was stopped by police after leaving his home
and consented to the search of his SUV. In the vehicle,
police found 3.6 grams of marijuana. At this point,
Villalpando faced a dilemma. If the presence of the drugs
in his vehicle were reported to his probation officer,
Villalpando could be subject to a probation hold, put
back in jail and unable to return to school. Similarly, if
he were locked up on the marijuana charge, he would be
forced to miss school (and his detention would come to
the attention of his probation officer). Denise Markham,
a Madison detective, interrogated Villalpando in her
squad car, after reading his rights and reminding him of
these potential problems.
After going over Villalpando’s potential probation
difficulties, Detective Markham indicated that she would
try and use her influence on the district attorney and
Villalpando’s probation officer to work out a situation
where they would offer leniency in return for Villalpando’s
help. After Villalpando equivocated, Markham continued
to ask for his help, repeatedly explaining that she
would intercede on his behalf and maintaining that her
interest was in another guy (presumably Villalpando’s
supplier). The police were not interested in the marijuana
in Villalpando’s car; instead they were interested in his
cocaine sales.
Ultimately, Villalpando made a series of admissions—
that there was marijuana in his apartment, that
there was money and a pistol in a safe in the apartment,
and finally that there were 9 ounces of cocaine in the
apartment. The police used this information to get a
search warrant for the apartment and Villalpando
pleaded guilty to possessing the cocaine found within.
Villalpando filed a motion to suppress the evidence,
arguing that his admissions were involuntary because
they were induced by Detective Markham’s false
promises, and therefore that the evidence found in his
house was the fruit of the involuntary admissions. The
magistrate judge’s report (adopted by the district court)
found his statements to be voluntary and denied the
motion. Villalpando then entered a conditional guilty
plea that preserved his right to appeal the denial of his
motion to suppress. He asks us to find his statements
involuntary and remand the case to the district court to
order the suppression of his inculpatory statements
and the search warrant they supported.
II. Standard of Review
We review the denial of a motion to suppress under
a dual standard. We review all factual determinations for
clear error, with special deference to the district court’s
credibility determinations. We review conclusions of law
de novo. United States v. Montgomery, 555 F.3d 623, 629
(7th Cir.), cert. denied, 129 S. Ct. 2413 (2009).
Villalpando argues that we should review the facts
here de novo since there was no evidentiary hearing
below and we, like the district court, have the entire
transcript of the interview forming the basis of his claim.
The government counters that the district court made
inferences from the transcript and that these are entitled
to our deference. The Supreme Court has held in
similar circumstances that the deferential standard of
review afforded to a trial court’s finding of fact is not
based solely on the trial court’s superior ability to
evaluate live witnesses but also on concerns of judicial
economy. “The rationale for deference to the original
finder of fact is not limited to the superiority of the trial
judge’s position to make determinations of credibility.
The trial judge’s major role is the determination of fact,
and with experience in fulfilling that role comes expertise.
Duplication of the trial judge’s efforts in the court of
appeals would very likely contribute only negligibly to the
accuracy of fact determination at a huge cost in diversion
of judicial resources.” Anderson v. City of Bessemer City,
N.C., 470 U.S. 564, 574-75 (1985); see also Ginsu Prods., Inc. v.
Dart Indus., Inc., 786 F.2d 260, 263 (7th Cir. 1986) (“Where
there are two permissible views of the evidence, the factfinder’s
choice between them cannot be clearly erroneous.
This is so even when the district court’s findings do not
rest on credibility determinations, but are based instead on
physical or documentary evidence or inferences from other
facts.”) (citations and emphases omitted).
Whether a statement is voluntary is a matter of law.
Montgomery, 555 F.3d at 629. We judge, however, the
voluntariness of a confession under the totality of the
circumstances, id., which of course means that we
consider whether the underlying facts as found by the
trial court support the conclusion that the confession
was voluntary, Schneckloth v. Bustamonte, 412 U.S. 218,
227 (1973). (While the Court in Schneckloth characterized
the conclusion we should draw as a factual one, we
recognized in United States v. D.F., 115 F.3d 413, 419 (7th
Cir. 1997) that the Supreme Court’s decision in Ornelas
v. United States, 517 U.S. 690 (1996), mandated that we
treat voluntariness as a matter of law mandating
de novo review.)
Accordingly, the defendant’s argument for a de novo
construction of the facts appears to be foreclosed by
both Supreme Court precedent and our previous cases.
As we proceed through the analysis, however, we will
see that the district court’s factual findings are unchallenged,
while the legal conclusions drawn from them
are well-supported. In other words, the standard of
review we employ has no effect on the outcome of this
case.
III. Analysis
An incriminating statement is voluntary if it is “the
product of rational intellect and free will and not the
result of physical abuse, psychological intimidation, or
deceptive interrogation tactics that have overcome the
defendant’s free will.” United States v. Dillon, 150 F.3d 754,
757 (7th Cir. 1998). Villalpando alleges that his free will
was overcome by the interrogating detective’s offer of
deceptive promises of leniency. To date, our cases
dealing with this issue have generally imagined the
hypothetical circumstance where a false promise
would make a confession involuntary even as we
found that such a circumstance did not exist in the case
at issue. See, e.g., United States v. Kontny, 238 F.3d 815, 818
(7th Cir. 2001); Sprosty v. Buchler, 79 F.3d 635, 646-47 (7th
Cir. 1997); United States v. Baldwin, 60 F.3d 363, 365 (7th
Cir. 1995), vacated and remanded on other grounds, 517 U.S.
1231 (1996); United States v. Rutledge, 900 F.2d 1127, 1130
(7th Cir. 1990). In these cases, we made clear that while
a false promise of leniency may render a statement involuntary,
police tactics short of the false promise are usually
permissible. “Trickery, deceit, even impersonation do not
render a confession inadmissible . . . unless government
agents make threats or promises.” Kontny, 238 F.3d at 817.
In a situation similar to Villalpando’s we found that a
confession induced by a promise “to bring cooperation by
the defendant to the attention of prosecutors [did] not
render a confession involuntary.” United States v. Charles,
476 F.3d 492, 497 (7th Cir. 2007). So, for Villalpando to
succeed here, he has to establish that his interrogator
made him a promise that was materially false and thus
sufficient to overbear his free will. See Montgomery, 555
F.3d at 630 (collecting cases and noting that not every
false promise constitutes coercion).
The reason we treat a false promise differently than
other somewhat deceptive police tactics (such as cajoling
and duplicity) is that a false promise has the unique
potential to make a decision to speak irrational and the
resulting confession unreliable. Police conduct that influences
a rational person who is innocent to view a false
confession as more beneficial than being honest is necessarily
coercive, because of the way it realigns a suspect’s
incentives during interrogation. “An empty prosecutorial
promise could prevent a suspect from making a rational
choice by distorting the alternatives among which the
person under interrogation is being asked to choose.” Id.
at 629 (quoting Sprosty, 79 F.3d at 646). The ultimate
result of a coercive interrogation is unreliable.
So, our task is to examine whether Villalpando was not
able to make a rational decision due to promises made by
the interrogating detective. As noted, we review
Villalpando’s decision to speak by considering the
“totality of the circumstances,” including “whether the
defendant was read his Miranda rights, the defendant’s
age, the duration and nature of the questioning, and
whether the defendant was punished physically.” Charles,
476 F.3d at 497. The burden is on the government to
prove the voluntariness of Villalpando’s statements by a
preponderance of the evidence. Lego v. Twomey, 404 U.S.
477, 489 (1972); United States v. Church, 970 F.2d 401, 404
(7th Cir. 1992). The evidence the government offers is
the entire transcript of the interview.
Villalpando’s claim is simple. He claims that the investigating
detective offered to keep him out of jail in exchange
for his cooperation. This is true—but only to a
limited extent. Unfortunately for Villalpando, the devil
is in the details. Villalpando argues that cooperation
meant simply revealing the presence of cocaine in his
house, but it is clear from the transcript that the conversation
between Villalpando and Detective Markham
concerned his future cooperation with the investigation
of his supplier. It was in the context of negotiating this
future cooperation that Villalpando chose to come
clean about what was in his apartment.
Our conclusion that the conversation was a negotiation
matches the findings of the district court. The
district court noted Villalpando’s familiarity with the
criminal justice system, the fact that he was not
physically threatened, and the first-name basis he was
on with the detective and considered the full circumstances
as demonstrating that Villalpando was negotiating
with the police. (The conversation between the
detective and the defendant was remarkably relaxed,
with both of them addressing each other by their first
names throughout.) We agree and find that his choice
to reveal the cocaine in his safe was rationally made
within the context of these negotiations.
Of course the scales in the negotiation weren’t evenly
balanced. As Vilalpando himself noted during the interrogation,
the police had leverage over him and were
seeking more. But, as the district court found, Villalpando
was looking for the best deal he could get, knowing that
he was facing potential jail time for the marijuana violation.
The explicit promises offered by the detective
were these: she would try to persuade the probation
officer not to revoke his probation and she would not
arrest him that night if he cooperated with the investigation
against the unnamed target.
Thus, the actual promises made during the interview
belie Villalpando’s contention that he struck a bargain
with the detective that would secure his release in return
for information about his own drug possession. The
conversation reveals that the detective sought a more
extensive cooperation from Villalpando and reveals that
her promises in regard to that cooperation were less
than solid. She offered, for instance “to go to bat” for
Villalpando and indicated that she would “sit down” with
the DEA, the police, and his probation officer to “work
this out.” She indicated that “we don’t have to charge
you.” None of these, standing alone or in the context of
the interview, represented a solid offer of leniency in
return solely for his admission to cocaine possession.
Furthermore, the detective’s statements that Villalpando
challenges are merely offers of her help, not the help of the
district attorney, the police, or Villalpando’s PO. (For
example, “I’m going to go to bat for you tonight.”)
Villalpando himself recognized that she was not offering
him anything specific beyond her efforts to intervene on
his behalf, saying toward the end of the interview, “But
the whole point is, Denise, that what you’re basically
telling me is that like—is you don’t know for sure if I’m
not going to be able to go to jail,” and earlier that “you’re
not telling me that I’m not going to jail, you’re just telling
me that you’re going to work at it.” It is far different
to offer to intercede on someone’s behalf than to promise
that such an intercession will be effective (which she
did not do). Villalpando also alleges that Markham’s
statement that he would “see how I uphold my end of the
bargain” is evidence that she had made promises to
Villalpando, promises that she would not keep. But as we
noted, the bargain to which Detective Markham
repeatedly alludes is one in which Villalpando offers
continued help to the police, not simply revealing the
presence of cocaine in his home.
Finally, Villalpando argues that the detective offered to
use her pull with the DA to make things easier for him.
Whether or not she did so, Charles appears to foreclose
that argument even if we accept, arguendo, that
Markham promised Villalpando the DA’s leniency. In
Charles, we considered an identical argument and
rejected it, finding that the defendant “apparently cooperated
with the police, but he saw that goodwill with the
state prosecutor turn to naught when the federal authorities
took over the case.” 476 F.3d at 497. The record before
us is silent on how this became a federal case, but
Charles makes clear that “promises to seek favorable
consideration from the prosecutor do not undermine the
voluntariness of a confession.” Id. at 498. “The circumstances
at the time of the statement determine whether
it was voluntary, not where the case was later prosecuted.”
Id. Here, the evidence shows that at the time of
Villalpando’s interrogation the detective honestly sought
to exploit him as an informant; Villalpando does not
argue that he made a deal to inform for the police and
that they later reneged on the deal.
IV. Conclusion
Villalpando was in trouble as soon as the police discovered
the marijuana in his vehicle. The interrogating
detective offered to help him, but her offer of help did not
amount to a false promise of leniency. In light of the
totality of the circumstances, the statements were voluntary
and the district court’s decision is AFFIRMED.
12-16-09
Chicago Criminal Lawyer - Robert J Callahan
U.S. vs. Corner
On October 2, 2007, Vincent
Corner pleaded guilty to possessing with intent to distribute
five grams or more of cocaine base. The district court
sentenced him to 188 months’ imprisonment. Mr. Corner
now challenges the district court’s decision to classify
him as a career offender under section 4B1.1 of the
United States Sentencing Guidelines and maintains that
his sentence is unreasonable in light of Kimbrough v.
United States, 552 U.S. 85 (2007). For the reasons set forth
in this opinion, we affirm the judgment of the district
court.
I
BACKGROUND
On May 31, 2007, the Madison, Wisconsin Police Department
and the Dane County Narcotics and Gang Task
Force conducted surveillance at a Red Roof Inn in Madison.
The police had information that Mr. Corner and his
girlfriend, who were wanted for state probation violations,
were staying at the motel. When Mr. Corner and a
woman left the motel in a car, the police stopped their
vehicle. The police arrested Mr. Corner, searched
him and found over $2,600 in cash and a bag containing
11.31 grams of cocaine base.
A grand jury in the Western District of Wisconsin issued
a one-count indictment on June 27, 2007, charging
Mr. Corner with possessing with intent to distribute
five grams or more of cocaine base. Mr. Corner pleaded
guilty on October 2, 2008. The United States Probation
Office filed a presentence investigation report, which
recommended that Mr. Corner be sentenced as a career
offender and calculated Mr. Corner’s total offense level
to be 31 and his advisory guidelines range to be 188 to
235 months’ imprisonment.
At the sentencing hearing, the district court calculated
Mr. Corner’s base offense level at 24 because the
offense involved more than five grams, but less than
twenty grams, of cocaine base. See U.S.S.G. § 2D1.1(c)(8).1
The district court found, however, that, based on his
prior convictions for maintaining a drug trafficking
place and for criminal trespass to a dwelling, Mr. Corner
was a career offender under U.S.S.G. §§ 4B1.1 and 4B1.2.2
Consequently, he received a criminal history category of
VI and an adjusted offense level of 34.3 The court
decreased his offense level by three points for his acceptance
of responsibility, which yielded a total offense
level of 31. The district court sentenced Mr. Corner to
188 months’ imprisonment, which was at the bottom of
the Guidelines range.
During the hearing, Mr. Corner invited the district
court’s attention to Kimbrough, which had been decided
two weeks earlier; he noted the disparity between the
Guidelines’ treatment of crack and powder cocaine offenses.
Mr. Corner submitted that, in light of this
disparity, he should receive a lower sentence. The
district court, however, did not address this argument.
Mr. Corner subsequently filed this appeal.
II
DISCUSSION
Mr. Corner challenges his classification as a career
offender and the length of his sentence based on the
crack/powder disparity addressed in Kimbrough. We
review de novo whether the district court erred in sentencing
Mr. Corner as a career offender. See United States
v. Kindle, 453 F.3d 438, 440 (7th Cir. 2006). We also
review de novo whether an offense constitutes a “crime
of violence” for sentencing purposes. Id.
A.
Mr. Corner maintains that the district court erred in
classifying him as a career offender because criminal
trespass to a dwelling is not a “crime of violence”
under the residual clause of U.S.S.G. § 4B1.2(a)(2). The
Wisconsin “criminal trespass to a dwelling” statute
provides: “Whoever intentionally enters the dwelling of
another without the consent of some person lawfully
upon the premises, under circumstances tending to
create or provoke a breach of the peace, is guilty of a
Class A misdemeanor.” Wis. Stat. § 943.14.4 Mr. Corner
maintains that, although a breach of the peace can
occur from conduct that puts the victim “in fear of bodily
harm,” it also can result from any conduct that merely
disturbs or disrupts “the peace and sanctity of the
home.” Reply Br. 6-7; see also State v. Sykes, 695 N.W.2d
277, 283 (Wis. 2005). For example, Mr. Corner notes that
a breach of the peace could “consist of profane and
abusive language.” Appellant’s Br. 12 (quoting Wisconsin
Jury Instructions—Criminal, Vol. II § 1437 (2002)). He
contends that, because criminal trespass encompasses
such a broad range of conduct, it cannot present generally
a serious potential risk of physical injury to another.
Mr. Corner contrasts criminal trespass with
burglary and emphasizes that the motive for entering
a dwelling when trespassing is not to steal or to commit
a felony. Compare Wis. Stat. § 943.14 (criminal trespass to
dwellings), with Wis. Stat. § 943.10 (burglary). Finally,
Mr. Corner notes that two other courts of appeals have
determined, in unpublished dispositions, that criminal
trespass is not a crime of violence.5
We take a categorical approach to determining whether
an offense is a crime of violence and therefore may not
inquire into the conduct of a particular offender. Chambers
v. United States, 129 S. Ct. 687, 690 (2009). The relevant
portion of the Sentencing Guidelines states:
The term “crime of violence” means any offense
under federal or state law, punishable by imprisonment
for a term exceeding one year, that—
. . .
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of
physical injury to another.
U.S.S.G. § 4B1.2(a). Because criminal trespass to a
dwelling is not one of the offenses listed in the provision,
we must determine whether commission of the crime
“presents a serious potential risk of physical injury to
another.” Id. In determining whether such a risk exists,
we shall give significant weight to reliable empirical data.
See United States v. Templeton, 543 F.3d 378, 381 (7th Cir.
2008) (“But when a statute inquires into risk, data
trump judicial guesses.”). Although the record does
not contain data regarding the likelihood of violence accompanying
the commission of criminal trespass to a
dwelling, we previously have held that the similar crime
of residential entry, under Indiana state law, “is a crime
of violence because of the serious risk that an occupant
could be injured.” United States v. Gardner, 397 F.3d
1021, 1024 (7th Cir. 2005). Recently, in light of the
Supreme Court’s holding in Begay v. United States, 128 S.
Ct. 1581, 1586 (2008), we reaffirmed Gardner’s holding.
See United States v. Hampton, 585 F.3d 1033, 1042-44 (7th
Cir. 2009).6 We observed in Gardner that entering a residence
without permission, as in the case of burglary,
could lead to an encounter with an occupant, and thereby
could create a serious potential risk of injury. Gardner, 397
F.3d at 1024. The same is true for an offender engaging
in criminal trespass to a dwelling.
The fact that a crime creates a serious potential risk of
injury, however, is not enough to make it a crime of
violence. In Begay, 128 S. Ct. at 1586, the Supreme Court
considered whether drunk driving is a violent felony
under section 924(e)(2)(B)(ii) of the Armed Career
Criminal Act (“ACCA”).7 Although the Court acknowledged
that drunk driving presents a serious potential risk
of physical injury, the Court nevertheless concluded that
the offense does not fall under that provision. Id. at 1588.
The Court held that the residual clause applies only if a
crime is similar to the listed offenses. Id. at 1584-85. Burglary,
arson, extortion and the use of explosives, said the
Court, are all “purposeful, ‘violent,’ and ‘aggressive’
conduct,” whereas drunk driving is not. Id. at 1586. It
observed that, unlike the crimes listed in the statute,
driving under the influence “need not be purposeful or
deliberate.” Id. at 1587.
Unlike drunk driving, which is significantly different
from the crimes listed in the provision, criminal trespass
to a dwelling is similar to burglary. Both are purposeful
property offenses that involve the deliberate entry into
a dwelling without the permission of the owner. Both
offenses are also violent and aggressive in nature because
the perpetrator could encounter the occupants of the
dwelling and provoke a confrontation. See Chambers, 129
S. Ct. at 691-92. The fact that the latter offense does not
include an intent to steal or to commit a felony does not
lessen the risk of such an encounter. Consequently, we
hold that criminal trespass to a dwelling is a crime of
violence and conclude that Mr. Corner was sentenced
properly as a career offender.
B.
We now turn to whether this case should be remanded
for resentencing. In Kimbrough, the Supreme Court acknowledged
that section 2D1.1 of the Sentencing Guidelines
contained a disparity between the sentences of
persons charged with trafficking powder cocaine and of
those charged with trafficking crack cocaine, creating
a 100:1 crack/powder ratio in sentencing. The Court
observed that this disparity can produce disproportionately
harsh sanctions for crack cocaine offenders and
held that “it would not be an abuse of discretion for a
district court to conclude when sentencing a particular
defendant that the crack/powder disparity yields a
sentence ‘greater than necessary’ to achieve [18 U.S.C.]
§ 3553(a)’s purposes, even in a mine-run case.”
Kimbrough, 552 U.S. at 110. Consequently, we remand for
resentencing those cases in which the defendant was
sentenced under section 2D1.1 and in which the issue
of the crack/powder disparity has been preserved. United
States v. Bruce, 550 F.3d 668, 675 (7th Cir. 2008) (citing
United States v. Padilla, 520 F.3d 766, 774 (7th Cir. 2008)).
Mr. Corner and the Government both submit that,
although the district court had the discretion under
Kimbrough to impose a below-guidelines sentence based
upon a policy disagreement with the career offender
Sentencing Guidelines, it may not have realized that it
had such discretion. Both parties observe that the
statutory maximum for possession with intent to
distribute five to fifty grams of crack cocaine is forty
years’ imprisonment, see 21 U.S.C. § 841(b)(1)(B)(iii),
resulting in a career offender offense level of 34, see
U.S.S.G. § 4B1.1(b)(B).9 In contrast, had Mr. Corner possessed
an equivalent amount of powder cocaine, the
statutory maximum would have been twenty years’
imprisonment, see 21 U.S.C. § 841(b)(1)(C), resulting in a
career offender offense level of only 32, see U.S.S.G.
§ 4B1.1(b)(C). Consequently, given that Mr. Corner has
been assigned a criminal history category of VI
and received a three-level decrease for acceptance of
responsibility, his guidelines range would have been 151-
188 months’ imprisonment for powder cocaine, as
opposed to 188-235 months’ imprisonment for crack
cocaine.
The Supreme Court has not addressed whether
Kimbrough applies to crack offenders sentenced as
career offenders under U.S.S.G. § 4B1.1(b). Although the
Government makes a powerful argument to the contrary,
we are constrained by the decision of this court in United
States v. Welton, 583 F.3d 494, 497 (7th Cir. 2009). In that
case, this court held that defendants who are sentenced
as career offenders are not entitled to a sentencing remand.
Rather, career offenders’ base offense levels
track the statutory maximums of their convictions. While
we cannot give relief to Mr. Corner under these circumstances,
the Government is, of course, free to seek
further redress from what it believes to be an injustice
by recommending an appropriate commutation of the
sentence by the Executive Branch.
Conclusion
For the foregoing reasons, we must affirm the judgment
of the district court.
AFFIRMED
12-17-09
Chicago Criminal Lawyer - Robert J Callahan
Corner pleaded guilty to possessing with intent to distribute
five grams or more of cocaine base. The district court
sentenced him to 188 months’ imprisonment. Mr. Corner
now challenges the district court’s decision to classify
him as a career offender under section 4B1.1 of the
United States Sentencing Guidelines and maintains that
his sentence is unreasonable in light of Kimbrough v.
United States, 552 U.S. 85 (2007). For the reasons set forth
in this opinion, we affirm the judgment of the district
court.
I
BACKGROUND
On May 31, 2007, the Madison, Wisconsin Police Department
and the Dane County Narcotics and Gang Task
Force conducted surveillance at a Red Roof Inn in Madison.
The police had information that Mr. Corner and his
girlfriend, who were wanted for state probation violations,
were staying at the motel. When Mr. Corner and a
woman left the motel in a car, the police stopped their
vehicle. The police arrested Mr. Corner, searched
him and found over $2,600 in cash and a bag containing
11.31 grams of cocaine base.
A grand jury in the Western District of Wisconsin issued
a one-count indictment on June 27, 2007, charging
Mr. Corner with possessing with intent to distribute
five grams or more of cocaine base. Mr. Corner pleaded
guilty on October 2, 2008. The United States Probation
Office filed a presentence investigation report, which
recommended that Mr. Corner be sentenced as a career
offender and calculated Mr. Corner’s total offense level
to be 31 and his advisory guidelines range to be 188 to
235 months’ imprisonment.
At the sentencing hearing, the district court calculated
Mr. Corner’s base offense level at 24 because the
offense involved more than five grams, but less than
twenty grams, of cocaine base. See U.S.S.G. § 2D1.1(c)(8).1
The district court found, however, that, based on his
prior convictions for maintaining a drug trafficking
place and for criminal trespass to a dwelling, Mr. Corner
was a career offender under U.S.S.G. §§ 4B1.1 and 4B1.2.2
Consequently, he received a criminal history category of
VI and an adjusted offense level of 34.3 The court
decreased his offense level by three points for his acceptance
of responsibility, which yielded a total offense
level of 31. The district court sentenced Mr. Corner to
188 months’ imprisonment, which was at the bottom of
the Guidelines range.
During the hearing, Mr. Corner invited the district
court’s attention to Kimbrough, which had been decided
two weeks earlier; he noted the disparity between the
Guidelines’ treatment of crack and powder cocaine offenses.
Mr. Corner submitted that, in light of this
disparity, he should receive a lower sentence. The
district court, however, did not address this argument.
Mr. Corner subsequently filed this appeal.
II
DISCUSSION
Mr. Corner challenges his classification as a career
offender and the length of his sentence based on the
crack/powder disparity addressed in Kimbrough. We
review de novo whether the district court erred in sentencing
Mr. Corner as a career offender. See United States
v. Kindle, 453 F.3d 438, 440 (7th Cir. 2006). We also
review de novo whether an offense constitutes a “crime
of violence” for sentencing purposes. Id.
A.
Mr. Corner maintains that the district court erred in
classifying him as a career offender because criminal
trespass to a dwelling is not a “crime of violence”
under the residual clause of U.S.S.G. § 4B1.2(a)(2). The
Wisconsin “criminal trespass to a dwelling” statute
provides: “Whoever intentionally enters the dwelling of
another without the consent of some person lawfully
upon the premises, under circumstances tending to
create or provoke a breach of the peace, is guilty of a
Class A misdemeanor.” Wis. Stat. § 943.14.4 Mr. Corner
maintains that, although a breach of the peace can
occur from conduct that puts the victim “in fear of bodily
harm,” it also can result from any conduct that merely
disturbs or disrupts “the peace and sanctity of the
home.” Reply Br. 6-7; see also State v. Sykes, 695 N.W.2d
277, 283 (Wis. 2005). For example, Mr. Corner notes that
a breach of the peace could “consist of profane and
abusive language.” Appellant’s Br. 12 (quoting Wisconsin
Jury Instructions—Criminal, Vol. II § 1437 (2002)). He
contends that, because criminal trespass encompasses
such a broad range of conduct, it cannot present generally
a serious potential risk of physical injury to another.
Mr. Corner contrasts criminal trespass with
burglary and emphasizes that the motive for entering
a dwelling when trespassing is not to steal or to commit
a felony. Compare Wis. Stat. § 943.14 (criminal trespass to
dwellings), with Wis. Stat. § 943.10 (burglary). Finally,
Mr. Corner notes that two other courts of appeals have
determined, in unpublished dispositions, that criminal
trespass is not a crime of violence.5
We take a categorical approach to determining whether
an offense is a crime of violence and therefore may not
inquire into the conduct of a particular offender. Chambers
v. United States, 129 S. Ct. 687, 690 (2009). The relevant
portion of the Sentencing Guidelines states:
The term “crime of violence” means any offense
under federal or state law, punishable by imprisonment
for a term exceeding one year, that—
. . .
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of
physical injury to another.
U.S.S.G. § 4B1.2(a). Because criminal trespass to a
dwelling is not one of the offenses listed in the provision,
we must determine whether commission of the crime
“presents a serious potential risk of physical injury to
another.” Id. In determining whether such a risk exists,
we shall give significant weight to reliable empirical data.
See United States v. Templeton, 543 F.3d 378, 381 (7th Cir.
2008) (“But when a statute inquires into risk, data
trump judicial guesses.”). Although the record does
not contain data regarding the likelihood of violence accompanying
the commission of criminal trespass to a
dwelling, we previously have held that the similar crime
of residential entry, under Indiana state law, “is a crime
of violence because of the serious risk that an occupant
could be injured.” United States v. Gardner, 397 F.3d
1021, 1024 (7th Cir. 2005). Recently, in light of the
Supreme Court’s holding in Begay v. United States, 128 S.
Ct. 1581, 1586 (2008), we reaffirmed Gardner’s holding.
See United States v. Hampton, 585 F.3d 1033, 1042-44 (7th
Cir. 2009).6 We observed in Gardner that entering a residence
without permission, as in the case of burglary,
could lead to an encounter with an occupant, and thereby
could create a serious potential risk of injury. Gardner, 397
F.3d at 1024. The same is true for an offender engaging
in criminal trespass to a dwelling.
The fact that a crime creates a serious potential risk of
injury, however, is not enough to make it a crime of
violence. In Begay, 128 S. Ct. at 1586, the Supreme Court
considered whether drunk driving is a violent felony
under section 924(e)(2)(B)(ii) of the Armed Career
Criminal Act (“ACCA”).7 Although the Court acknowledged
that drunk driving presents a serious potential risk
of physical injury, the Court nevertheless concluded that
the offense does not fall under that provision. Id. at 1588.
The Court held that the residual clause applies only if a
crime is similar to the listed offenses. Id. at 1584-85. Burglary,
arson, extortion and the use of explosives, said the
Court, are all “purposeful, ‘violent,’ and ‘aggressive’
conduct,” whereas drunk driving is not. Id. at 1586. It
observed that, unlike the crimes listed in the statute,
driving under the influence “need not be purposeful or
deliberate.” Id. at 1587.
Unlike drunk driving, which is significantly different
from the crimes listed in the provision, criminal trespass
to a dwelling is similar to burglary. Both are purposeful
property offenses that involve the deliberate entry into
a dwelling without the permission of the owner. Both
offenses are also violent and aggressive in nature because
the perpetrator could encounter the occupants of the
dwelling and provoke a confrontation. See Chambers, 129
S. Ct. at 691-92. The fact that the latter offense does not
include an intent to steal or to commit a felony does not
lessen the risk of such an encounter. Consequently, we
hold that criminal trespass to a dwelling is a crime of
violence and conclude that Mr. Corner was sentenced
properly as a career offender.
B.
We now turn to whether this case should be remanded
for resentencing. In Kimbrough, the Supreme Court acknowledged
that section 2D1.1 of the Sentencing Guidelines
contained a disparity between the sentences of
persons charged with trafficking powder cocaine and of
those charged with trafficking crack cocaine, creating
a 100:1 crack/powder ratio in sentencing. The Court
observed that this disparity can produce disproportionately
harsh sanctions for crack cocaine offenders and
held that “it would not be an abuse of discretion for a
district court to conclude when sentencing a particular
defendant that the crack/powder disparity yields a
sentence ‘greater than necessary’ to achieve [18 U.S.C.]
§ 3553(a)’s purposes, even in a mine-run case.”
Kimbrough, 552 U.S. at 110. Consequently, we remand for
resentencing those cases in which the defendant was
sentenced under section 2D1.1 and in which the issue
of the crack/powder disparity has been preserved. United
States v. Bruce, 550 F.3d 668, 675 (7th Cir. 2008) (citing
United States v. Padilla, 520 F.3d 766, 774 (7th Cir. 2008)).
Mr. Corner and the Government both submit that,
although the district court had the discretion under
Kimbrough to impose a below-guidelines sentence based
upon a policy disagreement with the career offender
Sentencing Guidelines, it may not have realized that it
had such discretion. Both parties observe that the
statutory maximum for possession with intent to
distribute five to fifty grams of crack cocaine is forty
years’ imprisonment, see 21 U.S.C. § 841(b)(1)(B)(iii),
resulting in a career offender offense level of 34, see
U.S.S.G. § 4B1.1(b)(B).9 In contrast, had Mr. Corner possessed
an equivalent amount of powder cocaine, the
statutory maximum would have been twenty years’
imprisonment, see 21 U.S.C. § 841(b)(1)(C), resulting in a
career offender offense level of only 32, see U.S.S.G.
§ 4B1.1(b)(C). Consequently, given that Mr. Corner has
been assigned a criminal history category of VI
and received a three-level decrease for acceptance of
responsibility, his guidelines range would have been 151-
188 months’ imprisonment for powder cocaine, as
opposed to 188-235 months’ imprisonment for crack
cocaine.
The Supreme Court has not addressed whether
Kimbrough applies to crack offenders sentenced as
career offenders under U.S.S.G. § 4B1.1(b). Although the
Government makes a powerful argument to the contrary,
we are constrained by the decision of this court in United
States v. Welton, 583 F.3d 494, 497 (7th Cir. 2009). In that
case, this court held that defendants who are sentenced
as career offenders are not entitled to a sentencing remand.
Rather, career offenders’ base offense levels
track the statutory maximums of their convictions. While
we cannot give relief to Mr. Corner under these circumstances,
the Government is, of course, free to seek
further redress from what it believes to be an injustice
by recommending an appropriate commutation of the
sentence by the Executive Branch.
Conclusion
For the foregoing reasons, we must affirm the judgment
of the district court.
AFFIRMED
12-17-09
Chicago Criminal Lawyer - Robert J Callahan
Subscribe to:
Posts (Atom)
Posts
