During the time he was
stationed in Kuwait, Peleti Peleti, Jr., then a Chief
Warrant Officer in the U.S. Army, accepted a bag containing
$50,000 from a local contractor who sought
Peleti’s help in obtaining a contract to supply flatware
and paper products to the U.S. Army in Iraq. Peleti
pleaded guilty to bribery and smuggling bulk cash into
the United States, but he later changed his mind and
tried to persuade the district court to allow him to withdraw
his guilty plea. We conclude that the district court
did not abuse its discretion by denying the motion; the
factual basis for the bribery plea establishes that Peleti
committed bribery, Peleti received effective assistance
of counsel, and any ineffective assistance did not
prejudice Peleti. We therefore affirm.
I
In 2005, Peleti served as the Army Theater Food
Service Advisor for Kuwait, Iraq, and Afghanistan. Stationed
in Kuwait, Peleti advised his superiors on the
food service program, monitored existing food service
contracts, and helped develop new contracts. One of the
suppliers Peleti worked with was Gulf Catering Company.
Peleti developed a relationship with the company’s
Chief Executive Officer, Ibraham. (Whether Ibraham is the
CEO’s first or last name is unclear from the record; we
therefore refer to him simply as Ibraham and adopt the
spelling used by Peleti in his written statement.)
Ibraham sought a contract with the U.S. Army to
supply paper products and plastic flatware in Iraq. Peleti
recommended to his superiors that the U.S. Army
award the contract, but his superiors informed Peleti that
a 2001 contract with Kellogg, Brown & Root Services, Inc.,
prohibited the U.S. Army from contracting with another
company. Peleti relayed this information to Ibraham
and told him that “there was no way” Gulf Catering
Company could get the desired contract. Peleti also told
Ibraham that he would be leaving his position in Kuwait
in December 2005.
Before Peleti left Kuwait, however, he and Ibraham met
privately in Ibraham’s office. Our knowledge of what
occurred during that meeting comes from a written
statement Peleti gave to investigators on July 25, 2006, and
Peleti’s admissions to the district court during his plea
colloquy. Peleti’s appeal accepts these statements as
true, and so we do the same.
The meeting occurred in the first week of December 2005,
less than two weeks before Peleti left Kuwait on
December 14, 2005. At the meeting, Peleti told Ibraham
several times that Gulf Catering Company would not
receive the contract for paper products and plastic flatware.
Ibraham listened, but persisted in asking Peleti,
“Well, see if you can continue.” Ibraham then gave Peleti
a bag containing $50,000. Peleti accepted the money.
Peleti never told Ibraham that Peleti could secure the
contract for Gulf Catering Company, but at the same
time, Peleti knew that Ibraham gave him the money
in order to influence Peleti to do what he could to get
the contract for Ibraham. This is clear from a question
the district court asked Peleti: “At the time you received
the money, actually got it in your hand from him, was
it your belief that he was giving this to you for the
purpose of influencing your official actions?” Peleti
answered, “Yes, Your Honor.”
Peleti maintained contact with Ibraham after Peleti left
Kuwait. The district court asked Peleti if he had phone
calls with Ibraham after receiving the $50,000 and Peleti
answered yes. He referred to “conversations” with
Ibraham and stated that during one of those conversations
he told Ibraham that Gulf Catering Company
still could not receive the contract.
The government charged Peleti with receipt of a bribe
by a public official, in violation of 18 U.S.C. § 201(b)(2)(A),
smuggling bulk cash into the United States, in violation
of 31 U.S.C. § 5332, and criminal forfeiture. On February
9, 2007, while represented by attorney Donovan
Robertson, Peleti waived indictment and pleaded guilty
to all three counts.
After the district court accepted the guilty plea, but
before sentencing, Peleti replaced Robertson with his
current attorneys. Peleti then filed a motion under FED. R.
CRIM. P. 11(d)(2)(B) to withdraw his guilty plea. That
motion offered two “fair and just reasons” to withdraw
the plea: (1) there was no factual basis for the guilty plea
to bribery, as required by FED. R. CRIM. P. 11(b)(3); and
(2) the plea was involuntary because Peleti received
ineffective assistance of counsel—specifically, Robertson
failed to consider whether Peleti committed the offense
of accepting an illegal gratuity rather than bribery and
failed to investigate the charges.
The district court denied Peleti’s motion to withdraw his
guilty plea. It found that Peleti, by accepting the money
during a private meeting with Ibraham after Ibraham
asked Peleti, “Well, see if you can continue,” conveyed
to Ibraham that the money would influence Peleti’s
official actions. The court explained its ruling as follows:
[I]t seems very clear to me that when he took that
money, he was in effect saying to that guy, “In spite
of what I’ve said concerning this situation, you’re
asking me to continue seeing what I can do to try to
influence this decision and I’m accepting this money
under those conditions.” That seems to me to be a
reasonable inference.
Because the facts show that Peleti represented to Ibraham
that the money would influence his official action, the
court reasoned, Peleti’s guilty plea had a basis in fact.
The district court considered the ineffective assistance
claim a closer call, but it ultimately held that Robertson
provided adequate assistance for both the bribery count
and the smuggling count. The court heard testimony
from Robertson and Peleti, but it rejected Peleti’s testimony
as “totally lacking in credibility” while accepting
Robertson’s testimony as credible. Because Peleti does not
challenge this finding on appeal, the factual summary
below is based on Robertson’s account.
By the time Robertson was appointed to represent Peleti
in August 2006, Peleti had already given his written
statement to investigators. In that statement, Peleti makes
several damning admissions, including the following:
he experienced “numerous approaches from the contractors
themselves for Bribery for monies and Gifts”; he
received gifts, including “approximately $8,000 [sic] Iraqi
Dinar in exchange for [a] new contract”; he met with
Ibraham to discuss a flatware and paper product contract
and developed a relationship with Ibraham; he received
$50,000 from Ibraham in cash; he stored the cash in his
barracks and spent $30,000 on credit card bills, $10,000
on jewelry for his wife, and the rest on vacations and
his family. In addition, Peleti expressed regret at his
actions and stated that he “will fully cooperate with the
investigation at hand.” Robertson considered this statement
powerful evidence against Peleti, and the district
court agreed. Robertson also learned from the government
that it possessed a copy of a currency card signed
by Peleti upon his return to the United States on December
14, 2005, on which Peleti swears to bringing less
than $10,000 into the United States. The government
also had a credit card statement showing a $15,000 payment
to Peleti’s wife’s credit card on December 31, 2005.
Robertson had several meetings with Peleti. During
these meetings, Peleti affirmed the written statement
and said that he wanted to continue in that “mode.”
Robertson considered whether the statement could be
suppressed, but saw no legal basis for such a motion.
(Peleti does not question this conclusion.) Peleti admitted
to Robertson that he carried about $40,000 in
cash into the United States1 and indicated that when he
took the money from Ibraham, he knew Ibraham intended
the money to influence an official action—specifically, to
influence Peleti to do what he could to get Ibraham the
food service contract.
After speaking with Peleti, Robertson read the bribery
statute and the Seventh Circuit model jury instructions
for bribery. Those materials, taken together, indicate
that a defendant commits bribery if he accepts money
knowing that the donor intends the money to influence
an official act. Based on his research, his discussions
with Peleti, and the written statement, Robertson concluded
that Peleti had committed the crimes of bribery
and smuggling of cash, and that a jury would likely
convict Peleti on both counts. Robertson discussed his
evaluation of the facts and the likely outcome of a trial
with Peleti and recommended that Peleti plead guilty.
Robertson also discussed on at least 15 different
occasions the effect of taking the case to trial compared
with pleading guilty. He explained to Peleti how a reduction
for the acceptance of responsibility would reduce
Peleti’s sentencing range. In addition, Robertson repeatedly
assured Peleti that if Peleti decided to go to trial,
Robertson would aggressively represent him.
During the plea hearing, the district court read the
charges and portions of the plea agreement to Peleti. It
then asked Peleti if he had “fully discussed those charges
and the case in general, including any possible defenses
that you might have, with Mr. Robertson” and if Peleti
was fully satisfied with Robertson’s representation and
advice. Peleti answered in the affirmative to both questions.
The district court found Robertson’s representation
adequate because of Peleti’s admissions in the written
statement, Peleti’s expressed desire to plead guilty, and
Peleti’s admissions of guilt to Robertson. The court acknowledged
Robertson’s limited factual investigation,
but reasoned that Robertson reasonably focused his
efforts on getting the best plea. Furthermore, the district
court found that Peleti failed to show prejudice from
Robertson’s alleged ineffective assistance because it
found that Peleti would have pleaded guilty anyway.
Based on these findings, the district court denied Peleti’s
motion to withdraw the guilty plea. It later sentenced
Peleti to 28 months’ imprisonment, a $7,500 fine, and a
$200 special assessment. It also ordered Peleti to forfeit
to the government certain personal property and entered
a money judgment in favor of the United States for
$50,000. Peleti appeals the denial of his motion to withdraw
his guilty plea.
II
A court may allow a defendant to withdraw a guilty plea
before sentencing if the defendant presents a “fair and
just reason” for doing so. FED. R. CRIM. P. 11(d)(2)(B). We
review the district court’s decision not to allow the withdrawal
of a guilty plea for an abuse of discretion and
review the court’s factual findings for clear error. United
States v. Carroll, 412 F.3d 787, 792 (7th Cir. 2005).
As we mentioned above, Peleti offered two “fair and just
reasons” for withdrawing his guilty plea: (1) no factual
basis establishing that Peleti committed bribery (as opposed
to taking an illegal gratuity); and (2) ineffective
assistance of counsel. We first address Peleti’s challenge
to the factual basis.
To ensure that a defendant’s actions match the crime to
which she pleads guilty, Rule 11(b)(3) requires a court
to “determine that there is a factual basis for the plea.”
Peleti argues that his guilty plea for bribery lacks a sufficient
factual basis because it does not establish that
Peleti intended to convey to Ibraham that the $50,000
would influence an official action.
Under 18 U.S.C. § 201(b)(2)(A), a public official is guilty
of bribery if she
directly or indirectly, corruptly demands, seeks,
receives, accepts, or agrees to receive or accept anything
of value personally or for any other person
or entity, in return for: (A) being influenced in the
performance of any official act . . . .
To commit bribery, the public official must receive the
money “corruptly.” United States v. Arroyo, 581 F.2d 649,
657 (7th Cir. 1978). An officer can act corruptly
without intending to be influenced; the officer need
only “solicit or receive the money on the representation
that the money is for the purpose of influencing his
performance of some official act.” Id. at 652; see also
United States v. Meyers, 692 F.2d 823, 841-42 (2nd Cir.
1982) (noting that “ ‘being influenced’ does not describe
the [recipient’s] true intent, it describes the intention he
conveys to the briber in exchange for the bribe” and
holding that an official commits bribery if he gives
“false promises of assistance to people he believed were
offering him money to influence his official actions”).
Peleti acknowledges in his brief that if“he misled the bribepayor
to believe he was going to do a specific official act
in exchange for something in value,” then he committed
bribery. Peleti argues, however, that he did no
such thing and that there exists no factual basis for
finding otherwise.
The problem for Peleti is that the district court disagreed
and explicitly found that Peleti, by accepting the money
after Ibraham asked Peleti to see if he “can continue,”
conveyed to Ibraham that Peleti would “continue” his
efforts to secure the contract for Ibraham in exchange
for the money. Peleti argues that this finding is clearly
erroneous because Peleti repeatedly told Ibraham that
“there was no way” Gulf Catering Company could
receive the contract and told Ibraham that Peleti was
leaving his position in Kuwait later that month. But
Peleti admitted during his plea that he knew, when he
accepted the money, that Ibraham gave Peleti the
money for the purpose of influencing Peleti’s official
actions. Under these circumstances, the act of accepting
the money speaks louder than Peleti’s words. Whether
Peleti actually intended to be influenced is irrelevant,
so long as Peleti conveyed to Ibraham that the money
would influence him. We see nothing clearly erroneous
about the district court’s finding.
Peleti attempts to turn his appeal into a question of
law by arguing that Peleti must have intended to convey
to Ibraham that the money would influence an official
act and that the facts do not establish such an intent. We
do not see the record this way. The district court was
entitled to find that Peleti intended to indicate to
Ibraham that the money would influence Peleti and that
Peleti would be an advocate for Ibraham’s company.
And the record shows that the district court made such a
finding, albeit less explicitly than it might have. Perhaps
Peleti’s argument would succeed under different circumstances,
such as where the acceptance of the money
did not convey to the briber an intent to be influenced,
but those circumstances do not exist here.
We now turn to Peleti’s claim of ineffective assistance
of counsel. Ineffective assistance of counsel can render
a plea agreement involuntary, and in such a case, it is a
valid basis for withdrawing a guilty plea. United States v.
Lundy, 484 F.3d 480, 484 (7th Cir. 2007). Indeed, a defendant
may withdraw a plea even after it has been accepted,
as Peleti’s was, if he can show any “fair and just reason for
requesting the withdrawal.” FED. R. CRIM. P. 11(d)(2)(B).
Peleti argues only that Robertson provided constitutionally
ineffective assistance, and so we address that argument
rather than any other possible “fair and just reason” he
might have had to withdraw the plea. (We note as well
that Peleti’s decision to raise this point on direct appeal
means that it will not be available to him later. Once
we have rejected a Sixth Amendment claim on direct
appeal, the law of the case doctrine bars the defendant
from raising it in a motion under 28 U.S.C. § 2255. See
United States v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995).)
To show ineffective assistance of counsel, a defendant
“must show both that the counsel’s performance was
objectively unreasonable and that, but for counsel’s errors,
the defendant would not have pled guilty.” Lundy, 484
F.3d at 484. A reasonably competent attorney “will
attempt to learn all of the relevant facts of the case, make
an estimate of a likely sentence, and communicate the
results of that analysis to the client before allowing the
client to plead guilty.” Bethel v. United States, 458 F.3d
711, 717 (7th Cir. 2006).
For the bribery count, Peleti argues that Robertson
failed to advise Peleti of a possible defense: claiming
that Peleti accepted an illegal gratuity in violation of 18
U.S.C. § 201(c)(1)(B) rather than a bribe covered by
§ 201(b)(2)(A). To commit bribery, “there must be a quid
pro quo—a specific intent to give or receive something of
value in exchange for an official act.” United States v. Sun-
Diamond Growers of Cal., 526 U.S. 398, 404-05 (1999) (emphasis
in original). In contrast, the illegal gratuity
offense requires only that the gratuity be accepted “for
or because of” an official act. Thus, an official commits
the illegal gratuity offense by accepting money as a thankyou
for past help or without a quid pro quo. See
§ 201(c)(1)(B). Peleti points out that in his written statement,
he admits accepting the money, but he does not
say what the money was for—it could have been a gift
for Peleti’s past assistance or a gift untied to any
specific official action. Robertson never explored alternative
explanations for the $50,000 with Peleti, Peleti
argues, and Robertson therefore failed to discuss a potentially
successful defense with Peleti.
Perhaps Robertson could have devoted more effort to
exploring with Peleti the strategy of characterizing the
payment as an illegal gift, but Robertson’s assistance
was effective under the circumstances. Robertson evaluated
the powerful evidence against Peleti, most notably
Peleti’s written admissions, read the bribery statute and
the relevant Seventh Circuit jury instructions, and spoke
with Peleti. According to the jury instructions and
Peleti’s admissions to Robertson, Peleti committed bribery.
Additionally, Peleti repeatedly expressed his desire to
cooperate with the government, in both his written statement
and the meeting with Robertson. Robertson discussed
his evaluation of the evidence and possible defenses with
Peleti and repeatedly assured Peleti that he would aggressively
represent him if Peleti decided to go to trial. Furthermore,
Peleti testified during the plea hearing that he was
fully satisfied with Robertson’s representation and had
discussed the plea agreement and possible defenses with
him. Choosing to believe Peleti’s statements under oath
during the plea hearing is within the district court’s
discretion. The court was also entitled to conclude that
Robertson was making a strategic choice to direct his
efforts where he did, rather than by pursuing other
legal theories including one based on the illegal gratuity
statute.
Peleti also asserts that Robertson failed to investigate
the evidence adequately. Like the district court, we acknowledge
that it might have been better if Robertson
had conducted his own investigation rather than rely on
the government’s explanation of the evidence of bribery,
but we evaluate Robertson’s performance based on all
the circumstances he faced. Given the written statement,
Peleti’s admissions to Robertson, and Peleti’s expressed
desire to cooperate, we have no quarrel with the
district court’s holding that Robertson reasonably decided
to focus his efforts on obtaining the best possible
plea agreement.
With respect to the smuggling count, Peleti argues
that Robertson’s assistance was ineffective because Robertson
did no investigation beyond asking the government
about its evidence. Although this seems minimal
at first glance, once again a look at the broader circumstances
convinces us that Robertson’s failure to do more
did not amount to ineffective performance. After all, the
government had a devastating case against Peleti, including
(1) the written statement in which Peleti admitted to
receiving $50,000 in cash in early December, (2) the currency
card on which Peleti swore to carrying less than
$10,000 into the United States on December 14, 2005,
(3) Peleti’s admission to spending $30,000 of the money
on credit cards, and (4) evidence of a credit card payment
of $15,000 on December 31, 2005. While some inferences
are required to come up with the conclusion
that Peleti smuggled the cash into the United States, it is
telling that Peleti has offered no alternative explanation.
As Peleti admitted his guilt to Robertson, Robertson
reasonably concluded that further investigation was
unlikely to turn up evidence exonerating Peleti. Peleti says
only that Robertson should have advised Peleti to put the
government to its standard of proof, but, given Peleti’s admission
of guilt to Robertson, Robertson could not
have offered testimony by Peleti or Peleti’s wife to
explain what happened to the money or where the
credit card payment came from. Given these circumstances,
Robertson’s decision not to conduct further
investigation and to advise Peleti to plead guilty was
within constitutional standards.
Even if Peleti successfully persuaded us that Robertson
provided ineffective assistance, Peleti would have to
show a reasonable probability that he would not have
pleaded guilty but for Robertson’s ineffective assistance.
The district court found that Peleti would have pleaded
guilty, and we review that finding for clear error. Peleti
asserts that it is reasonably likely that he would have not
pleaded guilty, but he does not explain why the district
court’s finding to the contrary is clearly erroneous. All
he can do is return to his point about the difference
between taking a bribe and taking an illegal gratuity,
and his insistence that he would not have pleaded guilty
to the former if he had known about the latter. But the
district court agreed with Robertson that the written
statement was powerful proof of guilt of bribery, and that
finding is not clearly erroneous. And in the final analysis,
the district court was entitled to hold Peleti to his word
at the initial guilty plea proceeding, complete with the
inference that his actions met the requirements of the
bribery statute.
* * *
We AFFIRM the district court’s decision to deny Peleti’s
motion to withdraw his guilty plea.
Chicago Criminal Lawyer - Robert J Callahan
Monday, August 10, 2009
U.S. vs. High
John High was convicted of possessing
a firearm, despite prior convictions that made it
unlawful for him to do so. 18 U.S.C. §922(g)(1). He was
sentenced as an armed career criminal, see 18 U.S.C.
§924(e), after the district judge found that he had four
prior convictions for serious drug offenses or violent
felonies. His sentence of 212 months’ imprisonment is
below the Guideline range for a person with his criminal
history, but above the 10-year maximum sentence for
someone who violates §922(g) and does not qualify as
an armed career criminal. 18 U.S.C. §924(a)(2).
High contends that the evidence is insufficient; to
the contrary, it is strong. He also maintains that the
gun should have been suppressed as the product of an
unlawful search, but the district judge rightly rejected
this argument. High was living with his grandmother,
who consented to the officers’ entry. Relying on the
consent, officers came in but did not begin searching
until a warrant had been issued. That the officers
secured the premises, and prevented the destruction of
evidence, before obtaining a warrant, does not justify
exclusion. See, e.g., Segura v. United States, 468 U.S. 796
(1984).
Sentencing is the only substantial appellate question.
The district court relied on four of High’s convictions to
conclude that he is an armed career criminal: (1) possession
of cocaine with intent to distribute; (2) recklessly
endangering safety; (3) failure to report to jail for imprisonment;
and (4) battery as a repeat offender. High concedes
that the first of these counts under 18 U.S.C.
§924(e)(2)(A)(ii) because it is a “serious drug offense”; he
contests the other three. The failure-to-report crime
cannot be counted, given Chambers v. United States, 129
S. Ct. 687 (2009). The status of the battery conviction may
be decided in Johnson v. United States, cert. granted, 129
S. Ct. 1315 (2009) (to be argued Oct. 6, 2009). High’s
argument is that, because state law treats battery as a
misdemeanor unless the defendant is a recidivist, it
cannot be a violent felony for federal purposes. That line
of argument is cut short by United States v. Rodriquez, 128
S. Ct. 1783 (2008), which holds that recidivist enhancements
count when classifying a conviction as a misdemeanor
or a felony. Whether felony battery meets the
standards of Begay v. United States, 128 S. Ct. 1581 (2008), is
the question posed in Johnson. We need not attempt to
anticipate the answer, because High’s conviction for
recklessly endangering safety does not count, and it
takes three countable convictions to support sentencing
as an armed career criminal.
United States v. Woods, No. 07-3851 (7th Cir. Aug. 5,
2009), reaches two conclusions bearing on the treatment
of the endangerment conviction. Woods holds, first, that
courts must not look beyond the statutory ingredients of
a crime, unless the offense is “divisible” into parts, some
of which meet the standard of §924(e) and some of which
don’t. Only when an offense is divisible may a court
examine the charging papers and plea colloquy to
classify the conviction. Woods holds, second, that as a
rule an offense in which the mental state is recklessness
does not meet the standards established by the
Supreme Court in Begay. Those conclusions control here.
High was convicted of second-degree recklessly endangering
safety, in violation of Wis. Stat. §941.30(2).
This statute provides: “Whoever recklessly endangers
another’s safety is guilty of a Class G felony.” This statute
is not divisible, as Woods uses that word. And, given how
Woods treats recklessness offenses, lack of divisibility
means that a conviction does not necessarily signify any
intentional, violent, and aggressive act of the sort that
Begay requires. A person who twirls a gun, intending to
show his skill but recklessly permitting it to fire, violates
§941.30(2) without intending to shoot, even if no one
is injured. (Recklessness in Wisconsin law means the
creation of an unreasonable and substantial risk of great
bodily harm, if the actor is aware of the risk. See Wis. Stat.
§939.24(1). It does not require intent to harm anyone.)
Likewise a person who deliberately shoots at a passing
car and misses violates this law. The fact that the same
statute covers both situations, and is not divisible, means
that a conviction does not establish a violent felony,
because (given Woods) the sentencing judge is forbidden
to look at the charging papers and plea colloquy to see
in which way a person violated the state statute.
High did not object at sentencing to the classification of
his reckless-endangerment conviction. But Begay, which
was decided after his sentencing, changed the rules, and
under the holding of Woods the district court’s classification
of this offense was plain error. See United States v.
Olano, 507 U.S. 725 (1993) (spelling out the standards
for plain-error review). The judgment of conviction is
affirmed, and the case is remanded with instructions
to impose a sentence no greater than 120 months. We
know from the record of the state proceeding that
High fired a gun at an occupied car; he may have been
trying to hit the occupant (who escaped harm) or may
have been trying to hit the tires. The district judge is free
to consider those facts when deciding what sentence
to impose, see 18 U.S.C. §3661, because the events that
led to the reckless endangerment conviction reflect what
kind of person High is and how dangerous he may be in
the future, but the court cannot treat him as an armed
career criminal.
Chicago Criminal Lawyer - Robert J Callahan
a firearm, despite prior convictions that made it
unlawful for him to do so. 18 U.S.C. §922(g)(1). He was
sentenced as an armed career criminal, see 18 U.S.C.
§924(e), after the district judge found that he had four
prior convictions for serious drug offenses or violent
felonies. His sentence of 212 months’ imprisonment is
below the Guideline range for a person with his criminal
history, but above the 10-year maximum sentence for
someone who violates §922(g) and does not qualify as
an armed career criminal. 18 U.S.C. §924(a)(2).
High contends that the evidence is insufficient; to
the contrary, it is strong. He also maintains that the
gun should have been suppressed as the product of an
unlawful search, but the district judge rightly rejected
this argument. High was living with his grandmother,
who consented to the officers’ entry. Relying on the
consent, officers came in but did not begin searching
until a warrant had been issued. That the officers
secured the premises, and prevented the destruction of
evidence, before obtaining a warrant, does not justify
exclusion. See, e.g., Segura v. United States, 468 U.S. 796
(1984).
Sentencing is the only substantial appellate question.
The district court relied on four of High’s convictions to
conclude that he is an armed career criminal: (1) possession
of cocaine with intent to distribute; (2) recklessly
endangering safety; (3) failure to report to jail for imprisonment;
and (4) battery as a repeat offender. High concedes
that the first of these counts under 18 U.S.C.
§924(e)(2)(A)(ii) because it is a “serious drug offense”; he
contests the other three. The failure-to-report crime
cannot be counted, given Chambers v. United States, 129
S. Ct. 687 (2009). The status of the battery conviction may
be decided in Johnson v. United States, cert. granted, 129
S. Ct. 1315 (2009) (to be argued Oct. 6, 2009). High’s
argument is that, because state law treats battery as a
misdemeanor unless the defendant is a recidivist, it
cannot be a violent felony for federal purposes. That line
of argument is cut short by United States v. Rodriquez, 128
S. Ct. 1783 (2008), which holds that recidivist enhancements
count when classifying a conviction as a misdemeanor
or a felony. Whether felony battery meets the
standards of Begay v. United States, 128 S. Ct. 1581 (2008), is
the question posed in Johnson. We need not attempt to
anticipate the answer, because High’s conviction for
recklessly endangering safety does not count, and it
takes three countable convictions to support sentencing
as an armed career criminal.
United States v. Woods, No. 07-3851 (7th Cir. Aug. 5,
2009), reaches two conclusions bearing on the treatment
of the endangerment conviction. Woods holds, first, that
courts must not look beyond the statutory ingredients of
a crime, unless the offense is “divisible” into parts, some
of which meet the standard of §924(e) and some of which
don’t. Only when an offense is divisible may a court
examine the charging papers and plea colloquy to
classify the conviction. Woods holds, second, that as a
rule an offense in which the mental state is recklessness
does not meet the standards established by the
Supreme Court in Begay. Those conclusions control here.
High was convicted of second-degree recklessly endangering
safety, in violation of Wis. Stat. §941.30(2).
This statute provides: “Whoever recklessly endangers
another’s safety is guilty of a Class G felony.” This statute
is not divisible, as Woods uses that word. And, given how
Woods treats recklessness offenses, lack of divisibility
means that a conviction does not necessarily signify any
intentional, violent, and aggressive act of the sort that
Begay requires. A person who twirls a gun, intending to
show his skill but recklessly permitting it to fire, violates
§941.30(2) without intending to shoot, even if no one
is injured. (Recklessness in Wisconsin law means the
creation of an unreasonable and substantial risk of great
bodily harm, if the actor is aware of the risk. See Wis. Stat.
§939.24(1). It does not require intent to harm anyone.)
Likewise a person who deliberately shoots at a passing
car and misses violates this law. The fact that the same
statute covers both situations, and is not divisible, means
that a conviction does not establish a violent felony,
because (given Woods) the sentencing judge is forbidden
to look at the charging papers and plea colloquy to see
in which way a person violated the state statute.
High did not object at sentencing to the classification of
his reckless-endangerment conviction. But Begay, which
was decided after his sentencing, changed the rules, and
under the holding of Woods the district court’s classification
of this offense was plain error. See United States v.
Olano, 507 U.S. 725 (1993) (spelling out the standards
for plain-error review). The judgment of conviction is
affirmed, and the case is remanded with instructions
to impose a sentence no greater than 120 months. We
know from the record of the state proceeding that
High fired a gun at an occupied car; he may have been
trying to hit the occupant (who escaped harm) or may
have been trying to hit the tires. The district judge is free
to consider those facts when deciding what sentence
to impose, see 18 U.S.C. §3661, because the events that
led to the reckless endangerment conviction reflect what
kind of person High is and how dangerous he may be in
the future, but the court cannot treat him as an armed
career criminal.
Chicago Criminal Lawyer - Robert J Callahan
U.S. vs. Patterson
James Patterson appeals several
issues related to his sentence for violation of 18 U.S.C.
§ 2423(a), which prohibits transporting a minor in interstate
commerce with intent that the minor engage in
prostitution. Among the issues presented is one of first
impression in this circuit: whether 18 U.S.C. § 2423(a) is
a “crime of violence” such that application of the career
offender guideline is appropriate in this case.
For the reasons explained below, we affirm the judgment
of the district court except with regard to the
district court’s enhancement of Patterson’s sentence for
“use of a computer.” On that issue we reverse and remand
for further proceedings consistent with this opinion.
I. Background
A. Factual Background
In 2005, James Patterson, a forty-two year old man,
met a fourteen year old girl (the “victim”) in Memphis,
Tennessee. The victim had run away from a group
home and had no money. Patterson encouraged her to
engage in prostitution. The victim began working as a
prostitute in a Memphis crack house for a pimp named
Larry Nelson. About two weeks later, Patterson asked
the victim if she would like to travel to Chicago. He told
her that in Chicago, prostitution was internet-based and
that she would not have to engage in “street-walking” to
solicit customers. Defendant’s counsel admitted to the
district court that defendant “held out” internet prostitution
as “something more attractive” than what the
victim had been doing at the time. The victim agreed to
travel with Patterson to Chicago.
On October 31, 2005, Patterson drove the victim
from Memphis to Schaumburg, Illinois. For two weeks,
the victim worked as a prostitute for Patterson. During
this time, the victim gave Patterson all of the money she
earned and stayed in his hotel. Another minor female
working as a prostitute for defendant’s half-brother
posted prostitution advertisements for the victim on
internet sites such as Craigslist. These advertisements
contained naked photos of the victim. The other
prostitute arranged the victim’s calls to johns through
the internet and drove her to calls as well.
Patterson used physical violence against the victim
several times. On one occasion, Patterson shoved the
victim against a wall and slapped her. On another occasion,
Patterson punched the victim, knocking her off a
chair, and stomped on her while she was on the floor.
After this incident, Patterson told the victim to take a
shower and prepare to work the street. On a call later
that night, a john, who saw bruises on the victim,
offered to “rescue her.” The victim went to live with the
man’s son. From the son’s house, she called her mother
in Memphis. The victim’s family had apparently been
looking for her and had spread the word in Memphis
that she was a missing and endangered child.
B. Procedural Background
Patterson was charged with knowingly transporting a
minor in interstate commere with the intent that the
minor engage in prostitution in violation of 18 U.S.C.
§ 2423(a). Defendant pled guilty pursuant to a written
plea agreement. The agreement explained that the Guidelines
“in effect at the time of sentencing” were to determine
Patterson’s sentence. The agreement anticipated
that Patterson would have an offense level of 28 and a
criminal history category of IV, which resulted in an
“anticipated advisory Sentencing Guidelines range [of] 110
to 137 months’ imprisonment.” These calculations were
“based on the facts now known to the government.”
Additionally, the agreement stated:
Defendant and his attorney and the government
acknowledge that the above Guideline calculations
are preliminary in nature, and are non-binding predictions
upon which neither party is entitled to rely.
Defendant understands that further review of the
facts or the applicable legal principles may lead the
government to conclude that different or additional
Guideline provisions apply in this case. Defendant
understands that the Probation Office will conduct
its own investigation and that the Court ultimately
determines the facts and law relevant to sentencing,
and that the Court’s determinations govern the final
Guideline calculation. Accordingly, the validity of
this Agreement is not contingent upon the probation
officer’s or the Court’s concurrence with the above
calculations and defendant shall not have a right to
withdraw his plea on the basis of the Court’s rejection
of these calculations.
The agreement also stated, in another section, that
“[d]efendant further acknowledges that if the Court does
not accept the sentencing recommendation of the
parties, defendant will have no right to withdraw his
guilty plea.”
During the plea colloquy, Patterson was placed under
oath and stated that he was fully satisfied with his attorney’s
representation, had reviewed the plea agreement,
understood all of the agreement’s terms, and understood
the consequences of pleading guilty. The defendant told
the district judge that he understood that the judge
was not bound by the plea agreement. The court asked:
Do you understand that I will not be able to determine
the actual guideline sentencing range for your case
until after you have pled guilty and a presentence
report has been completed; because of that, the sentence
calculation that I make may be different from
what you and your attorney or even what the plea
agreement contains. Do you understand that?
A: Yes.
The original Presentence Investigation Report (“PSR”)
had not treated Patterson as a career offender under
U.S.S.G. § 4B1.1 because the government and probation
office did not know that Patterson’s term of imprisonment
for a 1983 conviction had ended within the last
fifteen years, a requirement for counting an offense for
the purpose of the career offender guideline. See U.S.S.G.
§§ 4B1.1, cmt. n.1; 4B1.2, cmt. n.3; 4A1.2(e)(1). After filing
the original PSR, the probation office learned from the
Tennessee Department of Corrections that Patterson had
been released within the last fifteen years for the 1983
conviction. Thus, after Patterson’s plea colloquy, the
probation office supplemented its original PSR to reflect
its view that Patterson should be treated as a career
offender on the basis of his conviction under 18 U.S.C.
§ 2423(a) and his 1983 and 1999 convictions. See U.S.S.G.
§ 4B1.1(a). Using the 2007 Guidelines, which were in
effect at the time of Patterson’s sentencing, the Supplemental
PSR recommended a Guidelines range of 210 to
262 months. The Supplemental PSR also recommended
applying, among others, offense characteristic enhancements
for “unduly influenc[ing] a minor to engage in
prohibited sexual conduct” and “use of a computer.” See
U.S.S.G. §§ 2G1.3(b)(2)(B); 2G1.3(b)(3).
After the probation office submitted the Supplemental
PSR, defendant filed a pro se motion to withdraw
his guilty plea, although he was represented by counsel
at the time of the filing. In the motion, Patterson argued
that his plea was not made knowingly or voluntarily. The
district court held a hearing on defendant’s motion.
Defendant was represented by counsel at the hearing, and
counsel expressed his opinion that Patterson’s pro se
motion had no merit.
The district court ruled that it would not consider the
merits of the motion because it was not filed by counsel.
The district court additionally stated that even if it had
considered the merits, it would have denied it on the
grounds that it “ha[d] no merit.” The court informed
Patterson that he could file a motion for substitution
of attorneys if he wished. Despite the district court’s
ruling, Patterson stated at the hearing that his counsel
“promised [him] a sentence that [he] didn’t get” (although
at the time of the hearing, he had not yet been sentenced).
Defendant also said that he had only had ten
minutes to look at the plea agreement before he pled
guilty. However, the district court reminded Patterson
that he had earlier stated under oath that he had
reviewed the agreement and understood its terms, which
defendant acknowledged.
The district court adopted the Supplemental PSR’s
Guidelines calculations and sentenced Patterson to 262
months in prison followed by five years of supervised
release. The defendant did not ask the district court to
vacate his plea at sentencing but did object to the Supplemental
PSR’s application of the career offender provision
as well as the “undue influence” and “use of a computer”
enhancements.
Patterson now appeals his sentence on a number of
grounds.
II. Discussion
A. Evidentiary Hearing Regarding Plea Withdrawal
Patterson’s first argument is that the district court
should have held an evidentiary hearing with regard to
his motion to withdraw his plea. The district court
rejected Patterson’s motion to withdraw his plea because
it was filed pro se at a time when Patterson was represented
by counsel; the district court also stated that the
motion was meritless. The government argues that the
district court was correct to reject Patterson’s motion
because it was never properly before the court and also
because Patterson did not meet his burden of showing a
fair and just reason for withdrawal of the plea.
Abuse of discretion is the standard of review for both
a district court’s denial of a motion filed pro se by a
defendant represented by counsel, see United States v.
Chavin, 316 F.3d 666, 671 (7th Cir. 2002) (“[W]hether a
defendant may act as co-counsel along with his own
attorney, is a matter within the discretion of the district
court.”) (citing United States v. Tutino, 883 F.2d 1125, 1141
(2d Cir. 1989)), and for a district court’s denial of an
evidentiary hearing, see Osagiede v. United States, 543 F.3d
399, 408 (7th Cir. 2008).
The decision regarding whether to allow a defendant to
represent himself when he is also represented by counsel
is “ ‘solely within the discretion of the trial court.’ ” Chavin,
316 F.3d at 671 (quoting Tutino, 883 F.2d at 1141)). A
defendant does not have a “right” to such an arrangement.
See United States v. Gwiazdzinski, 141 F.3d 784, 787
(7th Cir. 1998) (“A defendant does not have an affirmative
right to submit a pro se brief when represented by
counsel.”) (citation omitted); see also United States v.
Singleton, 107 F.3d 1091, 1101 n.7 (4th Cir. 1997) (noting
that “[t]he cases reiterating the principle that courts
are not required to allow defendants to split the responsibilities
of the representation with an attorney are myriad”).
Indeed, this court has stated that such arrangements
are disfavored. Chavin, 316 F.3d at 672.
Here, the district court rejected Patterson’s attempt at
self-representation and advised him that he could file a
motion for substitution of counsel if he wished. In light of
the district court’s wide discretion to reject pro se submissions
by defendants represented by counsel, and
because the district court presented Patterson with an
alternative avenue that Patterson declined to pursue, we
conclude that the district court’s denial of Patterson’s
motion without an evidentiary hearing was not an abuse
of discretion.
However, even if Patterson had properly raised this
issue through counsel, the district court would not have
abused its discretion by denying the motion without an
evidentiary hearing. Federal Rule of Criminal Procedure 11
allows a defendant to withdraw a guilty plea “after the
court accepts the plea, but before it imposes sentence if . . .
the defendant can show a fair and just reason for requesting
the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). But a
defendant who states at a plea colloquy that his plea
was “freely and knowingly given . . . faces an uphill battle”
in convincing a judge that his reasons for withdrawal are
“fair and just” because representations made at a plea
colloquy are under oath and are given a “presumption
of verity.” United States v. Messino, 55 F.3d 1241, 1248 (7th
Cir. 1995). We have stated that district courts are “generally
justified in discrediting the proffered reasons for
the motion to withdraw and holding the defendant to
[his] admissions at the [plea colloquy].” Id.
At the hearing on defendant’s pro se motion to withdraw
his plea, Patterson stated that his lawyer “promised
[him] a sentence that [he] didn’t get” and that he did not
have enough time to review the plea agreement. While
on their face, those reasons appear compelling, we have
stated that “[c]laims of involuntariness or confusion that
in the abstract seem like sufficient reasons to allow a
defendant to withdraw his plea, or at least look into the
matter further, may be insufficient in the context of a
record containing substantial indications of voluntariness
and lack of confusion.” United States v. Trussel, 961 F.2d
685, 689 (7th Cir. 1992); see also Messino, 55 F.3d at 1248
(citation omitted). “One especially important consideration
is the defendant’s answers to the questions posed at
his Rule 11 hearing.” Trussel, 961 F.2d at 689-90. Here,
defendant’s reasons to withdraw his plea plainly contradicted
his sworn statements during the plea colloquy.
Moreover, Patterson’s attorney, who was present at the
hearing, told the court he believed the pro se motion
lacked merit. It is also worth noting that defendant
did not indicate to the district court (and has not indicated
on appeal) that he would have presented any
other evidence of involuntariness or confusion at a
putative evidentiary hearing. Thus, even if defendant
had properly requested an evidentiary hearing regarding
his request to withdraw his guilty plea, based on these
facts, and in light of the heavy burden shouldered by a
defendant when requesting to withdraw a guilty plea, we
could not conclude that the district court abused its
discretion when it denied an evidentiary hearing.
B. Patterson’s Plea
Patterson argues that, even aside from his request for
an evidentiary hearing, the district court should have
vacated his guilty plea because his plea agreement was
based on the parties’ “mutual mistake” regarding the
application of the career offender guideline, or, in an
alternative reading of the same events, because the government
“breached the agreement.” The government
maintains that Patterson’s “underestimat[ion of] his
sentence” at the time he entered his plea is not a valid
reason to permit him to withdraw his plea.
Because, as discussed above, Patterson never properly
requested that the district court vacate his guilty plea, we
review for plain error. Puckett v. United States, ___ U.S. ___,
129 S.Ct. 1423, 1428 (2009) (finding that Rule 52(b)’s plainerror
test applies to a forfeited claim that the government
failed to meet its obligations under a plea agreement).
Under plain error review, the defendant must
establish (1) an error (2) that was plain, (3) affected the
defendant’s substantial rights, and (4) seriously affected
the fairness, integrity, or public reputation of the judicial
proceedings. Id. at 1429; United States v. Julian, 427 F.3d
471, 481 (7th Cir. 2005).
Our precedent establishes that plea agreements are
governed by ordinary contract principles. United States
v. Barnes, 83 F.3d 934, 938 (7th Cir. 1996). In Barnes, we
stated that there must be a “meeting of the minds” on all
essential elements of a guilty plea in order for the plea
to be valid, and that, “[a]t least in theory, ambiguity in
an essential term or a mutual mistake about the meaning
of such a term can invalidate [a plea].” Id. As in the
instant case, in Barnes, the defendant argued that his
plea was invalid because neither he, the prosecutor, nor
the court realized at the time of the plea colloquy that he
would be sentenced as a career offender. Id. Though
the Barnes court acknowledged that there must be a
meeting of the minds regarding the agreement’s essential
terms, it found that the defendant’s guilty plea, which
was made pursuant to then-Rule 11(e)(1)(B), did not
contemplate the actual punishment as an essential term
of the agreement. Id. Rather, the parties left “the determination
of a sentence to the discretion of the district
court, as guided by the sentencing guidelines and by
the applicable criminal statutes.” Id. Thus, the court concluded
that the plea agreement was valid and enforceable.
12 No. 08-2240
This case is similar to Barnes. While it is true that
Patterson’s plea agreement “anticipated” a sentence
lower than the one he ultimately received, the agreement
stated several times that it did not ultimately control
the sentence imposed by the district court. Specifically,
the agreement stated that its Guidelines calculations
were “non-binding predictions upon which neither party
is entitled to rely” and also that the defendant could not
withdraw his plea if the district court rejected the agreement’s
Guidelines calculations. Moreover, the agreement
explicitly stated that it is not a Fed. R. Crim.
P. 11(c)(1)(C) plea, in which the district court is bound by
the sentencing recommendations contained in the agreement.
See Barnes, 83 F.3d at 938 (noting that agreements
made under Rule 11(e)(1)(C)—a previous version of
Rule 11(c)(1)(C)—would include the defendant’s punishment
as an essential term). It is thus clear here, as in
Barnes, that the defendant’s actual sentence was not an
essential term of the agreement, so the agreement
cannot be voided because of “mutual mistake” with
regard to the sentence imposed.
Patterson also argues that the government breached the
agreement by arguing for a higher sentence after it
learned that Patterson was possibly eligible for sentencing
as a career offender. However, the government
never agreed to not argue for a different sentence. The plea
agreement specifically stated that “[d]efendant understands
that further review of the facts or the applicable
legal principles may lead the government to conclude
that different or additional Guideline provisions apply
in this case.” While Federal Rules of Criminal Procedure
11(c)(1)(B) and (C) allow formation of an agreement that
binds the government, Patterson’s agreement was not
made pursuant to these provisions. Accordingly, the
government did not breach the terms of the plea agreement.
See United States v. Linder, 530 F.3d 556, 564-65
(7th Cir. 2008) (rejecting argument that government
breached the plea agreement by advocating for an enhancement
where agreement was not made pursuant to
Federal Rules of Criminal Procedure 11(c)(1)(B) and (C)).
C. Career Offender Enhancement
The district court determined that Patterson was a
career offender under the Sentencing Guidelines. Predicate
to this conclusion was the district court’s finding that
Patterson’s conviction for transporting a minor in interstate
commerce for the purpose of prostitution was a “crime
of violence” under U.S.S.G. § 4B1.2. Patterson argues
that 18 U.S.C. § 2423(a) is not a crime of violence
under the Supreme Court’s decision in Begay v. United
States, ___ U.S. ___, 128 S.Ct. 1581 (2008), and that his
sentencing as a career offender was therefore error. The
government argues that 18 U.S.C. § 2423(a) is a crime
of violence because it presents a great risk of physical
injury to its victims and is a purposeful, aggressive,
and violent crime.
We review the district court’s interpretations of the
Sentencing Guidelines de novo. United States v. Howard,
352 F.2d 818, 831 (7th Cir. 2001).
The Sentencing Guidelines define a crime of violence as:
Any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or
threatened use of physical force against the person
of another, or
(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 (2006). The government claims that
Patterson’s offense falls under the second clause of the
second prong of this definition (sometimes called the
“residual clause”) because it “involves conduct that
presents a serious potential risk of physical injury to
another.” To determine whether a conviction qualifies as
a crime of violence, courts use a “categorical approach,”
under which the Court looks to the statutory elements
of the offense and not to the particular facts of the underlying
conviction. See Taylor v. United States, 495 U.S. 575,
600 (1990).
The Supreme Court’s decision in Begay analyzed
whether driving under the influence should be considered
a crime of violence under the Armed Career
Criminal Act (ACCA). See Begay, 128 S.Ct. at 1583.1 The
Court first determined that the example crimes listed in
the first clause of the second prong of the statute (“burglary,
arson, extortion, and crimes involving the use of
explosives”) limited the types of crime covered by the
residual clause (crimes “that present[ ] a serious potential
risk of physical injury to another”). The Court reasoned
that the residual clause covered only “crimes that are
roughly similar, in kind as well as in degree of risk posed,
to the examples themselves.” Id. at 1587. To help determine
whether the defendant’s crime is similar in kind to the
enumerated examples, Begay examined whether the
crime “typically involve[s] purposeful, ‘violent,’ and
‘aggressive’ conduct.” The Court found that drunk driving
was more appropriately understood as a crime of negligence
or recklessness rather than one of purpose and
deliberation and therefore concluded that drunk driving
was not a crime of violence. Id.
The Supreme Court recently applied the Begay test in
Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687 (2009).
In Chambers, the Supreme Court held that a convict’s
“failure to report” is not a crime of violence. Id. at 691.
Although the government claimed that failure to report
should be understood as a crime of violence because
individuals who fail to report are likely to use violence
to avoid recapture, the Court held that failure to report
was not a crime of violence because “the crime amounts
to a form of inaction, a far cry from the purposeful, violent,
and aggressive conduct potentially at issue when an
offender uses explosives against property, commits arson,
burgles a dwelling or residence, or engages in certain
forms of extortion.” Id. at 692. The Chambers Court did not
definitively indicate whether violence that may attend
a crime, but is not an element of the crime, should be
considered in determining whether to treat a statutory
violation as a “crime of violence.” The Court instead
stated that “even if we assume for argument’s sake the
relevance of violence that may occur long after an
offender fails to report, we are not convinced [by the
data presented by the government supporting that proposition
in this case].” Id. (surveying the data provided by
the government and concluding that it showed a relatively
low incidence of violence attending arrests of
individuals who had failed to report).
While there have been several circuit court decisions
prior to Begay holding that Section 2423(a) was a crime
of violence, see, e.g., United States v. Curtis, 481 F.3d 836,
838-39 (D.C. Cir. 2007); United States v. Carter, 266 F.3d
1089, 1090-91 (9th Cir. 2001), only one court has had
occasion to consider the question after Begay, see United
States v. Williams, 529 F.3d 1 (1st Cir. 2008), cert. denied, ___
U.S. ___, 129 S.Ct. 1580 (2009). In Williams, the First Circuit
focused first on the risk of harm accompanying a violation
of 18 U.S.C. § 2423(a), finding that “indecent sexual
contact crimes perpetrated by adults against children
categorically present a serious risk of physical injury.” Id.
at 5. The court was unpersuaded by the defendant’s
argument that his crime was not violent because he was
not “sexually active” in the commission of the offense
but rather, “merely facilitated others’ sexual contact
with the minor.” Id. Rather, the court found that by
transporting the minor with the intent that the minor
engage in prostitution, the defendant “placed the
minor in harm’s way and led ineluctably to a sex act . . .
between the minor and an older man unconcerned with
her welfare.” Id. The court also noted that the commercial
aspect of 18 U.S.C. § 2423(a)—as opposed to simple
seduction of a minor—increased the level of risk to the
minor because it increased the risk of physical abuse from
multiple partners and the risk of contracting a sexually
transmitted disease. Id. Finally, Williams noted that
Begay did not provide much guidance for its decision.
Because a new test is introduced and because the
Court’s decision is itself close, it is hard to be absolutely
certain how a majority of the Justices would
apply the test to the crime at issue here—a crime that
falls neither within the safe harbor of offenses with
limited scienter requirements and uncertain consequences
(like DUI), nor among those that have deliberate
violence as a necessary element or even as an
almost inevitable concomitant. Adjectives like “purposeful”
and “aggressive” denote qualities that are
ineluctably manifested in degree and appear in different
combinations; they are, therefore, imprecise aids.
Id. at 7. Despite the ambiguity contained in Begay, however,
the First Circuit found that, “[u]nlike DUI, [a violation
of 18 U.S.C. § 2423(a)] is purposeful and the perpetrator
is aware of the risks that the prostituted minor
will face” and that “the crime is implicitly (and sometimes
explicitly) aggressive, and coercion of the minor is
virtually inherent.” Id.
Title 18, Section 2423(a) makes it illegal to “knowingly
transport[ ] an individual who has not attained the age of
18 years in interstate or foreign commerce . . . with intent
that the individual engage in prostitution.” 18 U.S.C.
§ 2423(a). Defendant argues that transportation of a
minor in interstate commerce with the intent she engage
in prostitution is not “similar” in kind to the crimes listed
in Begay (burglary of a dwelling, arson, extortion, and
crimes involving explosives). He claims that the example
crimes all suggest the use of force or violence, which
18 U.S.C. § 2423(a) does not require. Patterson also
argues that the government’s emphasis on the social ills
associated with prostitution is misplaced. He points out
that 18 U.S.C. § 2423(a) does not punish prostitution, per
se, and notes that a violation of the statute does not even
require that prostitution take place.
The government argues that 18 U.S.C. § 2423(a) prohibits
purposeful, aggressive and violent conduct and therefore
is similar in kind to the crimes enumerated in the
statute. First, the government says that the crime is
“purposeful” because it requires the perpetrator to knowingly
transport a minor to another state as well as intend
that the minor to engage in prostitution. The crime is
therefore “deliberate,” unlike the strict liability offenses
contrasted in Begay, in which “the offender need not have
had any criminal intent at all.” Begay, 128 S.Ct. at 1586-87.
Second, the government contends that 18 U.S.C. § 2423(a)
contemplates “aggressive” conduct because commission
of the crime puts the perpetrator into a position of
power over the minor such that an element of coercion is
inherent in the crime. The government claims that the
crime, in this way, is “analogous to kidnaping,” which the
commentary to U.S.S.G. § 4B1.2 lists as an example of a
crime of violence. See U.S.S.G. § 4B1.2 cmt n.1. (However,
kidnaping requires that the defendant use force to
prevent the victim from escaping, an element not required
for a conviction under 18 U.S.C. § 2423(a).) Finally,
the government argues that 18 U.S.C. § 2423(a) is a “violent”
offense because the perpetrator must intend the
minor to engage in prostitution and therefore, according
to the government, “know[s] that the minor will
most likely be raped, assaulted, or abused by pimps and
customers.”
We agree with the government that the crime at issue
is “purposeful” and “aggressive.” The closest question
is whether a violation of 18 U.S.C. § 2423(a) is “violent.”2
On the one hand, Patterson is correct that the statute
does not contain as an element any use of violence or
force. On the other hand, the government is correct that
violation of the statute creates a significant risk of violence
against the victim by the perpetrator as well as third
parties. Ultimately, we are persuaded by the government’s
position that the risk of violence which attends a
violation of 18 U.S.C. § 2423(a) justifies its classification
as “violent” and that 18 U.S.C. § 2423(a) is therefore
“similar in kind” to the Guideline’s enumerated crimes.
While the Supreme Court has not definitively indicated
whether “attendant risks” should be taken into account
when analyzing whether a crime is similarly violent, see
Chambers, 129 S.Ct. at 692 (assuming “for the sake of
argument” that attendant risk of violence was relevant),
consideration of this factor would appear to be appropriate
in light of the fact that the second clause of
U.S.S.G. § 4B1.2(2) itself refers to the “potential risk”
inherent in crimes of violence. See U.S.S.G. § 4B1.2(2) (a
“crime of violence” 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”) (emphasis added).
Consideration of risks attendant to commission of a
crime is also supported by U.S.S.G. § 4B1.2(2)’s explicit
enumeration of burglary as a crime of violence. Like
Section 2423(a), burglary does not require the use of force
or violence.3 But the Supreme Court reasoned in Taylor
that Congress included burglary among the “crimes of
violence” in the ACCA because
Congress thought that certain general categories of
property crimes . . . so often presented a risk of injury to
persons, or were so often committed by career criminals,
that they should be included in the enhancement
statute even though, considered solely in terms of
their statutory elements, they do not necessarily
involve the use or threat of force against a person.
Taylor, 495 U.S. at 597. Likewise here, a violation of 18
U.S.C. § 2423(a) does not require violent conduct, but it
presents a substantial risk that violence will occur. Moreover,
we agree with our colleagues in the First Circuit,
that it is “surpassingly difficult to see how burglary could
be treated as a violent crime yet child trafficking exempted.”
See Williams, 529 F.3d at 8.
A violator of 18 U.S.C. § 2423(a) engages in purposeful
conduct that exposes the crime’s victim to a foreseeable
risk of violence, physical injury, and disease. We therefore
conclude that 18 U.S.C. § 2423(a) is “similar in kind”
to the enumerated crimes in U.S.S.G. § 4B1.2(2) and is a
crime of violence for purposes of the Sentencing Guidelines.
See Begay, 128 S.Ct. at 1587; United States v. Templeton,
543 F.3d 378, 380 (7th Cir. 2008).
D. “Undue Influence” and “Use of a Computer” Sentence
Enhancements
Patterson also objects to the district court’s enhancement
of his sentence for “Undue Influence” and “Use of a
Computer.” When reviewing a district court’s application
of sentencing enhancements, we review the district
court’s legal interpretations de novo, United States v.
Katalinic, 510 F.3d 744, 746 (7th Cir. 2007), and its factual
findings for clear error, United States v. Bryant, 557 F.3d
489, 500-01 (7th Cir. 2009). The clear error standard is
significantly deferential and an appellate court “may
only reverse a factual finding under this standard when
it is left with a ‘definite and firm conviction that a
mistake has been committed.’ ” United States v. Gerstein,
104 F.3d 973, 980 (7th Cir. 1997) (quoting Anderson v. City
of Bessemer City, 470 U.S. 564, 573 (1985)) (other citations
omitted).
1. Undue Influence
Sentencing Guideline § 2A3.2(b)(2)(B) requires a two
level enhancement where a participant “unduly influenced
the victim to engage in prohibited sexual conduct.” The
commentary to the Guideline instructs courts to closely
consider the particular facts of the case to determine
whether a “participant’s influence over the victim
compromised the voluntariness of the victim’s behavior.”
U.S.S.G. § 2A3.2, cmt. n.3. This court has stated that the
defining characteristic of undue influence is that it
involves “a situation where the ‘influencer’ has succeeded
in altering the behavior of the target.” U.S. v. Mitchell, 353
F.3d 552, 557 (7th Cir. 2003).
Here, the district court applied the enhancement
because the defendant “was the one” or “was one of the
people” who helped involve the victim with prostitution.
This finding was supported by the record. The defendant
was a forty-two year old man and the victim was a fourteen
year old girl at the time of the crime. The victim
testified to the grand jury that she had never worked in
prostitution before the defendant encouraged her to try
it. Moreover, the victim was destitute and penniless
when Patterson began urging her to travel to Chicago
with him to engage in internet-based prostitution, making
her more vulnerable to his influence.
Because the record supports the district court’s application
of the enhancement, and because there is no basis for
a definite and firm conviction that a mistake has been
committed, we affirm the district court’s application of
the “undue influence” enhancement.
2. Use of a Computer
Patterson argues—and the government concedes—that
the district court erred when it applied the U.S.S.G.
§ 2G1.3(b)(3) enhancement for “use of a computer.”
Under this provision of the Sentencing Guidelines, a
defendant’s offense level is increased two levels:
[i]f the offense involved the use of a computer or an
interactive computer service to . . . entice encourage,
offer, or solicit a person to engage in prohibited sexual
conduct with the minor . . . .
U.S.S.G. § 2G1.3(b)(3). The commentary, however,
further provides that “[s]ubsection (b)(3) is intended to
apply only to the use of a computer or an interactive
computer service to communicate directly with a minor
or with a person who exercises custody, care, or supervisory
control of the minor.” Id. § 2G1.3 cmt. n. 4. In this
case, no computers were used to “communicate directly”
with the victim or the victim’s custodian, so the enhancement
does not apply. We therefore reverse and remand
with regard to this enhancement in order to ensure that
it played no part in Patterson’s sentence.
E. Use of the 2007 Sentencing Guidelines
Finally, Patterson argues that the district court’s use of
the 2007 Sentencing Guidelines to calculate his sentence
violated the ex post facto clause of the Constitution.
Patterson never raised this argument before the district
court, so we review for plain error. See United States v.
Baretz, 411 F.3d 867, 875 (7th Cir. 2005).
Patterson’s argument is foreclosed by United States v.
Demaree, 459 F.3d 791, 795 (7th Cir. 2006), which held that
a change in the Sentencing Guidelines that expands the
guidelines range for a crime does not render application of
the later-Guidelines an ex post facto law. Defendant
argues that Demaree did not take Kimbrough v. United
States, 552 U.S. 85 (2007) or Gall v. United States, 552 U.S. 38
(2007) into account. However, the holding of Demaree
has been applied after Kimbrough and Gall, see, e.g., United
States v. Krasinski, 545 F.3d 546, 552 (7th Cir. 2008), and
does not contradict those decisions. Defendant’s other
argument, notwithstanding Demaree, is that offenders
who win their sentencing appeals “run the risk of a
remand for a significantly longer sentence” under a new
version of the Guidelines. However, as the government
points out, 18 U.S.C. § 3742(g)(1) directs that defendants
who win their sentencing appeals be resentenced under
the Guidelines “in effect on the date of the previous
sentencing.”
Because Patterson has presented no compelling reason
to revisit Demaree, and because his argument regarding
the potential for higher sentences on remand has no
merit, we reject his contention that the district court plainly
erred by applying the 2007 Guidelines.
III. Conclusion
For the reasons explained above, we AFFIRM the judgment
of the district court except with regard to the “use of
a computer” sentence enhancement. With regard to that
issue, we REVERSE and REMAND for further proceedings
consistent with this opinion.
issues related to his sentence for violation of 18 U.S.C.
§ 2423(a), which prohibits transporting a minor in interstate
commerce with intent that the minor engage in
prostitution. Among the issues presented is one of first
impression in this circuit: whether 18 U.S.C. § 2423(a) is
a “crime of violence” such that application of the career
offender guideline is appropriate in this case.
For the reasons explained below, we affirm the judgment
of the district court except with regard to the
district court’s enhancement of Patterson’s sentence for
“use of a computer.” On that issue we reverse and remand
for further proceedings consistent with this opinion.
I. Background
A. Factual Background
In 2005, James Patterson, a forty-two year old man,
met a fourteen year old girl (the “victim”) in Memphis,
Tennessee. The victim had run away from a group
home and had no money. Patterson encouraged her to
engage in prostitution. The victim began working as a
prostitute in a Memphis crack house for a pimp named
Larry Nelson. About two weeks later, Patterson asked
the victim if she would like to travel to Chicago. He told
her that in Chicago, prostitution was internet-based and
that she would not have to engage in “street-walking” to
solicit customers. Defendant’s counsel admitted to the
district court that defendant “held out” internet prostitution
as “something more attractive” than what the
victim had been doing at the time. The victim agreed to
travel with Patterson to Chicago.
On October 31, 2005, Patterson drove the victim
from Memphis to Schaumburg, Illinois. For two weeks,
the victim worked as a prostitute for Patterson. During
this time, the victim gave Patterson all of the money she
earned and stayed in his hotel. Another minor female
working as a prostitute for defendant’s half-brother
posted prostitution advertisements for the victim on
internet sites such as Craigslist. These advertisements
contained naked photos of the victim. The other
prostitute arranged the victim’s calls to johns through
the internet and drove her to calls as well.
Patterson used physical violence against the victim
several times. On one occasion, Patterson shoved the
victim against a wall and slapped her. On another occasion,
Patterson punched the victim, knocking her off a
chair, and stomped on her while she was on the floor.
After this incident, Patterson told the victim to take a
shower and prepare to work the street. On a call later
that night, a john, who saw bruises on the victim,
offered to “rescue her.” The victim went to live with the
man’s son. From the son’s house, she called her mother
in Memphis. The victim’s family had apparently been
looking for her and had spread the word in Memphis
that she was a missing and endangered child.
B. Procedural Background
Patterson was charged with knowingly transporting a
minor in interstate commere with the intent that the
minor engage in prostitution in violation of 18 U.S.C.
§ 2423(a). Defendant pled guilty pursuant to a written
plea agreement. The agreement explained that the Guidelines
“in effect at the time of sentencing” were to determine
Patterson’s sentence. The agreement anticipated
that Patterson would have an offense level of 28 and a
criminal history category of IV, which resulted in an
“anticipated advisory Sentencing Guidelines range [of] 110
to 137 months’ imprisonment.” These calculations were
“based on the facts now known to the government.”
Additionally, the agreement stated:
Defendant and his attorney and the government
acknowledge that the above Guideline calculations
are preliminary in nature, and are non-binding predictions
upon which neither party is entitled to rely.
Defendant understands that further review of the
facts or the applicable legal principles may lead the
government to conclude that different or additional
Guideline provisions apply in this case. Defendant
understands that the Probation Office will conduct
its own investigation and that the Court ultimately
determines the facts and law relevant to sentencing,
and that the Court’s determinations govern the final
Guideline calculation. Accordingly, the validity of
this Agreement is not contingent upon the probation
officer’s or the Court’s concurrence with the above
calculations and defendant shall not have a right to
withdraw his plea on the basis of the Court’s rejection
of these calculations.
The agreement also stated, in another section, that
“[d]efendant further acknowledges that if the Court does
not accept the sentencing recommendation of the
parties, defendant will have no right to withdraw his
guilty plea.”
During the plea colloquy, Patterson was placed under
oath and stated that he was fully satisfied with his attorney’s
representation, had reviewed the plea agreement,
understood all of the agreement’s terms, and understood
the consequences of pleading guilty. The defendant told
the district judge that he understood that the judge
was not bound by the plea agreement. The court asked:
Do you understand that I will not be able to determine
the actual guideline sentencing range for your case
until after you have pled guilty and a presentence
report has been completed; because of that, the sentence
calculation that I make may be different from
what you and your attorney or even what the plea
agreement contains. Do you understand that?
A: Yes.
The original Presentence Investigation Report (“PSR”)
had not treated Patterson as a career offender under
U.S.S.G. § 4B1.1 because the government and probation
office did not know that Patterson’s term of imprisonment
for a 1983 conviction had ended within the last
fifteen years, a requirement for counting an offense for
the purpose of the career offender guideline. See U.S.S.G.
§§ 4B1.1, cmt. n.1; 4B1.2, cmt. n.3; 4A1.2(e)(1). After filing
the original PSR, the probation office learned from the
Tennessee Department of Corrections that Patterson had
been released within the last fifteen years for the 1983
conviction. Thus, after Patterson’s plea colloquy, the
probation office supplemented its original PSR to reflect
its view that Patterson should be treated as a career
offender on the basis of his conviction under 18 U.S.C.
§ 2423(a) and his 1983 and 1999 convictions. See U.S.S.G.
§ 4B1.1(a). Using the 2007 Guidelines, which were in
effect at the time of Patterson’s sentencing, the Supplemental
PSR recommended a Guidelines range of 210 to
262 months. The Supplemental PSR also recommended
applying, among others, offense characteristic enhancements
for “unduly influenc[ing] a minor to engage in
prohibited sexual conduct” and “use of a computer.” See
U.S.S.G. §§ 2G1.3(b)(2)(B); 2G1.3(b)(3).
After the probation office submitted the Supplemental
PSR, defendant filed a pro se motion to withdraw
his guilty plea, although he was represented by counsel
at the time of the filing. In the motion, Patterson argued
that his plea was not made knowingly or voluntarily. The
district court held a hearing on defendant’s motion.
Defendant was represented by counsel at the hearing, and
counsel expressed his opinion that Patterson’s pro se
motion had no merit.
The district court ruled that it would not consider the
merits of the motion because it was not filed by counsel.
The district court additionally stated that even if it had
considered the merits, it would have denied it on the
grounds that it “ha[d] no merit.” The court informed
Patterson that he could file a motion for substitution
of attorneys if he wished. Despite the district court’s
ruling, Patterson stated at the hearing that his counsel
“promised [him] a sentence that [he] didn’t get” (although
at the time of the hearing, he had not yet been sentenced).
Defendant also said that he had only had ten
minutes to look at the plea agreement before he pled
guilty. However, the district court reminded Patterson
that he had earlier stated under oath that he had
reviewed the agreement and understood its terms, which
defendant acknowledged.
The district court adopted the Supplemental PSR’s
Guidelines calculations and sentenced Patterson to 262
months in prison followed by five years of supervised
release. The defendant did not ask the district court to
vacate his plea at sentencing but did object to the Supplemental
PSR’s application of the career offender provision
as well as the “undue influence” and “use of a computer”
enhancements.
Patterson now appeals his sentence on a number of
grounds.
II. Discussion
A. Evidentiary Hearing Regarding Plea Withdrawal
Patterson’s first argument is that the district court
should have held an evidentiary hearing with regard to
his motion to withdraw his plea. The district court
rejected Patterson’s motion to withdraw his plea because
it was filed pro se at a time when Patterson was represented
by counsel; the district court also stated that the
motion was meritless. The government argues that the
district court was correct to reject Patterson’s motion
because it was never properly before the court and also
because Patterson did not meet his burden of showing a
fair and just reason for withdrawal of the plea.
Abuse of discretion is the standard of review for both
a district court’s denial of a motion filed pro se by a
defendant represented by counsel, see United States v.
Chavin, 316 F.3d 666, 671 (7th Cir. 2002) (“[W]hether a
defendant may act as co-counsel along with his own
attorney, is a matter within the discretion of the district
court.”) (citing United States v. Tutino, 883 F.2d 1125, 1141
(2d Cir. 1989)), and for a district court’s denial of an
evidentiary hearing, see Osagiede v. United States, 543 F.3d
399, 408 (7th Cir. 2008).
The decision regarding whether to allow a defendant to
represent himself when he is also represented by counsel
is “ ‘solely within the discretion of the trial court.’ ” Chavin,
316 F.3d at 671 (quoting Tutino, 883 F.2d at 1141)). A
defendant does not have a “right” to such an arrangement.
See United States v. Gwiazdzinski, 141 F.3d 784, 787
(7th Cir. 1998) (“A defendant does not have an affirmative
right to submit a pro se brief when represented by
counsel.”) (citation omitted); see also United States v.
Singleton, 107 F.3d 1091, 1101 n.7 (4th Cir. 1997) (noting
that “[t]he cases reiterating the principle that courts
are not required to allow defendants to split the responsibilities
of the representation with an attorney are myriad”).
Indeed, this court has stated that such arrangements
are disfavored. Chavin, 316 F.3d at 672.
Here, the district court rejected Patterson’s attempt at
self-representation and advised him that he could file a
motion for substitution of counsel if he wished. In light of
the district court’s wide discretion to reject pro se submissions
by defendants represented by counsel, and
because the district court presented Patterson with an
alternative avenue that Patterson declined to pursue, we
conclude that the district court’s denial of Patterson’s
motion without an evidentiary hearing was not an abuse
of discretion.
However, even if Patterson had properly raised this
issue through counsel, the district court would not have
abused its discretion by denying the motion without an
evidentiary hearing. Federal Rule of Criminal Procedure 11
allows a defendant to withdraw a guilty plea “after the
court accepts the plea, but before it imposes sentence if . . .
the defendant can show a fair and just reason for requesting
the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). But a
defendant who states at a plea colloquy that his plea
was “freely and knowingly given . . . faces an uphill battle”
in convincing a judge that his reasons for withdrawal are
“fair and just” because representations made at a plea
colloquy are under oath and are given a “presumption
of verity.” United States v. Messino, 55 F.3d 1241, 1248 (7th
Cir. 1995). We have stated that district courts are “generally
justified in discrediting the proffered reasons for
the motion to withdraw and holding the defendant to
[his] admissions at the [plea colloquy].” Id.
At the hearing on defendant’s pro se motion to withdraw
his plea, Patterson stated that his lawyer “promised
[him] a sentence that [he] didn’t get” and that he did not
have enough time to review the plea agreement. While
on their face, those reasons appear compelling, we have
stated that “[c]laims of involuntariness or confusion that
in the abstract seem like sufficient reasons to allow a
defendant to withdraw his plea, or at least look into the
matter further, may be insufficient in the context of a
record containing substantial indications of voluntariness
and lack of confusion.” United States v. Trussel, 961 F.2d
685, 689 (7th Cir. 1992); see also Messino, 55 F.3d at 1248
(citation omitted). “One especially important consideration
is the defendant’s answers to the questions posed at
his Rule 11 hearing.” Trussel, 961 F.2d at 689-90. Here,
defendant’s reasons to withdraw his plea plainly contradicted
his sworn statements during the plea colloquy.
Moreover, Patterson’s attorney, who was present at the
hearing, told the court he believed the pro se motion
lacked merit. It is also worth noting that defendant
did not indicate to the district court (and has not indicated
on appeal) that he would have presented any
other evidence of involuntariness or confusion at a
putative evidentiary hearing. Thus, even if defendant
had properly requested an evidentiary hearing regarding
his request to withdraw his guilty plea, based on these
facts, and in light of the heavy burden shouldered by a
defendant when requesting to withdraw a guilty plea, we
could not conclude that the district court abused its
discretion when it denied an evidentiary hearing.
B. Patterson’s Plea
Patterson argues that, even aside from his request for
an evidentiary hearing, the district court should have
vacated his guilty plea because his plea agreement was
based on the parties’ “mutual mistake” regarding the
application of the career offender guideline, or, in an
alternative reading of the same events, because the government
“breached the agreement.” The government
maintains that Patterson’s “underestimat[ion of] his
sentence” at the time he entered his plea is not a valid
reason to permit him to withdraw his plea.
Because, as discussed above, Patterson never properly
requested that the district court vacate his guilty plea, we
review for plain error. Puckett v. United States, ___ U.S. ___,
129 S.Ct. 1423, 1428 (2009) (finding that Rule 52(b)’s plainerror
test applies to a forfeited claim that the government
failed to meet its obligations under a plea agreement).
Under plain error review, the defendant must
establish (1) an error (2) that was plain, (3) affected the
defendant’s substantial rights, and (4) seriously affected
the fairness, integrity, or public reputation of the judicial
proceedings. Id. at 1429; United States v. Julian, 427 F.3d
471, 481 (7th Cir. 2005).
Our precedent establishes that plea agreements are
governed by ordinary contract principles. United States
v. Barnes, 83 F.3d 934, 938 (7th Cir. 1996). In Barnes, we
stated that there must be a “meeting of the minds” on all
essential elements of a guilty plea in order for the plea
to be valid, and that, “[a]t least in theory, ambiguity in
an essential term or a mutual mistake about the meaning
of such a term can invalidate [a plea].” Id. As in the
instant case, in Barnes, the defendant argued that his
plea was invalid because neither he, the prosecutor, nor
the court realized at the time of the plea colloquy that he
would be sentenced as a career offender. Id. Though
the Barnes court acknowledged that there must be a
meeting of the minds regarding the agreement’s essential
terms, it found that the defendant’s guilty plea, which
was made pursuant to then-Rule 11(e)(1)(B), did not
contemplate the actual punishment as an essential term
of the agreement. Id. Rather, the parties left “the determination
of a sentence to the discretion of the district
court, as guided by the sentencing guidelines and by
the applicable criminal statutes.” Id. Thus, the court concluded
that the plea agreement was valid and enforceable.
12 No. 08-2240
This case is similar to Barnes. While it is true that
Patterson’s plea agreement “anticipated” a sentence
lower than the one he ultimately received, the agreement
stated several times that it did not ultimately control
the sentence imposed by the district court. Specifically,
the agreement stated that its Guidelines calculations
were “non-binding predictions upon which neither party
is entitled to rely” and also that the defendant could not
withdraw his plea if the district court rejected the agreement’s
Guidelines calculations. Moreover, the agreement
explicitly stated that it is not a Fed. R. Crim.
P. 11(c)(1)(C) plea, in which the district court is bound by
the sentencing recommendations contained in the agreement.
See Barnes, 83 F.3d at 938 (noting that agreements
made under Rule 11(e)(1)(C)—a previous version of
Rule 11(c)(1)(C)—would include the defendant’s punishment
as an essential term). It is thus clear here, as in
Barnes, that the defendant’s actual sentence was not an
essential term of the agreement, so the agreement
cannot be voided because of “mutual mistake” with
regard to the sentence imposed.
Patterson also argues that the government breached the
agreement by arguing for a higher sentence after it
learned that Patterson was possibly eligible for sentencing
as a career offender. However, the government
never agreed to not argue for a different sentence. The plea
agreement specifically stated that “[d]efendant understands
that further review of the facts or the applicable
legal principles may lead the government to conclude
that different or additional Guideline provisions apply
in this case.” While Federal Rules of Criminal Procedure
11(c)(1)(B) and (C) allow formation of an agreement that
binds the government, Patterson’s agreement was not
made pursuant to these provisions. Accordingly, the
government did not breach the terms of the plea agreement.
See United States v. Linder, 530 F.3d 556, 564-65
(7th Cir. 2008) (rejecting argument that government
breached the plea agreement by advocating for an enhancement
where agreement was not made pursuant to
Federal Rules of Criminal Procedure 11(c)(1)(B) and (C)).
C. Career Offender Enhancement
The district court determined that Patterson was a
career offender under the Sentencing Guidelines. Predicate
to this conclusion was the district court’s finding that
Patterson’s conviction for transporting a minor in interstate
commerce for the purpose of prostitution was a “crime
of violence” under U.S.S.G. § 4B1.2. Patterson argues
that 18 U.S.C. § 2423(a) is not a crime of violence
under the Supreme Court’s decision in Begay v. United
States, ___ U.S. ___, 128 S.Ct. 1581 (2008), and that his
sentencing as a career offender was therefore error. The
government argues that 18 U.S.C. § 2423(a) is a crime
of violence because it presents a great risk of physical
injury to its victims and is a purposeful, aggressive,
and violent crime.
We review the district court’s interpretations of the
Sentencing Guidelines de novo. United States v. Howard,
352 F.2d 818, 831 (7th Cir. 2001).
The Sentencing Guidelines define a crime of violence as:
Any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or
threatened use of physical force against the person
of another, or
(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 (2006). The government claims that
Patterson’s offense falls under the second clause of the
second prong of this definition (sometimes called the
“residual clause”) because it “involves conduct that
presents a serious potential risk of physical injury to
another.” To determine whether a conviction qualifies as
a crime of violence, courts use a “categorical approach,”
under which the Court looks to the statutory elements
of the offense and not to the particular facts of the underlying
conviction. See Taylor v. United States, 495 U.S. 575,
600 (1990).
The Supreme Court’s decision in Begay analyzed
whether driving under the influence should be considered
a crime of violence under the Armed Career
Criminal Act (ACCA). See Begay, 128 S.Ct. at 1583.1 The
Court first determined that the example crimes listed in
the first clause of the second prong of the statute (“burglary,
arson, extortion, and crimes involving the use of
explosives”) limited the types of crime covered by the
residual clause (crimes “that present[ ] a serious potential
risk of physical injury to another”). The Court reasoned
that the residual clause covered only “crimes that are
roughly similar, in kind as well as in degree of risk posed,
to the examples themselves.” Id. at 1587. To help determine
whether the defendant’s crime is similar in kind to the
enumerated examples, Begay examined whether the
crime “typically involve[s] purposeful, ‘violent,’ and
‘aggressive’ conduct.” The Court found that drunk driving
was more appropriately understood as a crime of negligence
or recklessness rather than one of purpose and
deliberation and therefore concluded that drunk driving
was not a crime of violence. Id.
The Supreme Court recently applied the Begay test in
Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687 (2009).
In Chambers, the Supreme Court held that a convict’s
“failure to report” is not a crime of violence. Id. at 691.
Although the government claimed that failure to report
should be understood as a crime of violence because
individuals who fail to report are likely to use violence
to avoid recapture, the Court held that failure to report
was not a crime of violence because “the crime amounts
to a form of inaction, a far cry from the purposeful, violent,
and aggressive conduct potentially at issue when an
offender uses explosives against property, commits arson,
burgles a dwelling or residence, or engages in certain
forms of extortion.” Id. at 692. The Chambers Court did not
definitively indicate whether violence that may attend
a crime, but is not an element of the crime, should be
considered in determining whether to treat a statutory
violation as a “crime of violence.” The Court instead
stated that “even if we assume for argument’s sake the
relevance of violence that may occur long after an
offender fails to report, we are not convinced [by the
data presented by the government supporting that proposition
in this case].” Id. (surveying the data provided by
the government and concluding that it showed a relatively
low incidence of violence attending arrests of
individuals who had failed to report).
While there have been several circuit court decisions
prior to Begay holding that Section 2423(a) was a crime
of violence, see, e.g., United States v. Curtis, 481 F.3d 836,
838-39 (D.C. Cir. 2007); United States v. Carter, 266 F.3d
1089, 1090-91 (9th Cir. 2001), only one court has had
occasion to consider the question after Begay, see United
States v. Williams, 529 F.3d 1 (1st Cir. 2008), cert. denied, ___
U.S. ___, 129 S.Ct. 1580 (2009). In Williams, the First Circuit
focused first on the risk of harm accompanying a violation
of 18 U.S.C. § 2423(a), finding that “indecent sexual
contact crimes perpetrated by adults against children
categorically present a serious risk of physical injury.” Id.
at 5. The court was unpersuaded by the defendant’s
argument that his crime was not violent because he was
not “sexually active” in the commission of the offense
but rather, “merely facilitated others’ sexual contact
with the minor.” Id. Rather, the court found that by
transporting the minor with the intent that the minor
engage in prostitution, the defendant “placed the
minor in harm’s way and led ineluctably to a sex act . . .
between the minor and an older man unconcerned with
her welfare.” Id. The court also noted that the commercial
aspect of 18 U.S.C. § 2423(a)—as opposed to simple
seduction of a minor—increased the level of risk to the
minor because it increased the risk of physical abuse from
multiple partners and the risk of contracting a sexually
transmitted disease. Id. Finally, Williams noted that
Begay did not provide much guidance for its decision.
Because a new test is introduced and because the
Court’s decision is itself close, it is hard to be absolutely
certain how a majority of the Justices would
apply the test to the crime at issue here—a crime that
falls neither within the safe harbor of offenses with
limited scienter requirements and uncertain consequences
(like DUI), nor among those that have deliberate
violence as a necessary element or even as an
almost inevitable concomitant. Adjectives like “purposeful”
and “aggressive” denote qualities that are
ineluctably manifested in degree and appear in different
combinations; they are, therefore, imprecise aids.
Id. at 7. Despite the ambiguity contained in Begay, however,
the First Circuit found that, “[u]nlike DUI, [a violation
of 18 U.S.C. § 2423(a)] is purposeful and the perpetrator
is aware of the risks that the prostituted minor
will face” and that “the crime is implicitly (and sometimes
explicitly) aggressive, and coercion of the minor is
virtually inherent.” Id.
Title 18, Section 2423(a) makes it illegal to “knowingly
transport[ ] an individual who has not attained the age of
18 years in interstate or foreign commerce . . . with intent
that the individual engage in prostitution.” 18 U.S.C.
§ 2423(a). Defendant argues that transportation of a
minor in interstate commerce with the intent she engage
in prostitution is not “similar” in kind to the crimes listed
in Begay (burglary of a dwelling, arson, extortion, and
crimes involving explosives). He claims that the example
crimes all suggest the use of force or violence, which
18 U.S.C. § 2423(a) does not require. Patterson also
argues that the government’s emphasis on the social ills
associated with prostitution is misplaced. He points out
that 18 U.S.C. § 2423(a) does not punish prostitution, per
se, and notes that a violation of the statute does not even
require that prostitution take place.
The government argues that 18 U.S.C. § 2423(a) prohibits
purposeful, aggressive and violent conduct and therefore
is similar in kind to the crimes enumerated in the
statute. First, the government says that the crime is
“purposeful” because it requires the perpetrator to knowingly
transport a minor to another state as well as intend
that the minor to engage in prostitution. The crime is
therefore “deliberate,” unlike the strict liability offenses
contrasted in Begay, in which “the offender need not have
had any criminal intent at all.” Begay, 128 S.Ct. at 1586-87.
Second, the government contends that 18 U.S.C. § 2423(a)
contemplates “aggressive” conduct because commission
of the crime puts the perpetrator into a position of
power over the minor such that an element of coercion is
inherent in the crime. The government claims that the
crime, in this way, is “analogous to kidnaping,” which the
commentary to U.S.S.G. § 4B1.2 lists as an example of a
crime of violence. See U.S.S.G. § 4B1.2 cmt n.1. (However,
kidnaping requires that the defendant use force to
prevent the victim from escaping, an element not required
for a conviction under 18 U.S.C. § 2423(a).) Finally,
the government argues that 18 U.S.C. § 2423(a) is a “violent”
offense because the perpetrator must intend the
minor to engage in prostitution and therefore, according
to the government, “know[s] that the minor will
most likely be raped, assaulted, or abused by pimps and
customers.”
We agree with the government that the crime at issue
is “purposeful” and “aggressive.” The closest question
is whether a violation of 18 U.S.C. § 2423(a) is “violent.”2
On the one hand, Patterson is correct that the statute
does not contain as an element any use of violence or
force. On the other hand, the government is correct that
violation of the statute creates a significant risk of violence
against the victim by the perpetrator as well as third
parties. Ultimately, we are persuaded by the government’s
position that the risk of violence which attends a
violation of 18 U.S.C. § 2423(a) justifies its classification
as “violent” and that 18 U.S.C. § 2423(a) is therefore
“similar in kind” to the Guideline’s enumerated crimes.
While the Supreme Court has not definitively indicated
whether “attendant risks” should be taken into account
when analyzing whether a crime is similarly violent, see
Chambers, 129 S.Ct. at 692 (assuming “for the sake of
argument” that attendant risk of violence was relevant),
consideration of this factor would appear to be appropriate
in light of the fact that the second clause of
U.S.S.G. § 4B1.2(2) itself refers to the “potential risk”
inherent in crimes of violence. See U.S.S.G. § 4B1.2(2) (a
“crime of violence” 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”) (emphasis added).
Consideration of risks attendant to commission of a
crime is also supported by U.S.S.G. § 4B1.2(2)’s explicit
enumeration of burglary as a crime of violence. Like
Section 2423(a), burglary does not require the use of force
or violence.3 But the Supreme Court reasoned in Taylor
that Congress included burglary among the “crimes of
violence” in the ACCA because
Congress thought that certain general categories of
property crimes . . . so often presented a risk of injury to
persons, or were so often committed by career criminals,
that they should be included in the enhancement
statute even though, considered solely in terms of
their statutory elements, they do not necessarily
involve the use or threat of force against a person.
Taylor, 495 U.S. at 597. Likewise here, a violation of 18
U.S.C. § 2423(a) does not require violent conduct, but it
presents a substantial risk that violence will occur. Moreover,
we agree with our colleagues in the First Circuit,
that it is “surpassingly difficult to see how burglary could
be treated as a violent crime yet child trafficking exempted.”
See Williams, 529 F.3d at 8.
A violator of 18 U.S.C. § 2423(a) engages in purposeful
conduct that exposes the crime’s victim to a foreseeable
risk of violence, physical injury, and disease. We therefore
conclude that 18 U.S.C. § 2423(a) is “similar in kind”
to the enumerated crimes in U.S.S.G. § 4B1.2(2) and is a
crime of violence for purposes of the Sentencing Guidelines.
See Begay, 128 S.Ct. at 1587; United States v. Templeton,
543 F.3d 378, 380 (7th Cir. 2008).
D. “Undue Influence” and “Use of a Computer” Sentence
Enhancements
Patterson also objects to the district court’s enhancement
of his sentence for “Undue Influence” and “Use of a
Computer.” When reviewing a district court’s application
of sentencing enhancements, we review the district
court’s legal interpretations de novo, United States v.
Katalinic, 510 F.3d 744, 746 (7th Cir. 2007), and its factual
findings for clear error, United States v. Bryant, 557 F.3d
489, 500-01 (7th Cir. 2009). The clear error standard is
significantly deferential and an appellate court “may
only reverse a factual finding under this standard when
it is left with a ‘definite and firm conviction that a
mistake has been committed.’ ” United States v. Gerstein,
104 F.3d 973, 980 (7th Cir. 1997) (quoting Anderson v. City
of Bessemer City, 470 U.S. 564, 573 (1985)) (other citations
omitted).
1. Undue Influence
Sentencing Guideline § 2A3.2(b)(2)(B) requires a two
level enhancement where a participant “unduly influenced
the victim to engage in prohibited sexual conduct.” The
commentary to the Guideline instructs courts to closely
consider the particular facts of the case to determine
whether a “participant’s influence over the victim
compromised the voluntariness of the victim’s behavior.”
U.S.S.G. § 2A3.2, cmt. n.3. This court has stated that the
defining characteristic of undue influence is that it
involves “a situation where the ‘influencer’ has succeeded
in altering the behavior of the target.” U.S. v. Mitchell, 353
F.3d 552, 557 (7th Cir. 2003).
Here, the district court applied the enhancement
because the defendant “was the one” or “was one of the
people” who helped involve the victim with prostitution.
This finding was supported by the record. The defendant
was a forty-two year old man and the victim was a fourteen
year old girl at the time of the crime. The victim
testified to the grand jury that she had never worked in
prostitution before the defendant encouraged her to try
it. Moreover, the victim was destitute and penniless
when Patterson began urging her to travel to Chicago
with him to engage in internet-based prostitution, making
her more vulnerable to his influence.
Because the record supports the district court’s application
of the enhancement, and because there is no basis for
a definite and firm conviction that a mistake has been
committed, we affirm the district court’s application of
the “undue influence” enhancement.
2. Use of a Computer
Patterson argues—and the government concedes—that
the district court erred when it applied the U.S.S.G.
§ 2G1.3(b)(3) enhancement for “use of a computer.”
Under this provision of the Sentencing Guidelines, a
defendant’s offense level is increased two levels:
[i]f the offense involved the use of a computer or an
interactive computer service to . . . entice encourage,
offer, or solicit a person to engage in prohibited sexual
conduct with the minor . . . .
U.S.S.G. § 2G1.3(b)(3). The commentary, however,
further provides that “[s]ubsection (b)(3) is intended to
apply only to the use of a computer or an interactive
computer service to communicate directly with a minor
or with a person who exercises custody, care, or supervisory
control of the minor.” Id. § 2G1.3 cmt. n. 4. In this
case, no computers were used to “communicate directly”
with the victim or the victim’s custodian, so the enhancement
does not apply. We therefore reverse and remand
with regard to this enhancement in order to ensure that
it played no part in Patterson’s sentence.
E. Use of the 2007 Sentencing Guidelines
Finally, Patterson argues that the district court’s use of
the 2007 Sentencing Guidelines to calculate his sentence
violated the ex post facto clause of the Constitution.
Patterson never raised this argument before the district
court, so we review for plain error. See United States v.
Baretz, 411 F.3d 867, 875 (7th Cir. 2005).
Patterson’s argument is foreclosed by United States v.
Demaree, 459 F.3d 791, 795 (7th Cir. 2006), which held that
a change in the Sentencing Guidelines that expands the
guidelines range for a crime does not render application of
the later-Guidelines an ex post facto law. Defendant
argues that Demaree did not take Kimbrough v. United
States, 552 U.S. 85 (2007) or Gall v. United States, 552 U.S. 38
(2007) into account. However, the holding of Demaree
has been applied after Kimbrough and Gall, see, e.g., United
States v. Krasinski, 545 F.3d 546, 552 (7th Cir. 2008), and
does not contradict those decisions. Defendant’s other
argument, notwithstanding Demaree, is that offenders
who win their sentencing appeals “run the risk of a
remand for a significantly longer sentence” under a new
version of the Guidelines. However, as the government
points out, 18 U.S.C. § 3742(g)(1) directs that defendants
who win their sentencing appeals be resentenced under
the Guidelines “in effect on the date of the previous
sentencing.”
Because Patterson has presented no compelling reason
to revisit Demaree, and because his argument regarding
the potential for higher sentences on remand has no
merit, we reject his contention that the district court plainly
erred by applying the 2007 Guidelines.
III. Conclusion
For the reasons explained above, we AFFIRM the judgment
of the district court except with regard to the “use of
a computer” sentence enhancement. With regard to that
issue, we REVERSE and REMAND for further proceedings
consistent with this opinion.
U.S. vs. Gearhart
Monte Gearhart was convicted
of conspiracy to manufacture and distribute methamphetamine.
He appeals his conviction, arguing that the
delay between indictment and trial violated his
statutory and constitutional right to a speedy trial, and
that he was deprived of his Sixth Amendment right to
counsel.1 We affirm the judgment of conviction and
sentence.
I. BACKGROUND
From 2002 to 2006, Monte Gearhart and a number of
his acquaintances participated in a conspiracy to manufacture,
and distribute methamphetamine in southern
Illinois. The group cooked methamphetamine in Gearhart’s
home and at the homes of his co-defendants and then
used, bartered and sold the drugs they produced.
In January 2006, Gearhart was charged with conspiracy
to manufacture and distribute methamphetamine in
violation of 21 U.S.C. §§ 841, 846. Five co-defendants were
eventually charged along with him. Each of Gearhart’s codefendants
ultimately pleaded guilty and testified against
him. Gearhart himself was tried and found guilty in
October 2007, twenty months after he was indicted.
The principal reason for the delay between indictment
and trial was that Gearhart and his co-defendants filed
seventeen motions to postpone the trial. Gearhart’s own
counsel filed nine such motions. Further, Gearhart did not
object to any of his co-defendants’ motions or move to
dismiss the indictment on speedy trial grounds.
The trial was further delayed when the government
filed a motion to disqualify Gearhart’s attorney, Burton
Shostak. The government indicated that it had learned
that a former cellmate of Gearhart’s named Terry Rogers
had relevant information to its case and that it wanted
Rogers to testify. Rogers was represented by Grant
Shostak, who, in addition to being Burton’s son and law
partner, had also represented Gearhart himself at his
detention hearing. After receiving notice of the government’s
motion, Burton Shostak filed a motion to withdraw,
stating:
I had no alternative but to file a motion [to withdraw].
I will tell you it is not a heartfelt motion that I filed.
I would hope that you’d overrule it. I think that the
actions in this case by the government are despicable.
Monte has been in jail for over a year and a half. If you
appoint new counsel . . . which I am assuming you
will do, he’s got to start all over . . . . And I just wanted
the Court to know my feelings on the motion. And
that while I have filed the motion, I want the Court to
understand that I have to file it because of the way
things look and not truly because of the way things are.
Despite Shostak’s protest, the district court granted both
parties’ motions.
A new attorney was appointed, and Gearhart’s trial
began six weeks later in October 2007. The government
produced multiple witnesses who testified that Gearhart
used, dealt and manufactured methamphetamine. Terry
Rogers testified that when he shared a cell with Gearhart,
Gearhart admitted that he and a co-defendant “had dealt
[drugs] with each other several times.”
The jury found Gearhart guilty and returned a special
verdict finding that the conspiracy involved 500 grams or
more of methamphetamine. The district court, in turn,
found that the conspiracy involved between 1.5 and
5 kilograms of methamphetamine. Based on his adjusted
offense level of 43 and his criminal history category of
II, Gearhart was sentenced to life in prison.
II. DISCUSSION
A. Speedy Trial Claims
Gearhart’s principal argument is that the twentymonth
delay between indictment and trial violated both
his statutory and constitutional right to a speedy trial. The
Speedy Trial Act, 18 U.S.C. §§ 3161, et seq., requires
that a federal criminal defendant be brought to trial
within 70 days of the filing of the indictment. 18 U.S.C.
§ 3167(c)(1). However, the Act also provides that a defendant
waives his rights under the statute if he does not
move to dismiss the indictment. 18 U.S.C. § 3162(a)(2).
Accordingly, every circuit to consider the issue has
held that the failure to move for dismissal under the act
constitutes a waiver, not merely a forefeiture. United
States v. Morgan, 384 F.3d 439, 442 (7th Cir. 2004) (citing
cases). Gearhart did not move for dismissal below; thus,
his statutory speedy trial claim is not preserved for appellate
review.
Gearhart also argues that the delay violated his Sixth
Amendment right to a speedy trial. The constitutional
right to a speedy trial is both narrower and broader than
the corresponding statutory right. It is narrower because
it protects only against delays that result in prejudice;
but it is broader because the Constitution protects against
prejudicial delay regardless of whether a defendant can
show a violation of the Act. See, e.g., United States v.
Dessesaure, 556 F.3d 83, 86 (1st Cir. 2009) (per curiam).
Further, unlike a statutory speedy trial claim, a constitutional
claim can be reviewed for plain error even where
it was not raised below. See, e.g., United States v. Oriedo,
498 F.3d 593, 597 n.2 (7th Cir. 2007).
We evaluate constitutional speedy trial challenges
based on a four-part test: (1) whether the delay was
uncommonly long, (2) whether the government or the
defendant is more to blame for the delay, (3) whether the
defendant asserted his right to a speedy trial in due
course and (4) whether the defendant suffered prejudice
as a result of the delay. Doggett v. United States, 505
U.S. 647, 651-52 (1992); United States v. White, 443 F.3d 582,
589-90 (7th Cir. 2006).
In the present case, Gearhart was indicted on January 19,
2006, and he was not tried until October 15, 2007. However,
while this twenty-month delay is certainly long, the
remaining factors of the Doggett test weigh decisively
against Gearhart’s claim. First, Gearhart’s own counsel
sought nine continuances during the period prior to
trial. Where a defendant seeks and obtains a continuance,
the defendant himself is responsible for the
resulting delay. See United States v. Larson, 417 F.3d 741, 746
(7th Cir. 2005); United States v. Baskin-Bey, 45 F.3d 200, 204
(7th Cir. 1995). Second, Gearhart’s failure to object to
his co-defendants’ requested continuances weighs
heavily against his claim that the resulting delay violated
his constitutional rights. See United States v. Oriedo, 498
F.3d 593, 597 (7th Cir. 2007). Third, and most significantly,
Gearhart was not prejudiced by the delay. Although
Gearhart argues that he was prejudiced because the
government was able to strengthen its case against him
during the delay between indictment and trial, this fact
is not relevant to the prejudice analysis. See United States
v. Salerno, 108 F.3d 730, 738 (7th Cir. 1997) (“ ‘Prejudice’ is
not caused by allowing the Government properly to
strengthen its case, but rather by delays intended to
hamper defendant’s ability to present his defense.”)
(quoting United States v. Tedesco, 726 F.2d 1216, 1221 (7th
Cir. 1984)).
In short, while the delay between Gearhart’s indictment
and his trial was long, the circumstances of the delay
fall well short of establishing a violation of his Sixth
Amendment rights. A fortiori, it was not plain error for
the district court to fail to raise the issue on its own
motion.
B. Disqualification of Counsel
Gearhart also argues that the district court’s decision to
disqualify his attorney deprived him of his Sixth Amendment
right to counsel. We review the disqualification of
counsel for abuse of discretion. United States v. Bender, 539
F.3d 449, 454 (7th Cir. 2008). We likewise review the
manner in which the court balances the defendant’s
right to counsel against the government’s interest in
proving its case beyond a reasonable doubt for abuse of
discretion. United States v. Messino, 181 F.3d 826, 829-30
(7th Cir. 1999).
The Sixth Amendment protects a criminal defendant’s
right to a fair opportunity to secure the counsel of his
choice. Powell v. Alabama, 287 U.S. 45, 53 (1932); United
States v. O’Malley, 786 F.2d 786, 789 (7th Cir. 1986). This
right to choose one’s counsel, in turn, implies the right to
continuous representation by the counsel of one’s choice.
See Anne Bowen Poulin, Strengthening the Criminal Defendant’s
Right to Counsel, 28 Cardozo L. Rev. 1213, 1249
(2006). Thus, disqualification of defense counsel should be
a measure of last resort, and “the government bears a
heavy burden of establishing that disqualification is
justified.” United States v. Diozzi, 807 F.2d 10, 12 (1st Cir.
1986).
Applying these principles, we have held that the disqualification
of a defendant’s counsel of choice can in
principle pose a Sixth Amendment problem. O’Malley,
786 F.2d at 789; cf. Diozzi, 807 F.2d at 11 (finding a Sixth
Amendment violation in attorney’s disqualification
where the defendant was willing to stipulate to the evidence
giving rise to the conflict); United States v.
Cunningham, 672 F.2d 1064, 1073 (2d Cir. 1982) (finding
a Sixth Amendment violation in attorney’s disqualification
because the defendant agreed to limit his attorney’s
cross-examination of the witness whose testimony gave
rise to the conflict).
Like the majority of our sister circuits, we have
adopted a balancing test when the government seeks to
introduce evidence that would create a conflict of interest
for the defendant’s attorney. Messino, 181 F.3d at 830;
O’Malley, 786 F.2d at 790-91; see also United States v.
James, 708 F.2d 40, 45 (2d Cir. 1983); Cunningham,
672 F.2d at 1073; United States v. Garcia, 517 F.2d 272, 277-
78 (5th Cir. 1975).4 Specifically, we have held that the
introduction of evidence that would generate a conflict
of interest is subject to analysis under Rule 403 of the
Federal Rules of Evidence. Messino, 181 F.3d at 830. Rule
403 provides, “[a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of
cumulative evidence.” Thus, while there is a strong
presumption of admissibility, “the Rules delineate a zone
of discretion within which judges may exclude evidence.”
Messino, 181 F.3d at 829-30. In particular, a district court
may “on rare occasions” exclude evidence to resolve a
conflict of interest when “the probative value of the
evidence is weighed against the negative consequences
of admitting the evidence.” Id. at 830.
Gearhart’s central argument is that Rogers’ testimony
fails this balancing test because it was cumulative. Rogers
testified that Gearhart admitted he and a co-defendant
“had dealt with each other several times.” Gearhart argues
that this same information was provided by multiple other
witnesses who testified that Gearhart dealt, manufactured
and used methamphetamine.
The problem with this argument is that Rogers’ testimony,
although close in content to other evidence that
was admitted at trial, was not strictly speaking cumulative.
Other witnesses testified that they distributed,
cooked or used methamphetamine with Gearhart, but only
Rogers testified that Gearhart admitted to committing
these acts with his co-conspirators.5 This admission was
arguably probative of the existence of something more
than a mere buyer-seller relationship between Gearhart
and his co-defendants. See, e.g., United States v. Colon, 549
F.3d 565, 567-68 (7th Cir. 2008) (holding that something
more than a mere buyer-seller relationship is required to
support a conspiracy conviction). Thus, even if Gearhart
had preserved his objection to Rogers’ testimony, the
government’s interest in proving its case beyond a reasonable
doubt outweighed Gearhart’s interest in continuity
of counsel in this case.
Further, Shostak never asked the district court to
exclude Rogers’ testimony. Instead, after the government
gave notice of its intent to introduce Rogers’ testimony
Shostak moved to withdraw from the case, albeit
reluctantly. As Gearhart now notes, there were alternative
ways of remedying the conflict of interest, and the
district court had broad discretion to adopt a remedy
other than disqualification. O’Malley, 786 F.2d at 790-91.
For example, the parties could have stipulated to the
evidence or agreed to limit the scope of Rogers’ crossexamination.
Messino, 181 F.3d at 830; Cunningham,
672 F.2d at 1073. However, Gearhart’s attorney failed
to request any of these options; instead, he immediately
moved to withdraw. Since Shostak almost certainly
had access to confidential information concerning
Rogers, it was not plain error for the court to grant
Shostak’s motion.
III. CONCLUSION
The conviction and sentence are AFFIRMED.
Chicago Criminal Lawyer - Robert J Callahan
of conspiracy to manufacture and distribute methamphetamine.
He appeals his conviction, arguing that the
delay between indictment and trial violated his
statutory and constitutional right to a speedy trial, and
that he was deprived of his Sixth Amendment right to
counsel.1 We affirm the judgment of conviction and
sentence.
I. BACKGROUND
From 2002 to 2006, Monte Gearhart and a number of
his acquaintances participated in a conspiracy to manufacture,
and distribute methamphetamine in southern
Illinois. The group cooked methamphetamine in Gearhart’s
home and at the homes of his co-defendants and then
used, bartered and sold the drugs they produced.
In January 2006, Gearhart was charged with conspiracy
to manufacture and distribute methamphetamine in
violation of 21 U.S.C. §§ 841, 846. Five co-defendants were
eventually charged along with him. Each of Gearhart’s codefendants
ultimately pleaded guilty and testified against
him. Gearhart himself was tried and found guilty in
October 2007, twenty months after he was indicted.
The principal reason for the delay between indictment
and trial was that Gearhart and his co-defendants filed
seventeen motions to postpone the trial. Gearhart’s own
counsel filed nine such motions. Further, Gearhart did not
object to any of his co-defendants’ motions or move to
dismiss the indictment on speedy trial grounds.
The trial was further delayed when the government
filed a motion to disqualify Gearhart’s attorney, Burton
Shostak. The government indicated that it had learned
that a former cellmate of Gearhart’s named Terry Rogers
had relevant information to its case and that it wanted
Rogers to testify. Rogers was represented by Grant
Shostak, who, in addition to being Burton’s son and law
partner, had also represented Gearhart himself at his
detention hearing. After receiving notice of the government’s
motion, Burton Shostak filed a motion to withdraw,
stating:
I had no alternative but to file a motion [to withdraw].
I will tell you it is not a heartfelt motion that I filed.
I would hope that you’d overrule it. I think that the
actions in this case by the government are despicable.
Monte has been in jail for over a year and a half. If you
appoint new counsel . . . which I am assuming you
will do, he’s got to start all over . . . . And I just wanted
the Court to know my feelings on the motion. And
that while I have filed the motion, I want the Court to
understand that I have to file it because of the way
things look and not truly because of the way things are.
Despite Shostak’s protest, the district court granted both
parties’ motions.
A new attorney was appointed, and Gearhart’s trial
began six weeks later in October 2007. The government
produced multiple witnesses who testified that Gearhart
used, dealt and manufactured methamphetamine. Terry
Rogers testified that when he shared a cell with Gearhart,
Gearhart admitted that he and a co-defendant “had dealt
[drugs] with each other several times.”
The jury found Gearhart guilty and returned a special
verdict finding that the conspiracy involved 500 grams or
more of methamphetamine. The district court, in turn,
found that the conspiracy involved between 1.5 and
5 kilograms of methamphetamine. Based on his adjusted
offense level of 43 and his criminal history category of
II, Gearhart was sentenced to life in prison.
II. DISCUSSION
A. Speedy Trial Claims
Gearhart’s principal argument is that the twentymonth
delay between indictment and trial violated both
his statutory and constitutional right to a speedy trial. The
Speedy Trial Act, 18 U.S.C. §§ 3161, et seq., requires
that a federal criminal defendant be brought to trial
within 70 days of the filing of the indictment. 18 U.S.C.
§ 3167(c)(1). However, the Act also provides that a defendant
waives his rights under the statute if he does not
move to dismiss the indictment. 18 U.S.C. § 3162(a)(2).
Accordingly, every circuit to consider the issue has
held that the failure to move for dismissal under the act
constitutes a waiver, not merely a forefeiture. United
States v. Morgan, 384 F.3d 439, 442 (7th Cir. 2004) (citing
cases). Gearhart did not move for dismissal below; thus,
his statutory speedy trial claim is not preserved for appellate
review.
Gearhart also argues that the delay violated his Sixth
Amendment right to a speedy trial. The constitutional
right to a speedy trial is both narrower and broader than
the corresponding statutory right. It is narrower because
it protects only against delays that result in prejudice;
but it is broader because the Constitution protects against
prejudicial delay regardless of whether a defendant can
show a violation of the Act. See, e.g., United States v.
Dessesaure, 556 F.3d 83, 86 (1st Cir. 2009) (per curiam).
Further, unlike a statutory speedy trial claim, a constitutional
claim can be reviewed for plain error even where
it was not raised below. See, e.g., United States v. Oriedo,
498 F.3d 593, 597 n.2 (7th Cir. 2007).
We evaluate constitutional speedy trial challenges
based on a four-part test: (1) whether the delay was
uncommonly long, (2) whether the government or the
defendant is more to blame for the delay, (3) whether the
defendant asserted his right to a speedy trial in due
course and (4) whether the defendant suffered prejudice
as a result of the delay. Doggett v. United States, 505
U.S. 647, 651-52 (1992); United States v. White, 443 F.3d 582,
589-90 (7th Cir. 2006).
In the present case, Gearhart was indicted on January 19,
2006, and he was not tried until October 15, 2007. However,
while this twenty-month delay is certainly long, the
remaining factors of the Doggett test weigh decisively
against Gearhart’s claim. First, Gearhart’s own counsel
sought nine continuances during the period prior to
trial. Where a defendant seeks and obtains a continuance,
the defendant himself is responsible for the
resulting delay. See United States v. Larson, 417 F.3d 741, 746
(7th Cir. 2005); United States v. Baskin-Bey, 45 F.3d 200, 204
(7th Cir. 1995). Second, Gearhart’s failure to object to
his co-defendants’ requested continuances weighs
heavily against his claim that the resulting delay violated
his constitutional rights. See United States v. Oriedo, 498
F.3d 593, 597 (7th Cir. 2007). Third, and most significantly,
Gearhart was not prejudiced by the delay. Although
Gearhart argues that he was prejudiced because the
government was able to strengthen its case against him
during the delay between indictment and trial, this fact
is not relevant to the prejudice analysis. See United States
v. Salerno, 108 F.3d 730, 738 (7th Cir. 1997) (“ ‘Prejudice’ is
not caused by allowing the Government properly to
strengthen its case, but rather by delays intended to
hamper defendant’s ability to present his defense.”)
(quoting United States v. Tedesco, 726 F.2d 1216, 1221 (7th
Cir. 1984)).
In short, while the delay between Gearhart’s indictment
and his trial was long, the circumstances of the delay
fall well short of establishing a violation of his Sixth
Amendment rights. A fortiori, it was not plain error for
the district court to fail to raise the issue on its own
motion.
B. Disqualification of Counsel
Gearhart also argues that the district court’s decision to
disqualify his attorney deprived him of his Sixth Amendment
right to counsel. We review the disqualification of
counsel for abuse of discretion. United States v. Bender, 539
F.3d 449, 454 (7th Cir. 2008). We likewise review the
manner in which the court balances the defendant’s
right to counsel against the government’s interest in
proving its case beyond a reasonable doubt for abuse of
discretion. United States v. Messino, 181 F.3d 826, 829-30
(7th Cir. 1999).
The Sixth Amendment protects a criminal defendant’s
right to a fair opportunity to secure the counsel of his
choice. Powell v. Alabama, 287 U.S. 45, 53 (1932); United
States v. O’Malley, 786 F.2d 786, 789 (7th Cir. 1986). This
right to choose one’s counsel, in turn, implies the right to
continuous representation by the counsel of one’s choice.
See Anne Bowen Poulin, Strengthening the Criminal Defendant’s
Right to Counsel, 28 Cardozo L. Rev. 1213, 1249
(2006). Thus, disqualification of defense counsel should be
a measure of last resort, and “the government bears a
heavy burden of establishing that disqualification is
justified.” United States v. Diozzi, 807 F.2d 10, 12 (1st Cir.
1986).
Applying these principles, we have held that the disqualification
of a defendant’s counsel of choice can in
principle pose a Sixth Amendment problem. O’Malley,
786 F.2d at 789; cf. Diozzi, 807 F.2d at 11 (finding a Sixth
Amendment violation in attorney’s disqualification
where the defendant was willing to stipulate to the evidence
giving rise to the conflict); United States v.
Cunningham, 672 F.2d 1064, 1073 (2d Cir. 1982) (finding
a Sixth Amendment violation in attorney’s disqualification
because the defendant agreed to limit his attorney’s
cross-examination of the witness whose testimony gave
rise to the conflict).
Like the majority of our sister circuits, we have
adopted a balancing test when the government seeks to
introduce evidence that would create a conflict of interest
for the defendant’s attorney. Messino, 181 F.3d at 830;
O’Malley, 786 F.2d at 790-91; see also United States v.
James, 708 F.2d 40, 45 (2d Cir. 1983); Cunningham,
672 F.2d at 1073; United States v. Garcia, 517 F.2d 272, 277-
78 (5th Cir. 1975).4 Specifically, we have held that the
introduction of evidence that would generate a conflict
of interest is subject to analysis under Rule 403 of the
Federal Rules of Evidence. Messino, 181 F.3d at 830. Rule
403 provides, “[a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of
cumulative evidence.” Thus, while there is a strong
presumption of admissibility, “the Rules delineate a zone
of discretion within which judges may exclude evidence.”
Messino, 181 F.3d at 829-30. In particular, a district court
may “on rare occasions” exclude evidence to resolve a
conflict of interest when “the probative value of the
evidence is weighed against the negative consequences
of admitting the evidence.” Id. at 830.
Gearhart’s central argument is that Rogers’ testimony
fails this balancing test because it was cumulative. Rogers
testified that Gearhart admitted he and a co-defendant
“had dealt with each other several times.” Gearhart argues
that this same information was provided by multiple other
witnesses who testified that Gearhart dealt, manufactured
and used methamphetamine.
The problem with this argument is that Rogers’ testimony,
although close in content to other evidence that
was admitted at trial, was not strictly speaking cumulative.
Other witnesses testified that they distributed,
cooked or used methamphetamine with Gearhart, but only
Rogers testified that Gearhart admitted to committing
these acts with his co-conspirators.5 This admission was
arguably probative of the existence of something more
than a mere buyer-seller relationship between Gearhart
and his co-defendants. See, e.g., United States v. Colon, 549
F.3d 565, 567-68 (7th Cir. 2008) (holding that something
more than a mere buyer-seller relationship is required to
support a conspiracy conviction). Thus, even if Gearhart
had preserved his objection to Rogers’ testimony, the
government’s interest in proving its case beyond a reasonable
doubt outweighed Gearhart’s interest in continuity
of counsel in this case.
Further, Shostak never asked the district court to
exclude Rogers’ testimony. Instead, after the government
gave notice of its intent to introduce Rogers’ testimony
Shostak moved to withdraw from the case, albeit
reluctantly. As Gearhart now notes, there were alternative
ways of remedying the conflict of interest, and the
district court had broad discretion to adopt a remedy
other than disqualification. O’Malley, 786 F.2d at 790-91.
For example, the parties could have stipulated to the
evidence or agreed to limit the scope of Rogers’ crossexamination.
Messino, 181 F.3d at 830; Cunningham,
672 F.2d at 1073. However, Gearhart’s attorney failed
to request any of these options; instead, he immediately
moved to withdraw. Since Shostak almost certainly
had access to confidential information concerning
Rogers, it was not plain error for the court to grant
Shostak’s motion.
III. CONCLUSION
The conviction and sentence are AFFIRMED.
Chicago Criminal Lawyer - Robert J Callahan
U.S. vs. Jackson
Eric Jackson was sentenced to
a 96 month term of imprisonment for possession of a
firearm by a previously-convicted felon. The gun that
was the basis of the possession charge was found on
Jackson’s person when the police executed an arrest
warrant for Jackson in an acquaintance’s apartment
where Jackson had been staying. On appeal, Jackson
challenges the denial of his motion to suppress the gun
and the imposition of an above-Guidelines sentence.
We affirm.
I. BACKGROUND
Eric Jackson was arrested by the Winnebago County
Sheriff’s Department based on an outstanding warrant
for aggravated battery. After unsuccessfully attempting
to locate Jackson at the residences of multiple relatives,
the police received an anonymous tip that Jackson had
been staying at his father’s girlfriend’s apartment on
1107 Elm Street and that he would be at that address
the next day—June 1, 2007—in the early morning.
The police arrived at the apartment at approximately
8:30 in the morning, and were invited into the vestibule
by LanDonna Joseph, the primary tenant. When the
officers showed Jackson’s picture to Joseph, she professed
not to recognize him but the officers judged from
her body language that she was lying. Still without entering
the apartment, the officers next showed Jackson’s
picture to Tyneesha Barbary, who was sitting nearby. (As
it happens, Barbary was Jackson’s girlfriend and was
pregnant with his child.) When the officers asked Barbary
if Jackson was in the apartment, she started to cry and
nodded her head. The officers subsequently entered the
apartment and followed Barbary to a back bedroom
where Jackson was sleeping with Barbary’s daughter.
After handcuffing Jackson, the officers searched the
immediate area and found a pistol within grabbing distance
under the blanket on which he had been sleeping.
Although he was initially arrested for aggravated
battery, Jackson was ultimately charged in federal court
with possession of a firearm by a previously-convicted
felon in violation of 18 U.S.C. § 922. The district court
denied Jackson’s motion to suppress the gun that was
seized during the arrest, finding that the search was
lawful because the police reasonably believed that Jackson
was within Joseph’s apartment when they entered. Following
the court’s denial of his suppression motion, Jackson
pleaded guilty. The court calculated his sentencing range
as 37 to 46 months, but sentenced him to 96 months’
imprisonment, more than twice the top of his Guidelines
range. The court found that this sentence was necessary “to
stop you before you kill somebody or before you get
killed.”
II. DISCUSSION
A. Jackson’s Arrest
As a threshold matter, we reject Jackson’s argument
that the police needed a search warrant as well as an
arrest warrant in order to enter Joseph’s apartment in
order to arrest him.1 “[F]or Fourth Amendment purposes,
an arrest warrant founded on probable cause implicitly
carries with it the limited authority to enter a dwelling
in which the suspect lives when there is reason to
believe the suspect is within.” Payton v. New York, 445
U.S. 573, 602 (1980). Of course, the warrant application
process does not protect the Fourth Amendment
interests of third parties. Thus, if officers enter a
third party’s residence in order to effect an arrest, the
third party herself may have a Fourth Amendment claim
against the officers. This is the holding of United States
v. Steagald, 451 U.S. 204 (1981). However, in Steagald, the
court was quite explicit that “the narrow issue before [the
Court was] whether an arrest warrant—as opposed to a
search warrant—is adequate to protect the Fourth Amendment
interests of persons not named in the warrant.” Id. at
212 (emphasis added). Because it addresses only the
Fourth Amendment rights of persons not named in an
arrest warrant, Steagald did not hold that the subject of an
arrest warrant has a higher expectation of privacy in
another person’s residence than he does in his own. E.g.,
United States v. Underwood, 717 F.2d 482, 483-84 (9th Cir.
1983) (en banc). Further, nearly every court of appeals to
consider the issue has held that law enforcement
officers do not need a search warrant in addition to an
arrest warrant to enter a third party’s residence in order
to effect an arrest. See United States v. Agnew, 407 F.3d 193,
197 (3d Cir. 2005); United States v. Kaylor, 877 F.2d 658, 663
(8th Cir. 1989); Underwood, 717 F.2d at 483-84 (9th Cir.
1983); United States v. Buckner, 717 F.2d 297, 299-300 (6th
Cir. 1983).
Jackson argues that there is no difference between
searching a person’s home for evidence and searching
for a person. This argument conflates the resident’s
Fourth Amendment interest with that of the arrestee. If
officers unlawfully enter a person’s home, then that
person may have a civil claim for damages against the
officers. If the officers uncover evidence that the resident
committed a crime, then the evidence may be suppressed.
But again, it would be anomalous if the subject
of an arrest warrant had a greater expectation of privacy
in another person’s home than he had in his own.
Although officers do not need a search warrant to
execute an arrest warrant in a third party’s home, they
do need some basis for believing that the suspect is
actually present in the home. This court has not
addressed what degree of suspicion officers need in
order to enter a third party’s home to execute an arrest
warrant. In Payton, the Supreme Court held that an arrest
warrant “carries with it the limited authority to enter a
dwelling when there is reason to believe the suspect is
within.” 445 U.S. at 602 (emphasis added).
Our sister circuits disagree about what “reasonable
belief” actually entails and whether its meaning is different
from probable cause. By our count, three circuits
have explicitly concluded that reasonable belief requires
a lesser degree of knowledge than probable cause. See
United States v. Thomas, 429 F.3d 282, 286 (D.C. Cir. 2005);
Valdez v. McPheters, 172 F.3d 1220, 1227 n.5 (10th Cir. 1999);
United States v. Lauter, 57 F.3d 212, 215 (2d Cir. 1995).3
The courts in these cases conclude that the Supreme Court
“used a phrase other than ‘probable cause’ because it
meant something other than ‘probable cause.’ ” Thomas,
429 F.3d at 286.4
Four other circuits have disagreed, holding that “reasonable
belief” amounts to the same thing as “probable cause.”
See United States v. Hardin, 539 F.3d 404, 416 n.6 (6th Cir.
2008); United States v. Barrera, 464 F.3d 496, 501 (5th Cir.
2006); United States v. Gorman, 314 F.3d 1105, 1111 (9th Cir.
2002); United States v. Magluta, 44 F.3d 1530, 1535 (11th
Cir. 1995). As Judge Clay explained in a concurring opinion,
the Supreme Court tends to use phrases like “reasonable
grounds for belief” as “grammatical analogue[s]”
for probable cause. United States v. Pruitt, 458 F.3d 477, 490
(6th Cir. 2006) (Clay, J., concurring) (citing cases). To wit,
in Maryland v. Pringle, 540 U.S. 366 (2003), the Court
appears to use “reasonable belief” to define probable
cause. Id. at 371 (“[T]he substance of all the definitions of
probable cause is a reasonable ground for belief of guilt.”).
Were we to reach the issue, we might be inclined to
adopt the view of the narrow majority of our sister
circuits that “reasonable belief” is synonymous with
probable cause. However, we need not decide whether
“reasonable belief” requires probable cause or something
less than probable cause because in the present case the
police had enough evidence to easily satisfy a probable
cause standard. The police received a tip that Jackson
was staying at Joseph’s apartment and that he would be
there the following morning. When the police arrived at
the apartment, they asked Jackson’s girlfriend if Jackson
was inside and she nodded yes and started crying. This
was more than enough to lead a prudent person to
believe that Jackson was inside the apartment when he or
she entered. See Jones v. Webb, 45 F.3d 178, 181 (7th Cir.
1995) (defining probable cause as existing when the
facts and circumstances within a police officer’s knowledge
are sufficient to warrant a prudent person in such
a belief). Thus, we need not decide whether “reasonable
belief” can constitute less than probable cause; the
police clearly had probable cause in this case.
B. Jackson’s Sentence
Jackson also argues that his sentence was unreasonable.
The district court imposed a 96 month sentence, which
was more than twice the high end of Jackson’s Guidelines
range. We review the reasonableness of Jackson’s
sentence for abuse of discretion. Gall v. United States, 128
S. Ct. 586, 591 (2007); United States v. Jackson, 547 F.3d
786, 792 (7th Cir. 2008). No presumption of unreasonableness
attaches to a sentence simply because it falls
outside the Guidelines range. Gall, 128 S. Ct. at 595.
The principal basis for the enhanced sentence was
the court’s conclusion that Jackson was dangerous and
incorrigible, explaining that a higher than Guidelines
sentence was needed “to stop you [Jackson] before you
kill somebody or before you get killed.” This conclusion,
in turn, was based primarily on the court’s finding that
Jackson had used the gun he was convicted of possessing
to shoot someone. Recall that although Jackson was
ultimately charged with possession of a firearm by a
convicted felon, he was arrested pursuant to an arrest
warrant for aggravated battery. Roughly two months
before his arrest, Jackson was alleged to have shot a man
who had apparently made romantic overtures toward
his girlfriend, Tyneesha Barbary. An officer witnessed
Jackson flee the scene with his hand in his waistband as
if he were concealing a gun. Barbary later gave a sworn
statement that Jackson was the shooter.5 And the victim
himself identified Jackson as the shooter.
In addition to the evidence that Jackson had used the
gun he was charged with possessing to shoot his romantic
rival, the district court also noted that Jackson had been
convicted of weapons possession on multiple occasions,
that he had actually shot people on at least two other
occasions and that he had not adjusted well to parole.
Further, while Jackson argues that the district court
impermissibly focused on charges that were dropped or
dismissed, this is an overstatement: Jackson has been
convicted of multiple violent crimes.
In short, it was not unreasonable for the court to conclude
that Jackson is a menace, and therefore that an
above-Guidelines sentence was needed to deter further
criminal activity. The judgment of conviction and sentence
are
AFFIRMED.
Chicago Criminal Lawyer - Robert J Callahan
a 96 month term of imprisonment for possession of a
firearm by a previously-convicted felon. The gun that
was the basis of the possession charge was found on
Jackson’s person when the police executed an arrest
warrant for Jackson in an acquaintance’s apartment
where Jackson had been staying. On appeal, Jackson
challenges the denial of his motion to suppress the gun
and the imposition of an above-Guidelines sentence.
We affirm.
I. BACKGROUND
Eric Jackson was arrested by the Winnebago County
Sheriff’s Department based on an outstanding warrant
for aggravated battery. After unsuccessfully attempting
to locate Jackson at the residences of multiple relatives,
the police received an anonymous tip that Jackson had
been staying at his father’s girlfriend’s apartment on
1107 Elm Street and that he would be at that address
the next day—June 1, 2007—in the early morning.
The police arrived at the apartment at approximately
8:30 in the morning, and were invited into the vestibule
by LanDonna Joseph, the primary tenant. When the
officers showed Jackson’s picture to Joseph, she professed
not to recognize him but the officers judged from
her body language that she was lying. Still without entering
the apartment, the officers next showed Jackson’s
picture to Tyneesha Barbary, who was sitting nearby. (As
it happens, Barbary was Jackson’s girlfriend and was
pregnant with his child.) When the officers asked Barbary
if Jackson was in the apartment, she started to cry and
nodded her head. The officers subsequently entered the
apartment and followed Barbary to a back bedroom
where Jackson was sleeping with Barbary’s daughter.
After handcuffing Jackson, the officers searched the
immediate area and found a pistol within grabbing distance
under the blanket on which he had been sleeping.
Although he was initially arrested for aggravated
battery, Jackson was ultimately charged in federal court
with possession of a firearm by a previously-convicted
felon in violation of 18 U.S.C. § 922. The district court
denied Jackson’s motion to suppress the gun that was
seized during the arrest, finding that the search was
lawful because the police reasonably believed that Jackson
was within Joseph’s apartment when they entered. Following
the court’s denial of his suppression motion, Jackson
pleaded guilty. The court calculated his sentencing range
as 37 to 46 months, but sentenced him to 96 months’
imprisonment, more than twice the top of his Guidelines
range. The court found that this sentence was necessary “to
stop you before you kill somebody or before you get
killed.”
II. DISCUSSION
A. Jackson’s Arrest
As a threshold matter, we reject Jackson’s argument
that the police needed a search warrant as well as an
arrest warrant in order to enter Joseph’s apartment in
order to arrest him.1 “[F]or Fourth Amendment purposes,
an arrest warrant founded on probable cause implicitly
carries with it the limited authority to enter a dwelling
in which the suspect lives when there is reason to
believe the suspect is within.” Payton v. New York, 445
U.S. 573, 602 (1980). Of course, the warrant application
process does not protect the Fourth Amendment
interests of third parties. Thus, if officers enter a
third party’s residence in order to effect an arrest, the
third party herself may have a Fourth Amendment claim
against the officers. This is the holding of United States
v. Steagald, 451 U.S. 204 (1981). However, in Steagald, the
court was quite explicit that “the narrow issue before [the
Court was] whether an arrest warrant—as opposed to a
search warrant—is adequate to protect the Fourth Amendment
interests of persons not named in the warrant.” Id. at
212 (emphasis added). Because it addresses only the
Fourth Amendment rights of persons not named in an
arrest warrant, Steagald did not hold that the subject of an
arrest warrant has a higher expectation of privacy in
another person’s residence than he does in his own. E.g.,
United States v. Underwood, 717 F.2d 482, 483-84 (9th Cir.
1983) (en banc). Further, nearly every court of appeals to
consider the issue has held that law enforcement
officers do not need a search warrant in addition to an
arrest warrant to enter a third party’s residence in order
to effect an arrest. See United States v. Agnew, 407 F.3d 193,
197 (3d Cir. 2005); United States v. Kaylor, 877 F.2d 658, 663
(8th Cir. 1989); Underwood, 717 F.2d at 483-84 (9th Cir.
1983); United States v. Buckner, 717 F.2d 297, 299-300 (6th
Cir. 1983).
Jackson argues that there is no difference between
searching a person’s home for evidence and searching
for a person. This argument conflates the resident’s
Fourth Amendment interest with that of the arrestee. If
officers unlawfully enter a person’s home, then that
person may have a civil claim for damages against the
officers. If the officers uncover evidence that the resident
committed a crime, then the evidence may be suppressed.
But again, it would be anomalous if the subject
of an arrest warrant had a greater expectation of privacy
in another person’s home than he had in his own.
Although officers do not need a search warrant to
execute an arrest warrant in a third party’s home, they
do need some basis for believing that the suspect is
actually present in the home. This court has not
addressed what degree of suspicion officers need in
order to enter a third party’s home to execute an arrest
warrant. In Payton, the Supreme Court held that an arrest
warrant “carries with it the limited authority to enter a
dwelling when there is reason to believe the suspect is
within.” 445 U.S. at 602 (emphasis added).
Our sister circuits disagree about what “reasonable
belief” actually entails and whether its meaning is different
from probable cause. By our count, three circuits
have explicitly concluded that reasonable belief requires
a lesser degree of knowledge than probable cause. See
United States v. Thomas, 429 F.3d 282, 286 (D.C. Cir. 2005);
Valdez v. McPheters, 172 F.3d 1220, 1227 n.5 (10th Cir. 1999);
United States v. Lauter, 57 F.3d 212, 215 (2d Cir. 1995).3
The courts in these cases conclude that the Supreme Court
“used a phrase other than ‘probable cause’ because it
meant something other than ‘probable cause.’ ” Thomas,
429 F.3d at 286.4
Four other circuits have disagreed, holding that “reasonable
belief” amounts to the same thing as “probable cause.”
See United States v. Hardin, 539 F.3d 404, 416 n.6 (6th Cir.
2008); United States v. Barrera, 464 F.3d 496, 501 (5th Cir.
2006); United States v. Gorman, 314 F.3d 1105, 1111 (9th Cir.
2002); United States v. Magluta, 44 F.3d 1530, 1535 (11th
Cir. 1995). As Judge Clay explained in a concurring opinion,
the Supreme Court tends to use phrases like “reasonable
grounds for belief” as “grammatical analogue[s]”
for probable cause. United States v. Pruitt, 458 F.3d 477, 490
(6th Cir. 2006) (Clay, J., concurring) (citing cases). To wit,
in Maryland v. Pringle, 540 U.S. 366 (2003), the Court
appears to use “reasonable belief” to define probable
cause. Id. at 371 (“[T]he substance of all the definitions of
probable cause is a reasonable ground for belief of guilt.”).
Were we to reach the issue, we might be inclined to
adopt the view of the narrow majority of our sister
circuits that “reasonable belief” is synonymous with
probable cause. However, we need not decide whether
“reasonable belief” requires probable cause or something
less than probable cause because in the present case the
police had enough evidence to easily satisfy a probable
cause standard. The police received a tip that Jackson
was staying at Joseph’s apartment and that he would be
there the following morning. When the police arrived at
the apartment, they asked Jackson’s girlfriend if Jackson
was inside and she nodded yes and started crying. This
was more than enough to lead a prudent person to
believe that Jackson was inside the apartment when he or
she entered. See Jones v. Webb, 45 F.3d 178, 181 (7th Cir.
1995) (defining probable cause as existing when the
facts and circumstances within a police officer’s knowledge
are sufficient to warrant a prudent person in such
a belief). Thus, we need not decide whether “reasonable
belief” can constitute less than probable cause; the
police clearly had probable cause in this case.
B. Jackson’s Sentence
Jackson also argues that his sentence was unreasonable.
The district court imposed a 96 month sentence, which
was more than twice the high end of Jackson’s Guidelines
range. We review the reasonableness of Jackson’s
sentence for abuse of discretion. Gall v. United States, 128
S. Ct. 586, 591 (2007); United States v. Jackson, 547 F.3d
786, 792 (7th Cir. 2008). No presumption of unreasonableness
attaches to a sentence simply because it falls
outside the Guidelines range. Gall, 128 S. Ct. at 595.
The principal basis for the enhanced sentence was
the court’s conclusion that Jackson was dangerous and
incorrigible, explaining that a higher than Guidelines
sentence was needed “to stop you [Jackson] before you
kill somebody or before you get killed.” This conclusion,
in turn, was based primarily on the court’s finding that
Jackson had used the gun he was convicted of possessing
to shoot someone. Recall that although Jackson was
ultimately charged with possession of a firearm by a
convicted felon, he was arrested pursuant to an arrest
warrant for aggravated battery. Roughly two months
before his arrest, Jackson was alleged to have shot a man
who had apparently made romantic overtures toward
his girlfriend, Tyneesha Barbary. An officer witnessed
Jackson flee the scene with his hand in his waistband as
if he were concealing a gun. Barbary later gave a sworn
statement that Jackson was the shooter.5 And the victim
himself identified Jackson as the shooter.
In addition to the evidence that Jackson had used the
gun he was charged with possessing to shoot his romantic
rival, the district court also noted that Jackson had been
convicted of weapons possession on multiple occasions,
that he had actually shot people on at least two other
occasions and that he had not adjusted well to parole.
Further, while Jackson argues that the district court
impermissibly focused on charges that were dropped or
dismissed, this is an overstatement: Jackson has been
convicted of multiple violent crimes.
In short, it was not unreasonable for the court to conclude
that Jackson is a menace, and therefore that an
above-Guidelines sentence was needed to deter further
criminal activity. The judgment of conviction and sentence
are
AFFIRMED.
Chicago Criminal Lawyer - Robert J Callahan
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