A jury convicted Brian Dodds,
whose legal name is Horace Wilson, of unlawfully possessing
a firearm in or affecting commerce following a
felony conviction. See 18 U.S.C. § 922(g)(1). Dodds
appeals, arguing that the district court erred in allowing
the government to elicit testimony concerning his legal
name and in permitting one of the officers who arrested
him to recount the physical description given by an
unidentified witness who had seen Dodds pointing a
gun at people. Because neither evidentiary ruling was
an abuse of discretion or a violation of his constitutional
rights, we affirm Dodds’ conviction.
I.
At approximately 10:15 on the evening of November 10,
2005, Milwaukee’s emergency services center received a
911 call reporting “shots fired” in the vicinity of 37th and
Galena Streets. Police officer Timothy Koestering was
among the police officers dispatched to that location to
investigate. Seeing nothing upon his arrival, Koestering
pulled his vehicle over and contacted the 911 caller to
verify the report. Just after he finished that call, an unidentified
person driving a red Dodge pulled alongside of
Koestering’s vehicle and told him that he had seen an
African American male, wearing a black jacket and a
black knit cap, pointing a gun at people two blocks away
at the corner of 35th and Galena.
Koestering and his fellow officers proceeded at once
to 35th and Galena. Officer James Williams and his
partner, Officer Tony Knox, were among the first to
arrive. As they pulled up, Williams saw a man matching
the description given Koestering emerge from the
gangway between two houses and walk into the Edge
Sports Bar on the corner. Williams and Knox followed the
man into the bar and asked him to step outside. They
patted him down but did not discover a weapon on his
person. When they asked the man to identify himself,
he gave his name as Brian Dodds.
Koestering placed Dodds in the back of his squad car
and then used the vehicle’s computer interface to see if
there were any outstanding warrants for Dodds. He
found none.
Meanwhile, Officer Bradley Schlei was searching the
gangway from which his colleagues had seen Dodds
emerge. He found a Taurus .38-caliber revolver lying on
the ground. The gun was left in place until it could be
properly photographed by crime scene technicians. Schlei
later recovered six spent bullet cartridges from inside
of the gun.
After Schlei reported the discovery of the firearm to
the other officers and while they were awaiting the
arrival of the technicians, Jerry Watkins drove by and
informed the officers that he had seen a man with a gun
at 35th and Galena earlier that same evening while
driving his friend Dawn Woods to work. Although
Dodds was sitting in the back seat of Koestering’s
police car when Watkins spoke to the officers, Williams
would later testify that Watkins was too far away
from Koestering’s vehicle for Watkins to have seen him
in the darkness.
At that point Dodds was placed under arrest and taken
to a police station. Koestering created a sequential photo
array later that evening to show to Watkins and Woods.
When they were shown the array early the next morning,
Woods, but not Watkins, identified Dodds as the man
who had pointed a gun at them. At trial, Woods
thought that the weapon recovered from the gangway
was the one she had seen Dodds carrying, although
she could not be positive.
Dodds was subsequently indicted and tried on the
charge that he had unlawfully possessed a firearm following
a felony conviction. Watkins and Woods were
among the witnesses for the government. Watkins
testified that as they drove by the intersection of 35th and
Galena en route to Woods’ workplace, Dodds had approached
their vehicle and shouted something at them.
His curiosity piqued, Watkins circled the block and
drove back to where Dodds was standing. Woods
testified that when Watkins asked Dodds what was
going on, Dodds briefly pointed a gun at Watkins. But
then, according to Woods, Dodds backed off, put the
gun into his pants pocket, and walked away. “I thought
you was somebody else,” Woods recalled Dodds remarking.
R. 74 at 188.
Milwaukee Police Department (“MPD”) document
examiner Cole Stephens testified that he had examined a
latent partial print recovered from the cylinder of the .38-
caliber revolver that Schlei had discovered near the
intersection of 35th and Galena. In Stephens’ opinion,
the print matched Dodds’ right middle finger.
MPD latent print examiner Douglas Knueppel had
compared a set of fingerprints taken from Dodds in
connection with his November 2005 arrest with prints on
file in Illinois under the name of Horace Wilson. He
concluded that the prints were a match and that
Dodds and Wilson were the same individual.
Sharon Polakowski, a forensic scientist with the Wisconsin
State Crime Laboratory, testified that DNA from
three different individuals had been recovered from the
revolver. However, none of the DNA matched that of
Dodds.
Dodds took the witness stand in his own defense. He
testified that he began using the name Brian Dodds in
2000, after he discovered that the man he had thought
was his father—also named Horace Wilson—was not.
However, Dodds had never legally changed his name
from Horace Wilson. He denied any contact with
Watkins and Woods on the evening of November 10, and
he also denied having possessed, fired, or brandished
the revolver that Schlei discovered in the gangway near
35th and Galena. Dodds testified that he had been at the
Edge Sports Bar from 8:30 onward that evening. He
said that he was one of seven to ten men with black
jackets that the police removed from the bar, placed
against a wall, and searched. According to Dodds, the
police went down the line of men repeatedly asking an
unidentified individual that Dodds could not see, “Is
this him?” Dodds also testified that after the police took
him into custody and transported him to the police station,
he was beaten into unconsciousness after he refused to
have his fingerprints electronically scanned. When asked
by the government how his print might have gotten onto
the revolver that Schlei found, Dodds implied that
police might have placed the gun into his hand while
he was unconscious.
Police officers Koestering, Williams, Schlei, and Kevin
Fellmeth took the stand in rebuttal and denied Dodds’
account of the events surrounding his arrest. Koestering,
Williams, and Schlei each testified that Dodds was the
only man who had been taken from the bar and that no
one, including Dodds, had been shown to a witness for
identification at the scene. Fellmeth was present when
Dodds was booked at the police station and testified
that a struggle occurred when Dodds refused to place
his fingers on an electronic fingerprint scanner. Dodds
had briefly passed out during the struggle. Fellmeth
denied that anyone had hit or punched Dodds or placed
a gun in his hand. Koestering, who was also present for
the struggle, also denied that anyone had struck
Dodds or placed a gun in his hand. Schlei, who had
taken the .38-caliber revolver into his custody at 35th
and Galena, likewise denied that he or any other officer
had placed a gun into Dodds’ hand.
The jury convicted Dodds on the felon-in-possession
charge. The district court later ordered him to serve a
prison term of 120 months, the statutory maximum,
which was below the range of 151 to 188 months advised
by the Sentencing Guidelines.
II.
A. Allowing Reference to Dodds’ Legal Name
In advance of trial, Dodds asked the court to bar any
reference to the fact that his birth name was Horace
Wilson. The government at first posed no objection to
Dodds’ request, but later altered course and opposed
the motion. The government attributed its change of
heart to its belated discovery that Dodds had never
legally changed his name and to its realization that Dodds
had an incentive not to use the name Wilson with the
police because he had two prior felony convictions in
Illinois under that name, but only misdemeanor convictions
in Wisconsin under the name of Dodds. R. 43 at 2-3.
The government argued that the defendant’s use of a
name other than his legal name was proof of his consciousness
of guilt, and so evidence that he had a name
other than the one he gave to police at the time of his
arrest was admissible to put the name “Brian Dodds” in
that context. The court denied Dodds’ motion in limine
on that basis. “[T]here may very well be an innocent
explanation for the use of both names, but . . . the Government
can also infer that there was consciousness of
guilt,” the court reasoned. R. 74 at 13.
Dodds contends that the district court’s decision to
allow reference to the fact that he had a name other
than Dodds was an error that prejudiced him. He argues
that although he had not legally changed his name, he
had used the name Brian Dodds for years. Consequently,
identifying himself to the authorities as Brian Dodds was
consistent with the name he used every day and was not
proof that he was conscious of having committed a
crime (unlawful possession of a firearm by a felon) and
was attempting to evade detection of his offense by
giving the police a false name. Allowing reference to
the fact that he had a different name prejudiced him in
the eyes of the jurors, Dodds contends, because the use
of an alias suggests that one has something to hide. He
believes that the evidence was irrelevant and inadmissible
under Evidentiary Rules 401 and 402, and in any case
should have been excluded as unduly prejudicial pursuant
to Rule 403.
For several reasons, we reject the notion that the district
court abused its discretion in denying Dodds’ motion in
limine. First, whatever name Dodds was using, and for
whatever reason, Horace Wilson was his legal name.
That name was a matter of public record, he had felony
convictions under that name, and one may expect that
one’s legal name, like other matters of record (one’s
age, residence, and place of employment), will be the
subject of inquiry at trial. The use of a name other than
one’s legally-recognized name may or may not be indicative
of wrongdoing, but reference to one’s legal name
is hardly unusual or unexpected, particularly in a legal
proceeding. It is not as if Dodds were in the witness
protection program. As for the probative value of the
fact that he was using a name other than his legal
name, granted, Dodds was not a name that he made up
on the spot when the police hauled him out of the bar:
he had misdemeanor convictions under that name,
which tends to confirm his own account that he had
used that name for some time. Still, we take the government’s
point: knowing that he had a felony conviction
under the name of Wilson, which precluded him from
carrying a firearm, he might have used the name Dodds
in part to disguise his firearms disability. In any case, we
doubt very much that Dodds was unduly prejudiced by
reference to his legal name. The references were not
protracted, the government did not mention it in its
closing arguments, and there was a great deal of evidence
pointing directly to his culpability. There was no error,
and certainly no prejudicial error, in permitting reference
to the name Horace Wilson.1
B. Testimony Concerning Description Given By Unidentified
Witness
As we have noted, Officer Koestering testified at trial
that when officers arrived at the intersection of 37th and
Galena, an unidentified individual told the officers that
a black man in a black jacket and black cap was pointing
a gun at people two blocks away at 35th and Galena.
Because that individual was never identified and did not
testify at trial, Dodds contends that allowing Koestering
to repeat his statement was a violation of his rights
under the confrontation clause of the Sixth Amendment.
See Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354
(2004).
We conclude for two reasons that the admission of the
witness’s out-of-court statement did not violate Dodds’
confrontation rights. First, Davis v. Washington, 547 U.S.
813, 126 S. Ct. 2266 (2006), holds that an out-of-court
statement implicating the defendant may be admissible
as a non-testimonial statement when the statement was
elicited for the primary purpose of helping the police
resolve an ongoing emergency rather than to determine
what had occurred in the past. Id. at 822, 827-28, 126 S. Ct.
at 2273-74, 2276-77. In this case, the police were
responding to a 911 call reporting “shots fired” and had
an urgent need to identify the person with the gun and
to stop the shooting. The witness’s description of the
man with a gun was given in that context, and we
believe it falls within the scope of Davis. Second, the
problem that Crawford addresses is the admission of
hearsay, which is, of course, an out-of-court statement
admitted for its truth. E.g., United States v. James, 487
F.3d 518, 524-25 (7th Cir. 2007). The witness’s statement
to Koestering was not admitted for its truth—that the
witness saw the man he described pointing a gun at
people—but rather to explain why the police proceeded
to the intersection of 35th and Galena and focused
their attention on Dodds, who matched the description
they had been given. This was a permissible, non-hearsay
purpose. United States v. Breland, 356 F.3d 787, 792 (7th
Cir. 2004).
The district court did not give a limiting instruction
advising the jury not to consider the witness’s statement
to Koestering for its truth but solely as an explanation
for why Koestering and the other officers approached
and questioned Dodds. But the court was not asked to
give such an instruction, the lack of such an instruction
has not been raised on appeal, and, in any case, we
doubt that Dodds was prejudiced by the lack of a
limiting instruction. The reference to the witness’s statement
was brief, it was not mentioned in closing argument,
and there was ample direct evidence, including in
particular the testimony of Watkins and Woods, that
Dodds was seen with a gun, and of course the fingerprint
evidence indicating that he had held the gun. See id.
III.
The district court did not abuse its discretion in
allowing testimony concerning Dodds’ legal name or the
out-of-court statement to a police officer describing a
man the witness had seen pointing a gun at individuals.
We therefore AFFIRM Dodds’ conviction.
Chicago Criminal Lawyer - Robert J Callahan
Thursday, June 25, 2009
U.S. vs. Hoke
Robert Hoke was indicted for
the receipt and possession of child pornography in violation
of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(a)(5)(B).
After the Government rested its case, Mr. Hoke pleaded
guilty to both counts. He later moved to withdraw his
guilty plea, but the district court denied his motion. The
court sentenced Mr. Hoke to 121 months’ imprisonment
and five years’ supervised release. In this appeal, Mr. Hoke
contends that the court abused its discretion by not
allowing him to withdraw his guilty plea. He also
claims that the district court denied him his right of
allocution in violation of Federal Rule of Criminal Procedure
32(i)(4)(A). For the reasons set forth in this
opinion, we affirm the judgment of the district court.
A. Motion to Withdraw Guilty Plea
1.
On January 8, 2008, Mr. Hoke was charged with receipt
of child pornography and possession of child pornography.
A jury trial commenced on June 16, 2008, and the Government
rested its case the following day. After Mr. Hoke
heard all of the evidence against him, he pleaded guilty
to both counts. Before accepting the plea, the district
court advised and questioned Mr. Hoke as required by
Rule 11(b)(1) of the Federal Rules of Criminal Procedure.
The district court placed Mr. Hoke under oath and questioned
him to ensure that he understood English and
that he was satisfied with his representation. The court
went through each count of the indictment and, although
the Government already had presented its evidence
during its case-in-chief, required the prosecutor to state,
with respect to each count, the evidence upon which
the Government relied. The court also assured itself
that Mr. Hoke understood the length of the sentence
he could receive and the conditions governing his subsequent
release. The court also advised him of the
rights that he could exercise if he elected to proceed with
the trial. With regard to sentencing, the court told
Mr. Hoke that the United States Sentencing Guidelines
are advisory and that it would consider the Guidelines,
any statutory mandatory minimum and the factors enumerated
under 18 U.S.C. § 3553(a). Throughout the
process, the court ensured that Mr. Hoke understood the
advice given to him. After verifying that no threats or
promises had been made to Mr. Hoke and determining
that his plea was a “free and voluntary act,” the court
accepted his guilty plea. R.94 at 8.
On August 18, Mr. Hoke wrote a letter to the court
seeking to withdraw his plea of guilty. Two days later,
Mr. Hoke’s attorney moved to withdraw as counsel;
the district court granted the motion and appointed
new counsel. On October 1, Mr. Hoke moved to withdraw
his guilty plea under Federal Rule of Criminal
Procedure 11(d)(2)(B).
At a subsequent hearing, Mr. Hoke maintained that
his plea was not made knowingly because he was
confused about the nature of the proceedings and
because he was innocent of the charges under a “technical
defense.”1 Mr. Hoke claimed that his plea was coerced
by his former attorney and that the attorney had told
him that his computer expert could not testify. Mr. Hoke
also said that he had looked to his attorney for direction
on how to answer most of the court’s questions at the
plea hearing. By contrast, the former attorney testified
that he did not instruct Mr. Hoke how to answer the
questions and that, had they proceeded with the trial, he
would have called Mr. Hoke’s computer expert to testify.
The Government questioned Mr. Hoke, who admitted to
having no mental defects and to being clear-minded on
the day that he pleaded guilty.
The court found that Mr. Hoke had not been prompted
by his attorney when he answered its questions and also
found that, during the hearing, Mr. Hoke had understood
the consequences of his actions when he pleaded guilty.
The court therefore denied his motion to withdraw
his plea.
2.
We review the court’s denial of Mr. Hoke’s motion to
withdraw his guilty plea for an abuse of discretion. See
United States v. Bowlin, 534 F.3d 654, 659 (7th Cir. 2008).
Mr. Hoke submits that the court erred in denying his
motion to withdraw his guilty plea because he had a
valid technical defense, which his prior attorney had
failed to raise. He further maintains that he was “stressed
and confused about the various proceedings leading up
to the plea of guilty.” Appellant’s Br. 10.
The district court did not abuse its discretion in
denying Mr. Hoke’s motion to withdraw his plea.
Mr. Hoke did not show “a fair and just reason for requesting
the withdrawal.” United States v. Bryant, 557
F.3d 489, 495 (7th Cir. 2009) (quoting Fed. R. Crim. P.
11(d)(2)(B)). He claims that he is legally innocent because
of a “technical defense.” However, “claims of innocence
alone do not mandate permission to withdraw a plea,” but,
rather, must be substantiated by evidence. United States
v. Groll, 992 F.2d 755, 758 (7th Cir. 1993). Furthermore,
Mr. Hoke has not shown that, at the time of his plea,
he was unaware of the technical defense which he now
invokes. See Bryant, 557 F.3d at 495 (holding that the
district court’s denial of the defendant’s motion to withdraw
his plea was not an abuse of discretion because
the defendant did not present newly discovered
evidence relating to his factual guilt or innocence, and
he did not discover a new legal defense after he
pleaded guilty). Consequently, Mr. Hoke has not established
that a fair and just reason for withdrawal exists.
Mr. Hoke claims that he was confused about the proceedings
leading up to his plea of guilty. We have held,
however, that “[t]he only rational manner in which a
judge may determine whether a plea is knowingly and
voluntarily made, is to observe the defendant’s demeanor
and responses to the court’s questions and to rely on the
defendant’s sworn answers.” United States v. Ellison, 835
F.2d 687, 693 (7th Cir. 1987). The district court had the
opportunity to question and observe Mr. Hoke during
his motion to withdraw plea hearing; it did not find
that Mr. Hoke was confused or unaware of the nature
of his actions at that time. We therefore believe that the
court did not abuse its discretion in denying Mr. Hoke’s
motion to withdraw his guilty plea.
B. Right of Allocution
1.
Mr. Hoke’s sentencing hearing was held on November
7, 2008. Prior to Mr. Hoke’s allocution, the court
addressed an objection raised by the Government regarding
the presentence investigation report (“PSR”). The
Government maintained that the PSR should have
advised a two-level enhancement for obstruction of
justice because, it alleged, Mr. Hoke had made false
statements during the hearing for his motion to withdraw
his guilty plea. The court stated that it was not
going to apply the obstruction of justice enhancement,
but told the Government that “even though it’s not applying
the enhancement, [it] will be taking into account
his testimony when it issues its sentence, which will be
within the advisory guideline range. . . .” R.123 at 5.
The court then explained its guidelines-range
findings and asked whether either side had any objections.
Mr. Hoke’s attorney replied that he would be
objecting to the Guidelines as a whole, and he noted that
the court is not bound by the Guidelines. The court acknowledged
that the Guidelines are advisory and then
noted that it would consider “the [section] 3553(a) factors
as well as the advisory guidelines in issuing its decision
on the appropriate sentence.” Id. at 7. Mr. Hoke then
presented mitigating statements from several witnesses,
and his attorney argued that he should receive
the mandatory minimum sentence of sixty months.
After the attorneys for both sides had spoken, the
court directed Mr. Hoke to stand, and asked: “Is there
anything you wish to say or offer in mitigation before
this Court imposes sentence?” Id. at 26. Mr. Hoke replied
that he had health problems. He admitted to looking
at adult pornography, but denied ever looking at child
pornography. The court then sentenced Mr. Hoke to 121
months’ imprisonment for Count 1 and 120 months’
imprisonment for Count 2, to run concurrently,
followed by five years of supervised release.
2.
Because Mr. Hoke raised no objection regarding his
right of allocution at the district court level, we review
only for plain error. See United States v. Luepke, 495 F.3d
443, 446 (7th Cir. 2007); Fed. R. Crim. P. 52(b). “Plain
error review requires us to determine: (1) that error
occurred; (2) that the error was plain; and (3) that the
error affected the defendant’s substantial rights.” Luepke,
495 F.3d at 448. “If these criteria are met, we may
reverse, in an exercise of discretion, if we determine
that the error ‘seriously affects the fairness, integrity, or
public reputation of judicial proceedings.’ ” Id. (quoting
United States v. Simpson, 479 F.3d 492, 496 (7th Cir. 2007)).
Mr. Hoke submits that the district court foreclosed
any possibility of a below-guidelines sentence, prior to
his opportunity to address the court, when it stated that
his sentence would be “within the advisory guideline
range.” R.123 at 5. Mr. Hoke therefore contends that
the court violated his right of allocution and maintains
that the violation was not cured when the court later
allowed him to present witnesses and to personally
address the court. See Luepke, 495 F.3d at 452; Fed. R.
Crim. P. 32(i)(4).
Federal Rule of Criminal Procedure 32(i)(4)(A), which
codifies the common law right of allocution, states
that, prior to imposing a sentence, the court must
“address the defendant personally in order to permit the
defendant to speak or present any information to
mitigate the sentence.” In Green v. United States, 365
U.S. 301, 304 (1961) (plurality opinion), the Supreme
Court interpreted an earlier version of this rule and
held that a defendant must be afforded the opportunity
to personally address the court. The Court stated that
district courts should “unambiguously address themselves
to the defendant” and “should leave no room
for doubt that the defendant has been issued a personal
invitation to speak prior to sentencing.” Id. at 305.
We must consider the district court’s statement
regarding sentencing Mr. Hoke under the Guidelines in
the context in which it was made. During the sentencing
hearing, the Government objected to the PSR,
maintaining that Mr. Hoke should have received an
obstruction of justice enhancement for making false
statements. The court declined to apply the enhancement
and explained that it would “be taking into
account his testimony when it issues its sentence, which
will be within the advisory guideline range . . . .” R.123
at 5.
When read in context, it is evident that the district court
was merely communicating that it would use the Guidelines
as its baseline, as opposed to the elevated sentencing
range that the Government sought. After the court
stated its intent, Mr. Hoke’s attorney quickly noted that
he would be challenging the applicability of the Guidelines
and stated that the court was not bound by them.
The court agreed, noting that the Guidelines “are advisory.”
R.123 at 7. It further stated that it would be “considering
[section] 3553(a) factors as well as the advisory
guidelines in issuing its decision on the appropriate
sentence.” Id. In this colloquy with counsel, the court
expressed clearly that it had not reached a conclusive
decision regarding Mr. Hoke’s sentence and that it
would consider the relevant sentencing factors and the
advisory nature of the Guidelines. The court, moreover,
gave Mr. Hoke an opportunity to present witnesses and
invited him to address the court. We conclude that the
court did not deny Mr. Hoke his right of allocution
and, therefore, did not commit plain error.2
Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
Chicago Criminal Lawyer - Robert J Callahan
the receipt and possession of child pornography in violation
of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(a)(5)(B).
After the Government rested its case, Mr. Hoke pleaded
guilty to both counts. He later moved to withdraw his
guilty plea, but the district court denied his motion. The
court sentenced Mr. Hoke to 121 months’ imprisonment
and five years’ supervised release. In this appeal, Mr. Hoke
contends that the court abused its discretion by not
allowing him to withdraw his guilty plea. He also
claims that the district court denied him his right of
allocution in violation of Federal Rule of Criminal Procedure
32(i)(4)(A). For the reasons set forth in this
opinion, we affirm the judgment of the district court.
A. Motion to Withdraw Guilty Plea
1.
On January 8, 2008, Mr. Hoke was charged with receipt
of child pornography and possession of child pornography.
A jury trial commenced on June 16, 2008, and the Government
rested its case the following day. After Mr. Hoke
heard all of the evidence against him, he pleaded guilty
to both counts. Before accepting the plea, the district
court advised and questioned Mr. Hoke as required by
Rule 11(b)(1) of the Federal Rules of Criminal Procedure.
The district court placed Mr. Hoke under oath and questioned
him to ensure that he understood English and
that he was satisfied with his representation. The court
went through each count of the indictment and, although
the Government already had presented its evidence
during its case-in-chief, required the prosecutor to state,
with respect to each count, the evidence upon which
the Government relied. The court also assured itself
that Mr. Hoke understood the length of the sentence
he could receive and the conditions governing his subsequent
release. The court also advised him of the
rights that he could exercise if he elected to proceed with
the trial. With regard to sentencing, the court told
Mr. Hoke that the United States Sentencing Guidelines
are advisory and that it would consider the Guidelines,
any statutory mandatory minimum and the factors enumerated
under 18 U.S.C. § 3553(a). Throughout the
process, the court ensured that Mr. Hoke understood the
advice given to him. After verifying that no threats or
promises had been made to Mr. Hoke and determining
that his plea was a “free and voluntary act,” the court
accepted his guilty plea. R.94 at 8.
On August 18, Mr. Hoke wrote a letter to the court
seeking to withdraw his plea of guilty. Two days later,
Mr. Hoke’s attorney moved to withdraw as counsel;
the district court granted the motion and appointed
new counsel. On October 1, Mr. Hoke moved to withdraw
his guilty plea under Federal Rule of Criminal
Procedure 11(d)(2)(B).
At a subsequent hearing, Mr. Hoke maintained that
his plea was not made knowingly because he was
confused about the nature of the proceedings and
because he was innocent of the charges under a “technical
defense.”1 Mr. Hoke claimed that his plea was coerced
by his former attorney and that the attorney had told
him that his computer expert could not testify. Mr. Hoke
also said that he had looked to his attorney for direction
on how to answer most of the court’s questions at the
plea hearing. By contrast, the former attorney testified
that he did not instruct Mr. Hoke how to answer the
questions and that, had they proceeded with the trial, he
would have called Mr. Hoke’s computer expert to testify.
The Government questioned Mr. Hoke, who admitted to
having no mental defects and to being clear-minded on
the day that he pleaded guilty.
The court found that Mr. Hoke had not been prompted
by his attorney when he answered its questions and also
found that, during the hearing, Mr. Hoke had understood
the consequences of his actions when he pleaded guilty.
The court therefore denied his motion to withdraw
his plea.
2.
We review the court’s denial of Mr. Hoke’s motion to
withdraw his guilty plea for an abuse of discretion. See
United States v. Bowlin, 534 F.3d 654, 659 (7th Cir. 2008).
Mr. Hoke submits that the court erred in denying his
motion to withdraw his guilty plea because he had a
valid technical defense, which his prior attorney had
failed to raise. He further maintains that he was “stressed
and confused about the various proceedings leading up
to the plea of guilty.” Appellant’s Br. 10.
The district court did not abuse its discretion in
denying Mr. Hoke’s motion to withdraw his plea.
Mr. Hoke did not show “a fair and just reason for requesting
the withdrawal.” United States v. Bryant, 557
F.3d 489, 495 (7th Cir. 2009) (quoting Fed. R. Crim. P.
11(d)(2)(B)). He claims that he is legally innocent because
of a “technical defense.” However, “claims of innocence
alone do not mandate permission to withdraw a plea,” but,
rather, must be substantiated by evidence. United States
v. Groll, 992 F.2d 755, 758 (7th Cir. 1993). Furthermore,
Mr. Hoke has not shown that, at the time of his plea,
he was unaware of the technical defense which he now
invokes. See Bryant, 557 F.3d at 495 (holding that the
district court’s denial of the defendant’s motion to withdraw
his plea was not an abuse of discretion because
the defendant did not present newly discovered
evidence relating to his factual guilt or innocence, and
he did not discover a new legal defense after he
pleaded guilty). Consequently, Mr. Hoke has not established
that a fair and just reason for withdrawal exists.
Mr. Hoke claims that he was confused about the proceedings
leading up to his plea of guilty. We have held,
however, that “[t]he only rational manner in which a
judge may determine whether a plea is knowingly and
voluntarily made, is to observe the defendant’s demeanor
and responses to the court’s questions and to rely on the
defendant’s sworn answers.” United States v. Ellison, 835
F.2d 687, 693 (7th Cir. 1987). The district court had the
opportunity to question and observe Mr. Hoke during
his motion to withdraw plea hearing; it did not find
that Mr. Hoke was confused or unaware of the nature
of his actions at that time. We therefore believe that the
court did not abuse its discretion in denying Mr. Hoke’s
motion to withdraw his guilty plea.
B. Right of Allocution
1.
Mr. Hoke’s sentencing hearing was held on November
7, 2008. Prior to Mr. Hoke’s allocution, the court
addressed an objection raised by the Government regarding
the presentence investigation report (“PSR”). The
Government maintained that the PSR should have
advised a two-level enhancement for obstruction of
justice because, it alleged, Mr. Hoke had made false
statements during the hearing for his motion to withdraw
his guilty plea. The court stated that it was not
going to apply the obstruction of justice enhancement,
but told the Government that “even though it’s not applying
the enhancement, [it] will be taking into account
his testimony when it issues its sentence, which will be
within the advisory guideline range. . . .” R.123 at 5.
The court then explained its guidelines-range
findings and asked whether either side had any objections.
Mr. Hoke’s attorney replied that he would be
objecting to the Guidelines as a whole, and he noted that
the court is not bound by the Guidelines. The court acknowledged
that the Guidelines are advisory and then
noted that it would consider “the [section] 3553(a) factors
as well as the advisory guidelines in issuing its decision
on the appropriate sentence.” Id. at 7. Mr. Hoke then
presented mitigating statements from several witnesses,
and his attorney argued that he should receive
the mandatory minimum sentence of sixty months.
After the attorneys for both sides had spoken, the
court directed Mr. Hoke to stand, and asked: “Is there
anything you wish to say or offer in mitigation before
this Court imposes sentence?” Id. at 26. Mr. Hoke replied
that he had health problems. He admitted to looking
at adult pornography, but denied ever looking at child
pornography. The court then sentenced Mr. Hoke to 121
months’ imprisonment for Count 1 and 120 months’
imprisonment for Count 2, to run concurrently,
followed by five years of supervised release.
2.
Because Mr. Hoke raised no objection regarding his
right of allocution at the district court level, we review
only for plain error. See United States v. Luepke, 495 F.3d
443, 446 (7th Cir. 2007); Fed. R. Crim. P. 52(b). “Plain
error review requires us to determine: (1) that error
occurred; (2) that the error was plain; and (3) that the
error affected the defendant’s substantial rights.” Luepke,
495 F.3d at 448. “If these criteria are met, we may
reverse, in an exercise of discretion, if we determine
that the error ‘seriously affects the fairness, integrity, or
public reputation of judicial proceedings.’ ” Id. (quoting
United States v. Simpson, 479 F.3d 492, 496 (7th Cir. 2007)).
Mr. Hoke submits that the district court foreclosed
any possibility of a below-guidelines sentence, prior to
his opportunity to address the court, when it stated that
his sentence would be “within the advisory guideline
range.” R.123 at 5. Mr. Hoke therefore contends that
the court violated his right of allocution and maintains
that the violation was not cured when the court later
allowed him to present witnesses and to personally
address the court. See Luepke, 495 F.3d at 452; Fed. R.
Crim. P. 32(i)(4).
Federal Rule of Criminal Procedure 32(i)(4)(A), which
codifies the common law right of allocution, states
that, prior to imposing a sentence, the court must
“address the defendant personally in order to permit the
defendant to speak or present any information to
mitigate the sentence.” In Green v. United States, 365
U.S. 301, 304 (1961) (plurality opinion), the Supreme
Court interpreted an earlier version of this rule and
held that a defendant must be afforded the opportunity
to personally address the court. The Court stated that
district courts should “unambiguously address themselves
to the defendant” and “should leave no room
for doubt that the defendant has been issued a personal
invitation to speak prior to sentencing.” Id. at 305.
We must consider the district court’s statement
regarding sentencing Mr. Hoke under the Guidelines in
the context in which it was made. During the sentencing
hearing, the Government objected to the PSR,
maintaining that Mr. Hoke should have received an
obstruction of justice enhancement for making false
statements. The court declined to apply the enhancement
and explained that it would “be taking into
account his testimony when it issues its sentence, which
will be within the advisory guideline range . . . .” R.123
at 5.
When read in context, it is evident that the district court
was merely communicating that it would use the Guidelines
as its baseline, as opposed to the elevated sentencing
range that the Government sought. After the court
stated its intent, Mr. Hoke’s attorney quickly noted that
he would be challenging the applicability of the Guidelines
and stated that the court was not bound by them.
The court agreed, noting that the Guidelines “are advisory.”
R.123 at 7. It further stated that it would be “considering
[section] 3553(a) factors as well as the advisory
guidelines in issuing its decision on the appropriate
sentence.” Id. In this colloquy with counsel, the court
expressed clearly that it had not reached a conclusive
decision regarding Mr. Hoke’s sentence and that it
would consider the relevant sentencing factors and the
advisory nature of the Guidelines. The court, moreover,
gave Mr. Hoke an opportunity to present witnesses and
invited him to address the court. We conclude that the
court did not deny Mr. Hoke his right of allocution
and, therefore, did not commit plain error.2
Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
Chicago Criminal Lawyer - Robert J Callahan
Tuesday, June 16, 2009
U.S. vs. Ray Longstreet
Ray Longstreet, Michael Ervin,
and Anselmo Zepeda were among twenty-nine defendants
charged with a variety of federal offenses arising from
their participation in a large drug operation on the west
side of Chicago. The defendants ranged from suppliers
to gang leaders to low-level, street-corner drug dealers.
All twenty-nine defendants were indicted for, inter alia,
a conspiracy to possess and distribute controlled sub2
stances. Unfortunately, we see many cases involving
large drug conspiracies. It is disheartening to know that
when the legal system removes one drug conspirator
from the street, someone else will quickly fill the void.
But as long as the actions occur, we must deal with
the actors.
Of the three appellants, only Longstreet—the leader of
the west side faction of the Four Corner Hustlers—
proceeded to trial, where a jury found him guilty
of a number of charges. Ervin and Zepeda both pled
guilty. The district court sentenced Longstreet, Ervin, and
Zepeda to 456, 300, and 210 months in prison, respectively.
On appeal, Longstreet challenges his conviction, and all
three defendants present issues regarding their sentences.
I. BACKGROUND
This case involves a widespread drug operation on
Chicago’s troubled west side, and the twenty-nine codefendants
included individuals involved in all aspects of
the business. The primary player for purposes of this
appeal is Ray Longstreet, who was the alleged “chief” of
the west side faction of a street gang named the Four
Corner Hustlers. Longstreet oversaw a drug network that
trafficked in heroin, cocaine, crack, and marijuana.
Longstreet’s activities included coordinating the purchase,
mixture, and packaging of substances containing heroin
and crack; directing drug sales by lower-level gang members;
collecting “street rent” from dealers in exchange
for permission to sell drugs in his territory; and controlling
the types of drugs available and the street
corners on which the dealers sold them.
Michael Ervin was a mid-level gang operative who
allegedly served as Longstreet’s “enforcer” and also sold
heroin on Longstreet’s behalf. Unlike the other two appellants,
Anselmo Zepeda was involved on the conspiracy’s
supply side; he allegedly fronted other dealers large
quantities of drugs to be repackaged and resold on the
streets. The remaining details reflect an all-too-common
illegal drug operation, and we see no need to describe
them further except as they relate to the analysis below.
In 2004, the Chicago Police Department and the Drug
Enforcement Agency began investigating drug trafficking
in the area controlled by the Four Corner Hustlers. The
investigation included live and video surveillance of
Longstreet and his co-conspirators, undercover
purchases at one of Longstreet’s corners, and court-authorized
wiretaps relating to three telephone numbers. In
total, law enforcement recorded between 3,000 and 5,000
calls on one telephone belonging to Longstreet and two
telephones belonging to Anthony Sutton, a crack cocaine
dealer who operated in Longstreet’s territory. Many of
the calls revealed the mechanics of a modern-day drug
business. At Longstreet’s trial, the government played
over one hundred of these calls, many of which
involved Longstreet and nearly all of which related to
drug activity.
On September 14, 2005, a grand jury returned a sixtyseven-
count indictment, Count One of which charged
twenty-nine individuals with a single conspiracy to
possess with intent to distribute, and to distribute, controlled
substances in violation of 21 U.S.C. § 846. The
controlled substances included mixtures and substances
containing cocaine, heroin, marijuana, and cocaine base
in the form of crack. The three appellants were also
charged with a number of other offenses related to
their participation in the drug operation.
Longstreet proceeded to trial, and the government, in
addition to introducing the recorded telephone conversations,
called law enforcement officers and four
cooperating witnesses, each of whom testified about his
or her interactions with Longstreet. The key government
witness was Anthony Sutton, who testified extensively
about Longstreet’s various roles in the local drug
business, as well as Sutton’s own role as a drug dealer.
After a week-long trial, the jury convicted Longstreet
for his participation in the conspiracy and several
related offenses. On March 19, 2007, the district court
sentenced Longstreet to 456 months in federal prison on
the conspiracy charge.1
Ervin and Zepeda each pled guilty to the conspiracy
charge and two related offenses. On May 23, 2007, the
district court sentenced Ervin to 300 months in prison.
On August 9, the district court sentenced Zepeda to
210 months in prison.
II. ANALYSIS
We consolidated the defendants’ cases for appeal. Each
co-defendant raises separate issues, and we address
each of them in turn. We first consider Longstreet’s
challenges to both his conviction and his sentence. We
next address the sole issue that Ervin presents, which
Longstreet raises as well: whether a limited remand is
appropriate for the district court to consider the
disparity created by the Sentencing Guidelines’
crack/powder cocaine ratio. Last, we address Zepeda’s
challenges to his sentence.
A. Longstreet’s Challenges to His Conviction and Sentence
Longstreet challenges both his conviction and his sentence,
and he raises four issues: (1) whether the government
produced sufficient evidence to prove that he was
part of the charged conspiracy; (2) whether the district
court properly instructed the jury regarding multiple
conspiracies; (3) whether the district court properly
precluded him from calling Andre Kincaid to testify
about drug purchases from a co-conspirator; and
(4) whether the court properly sentenced him to 456
months in prison.
1. Fatal Variance/Sufficiency of the Evidence
Longstreet first claims that there was a prejudicial
variance between the conspiracy charged and the evidence
produced at trial. According to him, the proof demonstrated,
at best, a number of smaller conspiracies, rather
than one unified conspiracy including him and Anthony
Sutton. Although Longstreet makes a belated effort to
separate himself from the activities of other co-conspirators,
particularly Sutton, we find his argument unavailing.
A variance arises when the facts proved at trial differ
from those alleged in the indictment. United States v.
Griffin, 493 F.3d 856, 862 (7th Cir. 2007). In a conspiracy
case, we treat a defendant’s variance claim as a challenge
to the sufficiency of the evidence supporting the jury’s
finding that the defendant was a member of the charged
conspiracy. Id. To succeed, Longstreet must establish
that (1) the evidence at trial was insufficient to support
the jury’s finding that he belonged to a single conspiracy,
and (2) he was prejudiced by the variance. United States
v. Jones, 275 F.3d 648, 651 (7th Cir. 2001). We view the
evidence in the light most favorable to the government
and will overturn a conviction only if the record contains
no evidence from which a reasonable juror could have
found the defendant guilty. United States v. Rollins, 544
F.3d 820, 835 (7th Cir. 2008). The defendant’s “heavy”
burden when challenging a conviction for insufficiency
of the evidence is “nearly insurmountable.” United States
v. Moses, 513 F.3d 727, 733 (7th Cir. 2008) (quotations
omitted); see also United States v. Melendez, 401 F.3d 851,
854 (7th Cir. 2005) (“Sufficiency of the evidence challenges
rarely succeed because we owe great deference to
the jury’s verdict.”)
Therefore, we must determine whether the record
contains sufficient evidence for a reasonable juror to have
found Longstreet guilty of the conspiracy in Count One
of the indictment. A conspiracy exists when two or more
people agree to commit an unlawful act, and the
defendant knowingly and intentionally joins that agreement.
Rollins, 544 F.3d at 835. A conspiracy under
21 U.S.C. § 846 requires “ ‘substantial evidence that the
defendant knew of the illegal objective of the conspiracy
and agreed to participate.’ ” Id. (quoting United States
v. Thornton, 197 F.3d 241, 254 (7th Cir. 1999)).
In proving a conspiracy, the government need not
establish with whom the defendant conspired; it must
simply prove “ ‘that the defendant joined the agreement
alleged, not the group.’ ” Griffin, 493 F.3d at 862 (quoting
United States v. Stigler, 413 F.3d 588, 592 (7th Cir. 2005)). “So
long as the evidence demonstrates that the co-conspirators
embraced a common criminal objective, a single conspiracy
exists, even if the parties do not know one or
another and do not participate in every aspect of the
scheme.” Jones, 275 F.3d at 652. For a drug conspiracy,
“[a]ll that is necessary is ‘enough circumstantial evidence
to support, beyond reasonable doubt, an inference that
the defendants agreed among themselves to distribute
drugs.’ ” United States v. Pagan, 196 F.3d 884, 889 (7th Cir.
1999) (quoting United States v. Townsend, 924 F.2d 1385,
1390 (7th Cir. 1991)).
In this case, the government introduced ample evidence
from which a reasonable juror could have found that
Longstreet knowingly agreed with others to distribute
illegal drugs. As long as such evidence was before the
jury, its verdict must stand; it is the jury’s role to determine
the credibility of the witnesses and weigh the evidence.
Rollins, 544 F.3d at 835; see also Pagan, 196 F.3d at
889. It is unnecessary to recount all of the facts of this
case; we will merely note a few pieces of evidence that
adequately support the jury’s verdict. The government
presented evidence that Longstreet controlled drug
trafficking in a particular area, operated his own drug
business by hiring employees to package and sell heroin,
and collected rent from dealers in exchange for the right
to sell drugs on street corners that he controlled. The jury
not only saw witnesses testify to these facts, but it
also heard multiple wiretapped phone conversations
between Longstreet and co-conspirators discussing drugs,
guns, and territory. This evidence supports the conspiracy
conviction.
First, evidence demonstrated that Longstreet operated
his own heroin business, which Longstreet does not
appear to contest on appeal. Several witnesses testified
that Longstreet purchased large quantities of heroin
from multiple suppliers, who often fronted him the
drugs expecting to be repaid from the proceeds of their
sale. Cf. United States v. Bustamante, 493 F.3d 879, 884-85
(7th Cir. 2007) (noting that factors indicating a drug
conspiracy include transactions involving large quantities
of drugs and sales on credit). Various co-conspirators
explained that Longstreet employed them to assist in
mixing and repackaging the drugs, to sell heroin at his
drug spots on the streets, to collect the proceeds, and, if
necessary, to act as his “enforcers.” This evidence
indicates that Longstreet was neither an individual,
disinterested drug distributor, nor engaged in a single
drug transaction. Cf. id. at 884 (“[B]uying and selling
drugs, without more, does not constitute a conspiracy.”).
Second, there was plentiful evidence indicating a criminal
agreement between Longstreet and Anthony Sutton.
Sutton testified that Longstreet was the chief of the Four
Corner Hustlers and that he controlled the territory
bordered by Pulaski Avenue, Chicago Avenue, Hamlin
Avenue, and Division Street. Sutton explained that
Longstreet was in a position of power over him and other
dealers, that Longstreet enlisted employees to handle
problems with the dealers, and that Longstreet required
the dealers—including Sutton—to pay rent for the right
to sell drugs in his territory. Sutton’s drug spot was
located in front of Longstreet’s home, and Sutton stopped
paying rent only when “Ray Longstreet told him he
didn’t have to anymore.” During cross-examination,
Sutton testified that when he first reopened this spot in
2002, three of Longstreet’s employees separately demanded
rent, using Longstreet’s name expressly. The record is
littered with evidence—including multiple recorded
telephone calls between Longstreet and Sutton—reflecting,
at least, an agreement between Longstreet and Sutton
to coordinate their own drug sales, and, at most,
Longstreet’s efforts to control the drug sales of many
dealers in the area.
Sutton also contradicted one of the theories that
Longstreet propounded in an effort to undermine a
single conspiracy. Longstreet argued that the two men
competed with one another for heroin sales, which he
claims indicated that they were operating two separate
conspiracies. According to Sutton, however, he and
Longstreet agreed that Sutton would sell crack cocaine,
while Longstreet would sell heroin. Sutton stated a
number of times, including during cross-examination, that
he did not sell heroin. Longstreet attempted to introduce
evidence to the contrary, which we address below, but
even if we assume that Sutton competed with Longstreet
by selling heroin on occasion, the other evidence still
suggests that they joined in a single agreement to
possess and distribute illegal drugs. See United States v.
Maholias, 985 F.2d 869, 876 (7th Cir. 1993) (“Conspirators
who distribute drugs often sell in parallel strands rather
than in links essential to one another.”).
Longstreet goes to great lengths to separate himself
from Sutton, explaining how he lacked control over
Sutton; that Sutton sold his own drugs and withheld
from him information and profits; that Longstreet was
in prison or on house arrest during some relevant time
periods; and that Longstreet “was not a drug kingpin”
overseeing a large drug dealing operation. But none of
these affect the quintessential elements of a conspiracy.
These arguments, which perhaps suggest that Longstreet
was not omnipotent or overly successful at his business,
do not change the fact that there was evidence to support
a reasonable juror’s finding that Longstreet agreed with
others—Sutton included—to possess and distribute
controlled substances. The charge did not require the jury
to find that Longstreet was a “kingpin”—it merely required
the government to prove that he joined a criminal
conspiracy to possess and distribute illegal drugs, which
is exactly what Sutton and his fellow co-conspirators
said that Longstreet did.
There is evidence in the record from which a reasonable
juror could have found Longstreet guilty of the
conspiracy charged in the indictment. True, much of the
evidence came from Anthony Sutton, an admitted drug
dealer. But as we have already stated, if there is evidence
supporting a reasonable juror’s conclusion, it is up to the
juror, not this court, to evaluate and weigh that evidence.
Rollins, 544 F.3d at 835; see also Pagan, 196 F.3d at 889 (“The
extent to which [a witness’s] personal failings and motivations
may have influenced his testimony was for the jury
to decide.”). Because a rational jury could have believed
the witnesses’ testimony, there was no variance between
the charge and the evidence produced at trial.
2. Absence of a Jury Instruction Regarding Evidence of
Multiple Conspiracies
Longstreet’s second challenge to his conviction is that
the district court should have instructed the jury not to
consider evidence related to any separate, distinct conspiracy
when considering Longstreet’s guilt. Without
such an instruction, he argues, the jury was free to consider
criminal activity unrelated to him when rendering
its verdict, thereby prejudicing him.
Prior to trial, Longstreet proposed jury instructions
that included a multiple conspiracy instruction. At the
end of the trial, the government proposed its own
multiple conspiracy instruction, which the district court
accepted after a brief discussion among counsel;
Longstreet’s counsel stated that he would accept that
instruction. The instruction stated that the jury may find
the existence of multiple conspiracies, rather than a
single one, and it informed the jury that it must base
this decision “only on what the defendant did or said.” It
did not, however, expressly instruct the jury to
disregard evidence of conduct in any conspiracy in
which it might find that the defendant did not participate.
We typically review an attack on a jury instruction for
an abuse of discretion, but when the underlying error
implicates a question of law, we review de novo. United
States v. Macedo, 406 F.3d 778, 787 (7th Cir. 2005). However,
because Longstreet agreed to the instruction as written
and failed to request a component directing the jury not
to consider evidence of unrelated conspiracies, he
forfeited this challenge on appeal,2 and we review for
plain error. See United States v. Trennell, 290 F.3d 881, 886
(7th Cir. 2002); see also United States v. Olano, 507 U.S. 725,
732 (1993) (explaining that error must be plain and affect
defendant’s substantial rights to merit reversal).
We find no plain error here. Longstreet is correct that if
the evidence produced at trial does not support the
conspiracy alleged in the indictment, the court should
instruct the jury “that evidence relating to the other
conspiracy or conspiracies disclosed may not be used
against him under any circumstances.” United States v.
Lindsey, 602 F.2d 785, 787 (7th Cir. 1979) (quotations
omitted). But that is as far as Longstreet’s argument
takes him.
First, the evidence at trial supported the conspiracy
alleged in the indictment; we have already determined that
there was no variance. Therefore, there was no “other
conspiracy” disclosed at trial. Second, the absence of an
express instruction to disregard any potential evidence
of another conspiracy did not deprive Longstreet of a fair
trial. See Olano, 507 U.S. at 732 (noting that a court of
appeals has discretion to correct a plain error and “should
not exercise that discretion unless the error seriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings” (alteration in original) (quotations
omitted)). The district court’s instruction properly informed
the jury of the requirements for a conspiracy
conviction and that it was only allowed to evaluate
Longstreet’s own words and conduct to determine the
conspiracies, if any, in which he participated. The instruction
also stated that the jury could find Longstreet
guilty only if he participated in the conspiracy alleged
in the indictment. Further, the district court advised the
jury that it should consider the convictions of the testifying
co-conspirators for credibility purposes only, not
to determine Longstreet’s guilt. In light of the entire
instruction, the court did not commit plain error.
3. Proposed Testimony of Andre Kincaid
Longstreet’s third challenge to his conviction is that the
district court improperly prohibited him from questioning
co-defendant Andre Kincaid about Anthony
Sutton. As noted, Longstreet claimed that Sutton operated
a distinct conspiracy in which Sutton competed with
Longstreet to sell heroin. Sutton, however, testified that
the two men had an agreement to sell different drugs
within Longstreet’s territory. At trial, Sutton claimed that
he sold only cocaine, crack, and marijuana, meaning that
his drug dealing activity did not conflict with Longstreet’s
heroin business. Sutton denied selling heroin in 2004
and specifically denied selling it to Andre Kincaid.
Longstreet sought to impeach Sutton with testimony
from Kincaid, who pled guilty to participating in the
conspiracy and admitted to purchasing cocaine and crack
from Sutton. In addition to crack purchases, Kincaid
had previously informed the government that he purchased
heroin from Sutton, that he saw Sutton’s workers
giving heroin away, and that Sutton had an international
heroin source. The district judge was prepared to permit
Kincaid to testify to these facts over the government’s
objection that it was an improper collateral impeachment.
Before testifying, however, Kincaid invoked his Fifth
Amendment right against self-incrimination, which the
district court accepted. The court then determined that
Kincaid was unavailable to testify, see Fed. R. Evid.
804(a)(1), and permitted Special Agent Chris Carlson of
the Internal Revenue Service to testify regarding Kincaid’s
prior proffer, see id. 804(b)(3). Agent Carlson was present
at Kincaid’s interview, and he testified that Kincaid
provided the government with the information stated
above. Longstreet asserts that the court erred because
he only intended to call Kincaid to testify about what he
had seen, not what he had done, i.e., there was no possibility
that Kincaid’s testimony could be self-incriminating.
The Fifth Amendment ensures that a criminal defendant
shall not “be compelled . . . to be a witness against himself.”
U.S. Const. amend. V. Such a right “must be
confined to instances where the witness has reasonable
cause to apprehend danger from a direct answer.” Hoffman
v. United States, 341 U.S. 479, 486 (1951). Thus, when a
witness invokes his Fifth Amendment right, the district
court should confirm that he “cannot possibly incriminate
himself,” and if the “witness’s testimony may make
him vulnerable to prosecution, the trial court may allow
him to . . . refuse to testify.” United States v. Mabrook, 301
F.3d 503, 506 (7th Cir. 2002). Because Kincaid had not yet
been sentenced when asked to testify, he retained the
ability to invoke his guarantee against self-incrimination.
See Mitchell v. United States, 526 U.S. 314, 325 (1999). We
review a district court’s Fifth Amendment privilege
determination for an abuse of discretion. Mabrook, 301
F.3d at 506.
Although Longstreet characterizes Kincaid’s proffered
testimony as encompassing only his observations of others,
the record tells a different story. Throughout the discussions
regarding Kincaid’s testimony, the government,
Longstreet’s counsel, and the district court referred to
Kincaid’s prior statements that he had purchased heroin
from Sutton, and the record reflects that these statements
were the primary focus of the dispute. Longstreet’s
counsel added that Kincaid observed Sutton’s other
heroin activities, but he also noted a number of times
that Kincaid bought heroin from Sutton. If questioned
about this activity, the answers certainly had the
potential to incriminate Sutton, and such testimony falls
squarely within the ambit of the privilege against selfincrimination.
On appeal, Longstreet argues that the district court could
have permitted questioning about some of Kincaid’s
observations, yet prevented questions directly implicating
him. Longstreet’s counsel never made this argument to
the district court. In fact, Longstreet’s primary argument
in favor of allowing Kincaid’s testimony was that
Kincaid relinquished or waived his Fifth Amendment
privilege by voluntarily making his prior proffer to the
government, an argument the court considered and
appropriately rejected.
But even if Longstreet had sought to limit Kincaid’s
testimony before the district court, Kincaid still could
have refused to take the stand. A testifying witness
“cannot deprive the opposing party of the right of crossexamination.”
United States v. Herrera-Medina, 853 F.2d 564,
567-68 (7th Cir. 1988). Consequently, a witness may not
choose to testify and then “assert the Fifth Amendment
privilege with respect to specific questions if they are
within the scope of his testimony.” Id. at 567. Thus, even
if Kincaid’s testimony on direct examination was limited
to non-incriminating statements, his testimony would
have exposed him to “broad-ranging cross-examination,”
id., the proper scope of which could have included his
heroin transactions with Sutton and other potentially
incriminating information. Kincaid could have been
incriminated by his answers to these questions, and,
therefore, “[h]is fear of self-incrimination was hardly
fanciful.” Id. at 568 (quotations omitted).
Last, Longstreet did not suffer prejudice from the
exclusion of Kincaid’s testimony. The district court permitted
Agent Carlson to tell the jury exactly what Longstreet
wanted Kincaid to say, and Longstreet has not suggested
any information that he was unable to present as a result
of Kincaid’s unavailability. Longstreet cannot demonstrate
a reasonable possibility that Kincaid’s testimony
would have altered the jury’s verdict. See United States
v. Castaldi, 547 F.3d 699, 705 (7th Cir. 2008). Consequently,
the district court did not abuse its discretion by
permitting Kincaid to invoke his Fifth Amendment privilege.
4. Longstreet’s Sentencing Issues
Finally, Longstreet challenges his sentence. After hearing
argument from both sides, the district court found that
Longstreet had a base offense level of thirty-eight and a
criminal history that placed him in sentencing category
six. The court added a two-level enhancement for possession
of a gun and a four-level enhancement for his leadership
role in the conspiracy, resulting in a final offense
level of forty-four. The advisory Sentencing Guidelines
range was life imprisonment, but the district court imposed
a below-Guidelines sentence of 456 months.
Longstreet contests that the district court committed
two errors that improperly increased his sentence:
(1) attributing to him drug quantities from sales that did
not relate to him; and (2) imposing the leadership role
enhancement.
a. Drug Quantity Attributable to Longstreet
Longstreet first challenges the district court’s calculations
of the drug quantities used to establish his base offense
level under the 2006 version of the Sentencing Guidelines.
At sentencing, the government has the burden of proving
the quantity of drugs attributable to a defendant by a
preponderance of the evidence. United States v. Krasinski,
545 F.3d 546, 551 (7th Cir. 2008). Although the district
court is not limited to evidence admissible at trial, United
States v. Clark, 538 F.3d 803, 812 (7th Cir. 2008), it must base
its sentence on information with “sufficient indicia of
reliability to support its probable accuracy,” United States
v. Bautista, 532 F.3d 667, 672 (7th Cir. 2008) (quotations
omitted). We review the district court’s factual findings
regarding drug quantity for clear error, id., which is a
“highly deferential standard of review[,] and we refuse
to second-guess the sentencing judge,” Clark, 538 F.3d at
812 (quotations omitted).
According to the Sentencing Guidelines, a defendant is
“accountable for all quantities of contraband [including
controlled substances] with which he was directly
involved and, in the case of a jointly undertaken
criminal activity, all reasonably foreseeable quantities of
contraband that were within the scope of the criminal
activity that he jointly undertook.” U.S. Sentencing Guidelines
Manual (U.S.S.G.) § 1B1.3(a)(1) cmt. n.2 (2006); see also
Bautista, 532 F.3d at 672; United States v. Nubuor, 274
F.3d 435, 443 (7th Cir. 2001) (noting that the district court
may sentence a defendant “for drug quantities that he
did not handle, so long as he could reasonabl[y] foresee
that the drug transactions would occur”). Further, “[t]he
guidelines’ concept of reasonable foreseeability does not
require that a coconspirator be aware of the precise quantity
involved in each of an ongoing series of illegal transactions.”
United States v. Scroggins, 939 F.2d 416, 423 (7th
Cir. 1991). Having already determined that Longstreet
and Sutton engaged in a single criminal conspiracy, we
must now consider whether Sutton’s crack cocaine sales
should be attributed to Longstreet as “reasonably foreseeable”
transactions within the scope of their conspiracy.
The probation officer recommended in Longstreet’s
presentence investigation report (PSR) that he be held
responsible for at least 1.5 kilograms of crack cocaine and
three kilograms of heroin. According to the Sentencing
Guidelines, this quantity of crack alone placed him at the
highest base offense level, thirty-eight. See U.S.S.G.
§ 2D1.1(c)(1) (Drug Quantity Table) (2006). The district
court, after examining the PSR and hearing argument
from the government and defendant, agreed with the
probation officer’s recommendation of a base offense
level of thirty-eight.
The driving force behind Longstreet’s base offense level
was the quantity of crack cocaine dealt by Anthony Sutton.
Specifically, the district court found that Longstreet was
accountable for at least 1.5 kilograms of crack handled
by Sutton. Because this quantity of crack provided a
sufficient basis for the recommended offense level, see id.,
the court did not address Longstreet’s heroin quantities,
nor did it incorporate drugs moved at any other operators’
drug spots within Longstreet’s territory.
Longstreet asserts that Sutton’s crack sales should not
be attributed to him because Sutton operated his own
conspiracy and did not share profits or details of his drug
sales. We discard much of this argument based on our
determination above that the evidence supports a single
conspiracy. According to the previously described arrangement
between the two men, Sutton sold crack at an estimated
1.5 ounces per day, seven days a week, over a nearly
three-year period. To reach the 1.5 kilogram quantity that
the district court calculated, Longstreet would have to be
attributed with only 53 ounces of crack. At a rate of 1.5
ounces per day, this would have taken a mere 36 days.
Sutton’s testimony clearly supports this amount. See
U.S.S.G. § 2D1.1 cmt. n.12 (2006) (“Where there is no drug
seizure or the amount seized does not reflect the scale of
the offense, the court shall approximate the quantity of the
controlled substance.”); Krasinski, 545 F.3d at 552 (“A
district court may use a reasonable estimate of the quantity
of drugs attributable to a defendant for guidelines purposes.”).
The district judge chose to credit Sutton’s testimony,
finding that although the two men did not expressly
share their profits, they were part of a single conspiracy in
which Sutton paid Longstreet rent for the right to sell
drugs in his territory. Therefore, Sutton’s crack sales
were within the scope of the conspiracy. If Sutton’s testimony
is true, such an agreement certainly renders future
crack sales reasonably foreseeable to Longstreet. That
Sutton was a potentially self-interested drug dealer does
not preclude the district court from crediting his testimony,
for a district court’s determination of a witness’s
credibility is “entitled to great deference and can virtually
never be clear error.” Clark, 538 F.3d at 813 (quotations
omitted). We find no such error here; the district court
properly calculated Longstreet’s base offense level.
b. Leadership Role Enhancement
In addition to setting Longstreet’s base offense level, the
district court applied a four-level enhancement based on
Longstreet’s leadership role in the conspiracy. Longstreet
contends that the evidence presented at trial did not
support the court’s finding that he was an organizer or
leader. We review the district court’s leadership enhancement
for clear error, which exists only when “we are
left with a definite and firm conviction that a mistake
has been made.” United States v. Hatten-Lubick, 525 F.3d
575, 580 (7th Cir. 2008).
Under § 3B1.1 of the Sentencing Guidelines, a district
court may enhance a defendant’s sentence by four levels
if it determines that he “was an organizer or leader of a
criminal activity that involved five or more participants
or was otherwise extensive.” U.S.S.G. § 3B1.1(a) (2006).
Longstreet does not dispute that the conspiracy in this
case involved more than five participants, and thus
we focus on Longstreet’s role within it.
To receive any § 3B1.1 increase for an aggravated role,
the defendant must, at a minimum, “have had some real
and direct influence, aimed at furthering the criminal
activity, upon one other identified participant.” United
States v. Mustread, 42 F.3d 1097, 1103 (7th Cir. 1994). In
deciding to apply the enhancement, courts should consider:
the exercise of decision making authority, the
nature of participation in the commission of the
offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of the
crime, the degree of participation in planning or
organizing the offense, the nature and scope of the
illegal activity, and the degree of control and
authority exercised over others.
U.S.S.G. § 3B1.1 cmt. n.4. The list is non-exclusive, we
have not necessarily given each factor equal weight, and
we may uphold Longstreet’s sentence on any ground in
the record, regardless of the rationale used by the
district court. See Mustread, 42 F.3d at 1104.
After reviewing the record and considering the above
factors, we agree with the government that the evidence
adequately supported Longstreet’s leadership enhancement.
As noted above and explained in the PSR, witnesses
testified that Longstreet was the leader of a faction of the
Four Corner Hustlers and controlled the drug business in
a particular territory. He procured various harmful illegal
drugs from a number of suppliers, employed and directed
workers to mix and repackage them, and operated a
variety of drug spots using other employees. For other
dealers, such as Anthony Sutton, Longstreet charged rent
for the right to sell within his territory and attempted
to control the locations where those dealers set up shop.
Sutton’s testimony alone demonstrates that Longstreet
sought to exert control over components of the charged
conspiracy. But even without considering Longstreet’s
relationship with Sutton, Longstreet exercised control over
many co-conspirators in this drug business, which is
sufficient for the § 3B1.1 enhancement.
Throughout his brief, Longstreet attempts to downplay
his role in the charged conspiracy, painting himself
as an out-of-touch former kingpin who is now struggling
to regain some semblance of his former power and territory.
But even the facts he raises support the leadership
enhancement. For example, he notes as the “most telling
evidence” of his minimal role that alleged co-conspirators
admitted to ignoring some of his orders. But this fact
necessarily implies that he was indeed giving orders, a
characteristic consistent with someone in a leadership role.
Similarly, he notes that “people routinely refused to pay
Longstreet drug money owed to him.” Unless we misunderstand
the drug business—or any business, for that
matter—one is not typically owed money unless he
provided something in exchange. Although being a drug
dealer, alone, is insufficient to support a leadership
enhancement, see Mustread, 42 F.3d at 1104, the evidence
at trial indicated that Longstreet was not out on the
corner selling his own drugs; he directed and controlled
other workers who sold drugs on his behalf. Rather than
demonstrate a lesser role, the facts that Longstreet highlights
simply indicate that he was not very good at the
leadership role he actually possessed. There is ample
evidence in the record of Longstreet’s elevated role in
this conspiracy, and we find no clear error below.
B. Defendants Longstreet and Ervin—Consideration of the
Crack/Powder Cocaine Ratio
Both Longstreet and co-defendant Michael Ervin assert
that they are entitled to a limited remand to permit the
district court to reconsider the previously mandatory 100:1
crack/powder cocaine ratio. At the time Longstreet and
Ervin were sentenced in the spring of 2007, our precedent
prohibited a district court from departing from the Sentencing
Guidelines based on the disparity created by the
crack/powder cocaine ratio. See, e.g., United States v. Miller,
450 F.3d 270, 275 (7th Cir. 2006). Following their
sentencings, however, the United States Supreme Court
determined that a district court may deviate from the
advisory guidelines range after considering the
crack/powder cocaine disparity. Kimbrough v. United
States, 552 U.S. 85 (2007). Consequently, a limited remand
may be warranted to permit the district court to state
whether it would have imposed a different sentence
under Kimbrough. United States v. Taylor, 520 F.3d 746, 748
(7th Cir. 2008).
Both Longstreet and Ervin were sentenced based solely
on crack cocaine quantities.6 Neither defendant, however,
raised this issue in the proceedings below, and we
cannot determine whether the district court would have
considered the disparity had it not been constrained by
our pre-Kimbrough precedent. See Taylor, 520 F.3d at 748-49.
Therefore, a limited remand is appropriate under Taylor
to allow the district court to state whether it wishes to resentence
Longstreet or Ervin in light of Kimbrough.
C. Zepeda’s Challenges to His Sentence
A third co-defendant, Anselmo Zepeda, also challenges
his sentence. Zepeda was a supplier who worked with
fellow co-conspirators to distribute drugs to other members
of the conspiracy. Anthony Sutton was one of
Zepeda’s primary cocaine purchasers. On appeal, Zepeda
claims that the district court did not have sufficient,
reliable evidence to support the quantity of drugs it
attributed to him and that the government failed to meet
its burden of proving “relevant conduct” under U.S.S.G.
§ 1B1.3(a)(1)(B).
On November 7, 2006, Zepeda pled guilty, without a
plea agreement, to the conspiracy to possess and
distribute controlled substances alleged in Count One of
the indictment. At his plea hearing, the government stated
that if the case were to proceed to trial, it would demonstrate
that Zepeda conspired to distribute over five kilograms
of cocaine and quantities of marijuana. The government
proffered that Zepeda distributed at least five
kilograms of cocaine to Sutton, in kilogram or multikilogram
quantities per transaction, with the understanding
that Sutton would resell it. Specifically, in December
2004, Zepeda began supplying Sutton with one kilogram
of cocaine approximately two times per week;
within one month, the quantity of cocaine per transaction
increased to three kilograms; and in March 2005, it increased
again to five kilograms per transaction. Zepeda
agreed that these statements represented the government’s
factual basis for his guilty plea.
The government’s written factual basis for Zepeda’s
plea included these statements and also asserted that on
March 31, 2005, a co-conspirator attempted to deliver to
Sutton six kilograms of Zepeda’s cocaine, which Zepeda
did not dispute. The factual basis also stated that Zepeda
fronted Sutton with twenty-five pounds of marijuana
on two occasions.
The probation officer attached the government’s
written factual basis for the plea to the PSR and recommended
a finding that the total amount of drugs attributable
to Zepeda was at least fifty kilograms of cocaine
and approximately fifty kilograms of marijuana. The
bases for these quantities were statements in the indictment,
the written factual basis for the plea, and an interview
with IRS Agent Chris Carlson. The PSR reflected the
same transactions between Zepeda and Sutton from
December 2004 to March 2005 that Zepeda admitted and
that were detailed in the written factual basis for the
plea, with one exception: the PSR did not mention the
increase from one to three kilograms of cocaine that
Zepeda supplied to Sutton within one month of December
2004. The PSR also found that Zepeda had engaged
in “relevant conduct,” see U.S.S.G. § 1B1.3(a)(1)(B), in that
he supplied an individual with cocaine from the end of
1994 until the end of 1996 or early 1997, first in one-quarter
kilogram quantities and later in two kilogram quantities.
The district judge considered the evidence in the
record, accepted the PSR’s calculation, and set Zepeda’s
base offense level at thirty-seven. The court applied a
leadership enhancement, and it sentenced Zepeda to
210 months on the conspiracy count. Zepeda’s main
argument is that the district court did not have reliable
information to determine that Zepeda was responsible
for over fifty kilograms of cocaine. He bases this assertion
primarily on a perceived conflict between the PSR and
Zepeda’s own admissions regarding the increase to threekilogram
deliveries of cocaine to Sutton.
Zepeda did not object to the PSR’s recommended quantity
of drugs prior to the sentencing hearing, nor at the
hearing itself. Consequently, he has forfeited his challenge,
and we review the district court’s calculation for
plain error. United States v. Jaimes-Jaimes, 406 F.3d 845, 849
(7th Cir. 2005); see also United States v. Middlebrook, 553 F.3d
572, 577 (7th Cir. 2009). Under such a standard, we will
correct only particularly egregious errors to prevent a
miscarriage of justice, and even if there was plain error, the
error must “ ‘seriously affect[] the fairness, integrity, or
public reputation of judicial proceedings’ ” to warrant
reversal. Middlebrook, 553 F.3d at 578 (quoting United States
v. Cusimano, 148 F.3d 824, 828 (7th Cir. 1998)). This standard
is high, and we find no such error here.
As described above, see supra pt. II.A.4.a., the district
court must determine the quantity of drugs attributable
to a defendant by a preponderance of the evidence.
Krasinski, 545 F.3d at 551. In so doing, the sentencing
court “may appropriately conduct an inquiry broad in
scope, largely unlimited either as to the kind of information
he may consider, or the source from which it may
come,” United States v. Hankton, 432 F.3d 779, 789 (7th Cir.
2005) (quotations omitted), as long as it has “sufficient
indicia of reliability to support its probable accuracy,”
Bautista, 532 F.3d at 672. The district court, therefore, is not
limited to reviewing the PSR when calculating drug
quantity; “what controls the analysis is the ‘entire evidence’
before the district court.” United States v. Sutton,
406 F.3d 472, 474 (7th Cir. 2005) (quoting United States v.
Span, 170 F.3d 798, 803 (7th Cir. 1999)); see also Hankton, 432
F.3d at 790 (“In determining reliability we consider the
totality of the evidence before the sentencing judge.”). We
may affirm a sentence on any basis supported by the
record, even evidence not relied on by the sentencing
judge. Sutton, 406 F.3d at 474.
Particularly damaging to Zepeda’s claim is that he
gave the district court no reason to believe that the information
upon which it relied to calculate the drug quantities
was inaccurate. A district court may rely on a PSR’s
recommended calculations where the defendant fails to
alert the court to potentially inaccurate or unreliable
information. See United States v. Artley, 489 F.3d 813, 821
(7th Cir. 2007); see also United States v. Jones, 209 F.3d 991,
996 (7th Cir. 2000) (rejecting defendant’s drug quantity
challenge because a mere denial of PSR’s truth is insufficient,
and he failed to demonstrate that the information
upon which the district court relied was inaccurate). On
appeal, a defendant must show “that the information
before the court was inaccurate, and that the court
relied on it” to successfully challenge his sentence. See
Hankton, 432 F.3d at 790 (quotations omitted). Zepeda
has made no such showing.
Here, Zepeda not only failed to object to the PSR’s
recommended drug quantities, but he actually admitted
during his plea colloquy that the government’s evidence
would demonstrate a series of transactions involving
cocaine quantities that, when added together, totaled at
least fifty kilograms of cocaine. Cf. Krasinski, 545 F.3d at 552
(“Admissions in a plea agreement also conclusively
establish the admitted facts.”); United States v. Warneke,
310 F.3d 542, 550 (7th Cir. 2002) (“An admission is even
better than a jury’s finding beyond a reasonable doubt; it
removes all contest from the case.”). We have previously
upheld a defendant’s sentence based largely on the defendant’s
own admissions or a plea agreement. See, e.g.,
Krasinski, 545 F.3d at 552 (using a range of ecstasy pills that
defendant admitted to distributing to calculate the total
quantity); United States v. Arenal, 500 F.3d 634, 639-40 (7th
Cir. 2007) (upholding sentence based on defendant’s
admission of quantity in plea agreement); Sutton, 406
F.3d at 474 (upholding sentence even though defendant
gave two different quantities of crack at plea colloquy).
The evidence before the district court—including the
PSR, the government’s factual basis for the plea, and
Zepeda’s own admissions—provided sufficiently reliable
information for the district court’s calculations, and we
need not reach the drug quantities attributed to Zepeda as
“relevant conduct.” Zepeda admitted that the evidence
at trial would demonstrate that he sold cocaine to
Anthony Sutton two times per week from December
2004 to the end of March 2005, beginning with one
kilogram deliveries, but increasing within one month to
three kilograms per exchange. In March 2005, the amount
increased again to five kilograms per transaction, and
there was one additional attempted transaction for six
kilograms. Zepeda sets forth what he deems the most
conservative number of transactions (twenty-seven), see
Petr.’s Br. 10, but even using this number of transactions,
multiplied by the weights that he admitted, the total
amount exceeds fifty kilograms. The omission from the
PSR of the increase to three-kilogram deliveries of crack
to Sutton does not alter our conclusion. The PSR did not
contradict Zepeda’s own admissions, and the district
court could rely on any evidence in the record. Further, a
district court does not automatically commit clear error
when it fails to use the most conservative calculation
possible. See Krasinski, 545 F.3d at 553 (noting that district
court could have employed a more conservative calculation,
but that it based the quantity on information provided
by the defendant himself). The district court had
reliable support for holding Zepeda responsible for at
least fifty kilograms of cocaine, and we therefore find no
plain error that would result in a miscarriage of justice.
See Middlebrook, 553 F.3d at 578. Consequently, we
affirm Zepeda’s sentence.
III. CONCLUSION
We find no error in Longstreet’s trial, and we AFFIRM
his conviction. We also find no error in the district court’s
calculation of the quantity of drugs attributable to
Longstreet, nor in its enhancement of his sentence based
on his leadership role. However, the district court did not
consider the crack/powder cocaine disparity when sentencing
both Longstreet and Ervin, and we therefore
order a LIMITED REMAND in both cases to allow the
district court to consider whether it wishes to resentence
either defendant in light of Kimbrough. Last, the district
court did not err in calculating Zepeda’s base offense
level, and we AFFIRM his sentence.
Chicago Criminal Lawyer - Robert J Callahan
and Anselmo Zepeda were among twenty-nine defendants
charged with a variety of federal offenses arising from
their participation in a large drug operation on the west
side of Chicago. The defendants ranged from suppliers
to gang leaders to low-level, street-corner drug dealers.
All twenty-nine defendants were indicted for, inter alia,
a conspiracy to possess and distribute controlled sub2
stances. Unfortunately, we see many cases involving
large drug conspiracies. It is disheartening to know that
when the legal system removes one drug conspirator
from the street, someone else will quickly fill the void.
But as long as the actions occur, we must deal with
the actors.
Of the three appellants, only Longstreet—the leader of
the west side faction of the Four Corner Hustlers—
proceeded to trial, where a jury found him guilty
of a number of charges. Ervin and Zepeda both pled
guilty. The district court sentenced Longstreet, Ervin, and
Zepeda to 456, 300, and 210 months in prison, respectively.
On appeal, Longstreet challenges his conviction, and all
three defendants present issues regarding their sentences.
I. BACKGROUND
This case involves a widespread drug operation on
Chicago’s troubled west side, and the twenty-nine codefendants
included individuals involved in all aspects of
the business. The primary player for purposes of this
appeal is Ray Longstreet, who was the alleged “chief” of
the west side faction of a street gang named the Four
Corner Hustlers. Longstreet oversaw a drug network that
trafficked in heroin, cocaine, crack, and marijuana.
Longstreet’s activities included coordinating the purchase,
mixture, and packaging of substances containing heroin
and crack; directing drug sales by lower-level gang members;
collecting “street rent” from dealers in exchange
for permission to sell drugs in his territory; and controlling
the types of drugs available and the street
corners on which the dealers sold them.
Michael Ervin was a mid-level gang operative who
allegedly served as Longstreet’s “enforcer” and also sold
heroin on Longstreet’s behalf. Unlike the other two appellants,
Anselmo Zepeda was involved on the conspiracy’s
supply side; he allegedly fronted other dealers large
quantities of drugs to be repackaged and resold on the
streets. The remaining details reflect an all-too-common
illegal drug operation, and we see no need to describe
them further except as they relate to the analysis below.
In 2004, the Chicago Police Department and the Drug
Enforcement Agency began investigating drug trafficking
in the area controlled by the Four Corner Hustlers. The
investigation included live and video surveillance of
Longstreet and his co-conspirators, undercover
purchases at one of Longstreet’s corners, and court-authorized
wiretaps relating to three telephone numbers. In
total, law enforcement recorded between 3,000 and 5,000
calls on one telephone belonging to Longstreet and two
telephones belonging to Anthony Sutton, a crack cocaine
dealer who operated in Longstreet’s territory. Many of
the calls revealed the mechanics of a modern-day drug
business. At Longstreet’s trial, the government played
over one hundred of these calls, many of which
involved Longstreet and nearly all of which related to
drug activity.
On September 14, 2005, a grand jury returned a sixtyseven-
count indictment, Count One of which charged
twenty-nine individuals with a single conspiracy to
possess with intent to distribute, and to distribute, controlled
substances in violation of 21 U.S.C. § 846. The
controlled substances included mixtures and substances
containing cocaine, heroin, marijuana, and cocaine base
in the form of crack. The three appellants were also
charged with a number of other offenses related to
their participation in the drug operation.
Longstreet proceeded to trial, and the government, in
addition to introducing the recorded telephone conversations,
called law enforcement officers and four
cooperating witnesses, each of whom testified about his
or her interactions with Longstreet. The key government
witness was Anthony Sutton, who testified extensively
about Longstreet’s various roles in the local drug
business, as well as Sutton’s own role as a drug dealer.
After a week-long trial, the jury convicted Longstreet
for his participation in the conspiracy and several
related offenses. On March 19, 2007, the district court
sentenced Longstreet to 456 months in federal prison on
the conspiracy charge.1
Ervin and Zepeda each pled guilty to the conspiracy
charge and two related offenses. On May 23, 2007, the
district court sentenced Ervin to 300 months in prison.
On August 9, the district court sentenced Zepeda to
210 months in prison.
II. ANALYSIS
We consolidated the defendants’ cases for appeal. Each
co-defendant raises separate issues, and we address
each of them in turn. We first consider Longstreet’s
challenges to both his conviction and his sentence. We
next address the sole issue that Ervin presents, which
Longstreet raises as well: whether a limited remand is
appropriate for the district court to consider the
disparity created by the Sentencing Guidelines’
crack/powder cocaine ratio. Last, we address Zepeda’s
challenges to his sentence.
A. Longstreet’s Challenges to His Conviction and Sentence
Longstreet challenges both his conviction and his sentence,
and he raises four issues: (1) whether the government
produced sufficient evidence to prove that he was
part of the charged conspiracy; (2) whether the district
court properly instructed the jury regarding multiple
conspiracies; (3) whether the district court properly
precluded him from calling Andre Kincaid to testify
about drug purchases from a co-conspirator; and
(4) whether the court properly sentenced him to 456
months in prison.
1. Fatal Variance/Sufficiency of the Evidence
Longstreet first claims that there was a prejudicial
variance between the conspiracy charged and the evidence
produced at trial. According to him, the proof demonstrated,
at best, a number of smaller conspiracies, rather
than one unified conspiracy including him and Anthony
Sutton. Although Longstreet makes a belated effort to
separate himself from the activities of other co-conspirators,
particularly Sutton, we find his argument unavailing.
A variance arises when the facts proved at trial differ
from those alleged in the indictment. United States v.
Griffin, 493 F.3d 856, 862 (7th Cir. 2007). In a conspiracy
case, we treat a defendant’s variance claim as a challenge
to the sufficiency of the evidence supporting the jury’s
finding that the defendant was a member of the charged
conspiracy. Id. To succeed, Longstreet must establish
that (1) the evidence at trial was insufficient to support
the jury’s finding that he belonged to a single conspiracy,
and (2) he was prejudiced by the variance. United States
v. Jones, 275 F.3d 648, 651 (7th Cir. 2001). We view the
evidence in the light most favorable to the government
and will overturn a conviction only if the record contains
no evidence from which a reasonable juror could have
found the defendant guilty. United States v. Rollins, 544
F.3d 820, 835 (7th Cir. 2008). The defendant’s “heavy”
burden when challenging a conviction for insufficiency
of the evidence is “nearly insurmountable.” United States
v. Moses, 513 F.3d 727, 733 (7th Cir. 2008) (quotations
omitted); see also United States v. Melendez, 401 F.3d 851,
854 (7th Cir. 2005) (“Sufficiency of the evidence challenges
rarely succeed because we owe great deference to
the jury’s verdict.”)
Therefore, we must determine whether the record
contains sufficient evidence for a reasonable juror to have
found Longstreet guilty of the conspiracy in Count One
of the indictment. A conspiracy exists when two or more
people agree to commit an unlawful act, and the
defendant knowingly and intentionally joins that agreement.
Rollins, 544 F.3d at 835. A conspiracy under
21 U.S.C. § 846 requires “ ‘substantial evidence that the
defendant knew of the illegal objective of the conspiracy
and agreed to participate.’ ” Id. (quoting United States
v. Thornton, 197 F.3d 241, 254 (7th Cir. 1999)).
In proving a conspiracy, the government need not
establish with whom the defendant conspired; it must
simply prove “ ‘that the defendant joined the agreement
alleged, not the group.’ ” Griffin, 493 F.3d at 862 (quoting
United States v. Stigler, 413 F.3d 588, 592 (7th Cir. 2005)). “So
long as the evidence demonstrates that the co-conspirators
embraced a common criminal objective, a single conspiracy
exists, even if the parties do not know one or
another and do not participate in every aspect of the
scheme.” Jones, 275 F.3d at 652. For a drug conspiracy,
“[a]ll that is necessary is ‘enough circumstantial evidence
to support, beyond reasonable doubt, an inference that
the defendants agreed among themselves to distribute
drugs.’ ” United States v. Pagan, 196 F.3d 884, 889 (7th Cir.
1999) (quoting United States v. Townsend, 924 F.2d 1385,
1390 (7th Cir. 1991)).
In this case, the government introduced ample evidence
from which a reasonable juror could have found that
Longstreet knowingly agreed with others to distribute
illegal drugs. As long as such evidence was before the
jury, its verdict must stand; it is the jury’s role to determine
the credibility of the witnesses and weigh the evidence.
Rollins, 544 F.3d at 835; see also Pagan, 196 F.3d at
889. It is unnecessary to recount all of the facts of this
case; we will merely note a few pieces of evidence that
adequately support the jury’s verdict. The government
presented evidence that Longstreet controlled drug
trafficking in a particular area, operated his own drug
business by hiring employees to package and sell heroin,
and collected rent from dealers in exchange for the right
to sell drugs on street corners that he controlled. The jury
not only saw witnesses testify to these facts, but it
also heard multiple wiretapped phone conversations
between Longstreet and co-conspirators discussing drugs,
guns, and territory. This evidence supports the conspiracy
conviction.
First, evidence demonstrated that Longstreet operated
his own heroin business, which Longstreet does not
appear to contest on appeal. Several witnesses testified
that Longstreet purchased large quantities of heroin
from multiple suppliers, who often fronted him the
drugs expecting to be repaid from the proceeds of their
sale. Cf. United States v. Bustamante, 493 F.3d 879, 884-85
(7th Cir. 2007) (noting that factors indicating a drug
conspiracy include transactions involving large quantities
of drugs and sales on credit). Various co-conspirators
explained that Longstreet employed them to assist in
mixing and repackaging the drugs, to sell heroin at his
drug spots on the streets, to collect the proceeds, and, if
necessary, to act as his “enforcers.” This evidence
indicates that Longstreet was neither an individual,
disinterested drug distributor, nor engaged in a single
drug transaction. Cf. id. at 884 (“[B]uying and selling
drugs, without more, does not constitute a conspiracy.”).
Second, there was plentiful evidence indicating a criminal
agreement between Longstreet and Anthony Sutton.
Sutton testified that Longstreet was the chief of the Four
Corner Hustlers and that he controlled the territory
bordered by Pulaski Avenue, Chicago Avenue, Hamlin
Avenue, and Division Street. Sutton explained that
Longstreet was in a position of power over him and other
dealers, that Longstreet enlisted employees to handle
problems with the dealers, and that Longstreet required
the dealers—including Sutton—to pay rent for the right
to sell drugs in his territory. Sutton’s drug spot was
located in front of Longstreet’s home, and Sutton stopped
paying rent only when “Ray Longstreet told him he
didn’t have to anymore.” During cross-examination,
Sutton testified that when he first reopened this spot in
2002, three of Longstreet’s employees separately demanded
rent, using Longstreet’s name expressly. The record is
littered with evidence—including multiple recorded
telephone calls between Longstreet and Sutton—reflecting,
at least, an agreement between Longstreet and Sutton
to coordinate their own drug sales, and, at most,
Longstreet’s efforts to control the drug sales of many
dealers in the area.
Sutton also contradicted one of the theories that
Longstreet propounded in an effort to undermine a
single conspiracy. Longstreet argued that the two men
competed with one another for heroin sales, which he
claims indicated that they were operating two separate
conspiracies. According to Sutton, however, he and
Longstreet agreed that Sutton would sell crack cocaine,
while Longstreet would sell heroin. Sutton stated a
number of times, including during cross-examination, that
he did not sell heroin. Longstreet attempted to introduce
evidence to the contrary, which we address below, but
even if we assume that Sutton competed with Longstreet
by selling heroin on occasion, the other evidence still
suggests that they joined in a single agreement to
possess and distribute illegal drugs. See United States v.
Maholias, 985 F.2d 869, 876 (7th Cir. 1993) (“Conspirators
who distribute drugs often sell in parallel strands rather
than in links essential to one another.”).
Longstreet goes to great lengths to separate himself
from Sutton, explaining how he lacked control over
Sutton; that Sutton sold his own drugs and withheld
from him information and profits; that Longstreet was
in prison or on house arrest during some relevant time
periods; and that Longstreet “was not a drug kingpin”
overseeing a large drug dealing operation. But none of
these affect the quintessential elements of a conspiracy.
These arguments, which perhaps suggest that Longstreet
was not omnipotent or overly successful at his business,
do not change the fact that there was evidence to support
a reasonable juror’s finding that Longstreet agreed with
others—Sutton included—to possess and distribute
controlled substances. The charge did not require the jury
to find that Longstreet was a “kingpin”—it merely required
the government to prove that he joined a criminal
conspiracy to possess and distribute illegal drugs, which
is exactly what Sutton and his fellow co-conspirators
said that Longstreet did.
There is evidence in the record from which a reasonable
juror could have found Longstreet guilty of the
conspiracy charged in the indictment. True, much of the
evidence came from Anthony Sutton, an admitted drug
dealer. But as we have already stated, if there is evidence
supporting a reasonable juror’s conclusion, it is up to the
juror, not this court, to evaluate and weigh that evidence.
Rollins, 544 F.3d at 835; see also Pagan, 196 F.3d at 889 (“The
extent to which [a witness’s] personal failings and motivations
may have influenced his testimony was for the jury
to decide.”). Because a rational jury could have believed
the witnesses’ testimony, there was no variance between
the charge and the evidence produced at trial.
2. Absence of a Jury Instruction Regarding Evidence of
Multiple Conspiracies
Longstreet’s second challenge to his conviction is that
the district court should have instructed the jury not to
consider evidence related to any separate, distinct conspiracy
when considering Longstreet’s guilt. Without
such an instruction, he argues, the jury was free to consider
criminal activity unrelated to him when rendering
its verdict, thereby prejudicing him.
Prior to trial, Longstreet proposed jury instructions
that included a multiple conspiracy instruction. At the
end of the trial, the government proposed its own
multiple conspiracy instruction, which the district court
accepted after a brief discussion among counsel;
Longstreet’s counsel stated that he would accept that
instruction. The instruction stated that the jury may find
the existence of multiple conspiracies, rather than a
single one, and it informed the jury that it must base
this decision “only on what the defendant did or said.” It
did not, however, expressly instruct the jury to
disregard evidence of conduct in any conspiracy in
which it might find that the defendant did not participate.
We typically review an attack on a jury instruction for
an abuse of discretion, but when the underlying error
implicates a question of law, we review de novo. United
States v. Macedo, 406 F.3d 778, 787 (7th Cir. 2005). However,
because Longstreet agreed to the instruction as written
and failed to request a component directing the jury not
to consider evidence of unrelated conspiracies, he
forfeited this challenge on appeal,2 and we review for
plain error. See United States v. Trennell, 290 F.3d 881, 886
(7th Cir. 2002); see also United States v. Olano, 507 U.S. 725,
732 (1993) (explaining that error must be plain and affect
defendant’s substantial rights to merit reversal).
We find no plain error here. Longstreet is correct that if
the evidence produced at trial does not support the
conspiracy alleged in the indictment, the court should
instruct the jury “that evidence relating to the other
conspiracy or conspiracies disclosed may not be used
against him under any circumstances.” United States v.
Lindsey, 602 F.2d 785, 787 (7th Cir. 1979) (quotations
omitted). But that is as far as Longstreet’s argument
takes him.
First, the evidence at trial supported the conspiracy
alleged in the indictment; we have already determined that
there was no variance. Therefore, there was no “other
conspiracy” disclosed at trial. Second, the absence of an
express instruction to disregard any potential evidence
of another conspiracy did not deprive Longstreet of a fair
trial. See Olano, 507 U.S. at 732 (noting that a court of
appeals has discretion to correct a plain error and “should
not exercise that discretion unless the error seriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings” (alteration in original) (quotations
omitted)). The district court’s instruction properly informed
the jury of the requirements for a conspiracy
conviction and that it was only allowed to evaluate
Longstreet’s own words and conduct to determine the
conspiracies, if any, in which he participated. The instruction
also stated that the jury could find Longstreet
guilty only if he participated in the conspiracy alleged
in the indictment. Further, the district court advised the
jury that it should consider the convictions of the testifying
co-conspirators for credibility purposes only, not
to determine Longstreet’s guilt. In light of the entire
instruction, the court did not commit plain error.
3. Proposed Testimony of Andre Kincaid
Longstreet’s third challenge to his conviction is that the
district court improperly prohibited him from questioning
co-defendant Andre Kincaid about Anthony
Sutton. As noted, Longstreet claimed that Sutton operated
a distinct conspiracy in which Sutton competed with
Longstreet to sell heroin. Sutton, however, testified that
the two men had an agreement to sell different drugs
within Longstreet’s territory. At trial, Sutton claimed that
he sold only cocaine, crack, and marijuana, meaning that
his drug dealing activity did not conflict with Longstreet’s
heroin business. Sutton denied selling heroin in 2004
and specifically denied selling it to Andre Kincaid.
Longstreet sought to impeach Sutton with testimony
from Kincaid, who pled guilty to participating in the
conspiracy and admitted to purchasing cocaine and crack
from Sutton. In addition to crack purchases, Kincaid
had previously informed the government that he purchased
heroin from Sutton, that he saw Sutton’s workers
giving heroin away, and that Sutton had an international
heroin source. The district judge was prepared to permit
Kincaid to testify to these facts over the government’s
objection that it was an improper collateral impeachment.
Before testifying, however, Kincaid invoked his Fifth
Amendment right against self-incrimination, which the
district court accepted. The court then determined that
Kincaid was unavailable to testify, see Fed. R. Evid.
804(a)(1), and permitted Special Agent Chris Carlson of
the Internal Revenue Service to testify regarding Kincaid’s
prior proffer, see id. 804(b)(3). Agent Carlson was present
at Kincaid’s interview, and he testified that Kincaid
provided the government with the information stated
above. Longstreet asserts that the court erred because
he only intended to call Kincaid to testify about what he
had seen, not what he had done, i.e., there was no possibility
that Kincaid’s testimony could be self-incriminating.
The Fifth Amendment ensures that a criminal defendant
shall not “be compelled . . . to be a witness against himself.”
U.S. Const. amend. V. Such a right “must be
confined to instances where the witness has reasonable
cause to apprehend danger from a direct answer.” Hoffman
v. United States, 341 U.S. 479, 486 (1951). Thus, when a
witness invokes his Fifth Amendment right, the district
court should confirm that he “cannot possibly incriminate
himself,” and if the “witness’s testimony may make
him vulnerable to prosecution, the trial court may allow
him to . . . refuse to testify.” United States v. Mabrook, 301
F.3d 503, 506 (7th Cir. 2002). Because Kincaid had not yet
been sentenced when asked to testify, he retained the
ability to invoke his guarantee against self-incrimination.
See Mitchell v. United States, 526 U.S. 314, 325 (1999). We
review a district court’s Fifth Amendment privilege
determination for an abuse of discretion. Mabrook, 301
F.3d at 506.
Although Longstreet characterizes Kincaid’s proffered
testimony as encompassing only his observations of others,
the record tells a different story. Throughout the discussions
regarding Kincaid’s testimony, the government,
Longstreet’s counsel, and the district court referred to
Kincaid’s prior statements that he had purchased heroin
from Sutton, and the record reflects that these statements
were the primary focus of the dispute. Longstreet’s
counsel added that Kincaid observed Sutton’s other
heroin activities, but he also noted a number of times
that Kincaid bought heroin from Sutton. If questioned
about this activity, the answers certainly had the
potential to incriminate Sutton, and such testimony falls
squarely within the ambit of the privilege against selfincrimination.
On appeal, Longstreet argues that the district court could
have permitted questioning about some of Kincaid’s
observations, yet prevented questions directly implicating
him. Longstreet’s counsel never made this argument to
the district court. In fact, Longstreet’s primary argument
in favor of allowing Kincaid’s testimony was that
Kincaid relinquished or waived his Fifth Amendment
privilege by voluntarily making his prior proffer to the
government, an argument the court considered and
appropriately rejected.
But even if Longstreet had sought to limit Kincaid’s
testimony before the district court, Kincaid still could
have refused to take the stand. A testifying witness
“cannot deprive the opposing party of the right of crossexamination.”
United States v. Herrera-Medina, 853 F.2d 564,
567-68 (7th Cir. 1988). Consequently, a witness may not
choose to testify and then “assert the Fifth Amendment
privilege with respect to specific questions if they are
within the scope of his testimony.” Id. at 567. Thus, even
if Kincaid’s testimony on direct examination was limited
to non-incriminating statements, his testimony would
have exposed him to “broad-ranging cross-examination,”
id., the proper scope of which could have included his
heroin transactions with Sutton and other potentially
incriminating information. Kincaid could have been
incriminated by his answers to these questions, and,
therefore, “[h]is fear of self-incrimination was hardly
fanciful.” Id. at 568 (quotations omitted).
Last, Longstreet did not suffer prejudice from the
exclusion of Kincaid’s testimony. The district court permitted
Agent Carlson to tell the jury exactly what Longstreet
wanted Kincaid to say, and Longstreet has not suggested
any information that he was unable to present as a result
of Kincaid’s unavailability. Longstreet cannot demonstrate
a reasonable possibility that Kincaid’s testimony
would have altered the jury’s verdict. See United States
v. Castaldi, 547 F.3d 699, 705 (7th Cir. 2008). Consequently,
the district court did not abuse its discretion by
permitting Kincaid to invoke his Fifth Amendment privilege.
4. Longstreet’s Sentencing Issues
Finally, Longstreet challenges his sentence. After hearing
argument from both sides, the district court found that
Longstreet had a base offense level of thirty-eight and a
criminal history that placed him in sentencing category
six. The court added a two-level enhancement for possession
of a gun and a four-level enhancement for his leadership
role in the conspiracy, resulting in a final offense
level of forty-four. The advisory Sentencing Guidelines
range was life imprisonment, but the district court imposed
a below-Guidelines sentence of 456 months.
Longstreet contests that the district court committed
two errors that improperly increased his sentence:
(1) attributing to him drug quantities from sales that did
not relate to him; and (2) imposing the leadership role
enhancement.
a. Drug Quantity Attributable to Longstreet
Longstreet first challenges the district court’s calculations
of the drug quantities used to establish his base offense
level under the 2006 version of the Sentencing Guidelines.
At sentencing, the government has the burden of proving
the quantity of drugs attributable to a defendant by a
preponderance of the evidence. United States v. Krasinski,
545 F.3d 546, 551 (7th Cir. 2008). Although the district
court is not limited to evidence admissible at trial, United
States v. Clark, 538 F.3d 803, 812 (7th Cir. 2008), it must base
its sentence on information with “sufficient indicia of
reliability to support its probable accuracy,” United States
v. Bautista, 532 F.3d 667, 672 (7th Cir. 2008) (quotations
omitted). We review the district court’s factual findings
regarding drug quantity for clear error, id., which is a
“highly deferential standard of review[,] and we refuse
to second-guess the sentencing judge,” Clark, 538 F.3d at
812 (quotations omitted).
According to the Sentencing Guidelines, a defendant is
“accountable for all quantities of contraband [including
controlled substances] with which he was directly
involved and, in the case of a jointly undertaken
criminal activity, all reasonably foreseeable quantities of
contraband that were within the scope of the criminal
activity that he jointly undertook.” U.S. Sentencing Guidelines
Manual (U.S.S.G.) § 1B1.3(a)(1) cmt. n.2 (2006); see also
Bautista, 532 F.3d at 672; United States v. Nubuor, 274
F.3d 435, 443 (7th Cir. 2001) (noting that the district court
may sentence a defendant “for drug quantities that he
did not handle, so long as he could reasonabl[y] foresee
that the drug transactions would occur”). Further, “[t]he
guidelines’ concept of reasonable foreseeability does not
require that a coconspirator be aware of the precise quantity
involved in each of an ongoing series of illegal transactions.”
United States v. Scroggins, 939 F.2d 416, 423 (7th
Cir. 1991). Having already determined that Longstreet
and Sutton engaged in a single criminal conspiracy, we
must now consider whether Sutton’s crack cocaine sales
should be attributed to Longstreet as “reasonably foreseeable”
transactions within the scope of their conspiracy.
The probation officer recommended in Longstreet’s
presentence investigation report (PSR) that he be held
responsible for at least 1.5 kilograms of crack cocaine and
three kilograms of heroin. According to the Sentencing
Guidelines, this quantity of crack alone placed him at the
highest base offense level, thirty-eight. See U.S.S.G.
§ 2D1.1(c)(1) (Drug Quantity Table) (2006). The district
court, after examining the PSR and hearing argument
from the government and defendant, agreed with the
probation officer’s recommendation of a base offense
level of thirty-eight.
The driving force behind Longstreet’s base offense level
was the quantity of crack cocaine dealt by Anthony Sutton.
Specifically, the district court found that Longstreet was
accountable for at least 1.5 kilograms of crack handled
by Sutton. Because this quantity of crack provided a
sufficient basis for the recommended offense level, see id.,
the court did not address Longstreet’s heroin quantities,
nor did it incorporate drugs moved at any other operators’
drug spots within Longstreet’s territory.
Longstreet asserts that Sutton’s crack sales should not
be attributed to him because Sutton operated his own
conspiracy and did not share profits or details of his drug
sales. We discard much of this argument based on our
determination above that the evidence supports a single
conspiracy. According to the previously described arrangement
between the two men, Sutton sold crack at an estimated
1.5 ounces per day, seven days a week, over a nearly
three-year period. To reach the 1.5 kilogram quantity that
the district court calculated, Longstreet would have to be
attributed with only 53 ounces of crack. At a rate of 1.5
ounces per day, this would have taken a mere 36 days.
Sutton’s testimony clearly supports this amount. See
U.S.S.G. § 2D1.1 cmt. n.12 (2006) (“Where there is no drug
seizure or the amount seized does not reflect the scale of
the offense, the court shall approximate the quantity of the
controlled substance.”); Krasinski, 545 F.3d at 552 (“A
district court may use a reasonable estimate of the quantity
of drugs attributable to a defendant for guidelines purposes.”).
The district judge chose to credit Sutton’s testimony,
finding that although the two men did not expressly
share their profits, they were part of a single conspiracy in
which Sutton paid Longstreet rent for the right to sell
drugs in his territory. Therefore, Sutton’s crack sales
were within the scope of the conspiracy. If Sutton’s testimony
is true, such an agreement certainly renders future
crack sales reasonably foreseeable to Longstreet. That
Sutton was a potentially self-interested drug dealer does
not preclude the district court from crediting his testimony,
for a district court’s determination of a witness’s
credibility is “entitled to great deference and can virtually
never be clear error.” Clark, 538 F.3d at 813 (quotations
omitted). We find no such error here; the district court
properly calculated Longstreet’s base offense level.
b. Leadership Role Enhancement
In addition to setting Longstreet’s base offense level, the
district court applied a four-level enhancement based on
Longstreet’s leadership role in the conspiracy. Longstreet
contends that the evidence presented at trial did not
support the court’s finding that he was an organizer or
leader. We review the district court’s leadership enhancement
for clear error, which exists only when “we are
left with a definite and firm conviction that a mistake
has been made.” United States v. Hatten-Lubick, 525 F.3d
575, 580 (7th Cir. 2008).
Under § 3B1.1 of the Sentencing Guidelines, a district
court may enhance a defendant’s sentence by four levels
if it determines that he “was an organizer or leader of a
criminal activity that involved five or more participants
or was otherwise extensive.” U.S.S.G. § 3B1.1(a) (2006).
Longstreet does not dispute that the conspiracy in this
case involved more than five participants, and thus
we focus on Longstreet’s role within it.
To receive any § 3B1.1 increase for an aggravated role,
the defendant must, at a minimum, “have had some real
and direct influence, aimed at furthering the criminal
activity, upon one other identified participant.” United
States v. Mustread, 42 F.3d 1097, 1103 (7th Cir. 1994). In
deciding to apply the enhancement, courts should consider:
the exercise of decision making authority, the
nature of participation in the commission of the
offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of the
crime, the degree of participation in planning or
organizing the offense, the nature and scope of the
illegal activity, and the degree of control and
authority exercised over others.
U.S.S.G. § 3B1.1 cmt. n.4. The list is non-exclusive, we
have not necessarily given each factor equal weight, and
we may uphold Longstreet’s sentence on any ground in
the record, regardless of the rationale used by the
district court. See Mustread, 42 F.3d at 1104.
After reviewing the record and considering the above
factors, we agree with the government that the evidence
adequately supported Longstreet’s leadership enhancement.
As noted above and explained in the PSR, witnesses
testified that Longstreet was the leader of a faction of the
Four Corner Hustlers and controlled the drug business in
a particular territory. He procured various harmful illegal
drugs from a number of suppliers, employed and directed
workers to mix and repackage them, and operated a
variety of drug spots using other employees. For other
dealers, such as Anthony Sutton, Longstreet charged rent
for the right to sell within his territory and attempted
to control the locations where those dealers set up shop.
Sutton’s testimony alone demonstrates that Longstreet
sought to exert control over components of the charged
conspiracy. But even without considering Longstreet’s
relationship with Sutton, Longstreet exercised control over
many co-conspirators in this drug business, which is
sufficient for the § 3B1.1 enhancement.
Throughout his brief, Longstreet attempts to downplay
his role in the charged conspiracy, painting himself
as an out-of-touch former kingpin who is now struggling
to regain some semblance of his former power and territory.
But even the facts he raises support the leadership
enhancement. For example, he notes as the “most telling
evidence” of his minimal role that alleged co-conspirators
admitted to ignoring some of his orders. But this fact
necessarily implies that he was indeed giving orders, a
characteristic consistent with someone in a leadership role.
Similarly, he notes that “people routinely refused to pay
Longstreet drug money owed to him.” Unless we misunderstand
the drug business—or any business, for that
matter—one is not typically owed money unless he
provided something in exchange. Although being a drug
dealer, alone, is insufficient to support a leadership
enhancement, see Mustread, 42 F.3d at 1104, the evidence
at trial indicated that Longstreet was not out on the
corner selling his own drugs; he directed and controlled
other workers who sold drugs on his behalf. Rather than
demonstrate a lesser role, the facts that Longstreet highlights
simply indicate that he was not very good at the
leadership role he actually possessed. There is ample
evidence in the record of Longstreet’s elevated role in
this conspiracy, and we find no clear error below.
B. Defendants Longstreet and Ervin—Consideration of the
Crack/Powder Cocaine Ratio
Both Longstreet and co-defendant Michael Ervin assert
that they are entitled to a limited remand to permit the
district court to reconsider the previously mandatory 100:1
crack/powder cocaine ratio. At the time Longstreet and
Ervin were sentenced in the spring of 2007, our precedent
prohibited a district court from departing from the Sentencing
Guidelines based on the disparity created by the
crack/powder cocaine ratio. See, e.g., United States v. Miller,
450 F.3d 270, 275 (7th Cir. 2006). Following their
sentencings, however, the United States Supreme Court
determined that a district court may deviate from the
advisory guidelines range after considering the
crack/powder cocaine disparity. Kimbrough v. United
States, 552 U.S. 85 (2007). Consequently, a limited remand
may be warranted to permit the district court to state
whether it would have imposed a different sentence
under Kimbrough. United States v. Taylor, 520 F.3d 746, 748
(7th Cir. 2008).
Both Longstreet and Ervin were sentenced based solely
on crack cocaine quantities.6 Neither defendant, however,
raised this issue in the proceedings below, and we
cannot determine whether the district court would have
considered the disparity had it not been constrained by
our pre-Kimbrough precedent. See Taylor, 520 F.3d at 748-49.
Therefore, a limited remand is appropriate under Taylor
to allow the district court to state whether it wishes to resentence
Longstreet or Ervin in light of Kimbrough.
C. Zepeda’s Challenges to His Sentence
A third co-defendant, Anselmo Zepeda, also challenges
his sentence. Zepeda was a supplier who worked with
fellow co-conspirators to distribute drugs to other members
of the conspiracy. Anthony Sutton was one of
Zepeda’s primary cocaine purchasers. On appeal, Zepeda
claims that the district court did not have sufficient,
reliable evidence to support the quantity of drugs it
attributed to him and that the government failed to meet
its burden of proving “relevant conduct” under U.S.S.G.
§ 1B1.3(a)(1)(B).
On November 7, 2006, Zepeda pled guilty, without a
plea agreement, to the conspiracy to possess and
distribute controlled substances alleged in Count One of
the indictment. At his plea hearing, the government stated
that if the case were to proceed to trial, it would demonstrate
that Zepeda conspired to distribute over five kilograms
of cocaine and quantities of marijuana. The government
proffered that Zepeda distributed at least five
kilograms of cocaine to Sutton, in kilogram or multikilogram
quantities per transaction, with the understanding
that Sutton would resell it. Specifically, in December
2004, Zepeda began supplying Sutton with one kilogram
of cocaine approximately two times per week;
within one month, the quantity of cocaine per transaction
increased to three kilograms; and in March 2005, it increased
again to five kilograms per transaction. Zepeda
agreed that these statements represented the government’s
factual basis for his guilty plea.
The government’s written factual basis for Zepeda’s
plea included these statements and also asserted that on
March 31, 2005, a co-conspirator attempted to deliver to
Sutton six kilograms of Zepeda’s cocaine, which Zepeda
did not dispute. The factual basis also stated that Zepeda
fronted Sutton with twenty-five pounds of marijuana
on two occasions.
The probation officer attached the government’s
written factual basis for the plea to the PSR and recommended
a finding that the total amount of drugs attributable
to Zepeda was at least fifty kilograms of cocaine
and approximately fifty kilograms of marijuana. The
bases for these quantities were statements in the indictment,
the written factual basis for the plea, and an interview
with IRS Agent Chris Carlson. The PSR reflected the
same transactions between Zepeda and Sutton from
December 2004 to March 2005 that Zepeda admitted and
that were detailed in the written factual basis for the
plea, with one exception: the PSR did not mention the
increase from one to three kilograms of cocaine that
Zepeda supplied to Sutton within one month of December
2004. The PSR also found that Zepeda had engaged
in “relevant conduct,” see U.S.S.G. § 1B1.3(a)(1)(B), in that
he supplied an individual with cocaine from the end of
1994 until the end of 1996 or early 1997, first in one-quarter
kilogram quantities and later in two kilogram quantities.
The district judge considered the evidence in the
record, accepted the PSR’s calculation, and set Zepeda’s
base offense level at thirty-seven. The court applied a
leadership enhancement, and it sentenced Zepeda to
210 months on the conspiracy count. Zepeda’s main
argument is that the district court did not have reliable
information to determine that Zepeda was responsible
for over fifty kilograms of cocaine. He bases this assertion
primarily on a perceived conflict between the PSR and
Zepeda’s own admissions regarding the increase to threekilogram
deliveries of cocaine to Sutton.
Zepeda did not object to the PSR’s recommended quantity
of drugs prior to the sentencing hearing, nor at the
hearing itself. Consequently, he has forfeited his challenge,
and we review the district court’s calculation for
plain error. United States v. Jaimes-Jaimes, 406 F.3d 845, 849
(7th Cir. 2005); see also United States v. Middlebrook, 553 F.3d
572, 577 (7th Cir. 2009). Under such a standard, we will
correct only particularly egregious errors to prevent a
miscarriage of justice, and even if there was plain error, the
error must “ ‘seriously affect[] the fairness, integrity, or
public reputation of judicial proceedings’ ” to warrant
reversal. Middlebrook, 553 F.3d at 578 (quoting United States
v. Cusimano, 148 F.3d 824, 828 (7th Cir. 1998)). This standard
is high, and we find no such error here.
As described above, see supra pt. II.A.4.a., the district
court must determine the quantity of drugs attributable
to a defendant by a preponderance of the evidence.
Krasinski, 545 F.3d at 551. In so doing, the sentencing
court “may appropriately conduct an inquiry broad in
scope, largely unlimited either as to the kind of information
he may consider, or the source from which it may
come,” United States v. Hankton, 432 F.3d 779, 789 (7th Cir.
2005) (quotations omitted), as long as it has “sufficient
indicia of reliability to support its probable accuracy,”
Bautista, 532 F.3d at 672. The district court, therefore, is not
limited to reviewing the PSR when calculating drug
quantity; “what controls the analysis is the ‘entire evidence’
before the district court.” United States v. Sutton,
406 F.3d 472, 474 (7th Cir. 2005) (quoting United States v.
Span, 170 F.3d 798, 803 (7th Cir. 1999)); see also Hankton, 432
F.3d at 790 (“In determining reliability we consider the
totality of the evidence before the sentencing judge.”). We
may affirm a sentence on any basis supported by the
record, even evidence not relied on by the sentencing
judge. Sutton, 406 F.3d at 474.
Particularly damaging to Zepeda’s claim is that he
gave the district court no reason to believe that the information
upon which it relied to calculate the drug quantities
was inaccurate. A district court may rely on a PSR’s
recommended calculations where the defendant fails to
alert the court to potentially inaccurate or unreliable
information. See United States v. Artley, 489 F.3d 813, 821
(7th Cir. 2007); see also United States v. Jones, 209 F.3d 991,
996 (7th Cir. 2000) (rejecting defendant’s drug quantity
challenge because a mere denial of PSR’s truth is insufficient,
and he failed to demonstrate that the information
upon which the district court relied was inaccurate). On
appeal, a defendant must show “that the information
before the court was inaccurate, and that the court
relied on it” to successfully challenge his sentence. See
Hankton, 432 F.3d at 790 (quotations omitted). Zepeda
has made no such showing.
Here, Zepeda not only failed to object to the PSR’s
recommended drug quantities, but he actually admitted
during his plea colloquy that the government’s evidence
would demonstrate a series of transactions involving
cocaine quantities that, when added together, totaled at
least fifty kilograms of cocaine. Cf. Krasinski, 545 F.3d at 552
(“Admissions in a plea agreement also conclusively
establish the admitted facts.”); United States v. Warneke,
310 F.3d 542, 550 (7th Cir. 2002) (“An admission is even
better than a jury’s finding beyond a reasonable doubt; it
removes all contest from the case.”). We have previously
upheld a defendant’s sentence based largely on the defendant’s
own admissions or a plea agreement. See, e.g.,
Krasinski, 545 F.3d at 552 (using a range of ecstasy pills that
defendant admitted to distributing to calculate the total
quantity); United States v. Arenal, 500 F.3d 634, 639-40 (7th
Cir. 2007) (upholding sentence based on defendant’s
admission of quantity in plea agreement); Sutton, 406
F.3d at 474 (upholding sentence even though defendant
gave two different quantities of crack at plea colloquy).
The evidence before the district court—including the
PSR, the government’s factual basis for the plea, and
Zepeda’s own admissions—provided sufficiently reliable
information for the district court’s calculations, and we
need not reach the drug quantities attributed to Zepeda as
“relevant conduct.” Zepeda admitted that the evidence
at trial would demonstrate that he sold cocaine to
Anthony Sutton two times per week from December
2004 to the end of March 2005, beginning with one
kilogram deliveries, but increasing within one month to
three kilograms per exchange. In March 2005, the amount
increased again to five kilograms per transaction, and
there was one additional attempted transaction for six
kilograms. Zepeda sets forth what he deems the most
conservative number of transactions (twenty-seven), see
Petr.’s Br. 10, but even using this number of transactions,
multiplied by the weights that he admitted, the total
amount exceeds fifty kilograms. The omission from the
PSR of the increase to three-kilogram deliveries of crack
to Sutton does not alter our conclusion. The PSR did not
contradict Zepeda’s own admissions, and the district
court could rely on any evidence in the record. Further, a
district court does not automatically commit clear error
when it fails to use the most conservative calculation
possible. See Krasinski, 545 F.3d at 553 (noting that district
court could have employed a more conservative calculation,
but that it based the quantity on information provided
by the defendant himself). The district court had
reliable support for holding Zepeda responsible for at
least fifty kilograms of cocaine, and we therefore find no
plain error that would result in a miscarriage of justice.
See Middlebrook, 553 F.3d at 578. Consequently, we
affirm Zepeda’s sentence.
III. CONCLUSION
We find no error in Longstreet’s trial, and we AFFIRM
his conviction. We also find no error in the district court’s
calculation of the quantity of drugs attributable to
Longstreet, nor in its enhancement of his sentence based
on his leadership role. However, the district court did not
consider the crack/powder cocaine disparity when sentencing
both Longstreet and Ervin, and we therefore
order a LIMITED REMAND in both cases to allow the
district court to consider whether it wishes to resentence
either defendant in light of Kimbrough. Last, the district
court did not err in calculating Zepeda’s base offense
level, and we AFFIRM his sentence.
Chicago Criminal Lawyer - Robert J Callahan
U.S. vs. Jon Bartlett
The distance between civilization
and barbarity, and the time needed to pass from one
state to the other, is depressingly short. Police officers
in Milwaukee proved this the morning of October 24, 2004.
Andrew Spengler held a housewarming party that
started on October 23 and lasted into the next morning.
Spengler and many guests were police officers. Liquor
flowed freely. Katie Brown and Kirsten Antonissen were
among the invitees. They arrived after 2:30 AM on
October 24 with Frank Jude and Lovell Harris. The quartet
was immediately made to feel unwelcome because the
women are white, and the men are not. (Harris describes
himself as black; Jude describes himself as bi-racial.) After
five minutes, the four prepared to leave—but they were
prevented when at least ten men stormed outside, surrounded
Antonissen’s truck, and demanded to know
what the four new arrivals had done with Spengler’s
badge. Spengler says that he could not find it after the
quartet arrived, and he accused them of theft. The men
demanded that the four get out of the truck and surrender
the badge. When they stayed inside, the men threatened
them (“Nigger, we can kill you”) and began to vandalize
the truck. Harris tried to wake the neighbors; the men
responded: “Nigger, shut up, it’s our world.”
Eventually all four were dragged from the truck. A
search did not turn up the badge. Instead of concluding
that Spengler’s accusation was mistaken, the men
became enraged and violent. One cut Harris’s face in a
way that he described as “slow and demented.” Harris
managed to free himself and run away. Multiple men
began to kick and punch Jude. Antonissen managed to
call 911; she told the operator “they’re beating the shit
out of him.” When the men saw Antonissen use the
phone, they wrested it from her hand and flung her
against the truck so forcefully that its metal was dented.
Brown made two calls to 911 before her phone, too, was
seized.
The first call was logged at 2:48, and two officers (Joseph
Schabel and Nicole Martinez) arrived at 3:00. The
beating continued until their appearance. Men punched
Jude’s face and torso; when he fell to the ground, they
kicked his head and thighs. The partygoers behaved as a
mob. Not a single person in the house tried to stop the
attack or even to call for aid. Jon Clausing, who had
slashed Harris’s face, explained his conduct as “just kind
of going along with everybody.” That is the way of the
mob. Society has police forces to pose a counterweight
to mobs, yet here the police became a mob.
Schabel and Martinez were on duty and had not been
drinking, so they should have put a stop to the violence.
Instead Schabel joined it, while Martinez watched. On
being told that Jude had stolen Spengler’s badge, Schabel
called Jude a “motherfucker” and stomped on his face
until others could hear bones breaking. After telling
Martinez “I’m really sorry you have to see this,” Daniel
Masarik picked Jude off the ground and kicked him in the
crotch so hard that his body left the ground. Jon Bartlett
then took one of Schabel’s pens and pressed it into each of
Jude’s ear canals, causing severe injury and excruciating
pain. The men also broke two of Jude’s fingers by bending
them back until they snapped. Spengler put a gun to
Jude’s head and said: “I’m the fucking police. I can do
whatever I want to do. I could kill you.” Bartlett used a
knife to cut off Jude’s jacket and pants, leaving him
naked on the street in a pool of his own blood.
The violence tapered off when additional on-duty police
arrived. At 3:09 officers arrested Jude. Yes, they arrested
the victim, although Jude had never fought back. (He had
suffered a concussion and was unable to defend himself.)
Jude was taken to an emergency room; the admitting
physician took photographs because “[t]here were too
many [injuries] to document” in writing. The injuries to
Jude’s ears could not be diagnosed because the
physicians could not control the bleeding. One physician
testified that she had never seen ear injuries so severe.
While Jude was receiving treatment, on-duty officers
recovered Jude’s car. Bartlett and other men had ripped
up its seats with knives and poured antifreeze over
them; apparently they poured antifreeze into the gas tank
too, damaging the engine. The radio had been wrecked.
The men broke a headlight and tore a mirror off
Antonissen’s truck. Spengler’s badge was not found in
either the car or the truck; perhaps he had put down the
badge in the house and was too soused to remember
where.
Bartlett, Spengler, and Masarik were prosecuted in
state court and acquitted after Schabel and others committed
perjury on their behalf, while many people who
had been at the party claimed to suffer memory loss. That
made it impossible to show who had done what, and
the judicial system (unlike a mob) demands personal
responsibility. The Civil Rights Division of the Justice
Department then investigated, and federal prosecutors
persuaded several witnesses to cooperate. Four men
(Joseph Schabel, Ryan Lemke, Jon Clausing, and Joseph
Stromei) pleaded guilty to obstruction of justice (by
perjury, including false testimony before the federal
grand jury), to violating Harris’s and Jude’s civil rights, or
both. Bartlett, Spengler, and Masarik were convicted by a
jury of conspiring to violate Harris’s and Jude’s right to be
free from unreasonable searches and seizures (18 U.S.C.
§241), and of the substantive offense (18 U.S.C. §242).
(Excessive force in making an arrest violates the fourth
amendment to the Constitution, applied to state police
officers by the fourteenth amendment. See Graham v.
Connor, 490 U.S. 386 (1989).) Bartlett was sentenced to
208 months’ imprisonment, Spengler and Masarik to
188 months apiece. All seven men have been fired by the
Milwaukee Police. Two more officers were fired but
later reinstated; an additional four were disciplined.
Bartlett, Spengler, and Masarik present twelve appellate
issues. Only four require discussion. The rest have been
considered, and we reject them without comment.
1. The maximum punishment for a violation of either
§241 or §242 is 120 months’ imprisonment. The longer
sentences that Bartlett, Spengler, and Masarik received
depend on convictions of both offenses. All three
contend that the evidence of conspiracy is insufficient.
Conspiracy is agreement to violate some other law, see
United States v. Shabani, 513 U.S. 10 (1994), and defendants
maintain that events developed without an agreement.
When Spengler called for aid to recover his badge, people
rushed from the party to Antonissen’s truck without
prior negotiation or agreement.
This perspective assumes that the agreement must
predate the first substantive offense. Yet it need not. An
agreement forged in the course of committing a crime,
among people who plan to work together in an ongoing
criminal venture, is no less a conspiracy than one that
precedes the first overt act. The battery of Jude lasted for
20 minutes. A reasonable jury could infer that defendants
and others formed a plan to do whatever was necessary
to recover Spengler’s badge and punish the thief—a
plan carried out through cooperative criminal activity.
Working together to commit a series of criminal acts, in
which each cooperative act implies a plan to cooperate
in the future, is a functional understanding of conspiracy.
See United States v. Lechuga, 994 F.2d 346 (7th Cir. 1993)
(en banc); United States v. Wantuch, 525 F.3d 505, 519
(7th Cir. 2008). None of the evidence suggests that defendants
worked at cross-purposes with each other, or with
the rest of the mob. The evidence is enough to permit
an inference of agreement and thus a conviction for
conspiracy.
2. Masarik contends that he did not participate in the
beating. He concedes that he was at the party but says
that he stayed indoors or on the mob’s periphery. He
did not report the crime or assist the prosecution, so he
might have been convicted of misprison of felony, see
18 U.S.C. §4, but if he was a bystander he did not violate
§241 or §242.
Six witnesses testified that Masarik held Jude while
others punched and kicked him. Some of these witnesses
testified that Masarik kicked Jude in the face at least
twice, and that Masarik kicked Jude in the crotch (after
apologizing to Martinez). Masarik contends that he must
have been confused with someone else, and he proposed
to present expert testimony about high error rates in
eyewitness identifications. The district court excluded the
proposed testimony for two principal reasons. First, the
judge stated that jurors could determine the reliability of
identifications using the evidence from direct and cross
examinations. Second, the judge invoked Fed. R. Evid. 403,
which allows the exclusion of evidence that is needlessly
cumulative or will consume trial time out of proportion
to its value.
The first of these reasons is weak. Doubtless lawyers will
ask questions designed to assist the jurors in evaluating
whether a witness is telling the truth. But the problem
with eyewitness testimony is that witnesses who think
they are identifying the wrongdoer—who are credible
because they believe every word they utter on the
stand—may be mistaken. Study after study has shown very
high error rates in the identification of strangers. See, e.g.,
Elizabeth F. Loftus & James M. Doyle, Eyewitness Testimony:
Civil and Criminal (3d ed. 1997) (collecting studies); Elizabeth
F. Loftus, Eyewitness Testimony (1979; rev. ed. 1996);
Daniel L. Schacter, The Seven Sins of Memory: How the
Mind Forgets and Remembers 112–37 (2001). “An important
body of psychological research undermines the lay intuition
that confident memories of salient experiences . . . are
accurate and do not fade with time unless a person’s
memory has some pathological impairment. . . . The basic
problem about testimony from memory is that most of our
recollections are not verifiable. The only warrant for them
is our certitude, and certitude is not a reliable test of
certainty.” Krist v. Eli Lilly & Co., 897 F.2d 293, 296–97 (7th
Cir. 1990) (citations to the scholarly literature omitted).
It will not do to reply that jurors know from their daily
lives that memory is fallible. The question that social
science can address is how fallible, and thus how deeply
any given identification should be discounted. That jurors
have beliefs about this does not make expert evidence
irrelevant; to the contrary, it may make such evidence
vital, for if jurors’ beliefs are mistaken then they may
reach incorrect conclusions. Expert evidence can help
jurors evaluate whether their beliefs about the reliability
of eyewitness testimony are correct. Many people
believe that identifications expressed with certainty are
more likely to be correct; evidence that there is no
relation between certitude and accuracy may have a
powerful effect.
Still, using expert testimony to explore this question
may sidetrack a trial. A judge must balance the benefits
of illuminating evidence against the costs of collateral
inquiries. That’s why Rule 403 grants discretion to the
trial judge—and why we have held, many times, that a
trial court does not abuse its discretion by excluding
expert evidence about the reliability of eyewitness testimony.
See, e.g., United States v. Carter, 410 F.3d 942, 950
(7th Cir. 2005) (collecting cases); United States v. Hall,
165 F.3d 1095 (7th Cir. 1999) (same).
The district judge did not abuse his discretion in this
case, because the conviction does not rest on identifications
by Jude and the other victims. Only two of the
people who identified Masarik were strangers to him.
The other four knew him well. The social-science studies
do not suggest that people who have known one another
for weeks or years are apt to err when identifying them
in court. What’s more, the scholarly work concerns
identification by single eyewitnesses, not the probability
of error when multiple witnesses identify the same
person. If the six in-court identifications of Masarik were
independent, and each had a probable error rate of .333
(that is, there is a one-in-three chance that any witness
was mistaken), then the probability that Masarik is innocent
is .333 to the sixth power, or well under 1%. We
have remarked before that the scholarly findings about
eyewitnesses have only limited application when
multiple witnesses identify the same person. See United
States v. Williams, 522 F.3d 809 (7th Cir. 2008); Newsome v.
McCabe, 319 F.3d 301 (7th Cir. 2003). Masarik did not
proffer any evidence about the error rates in six-fold
identifications. Nor did he propose to ask an expert
whether the six identifications should be regarded as
independent, or what the risk of error in these identifications
taken jointly is apt to be. Someone who proposes
expert testimony must show how the findings apply to
the litigation at hand; Masarik did not do this.
A concurring opinion in Hall added that, although
jurors should be made aware of the scholarly findings
in appropriate cases, it is often better to have the judge
summarize the state of knowledge than to have a parade
of experts. 165 F.3d at 1120. Masarik did not ask the
judge to recap the scholarly findings for jurors’ benefit. For
him, it was an expert on the stand or it was nothing; the
judge did not abuse his discretion in blocking that testimony
in order to keep this trial on track.
3. All three defendants contend that their sentences
are unreasonably high when evaluated under the criteria
in 18 U.S.C. §3553(a). They stress §3553(a)(6), which
requires a sentencing judge to consider “the need to
avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar
conduct”. Lemke, Clausing, Schabel, and Stromei all
received sentences considerably less than 188 months;
Bartlett, Spengler, and Masarik contend that this difference
makes their sentences unreasonably high.
We have encountered this argument before and rejected
it.
There would be considerably less cooperation—
and thus more crime—if those who assist
prosecutors could not receive lower sentences
compared to those who fight to the last. Neither
[United States v.] Booker[, 543 U.S. 220 (2005)] nor
§3553(a)(6) removes the incentive for cooperation—
and because this incentive takes the form of
a lower sentence for a cooperator than for an
otherwise-identical defendant who does not cooperate,
the reduction cannot be illegitimate. After
all, §3553(a)(6) disallows “unwarranted sentence
disparities” (emphasis added), not all sentence
differences.
[T]he kind of “disparity” with which §3553(a)(6) is
concerned is an unjustified difference across judges
(or districts) rather than among defendants to a
single case. If the national norm for first offenders
who gain $275,000 or so by fraud is a sentence
in the range of 33 to 41 months, then system-wide
sentencing disparity will increase if Boscarino’s
sentence is reduced so that it comes closer to
Aulenta’s. Instead of one low sentence, there will
be two low sentences. But why should one culprit
receive a lower sentence than some otherwisesimilar
offender, just because the first is “lucky”
enough to have a confederate turn state’s evidence?
Yet that is Boscarino’s position, which
has neither law nor logic to commend it.
Sentencing disparities are at their ebb when the
Guidelines are followed, for the ranges are themselves
designed to treat similar offenders similarly.
That was the main goal of the Sentencing Reform
Act. The more out-of-range sentences that judges
impose after Booker, the more disparity there will
be. A sentence within a properly ascertained range
therefore cannot be treated as unreasonable by
reference to §3553(a)(6).
United States v. Boscarino, 437 F.3d 634, 638 (7th Cir. 2006).
Defendants acknowledge that the circuit’s law is against
them, but they contend that we must reevaluate the
subject in light of Rita v. United States, 551 U.S. 338 (2007),
Gall v. United States, 552 U.S. 38 (2007), and Kimbrough v.
United States, 552 U.S. 85 (2007), which emphasized that
the Guidelines are not binding and that district judges
have considerable discretion to implement their own
conceptions of just sentences, notwithstanding the Sentencing
Commission’s views. See also Spears v. United
States, 129 S. Ct. 840 (2009); Nelson v. United States, 129
S. Ct. 890 (2009).
To address defendants’ contention, we must separate
two questions: first, does §3553(a)(6) require a judge to
reduce anyone’s sentence below the Guideline range
because other persons who committed the same crime
but pleaded guilty and cooperated received lower terms?;
second, does §3553 as a whole permit a judge to go
below the Guideline range for this reason?
The first of these questions received a negative answer
in Boscarino and similar cases, which have observed that
§3553(a)(6) addresses only “unwarranted” disparities. A
difference justified by the fact that some wrongdoers
have accepted responsibility and assisted the prosecution,
while others have not, is not “unwarranted.” The best way
to curtail “unwarranted” disparities is to follow the
Guidelines, which are designed to treat similar offenses
and offenders similarly. Far from disapproving this
understanding, the Supreme Court adopted it in Gall:
Section 3553(a)(6) requires judges to consider “the
need to avoid unwarranted sentence disparities
among defendants with similar records who
have been found guilty of similar conduct.” The
Court of Appeals stated that “the record does not
show that the district court considered whether
a sentence of probation would result in unwarranted
disparities.” 446 F.3d at 890. As with the
seriousness of the offense conduct, avoidance of
unwarranted disparities was clearly considered
by the Sentencing Commission when setting the
Guidelines ranges. Since the District Judge correctly
calculated and carefully reviewed the Guide
lines range, he necessarily gave significant weight
and consideration to the need to avoid unwarranted
disparities.
128 S. Ct. 586, 599 (emphasis added). A sentence within a
Guideline range “necessarily” complies with §3553(a)(6).
But there is more to §3553 than §3553(a)(6). A judge must
respect all of the statutory criteria in order to mete out a
sentence “sufficient, but not greater than necessary, to
comply with the purposes [of sentencing] set forth in
paragraph (2) of this subsection.” 18 U.S.C. §3553(a). The
Court held in Kimbrough, and reiterated in Spears, that a
judge need not accept the Sentencing Commission’s
penological framework. The court may adopt its own. It
follows that §3553 permits a judge to reduce one defendant’s
sentence because of another’s lenient sentence—not
because of §3553(a)(6), but despite it. Avoiding “unwarranted”
disparities (as the Sentencing Commission or a
court of appeals defines them) is not the summum
bonum in sentencing. Other objectives may have
greater weight, and the court is free to have its own
policy about which differences are “unwarranted.”
It follows that, if the district judge thought himself
forbidden to take account of Lemke’s, Clausing’s,
Schabel’s, or Stromei’s (relatively) low sentences when
deciding what punishment to impose on Bartlett, Spengler,
or Masarik, he was mistaken. The judge did not make
this error, however. He concluded that the disparity is
justified by material differences in the offenders’ conduct
and acceptance of responsibility, not that a disparity is
unjustified but irremediable. The district judge followed
§3553(a), and understood the extent of his discretion,
when sentencing Bartlett, Spengler, and Masarik.
4. Masarik was sentenced at the top of his range (151
to 188 months); that sentence is reasonable under §3553
and Rita. See also United States v. Mykytiuk, 415 F.3d 606,
608 (7th Cir. 2005) (an in-range sentence is presumed
reasonable on appeal). Spengler’s sentence of 188 months
exceeds the top of his range (121 to 151 months) but is
reasonable under Gall: the district judge properly
deemed him the instigator. Some of his conduct, such as
pointing a gun at Jude’s head and proclaiming authority
to kill anyone he wanted, was not taken into account in
the Guidelines calculation.
Bartlett’s sentence of 208 months likewise exceeds the
top of his range. He committed the most brutal acts.
Thrusting a pen into a person’s ear canals is torture by
any definition. While facing the state charges, Bartlett
threatened to blow up his former police station, a crime
for which he has been convicted in state court and sentenced
to 54 months. He also defrauded a gun dealer into
selling him a submachine gun, violating gun-control laws
as well as the terms of his federal bail; this conduct drew
another 18 months in a separate prosecution. A district
judge might deem a lengthy consecutive sentence
essential for incapacitation as well as deterrence and
desert. But the court may not have appreciated that Bartlett’s
sentence exceeds his Guideline range.
Many cases in this circuit say that sentences exceeding
the Guideline range must be explained not only in
absolute terms, under the criteria of §3553(a), but also
with an analysis of why a Guideline sentence would be
insufficient. See, e.g., United States v. Gordon, 513 F.3d
659, 666 (7th Cir. 2008); United States v. Wachowiak, 496
F.3d 744, 749–50 (7th Cir. 2007). These decisions did not
survive Nelson, which holds that district judges need
not—indeed must not—begin with a presumption in
favor of a Guideline sentence. If there is no need to start
from the perspective that an in-range sentence usually
is best, there is also no need to explain why some
different sentence is better. The judge’s task is to choose
a reasonable sentence. The court must take the Sentencing
Commission’s views into account, but a sentence
cannot be called “unreasonable” just because the
judge explains why he chose that sentence, rather than explaining
his decision from the Guidelines’ perspective.
The old regime of “departures” is defunct. See Irizarry v.
United States, 128 S. Ct. 2198 (2008).
Although the judge need not use the Guidelines as the
fulcrum of analysis, the court still needs to understand
the relation between the Guidelines and the ultimate
sentence. Both Rita and Gall say that the court must
construct a Guideline range accurately. A sentence is
procedurally unreasonable if the judge thinks it within
the range, but it isn’t—either because the range was
not determined accurately in the district court, or
because the judge misunderstood what that range was.
Bartlett’s range is 151 to 188 months. Much of the sentencing
transcript reads as an explanation about why
the sentence is at the high end of the range. At the end
of the proceeding, the judge stated bluntly that the sen
tence would be the top of the range. But the actual sentence
of 208 months is 20 months higher. That’s a problem.
The prosecutor says that, by the close of the proceeding,
the judge had recognized that 208 months exceeds Bartlett’s
range. The transcript is not as clear to us as it
appears to be to the prosecutor. Given the risk of confusion,
the better part of wisdom is to ask the district judge
to take another look, to ensure that the sentence rests on
a deliberate choice rather than a mistake. A 208-month
sentence is reasonable substantively, but no one, not
even a Bartlett, should lose 20 months of freedom
because a district judge read across the wrong line in a
table. (The range 168 to 210 months is the next highest
in the Guidelines’ sentencing table.)
Nonetheless, the prosecutor maintains, Bartlett forfeited
any opportunity for appellate relief because he did
not “object” to the 208-month sentence on the ground that
it exceeds the Guideline range. We put “object” in scare
quotes because remonstration with the judge is not an
objection as usually understood. Both the Rules of Evidence
and the Rules of Criminal Procedure require a
litigant to make known the position it advocates and to
present evidence and argument for that position. These
steps are essential to facilitate intelligent decision in the
district court. Counsel present positions, and judges
then decide. But the rules do not require a litigant to
complain about a judicial choice after it has been made.
Such a complaint is properly called, not an objection, but
an exception. The rule about exceptions is explicit: “Exceptions
to rulings or orders of the court are unnecessary.”
Fed. R. Crim. P. 51(a). Rule 51(b) adds that a litigant
preserves a contention for review “by informing the
court [before the decision is made] of the action the party
wishes the court to take . . . and the grounds for” that
action. Bartlett and his lawyer argued for a lower sentence,
and they gave reasons. They have preserved their
appellate options.
Having said this, we must acknowledge that some of our
opinions use the word “objection” in the same way the
prosecutor did, and they hold (or at least suggest) that
lawyers must ask a judge to reconsider the sentence (or
other decision) as the price of appellate review. See, e.g.,
United States v. Harvey, 232 F.3d 585, 587 (7th Cir. 2000);
United States v. Marvin, 135 F.3d 1129, 1135 (7th Cir. 1998).
These decisions do not discuss Rule 51(a), and for the
most part they did not need to; they are compatible
with Rule 51(b), which (in language that we did not
reproduce above) requires a protest immediately after
the ruling if the litigant did not have an opportunity to
argue the point earlier. When the judge surprises counsel,
it is far better to air and resolve the matter in the
district court than to bypass available opportunities for
correction and save the issue for appeal. But when an
issue is argued before the judicial ruling, counsel need not
take exception once the court’s decision has been announced.
That’s what Rule 51(a) says. Bartlett’s sentence
was the subject of extensive argument and evidence; his
lawyer did not need to argue with the judge once the
sentence had been pronounced.
All three convictions, and the sentences of Spengler and
Masarik, are affirmed. Bartlett’s sentence is vacated, and
his case is remanded for proceedings consistent with
this opinion.
Chicago Criminal Lawyer - Robert J Callahan
and barbarity, and the time needed to pass from one
state to the other, is depressingly short. Police officers
in Milwaukee proved this the morning of October 24, 2004.
Andrew Spengler held a housewarming party that
started on October 23 and lasted into the next morning.
Spengler and many guests were police officers. Liquor
flowed freely. Katie Brown and Kirsten Antonissen were
among the invitees. They arrived after 2:30 AM on
October 24 with Frank Jude and Lovell Harris. The quartet
was immediately made to feel unwelcome because the
women are white, and the men are not. (Harris describes
himself as black; Jude describes himself as bi-racial.) After
five minutes, the four prepared to leave—but they were
prevented when at least ten men stormed outside, surrounded
Antonissen’s truck, and demanded to know
what the four new arrivals had done with Spengler’s
badge. Spengler says that he could not find it after the
quartet arrived, and he accused them of theft. The men
demanded that the four get out of the truck and surrender
the badge. When they stayed inside, the men threatened
them (“Nigger, we can kill you”) and began to vandalize
the truck. Harris tried to wake the neighbors; the men
responded: “Nigger, shut up, it’s our world.”
Eventually all four were dragged from the truck. A
search did not turn up the badge. Instead of concluding
that Spengler’s accusation was mistaken, the men
became enraged and violent. One cut Harris’s face in a
way that he described as “slow and demented.” Harris
managed to free himself and run away. Multiple men
began to kick and punch Jude. Antonissen managed to
call 911; she told the operator “they’re beating the shit
out of him.” When the men saw Antonissen use the
phone, they wrested it from her hand and flung her
against the truck so forcefully that its metal was dented.
Brown made two calls to 911 before her phone, too, was
seized.
The first call was logged at 2:48, and two officers (Joseph
Schabel and Nicole Martinez) arrived at 3:00. The
beating continued until their appearance. Men punched
Jude’s face and torso; when he fell to the ground, they
kicked his head and thighs. The partygoers behaved as a
mob. Not a single person in the house tried to stop the
attack or even to call for aid. Jon Clausing, who had
slashed Harris’s face, explained his conduct as “just kind
of going along with everybody.” That is the way of the
mob. Society has police forces to pose a counterweight
to mobs, yet here the police became a mob.
Schabel and Martinez were on duty and had not been
drinking, so they should have put a stop to the violence.
Instead Schabel joined it, while Martinez watched. On
being told that Jude had stolen Spengler’s badge, Schabel
called Jude a “motherfucker” and stomped on his face
until others could hear bones breaking. After telling
Martinez “I’m really sorry you have to see this,” Daniel
Masarik picked Jude off the ground and kicked him in the
crotch so hard that his body left the ground. Jon Bartlett
then took one of Schabel’s pens and pressed it into each of
Jude’s ear canals, causing severe injury and excruciating
pain. The men also broke two of Jude’s fingers by bending
them back until they snapped. Spengler put a gun to
Jude’s head and said: “I’m the fucking police. I can do
whatever I want to do. I could kill you.” Bartlett used a
knife to cut off Jude’s jacket and pants, leaving him
naked on the street in a pool of his own blood.
The violence tapered off when additional on-duty police
arrived. At 3:09 officers arrested Jude. Yes, they arrested
the victim, although Jude had never fought back. (He had
suffered a concussion and was unable to defend himself.)
Jude was taken to an emergency room; the admitting
physician took photographs because “[t]here were too
many [injuries] to document” in writing. The injuries to
Jude’s ears could not be diagnosed because the
physicians could not control the bleeding. One physician
testified that she had never seen ear injuries so severe.
While Jude was receiving treatment, on-duty officers
recovered Jude’s car. Bartlett and other men had ripped
up its seats with knives and poured antifreeze over
them; apparently they poured antifreeze into the gas tank
too, damaging the engine. The radio had been wrecked.
The men broke a headlight and tore a mirror off
Antonissen’s truck. Spengler’s badge was not found in
either the car or the truck; perhaps he had put down the
badge in the house and was too soused to remember
where.
Bartlett, Spengler, and Masarik were prosecuted in
state court and acquitted after Schabel and others committed
perjury on their behalf, while many people who
had been at the party claimed to suffer memory loss. That
made it impossible to show who had done what, and
the judicial system (unlike a mob) demands personal
responsibility. The Civil Rights Division of the Justice
Department then investigated, and federal prosecutors
persuaded several witnesses to cooperate. Four men
(Joseph Schabel, Ryan Lemke, Jon Clausing, and Joseph
Stromei) pleaded guilty to obstruction of justice (by
perjury, including false testimony before the federal
grand jury), to violating Harris’s and Jude’s civil rights, or
both. Bartlett, Spengler, and Masarik were convicted by a
jury of conspiring to violate Harris’s and Jude’s right to be
free from unreasonable searches and seizures (18 U.S.C.
§241), and of the substantive offense (18 U.S.C. §242).
(Excessive force in making an arrest violates the fourth
amendment to the Constitution, applied to state police
officers by the fourteenth amendment. See Graham v.
Connor, 490 U.S. 386 (1989).) Bartlett was sentenced to
208 months’ imprisonment, Spengler and Masarik to
188 months apiece. All seven men have been fired by the
Milwaukee Police. Two more officers were fired but
later reinstated; an additional four were disciplined.
Bartlett, Spengler, and Masarik present twelve appellate
issues. Only four require discussion. The rest have been
considered, and we reject them without comment.
1. The maximum punishment for a violation of either
§241 or §242 is 120 months’ imprisonment. The longer
sentences that Bartlett, Spengler, and Masarik received
depend on convictions of both offenses. All three
contend that the evidence of conspiracy is insufficient.
Conspiracy is agreement to violate some other law, see
United States v. Shabani, 513 U.S. 10 (1994), and defendants
maintain that events developed without an agreement.
When Spengler called for aid to recover his badge, people
rushed from the party to Antonissen’s truck without
prior negotiation or agreement.
This perspective assumes that the agreement must
predate the first substantive offense. Yet it need not. An
agreement forged in the course of committing a crime,
among people who plan to work together in an ongoing
criminal venture, is no less a conspiracy than one that
precedes the first overt act. The battery of Jude lasted for
20 minutes. A reasonable jury could infer that defendants
and others formed a plan to do whatever was necessary
to recover Spengler’s badge and punish the thief—a
plan carried out through cooperative criminal activity.
Working together to commit a series of criminal acts, in
which each cooperative act implies a plan to cooperate
in the future, is a functional understanding of conspiracy.
See United States v. Lechuga, 994 F.2d 346 (7th Cir. 1993)
(en banc); United States v. Wantuch, 525 F.3d 505, 519
(7th Cir. 2008). None of the evidence suggests that defendants
worked at cross-purposes with each other, or with
the rest of the mob. The evidence is enough to permit
an inference of agreement and thus a conviction for
conspiracy.
2. Masarik contends that he did not participate in the
beating. He concedes that he was at the party but says
that he stayed indoors or on the mob’s periphery. He
did not report the crime or assist the prosecution, so he
might have been convicted of misprison of felony, see
18 U.S.C. §4, but if he was a bystander he did not violate
§241 or §242.
Six witnesses testified that Masarik held Jude while
others punched and kicked him. Some of these witnesses
testified that Masarik kicked Jude in the face at least
twice, and that Masarik kicked Jude in the crotch (after
apologizing to Martinez). Masarik contends that he must
have been confused with someone else, and he proposed
to present expert testimony about high error rates in
eyewitness identifications. The district court excluded the
proposed testimony for two principal reasons. First, the
judge stated that jurors could determine the reliability of
identifications using the evidence from direct and cross
examinations. Second, the judge invoked Fed. R. Evid. 403,
which allows the exclusion of evidence that is needlessly
cumulative or will consume trial time out of proportion
to its value.
The first of these reasons is weak. Doubtless lawyers will
ask questions designed to assist the jurors in evaluating
whether a witness is telling the truth. But the problem
with eyewitness testimony is that witnesses who think
they are identifying the wrongdoer—who are credible
because they believe every word they utter on the
stand—may be mistaken. Study after study has shown very
high error rates in the identification of strangers. See, e.g.,
Elizabeth F. Loftus & James M. Doyle, Eyewitness Testimony:
Civil and Criminal (3d ed. 1997) (collecting studies); Elizabeth
F. Loftus, Eyewitness Testimony (1979; rev. ed. 1996);
Daniel L. Schacter, The Seven Sins of Memory: How the
Mind Forgets and Remembers 112–37 (2001). “An important
body of psychological research undermines the lay intuition
that confident memories of salient experiences . . . are
accurate and do not fade with time unless a person’s
memory has some pathological impairment. . . . The basic
problem about testimony from memory is that most of our
recollections are not verifiable. The only warrant for them
is our certitude, and certitude is not a reliable test of
certainty.” Krist v. Eli Lilly & Co., 897 F.2d 293, 296–97 (7th
Cir. 1990) (citations to the scholarly literature omitted).
It will not do to reply that jurors know from their daily
lives that memory is fallible. The question that social
science can address is how fallible, and thus how deeply
any given identification should be discounted. That jurors
have beliefs about this does not make expert evidence
irrelevant; to the contrary, it may make such evidence
vital, for if jurors’ beliefs are mistaken then they may
reach incorrect conclusions. Expert evidence can help
jurors evaluate whether their beliefs about the reliability
of eyewitness testimony are correct. Many people
believe that identifications expressed with certainty are
more likely to be correct; evidence that there is no
relation between certitude and accuracy may have a
powerful effect.
Still, using expert testimony to explore this question
may sidetrack a trial. A judge must balance the benefits
of illuminating evidence against the costs of collateral
inquiries. That’s why Rule 403 grants discretion to the
trial judge—and why we have held, many times, that a
trial court does not abuse its discretion by excluding
expert evidence about the reliability of eyewitness testimony.
See, e.g., United States v. Carter, 410 F.3d 942, 950
(7th Cir. 2005) (collecting cases); United States v. Hall,
165 F.3d 1095 (7th Cir. 1999) (same).
The district judge did not abuse his discretion in this
case, because the conviction does not rest on identifications
by Jude and the other victims. Only two of the
people who identified Masarik were strangers to him.
The other four knew him well. The social-science studies
do not suggest that people who have known one another
for weeks or years are apt to err when identifying them
in court. What’s more, the scholarly work concerns
identification by single eyewitnesses, not the probability
of error when multiple witnesses identify the same
person. If the six in-court identifications of Masarik were
independent, and each had a probable error rate of .333
(that is, there is a one-in-three chance that any witness
was mistaken), then the probability that Masarik is innocent
is .333 to the sixth power, or well under 1%. We
have remarked before that the scholarly findings about
eyewitnesses have only limited application when
multiple witnesses identify the same person. See United
States v. Williams, 522 F.3d 809 (7th Cir. 2008); Newsome v.
McCabe, 319 F.3d 301 (7th Cir. 2003). Masarik did not
proffer any evidence about the error rates in six-fold
identifications. Nor did he propose to ask an expert
whether the six identifications should be regarded as
independent, or what the risk of error in these identifications
taken jointly is apt to be. Someone who proposes
expert testimony must show how the findings apply to
the litigation at hand; Masarik did not do this.
A concurring opinion in Hall added that, although
jurors should be made aware of the scholarly findings
in appropriate cases, it is often better to have the judge
summarize the state of knowledge than to have a parade
of experts. 165 F.3d at 1120. Masarik did not ask the
judge to recap the scholarly findings for jurors’ benefit. For
him, it was an expert on the stand or it was nothing; the
judge did not abuse his discretion in blocking that testimony
in order to keep this trial on track.
3. All three defendants contend that their sentences
are unreasonably high when evaluated under the criteria
in 18 U.S.C. §3553(a). They stress §3553(a)(6), which
requires a sentencing judge to consider “the need to
avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar
conduct”. Lemke, Clausing, Schabel, and Stromei all
received sentences considerably less than 188 months;
Bartlett, Spengler, and Masarik contend that this difference
makes their sentences unreasonably high.
We have encountered this argument before and rejected
it.
There would be considerably less cooperation—
and thus more crime—if those who assist
prosecutors could not receive lower sentences
compared to those who fight to the last. Neither
[United States v.] Booker[, 543 U.S. 220 (2005)] nor
§3553(a)(6) removes the incentive for cooperation—
and because this incentive takes the form of
a lower sentence for a cooperator than for an
otherwise-identical defendant who does not cooperate,
the reduction cannot be illegitimate. After
all, §3553(a)(6) disallows “unwarranted sentence
disparities” (emphasis added), not all sentence
differences.
[T]he kind of “disparity” with which §3553(a)(6) is
concerned is an unjustified difference across judges
(or districts) rather than among defendants to a
single case. If the national norm for first offenders
who gain $275,000 or so by fraud is a sentence
in the range of 33 to 41 months, then system-wide
sentencing disparity will increase if Boscarino’s
sentence is reduced so that it comes closer to
Aulenta’s. Instead of one low sentence, there will
be two low sentences. But why should one culprit
receive a lower sentence than some otherwisesimilar
offender, just because the first is “lucky”
enough to have a confederate turn state’s evidence?
Yet that is Boscarino’s position, which
has neither law nor logic to commend it.
Sentencing disparities are at their ebb when the
Guidelines are followed, for the ranges are themselves
designed to treat similar offenders similarly.
That was the main goal of the Sentencing Reform
Act. The more out-of-range sentences that judges
impose after Booker, the more disparity there will
be. A sentence within a properly ascertained range
therefore cannot be treated as unreasonable by
reference to §3553(a)(6).
United States v. Boscarino, 437 F.3d 634, 638 (7th Cir. 2006).
Defendants acknowledge that the circuit’s law is against
them, but they contend that we must reevaluate the
subject in light of Rita v. United States, 551 U.S. 338 (2007),
Gall v. United States, 552 U.S. 38 (2007), and Kimbrough v.
United States, 552 U.S. 85 (2007), which emphasized that
the Guidelines are not binding and that district judges
have considerable discretion to implement their own
conceptions of just sentences, notwithstanding the Sentencing
Commission’s views. See also Spears v. United
States, 129 S. Ct. 840 (2009); Nelson v. United States, 129
S. Ct. 890 (2009).
To address defendants’ contention, we must separate
two questions: first, does §3553(a)(6) require a judge to
reduce anyone’s sentence below the Guideline range
because other persons who committed the same crime
but pleaded guilty and cooperated received lower terms?;
second, does §3553 as a whole permit a judge to go
below the Guideline range for this reason?
The first of these questions received a negative answer
in Boscarino and similar cases, which have observed that
§3553(a)(6) addresses only “unwarranted” disparities. A
difference justified by the fact that some wrongdoers
have accepted responsibility and assisted the prosecution,
while others have not, is not “unwarranted.” The best way
to curtail “unwarranted” disparities is to follow the
Guidelines, which are designed to treat similar offenses
and offenders similarly. Far from disapproving this
understanding, the Supreme Court adopted it in Gall:
Section 3553(a)(6) requires judges to consider “the
need to avoid unwarranted sentence disparities
among defendants with similar records who
have been found guilty of similar conduct.” The
Court of Appeals stated that “the record does not
show that the district court considered whether
a sentence of probation would result in unwarranted
disparities.” 446 F.3d at 890. As with the
seriousness of the offense conduct, avoidance of
unwarranted disparities was clearly considered
by the Sentencing Commission when setting the
Guidelines ranges. Since the District Judge correctly
calculated and carefully reviewed the Guide
lines range, he necessarily gave significant weight
and consideration to the need to avoid unwarranted
disparities.
128 S. Ct. 586, 599 (emphasis added). A sentence within a
Guideline range “necessarily” complies with §3553(a)(6).
But there is more to §3553 than §3553(a)(6). A judge must
respect all of the statutory criteria in order to mete out a
sentence “sufficient, but not greater than necessary, to
comply with the purposes [of sentencing] set forth in
paragraph (2) of this subsection.” 18 U.S.C. §3553(a). The
Court held in Kimbrough, and reiterated in Spears, that a
judge need not accept the Sentencing Commission’s
penological framework. The court may adopt its own. It
follows that §3553 permits a judge to reduce one defendant’s
sentence because of another’s lenient sentence—not
because of §3553(a)(6), but despite it. Avoiding “unwarranted”
disparities (as the Sentencing Commission or a
court of appeals defines them) is not the summum
bonum in sentencing. Other objectives may have
greater weight, and the court is free to have its own
policy about which differences are “unwarranted.”
It follows that, if the district judge thought himself
forbidden to take account of Lemke’s, Clausing’s,
Schabel’s, or Stromei’s (relatively) low sentences when
deciding what punishment to impose on Bartlett, Spengler,
or Masarik, he was mistaken. The judge did not make
this error, however. He concluded that the disparity is
justified by material differences in the offenders’ conduct
and acceptance of responsibility, not that a disparity is
unjustified but irremediable. The district judge followed
§3553(a), and understood the extent of his discretion,
when sentencing Bartlett, Spengler, and Masarik.
4. Masarik was sentenced at the top of his range (151
to 188 months); that sentence is reasonable under §3553
and Rita. See also United States v. Mykytiuk, 415 F.3d 606,
608 (7th Cir. 2005) (an in-range sentence is presumed
reasonable on appeal). Spengler’s sentence of 188 months
exceeds the top of his range (121 to 151 months) but is
reasonable under Gall: the district judge properly
deemed him the instigator. Some of his conduct, such as
pointing a gun at Jude’s head and proclaiming authority
to kill anyone he wanted, was not taken into account in
the Guidelines calculation.
Bartlett’s sentence of 208 months likewise exceeds the
top of his range. He committed the most brutal acts.
Thrusting a pen into a person’s ear canals is torture by
any definition. While facing the state charges, Bartlett
threatened to blow up his former police station, a crime
for which he has been convicted in state court and sentenced
to 54 months. He also defrauded a gun dealer into
selling him a submachine gun, violating gun-control laws
as well as the terms of his federal bail; this conduct drew
another 18 months in a separate prosecution. A district
judge might deem a lengthy consecutive sentence
essential for incapacitation as well as deterrence and
desert. But the court may not have appreciated that Bartlett’s
sentence exceeds his Guideline range.
Many cases in this circuit say that sentences exceeding
the Guideline range must be explained not only in
absolute terms, under the criteria of §3553(a), but also
with an analysis of why a Guideline sentence would be
insufficient. See, e.g., United States v. Gordon, 513 F.3d
659, 666 (7th Cir. 2008); United States v. Wachowiak, 496
F.3d 744, 749–50 (7th Cir. 2007). These decisions did not
survive Nelson, which holds that district judges need
not—indeed must not—begin with a presumption in
favor of a Guideline sentence. If there is no need to start
from the perspective that an in-range sentence usually
is best, there is also no need to explain why some
different sentence is better. The judge’s task is to choose
a reasonable sentence. The court must take the Sentencing
Commission’s views into account, but a sentence
cannot be called “unreasonable” just because the
judge explains why he chose that sentence, rather than explaining
his decision from the Guidelines’ perspective.
The old regime of “departures” is defunct. See Irizarry v.
United States, 128 S. Ct. 2198 (2008).
Although the judge need not use the Guidelines as the
fulcrum of analysis, the court still needs to understand
the relation between the Guidelines and the ultimate
sentence. Both Rita and Gall say that the court must
construct a Guideline range accurately. A sentence is
procedurally unreasonable if the judge thinks it within
the range, but it isn’t—either because the range was
not determined accurately in the district court, or
because the judge misunderstood what that range was.
Bartlett’s range is 151 to 188 months. Much of the sentencing
transcript reads as an explanation about why
the sentence is at the high end of the range. At the end
of the proceeding, the judge stated bluntly that the sen
tence would be the top of the range. But the actual sentence
of 208 months is 20 months higher. That’s a problem.
The prosecutor says that, by the close of the proceeding,
the judge had recognized that 208 months exceeds Bartlett’s
range. The transcript is not as clear to us as it
appears to be to the prosecutor. Given the risk of confusion,
the better part of wisdom is to ask the district judge
to take another look, to ensure that the sentence rests on
a deliberate choice rather than a mistake. A 208-month
sentence is reasonable substantively, but no one, not
even a Bartlett, should lose 20 months of freedom
because a district judge read across the wrong line in a
table. (The range 168 to 210 months is the next highest
in the Guidelines’ sentencing table.)
Nonetheless, the prosecutor maintains, Bartlett forfeited
any opportunity for appellate relief because he did
not “object” to the 208-month sentence on the ground that
it exceeds the Guideline range. We put “object” in scare
quotes because remonstration with the judge is not an
objection as usually understood. Both the Rules of Evidence
and the Rules of Criminal Procedure require a
litigant to make known the position it advocates and to
present evidence and argument for that position. These
steps are essential to facilitate intelligent decision in the
district court. Counsel present positions, and judges
then decide. But the rules do not require a litigant to
complain about a judicial choice after it has been made.
Such a complaint is properly called, not an objection, but
an exception. The rule about exceptions is explicit: “Exceptions
to rulings or orders of the court are unnecessary.”
Fed. R. Crim. P. 51(a). Rule 51(b) adds that a litigant
preserves a contention for review “by informing the
court [before the decision is made] of the action the party
wishes the court to take . . . and the grounds for” that
action. Bartlett and his lawyer argued for a lower sentence,
and they gave reasons. They have preserved their
appellate options.
Having said this, we must acknowledge that some of our
opinions use the word “objection” in the same way the
prosecutor did, and they hold (or at least suggest) that
lawyers must ask a judge to reconsider the sentence (or
other decision) as the price of appellate review. See, e.g.,
United States v. Harvey, 232 F.3d 585, 587 (7th Cir. 2000);
United States v. Marvin, 135 F.3d 1129, 1135 (7th Cir. 1998).
These decisions do not discuss Rule 51(a), and for the
most part they did not need to; they are compatible
with Rule 51(b), which (in language that we did not
reproduce above) requires a protest immediately after
the ruling if the litigant did not have an opportunity to
argue the point earlier. When the judge surprises counsel,
it is far better to air and resolve the matter in the
district court than to bypass available opportunities for
correction and save the issue for appeal. But when an
issue is argued before the judicial ruling, counsel need not
take exception once the court’s decision has been announced.
That’s what Rule 51(a) says. Bartlett’s sentence
was the subject of extensive argument and evidence; his
lawyer did not need to argue with the judge once the
sentence had been pronounced.
All three convictions, and the sentences of Spengler and
Masarik, are affirmed. Bartlett’s sentence is vacated, and
his case is remanded for proceedings consistent with
this opinion.
Chicago Criminal Lawyer - Robert J Callahan
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