United States v. Bradley Dearborn , 873 F.3d 570 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 16-3346 & 16-3905
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRADLEY D. DEARBORN,
Defendant-Appellant.
____________________
Appeals from the United States District Court for the
Central District of Illinois.
No. 12-CR-10017-001 — Michael M. Mihm, Judge.
____________________
ARGUED JUNE 7, 2017 — DECIDED OCTOBER 12, 2017
____________________
Before RIPPLE, ROVNER, AND HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Bradley Dearborn pled guilty to
distributing crack cocaine. In an earlier appeal, we remanded
for correction of certain conditions of supervised release.
United States v. Dearborn, No. 14-3032 (7th Cir. Feb. 24, 2015).
Now, in Appeal No. 16-3346, Dearborn argues that during re-
sentencing the court should have reconsidered its earlier de-
nial of a motion to suppress evidence. We conclude that Dear-
born waived that argument, however, so we affirm the district
2 Nos. 16-3346 & 16-3905
court’s new sentence. Appeal No. 16-3905, which Dearborn
briefed pro se, concerns the denial of several motions for an
immediate transfer to a federal prison from the county jail
where Dearborn was housed temporarily after resentencing.
Because Dearborn has since been transferred to a federal
prison, we dismiss the pro se appeal as moot.
In 2011 agents with the Macomb Police Department began
investigating whether Dearborn and an associate, Darvey
Cochran, sold crack cocaine together. After conducting two
controlled buys from Dearborn and six controlled buys from
Cochran, the agents obtained warrants from a state court to
search two residences Cochran rented. The agents arrested
Dearborn at one of the residences, where they also seized 60
grams of crack cocaine and $360 in marked bills that had been
used for the controlled buys. Dearborn admitted during a
post-arrest interview that he had recently travelled to Chicago
to buy about $1,800 worth of crack cocaine, a portion of which
he had already resold in the Macomb area. A federal grand
jury later indicted Dearborn with conspiracy to distribute
crack cocaine, possession with intent to distribute, and two
counts of distribution. 21 U.S.C. §§ 841(a)(1) & 846.
Dearborn moved to suppress the evidence obtained dur-
ing the search, arguing that, in describing the investigation in
the search warrant application, Officer Lindsey May had
omitted relevant details about the reliability of the two in-
formants used in the controlled buys. Dearborn faulted Of-
ficer May for not telling the judge who issued the warrant that
(1) one of the controlled buys might have occurred one day
later than specified in the search warrant application, (2) the
police might have used an unduly suggestive procedure in
Nos. 16-3346 & 16-3905 3
obtaining an identification of Dearborn from one of the in-
formants, (3) the informants had criminal histories and re-
ceived compensation for helping the police, and (4) certain au-
dio and video recordings referred to in the application were
of poor quality. Dearborn requested a hearing under Franks v.
Delaware, 438 U.S. 154 (1978), to determine whether the omis-
sions were reckless or intentional. The district court denied
that request, finding that the supposed omissions were too in-
substantial to have affected the state court’s finding of proba-
ble cause.
Dearborn pled guilty to the two distribution counts with
no agreement other than the government’s oral assurance that
it would move to dismiss the remaining two counts. Before
sentencing, however, the parties agreed that Dearborn would
reserve his right to appeal the denial of his motion to sup-
press. The district court then sentenced Dearborn to 172
months in prison and six years of supervised release.
In his initial appeal, however, Dearborn did not challenge
the denial of his motion to suppress. Instead, he argued only
that the district court erred by imposing sixteen conditions of
supervised release without explaining them. The government
agreed and moved this court to remand for resentencing in
light of United States v. Thompson, 777 F.3d 368 (7th Cir. 2015).
This court granted the motion. United States v. Dearborn,
No. 14-3032 (7th Cir. Feb. 24, 2015).
Back in the district court, Dearborn filed a rather expan-
sive if not confusing sentencing memorandum. It included a
disclaimer saying that the arguments were being presented at
Dearborn’s request, contrary to his counsel’s advice. And, in
fact, most of those arguments seemed to be irrelevant to the
4 Nos. 16-3346 & 16-3905
issues before the district court on remand. For example, Dear-
born argued for the first time that the government obtained
his indictment by submitting misleading testimony to the
grand jury. Dearborn also alluded to Officer May’s supposed
failure to mention relevant facts to the state judge who issued
the search warrant. Dearborn added, without elaboration,
that Officer May recently had been found by a state court in
an unrelated case to have “made up probable cause in order
to secure an arrest.” Dearborn offered to submit a copy of the
transcript in that case if “necessary” but did not attach it to
his memorandum. Dearborn’s insistence on including these
arguments in his sentencing memorandum is especially puz-
zling since he did not ask to withdraw his guilty plea. He re-
quested only that the court conduct a full re-sentencing and
consider a below-guideline sentence.
The district court concluded that these arguments “could
have been raised earlier” and were irrelevant to the re-sen-
tencing proceedings. The court ultimately imposed another
172-month prison sentence.
Within days of his resentencing hearing, Dearborn fought
with another prisoner at the Fulton County Jail. He was soon
charged with attempted murder, aggravated battery, and mob
action. After a state judge issued a writ commanding the Mar-
shals Service and the Bureau of Prisons to produce Dearborn
for a preliminary hearing, Dearborn asked the federal court to
order his immediate transfer to the Federal Correctional Insti-
tution in Greenville, Illinois. Dearborn argued that his contin-
ued detention at the Fulton County Jail violated his right to
due process and the Interstate Agreement on Detainers, 18
U.S.C. App. 2.
Nos. 16-3346 & 16-3905 5
The district court denied Dearborn’s motions, reasoning
that 18 U.S.C. § 3623 expressly authorized the Bureau of Pris-
ons to detain Dearborn at a state correctional facility pending
resolution of the state charges.
After the resentencing proceedings, Dearborn’s attorney
filed a notice of appeal on his behalf, and Dearborn separately
appealed pro se from the denial of his motions under the In-
terstate Agreement on Detainers. The two appeals were dock-
eted and briefed separately until the government moved for
leave to file a single response to both appeals. We granted the
motion and consolidated the two appeals.
In No. 16-3346 Dearborn argues that the district court
erred by denying what he calls a motion to reconsider its pre-
vious decision—rendered before he pled guilty—to deny his
request for a Franks hearing. As Dearborn sees it, he presented
“more than enough” new evidence to warrant a Franks hear-
ing when he “informed the court multiple times” that Of-
ficer May was found “to be not credible in an unrelated 2015
case.”
Dearborn’s argument is based on a mistaken premise. In
the re-sentencing, he did not clearly ask the district court to
“reopen [the] pre-Franks/motion to suppress hearing.” He
merely complained about Officer May’s credibility. Issues that
could have been raised during an earlier appeal but were not
generally are waived on remand. See United States v. Whitlow,
740 F.3d 433, 438 (7th Cir. 2014). It is true that “a Thompson re-
mand [based on conditions of supervised release] gives the
district court the power to hear new evidence or arguments
(or reconsider the same evidence and arguments) as it fash-
ions the new sentence.” United States v. Mobley, 833 F.3d 797,
6 Nos. 16-3346 & 16-3905
802 (7th Cir. 2016). Yet Dearborn does not explain how the dis-
trict court’s choice of sentence could have been affected by its
decision whether probable cause supported the search war-
rant. He seems to assume—without saying so directly—that
the district court would have allowed him to withdraw his
guilty plea belatedly if it had accepted the arguments he raises
on appeal. But the question of Dearborn’s guilt is far outside
the scope of this court’s mandate. See United States v. Barnes,
660 F.3d 1000, 1007 (7th Cir. 2011) (“[W]hen a case is generally
remanded to the district court for re-sentencing, the district
court may entertain new arguments as necessary to effectuate
its sentencing intent.”) (emphasis added).
There is no reason to depart from the general rule here.
Dearborn has not shown that extraordinary circumstances re-
quired the district court to reconsider its earlier denial of a
Franks hearing. See United States v. Buckley, 251 F.3d 668, 669
(7th Cir. 2001). A defendant seeking such a hearing must first
make a “substantial preliminary showing” that “(1) the war-
rant affidavit contained false statements, (2) these false state-
ments were made intentionally or with reckless disregard for
the truth, and (3) the false statements were material to the
finding of probable cause.” United States v. Mullins, 803 F.3d
858, 861–62 (7th Cir. 2015). But Dearborn did not provide the
district court with the transcripts of the 2015 case. His repre-
sentation that Officer May was found in that case to have
“made up probable cause in order to secure an arrest” is not
evidence. See United States v. Chapman, 694 F.3d 908, 914
(7th Cir. 2012). And even if, as Dearborn asserts, a state judge
found Officer May not credible years after the search at issue
in this case, that fact would have no bearing on whether Of-
ficer May intentionally misled the judge who issued the
search warrant at issue here. Dearborn admitted when he
Nos. 16-3346 & 16-3905 7
pled guilty that he sold the confidential informants drugs on
two occasions, so his own sworn testimony confirms that the
controlled buys Officer May described in the search warrant
application did in fact occur.
In his pro se appeal, Dearborn asserts that his continued
detention at the Fulton County Jail after his federal resentenc-
ing violated his right to due process and the Interstate Agree-
ment on Detainers, 18 U.S.C. App. 2. But Dearborn’s later
transfer to the Federal Correctional Institution in Greenville,
Illinois, has made that objection moot.
In Appeal No. 16-3346 the judgment is AFFIRMED, and
Appeal No. 16-3905 is DISMISSED.