United States v. Walter Blackman , 830 F.3d 721 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 15-2003
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WALTER BLACKMAN,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13-CR-268— Edmond E. Chang, Judge.
ARGUED APRIL 13, 2016 — DECIDED JULY 29, 2016
Before EASTERBROOK, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Walter Blackman pleaded guilty to
one count of distributing a controlled substance, in violation of
21 U.S.C. §841(a)(1), and the district court ordered him to serve
a prison term of 180 months. In this appeal, he challenges the
district court’s finding that he was responsible for the un-
charged distribution of 3,000 grams of crack cocaine to one of
his customers as relevant conduct and its additional finding
2 No. 15-2003
that he possessed a firearm during his narcotics distribution.
We find no error in either determination, nor do we agree with
Blackman’s contention that the district court committed
procedural error by failing to address two of his principal
arguments in mitigation.
I.
Blackman was a ranking official in Chicago’s Black Disci-
ples street gang. Blackman and his crew controlled drug
trafficking in an area of Chicago’s far south side known
colloquially as “the hundreds”—a reference to the fact that the
cross streets in the neighborhood are numbered 100th through
135th streets. Blackman and his associates distributed large
quantities of heroin, powder cocaine, and crack cocaine;
Blackman himself was selling wholesale quantities of those
drugs to multiple customers. Blackman was among 18 people
arrested in April 2013 following a lengthy investigation by the
Federal Bureau of Investigation. He was charged in a supersed-
ing indictment with 16 counts of distributing various con-
trolled substances (including cocaine, crack cocaine, and
heroin) in 2012 and early 2013, in violation of section 841(a)(1).
He ultimately pleaded guilty to count two of that indictment,
which involved the distribution of 366.2 grams of crack cocaine
to a confidential witness (the “CW”) on July 24, 2012. In a
written plea agreement, the parties agreed, based on the
transactions charged in all 16 counts of the indictment, that
Blackman was responsible for distributing 1,085.9 grams of
crack cocaine, 1,084 grams of powder cocaine, and 389.4 grams
of heroin; but Blackman reserved the right to contest, and the
government reserved the right to establish, his responsibility
for any uncharged drug quantities in excess of these agreed-
No. 15-2003 3
upon amounts—in particular, an additional three kilograms of
crack cocaine that the government believed Blackman had
distributed to Jeffrey Brewer.
The government presented Brewer’s testimony at sentenc-
ing in support of the additional drug quantity. Brewer was
among the 18 people arrested as a result of the government’s
investigation; he ultimately pleaded guilty to a charge that he
possessed, with the intent to distribute, 28 grams or more of
crack cocaine, in violation of section 841(a)(1). Brewer had
made his living as a street-level dealer in crack cocaine.
Blackman was a long-time supplier of Brewer and had
“blessed” Brewer into the Black Disciples as a gang member
early in 2013. Brewer testified that he had made regular
purchases of crack cocaine from Blackman for resale, with cash
or by front, beginning late in 2008 and continuing through
early 2013. By Brewer’s account, the purchases occurred
multiple times daily from 2008 through 2010; were interrupted
first by a two-to-three month “drought” in 2011 when
Blackman had no supply and later by Brewer’s incarceration
for 100 days; and became intermittent (every two to three
weeks) in 2012 to 2013. Brewer also testified both that he had
frequently seen Blackman with a gun on his person or in his
automobile during this period and that Blackman had supplied
three firearms and ammunition to him in 2011 for use in a drug
turf dispute with a rival gang. Brewer was cross-examined
extensively by Blackman’s counsel, who established, among
other points, that Brewer had been high on marijuana day and
night throughout this period of time, that he was cooperating
with the government in the hope of a lesser sentence, and that
he had given inconsistent statements both as to when he had
4 No. 15-2003
met Blackman and begun acquiring crack cocaine from him
and as to the quantities he had obtained from Blackman. In
particular, Blackman’s counsel emphasized that Brewer, prior
to his testimony, had given significantly lower estimates of
how much crack cocaine he had typically purchased from
Blackman. For example, in connection with his guilty plea,
Brewer had estimated that he purchased one-eighth ounce
quantities from Blackman on a daily to weekly basis in 2009
and quarter-ounce quantities in 2010; but in his testimony at
Blackman’s sentencing, he increased these estimates to half-
ounce purchases twice daily in 2009 and half-ounce daily
purchases in 2010.
Following Brewer’s testimony, the parties filed supplemen-
tal sentencing memoranda, and the government, at the district
court’s behest, included with its memorandum a summary of
the evidence that corroborated Brewer’s testimony. The
government cited, among other things, phone records that
reflected telephonic contact between Brewer and Blackman
during certain portions of the 4.5-year time period during
which Brewer testified he had been purchasing crack cocaine
from Blackman; recorded phone conversations between the
two men in 2012 and 2013 discussing drugs and guns; and
photographs of various automobiles, weapons, and ammuni-
tion that Brewer had linked to Blackman. The government
argued that in light of this and other evidence, Brewer was a
credible witness whose testimony as to his course of dealing
with Blackman was reliable.
The district court, having considered the parties’ submis-
sions, found that Brewer had purchased a minimum of three
kilograms of crack cocaine from Blackman from 2009 through
No. 15-2003 5
early 2013 and that this quantity should be included in the total
drug quantity for which Blackman should be held to account.
The court noted at the outset that although Blackman had
pleaded guilty to only one count of distribution that involved
a single sale of crack cocaine to the CW in July 2012, Blackman
had also stipulated to the transactions underlying the other 15
counts of the superseding indictment and conceded that these
constituted relevant conduct for sentencing purposes.
Whether as part of a common plan or the same
course of conduct, the offenses were all drug
distribution offenses (sometimes crack, some-
times powder cocaine, and sometimes, as
Blackman told the CW in July 2012, heroin); the
drug deals covered a continuous time period
between January 2012 to March 2013, occurred
with regularity (that is, they were not all
compressed at one end or another of that time
period); and several of the deals occurred either
at or near the 134th Street house where the July
2012 deal happened.
R. 93 at 2. The court went on to find that the drug dealing
between Brewer and Blackman overlapped with and
constituted part of the same common plan or course of dealing
as the transactions to which Blackman had stipulated and
should likewise be treated as relevant conduct. See U.S.S.G.
§ 1B1.3(a)(2). The court found that Brewer was a credible
witness: having observed him testify, it was the court’s view
that Brewer was anything but eager to testify against a Black
Disciples gang leader and that he had done his best to
remember and recount accurately his dealings with Blackman.
6 No. 15-2003
The court acknowledged the prior inconsistent statements
Brewer had made as to when he had met Blackman and how
much crack cocaine he had obtained from Blackman. Some of
these statements could be explained by the motive Brewer had
at the time to minimize his dealings with Blackman and the
scope of his own criminal conduct. And the court was satisfied
that the phone records and other evidence cited by the
government corroborated Brewer’s account in important
respects. The phone records showed that the two men were in
contact with one another as far back as 2009 and that they were
thereafter in frequent contact during certain time periods.
Certain calls between them had been intercepted by
government wiretap between October 2012 and January 2013,
but in view of Brewer’s testimony and the phone records, the
court found that the two had a relationship that substantially
pre-dated those recorded calls. Brewer’s testimony about his
course of dealing with Blackman was consistent generally with
Blackman’s own post-arrest admissions describing the scope
of his narcotics operation, and in certain particulars (including
his description of Blackman’s cars and stash house) had been
independently verified. The court found, ultimately, that
Brewer had purchased crack cocaine from Blackman beginning
no later than 2009 and until early 2013; that, conservatively,
Brewer had purchased at least three kilograms of crack cocaine
from Blackman during that time period; and that those
purchases comprised a common plan or identical course of
conduct with the count of Blackman’s conviction. On the latter
point, the court pointed out that the time period of the Brewer-
Blackman transactions overlapped with the transactions to
which Blackman had stipulated; that the transactions took
No. 15-2003 7
place either in the same area or near by (not far from the stash
house where the sale to the CW underlying Blackman’s
conviction had occurred, for example), and involved the same
drug as the count of conviction. R. 93 at 3-4.
The court also found that Blackman had possessed one or
more firearms during the period of his drug trafficking. See
U.S.S.G. § 2D1.1(b)(1). This issue, the court observed, was
much simpler to resolve than the appropriate drug quantity.
The court noted that there were intercepted calls establishing
Blackman’s effort to obtain a firearm from James Jones on
December 7, 2012, and when Blackman’s car was stopped later
that day, a .45-caliber pistol had in fact been discovered
underneath the front passenger seat, where Jones was sitting.
Blackman had also admitted in his post-arrest statement that
he was in possession of five other guns as of the date of that
seizure but had later disposed of them upon realizing that the
government was tracking him. Finally, the court credited
Brewer’s testimony that he had acquired guns from Blackman
in 2011 in connection with a drug turf battle and that Brewer
also had seen Blackman in possession of a firearm in 2012.
R. 93 at 4.
Each of these findings added two levels to Blackman’s base
offense level and boosted it from 32 to 36. After a three-level
deduction for acceptance of responsibility, his adjusted offense
level was 33, which in conjunction with a criminal history
category of III yielded an advisory sentencing range of 168 to
210 months. Pursuant to 21 U.S.C. § 841(b)(1)(A)(iii), Blackman
was subject to a 10-year minimum term of incarceration. After
reviewing the sentencing factors set forth in 18 U.S.C. § 3553(a),
the district court sentenced Blackman to a term of 180 months.
8 No. 15-2003
II.
Blackman contends that the district court erred in multiple
respects in determining his sentence. He argues that neither his
cocaine sales to Brewer nor his possession of one or more
firearms should have been factored into the Guidelines
calculations, as both (in his view) are too far removed from the
conduct underlying his conviction to be considered for
sentencing purposes. He also contends that Brewer’s testimony
as to his transactions with Blackman and Blackman’s
possession of firearms was too unreliable to support the
district court’s findings on these points. Blackman further
argues that the district court committed procedural error by
failing to address two of his principal arguments in
mitigation—his challenge to the 18:1 crack-to-powder-cocaine
ratio adopted by the Fair Sentencing Act of 2010, 124 Stat. 2372,
and now embodied in the Sentencing Guidelines, and his
contention that the government engaged in sentencing
manipulation. Finally, Blackman briefly contends that his
sentence is incompatible with the Fifth and Sixth Amendments
to the Constitution to the extent that the enhancements to his
sentence were premised on judicial findings based on a mere
preponderance of the evidence.
A.
Highlighting various differences between his dealings with
Brewer and his course of dealing with the CW, one sale to
whom underlies his count of conviction, Blackman contends
that his crack cocaine sales to Brewer do not qualify as relevant
conduct for sentencing purposes. He points out that whereas
Blackman and Brewer were both Black Disciples, the CW was
No. 15-2003 9
a Gangster Disciple and was unknown to Blackman until they
were introduced by a third party. The CW also purchased
multiple narcotics from Blackman, including heroin, for resale
to out-of-town customers, whereas Brewer purchased crack
cocaine only and for resale within Chicago. Blackman’s sales
to the CW were occasional and tended to be in larger quantities
than his daily and (eventually) bi-weekly sales to Brewer. The
CW paid for his purchases in cash whereas Blackman often
fronted crack cocaine to Brewer.
However, the sale to the CW underlying the count of
conviction, and Blackman’s collective sales to the CW, were
part of a much broader course of drug dealing. Pursuant to
section 1B1.3(a)(2) of the Guidelines, narcotics-related conduct
beyond the scope of a defendant’s conviction qualifies as
relevant for sentencing purposes if, inter alia, it was part of the
same course of conduct as the conviction. E.g., United States v.
Baines, 777 F.3d 959, 963 (7th Cir. 2015); United States v. Howard,
80 F.3d 1194, 1203 (7th Cir. 1996). This is so when there is a
strong relationship between the uncharged conduct and the
offense of conviction, as evidenced by a significant similarity,
regularity and temporal proximity between the two. E.g.,
Baines, 777 F.3d at 963; United States v. Stephenson, 557 F.3d 449,
456 (7th Cir. 2009). Blackman acknowledged that he and his
crew controlled drug distribution in the 100s area of Chicago,
and he appropriately stipulated that the other distributions
charged in the indictment (to the CW and additional
individuals) constituted relevant conduct. So it does not make
sense to isolate either the count of conviction or Blackman’s
distributions to the CW for comparison purposes in assessing
what constitutes relevant conduct: the sale underlying the
10 No. 15-2003
count of conviction was not the sole drug sale that Blackman
made nor was the CW Blackman’s only customer. See United
States v. White, 519 F.3d 342, 348-49 (7th Cir. 2008).
It is clear from the record that throughout 2012 and until his
arrest in 2013, Blackman was engaged in a course of significant,
continuous drug dealing to multiple customers on the far south
side of Chicago, and the sales to Brewer fit comfortably within
that course of dealing. Blackman had a much lengthier
relationship with Brewer than he did with the CW (by Brewer’s
account it began in 2008), but it persisted through and
overlapped with the time period established by stipulated
conduct (January 2012 to March 2013). (Blackman’s drug
dealing operation did not snap into existence in early 2012.) As
with the transactions that Blackman conceded were relevant
conduct, the sales to Brewer involved the same distributor of
narcotics, obviously (Blackman), one of the three drugs that
Blackman and his crew distributed to others (crack cocaine),
similar regularity of dealing (on a daily and weekly basis), took
place in the same area (in particular “the hundreds”
neighborhood) of Chicago, and in some instances, at the same
stash house. It was entirely appropriate for the court to treat
the transactions with Brewer as relevant conduct. Cf. Baines,
777 F.3d 964.
The court’s finding that Blackman distributed three
kilograms of crack cocaine to Brewer from 2009 to 2013 was not
clearly erroneous. There was no dispute that Brewer was one
of Blackman’s customers. Intercepted conversations between
Blackman and Brewer in 2012 and 2013 confirm that they had
a drug-trafficking relationship. Brewer gave a detailed
accounting of his purchasing relationship with Blackman and
No. 15-2003 11
made estimates of the frequency of his purchases and amounts
purchased in each year of that relationship. The district court,
in turn, appropriately relied on the low end of Brewer’s
estimates to make a conservative determination of the total
quantity of crack cocaine that Blackman distributed to Brewer
over time. See United States v. Tate, 822 F.3d 370, 373 (7th Cir.
2016) (district court may rely on reasonable estimation to
determine relevant drug quantity); United States v. Claybrooks,
729 F.3d 699, 707 (7th Cir. 2013) (same).1 Certainly there were
inconsistencies between Brewer’s testimony and his various
post-arrest statements. In particular, Brewer on the witness
stand affixed larger numbers to the quantities he had
purchased from Blackman than he had in prior statements. But
these points were fully aired both during cross-examination
and in the briefing that the district court requested. The district
court itself acknowledged and considered the inconsistencies
but found, in view of the totality of the record (including
evidence that confirmed certain aspects of Brewer’s testimony),
that Brewer was credible. We have no basis to disturb that
finding. See Tate, 822 F.3d 373 (noting deference we owe to
district court’s credibility determinations).
1
By way of illustration, we note that had the district court relied upon
Brewer’s testimony regarding the daily amounts he purchased from
Blackman in 2009 and 2010, for example, it would have quickly arrived at
a total drug quantity of ten kilograms or more of crack cocaine. The court
clearly was looking to the lower estimates that Brewer had ventured in
earlier statements. The district court also excluded altogether the amounts
Brewer testified that he purchased from Blackman in 2008, which
represented an earlier beginning to the relationship than Brewer had
indicated in any of his prior statements.
12 No. 15-2003
B.
Nor did the court err in finding that Blackman possessed a
firearm during his narcotics trafficking activity. There was
ample evidence to support the district court’s finding in this
regard. For example (and our discussion on this point is by no
means exhaustive), Brewer testified that in 2012, Blackman
almost invariably had a firearm when Brewer met with him,
either on his person or in his vehicle. The district court credited
this testimony. The court also found credible Brewer’s
testimony that Blackman had supplied him with three different
guns in 2011 for use in a dispute with a rival gang over drug
territory. As we have discussed, Blackman’s dealings with
Brewer constitute relevant conduct, and as Blackman himself
concedes, the possession of a gun during narcotics activity that
counts as relevant conduct itself is sufficient to support the
enhancement. E.g., United States v. McCauley, 659 F.3d 645, 652
(7th Cir. 2011). Blackman nonetheless contends that there is no
evidence affirmatively connecting any of the firearms that
Brewer mentioned to his narcotics trafficking. But the
commentary to the Guideline makes clear that a defendant’s
possession of a firearm warrants the enhancement “unless it is
clearly improbable that the weapon was connected with the
offense.” § 2D1.1, comment. (n.11(A)). Blackman has cited
nothing in the record giving us reason to believe that it was
clearly improbable that the firearm or firearms he possessed
were connected to his course of drug dealing. See United States
v. Acosta, 534 F.3d 574, 588 (7th Cir. 2008). Moreover, Brewer
testified that when Blackman carried a gun in his vehicle, he
typically placed it either in the glove compartment or in an
armrest, which happened to be the two places into which he
No. 15-2003 13
also placed the narcotics he was delivering to customers like
Brewer. That alone suggests a connection between the firearms
and his drug dealing. See, e.g., United States v. Rea, 621 F.3d 595,
606 (7th Cir. 2010). As does supplying firearms to a customer
(Brewer) who was defending his drug turf. See United States v.
Block, 705 F.3d 755, 763 (7th Cir. 2013).
C.
Blackman next contends that the district court failed to
address two of his principal arguments in mitigation: the
contention that the government was guilty of sentencing
manipulation by virtue of having its CW purchase, and
continue to purchase, crack cocaine from Blackman so as to
drive up his Guidelines offense level, and his contention that
the district court should reject the 18:1 ratio of powder to crack
cocaine reflected in the guidelines and sentence him below the
advisory range. A sentencing judge is required to address a
defendant’s principal arguments in mitigation so long as they
have a foundation in the facts of the case and are not too weak
to require discussion. E.g., United States v. Rosales, 813 F.3d 634,
637-38 (7th Cir. 2016).
The sentencing manipulation argument was not one the
district court was required to address. This court has declined
to recognize this as a valid sentencing argument. See United
States v. Garcia, 79 F.3d 74, 76 (7th Cir. 1996); see also United
States v. Vallone, 698 F.3d 416, 495 (7th Cir. 2012) (collecting
cases), cert. granted & j. vacated on other grounds sub nom. Dunn
v. United States, 133 S. Ct. 2825 (2013), reinstated as modified,
752 F.3d 690 (7th Cir. 2014), cert. denied, 135 S. Ct. 1167, 1466,
1843, 1857 (2015).
14 No. 15-2003
Blackman’s contention that the court failed to address his
challenge to the 18:1 crack-to-powder-cocaine ratio turns out
to be mistaken. Although it is true that the court did not
mention the argument at sentencing, it did deal with the
argument expressly in the written Statement of Reasons
attached to the judgment and commitment order.
It is true that there remains criticism over the
crack/powder disparity. Defense counsel argued
at sentencing that the then-Attorney General
himself had personally advocated for
elimination of the disparity. But that carries no
extra weight in evaluating the 18 U.S.C.
§ 3553(a) factors, no more than if a future
Attorney General, unable to turn a personal
opinion into actual official policy or into actual
statutory law, opined that he or she personally
believed that the current ratio is too lenient on
crack offenders. The fact is that crack, because it
is smoked, does produce a faster high (it is
absorbed into the bloodstream faster) than
snorted powder cocaine, so there remains, for
some drug users, a stronger demand for crack
over powder. That is not to say that even the
current ratio is always fair, but it is not so strong
a mitigation point as to materially influence
Blackman’s sentence.
R. 100 at 4. Strangely, neither party called to our attention this
discussion. We look to a court’s written statement of reasons in
addition to its oral remarks at sentencing in assessing the
sufficiency of its sentencing rationale. See Baines, 777 F.3d at
No. 15-2003 15
966 (citing United States v. Pape, 601 F.3d 743, 747 (7th Cir.
2010), and United States v. Baker, 445 F.3d 987, 991-92 (7th Cir.
2006)); United States v. Ortiz, 431 F.3d 1035, 1042-43 (7th Cir.
2005). The court’s written statement amplifies on its reasons for
imposing the sentence it did and makes clear that the court
considered Blackman’s objection to the crack-to-powder ratio
and rejected the argument on its merits. The court was not
obligated to say more than it did, particularly given the extent
to which the argument, as Blackman’s counsel presented it,
was more of a blanket policy challenge to the ratio than an
exposition on why the ratio worked a particular injustice in
this case. Cf. United States v. Morris, 775 F.3d 882, 886-88 (7th
Cir. 2015) (defendant’s argument focused, inter alia, on fact that
most of crack cocaine attributed to him was counterfeit).
D.
Finally, Blackman argues that his Fifth and Sixth
Amendment were violated because the relevant sentencing
findings were not made by a jury based on proof beyond a
reasonable doubt but rather by a judge based on a simple
preponderance of the evidence. Blackman makes this argument
simply to preserve it. He acknowledges that the precedents of
both the Supreme Court and this court are squarely against
him on this point. See United States v. O’Brien, 560 U.S. 218, 224,
130 S. Ct. 2169, 2174 (2010); United States v. Watts, 519 U.S. 148,
156-57, 117 S. Ct. 633, 637-38 (1997) (per curiam); United States
v. Bozovich, 782 F.3d 814, 818 (7th Cir. 2015).
III.
The district court did a thorough and conscientious job in
assessing Blackman’s relevant conduct and arriving at an
16 No. 15-2003
appropriate sentence. The court did not clearly err in holding
Blackman responsible for an additional three kilograms of
crack cocaine or for the possession of a firearm during his
relevant conduct. Nor did the court commit any procedural
error in resolving defendant’s arguments in mitigation. The
sentence is AFFIRMED.