United States v. Schuh, Robert F. ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 00-3748, 00-3795 & 00-3822
United States of America,
Plaintiff-Appellee,
v.
Robert Schuh, Lisa Nolen, and Curtis Lane,
Defendants-Appellants.
Appeals from the United States District Court
for the Western District of Wisconsin.
Nos. 00-CR-29-S-01, 00-CR-29-S-08 & 00-CR-29-S-04--
John C. Shabaz, Judge.
Argued June 5, 2001/*--Decided May 8, 2002
Before Posner, Manion, and Rovner, Circuit
Judges.
Rovner, Circuit Judge. Jocko’s Rocket
Ship, a tavern in Madison, Wisconsin,
secretly operated as a drug house for
over a decade. Its owner, Robert Schuh,
pleaded guilty to maintaining a drug
house, 21 U.S.C. sec. 856(a)(1), and
eight individuals who dealt drugs at
Jocko’s pleaded guilty to various other
drug offenses. We consolidated Schuh’s
case with appeals filed by two of the
dealers, Lisa Nolen and Curtis Lane.
Schuh challenges an upward adjustment for
being an organizer or leader, and counsel
for both Nolen and Lane move to withdraw
under Anders v. California, 386 U.S. 738
(1967), asking that we dismiss their
respective client’s appeal. For the
reasons that follow, we vacate Schuh’s
sentence and remand for resentencing
without an adjustment for being an
organizer or leader. We also grant both
motions to withdraw and dismiss the
appeals of Nolen and Lane.
I. Background
Schuh knowingly allowed dealers to sell
drugs at Jocko’s, but did not supply
drugs to the dealers or regularly deal
himself. Occasionally he sold drugs on
behalf of the dealers, but more often he
steered customers to them. The dealers
controlled the terms of their own sales,
essentially acting as independent
contractors. Each dealer determined when,
how, and what they would sell at Jocko’s.
They did not share profits or pay Schuh
for the use of Jocko’s, but often gave
him "gratuities" of cocaine for allowing
them to sell there. Although Schuh
welcomed the cocaine "gratuities" to
support his own habit, he never demanded
them from the dealers. Sometimes the
dealers used the basement to weigh,
package, or sell cocaine, but to get
access to the basement they needed
permission from Schuh (or a bartender if
Schuh was unavailable). Schuh required
the dealers to be discreet when dealing,
i.e., they could not approach customers
at Jocko’s and had to transact their
business in the restrooms, but the
bartenders could pass drugs in matchbooks
across the bar. Also, Schuh required the
dealers to be cautious about newcomers
who might be law enforcement agents.
Schuh could "banish" a dealer from
Jocko’s for breaking these informal
rules.
After an undercover investigation, Schuh
and eight dealers, including Nolen and
Lane, were charged with various drug
offenses. Schuh pleaded guilty to
maintaining a drug house, 21 U.S.C. sec.
856(a)(1), and received a 4-level upward
adjustment for being an organizer or
leader. The district court concluded that
Schuh deserved the adjustment because he
accepted cocaine from the dealers who
worked at Jocko’s, controlled access to
the basement, required the dealers to act
discreetly and to exercise caution when
selling to unknown bar patrons, directed
bar customers wanting drugs to the
dealers, occasionally sold drugs himself,
and banned two dealers when they broke
his rules. Furthermore, the court
reasoned that Schuh’s "failure to benefit
to a greater financial extent" did not
undermine the adjustment because his
willingness to accept an occasional
gratuity of cocaine in exchange for the
use of Jocko’s "could have been readily
changed for the asking." Schuh was
sentenced to 228 months’ incarceration,
three years’ supervised release, and a
$100 special assessment.
Nolen, a bartender at Jocko’s for two
years, sold cocaine there until she was
fired in 1999 because of her pregnancy.
She pleaded guilty to conspiring to
manage a drug house, 21 U.S.C. sec.sec.
846, 856(a)(2), and was sentenced to 70
months’ incarceration, 3 years’
supervised release, and a $100 special
assessment. Lane, a regular dealer at
Jocko’s, pleaded guilty to conspiring to
distribute and possess with intent to
distribute cocaine, 21 U.S.C. sec.sec.
846, 841(a)(1). Lane later moved to
withdraw his plea, claiming that he was
pressured into pleading guilty. The
district court denied the motion, finding
that Lane’s reason for moving to withdraw
was "incredible" because he contradicted
statements made at his plea hearing. The
court sentenced him to 135 months’
imprisonment, three years’ supervised
release, and a $100 special assessment.
II. Discussion
A. Robert Schuh
On appeal Schuh challenges the district
court’s 4-level upward adjustment for
being an organizer or leader. U.S.S.G.
sec. 3B1.1. We review for clear error the
district court’s factual finding that a
defendant was an organizer or leader,
United States v. Mijangos, 240 F.3d 601,
604 (7th Cir. 2001), and will reverse
"only if, after reviewing the entire
evidence, we are left with the definite
and firm conviction that a mistake has
been committed," United States v.
Carrera, 259 F.3d 818, 826 (7th Cir.
2001).
Schuh argues that the district court
erred in concluding that his actions
merited an adjustment for being an
organizer or leader. Section 3B1.1(a)
calls for a 4-level upward adjustment
"[i]f the defendant was an organizer or
leader of a criminal activity that
involved five or more participants or was
otherwise extensive." U.S.S.G. sec.
3B1.1(a). To receive the adjustment a
defendant must "organize[ ] [or] lead[ ]
. . . one or more other participants"
rather than merely "exercis[e] management
responsibility over [ ] property."
U.S.S.G. sec. 3B1.1, comment. (n.2); see
also United States v. Lalley, 257 F.3d
751, 757-58 (8th Cir. 2001); United
States v. Fones, 51 F.3d 663, 668 (7th
Cir. 1995). Moreover, sec. 3B1.1
adjustments reflect a defendant’s
relative role in the offense, and "[a]
defendant who had no greater role than
any other participant cannot receive a
sec. 3B1.1 increase." United States v.
Mustread, 42 F.3d 1097, 1103 (7th Cir.
1994). To determine a defendant’s
relative role as an organizer or leader,
a sentencing judge must consider the
following factors: (1) exercise of
decision-making authority; (2) nature of
participation in the commission of the
offense; (3) recruitment of accomplices;
(4) claimed right to a larger share of
the fruits of the crime; (5) degree of
participation in planning or organizing
the offense; (6) nature and scope of the
illegal activity; and (7) degree of
control and authority exercised over
others. U.S.S.G. sec. 3B1.1, comment.
(n.4); United States v. Noble, 246 F.3d
946, 953 (7th Cir. 2001).
In finding that Schuh was an organizer
or leader, the district court relied on
the following: (1) Schuh received cocaine
from the dealers in exchange for the use
of Jocko’s and could have demanded a
greater share of cocaine; (2) Schuh
controlled access to the basement where
the dealers weighed and packaged the
cocaine; (3) Schuh sometimes followed the
dealers to the basement, observed their
activities, and received his cocaine
there; (4) Schuh required the dealers to
be discreet when selling and to be aware
of new patrons who might be law
enforcement agents; (5) Schuh steered
customers to the dealers and occasionally
sold drugs on behalf of other dealers;
and (6) Schuh "banished" two dealers from
Jocko’s when they broke his rules. But
two of these findings are unsupported by
the record, and the remaining findings
are insufficient to merit the sec. 3B1.1
adjustment. First, the finding that Schuh
could have demanded a greater share of
cocaine was mere speculation in light of
the government’s assertion that all of
the cooperating dealers admitted that
they provided the cocaine only as a
gratuity and that Schuh never demanded or
even requested that they do so. Second,
it is undisputed that Schuh banished
Nolen because of her pregnancy, not
because she broke his rules, and the
government concedes that Schuh banished
another dealer, Rick Grafton, because he
"took a swing" at a bar patron for
reasons unrelated to drugs.
The remaining findings are insufficient
to establish Schuh as an organizer or
leader. First, providing access to
Jocko’s, even to the basement, is
insufficient for a sec. 3B1.1 adjustment
because it establishes merely that Schuh
"exercised management responsibility over
[ ] property" rather than "organiz[ing]
[or] lead[ing] . . . one or more other
participants." See U.S.S.G. sec. 3B1.1,
comment. (n.2); Lalley, 257 F.3d at 757-
58; Fones, 51 F.3d at 668. Even though
Schuh sometimes followed the dealers to
the basement to observe them and receive
cocaine, there was no evidence that he
organized, led, or in any way controlled
the dealers in the basement, such as by
instructing them to package the cocaine
in specific amounts. And although Schuh
implemented rules to avoid detection by
authorities, he never actually banished
anyone for breaking the rules. Moreover,
the rules equally benefitted the dealers
because they had the same interest in not
getting caught. See Mustread, 42 F.3d at
1105 (convincing another to buy pager for
defendant did not establish control over
another because both benefitted from the
pager by enabling them to profit more
efficiently). Finally, acting as a
"middleman" by directing customers to
dealers is insufficient for a sec. 3B1.1
adjustment, United States v. Alred, 144
F.3d 1405, 1422 (11th Cir. 1998); United
States v. Magana, 118 F.3d 1173, 1203
(7th Cir. 1997), as is simply
distributing drugs in a buyer-seller
relationship, Noble, 246 F.3d at 954;
Alred, 144 F.3d at 1422.
Even though the grounds given by the
district court do not support the sec.
3B1.1(a) adjustment, we may affirm a
sentence adjustment on any ground
supported by the record. Magana, 118 F.3d
at 1203. Our review of the seven role-in-
the-offense factors, however, confirms
that the facts are inadequate to
establish Schuh as an organizer or
leader. See U.S.S.G. sec. 3B1.1, comment.
(n.4). First, although the scope of the
illegal activity was extensive, Schuh had
little decision-making authority and
played a minor role in planning or
organizing the offense. Schuh did not
supply the cocaine to the dealers or
control who sold it, when they sold it,
at what price they sold it, how they
acquired it, how much or to whom they
sold, what type they sold, or how many
dealers could sell at Jocko’s at any
given time. Moreover, the dealers were
free to sell drugs elsewhere. Schuh’s
participation in the dealing was limited.
He was not a regular dealer, although he
occasionally steered customers to the
dealers and sometimes sold cocaine for
the others. There is no evidence that
Schuh recruited accomplices, and,
although Schuh received cocaine from the
dealers, he never claimed a larger share
of the fruits of the crime in relation to
the dealers. Therefore, because Schuh
played no greater role in the offense
than any of the other participants, see
Mustread, 42 F.3d at 1103, we vacate
Schuh’s sentence and remand for
resentencing without an adjustment for
being an organizer or leader.
B. Lisa Nolen and Curtis Lane
The attorneys for Nolen and Lane each
move to withdraw under Anders v.
California, 386 U.S. 738 (1967), arguing
that there are no non-frivolous grounds
for appeal. We invited Nolen and Lane to
respond to their attorney’s respective
motion, see Cir. R. 51(b), but only Lane
replied. Thus, we confine our review of
the record to the potential issues raised
in each attorney’s facially-adequate
brief and Lane’s Rule 51(b) response.
United States v. Tabb, 125 F.3d 583, 584
(7th Cir. 1997) (per curiam).
1. Nolen
Nolen’s counsel first considers whether
Nolen may argue that her guilty plea was
not knowing and voluntary, but concludes
that such an argument would be frivolous
because the district court complied with
Federal Rule of Criminal Procedure 11.
Nolen did not move to withdraw her guilty
plea, so we would review her Rule 11 plea
colloquy only for plain error. See United
States v. Vonn, 122 S. Ct. 1043, 1046
(2002). Although we note one Rule 11
omission--the court failed to inform her
of the effect of supervised release--it
would not constitute plain error because
Nolen’s 70-month prison term, when
combined with her 3-year term of
supervised release, is still within the
statutory maximum of 20 years’
imprisonment for her offense, 21 U.S.C.
sec. 856(b), and Nolen knew of that
maximum when she entered her plea. See
United States v. Elkins, 176 F.3d 1016,
1021-22 (7th Cir. 1999). In all other
respects, the district court complied
with Rule 11. First, after warning Nolen
that she was under oath and that any
false statement could be used against her
in a prosecution for perjury, the
district court questioned her regarding
the nature of the charge, the maximum
possible penalties, the rights she would
waive by pleading guilty, and the
applicability of the sentencing
guidelines, including the court’s
authority to depart from those
guidelines. Further, Nolen testified that
she was not forced to plead guilty and
that the government’s factual basis for
the plea was accurate. Therefore, we
agree with counsel that an argument based
on the validity of Nolen’s plea would be
frivolous.
Counsel next considers whether Nolen
could challenge the district court’s
assignment of two criminal history points
under U.S.S.G. sec. 4A1.1(c) for her two
convictions of operating a vehicle while
intoxicated. Counsel is correct that such
an argument would be frivolous because
convictions for driving while intoxicated
are counted when calculating a
defendant’s criminal history points.
U.S.S.G. sec. 4A1.2, comment. (n.5);
United States v. LeBlanc, 45 F.3d 192,
195 (7th Cir. 1995). And because an
offense-level reduction under U.S.S.G.
sec. 2D1.1(b)(6) requires that the
defendant have less than two criminal
history points, we also agree with
counsel that it would be frivolous to
argue that the district court erred by
refusing such a reduction. See U.S.S.G.
sec.sec. 2D1.1(b)(6), 5C1.2.
Finally, counsel considers whether Nolen
could challenge the district court’s
refusal to depart downward from the
sentencing guidelines based on an
overstatement of her criminal history and
her substantial assistance to
authorities. See U.S.S.G. sec.sec. 4A1.3,
5K1.1. Counsel is correct that such an
argument would be frivolous because we
lack jurisdiction to review a district
court’s discretionary refusal to depart
downward when the court understood that
it had the authority to depart. See
United States v. Atkinson, 259 F.3d 648,
652-53 (7th Cir. 2001). Because the
district court considered and rejected
Nolen’s departure arguments on their
merits, we would lack jurisdiction to
review the court’s decision. Thus, we
grant counsel’s motion to withdraw and
dismiss Nolen’s appeal.
2. Lane
Lane’s counsel first considers a
challenge to the district court’s
rejection of Lane’s motion to withdraw
his guilty plea. A district court may
allow a defendant to withdraw his guilty
plea any time before sentencing if the
defendant provides a "fair and just
reason." Fed. R. Crim. P. 32(e); United
States v. Shaker, 279 F.3d 494, 497 (7th
Cir. 2002). We would review the denial of
such a motion for an abuse of discretion.
United States v. Wallace, 276 F.3d 360,
366 (7th Cir. 2002). At a hearing Lane
testified that he was pressured into
pleading guilty, thus claiming that his
plea was not knowing and voluntary.
Because a careful plea colloquy under
Rule 11 ensures that the guilty plea is
knowing and voluntary, determining
whether the district court abused its
discretion "depends, in large part, on
what the defendant said during the Rule
11 colloquy." See United States v.
Ellison, 835 F.2d 687, 693 (7th Cir.
1987). Moreover, representations made at
a Rule 11 hearing are accorded a
"presumption of verity." United States v.
Pike, 211 F.3d 385, 389 (7th Cir. 2000).
After being warned at his Rule 11
hearing that he was under oath and that
his statements could later be used
against him in a prosecution for perjury,
Lane testified that no one forced him to
plead guilty and that he was doing so of
his own free will because he was indeed
guilty. He also agreed with the
government’s detailed factual basis for
the plea. A "’district court is generally
justified in discrediting the proffered
reasons for the motion to withdraw and
holding the defendant to [his] admissions
at the Rule 11 hearing.’" United States
v. Messino, 55 F.3d 1241, 1248 (7th Cir.
1995) (quoting United States v. Groll,
992 F.2d 755, 758 (7th Cir. 1993)); see
also United States v. Stewart, 198 F.3d
984, 987 (7th Cir. 1999) ("[A] defendant
has no chance of success on appeal when
the judge elects to treat freely given
sworn statements [at a Rule 11 hearing]
as conclusive.").
In addition to Lane’s statements, the
district court’s substantial compliance
with the remaining requirements of Rule
11 supports the voluntariness of Lane’s
guilty plea. The court questioned Lane
regarding the nature of the charges, the
possible penalties, the rights he would
waive by pleading guilty, and the
applicability of the sentencing
guidelines. And even though the court
failed to inform Lane of the effect of
supervised release and failed to inquire
whether Lane’s willingness to plead
guilty resulted from prior discussions
with the government, see Fed. R. Crim. P.
11(c)(1), (d), the omissions are
harmless. First, the court’s failure to
explain the effect of supervised release
is harmless because Lane’s total
sentence, 135 months’ imprisonment and
three years’ supervised release, falls
below the default statutory maximum of 20
years’ incarceration for cocaine
offenses, see 21 U.S.C. sec.
841(b)(1)(C), and Lane knew of the
maximum when he entered his plea, see
Elkins, 176 F.3d at 1021-22. Second, the
district court’s failure to inquire
whether Lane’s willingness to plead
guilty resulted from prior discussions
with the government is harmless because
Lane’s "statements to the court suggest
that he would have accepted his plea even
if he were given the exact 11(d)
warning." United States v. Cross, 57 F.3d
588, 592 (7th Cir. 1995). Lane admitted
that (1) he discussed the charge and the
plea agreement with his counsel; (2) he
was not forced to plead guilty; (3) he
received no promises other than those in
the plea agreement in an effort to induce
him to plead guilty; and (4) he was
pleading guilty of his own free will.
Thus, based on Lane’s statements at the
Rule 11 hearing, we agree with counsel
that Lane’s guilty plea was knowing and
voluntary and that it would be frivolous
to argue that the district court abused
its discretion by denying Lane’s motion
to withdraw it.
Counsel lastly considers whether Lane
may contest the district court’s refusal
to reduce his offense level for
acceptance of responsibility. But when
Lane sought to withdraw his guilty plea,
he denied responsibility of his offense
and boldly asserted that he "should be
held responsible for nothing." We agree
with counsel that an argument based on
acceptance of responsibility would be
frivolous because Lane not only falsely
denied relevant conduct, see United
States v. Wallace, 280 F.3d 781, 785-86
(7th Cir. 2002), but completely denied
any responsibility.
Lane’s Rule 51(b) response to counsel’s
Anders brief proposes several additional
issues for appeal. First, Lane asserts
that he could challenge his indictment
under Apprendi v. New Jersey, 530 U.S.
466, 490 (2000), because it did not
identify a specific drug quantity. That
argument, however, would be frivolous
because Lane’s 135-month prison sentence
is well within the 20-year, default
statutory-maximum for cocaine offenses.
See 21 U.S.C. sec. 841(b)(1)(C); United
States v. Kibler, 279 F.3d 511, 517 (7th
Cir. 2002). Lane also argues that he
could challenge the sufficiency of his
indictment because it merely recites 18
U.S.C. sec. 2, but "never mentions
anything about aiding and abetting." But
aiding and abetting is merely a theory of
liability, not a substantive offense, and
need not be charged in the indictment.
United States v. Ruiz, 932 F.2d 1174,
1180 (7th Cir. 1991). Next, Lane argues
that he could challenge the government’s
relevant conduct calculation, but that
argument would be frivolous because Lane
waived the issue for appeal by
withdrawing his objection to relevant
conduct at sentencing. See United States
v. Scanga, 225 F.3d 780, 783 (2000),
cert. denied, 531 U.S. 1097 (2001).
Lastly, Lane contends that he could
assert ineffective assistance of both his
trial and appellate counsel for "not
pointing out the[ ] shortcomings in the
Government’s case," but ineffective-
assistance claims are rarely appropriate
on direct appeal because the record is
typically insufficient for a complete
review. United States v. Hamzat, 217 F.3d
494, 501 (7th Cir. 2000). Accordingly, we
grant counsel’s motion to withdraw and
dismiss Lane’s appeal.
III. Conclusion
For the foregoing reasons, we VACATE
Schuh’s sentence and REMAND for
resentencing without an adjustment for
being an organizer or leader. Also, we
GRANT both motions to withdraw and DISMISS
the appeals of Nolen and Lane.
FOOTNOTE
/* Case Nos. 00-3795 and 00-3822, United States of
America v. Lisa Nolen and United States of
America v. Curtis Lane respectively, were
submitted on the briefs without oral argument.
See Fed. R. App. P. 34; Cir. R. 34.