United States v. Parker, Demitri E. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3232
United States of America,
Plaintiff-Appellee,
v.
Demitri Parker,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 99-40068--Michael M. Mihm, Judge.
Argued January 12, 2001--Decided April 5, 2001
Before Easterbrook, Diane P. Wood, and Williams, Circuit
Judges.
Williams, Circuit Judge. Demitri Parker was
charged with possession with intent to distribute
over fifty grams of cocaine base ("crack") under
18 U.S.C. sec.841(b)(1)(A). At his sentencing
hearing, Parker attempted to withdraw his plea of
guilty in light of Apprendi v. New Jersey, 530
U.S. 466 (2000). The district court rejected the
withdrawal and sentenced him to life
imprisonment. Parker appeals his sentence,
arguing that the judge erred by not allowing him
to withdraw his guilty plea and in finding that
he possessed crack. For the reasons set forth
below, we affirm.
I
Parker was pulled over by two police officers
for allegedly violating state traffic laws. After
learning from their department dispatcher that
Parker’s driving privileges had been revoked, the
officers placed him under arrest. Pursuant to the
arrest, one of the officers searched his vehicle
and found a large amount of suspected crack
cocaine. Parker was indicted for possession with
intent to distribute. His attempt to suppress
this evidence was unsuccessful.
Parker subsequently pled guilty to possession
with the intent to distribute cocaine base in
excess of fifty grams. There was no written plea
agreement. As part of the plea colloquy, the
trial judge asked Parker whether he understood
that the government would have to prove beyond a
reasonable doubt that he knowingly possessed
cocaine base and that the amount he possessed
exceeded fifty grams. When presenting its factual
basis for the plea, the government stated that it
would present evidence that the officers had
discovered at least sixty-six grams of crack
cocaine in their search. When asked by the court
whether this amount was consistent with what he
believed he had in his possession at the time,
Parker responded "Yes."
During the sentencing hearing, Parker’s counsel
moved to withdraw Parker’s guilty plea in light
of Apprendi. The district court held that
Apprendi did not create a fair and just reason
for Parker to withdraw his plea. At the time of
the plea, the court had informed Parker of the
right to have the drug quantity determination
made by a jury should he go to trial./1 Also at
the hearing, the government introduced into
evidence a copy of the state police laboratory
report. The report verified that the substance
found in Parker’s car consisted of approximately
sixty-six grams of cocaine but did not indicate
whether the substance was crack. The court
sentenced Parker to life imprisonment.
II
A
We review a trial court’s denial of a
defendant’s motion to withdraw his guilty plea
for abuse of discretion. United States v. Seavoy,
995 F.2d 1414, 1420 (7th Cir. 1993). A court may
permit a defendant to withdraw his guilty plea
for "any fair and just reason." Fed. R. Crim.
Pro. sec.32(e). The defendant bears the burden of
proof. Seavoy, 995 F.2d at 1420. A trial court’s
decision to grant or deny a motion to withdraw a
guilty plea is considered an abuse of discretion
if no reasonable person would agree with its
ruling. United States v. Hook, 195 F.3d 299, 305
(7th Cir. 1999).
Parker argues that he might have pled
differently had he known that the government was
required to prove that he possessed more than
fifty grams beyond a reasonable doubt, as he
believes, Apprendi requires. Indeed, a defendant
may withdraw a plea that was involuntarily or
unknowingly made. E.g. United States v. Groll,
992 F.2d 755, 760 (7th Cir. 1993) (reversing
denial where defendant was unaware of available
entrapment defense and court failed to adequately
explain its reasoning). See generally United
States v. Ellison, 835 F.2d 687, 692-93 (7th Cir.
1987). Parker’s argument fails, however, because
it assumes that he had a right to jury
determination of drug quantity under Apprendi.
Because Parker’s sentence did not exceed the
statutory maximum under 18 U.S.C.
sec.841(b)(1)(A), Apprendi does not create for
him a right to jury determination of the drug
quantity alleged in his indictment./2 Talbott v.
Indiana, 226 F.3d 866, 869 (7th Cir. 2000).
Furthermore, by pleading guilty, he waived any
right to a jury trial and may not contend on
appeal that any particular issue should have been
submitted. United States v. Behrman, 235 F.3d
1049, 1054 (7th Cir. 2000); United States v.
Fountain, 777 F.2d 351, 354 (7th Cir. 1985)
(quoting McCarthy v. United States, 394 U.S. 459,
466 (1969)); see also United States v. Champion,
234 F.3d 106, 110, n. 3 (2d Cir. 2000). Therefore
the district court did not abuse its discretion.
B
Parker next challenges the district court’s drug
type finding. Because there was no Apprendi
violation, the district court properly applied
the preponderance of the evidence standard.
Horton v. United States, No. 98-3481, 2001 U.S.
App. LEXIS 5108, at * 16 (7th Cir. March 28,
2001). We review the district court’s drug type
determination for clear error. Linton, 235 F.3d
at 329.
Parker argues that the government did not meet
its burden of proof. To support his contention,
he points to the laboratory report which fails to
indicate whether the substance found in Parker’s
car was crack. Because there is other evidence in
the record to support the district court’s
finding, we find no reversible error. United
States v. Lumpkins, 845 F.2d 1444, 1450 (7th Cir.
1988).
The police officer who arrested Parker and
searched his car was experienced in identifying
crack and testified at Parker’s motion to
suppress hearing that the substance found was
"chunky." The laboratory report Parker criticizes
likewise described it as a "chunky" substance
packaged in plastic bags. Parker presented no
evidence to the contrary, but actually admitted
during his Rule 11 plea colloquy that he
possessed "crack." A district court may accept a
defendant’s plea colloquy statements as true.
United States v. Ellison, 835 F.2d 687, 693 (7th
Cir. 1987). Based on Parker’s statement, together
with the testimony of the arresting officer and
the description in the laboratory report, the
government met its burden. See Linton, 235 F.3d
328 (affirming district court’s determination of
drug type based on testimony of two witnesses
experienced in identifying crack and uncontested
factual findings regarding the appearance and
packaging of the cocaine base where government’s
laboratory analysis failed to identify the
substance as "crack"). Therefore the district
court did not clearly err.
III
For the reasons stated above, we AFFIRM.
/1 Under this court’s precedent at that time, no
defendant had a right to jury determination of
drug quantity. United States v. Jackson, 207 F.3d
910, 920-21 (7th Cir. 2000). But the district
judge correctly anticipated our decision in
United States v. Nance, 236 F.3d 820, 825 (7th
Cir. 2000), which partially overruled Jackson and
held that a defendant does have such a right in
instances where his sentence could be enhanced
beyond the statutory maximum.
/2 The statute established a sentencing range from
ten years to life, but as a result of Parker’s
prior convictions, the U.S. Sentencing Guidelines
imposed a mandatory life sentence.