United States v. Blalock, Terrance E. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1832
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TERRANCE E. BLALOCK,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 01-CR-40017—J. Phil Gilbert, Judge.
____________
ARGUED FEBRUARY 10, 2003—DECIDED MARCH 6, 2003
____________
Before POSNER, MANION, and KANNE, Circuit Judges.
KANNE, Circuit Judge. After an investigation into a
Mount Vernon, Illinois drug-trafficking organization, Ter-
rance E. Blalock was charged with conspiring to pos-
sess and distribute more than 50 grams of crack cocaine
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846,
as well as three counts of possession with intent to dis-
tribute crack cocaine in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(C). Blalock pleaded guilty to these charges
without benefit of a plea agreement and, at 21 years of
age, was sentenced to 480 months imprisonment. He
now appeals, challenging the validity of his guilty plea
and sentence. Blalock first argues that the district court,
in accepting his guilty plea, committed plain error by fail-
2 No. 02-1832
ing to comply with the requirements of Rule 11 of the
Federal Rules of Criminal Procedure. Second, he argues
that the district court committed clear error in enhanc-
ing his sentence based on its conclusions with regard to
relevant conduct, obstruction of justice, and the use of
minors.
Blalock did not seek to withdraw his guilty plea in
the district court, so to prevail on his first challenge, he
must demonstrate that the court committed plain er-
ror—a rather exacting standard of review. United States
v. Jeffries, 265 F.3d 556, 558 (7th Cir. 2001); see also
United States v. Anderson, 303 F.3d 847, 854 (7th Cir.
2002) (characterizing an attempt to meet the plain error
standard as an “uphill battle”).
To ensure that guilty pleas are knowingly and intelli-
gently made, Rule 11 requires that a district court accept-
ing a guilty plea “address the defendant personally in
open court,” informing the defendant of six categories of
rights and ensuring that he or she understands them—
an exchange known as a Rule 11 colloquy. FED. R. CRIM. P.
11(c); Jeffries, 265 F.3d at 558. Those topics which the
district court must address include the nature of the
charge to which the defendant is pleading guilty; the
maximum and mandatory minimum penalties authorized
by statute; and the required use of the federal sentencing
guidelines when determining an appropriate sentence,
including the authority to depart from those guidelines
when circumstances warrant. FED. R. CRIM. P. 11(c)(1). The
court must also advise the defendant that if he is ques-
tioned under oath, on the record, and in the presence of
an attorney, his statements may be used against him
in a subsequent prosecution for perjury. FED. R. CRIM.
P. 11(c)(5).
We believe that the district court substantially met
the requirements of Rule 11, and that Blalock has failed
No. 02-1832 3
to identify any shortcomings that rise to the level of
plain error. First, we note that Rule 11 itself does not
require rigid adherence to its provisions, but allows
for some variance in its application. See FED. R. CRIM. P.
11(h) (“Any variance from the procedures required by
this rule which does not affect substantial rights shall
be disregarded.”); United States v. Fernandez, 205 F.3d
1020, 1024 (7th Cir. 2000) (“[T]his court does not require
literal compliance with the Rule.” (quotation omitted)).
We have previously held that the validity of a Rule 11
colloquy is based on the totality of the circumstances:
for example, our review of whether a defendant under-
stood the charge against him depends on “the complexity
of the charge, the defendant’s level of intelligence, age
and education, whether the defendant was represented
by counsel, the judge’s inquiry during the plea hearing
and the defendant’s statements, as well as the evidence
proffered by the government.” United States v. LeDonne,
21 F.3d 1418, 1423 (7th Cir. 1994). Considering these
factors in the present case, we cannot say that Blalock
did not understand the conspiracy charge he faced. No
issue has been raised relating to Blalock’s intelligence,
age, or education, and he was represented by counsel
throughout the proceedings. While conspiracy is gen-
erally considered a rather complicated offense, see United
States v. Wetterlin, 583 F.2d 346, 350 (7th Cir. 1978), we
believe that the court’s explication of the charge (Plea Tr.
at 5-6), coupled with the prosecution’s recitation of the
factual basis for the charge (Plea Tr. at 15-17), were
sufficient to ensure that Blalock knew and understood
the nature of the offense to which he was pleading guilty.
As to the matter of relevant conduct, Rule 11 only
requires that the court inform the defendant of the maxi-
mum and minimum penalties authorized under the ap-
plicable statute, as well as the fact that the particular
sentence imposed will be determined by reference to the
4 No. 02-1832
federal sentencing guidelines (which, of course, includes
the authority to depart in certain circumstances). FED. R.
CRIM. P. 11(c)(1). The court here satisfied these require-
ments, noting during the change-of-plea hearing that
Blalock’s sentence would be based on the amount of
drugs found to be “relevant conduct” with respect to his
offense of conviction, explaining the possibility of depar-
ture from the guidelines, and ensuring that Blalock
had discussed the application of the guidelines with his
attorney. (Plea Tr. at 9 & 14.) Subsumed within the admo-
nition that the sentencing guidelines will govern the
fashioning of the actual sentence is the fact that rele-
vant conduct beyond the offense of conviction will be
considered, as required by the guidelines. See U.S.S.G.
§ 1B1.3 (2003).
Blalock further argues that the district court’s failure
to advise him of the potential for a perjury prosecution
based on any materially false statements provided un-
der oath, on the record, and in the presence of an attorney,
as required by Rule 11(c)(5), amounts to plain error re-
quiring invalidation of his guilty plea. Blalock contends
that this omission is especially egregious given that he
was subject to a sentence enhancement for obstruction of
justice under guideline § 3C1.1. The government concedes
that such an admonition was not given by the court, but
suggests that such an omission does not affect Blalock’s
“substantial rights,” and therefore should be disregarded
as instructed in Rule 11(h). We agree with the govern-
ment. It does not appear that Blalock provided any false
statements in response to questions put to him by the
court during his change of plea hearing. Rather, the
perjurious statements that led to the sentence enhance-
ment were made by Blalock during his testimony before
a federal grand jury on February 5, 2002. During his
appearance before the grand jury, Blalock was clearly
informed of the consequences of providing false state-
No. 02-1832 5
ments. (See Appellee’s App. C at 36.) Therefore, we cannot
say that the district court’s failure to advise Blalock of
the consequences of making false or perjurious state-
ments during his change of plea hearing amounted to
plain error.
Blalock next challenges the district court’s imposition
of various sentence enhancements. We review the dis-
trict court’s factual findings underpinning the enhance-
ments for clear error. United States v. Brumfield, 301
F.3d 724, 730 (7th Cir. 2002) (“[W]e shall reverse the
factual findings of the district court only if, after review-
ing the entire record, we are left with the firm and defi-
nite conviction that a mistake has been made.” (quota-
tion omitted)). Looking to the entire record, we believe
there were adequate bases for the imposition of the sen-
tence enhancements.
First, Blalock claims that the relevant conduct deter-
mination of the quantity of drugs attributable to him
was based on the testimony of “crack addict-informants”
who should not have been trusted. In reviewing factual
findings, however, “we defer to the district court’s deter-
mination of witness credibility, which can virtually never
be clear error.” United States v. Noble, 246 F.3d 946, 953
(7th Cir. 2001). We find no clear error in the district
court’s determination of the quantity of drugs involved
here. There was sufficient testimony on which the dis-
trict court could have based its determination. Even if
the government’s witnesses were crack addict infor-
mants, “[t]he trial court is entitled to credit testimony
that is totally uncorroborated and comes from an admitted
liar, convicted felon, or large scale drug-dealing, paid
government informant.” United States v. Partee, 301 F.3d
576, 579 (7th Cir. 2002) (quotation omitted).
Blalock also contends that the enhancement for the use
of minors was also clearly erroneous because it was not
6 No. 02-1832
based on “reliable evidence.”* Under sentencing guide-
line § 3B1.4, the offense level is increased by two if
the defendant used or attempted to use a minor to com-
mit a crime. Blalock’s challenge rests on the inadequacy
or unreliability of witness testimony at his sentencing
hearing, but, as with the challenge to the relevant con-
duct determination, we review this objection under a
deferential clearly erroneous standard. In this case,
there was sufficient evidence to support a finding that
Blalock used minors in his drug-distribution activities,
and we believe the district court did not clearly err in
crediting the testimony as it did.
Finally, Blalock argues that the district court did not
adequately support its obstruction-of-justice enhance-
ment with specific factual findings, and that the enhance-
ment is therefore defective. While we agree that the dis-
trict court was not as explicit as it could have been in
justifying its decision to impose the two-level enhance-
ment, we do not believe that its ultimate decision to im-
pose the enhancement was clearly erroneous. There is
sufficient evidence in the record to support the court’s
finding that Blalock’s statements before the grand jury
were false, given his own testimony at his change of
plea hearing—when the court asked Blalock if the gov-
ernment’s recitation of the factual basis underlying the
plea was essentially correct, he answered affirmatively
(Plea Tr. at 17)—as well as the testimony of several wit-
nesses at the sentencing hearing—for example, the gov-
ernment points to the testimony of George Jones and
* Insofar as Blalock argues that an enhancement for the use
of minors is inappropriate when the defendant himself was un-
der 21 years of age at the time of the offense, that argument
is foreclosed by our decision in United States v. Ramsey, 237
F.3d 853 (7th Cir. 2001). We decline to reconsider that decision
here.
No. 02-1832 7
Michael Young, whom the court explicitly found to be
credible (Sent. Tr. at 174-75). Given these discrepancies,
it was not clearly erroneous for the district court to
have found that Blalock lied to the grand jury.
For the foregoing reasons, Blalock’s guilty plea and
the sentence imposed by the district court pursuant to
that plea are AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-6-03