United States v. Sumner, Thomas J. ( 2003 )


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  •                             In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 02-1335
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    THOMAS J. SUMNER,
    Defendant-Appellant.
    ____________
    Appeal from the United States District Court
    for the Southern District of Illinois.
    No. 99 CR 40079—J. Phil Gilbert, Judge.
    ____________
    ARGUED SEPTEMBER 26, 2002—DECIDED APRIL 8, 2003
    ____________
    Before COFFEY, ROVNER, and DIANE P. WOOD, Circuit
    Judges.
    DIANE P. WOOD, Circuit Judge. This is Thomas Sum-
    ner’s second effort to obtain some relief from a 132-month
    sentence for drug dealing. On his first appeal to this court,
    he was partially successful: we vacated his sentence and
    remanded for resentencing because the district court had
    not made adequate factual findings linking his uncharged
    trafficking of a substantial amount of crack cocaine to the
    offense of conviction. United States v. Sumner, 
    265 F.3d 532
    (7th Cir. 2001) (Sumner I). At the resentencing hearing,
    the district court made the necessary factual findings
    and then imposed the same 132-month sentence as before.
    2                                             No. 02-1335
    Sumner has appealed again, but this time we find no merit
    in his arguments and therefore affirm.
    I
    Although we reviewed the facts in our earlier opinion,
    we repeat the highlights for ease of reference. In August
    1999, the FBI and the Federal Housing Drug Task Force
    conducted a sting operation against the then-seventy-five-
    year-old Sumner, who was selling drugs from his home
    in Carrier Mills, Illinois. Three different confidential
    sources purchased cocaine from Sumner. One named cus-
    tomer, Chrissy Smith, reported upon leaving his residence
    that she had just seen someone purchase a large amount
    of crack cocaine. On September 15, 1999, agents executed
    a search warrant and found in the house powder cocaine
    and marijuana, drug paraphernalia, and firearms. No
    crack cocaine was recovered during the search.
    Sumner was arrested and, after waiving his Miranda
    rights, made a series of statements concerning the tim-
    ing, amounts, and types of drug sales he had engaged in
    beginning in “possibly the winter of 1997.” Sumner specifi-
    cally admitted to selling crack cocaine for a period of two
    months in 1997. He stopped, he explained, after he wit-
    nessed one of his customers in the throes of a convulsive
    reaction to the crack; from that time onward, he limited
    his stock to powder cocaine and marijuana. (Smith, of
    course, claimed otherwise, as she reported a crack sale as
    late as August of 1999.) Sumner said that Troy Ash had
    been his principal supplier until August 1998, when Ash
    was arrested.
    At a proffer interview, Sumner provided still more
    information, confirming and enlarging upon information
    he provided in the post-arrest interview. He again named
    Ash as his supplier until Ash’s arrest. After Ash left
    the picture, Sumner turned, in July 1999, to a man named
    No. 02-1335                                               3
    Mark LNU (or last name unknown, in FBI jargon—we will
    call him “Mark”). Mark supplied Sumner until Sumner’s
    September 1999 arrest. Sumner admitted that he had
    allowed others to cook powder cocaine into crack cocaine
    at his residence. Cooperating witnesses confirmed many
    of these details, although at least one source claimed to
    have purchased powder cocaine from Sumner as early as
    April 1999, which was three months before Sumner claims
    he located Mark as a source.
    The post-arrest interview formed the basis for the pre-
    sentence report (PSR). Based on the amounts and timing
    of sales Sumner reported in the post-arrest interview, the
    Probation Office determined that he sold 56.7 grams of
    crack cocaine in the winter of 1997 (with Ash as sup-
    plier), 198.45 grams of powder cocaine from January to
    July 1998 (again with Ash as supplier), 198.45 grams of
    powder cocaine from April to September 1999 (with Mark
    as supplier), and 34.3 grams of marijuana.
    Sumner made several objections to the PSR. In them, he
    presented a very different account of his dealings than he
    had done in his post-arrest and proffer interviews. Many
    of the PSR findings, he now claimed, lacked “sufficient
    indicia of reliability.” He denied ever receiving powder
    cocaine from Ash. Instead, according to Sumner’s new
    account, Ash gave him only seven grams of crack cocaine.
    Along similar lines, Sumner claimed that he had received
    only six ounces of powder cocaine from Mark. Sumner
    summarized the amounts that he believed could be
    counted as relevant conduct as follows: seven grams of
    crack cocaine, six ounces (which corresponds to approxi-
    mately 170 grams) of powder cocaine, and 34 grams of
    marijuana. The PSR, in contrast, recommended that the
    court find 56.7 grams of crack, 397 grams of powder cocaine,
    and 34 grams of marijuana. When specifically asked about
    the relevant-conduct issue, defense counsel reiterated
    the amounts Sumner was advocating. Defense counsel
    4                                              No. 02-1335
    also expressed concern that the PSR erroneously found
    that at least some of the relevant conduct took place dur-
    ing Sumner’s probation from August 1996 to October
    1998 on unrelated charges of public indecency.
    At the ensuing sentencing hearing, the court heard
    evidence from Agent Kirkham, who had been present at
    both the post-arrest and proffer interviews. Agent Kirk-
    ham testified about statements Sumner made on both
    occasions. Sumner also testified, changing his story for
    a third time. In contradiction to his post-arrest interview,
    proffer interview, and objections to the PSR, Sumner
    now claimed that he had briefly dealt in crack cocaine,
    but in 1992 rather than 1997, and that he never did so
    again. He also stated that he had no other drug dealings
    until he began selling powder cocaine in March of 1999.
    Sumner also specifically testified that he did not sell any
    drugs during his probation, between October 1997 and
    October 1998. He explained that he kept marijuana around
    because “girls” liked it, but that the “girls” in question
    were always of adult age. Sumner was then forced to ad-
    mit that a 16-year-old girl was present in his house at
    the time of his arrest.
    The district court rejected all of Sumner’s shifting
    stories and effectively adopted the PSR. It sentenced him
    to 132 months’ imprisonment, based on 1,213.72 kilo-
    grams of marijuana equivalent as well as guidelines en-
    hancements for violation of his probation and possession
    of firearms, and a reduction for acceptance of responsibil-
    ity. Sumner then appealed.
    On appeal, we vacated his sentence and remanded for
    resentencing on a single ground: that the district court had
    failed to make adequate findings of fact whether the crack
    cocaine dealings in 1997 were part of the same course
    of conduct for sentencing purposes. See Sumner I, 
    265 F.3d at 539-40
    . Although Sumner had forfeited that issue by
    No. 02-1335                                                5
    failing to raise it before the district court, we nonetheless
    found plain error. 
    Id.
    Sumner took the remand as a more open-ended invitation
    to continue challenging his sentence. As contemplated
    by our mandate, he filed supplemental objections to inclu-
    sion of the crack cocaine dealings. In addition, however, he
    challenged the inclusion of 198.45 grams of powder cocaine
    allegedly received from Ash. This was an objection Sum-
    ner had initially made to the PSR, but he did not include
    it in his first appeal to this court. Sumner also renewed
    another of his objections to the PSR—again, one he had not
    raised in his first appeal—that he did not deal in crack or
    powder cocaine during his probation. The government
    filed a Supplemental Addendum to the PSR in opposition.
    At the resentencing hearing, the district court heard
    additional testimony from Agent Kirkham, but nothing
    more from Sumner. The district court specifically found
    Agent Kirkham’s testimony credible and specifically re-
    jected Sumner’s. It found that the 1997 crack dealings
    should be included in the relevant conduct calculations,
    because they were sufficiently linked in terms of similarity,
    regularity, and temporal proximity to Sumner’s sales of
    powder cocaine. Finally, the court found that Sumner’s
    dealings with drugs supplied by Ash took place during
    Sumner’s probation. The court again sentenced Sumner
    to 132 months’ imprisonment. This appeal followed.
    II
    We turn first to Sumner’s argument that the district court
    improperly allowed the government to present new testi-
    mony at the remanded sentencing hearing. This conten-
    tion presents a question of law, which we generally re-
    view de novo. See Jaffee v. Redmond, 
    142 F.3d 409
    , 412 (7th
    Cir. 1998).
    6                                              No. 02-1335
    Sumner’s sole authority for his argument is our decision
    in United States v. Wyss, 
    147 F.3d 631
     (7th Cir. 1998).
    In Wyss, the defendant was charged with marijuana dis-
    tribution and was sentenced based on uncharged posses-
    sion of cocaine, at least some of which defendant claimed
    he consumed rather than distributed. We held that any
    cocaine Wyss had for personal consumption could not
    be included in the relevant conduct analysis for distribu-
    tion, and that it was the government’s burden to prove
    the relative amounts devoted to consumption and distrib-
    ution. The case was remanded for resentencing, but impor-
    tantly, because Wyss had specifically objected to inclusion
    of the personal-use cocaine in the relevant conduct deter-
    mination and the government had offered no contrary
    evidence, we held that the personal-use percentage ques-
    tion was now closed: “[t]he government was entitled to
    only one opportunity to present evidence on the issue.” 
    Id. at 633
    .
    Sumner contends that Wyss stands for the broad proposi-
    tion that the government may never offer new evidence
    on a sentencing remand. He sees no difference between
    an issue that was fully explored at the initial sentencing
    hearing and one that received no attention, but was never-
    theless reviewed on appeal under the plain error stan-
    dard. We disagree. Such a rule would require the govern-
    ment to anticipate and present evidence on every con-
    ceivable issue that might later be found to constitute
    plain error on appeal. This would impose an impossible
    burden on the government. Furthermore, it would actually
    give the defendant a benefit from plain error review of a
    forfeited issue, instead of merely relieving him or her from
    the consequences of failure to preserve the issue. Nothing
    in FED. R. CRIM. P. 52(b) supports such a consequence. We
    conclude that the Wyss rule does not preclude the gov-
    ernment, on a sentencing remand, to introduce evidence
    relevant to points that the defendant forfeited but that
    were considered on plain error review by this court.
    No. 02-1335                                               7
    III
    We turn next to Sumner’s challenges to three separate
    factual findings made by the district court at resentenc-
    ing: first, whether the district court erred in finding that
    the crack and powder cocaine dealings were part of the
    same course of conduct for sentencing purposes (the issue
    we remanded to the court); second, whether the district
    court erred in finding that half of Sumner’s powder co-
    caine dealings were also part of the relevant course of
    conduct; and third, whether the district court erred in
    determining that Sumner committed drug offenses during
    the term of his probation, warranting a two-point enhance-
    ment. To the extent that these arguments are properly
    before us (which we discuss below), our review is for
    clear error only. See United States v. Morrison, 
    207 F.3d 962
    , 967 (7th Cir. 2000); United States v. Edwards, 
    115 F.3d 1322
    , 1330 (7th Cir. 1997).
    A
    First, we take up Sumner’s claim that the district court
    erred in finding that his crack cocaine dealings were
    relevant conduct for sentencing purposes. The core of
    Sumner’s contention is that the alleged crack cocaine
    dealings lack the similarity, regularity, and temporal
    proximity to the later powder cocaine dealings required
    by Section 1B1.3 of the Sentencing Guidelines to justify
    treating them as part of a single course of conduct.
    In calculating a defendant’s base offense level under the
    Sentencing Guidelines, “the sentencing court must con-
    sider types and quantities of drugs not specified in the
    counts of conviction but that were ‘part of the same
    course of conduct or common scheme or plan’ as the con-
    victed offenses.” United States v. Beler, 
    20 F.3d 1428
    , 1431
    (7th Cir. 1994) (quoting U.S.S.G. § 1B1.3(a)(2)); United
    States v. Acosta, 
    85 F.3d 275
    , 279 (7th Cir. 1996). This
    8                                               No. 02-1335
    “relevant conduct” rule requires sentencing courts to
    consider quantities of drugs not specified in the counts
    of conviction, provided “the unconvicted activities bore
    the necessary relation to the convicted offense.” United
    States v. Duarte, 
    950 F.2d 1255
    , 1263 (7th Cir. 1991). In
    general, offenses are part of the same course of conduct
    if they are “part of a single episode, spree, or ongoing
    series of offenses.” U.S.S.G. § 1B1.3(a)(2), Application
    Note 9(B). Courts also look for “a strong relationship
    between the uncharged conduct and the convicted offense,
    focusing on whether the government has demonstrated
    a significant similarity, regularity, and temporal proxim-
    ity.” Acosta, 
    85 F.3d at 281
     (citations and quotation marks
    omitted). When one of these factors is relatively weak or
    absent, a stronger showing of the other two will support
    a finding of relevant conduct. See U.S.S.G. § 1B1.3(a)(2),
    Application Note 9(B); see also Acosta, 
    85 F.3d at 281
    ;
    United States v. Sykes, 
    7 F.3d 1331
    , 1336 (7th Cir. 1993). In
    Sumner I, it was the fact that the district court had not
    made any findings at all on the subject that required a
    remand. See 
    265 F.3d at 540
    .
    The district court found that the crack dealings were
    similar for several reasons, including the facts that com-
    parable quantities of drugs were sold, all sales were
    made from Sumner’s residence, and Sumner was involved
    (either actively or passively) in the cooking of powder
    cocaine into crack at his residence. Even Sumner conceded
    that he was selling “2 ounces of powder cocaine a month” for
    a seven-month period prior to his September 1999 arrest,
    which is not very different from the “quarter ounce per
    week of crack” in 1997 to which he admitted. The fact
    that the Guidelines treat powder and crack cocaine differ-
    ently for sentencing purposes in no way prevents the two
    substances from being included in one course of conduct.
    Indeed, we have cases in which two entirely different
    substances meet that test. See, e.g., Acosta, 
    85 F.3d at
    281
    No. 02-1335                                                9
    (finding cocaine as relevant conduct where only heroin
    charged). We find no clear error in the district court’s
    finding that the requisite similarity existed, based on
    the facts it noted.
    Sumner next challenges the district court’s finding
    of regularity. In Sykes, this court defined “regularity” as
    “repeated acts or events that take place ‘[a]t fixed or cer-
    tain intervals’ or ‘[i]n accordance with some consistent
    or periodical rule or practice.’ ” 
    7 F.3d at 1337
     (quoting
    BLACK’S LAW DICTIONARY 1286 (6th ed. 1990)). Under
    this definition, Sumner’s argument is a non-starter. By
    his own admission, Sumner dealt a quarter ounce of crack
    cocaine per week (and thus two ounces per month) over a
    two-month period in 1997, followed by a similar monthly
    distribution of powder cocaine for a seven-month period.
    These transactions easily meet the Sykes definition.
    Perhaps recognizing this, Sumner also claims that the
    district court erred by relying exclusively on statements
    he made at the post-arrest interview regarding the
    amount and the timing of his 1997 crack sales. A defen-
    dant has the burden of producing at least some evidence
    that the PSR is unreliable or inaccurate beyond a bare
    denial, if the facts set forth in a PSR bear “sufficient
    indicia of reliability to support [their] probable accuracy.”
    U.S.S.G. § 6A1.3(a); United States v. Coonce, 
    961 F.2d 1268
    , 1280-81 (7th Cir. 1992); Acosta, 
    85 F.3d at 283
    ;
    United States v. Lanterman, 
    76 F.3d 158
    , 161 (7th Cir.
    1996). If, however, the PSR is contradictory, inconsistent,
    or conclusory, the burden lies in the first instance with the
    government to produce evidence from which the district
    court can make a reliable finding. See United States v.
    Bacallao, 
    149 F.3d 717
    , 720 n.2 (7th Cir. 1998); Acosta, 
    85 F.3d at 283
    . Sumner claims that the PSR here was so flimsy
    that the burden lay on the government to support its
    allegations.
    10                                              No. 02-1335
    This puts him in an odd position, however, given the
    district court’s decision to credit Agent Kirkham’s account
    of Sumner’s post-arrest and proffer interviews. Sumner’s
    own statements, as reported by Agent Kirkham, provided
    the basis for the PSR’s conclusions. The district court
    was entitled to credit those admissions even in the ab-
    sence of independent evidence corroborating them. See
    United States v. Galbraith, 
    200 F.3d 1006
    , 1012 (7th Cir.
    2000); see also United States v. Cedano-Rojas, 
    999 F.2d 1175
    , 1180 (7th Cir. 1993) (testimony of one witness, even
    a biased witness, may be sufficient to support a finding
    of fact); United States v. Garcia, 
    66 F.3d 851
    , 857 (7th Cir.
    1995) (trial court may credit uncorroborated testimony of
    a convicted felon and government informant). The only
    wrinkle here is that Sumner later retracted his post-
    arrest admissions, leading to a swearing match at the
    sentencing and resentencing hearings between Sumner
    and Agent Kirkham. On both occasions, the district
    court expressly resolved the credibility contest in favor of
    Agent Kirkham. That is a call we have no reason to dis-
    turb. The district court was also entitled to conclude that
    the most likely explanation for Sumner’s sudden change
    in memory at the sentencing hearing—and in particular
    his outright denial that he sold any crack at all after
    1992—is that Sumner was made aware of the implica-
    tions of his earlier statements for the severity of his
    eventual sentence. This, in a sense, was another credibility
    call that there is no reason to question on clear error
    review.
    Last, we consider the district court’s finding of tem-
    poral proximity between the crack and the cocaine sales.
    Sumner relies principally on the time that elapsed be-
    tween his 1997-98 dealings in cocaine supplied by Ash and
    his 1999 dealings as supplied by Mark to show a lack of
    the necessary temporal proximity. We have held in the
    past, however, that an involuntary respite from criminal
    No. 02-1335                                             11
    conduct does not preclude a finding of temporal proximity.
    See Cedano-Rojas, 
    999 F.2d at 1180
    ; United States v.
    Nunez, 
    958 F.2d 196
    , 198 (7th Cir. 1992). Whatever lapse
    occurred between the Ash and the Mark phase of Sum-
    ner’s dealings was involuntary on his part and had more
    to do with Ash’s August 1998 arrest than any crisis of
    conscience on Sumner’s part. Finally, Sumner admitted
    that he distributed both crack and powder cocaine that
    he received from Ash. To the extent his dealings in the
    two substances are similar, the relevant temporal lapse
    is not between the 1997 crack and the 1999 powder cocaine
    dealings, but rather between the crack and powder cocaine
    dealings leading up to Ash’s August 1998 arrest and Sum-
    ner’s turning to Mark as a substitute supplier sometime in
    the spring or summer of 1999. Depending on how much
    cocaine Sumner had on hand when Ash was arrested, the
    lapse in actual dealing may have been even shorter.
    In sum, we find no clear error in the district court’s
    conclusion that the 56.7 grams of crack cocaine should
    be included as relevant conduct for purposes of comput-
    ing his guideline level.
    B
    Sumner would like us to resolve two more points as
    well: whether the district court erred in including half of
    his powder cocaine dealings for relevant conduct pur-
    poses, and whether the court should have imposed a two-
    point enhancement under Section 4A1.1(d) of the Sen-
    tencing Guidelines for violation of the probation he was
    serving for his earlier public indecency offense. We con-
    clude that neither point is open to him anymore, and thus
    we do not consider them.
    With respect to the powder cocaine argument, the gov-
    ernment has argued that Sumner’s failure to raise it on
    his first appeal means that he has waived it for all time.
    We are not sure that strict waiver applies in these cir-
    12                                               No. 02-1335
    cumstances, given the fact that Sumner did file an appro-
    priate objection in the district court to the PSR, but we
    are certain that the law-of-the-case doctrine precludes
    him from raising it now. We have repeatedly stated that
    changes in litigation position on successive appeals are
    barred except where justified by intervening authority, new
    and previously undiscoverable evidence, or other changed
    circumstances. See People Who Care v. Rockford Bd. of
    Educ., 
    171 F.3d 1083
    , 1088 (7th Cir. 1999) (collecting cases);
    see also United States v. Wilson, 
    131 F.3d 1250
    , 1253 (7th
    Cir. 1997) (vacating a newly assigned offense level “because
    the district court exceeded the scope of our remand in
    reassessing the question of relevant conduct”); United
    States v. Parker, 
    101 F.3d 527
    , 528 (7th Cir. 1996) (“A party
    cannot use the accident of a remand to raise in a second
    appeal an issue that [she] could just as well have raised
    in the first appeal because the remand did not affect it.”).
    None of those exceptions applies here, and thus we do
    not consider this point further.
    The posture of Sumner’s argument about the two-point
    enhancement under Section 4A1.1(d) of the Sentencing
    Guidelines for violation of his probation served for his
    earlier public indecency offense is the same. As with his
    powder cocaine claims, Sumner made objections to the PSR,
    but he did not raise the issue of the probation enhancement
    in his first appeal. It too cannot be raised at this late date,
    because of the law-of-the-case doctrine. (Sumner is not
    losing anything here, because it is a matter of record that
    his probation officially ran from August 1996 to October
    1998, and he admitted receiving both crack and powder
    cocaine from Ash from the winter of 1997 through August
    1998.)
    No. 02-1335                                           13
    IV
    For these reasons, we AFFIRM the judgment of the dis-
    trict court.
    A true Copy:
    Teste:
    ________________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—4-8-03