United States v. Pittman, Maurice C. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1812
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MAURICE C. PITTMAN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 01 CR 30108—William D. Stiehl, Judge.
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ARGUED JANUARY 22, 2004—DECIDED NOVEMBER 12, 2004
____________
Before EASTERBROOK, MANION, and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. In December 2002, a federal
court jury convicted Maurice C. Pittman of distributing ap-
proximately 6.3 grams of crack cocaine in violation of 21
U.S.C. § 841(a)(1). The jury also returned a finding that the
amount of controlled substances attributable to Pittman in
the distribution charge was at least 5 grams, but less than 50
grams, of cocaine base. The district court sentenced Pittman
to 390 months’ imprisonment to be followed by a term of su-
pervised release. On appeal, Pittman challenges the district
court’s denial of his pretrial motion to suppress, and the
court’s failure to provide a limiting instruction to the jury.
2 No. 03-1812
In supplemental briefing to this court, concluded October 5,
2004, Pittman also contends that his sentence was uncon-
stitutional.
Pittman’s arrest resulted from a traffic stop, the details
of which form the basis of his motion to suppress. On June 20,
2001, Sergeant Gillespie of the Alton Police Department
observed Pittman enter a white Cadillac and begin driving.
Gillespie was aware of Pittman’s prior criminal history for
robbery, weapons possession, and cocaine trafficking, and
Gillespie had recently received information that Pittman
was distributing cocaine and crack cocaine in parking lots
in Alton. Gillespie placed Pittman’s vehicle under surveil-
lance, and noticed that the vehicle did not have a license
plate and contained no visible evidence of registration. He
then contacted the police dispatcher and requested that a
uniformed Alton police officer in a marked patrol car con-
duct a traffic stop for failure to properly display a registra-
tion tag. While waiting for the officer to arrive, Gillespie
observed Pittman stop in a liquor store parking lot. Pittman
remained in his car with it running, and Amanda Schoeneweis
emerged from a car parked nearby and entered Pittman’s
vehicle. At that time, a marked Alton patrol car arrived driven
by Sergeant Janniece Young, who approached Pittman’s car
from the rear. Young testified that she recognized both
Pittman and Schoeneweis, and was aware that both had
lengthy criminal records. Young further testified that she
did not see either a license plate or a temporary tag on the
windshield on Pittman’s vehicle. As she approached the
vehicle, she observed Schoeneweis lean forward positioning
herself below the dashboard, then returning upright to sit
back down. From that behavior, Young suspected that
Schoeneweis was attempting to conceal something. When
Pittman was unable to produce his license and proof of in-
surance, Young placed him under arrest. In the subsequent
search, she found $200 cash on Pittman, as well as a dollar
bill folded in a manner indicative of use to transport narco-
No. 03-1812 3
tics, which later tested positive as containing cocaine residue.
She also noted that a valid temporary registration plate was
located inside the front windshield on the driver’s side.
Schoeneweis was also arrested. She later admitted to se-
creting crack cocaine in her body when the officer arrived,
and removed 6.3 grams of cocaine base from her body.
Pittman contends that there was no basis for Young to
execute the traffic stop, and therefore that all evidence that
resulted from that stop should have been suppressed. As
support for that, he points to Young’s incident report, in
which Young stated:
Officer was advised by dispatch that Special Agent
Richard Gillespie was currently following a vehicle, a
1994 Cadillac El Dorado, bearing applied-for Illinois
registration.
Pittman contends that the incident report reveals that
Gillespie must have known that the vehicle bore applied for
Illinois registration, and therefore that Young had no basis
for the stop. On re-direct, Young acknowledged that another
part of her incident report was inaccurate, in which Young
stated that Gillespie told her that Pittman was en route to
Schmidt Liquor Store. Young in fact spoke only to the dis-
patcher and did not have direct contact with Gillespie. Young
also acknowledged that the statement in the incident report
concerning the applied-for plates could be incorrect as well.
Gillespie and Young both testified that they did not see the
temporary registration prior to the time Young approached
Pittman’s car. The district court found that because of the
placement of only one temporary tag in the lower front
window, neither Gillespie nor Young was able to see any
evidence of registration, and therefore they both had
probable cause to believe that Pittman was committing a
traffic violation.
Pittman’s motion to suppress rests entirely on its chal-
lenge to that fact finding by the district court. We review
4 No. 03-1812
the district court’s determination of probable cause de novo,
but review findings of fact and credibility determinations
for clear error. United States v. Cashman, 216 F.3d 582, 586
(7th Cir. 2000); United States v. Sawyer, 224 F.3d 675, 679
(7th Cir. 2000). The testimony at trial at best establishes a
contradiction in Young’s testimony as to when she learned
that the vehicle bore applied-for tags. Young herself ac-
knowledged that another statement in her incident report
could not have been accurate, and that her statement as to
what the dispatcher conveyed regarding the tags may have
also been incorrect. Pittman repeatedly argues that the
district court was required to credit the statement in the
incident report, because “the only place the dispatcher could
obtain the information in Young’s incident report that
Pittman’s car bore an ‘applied-for Illinois registration’ was
from Gillespie.” That misses the point. The question is
whether Young, in writing the incident report, accurately
conveyed what the dispatcher said, or whether she inadver-
tently attributed to the dispatcher information (the ex-
istence of the applied-for license) that she actually learned at
a later time. Her testimony established that she was
unaware of the registration tags until she approached the
vehicle, and she acknowledged at trial that her incident
report could be incorrect. The determination as to what
actually transpired is a matter within the district court’s
purview, and there is no reason on this record to question
the court’s finding on the matter. The record provides ample
support for the finding that neither Gillespie nor Young
were aware of the registration tags in the front of the vehicle
at the time of the stop. Therefore, the stop was lawful, and
the court properly denied the motion to suppress.
Pittman next argues that the district court erred in fail-
ing to provide a limiting instruction after admitting, under
Fed. R. Crim. P. 404(b), evidence of Pittman’s prior drug
dealings. Rule 404(b) provides that evidence of other crimes
or acts is not admissible to prove the character of the person
No. 03-1812 5
in order to demonstrate action in conformity therewith, but
it may be admissible for other purposes including, inter alia,
proof of motive, opportunity, or intent. In this case, the
government introduced evidence of past drug dealing by
Pittman through testimony by Schoeneweis and by Drug
Enforcement Agency (DEA) Agent Harold Watson.
Schoeneweis testified without objection to her prior drug
dealings with Pittman. She was also asked by the government
for the identity of other persons to whom Pittman sold drugs.
Over defendant’s objection, she provided two names and ac-
knowledged that there could be others. DEA Agent Watson
testified regarding Pittman’s confession. Asked if Pittman
provided any information about his drug dealing history,
Watson named several suppliers going back to 1992.
In response to the testimony by Schoeneweis and Watson,
Pittman offered an instruction to limit the jury’s use of the
Rule 404(b) evidence. The district court refused the instruc-
tion, holding that the other acts evidence was intricately
related to the charge in the indictment, and that the state-
ments by Pittman were an admission against interest.
In this appeal, Pittman first clarified that he is not chal-
lenging the admission of the evidence of drug dealing with
individuals other than Schoeneweis. He is only arguing that
a limiting instruction should have been given. Moreover, he
does not challenge the testimony from Schoeneweis of her
prior drug dealings with Pittman. Pittman concedes on
appeal that her drug dealings with Pittman were intricately
related to the charge in the indictment, and therefore are
not considered Rule 404(b) evidence. Therefore, his chal-
lenge is limited to the contention that the district court
erred in failing to give a limiting instruction regarding
evidence of drug deals which did not involve Schoeneweis.
We need not consider whether a limiting instruction was
required, because even if the failure to provide the instruc-
tion was error, it was harmless. The submission of an incor-
rect jury instruction is harmless error if a properly in-
6 No. 03-1812
structed jury would have returned the same verdict. United
States v. Folks, 236 F.3d 384, 390 (7th Cir. 2001). That
standard is met here. The evidence of Pittman’s guilt was
overwhelming. Officer Gillespie observed Pittman pull into
the parking lot and wait while Schoeneweis joined him in
the car. DEA Agent Watson testified as to Pittman’s con-
fession that Pittman in fact provided the crack cocaine to
Schoeneweis in the car, which Schoeneweis secreted in her
body, and that she paid him $130 or $140 for it. The search
incident to the arrest found $200 cash on his person, as well
as a dollar bill folded in a manner often used to carry crack,
and with visible residue of crack cocaine on it that tested
positive in a lab. Furthermore, Schoeneweis, in her testi-
mony, confirmed the details of that drug transaction, and
Officer Young observed movements by Schoeneweis con-
sistent with someone attempting to hide drugs in her body.
Schoeneweis subsequently removed 6.3 grams of cocaine
base from her body after the arrest. Finally, Schoeneweis
testified at length as to her history of drug deals with Pittman.
In light of that evidence, the testimony that Pittman also
engaged in drug dealing with other persons is insignificant.
Pittman does not challenge the voluntariness of his con-
fession. In light of the overwhelming evidence of Pittman’s
guilt, the failure to provide a limiting instruction as to the
other acts evidence was harmless.
Pittman attempts to avoid that conclusion by arguing that
the error was a structural one, not subject to the harmless
error analysis. As support, he cites our decision in United
States v. Harbin, 250 F.3d 532 (7th Cir. 2001). Harbin in fact
requires the opposite conclusion. In Harbin, we recognized
that some errors affect the framework in which the trial
proceeds, which render the criminal trial fundamentally un-
fair or an unreliable vehicle for determining guilt or inno-
cence, and are therefore reversible error per se. Id. at 542-
43. Such “structural” errors are few in number, including er-
rors such as the complete denial of counsel, a biased judge,
No. 03-1812 7
racial discrimination in the selection of the grand jury, the
denial of self-representation, the denial of a public trial,
and a defective reasonable doubt instruction. Id. at 543. We
also cautioned in Harbin, however, that most errors during
a trial do not fall within that category. In particular, we
noted that trial errors occurring during the presentation of
the case to the jury are generally amenable to harmless
error analysis because they may be quantitatively assessed
in the context of the evidence as a whole. Id. at 544. The
alleged error in denying a limiting instruction is precisely
such a “trial error.” Even assuming that the jury, in the ab-
sence of a limiting instruction, used the other acts evidence
for an impermissible purpose, we can assess whether the
jury beyond a reasonable doubt would have returned the
same verdict in light of the other evidence properly before
it. Because the impact of that error on the trial is capable
of assessment at this stage, and the error did not affect the
framework in which trial proceeded or the fundamental
integrity of the trial process, it does not require automatic
reversal. We have already concluded that the provision of
the allegedly improper instruction was harmless error.
Finally, Pittman alleges that his sentence was unconstitu-
tional under Blakely v. Washington, ___ U.S. ___, 124 S.Ct.
2531 (2004), as interpreted by United States v. Booker, 375
F.3d 508 (7th Cir. 2004). Those cases hold that a defendant
has the right to have a jury decide factual issues that will
increase the defendant’s sentence. United States v. Shearer,
379 F.3d 453, 457 (7th Cir. 2004). We explained the impact
of Blakely in Booker:
The Supreme Court had already held that “other than
the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved be-
yond a reasonable doubt.” Apprendi v. New Jersey, 530
U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In
Blakely it let the other shoe drop and held over pointed
8 No. 03-1812
dissents that “the ‘statutory maximum’ for Apprendi
purposes is the maximum sentence a judge may impose
solely on the basis of the facts reflected in the jury verdict
or admitted by the defendant.” Blakely v. Washington,
supra, at 2536. “In other words, the relevant ‘statutory
maximum’ is not the maximum sentence a judge may
impose after finding additional facts, but the maximum
he may impose without any additional findings. When
a judge inflicts punishment that the jury’s verdict alone
does not allow, the jury has not found all the facts ‘which
the law makes essential to the punishment,’ and the judge
exceeds his proper authority.” Id. (citation omitted).
375 F.3d at 510.
First, Pittman argues that the district court improperly
determined that he was responsible for 251 grams of co-
caine base whereas the jury convicted him of possession
with intent to distribute 6.3 grams and returned a special
finding that he distributed at least 5 but less than 50 grams
of crack cocaine. That type of determination of drug quan-
tity as a part of relevant conduct is the type of error that has
led to reversal of other sentences under Blakely and Booker.
In this case, however, the court’s conclusion regarding drug
quantity were irrelevant to his sentence, because his sen-
tence was based not on that relevant conduct, but rather on
the court’s determination that he was a career offender. His
status as a career offender yielded an offense level of 37
which is higher than the offense level of 34 that his relevant
conduct produced. Accordingly, his sentence was based on
the career offender determination rather than the relevant
conduct determination of drug quantity.
A defendant is considered a career offender under the
Guidelines if:
(1) the defendant was at least 18 years old at the time
the defendant committed the instant offense of convic-
tion; (2) the instant offense of conviction is a felony that
No. 03-1812 9
is either a crime of violence or a controlled substance
offense; and (3) the defendant has at least two prior
felony convictions of either a crime of violence or a
controlled substance offense.
U.S.S.G. § 4B1.1(b). The jury conviction in this case estab-
lished the second factor, but Pittman argues that the jury
did not find, and he did not admit, that he was at least 18
years of age at the time of this conviction and that he had
two prior felony convictions for possession of a controlled
substance. Pittman acknowledges that he failed to raise this
argument, or any similar argument in the district court,
and therefore that his challenge should be reviewed for
plain error.
We consider first Pittman’s challenge to the use of the two
prior felony convictions. In Almendarez-Torres v. United
States, 523 U.S. 224, 244 (1998), the Supreme Court held
that prior felony convictions were sentencing factors that
need not be charged in an indictment nor proven beyond a
reasonable doubt because they are not elements of the charged
offense. That decision has not been overruled by Apprendi
or Blakely. See United States v. Marseille, 377 F.3d 1249, 1257
(11th Cir. 2004) (noting that neither Apprendi nor Blakely
removes the determination of prior convictions from the
court in light of Almendarez-Torres). We have held in post-
Apprendi cases that Almendarez-Torres controls, and that
evidence of a prior conviction that would increase the stat-
utory maximum does not need to be submitted to a jury.
United States v. Collins, 272 F.3d 984, 987 (7th Cir. 2001);
United States v. Martinez-Garcia, 268 F.3d 460, 464 (7th
Cir. 2001). Blakely did not disturb Almendarez-Torres, and
therefore the district court did not err in considering the
prior felony convictions. We note that even absent
Almendarez-Torres, Pittman’s argument would fail because
he in fact admitted to those two prior convictions at the
sentencing hearing. See Booker, 375 F.3d at 510 (judge may
10 No. 03-1812
impose sentence based on facts admitted by the defendant
as well as those found by the jury).
The remaining factor is whether Pittman was at least 18
years of age at the time of the instant offense. As we noted,
the statutory maximum for Apprendi purposes is the maxi-
mum sentence a judge may impose based solely on facts
found by the jury or admitted by the defendant. Id.; United
States v. Messino, 382 F.3d 704, 707-08 (7th Cir. 2004). The
government argues that Pittman admitted that he exceeded
that age threshold because the presentence report (PSR)
included his age and Pittman’s attorney acknowledged that
there were no factual errors in the PSR. We need not tarry
with whether that is a sufficient “admission,” because even
if it were not, this could not survive harmless error review
let alone plain error review. Pittman does not assert that he
was actually less than 18 years of age at the time of the
offense, only that the jury rather than the judge should have
determined his age. His argument, then, is that the proper
procedures were not followed, but he never argues that the
result would be different. That fails to meet the plain error
standard in that there is not even an allegation that the
alleged error “affected substantial rights and seriously af-
fected the fairness, integrity, or public reputation of the
judicial proceedings.” United States v. Stotts, 323 F.3d 520,
522 (7th Cir. 2003). In fact, it would fall short under harm-
less error review as well. The alleged error could not have
impacted the outcome of the sentencing, and therefore
Pittman is entitled to no relief. Accordingly, the decision of
the district court is AFFIRMED.
No. 03-1812 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-12-04