United States v. Roche, Devon ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1475
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEVON ROCHE,
Defendant-Appellant.
____________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:02 CR 72—James T. Moody, Judge.
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ARGUED APRIL 5, 2005—DECIDED JULY 11, 2005
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Before POSNER, EASTERBROOK, and EVANS, Circuit
Judges.
EASTERBROOK, Circuit Judge. Devon Roche sold ecstasy
to Derrick Perkins three times during the summer of 2000.
Before each sale, Roche called Perkins to discuss logistics.
That is, Roche thrice used a telecommunications device to
facilitate the distribution of a controlled substance, in viola-
tion of 21 U.S.C. §843(b). As it turned out, Roche’s in-
volvement in the ecstasy trade went well beyond these
transactions. Between 1998 and 2000, Roche led a group
that smuggled more than 120,000 tablets of ecstasy from
Amsterdam to Chicago. The prosecutor offered to dismiss
2 No. 04-1475
charges related to this conduct if Roche would plead guilty
to the three facilitation counts. See Fed. R. Crim. P.
11(c)(1)(A). Roche accepted.
As part of the deal, Roche agreed to a limited waiver of
his right to appeal:
I agree that the Court has jurisdiction and authority to
impose any sentence within the statutory maximum set
for my offense as set forth above in paragraph 9.c. of
this plea agreement. With that understanding, I ex-
pressly waive my right to appeal my sentence, including
any appeal right conferred by Title 18, United States
Code, Section 3742, on any ground other than the
following:
(1) I reserve my right to appeal the district court’s
determination of relevant conduct pursuant to
application of guideline section 1B1.3;
(2) I reserve my right to appeal the total weight of
the Ecstasy;
(3) I reserve my right to appeal any enhancement
for an aggravating role under guideline section
3B1.1; and
(4) I reserve my right to appeal any upward depar-
ture from my offense level.
Roche raises three of these reserved issues, arguing that
the district judge’s relevant conduct, drug weight, and
aggravating role findings were erroneous. He also contends
that the judge erred in two further respects: sentencing him
based on facts not found by a jury beyond a reasonable
doubt, and declining to award him an acceptance-of-re-
sponsibility adjustment under U.S.S.G. §3E1.1.
Reserving the right to appeal some issues does not entitle
a defendant to appeal others. See United States v. Whitlow,
287 F.3d 638 (7th Cir. 2002). Roche contends that the right
No. 04-1475 3
to challenge the results of the district judge’s fact- finding
inquiry includes the right to challenge the judge’s power to
find those facts after United States v. Booker, 125 S. Ct. 738(2005), but Booker affects the discretion that district judges
enjoy, not their fact-finding powers. See United States v.
Lee, 399 F.3d 864, 866 (7th Cir. 2005). Having waived his
sixth amendment rights by pleading guilty, Roche cannot
claim now that the judge blocked access to the jury. Cf.
United States v. Lewis, 405 F.3d 511, 513 (7th Cir. 2005).
The judge did err in thinking himself bound by the
Guidelines range. Although a generic guilty plea does not
preclude a contention that the Guidelines are advisory,
Roche has waived such an argument. The parties agreed
that Roche’s sentence would be determined “in accordance
with the United States Sentencing Guidelines.” This may be
sufficient to trigger the rule that a defendant may not
challenge on appeal a punishment to which he agrees. See
United States v. Porretta, 116 F.3d 296, 300-01 (7th Cir.
1997); United States v. Nguyen, 46 F.3d 781, 783 (8th Cir.
1995). We need not decide, because Roche has surrendered
his right to raise the question in this court. Roche waived
the right to appeal “on any ground” other than those spe-
cified. The agreement permits Roche to contest the judge’s
factual conclusions but not the application of the Guidelines
to the facts as found; fact and law are different “grounds” of
decision. Cf. United States v. Grimard-Henry, 399 F.3d 1294(11th Cir. 2005).
The parties did not foresee Booker, but that does not alter
the effect of the plea bargain. The agreement provides that
all arguments other than the listed four would be presented
to one Article III judge instead of four; to get the substan-
tial benefit offered by the prosecutor, Roche waived the
right to challenge his sentence on any other basis, foreseen
or not. As we explained in United States v. Bownes, 405
F.3d 634 (7th Cir. 2005), there is nothing special about
Booker that precludes enforcement of a waiver. See also
4 No. 04-1475
United States v. Blick, 408 F.3d 162, 170 (4th Cir. 2005)
(citing cases from nine circuits reaching the same conclu-
sion).
Roche’s claimed entitlement to the acceptance-of-respon-
sibility adjustment is not worth discussing except to note
that his decision to present the argument at all shows that
he is unwilling to live by the plea agreement, and hence has
not fully accepted responsibility. Making this argument, in
the teeth of the agreement’s unambiguous prohibition,
confirms that Roche does not take his obligations seriously.
We turn to the arguments that are proper under the
agreement, starting with Roche’s objection to the relevant-
conduct decision. The district judge declined to treat the en-
tire smuggling operation as conduct relevant to the crimes
of conviction. Recall that Roche pleaded guilty only to three
counts of using a telephone to facilitate a drug transaction.
The three sales occurred within four months and involved
235 tablets of ecstasy. The Guidelines provide that the of-
fense level is based on “all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken
criminal activity, that occurred . . . in preparation for” the
offenses of conviction. U.S.S.G. §1B1.3(a)(1)(B). Each of
Roche’s phone calls, the district judge found, was immedi-
ately preceded by the arrival in Chicago of a courier with
8,000 tablets of ecstasy. This meant that the importation of
24,000 pills was “in preparation” for the offenses of convic-
tion. The judge also found that these pills weighed on
average 250 milligrams apiece and that to produce this
supply Roche had organized the activities of five or more
persons. See U.S.S.G. §3B1.3.
None of these findings is clearly erroneous. The conspiracy
enlisted Airrion Harvey to ferry ecstasy from Amsterdam to
Chicago in the hollow soles of a pair of men’s boots. (For his
trouble, Harvey was paid $5,000 plus expenses for each
trip.) Harvey made at least six successful trips; on trip
No. 04-1475 5
number seven, he was caught in Belgium with 8,200 tablets
of ecstasy. Customs records and Harvey’s written statement
established that Harvey’s arrival in Chicago preceded by
two or three days each of Roche’s phone calls to Perkins.
Harvey also explained that Roche provided money to cover
travel expenses and on occasion accompanied a co-con-
spirator to retrieve the fresh shipment from Harvey’s boots.
Harvey’s account of the smuggling operation and Roche’s
role in it was corroborated by testimony from a federal
agent and several of Roche’s other co-conspirators.
While recognizing that hearsay is admissible at sentencing,
see Williams v. New York, 337 U.S. 241 (1949); 18 U.S.C.
§3661, Roche nonetheless relies on confrontation clause
jurisprudence culminating in Crawford v. Washington, 541
U.S. 36 (2004), to argue that Harvey should have been
subject to cross-examination on the subjects covered by his
written statement. But the relevant provision at sentencing
is the due process clause, not the confrontation clause;
Williams shows that witnesses providing information to the
court after guilt is established are not accusers within the
meaning of the confrontation clause. Sentencing judges are
entitled to use any “procedures adequate to reach informed
and accurate decisions in the main”. United States v.
Escobar-Mejia, 915 F.2d 1152, 1154 (7th Cir. 1990); see also
United States v. Akin, 29 F.3d 267 (7th Cir. 1994). The
Sentencing Guidelines add that judges must limit consider-
ation to information that has “sufficient indicia of reliability
to support its probable accuracy.” U.S.S.G. §6A1.3(a). These
requirements have been satisfied. Roche contends that
Harvey had him mixed up with one of the other members of
the conspiracy, but this is an objection to the district judge’s
factual conclusion and not a constitutional flaw.
Roche does point out that the pills he sold to Perkins were
of a design different from those Harvey brought back from
Amsterdam—Perkins purchased pink pills with hearts and
purple pills with a 007 stamp, but Harvey claimed to have
6 No. 04-1475
smuggled white pills with a triangular design and beige
pills with a Nike stamp. The prosecutor speculates that the
soles of Harvey’s shoes were like bags of M&Ms, filled with
pink, purple, white, and beige pills all mixed together. This
is not a particularly compelling argument. In at least two of
the three deals (the record is silent about the third),
Perkins received pills of a uniform design; if the shipments
from Amsterdam were mixed, we would expect Perkins’
purchases to be mixed as well. Nonetheless, Roche gives us
no reason to doubt that the different pills were interchange-
able. In fact, he told Perkins that the ecstasy was “straight
from Amsterdam”. If Nike pills and 007 pills are fungible,
then it was not clear error for the district judge to decide
that Perkins would not have received any ecstasy, of
whatever design, but for the timely arrival of fresh stock.
Nor is there a problem with the district judge’s calcul-
ation of the total weight of the 24,000 pills. The drug sold
as “ecstasy” is typically one of two related compounds, MDA
(methylenedioxyamphetamine) or MDMA (3-4 methyl-
enedioxymethamphetamine). Roche dealt in MDMA. Under
the 2000 Sentencing Guidelines Manual, which the parties
agreed should be used, responsibility for six kilograms of
MDMA results in an offense level of 26. Roche argues that
the district judge’s reliance on the 2002 Sentencing Guide-
lines Manual to estimate the pills’ weight violates the ex
post facto clause. It is doubtful that the ex post facto clause
plays any role after Booker. United States v. Seacott, 15 F.3d
1380, 1384-86 (7th Cir. 1994), holds that the Guidelines are
“laws” for constitutional purposes, but by severing those
provisions that made the Guidelines mandatory the Court
in Booker demoted the Guidelines from rules to advice. This
removes the foundation of Seacott and similar decisions,
while leaving in place the requirement that judges use the
Guidelines in place at the time of sentencing. See 18 U.S.C.
§3553(a)(4). We need not finally resolve this subject,
however, because the district judge acted before Booker, and
No. 04-1475 7
we have held that Roche consented to applying the Guide-
lines as written (implying that he receives the benefit of
Seacott and the 2000 Manual in exchange). Still, the 2002
Manual does not change to Roche’s disadvantage any of the
rules at issue in this appeal.
Roche contends that, instead of the 250 milligram “typical
weight per unit” listed in the 2002 Manual for MDA and
MDMA, the district judge should have used the 100 milli-
gram weight the 2000 Manual lists for MDA. Yet Roche
imported and sold MDMA, not MDA. The 2002 Manual does
not change the way MDMA’s weight is calculated. More-
over, Roche would not get anywhere on this line of ar-
gument even if he had distributed MDA. The 2000 Manual
itself directs the court not to use the typical-weight table “if
any more reliable estimate of the total weight is available
from case-specific information.” U.S.S.G. §2D1.1 Application
Note 11. Ecstasy tablets recovered from another member of
the conspiracy averaged 252 milligrams apiece. The pills
sold to Perkins had a mean weight of 214 milligrams. Only
a mean weight less than 120 milligrams per pill would place
Roche below offense level 26, and no evidence in the record
implies a weight in that range. Cf. United States v. Gaines,
7 F.3d 101, 104 (7th Cir. 1993).
A further difficulty is that the 2000 Manual estimated the
MDA dosage (the controlled substance) rather than the
weight of an MDA pill (the mixture). Yet even under the
2000 Manual, the defendant is responsible for the weight of
the whole pill, not just the active ingredient. See §2D1.1
Drug Quantity Table Note A. See also Neal v. United States,
516 U.S. 284 (1996). The potential for confusion between
the weight of the active ingredient and the weight of the
mixture is precisely why the Sentencing Commission made
the change: The old version “created the potential for mis-
applying the MDA estimate in a case in which MDMA is
involved, which could result in underpunishment in some
ecstasy cases. This part of the amendment thus promotes
8 No. 04-1475
uniform application of §2D1.1 for offenses involving ecstasy
by adding a reference for MDMA and revising the estimated
weight for MDA.” Amendment 640 (2002). The clarity of the
2002 Manual does not give Roche the right to an improper
application of the 2000 Manual.
Roche explained that he reserved the right to appeal
these factual determinations because he was concerned the
district judge would be unable to ignore the bigger picture—
Roche’s involvement in an international drug-smuggling
ring—at sentencing. This just shows that Roche’s challenge
to his sentence was risky beyond the repercussions of
violating the plea agreement. “[A] defendant who appeals a
pre-Booker sentence on the basis that the guidelines were
misapplied . . . is playing with fire, because if he wins and
is resentenced the judge will have more sentencing latitude,
up as well as down, than he did when the guidelines were
deemed mandatory.” United States v. Goldberg, 406 F.3d
891, 895 (7th Cir. 2005). The district judge conscientiously
attempted to isolate conduct that was “in preparation” for
the three particular transactions at issue (which may or
may not have been required, see U.S.S.G. §1B1.3(a)(2);
United States v. Delatorre, 406 F.3d 863, 866-67 (7th Cir.
2005)). If we were to remand for resentencing, the judge
would not be so constrained after Booker. Perhaps Roche
should be thankful that we have rejected his demand to be
resentenced.
AFFIRMED
No. 04-1475 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-11-05