United States v. Lister, Tony M. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-4304
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TONY M. LISTER,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 04 CR 074—John C. Shabaz, Judge.
____________
ARGUED SEPTEMBER 9, 2005—DECIDED DECEMBER 28, 2005
____________
Before BAUER, POSNER, and WOOD, Circuit Judges.
BAUER, Circuit Judge. Tony M. Lister pleaded guilty
to one count of distribution of a controlled substance, 21
U.S.C. § 841(a)(1), after arranging for the sale of more than
five grams of cocaine base to a government agent. In his
pre-sentencing interview, Lister admitted to trafficking at
least 1.8 kilograms of cocaine base over the course of the
four years prior to his arrest. At the sentencing hearing,
Lister’s attorney challenged certain facts within the
presentence investigation report, but Lister raised no
personal objections, even under judicial questioning. The
district court found the presentence investigation report to
be reliable by a preponderance of the evidence and sen-
tenced him to 405 months of incarceration. On appeal,
2 No. 04-4304
petitioner claims error for the district court’s refusal to
grant credit for his acceptance of responsibility, the length
of his sentence, and the district court’s findings on relevant
conduct. We affirm.
I. Background
On December 6, 2001, Torrence Sims telephoned Lister
and asked him to supply one and one-half ounces of cocaine
base for $1100. Sims was acting on behalf of the govern-
ment. Lister took up the request and arranged the transac-
tion through Carlos Hodges, who procured and delivered
the cocaine base for the requested cost. The entire transac-
tion, including the telephone calls and the delivery of about
36 grams of a mixture containing cocaine base, was moni-
tored by a law enforcement agent.
On May 24, 2004, a grand jury returned an indictment
charging Lister with distributing more than five grams
of cocaine base, 21 U.S.C. § 841(a)(1). A superseding
indictment was filed on August 4, 2004, restating this count
among others. Lister ultimately struck an agreement with
the government and pleaded guilty to the original charge on
October 15, 2004, before Judge Shabaz.
At the plea hearing, Judge Shabaz informed Lister that
the plea agreement was merely a recommendation that
the court could reject “without permitting you to with-
draw your plea of guilty and could then impose a sen-
tence that is more severe than you may be expecting.”
Plea Hr’g Tr. 5-7, Oct. 15, 2004. He noted that should the
court reject the plea agreement, Lister would be pro-
vided with the opportunity to change his plea to not
guilty. Id. at 7. Lister firmly acknowledged these pos-
sibilities. Additionally, Judge Shabaz addressed the holding
in United States v. Booker, 375 F.3d 508 (7th Cir. July 9,
2004), and its effect on the Federal Sentencing Guidelines,
noting that, at that time, the case had been argued before
No. 04-4304 3
the Supreme Court but that a final opinion had not yet been
issued. Most importantly, Judge Shabaz explicitly stated
that Lister’s plea carried “penalties of a minimum manda-
tory term of five years and a maximum of 40 years in
prison, a $2 million fine, a four-year period of supervised
release and $100 special assessment.” Plea Hr’g Tr. 9, Oct.
15, 2004. When asked if he understood this possible pen-
alty, Lister stated simply “yes.” Id.Following the plea hearing, the U.S. Probation Office
prepared a presentence investigation report (PSIR) for
use at sentencing. When interviewed for the report in 2004,
Lister recounted his criminal and personal past in a series
of non-immunized statements. He admitted that approxi-
mately five years earlier he began producing cocaine base
with the assistance of Torrence Sims. Lister purchased an
ounce of powder cocaine on a weekly basis and Sims
converted it to cocaine base. The result of this operation
was that Lister distributed one and one- quarter ounces of
cocaine base on a weekly basis for approximately one year.
Using these statistics, the Probation Office calculated
Lister’s admitted cocaine distribution and concluded that
Lister was responsible for distributing a minimum of 1.84
kilograms of cocaine base over the prior three years (1.25
ounces converts to 35.44 grams, and this amount multiplied
by 52 (weeks) yields 1.84 kilograms).
Two other individuals interviewed for the PSIR, Derrick
Gosha and Torrence Sims, attributed far greater amounts
of cocaine base to Lister. Gosha was interviewed by Wiscon-
sin state and municipal investigators on October 15 and 23,
2001, and later testified before a federal grand jury on June
4, 2003. He estimated purchasing nine to 14 ounces of
cocaine base from Lister somewhere between 20 to 30 times
from 1999 to July 2001. He also recounted making two
larger transactions with Lister. In total, Gosha attributed
5.62 kilograms of cocaine base to Lister. Sims was inter-
viewed by municipal investigators on November 8 and 27,
4 No. 04-4304
2001, and testified before a federal grand jury on July 16,
2003. He testified that he had been purchasing cocaine and
cocaine base from Lister from about 2000 or 2001. His total
attribution to Lister was 4.12 kilograms of cocaine base and
an equal amount of cocaine.
The Probation Office also recounted Lister’s personal
and criminal history, which included four years of atten-
dance at Beloit Memorial High School and a year of
studies at Blackhawk Technical College in Janesville,
Wisconsin. Lister also admitted to having a substance
abuse problem, which began in his early teenage years and
progressively worsened until his arrest in the instant
matter. Regarding his criminal history, Lister’s most
notable offense was his 1998 conviction of possession of
cocaine with intent to distribute.
Based upon Lister’s admissions, his personal and criminal
history, and the corroborating testimony, the Probation
Office recommended that Lister be sentenced at an offense
level of 35, assuming a three point reduction for his accept-
ing responsibility for the crime. U.S.S.G. § 3E1.1. This point
total was calculated using the 1.84 kilogram admission
made by Lister. U.S.S.G. §§ 2D1.1, 1B1.3(a)(1)(A) and (B).
Lister’s attorney, however, contested the chronology of the
PSIR. He argued that the distribution of the additional
quantity of cocaine base had actually taken place before
1998. Were this the case, the additional distributions would
have occurred before his previous conviction for possession
with intent to distribute and the district court would have
been in error to punish him twice.
Relying primarily upon Lister’s own admissions in his
interview, the district court found that the chronology
presented in the PSIR was reliable by a preponderance
of the evidence. When finding that the relevant conduct had
taken place after the 1998 conviction, Judge Shabaz noted
that Lister had waived his constitutional rights during the
No. 04-4304 5
interview and that “the most reliable information is that
which is attributed to the defendant in that statement.”
Sentencing Hr’g Tr. 13, Dec. 16, 2004. He reiterated that
“[t]he Court has relied primarily on the defendant’s state-
ment to investigators in making the determination of
reliable conduct which it considers in sentencing and [uses]
the other witnesses to corroborate the facts that defendant
was involved in drug dealing activities from at least
January 2000 to January 7, 2002.” Id. at 14. This finding on
relevant conduct reaffirmed the offense level of 35.
Additionally, the district court held that the objections
made by Lister’s attorney were frivolous, and denied any
reduction in the sentence for acceptance of responsibility.
This finding came after a series of questions in line
with this Court’s decision in United States v. Purchess, 107
F.3d 1261 (7th Cir. 1997), when the district judge at-
tempted to determine if Lister understood and adopted the
challenges made by his attorney, Mr. Kelly:
THE COURT: And are you in agreement with those
challenges which have been made on
your behalf?
LISTER: Basically I rely on my lawyer for that,
Your Honor.
THE COURT: Then you don’t agree with him, is that
what you’re saying?
LISTER: Yeah. I basically just rely on him for it.
THE COURT: Are you accepting the challenges as
offered by your lawyer?
LISTER: I basically just rely on him to just—
THE COURT: Did he tell you that you should not
accept his recommendations?
MR. KELLY: Well, Your Honor, I’m not going to let
my client answer a question that in-
vades attorney-client privilege.
6 No. 04-4304
Sentencing Hr’g Tr. 2-3, Dec. 16, 2004. Following this
exchange and judicial finding, Lister’s offense level was
elevated to 38. When paired with his Criminal History
Category of IV, the Sentencing Table yielded a suggested
guideline range of 324 to 405 months. U.S.S.G. § 5A.
Prior to imposing the sentence, the district judge
stated that “the Court will impose a sentence consistent
with the provisions set forth in 18 United States Code
Section 3553(a). . . .” Sentencing Hr’g Tr. 12-13, Dec. 16,
2004. He then reviewed Lister’s past and the immediate
criminal offense. Specifically, Judge Shabaz noted the early
start and progressive nature of Lister’s drug use, his
attempts to rehabilitate himself, his previous felony
conviction, and the fact that Lister was on probation
supervision at the time that the instant crime was com-
mitted. Judge Shabaz concluded this review by stating that
Lister “has remained undeterred from participating in new
criminal conduct.” Sentencing Hr’g Tr. 12-13, Dec. 16, 2004.
Following this review the district court sentenced Lister
in a two-step process. First, treating the Federal Sentencing
Guidelines manual as advisory per our decision in United
States v. Booker, 375 F.3d 508 (7th Cir. 2004), Judge
Shabaz initially considered sentencing Lister to 40 years,
the maximum term contemplated under the plea agree-
ment. Noting the reliability of the Federal Sentencing
Guidelines, however, the district judge calculated a “sug-
gested” term of 324 to 405 months. Based upon this calcula-
tion, Judge Shabaz imposed a term of 405 months, reason-
ing that the sentence would “achieve the societal interest of
punishing and deterring the defendant as well as protecting
the community.” Sentencing Hr’g Tr. 15, Dec. 16, 2004.
Moreover, he noted that “[t]his is probably the most signifi-
cant amount of cocaine base that has been brought to this
Court’s attention for perhaps as long as it can recall and the
Court does believe that a most significant sentence is
necessary.” Id. at 15. He then took the second step of
No. 04-4304 7
calculating an alternative sentence under the mandatory
guidelines and again arrived at a term of 405 months.
The final judgment on Lister’s case was entered on
December 16, 2004, and he filed a timely notice of appeal on
December 23, 2004.
Appellant now argues four points of error; points two and
four merge. The resulting arguments are as follows: first,
that the district court erred in denying credit for
his acceptance of responsibility, second, that his sentence
was unreasonable, and third, that the district judge’s
findings on relevant conduct violated his right to due
process.
II. Discussion
A. Acceptance of Responsibility.
On appeal Lister primarily argues against the district
court’s finding that he failed to accept responsibility for his
crimes, see U.S.S.G. § 3E1.1. This denial of credit, he
argues, led to an erroneous application of the guidelines.
In seeking credit for accepting responsibility for his
crimes, the defendant bears the burden of proving this
acceptance by a preponderance of the evidence. United
States v. Travis, 294 F.3d 837, 840 (7th Cir. 2002); United
States v. Ewing, 129 F.3d 430, 435 (7th Cir. 1997). We
review the district court’s decision on this fact-based finding
for clear error. United States v. Hicks, 368 F.3d 801, 808
(7th Cir. 2004); United States v. Mayberry, 272 F.3d 945,
948 (7th Cir. 2001). Normally, a defendant’s plea of guilty
is evidence of his having accepted responsibility. United
States v. Bothun, 424 F.3d 582, 586 (7th Cir. 2005) (citing
application note to U.S.S.G. § 3E1.1). Furthermore, the
application note to Sentencing Guideline 3E1.1 allows the
defendant to “remain silent in respect to relevant conduct
beyond the offense of conviction without affecting his ability
8 No. 04-4304
to obtain a reduction under this subsection.” U.S.S.G.
§ 3E1.1, cmt. n.1(a). But where a defendant “falsely denies,
or frivolously contests, relevant conduct that the court
determines to be true” he may be found to have acted in a
“manner inconsistent with acceptance of responsibility.” Id.;
United States v. Purchess, 107 F.3d 1261, 1264 n.1 (7th Cir.
1997); United States v. Booker, 248 F.3d 683, 689-91 (7th
Cir. 2001) (holding defendant who pleaded guilty but
challenged PSIR’s findings on drug quantity was properly
denied acceptance of responsibility (additionally, we note
that this Booker is not the same Booker that successfully
appealed his case to the Supreme Court in 2004)). For
defendant to properly contest findings presented in a
PSIR they need to do more than simply deny the informa-
tion presented. Purchess, 107 F.3d at 1267-68 (citing United
States v. Taylor, 72 F.3d 533, 547 (7th Cir. 1995)). Instead,
they must present evidence. See id.Furthermore, defendants may not circumvent this barrier
by using their attorney to make the challenges. Id. at 1268-
69. Frivolous challenges and denials made by one’s attorney
also place a deduction for acceptance of responsibility at
risk. Id. at 1267-68. But this leap of responsibility between
the attorney and the defendant must be carefully evaluated.
In Purchess, we stated that where the defendant stays
silent on relevant conduct, but his attorney challenges facts
presented in the PSIR, it would be best for the court to
determine whether the defendant understands and agrees
with his attorney’s argument before denying the reduction.
Id. However, it is not the responsibility of the court to
interrogate the defendant and elicit a response where he
effectively avoids answering the question. The burden of
proof regarding the acceptance of responsibility remains
with the defendant.
At the sentencing hearing, Lister’s attorney challenged
the factual chronology contained within the PSIR. The
Probation Office concluded that Lister was responsible for a
No. 04-4304 9
total of 1.84 kilograms of cocaine base distributed during
one of the four prior years. This amount and subsequent
finding was based on Lister’s own admissions in his PSIR
interview that was subsequently corroborated by Gosha and
Sims. Lister’s attorney argued that the greater amount had
been distributed before his client’s 1998 conviction. This
argument was not supported by new information, but was
a reinterpretation of the statements contained within the
PSIR. In an effort to follow our guidelines set forth in
Purchess, the district court repeatedly questioned Lister to
determine if he understood and agreed with his attorney’s
objections to the PSIR chronology. In each response,
however, Lister eschewed a simple answer for what may
only be described as an attempt at legal hair-splitting,
ultimately frustrating the court’s determination. Judge
Shabaz subsequently found that the PSIR chronology was
reliable by a preponderance of the evidence and that Lister
had frivolously contested the facts contained therein, thus
denying him any credit for acceptance of responsibility.
While our decision in Purchess noted that the district
judge should make an effort to determine the defendant’s
understanding of his attorney’s challenges, we also made
known our reluctance to add to the burdens of the dis-
trict court at sentencing. Purchess, 103 F.3d at 1269.
Furthermore, Purchess involved a defendant with a fifth-
grade education and a limited command of the English
language. Id. at 1268. In comparison, Lister attended
four years of high school and studied business management
at a technical college. His reluctance to answer in
a straightforward manner at trial may be more readily
attributed to conscious choice rather than incomprehension.
Under these circumstances, we cannot say that the district
court committed clear error when it found that Lister had
not accepted responsibility for his crimes.
10 No. 04-4304
B. Review of the sentence for unreasonableness.
Lister also challenges the overall length of his term as
erroneously calculated and unreasonable. In United States
v. Booker, the Supreme Court held that the Federal Sen-
tencing Guidelines were no longer mandatory and that all
sentences must be reviewed for “unreasonableness.” 125
S.Ct. 738, 765-67 (2005). District courts are aided in their
determination of reasonableness via a mandatory examina-
tion of the factors set forth in 18 U.S.C. § 3553(a). Id. at
764-65, 67; United States v. Rodriguez-Alvarez, 425 F.3d
1041, 1045 (7th Cir. 2005). These factors include
“the nature and circumstances of the offense and the
history and characteristics of the defendant.” 18 U.S.C.
§ 3553(a)(1). In determining the specific term, § 3553(a)
advises that the sentence should “reflect the seriousness
of the offense,” “provide just punishment,” and “protect
the public from further crimes of the defendant.” 18 U.S.C.
§ 3553(a)(2)(A)-(C). Additionally, this court has held that
“any sentence that is properly calculated under the Guide-
lines is entitled to a rebuttable presumption of reasonable-
ness.” United States v. Mykytiuk, 415 F.3d 606, 608 (7th
Cir. 2005).
At the outset of this reasonableness review, Lister briefly
challenges the accuracy of the district court’s calcula-
tion of his advisory sentence range. He argues that the
incorporation of his relevant conduct into his total offense
level was in error. But Booker and its predecessor cases did
not limit such judicial factfinding in the sentencing context.
United States v. Bryant, 420 F.3d 651, 656 (7th Cir. 2005).
Instead, they held that a Sixth Amendment problem arises
where the sentence exceeds the statutory maximum of the
charged crime or where the term is imposed under a
mandatory sentencing scheme. Booker, 125 S.Ct. at 750; see
United States v. Dean, 414 F.3d 725, 729-30 (7th Cir. 2005).
Neither of these concerns are present upon review of
Lister’s sentencing. The district court calculated the
No. 04-4304 11
appropriate range of 324-405 months based upon his guilty
plea, relevant conduct, and criminal history. The district
court then reviewed the § 3553(a) factors to choose a
discretionary sentence within that range.
But Lister argues that the district court’s sentence
failed to adequately consider the factors set forth in
§ 3553(a). As noted above, Booker does command such a
review. Booker, 125 S.Ct. at 764-65, 67. This Court, how-
ever, has held that a point-by-point analysis of each factor
listed in § 3553(a) is not necessary to meet the Booker
requirement. Dean, 414 F.3d at 729. “Judges need not
rehearse on the record all of the considerations that
18 U.S.C. § 3553(a) lists; it is enough to calculate the range
accurately and explain why (if the sentence lies outside it)
this defendant deserves more or less.” United States v.
George, 403 F.3d 470, 472-73 (7th Cir. 2005). Furthermore,
§ 3553(a) may be met where the district judge offers an
“adequate statement” of his reasoning that a particular
sentence is appropriate for the defendant. Dean, 414 F.3d
at 729. The district court’s sentencing procedure met these
requirements.
In choosing a sentence within the 324-405 month range,
the district judge explicitly considered § 3553(a). Judge
Shabaz reviewed Lister’s history with drugs and attempts
at rehabilitation, his criminal history, and the overall
quantity of cocaine base he had admitted distributing.
Moreover, he announced that Lister’s term would “achieve
the societal interest of punishing and deterring the defen-
dant as well as protecting the community.” Sentencing Hr’g
Tr. 15, Dec. 16, 2004. In light of these statements, we
cannot agree that the § 3553(a) factors were not adequately
considered. See Rodriguez-Alvarez, 425 F.3d at 1046-47(holding that § 3553(a) factors were properly considered
where district judge commented on defendant’s criminal
history and likelihood of recidivism before finding a “severe
sentence” was warranted).
12 No. 04-4304
To complete our review of the district court’s actions
at sentencing we note that Judge Shabaz paired his guide-
line calculation with an effective review of § 3553(a) to
arrive at Lister’s “suggested” 405 month sentence. The
district court did not consider the term mandatory and
attempted to anticipate the future of the sentencing
guidelines as well as possible. See George, 403 F.3d at 472.
It was only in the alternative that Judge Shabaz offered
a mandatory term of 405 months. See Bryant, 420 F.3d
at 654-56; Booker, 375 F.3d at 515. Because this sen-
tence was based on an adequate consideration of the
§ 3553(a) factors, we cannot say that it is unreasonable. We
take this opportunity, however, to respectfully remind the
district court that 1.84 kilograms of cocaine base is
a moderate quantity compared to those higher amounts
contemplated by 21 U.S.C. § 841. Yet, in comparison, the
405 month sentence nearly reaches the statutory maximum.
Such a term leaves little room for the propor-
tional sentencing that motivated Congress to pass the
sentencing guidelines, a motivation recognized and sup-
ported by the Supreme Court’s second holding of Booker.
Booker, 125 S.Ct. at 767-68 (citing U.S.S.G. § 1A1.1 ap-
plication note.)
Because of the district court’s discretionary ruling
and mandatory alternative, there is no question that
Judge Shabaz would impose the same sentence had he
known the Supreme Court’s full holding in Booker. There-
fore, there is no need for a Paladino remand. See United
States v. Paladino, 401 F.3d 471 (7th Cir. 2005).
While our established review for unreasonableness
may have come to an end, Lister’s challenges do not. He
contends that Booker and its predecessors charge this court
with the responsibility to avoid unwarranted sentencing
disparities between co-defendants, and between controlled
substances where Congress has specifically legislated
No. 04-4304 13
differing, advisory, punishments. We note only briefly that
the judiciary has no power to maintain charges against an
individual where the United States Attorney exercises its
executive discretion and chooses to dismiss them, as was
the case here. This is not a matter of the “sentencing
disparities” as considered by Booker, but instead an exam-
ple of the separation of powers in our legal system. United
States v. Jones, 438 F.2d 461, 467-68 (7th Cir. 1971) (citing
Goldberg v. Hoffman, 225 F.2d 463, 464-65 (7th Cir. 1955)).
Regarding the different punishment recommended for
cocaine base and cocaine, this Court has previously upheld
the ratio differential codified in 21 U.S.C. § 841. See United
States v. Lawrence, 951 F.2d 751 (7th Cir. 1991). The
Supreme Court’s holdings in Booker do nothing to overturn
this decision. See Booker, 125 S.Ct. at 756-69. Booker
rendered the sentencing guidelines advisory; it did not
strike them down in their entirety. Id.
C. Due Process Consideration.
Lastly, Lister argues that the district court’s finding
on relevant conduct violated his right to due process
because it was predicated on the unreliable testimony of
Gosha and Sims. We begin by noting that “a defendant
has a due process right to be sentenced on the basis of
accurate information.” United States v. Townsend, 73 F.3d
747, 751 (7th Cir. 1996). This right is generally satisfied
when the facts in question are found by a preponderance of
the evidence using information that has a “sufficient indicia
of reliability to support its probable accuracy.” Id. at 751-52
(citing United States v. Salinas, 62 F.3d 855, 859 (7th Cir.
1995)); United States v. Ewers, 54 F.3d 419, 421 (7th Cir.
1995) (internal quotation marks omitted). We review a
district court’s findings of fact regarding the quantity of
drugs considered as relevant conduct for clear error. United
States v. Beler, 20 F.3d 1428, 1431 (7th Cir. 1994).
14 No. 04-4304
Contrary to Lister’s contention, the district court based its
finding of relevant conduct primarily on the admission of
Lister himself. The district judge weighed the facts as
presented in Lister’s PSIR statement against his attorney’s
unsupported argument at the sentencing hearing and found
the contested relevant conduct by a preponderance of the
evidence. In this evidentiary evaluation, the district court
reviewed and compared Lister’s specific statements regard-
ing dates, relevant transactions, monies paid, and the
delegation of manufacturing duties. While Lister may have
facially challenged the PSIR’s chronology, he offered no
evidence to counter the quantity calculations and he chose
not to disavow his prior statements. Furthermore, these
statements made during his PSIR interview were non-
immunized and against his own interest. When presented
with such a challenge, we cannot say that the district court
committed clear error in its findings of fact. See United
States v. Mustread, 42 F.3d 1097, 1101-02 (7th Cir. 1994)
(holding defendant may not simply deny the PSIR’s truth,
but must produce some evidence that calls the reliability
or correctness of the alleged facts into question (citing
United States v. Isirov, 986 F.2d 183, 185 (7th Cir. 1993)
(internal quotation marks omitted))). Therefore, Lister’s due
process claim must fail.
AFFIRMED.
No. 04-4304 15
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-28-05