United States v. McGowan, Alfred ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1546
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALFRED McGOWAN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 280—James B. Zagel, Judge.
____________
ARGUED NOVEMBER 30, 2006—DECIDED FEBRUARY 28, 2007
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Before POSNER, KANNE, and EVANS, Circuit Judges.
EVANS, Circuit Judge. Alfred McGowan appeals the 132-
month sentence he received following his conviction for
two counts of distributing cocaine. The two counts in-
volved small, controlled-buy sales of cocaine to a woman
named Christine Beu. The first sale, involving 7.2 grams,
was on February 3, 2003. The second, which involved 4.9
grams, went down a month later, on March 3.1
McGowan was originally charged with conspiracy to
distribute cocaine, three counts of distributing cocaine, and
1
We have used the dates in the briefs. The indictment says
the sales took place on February 6 and March 6 of 2003.
2 No. 06-1546
unlawful possession of a firearm. The firearm charge was
dismissed and, following a jury trial, he was convicted on
the conspiracy count and two of the three distribution
counts. After the trial, the district judge granted Mc-
Gowan’s motion for judgment of acquittal on the con-
spiracy count.
On the charges upon which he was convicted, McGowan’s
base offense level under the sentencing guidelines was 12.
Given his criminal history category as determined by
the judge, that yielded a sentencing range of 27 to 33
months. But, relying on a ton of perceived “relevant con-
duct,” the judge concluded that the proper offense level
was 26. This finding jacked up McGowan’s guideline
range to 110 to 137 months. McGowan contends on appeal
that the judge’s reliance on way too much “relevant con-
duct” constituted clear error.
McGowan was one of 10 defendants originally charged
in the conspiracy count in this case. But he went to trial
by his lonesome. And for the most part, the trial focused
on the conspiracy count which alleged that McGowan
and the others (many, according to the indictment, with
colorful nicknames: “Teddy Bear,” “Chivo,” “Bubba,”
“Baby,” “Trepid,” and “Nose”) conspired with a fellow
named Juan Corral to distribute huge amounts of pow-
der and crack cocaine. Corral himself testified that he
sold varying amounts of cocaine to McGowan roughly
every 2 to 3 weeks between March of 2001 and June of
2002. Corral testified that McGowan, especially at first,
wasn’t a regular customer: he would disappear for
months at a time. But at some point, McGowan said he
would have to “start coming back regular” because “my
people don’t wanna deal with nobody but you.” If be-
lieved, Corral easily sold McGowan much more than 500
grams of cocaine (the amount necessary for earning a
spot in level 26 of the guidelines). But it must be remem-
No. 06-1546 3
bered that this activity ended sometime before June 24,
2002, when Corral was put out of business by the gov-
ernment.
Having briefly recounted this evidence, it is not difficult
to imagine why the jury concluded, beyond a reasonable
doubt, that McGowan was guilty on the conspiracy
count as charged. And that conclusion presents two ques-
tions: Why did the district judge kick the conviction on
McGowan’s motion after the trial,2 and why didn’t the
government cross-appeal and seek reinstatement of the
jury’s verdict? But on to the issue before us.
The two sales to Beu involved only 12.1 grams of cocaine.
Yet, in a clear tail-wagging-the-dog situation, relying
primarily on his alleged dealings with Corral, McGowan’s
“relevant” conduct was found to be at least 489 grams
more. This result is problematic on the basis of the record
as we see it.
Relevant conduct can be used to enhance a defendant’s
sentence if it is part of the same course of action or
common scheme or plan that gave rise to the defendant’s
conviction. Relevant conduct must be established by a
preponderance of the evidence. United States v. Johnson,
342 F.3d 731, 733 (7th Cir. 2003); United States v. Ofcky,
237 F.3d 904, 907 (7th Cir. 2001). Courts 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 proximity.’ ” United States v. Ortiz, 431 F.3d
1035, 1040 (7th Cir. 2005) (citations omitted). And con-
2
Apparently, the judge was convinced that McGowan’s activ-
ities with Corral were only a buyer-seller arrangement, not
conspiratorial activities. The jury, however, although instructed
on the buyer-seller defense, apparently didn’t buy it.
4 No. 06-1546
duct for which the defendant has been acquitted can be
considered, but only if it is part of the same course of
conduct or common scheme or plan. United States v.
Masters, 978 F.2d 281, 285 (7th Cir. 1992); United States
v. Duarte, 950 F.2d 1255, 1263 (7th Cir. 1991).
We cannot conclude that the government met its bur-
den here. There is an 8-month gap between McGowan’s
last dealings with Corral in June of 2002 and the specific
sales he made to Beu in February and March of 2003. This
gap is long enough to cast doubt on the relevance of the
earlier conduct. See United States v. Ortiz, 431 F.3d at
1041; United States v. Sykes, 7 F.3d 1331, 1337 (7th Cir.
1993). And without temporal proximity on its side, “the
government needs a stronger showing regarding the
other course of conduct factors, such as regularity or
similarity of acts.” Ortiz, 431 F.3d at 1041. The govern-
ment did not make this showing. The amounts of cocaine
in the Corral and Beu transactions don’t match up—
McGowan (again, if Corral is believed) irregularly pur-
chased relatively large amounts of cocaine from Corral
but sold only small amounts to Beu. He purchased from
Corral in Aurora but sold to Beu in Chicago. See United
States v. Bullock, 454 F.3d 637, 641 (7th Cir. 2006) (insuf-
ficient showing that cocaine transactions taking place
2 miles away and 2 years after the charged conspiracy
were relevant conduct). In fact, the government (through
the prosecutor, AUSA Lawrence Beaumont) conceded at
the sentencing hearing that the purchases from Corral
were not part of the course of conduct that led to
McGowan’s distribution charges:
Mr. Corral was arrested on June 24, 2002. Obviously,
the conspiracy at that point ended, and Mr. McGowan
then got his cocaine from somewhere else. The three
purchases—I guess there were two, because he was
found not guilty on the other one—the two purchases
No. 06-1546 5
that Christine Beu testified about, the course of that
cocaine was a different course.3
Nevertheless, perhaps relying on a presentence report
(which in turn relied heavily on Corral) that was pre-
pared prior to the dismissal of the conspiracy charge, the
district judge landed in level 26, just as the report had
urged. But the fact that a defendant engages in other drug
transactions is not, standing alone, sufficient justifica-
tion for treating those transactions as part of the same
course of conduct or common scheme or plan when mak-
ing a relevant conduct determination. Bullock, 454 F.3d
at 641; United States v. Crockett, 82 F.3d 722, 730 (7th Cir.
1996).
This is especially true here because the judge did not
have all that much faith in Corral’s testimony, partic-
ularly regarding the large amounts of cocaine he claimed
to have handled: “I don’t believe you can rely on Corral’s
estimates of totals, which his own past and Mr. Cutrone’s
cross-examination revealed to me at best shirttail esti-
mates, and estimates which were further, in my view,
unreliable because he supplied a lot of people.” Nor did
he make any independent findings connecting Mc-
Gowan’s alleged purchases from Corral with the Beu
sales for which he was convicted. See United States v.
Bacallao, 149 F.3d 717, 721 (7th Cir. 1998). For these
reasons, the rather significant enhancement based on
relevant conduct on this record cannot stand. That said, we
place no limits on the factors that can be considered on
remand. Certainly more dealings with Ms. Beu can be
considered, as can other evidence closer in time to Febru-
ary and March of 2003.
3
We think the reference to “course” in this quote was a court
reporter error as the AUSA, rather obviously, must have said
“source.”
6 No. 06-1546
For these reasons, we VACATE the sentence imposed
on Mr. McGowan and REMAND the case to the district court
for resentencing.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-28-07