United States v. Williams, Kevin ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4405
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEVIN WILLIAMS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 95 CR 510-8—Elaine E. Bucklo, Judge.
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ARGUED OCTOBER 31, 2006—DECIDED JUNE 27, 2007
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Before POSNER, WOOD, and EVANS, Circuit Judges.
WOOD, Circuit Judge. Kevin Williams was convicted of
conspiracy to violate 21 U.S.C. § 846 by knowingly and
intentionally possessing and distributing “cocaine and
cocaine base, commonly known as ‘crack,’ . . . heroin and
marijuana.” In finding him guilty, the jury made no fact-
ual findings about either drug type or quantity, because
the trial took place before the Supreme Court’s pivotal
decision in Apprendi v. New Jersey, 530 U.S. 465 (2000).
The court sentenced Williams to 320 months’ imprison-
ment on June 24, 1998. Williams appealed both his
conviction and his sentence, complaining that the latter
was too heavy, and the government cross-appealed the
sentence on the ground that it was too light. See United
2 No. 05-4405
States v. Jackson, 207 F.3d 910 (7th Cir. 2000). Williams
was unsuccessful across-the-board, but the government
prevailed on its cross-appeal, and so the case was re-
manded for resentencing.
On remand, the district court imposed a harsher sen-
tence of 360 months’ imprisonment. Williams, as he has
properly done throughout these proceedings, complained
that this sentence was invalid because there was neither
a jury finding nor an admission on his part about either
the drug type or quantity—both necessary to establish the
statutory maximum. Without specific findings, Williams
argues, he is entitled to be sentenced to no more than
10 years in prison, the lowest maximum sentence speci-
fied in 21 U.S.C. § 841(b) for someone with his criminal
history. (Since he has been in prison for more than 10
years, such a conclusion would mean that he would be
entitled to release.) Otherwise, the drug type (cocaine
base) and quantity (more than 1.5 kilograms) that the
district court attributed to Williams subjected him to a
statutory minimum of 20 years and a statutory maximum
of life. See 21 U.S.C. § 841(b)(1)(A)(iii). We review the
Sixth Amendment error under the harmless error stan-
dard, see Washington v. Recuenco, ___ U.S. ___, 126 S.Ct.
2546 (2006). Because there was ample evidence that
Williams could have foreseen the sale of more than 50
grams of cocaine base by members of the conspiracy, we
conclude that the error was harmless and affirm.
I
Williams was convicted in a massive narcotics con-
spiracy prosecution against members of a Chicago gang,
the Gangster Disciples, the details of which we recounted
in the consolidated appeal of Williams and his co-conspira-
tors. See United States v. Jackson, supra. We described the
Gangster Disciples as an enterprise with 6,000 members,
No. 05-4405 3
“engaged mainly in the sale of crack and powder
cocaine . . . [with] revenues of some $100 million a year. As
befits an operation of such magnitude, the gang had an
elaborate structure. [The leader] was assisted by a board
of directors, and below the board were governors and
regents having territorial jurisdictions . . . .” Id. at 913.
Williams admitted to being a “regent” in the gang. This
was a managerial post in which he allegedly “supervised
more than a hundred Gangster Disciples” on the far south
side of Chicago in a territory known as “the hundreds”
(referring no doubt to the street numbers in that area of
the city). Id. at 921.
Williams was convicted on one count of conspiracy to
distribute narcotics under 21 U.S.C. § 846, for which the
penalties are equivalent to those for the distribution of
the underlying drug. Although the indictment alleged
that the conspiracy was to distribute “cocaine and cocaine
base, commonly known as ‘crack,’ . . . heroin and mari-
juana,” nothing in either the indictment nor the verdict
form specified what precise type or amount of drugs
were involved in the charged conspiracy. Notwithstand-
ing the lack of input from the jury, Judge Marovich had
little trouble finding that Williams, like the other regents
who supervised the drug operation in the hundreds and
who were sentenced with him, was responsible for “at least
1.5 kilos of crack, or in the alternative, 150 kilos of pow-
der.” The judge accordingly sentenced Williams to 320
months under 21 U.S.C. § 841(b)(1)(A), which carries a
mandatory minimum sentence of 20 years’ imprisonment
and a maximum of life if the defendant was responsible for
more than five kilograms of cocaine or 50 grams of crack
cocaine.
At that point, Williams’s case became procedurally
complicated. On direct appeal, his conviction was upheld
but this court remanded the case for re-sentencing,
because we concluded that the district court erred in
applying a downward “minor participant” adjustment
4 No. 05-4405
under U.S.S.G. § 3B1.2(b). See Jackson, 207 F.3d at 921-
22. Although Williams raised his Sixth Amendment
objection to his sentence during that round, we rejected it.
Id. at 920-21. Later, the Supreme Court vacated the
sentence of one of his co-defendants following Apprendi,
but Williams’s own petition for certiorari from this court’s
decision was denied. See United States v. Jackson, 531
U.S. 953 (2000).
For reasons that are not explained, it was almost four
years before Williams had a new sentencing hearing.
Without the benefit of the two-point reduction, the court
found on May 7, 2004, that a higher sentence of 360
months was required. Williams raised his Sixth Amend-
ment claim at this hearing, and it was again rejected, this
time by Judge Bucklo, to whom the case had been re-
assigned. Williams filed a notice of appeal and, following
the Supreme Court’s decision in United States v. Booker,
543 U.S. 220 (2005), the government filed a brief confess-
ing that the court had erred in treating the Sentencing
Guidelines as mandatory. We vacated Williams’s sen-
tence and remanded again for re-sentencing consistent
with Booker.
On this second remand, the district court again sen-
tenced Williams to 360 months in prison. Williams (again)
raised his Sixth Amendment objection, which the court
(again) rejected, holding that the failure to have the jury
find drug type and quantity was not a structural error
under “the law as interpreted by the Seventh Circuit.”
II
Williams argues that the district court erred under
Apprendi (and, more accurately, Booker, which is the case
in this line that deals directly with the federal sentencing
guidelines) because it sentenced him to a term that was
No. 05-4405 5
longer than the one that would have been possible based
on the facts found by the jury. He insists that only reversal
will cure this error. The existence of the Booker error is
plain enough to require little discussion. Williams’s second
proposition, however, is more problematic. The difficulty
of prevailing on the crucial second step of his argument
became significantly greater after the briefs were filed
in this appeal as a result of the Supreme Court’s decision
in Washington v. Recuenco, supra. Williams has been
arguing that failure to prove drug type and quantity to
a jury is the kind of structural error that justifies auto-
matic reversal. See United States v. Orozco-Prada, 732
F.2d 1076 (2d Cir. 1984). Recuenco definitively rejects
that position; at this point, only if Williams can show that
the conceded Booker error was not harmless can he
prevail.
Harmless error review is grounded in FED. R. CRIM. P.
52(a), which stipulates that “[a]ny error, defect, irregular-
ity or variance which does not affect substantial rights
shall be disregarded.” Although the error alleged in this
case is of a constitutional dimension, “most constitutional
errors can be harmless.” Neder v. United States, 527 U.S.
1, 8 (1999) (quoting Arizona v. Fulminante, 499 U.S. 279,
306 (1991)). For constitutional errors that do not affect the
“framework within which the trial proceeds,” Neder, 527
U.S. at 8, courts must apply “Rule 52(a)’s harmless error
analysis and must ‘disregar[d]’ errors that are ‘harmless
beyond a reasonable doubt,’ ” Id. at 7 (quoting Chapman v.
California, 386 U.S. 18, 24 (1967)). “The test . . . is
whether it appears ‘beyond a reasonable doubt that the
error complained of did not contribute to the verdict
obtained.’ ” Neder, 527 U.S. at 15 (quoting Chapman, 386
U.S. at 24).
In Recuenco, the Court concluded that “sentencing
factors, like elements, are facts that have to be tried to the
jury and proved beyond a reasonable doubt.” 126 S.Ct. at
6 No. 05-4405
2552. The implication of equating sentencing factors and
elements of a crime for purposes of the requirements of the
jury and the burden of proof is to equate them also for
harmless error purposes. Thus, the Court held in
Recuenco, “an instruction that omits an element of the
offense does not necessarily render a criminal trial funda-
mentally unfair or an unreliable vehicle for determining
guilt or innocence.” Id. at 2551 (emphasis in original).
Accordingly, “[f]ailure to submit a sentencing factor to
the jury, like failure to submit an element to the jury, is
not a structural error,” and harmless error review must
be applied. Id. at 2553. Applied to this case, that means
that we must decide whether the failure to have the jury
decide beyond a reasonable doubt the drug type and
quantity issues that would raise the statutory maximum
from 10 years to life was harmless error.
We reiterate that we now know, with the benefit of 20-20
hindsight, that it was indeed error not to obtain a jury
finding on drug type and amount. As Apprendi put it,
“[o]ther 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 beyond a reasonable doubt.” 530 U.S. at 490. The
Court clarified in Blakely v. Washington that “the ‘statu-
tory 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 defen-
dant.” 542 U.S. 296, 303 (2004) (emphasis in original).
Booker extended these holdings to the federal sentencing
regime. 543 U.S. at 243-44. Under 21 U.S.C. § 841, which
describes the underlying substantive crime that forms the
basis for Williams’s sentence, the statutory maximum
penalty that can be imposed in the absence of special
findings on drug type and amount is 10 years (given
Williams’s criminal history). See 21 U.S.C. § 841(b)(1)(D)
(less than 50 kilograms of marijuana; repeat offender). In
No. 05-4405 7
contrast, as we noted earlier, the maximum penalty for
possessing with intent to distribute more than 50 grams
of crack or five kilograms of cocaine is life in prison. See
21 U.S.C. § 841(b)(1)(A). Williams’s 30-year sentence
plainly exceeds that which would have been possible based
on the facts the jury found. See, e.g., Knox v. United States,
400 F.3d 519, 522 (7th Cir. 2005). The error is, therefore,
obvious.
The central question is whether “it appears ‘beyond a
reasonable doubt that the error complained of did not
contribute to the verdict obtained.’ ” Neder, 527 U.S. at 15(quoting Chapman, 386 U.S. at 24). We are convinced,
beyond a reasonable doubt, that this is the case. The
government presented evidence of crack cocaine that
Williams sold; it obtained that evidence from ledgers that
recorded the drug transactions of the Gangster Disciples,
taken from the home of one of his co-defendants. (The
ledgers themselves were not part of the record on appeal,
but they were summarized in the government’s brief on
direct appeal. In addition to detailing the general structure
of the Gangster Disciples, this summary also lists rec-
ords of specific drug transactions.) Included are records
of drugs being given to Williams to sell, such as “3 ounces
to ‘K-Dog’ [Kevin Williams]” and “4½” for a price of
“$3500.” Three ounces is approximately 85.72 grams, while
four and a half ounces is about 114.28 grams; together
these two transactions alone far exceed the 50 grams of
crack necessary to bring Williams within the statutory
sentencing range of 20 years to life.
In addition, the government presented extensive evi-
dence about the sales of crack and powder cocaine con-
ducted by the drug conspiracy as a whole. Even if we
were to disregard the ledger evidence of Williams’s per-
sonal drug activity (and there is no reason why we should),
he would still be criminally responsible for the drugs
reasonably foreseeable to him that were handled by the
8 No. 05-4405
rest of his co-conspirators. See United States v. Edwards,
945 F.2d 1387 (1991). It is difficult to imagine how a
person in the managerial role of regent in the Gangster
Disciples—an enterprise whose principal business was
dealing crack and cocaine—could not have foreseen the
sale of drugs of a type, and in an amount, sufficient to
trigger § 841(b)(1)(A)’s greater statutory maximum. In
assessing the sentence of Harold Jackson, one of the
other regents in the hundreds, we noted that he could
have been convicted by a jury “of being involved in the
sale of hundreds, if not thousands of grams of crack.”
United States v. Jackson, 236 F.3d 887, 888 (7th Cir.
2001). Williams’s role as a regent was also important. At
sentencing for the regents who presided over the hundreds,
including both Williams and Jackson, the government
singled out Williams for the scope of his role in the drug
conspiracy and asked that the court give him a longer
sentence than the other regents to reflect his greater role
in the drug conspiracy.
At the first sentencing hearing, Judge Marovich calcu-
lated the amount of drugs Williams and the other regents
in the hundreds could reasonably have foreseen were be-
ing sold as part of the conspiracy on the turf that they
governed. The evidence before him showed that the more
than 100 Gangster Disciples in that area were dealing
“15 kilograms of powder a day, or four and a half kilos of
crack per day, without drawing a distinction between those
two controlled substances.” He calculated that approxi-
mately 312 kilos of crack and 2,080 kilos of power were
sold on an annual basis in Williams’s area, with each of
the regents supervising “anywhere from 10 to 12 percent”
of those sales. Those numbers more than satisfied the
court that the regents could be held responsible for “at
least 1.5 kilos of crack, or in the alternative, 150 kilos of
powder.” Given the evidence of the size of the Gangster
Disciples’ crack and cocaine operation in the hundreds
No. 05-4405 9
and Williams’s leadership role, we are satisfied that the
error in failing to submit the questions of drug type and
quantity to a jury was harmless.
The sentence of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-27-07