United States v. Wilson, Daryl R. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1870
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DARYL RAMONE WILSON, SR.,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 05 CR 30031—William D. Stiehl, Judge.
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ARGUED JANUARY 5, 2007—DECIDED SEPTEMBER 18, 2007
____________
Before FLAUM, MANION, and SYKES, Circuit Judges.
SYKES, Circuit Judge. The district court sentenced Daryl
Wilson to 180 months’ imprisonment after he pleaded
guilty to possessing 488 grams of cocaine with intent to
distribute. Wilson’s advisory sentencing guidelines
range reflected enhancements for obstruction of justice
and relevant conduct, as well as criminal history enhance-
ments for committing the present offense while on super-
vised release and within two years of his release from
federal prison in 1998. Wilson attacks these enhance-
ments on two grounds. First, he claims they are the
product of unconstitutional judicial factfinding. Second, he
argues the district court erroneously concluded that
more than 5 kilograms of cocaine was attributable to
2 No. 06-1870
him as relevant conduct and that he obstructed justice in
the course of attempting to flee federal agents.
We have repeatedly rejected Wilson’s first argument
and do so again here. We also find no error in the district
court’s specific application of the guidelines. The record
establishes that the 488-gram cocaine sale that formed
the basis for the charged offense was merely the latest
in a continuous series of large cocaine deals Wilson
participated in since his release from federal prison in
1998. These deals, which easily totaled well over 5 kilo-
grams, occurred monthly (sometimes twice a month),
involved the same cast of characters and a common
accomplice, and all took place in the St. Louis area. Thus,
the district court did not err in attributing at least 5
kilograms of cocaine to Wilson as relevant conduct or in
applying the criminal history enhancements. Finally, the
court properly applied the obstruction enhancement
because Wilson’s vehicular movements upon being con-
fronted by federal agents were sufficient to constitute
“flight” as that term is defined by the applicable guideline.
I. Background
On February 13, 2004, a confidential informant told
federal agents that Daryl Wilson was about to make a
large cocaine sale in a gas station parking lot in St. Clair
County, Illinois. The agents staked out the gas station on
the lookout for Wilson’s car, a black Pontiac. When a black
Pontiac pulled into an adjacent parking lot, several agents
in uniform approached the car to investigate. One agent
parked his van behind the Pontiac and walked toward
the driver’s window. The driver of the Pontiac, later
identified as Wilson, began to pull forward as if to leave
but stopped when the car of a second agent pulled up and
blocked his path. The second agent drew his weapon and
pointed it at Wilson, who responded by shifting his car
No. 06-1870 3
into reverse and backing up a few feet. The car’s back-
ward lurch caused the first agent, who was alongside the
driver’s side of the Pontiac, to fear for his own safety and
draw his weapon. This episode forms the basis for the
sentencing guidelines enhancement Wilson received for
obstructing justice under U.S.S.G. § 3C1.2.
After ordering Wilson out of his car, the agents looked
in the backseat and found 488 grams of cocaine. Later
that day Drug Enforcement Agency (“DEA”) agents
interviewed Wilson, who admitted possessing the 488
grams of cocaine with intent to deliver. In addition, Wilson
told the agents that since June 2003, he had purchased at
least 1.125 kilograms of cocaine from a dealer named
“Mike.” Wilson said that he also sold cocaine to various
customers, including at least 1 kilogram to Manfred
McGee. McGee, who was already cooperating with the
DEA, had previously told investigators that Wilson
obtained half-kilogram packages of cocaine from a dealer
named Bill Cooper at least twice a week (McGee brokered
these deals for a $2000 fee).
Later that day, a confidential informant confirmed
that since Wilson’s release from federal prison in 1998,
Wilson regularly obtained at least 1 to 2 kilograms of
cocaine per month from Cooper. After Wilson’s arrest, two
other men admitted purchasing a total of 765 grams of
cocaine from Wilson. Together with Wilson’s admissions
during the interview, these witness statements led the
district court to conclude under U.S.S.G. § 2D1.1(c) that
more than 5 kilograms of cocaine was attributable to
Wilson as relevant conduct for sentencing purposes. The
jump from 488 grams to more than 5 kilograms resulted
in an 8-level increase in Wilson’s base offense level,
which increased from 24 to 32. Because his 2-level down-
ward adjustment for acceptance of responsibility was
offset by his 2-level obstruction adjustment, 32 was also
Wilson’s total offense level.
4 No. 06-1870
Wilson’s prior cocaine dealing also affected the computa-
tion of his criminal history category. Based on Wilson’s
confession and the foregoing witness statements, the
district court found that Wilson had been “in the busi-
ness . . . of dealing in cocaine” since before 2003. The
district court’s treatment of Wilson’s prior drug dealing
as relevant conduct essentially folded it into the present
offense for criminal history purposes. U.S.S.G. § 4A1.1 cmt.
nn.4 & 5 (2005). Consequently, the court determined
Wilson committed the offense within two years of his
release from prison in 1998 and while on supervised
release (which expired in June 2003), which resulted in a
3-point criminal history enhancement under U.S.S.G.
§ 4A1.1(d)-(e). The Category III criminal history, when
combined with Wilson’s offense level of 32, yielded an
advisory guidelines range of 151 to 188 months. The
court overruled Wilson’s objections to the guidelines
enhancements and imposed a sentence of 180 months.
II. Discussion
Wilson asks us to reduce his sentence to 57 months. He
maintains he should not have received the relevant
conduct, obstruction of justice, or criminal history en-
hancements, and that his guidelines range should only
reflect the 488 grams of cocaine he pleaded guilty to
possessing. He identifies that range as 45 to 57 months,
but believes 57 months is appropriate in light of the
district court’s decision to sentence him at the high end of
the advisory range. In support of his position, Wilson
first makes a legal argument: that the guidelines en-
hancements are unconstitutional under Apprendi1 and
its progeny because they are premised upon conduct
1
Apprendi v. New Jersey, 530 U.S. 466 (2000).
No. 06-1870 5
neither admitted by him nor found by a jury. He also
makes the factual claim that the evidence does not sup-
port the district court’s application of the guidelines
enhancements.
Wilson’s request that we “resentence” him to 57 months
is improper; the choice of sentence is for the district
court, not the court of appeals. Wilson’s constitutional
argument is “frivolous . . . and it ignores the effect that
Booker had on federal sentencing.” United States v. White,
472 F.3d 458, 464 (7th Cir. 2006). We have repeatedly
rejected it, reminding counsel that the constitutionality
of judicial factfinding under the guidelines was resolved
when the Supreme Court rendered the guidelines advisory
in the remedial opinion in United States v. Booker, 543
U.S. 220, 233-34 (2005). White, 472 F.3d at 464; see also
United States v. Owens, 441 F.3d 486, 490 (7th Cir. 2006);
United States v. Robinson, 435 F.3d 699, 701-02 (7th Cir.
2006); United States v. Bryant, 420 F.3d 652, 656 (7th Cir.
2005); United States v. LaShay, 417 F.3d 715, 719 (7th Cir.
2005).
We review the district court’s application of the guide-
lines and its underlying factual findings for clear error.
United States v. Stitman, 472 F.3d 983, 986 (7th Cir.
2007). A finding that a defendant’s relevant conduct
includes uncharged drug quantities is a factual determina-
tion entitled to our deference “unless we have a definite
and firm conviction that a mistake has been made.” United
States v. Fudge, 325 F.3d 910, 920 (7th Cir. 2003). Never-
theless, because uncharged drug quantities can add
months or years (over eight years in Wilson’s case) to a
defendant’s advisory guidelines range, the evidence re-
lied upon by the district court at sentencing must bear
sufficient indicia of reliability. See United States v. Acosta,
85 F.3d 275, 292 (7th Cir. 1996). In Wilson’s case, there
must be reliable evidence to support the district court’s
6 No. 06-1870
findings that (1) Wilson possessed at least 5 kilograms of
cocaine, and (2) that the uncharged transactions were
properly deemed relevant conduct, i.e., that under U.S.S.G.
§ 1B1.3(a)(2), they were “part of the same course of
conduct or common scheme or plan” as Wilson’s offense of
conviction—possession of 488 grams with intent to dis-
tribute on February 13, 2004. See id. at 279.
The district court did not commit clear error in finding
Wilson possessed more than 5 kilograms of cocaine. Wilson
himself admitted possessing at least 1.613 kilograms (the
488 grams he pleaded to plus the 1.125 kilograms he
admitted purchasing from “Mike”). Two other witnesses
admitted purchasing at least 765 additional grams from
Wilson, bringing the total to roughly 2.4 kilograms.
Together with (1) Wilson’s admission that he had been
purchasing additional quantities for resale from “Mike”
since June 2003, (2) McGee’s statement that Wilson made
half-kilogram purchases from Cooper at least twice a
week, and (3) the confidential informant’s confirmation
that Wilson had been purchasing 1 to 2 kilograms per
month from Cooper since his release from prison in 1998,
reliable evidence supports the finding that Wilson pos-
sessed at least 5 kilograms of cocaine with intent to
distribute.
That the court had to estimate the drug quantity be-
yond the 2.4 kilograms specifically accounted for is imma-
terial. See United States v. Romero, 469 F.3d 1139, 1147
(7th Cir. 2006) (“In determining relevant conduct, ‘the
district court is entitled to estimate drug quantity using
testimony about the frequency of dealing and the amount
dealt over a specified period of time.’ ” (quoting United
States v. Noble, 246 F.3d 946, 952 (7th Cir. 2001))). Nor
does it matter, as Wilson complains in his brief, that the
drug quantity finding was partially based on the “asser-
tions of criminals quoted in police reports furnished to the
probation officer.” Reliable drug quantity evidence need
No. 06-1870 7
not come directly from sworn witnesses at sentencing. It
may also come from the presentence report provided the
report is itself based on reliable witness statements;
convicted felons and confidential informants are not
categorically unreliable, as Wilson appears to suggest. See
id. Wilson gives no other reason for discrediting the
statements of the witnesses contained in the presentence
report and testified to at sentencing by the DEA agent
who took them. The evidence was sufficient to support the
district court’s drug quantity finding.2
Whether Wilson’s possession of those 5 kilograms of
cocaine was relevant conduct requires somewhat more
comment. The relevant conduct “aggregation” rule, see
U.S.S.G. §§ 1B1.3(a)(2), 2D1.1, is a powerful prosecutorial
tool. The offense level for a relatively minor drug crime
may be dramatically increased when uncharged drug
quantities introduced at sentencing are aggregated.
United States v. Ortiz, 431 F.3d 1035, 1040 (7th Cir. 2005).
This is a logical outgrowth of the “real offense” philosophy
embodied in the guidelines, see U.S.S.G. § 1A1.1 cmt. n.1,
but we have previously stated that we will carefully
scrutinize uncharged relevant drug conduct to ensure it
bears “the necessary relation to the convicted offense.”
United States v. Bacallao, 149 F.3d 717, 719, 721 (7th Cir.
1998) (quoting United States v. Duarte, 950 F.2d 1255,
1263 (7th Cir. 1991)); see also Ortiz, 431 F.3d at 1041
2
Wilson also claims the district court erred by denying his oral
request at sentencing that the government furnish the court
with the criminal history reports of the witnesses listed in the
presentence report. In denying the motion, the judge stated he
was already familiar with the backgrounds of the witnesses.
Determining the reliability of hearsay testimony at sentencing
is firmly within the district court’s discretion, United States v.
Garcia, 66 F.3d 851, 858 (7th Cir. 1995), and we find no abuse
of discretion here.
8 No. 06-1870
(vacating sentence because relevant drug conduct not
sufficiently related).
The mere fact that Wilson engaged in drug transactions
other than the one underlying his offense of convic-
tion does not automatically make those transactions
relevant conduct. Ortiz, 431 F.3d at 1041. Relevant
conduct must be “part of the same course of conduct or
common scheme as the offense of conviction.” U.S.S.G.
§ 1B1.3(a)(2). Because the clear error standard also
governs this inquiry, we begin with the district court’s
specific findings regarding whether the prior drug trans-
actions were part of the same course of conduct or common
scheme as Wilson’s February 2004 drug deal. Acosta, 85
F.3d at 280. We have generally required the district court
to explicitly state and support its finding that uncharged
drug quantities are sufficiently related to the offense
of conviction. United States v. Arroyo, 406 F.3d 881, 889
(7th Cir. 2005).
Here, neither the district court nor the presentence
report writer explicitly used the phrases “same course of
conduct” or “common scheme.” But the court did find at
sentencing that Wilson had been regularly dealing cocaine
since his release from prison in 1998; that he was a part
of an “ongoing circle of dealers” from whom he bought and
sold during that time; and that he was a sophisticated
dealer who typically trafficked in large quantities of
cocaine. That the court failed to invoke the specific phrase-
ology of U.S.S.G. § 1B1.3(a)(2) does not mean it failed to
make the necessary finding. See Acosta, 85 F.3d at 280(noting that even a failure to make any express find-
ings does not necessarily preclude us from upholding a
relevant conduct finding). The district judge plainly
believed Wilson’s uninterrupted, large-scale cocaine
trafficking constituted both a “common scheme” and was
part of the “same course of conduct” as his offense of
conviction.
No. 06-1870 9
More specifically, to be a “common scheme,” Wilson’s
offense of conviction and the uncharged conduct must “be
substantially connected to each other by at least one
common factor, such as common victims, common accom-
plices, [or] common purpose.” U.S.S.G. § 1B1.3(a)(2) cmt.
n.9(A). Because “Mike” sold Wilson the 488 grams leading
to his conviction, Wilson’s additional cocaine purchases
from “Mike” (at least 1.125 kilograms since June 2003)
involved a common accomplice and were properly deemed
relevant conduct. United States v. Delatorre, 406 F.3d 863,
867 (7th Cir. 2005). Moreover, the record indicates Wilson
planned on selling the 488 grams involved in the offense of
conviction to McGee, the same dealer who admitted
regularly brokering half-kilogram cocaine deals between
Wilson and Cooper. McGee also said these Wilson-Cooper
deals happened two to three times per week, though he
never mentioned the date on which they commenced. That
information was instead supplied by the confidential
informant, who stated that Wilson began buying from
Cooper upon his release from federal prison in 1998.
Accordingly, the record establishes that McGee was a
common accomplice in the large Wilson-Cooper transac-
tions that had been regularly occurring since 1998.
McGee’s presence ties the Wilson-Cooper deals to the
Wilson-“Mike” deals and shows a continuous and com-
mon scheme—or, as the district court put it, an “ongoing
circle of dealers.”
The Wilson-Cooper deals were also properly considered
part of the “same course of conduct” as the 488-gram
Wilson-“Mike” deal. Uncharged transactions are part of
the same course of conduct as the offense of conviction if
they are so related as to “warrant the conclusion that they
are part of a single episode, spree, or ongoing series of
offenses.” U.S.S.G. § 1B1.3(a)(2) cmt. n.9(B). Decisive
factors include the “similarity of the offenses, the regular-
ity (repetitions) of the offenses, and the interval between
10 No. 06-1870
the offenses.” Id. Based in part on the Wilson-Cooper
deals, the district court found that Wilson “was involved
in dealing in cocaine from the time he was released
from his prior sentence up until the time he was arrested.”
The court also found that Wilson regularly dealt in large
quantities of cocaine during this period, whether ob-
tained from Cooper or “Mike.” Put another way, the court
viewed the 488-gram sale Wilson was in the process of
making in February 2004 as the latest in an unbroken
series of large cocaine deals Wilson regularly made in
the St. Louis area from 1998 until his arrest.
Accordingly, the district court did not clearly err in
treating Wilson’s prior cocaine transactions as relevant
conduct for offense level purposes. It follows necessarily
that the court also properly enhanced Wilson’s criminal
history category under U.S.S.G. § 4A1.1. That guidelines
provision adds three criminal history points if the defen-
dant committed the “instant offense” while on supervised
release and within two years of release from imprison-
ment. U.S.S.G. § 4A1.1(d)-(e). Application note 4 makes
clear that the “instant offense” includes relevant conduct,
which in Wilson’s case includes the large drug deals he
made with Cooper that began upon Wilson’s release from
prison in 1998. Any deal Wilson made with Cooper in 1998
obviously occurred within two years of his release from
prison and during his term of supervised release, which
ran from 1998 to 2003.
Wilson’s lone remaining challenge concerns his 2-level
obstruction enhancement for recklessly endangering
agents while attempting to flee the parking lot. The
relevant guideline applies to any defendant who “reck-
lessly created a substantial risk of death or serious bodily
injury to another person in the course of fleeing from a
law enforcement officer.” U.S.S.G. § 3C1.2. Wilson does
not challenge the district court’s finding that he reck-
lessly endangered the agents by moving his car forward
No. 06-1870 11
and backward with the agents in close proximity. He
instead argues that such minor vehicular movements
cannot constitute intentional flight or attempted flight. We
disagree, as a defendant need not be engaged in full-
fledged flight for the guideline to apply. The application
notes explain that reckless endangerment during flight
is “to be construed broadly and includes preparation
for flight.” U.S.S.G. § 3C1.2 cmt. n.4.
The district court found that after seeing the first agent
pull up behind him, Wilson drove his car forward but
was stopped after a short distance because a second agent
pulled in front of him and blocked his path. Hemmed in
from the front, Wilson then put his car in reverse and
backed up toward the first agent. The court held that
“Wilson was attempting to flee these officers, and . . . he
nearly struck or rammed their vehicles.” The district
court’s findings, which were based on the credible testi-
mony of one of the arresting agents and are not clearly
erroneous, support the court’s conclusion that Wilson was
preparing to flee. The obstruction enhancement was
properly applied.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-18-07