United States v. Emerson, Sherman ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-3303 and 05-3336
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SHERMAN EMERSON AND WILLIAM E. INGRAM,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 04 CR 201—David F. Hamilton, Judge.
____________
ARGUED JANUARY 9, 2007—DECIDED SEPTEMBER 7, 2007
____________
Before BAUER, RIPPLE, and EVANS, Circuit Judges.
BAUER, Circuit Judge. Sherman Emerson and
William E. Ingram were already known to law enforcement
when a confidential informant, Edwin Douglas, contacted
Detective Kenneth Martinez of the Indianapolis Police
Department in November of 2004 about Ingram’s inter-
est in committing “licks” or “drug rips”—robbing drug
dealers of their drugs. At that time, Ingram had prior
convictions for dealing in a sawed-off shotgun, criminal
confinement, receiving stolen property, and intimidation.
He and Emerson also had been charged with murder
arising from an earlier lick. The Indianapolis Police
Department referred the matter to federal authorities,
2 Nos. 05-3303 and 05-3336
who launched a sting operation that nabbed Ingram and
Emerson, as well as four other individuals. Only Ingram
and Emerson proceeded to trial, where a jury convicted
them of conspiracy to possess with intent to distribute
more than five kilograms of cocaine, in violation of
21 U.S.C. § 841(a)(1). The jury also convicted Ingram of
carrying a firearm in furtherance of a drug-trafficking
crime and being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 924(c) and 922(g), respectively.
Ingram and Emerson appeal their convictions and sen-
tences. We affirm.
I. Background
A. The Sting
Posing as a dealer for a cocaine trafficker, Special
Agent Carlos Canino of the Bureau of Alcohol, Tobacco,
Firearms and Explosives met with Ingram at an Indianap-
olis hotel on November 19, 2004. The meeting was re-
corded by video and audio. At the meeting, “Carlos”
represented to Ingram that he was branching out on his
own in the cocaine-trafficking business and that his
boss was sending twenty kilograms of cocaine from
Miami to Indianapolis a few weeks later. Carlos invited
Ingram, Douglas, who had driven Ingram to the hotel, and
others to steal the cocaine: Carlos would receive 10 kilos;
the other 10 kilos would go to Douglas, Ingram, and their
associates.
Ingram is heard on the surveillance tape discussing his
interest in committing the robbery. He also described his
plan for the robbery. Ingram explained to Carlos that he
would put together a crew of six “killers,” who would be
armed and wearing masks. Ingram further stated that
he carried a “9,” or 9 mm pistol, and that he kept 17 shots.
He considered the robbery of 20 kilos of cocaine a “lifetime
Nos. 05-3303 and 05-3336 3
opportunity,” stating that he had been planning such a
robbery for over two years. He even informed Carlos
that he had committed a similar robbery a week earlier.
Before the meeting ended, Ingram agreed to return to the
hotel the following night so that Carlos could meet
Ingram’s associates and they could continue to plan the
lick.
Driven by Douglas, Ingram returned to the hotel the
following night. Also present for the meeting were Carlos,
defendant Emerson, Deandre Douglas (“D. Douglas”), and
Roderick Nelson. Like the meeting the previous night, this
meeting was monitored and videotaped. For the benefit
of everyone present, Ingram described the plan: there
were 20 “birds,” or kilos, of cocaine; there “would be six of
us going in;” and everyone would be masked and armed.
They would put the Mexicans on their backs, tie them up,
and take the 20 birds. Each person who participated
would receive a “bird.” He also said that they knew how
to do robberies because they had done them before.
Emerson asked when the lick would occur and whether
the warehouse in which the cocaine was being stored
would be left open. He also expressed concern that he
could not participate in the lick because he did not have a
“heater,” or gun. When Carlos asked if anyone had any
questions, Emerson responded, “I’m used to it, I ain’t got
no questions.” Carlos also asked Ingram if those present
constituted the team. Ingram replied that there might
be one more and that he had wanted to bring his guys
to the meeting so that they could meet him, Carlos.
As the meeting was ending, Carlos informed everyone
that he was returning to Miami the next day and that he
would be back in Indianapolis two weeks later to await
the shipment of cocaine. Carlos and Ingram then made
arrangements for Carlos to contact Ingram when he
returned to Indianapolis.
4 Nos. 05-3303 and 05-3336
Between November 20 and December 4, 2004, Douglas
recorded conversations between himself, Ingram, and
others, including a conversation that occurred on Decem-
ber 2 between himself, Ingram, and Emerson. During this
conversation, Ingram informed Emerson that the other
participants in the “Carlos robbery” did not want Emerson
involved because of statements purportedly made by
Emerson that he wanted to kill the Mexicans who were
delivering the cocaine. Emerson also had not yet obtained
a gun. Ingram told Emerson that he would not be allowed
to participate in the lick itself but that he, Emerson,
would nonetheless receive some of the cocaine from the
lick.
On December 4, Ingram, Douglas, D. Douglas, Daniel
Cannon, and Nelson met Carlos at the same hotel. Again,
this meeting was monitored and videotaped. The group
plotted their final strategy for the robbery. Carlos in-
formed everyone that his cocaine supplier would contact
him the next morning with the location of the delivery.
He instructed the group that they would follow him to a
storage facility to pick up a vehicle and then follow him to
the delivery site. Carlos said that he had rented a hotel
room at a Lee’s Inn that night and directed everyone to
stay there that night or to arrive there by early morning
so that they would be ready when he received the call
from his supplier. He gave Douglas a key to the hotel
room.
The following morning, Carlos met Ingram, Douglas, D.
Douglas, Mann, Cannon, and Stephan Coleman at the
Lee’s Inn. They told Carlos that they were ready for the
robbery. Carlos led Ingram and the others to a storage
facility, where he separated himself from the others
and gave an arrest signal. At the signal, Ingram and the
others were arrested. Emerson was arrested at his home
later.
Nos. 05-3303 and 05-3336 5
A search was conducted of the van that Mann had driven
with Cannon and Douglas as passengers. The search
uncovered four guns, ski masks, and duct tape. Later,
Ingram and Mann had a conversation while they were
inside a U.S. Marshal Service transport van. Without their
knowledge, the conversation was recorded. During the
conversation, Mann asked Ingram how many heaters were
in the gym bag. Ingram responded, “1, 2, 3, it should have
been 3.” Ingram also said that he had thrown away a
mask and stocking cap once it was apparent that the
police were there. He also spoke of having obtained a gun
from “Dre,” i.e., Mann.
B. District Court Proceedings
At trial, the government’s evidence consisted primarily
of Agent Canino’s testimony and videotapes of the meet-
ings at the hotel. Over the defendants’ objections, the
government also introduced the tape of the December 2
conversation between Douglas, Ingram, and Emerson and
the recording from the U.S. Marshal Service transport van.
Emerson did not testify or introduce any evidence in his
defense. Ingram asserted an entrapment defense, claiming
that Douglas had coerced him to participate in the rob-
bery. The jury rejected Ingram’s defense, finding Ingram
and Emerson guilty on the conspiracy count and Ingram
guilty of carrying a firearm in furtherance of a drug-
trafficking crime and being a felon in possession of a
firearm.
At his sentencing, Emerson objected to an upward
adjustment of his offense level for possession of a weapon.
He argued further that his offense level required a down-
ward adjustment because his role was minor or minimal.
Overruling both objections, the district court sentenced
Emerson to 327 months of incarceration. At a separate
hearing, the district court sentenced Ingram, who qualified
6 Nos. 05-3303 and 05-3336
as a career offender, to a total of 660 months of incar-
ceration. Ingram and Emerson filed timely appeals, which
we consolidated.
II. Analysis
Ingram and Emerson raise a number of challenges to
their convictions and sentences. Emerson contends that
the district court erred in denying his motion for judgment
of acquittal, arguing that the government’s evidence was
insufficient as a matter of law to support his conviction
for conspiracy. Both Ingram and Emerson argue that
the district court erred in denying their motion for a
mistrial after the government elicited testimony from
Detective Martinez about their involvement in the
earlier drug lick that resulted in a murder. They argue
that such testimony, coupled with the district court’s
failure to give any curative instruction to the jury, de-
prived them of their right to a fair trial. Ingram and
Emerson also argue that the district court erred in admit-
ting the December 2, 2004 recording of the conversation
between Douglas, Ingram, and Emerson and the recording
from the U.S. Marshal transport van. Separately, Emerson
challenges his sentence on the grounds that it was
error for the district court to add a two-point enhance-
ment to his offense level for possession of firearms and
to decline to reduce his offense level based on his minor
role in the offense. Ingram challenges the reasonableness
of his sentence. We address each contention in turn.
A. Sufficiency of Evidence Against Emerson
Emerson argues that the district court erred in denying
his motion for judgment of acquittal because the evidence
was insufficient to support his conspiracy conviction. He
argues that the evidence instead showed that the mem-
Nos. 05-3303 and 05-3336 7
bers of the conspiracy rejected him and that he repudi-
ated any further interest in them when confronted by
this rejection. Our review of the district court’s denial of
a motion for judgment of acquittal is de novo. United
States v. Romero, 469 F.3d 1139, 1151 (7th Cir. 2006).
Emerson faces an uphill battle in his challenge to the
sufficiency of the evidence. This is because “[w]e must
determine whether, after viewing the evidence in the
light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Id. (internal
quotations and citations omitted).
Viewing the evidence in this light, Emerson cannot
sustain his burden. To prove a conspiracy under 21 U.S.C.
§ 846, the government must prove “(1) two or more people
agreed to commit an unlawful act[;] and (2) the defendant
knowingly and intentionally joined in the agreement.”
United States v. Johnson, 437 F.3d 665, 675 (7th Cir. 2006)
(quoting United States v. Gardner, 238 F.3d 878, 879 (7th
Cir. 2001)).
The government presented sufficient evidence of Emer-
son’s involvement in the conspiracy. The videotape of the
meeting on November 20 at the hotel in Indianapolis
showed Emerson asking questions about the plans for the
robbery, e.g., when the lick would take place and whether
the warehouse would be open, and voicing his concerns
about getting a firearm for the robbery. When Carlos asked
if those present in the room constituted the team for the
robbery, Ingram said that there might be one more and
that he had wanted to bring his guys to the meeting to
introduce them to Carlos. He did not exclude Emerson
from the team, nor did Emerson exclude himself. To the
contrary, Emerson said that he did not have any ques-
tions about the robbery in response to Carlos’s invitation
for questions. In fact, according to Emerson, he was “used
to it . . . .”
8 Nos. 05-3303 and 05-3336
Even after Emerson was benched by Ingram and not
allowed to participate in the actual robbery because of the
other participants’ concerns that he, Emerson, was trigger
happy, he remained a member of conspiracy: he stood to
receive a portion of the cocaine recovered during the
robbery and did not engage in any overt act to withdraw
from the conspiracy. “[W]ithdrawal requires an affirma-
tive act on the part of the conspirator. He must either
confess to authorities, or communicate to each of his
conspirators that he has abandoned the conspiracy and its
goals. . . . Mere inactivity is not sufficient. . . .” United
States v. Maloney, 71 F.3d 645, 654-55 (7th Cir. 1995)
(internal quotations and citations omitted). There is
no evidence that Emerson confessed to authorities or
communicated to the other members of the robbery team
that he had renounced the goals of the conspiracy. That
the other members of the conspiracy did not want Emerson
to participate in the actual robbery is not sufficient
to constitute withdrawal, particularly where Emerson
was to benefit from the proceeds of the robbery. The
district court did not err in denying Emerson’s motion for
judgment of acquittal.
B. Evidence of Involvement in Previous Drug Lick
As part of his entrapment defense, Ingram claimed that
Detective Martinez had targeted him unfairly and testified
to that effect. Ingram testified that he had known Detec-
tive Martinez since 2001 and that Martinez was present
when Ingram was arrested in connection with the present
case. Ingram called Detective Martinez as a witness,
asking him how he first came to know Ingram. During
cross-examination, the government elicited testimony
from Detective Martinez about a murder case arising
from a drug lick in which both Emerson and Ingram
were charged. While not mentioning Emerson and Ingram
Nos. 05-3303 and 05-3336 9
by name, the government’s question referenced “two
individuals who are in this courtroom” as being charged in
connection with that murder case. The charges were
dismissed when a key witness “passed away.” Ingram and
Emerson both objected and moved for a mistrial based
on this testimony. The district court overruled their
objections and denied their motions, ruling that Ingram’s
entrapment defense opened the door to this testimony
because it was relevant to the issue of his predisposition
to commit the crime charged but that such evidence
was not admissible as to Emerson. We review the denial
of a motion for a new trial for an abuse of discretion.
United States v. Holt, 486 F.3d 997, 1001 (7th Cir. 2007).
Pursuant to Federal Rule of Evidence 404(b), “[e]vidence
of other crimes, wrongs, or acts is not admissible to prove
the character of a person to show action in conformity
therewith,” but may be admissible for “other purposes,
such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or acci-
dent.” Before such evidence is admitted:
the court must determine whether (1) the evidence is
directed toward establishing a matter in issue other
than the defendant’s propensity to commit the crime
charged, (2) the evidence shows that the other act is
similar enough and close in time to be relevant to the
matter in issue, (3) the evidence is sufficient to sup-
port a jury finding that the defendant committed
the similar act, and (4) the probative value of the
evidence is not substantially outweighed by the danger
of unfair prejudice.
United States v. Wilson, 31 F.3d 510, 514-15 (7th Cir.
1994) (citing cases). Rule 404(b) also allows the govern-
ment to introduce evidence of other bad acts in order to
show predisposition when the defendant raises an entrap-
ment defense. See United States v. Higham, 98 F.3d 285,
292 (7th Cir. 1996).
10 Nos. 05-3303 and 05-3336
By asserting an entrapment defense, Ingram placed at
issue his predisposition to participate in drug licks. See
United States v. Theodosopoulos, 48 F.3d 1438, 1444 (7th
Cir. 1995) (“The lack of predisposition is the principal
element in the entrapment defense.”). In doing so, he
opened the door to evidence of his prior involvement in
drug licks and, specifically, the drug lick that resulted
in a murder. See United States v. Swiatek, 819 F.2d 721,
728 (7th Cir. 1987) (“Evidence of other bad acts is also
admissible to prove predisposition in an entrapment case,
because in such a case the defendant’s predisposition to
commit the charged crime is legitimately at issue.”). He
first raised the issue of the earlier murder case on Detec-
tive Martinez’s direct examination, asking Detective
Martinez about when he first came to know Emerson. The
government followed-up that line of questioning on cross-
examination, eliciting the revelation that the previous
case was a murder arising from a drug lick. While such
evidence was certainly prejudicial to Ingram and his
entrapment defense, it was not unfairly so. And other
than offering the mere assertion, Ingram has not shown
that the district court abused its discretion in finding
the evidence sufficient to support a jury finding that he
had engaged in the earlier drug lick and murder.
In contrast, evidence of the murder in connection with
the drug lick was not admissible as to Emerson because
he did not raise an entrapment defense, and the govern-
ment concedes as much. We conclude, however, that the
district court did not abuse its discretion by denying
Emerson’s motion for mistrial because the error was
harmless. “The test for harmless error is whether, in the
mind of the average juror, the prosecution’s case would
have been ‘significantly less persuasive’ had the improper
evidence been excluded.” United States v. Owens, 424 F.3d
649, 656 (7th Cir. 2005) (quoting United States v. Eskridge,
164 F.3d 1042, 1044 (7th Cir. 1998)). Here, as discussed
Nos. 05-3303 and 05-3336 11
above, the record contained ample evidence from which a
rational fact-finder could convict Emerson of conspiracy
beyond a reasonable doubt. Emerson is seen and heard on
videotape participating in the planning of the robbery. The
jury also heard a recording of the telephone conversa-
tion between Ingram, Emerson, and Douglas in which
Ingram informed Emerson that he could not participate
in the robbery itself but would nonetheless receive some
of the cocaine. Additionally, in its final instructions to
the jury, the district court cautioned the jury that it
was not to consider evidence of the charges brought and
dismissed against Ingram (in connection with the murder)
against Emerson at all. This instruction cured any preju-
dice caused by the reference to the “two individuals” in
the courtroom involved in the previous drug lick, as juries
are presumed to follow instructions. United States v.
Jones, 248 F.3d 671, 676 (7th Cir. 2001). We conclude that
a rational jury would have found Emerson guilty absent
the error.
C. Admission of Recordings
Emerson and Ingram challenge the admission of the
audio tape of the December 2, 2004 conversation between
Ingram, Emerson, and Douglas and the recording of
the conversation between Ingram and the other co-conspir-
ators that occurred in the U.S. Marshal transport van. At
trial, the district court overruled their foundation objec-
tions—the government’s failure to authenticate the tapes
before offering them into evidence—to the admission of
the tapes. We review the district court’s evidentiary
rulings for an abuse of discretion. United States v. Luster,
480 F.3d 551, 556 (7th Cir. 2007). Because we give great
deference to the trial judge’s evidentiary rulings, we will
not reverse unless the record contains no evidence on
which the trial judge rationally could have based its
12 Nos. 05-3303 and 05-3336
decision. United States v. Gajo, 290 F.3d 922, 926 (7th Cir.
2002).
“Before a tape recording may be properly admitted at
trial, Federal Rule of Evidence 901(a) requires the gov-
ernment to offer ‘evidence sufficient to support a finding
that the [tape] in question is what its proponent claims.’ ”
United States v. Eberhart, 467 F.3d 659, 667 (7th Cir.
2006) (quoting United States v. Westmoreland, 312 F.3d
302, 311 (7th Cir. 2002)). The government satisfies this
requirement by offering clear and convincing evidence
that the proffered tape is a true, accurate, and authentic
recording of the conversation between the parties. Id.The government may meet this burden by offering evidence
establishing the tape’s chain of custody or the testimony of
an eyewitness that the recording accurately reflects the
conversation that he or she witnessed or evidence estab-
lishing the chain of custody. Id.With respect to the audio tape of the December 2, 2004
conversation, the government offered the testimony of
Detective Martinez. Detective Martinez explained that he
gave Douglas a recording device at 8:24 p.m., prior to a
meeting with Ingram and Emerson. Detective Martinez
testified that he turned on the device before he gave it
to Douglas, who did know how to turn the device on or
off. Douglas returned the device to Detective Martinez at
10:36 p.m. Detective Martinez stated that he listened to
the tape and was familiar with the voices recorded on the
tape: Ingram’s, Emerson’s, and Douglas’s. Detective
Martinez conceded, however, that he did not personally
monitor the communications on the tape as they were
recorded and that he could not verify whether the tape
had been altered or whether the recorder had been turned
off for periods of time while it was in Douglas’s possession.
Pursuant to an order of the district court, the tape was
redacted, resulting in a recording that was shorter than
the time period that had elapsed between when Douglas
Nos. 05-3303 and 05-3336 13
received the device and when he returned it to Detective
Martinez.
It is questionable whether Detective Martinez’s testi-
mony alone was sufficient to establish by clear and con-
vincing evidence the authenticity of the December 2 tape
recording. In the recent decision in United States v.
Eberhart, this Court found problematic the admission of
an audio tape where the evidence of the tape’s authentic-
ity consisted of the testimony of an agent that he had
equipped a confidential informant with a recording
device before the conversation, that he had removed the
recording device after the conversation, and that the
voices on the tape were the defendant’s and confidential
informant’s. 467 F.3d at 668. In that case, the court was
reviewing the admission of the tape under a plain error
standard, concluding that the defendant had failed to
show that the error in admitting the tape was obvious
and that it affected his substantial rights. Id.
In this case, the district court had evidence in the form
of Detective Martinez’s testimony establishing the loca-
tion of the recording device, that Douglas did not know
how to turn the device on or off, and that the voices on the
tape were those of Ingram, Emerson, and Douglas. In light
of such evidence, we cannot say that the record was devoid
of evidence on which the district court rationally could
have based its decision. Additionally, neither Ingram
nor Emerson has asserted or provided evidence that the
tape was altered or that it is anything other that what
it purports to be. We therefore conclude that, because of
the deference owed to the district court in reviewing its
evidentiary decisions, the district court did not abuse its
discretion in admitting the audio tape of the December 2,
2004 conversation. See United States v. Welch, 945 F.2d
1378, 1383 (7th Cir. 1991) (“[T]he trial court’s ruling on
the admissibility of the tape will not be overturned on
14 Nos. 05-3303 and 05-3336
appeal absent extraordinary circumstances.”) (citations
omitted).
We likewise find that the district court did not abuse
its discretion by admitting the audiotape of the conversa-
tion of Ingram and his co-conspirators that occurred in
the U.S. Marshal transport van. Deputy U.S. Marshal
John Pappas testified that after he placed Ingram, Mann,
D. Douglas, Coleman, and Cannon inside the transport
van, he turned on a recording device. The device recorded
the conversations of Ingram and the others, including
Ingram’s comments about the number of guns in the
gym bag and his disposal of a mask and stocking cap.
Deputy Pappas testified that he did not listen to the
conversations as they were recorded. Detective Ron Gray
testified that Deputy Pappas gave him the tape at the
ATF office later that day, he listened to the original
recording and the cassette copy that was made, and there
were no alterations or deletions to the tape. Based on this
testimony, the district court had some evidence to authen-
ticate the recording and therefore did not abuse its dis-
cretion in admitting the audiotape.
Moreover, as discussed previously, the evidence against
Ingram and Emerson was overwhelming. To the extent
that any error can be ascribed to the admission of
the audiotapes, the error was harmless. The recordings of
the November 19 and 20 meetings were sufficient to
show the existence of a conspiracy to obtain 20 kilos of
cocaine and Ingram’s and Emerson’s membership in the
conspiracy beyond a reasonable doubt.
D. Emerson’s Sentence
With regard to his sentence, Emerson challenges the
district court’s application of a two-level enhancement for
possession of a weapon and the denial of a downward
Nos. 05-3303 and 05-3336 15
adjustment for his minor role in the offense. Our review of
both challenges is for clear error. See United States v.
Luster, 480 F.3d 551, 557 (7th Cir. 2007) (sentencing
court’s fact-finding on the weapon’s enhancement is
reviewed for clear error); United States v. Sandoval-
Vasquez, 435 F.3d 739, 745 (7th Cir. 2006) (sentencing
court’s denial of a minor participant adjustment is re-
viewed for clear error). We find no clear error with regard
to Emerson’s sentence.
1. Firearm Enhancement
Emerson contends that the district court erred in
applying a weapons enhancement to his offense level
pursuant to § 2D1.1(b)(1), an argument he failed to
raise first in the district court. Our review is therefore
for plain error, but we find no error here.
“Section 1B1.3(a)(1)(B) makes clear that defendants
can also be on the hook for firearms possessed by their co-
conspirators so long as such possession was reasonably
foreseeable.” United States v. Artley, ___ F.3d ___, 2007 WL
1598108 n.5 (7th Cir. June 5, 2007) (quoting Luster, 480
F.3d at 558). The record was replete with evidence that
firearms were involved in the drug lick. Not only
was Emerson himself heard on tape expressing his con-
cerns about not being able to obtain a gun in time for the
lick, Ingram is heard discussing his 9 mm “heater” and
explaining to those present at the November 20 meeting,
including Emerson, that everyone would be armed dur-
ing the robbery. Such evidence established that it was
clearly foreseeable to Emerson that his co-conspirators
would have firearms in their possession when committing
the lick. Based on this record, the district court did not
err in applying the two-level firearm enhancement to
Emerson’s sentence.
16 Nos. 05-3303 and 05-3336
2. Role in Offense
The Sentencing Guidelines provide for a two-level
decrease in offense level when the defendant is a “minor
participant” in the offense. Sandoval-Vasquez, 435 F.3d
at 745. The relevant commentary defines “minor partici-
pant” as a defendant “who plays a part in committing the
offense that makes him substantially less culpable than
the average participant” and “who is less culpable than
most other participants, but whose role could not be
described as minimal.” Id. A “minimal participant,” a
defendant who is plainly among the least culpable of
those involved, may receive a four-level downward de-
crease in offense level. U.S.S.G. § 3B1.2 comment (n. 1).
The defendant must show by a preponderance of the
evidence that he is entitled to either adjustment.
In rejecting Emerson’s request for a downward adjust-
ment for his role, the district court explained that while
Emerson did not play a leadership or managerial role
in the planned robbery, the role that he had agreed to
play was neither minor nor minimal: “He agreed to go in
and was prepared to go in with a gun, ready to carry out
the robbery and ready to use the gun, if needed.” The
district court also recognized that Emerson was to re-
ceive a portion of the cocaine recovered during the lick
despite not being allowed to participate in the robbery.
He stood to profit from the conspiracy without having to
perform the robbery itself, which does not suggest that
he was less culpable than the others. In any event, while
it is possible that the district court could have found
Emerson to be less culpable than his co-conspirators who
were seized in the storage facility while attempting the
drug lick, the district court did not do so, and Emerson has
not shown that this was clear error.
Nos. 05-3303 and 05-3336 17
E. Ingram’s Sentence
The district court sentenced Ingram to a total of 660
months’ imprisonment: 600 months’ imprisonment on the
conspiracy count to run consecutively with 60 months’
imprisonment on the firearm possession count, plus a
concurrent term of 120 months’ imprisonment on the felon
in possession count. Conceding that his conviction on the
conspiracy count qualified him as a career offender under
U.S.S.G. § 4B1.1, which put him in an advisory guide-
line range of 360 months to life, he argues that his sen-
tence does not conform to the sentencing factors specified
in 18 U.S.C. § 3553(a). He asserts that his sentence is
greater than necessary to comply with the purposes of
§ 3553(a)(2); that his sentence is disproportionately
severe when compared with the average sentence im-
posed on career offenders sentenced around the country
in drug-trafficking cases; and that it is more than is
necessary to afford adequate deterrence and to protect
the public from him in the future.
Our review of the sentencing court’s application of the
§ 3553(a) sentencing factors is deferential. United States v.
Jung, 473 F.3d 837, 844 (7th Cir. 2007). “Post-Booker, a
district court must engage in a two-part sentencing
procedure: (1) properly calculate the Guidelines sentence;
and (2) consider the sentencing factors set forth in 18
U.S.C. § 3553(a) to arrive at a reasonable sentence.”
United States v. Holt, 486 F.3d 997, 1004 (7th Cir. 2007).
The district court is not required to make findings as to
each § 3553(a) factor; instead, “[i]t is enough that the
record confirms meaningful consideration of the types of
factors that § 3553(a) identifies.” United States v. Laufle,
433 F.3d 981, 987 (7th Cir. 2006). “[A]ny sentence that
is properly calculated under the Guidelines is entitled to a
rebuttable presumption of reasonableness.” United
States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). See
Rita v. United States, ___ U.S. ___, 127 S. Ct. 2456 (June
18 Nos. 05-3303 and 05-3336
21, 2007) (noting that the presumption of reasonable-
ness applies only on appellate review).
In this case, the record shows that the district court
considered carefully the § 3553(a) factors, cogently ex-
plaining its reasoning for the sentence imposed:
“The offense was a conspiracy to possess with intent to
distribute and to distribute 20-kilograms of cocaine, to
distribute that material in the community where it
tears up individual lives, families and neighborhoods . . . .
The conspiracy was to go forward and obtain this material
with guns.” The district court noted that the offense was
not even a typical drug distribution conspiracy: “This was
a conspiracy to engage in conduct that was far more
dangerous to carry out, an armed robbery of victims who
in all likelihood would themselves be armed.” Had the
robbery been what Ingram and his co-conspirators ex-
pected, the district court explained, “[c]hances are that
this robbery would have launched further retaliation
and further violence in the community. . . .”
The district court also explained that Ingram was an
organizer and leader of the conspiracy and his long
criminal record showed “violence, abuse, bullying of those
who are weaker and not armed. They show someone
who has no respect for the law, civilization that binds us
together, someone who is constantly making threats.”
Comparing Ingram’s sentence with the sentences of the
other defendants, the district court recognized that
Ingram’s sentence was heavier but justified by his role
as leader and organizer, his more serious criminal history,
and his failure to accept responsibility for his actions,
which four of his co-conspirators did. The district court
further justified the sentence, explaining that the most
important factors in arriving at the sentence were the
need to protect the public from future crimes committed
by Ingram and the need to deter him and others from
future criminal conduct. We are satisfied with the dis-
Nos. 05-3303 and 05-3336 19
trict court’s consideration of the § 3553(a) factors in
imposing Ingram’s sentence and will not disturb its ruling.
III. Conclusion
For the foregoing reasons, Ingram’s and Emerson’s
convictions and sentences are AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-7-07