United States v. White, Juan ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4185
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JUAN WHITE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 03-CR-20092—Michael P. McCuskey, Chief Judge.
____________
ARGUED DECEMBER 7, 2007—DECIDED MARCH 5, 2008
____________
Before POSNER, ROVNER and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. Juan White was convicted by a
jury of distribution of 50 grams or more of cocaine base
(crack cocaine) in violation of 21 U.S.C. § 841(a)(1). During
the trial, the district court allowed the government to
introduce evidence that its main witness had cooperated
in other cases in order to rehabilitate him, a ruling White
now appeals. Following the trial, the district court sen-
tenced White to 360 months of imprisonment. White
also appeals this sentence. We affirm.
2 No. 06-4185
I.
In 2000, Juan White was the subject of a government drug
investigation in Decatur, Illinois. Troy Fuller, who was
similarly under investigation at that time, was arrested on
drug charges in March 2000 and began cooperating
with authorities. As Fuller previously had purchased
powder cocaine from White, the police instructed Fuller to
contact White and attempt to set up a controlled purchase
of two ounces of crack cocaine. On August 27, 2000, White
and Fuller agreed to meet at a car wash to complete the
purchase. When White arrived a few minutes after Fuller
(who was outfitted with a wire transmitter), he entered
the backseat of Fuller’s car and gave Fuller what was
later determined to be 57.2 grams of crack. Fuller paid
White $1800 and asked him whether he had any “soft”
(meaning powder) cocaine. White responded that he
was hoping to obtain some that night and to call him
within the next few days.
More than three years later, on October 9, 2003, White
was arrested for the August 2000 sale of crack to Fuller. At
that time agents also seized a number of firearms. White
was charged in an indictment (later superseded) with the
August 2000 sale of crack as well as the October 2003
possession of a firearm by a felon. White pleaded guilty
to the firearm charge and proceeded to a jury trial on the
drug charge.
At the trial, Fuller, testifying on behalf of the govern-
ment, recounted his August 2000 transaction with White
and also told the jury that he was testifying pursuant to
a plea agreement with the government in the hopes that
his sentence would be reduced. On cross-examination,
White’s counsel attacked Fuller’s credibility, focusing on
the fact that Fuller was relying on the government to seek
No. 06-4185 3
to reduce what otherwise would be a mandatory mini-
mum sentence. In light of this line of questions, the prose-
cutor requested that he be permitted to rehabilitate his
witness with evidence concerning the cooperation Fuller
had provided to the government in other cases. Following
a hearing, the district court determined that White’s
“full frontal attack” on Fuller’s credibility warranted the
government’s rehabilitation of Fuller. Tr. 374. The gov-
ernment then elicited testimony from an FBI agent describ-
ing three other drug cases in which Fuller had cooperated:
one in which Fuller’s information led to the seizure and
forfeiture of $16,000 and two others which resulted in
guilty pleas. Both at the time this evidence was introduced
and again when he was charging the jury at the close of the
case, the district judge instructed the jurors that this
evidence was admitted only for purposes of evaluating
Fuller’s credibility and not as evidence against White. The
jury, as we have mentioned, convicted White on the drug
distribution charge.
White’s conviction for distributing more than 50 grams
of crack cocaine, coupled with a prior felony drug con-
viction, required a sentence of between 20 years and life in
prison. 21 U.S.C. § 841(b)(1)(A)(iii). Within that statu-
tory range, the sentence recommended by the Sentencing
Guidelines turned in large part on the quantity of
drugs underlying White’s offense. The presentence
report (“PSR”) held White accountable not only for the
57.2 grams of crack cocaine that he sold to Fuller in
August 2000, but also for ten additional sales of crack and
powder cocaine to Fuller and two others, Frederick Porter
and Jeremiah Young, between 1994 and 2003. Those
additional sales were treated as relevant conduct. See
U.S.S.G § 1B1.3(a)(2) and comment n.3. In total, the PSR
4 No. 06-4185
held White accountable for 68.65 kilograms of powder
cocaine and 3.37 kilograms of crack, resulting in a base
level offense of 38.1 White objected not only to the PSR’s
drug calculation, but also to the “deliberate nature of the
sting operation” which, according to White, unfairly
resulted in the triggering of the mandatory sentencing
provisions of 21 U.S.C. § 841(b)(1)(A)(iii). To resolve
these issues, the district court held a number of sentenc-
ing hearings during which Porter and Young, among
others, testified. At the conclusion of these hearings the
court determined that the agents’ direction to Fuller to
purchase the two ounces of crack was neither sentence
entrapment nor sentence manipulation and that the
drug sales as presented in the PSR were properly attribut-
able to White as part of the same course of conduct as the
offense of conviction. Adopting the recommendations
of the PSR, the court found the advisory guidelines range
to be 360 months to life and, after hearing both the gov-
ernment’s recommendations and White’s arguments as
to an appropriate sentence, the court sentenced White to
360 months’ imprisonment.2
II.
A.
White first contests the district court’s ruling which
allowed the government to introduce evidence of Fuller’s
1
White received a three-level enhancement for his managerial
role which he does not challenge. His total offense level at the
time of his sentencing, then, was 41.
2
White was also sentenced to a concurrent 120 month term on
the firearm charge.
No. 06-4185 5
cooperation in other cases in order to rehabilitate him as
its witness.3 We review a district court’s admission of
evidence for abuse of discretion. E.g., United States v.
Bonner, 302 F.3d 776, 780 (7th Cir. 2002). We find there
was no such abuse here and consequently we affirm the
lower court’s ruling.
This Circuit previously has established that a wit-
ness whose credibility has been attacked may be rehabili-
tated (e.g., United States v. Lindemann, 85 F.3d 1232, 1242-43
(7th Cir. 1996)), and where, as here, it is a government
witness who is portrayed as biased in favor of the gov-
ernment, evidence of that witness’s cooperation in other
cases may be admitted for that purpose. E.g., United States
v. Henderson, 337 F.3d 914, 919 (7th Cir. 2003); United States
v. Scott, 267 F.3d 729, 735-37 (7th Cir. 2001). When cross-
examining Fuller, White’s counsel attempted to sug-
gest that Fuller’s desire for government leniency in the
pending case against him made it likely that he was lying
about his transaction with White in order to curry favor
with the government. Without the evidence later intro-
duced by the government that Fuller had cooperated in
other successful cases, the “jury might have believed
that [Fuller’s] plea deal rested solely on [White’s] case,
3
In addition to the brief filed by White’s counsel, we allowed
White to file his own supplemental brief to address two discrete
issues: this one, and the question of whether the court improp-
erly denied him an entrapment defense. (Order, July 16, 2007.)
In his pro se brief, White does not tackle the latter at all but
does raise three other issues well outside the scope of the
Court’s order. Of the arguments raised in White’s supple-
mental brief, therefore, we consider only the question of Fuller’s
rehabilitation.
6 No. 06-4185
thereby making a motive to frame [White] all the more
reasonable.” Henderson, 337 F.3d at 919. The government’s
evidence of Fuller’s other cooperation was relevant because
it made the jury aware that Fuller had other, “multiple
bargaining chips” vis-à-vis the government, making it
less likely that he was lying in this case out of self-interest.
See Scott, 267 F.3d at 736. In addition, the court’s admoni-
tions to the jury about considering this evidence only
insofar as it related to Fuller’s credibility further served
to mitigate any potential for unfairness to White. Id.B.
White also argues that the government’s specific instruc-
tion to Fuller to buy two ounces of crack from him, an
amount of the drug that triggers a mandatory minimum
sentence under the 21 U.S.C., § 841(b)(1)(A)(iii) (in this
case 20 years with a prior felony drug conviction), was
so “outrageous” that White’s rights clearly were vio-
lated. The fundamental unfairness arises, White theorizes,
from the fact that the police “chose a substance and an
amount with the express purpose of manipulating
the mandatory sentencing provisions…..” This broad,
nebulous argument is without merit. First, this circuit
clearly and consistently has refused to recognize any
defense based on either “sentencing manipulation” or on
asserting “outrageous government conduct.” See United
States v. Veazey, 491 F.3d 700, 710 (7th Cir. 2007) (no defense
of sentencing manipulation) (coll. cases); United States
v. Sherman, 268 F.3d 539, 549 (7th Cir. 2001) (“outrageous
government conduct” is not a recognizable defense) (citing
No. 06-4185 7
United States v. Boyd, 55 F.3d 239, 241 (7th Cir. 1995)).4
Although this might potentially leave White with an
argument of “sentencing entrapment,” White himself
acknowledges that the government’s actions do “not
necessarily qualify as sentence entrapment or sentence
manipulation…..” (White Br. at 13.) Regardless, even if
White had cogently made the argument of sentence en-
trapment, no such finding is warranted here.
Sentencing entrapment occurs in situations when a
defendant who lacks a predisposition to engage in more
serious crimes nevertheless does so “as a result of ‘unre-
lenting government persistence.’ ” Veazey, 491 F.3d at 710(quoting United States v. Hale, 448 F.3d 971, 989 (7th Cir.
2006), cert. denied, 127 S.Ct. 1020 (2007)). To overcome
this argument, the government need not explain or de-
fend its motives, but must show only that the defendant
was in fact predisposed to violate the law without “ex-
traordinary inducements.” Id.Here the evidence reveals that White clearly was predis-
posed to distribute crack: White admitted to selling
both cocaine powder and crack to various customers;
there was testimony from other drug purchasers that
White engaged in multiple, individual sales of large
quantities of crack; and Fuller did not offer White any
“extraordinary inducements” whatsoever to make the
sale. In spite of the fact that the purchase was a depar-
ture from Fuller’s previous buying patterns with White,
the fact that White, a drug dealer with a history of dealing
4
White spends a good part of his brief attempting to sway this
Court with arguments in favor of these theories accepted by
other Circuits, to no avail.
8 No. 06-4185
crack, readily acceded to Fuller’s request undercuts any
possible theory of sentence entrapment in this case. We
affirm the district court’s ruling on this issue.
C.
Finally, White appeals from the district court’s calcula-
tion of the quantity of drugs involved in his offense,
claiming that it was improper to hold him accountable
for ten additional drug transactions over a nine-year
period, the inclusions of which increased White’s offense
level from 32 to 38 and effectively nearly doubled the
sentencing range. We review the lower court’s calcula-
tions for clear error. United States v. Olson, 450 F.3d 655,
685 (7th Cir. 2006).
Section 1B1.3(a)(2) of the Guidelines provides that all acts
and omissions that were “part of the same course of
conduct or common scheme or plan as the offense of
conviction” should be considered “relevant conduct” for
sentencing purposes. Conduct that qualifies as relevant is
factored into the Guidelines’ sentencing calculations as
if the defendant had been convicted of that conduct,
even though the defendant was neither charged nor
convicted of the additional crime or crimes. E.g., United
States v. Artley, 489 F.3d 813, 822 (7th Cir.), cert. denied,
128 F.3d 415 (2007). The critical inquiry is whether the
offenses are “sufficiently connected or related to each
other 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), comment n.9(B). In making this
determination, the court may look to the “similarity of the
offenses, the regularity (repetitions) of the offenses, and the
interval between the offenses.” Id. Relevant conduct must
No. 06-4185 9
be established by a preponderance of the evidence. United
States v. Johnson, 342 F.3d 731, 734 (7th Cir. 2003).
We have noted that the relevant conduct or “aggregation
rule” grants the government a “fearsome tool” in drug
cases by allowing prosecutors to seek enhanced sentences
by asking the sentencing court to consider types and
quantities of drugs not specified in the counts of convic-
tion. See United States v. Ortiz, 431 F.3d 1035, 1040 (7th Cir.
2005) (citing United States v. Duarte, 950 F.2d 1255, 1263
(7th Cir. 1991)). See also United States v. Crockett, 82 F.3d
722, 730 (7th Cir. 1996) (“The determination that an un-
charged drug transaction is to provide the basis for an
increased sentence of imprisonment is, of course, a
very significant matter.”). Yet we have also sustained
its propriety repeatedly, holding that so long as it was
based on reliable evidence, the determination of drug
quantity “is a factual determination entitled to our defer-
ence unless we have a definite and firm conviction that
a mistake has been made.” United States v. Wilson, 502
F.3d 718, 721 (7th Cir. 2007) (internal quotation omitted).
In this case the district court conducted extensive hear-
ings, evaluated the credibility of witnesses, heard and
reviewed considerable, reliable evidence and made
specific findings about the similarity, regularity and
temporal proximity of the offenses. We have no basis
whatsoever to say its findings are clearly erroneous. See
Olson, 450 F.3d at 685 (sentencing judge is best situated to
determine the credibility of witnesses and such conclu-
sions will not be disturbed unless they are wholly with-
out foundation).
White argues that the other drug sales cannot be deemed
relevant conduct for three reasons: those drug sales
which are “removed by years” from the offense of convic-
10 No. 06-4185
tion are too remote to be deemed relevant conduct; there
is no proof of a relationship between Fuller, Porter and
Young; and most of the non-charged drug sales involved
powder cocaine whereas the offense in question involved
crack. We are not persuaded by any of these arguments.5
White’s time-gap argument is hollow. It is true that in
certain circumstances, gaps of time between an offense
and the charged offense may suggest that the behavior
is not part of the same course of conduct. See, e.g. United
States v. Sykes, 7 F.3d 1331, 1337 (7th Cir. 1993). Here,
however, the evidence shows that there were no such
gaps—White’s drug trafficking was more or less con-
sistent over the nine-year period in question. Although
the government did not show that White regularly dis-
tributed to any single buyer, White’s own admission that
from 1997 to 2002 he obtained one-half kilogram quantities
of powder cocaine for resale, twice a week, shows that
White’s drug distribution in general was regular and
steady. In addition, Fuller’s, Porter’s and Young’s testi-
mony, when taken together, shows a continuous pattern
of drug trafficking. For purposes of the aggregation rule,
then, we cannot say that the lower court erred when it
concluded that there was sufficient temporal proximity
between the offenses for relevant conduct purposes.
5
The lower court concluded both that a “common scheme or
plan existed” and that the uncharged conduct involved the
“same course of conduct” as that involved in White’s conviction.
Because a positive finding under either prong is sufficient for
the aggregation rule and because we affirm the district court’s
ruling on the basis of the “course of conduct” prong, we do
not reach the question of whether the behavior at issue con-
stituted a “common plan or scheme” under the statute.
No. 06-4185 11
White’s argument that Fuller, Porter and Young did not
necessarily have relationships with each other is sim-
ilarly unavailing. White’s argument would be more on
point if the relevant conduct determination here turned
on whether the additional transactions were part of a
common scheme or plan among multiple individuals.
See n.5. But the unifying factor here is White and his
unbroken series of sales to lower level drug sellers in
Decatur. As a result, the lack of a relationship between
White’s purchasers becomes irrelevant. Relying in part
on White’s statement that he was the largest drug dealer
in Decatur, the court below found that the transactions
with Fuller, Porter and Young were similar, all part and
parcel of White’s significant distribution of drugs to dealers
in Decatur for redistribution. Again, there is nothing to
suggest this was clear error on the court’s part. See Wilson,
502 F.3d at 724 (no clear error where the district court
viewed the large drug sale which was the basis for the
defendant’s arrest as “the latest in an unbroken series
of large cocaine deals [the defendant] regularly made in
the St. Louis area from 1998 until his arrest [in 2004]”).
Turning to White’s argument that the offense of con-
viction involved crack, a drug different from the powder
cocaine involved in many of the other offenses, we find
this distinction to be immaterial here. There is no question
that non-charged offenses need not involve the same type
of drug as the offense of conviction to be considered
relevant conduct. See, e.g., United States v. Acosta, 85 F.3d
275, 281 (7th Cir. 1996) (weekly cocaine sales predating
arrest on heroin charge constituted relevant conduct for
sentencing purposes where the court found regulatory,
temporal and geographic proximity of the offenses); United
States v. Sumner, 325 F.3d 884, 890 (7th Cir. 2003) (sales of
12 No. 06-4185
crack cocaine included in relevant conduct although
powder cocaine was the drug involved in the conviction).
The district court found that, during his normal course
of “business,” White bought and sold both crack and
powder cocaine, distributing both drugs to dealers in
Decatur. As such, including the non-charged powder
cocaine transactions as relevant conduct for sentencing
is more than defensible and certainly does not con-
stitute clear error.
Lastly, just days after we heard oral argument in this
case, the Supreme Court handed down Kimbrough v.
United States, 128 S. Ct. 558 (2007), clarifying that sen-
tencing courts may, in their discretion, consider the
crack/powder cocaine disparity in imposing sentences
outside the Guidelines’ range. This prompted us to re-
quest supplemental briefing in this case on whether
remand would be appropriate here. After consideration,
we agree with the government that such remand is unnec-
essary given the lower court’s firm statement that it
would have imposed the same sentence even if there
were no Guidelines, thus making clear that the
crack/powder disparity reflected in the Guidelines in
no way affected the court’s sentencing decision.6
6
This approach is entirely consistent with the one we took in
the wake of United States v. Booker, 543 U.S. 220 (2005), pursuant
to which we declined to ordered even limited remands if the
sentencing record made clear that the court’s sentence would
not change even in view of the more ample discretion afforded
the court under Booker. See, e.g., United States v. Julian, 427
F.3d 471, 491 (7th Cir. 2005) (citing United States v. Paladino, 401
F.3d 471, 482-83 (7th Cir. 2005)).
No. 06-4185 13
III.
For the foregoing reasons, the district court’s judgment
is AFFIRMED.
USCA-02-C-0072—3-5-08