United States v. Hatten-Lubick, Micha ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4310
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
M ICHAEL H ATTEN-L UBICK,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 117—Blanche M. Manning, Judge.
____________
A RGUED N OVEMBER 5, 2007—D ECIDED M AY 12, 2008
____________
Before P OSNER, E VANS, and SYKES, Circuit Judges.
E VANS, Circuit Judge. Michael Hatten-Lubick (his nick-
name is “Bo-Hunky”) appeals from his conviction and
sentence for various narcotics-related offenses.
Hatten-Lubick was indicted with a codefendant, Isaac
Norfleet. Specifically, Hatten-Lubick was charged with
conspiracy to distribute and possess with the intent to
distribute in excess of 50 grams of cocaine base and in
excess of 500 grams of cocaine, in violation of 21 U.S.C.
§ 846, with two substantive counts of possession with
intent to distribute cocaine, in violation of U.S.C.
2 No. 06-4310
§ 841(b)(1), and with three counts of using a telecom-
munications facility in connection with the drug offenses,
in violation of U.S.C. § 843(b). He was tried to the court. At
trial, the government limited its evidence to distribution
of cocaine, not cocaine base. The court found him guilty
on all counts. He was sentenced to 120 months on the
drug charges, with sentences of 48 months on the other
counts to run concurrently. A $5,000 fine was also imposed.
The evidence at trial included telephone conversations
intercepted with Title III wiretaps on the telephone of a
fellow dealer, Rodney Bew. Bew, facing a long sentence
of his own, cooperated with the government in exchange
for a recommendation for a downward departure; his
testimony was significant.
Bew supplied other dealers with cocaine and crack
cocaine in and near the cities of Joliet and Lockport,
Illinois. Bew had several suppliers and usually purchased
cocaine in amounts ranging from 9 ounces (a quarter
kilogram) to a kilogram at a time or, in the jargon of
these dealers, a “rim” (as in tires) or a “set of rims.” When
Bew was transporting cocaine, he brought two “runners”
or “mules” with him. The runners would drive a car
carrying the drugs and Bew would drive behind them
and act as a distraction. If a police officer attempted to
stop the runners’ car, Bew would deliberately commit
traffic offenses so that the officer would stop him, rather
than the runners, thus allowing the runners to slip away.
If the runners were stopped, the passenger in the car
was supposed to throw the cocaine away or jump out of
the car and run away with the drugs.
Hatten-Lubick had known Bew since childhood and
often purchased large amounts of cocaine from him. When
he needed a supply of cocaine, Hatten-Lubick would call
No. 06-4310 3
Bew, who would call a supplier. Once everyone agreed on
the amount of drugs to be purchased and the price, Hatten-
Lubick would follow Bew to meet the supplier. Bew tried
to prevent Hatten-Lubick from “jumping his back” by
dealing directly with the suppliers, thus cutting Bew out
of the deal—something that had happened on occasion.
The evidence showed that the arrangement started
sometime in 2000. Bew testified that in 2001 and 2002
he brokered five or more deals for Hatten-Lubick with
Brent Terry at a Boston Market restaurant in Calumet City.
In 2001, Bew brokered deals between Hatten-Lubick and
“Nemo” at Park Electronics, a store located at 42nd and
Ashland Avenue in Chicago. In 2003, Bew met Alfonso
Perez and began conducting transactions with him and
brokered deals with him for Hatten-Lubick.
On June 25, 2003, Bew drove his car, closely followed by
Hatten-Lubick and Norfleet in Hatten-Lubick’s car, to the
parking lot of a Subway restaurant in Berwyn. Bew
gave Hatten-Lubick’s money to Perez in exchange for a
kilogram of cocaine. In return for Bew’s services in arrang-
ing the transaction, Hatten-Lubick paid Bew $1,000.
After that transaction, Bew and Hatten-Lubick discussed
their dealings with Perez during a telephone call, which
was intercepted by the FBI’s wiretaps. Hatten-Lubick
expressed his view that Perez should be reducing the
price of the cocaine. Bew assured him the price would
drop if they continued to buy from Perez.
A few days later, Hatten-Lubick called Bew, in another
intercepted conversation, and asked for “the usual,” which
Bew understood to mean that Hatten-Lubick wanted to
purchase a kilogram of cocaine. Bew asked Perez for the
cocaine, but he did not have enough on hand to fill the
order.
4 No. 06-4310
Two days later, though, on July 16, Perez called Bew
and asked whether they still wanted the cocaine. Bew, in
turn, called Hatten-Lubick and during the call informed
Hatten-Lubick that Perez had raised the price. Hatten-
Lubick got angry and rejected the deal. But after further
discussions, a price was agreed on, and Bew, Hatten-
Lubick, and Norfleet drove to Berwyn to purchase the
kilogram of cocaine. They met at a Burger King, and Perez
told them to follow him to his mother’s house.1 They
stopped in an alley behind a garage, from which Perez
retrieved a Burger King bag that carried, not a double
Whopper, but a kilo of cocaine. In exchange for the co-
caine, which was given to Hatten-Lubick, Bew gave
Perez Hatten-Lubick’s money. Bew, Hatten-Lubick, and
Norfleet started to drive back to Joliet.
But, of course, because the telephone call making the
arrangements for the deal was intercepted, the FBI had
the entire operation under surveillance. FBI Special Agent
Ron Reddy arranged for an Illinois state trooper, Chad
Brody, to be stationed along Interstate 55, the route to
Joliet. When Hatten-Lubick drove past Trooper Brody, the
FBI instructed the trooper to pull him over. Bew, using
his modus operandi, tried to intervene by driving errati-
cally and closely following Hatten-Lubick’s car to prevent
the trooper from getting behind it. Bew also began to
weave back and forth on the road, twice almost hitting
the trooper’s car. Despite Bew’s best efforts, Trooper
Brody was undeterred and stopped Hatten-Lubick, not
Bew.
1
For interesting reading, see Freakonomics by Steven D. Levitt
and Stephen J. Dubner questioning why, if drug dealers are
so rich, they live with their mothers.
No. 06-4310 5
When the pinch was made, Trooper Brody summoned
his dog, Buster, into action. Buster was certified by the
Illinois State Police Canine Facility to detect the odor of
narcotics, including cocaine. He alerted to the passenger
door of the car. Under the passenger seat, Brody found
the kilogram of cocaine and arrested Hatten-Lubick and
Norfleet.
But, per Agent Reddy’s instructions, both men were
released without charges later that night. In September,
Hatten-Lubick’s attorney arranged for him to meet
with FBI agents. During an interview, Hatten-Lubick
admitted the Burger King incident but refused to talk
about previous drug dealings.
In this appeal, Hatten-Lubick raises several issues:
whether the evidence could sustain a conviction for
conspiracy, whether his trial counsel was ineffective,
whether the court’s calculation of his drug quantity was
erroneous, whether it was error to increase his sentence
based on a supervisory role in the offense, and whether
it was plain error for the judge not to set a payment
schedule for the fine.
Hatten-Lubick’s claim that the evidence was insuffi-
cient to sustain a conviction for conspiracy was first
raised in his motion, pursuant to Federal Rule of Crim-
inal Procedure 29, after the government presented its case.
The reasons for denying the motion are set out in the
court’s amended findings of fact and conclusions of law
after trial. We review the denial of a motion for judg-
ment of acquittal de novo, looking to see whether, viewing
the evidence in the light most favorable to the govern-
ment, it is sufficient to sustain the conviction. United States
v. Hausmann, 345 F.3d 952 (7th Cir. 2003); United States v.
Jones, 222 F.3d 349 (7th Cir. 2000). We reverse a convic-
6 No. 06-4310
tion only if there is no basis for a fact finder to find the
essential elements of the crime beyond a reasonable doubt.
United States v. McCaffrey, 181 F.3d 854 (7th Cir. 1999). We
defer to the credibility determinations of the trial court.
United States v. Hickok, 77 F.3d 992 (7th Cir. 1996). In
other words, Hatten-Lubick faces a significant challenge
on this claim.
It is a challenge he does not meet. The evidence of a
conspiracy is sufficient despite Hatten-Lubick’s claim that
he had merely a buyer-seller relationship with Bew. The
evidence shows otherwise. It is clear the two were
working in concert to obtain drugs. Hatten-Lubick ac-
companied Bew on trips from Joliet to Chicago to obtain
cocaine from Perez They discussed together how much
they should pay Perez. By using two cars and diversionary
tactics, they were working together, trying to distract
police from finding the drugs. They were coconspirators.
See, e.g., United States v. Garcia, 89 F.3d 362 (7th Cir. 1996);
United States v. Baskin-Bey, 45 F.3d 200 (7th Cir. 1995).
Hatten-Lubick also claims his right to the effective
assistance of counsel was denied. We begin by noting
that because counsel is presumed effective, a defendant
bears a heavy burden in challenging his attorney’s effec-
tiveness. United States v. Jimenez, 992 F.2d 131 (7th Cir.
1993). He must satisfy the two-prong test set forth in
Strickland v. Washington, 466 U.S. 668 (1984). First, he
must show that counsel’s performance “fell below an
objective standard of reasonableness.” Second, he must
show that there exists “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.”
When a defendant raises an ineffective assistance
claim on direct appeal without supplementing the
No. 06-4310 7
record, his task is even harder. Without other evidence,
a possible error by counsel will be presumed to be a
tactical move. United States v. Ashimi, 932 F.2d 643 (7th
Cir. 1991). Because evidence outside of the record will
ordinarily be required to demonstrate the deficiency in
counsel’s performance, we are generally reluctant to
consider claims of ineffective assistance of counsel
raised for the first time on appeal. United States v. Fish,
34 F.3d 488 (7th Cir. 1994). However, Hatten-Lubick’s
claim is now before us.
He says his attorneys did not act as advocates, their
performance was objectively unreasonable, and their
actions prejudiced him. Specifically, he says that his
10-year sentence is twice what he could have received
by pleading guilty. He faults his attorneys for concen-
trating on casting reasonable doubt on the conspiracy
charge but failing to adequately challenge the substan-
tive counts. There were motions to suppress evidence
pending which Hatten-Lubick says could have sup-
ported a conditional plea and that there was no strategic
reason for not entering such a plea. Unfortunately for
Hatten-Lubick, because we have nothing but the trial
record before us, we must assume that there was a
strategic reason for attacking the conspiracy count. While
saying this, we acknowledge that we have just deter-
mined that there was sufficient evidence of conspiracy;
nevertheless, going into the trial, an attorney might think
the charge could be beaten. Perhaps the lawyers were
less optimistic about winning a suppression motion than
they were about beating the charges at trial. But, of course,
we have no way of knowing exactly what their strategy
was—which is precisely the problem when this issue is
raised on direct appeal.
8 No. 06-4310
As to the sentencing issues, we first consider Hatten-
Lubick’s claim that it was error to assign him a leader-
ship role in the conspiracy. We disagree.
We review the imposition of an enhancement for the role
in the offense for clear error. United States v. Haddad, 462
F.3d 783 (7th Cir. 2006). Clear error exists only when, after
reviewing all the evidence, we are left with a definite and
firm conviction that a mistake has been made. If there are
two permissible views of the evidence, the fact finder’s
choice between them is not clearly erroneous. Hickok,
77 F.3d 992.
Under § 3B1.1 of the United States Sentencing Guidelines,
the court is to make an upward adjustment when the
defendant’s role is that of “organizer, leader, manager, or
supervisor.” The enhancement varies between 2 levels and
4 levels, depending upon the number of participants and
the defendant’s role in the offense. The application
notes to this section list seven factors relevant to the
determination as to whether an adjustment is war-
ranted. They include the exercise of decisionmaking
authority, the nature of the participation, the recruitment
of accomplices, the right to a larger share of the proceeds,
the degree of participation in planning or organizing the
offense, the nature and scope of the illegal activity, and
the degree of authority exercised over others. The dis-
trict judge determined that Hatten-Lubick’s use of
Norfleet as a runner made him a manager or supervisor
in criminal activity that involved five or more people.
She imposed a 3-level enhancement. We agree that the
evidence shows that Norfleet was working for Hatten-
Lubick. An intercepted phone call between Bew and
Hatten-Lubick shows that prior to the transactions with
Perez, Hatten-Lubick recruited Norfleet to be his runner.
No. 06-4310 9
The imposition of the enhancement was not clearly errone-
ous.
Hatten-Lubick also contends that it was error for the
district court to conclude that the drug amount which
could reasonably be attributed to him was in excess of
5 kilograms. Once again our review is for clear error. We
will affirm unless, after considering all the evidence, we
are left with a “definite and firm conviction” that a
mistake has been committed. United States v. Romero, 469
F.3d 1139, 1147 (7th Cir. 2006).
The district judge was clear that she found Bew’s testi-
mony credible. Bew testified that over a four-year period
he helped Hatten-Lubick buy large quantities of cocaine
about 12 times in amounts ranging from a quarter of a
kilogram to a full kilogram. He said that on three occa-
sions he brokered transactions between Hatten-Lubick
and Perez for a kilogram each. One transaction with
Perez was in May 2003 at a gas station/car wash in Chi-
cago; the second in June of that year at a Subway restau-
rant in Berwyn, Illinois; the third was on July 16, the day
Buster found the cocaine in Hatten-Lubick’s car. Other
purchases were from Brent Terry and Nemo, Jo-Jo, and
Hezikiah Paine. The transactions with Perez account for
3 kilograms. If the remaining nine transactions were each
for only quarter kilograms (which seems unlikely), the
result is, nevertheless, in excess of five kilograms.
Hatten-Lubick also claims, however, that he should not
be held accountable for any drug transaction prior to
November 2002 because the indictment alleged that he
participated in a drug distribution conspiracy “from in
or about November 2002 to in or about June 2004.” The
date of the offense is, however, not an element of the
crime. To prove the conspiracy, the government must
10 No. 06-4310
show beyond a reasonable doubt (1) that two or more
people agreed to commit a criminal act and (2) that the
defendant knowingly and intentionally joined in the
agreement. United States v. Johnson, 437 F.3d 665 (7th
Cir. 2006). The district judge considered the transactions
prior to November 2002 as part of the offense of convic-
tion. She stated:
Bew obtained much of the cocaine and other drugs
he sold in Joliet from suppliers in Chicago. One of the
people for whom Bew obtained drugs was Hatten-
Lubick, a friend since childhood. Over a four-year
period, Bew helped Hatten-Lubick buy large quantities
of cocaine about 12 times in amounts ranging from
a quarter of a kilogram to a full kilogram. Sometimes
Hatten-Lubick and Bew would pool their money to
buy large quantities of cocaine, which they would
then split between themselves. But mostly, Hatten-
Lubick used Bew as an intermediary in dealing with
Bew’s suppliers. In exchange for Bew’s work as an
intermediary, Hatten-Lubick would pay him bet-
ween $1,000 and $2,000 for each kilogram purchased.
Even were the transactions not considered part of the
offense of conviction, they would qualify as relevant
conduct under U.S.S.G. § 1B1.3(a)(2). There was no error
in the drug calculation.
Finally, Hatten-Lubick argues that his sentence must be
vacated so that the district court can clarify a payment
schedule for the $5,000 fine imposed on him as a result
of his conviction. As to a payment schedule, the judg-
ment says only that “While on supervised release, defen-
dant shall pay monthly installments of 10% of net
monthly income.” Although not clearly stated, Hatten-
Lubick’s argument must be that because he was required
No. 06-4310 11
to begin payment in prison and the payment schedule
in the judgment applied only after his release, the Bureau
of Prisons unlawfully set a schedule for payments while
he was in prison.
Hatten-Lubick did not raise this issue in the district
court and our review of the issue is, therefore, only for
plain error. We look to see whether there was error, that
was plain, and whether the error “affect[s] substantial
rights.” We consider whether to exercise our discretion to
correct the error if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.”
United States v. Olano, 507 U.S. 725, 732 (1993).
We have recently reexamined the issue of plain error
review of the alleged improper delegation of authority to
either the probation department or the Bureau of Prisons
(BOP). See United States v. Tejeda, 476 F.3d 471 (7th Cir.
2007) (leaving scheduling for drug testing after release
to the probation department, while assumed to be error,
did not require correction under the plain error doctrine
because leaving scheduling to the probation department
did not affect Tejeda’s substantial rights); United States v.
Sawyer, ___ F.3d ___ (7th Cir. 2008) (failure to set a sched-
ule for restitution payments following release and leaving
the payment schedule to the probation department in
the case of two of the three defendants before the court
was error that was plain but the error had no affect on the
defendants’ substantial rights and thus did not merit
relief).
Both Tejeda and the relevant defendants in Sawyer
(Michael Sawyer and Terrell Rogers) objected to what the
probation department did after they were released from
prison. In contrast, what the third defendant in Sawyer
(Patrick Duncan), the defendant in United States v. Ellis, ___
12 No. 06-4310
F.3d ___ (7th Cir. 2008), and Hatten-Lubick contend is that
there was some improper delegation of authority to the
BOP for the payment of fines or restitution while they
were in prison. It is not a claim that can be sustained; there
is no error, say nothing of plain error. In Sawyer we said:
Thus we hold that leaving payment during impris-
onment to the Inmate Financial Responsibility Pro-
gram is not an error at all, let alone a plain error. The
statute requires the judge to set a schedule if the
defendant cannot pay in full at once, . . . but it does not
say when the schedule must begin. We hold today
that it need not, and as a rule should not, begin until
after the defendant’s release from prison. Payments
until release should be handled through the inmate
Financial Responsibility Program rather than the
court’s auspices.
In United States v. Ellis, ___ F.3d ___ (7th Cir. 2008), we
reaffirmed our decision in McGhee v. Clark, 166 F.3d 884,
886 (7th Cir. 1999), that when a fine is payable immedi-
ately, a “payment schedule established by the BOP does
not conflict with the sentencing court’s immediate pay-
ment order.” The door is firmly shut on Hatten-Lubick’s
claim.
Accordingly, Hatten-Lubick’s conviction and sentence
are A FFIRMED.
USCA-02-C-0072—5-12-08