United States v. Christopher Baines ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-3284
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTOPHER BAINES,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 08 CR 562 — Rebecca R. Pallmeyer, Judge.
ARGUED NOVEMBER 5, 2014 — DECIDED FEBRUARY 9, 2015
Before BAUER, ROVNER, and TINDER, Circuit Judges.
BAUER, Circuit Judge. Defendant-appellant, Christopher
Baines (“Baines”), pleaded guilty to one count of conspiracy
to possess with intent to distribute heroin, in violation of 18
U.S.C. § 846. The district court sentenced Baines to 240 months’
imprisonment. Baines appeals his sentence on three grounds.
First, he argues that the district court improperly attributed
significant quantities of heroin to him as relevant conduct in
determining his sentence. Second, he contends that the district
2 No. 13-3284
court failed to sufficiently account for his arguments in
mitigation. Lastly, he requests that this court remand his case
for resentencing in light of a recent amendment to the United
States Sentencing Guidelines, which reduces the offense level
applicable to many drug trafficking offenses. We affirm.
I. BACKGROUND
In February 2007, the Drug Enforcement Agency, Federal
Bureau of Investigation, Internal Revenue Service, Chicago Po-
lice Department, and Cook County State’s Attorney’s Office
began conducting a joint investigation of Baines and his
suspected drug trafficking organization. Over the course of
the investigation, agents gathered information and evidence
through surveillance, confidential informants, cooperating
defendants, consensually recorded conversations, and judi-
cially authorized wire intercepts from telephones used by
Baines. The investigation also included a series of controlled
purchases through which agents seized heroin from Baines
and his cohorts in increments of 29.5 grams, 41.3 grams, 49
grams, 50 grams, and 165 grams.
A criminal complaint was filed on July 16, 2008, charging
Baines and three members of his illicit organization, Christine
Burgos, Craig Smith, and Charles Parker, with conspiring to
distribute in excess of one kilogram of heroin. On Septem-
ber 25, 2008, a grand jury returned a thirteen-count indictment
against the same four defendants, naming Baines in seven of
the thirteen counts. Each of the four defendants pleaded guilty
pursuant to written plea agreements.
Baines pleaded guilty to Count One of the indictment,
which charged that “beginning in or around 2007, and continu-
No. 13-3284 3
ing until in or around March 2008,” Baines conspired with
Burgos, Smith, Parker, and others to distribute one kilogram of
heroin or more in and around the west side of Chicago.1 See 21
U.S.C. § 846. As reflected in the plea agreement, the parties
disputed the amount of drugs involved in the charged conspir-
acy and attributable to Baines as relevant conduct. Baines
refused to accept responsibility for any drug quantity in excess
of 334 grams of heroin—the amount of heroin that law enforce-
ment seized from him. The government maintained in the plea
agreement, and sought to prove at sentencing, that the charged
conduct and relevant conduct attributable to Baines exceeded
30 kilograms of heroin, in addition to kilogram quantities of
cocaine. A two-day sentencing hearing regarding the disputed
drug quantity, among other issues not relevant to this appeal,
ensued.
At the sentencing hearing, the government presented the
admissions contained in Baines’ plea agreement, together with
the plea agreements of Baines’ codefendants, each of which
testified to Baines’ leadership role in distributing wholesale
quantities of heroin in and around the west side of Chicago.
The government offered the plea agreement of Claude McKay,
a defendant in a related case, which indicated that beginning
in or around 2005 and continuing until at least the end of
2006, McKay obtained approximately 50 to 400 grams of heroin
from Baines, through Burgos, every two weeks. The govern-
ment also referenced a number of intercepted telephone calls,
including one in which Baines discussed various aspects of his
1
In return for Baines’ guilty plea, the government agreed to dismiss the
remaining indictment counts lodged against him upon sentencing.
4 No. 13-3284
narcotics trafficking and bragged about making $25,000 per
month and having multiple houses. The government’s primary
evidence, however, consisted of the witness testimony of
Baines’ codefendant Christine Burgos and a defendant in a
related case, Emeterio Gutierrez.
Burgos testified that beginning in 2004 and continuing until
her arrest in mid-2008, she received, stored, and distributed
wholesale quantities of heroin and cocaine at Baines’ direction.
In 2004, Burgos took receipt of approximately a kilogram of
heroin per week and 5 to 20 kilograms of cocaine every other
month from Henry Rendon. From 2005 through mid-2008, she
received narcotics on Baines’ behalf from a man she identified
as “Kentucky.” Burgos picked up a kilogram of heroin per
week from Kentucky in 2005 and 2006. Although she testified
that things “slowed down” in 2007 because Baines “owed
people money,” she continued to take receipt of two kilograms
of heroin per month from Kentucky. In addition, Burgos
picked up kilogram quantities of cocaine from Kentucky
during 2005 and 2006. Burgos’ testimony further described
how, at Baines’ direction, she rented apartments in her name
for Baines to use as stash houses from 2004 to 2008; how she
frequently took receipt of narcotics from Kentucky at a Best
Buy near the North Riverside Mall, where he’d arrive in a red
Dodge Durango; how she personally observed Baines “re-
rock” and stash kilogram quantities of heroin over 100 times;
and how she typically distributed heroin to Baines’ customers
in quantities ranging from 50 to 500 grams. Burgos also
testified to Baines’ extravagant lifestyle, multiple houses, cars,
motorcycles, and Baines’ lack of legitimate employment.
No. 13-3284 5
Gutierrez, whom Burgos identified as “Kentucky,” corrobo-
rated large parts of Burgos’ testimony. Gutierrez testified that,
on average, in 2005 and 2006, he delivered to Baines, through
Burgos, approximately a kilogram of heroin per week. From
2007 to mid-2008, Gutierrez testified that, although things
“slowed down” because Baines owed him “a big sum of
money,” he continued to supply Baines with approximately
two kilograms of heroin every month. He further testified to
delivering approximately 5 to 20 kilograms of cocaine to Baines
on a bi-weekly basis from 2005 to 2006, and once per month in
2007. Gutierrez also testified consistently with Burgos regard-
ing the locations and vehicles used to deliver heroin and
cocaine, Baines’ extravagant lifestyle, and Baines’ lack of
employment.
The district court found the testimony of Burgos and
Gutierrez consistent with each other, the plea agreements, and
Baines’ own recorded comments. On this basis, the court
concluded that “even a conservative assessment of that
evidence, even if we discount the quantities [Burgos and
Gutierrez] describe with some significance, we still exceed 30
[kilograms of heroin] in this case.” Accordingly, the court held
Baines responsible for in excess of 30 kilograms of heroin,
triggering a base offense level of 38. The court applied a two-
level increase for Baines’ managerial role in the offense and a
two-level decrease for his acceptance of responsibility, result-
ing in a net offense level of 38. The district court calculated
Baines’ Guidelines range, based on an offense level of 38 and
criminal history category of III, at 292–365 months’ imprison-
ment. After considering Baines’ arguments in mitigation, the
court fashioned a well below-Guidelines sentence of 240
6 No. 13-3284
months’ imprisonment and imposed an agreed upon $300,000
forfeiture judgment. This appeal followed.
II. DISCUSSION
A. The District Court’s Relevant Conduct Finding
Baines insists that the district court erred in treating his
uncharged drug trafficking offenses from 2004 through 2006
as relevant conduct. Whether uncharged offenses amount to
relevant conduct under the Sentencing Guidelines is a factual
determination, which we review for clear error. United States v.
Delatorre, 406 F.3d 863, 866 (7th Cir. 2005). We will not second
guess the district court unless, after reviewing the record as
a whole, “we are left with a definite and firm conviction that a
mistake has been made.” United States v. Singleton, 548 F.3d
589, 591 (7th Cir. 2008).
With respect to drug offenses, Sentencing Guidelines
§ 1B1.3(a)(2) provides that all acts or omissions committed by
the defendant “that were part of the same course of conduct or
common scheme or plan as the offense of conviction” should
be deemed “relevant conduct” for sentencing purposes. United
States v. Sumner, 325 F.3d 884, 889 (7th Cir. 2003). This “rele-
vant conduct” rule permits sentencing courts to consider
additional quantities of drugs not specified in conviction,
provided “the unconvicted activities bore the necessary
relation to the convicted offense.” United States v. Bacallao, 149
F.3d 717, 719 (7th Cir. 1998) (internal quotation marks omitted).
According to the Guidelines, two or more offenses are part of
a common scheme or plan if they are “substantially connected
to each other by at least one common factor, such as common
victims, common accomplices, common purpose, or similar
No. 13-3284 7
modus operandi.” U.S.S.G. § 1B1.3(a)(2), cmt. n.9(A). Offenses
that do not meet the requirements of a common scheme or plan
may nonetheless qualify as part of the same course of conduct
if they 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.” Id. at n.9(B). In assessing
whether offenses are part of the same course of conduct, we
focus on “whether the government has demonstrated a
significant ‘similarity, regularity, and temporal proximity.’”
United States v. Ortiz, 431 F.3d 1035, 1040 (7th Cir. 2005)
(quoting United States v. Acosta, 85 F.3d 275, 281 (7th Cir. 1996)).
When one of these factors is relatively weak or absent, a
stronger showing of the other two will support a finding of
relevant conduct. U.S.S.G. § 1B1.3(a)(2), cmt. n.9(B); see also
Sumner, 325 F.3d at 889; Acosta, 85 F.3d at 281. Relevant
conduct must be established by a preponderance of the
evidence. United States v. Johnson, 342 F.3d 731, 734 (7th Cir.
2003).
Here, Baines argues that his uncharged offenses from 2004
through 2006 are too remote in time and too dissimilar, with
respect to the amount of drugs distributed, from the charged
conspiracy to be considered relevant conduct. In the alterna-
tive, he contends that the district court failed to make the
required factual findings for determining relevant conduct,
which constitutes reversible error. We review Baines’ “tempo-
ral gap” argument for plain error, since the defendant forfeited
this argument by failing to raise it below. See United States v.
Arroyo, 406 F.3d 881, 888 (7th Cir. 2005). At any rate, the district
court did not commit error, plain or otherwise, in its relevant
conduct finding.
8 No. 13-3284
Baines’ temporal gap argument is hollow. For starters, as
the government points out, his argument distorts the record.
Although Gutierrez stated at one point during his testimony
that he stopped supplying Baines with drugs in 2007, he
corrected himself immediately thereafter, testifying that he
supplied Baines consistently from 2005 through 2008 but
“slowed down in quantities” in 2007 and 2008 because Baines
owed him “a big sum of money.” Gutierrez again reaffirmed,
later on both direct and cross-examination, that he supplied
kilogram quantities of heroin to Baines in 2007. Burgos
similarly testified that, although things “slowed down” in 2007
because Baines owed people money, Baines’ heroin trafficking
never stopped from 2004 until mid-2008. The district court
believed Burgos’ and Gutierrez’s testimony that Baines re-
ceived kilogram quantities of heroin on a regular basis from
at least 2005 through mid-2008.2 See United States v. Clark, 538
F.3d 803, 813 (7th Cir. 2008) (“A district court’s determination
of witness credibility is entitled to great deference and can
virtually never be clear error.”(internal quotation marks
omitted)). Even supposing for the sake of argument that some
temporal gap occurred in 2007, the offenses are connected by
multiple common factors: the same principal (Baines), drug
courier/accomplice (Burgos), location (in and around the west
2
As the district court acknowledged, even if we were to discount Baines’
trafficking activities with Henry Rendon, Baines’ supplier in 2004, holding
Baines responsible for in excess of 30 kilograms of heroin would still be a
conservative estimate, since both Burgos and Gutierrez testified that during
2005 through 2006 Baines took receipt of approximately a kilogram of
heroin per week, slowing down to a kilogram of heroin every two weeks in
2007 through 2008.
No. 13-3284 9
side of Chicago), stash houses, delivery points, delivery
vehicles, and the same drug supplier from 2005 through mid-
2008 (Gutierrez). These common factors not only render
Baines’ uncharged offenses similar enough to the offense of
conviction to show that Baines was engaging in an ongoing
pattern of conduct, see U.S.S.G. § 1B1.3(a)(2), cmt. n.9(B);
Singleton, 548 F.3d at 592–93 (holding that despite a two to four
month temporal gap, “the uncharged conduct involved the
same principal, the same location, and same drug-facts that
render it similar enough” to show “an ongoing pattern of
conduct”), but they more than suffice to make Baines’ un-
charged offenses part of the same common scheme or plan as
the offense of conviction. See U.S.S.G. § 1B1.3(a)(2), cmt. n.9(A);
Delatorre, 406 F.3d at 867 (holding that despite three year gap,
defendant’s uncharged offenses and offense of conviction
involved the same principal, a common accomplice, and the
same supplier in Amsterdam working together to smuggle
ecstasy into the United States, thereby making the uncharged
offenses part of the same common scheme or plan).
Baines’ argument that his uncharged offenses are too
dissimilar from the offense of conviction is equally flawed.
According to Baines, the disparity between the amounts of
heroin that law enforcement seized from him in 2007 and
2008—29.5 grams, 41.3 grams, 49 grams, 50 grams, and 165
grams—and Burgos’ testimony that she never distributed less
than 250 grams of heroin to various customers from 2004 to
2006, underscores the separateness of the activities. As a
preliminary matter, the only seizures involving Baines’
distribution of heroin were those of 49 and 165 grams. Both
quantities are in line with Burgos’ sentencing hearing testi-
10 No. 13-3284
mony and plea agreement admission that she generally
distributed heroin in quantities ranging from 50 to 400 or 500
grams. In addition, both quantities match up with the admis-
sion in Claude McKay’s plea agreement that he received
between 50 and 400 grams of heroin from Baines, through
Burgos, every other week between 2005 and 2006. Moreover,
at no point in her testimony did Burgos claim that she never
distributed under 250 grams of heroin between 2004 and 2006;
she merely testified that she distributed 250–400 grams of
heroin to various customers she could remember “offhand.”
Thus, as a factual matter, Baines’ argument is tenuous, if not
unfounded.
Baines also contends that the district court failed to make
the required factual findings for determining relevant conduct
and that this amounted to clear, reversible error. When a
district court aggregates drug quantities arising from charged
and uncharged relevant conduct, we have required the court
“explicitly state and support its findings that the uncharged
quantities are sufficiently related to the offense of conviction.”
Untied States v. Wilson, 504 F.3d 718, 723 (7th Cir. 2007). The
sentencing transcript reflects that the district court found the
testimony of Burgos and Gutierrez credible, and it did so for
good reason—their testimony was “consistent” with each
other, the plea agreements, and Baines’ own recorded com-
ments. Based on this testimony, the district court determined
that Baines was “not involved in a few isolated transactions
over a few years” but was in fact running “a significant
enterprise.” The record also reflects the district court’s agree-
ment with the government that from at least 2005 through mid-
2008, Baines used the same drug runner, drug supplier, stash
No. 13-3284 11
houses, delivery points, and delivery vehicles to distribute
significant quantities of heroin in and around the west side of
Chicago. Although the district court did not invoke the terms
“common scheme or plan” or “same course of conduct,” its
consideration of the testimony presented and the government’s
arguments made at sentencing are sufficient to show it made
the relevant factual findings. See United States v. Williams, 272
F.3d 845, 852 (7th Cir. 2001) (“Where it is clear that the district
court judge believed the required relationship to be present
and the judge’s implicit finding is supported by the record,
we have been reluctant to remand simply because the judge
failed to invoke the ‘magic words’ of section 1B1.3(a)(2).”); see
also Wilson, 504 F.3d at 723. Nothing more is required to
understand the basis for the district court’s relevant conduct
finding and, accordingly, there is no need to remand for
further explanation.
B. Baines’ Arguments in Mitigation under § 3553(a)
Baines insists that the district court committed procedural
error by failing to address the factors delineated under 18
U.S.C. § 3553(a). Specifically, he claims that the district court
failed to address his arguments in mitigation based on the
sentencing disparities between him and his codefendants, his
family circumstances, and his troubled youth. We review a
sentence for procedural error de novo. United States v. Lyons, 733
F.3d 777, 784 (7th Cir. 2013).
Baines’ arguments are without merit. The record reveals
that the district court understood and considered Baines’
mitigation arguments. In response to Baines’ chief argument in
mitigation—that his codefendants were sentenced to signifi-
12 No. 13-3284
cantly shorter prison sentences—the court explicitly acknowl-
edged that it had given the “other defendants in this entire
indictment below-guideline sentences” and that it was
“inclined to do the same thing in [Baines’] case in spite of the
fact” that “Mr. Baines really [was] the leader and was running
a lot of what was going on here.” The district court explained,
“whether … somebody else got an unfairly generous shake
is another issue”; Baines’ leadership role in distributing vast
amounts of a drug “that is dangerous and that destroys the
fabric of our community and makes Chicago not a nice place
to be” warrants a “substantial sentence.” Without belaboring
the point, the district court gave the sentences of Baines’
codefendants the thoughtful consideration contemplated by
§ 3553(a) when arriving at Baines’ below-Guidelines sentence.
Baines’ mitigation argument based on family circumstances
fares no better. With respect to his family circumstances, the
court acknowledged the pain that Baines’ conviction had
caused his family, which consisted solely of his mother, stating,
“I can tell from the submissions I have received that it was
heartbreaking for your family that this happened. I’m glad
that you were able to patch things up with your mother
because I know it was really hard for her when you were
arrested on these charges.” Moreover, the district court cited
Baines’ family circumstances in its written statement of reasons
when explaining why it imposed a below-Guidelines sentence.
See United States v. Pape, 601 F.3d 743, 747 (7th Cir. 2010)
(noting that we review the district court’s written statement of
reasons alongside the sentencing transcript); United States v.
Baker, 445 F.3d 987, 991–92 (7th Cir. 2006) (we “review for
thoroughness the district court's reasoning for sentencing … as
No. 13-3284 13
contained in its written statement and as articulated during the
sentencing hearings”). The court plainly took Baines’ family
circumstances into account, no further discussion of the subject
was necessary.
Lastly, Baines argues that the district court passed over in
silence his traumatic childhood—the murders of his two
brothers and best friend which, he claims, caused him chronic
depression that has gone untreated. Although sentencing
courts are not obligated to address stock arguments based on
a defendant’s difficult childhood, see United States v. Cheek, 740
F.3d 440, 455 (7th Cir. 2014); United States v. Brock, 433 F.3d 931,
937 (7th Cir. 2006), the district court acknowledged in its
written statement of reasons that Baines’ traumatic youth was
yet another consideration that the court took into account
when imposing a below-Guidelines sentence.
C. Remand in Light of Amendment to the Sentencing
Guidelines
Baines’ last argument is that this court should remand for
resentencing in light of a recent amendment to the Sentencing
Guidelines published by the United States Sentencing Commis-
sion. Because we affirm Baines’ sentence today, the proper
vehicle to seek retroactive relief under a revised Guideline is a
motion to the district court pursuant to 18 U.S.C. § 3582(c), a
course with which both defense counsel and the government
agreed at oral argument is proper.
III. CONCLUSION
For these reasons, Baines’ sentence is AFFIRMED.