United States v. Montrell McSwain ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 07-2433, 07-2435, 07-3118, 07-3203, 07-3540 & 07-3628
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
S TEVEN P. E ASTER, JAMAUL R. M C K AY, A NTHONY K.
G LOVER, D ARRELL D. D AVIS, B RADFORD V. D ODSON, AND
M ONTRELL M C S WAIN ,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Western Division.
Nos. 05 CR 50082-2, 05 CR 50082-9, 05 CR 50082-4, 05 CR 50082-1,
05 CR 50082-8 & 05 CR 50082-5—Philip G. Reinhard, Judge.
A RGUED N OVEMBER 19, 2008—D ECIDED JANUARY 16, 2009
Before M ANION, K ANNE, and E VANS, Circuit Judges.
P ER C URIAM . In a bit of police work worthy of a TV
show, federal and local law enforcement officers installed
audio and video recording devices in a house in Rockford,
2 Nos. 07-2433, 07-2435, 07-3118, et al.
Illinois, that the Titanic Stones gang then used to deal
drugs. The police were given this rare opportunity when
the gang’s leader asked a girlfriend to rent a house for him
and she went to the police. Officers monitored and
recorded the dealing in the house for about a month
in 2005 before the dealers discovered the recording
devices. Then the authorities swooped in and arrested the
dealers. The government indicted 14 defendants on 32
counts of drug and gun crimes. Three went to trial and
were found guilty. Of those, two appeal. The other eleven
pleaded guilty, and four of them appeal. Of the six
appellants, only two, Jamaul McKay and Darrell Davis,
present arguments on the merits. Both pleaded guilty and
challenge only their sentences, but neither presents a
meritorious argument, so we affirm in both cases. In each
of the four other appeals, counsel has moved to withdraw
under Anders v. California, 386 U.S. 738 (1967). We grant
those motions and dismiss the four appeals because all of
the potential issues identified by counsel and the appel-
lants would be frivolous.
I. HISTORY
McKay and Davis both pleaded guilty to conspiring to
possess with intent to distribute heroin and crack, 21 U.S.C.
§§ 846, 841(a)(1), and to possessing a gun in furtherance of
a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A). At
sentencing, McKay did not dispute that the conspiracy
itself involved at least 1 kilogram of heroin and at least 50
grams of crack. Instead, he argued that the portion of the
overall amount attributed to his jointly undertaken crimi-
Nos. 07-2433, 07-2435, 07-3118, et al. 3
nal activity, see U.S.S.G. § 1B1.3(a)(1)(B), was overstated.
McKay conceded that he should be sentenced on the basis
of 960 grams of heroin, but he argued that he should not be
responsible for any crack because he sold only heroin and
could not have foreseen the crack sales by his
coconspirators. The district court disagreed and found
that McKay was responsible for some of the crack sold by
other members of the conspiracy. The court estimated the
amount of crack attributable to McKay at between 45 and
75 grams. The court then used the drug equivalency tables,
U.S.S.G. § 2D1.1, cmt. 10, and converted 960 grams
of heroin to 960 kilograms of marijuana and 45 to 75 grams
of crack to between 900 and 1500 kilograms of marijuana.
A range of 1860 to 2460 kilograms of marijuana yielded a
base offense level of 32, id. § 2D1.1(c)(4), which the court
then reduced by three levels for acceptance of responsibil-
ity, id. § 3E1.1. With a total offense level of 29 and a
criminal history category of I, McKay faced a guidelines
imprisonment range of 87 to 108 months. Without explana-
tion, the court held that McKay was subject to a mandatory
minimum sentence of 120 months on the drug count.
Perhaps the court thought that the aggregation of the drug
totals triggered the mandatory minimum. It is also possible
that the court applied the mandatory minimum because
McKay conceded that the conspiracy involved at least one
kilogram of heroin and at least fifty grams of crack, though
he did not concede that those amounts were reasonably
foreseeable to him. In any event, McKay did not object or
seek clarification. The court sentenced him to 120 months
on the conspiracy charge and 60 months on the gun charge,
to run consecutively.
4 Nos. 07-2433, 07-2435, 07-3118, et al.
Davis, who led the conspiracy, received a much stiffer
sentence. The district court found him responsible for
between 10 and 30 kilograms of heroin. This quantity
yielded a base offense level of 36. U.S.S.G. § 2D1.1(c)(2).
The court added 4 levels for Davis’s role in the offense,
U.S.S.G. § 3B1.1(a), added 2 levels for reckless endanger-
ment during flight, id. § 3C1.2, and subtracted 3 levels for
acceptance of responsibility, id. § 3E1.1. The court com-
bined that offense level with Davis’s criminal history
category of VI to compute a guidelines range of 360 months
to life on the conspiracy charge. The court sentenced Davis
to 444 months on the conspiracy charge and 60 months on
the gun charge, to run consecutively.
The finding of reckless endangerment during flight was
based on the testimony at sentencing of the ATF agent who
arrested Davis. The agent said he ordered Davis to stop but
Davis attempted to run into a house. The agent tried to
grab Davis, but Davis pushed him away, pushed away
another agent, and ran. The agent gave chase with his gun
drawn, and during the chase Davis pulled a gun from his
pants. The ATF agent explained:
At this point I see him reaching around with his left
hand behind his back, and I see him drawing the butt
of a gun. At this point I tell him--I said, “Stop. I see the
gun. Drop the gun. Police.” He continues running. At
this point I’ve taken up a stationary position, and I’ve
prepared to fire my weapon. He continues running.
He’s got his arm extended. He’s just about to cant it
back towards me, and as he’s running, he fumbled the
gun, and the gun fell.
Nos. 07-2433, 07-2435, 07-3118, et al. 5
Davis argued that the agent’s testimony did not necessarily
show that he intended to cause harm when he drew the
gun; he could have intended simply to dispose of it. The
district court disagreed, finding reckless endangerment
during flight based on Davis’s violence when he first got
away from the police and the risk he created by drawing
his gun. The court believed that after seeing the gun one of
the officers might have shot Davis, the other officer, or
someone else in the area.
The other four appellants, Steven Easter, Anthony
Glover, Bradford Dodson, and Montrell McSwain, were all
convicted on the same conspiracy charge and one
§ 924(c)(1) count, Easter and Glover after pleading guilty
and Dodson and McSwain after trial. Easter and Glover
were both subject to a ten-year mandatory minimum on the
conspiracy charge. Easter got 192 months and Glover got
156 months. Dodson and McSwain were both subject to
a twenty-year mandatory minimum on the conspiracy
charge. Dodson got 360 months and McSwain got
240 months. All four received a consecutive five-year term
for possessing a gun in furtherance of a drug trafficking
crime.
II. ANALYSIS
A. McKay
On appeal McKay argues that the district court should
not have sentenced him on the basis of any crack. He also
contends that the court mistakenly applied a mandatory
minimum to his sentence on the drug count. As McKay
6 Nos. 07-2433, 07-2435, 07-3118, et al.
views things, the district court applied the mandatory
minimum based on the marijuana equivalents for his
“share” of the heroin and crack. That is, neither 960 grams
of heroin nor 45 grams of crack (the lowest amount the
court attributed to McKay under the guidelines) would
trigger a 10-year minimum, but 1860 kilograms of mari-
juana, the aggregate of those amounts following the
conversion to marijuana equivalents, would. See 21 U.S.C.
§ 841(b)(1)(A)(i), (iii), (vii). The government makes no
attempt to argue that aggregating quantities of different
types of drugs to reach a statutory minimum would be
proper. Indeed, one circuit has explicitly rejected the
practice. Alaniz v. United States, 351 F.3d 365, 368 (8th Cir.
2003). Instead, the government argues that a stray remark
by the court at sentencing was an explicit finding that
McKay was responsible for at least 50 grams of crack, the
amount that would trigger the mandatory minimum under
§ 841(b)(1)(A)(iii).
The government’s reading of the court’s remark ignores
the language and context of the court’s statement:
I think both sides agree that if he is responsible--if I
find that he’s responsible for the crack cocaine, then
that added to the heroin would clearly be over one
kilo--well it would be clearly over 50 grams of cocaine,
and when you translate that into marijuana and you
translate the heroin into marijuana, you come up with
a total of--if I were to use the heroin, that translates
into 960 kilos of marijuana
The court seemed to refer to 50 grams of crack because, at
the time, 50 grams of crack and 1000 kilograms of mari-
Nos. 07-2433, 07-2435, 07-3118, et al. 7
juana both required a base offense level of 32. U.S.S.G.
§ 2D1.1(c)(4) (2006). The court’s discussion at that point
in the hearing was not about a mandatory minimum; it
was about the base offense level. Whatever the court
meant, though, this statement preceded the court’s
explicit finding that the amount of crack attributable to
McKay as relevant conduct fell somewhere in the range
of 45 to 75 grams. That is, the court expressly held that
the amount could have been less than 50 grams.
But none of this matters because both sides mistakenly
assume that the crack amount attributed to McKay as
relevant conduct under the guidelines was significant for
purposes of applying the statutory minimum. In fact,
statutory minimums do not hinge on the particular defen-
dant’s relevant conduct. In a drug conspiracy, the amount
of drugs attributable to any one codefendant as “relevant
conduct” for guidelines purposes is limited to the reason-
ably foreseeable transactions in furtherance of that
codefendant’s “jointly undertaken criminal activity,”
U.S.S.G. § 1B1.3(a)(1)(B), but when it comes to the statutory
penalties, every coconspirator is liable for the sometimes
broader set of transactions that were reasonably foresee-
able acts in furtherance of the entire conspiracy. See United
States v. Fox, No. 07-3830, __ F.3d ___, 2008 WL 4890006, at
*7 (7th Cir. Nov. 14, 2008); United States v. Soto-Piedra, 525
F.3d 527, 531-32 (7th Cir. 2008); United States v. Mellen, 393
F.3d 175, 183-84 (D.C. Cir. 2004); United States v. Newsome,
322 F.3d 328, 338-40 (4th Cir. 2003). When the defendant
agrees to a jointly undertaken criminal activity that is only
a slice of the whole conspiracy, the foreseeable acts taken
8 Nos. 07-2433, 07-2435, 07-3118, et al.
in furtherance of that slice can be a subset of the foresee-
able acts taken in furtherance of the entire conspiracy. E.g.,
U.S.S.G. § 1B1.3, cmt. 2(c)(3).
So the district court’s findings on relevant conduct do not
preclude application of the mandatory minimum, as
McKay argues. To avoid the mandatory minimum, McKay
would have to show that he could not have foreseen that
transactions in furtherance of the conspiracy would involve
at least 1 kilogram of heroin or at least 50 grams of crack.
21 U.S.C. § 841(b)(1)(A)(i), (iii). McKay conceded that the
“overall conspiracy was at least one kilogram of heroin and
at least 50 grams of crack,” and he conceded that 960 grams
of heroin were sold at the drug houses while he was
present. It would be frivolous for McKay to argue that he
could not have foreseen that other conspirators would sell
another 40 grams of heroin on the days that he was not
present. Thus, the district court was bound by the ten-year
mandatory minimum. Because McKay was actually given
the minimum, we need not consider his secondary argu-
ment about the amount of crack attributed to him as
relevant conduct under the guidelines. Even if that amount
should have been lower, the district court would not have
been permitted to impose a sentence below the mandatory
minimum. See United States v. James, 487 F.3d 518, 530 (7th
Cir. 2007); United States v. Duncan, 479 F.3d 924, 930 (7th
Cir. 2007).
B. Davis
Davis’s first argument on appeal is that his offense level
should not have been increased for reckless endangerment
Nos. 07-2433, 07-2435, 07-3118, et al. 9
during flight. The increase is applied where “the defendant
recklessly created a substantial risk of death or serious
bodily injury to another person in the course of fleeing
from a law enforcement officer.” U.S.S.G. § 3C1.2. The
district court explained that when Davis reached for his
gun, no matter what his intent was in doing so, he created
a substantial risk of harm warranting the increase because
he risked causing one of the officers to shoot and possibly
hit another officer, or Davis, or some other person in the
area. Considering the danger to Davis was error, U.S.S.G.
§ 3C1.2, cmt. 4, but the error was harmless because simply
reaching for a loaded gun is enough to create a substantial
risk of serious bodily injury to another person. See United
States v. Robinson, 537 F.3d 798, 802 (7th Cir. 2008) (apply-
ing analogous increase under U.S.S.G. § 3A1.2(c)(1));
United States v. Lee, 199 F.3d 16, 20 (1st Cir. 1999) (same);
United States v. Bell, 953 F.2d 6, 10 (1st Cir. 1992) (suggest-
ing that § 3C1.2 would apply if defendant had reached for
loaded gun when confronted by police). And the risk is
even greater where, as here, the person handling the gun
is also running at full speed.
Davis also contests the district court’s finding on drug
quantity. He argues that the evidence before the district
court was enough only to approximate drug quantity for
the short period of time in 2005 when the conspirators were
under surveillance and that the court erred when it used
that quantity to estimate the amounts he sold as far back as
2002 before the government’s investigation began. Davis
concedes, as he must, that the district court was permitted
to make a reasonable estimate of drug quantity. See
U.S.S.G. § 2D1.1, cmt. 12; United States v. Eschman, 227 F.3d
10 Nos. 07-2433, 07-2435, 07-3118, et al.
886, 890-91 (7th Cir. 2000). His argument is that the court’s
estimate did not have a sufficiently reliable basis. See, e.g.,
Eschman, 227 F.3d at 890-91; United States v. Acosta, 85 F.3d
275, 282-83 (7th Cir. 1996). But Davis ignores several pieces
of evidence that supported the court’s extrapolation: one
gang member testified to the operation of the conspiracy
before 2005, evidence recovered from the trash showed that
the gang operated several drug houses, several members of
the gang were arrested between 2002 and 2005 on
drug charges, and several buyers testified that they bought
heroin from the gang in that time period. Based on all
that evidence, which the district court was entitled to
credit, see, e.g., United States v. Abdulahi, 523 F.3d 757, 761
(7th Cir. 2008), the court’s conservative estimate of the
amount of crack sold during the conspiracy was not clear
error, id.
C. Easter, Glover, Dodson, and McSwain
Dodson and McSwain accepted the court’s invitation to
respond to their lawyers’ motions to withdraw, but Easter
and Glover did not. See C IR. R. 51(b). Our review is limited
to the potential issues identified in the supporting briefs of
counsel and in the submissions from Dodson and
McSwain. See United States v. Schuh, 289 F.3d 968, 973-74
(7th Cir. 2002). All of those issues are frivolous and only
one merits discussion. That one issue, pressed by McSwain
in his Rule 51(b) response, is based on the Second Circuit’s
recent interpretation of 18 U.S.C. § 924(c)(1) in United States
v. Whitley, 529 F.3d 150, 158 (2d Cir. 2008). Section 924(c)(1)
provides in relevant part:
Nos. 07-2433, 07-2435, 07-3118, et al. 11
Except to the extent that a greater minimum sentence is
otherwise provided by this subsection or by any other
provision of law, any person who, during and in relation
to any crime of violence or drug trafficking crime
(including a crime of violence or drug trafficking crime
that provides for an enhanced punishment if commit-
ted by the use of a deadly or dangerous weapon or
device) for which the person may be prosecuted in a
court of the United States, uses or carries a firearm, or
who, in furtherance of any such crime, possesses a
firearm, shall, in addition to the punishment provided
for such crime of violence or drug trafficking crime—
(i) be sentenced to a term of imprisonment of not less
than 5 years;
(ii) if the firearm is brandished, be sentenced to a
term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a
term of imprisonment of not less than 10 years.
18 U.S.C. § 924(c)(1)(A) (emphasis added). In Whitley, the
Second Circuit read the italicized language—the “except”
clause—to preclude a sentencing court from imposing an
additional term of imprisonment under § 924(c)(1) if that
term would be shorter than a greater statutory minimum
required by another count of conviction, including the
crime of violence or drug trafficking crime underlying the
§ 924(c)(1) count. Under what the Second Circuit called a
literal reading of the “except” clause, the district court here
was not free to impose a consecutive five-year term on the
§ 924(c)(1) counts because each of the defendants was
12 Nos. 07-2433, 07-2435, 07-3118, et al.
subject to a mandatory term of 10 or 20 years on the
conspiracy count and that mandatory term was “a greater
minimum sentence . . . otherwise provided by . . . any other
provision of law.” Whitley, 529 F.3d at 153.
Three circuits had published opinions parsing the
“except” clause before Whitley, and each opinion rejected
the argument later adopted by the Second Circuit. United
States v. Jolivette, 257 F.3d 581, 587 (6th Cir. 2001); United
States v. Studifin, 240 F.3d 415, 423 (4th Cir. 2001); United
States v. Alaniz, 235 F.3d 386, 389 (8th Cir. 2000); see also
United States v. Collins, 205 Fed. App’x 196, 198 (5th Cir.
2006) (unpublished). According to the Eighth Circuit,
Congress added the “except” clause to subsection (c)(1)(A)
in order to reconcile the penalty ranges of that paragraph
with the greater penalties set out in subsections (c)(1)(B)
and (c)(1)(C). Alaniz, 235 F.3d at 389. That court further
held that the “except” clause refers only to “the firearm-
related conduct proscribed either by § 924(c)(1) or ‘by any
other provision of law’ ” and not to the underlying drug
trafficking crime or crime of violence. Id. The Fourth
Circuit echoed the Eighth Circuit’s position, explaining
that it read the “except” clause “as simply reserving the
possibility that another statute or provision might impose
a greater minimum consecutive sentencing scheme for a
§ 924(c) violation, and not as negating the possibility of
consecutive sentencing.” Studifin, 240 F.3d at 423. After
Whitley, the First Circuit described that decision as “sus-
pect on its face” and cited the contrary precedent with
approval. United States v. Parker, __ F.3d ___, 2008 WL
5006123, at *5-6 (1st Cir. Nov. 26, 2008). In upholding the
consecutive penalty under § 924(c)(1) in its own case, the
Nos. 07-2433, 07-2435, 07-3118, et al. 13
First Circuit distinguished Whitley on a narrow factual
ground and thus stopped short of explicitly rejecting the
Second Circuit’s analysis. Id. at *6. Nevertheless, we read
the First Circuit’s opinion as squarely aligned with the
majority view.
We also embrace the majority position. Although the
issue is one of first impression in this circuit, that does not
automatically lead to the conclusion that it is nonfrivolous
and cannot be resolved in an Anders posture without
briefing. See United States v. Lopez-Flores, 275 F.3d 661, 662-
63 (7th Cir. 2001); see also United States v. Morris, __ F.3d
___, 2008 WL 5101636 (7th Cir. Dec. 5, 2008). As we have
explained, an issue of first impression “may be frivolous
because, for example, of the clarity of statutory language,
or even as a matter of common sense.” Lopez-Flores, 257
F.3d at 663. The construction of 18 U.S.C. § 924(c)(1)(A) is
such an issue.
We interpret a statute by giving it its most natural
reading, see United States v. Ressam, 128 S. Ct. 1858, 1860
(2008), and the most natural reading of the “except” clause
is that a defendant convicted under § 924(c)(1) shall be
sentenced to a term of imprisonment set forth in
§ 924(c)(1)(A) unless subsections (c)(1)(B) or (c)(1)(C), or
another penalty provision elsewhere in the United States
Code, requires a higher minimum sentence for that
§ 924(c)(1) offense.
The reading in Whitley would be understandable if
§ 924(c) defined a type of sentencing enhancement meant
to require a mandatory minimum sentence when a firearm
is used in furtherance of an underlying crime of violence or
14 Nos. 07-2433, 07-2435, 07-3118, et al.
drug trafficking crime. If § 924(c) were an enhancement, it
might make sense for that requirement to fall away when
the underlying crime, or some other count of conviction,
requires a greater mandatory minimum.
But § 924(c) does not define an enhancement, it defines
a standalone crime, see Harris v. United States, 536 U.S. 545,
553 (2002), and the penalty imposed under it must be
imposed to run consecutively to any other sentence, 18
U.S.C. § 924(c)(1)(D)(ii); see also United States v. Griffin, 493
F.3d 856, 868 (7th Cir. 2007); United States v. Sutton, 337
F.3d 792, 802 (7th Cir. 2003). A determination of guilt that
yields no sentence is not a judgment of conviction at all.
And a sentence of zero months cannot be served consecu-
tively to another sentence.
We do not agree with the Whitley opinion that we have
changed the meaning of the statute’s text by reading the
“except” clause as limited to penalties for the § 924(c)(1)
itself. See Whitley, 529 F.3d at 153. On the contrary, the
reading found in Whitley is the less-natural one. It is
difficult to understand why the mandatory minimum
penalty that must be imposed for a standalone firearm
offense should hinge on the mandatory minimum penalty
that must be imposed for any other offense of conviction.
In the contest between reading the “except” clause to refer
to penalties for the offense in question or to penalties for
any offense at all, we believe the former is the most natural.
See Parker, 2008 WL 5006123, at *5.
Where, as here, the plain meaning of the statute is
unambiguous, that is the end of the matter. See CSX
Transp., Inc. v. Georgia State Bd. of Equalization, 128 S. Ct.
Nos. 07-2433, 07-2435, 07-3118, et al. 15
467, 474 (2007); United States v. Webber, 536 F.3d 584, 593
(7th Cir. 2008). Nevertheless, it appears to us that the
reading given in Whitley thwarts Congress’s purpose in
enacting § 924(c)(1) and causes illogical results. First, the
Whitley interpretation of § 924(c)(1)(A) nullifies
§ 924(c)(1)(D)(ii), which requires that a sentence for a
§ 924(c)(1) count run consecutive to any other sentence. See
Studifin, 240 F.3d at 423. Second, the purpose of the 1998
amendment of § 924(c)(1) that created the “except” clause
was to undo the Supreme Court’s holding in Bailey v.
United States, 516 U.S. 137 (1995), which contracted
the application of the statute by adopting a narrow
definition for the “use” of a firearm. As the Second Circuit
has acknowledged, Congress obviously wanted to expand
the reach of § 924(c)(1). Whitley, 529 F.3d at 155; see
also Studifin, 240 F.3d at 421. We do not agree with
the Second Circuit, though, that its reading is consistent
with that desire. Under that reading, many defendants
convicted under § 924(c)(1) would receive no punishment
for the conviction. That is no expansion; it is a contraction.
Finally, the Whitley opinion tries to explain away the
biggest anomaly its reading creates by stressing that, even
when its holding precludes any imprisonment for a
violation of § 924(c)(1), the district court is free, consistent
with the sentencing factors of 18 U.S.C. § 3553(a), to
increase the term for the underlying crime of violence or
drug trafficking count by the amount that § 924(c)(1)
would otherwise require. Whitley, 529 F.3d at 155.
This explanation is unconvincing because, first, it seems
to rest on the sentencing discretion granted to district
16 Nos. 07-2433, 07-2435, 07-3118, et al.
courts by United States v. Booker, 543 U.S. 220 (2005), even
though that opinion came seven years after the “except”
clause was added in 1998. More importantly, though, the
Second Circuit’s “fix” would invite district courts to tinker
with the sentence for one count based on dissatisfaction
with the sentence required for another, a practice we have
disapproved of in a similar situation. See United States v.
Roberson, 474 F.3d 432 (7th Cir. 2007) (reversing overall
sentence where judge who deemed the required consecu-
tive sentence for a § 924(c)(1) count too high reduced the
sentence on a separate count).
In short, the Second Circuit tries to have it both ways. On
one hand, Whitley holds that Congress intended § 924(c)(1)
to require no penalty in certain situations, but, on the other
hand, the opinion explains that judges unhappy with that
intention may mitigate it by going against Congress’s
intent and increasing the sentence for another count. That
makes no sense and would invite district courts judges to
act outside their sentencing discretion.
For all these reasons, it would be frivolous to argue that
a district court is barred from imposing any sentence at all
for a § 924(c)(1) count when some other count of conviction
requires a greater mandatory minimum. Because all the
other issues discussed in the briefs of counsel and in the
submissions from Dodson and McSwain would be simi-
larly frivolous, we grant the motions to withdraw filed by
counsel for Easter, Glover, Dodson, and McSwain and we
dismiss all four appeals.
Nos. 07-2433, 07-2435, 07-3118, et al. 17
III. C ONCLUSION
We A FFIRM the convictions and sentences of McKay and
Davis. We G RANT the motions to withdraw filed by counsel
for Easter, Glover, Dodson, and McSwain, and we D ISMISS
all four appeals.
1-16-09