United States v. Bowlin, Ivy G. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3743
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
IVY GENE BOWLIN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 06-CR-40011-JPG—J. Phil Gilbert, Judge.
____________
ARGUED SEPTEMBER 24, 2007—DECIDED JULY 17, 2008
____________
Before POSNER, FLAUM, and WOOD, Circuit Judges.
WOOD, Circuit Judge. This appeal is before us because
Ivy Gene Bowlin was frustrated in his attempt to with-
draw his plea of guilty to a three-count indictment that
charged violations of the federal drug laws. If he cannot
succeed in withdrawing the plea, Bowlin would like
his sentence corrected. He argues that the district court
selected the wrong sentence because it erred in its ap-
plication of the U.S. Sentencing Guidelines, both in deter-
mining his relevant conduct and in applying the enhance-
ment for use of a minor in committing an offense. He
also claims that the Government should not have been
2 No. 06-3743
permitted to include drug quantities in his indictment as
a basis for enhancing his sentence. Finding no error, we
affirm the district court in all respects.
I
On February 8, 2006, a federal grand jury returned a
three-count indictment against Bowlin, charging him
with conspiracy to manufacture and distribute 50 grams or
more of a mixture and substance containing metham-
phetamine and with two counts of distributing metham-
phetamine, each on a different date in late December of
2005, all in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B),
and 846. On May 4, 2006, Bowlin pleaded guilty to all
three counts. During this proceeding, the district court
placed Bowlin under oath and, prior to accepting the plea,
gave Bowlin the advice required by FED. R. CRIM. P. 11. As
it went through the advice required by Rule 11(b), the
district court frequently asked Bowlin whether he under-
stood what was being said and whether he had any
questions. Each time, Bowlin replied that he did under-
stand, and that he had no questions. Part of this ex-
change went as follows:
THE COURT: Do you understand you can persist in
a plea of not guilty and have a trial, but if you plead
guilty to these charges, you are waiving your right
to a trial and there will be no trial, and you will be
sentenced as if you were found guilty by a jury. Do
you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: It’s my understanding you wish to
enter into an open plea to these charges; is that correct?
No. 06-3743 3
THE DEFENDANT: Yes.
THE COURT: An open plea of guilty?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Have you talked about the sen-
tencing guidelines and how they might apply in your
case?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you understand this Court cannot
determine what guideline applies to your case until
it has received and reviewed a Presentence Investiga-
tion Report. That the guidelines are advisory now,
and the Court will consider those guidelines as well as
factors enumerated in 3553(a) of Title 18 when it
sentences you. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
The prosecution then laid out the factual basis for its case;
the court asked Bowlin whether those representations
were correct; and Bowlin confirmed that they were. The
court then asked Bowlin how, with respect to each count,
he wished to plead; Bowlin replied “Guilty.” In response
to further questioning, Bowlin confirmed that no threats
or promises had been made to him in an effort to induce
the guilty plea and that he was acting freely and volun-
tarily. Satisfied with Bowlin’s responses, the court accepted
the plea and set a sentencing date of August 3, 2006.
On June 30, 2006, the probation officer completed a
Presentence Investigation Report (“PSR”) for Bowlin. The
record reflects that Bowlin received the PSR in early July
of 2006, roughly one month before his August 3 sen-
tencing date. Like many defendants before him, Bowlin
was unpleasantly surprised to discover that the PSR
4 No. 06-3743
delved into not only the charged offenses, but also addi-
tional drug transactions that the Government had learned
about from a confidential source. Though the Govern-
ment had acquired this information months before, the
prosecution had not disclosed it to Bowlin or to his coun-
sel, because the identity of the informant, Tonya Stone,
remained confidential during those earlier phases of the
proceedings. Thus, only after reading the PSR did Bowlin
learn that Stone had told the Government that from
November 2001 until spring of 2003, she was getting two
to five grams of methamphetamine from Bowlin “every
day that [she] was awake.” Stone said that she and Bowlin
engaged in a daily trade, in which she gave him
pseudoephedrine pills in exchange for methamphet-
amine. Though these were not the transactions described
in the distribution counts of Bowlin’s indictment, they
overlapped with the period of the charged conspiracy. The
PSR therefore included the 1.3 to 1.8 kilograms of metham-
phetamine that Bowlin had distributed to Stone as rele-
vant conduct under U.S.S.G. § 1B1.3.
The addition of this additional quantity naturally had a
significant impact on the sentence recommended in the
PSR. Disturbed, Bowlin promptly called his appointed
counsel, Daniel Goggin, wanting to discuss this turn of
events. But Goggin was preparing for trial in another
case, and because he believed “there wasn’t anything
unusual about [Bowlin’s] complaints” regarding the
PSR, Goggin did not manage to meet with Bowlin to
discuss the PSR until just a couple of days before the
August 3 sentencing hearing. Realizing then that Bowlin’s
distress over the previously undisclosed witness did
raise a significant issue, Goggin immediately drafted
objections to certain portions of the PSR. He filed those
objections on the day of the initial sentencing hearing,
August 3, 2006. Goggin admitted to the court that he
No. 06-3743 5
had “no good excuse” for such a tardy response, but he
asked the court to consider the objections nonetheless,
explaining that Bowlin’s right to due process ought not
suffer on account of his lawyer’s delay. After the Gov-
ernment conceded that it had inadvertently failed to
disclose the statement to Bowlin at a more appropriate
time, the district court granted Bowlin a continuance of
three weeks, so that Bowlin and his counsel could pre-
pare for the hearing in light of the new information.
When the sentencing hearing reconvened three weeks
later, on August 24, 2006, the district court began by
confirming with Bowlin that Bowlin had received the
PSR and had an opportunity to review and discuss it
with his counsel. Bowlin also acknowledged his aware-
ness of the objections Goggin had filed and stated that
he had no further objections to the PSR. At that point,
Goggin interjected that it was “surpris[ing]” and “unfair”
for the Government to spring the previously undisclosed
testimony from Stone and the additional 1.3 to 1.8 kilo-
grams of methamphetamine on Bowlin so late in the
game. At that point, the district court explicitly offered
Bowlin the opportunity to withdraw his guilty plea:
THE COURT: Well, does he want to withdraw his
plea and go to trial?
MR. GOGGIN: Just one second, Judge. Let me ask
him that. At this point, he doesn’t Your Honor.
THE COURT: He doesn’t?
MR. GOGGIN: Right.
THE COURT: Are you wanting a continuance of this
sentencing hearing so you can subpoena witnesses?
MR. GOGGIN: That’s correct, Your Honor.
6 No. 06-3743
After this exchange, the district court allowed the Govern-
ment to present the testimony of its witnesses. As Bowlin
had requested, the court then adjourned the hearing
until October 3, 2006, to give Bowlin time to subpoena
his own witnesses and arrange for their attendance.
Only when the proceedings reconvened on October 3,
2006, did Bowlin (through counsel) make his oral motion
to withdraw his guilty plea. When the court asked whether
he was ready to proceed, the following exchange ensued:
MR. GOGGIN: Your Honor, I’m ready to do that
[proceed], but I would have a request for what it’s
worth. The last time we were in court, if you recall, you
asked me if [my] client wanted to withdraw his plea,
and he said no, he was under shock with everything
else that he was seeing in his [PSR]. But he and
I have spent a lot of time together in the last couple
weeks, and he’s come to the conclusion if that’s still
available to him, he will do that. If not we will finish
the hearing.
THE COURT: Mr. Goggin —
MR. GOGGIN: I want to get this case over, too,
Judge. He was caught off guard by that last time.
THE COURT: How many weeks ago? When was this
last hearing?
MR. NORWOOD [for the prosecution]: Last time we
were here, actually, in court?
THE COURT: Yes. If he wanted to withdraw his plea,
file something.
PROBATION OFFICER MILLER: I believe it was
August 24th.
No. 06-3743 7
THE COURT: For the sake of the record, this is
October.
MR. GOGGIN: I know. And I can’t say the exact
dates I was up in Mt. Vernon to see him. We discussed
it thoroughly and I said, “If you come to that con-
clusion, please let me know before trial.” And today
is when I talked to him again. I apologize for all of
that. It’s his wish, but if it’s not granted, we’re ready
for the hearing.
THE COURT: Well, if you’re making an oral motion
to withdraw your plea, the oral motion is denied.
MR. GOGGIN: Okay.
The court explained that Bowlin had offered no basis for
withdrawing his plea and that he had already had
plenty of time to decide what to do. Observing that a
defendant cannot decide to change his plea simply be-
cause “he doesn’t like the way the sentencing hearing is
going or the way the presentence report came out,” the
district court underscored the fact that the previously
undisclosed statement of the confidential source had no
bearing on guilt or innocence, but instead mattered only
for sentencing. The district court then proceeded with
the remainder of the sentencing hearing.
After hearing Bowlin’s evidence, the court began by
adopting the PSR as its own findings. It specified that
the offense involved 1.5 kilograms to 5 kilograms of a
mixture and substance containing methamphetamine,
which supported a base offense level of 34 for purposes of
the Sentencing Guidelines. The court then added two
more points under § 3B1.4 for use of a minor to commit
the offense and subtracted three for acceptance of responsi-
bility, for a final offense level of 33; Bowlin’s criminal
8 No. 06-3743
history category was VI. Taking into account the advisory
Guidelines range, the parties’ recommendations, and the
factors set forth in 18 U.S.C. § 3553(a) (including especially
Bowlin’s extensive criminal history), the court sentenced
Bowlin to 360 months’ imprisonment, five years’ super-
vised release, a $750 fine, and a $300 special assessment.
Though the prison term of 360 months was above the
advisory Guidelines range, the district court explained
that the additional time was appropriate because of
Bowlin’s “abysmal” criminal record (which earned him
24 criminal history points, well above the number
needed for category VI) and the danger he posed to the
public. The court noted that the sentence was still below
the statutory maximum of 480 months.
II
We first address Bowlin’s claim that the district court
erred in denying his belated motion to withdraw his
guilty plea. A defendant’s right to withdraw a plea of
guilty before sentencing is not absolute, “although the
court may allow him to do so if he has a ‘fair and just
reason’ for doing so.” United States v. Carroll, 412 F.3d 787,
792 (7th Cir. 2005); FED. R. CRIM. P. 11(d)(2)(B). This
court reviews a district court’s denial of a motion to
withdraw a plea of guilty for an abuse of discretion. We
have cautioned that a “defendant seeking to [withdraw
a guilty plea] faces an ‘uphill battle’ after a thorough
Rule 11 colloquy” has already occurred. United States v.
Bradley, 381 F.3d 641, 645 (7th Cir. 2004) (quoting United
States v. Bennett, 332 F.3d 1094, 1099 (7th Cir. 2003)); see
also United States v. Logan, 244 F.3d 553, 558 (7th Cir. 2001)
(“The presumption of verity [of a defendant’s statements
in pleading guilty] is overcome only if the defendant
No. 06-3743 9
satisfies a heavy burden of persuasion.” (brackets in Logan)
(internal quotation marks omitted)).
One “just and fair reason” for withdrawing a defend-
ant’s plea of guilty is that the plea was not voluntarily
made. United States v. Ellison, 835 F.2d 687, 692-93 (7th Cir.
1987). As the Government points out, however, this
principle does not override the presumption that the
record created by a Rule 11 inquiry is true. See, e.g.,
United States v. Trussel, 961 F.2d 685, 689 (7th Cir.
1992).The exchanges reproduced above show that the
district court engaged in an extensive Rule 11 colloquy
with Bowlin, thoroughly informing him of his rights and
ensuring that he understood the stakes involved in his
plea. Even so, Bowlin now urges that his plea was not
“intelligent and voluntary” because, not knowing about
Stone’s testimony when he pleaded, he was mistaken
or misinformed about the “reasonable variables that
might cause his possible sentence to fluctuate within
predictable parameters.”
Bowlin sees his case as falling squarely within the
framework of United States v. Bradley, supra, in which
we found that a guilty plea was not “intelligent and
voluntary” because of a mutual mistake about the essen-
tial elements of the charged offense. As a result of the
mistake, “the facts to which Mr. Bradley admitted, both in
the plea agreement and at the Rule 11 colloquy, did not
establish the § 924(c) offense with which he was charged.”
381 F.3d at 646. We therefore could “not say Mr. Bradley
fully understood the nature of the charge to which he
admitted guilt”; his plea was not knowing and voluntary,
and the district court’s denial of his request to withdraw
it was improper. Id. at 645-46.
10 No. 06-3743
We are not persuaded by Bowlin’s effort to squeeze
his case into Bradley’s result. A mistake about the sub-
stantive offense goes to the heart of the guilty plea; a
mistake about the possible sentence—especially when
the defendant has been warned that the judge will deter-
mine the sentence based on information collected by
the Probation Office and at any sentencing hearing—does
not. We have repeatedly held that “the fact that a defen-
dant underestimated his sentence when entering his
plea is not a fair and just reason to permit him to with-
draw that guilty plea.” United States v. Gilliam, 255 F.3d
428, 433-34 (7th Cir. 2001) (quoting United States v. Knorr,
942 F.2d 1217, 1220 (7th Cir. 1991)).
The district court was also entitled to take into account
the timing of Bowlin’s request. As we noted earlier,
Bowlin received the PSR in early July of 2006, about one
month before the initially scheduled date of his sentenc-
ing. When Bowlin’s counsel requested additional time to
review the PSR in light of the new information about the
confidential source, the district court obliged with a three-
week continuance. On August 24, when the initial sentenc-
ing hearing finally got underway, the district judge on his
own initiative asked counsel if Bowlin wished to withdraw
his plea of guilty, and both Bowlin and the lawyer said no.
The court was entitled to take Bowlin seriously when he
represented that all he wanted was additional time to
subpoena witnesses. The court gave him that time.
Not until the October 3, 2006, proceedings, three months
after Bowlin first received the PSR and learned the critical
information, did Bowlin attempt to withdraw his plea.
Nothing in this chain of events would support a finding
that Bowlin’s plea of guilty was not knowing and volun-
tary. The district court thus did not abuse its discretion
when it denied Bowlin’s motion to withdraw his plea.
No. 06-3743 11
III
Our rejection of Bowlin’s request to withdraw his plea
means that we must address his challenges to his sen-
tence. He contests both the two-point enhancement under
§ 3B1.4 of the Sentencing Guidelines for use of a minor
to commit a crime, and the district court’s calculation of
relevant conduct under § 1B1.3. We examine each of
these points in turn, reviewing the district court’s applica-
tion of the Sentencing Guidelines de novo and its factual
determinations for clear error. United States v. Warren,
454 F.3d 752, 762 (7th Cir. 2006).
A
Section 3B1.4 authorizes a two-level enhancement where
the defendant “used or attempted to use” a minor to
commit the offense. Application Note 1 further specifies
that the phrase “used or attempted to use” includes all of
the following: “directing, commanding, encouraging,
intimidating, counseling, training, procuring, recruiting,
or soliciting.” In addition, “[a]s this Court held in United
States v. Ramsey, ‘use’ requires the affirmative involve-
ment of the minor in the crime.” United States v. Hodges,
315 F.3d 794, 802 (7th Cir. 2003) (citing Ramsey, 237 F.3d
853, 859 (7th Cir. 2001)). “Use” of a minor within the
meaning of this section can be established both “when the
minor is a partner in the criminal offense . . . as well as
when the minor’s role is subordinate to that of the crim-
inal defendant.” Id. (alteration in Hodges) (quoting
Ramsey, 237 F.3d at 859). We have upheld the application
of this enhancement even when the defendant’s “use” of
the minor is minimal. See, e.g., United States v. Vivit, 214
F.3d 908, 920 (7th Cir. 2000) (in a mail fraud and
12 No. 06-3743
false claims case, applying the minor enhancement to
defendant, a physician, who had minor patients (ages 16,
9, and 7) sign attendance sheets that fraudulently inflated
the number of visits they had paid to defendant).
The district court did not clearly err when it found that
Bowlin’s use of a minor warranted the enhancement. The
record shows that Kimberly Carlton, 17 years old and
living with Bowlin as his girlfriend during relevant times
of his offenses, assisted Bowlin in his manufacture of
methamphetamine. At Bowlin’s sentencing hearing,
Carlton testified that she often assisted Bowlin in his
makeshift meth-lab (located in the attic of the residence
they shared) by cleaning jars “whenever [Bowlin] needed
them cleaned,” and that, at Bowlin’s request, she also
frequently fetched various ingredients needed for the
manufacture of methamphetamine in their home. Carlton
testified that on one occasion, Bowlin allowed her to
assist him in the actual manufacturing process by letting
her complete (while he watched) the final stage of “smok-
ing off” a liquid into powdered methamphetamine.
Considering this testimony, which it found credible, the
district court concluded: “There’s no question that
Kimberly Carlton was a minor at the time. This defendant
used her to assist in committing the offense. Whether
it’s one time or ten times or a hundred times doesn’t make
any difference. One time’s enough to do it.”
Bowlin’s final argument that the enhancement is im-
proper because Carlton offered to assist him is without
merit, for it does not negate his conscious decision to
accept such assistance. The law presumes that minors need
more protection than adults. Their consent to a wide
range of things is thus ineffective, whether it is to the
signing of a contract, or to sexual relations, or to assist-
No. 06-3743 13
ance with drug-manufacturing operations. The enhance-
ment for use of a minor was thus properly applied in
computing Bowlin’s advisory Guidelines range.
B
Bowlin’s second sentencing argument challenges the
district court’s determination of his relevant conduct. At
issue is the court’s inclusion, as relevant conduct, of the
substantial amounts of methamphetamine that Stone
claimed Bowlin gave her in exchange for precursor in-
gredients. Bowlin does not directly dispute the amounts
that Stone mentioned; he argues instead that his transac-
tions with Stone were not “part of the same course of
conduct” to which he pleaded guilty, and therefore they
should not have been included for purposes of his sen-
tence.
“In assessing whether offenses are part of the same
course of conduct, we look to whether there is a strong
relationship between the uncharged conduct and the
convicted offense, focusing 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) (internal quotation marks omitted). In
this case, the conspiracy to which Bowlin pleaded guilty
lasted from December 2002 through January 2006. The
transactions described by Stone started in November
2001 and went through March or April 2003. Bowlin argues
that the four months or so of overlap (from December 2002
to March 2003) between his daily dealings with Stone and
the charged conspiracy are insufficient to form the neces-
sary link between the uncharged conduct and the charged
conduct. He also asserts that, because Stone never men-
14 No. 06-3743
tioned Bowlin’s alleged co-conspirators, his dealings
with her were not sufficiently related to the conspiracy
charge. These arguments are unavailing, for it is well
established that relevant conduct can be (and often is)
broader than the conduct underlying the offense of con-
viction. See, e.g., United States v. Payne, 226 F.3d 792, 796
(7th Cir. 2000). The district court did not err in finding
that the charged conspiracy and the deals with Stone
were sufficiently similar, regular, and temporally proxi-
mate to be included in the relevant conduct calculation.
Bowlin’s attempts to shed doubt on the relevant con-
duct finding by attacking Stone’s credibility also must fail.
Bowlin attempted to impeach Stone during the sen-
tencing hearing, but the district court made an explicit
finding that Stone was credible. We will reverse a dis-
trict court’s findings on witness credibility only if the
testimony is “incredible as a matter of law,” meaning that
“it must have been either physically impossible for the
witness to observe that which he or she claims occurred,
or impossible under the laws of nature for the occurrence
to have taken place at all.” Ortiz, 431 F.3d at 1039 (internal
quotation marks omitted). Given the standard of re-
view, this line of argument provides no help to Bowlin.
IV
Finally, we turn to Bowlin’s argument that the Govern-
ment is barred from alleging drug quantities in the indict-
ment that can later serve as grounds for enhancing a
defendant’s sentence. This argument need not detain us
long: there is no such rule. In fact, before a drug quantity
may be used to affect a statutory maximum sentence,
that quantity must be charged in the indictment and proved
No. 06-3743 15
to a trier of fact beyond a reasonable doubt. Apprendi v.
New Jersey, 530 U.S. 466, 488-90 (2000); United States v.
Flagg, 481 F.3d 946, 949-50 (7th Cir. 2007); United States v.
Macedo, 406 F.3d 778, 786 (7th Cir. 2005); United States v.
Mietus, 237 F.3d 866, 874 (7th Cir. 2001). When Bowlin
pleaded guilty, he admitted the facts charged in the
indictment. The court was therefore entitled to take
that quantity into account when it established Bowlin’s
sentencing range.
V
Because we conclude that Bowlin’s plea was knowing,
his sentence reasonable, and his challenge to drug quanti-
ties in the indictment meritless, the judgment of the dis-
trict court is AFFIRMED.
USCA-02-C-0072—7-17-08