United States v. Farmer, Douglas ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 07-2505, 07-2506, 07-2507 and 07-3313
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D OUGLAS F ARMER, JAMES E LLIS,
JOSIAH C OMPTON, and G ERALD
H OWLIET,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Southern District of Illinois.
No. 04 CR 30139—G. Patrick Murphy, Judge.
____________
A RGUED JUNE 6, 2008—D ECIDED S EPTEMBER 9, 2008
____________
Before B AUER, R IPPLE and M ANION, Circuit Judges.
B AUER, Circuit Judge. This is a consolidated appeal from
the convictions of four out of fourteen defendants for
various offenses stemming from a drug distribution ring
in the East St. Louis, Illinois area.
The government began investigating Defendants-Appel-
lants Douglas Farmer, James Ellis, Josiah Compton, and
2 Nos. 07-2505, 07-2506, 07-2507 and 07-3313
Gerald Howliet in 2003 after learning of their involvement
in the distribution of crack, powder cocaine, and mari-
juana. The investigation included the review of police
reports, telephone records, and pen registers, as well as
law enforcement surveillance, wire communications
interception, and intelligence provided by confidential
informants. Through the execution of search warrants,
agents eventually seized more than 11.6 kilograms of
powder cocaine, 536 grams of crack cocaine, 6.1 grams of
heroin, 14.8 kilograms of marijuana, $120,640.00 in U.S.
currency, and numerous firearms. A jury convicted
Defendants-Appellants on various drug-related charges,
which they now appeal. We address each Defendant-
Appellant’s respective arguments in turn.
I. Douglas Farmer
On November 18, 2004, Farmer was indicted for conspir-
acy to distribute and possess with the intent to distribute
cocaine, cocaine base, and marijuana, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A), 846, and 18 U.S.C. § 2;
thirteen others were named in the indictment on con-
spiracy and/or various other drug-related offenses. The
last defendant was arraigned on January 13, 2005.
On December 1, 2004, one of the co-defendants filed a
motion to suppress. While that was pending, another
motion was filed, then another, then another; in fact, a
series of overlapping motions continued pending through-
out the duration of the case.
On February 22, 2007, Farmer filed a motion to dismiss
the indictment, alleging a violation of the Speedy Trial Act,
Nos. 07-2505, 07-2506, 07-2507 and 07-3313 3
18 U.S.C. § 3161 et seq. Farmer acknowledged that
“excludable days of delay ha[d] occurred,” but argued that
“the delay that has been experienced herein exceeds any
permissible exception visualized by the Speedy Trial Act.”
The district court denied Farmer’s motion, finding that
seventy days of non-excludable time had not passed
between the last co-defendant’s arraignment and Farmer’s
trial because of the filing of several motions by Farmer
and his co-defendants. Farmer re-asserts the same argu-
ment on appeal, and like the district court, we reject it.
We review the district court’s denial of Farmer’s Speedy
Trial motion de novo. See United States v. Parker, 508 F.3d
434, 438 (7th Cir. 2007) (citing United States v. Baskin-Bey, 45
F.3d 200, 203 (7th Cir. 1995)). The Speedy Trial Act pro-
vides that no more than seventy days may elapse between
a defendant’s initial appearance in court and the com-
mencement of trial. 18 U.S.C. § 3161(c)(1); Parker, 508
F.3d at 438. When more than one defendant is charged
in an indictment, the Speedy Trial clock begins to run
on the date of the last co-defendant’s initial appearance,
which is usually arraignment. Parker, 508 F.3d at 439;
United States v. Garrett, 45 F.3d 1135, 1138 (7th Cir. 1995). In
calculating the Speedy Trial clock, the Act specifically
excludes “delay resulting from any pretrial motion, from
the filing of the motion through the conclusion of the
hearing on, or other prompt disposition of, such motion.”
18 U.S.C. § 3161(h)(1)(F). Furthermore, the Act excludes
any reasonable time lapse occurring “when the defendant
is joined for trial with a codefendant as to whom the
time for trial has not run and no motion for severance
has been granted.” 18 U.S.C. § 3161(h)(7); see Henderson v.
4 Nos. 07-2505, 07-2506, 07-2507 and 07-3313
United States, 476 U.S. 321, 323 n.2 (1986) (noting that in
multi-defendant cases, the seventy-day clock does not
begin until the last co-defendant has been arraigned).
The excludable delay of Farmer’s co-defendants is
ascribed to him, since Farmer was not severed, nor did he
seek severance, from those co-defendants for trial. See
United States v. Baker, 40 F.3d 154, 159 (7th Cir. 1994). As
Farmer acknowledges, overlapping motions filed by
himself and his co-defendants remained before the
district court throughout the time between his last co-
defendant’s arraignment on January 13, 2005, and the
start of his trial on March 6, 2007. Farmer properly con-
cedes that seventy days of non-excludable time did not
lapse. So despite over two years passing between Farmer’s
indictment and the commencement of his trial, no
Speedy Trial Act violation occurred. (In fact, although no
mention was made of it in this appeal, on February 21,
2005, Farmer filed a Waiver of Speedy Trial.) We disagree
with Farmer that such a delay “makes a mockery of [the
Act’s] statutory protection”; to the contrary, we find the
delay necessary to ensure that the defendants’s pre-trial
motions were adequately considered as to minimize the
effect of any infringement on their rights resulting from
an improper indictment, illegally seized evidence, or any
other impropriety.1 Accordingly, we affirm Farmer’s
1
The pre-trial motions filed by Farmer alone that contributed
to the delay included motions for reconsideration of bond, to
continue, to change counsel, to suppress evidence, and to
disqualify the first assigned district court judge. Had the
(continued...)
Nos. 07-2505, 07-2506, 07-2507 and 07-3313 5
conviction.
II. James Ellis
Ellis was convicted of conspiracy to distribute and to
possess with the intent to distribute cocaine, cocaine base,
and marijuana, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), 846, and 18 U.S.C. § 2. At trial, the government
played recorded telephone calls obtained through court-
authorized wire taps. The government introduced these
tapes through Drug Enforcement Agency (DEA) Special
Agent Michael Rehg. Agent Rehg testified as a fact witness
regarding the investigation’s progress and events, and as
an expert witness to assist the jury in understanding the
coded drug language contained in the recorded conversa-
tions.
Agent Rehg testified that he had been a DEA agent
for eight years, and was a Deputy U.S. Marshal for
nine years before that (three years of which he was as-
signed to the DEA). He further testified that he was the
lead case agent in this case and that he had overseen
the process of obtaining the court-authorized wire taps.
Agent Rehg also stated that he had participated in hun-
dreds of drug cases, he had listened to thousands of calls
in this case, and his experience gave him knowledge of
the meanings of certain coded drug language.
1
(...continued)
court not thoroughly addressed these motions, Farmer would
likely have a substantively different (and possibly more suc-
cessful) argument on appeal.
6 Nos. 07-2505, 07-2506, 07-2507 and 07-3313
Ellis repeatedly objected to Agent Rehg’s testimony,
claiming that Agent Rehg was not a qualified expert and
that he was unfairly prejudiced by the district court’s
decision to allow Agent Rehg to testify both as a fact and
expert witness. The district court allowed Agent Rehg to
testify in both capacities, but gave the jury cautionary
instructions regarding expert testimony.
The jury found Ellis guilty of the conspiracy charged, and
the United States Probation Department prepared a Pre-
Sentence Report (PSR). The PSR determined that Ellis had
a total offense level of thirty-eight and a criminal history
category of IV, resulting in an advisory Guidelines range
of 324 to 405 months’ imprisonment. This calculation
included a two-level offense increase based on Ellis’s
possession of a firearm during the commission of the
offense, pursuant to U.S.S.G. § 2D1.1(b)(1). The evidence
of Ellis’s possession of a firearm came from the proffer of
a co-conspirator, Elvin Pawnell, who stated that he had
been with Ellis and Farmer on fifteen to twenty occasions
in 2005 when they were providing him with cocaine.
Pawnell said that Ellis carried a .45-caliber handgun
during these meetings; once, Ellis showed him the gun,
and on other occasions, Pawnell saw the gun in Ellis’s
waistband.
Ellis filed written objections to the two-level increase
pursuant to U.S.S.G. § 2D1.1(b)(1), arguing that his posses-
sion of a firearm had not been proven beyond a reasonable
doubt, in violation of Blakely v. Washington, 542 U.S. 296
(2004). The district court rejected Ellis’s argument and
applied the two-level enhancement. The district court
Nos. 07-2505, 07-2506, 07-2507 and 07-3313 7
subsequently sentenced Ellis to 288 months’ imprisonment,
which was below his advisory Guidelines range.
On appeal, Ellis contends that the district court erred in
allowing Agent Rehg to testify as both a fact and expert
witness. Specifically, Ellis claims that the district court
failed to properly apply Federal Rule of Evidence 702
because it did not conduct a hearing to consider Agent
Rehg’s qualifications. Ellis further argues that allowing
Agent Rehg to testify in both capacities unfairly prej-
udiced him. In addition, Ellis argues that the district
court improperly applied the two-level enhancement.
We review the district court’s decision to admit expert
testimony for an abuse of discretion. United States v.
Goodwin, 496 F.3d 636, 641 (7th Cir. 2007) (citing United
States v. Ceballos, 302 F.3d 679, 686 (7th Cir. 2002)). Al-
though Ellis appeals under Rule 702, neither Ellis nor the
government specifically requested that the district court
evaluate Agent Rehg’s qualifications as an expert under
Rule 702. See United States v. Moore, 521 F.3d 681, 685 (7th
Cir. 2008) (noting that when neither party specifically
asks the district court to engage in the analysis under
Rule 702, the district court is not required to do so and
does not err in admitting the testimony). Thus, the district
court did not err by not inquiring further into Agent Rehg’s
qualifications.
Regardless, Agent Rehg was undoubtedly qualified. We
have held that narcotics code words are an appropriate
subject for expert testimony, and that law enforcement
officers who have training and experience in drug-related
transactions and crimes are qualified to testify as an
8 Nos. 07-2505, 07-2506, 07-2507 and 07-3313
expert concerning the practices of people engaged in that
type of conduct. Goodwin, 496 F.3d at 641 n.2; United States
v. Hughes, 970 F.2d 227, 236 (7th Cir. 1992); see also United
States v. Mansoori, 304 F.3d 635, 654 (7th Cir. 2002). Agent
Rehg’s experience included eight years as a DEA agent
and nine years as a Deputy U.S. Marshal. He further
testified that he had participated in hundreds of drug-
related cases prior to being the lead case agent in this
case, that he had listened to thousands of calls involved
in this case, and that the use of the narcotics code language
was consistent with his understanding of the terms’
meanings. Accordingly, the district court did not abuse
its discretion in allowing Agent Rehg to testify as an
expert on narcotics code words.
So we turn to Ellis’s argument that the district court
erred in allowing Agent Rehg to testify in dual capacities.
Testimony in the dual roles of both a fact witness and an
expert witness can be confusing to a jury, but it is permissi-
ble provided that the district court takes precautions to
minimize potential prejudice. Goodwin, 496 F.3d at 641.
“The potential for prejudice in this circumstance can be
addressed by means of appropriate cautionary instruc-
tions and by examination of the witness that is structured
in such a way as to make clear when the witness is testify-
ing to facts and when he is offering his opinion as an
expert.” Goodwin, 496 F.3d at 641-42 (quoting Mansoori,
304 F.3d at 654).
At trial, the government played several recorded phone
conversations for the jury. After some of the calls, the
prosecutor asked Agent Rehg to give his opinion about the
Nos. 07-2505, 07-2506, 07-2507 and 07-3313 9
meaning of various terms used in the calls. Agent Rehg
also testified about facts he had obtained through the
investigation that were related to the subjects discussed in
the recorded calls. While this framework did little to
separate out Agent Rehg’s fact testimony from his expert
testimony, the district court did take other precautions to
minimize any potential prejudice. The district court
required the government to establish the proper founda-
tion for Agent Rehg’s knowledge of the coded drug
language prior to him testifying to those meanings. The
government also prefaced Agent Rehg’s expert testimony
by asking him the coded language’s meaning “based on
[his] expertise.” 2 Furthermore, the district court gave
the appropriate cautionary instruction regarding expert
testimony, instructing the jury that it could judge that
testimony the same way it judges fact witnesses’ testimony,
and could “[g]ive the testimony whatever weight you
think it deserves. . . .” The district court also allowed Ellis’s
attorney to extensively cross-examine Agent Rehg
about the coded drug terms used in the calls, his familiar-
ity with other drug terms, and the factual aspects of his
direct testimony. Ellis’s attorney critically questioned
Agent Rehg about his expert opinion on the coded lan-
guage, noting that according to him, “shoes,” “block,” and
“chicken” were just a few of many commonly used words
2
We note, however, that the government did not preface each
question that elicited Agent Rehg’s expert opinion in this
way. Had they done so, the framework of Agent Rehg’s exami-
nation would have undoubtedly made clear to the jury the
capacity of his testimony.
10 Nos. 07-2505, 07-2506, 07-2507 and 07-3313
that he claimed meant cocaine. This thorough cross-
examination highlighted the parts of Agent Rehg’s testi-
mony that were garnered from his expert opinion, which
further clarified the testimonial capacities for the jury. In
light of these safeguards, any risk that the jury could
have confused Agent Rehg’s direct observations with his
expert knowledge of the code words was adequately
alleviated. See United States v. Parra, 402 F.3d 752, 759-
60 (7th Cir. 2005).
Ellis also argues that the two-level enhancement was
improper because: (1) the statements by Pawnell lacked
sufficient indicia of reliability and should not have been
admitted; and (2) the government failed to show by a
preponderance of the evidence that Ellis possessed a
firearm during the conspiracy. The government asserts
that Ellis has waived these arguments, and we agree.
Waiver is the intentional relinquishment of a known
right, while forfeiture is the failure to timely assert a right.
United States v. Olano, 507 U.S. 725, 733 (1993); United States
v. Jaimes-Jaimes, 406 F.3d 845, 847 (7th Cir. 2005). Forfeiture
warrants review for plain error only, but waiver precludes
any appellate review. Jaimes-Jaimes, 406 F.3d at 847. The
paramount feature of waiver is a knowing and inten-
tional decision not to assert the right. Jaimes-Jaimes, 406
F.3d at 848. For strategic reasons, a criminal defendant
may elect to pursue one argument while foregoing an-
other. Id. In that situation, the defendant waives the
arguments he decided not to present. Id. (citing United
States v. Cooper, 243 F.3d 411, 416 (7th Cir. 2001)).
Nos. 07-2505, 07-2506, 07-2507 and 07-3313 11
At the district court, Ellis filed a five-page written
objection to the PSR, which included an objection to the
enhancement for possessing a firearm. Ellis chose to limit
his argument to whether the enhancement violated Blakely
v. Washington, because the possession was not proven at
trial beyond a reasonable doubt. He never challenged the
reliability of Pawnell’s proffer before now, nor did Ellis
ever elect to argue, until now, that the government failed
to establish his possession of a firearm during the con-
spiracy by a preponderance of the evidence standard. To
the contrary, Ellis implicitly asserted that the preponder-
ance of the evidence standard deprived him of his right to
a fair trial. See generally Blakely, 542 U.S. at 332-33. In any
event, we find no plain error in the district court’s determi-
nation that Pawnell’s proffer was reliable and that it
alone was sufficient to establish by a preponderance of
the evidence that Ellis possessed a firearm in furtherance
of the conspiracy. Accordingly, we affirm Ellis’s convic-
tion and sentence.
III. Josiah Compton
Compton was convicted of possession with intent to
distribute cocaine and crack cocaine, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(B), and (b)(1)(C), and being a
felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g). Compton’s PSR determined that he had an
offense level of forty and a criminal history category of VI,
resulting in an advisory Guidelines range of 360 months to
life imprisonment. The PSR counted uncharged drug
amounts in determining Compton’s relevant conduct to
12 Nos. 07-2505, 07-2506, 07-2507 and 07-3313
reach the offense level of forty. To support the inclusion of
the uncharged drug amounts as relevant conduct, the
Probation Department relied on statements from three
individuals and a confidential source, all of whom had
purchased drugs from Compton, as well as statements
from Compton’s own proffer to the government. The
criminal history calculation counted several prior convic-
tions that dated from 1989 to 1999, which totaled thirteen
criminal history points.
Compton objected to the calculations in the PSR, arguing
that the information regarding the uncharged drug
amounts was unreliable and that facts from his proffer
could not be used to calculate his relevant conduct. He
also asserted that the district court incorrectly included
prior convictions that resulted in three points being added
to his base offense level. The district court rejected these
arguments, and subsequently sentenced him to 360
months’ imprisonment.
On appeal, Compton makes four arguments: (1) that the
district court erred in considering the uncharged drug
quantity based on the various cooperators statements
because those drugs were not part of the same course of
conduct charged; (2) that the district court erred by using
Compton’s proffer against him at sentencing; (3) that the
district court miscalculated his criminal history score by
including some of his prior convictions; and (4) that he
is entitled to resentencing in light of Kimbrough v. United
States, ___ U.S. ___, 128 S. Ct. 558 (2007).
The government contends that Compton has waived
his first argument regarding the use of uncharged drug
Nos. 07-2505, 07-2506, 07-2507 and 07-3313 13
amounts in his sentencing calculation by failing to raise the
argument below. In the district court, Compton challenged
the reliability of the six sources of information as to his
relevant conduct; he did not allege that the events to
which those individuals implicated Compton were not
part of the same course of conduct as the charged crimes,
but the record does not reveal a knowing and intentional
decision to forego any “same course of conduct” argument.
See United States v. McClellan, 165 F.3d 535, 552-53 (7th Cir.
1999); United States v. Patel, 131 F.3d 1195, 2001 (7th Cir.
1997). Construing waiver principles liberally in favor of
Compton, we find Compton merely forfeited the argu-
ment by failing to timely assert it. Jaimes-Jaimes, 406 F.3d
at 848-49; United States v. Sumner, 265 F.3d 532, 539 (7th
Cir. 2001) (citing McClellan, 165 F.3d at 552-53). Accord-
ingly, we review for plain error. Jaimes-Jaimes, 406 F.3d
at 848-49.
We find no error in the district court’s inclusion of the
various statements or calculation of uncharged drug
quantities evidenced by the cooperators’ statements that
increased Compton’s relevant conduct determination. See
United States v. Artley, 489 F.3d 813, 822-23 (7th Cir. 2007).
Giving broad discretion to the district court’s explicit
determination that the statements were reliable, we
credit the district court’s factual determinations re-
garding Compton’s relevant conduct. See United States v.
Wilson, 502 F.3d 718, 721 (7th Cir. 2007). Although the
district court failed “to explicitly state and support its
finding that uncharged drug quantities are sufficiently
related to the offense of conviction[,] . . . [that] does not
mean it failed to make the necessary finding.” Id. at 723
14 Nos. 07-2505, 07-2506, 07-2507 and 07-3313
(citing United States v. Arroyo, 406 F.3d 881, 889 (7th Cir.
2005)). “Relevant conduct can be used to enhance a de-
fendant’s sentence if it is part of the same course of action
or common scheme or plan that gave rise to [his] convic-
tion” and is established by a preponderance of the evi-
dence. United States v. McGowan, 478 F.3d 800, 802 (7th
Cir. 2007) (citing United States v. Johnson, 342 F.3d 731, 733
(7th Cir. 2003)). We consider significant similarity, regular-
ity, and temporal proximity of the uncharged conduct
with the convicted offense, as well as common victims,
accomplices, purpose, or modus operandi. See McGowan, 478
F.3d at 802; United States v. Ortiz, 431 F.3d 1035, 1040 (7th
Cir. 2005); see also U.S.S.G. § 1B1.3(a)(2), app. n.9. Where
the defendant’s convicted offense was merely the latest
drug sale in an unbroken series of deals regularly made,
that is sufficient to find the defendant’s prior drug transac-
tions were part of the same course of conduct as the
offense of conviction. Wilson, 502 F.3d at 724.
In this case, Compton was steadily involved in dealing
crack and powder cocaine in the same area from 1998
until his arrest in 2004. The government’s sources con-
firmed this, documenting regular drug transactions
between the sources and Compton from 2000 until 2004,
totaling thirty-three ounces of crack cocaine. While the
record lacks substantial evidence of Compton’s particular
drug transactions from 1998 until March 2000, amounts
for this period were not included in the relevant
conduct calculation. But there was sufficient testimony
to establish that the course of illegal conduct began back
then for purposes of determining when the offense that
led to the conviction began. For example, one of the gov-
Nos. 07-2505, 07-2506, 07-2507 and 07-3313 15
ernment’s sources testified that Compton was one of the
largest crack cocaine dealers in the Newport, Illinois area
in 2000, so Compton probably established himself as such
through regular drug transactions prior to 2000. Another
source explained that he began buying cocaine from
Compton in late 1999. Compton’s PSR stated that he
began receiving cocaine from one Marvin Williams in
1998, a fact to which Compton did not object. Based on
this evidence, we find that Compton was engaged in
continuous drug dealing, selling large quantities of
powder and crack cocaine to regular customers at regular
intervals in the same vicinity from 1998 until his arrest
in 2004. Accordingly, we find no clear error in the district
court’s crediting the cooperators’ statements for
Compton’s relevant conduct calculation.
So we turn to Compton’s second argument on ap-
peal—that the district court improperly relied upon
information obtained from Compton’s proffer to
increase his base offense level. Compton complains that
the government violated the terms of the proffer agree-
ment by including 197 kilograms of cocaine in his
relevant conduct calculation recommended by the PSR.
Because the facts pertaining to the alleged breach are
undisputed, we review the question of whether the gov-
ernment breached the proffer agreement de novo. See
United States v. Schilling, 142 F.3d 388, 394 (7th Cir. 1998).
We also review the district court’s application of the
Sentencing Guidelines de novo since Compton preserved
the argument below. United States v. Samuels, 521 F.3d 804,
815 (7th Cir. 2008).
16 Nos. 07-2505, 07-2506, 07-2507 and 07-3313
A proffer agreement is a binding contract, enforced
according to its terms. See United States v. Cobblah, 118 F.3d
549, 551 (7th Cir. 1997). However, proffer agreements that
are a part of ongoing criminal proceedings are “ ‘unique
contracts and the ordinary contract principles are supple-
mented with a concern that the bargaining process not
violate the defendant’s rights to fundamental fairness
under the Due Process Clause.’ ” United States v. $87,118.00
in United States Currency, 95 F.3d 511, 516-17 (7th Cir. 1999)
(quoting United States v. Rourke, 74 F.3d 802, 805 (7th Cir.
1996)). We hold the government to “the literal terms” of the
agreement, as well as the “most meticulous standards of
both promise and performance” to insure the integrity
of the bargaining process involved in proffers. See
Schilling, 142 F.3d at 395 (internal quotations and cita-
tions omitted).
The fifth substantive paragraph of the proffer agreement
provided that the government would not use any state-
ments or other information provided by Compton
against him in its case in chief, but that the government
would “be free to provide any such information to any
United States District Court in the event that [Compton]
either pleads guilty or is found guilty later at trial [as is
required to comply with Rule 32 of the Federal Rules of
Criminal Procedure for sentencing decisions].” Yet the
sixth substantive paragraph states:
[N]o self-incriminating information given by
[Compton] will be used to enhance the Offense Level
against [Compton] except as provided in [Section 1B1.8
of the Sentencing Guidelines]. The government may,
Nos. 07-2505, 07-2506, 07-2507 and 07-3313 17
however, use any statements made or other informa-
tion provided by [Compton] to rebut evidence or
arguments at sentencing materially different from
any statements made or other information provided
by [Compton] during the “off-the record” proffer or
discussion.
The Probation Department, a division of the government
bound by the terms of the proffer agreement, see United
States v. Lezine, 166 F.3d 895, 904 (7th Cir. 1999) (noting
that probation officers are an extension of the govern-
ment and officers of the court), recommended in the PSR
that 197 kilograms of cocaine be used to increase his
offense level as relevant conduct. The 197 kilograms of
cocaine was evidenced solely by Compton’s proffer, and
the district court adopted the PSR’s recommendation.
The government asserts that it properly provided this
information to the district court under paragraph five of
the agreement. Indeed, the agreement allowed the gov-
ernment to “provide” the information to the court for
sentencing purposes, but it was prohibited from “using”
the information to enhance Compton’s offense level under
paragraph six. Under the proffer agreement, the govern-
ment could provide Compton’s proffer statements to
the district court, but it could not per se recommend
that the court increase Compton’s offense level based on
that information. To do so constituted a “use” prohibited
by paragraph six. By their very nature, paragraphs five
and six of the agreement are almost irreconcilable; short
of attaching the defendant’s proffer statements to mate-
rials provided to the court for sentencing purposes, any
other mention of information obtained from the proffer
18 Nos. 07-2505, 07-2506, 07-2507 and 07-3313
will likely violate the agreement. Be that as it may, under
the circumstances of this case, the government violated
the terms of the proffer agreement by submitting to the
district court protected statements made by Compton.
The government also claims it properly used Compton’s
proffer to rebut his assertion that the government’s
sources were unreliable for purposes of calculating other
relevant conduct drug quantities. This argument puts the
cart before the horse, however, since Compton’s objection
to the reliability of the government’s sources came after
the PSR containing the information from Compton’s
proffer.
Compton was sentenced to 360 months’ imprisonment.
This sentence was at the bottom of his Guidelines range
of 360 months to life imprisonment, calculated by includ-
ing the 197 kilograms of cocaine as relevant conduct. Had
the district court not considered the 197 kilograms of
cocaine as relevant conduct, the Guidelines range would
have been 324-405 months. Although the Guidelines are
advisory, a district court must accurately calculate and
consult the defendant’s Guidelines range. United States v.
Thomas, 520 F.3d 729, 736 (7th Cir. 2008). A sentencing
based on an incorrect Guidelines range constitutes plain
error and warrants a remand for resentencing, unless
we have reason to believe that the error in no way
affected the district court’s selection of a particular sen-
tence. United States v. Garrett, 528 F.3d 525, 527 (7th Cir.
2008); United States v. Wallace, 32 F.3d 1171, 1174 (7th Cir.
1994). The fact that Compton’s sentence of 360 months
is within his correct Guidelines range of 324-405 months
is of no consequence. See Wallace, 32 F.3d at 1174 (“Al-
Nos. 07-2505, 07-2506, 07-2507 and 07-3313 19
though the sentencing that the district court selected in
this case is within the correct as well as the incorrect
Guidelines range, we must remand unless we have
reason to believe that the error did not affect the district
court’s selection of a particular sentence.”). We have no
reason to believe that the district court would not have
selected an even lower sentence if given the opportunity
to do so, thus, we must remand. See Wallace, 32 F.3d at
1174-75. Accordingly, Compton is entitled to be resen-
tenced.
Despite Compton’s entitlement to resentencing, we
address his last argument to assist the district court upon
resentencing.3 Compton argues that the district court erred
in calculating his criminal history category by including
prior convictions dating from 1989 to 1999. We review
the district court’s fact-finding for clear error. United
States v. Robinson, 435 F.3d 699, 701 (7th Cir. 2006). The
government again argues that Compton has waived this
argument since, at the district court, he elected to only
challenge three points—two for committing the offenses
of conviction while under a criminal justice sentence
and one for a prior conviction from 1998. While we agree
3
Compton also filed a supplemental brief, arguing that he was
entitled to resentencing in light of Kimbrough v. United States, ___
U.S. ___, 128 S. Ct. 558, 564 (2007), and United States v. Taylor,
520 F.3d 746, 748 (7th Cir. 2008). We need not address this
argument since Compton is already entitled to be resentenced
due to the government’s breach of the proffer agreement and
we trust that the district court will adequately consider the
appropriate impact of Kimbrough and Taylor on Compton’s
sentence.
20 Nos. 07-2505, 07-2506, 07-2507 and 07-3313
that Compton did not previously argue that some of his
prior convictions are too old to count, we do not find the
arguments strategically intertwined in a way that
suggests knowing and intentional waiver. See Jaimes-
Jaimes, 406 F.3d at 848. Accordingly, we give Compton the
benefit of the doubt, and review the district court’s fact-
finding regarding when the offense of conviction began
for plain/clear error. Id. at 848-49 (“Waiver principles
should be construed liberally in favor of the defendant.”)
(citations omitted).
We need not dissect Compton’s criminal history, how-
ever, since his arguments operate under the mistaken
assumption that the offense of conviction began in 2004,
not in 1998, as the district court correctly found. Because
we have already determined that the offense of conviction
was properly determined to have begun in 1998 and
continued until Compton’s arrest in 2004, all prior convic-
tions challenged are proper under U.S.S.G. §§ 4A1.1(b)
(calculating criminal history points) and 4A1.2(e)(2)
(include prior sentences of imprisonment within ten
years of the commencement of the instant offense). Addi-
tionally, the district court properly relied on information
obtained from Compton’s proffer to determine that the
instant offense began in 1998; U.S.S.G. § 1B1.8(b)(2) pro-
vides that proffers are not off-limits when used for in-
formation “concerning the existence of prior convictions
and sentences in determining § 4A1.1 (Criminal History
Category) and § 4B1.1 (Career Offender).” We find no
error in the district court’s calculation of Compton’s
criminal history category.
Nos. 07-2505, 07-2506, 07-2507 and 07-3313 21
IV. Gerald Howliet
Howliet was convicted of possession with intent
to distribute cocaine base and heroin, in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(A), and (b)(1)(C), and being
a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g). Evidence against Howliet was obtained
during the execution of a search warrant at Howliet’s
residence in Cahokia, Illinois. A magistrate judge issued
the search warrant based on an affidavit signed by DEA
Agent Larry Fox, which included the following informa-
tion: Agent Fox had reason to suspect, based on informa-
tion provided by two reliable confidential sources, that
Howliet’s cousin, Charles, sold the informants crack
cocaine that he obtained from Howliet.4 At the direction
of law enforcement, both of the confidential sources
purchased an ounce of crack cocaine from Charles, during
which all conversations were recorded and Charles was
driving a vehicle known to be used by Howliet. After these
controlled purchases and again at the direction of law
enforcement, one of the confidential sources ordered an
eighth of a kilogram of crack from Charles, who told the
source that it would take some time for him to obtain the
drugs and that he would call the source when he was
ready to complete the sale. Law enforcement maintained
surveillance of Charles, who then went to Howliet’s
4
The affidavit explained that both of the sources had success-
fully completed multiple controlled purchases for the DEA
(which field tested positive for cocaine) and that information
provided by one of them had led to an arrest and a drug
and currency seizure.
22 Nos. 07-2505, 07-2506, 07-2507 and 07-3313
residence. Upon leaving Howliet’s house, Charles drove
to his apartment. The confidential source then called
Charles to check the status of his drug order, who told
the source he needed a few more minutes. Less than an
hour later, Charles met the confidential source at a
nearby restaurant, where they completed the crack
cocaine transaction. During the exchange, Charles told
the confidential source not to worry about a portion of the
crack being a different color, explaining that it had just
been prepared. Upon law enforcement’s observation of
the crack cocaine provided by Charles, the agents noted
that approximately one half ounce of the crack was a
different color and was packaged separately in a bag with
condensation inside it. In light of this information, Agent
Fox believed that Charles did not have the full amount
of crack ordered by the confidential source, so he went
to Howliet’s residence to obtain additional cocaine, and
then went to his apartment to “cook” the powder cocaine
into crack cocaine. The DEA field tested the substance
provided by Charles, which tested positive for cocaine.
Before the district court, Howliet argued that the evi-
dence obtained from the search should be suppressed
because the search warrant lacked probable cause. On
appeal, Howliet makes this same argument, and also
asserts that the good faith exception to the exclusionary
rule should not apply because Agent Fox could not have
reasonably believed that probable cause existed.
We review a district court’s findings of historical fact
for clear error and its legal conclusions de novo. United
States v. Garcia, 528 F.3d 481, 485 (7th Cir. 2008) (citing
Nos. 07-2505, 07-2506, 07-2507 and 07-3313 23
United States v. McIntire, 516 F.3d 576, 578 (7th Cir. 2008)).
On the issue of whether the facts add up to probable
cause, we give great deference to the judge who initially
issued the warrant, but we give no weight to the district
court judge’s decision. Id. We will defer to the determina-
tion of the warrant-issuing judge that probable cause
existed so long as “there is substantial evidence in the
record supporting the judge’s decision.” United States v.
Koerth, 312 F.3d 862, 865 (7th Cir. 2002).
“Probable cause is established when, based on the
totality of the circumstances, the affidavit sets forth
sufficient evidence to induce a reasonably prudent person
to believe that a search will uncover evidence of a crime.”
Garcia, 528 F.3d at 485-86 (citing Illinois v. Gates, 462 U.S.
213, 238 (1983); United States v. Jones, 208 F.3d 603, 608 (7th
Cir. 2000)). It requires only a probability, not absolute
certainty, that evidence of a crime may be found. United
States v. Sidwell, 440 F.3d 865, 869 (7th Cir. 2006). When
the affidavit includes information supplied by an infor-
mant, we consider: “(1) the extent to which the police
have corroborated the informant’s statements; (2) the
degree to which the informant has acquired knowledge
of the events through firsthand observation; (3) the
amount of detail provided; and (4) the interval between
the date of the events and police officer’s application for
the search warrant.” Garcia, 528 F.3d at 486 (citing Koerth,
312 F.3d at 866).
We agree that a reasonable judge could find that the
affidavit here set forth sufficient facts to establish
probable cause. The affidavit explained that Agent Fox
24 Nos. 07-2505, 07-2506, 07-2507 and 07-3313
had worked with both confidential informants before, and
had determined them to be reliable sources through
numerous controlled purchases as well as an arrest and
seizure of cocaine and drug money. It also stated that
the DEA had field tested suspected drugs from the infor-
mants’ controlled purchases and they tested positive
for the presence of cocaine. Both informants had direct
contact with Charles during which Charles sold them
crack cocaine, and the transactions were monitored and
recorded by law enforcement. The affidavit detailed the
DEA’s surveillance of the informants’ interactions with
Charles, which verified the information they obtained
from the informants, in particular, that Charles needed
time to obtain the cocaine requested by the informant, and
that during that time he went to Howliet’s house. The
informants had already told the agents that Charles got
his supply from Howliet, thus Charles’s procession to
Howliet’s house after the informant requested a large
quantity of cocaine corroborated that statement. Shortly
after leaving Howliet’s house, Charles met with the
informant with freshly cooked crack cocaine. The warrant
was issued on the same day as the events described in
the affidavit. Thus, based on the facts presented to the
warrant-issuing judge, there was substantial evidence
to suspect that Charles had obtained cocaine from
Howliet’s house. Accordingly, the warrant was sup-
ported by probable cause.
Because the warrant was supported by probable cause,
we need not address the good faith exception under
United States v. Leon, 468 U.S. 897 (1984). The district court
Nos. 07-2505, 07-2506, 07-2507 and 07-3313 25
did not err in admitting evidence seized from Howliet’s
residence, and his conviction is affirmed.
V. Conclusion
For the foregoing reasons, we find no error in the con-
victions and sentences of Farmer, Ellis, or Howliet and
therefore affirm all of their convictions and sentences. As
for Compton, we affirm his conviction but vacate his
sentence and remand for resentencing in light of the
improper use of his proffer statements in the PSR, resulting
in an incorrect Guidelines range. The district court is
advised not to consider the 197 kilograms of cocaine
discovered solely from Compton’s proffer statements as
relevant conduct; it may still consider various other
relevant conduct, as described in greater detail but not
accounted for in the PSR’s recommendation. We also
advise the district court to consider Kimbrough and its
progeny upon resentencing Compton.
9-9-08