United States v. Maurice Crowder ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3320
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M AURICE C ROWDER,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:06-cr-00102-2—Charles R. Norgle, Sr., Judge.
A RGUED S EPTEMBER 24, 2009—D ECIDED D ECEMBER 7, 2009
Before B AUER, K ANNE, and E VANS, Circuit Judges.
K ANNE, Circuit Judge. Police arrested Maurice Crowder
after finding cocaine and marijuana in a hidden compart-
ment of a car that Crowder and a co-defendant shipped
from Arizona to Illinois. Crowder was indicted for con-
spiracy and attempted possession, both in violation of
21 U.S.C. § 846. Following a bench trial, the district court
found Crowder guilty as charged and sentenced him to
240 months’ imprisonment on each count, to run concur-
2 No. 08-3320
rently. Crowder appeals his conviction and sentence,
alleging numerous missteps below. Because we find that
the district court committed no reversible error, we
affirm the conviction and sentence.
I. B ACKGROUND
Maurice Crowder traveled back and forth between
Chicago and Tucson, Arizona, with Charome Watkins 1 in
January 2006. The men transported a dog from Tucson
to Chicago on January 23. The men traveled back to
Tucson the next day, allegedly to pick up additional dogs.
Police stopped the men in the Dallas/Fort-Worth Airport
and conducted a consensual interview, but later allowed
them to leave after a drug-sniffing dog did not alert on
the $46,000 in cash that Crowder was carrying.
Three days later, title to a 1998 Ford Mustang was
transferred to Watkins’s mother, Vickie Watkins,2 who
lived in Harvey, Illinois, with her son. That same day, a
woman arranged to have the driver of a car carrier pick
up the Mustang and transport it from Tucson to Harvey.
The driver arrived at the designated meeting place,
followed shortly thereafter by two unidentified Hispanic
1
Watkins was indicted together with Crowder. He pled
guilty to conspiracy in exchange for a reduced sentence. Watkins
was murdered five days before Crowder was to go on trial
in August 2007.
2
In his supplemental motion to suppress, Crowder said that
he purchased the Mustang as a gift for Ms. Watkins.
No. 08-3320 3
men, one driving the Mustang and the other a pickup
truck. The driver checked the Mustang for damage prior
to loading it onto the carrier, filled out the bill of lading,
and gave the pink carbon-copy to the man who dropped
off the Mustang. The men left the area before the
driver loaded the Mustang, which the driver considered
unusual because it was his experience that most people
stayed to watch the driver load their vehicles onto the
carrier.
While en route to Harvey, the driver contacted the
Missouri Highway Patrol to report his suspicions about a
Grand Prix that he was transporting. He met the
highway patrol at a scale house, where he unloaded the
Grand Prix and gave the patrol permission to search it.
Using a K-9 unit, the patrol eventually discovered drugs
hidden in secret compartments in the Grand Prix. The
patrol then asked the driver if he was suspicious of any
other vehicle on his carrier. The driver identified the
Mustang based on his earlier observations. For example,
while inspecting and loading the Mustang, the driver
had noted a number of unusual things about the interior
of the Mustang: one of the seats did not work, it smelled
like spices, there were several air fresheners, and there
were no personal items in the vehicle. The body of the
Mustang was also missing the fender wells, trim items,
hood scoops, Mustang horse emblem, and rubber
molding around the lights. The driver also had opened the
trunk after the individual dropping off the Mustang
told him that there was a speaker box in the trunk. The
driver agreed to unload the Mustang from the top row of
the truck to facilitate the patrol’s search of the car.
4 No. 08-3320
The patrol made a number of observations from the
outside of the Mustang, including that the backseat
appeared to have been tampered with and there was
an interior screw sitting loose on the backseat. The patrol
then opened and searched the Mustang3 where they
discovered eighty pounds of marijuana and approxi-
mately two kilograms of cocaine hidden in a secret com-
partment behind the backseat.
The driver agreed to participate with law enforcement
officers in a controlled delivery of the Mustang. The
driver called the phone number of the intended recipient
of the Mustang and spoke with Watkins. The driver
told Watkins that he had been delayed but was still on
his way. The next day the driver again spoke with
Watkins to arrange a time and place for delivering the
Mustang. A police officer recorded the phone conversa-
tions between the driver and Watkins.
Police set up surveillance at the delivery site and
filmed the controlled delivery. The driver was also
wearing audio recording equipment. Crowder and
Watkins arrived in a maroon Ford Taurus, with Crowder
3
The government originally argued below that the patrol did
not search the vehicle until a drug-detecting dog alerted on
the Mustang; however, it was later revealed that the K-9 unit
had already left the area before the patrol searched the Mus-
tang. The district court reiterated in its order denying Crowder’s
motion for a new trial that the absence of the dog sniff would
not have altered the district court’s denial of Crowder’s motion
to suppress or the court’s finding that Crowder was guilty as
charged. (App. at 19.)
No. 08-3320 5
driving. Both men got out of the Taurus, leaving the
doors open and the engine running. Crowder handed
Watkins cash to pay the driver for the delivery. The
men told the driver that they did not have any form
of identification, but Crowder told the driver that they
had received the paperwork directly from the men that
shipped the car from Arizona. Crowder gave the
driver the pink bill of lading that the driver had given
the unidentified Hispanic men in Arizona. The driver
gave Watkins the white bill of lading after Watkins
signed for the Mustang, and Watkins then handed the
white bill of lading to Crowder. The men then left the
delivery site, with Watkins driving the Mustang and
Crowder the Taurus. Both men were arrested shortly
thereafter.
A grand jury charged Crowder with conspiracy (Count
I) and attempted possession with intent to distribute
(Count II), both in violation of 21 U.S.C. § 846. Crowder
moved to suppress evidence of the drugs found in the
Mustang, based in part on his argument that the
search violated the Fourth Amendment. The district
court denied Crowder’s motion to suppress.
The day before the trial was to begin, the government
orally communicated to Crowder’s counsel a large
amount of new information that had not been disclosed
previously to Crowder, including transcripts of the
phone calls between Watkins and the driver.4 The gov-
ernment indicated its preference to the district court
4
Crowder does not argue on appeal that these late disclosures
constituted a Brady violation. (Reply at 14.)
6 No. 08-3320
that Crowder’s counsel have time to review the evidence
once it had been reduced to writing. The court asked
Crowder’s counsel what the evidence was, apparently
in an effort to determine whether a continuance was
required or justified. Defense counsel indicated that he
was uncomfortable sharing with the judge the contents
of the new information because Crowder intended to
waive his right to a jury trial and defend himself in a
bench trial. The district court eventually denied
Crowder’s motion for continuance and started the trial
later that same day. Following a three-day bench trial,
the district court found that Crowder was guilty as
charged in the indictment.
After denying Crowder’s motion for a new trial, the
district court entered judgment against Crowder for
conspiracy and possession with intent to distribute (not
attempted possession, as charged in the indictment). At
sentencing, the government urged that Crowder’s
offense level include an enhancement for being a
career offender under section 4B1.1A of the Sentencing
Guidelines. The district court eventually sentenced
Crowder to 240 months’ imprisonment on each count, to
run concurrently, a term of imprisonment that falls
above the guideline range without any enhancements
(130 to 162 months) but below the range if all of the
proposed enhancements were included (360 months to
life).
Crowder filed a timely appeal, challenging both his
conviction and sentence. We find no error below and
therefore affirm.
No. 08-3320 7
II. A NALYSIS
On appeal, Crowder argues that (1) the district court
should have suppressed the evidence from the search of
the Mustang; (2) the district court should have granted
the motion for continuance; (3) his conviction on Count II
should be reversed because the indictment was construc-
tively amended; (4) he cannot be sentenced for both
conspiracy to possess and attempted possession arising
out of the same statute; (5) the evidence was insufficient
to support his conviction; and (6) his prior crimes
should not have triggered the career offender enhance-
ment.
A. Fourth Amendment
Crowder argues that the police search of the Mustang
violated his Fourth Amendment rights, and that the
district court therefore erred when it denied his motion
to suppress the contents of the search. We review the
district court’s factual findings for clear error, but review
legal conclusions de novo. United States v. Mosby, 541
F.3d 764, 767 (7th Cir. 2008).
The Fourth Amendment protects “against unrea-
sonable searches and seizures.” U.S. Const. amend. IV. A
government agent’s search is unreasonable when it in-
fringes on “an expectation of privacy that society is pre-
pared to consider reasonable.” United States v. Jacobsen, 466
U.S. 109, 113 (1984). To challenge a search the defendant
must show that he had both a subjective and objective
expectation of privacy in the item or location searched.
8 No. 08-3320
United States v. Haywood, 324 F.3d 514, 515-16 (7th Cir.
2003) (citing United States v. Walker, 237 F.3d 845, 849 (7th
Cir. 2001)). A court usually excludes evidence obtained
in violation of the Fourth Amendment. Mosby, 541 F.3d
at 767. But see Herring v. United States, 19 S. Ct. 695, 700
(2009) (“The fact that a Fourth Amendment violation
occurred—i.e., that a search or arrest was unreason-
able—does not necessarily mean that the exclusionary
rule applies. Indeed, exclusion has always been our last
resort, not our first impulse . . . .” (citation and quotation
omitted)).
The district court found that Crowder lacked
standing 5 to challenge the search of the Mustang because
5
Crowder makes much of the district court’s and the govern-
ment’s reference to his “standing” to challenge the search.
(Reply at 2.) Crowder is correct that the Supreme Court
rejected the use of traditional standing doctrines in assessing
the scope of Fourth Amendment rights. Rakas v. Illinois, 439 U.S.
128, 139-40 (1978). But it is clear from the district court’s order
and the government’s argument that their use of the word
“standing” was incidental to their proper discussion of
Crowder’s subjective and objective expectation of privacy in
the Mustang. Indeed, although our court has explicitly recog-
nized the Supreme Court’s move away from standing doctrines
in Rakas, see United States v. Brack, 188 F.3d 748, 755 n.2 (7th
Cir. 1999), we have continued to use the word “standing” in the
context of Fourth Amendment rights as shorthand to refer to
a defendant’s ability to challenge a search or seizure based on
a reasonable expectation of privacy in the property. See, e.g.,
United States v. Marrocco, 578 F.3d 627, 632 n.4 (7th Cir. 2009)
(continued...)
No. 08-3320 9
he did not have a reasonable expectation of privacy in
the Mustang. The court also found that the search
did not violate the Fourth Amendment. United States v.
Crowder, No. 06 CR 102-2, 2007 WL 1424606, at *4-5 (N.D.
Ill. May 10, 2007). On appeal, Crowder focuses his chal-
lenge on the district court’s finding that he “relinquished
control of the Mustang to a third party shipping company”
and thereby effectively waived his Fourth Amendment
protections. See id.We agree with the district court’s conclusion that
Crowder did not have a reasonable expectation of privacy
in the Mustang after he turned it over to the shipper.6
5
(...continued)
(“[The Defendant] may establish that he has standing to chal-
lenge the search and detention of the briefcase, provided he
can show that he held a legitimate expectation of privacy in
the briefcase.”); United States v. Ellis, 499 F.3d 686, 689 (7th Cir.
2007) (“[The defendant] had a legitimate expectation of privacy
in his home and therefore he has standing to challenge
the search of the home.”).
6
That the drugs were hidden in a secret compartment in the
car clearly evinces Crowder’s subjective desire that the drugs
not be discovered. But Crowder must also show that his
expectation of privacy was objectively reasonable—the simple
act of hiding something will not necessarily trigger Fourth
Amendment protections. See, e.g., United States v. Young, 350
F.3d 1302, 1307-08 (11th Cir. 2003) (“As [the defendant]
and his cohorts sealed the money in closed containers they
undoubtedly were trying to hide the contents from the
(continued...)
10 No. 08-3320
The doors were left unlocked, the driver of the car
carrier was given the keys, and Crowder knew that the
driver would enter the Mustang and drive it. We con-
clude that no one could have a reasonable expectation
of privacy in the contents of a vehicle under those circum-
stances. Although there is no evidence that Crowder
directly authorized the driver to search the vehicle, in
light of the circumstances described above it is clear
that the driver was “authorized to act in direct contra-
vention to” Crowder’s privacy interest. See United States
v. Young, 350 F.3d 1302, 1308 (11th Cir. 2003) (holding
that the defendant did not have a reasonable expectation
of privacy in a package sent via Federal Express when
the defendant signed an air bill that gave Federal
Express the authority to search the package).
Crowder argues that United States v. Villarreal, 963 F.2d
770 (5th Cir. 1992), compels a different outcome. In
Villarreal, the defendants shipped drugs in sealed 55-
gallon containers. The shipper notified customs officials
after becoming suspicious of the contents of the drums.
Without first obtaining a warrant, customs agents
opened the drums and discovered the drugs. The court
found that the defendants had a reasonable expectation
of privacy in the sealed drums and that the agents’
6
(...continued)
world. They certainly had a subjective expectation (or hope)
of privacy. Second, we question whether this subjective ex-
pectation is one that society is prepared to recognize as rea-
sonable. We think not.” (internal quotation marks omitted)).
No. 08-3320 11
search of the drums violated the defendants’ Fourth
Amendment rights. Id. at 774-75.
Crowder’s reliance on Villarreal is misplaced. The court
in Villarreal consistently referenced a reasonable expecta-
tion of privacy in “closed containers.” See, e.g., id. at 773-74(“Individuals do not surrender their expectations of
privacy in closed containers when they send them by
mail or common carrier.” (citing Jacobsen, 466 U.S. at 114(recognizing a reasonable expectation of privacy in
“[l]etters and other sealed packages”))); id. at 774 (“The
drum opened by the customs agents in this case was a
closed container sent by common carrier in which the
sender and addressee had a reasonable expectation of
privacy.”). The Mustang at issue in this case can hardly
be considered a “closed container” analogous to the
sealed drums in Villarreal. The doors to the Mustang
were unlocked, the driver had the keys, and Crowder
knew that the driver would be opening the doors and
driving the car. The reasoning in Villarreal is therefore
inapposite to Crowder’s case.
Because Crowder lacked a reasonable expectation of
privacy in the Mustang, he does not have standing to
challenge the search of the car and subsequent seizure of
the drugs that were hidden inside. Consequently,
Crowder’s appeal based on the Fourth Amendment
must fail.
We also agree with the district court that, even if
Crowder had standing to challenge the search, the
search complied with the requirements of the Fourth
Amendment. The district court found that the driver of
12 No. 08-3320
the car carrier consented to the police search of the Mus-
tang. “[P]olice may reasonably search without a war-
rant when a person with authority voluntarily consents
to the search, though a lack of apparent authority
would invalidate the search.” Mosby, 541 F.3d at 767 (citing
United States v. Groves, 530 F.3d 506, 509 (7th Cir. 2008)); see
also United States v. Grap, 403 F.3d 439, 443 (7th Cir. 2005)
(citing Illinois v. Rodriguez, 497 U.S. 177, 181 (1990); United
States v. Basinski, 226 F.3d 829, 833 (7th Cir. 2000)). Here,
the record supports the district court’s finding that the
driver consented to the search. After being asked if there
were any other suspicious vehicles on the truck, the
driver communicated his well-founded suspicion of the
Mustang. The driver then removed the Mustang from
the car carrier to facilitate the police’s search of the car.
The district court’s finding that the driver consented to
the search was not clearly erroneous.
The driver’s consent, however, is only relevant if he
had apparent authority7 to waive the protections afforded
by the Fourth Amendment. See Mosby, 541 F.3d at 767. A
third party has apparent authority when it “would
appear to a reasonable person, given the information that
law enforcement possessed,” that the individual had
7
Crowder argues that the driver himself did not have
authority to search the vehicle, much less to allow police to
search the vehicle. Because the driver needed only apparent
authority to effectively consent to the police search of the
Mustang, see Mosby, 541 F.3d at 767; Grap, 403 F.3d at 443, we
may assume without deciding that the driver did not have
actual authority.
No. 08-3320 13
“common authority over the property . . . .” United States v.
James, 571 F.3d 707, 714 (7th Cir. 2009) (citing Basinski, 226
F.3d at 834). The district court found that “Crowder
relinquished complete control of the vehicle which con-
tained the controlled substances to the driver of the
trailer, as per the terms of the lading contract,” and that
“[t]he driver had complete control and full access to the
Mustang when it was shipped to Illinois.” (App. at 9.)
The district court’s implicit finding that the driver had
authority to consent to the search of the Mustang is not
clearly erroneous. As discussed previously, the Mustang
was left unlocked, the driver of the car carrier had the key,
and the driver was required to drive the car to unload it
from the carrier. A reasonable person would conclude,
based on the amount of control over the Mustang that
the driver of the carrier exercised, that the driver had
authority to consent to the police search of the car. Ac-
cordingly, even if Crowder had standing to challenge
the search, his Fourth Amendment challenge to the
search would fail.
B. Motion for Continuance
Crowder also argues that the district court erred by
denying his motion for a continuance after the govern-
ment disclosed voluminous amounts of new evidence
shortly before trial. We review the district court’s denial
of a continuance for abuse of discretion and a showing of
actual prejudice. United States v. Miller, 327 F.3d 598, 601
(7th Cir. 2003). A court should consider several factors
14 No. 08-3320
when ruling upon a motion for continuance, including,
but not limited to:
(1) the amount of time available for preparation;
(2) the likelihood of prejudice from denial of the
continuance; (3) the defendant’s role in shortening
the effective preparation time; (4) the degree of
complexity of the case; (5) the availability of dis-
covery from the prosecution; (6) the likelihood a
continuance would have satisfied the movant’s
needs; and (7) the inconvenience and burden to
the district court and its pending case load.
Id. The district court need not make “a rigid recitation
and analysis of each point before a continuance may be
denied,” and the court may place varying degrees of
importance on each factor, depending on the circum-
stances of the case. United States v. Williams, 576 F.3d
385, 389 (7th Cir. 2009). The party requesting the con-
tinuance should identify the specific risk of prejudice,
because a court may properly deny a motion to continue
that is based wholly on “vague and conclusory” state-
ments. See United States v. Robbins, 197 F.3d 829, 846 (7th
Cir. 1999).
Crowder argues that the district court denied his
motion for a continuance solely to preclude him from
filing additional motions that would further delay the
proceedings. But even a cursory review of the record
reveals that although the district court did consider the
prospect of additional motions, it also considered the
relevant Miller factors and ultimately decided to deny the
motion for a continuance based largely on Crowder’s
counsel’s unwillingness to state with any amount of
No. 08-3320 15
specificity the prejudice that might result to his client
absent a continuance. (App. at 55-56.) Given Crowder’s
counsel’s cryptic discussion of the prejudice that would
befall his client absent a continuance, the district court
would have had a difficult time assessing both the likeli-
hood of prejudice and the likelihood that a continuance
would cure that prejudice. The district court did explicitly
consider the complexity of the case (App. at 58) and the
inconvenience to the court (App. at 58, 59), and deter-
mined that those factors weighed against granting the
continuance.
To be sure, the district court could have determined that
a continuance was prudent in light of the timing of the
disclosures, the lack of time available for Crowder to
consider the new materials, and the likelihood that a
continuance would have alleviated Crowder’s concern
about inadequate time to prepare. But because we
review the district court’s decision for an abuse of dis-
cretion, we cannot say that the district court erred in
denying Crowder’s motion for a continuance.
Crowder’s appeal on this issue also fails because no
actual prejudice resulted from the district court denying
the continuance. See Miller, 327 F.3d at 601. The govern-
ment did not introduce into evidence substantial
portions of the information that was disclosed so close
to trial, including evidence of Crowder’s post-arrest
inculpatory statements and conduct. The only specific
prejudice that Crowder has identified is insufficient
time to prepare his cross-examination of the driver re-
garding the recorded telephone calls between the driver
and Watkins. More generally, Crowder argues that
16 No. 08-3320
more time to review the documents “may have allowed
defense counsel to interview and consult additional
witnesses . . . .” (Appellant’s Brief at 30.) We have been
reluctant to assign error to the denial of a continuance
where the defendant failed to specify what new defense
or additional questions he could have raised had the
continuance been granted. See United States v. Vincent,
416 F.3d 593, 599 (7th Cir. 2005) (“Despite ample time
since trial, however, [the defendant] has neither pointed
to exculpatory evidence he would have found in the
discovery nor proposed additional questions he would
have asked the government’s witnesses.”); Bell v.
Duckworth, 861 F.2d 169, 170 (7th Cir. 1988) (“[D]efense
counsel had and exercised the opportunity to
cross-examine [the witness] fully; and to this day there
is no suggestion of what defense against his testimony
[the defendant’s] counsel might have developed if given
a continuance.”). Although Crowder is not required to
produce new evidence to show prejudice, Williams, 576
F.3d at 391, he cannot rely on vague and conclusory
statements about his abstract need for more time to
review the evidence. Because he cannot show that he
suffered actual prejudice from the district court’s denial
of a continuance, Crowder’s appeal on this issue is denied.
C. Constructive Amendment
Crowder was indicted for conspiracy and attempted
possession. (App. at 29-30.) But when the district court
entered judgment against Crowder, it listed the second
count of conviction as possession with the intent to dis-
No. 08-3320 17
tribute, rather than attempted possession. (Id. at 24-28.)
Although neither party moved to correct the judgment
or commitment order below, Crowder now argues that
the error constitutes a constructive amendment of the
indictment and therefore warrants reversal of the con-
viction. Because Crowder forfeited this argument below,
we review for plain error. United States v. LeShore, 543
F.3d 935, 939 (7th Cir. 2008). To show plain
error, the challenger must show that “(1) an error has
occurred, (2) it was ‘plain,’ (3) it affected a substantial
right of the defendant, and (4) it seriously affected the
fairness, integrity, or public reputation of the judicial
proceedings.” United States v. Gibson, 356 F.3d 761, 765-66
(7th Cir. 2004) (internal quotation marks omitted).
“A constructive amendment to an indictment occurs
when either the government (usually during its presenta-
tion of evidence and/or its argument), the court (usually
through its instructions to the jury), or both, broadens
the possible bases for conviction beyond those presented
by the grand jury.” United States v. Cusimano, 148 F.3d
824, 829 (7th Cir. 1998) (internal quotation marks omit-
ted). Because a constructive amendment violates the
Fifth Amendment, see United States v. Baker, 227 F.3d
955, 960 (7th Cir. 2000), a conviction under an amended
indictment should almost always be reversed. See
Cusimano, 148 F.3d at 828 n.3.
The government argues that the appearance of posses-
sion with intent in the judgement is simply a clerical error
that does not run afoul of the Fifth Amendment. As the
government concedes (Appellee’s Resp. at 46), the judg-
18 No. 08-3320
ment contains an error—it erroneously lists possession
with intent as Count II, rather than attempted possession.
However, we agree that it was not plain error because
it did not affect a substantial right of the defendant and
it does not negatively affect the integrity of the pro-
ceedings below. Additionally, a correction pursuant to
Rule 36 of the Federal Rules of Criminal Procedure can
adequately resolve the error in the judgment.
Crowder has highlighted a few occasions, in the course
of the entire trial and sentencing, when the govern-
ment referred to actual possession rather than attempted
possession. In this regard, we find the government’s
actions readily distinguishable from the conduct found to
constitute a constructive amendment in United States v.
Combs, 369 F.3d 925, 935 (6th Cir. 2004), which Crowder
cited for support. The court and parties in Combs con-
tinuously mixed and matched the elements from two
different crimes in the indictment and jury instructions
and throughout the proceedings, leading to what the
court called a “hopelessly jumbled mess” that warranted
reversal. Id. at 933-34 (internal quotation marks omitted).
Our review of the record in this case reveals that both
the parties involved in the trial and the district court
understood that Crowder was indicted for attempted
possession, and there is nothing about the proof pro-
vided at trial or the comments made by the government
that warrants reversal of the conviction on Count II.
Accordingly, Crowder’s appeal on this issue is denied.
No. 08-3320 19
D. Conspiracy and Attempt
Crowder argues that the district court erred by sen-
tencing him for both conspiracy and attempt because
doing so punishes him twice for the same criminal under-
taking. Because Crowder failed to raise this argument
with the district court, we review the district court’s
imposition of the sentence for plain error. LeShore, 543
F.3d at 939. Our review of the district court’s legal con-
clusions is de novo. United States v. Henton, 374 F.3d 467,
469 (7th Cir. 2004).
Both the conspiracy charge and the attempted posses-
sion charge arise under 21 U.S.C. § 846, which provides:
“Any person who attempts or conspires to commit any
offense defined in this subchapter shall be subject to the
same penalties as those prescribed for the offense, the
commission of which was the object of the attempt or
conspiracy.” Crowder does not dispute that a defendant
may be charged with and convicted for both conspiracy
and attempt under § 846. United States v. Carrera, 250
F. App’x 731, 733 (7th Cir. 2007) (“[I]t has long been
settled that a prosecution for both conspiracy and
attempt does not violate the Double Jeopardy Clause
because each crime requires proof of a fact that the
other does not.”). However, we have not had occasion to
consider whether imposing separate sentences for con-
spiracy and attempt improperly punishes a defendant
twice for the same criminal conduct.
Crowder urges us to follow the Ninth Circuit and
hold that a defendant cannot be sentenced for both con-
spiracy and attempt under § 846 if the charges arise out
20 No. 08-3320
of a single criminal act. In United States v. Touw, the
Ninth Circuit held that, although a defendant could be
charged and convicted of both conspiracy and attempt,
the court could only sentence him on one count if the
underlying criminal activity constituted a “single course
of action.” 769 F.2d 571, 574 (9th Cir. 1985); see also
United States v. Palafox, 764 F.2d 558, 560 (9th Cir. 1985).
But the three circuits to consider this issue after Touw
have unanimously rejected the Ninth Circuit’s “single
course of action” inquiry, choosing instead to apply the
Supreme Court’s Blockburger test at the sentencing stage
to determine whether separate sentences are appro-
priate. See United States v. Boykins, 966 F.2d 1240, 1245
(8th Cir. 1992); United States v. Barrett, 933 F.2d 355, 360-61
(6th Cir. 1991); United States v. Savaiano, 843 F.2d 1280, 1293
(10th Cir. 1988). Under Blockburger—which answered the
question of whether a single act could constitute
multiple crimes under different statutes—a court must
determine “whether each provision requires proof of a
fact which the other does not.” Blockburger v. United
States, 284 U.S. 299, 304 (1932). Conspiracy and attempt
are clearly separate offenses under this inquiry: con-
spiracy requires an agreement with another person,
whereas attempt may be completed alone. See United
States v. Corson, 579 F.3d 804, 810 (7th Cir. 2009) (noting
that conspiracy requires an agreement); United States v.
Gladish, 536 F.3d 646, 648 (7th Cir. 2008) (noting that
attempt requires only intent to complete the crime and
a substantial step toward completion).
We agree with the Sixth, Eighth, and Tenth Circuits
and now hold that the Blockburger test should be applied
No. 08-3320 21
at the sentencing phase to determine whether separate
sentences are appropriate for the crimes charged and
convicted, even where those crimes arise out of a single
criminal act. The Blockburger test is easily administered
and does not lend itself to a fact-specific inquiry that
inevitably will lead to unnecessary appeals and leave
parties and courts “without hope of much guidance.”
Savaiano, 843 F.2d at 1293. Furthermore, district courts
retain their discretion at sentencing to address situations
where sentencing on both counts may effect an excessive
or otherwise inappropriate sentence. Because we find
that a defendant may be sentenced for both conspiracy
and attempt, Crowder’s appeal on this issue is denied.
We find Crowder’s remaining claims without merit
and therefore decline to discuss them.
III. C ONCLUSION
Maurice Crowder’s conviction and sentence are AFFIRMED.
12-7-09