United States v. Eric Cheek ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2472
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ERIC MICHAEL CHEEK,
Defendant-Appellant.
Appeal from the United States District Court for the
Central District of Illinois.
No. 11-CR-10040 — James E. Shadid, Chief Judge.
ARGUED OCTOBER 31, 2013 — DECIDED JANUARY 22, 2014
Before BAUER, MANION, and ROVNER, Circuit Judges.
MANION, Circuit Judge. Eric Cheek distributed illegal drugs
for most of his adult life. Prior to this case, he was convicted of
twelve offenses, including nine felony drug offenses. Following
an extensive investigation, law enforcement officers arrested
Cheek in 2011 for drug distribution activities. A jury convicted
Cheek of four felonies, and the district court sentenced Cheek
to 576 months’ imprisonment. Cheek appeals both his convic-
tions and sentence. For the reasons discussed below, we affirm.
2 No. 12-2472
I. Background
From 2002–2003, Eric Cheek regularly sold marijuana and
crack cocaine to a drug dealer, Corey Eason, and Eason’s
girlfriend, Tabitha Harris. While Cheek was in prison in 2004,
one of his associates, Antonio Seymon, supplied Eason and
Harris with drugs. After he was released, Cheek again sup-
plied Eason and Harris with marijuana and crack cocaine. He
also supplied two other drug dealers, Langston Pates and
Andra Pace, with marijuana. He was subsequently incarcer-
ated again in 2008, and before his release in 2010, Cheek
informed Eason, Brandon Williams (who had been in the same
prison as Cheek in 2008), and Seymon that he would continue
selling drugs upon his release. In August 2010, law enforce-
ment persuaded Eason to cooperate in the investigation of
Cheek. Eason performed controlled buys of illegal drugs from
Cheek and secretly recorded his interactions with Cheek. With
court authorization, law enforcement also intercepted more
than 20,000 phone conversations and text conversations from
telephones used by Cheek and his associates. The investigation
uncovered continued drug operations until Seymon was
arrested on March 23, 2011. Cheek subsequently was arrested
on April 5, 2011.
A grand jury indicted Cheek and three co-defendants,
Tabitha Harris, Brandon Williams, and Antonio Seymon, for
various drug offenses. Cheek was charged with conspiring to
possess and distribute more than 280 grams of crack cocaine
and more than 100 kilograms of marijuana from 2001 to 2011;
intending to distribute more than 28 grams of crack cocaine on
August 9, 2010; intending to distribute marijuana on March 23,
2011; and using a telephone on February 11 and 23, 2011, to
No. 12-2472 3
facilitate the drug conspiracy. All three co-defendants pleaded
guilty. Cheek did not.
Prior to Cheek’s trial, the government filed an information
pursuant to 21 U.S.C. § 851 expressing its intent to seek an
enhanced sentence for Cheek based on seven prior felony drug
convictions. In a separate pretrial filing, the government
identified several potential expert witnesses. Most of these
experts were forensic chemists who were not called at trial
because their opinions were presented at trial by stipulation.
However, one of the proposed experts (who did not testify at
trial) was a Drug Enforcement Agency supervisor who was
prepared to testify generally about the use of code words by
drug dealers.
A few weeks before trial, Cheek sent a hand-written letter
to Harris’s teenage daughter in response to a letter he had
received from the daughter. Cheek’s letter stated in pertinent
part:
I remember when I met your little butt too. Yes I am
your uncle and you would probably be out there if
I wasn’t hard on you at times. I only did it out of
love for you and fear of what you could turn into
without guidance. You were the one Eric & Mikey
[Cheek’s sons] asked about 1st back in the day. … It’s
been so long since the days I tried to teach you about
a dollar by letting you watch the boys for $10–$15.
Now you’ve got your own little one. And a pretty
one at that. You know she would love me right? I
am gonna fight to the end to be able to raise my kids
and see yall again soon. Free [meaning Tyrell
4 No. 12-2472
Binion] got 54 months, so he will be out soon. My
situation ain’t or wasn’t bad shall I say. I won’t lie
Isa, they didn’t have shit on none of us. To prove it
why would they need your Mom to lie on me if they
had something? But the worse part is her own
lawyer tricked her because she could’ve beat the
case. She couldn’t get more than 5 if she would’ve
just plead guilty without lying on me. Now my life
and the lives of my kids lay in the balance of her
story she let them make her say. The most she can
get is 5 and me LIFE if she doesn’t tell the truth. Isa
that means I will NEVER see my kids or family
again. Nor see yall or any of the people I know and
love. Who is gonna teach Er[i]c & Mikey to fight and
be men? Who is gonna keep boys away from Emmy
[Cheek’s daughter] and not let her be like her mom?
LIFE means forever!
So as you can see why I am saying this but, yes I
love you … & your mom. But no I will never respect
her decision. Still I am looking at LIFE and not
because of anybody but her, the person I thought
would never lie on me or hurt me. Even if she told
the truth she wouldn’t be looking at shit but maybe
6 more months but at least I wouldn’t be in jail for
the Rest of my life. So I am praying that she don’t let
them keep scaring her. They are gonna use plenty of
scare tactics. But it’s up to us to man up or woman
up.
…
No. 12-2472 5
If God is willing you know who won’t tell that lie
and I will be there to see yall in the near future. My
lawyer [is] saying that is the only thing they have
against me is her.
At trial, the government called law enforcement officers
and cooperating witnesses, including Eason, Harris, Pates,
Pace, and Victoria Williams (who lived with Eason during the
conspiracy). The government also offered selections from the
intercepted telephone communications and interactions
recorded by Eason. The government provided the jury with
transcripts of these recordings that contained (within square
brackets) interpretations of certain words and phrases from the
recordings. The intercepted communications, recordings, and
transcripts were admitted into evidence by stipulation. Cheek
stipulated that the communications, recordings, and transcripts
were accurate, but refused to stipulate to the accuracy of the
interpretations within the brackets. Before the recordings were
played, the district court instructed the jury that the recordings
were the actual evidence and that the transcripts were not
evidence1. The government elicited testimony from FBI Special
Agent Greg Catey, the lead case agent, who offered his
opinions regarding the meaning of the words and phrases
immediately preceding the bracketed information contained
within the transcripts. Agent Catey testified that he had
extensive experience in drug enforcement and had participated
in numerous investigations during his law enforcement career.
1
This instruction is difficult to reconcile with the fact that the intercepted
communications, recordings, and transcripts were admitted into evidence
by stipulation.
6 No. 12-2472
However, he also testified that he knew the meaning of the
words in the transcripts based on his specific involvement in
the investigation of Cheek and his co-conspirators. Police
Detective James Ferguson similarly offered testimony about
some of the code words and phrases used by Cheek and his co-
conspirators, and stated that his knowledge was based on his
participation in this investigation.
In his defense, Cheek argued that he only sold marijuana
and did not conspire with anyone. The jury convicted Cheek
on all counts. By special verdict, the jury found that the
conspiracy involved at least 28 grams but less than 280 grams
of crack cocaine and 100 kilograms or more of marijuana.
Cheek’s pre-sentence report (“PSR”) found that Cheek was
responsible for the drug-quantity-equivalent of between 3,000
and 10,000 kilograms of marijuana, which placed his base
offense level at 34. However, the PSR recommended a 2-level
upward adjustment under U.S.S.G. § 3B1.4 because Cheek
used a minor in commission of the conspiracy; a 4-level
upward adjustment under U.S.S.G. § 3B1.1(a) because Cheek
was the leader of a drug-trafficking organization; and a 2-level
upward adjustment under U.S.S.G. § 3C1.1 for obstruction of
justice because of the letter he sent to Harris’s daughter. The
PSR recommended a criminal history category of IV due to
nine criminal history points. (The PSR found that Cheek had
twelve prior convictions, including nine felony drug convic-
tions.) Ultimately, the PSR calculated Cheek’s total offense
level at 42. Given Cheek’s criminal history category of IV, the
PSR calculated Cheek’s Guidelines range to be 360 months to
life. Cheek objected to the obstruction of justice enhancement.
But even without that enhancement, Cheek’s Guidelines range
No. 12-2472 7
would have been 360 months to life. Cheek did not otherwise
object to the PSR’s Guidelines calculations or findings regard-
ing his prior convictions.
Counts I and II carried the greatest statutory maximum
penalties: 480 months. The statutory maximum penalty for
count III was 120 months. The statutory maximum penalties
for counts IV and V were 48 months. However, 21 U.S.C.
§ 841(b)(1)(B)’s career criminal provision authorized the
district court to impose a sentence of up to life on either count
I or II. In order to do so, the district court must “before
pronouncement of sentence inquire of the person with respect
to whom the information was filed whether he affirms or
denies that he has been previously convicted as alleged in the
information, and shall inform him that any challenge to a prior
conviction which is not made before sentence is imposed may
not thereafter be raised to attack the sentence.” 21 U.S.C. §
851(b). At sentencing, the district court did not comply with §
851(b).
The government requested a prison sentence of “not less
than 40 years,” and argued that Cheek was “a bane to society”
whose operations covered significant portions of Illinois and
included enormous drug quantities. The government empha-
sized that it was unusual that Cheek had managed to remain
out of custody after racking up so many prior felony drug
convictions. The government characterized Cheek as a dishon-
est and manipulative person who was willing to use a minor
to further his conspiracy and used profane language in her
presence when she “couldn’t get his money laundering down
right.” In closing, the government reiterated its request “for a
sentence within the guideline range.”
8 No. 12-2472
In response, Cheek’s attorney emphasized that violence
was never part of Cheek’s admittedly extensive drug-dealing
career. Cheek’s attorney also observed that, if the district court
imposed a 480-month sentence, Cheek would be “77 years old
if he was ever able to get out of the penitentiary.” During his
allocution, Cheek admitted that he was not “the best person in
the world,” but repeatedly asserted that he was “not the worst
person in the world either.” Cheek briefly detailed a past
incident in which he had assisted the police by informing them
that accusations against Detective Ferguson (who happened to
be a witness at Cheek’s trial), involving misconduct allegedly
occurring in Cheek’s presence, were false. Cheek also told the
district court that his mother had died when he was 16 years
old, and that he had four children whom he loved and wanted
to be there for.
After reciting the factors from 18 U.S.C. § 3553(a), the
district court told Cheek, “I’m not saying you’re a bad person.”
The district court commented that Cheek was clearly an
intelligent person who spoke well and made a “nice appear-
ance.” But the district court noted that, despite Cheek’s
potential, he had chosen from a young age to engage in
criminal drug activity. The district court observed that Cheek
had opportunities to turn aside, but time and again “chose to
continue in the drug world, and the drug trafficking world,”
which leads “only to violence and death on city streets of
young people or a sentence to prison.” The district court
concluded that based on Cheek’s decision to play by his own
rules and significant history of criminal activity, a significant
prison sentence was appropriate. Therefore, the district court
imposed prison sentences of 576 months on counts I and II. The
No. 12-2472 9
district court also imposed prison sentences of 120 months on
count III and 48 months on counts IV and V. The court directed
that all sentences would run concurrently. Cheek appeals both
his convictions and sentences.2
II. Analysis
On appeal, Cheek argues that his convictions should be
vacated because Agent Catey’s testimony included expert
testimony that should not have been admitted, and because the
jury should not have been provided (either at trial or in
deliberations) with copies of the transcripts containing Agent
Catey’s interpretations (in square brackets) of various words
and phrases from the recordings played at trial. Cheek also
argues that his sentence should be vacated because the district
court failed to comply with the procedure provided in § 851(b).
Additionally, Cheek contends that the district court violated
his rights under the Fifth and Sixth Amendments to the
Constitution as interpreted by the Supreme Court in Apprendi
v. New Jersey, 530 U.S. 466 (2000), when the district court
invoked § 841(b)(1)(B), which enhanced Cheek’s potential
sentence beyond the 480-month statutory maximum penalties
for counts I and II, because the jury did not find beyond a
reasonable doubt that Cheek had been convicted of the prior
felonies supporting application of § 841(b)(1)(B). Cheek also
argues that his sentence is procedurally unreasonable because
the district court erred in imposing the obstruction of justice
enhancement and failed to consider meaningfully the argu-
2
Because Cheek’s sentences run concurrently, we refer to them as his 576-
month sentence.
10 No. 12-2472
ments Cheek offered in mitigation of his sentence under
§ 3553(a). Finally, Cheek contends that his 576-month sentence
is a de facto life sentence that is substantively unreasonable.
A. Agent Catey’s Testimony and the Opinions Contained
in the Transcripts Provided to the Jury
Cheek’s challenges to his convictions arise from portions of
Agent Catey’s testimony at trial and from the use of transcripts
(both during trial and deliberations) containing Agent Catey’s
interpretations (in square brackets) of various words and
phrases within the transcripts. Because he did not object,
Cheek concedes that our review is for plain error. “Applying
this standard, we reverse only when we find: ‘(1) an error or
defect (2) that is clear or obvious (3) affecting the defendant’s
substantial rights (4) and seriously impugning the fairness,
integrity, or public reputation of judicial proceedings.’” United
States v. Johnson, 680 F.3d 966, 973 (7th Cir. 2012) (quoting
United States v. Anderson, 604 F.3d 997, 1002 (7th Cir. 2010)).
Agent Catey’s Testimony
Cheek contends that Agent Catey offered expert testimony
when testifying as a lay witness. Specifically, Cheek argues
that Agent Catey testified as an expert about the meaning of
drug code words and phrases used by the conspirators, the
price for a kilo of cocaine, the main ingredient in crack cocaine,
how a wiretap is physically conducted, and the meaning of
such terms as “wire room, minimization, sessions, magneto
optical disk, pen register trap and trace, spin off wiretap,
special federal officer, case agent, controlled buy, front and
controlled payment.” Cheek argues that allowing Agent Catey
to offer expert testimony under the guise of lay testimony
No. 12-2472 11
cloaked that testimony in an aura of expertise without subject-
ing it to the reliability standards of Fed. R. Evid. 702 or the
mandatory pretrial disclosure requirements of Fed. R. Crim. P.
16.
The government may use a law enforcement officer as both
an expert and lay witness in the same trip to the witness stand.
United States v. York, 572 F.3d 415, 425 (7th Cir. 2009). However,
there are some inherent dangers with this kind of dual testi-
mony. For example, the witness’s dual role might confuse the
jury. Or, the jury might be smitten by an expert’s “aura of
special reliability” and therefore give his factual testimony
undue weight. Or, “the jury may unduly credit the opinion
testimony of an investigating officer based on a perception that
the expert was privy to facts about the defendant not presented
at trial.” Id. (citations omitted).
The government argues that these concerns do not apply in
this case because Agent Catey was only called as a lay witness.
As far as Agent Catey’s testimony about the drug code words
and phrases used by Cheek and his co-conspirators are
concerned, we agree. When a law enforcement officer testifies
about the meaning of drug code words used by defendants
based on personal knowledge obtained from the investigation
of those defendants, the officer is testifying as a lay witness.
United States v. Moreland, 703 F.3d 976, 983 (7th Cir. 2012).
However, if the officer testifies from “expertise having derived
from his involvement in other drug investigations,” then the
officer is testifying as an expert witness. Id. As the lead case
agent, Agent Catey was intimately involved in the investiga-
tion of Cheek and his co-conspirators. For example, he re-
viewed more than 20,000 intercepted communications and
12 No. 12-2472
interviewed more than 100 witnesses as part of the investiga-
tion into the conspiracy. Moreover, when the prosecutor
questioned Agent Catey about the meaning of the drug code
words used by the conspirators, the prosecutor phrased his
questions in terms of Agent Catey’s “understanding based on
this investigation” or “familiarity with this investigation.”
These facts convince us that Agent Catey’s testimony about the
drug code words and phrases used by Cheek and his co-
conspirators “was based on his own personal observations and
perceptions derived from this particular case.” United States v.
Rollins, 544 F.3d 820, 833 (7th Cir. 2008) (finding law enforce-
ment witness’s interpretations of code words as admissible lay
testimony where witness based interpretation only on listening
first-hand to numerous recorded telephone calls in that
particular investigation). And the fact that Agent Catey was an
experienced investigator does not alter this conclusion. See
Moreland, 703 F.3d at 983 (“Had the agent been testifying
exclusively as a lay witness about the code words he had
learned the meaning of in the course of his investigation of the
defendants’ conspiracy, it would not have been improper to
introduce him to the jury as an experienced investigator, rather
than a novice listening to taped conversations of drug conspir-
ators for the first time, any more than it is improper to ask an
eyewitness whether he has good vision.”). At the very least, it
would not have been “clear or obvious” to the district court
that Agent Catey was offering expert testimony about the drug
code words and phrases used by the conspirators.
Moreover, even if Agent Catey’s testimony about the drug
code words and phrases used by the conspirators could be
labeled as improperly admitted expert testimony, any error
No. 12-2472 13
would be harmless. First, the overwhelming evidence offered
at trial demonstrates that Agent Catey’s interpretations of the
drug code words and phrases used by Cheek and his conspira-
tors were accurate. For example, Cheek focuses on Agent
Catey’s testimony that the words or phrases “girl,” “girly,” or
“bumping into ol’ girl” were references to “cocaine or crack
cocaine.” Harris, Eason, and Williams testified that these terms
referred to cocaine or crack cocaine. See Trial Tr. 161 (Harris
testifying that “ol’ girl” referred to “cocaine”); 428–29 (Eason
testifying that “ol’ girl” means “cocaine” and “girl” means
“cocaine”); 675–76 (Williams testifying that “Christina, ol’ girl,
[and] white girl” refer to “crack cocaine”). And Goodwin
testified that Cheek used these terms to refer to cocaine. See
Trial Tr. 631–33; 637 (Goodwin testifying that Cheek used “ol’
girl” to refer to “cocaine”). Second, at oral argument, Cheek’s
counsel conceded that Agent Catey would likely have been
qualified as an expert. See United States v. Jones & Brown, Nos.
11-3864 & 12-1695, slip op. at 10, 2014 WL 68143 (7th Cir. Jan.
9, 2014) (finding no harm from failing to comply with Rule 702
with respect to a detective who offered expert testimony where
the defendant did not challenge the detective’s qualifications
or the validity of his testimony); United States v. Tucker, 714
F.3d 1006, 1016 (7th Cir. 2013) (“Further, [the defendant] does
not question Officer Baranek’s qualifications, and there is little
doubt he would have been able to be qualified as an expert,
thus failure to ‘formally anoint’ him as such is harmless.”).
Indeed, before trial the government disclosed that it would call
a DEA agent to testify regarding the meaning of drug code
words and phrases used by the drug dealers in general. Thus,
Cheek had notice that the government intended to offer the
14 No. 12-2472
kind of testimony that Agent Catey offered concerning the
meaning of drug code words and phrases used by the conspir-
ators. See Jones & Brown, Nos. 11-3864 & 12-1695, slip op. at 10.
For both these reasons, no harm could have come to Cheek
from failing to subject Agent Catey’s testimony about the drug
code words and phrases used by the conspirators to the
reliability standards of Rule 702 or the mandatory pretrial
disclosure requirements of Rule 16.
Assuming that Agent Catey’s testimony about the drug
code words and phrases used by the conspirators was lay
testimony, Cheek contends alternatively that the testimony
was not “helpful,” and consequently inadmissible, see Fed. R.
Evid. 701(b), because Agent Catey testified that the code words
could refer either to cocaine or crack cocaine—but Cheek was
only charged with crack cocaine offenses. We disagree. It
would have been improper for Agent Catey to state that the
code words referred only to crack cocaine given that they also
could refer to powder cocaine.3 Agent Catey’s testimony may
have been insufficient on its own to support Cheek’s crack
cocaine convictions, but the testimony was certainly helpful to
the jury inasmuch as it excluded any other potential interpreta-
tion of the code words besides either “cocaine” or “crack
cocaine.” And Cheek does not raise an insufficiency argument
on appeal.4
3
Eason confirmed that “ol’ girl” and “girl” can refer either to crack cocaine
or regular cocaine.”
4
Relatedly, Cheek argues that this testimony blurred the distinction
between powder cocaine and crack cocaine, which could have confused the
(continued...)
No. 12-2472 15
All of Agent Catey’s remaining testimony about which
Cheek complains could be properly admitted lay testimony. A
witness could form true opinions regarding whether cocaine is
the main ingredient in crack cocaine, how a wiretap is con-
ducted, or the meanings of terms such as “wire room,
minimization, sessions, magneto optical disk, pen register trap
and trace, spin off wiretap, special federal officer, case agent,
controlled buy, front and controlled payment,” without that
knowledge being based on “scientific, technical, or other
specialized knowledge.” Fed. R. Evid. 701. For example, the
4
(...continued)
jury into convicting Cheek for crack cocaine offenses even though the jury
only believed that Cheek had committed powder cocaine offenses. But
evidence admitted at trial distinguished between powder and crack cocaine.
See Trial Tr. 672 (Williams testifying that she received both “powder and
hard crack”); 155 (Harris testifying that she’d never seen Cheek “with
crack,” but that twice bought cocaine from him); 532 (stipulation distin-
guishing between “cocaine base” and “powder cocaine”). And Cheek’s
defense was not that he was selling powder cocaine instead of crack
cocaine. Moreover, as noted, while Agent Catey’s testimony about the drug
code words and phrases used by the conspirators would not have been
sufficient on its own to support Cheek’s crack cocaine convictions, Cheek
does not raise an insufficiency argument on appeal. Anyway, the govern-
ment offered sufficient evidence that Cheek committed the crack cocaine
offenses with which he was charged. See, e.g., Trial Tr. 113 (Agent Catey
testifying that cooperating witnesses recorded purchases of crack cocaine
from Cheek); 125 (Harris testifying that Cheek’s conspiracy distributed
crack cocaine); 405–06 (Eason testifying that he obtained crack cocaine from
Cheek); 611 (Detective Ferguson testifying about controlled buy of crack
from Cheek). Indeed, Eason testified that Cheek supplied him with 63
grams of crack cocaine every few weeks during 2002–2003, 2006–2008, and
2010–2011. See Trial Tr. 405–06, 411–13, 417–20. Thus, Cheek sold signifi-
cantly more than 280 grams of crack cocaine to just one of his customers.
16 No. 12-2472
witness might have observed another person making crack
cocaine or conducting a wiretap; or the witness might consult
a dictionary. When Agent Catey testified about the ingredients
of crack cocaine, he did not identify the source of his knowl-
edge. And when he testified that $23.50 referred to $23,500 for
a kilo of cocaine, he testified that his opinion was based on his
review of the calls. With respect to this testimony, precisely
because Agent Catey did not specify whether his opinions
were based on “scientific, technical, or other specialized
knowledge,” we cannot say that it was “clear or obvious” that
the testimony was expert in nature.
Moreover, Cheek does not dispute the accuracy of any of
this testimony.5 Indeed, as noted, Cheek’s counsel conceded
that Agent Catey would likely have been qualified as an
expert. Therefore, the concern that Agent Catey’s uncontested
testimony may have been cloaked in an aura of expertise, while
not concomitantly being subjected to the reliability standards
of Rule 702 or the mandatory pretrial disclosure requirements
of Rule 16, could not have affected Cheek’s substantial rights.
See United States v. Sykes, 614 F.3d 303, 312 (7th Cir. 2010) (“An
error affects substantial rights when it ‘affected the outcome of
the district court proceedings.’” (quoting United States v. Olano,
507 U.S. 725, 734 (1993))).
Perhaps Cheek believes that Agent Catey’s testimony on
these matters cloaked the rest of his testimony—including
matters that were contested—in an aura of expertise. But
5
Detective Ferguson also testified that “$23.50” meant “$23,500.” But
Cheek does not object to Detective Ferguson’s testimony.
No. 12-2472 17
Cheek does not explain how Agent Catey’s undisputed
testimony about the ingredients of crack cocaine, the meanings
of technical terms, or the process for conducting a wiretap
would bolster the rest of his testimony. Moreover, the govern-
ment did not explicitly present Agent Catey to the jury as an
expert. Consequently, there was little risk that the jury might
have been confused by Agent Catey’s “dual roles” as both an
expert and lay witness, that his status as an expert might
overawe the jury, or that the jury might have mistakenly
believed that his expert opinions were based on facts about the
defendant not presented at trial. See United States v. Gar-
cia-Avila, 737 F.3d 484, 489 (7th Cir. 2013) (observing that the
risk of unfair prejudice is reduced where a witness does not
testify both as an expert and as a lay witness); Moreland, 703
F.3d at 983 (finding no “realistic danger” that the jury might be
smitten by the agent’s testimony). And the evidence of Cheek’s
guilt was overwhelming—Cheek admitted that he sold
marijuana, and Detective Ferguson as well as a number of
Cheek’s co-conspirators testified that Cheek distributed crack
cocaine. Therefore, any error in admitting Agent Catey’s
testimony on these matters would be harmless. See United
States v. Gaytan, 649 F.3d 573, 582–83 (7th Cir. 2011); Rollins, 544
at 833 (“Besides, the other evidence of guilt of these two
defendants is so overwhelming that even if the [officer’s]
‘impressions’ testimony had crossed the line, it would have, at
worst, amounted to harmless error.”).
The Transcripts
Cheek also contends that the district court erred in allowing
the jury to have the transcripts (both during trial and delibera-
tions) containing Agent Catey’s interpretations. These interpre-
18 No. 12-2472
tations were inserted in square brackets following various code
words and phrases from the recordings. Specifically, Cheek
argues that this unfairly bolstered Agent Catey’s testimony
and usurped the fact-finding function of the jury.6
“[D]istrict courts have wide discretion in determining
whether to allow juries to use written transcripts as aids in
listening to audiotape recordings.” United States v. Breland, 356
F.3d 787, 794 (7th Cir. 2004) (citing United States v. Keck, 773
F.2d 759, 766 (7th Cir. 1985)). And “[w]e have previously
permitted transcripts to be admitted at trial and used by the
jury during their deliberations when the underlying tapes are
actually played during the trial (as was the case here).” Breland,
356 F.3d at 794–95 (collecting cases). In fact, Cheek’s counsel
explicitly informed the district court that the defense had no
objection to providing the transcripts to the jury. See Tr. 67, 838.
Even assuming arguendo that providing the transcripts with
Agent Catey’s interpretations to the jury was error, any error
would not have been “clear or obvious” to the district court
given our precedent cited above and Cheek’s disclaimer of any
objection. Moreover, Cheek does not identify which (if any) of
Agent Catey’s interpretations contained in the transcripts are
inaccurate. If Agent Catey’s interpretations are correct, Cheek’s
substantial rights could not have been affected and the
6
Based on interpretations in the transcripts that read “cocaine/crack
cocaine,” Cheek reiterates his concern that the jury may have been misled
into convicting him for the crack cocaine offenses based on evidence that
may have only proved powder cocaine offenses. For the reasons discussed
above, this argument is without merit.
No. 12-2472 19
fairness, integrity, or public reputation of judicial proceedings
could not have been seriously impugned.7
For support, Cheek cites our decision United States v. Berry,
92 F.3d 597, 601 (7th Cir. 1996), wherein, unbeknownst to the
judge, the jury retained transcripts provided to them at trial
during their deliberations. The district court granted the
defendant a new trial and the government appealed.8 On
appeal, we observed that “the government’s case was not
strong,” and that our “deferential review” led us to conclude
that the district court did not abuse its discretion in granting a
new trial. Id. at 601–02. We stated that “[a] criminal defendant
has ‘a right to be tried on the basis of the evidence admitted at
7
We observe that Detective Ferguson testified that a number of the words
or phrases in the transcripts meant what the interpretations in the adjacent
square brackets stated. For example, the transcripts contained the word
“kilograms” in square brackets following the word “books,” the phrase
“1/8th ounce or ‘8-ball’ sample” in square brackets following the word
“ball,” and the phrase “$23,500 per kilogram” in square brackets following
the number “$23.50,” Detective Ferguson testified that he believed the word
“book” as used in the recorded conversations between Cheek and others
referred to a “kilogram of cocaine.” He also testified that the word “ball”
meant “a ball of cocaine” that was being given to a customer as a “sample.”
And he testified that “$23.50” meant “$23,500.” Yet Cheek does not contend
on appeal that the inclusion of these interpretations in square brackets in
the transcripts unfairly bolstered Detective Ferguson’s trial testimony or
usurped the fact-finding role of the jury.
8
Actually, the government appealed twice. The first time we remanded for
the district court to explicitly determine whether there was a reasonable
possibility that the jury’s use of the transcript during deliberations
prejudiced the defendant. See United States v. Berry, 64 F.3d 305, 308 (7th Cir.
1995).
20 No. 12-2472
his trial, and this right may be violated if the jury gets access to
extra-record evidence … even if the access is not the result of
any prosecutorial misconduct.’” Id. at 600 (quoting United
States v. Sababu, 891 F.2d 1308, 1333 (7th Cir. 1989)). But here,
unlike in Berry, the transcripts provided to the jury were
admitted into evidence at trial by stipulation. See Tr. 67, 88.
And our standard of review is at the opposite edge of the
spectrum in this case—in Berry our highly deferential review
(abuse of discretion) favored the defendant’s position, whereas
here our even more highly deferential review (plain error)
favors the government’s position. Moreover, unlike in Berry,
the government’s case is very strong—composed as it is from
the testimony of five of Cheek’s co-conspirators and Detective
Ferguson as well as recordings of Cheek’s communications and
interactions with one of his customers. Therefore, we conclude
that the district court did not plainly err—or at least that any
error would be harmless—when the court permitted Agent
Catey’s testimony and allowed the jury to have the transcripts
containing Agent Catey’s interpretations in square brackets.
B. Cheek’s Challenges to his Sentence
Cheek argues that his 576-month prison sentence is
procedurally unreasonable because the district court failed to
comply with the procedure provided in § 851(b), erroneously
invoked § 841(b)(1)(B), erroneously imposed the 2-level
obstruction of justice enhancement, and failed to consider
meaningfully Cheek’s mitigation arguments. Additionally,
Cheek contends that a 576-month sentence is a de facto life
sentence that is substantively unreasonable.
No. 12-2472 21
Section 851(b)/Apprendi Arguments
Cheek argues that his 576-month sentence must be vacated
because the district court failed to comply with procedural
requirements of 21 U.S.C. § 851(b) and because the sentence
violates his rights under the Fifth and Sixth Amendments to
the Constitution as interpreted by the Supreme Court in
Apprendi.
None of the counts for which Cheek was convicted carries
a statutory maximum penalty greater than 480 months’
imprisonment. However, pursuant to 21 U.S.C. § 841(b)(1)(B),
the district court could sentence Cheek to a prison term of up
to life on counts I and II provided that Cheek had been
previously convicted of at least one drug felony. The district
court only could invoke § 841(b)(1)(B) if the requirements of
§ 851 were met. Cheek contends that the district court failed to
comply with § 851(b)’s requirement that the court “after
conviction but before pronouncement of sentence inquire of
the person with respect to whom the information was filed
whether he affirms or denies that he has been previously
convicted as alleged in the information.”
Generally, “[w]hether the district court followed proper
sentencing procedure is a legal question reviewed de novo.”
United States v. Pape, 601 F.3d 743, 746 (7th Cir. 2010). However,
the government urges us to review the district court’s compli-
ance with § 851(b) for plain error because Cheek did not object
to the criminal history section of his PSR and “did not object to
the alleged procedural deficiency at the time of sentencing … .”
United States v. Corona-Gonzalez, 628 F.3d 336, 340 (7th Cir.
2010). But the standard of our review does not affect the
22 No. 12-2472
outcome in this case. “No person who stands convicted of an
offense under this part may challenge the validity of any prior
conviction alleged under this section which occurred more
than five years before the date of the information alleging such
prior conviction.” 21 U.S.C § 851(e). And five of Cheek’s seven
felony drug convictions listed in the § 851(a) information filed
by the government prior to trial occurred more than five years
before the date the information was filed. Thus, Cheek was
barred from challenging the validity of any of these five prior
felony drug convictions. Only one such conviction was needed
to trigger § 841(b)(1)(B). “A district court is not required to
‘adhere to the rituals of § 851(b) where a defendant, as a matter
of law, is precluded from attacking the conviction forming the
basis of the enhancement information.’” United States v. Flores,
5 F.3d 1070, 1082 (7th Cir. 1993) (quoting United States v. Nanez,
694 F.2d 405, 413 (5th Cir. 1982)). So the district court did not
err; but even if it did, any error was harmless. See United States
v. Williams, 298 F.3d 688, 692–93 (7th Cir. 2002) (finding
harmless any error resulting from the district court’s failure to
comply with § 851(b)); United States v. Arango-Montoya, 61 F.3d
1331, 1339 (7th Cir. 1995) (per curiam) (“Since [the defendant]
attempts to challenge his prior conviction and § 851(e) bars him
from doing so, any failure by the district court to ‘inform him
that any challenge to a prior conviction which is not made
before sentence is imposed may not thereafter be raised to
attack the sentence,’ 21 U.S.C. § 851(b), is harmless.”).
Cheek also contends that his 576-month sentence violates
his rights under the Fifth and Sixth Amendments as inter-
preted by Apprendi. In Apprendi, the Supreme Court held that
“any fact that increases the penalty for a crime beyond the
No. 12-2472 23
prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.” 530 U.S. at 490. The
question of whether Cheek had been convicted of any prior
drug felonies is a factual prerequisite to the district court’s
invocation of § 841(b)(1)(B) and imposition of a prison term
greater than 480 months. It is undisputed that this question
was not submitted to the jury.
Cheek concedes that we review for plain error because he
failed to raise any Apprendi argument before the district court.
But we need not dally over the standard of our review because
Apprendi expressly excludes any question of “the fact of a prior
conviction” from the scope of its holding. Id. at 490. And even
if we thought the Supreme Court was going to reconsider this
ruling, it has “told the lower courts in no uncertain terms to
leave the overruling of its precedents to it.” United States v.
Ousley, 698 F.3d 972, 976 (7th Cir. 2012) (quoting United States
v. Cephus, 684 F.3d 703, 709 (7th Cir. 2012)). To the extent Cheek
wishes to preserve his Apprendi argument for the Supreme
Court, he has done so.
Obstruction of Justice Enhancement
Next, Cheek contends that the district court improperly
calculated his Guidelines range when it imposed a 2-level
upward adjustment under U.S.S.G. § 3C1.1 for obstruction of
justice. Guideline U.S.S.G. § 3C1.1 provides:
If (1) the defendant willfully obstructed or impeded,
or attempted to obstruct or impede, the administra-
tion of justice with respect to the investigation,
prosecution, or sentencing of the instant offense of
conviction, and (2) the obstructive conduct related to
24 No. 12-2472
(A) the defendant's offense of conviction and any
relevant conduct; or (B) a closely related offense,
increase the offense level by 2 levels.
The district court thought that Cheek’s letter to Harris’s
daughter was an attempt to convince “the child to get to her
mother.” Thus, over Cheek’s objection, the district court
concluded that the letter constituted an obstruction of justice.
However, the district court remarked, “I don’t find [the letter]
very significant.”
“When reviewing an obstruction of justice enhancement,
we review the underlying factual findings, like all such
findings, for clear error, ‘and we review de novo whether those
findings adequately support the enhancement.’” United States
v. Taylor, 637 F.3d 812, 817 (7th Cir. 2011) (quoting United States
v. Vallar, 635 F.3d 271, 288 (7th Cir. 2011)). Cheek contends that
the district court erred in concluding that the letter was
obstructive because the letter urges Harris to tell the truth and
urges Harris’s daughter to respect her mother’s decision. But,
in the letter, Cheek also states that Harris’s testimony for the
government would be lies, that her testimony is all the govern-
ment had to convict him, and that Harris had been tricked by
her own lawyer. Cheek remarks that he will “never respect
[Harris’s] decision” and that he thought she would never lie
about him. Cheek also notes that if Cheek is convicted, then he
will go to prison for the rest of his life and be unable to raise
his children or protect his daughter from boys. In conjunction
with this expression of parental concern, Cheek also makes a
flattering reference to Harris’s daughter’s child. Finally, Cheek
invokes “God” and remarks that “it’s up to us to man up or
woman up.” In short, Cheek’s letter was an intentional effort
No. 12-2472 25
to convince Harris’s daughter that her mother’s testimony
would be lies, which were the only evidence the government
had against him, and that a conviction would ruin his “life and
the lives of [his] kids.” The district court reasonably interpreted
this effort as a willful attempt to persuade Harris’s daughter to
try to sway her mother’s testimony. Certainly this interpreta-
tion was not clearly erroneous. And an effort to influence a
witness’s testimony—albeit vicariously—is a prototypical
example of obstruction of justice. See U.S.S.G. § 3C1.1 Applica-
tion Note 4(A).
Moreover, even if the district court erred when it imposed
the obstruction of justice enhancement, that error would be
harmless. Enhancements are “used merely to determine the
applicable Guidelines range.” States v. Maggi, 44 F.3d 478, 482
(7th Cir. 1995). And the imposition of the obstruction of justice
enhancement did not change Cheek’s Guidelines range. In
addition, the district court explicitly stated that he did not
think the letter significant. Therefore, it is apparent that the
enhancement did not affect Cheek’s sentence. See United States
v. Eubanks, 593 F.3d 645, 655 (7th Cir. 2010) (“To prove harm-
less error, the government must be able to show that the
guidelines error did not affect the district court’s selection of
the sentence imposed.” (quoting United States v. Abbas, 560 F.3d
660, 667 (7th Cir. 2009)).
Cheek’s Arguments in Mitigation and the Section
3553(a) Factors
Cheek also contends that his sentence was procedurally
unreasonable because the district court failed to consider that
the sentence amounted to a de facto life sentence and did not
26 No. 12-2472
explain why it believed a sentence greater than that recom-
mended by the government was reasonable. Cheek relies upon
our decision United States v. Patrick, 707 F.3d 815, 819–20 (7th
Cir. 2013), wherein the district court expressed an intent not to
impose a life sentence but then imposed a sentence that
effectively amounted to a life sentence. Under those circum-
stances, we were unable “to discern whether the court appreci-
ated the severity of the sentence it imposed, and in particular
its equivalence to the life sentence that it had purportedly
rejected.” Id. Patrick does not stand for the proposition that,
every time a district court imposes a sentence that exceeds the
defendant’s life expectancy, the court must explicitly recognize
that fact. And Patrick is distinguishable from Cheek’s case
because here the district court never stated that he wished to
give Cheek something less than a life sentence. Instead, the
district court explained that, based on Cheek’s extensive
“history of criminal activity,” the court was untroubled by the
fact that Cheek would be imprisoned “at least for a significant
amount of time.” Unlike in Patrick, we are able “to discern
[that] the court appreciated the severity of the sentence it
imposed … .” Id.In arguing that the district court procedurally erred by
failing to explain why it believed a sentence greater than that
recommended by the government was reasonable, Cheek
asserts that the government requested a 480-month sentence.
That is not quite true; the government asked for “a sentence of
not less than 40 years [480 months] in prison … .” Moreover,
Cheek’s sentence was within his Guidelines range, and “a
within-guidelines sentence receives a presumption of reason-
ableness … .” United States v. Diekemper, 604 F.3d 345, 355 (7th
No. 12-2472 27
Cir. 2010). Where such a presumption applies, we doubt that
a sentencing court has a procedural obligation to explain why
it has chosen not to adopt the government’s recommended
sentence. And, as discussed below, the district court had good
reasons for concluding that Cheek deserved a long sentence.
Cheek also argues that the district court failed to consider
meaningfully the arguments Cheek offered in mitigation of his
sentence under 18 U.S.C. § 3553(a). Cheek identifies the
following factors as ones upon which he argued for leniency at
sentencing: his age (37 years old), the extraordinary length of
a Guidelines sentence of 360 months to life, his history of
non-violence, his advanced age upon completing a lengthy
sentence, that he had assisted law enforcement in an unrelated
matter, that his mother had died when he was only 16 years
old, and that he had children.
First of all, although Cheek’s counsel remarked at sentenc-
ing that Cheek “is 37 years old,” he did not develop any
argument for leniency from that fact. And it is not apparent
why Cheek’s age would support leniency. Cheek is not so
young that one might attempt to excuse his criminal activity as
the result of immaturity—nor is he elderly. Therefore, we will
not fault the district court for failing to mention explicitly
Cheek’s age during sentencing. See United States v. Jones, 438 F.
App’x 515, 519 (7th Cir. 2011) (noting that the defendant
“never explained why his age justified a below-guidelines
sentence” and so the court was not required to address it).
Similarly, our review of the sentencing transcript reveals no
argument by either Cheek or his counsel that the “extraordi-
nary length of a [Guidelines] sentence of 360 months to life”
constitutes a basis for leniency.
28 No. 12-2472
Furthermore, most of Cheek’s remaining
arguments—namely, that he will be elderly when he is
released from prison, that his mother died when he was only
16 years old, and that he has children—are the kinds of stock
arguments that sentencing courts are not obliged to address.
See United States v. Brock, 433 F.3d 931, 937 (7th Cir. 2006)
(ruling that a district court may reasonably find arguments
about a difficult childhood so weak as not to merit discussion
where the defendant fails to explain why his difficult child-
hood should be a mitigating factor); United States v. Tahzib, 513
F.3d 692, 695 (7th Cir. 2008) (holding that “family ties” are
“nothing more than stock arguments that sentencing courts see
routinely”); United States v. Nurek, 578 F.3d 618, 626 (7th Cir.
2009) (holding that defendant’s “physical ailments and
[advanced] age are not significant mitigating factors” that the
district court needed to separately address). Similarly, Cheek’s
argument that none of his numerous prior convictions in-
volved violence is essentially an argument that his criminal
history category substantially over-represents the seriousness
of his past crimes. See United States v. Stephen, 160 F. App’x 505,
507 (7th Cir. 2005). This argument is also a stock argument that
the district court was not required to address. United States v.
Moreno-Padilla, 602 F.3d 802, 811–12 (7th Cir. 2010) (“To that
end, there is no requirement that a district court extensively
address non-principal arguments, or ‘stock arguments that
sentencing courts see routinely,’ including ‘how [a defen-
dant’s] criminal history category over-represents the serious-
ness of his prior conviction.’” (quoting Tahzib, 513 F.3d at 695)).
Cheek’s final argument for leniency was based on the fact
that he had once assisted law enforcement by clearing Detec-
No. 12-2472 29
tive Ferguson of accusations of misconduct. This was Cheek’s
most developed argument at sentencing. But the fact that
Cheek did not lie to the police on an unrelated matter hardly
constitutes the kind of meritorious conduct deserving of a
sentencing reduction. And, to the extent Cheek’s could be said
to have rendered “substantial assistance” to the police, still “[a]
defendant’s claim that substantial assistance to the government
warrants leniency is ‘routine,’ … and thus a sentencing court
may reject that claim with little or no explanation.” See Jones,
438 F. App’x at 519 (citing United States v. Gonzalez, 462 F.3d
754, 756 (7th Cir. 2006)).
Moreover, we will not find a sentence to be procedurally
unreasonable as long as the totality of the record establishes
that the district judge considered the arguments in mitigation,
“even if implicitly and imprecisely.” Diekemper, 604 F.3d at 355;
United States v. Poetz, 582 F.3d 835, 839 (7th Cir. 2009). In this
case, the district court recited the § 3553(a) factors and focused
on Cheek’s extensive criminal history—Cheek spent his entire
adult life as a drug dealer and was convicted of nine prior
felony drug convictions. The district court recognized that
Cheek had offered arguments that he was not a bad person.
Indeed, the district court told Cheek, “I’m not saying you’re a
bad person.” Nevertheless, despite recognizing the good things
about Cheek, the district court concluded that the facts
surrounding Cheek’s current offenses and his extensive history
of criminal activity called for a significant prison sentence.
Moreover, the district court’s decision to impose a sentencing
enhancement on Cheek for obstructing justice demonstrates that
the court implicitly rejected any argument that Cheek’s
sentence should be reduced because he assisted justice. There-
30 No. 12-2472
fore, even assuming the district court was required to address
Cheek’s mitigation argument based on his prior assistance, we
conclude that the court sufficiently considered it. In any event,
even if the district court did not adequately consider this
mitigation argument, the error would be harmless because the
court’s focus on Cheek’s extensive and egregious history of
criminal activity, and serious present offenses, convince us that
Cheek’s sentence would not have been different. United States
v. Glosser, 623 F.3d 413, 419 (7th Cir. 2010) (“When we are
convinced the sentence would have been the same absent the
error, we deem the error harmless.”).
Substantive Unreasonableness
Finally, Cheek argues that his sentence—a de facto life
sentence—is substantively unreasonably long. But Cheek’s
sentence was within his Guidelines range, and “a
within-guidelines sentence receives a presumption of reason-
ableness … .” Diekemper, 604 F.3d at 355. Indeed, “such a
sentence ‘will almost never be unreasonable.’” United States v.
Vallar, 635 F.3d 271, 279 (7th Cir. 2011) (quoting Tahzib, 513
F.3d at 695). In fact, the district court could have imposed a life
sentence on Cheek and still remained within his Guidelines
range. The district court recounted the § 3553(a) factors and
concluded that, despite the significant cost of incarceration, a
within-Guidelines sentence was appropriate in light of Cheek’s
egregious criminal history, including nine prior felony drug
convictions, and serious present offenses, including distribut-
ing at least 28 grams of crack cocaine and 100 kilograms of
marijuana. We previously have found lengthy sentences to be
substantively reasonable under similar circumstances. See, e.g.,
United States v. Taylor, 701 F.3d 1166, 1175 (7th Cir. 2012)
No. 12-2472 31
(affirming 480-month sentence in light of egregious criminal
conduct and extensive criminal history); Vallar, 635 F.3d at 280(affirming 360-month sentence in light of “the seriousness of
[the defendant’s] crime, his past recidivism and the likelihood
that he would continue to commit crimes if released from
prison, the fact that he directed the operation of a drug
distribution ring while in a federal prison, his lack of remorse
for his offense, and its conclusion that [he] is a threat to society
due to his persistent distribution of drugs.”). The record
demonstrates that Cheek has repeatedly refused to give up his
life of criminal drug distribution—despite the efforts of the
justice system to deter him. Cheek’s sentence is lengthy, but we
cannot say that the district court abused its discretion in
concluding that Cheek deserved it.
III. Conclusion
The district court did not plainly err when it admitted
Agent Catey’s testimony and permitted the government to
provide the jury with transcripts containing Agent Catey’s
interpretations of various words and phrases from the record-
ings. At least, any error would have been harmless. Addition-
ally, the district court did not err when it imposed a 2-level
obstruction of justice enhancement, and the court adequately
considered Cheek’s mitigation arguments in light of the § 3553
factors. The district court’s failure to comply with the proce-
dure provided in § 851(b) was, at most, harmless
error—especially given that Cheek’s counsel never raised the
issue. Finally, Cheek’s 576-month prison sentence—authorized
by § 841(b)(1)(B)—is not substantively unreasonable. There-
fore, we AFFIRM Cheek’s convictions and sentence.