United States v. Michael Harris , 773 F.3d 837 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 11-3519, 11-3627, 12-1016, and 12-1290
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTOPHER BLITCH, et al.,
Defendants-Appellants.
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 06-CR-586— Harry D. Leinenweber, Judge.
ARGUED OCTOBER 22, 2012— DECIDED DECEMBER 2, 2014
Before BAUER and ROVNER, Circuit Judges, and RANDA,
District Judge.*
RANDA, District Judge. This case involves criminal charges
arising from a fictional drug stash house robbery. Christopher
Blitch, Michael Carwell, Devarl Washington and Michael
Harris were charged with conspiring and attempting to possess
*
Of the Eastern District of Wisconsin, sitting by designation.
2 Nos. 11-3519, 11-3627, 12-1016, and 12-1290
with the intent to distribute more than five kilograms of
cocaine. The defendants were also charged with being felons in
possession of firearms and carrying those firearms in further-
ance of a crime. In 2007, a jury convicted the defendants on all
counts, but on appeal, this court reversed and remanded for a
new trial due to problems with jury selection and deliberation.
United States v. Blitch, 622 F.3d 658 (7th Cir. 2010). On re-trial,
the defendants were acquitted on the attempt charge but
convicted on all other counts. Each defendant was sentenced
to the statutory minimum of twenty-five years in prison.
In these consolidated appeals, two of the defendants,
Carwell and Harris, argue that the district court erred by
granting the government’s motion in limine to preclude them
from presenting an entrapment defense. The court disagrees,
and the balance of the arguments presented on appeal are
similarly without merit. Therefore, the defendants’ convictions
and sentences are affirmed.
I. Background
In 2006, the Bureau of Alcohol, Tobacco, Firearms and
Explosives (“ATF”) developed a plan to recruit individuals to
rob a fictional drug stash house. Special Agent David Gomez
assumed the identity of “Loquito,” a drug courier for a large
Mexican drug cartel. According to the cover story, Loquito was
unhappy with his employer and intended to rob a stash house
operated by the cartel. To find Loquito’s accomplices for the
fictional robbery, the ATF procured the assistance of Jamison
Moore, a paid informant. Previously, Moore entered into a plea
Nos. 11-3519, 11-3627, 12-1016, and 12-1290 3
agreement in state court, wherein he agreed to assist in the
arrest and indictment of ten different individuals on charges
for delivering or possessing with the intent to deliver con-
trolled substances. In July of 2006, Moore began recruiting
people to join Loquito’s crew in an effort to fulfill this quota.
Thus began a series of recorded meetings between Moore,
Agent Gomez, and some or all of the defendants.
On July 27, 2006, Moore, Agent Gomez, and an unindicted
co-conspirator met with defendant Washington. Gomez told
Washington that he was a courier for a Mexican drug cartel,
and that he wanted to assemble a crew to steal cocaine from a
cartel stash house. Gomez explained that he transported
between ten and fifteen kilograms of cocaine at a time for the
cartel, that roughly the day before he transported the cocaine
he received a call from his boss who would tell him to be ready
the next day, and that he never learned the location of the stash
house until about an hour before he was supposed to pick up
the drugs. Gomez further explained that once inside the stash
house, he usually saw between fifteen and twenty-five kilo-
grams of cocaine. Gomez also explained that he had seen
“stacks and stacks” of money inside the house. Washington
asked Gomez whether he had seen any “artillery” in the house,
which Gomez understood to mean guns. Later in the conversa-
tion, Washington indicated that he was carrying a gun that day
by pointing to his waistband and stating that he was “heated,”
and that he “stay[ed] heated.”
Agent Gomez asked Washington what would happen if,
during the robbery, one of the cartel guys inside the stash
4 Nos. 11-3519, 11-3627, 12-1016, and 12-1290
house pulled out a “MAC,” a type of assault rifle. Washington
responded that everyone involved in the robbery would have
guns. Later in the conversation, Washington said that once
inside the stash house, ”if I have to pull a trigger, or … if I hear
a trigger … everybody gotta go! … If they didn’t fuckin’ come
wit’ us, they’re stayin’ there.” Finally, Washington and Moore
discussed how they would split fifteen kilograms of cocaine,
leaving each person with three kilograms. Washington
remarked, “If you can’t make no’in’ happen with that [three
kilograms] then … ,” which Gomez understood to be a
reference to selling the three kilograms of cocaine.
On August 8, Agent Gomez met again with Moore, the
unindicted co-conspirator, and Washington. Gomez repeated
his earlier assertion that the stash house would probably
contain at least fifteen kilograms of cocaine. During that
conversation, Washington said, “When you, when you dealin’
wit’ a home invasion, robbery, armed violence, you know what
to expect. Understand me? Then these are drug dealers. The[ir]
first mind is not to call the police.” Washington said he
planned to cover his face during the robbery, explaining, “I
don’t never go naked.” Washington also said they would have
to tie up the people inside the house, and that his “main thing
is not to have to play with no pistol unless we’re fittin’ to kill
it.”
At the same meeting, Moore discussed how he would
“work on” getting defendant Harris to take part in the robbery.
Moore said he wanted Harris to be involved, but he would not
“waste no time wit’ him and keep playin’ wit’ his ass … [H]e’s
Nos. 11-3519, 11-3627, 12-1016, and 12-1290 5
in or he’s out. … If he don’t want no money, then that’s on
him, man.” Later, Moore said that if Harris and another man
“don’t [want to] do it, they don’t want no part, then I’ll just,
we, we’ll just push on from there,” and added, “We ain’t
wastin’ time with them, ‘cause we don’t got no time to waste.”
On August 14, ATF agents monitored Moore as he made
separate telephone calls to defendants Harris and Carwell,
telling them that Agent Gomez (i.e., Loquito) was going to be
in town later that day for a meeting. Moore also told Harris
that one of the people who was going to be involved in the
robbery was no longer available and asked whether Harris
could find someone else to participate. Harris said he already
had someone and was trying to get one more.
Later on August 14, Moore and Agent Gomez met with all
four defendants. For the first part of the meeting, only Gomez,
Moore, and Carwell were present. After Carwell got in the car
with Gomez, and before Gomez explained the details of the
robbery, Carwell said, “If there’s any penitentiary charges, I
hope it’s worth it.” Later, Carwell asked for details about who
would be inside the stash house, explaining that he wanted to
“know who I’m fuckin’ with so I know how to prepare
myself.” Carwell asked Gomez about how much drugs they
would be able to take from the stash house, and when Gomez
said fifteen kilograms or more of cocaine, Carwell replied,
“Damn!” In addition to the cocaine, Carwell speculated that
they might also find “a couple hundred thousand dollars” in
the stash house.
6 Nos. 11-3519, 11-3627, 12-1016, and 12-1290
Eventually, all of the defendants arrived at the meeting,
and Agent Gomez explained the robbery and that they could
expect to get about fifteen kilograms from the stash house.
Gomez told the defendants that he was hoping to get the call
that night and that they would do the robbery the next day.
Upon hearing the scenario, Harris asked how many people
were inside the stash house and what type of “artillery” they
had. Gomez responded that he had seen pistols, and Carwell
concluded, “Everybody’s strapped.” Later in the conversation,
Carwell said that the defendants would have to “repackage”
the cocaine they stole.
The defendants discussed the best way to rob the stash
house. Amongst themselves, Harris suggested that they should
just rob Agent Gomez when he came out of the stash house
with the drugs. In response, Washington said that if the
defendants pursued that plan, they would only get five
kilograms from Gomez instead of the full fifteen or more
kilograms inside the house. Harris recognized the problem,
asking “How the fuck is we gonn’ get … all the shit if we ain’t,
if we don’t go in the house?” Carwell said, “and if we goin’ in,
we gotta body.”
The defendants also discussed whether they should go into
the house immediately after Agent Gomez. Blitch said that as
soon as Gomez entered the house the defendants should “rush
up in” there. Harris added, “We goin’ through windows and
shit.” Later, the defendants discussed whether they should
wait for Gomez to go in the house and then come out and give
Nos. 11-3519, 11-3627, 12-1016, and 12-1290 7
them information about who was in the house, so that Gomez
could serve as the defendants’ “eyes and ears.”
Agent Gomez asked the defendants what would happen if
one of the guys inside the house had a MAC. In response,
Blitch said “he gettin’ his ass chop the fuck up. Goddamn it.
Shit. He gettin’ chopped up.” Harris then said, “Shit! We got a
MAC.” On three different occasions, Harris asked whether all
the co-conspirators had “arsenal,” “artillery,” and “pistols.”
In the presence of all the defendants, Agent Gomez told the
defendants to let him know if they did not want to do the
robbery, and that if so, Gomez would just “find another crew.”
None of the defendants opted out. To the contrary, Carwell
responded, “You’re fuckin’ wit’ a bunch o’ wolves that’s
hungry, man.” Near the end of the meeting, Gomez told the
defendants that he was expecting a call soon and that the
defendants should “be ready tomorrow.” Washington replied,
“We want this as bad as you do.” Carwell said: “We all been
waitin’ on this for I don’t know how many years.”
Blitch, Harris and Washington eventually left the meeting,
and Carwell remained in the car with Moore and Agent
Gomez. Carwell said that if they split fifteen kilograms
between six people, it would be two-and-a-half kilograms each.
Carwell said he was “map[ping] out a whole mo’fuckin’ plan,”
and that after the robbery he would wait for a period of time
and then “flood the city” with his share of the cocaine. Explain-
ing that he hoped this would be his “break,” Carwell said his
two-and-a-half kilograms amounted to “90 … Os,” meaning
8 Nos. 11-3519, 11-3627, 12-1016, and 12-1290
ninety ounces, which Carwell said he would sell “fi’ty hard”
and “forty soft.” Gomez understood this to mean that Carwell
would sell fifty ounces in the form of crack cocaine and forty
ounces in the form of powder cocaine. Carwell also said that he
would sell his share of the cocaine in “dubs and dimes,” which
Gomez understood to mean $20 bags of cocaine containing 0.2
grams (“dubs”) and $10 bags of cocaine 0.1 grams (“dimes”).
Carwell said his plan to sell the cocaine would “feel motha-
fuckin’ beautiful.”
The next day, ATF agents monitored Moore as he called
each of the defendants and told them to meet at a McDonald’s
in Aurora that night and to be ready to do the robbery. Each
defendant agreed.
That evening, Moore and Agent Gomez arrived at the
McDonald’s in a van. Shortly thereafter, Harris and Blitch
arrived and parked next to the van. Gomez got out of the van
and spoke with Harris and Blitch about the robbery, saying
that Gomez could get the final call any minute. Harris told
Gomez that he and Blitch wanted to stay in Blitch’s car because
it would be “better” to take more cars to the stash house.
Gomez repeatedly tried to get Harris and Blitch to go in the
van, because ATF’s arrest plan called for all the defendants to
get in the van so they could be arrested in one place. When
Gomez told Harris and Blitch that if they remained in their
own car it might get “burnt up,” meaning detected by the
police, Harris responded that they were going to be on foot
when they approached the stash house.
Nos. 11-3519, 11-3627, 12-1016, and 12-1290 9
Washington and Carwell arrived at the McDonald’s, and
Agent Gomez told the defendants that he was going to take
them to a storage locker to show Moore where to put Gomez’s
share of the stolen cocaine after the defendants split it up.
Washington and Carwell got into the van with Gomez and
Moore, and Gomez drove the van to a nearby storage facility.
Harris and Blitch followed in Blitch’s car. During the drive,
Washington and Carwell discussed how everyone involved in
the robbery could expect to get 2.5 kilograms of cocaine for
their efforts. When they arrived at the storage facility, Carwell
said, “this is where we gonna split the shit up then, man.”
At the storage facility, Agent Gomez punched in a code to
open the wrought-iron gate that separated the storage lockers
inside the storage facility from a parking lot outside the facility.
Gomez drove the van through the gate and into the storage
facility, but Harris and Blitch refused to drive past the gate.
Noting that the gate would close behind them if they drove in,
Harris said that he was “waiting on the safe side.” Harris and
Blitch parked their car in the parking lot outside the gate and
waited for Gomez.
After Agent Gomez drove the van inside the storage
facility, about three minutes passed before Gomez gave the
arrest signal. ATF “flash bangs” went off, making a loud noise
and emitting a powerful white light. An ATF special response
team—akin to a SWAT team—emerged from the storage
lockers, and law enforcement agents and officers descended on
the van to arrest Carwell and Washington. Harris and Blitch
tried to drive out of the parking lot, but nearby law enforce-
10 Nos. 11-3519, 11-3627, 12-1016, and 12-1290
ment officers pulled their cars in front of Harris and Blitch’s
car, blocking their escape.
At the time of arrest, each defendant was armed with a
loaded gun. Harris was carrying a .357 caliber revolver loaded
with five rounds of ammunition. Blitch had a 9 mm pistol
loaded with ten rounds of ammunition, which law enforce-
ment found partially underneath the driver’s seat where Blitch
was sitting. Washington was carrying a .22 caliber pistol
loaded with nine rounds of ammunition. Washington was also
wearing a black hooded sweatshirt and was carrying twine,
duct tape, and a black ski mask. Carwell was carrying a .25
caliber pistol loaded with seven rounds of ammunition, and
was wearing batting gloves. A fifth loaded gun—a .380 caliber
pistol loaded with three rounds of ammunition—was on the
rear bench of the van.
II. Entrapment
Entrapment involves “the apprehension of an otherwise
law-abiding citizen who, if left to his own devices, likely would
have never run afoul of the law.” Jacobson v. United States, 503
U.S. 540, 553–54 (1992). Entrapment has two elements: govern-
ment inducement of the crime and a lack of disposition on the
part of the defendant. United States v. Pillado, 656 F.3d 754, 763
(7th Cir. 2011). The “most important function of the doctrine,
the one that the Supreme Court has repeatedly affirmed, is to
ensure that people who are not predisposed to commit a crime
are not transformed into criminals by the government.” Id. at
Nos. 11-3519, 11-3627, 12-1016, and 12-1290 11
765 (citing Sorrells v. United States, 287 U.S. 435, 442 (1932) and
Sherman v. United States, 356 U.S. 369, 372 (1958)).
Recently, and in the context of another fictional drug stash
house case, this court had occasion to clarify its entrapment
jurisprudence “both substantively and procedurally.” United
States v. Mayfield, No. 11-2439, 2014 WL 5861628, at *1 (7th Cir.
Nov. 13, 2014) (en banc). Procedurally, the court explained that
entrapment is generally a jury question, and the government
must prove predisposition or the lack of government induce-
ment beyond a reasonable doubt in order to defeat it. Id. at
*21–22. Thus, the defendant is entitled to a jury instruction on
the defense “‘whenever there is sufficient evidence from which
a reasonable jury could find entrapment.’” Id. at *22 (quoting
Mathews, 485 U.S. at 62). However, the court also observed that
entrapment is typically litigated before trial on the govern-
ment’s motion to preclude the defense, as it was here. This
practice is “permissible,” but it “carries an increased risk that
the court will be tempted to balance the defendant’s evidence
against the government’s, invading the province of the jury.”
Id. at *23. In this posture, courts must “accept the defendant’s
proffered evidence as true and not weigh the government’s
evidence against it.” Id.
Harris and Carwell objected to the government’s motion to
preclude an entrapment defense, but neither of them proffered
any evidence in support of the defense. Instead, Harris and
Carwell relied solely on evidence admitted during the
government’s case-in-chief, mainly the recorded transcripts of
their meetings with Moore, Agent Gomez, and the other
12 Nos. 11-3519, 11-3627, 12-1016, and 12-1290
defendants. Thus, the court is left with an evaluation of the
government’s evidence in order to determine whether there is
sufficient evidence from which a reasonable jury could find
entrapment.
Mayfield also observed that predisposition is more amena-
ble to pretrial disposition than inducement because predisposi-
tion is a “probabilistic question” that is “quintessentially
factual.” Id. Here, both inquiries were appropriately resolved
before trial, in large part because of the absence of a proffer
from Harris and Carwell. United States v. Hall, 608 F.3d 340, 345
(7th Cir. 2010) (“It would be unusual for the government’s
case-in-chief to reveal a defendant’s lack of predisposition.
Except in unusual circumstances that we have trouble imagin-
ing, a defendant would seem to need to present some affirma-
tive evidence of entrapment”).
A. Inducement
Inducement means more than “mere government solicita-
tion of the crime; the fact that government agents initiated
contact with the defendant, suggested the crime, or furnished
the ordinary opportunity to commit it is insufficient to show
inducement.” Mayfield, 2014 WL 5861628 at *17. Instead,
inducement means solicitation “plus some other government
conduct that creates a risk that a person who would not
commit the crime if left to his own devices will do so in
response to the government’s efforts.” Id. (emphasis in origi-
nal). Such conduct may include “repeated attempts at persua-
sion, fraudulent representations, threats, coercive tactics,
Nos. 11-3519, 11-3627, 12-1016, and 12-1290 13
harassment, promises of reward beyond that inherent in the
customary execution of the crime, pleas based on need,
sympathy, or friendship, or any other conduct by government
agents that creates a risk that a person who otherwise would
not commit the crime if left alone will do so in response to the
government’s efforts.” Id.
Harris and Carwell argue that the promise of obtaining a
large amount of drugs, in addition to “hundreds of thousands
of dollars” of actual cash on hand, qualifies as improper
inducement. This argument has been considered and repeat-
edly rejected. Harris and Carwell were “presented with the
same temptation faced by any person contemplating the
robbery of a drug stash house: the chance to acquire quickly a
large amount of drugs that could be resold for a big profit.”
Hall, 608 F.3d at 344; see also United States v. Millet, 510 F.3d 668,
677 (7th Cir. 2007). The promise of drugs plus cash does not
alter the analysis. See Millet 510 F.3d at 677 (“this case stands in
stark contrast to the classic example of extraordinary induce-
ment, i.e., where ‘the police offered a derelict $100,000 to
commit a minor crime that he wouldn’t have dreamed of
committing for the usual gain that such a crime could be
expected to yield, and he accepted the offer and committed the
crime...’”).
Cases such as Hall and Millet use the term “extraordinary
inducement.” In Mayfield, the court clarified the meaning of
this terminology by looking to the Supreme Court’s founda-
tional entrapment cases—Sorrels, Sherman, and Jacobson. In
those cases, the entrapment defense was available because the
14 Nos. 11-3519, 11-3627, 12-1016, and 12-1290
government’s solicitation of the crime was “accompanied by
subtle and persistent artifices and devices that created a risk
that an otherwise law-abiding person would take the bait. The
ploys were not ‘extraordinary’ in the strong sense of the word,
but they exceeded the typical sting in which the government
merely offers an ordinary opportunity to commit a crime,
without more.” Mayfield, 2014 WL 5861628 at *17.
Harris and Carwell were not subject to anything that would
transform the government’s solicitation into something more
than an “ordinary opportunity to commit a crime.” During the
planning and solicitation of the robbery, Moore (the confiden-
tial informant) stated that he was going to “work on” securing
Harris’s participation. However, Moore also stated that he
wouldn’t “waste his time” trying to convince Harris to join the
conspiracy, and that the robbery would go forward with or
without Harris. Agent Gomez (Loquito) repeated the same
sentiments later in front of all of the defendants, telling them
that he would “find another crew” if they wanted to back out.
Thus, the offer was a take-it-or-leave-it proposition. In Mayfield,
by contrast, the government “paired the reward of a stash-
house robbery with an extended campaign of persuasion that
played on Mayfield’s financial need and culminated in a veiled
threat of reprisal from a vicious street gang.” Id. at *24. Noth-
ing of the sort occurred here. Where the government does
nothing more than make a stash house robbery available, there
is no inducement under the law of entrapment.
Nos. 11-3519, 11-3627, 12-1016, and 12-1290 15
B. Predisposition
A defendant can be considered predisposed if he was
“ready and willing” to commit the charged crime and “likely
would have committed it without the government’s interven-
tion, or actively wanted to but hadn’t yet found the means.” Id.
at *21. Predisposition is measured “at the time the government
first proposed the crime, but the nature and degree of the
government’s inducement and the defendant’s responses to it
are relevant to the determination of predisposition.” Id. Prior
convictions for similar offenses are “relevant but not conclusive
evidence of predisposition; a defendant with a criminal record
can be entrapped.” Id.
Carwell’s predisposition is aptly demonstrated by his
overwhelming enthusiasm for the venture. Carwell explained
how “hungry” he was for the opportunity, an opportunity that
he and the other defendants had been waiting on for years.
Carwell even reveled in how much money he was going to
make by “flooding the city” with his share of the cocaine. Id. at
*19 (“the defendant’s response to the government’s offer may
be important evidence of his predisposition”). Given that the
government’s offer was an ordinary opportunity to engage in
criminal activity for profit, Carwell’s reaction to the offer is
powerful evidence that he was predisposed. Id. (“This is where
the conceptual overlap between the two elements becomes
important: The character and degree of the inducement—and
the defendant’s reaction to it—may affect the jury’s assessment
of predisposition”).
16 Nos. 11-3519, 11-3627, 12-1016, and 12-1290
Harris argues that his refusal to get into Agent Gomez’s
van, and then his refusal to follow Gomez into the gated part
of the storage facility, demonstrates that he was reluctant to
commit the robbery. Id. at *20 (“the defendant’s reluctance to
commit the crime looms large in the analysis of predisposi-
tion”); see also Pillado, 656 F.3d at 766 (“the most significant fact
is whether the defendant was reluctant to commit the of-
fense”). Accepting these facts as true, Harris still fails to meet
the low threshold created in Mayfield to establish a lack of
predisposition. Harris, like Carwell, willfully participated in
the planning for the execution of the stash house robbery, and
he arrived at the rendezvous point on time, fully-armed, and
prepared to take action. In this context, Harris’ reluctance to
follow certain aspects of the plan is not enough to show a lack
of predisposition to commit the robbery.
Finally, Harris had a four-year-old conviction for unlawful
use of a weapon for entering a house with a firearm and a
three-year old aggravated battery conviction for kidnaping and
beating a fellow inmate in the Kane County Jail. These convic-
tions demonstrate that Harris was predisposed to use guns and
commit violence in violation of the law. Carwell had an 18-
month old conviction for delivery of a controlled substance—9
grams of cocaine—which demonstrates that he was predis-
posed to join a drug trafficking conspiracy.
***
In sum, no reasonable jury could find that either Harris or
Carwell were entrapped. Therefore, the district court did not
err in precluding the defense at trial.
Nos. 11-3519, 11-3627, 12-1016, and 12-1290 17
III. Sufficiency of the Evidence
All of the defendants argue that the evidence was insuffi-
cient to convict them beyond a reasonable doubt of conspiring
to possess with intent to distribute five kilograms or more of
cocaine. 21 U.S.C. §846. In making this argument, the defen-
dants face a “formidable hurdle.” United States v. Kindle, 698
F.3d 401, 405 (7th Cir. 2012). We construe the record “in the
light most favorable to the prosecution, making all reasonable
inferences in its favor, and affirm the conviction so long as any
rational trier of fact could have found the defendant to have
committed the essential elements of the crime.” United States v.
Mota, 685 F.3d 644, 650 (7th Cir. 2012). “Overturning a guilty
verdict for lack of evidence is serious business; we are essen-
tially asked to take the case out of the jury’s hands, something
we will do ‘only if the record contains no evidence, regardless
of how it is weighed, from which the jury could find guilt beyond
a reasonable doubt.’” Kindle, 698 F.3d at 406 (quoting Mota, 685
F.3d at 650) (emphasis added in Kindle).
To obtain convictions under §846, the government needed
to prove that the defendants “agreed to acquire cocaine for
distribution.” United States v. Walker, 673 F.3d 649, 654 (7th Cir.
2012). Carwell was very clear in explaining his goals—to rob
the stash house, divide the cocaine among his co-conspirators,
and then “flood the city” with cocaine. The other defendants
were not so explicit, but the evidence supporting their guilt
was overwhelming nonetheless. The day before the robbery, all
of the defendants discussed how to execute the robbery.
Specifically, the defendants confirmed that the only way to get
18 Nos. 11-3519, 11-3627, 12-1016, and 12-1290
all fifteen kilograms of cocaine was to jointly invade the stash
house. A jury could “reasonably believe that no sane person
would rob a stash house guarded by armed gang members to
score some recreational drugs for personal use. For a jury to
reach such a conclusion hardly requires the impermissible
piling of inference upon inference, but rather is the sort of
rational result from circumstantial evidence we ask juries to
determine every day.” United States v. Lewis, 641 F.3d 773, 782
(7th Cir. 2011); see also United States v. Spagnola, 632 F.3d 981,
987 (7th Cir. 2011) (“The evidence was sufficient to show that
[the defendants] conspired to obtain the cocaine for re-distribu-
tion; any uncertainty as to precisely how they would sell the
drugs does not upset the verdict”). Because there was sufficient
evidence for the jury to conclude that the defendants agreed to
commit a drug trafficking crime, there was also sufficient
evidence for the jury to conclude that the defendants were
carrying firearms in connection with that crime. 18 U.S.C.
§924(c).
For similar reasons, the district court correctly rejected the
defendants’ proposed non-pattern jury instruction: “A planned
robbery of a drug stash house, without more, does not consti-
tute a conspiracy to possess drugs with the intent to distribute
them.” To repeat, a properly instructed jury is entitled to draw
the inference that a plan to rob fifteen kilograms of cocaine
from a house protected by armed criminals amounts to an
agreement to acquire cocaine for distribution. In that respect,
the proposed instruction was an incorrect statement of law. It
was also confusing and unnecessary. “Unless it is necessary to
give an instruction, it is necessary not to give it, so that the
Nos. 11-3519, 11-3627, 12-1016, and 12-1290 19
important instructions stand out and are remembered.” United
States v. Hill, 252 F.3d 919, 923 (7th Cir. 2001).
IV. Evidentiary Ruling
Harris argues that the district court violated his constitu-
tional right to confront an adverse witness by not allowing him
to cross-examine Agent Gomez about why the final transcript
of the August 15 meeting attributed one line—“So the plan is[,]
look (unintelligible)”—to Harris, whereas an earlier draft of the
transcript attributed that line to someone else. This ruling is
reviewed for an abuse of discretion, and it is subject to reversal
only if “no reasonable person could take the view adopted by
the trial court.” United States v. Vargas, 552 F.3d 550, 554 (7th
Cir. 2008).
Harris wanted to question Agent Gomez about the discrep-
ancy between the draft transcript and the final transcript in an
effort to establish that the government wrongfully attributed
this statement to Harris. The district court ruled that there was
no evidentiary basis to question Gomez about the draft
transcript because Gomez could not say if he had prepared or
reviewed the draft in the first instance. This was a reasonable
justification to preclude the admission of the draft transcript,
not an abuse of discretion.
Moreover, while the district court admitted the “final”
transcripts into evidence, the court instructed the jury that it
was up to them to decide whether the transcripts accurately
reflected the recordings. Tr. at 71-72. On top of that, the
20 Nos. 11-3519, 11-3627, 12-1016, and 12-1290
government never mentioned or attempted to attribute the line
to Harris in closing arguments. It didn’t need to, because the
evidence supporting Harris’ guilt was overwhelming. If the
district court erred, its error was harmless beyond a reasonable
doubt. United States v. Williams, 493 F.3d 763, 766 (7th Cir. 2007)
(“The test … is whether it appears ‘beyond a reasonable doubt
that the error complained of did not contribute to the verdict
obtained’”) (quoting Chapman v. Cal., 386 U.S. 18, 24 (1967)).
V. Sentencing
The defendants argue that they are entitled to re-sentencing
based on the doctrines of sentencing entrapment and sentenc-
ing manipulation. Sentencing entrapment occurs “when a
defendant who lacks a predisposition to engage in more
serious crimes nevertheless does so ‘as a result of unrelenting
government persistence.’” United States v. Knox, 573 F.3d 441,
451 (7th Cir. 2009) (citing United States v. White, 519 F.3d 342,
347 (7th Cir. 2008)). The court already explained how Harris
and Carwell were predisposed; Blitch and Washington were
similarly eager to participate in the robbery, and none of the
defendants were pressured by the government to accept the
offer to rob the stash house.
Sentencing manipulation is distinct from entrapment and
occurs when the government “procures evidence ‘through
outrageous conduct solely for the purpose of increasing the
defendant’s sentence under the Sentencing Guidelines.’” Knox
573 F.3d at 451. This circuit does not recognize sentencing
manipulation as a valid defense, but it “could be relevant to a
Nos. 11-3519, 11-3627, 12-1016, and 12-1290 21
district court’s application of the [18 U.S.C.] §3553(a) factors”
at sentencing. Id. at 452. Regardless, the argument is nonstarter
here because the defendants were sentenced to the statutory
minimum of 25 years’ imprisonment. United States v. Wilson,
129 F.3d 949, 951 (7th Cir. 1997) (district court may not use the
doctrine of sentencing manipulation to impose a sentence
below a statutory minimum).
Finally, the defendants argue that their sentences amount
to cruel and unusual punishment under the Eighth Amend-
ment, which “contains a narrow proportionality principle that
applies to noncapital sentences.” United States v. Nagel, 559 F.3d
756, 762 (7th Cir. 2009). A successful proportionality challenge
is “exceedingly rare,” and the Supreme Court’s precedent
“reflects how high the bar is set.” United States v. Gross, 437
F.3d 691, 693 (7th Cir. 2006) (collecting cases rejecting propor-
tionality challenges, including a 25-years-to-life sentence for
stealing golf clubs under California’s three-strikes law, Ewing
v. Cal., 538 U.S. 11, 22 (2003), a life sentence for a first-time
offender possessing 672 grams of cocaine, Harmelin v. Michigan,
501 U.S. 957, 996 (2003), and two consecutive 20-year sentences
for possession with intent to distribute 9 ounces of marijuana,
Hutto v. Davis, 454 U.S. 370, 370-71 (1982)). Conspiring to rob
a drug stash house containing a distribution-level amount of
cocaine is not a minor offense. Accordingly, this is not the “rare
case in which a threshold comparison of the crime committed
and the sentence imposed leads to an inference of gross
disproportionality.” Gross 437 F.3d at 692–93.
***
22 Nos. 11-3519, 11-3627, 12-1016, and 12-1290
For the foregoing reasons, the defendants’ convictions and
sentences are AFFIRMED.