United States v. Jerome Scott ( 2010 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 3, 2010*
Decided March 4, 2010
Before
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
Nos. 08-4282 & 09-1218
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
Nos. 07 CR 652-2, 07 CR 652-3
JEROME SCOTT &
CHARLES LAWRENCE, Elaine E. Bucklo,
Defendants-Appellants. Judge.
ORDER
In this consolidated criminal appeal, Jerome Scott and Charles Lawrence appeal
from respective criminal judgments sentencing them each to prison terms for conspiracy to
*
After examining the briefs and the records, we have concluded that oral argument
is unnecessary. Thus, the appeal is submitted on the briefs and the records. See FED. R.
A PP. P. 34(a)(2)(B).
Nos. 08-4282 & 09-1218 Page 2
possess with intent to distribute cocaine, 21 U.S.C. §§ 846, 841(a)(1), 18 U.S.C. § 2, and
consecutive sentences for possession of a firearm in relation to a drug trafficking crime, 18
U.S.C. § 924(c)(1)(A). Defendants argue that because they were subject to a longer
mandatory-minimum sentence under § 841(a)(1), the district court should not have
imposed a consecutive five-year sentence under § 924(c)(1)(A). We affirm.
Scott and Lawrence were charged in a multiple-count indictment in connection with
a government sting operation. A confidential informant approached another co-defendant
(not a party to this appeal) with a plan to rob a drug warehouse. That co-defendant
brought the plan to Scott and Lawrence and all agreed to assist the informant. All three
were eventually arrested and charged in connection with the plot. Both Scott and
Lawrence pleaded guilty in September 2008 and were sentenced in separate proceedings.
Scott was sentenced to 168 months’ imprisonment for the drug offense, below the properly
calculated range of 188 to 235 months, and a mandatory, consecutive 60 months under
§ 924(c)(1)(A). Lawrence was sentenced to 124 months’ imprisonment for the drug offense,
below the properly calculated range of 135 to 168 months, and a mandatory, consecutive 60
months under § 924(c)(1)(A). Because each defendant was found to be responsible for more
than 5 kilograms of cocaine, their respective drug counts carried a mandatory-minimum
sentence of 120 months’ imprisonment. 21 U.S.C. § 841(b)(1)(A). Both acknowledged at
sentencing that a consecutive, mandatory-minimum sentence on the gun charge was
correct.
On appeal defendants argue for the first time that the district court was incorrect to
give each of them a mandatory consecutive sentence under § 924(c)(1)(A); they rely instead
on an approach adopted by the Second Circuit determining that a district court may not
impose an additional consecutive term of imprisonment for violating § 924(c) if the term
would be shorter than the mandatory minimum required by another count of conviction.
See United States v. Williams, 558 F.3d 166, 168 (2d Cir. 2009); United States v. Whitley, 529
F.3d 150, 158 (2d Cir. 2008).
The defendants did not raise this issue before the district court and the government
argues that the defendants waived the argument by failing to do so. We disagree. To
waive an issue in a criminal matter, a defendant must intentionally relinquish a known
right, Johnson v. Zerbst, 304 U.S. 458, 464 (1938); United States v. Acox, No. 09-1258, 2010 WL
431698, at *1 (7th Cir. Feb. 9, 2010); United States v. Garcia, 580 F.3d 528, 541 (7th Cir. 2009).
But we construe waiver principles liberally in criminal matters to avoid unnecessary
waiver. See United States v. Farmer, 543 F.3d 363, 372 (7th Cir. 2008); United States v. Sumner,
265 F.3d 532, 539 (7th Cir. 2001). Although both defendants did acknowledge at sentencing
the mandatory, consecutive nature of § 924(c)(1)(A), such was the understanding of the
Nos. 08-4282 & 09-1218 Page 3
statute at that time. Defendants could not have intentionally relinquished their right to
challenge the consecutive, mandatory sentence if they then believed it foreclosed.
Even so, defendants’ argument cannot succeed. In United States v. Easter, we
recently rejected the Second Circuit’s approach and joined the majority of circuits that have
upheld the imposition of a mandatory, consecutive sentence under § 924(c)(1)(A)
irrespective of the other mandatory-minimum sentences to which the defendant is subject.
See United States v. Easter, 553 F.3d 519, 525 (7th Cir. 2009); see also United States v. Mitten, 592
F.3d 767, 778-79 (7th Cir. 2010) (reaffirming Easter). We decline to revisit the issue today.
The district court’s order is AFFIRMED.