United States v. William D. Beamon ( 2022 )

NONPRECEDENTIAL DISPOSITION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
Argued November 7, 2022
Decided November 15, 2022
Before
JOEL M. FLAUM, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
AMY J. ST. EVE, Circuit Judge
Nos. 21-2619, 21-2650, 21-2671 & 21-3211
Appeals from the United
UNITED STATES OF AMERICA, States District Court for the
Plaintiff-Appellee, Northern District of Indiana,
Fort Wayne Division.
v.
KYOMBE BOLDEN, et al., No. 1:17-cr-07 DRL-SLC
Defendants-Appellants.
Damon R. Leichty, Judge.
ORDER
All four appellants—Kyombe Bolden, William Beamon, Ronnie Burrus, and De-
metri Beachem—belonged to the 2500 gang in Indiana. An indictment charged them
with attacking three people (two members of a rival gang plus an innocent bystander).
All four pleaded guilty to three counts of violent assault in aid of racketeering, 18 U.S.C.
§1959(a), and three counts of using a firearm during that offense, 18 U.S.C. §924(c). The
firearms crime provides a minimum sentence of 120 months, consecutive to the sen-
tence on the substantive offense in which the firearm was used, but sentences on multi-
ple §924 convictions may run concurrently to each other. When negotiating the guilty
pleas, the four defendants, their lawyers, and the prosecutor all assumed that the dis-
trict court would impose concurrent sentences on the §1959 crimes and concurrent
Nos. 21-2619, 21-2650, 21-2671 & 21-3211 Page 2
sentences on the §924 crimes, but run the racketeering and firearms sentences consecu-
tively.
That is exactly what happened. Each defendant was sentenced to 120 months’
imprisonment on each firearms count. The firearms sentences run concurrently with
each other but consecutively to the racketeering sentences. The upshot is a total of 360
months for Beamon, 360 months for Burrus, 324 months for Bolden, and 288 months for
Beachem. All four defendants moved to withdraw their pleas, objecting to the district
court’s decision to calculate the advisory range by starting with the attempted-murder
Guideline rather than the assault Guideline. The judge denied these motions, observing
that the plea agreements left sentencing in the court’s hands and that the nature of the
charges (violent assault in aid of racketeering) did not determine the way cross-refer-
ences work in the Guidelines, which incorporate significant real-offense (as opposed to
charge-offense) principles.
Come the appeal, all four defendants have presented an argument never men-
tioned in the district court: instead of running the §924 convictions concurrently, the
judge should have merged them into a single §924 conviction for each defendant, so
that each would have a total of four convictions rather than six. This argument would
not affect the time to be spent in prison, but it would reduce each defendant’s special
assessment from $600 (six counts of conviction at $100 per count) to $400. The prosecu-
tor has conceded that merger is required by this circuit’s precedent. See United States v.
Cureton, 739 F.3d 1032, 1039–45 (7th Cir. 2014); United States v. Bloch, 718 F.3d 638, 643–
44 (7th Cir. 2013).
Defendants are not satisfied by the prospect of a remand whose only practical ef-
fect will be to shave $200 off of each one’s special assessment. Instead all four defend-
ants contend that they are entitled to have their pleas set aside—in other words, to ob-
tain the relief that they initially sought on the ground that the Guideline range was too
high. The prosecutor, though consenting to merger of the §924 counts, opposes any or-
der vacating the guilty pleas and convictions on the other four counts.
Appellate review proceeds under the plain-error standard, because the current
argument was not presented to the district judge. Error has been conceded, but it is not
clear, materially harmful error. (The difference between concurrent and merged sen-
tences is so slight that no one caught it in the district court.) And the final step of plain-
error review, finding that failure to correct the error would seriously undermine the
fairness or public reputation of judicial proceedings, see United States v. Olano, 507 U.S.
725, 735–37 (1993), has not been established. Defendants say that the district judge
should have told them about the way the federal unit of prosecution works when multi-
ple gun counts are based on temporally overlapping conduct. Maybe so, though “unit
Nos. 21-2619, 21-2650, 21-2671 & 21-3211 Page 3
of prosecution” is an esoteric concept even for many lawyers. But defendants care about
consequences rather than terminology. For each of these four defendants, the only prac-
tical difference between concurrent and merged §924 sentences is the $200 reduction in
special assessments. We do not think it remotely likely that, if the judge had told each
defendant that he would owe $200 less than his lawyer had informed him, any of the
four would have balked at entering the plea and insisted on a trial. Vacating these pleas,
not enforcing them, is what would bring the judicial system into disrepute.
All four defendants’ plea agreements contain waivers of any right to contest the
sentence on appeal. But two of the four (Burrus and Beachem) nonetheless contest their
sentences, arguing on both constitutional and Guidelines grounds that the district judge
should not have used the attempted-murder Guideline as a starting place. Their consti-
tutional argument, which Beamon joins, is incompatible with United States v. Watts, 519
U.S. 148 (1997), and we do not address the Guidelines argument given the waiver.
Burrus and Beachem invoke United States v. Litos, 847 F.3d 906, 910–11 (7th Cir.
2017), for the proposition that substantial arguments may be considered notwithstand-
ing waivers. That is not what Litos holds, and it would effectively prevent defendants
from negotiating for benefits in exchange for waivers. If a waiver can be enforced only
when the district judge is right, then the waiver has no effect; the court of appeals al-
ways would reach the merits and try to classify some errors as worse than others. The
waiver blocks the whole effort. (Most appellate waivers allow defendants to contend
that a sentence is illegal, in the sense that it exceeds the statutory maximum, but none of
our four defendants makes such an argument.)
Litos dealt with a different problem. Four defendants were sentenced to pay resti-
tution. One of the four negotiated an appellate waiver. Litos first held that the award of
restitution was erroneously large and then asked what to do about the fourth defend-
ant, who had waived this argument on appeal. The court observed that the award was
joint and several, which meant that it could be collected in full of any of the defendants.
If only three defendants benefitted from a reduction, the fourth would remain liable for
the whole amount. Enforcing the appellate waiver in that circumstance, we observed,
would make the defendant worse off (his effective restitution obligation would be
quadrupled on appeal). The function of an appellate waiver is to commit factual and le-
gal questions to a single judge (the district judge) rather than to four (one district judge
plus three circuit judges), not to expose any defendant to the possibility that a compo-
nent of the sentence would become more onerous on appeal. That’s why we reviewed
the fourth defendant’s restitution obligation in Litos. Nothing remotely similar occurred
in this appeal. Defendants agreed to accept a single district judge’s resolution of all dis-
putes about their sentences, and we hold them to that bargain.
Nos. 21-2619, 21-2650, 21-2671 & 21-3211 Page 4
The sentences are vacated to the extent that we remand with instructions to
merge the §924 sentences into a single conviction for each of the four appellants. The
judgments are otherwise affirmed.