United States v. Dumes, Marvin , 313 F.3d 372 ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 00-1482, 00-2650, 00-2957, 00-3058, 00-3371, 00-3373,
00-3374, 00-3375, 00-3376, 00-3377, 00-3401, 00-3446,
01-2890 & 01-4252
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARVIN DUMES, DERRICK OUTLAW, TOMMY JACKSON,
TERONE JOHNSON, BENNIE T. HOUSTON, JOSEPH R.
HENDERSON, LYNN EDWARD GRAVES, DAVID L. BENNETT,
MARLON E. McREYNOLDS, ROBERT O. WILLIAMS, JAMIE
L. THOMAS, JOSEPH PALMER, and BYRON K. KINCHELOW,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
Nos. IP 99-59-CR-02, -03, -04, -05, -06, -08, -09, -10,
-15, -17, -19-M/F and IP 99-74-CR-M/F—
Larry J. McKinney, Chief Judge.
____________
ARGUED SEPTEMBER 4, 2002—DECIDED NOVEMBER 15, 2002
____________
Before BAUER, ROVNER, and EVANS, Circuit Judges.
EVANS, Circuit Judge. Thirteen defendants are before
us in appeals1 that grow out of a 1999 superseding indict-
1
The appeals, except for appeal No. 00-3374 which was submit-
ted on the briefs, were presented to us in two separate oral argu-
ments on September 4, 2002. We have consolidated the cases
in this opinion.
2 Nos. 00-1482, 00-2650, 00-2957, 00-3058, 00-3371,
00-3373, 00-3374, 00-3375, 00-3376, 00-3377,
00-3401, 00-3446, 01-2890 & 01-4252
ment charging 22 defendants with conspiracy to possess
with intent to distribute cocaine and cocaine base and
with distribution of those drugs in quantities in excess of
five kilograms, in violation of 21 U.S.C. §§ 841(a)(1) and
846. In addition, there were several substantive counts
of drug trafficking and weapons violations. Defendant
Lynn Graves’ case was severed because of his health prob-
lems. Eleven of those charged entered guilty pleas and
eight were convicted after a 7-week jury trial. Byron
Kinchelow was charged in a separate indictment and en-
tered a guilty plea.
One of the major contentions in the appeals is that the
evidence obtained from wiretaps, as well as searches of
various residences, should have been suppressed. Other
issues raised include whether 21 U.S.C. § 841(b) is consti-
tutional; whether the evidence was sufficient to convict
certain of the defendants of conspiracy; whether certain
defendants should have been allowed to withdraw guilty
pleas for various reasons; whether certain defendants
were sentenced in violation of Apprendi v. New Jersey,
530 U.S. 466 (2000); and whether other errors were com-
mitted at sentencings. Tyrone Johnson’s counsel filed a
brief pursuant to Anders v. California, 360 U.S. 738 (1967).
The investigation of this case began in 1998 in the Bright-
wood neighborhood of Indianapolis, Indiana. Brightwood
is a large urban neighborhood identified as one of the
most drug-infested and dangerous areas of the city. Confi-
dential informants provided information and made con-
trolled buys of crack from defendant Bennie Houston. Pen
registers and trap and trace devices were installed on
Houston’s telephone and on telephones of other persons
identified by the informants. The telephone records re-
vealed a series of frequent, brief conversations among
Houston, Lee Williams, Robert Williams, Marlon McReyn-
Nos. 00-1482, 00-2650, 00-2957, 00-3058, 00-3371, 3
00-3373, 00-3374, 00-3375, 00-3376, 00-3377,
00-3401, 00-3446, 01-2890 & 01-4252
olds, and Kelvin Marion. Special Agent Frank Fabian of
the FBI believed that the men were planning and execut-
ing drug transactions. Eventually, through the wiretaps
and searches, it was learned that Lee Williams and Marlon
McReynolds ran a drug operation and that Joseph Palmer
also distributed cocaine in Brightwood. Palmer’s distribu-
tion business depended on the ability of Lee Williams
and McReynolds to acquire kilogram quantities of cocaine
from their supplier and to resell it to him. In turn, Williams
and McReynolds depended on Palmer to purchase cocaine.
In an interesting turn of events, Palmer and Williams
engaged in a little price fixing—agreeing on the minimum
price of cocaine in the neighborhood. Other defendants
were also shown to have distributed cocaine for the con-
spiracy and to have assisted in processing powder cocaine
into crack.
The evidence against the defendants came primarily
from six court-ordered wiretaps. 18 U.S.C. § 2518. The first
was a 30-day order, on December 4, 1998, for Houston’s
cellular phone. A 30-day order entered January 14, 1999,
and extended for two 30-day periods (on February 12 and
March 17, 1999) was entered for Lee Williams’ cellular
and residential phones. Finally, a 30-day order on Febru-
ary 4, 1999, extended for 30 days on March 5, 1999, was
ordered for McReynolds’ cellular and residential phones.
Section 2518 requires that each application for an
interception of a wire, oral, or electronic communication
include, among other things:
a full and complete statement as to whether or not
other investigative procedures have been tried and
failed or why they reasonably appear to be unlikely
to succeed if tried or to be too dangerous[.]
4 Nos. 00-1482, 00-2650, 00-2957, 00-3058, 00-3371,
00-3373, 00-3374, 00-3375, 00-3376, 00-3377,
00-3401, 00-3446, 01-2890 & 01-4252
Defendants Houston, Joseph Henderson, McReynolds,
Robert Williams, Jamie Thomas, and Palmer contend
that the applications did not establish the necessity for
the wiretaps. The argument begins with an attempt to
convince us to change the standard of review on the issue
of necessity. Defendants urge that Ornelas v. United
States, 517 U.S. 690 (1996), lends support to their claim
that our review should be de novo, rather than deferential.
We could stop here: it is well-established, both before
and after the decision in Ornelas, that the standard of
review we apply on the issue of necessity is abuse of
discretion. This is clear, for instance, from United States
v. Zambrana, 841 F.2d 1320 (7th Cir. 1988), through
United States v. Adams, 125 F.3d 586 (7th Cir. 1997),
all the way to our very recent decision in United States v.
Ceballos, 2002 WL 1968309 (7th Cir. 2002). Even though
the principle is well-established, the vigor with which it
is attacked in the present case perhaps justifies our giv-
ing the issue additional attention.
In Ornelas, the Court considered the proper standard
of review of findings that an investigatory stop was sup-
ported by reasonable suspicion and that a warrantless
search of a car is supported by probable cause. Indepen-
dent review was said to be necessary so appellate courts
could “maintain control of, and . . . clarify, the legal prin-
ciples.” It would, the Court said, “unify precedent.” At 697.
Nevertheless, the Court said, “[W]e hasten to point out
that a reviewing court should take care both to review
findings of historical fact only for clear error and to give
due weight to inferences drawn from those facts by resi-
dent judges and local law enforcement officers.” At 699.
As we see it, the problem the defendants have with
convincing us to change the standard of review on the
necessity issue is that the requirements for establishing
Nos. 00-1482, 00-2650, 00-2957, 00-3058, 00-3371, 5
00-3373, 00-3374, 00-3375, 00-3376, 00-3377,
00-3401, 00-3446, 01-2890 & 01-4252
necessity are far less complex than the issues of reason-
able suspicion or probable cause. In some sense, defen-
dants’ problem is not with the standard of review, but
with the legal standard set out in our cases. We said in
Zambrana that we will affirm a district court’s finding
that normal investigative procedures are not likely to
be successful as long as there was “a factual predicate in
the affidavit.” At 1330. In United States v. Farmer, 924
F.2d 647, 652 (1991), we said that the “government’s bur-
den of proving ‘necessity’ is not high.” In United States v.
Thompson, 944 F.2d 1331, 1340 (7th Cir. 1991), we pointed
out that the statute does not require “that other investi-
gative procedures actually be implemented before an
order may be issued for the interception of wire commu-
nications, but only that the success of other methods of
investigation appear unlikely.” Again in Ceballos, we stated
that the government’s burden is not high. We found nec-
essity in Zambrana based on evidence that informants
and undercover agents could not infiltrate the conspir-
acy in order to establish evidence to support a prosecu-
tion and in Adams because the application stated that
physical surveillance might alert the subject to the fact
that an investigation was in progress.
Given the nature of the inquiry into necessity, we are
not convinced that the standard of review, which we
have used for many years, should be changed. Having
said that, in this case we find it clear under any standard
of review that the government has made an adequate
showing of necessity.
The affidavit in support of the December 4 wiretap on
Houston’s cellular phone set out the efforts made to use
traditional methods of investigation. Physical surveillance
had been conducted almost exclusively with an FBI
aircraft and a minimal number of ground vehicles to
6 Nos. 00-1482, 00-2650, 00-2957, 00-3058, 00-3371,
00-3373, 00-3374, 00-3375, 00-3376, 00-3377,
00-3401, 00-3446, 01-2890 & 01-4252
avoid detection. Although physical surveillance had some
value, the agents were not successful in gathering suffi-
cient evidence of the drug storage locations, of quantities
of drugs, and of the source of supply. Increased physical
surveillance was also thought to increase the risk that
the investigation would be noticed by the targets. The
Brightwood section of Indianapolis is a 60-square-block
area in which the alleged dealers are well-known. Outsid-
ers, such as agents conducting surveillance, would be
spotted. The affidavit also stated the obvious—that the
use of interviews or grand jury subpoenas of alleged
conspirators or their associates would tip them off. Search
warrants had failed to reveal the source of supply. Addi-
tionally, the affidavit explained the difficulty that con-
fidential informants and undercover agents had in trying
to infiltrate the organization, largely because of the close-
knit nature of the group. The limitations of other tradi-
tional methods, such as telephone toll records and pen
registers, were also set out.
The January 14 application was more extensive in
describing the less than fully successful investigatory
activities which had been used. The affidavit pointed out
that the December 4 wiretap itself failed because the
targeted cellular phone was disconnected. Again, the
February 4 affidavit led the judge to conclude that the
wiretaps to that point had not revealed sources of supply,
methods of money storage, or laundering. Also, one of
the two informants had quit, cutting down the tradi-
tional methods of investigation which were possible. On
February 12, the judge noted that the wiretaps had
failed to disclose the methods and timing of delivery of
drugs, the method of storing the proceeds, or laundering
the profits. Traditional methods of investigation were
not succeeding in securing evidence or penetrating the
Nos. 00-1482, 00-2650, 00-2957, 00-3058, 00-3371, 7
00-3373, 00-3374, 00-3375, 00-3376, 00-3377,
00-3401, 00-3446, 01-2890 & 01-4252
organization. By the time of the affidavits of March 5
and 17, there had been interviews of an associate of the
conspiracy and the execution of a search warrant. The
court found that these techniques accomplished very
little. The government’s showing of necessity, we think,
was sufficient.
Defendants Palmer and Jamie Thomas contend that
the affidavit in support of the December 4 wiretap appli-
cation did not establish probable cause to believe the
telephone was being used to facilitate unlawful drug
transactions. This is an issue we review de novo, pursu-
ant to Ornelas. Our review of the affidavit, however, leads
to our independent conclusion that probable cause existed.
A confidential informant made controlled purchases of
cocaine from Houston in the fall of 1998. Houston used
the cellular phone to arrange the purchases, as well as
for other discussions relating to drug sales.
Palmer and Thomas also contend that the government
did not properly minimize intercepted phone conversa-
tions. The argument is based on the statistic that only 16
percent of the intercepted calls were minimized. This
argument is also unavailing.
Section 2518(5) requires that wiretapping be con-
ducted “in such a way as to minimize the interception of
communications not otherwise subject to interception . . . .”
Scott v. United States, 436 U.S. 128 (1978), established that
in evaluating whether the government had properly mini-
mized interceptions, the courts should proceed in a realis-
tic, commonsense fashion and not blindly rely on “the
percentage of nonpertinent calls intercepted.” At 140. The
percentages may provide assistance, but there may be
circumstances which make the interceptions reasonable.
For instance, the calls may have been very short. Others
8 Nos. 00-1482, 00-2650, 00-2957, 00-3058, 00-3371,
00-3373, 00-3374, 00-3375, 00-3376, 00-3377,
00-3401, 00-3446, 01-2890 & 01-4252
may have been one-time only calls. Some may have been
ambiguous or have involved coded language. Also, intercep-
tions which might be unreasonable later on may be rea-
sonable at the onset of an investigation. How widespread
the conspiracy is may also play a part in the analysis.
Following Scott, some courts have held that calls of less
than 2 minutes do not require minimization. See United
States v. Malekzadeh, 855 F.2d 1492 (11th Cir. 1988);
United States v. Apodaca, 820 F.2d 348 (10th Cir. 1987). We
certainly agree that minimization of short calls is not
required. The defendants did not exclude shorter calls
from their analysis. Their statistics are therefore not
particularly helpful. Also, they did not attempt to analyze
the number of nonpertinent longer calls which were not
minimized, nor do they point to any particular conversa-
tion that should have been minimized but was not. The
government’s minimization efforts have not been shown
to have been unreasonable.
Traditional investigative techniques also come under fire
in this appeal. Joseph Henderson, David Bennett, and
Byron Kinchelow contend that the searches of their resi-
dences were not supported by probable cause, that the
no-knock provisions in the search warrants were not
justified, and that the good-faith exception (to the ex-
clusionary rule) does not apply. Henderson also contests
the warrantless search of his vehicle. The warrants for
Henderson’s and Kinchelow’s residences were issued by
Magistrate Judge Kennard P. Foster, and the warrant
for Bennett’s residence was issued by a Marion County
superior court commissioner. Here, under Ornelas, we
review the issue de novo. We start with a few bedrock
principles.
Probable cause exists when, given all the circumstances,
there is “a fair probability that contraband or evidence of
Nos. 00-1482, 00-2650, 00-2957, 00-3058, 00-3371, 9
00-3373, 00-3374, 00-3375, 00-3376, 00-3377,
00-3401, 00-3446, 01-2890 & 01-4252
a crime will be found in a particular place.” Illinois v.
Gates, 462 U.S. 213, 238 (1983). Affidavits in support of
a warrant must be interpreted in a commonsense way.
Gates. There must, however, be a “substantial basis for
determining the existence of probable cause.” United States
v. Leon, 468 U.S. 897, 915 (1984). Next, given the proper
circumstances, no-knock search warrant authorizations
are permissible under federal law. Richards v. Wisconsin,
520 U.S. 385 (1997). If evidence is obtained pursuant to
a search warrant unsupported by probable cause, it is
nevertheless only suppressed where the magistrate aban-
doned his detached and neutral role, or where the offi-
cers seeking the warrant were dishonest or reckless in
preparing the affidavit in support of the warrant, or
where those officers could not have had an objectively
reasonable belief in the existence of probable cause. Leon.
We find that suppression of the evidence is not required.
As to probable cause, in support of the warrant for Hen-
derson’s residence, the affiant stated that he had listened
to several hundred hours of recorded conversations and
therefore knew that the members of the conspiracy
were “cooking” crack cocaine. In one conversation, Hen-
derson told Lee Williams the he was “the man” on guns.
The affidavit also referred to references to Henderson’s
drug dealing and, lessening the possibility of mistaken
identity, in one conversation Lee Williams calls Hender-
son by name.
Henderson contends that the warrantless search of his
vehicle was unlawful. The district court found that it
was lawful under the automobile exception to the war-
rant requirement. That conclusion is clearly bolstered by
the fact that over 62 grams of crack, almost 4 grams
of cocaine hydrochloride, and over $5,000 in currency
were seized in Henderson’s house, and he had been ob-
10 Nos. 00-1482, 00-2650, 00-2957, 00-3058, 00-3371,
00-3373, 00-3374, 00-3375, 00-3376, 00-3377,
00-3401, 00-3446, 01-2890 & 01-4252
served using his vehicle while engaging in criminal ac-
tivity. We also note in passing that the search of the
vehicle yielded only a digital scale and one document, and
this scant discovery turned out to be the least of Hen-
derson’s worries.
The information in support of the warrant on Kin-
chelow’s residence came from an informant. It was de-
tailed and accurate information, sufficient to support the
warrant. United States v. Navarro, 90 F.3d 1245 (7th Cir.
1996). Also, three intercepted telephone calls were cited. In
one conversation, Kinchelow telephoned McReynolds
and told him he cooked a kilogram of cocaine. In another
conversation, Lee Williams and Kinchelow discuss what
would be an acceptable price for drugs. Similarly, the
application for the warrant to search Bennett’s resi-
dence contained probable cause. An informant person-
ally observed drugs being distributed from Bennett’s
residence. The informant had also overheard someone
say he had to take powder cocaine to Bennett’s house to
“cook” the drugs.
We also find the no-knock provisions acceptable under
the particular circumstances of the case. Bennett had
been arrested and convicted for several prior crimes
involving firearms. Drug dealers use weapons to protect
their contraband, and there was the possibility that evi-
dence would be destroyed. As to Henderson, there was
the conversation mentioned above in which Henderson
also said he would be transporting a gun to another per-
son. Henderson said he was in charge of the guns for
the conspiracy. Similarly, Kinchelow was known to be
an experienced dealer with a large quantity of drugs in
his possession and with the incentive to protect them.
Even were we not convinced that the warrants were
supported by probable cause, we would be compelled,
Nos. 00-1482, 00-2650, 00-2957, 00-3058, 00-3371, 11
00-3373, 00-3374, 00-3375, 00-3376, 00-3377,
00-3401, 00-3446, 01-2890 & 01-4252
pursuant to Leon, to find that the officers relied on them
in good faith. There is nothing to indicate that the issu-
ing judicial officers abandoned their roles as neutral and
detached decisionmakers, and we cannot find that the
applications for the warrants were recklessly presented.
We turn now to other issues. Houston, Palmer, and
Thomas think the evidence was insufficient to support a
verdict that they are members of the conspiracy. We
review the sufficiency of the evidence in the light most
favorable to the government and uphold the jury’s deci-
sion if “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States
v. Albarran, 233 F.3d 972 (7th Cir. 2000). To prove a
conspiracy to possess and distribute cocaine, the govern-
ment must prove that two or more people agreed to com-
mit the unlawful act and that the particular defendant
knowingly and intentionally joined in the agreement. No
overt act need be charged or proven, and guilt may be
inferred by the circumstances and the conduct of the
parties. United States v. Shabani, 513 U.S. 10 (1994);
United States v. Gardner, 238 F.3d 878 (7th Cir. 2001). We
have no trouble concluding that the evidence presented
here met—and indeed exceeded—this standard.
Houston negotiated the price he would pay for cocaine
according to the price he knew Lee Williams would pay
him. He allowed the members of the conspiracy to use
his residence to cook cocaine into crack. One coconspir-
ator, who pled guilty, observed more than a kilogram of
cocaine in Houston’s kitchen at a time when Palmer and
Thomas dropped in. He also observed McReynolds cook
cocaine into crack in Houston’s house. McReynolds fronted
drugs to Houston to sell.
12 Nos. 00-1482, 00-2650, 00-2957, 00-3058, 00-3371,
00-3373, 00-3374, 00-3375, 00-3376, 00-3377,
00-3401, 00-3446, 01-2890 & 01-4252
The evidence shows that Palmer distributed cocaine
and cocaine base in Brightwood for the conspiracy. His
success depended on the ability of Lee Williams and
McReynolds to obtain kilogram quantities of cocaine.
Williams and McReynolds, in turn, depended on Palmer
to purchase the cocaine. In fact, before McReynolds or-
dered cocaine from his supplier, he checked to see how
much Palmer wanted. Often cocaine was advanced to
Palmer on credit.
Similarly, McReynolds fronted cocaine to Thomas.
Williams and McReynolds discussed the money Thomas
owed them for fronted cocaine. At one point, when Thomas’
payment was short, McReynolds allowed him to pay later.
Thomas also found McReynolds an alternate source of
cocaine. Another time, Thomas asked McReynolds to get
a kilogram of cocaine for him for $27,000. This evidence,
and more we need not recall, was sufficient to allow a
reasonable jury to conclude that these men were mem-
bers of the conspiracy.
Several defendants raise issues regarding guilty pleas
and sentencing proceedings. Defendants Kinchelow and
Tommy Jackson contend that they should have been
allowed to withdraw their pleas. We review a denial of
a motion to withdraw a guilty plea for an abuse of dis-
cretion. United States v. Febus, 218 F.3d 784 (7th Cir.), cert.
denied, 531 U.S. 1021 (2000).
Kinchelow argues that his plea was involuntary be-
cause he did not understand the possible sentence he
faced and he misunderstood his appellate rights when he
pled guilty. He says that he thought he would get a 10-
year sentence, and he thought he would be able to appeal
his conviction. He claims that a learning disability led
to his misunderstanding. We are somewhat nonplused
Nos. 00-1482, 00-2650, 00-2957, 00-3058, 00-3371, 13
00-3373, 00-3374, 00-3375, 00-3376, 00-3377,
00-3401, 00-3446, 01-2890 & 01-4252
by this argument, given that Kinchelow received a 120-
month sentence (which seems pretty much synonymous
with a 10-year sentence), and he had, in fact, filed an
appeal in which he raises objections to the search of his
home and to the wiretap evidence. Furthermore, the rec-
ord reveals that the judge conducted a proper Rule 11
colloquy, ascertaining that Kinchelow’s plea was know-
ing and voluntary. We see no reason to conclude that
the judge abused his discretion in refusing to let Kin-
chelow withdraw his guilty plea.
Tommy Jackson contends that he should have been
allowed to withdraw his guilty plea because he did not
know at that time that he was a “career offender” under
the sentencing guidelines. Jackson entered his guilty plea
within a few days of the start of the trial. At that time
he was asked the appropriate questions to determine
whether his plea was voluntary. He was clearly told
that his sentence would be governed by the guidelines.
And the judge warned him that he could be sentenced
above the guideline range. In fact, he was told he could
be sentenced up to 40 years imprisonment. Despite that
warning, he says that when he entered his plea he be-
lieved that his actual sentencing range was 60 to 63
months. Then, at the time of his sentencing hearing, it
became clear that he would be sentenced as a career
offender, bringing his sentencing range to 188 to 235
months. At this point, after considerable discussion, he
decided he wanted to withdraw his guilty plea. The hear-
ing was adjourned while the matter was briefed. At the
subsequent hearing, the judge reviewed the discussions
at the original plea hearing and determined that Jack-
son had been warned that his sentence had not yet been
calculated and would depend on guideline calculations.
The motion to withdraw the plea was denied. We see no
14 Nos. 00-1482, 00-2650, 00-2957, 00-3058, 00-3371,
00-3373, 00-3374, 00-3375, 00-3376, 00-3377,
00-3401, 00-3446, 01-2890 & 01-4252
abuse of discretion in this decision. Jackson’s sentence
of 188 months was well below what he was told he
could receive. It was, as everyone noted at the hearings,
also well below what Jackson could receive after trial, a
trial at which even Jackson concedes he would almost
certainly have been found guilty. We see no abuse of
discretion in the denial of Jackson’s motion to withdraw
his plea.
Marvin Dumes also pled guilty. He entered a plea agree-
ment in which he agreed to provide “full, complete, and
truthful information and testimony.” In turn, the gov-
ernment agreed to file, at sentencing, a statement that
he had provided substantial assistance, pursuant to
U.S.S.G. §5K1.1. He now complains that he should not
have been sentenced without the government’s provid-
ing the promised statement.
The statement wasn’t provided, but the government
contends its inaction was justified because Dumes breached
the agreement, thus releasing the government from its
obligation. What happened was that, during a debriefing,
the government found Dumes uncooperative and trouble-
some. The debriefing ended with Dumes saying he wanted
to go back to jail. Dumes then wrote a letter to the gov-
ernment, saying that “whatever you want me to say on the
stan[d], just tell me sir and I will do it.”
After receiving the letter, the government filed a mo-
tion to withdraw from the plea agreement, claiming that
Dumes had breached it because his letter revealed his
willingness to commit perjury. At a hearing on the matter,
the government informed the court that it would not be
filing a substantial assistance motion. Even after the
judge warned him that without a substantial assistance
motion there would be no basis for a downward departure
Nos. 00-1482, 00-2650, 00-2957, 00-3058, 00-3371, 15
00-3373, 00-3374, 00-3375, 00-3376, 00-3377,
00-3401, 00-3446, 01-2890 & 01-4252
from the guideline sentence, Dumes wanted to proceed
to plead guilty.
Dumes now argues that he should not have been sen-
tenced without the substantial assistance motion. In effect,
he says he did not breach the plea agreement; he was just
having a bad day. What is clear, however, is that if
Dumes had been allowed to testify and to be subjected
to cross-examination, the prosecutor would also have a
rather bad day. Dumes seriously undermined his value
as a witness by writing that he would testify to what-
ever the government wanted him to say. The government
was justified under these circumstances to refuse to
argue that Dumes provided substantial assistance. Addi-
tionally, in determining that he wanted to proceed to
plead guilty even after he was told there would be no
motion regarding substantial assistance, Dumes waived
the argument he is now making.
Derrick Outlaw objects to being sentenced on a base
offense level of 32. That level was a result of a finding
that he distributed cocaine base—or crack. He says it
was simple cocaine, which carries a lighter base offense
level. The basis of the finding that he was dealing crack
was a wiretapped conversation between Lee Williams
and Outlaw. Williams referred to Outlaw’s “cooking”
cocaine, which generally refers to producing crack. But
Outlaw says that to him, “cooking” means “rerocking”
cocaine, referring to the process of removing a portion
of cocaine hydrochloride, replacing it with an adulterant,
and compressing it to disguise it as a solid piece. The
compressed cocaine is then sold as pure. Agent Fabian
testified that everyone else referred to this latter process
as “rerocking” and to manufacturing crack as “cooking.” As
was his prerogative, the judge believed the agent and
doubted that Outlaw, alone, referred to rerocking as
16 Nos. 00-1482, 00-2650, 00-2957, 00-3058, 00-3371,
00-3373, 00-3374, 00-3375, 00-3376, 00-3377,
00-3401, 00-3446, 01-2890 & 01-4252
cooking. We have trouble finding fault with that belief.
The finding is not clearly erroneous.
A number of defendants raise sentencing issues aris-
ing out of Apprendi v. New Jersey, 530 U.S. 466 (2000),
which was decided after the convictions but before the
sentencings in this case. The defendants should be breath-
ing a sigh of relief that, based on prior precedent, we
must reject their arguments. No defendant was sentenced
in excess of the statutory maximum for the crimes of
which they were convicted. Remand—in which the pos-
sibility exists of increased sentences imposed consistent
with Apprendi—is unlikely to be in their best interest.
Specifically, the defendants who make the Apprendi
arguments are McReynolds, Palmer, Henderson, and
Thomas. Remembering that the presumptive statutory
maximum for the crimes committed is 20 years, we look
briefly at the sentences imposed. McReynolds received 240
months on the conspiracy count and a consecutive 121-
month sentence on a count charging possession with in-
tent to deliver. Palmer received 240 months for conspir-
acy. Henderson received 240 months for the conspiracy
and a consecutive 168 months for possession with intent
to deliver. Thomas, due to an enhancement we will dis-
cuss below, received 360 months for conspiracy. The top
of the guideline range for all four was life imprisonment.
So it is clear that, were the cases remanded, all four men
could face significantly longer sentences than they have
received.
McReynolds and Henderson argue, however, that it
was error to sentence them to consecutive sentences. The
government responds by saying that nothing in Apprendi
restricts the imposition of consecutive sentences, citing
United States v. Knox, 2002 WL 745990 (7th Cir. 2002).
In fact, §5G1.2(d) of the United States Sentencing Guide-
Nos. 00-1482, 00-2650, 00-2957, 00-3058, 00-3371, 17
00-3373, 00-3374, 00-3375, 00-3376, 00-3377,
00-3401, 00-3446, 01-2890 & 01-4252
lines requires the district court to impose consecutive
sentences to achieve the total guideline sentence. So the
government argues, though it did not cross-appeal the
issue, that McReynolds should have received 40 years (480
months), not the 361 months he received.
Because of the timing of this case, the able district
judge did not apply the harmless-error analysis we have
said is relevant to this situation. Apprendi says that
facts (other than a prior conviction) that raise a defen-
dant’s sentence above the statutory maximum for the
crime of conviction “must be charged in an indictment,
submitted to a jury, and proven beyond a reasonable
doubt.” At 476. So Apprendi requires that a drug type
and amount should be set out in the indictment and found
by the trier of fact beyond a reasonable doubt. We have
found, however, that errors in both the indictment and
the charge to the jury are subject to harmless-error analy-
sis. United States v. Adkins, 274 F.3d 444 (7th Cir. 2001). A
judge can find it clear beyond a reasonable doubt that a
properly instructed jury would have found the necessary
drug quantity. As we said, the government did not cross-
appeal the failure to apply harmless-error analysis, so
we need not consider whether the voluminous evidence
in this record would allow such a finding. All we need to
decide is that the sentences were not imposed in viola-
tion of the defendants’ rights, and clearly they were not.
Thomas claims he should not have been given a 2-point
enhancement pursuant to U.S.S.G. §2D1.1 for use of a
weapon in committing a drug trafficking crime. That
argument was not raised in the district court, so our re-
view is for plain error. Unites States v Westmoreland, 240
F.3d 618 (7th Cir. 2001). We see no error, plain or other-
wise. During the time the conspiracy was operating, the
residence Thomas used was the subject of a search warrant.
18 Nos. 00-1482, 00-2650, 00-2957, 00-3058, 00-3371,
00-3373, 00-3374, 00-3375, 00-3376, 00-3377,
00-3401, 00-3446, 01-2890 & 01-4252
Two firearms and ammunition for those firearms were
seized. Additionally, the length of Thomas’ sentence was
primarily a result of his having a prior drug conviction,
which under Apprendi is not a matter which must be
presented to the jury.
Lynn Graves believes that he was entitled to a reduced
sentence pursuant to U.S.S.G. §5C1.2 and that the judge
erred by finding that he possessed a weapon in connec-
tion with a drug trafficking offense. However, Graves
was dealing drugs, and loaded weapons were found at
his residence along with cocaine and over $10,000. There
was no error.
There are other arguments raised which do not require
discussion. We have, for instance, previously determined
that 21 U.S.C. § 841(b) is, in fact, constitutional. United
States v. Martin, 2002 WL 598557; United States v. Brough,
243 F.3d 1078 (7th Cir. 2001); cert. denied, 122 S. Ct. 203
(2001). Also, Palmer is mistaken in his belief that 3 years
is the maximum term of supervised release to which he
could be sentenced. It is the minimum term. See 21 U.S.C.
§ 841(b)(1)C. We also agree with counsel that Johnson
has no nonfrivolous appealable issues, and thus we ac-
cept his Anders brief and grant his motion to withdraw.
For all of these reasons, the convictions and sentences of
the defendants/appellants are AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-15-02