United States v. Fudge, Aja E.

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-3540, 01-3608, 01-3833, 02-2017 and 02-2018
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
AJA E. FUDGE, LAMONT C. GORDON,
EDWARD L. MCCHRISTIAN, and RODNEY R. RAINES,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Western District of Wisconsin.
Nos. 01-CR-9 and 01-CR-98—Barbara B. Crabb, Chief Judge.
____________
ARGUED JANUARY 23, 2003—DECIDED APRIL 10, 2003
____________
Before BAUER, CUDAHY, and COFFEY, Circuit Judges.
BAUER, Circuit Judge. This consolidated appeal stems
from a 35-count indictment against eleven individuals. The
defendants were involved in a major cocaine ring operat-
ing in Madison, Wisconsin. Four of the defendants pleaded
guilty and were sentenced to various prison terms. On
this appeal, three challenge the district court’s decision to
deny a downward departure in their sentences. Individu-
ally, each appellant raises particular issues concerning
their respective convictions and sentences. For the rea-
sons stated herein, we affirm the district court on all
aspects.
2 Nos. 01-3540, 01-3608, 01-3833, 02-2017 and 02-2018
BACKGROUND
The P-Stone Nation branch involved in this case is a
gang located in Madison, Wisconsin. It had a niche in the
crack cocaine market and when the federal government
became aware of its business it began to investigate. The
investigation entailed, among other things, undercover buys
of crack cocaine, surveillance, a telephone trap and trace,
arrests, and a Title III wiretap on three cellular phones.
It was this last method, the Title III wiretap, that has
become the source of much consternation in this appeal.
How the government obtained the wiretap deserves ade-
quate explanation.
On May 8, 2002, the government filed a sworn applica-
tion requesting authorization to intercept communications
from three telephones. The application asserted:
Pursuant to Section 2516 of Title 18, United States
Code, the Attorney General of the United States has
specially designated the Assistant Attorney General,
any acting Assistant Attorney General, any Deputy
Assistant Attorney General, or any acting Deputy
Assistant Attorney General of the Criminal Division
to exercise the power conferred on the Attorney Gen-
eral by Section 2516 of Title 18, United States Code, to
authorize this application. Under the power designated
to him by special designation of the Attorney General
pursuant to Order Number 95-1950 of February 13,
1995, an appropriate official of the Criminal Division
has authorized this application. Attached to this
application are copies of the Attorney General’s order
of special designation and the memorandum of authori-
zation approving this Application.
The application included a May 5, 2000 letter from the
Assistant Attorney General, Criminal Division, to the
Director of the Office of Enforcement Operations, signed
by a Deputy Assistant Attorney General. Also attached to
Nos. 01-3540, 01-3608, 01-3833, 02-2017 and 02-2018 3
the application was a cover letter to the United States
Attorney for the Western District of Wisconsin, signed by
Frederick D. Hess, Director of the Office of Enforcement
Operations, indicating that “a duly designated official of
the Criminal Division has authorized an application to be
made to a federal judge of competent jurisdiction for an
order under § 2518 of Title 18. . . .” The application also
contained a copy of order number 1950-95, signed by
then Attorney General Janet Reno. In addition, the affida-
vit of Shawn B. Johnson, the FBI’s lead agent in the P-
Stone Nation investigation was filed with the application.
The 46-page affidavit detailed the basis for the applica-
tion and the incriminating evidence the government had
obtained.
The court granted the application and issued an order
which authorized the interception. The order indicated
that the authorization was:
Pursuant to an application authorized by a duly desig-
nated official of the Criminal Division, United States
Department of Justice, pursuant to the power delegated
to that official by special designation of the Attorney
General and vested in the Attorney General by sec.
2516 of Title 18, United States Code, to inter-
cept wire communications.
With the wiretap in place, the government proceeded
in its investigation and infiltration of the conspiracy. The
government learned that Defendant-Appellant Aja Fudge
sold crack cocaine to three customers during the conspir-
acy. She also aided co-defendants Gordon, Winfield, Baker
and Daniels in obtaining crack cocaine for resale from co-
defendant Rodney Raines. In addition, Fudge assisted
Raines in collecting drug profits, procuring rental cars, and
answering customer complaints. In all, 40.2 grams were
purchased directly from Fudge.
In addition, officials learned that Defendant-Appellant
Gordon sold a $20 cocaine rock to an inveterate purchaser
4 Nos. 01-3540, 01-3608, 01-3833, 02-2017 and 02-2018
on a weekly basis. Evidence adduced from the wiretap
revealed Gordon incessantly discussing drug transac-
tions with co-defendants Davis and Baker. After Gordon’s
arrest on January 22, 2001, he made a full confession about
his drug activities. He admitted to having ten regular
customers, moonlighting as a backup to the P-Stones
when they were out of cocaine or were unavailable. He
also acknowledged that his source for cocaine was co-
defendant Rodney Raines.
During the course of the investigation, approximately
166 grams of crack cocaine were purchased, seized, or
obtained from Defendant-Appellant Edward McChristian.
Links between various co-conspirators and McChristian
were also established through the wiretap.
Finally, Defendant-Appellant Rodney Raines sold crack
cocaine to four customers, and had close relationships
with many of the co-defendants. From December 1999 to
April 2000, Raines brought four to six ounces of cocaine
back to Madison from Chicago on many occasions. Raines
also had scales in his apartment and aided Fudge in
bagging their cocaine base. From August 2000 to January
2001, Raines went to Chicago and returned with nine
ounces of cocaine approximately twice a month.
Based on the damaging information retrieved through
the wiretap and evidence obtained from a myriad of addi-
tional sources, a federal grand jury returned a 35-count
indictment against eleven individuals.1 The indictment
charged each defendant with conspiracy to possess with
the intent to distribute and conspiracy to distribute co-
caine base from January 1999 to January 2001. The other
counts charged various defendants with distributing co-
1
The indictment also charged Kenneth Baker, Mitchell Davis,
Paul Winfield, Graylin Cox, Sterling Daniels, Damien Cobbins
and Tyrone Rogers. Their cases are not at issue in this appeal.
Nos. 01-3540, 01-3608, 01-3833, 02-2017 and 02-2018 5
caine base and with possessing cocaine base with intent to
distribute.
On June 18, 2001, Aja Fudge pleaded guilty to distribut-
ing five grams or more of cocaine base on January 12,
2001. The district court found her relevant conduct ex-
ceeded 1.5 kilograms and sentenced her to 151 months
in prison.
Lamont Gordon, pursuant to a written plea agreement,
pleaded guilty to conspiracy to distribute and conspiracy
to possess with intent to distribute 50 grams or more of
cocaine base. The district court determined that Gordon
had personally distributed over a kilogram of crack co-
caine and that he was well aware of the distribution by
his fellow co-conspirators. The court sentenced him to
210 months in prison.
McChristian pleaded guilty to conspiracy to distribute
and conspiracy to possess with the intent to distribute
more than 50 grams of cocaine base. The court sentenced
McChristian to 184 months in prison.
The final appellant, Rodney Raines, was not as coopera-
tive as his partners. A warrant was issued following
Raines’ indictment on February 1, 2001. He was arrested
and eventually arraigned in the Western District of Wis-
consin on August 1, 2001. Raines was ordered detained
pending trial. On August 10, 2001, Raines escaped from
the Dane County Jail. Authorities apprehended him ten
days later and subsequently indicted him for his escape.
On January 2, 2002, Raines pleaded guilty to conspiracy
to distribute and conspiracy to possess with the intent to
distribute more than 50 grams of cocaine base and to
one count in the escape indictment. On April 11, 2002, the
district court sentenced Raines on both the drug charge
and the escape charge. The district court found that Raines’
conduct involved more than 1.5 kilograms of cocaine
base; two levels were added for his possession of a firearm
6 Nos. 01-3540, 01-3608, 01-3833, 02-2017 and 02-2018
during the course of the offense. The district court declined
to grant Raines a reduction for acceptance of responsibil-
ity because he obstructed the prosecution of the case.
The court sentenced Raines to life in prison on the drug
charge and to a five-year concurrent sentence on the escape
charge.
ANALYSIS
The first argument we address has been raised by all
the appellants except Lamont Gordon. They contend that
the district court erred because it declined to grant a
downward departure in their sentences based on dispar-
ities between sentences imposed in the Western District
of Wisconsin and those imposed nationwide. Raines,
however, faces a hurdle unique to his case: waiver. Fudge
and McChristian requested disparity departures at their
respective sentencing hearings. These sentencing hearings
occurred before Raines’ hearing. At Raines’ sentencing
hearing, counsel made objections limited to matters in the
presentence report, but never sought departure on the
basis of sentencing disparities. Waiver occurs when a
defendant or his attorney manifests an intention or ex-
pressly declines to assert a right. United States v. Cooper,
243 F.3d 411, 416 (7th Cir. 2001). Waiver extinguishes
the error and precludes appellate review. United States
v. Staples, 202 F.3d 992, 995 (7th Cir. 2000). We have
noted that failing to raise an issue before the district
court results in a waiver of that issue on appeal. United
States v. Shorty, 159 F.3d 312, 313 (7th Cir. 1998). Raines
never made a claim for departure based on disparities
in sentencing and thus waived his sentence disparity
argument.
We now turn to the merits of the remaining appellants’
argument concerning the sentencing disparity departure.
Using data from the United States Sentencing Commis-
Nos. 01-3540, 01-3608, 01-3833, 02-2017 and 02-2018 7
sion, the appellants show the average length of imprison-
ment for drug trafficking offenses in the Western District
of Wisconsin is approximately 70% greater than the na-
tional mean length of imprisonment for drug trafficking
offenses.2
We refrain from a prolonged analysis of these figures
simply because we cannot review this issue. We lack juris-
diction to review a district court’s discretionary refusal to
depart downward unless the sentence was imposed in
violation of the law or due to an incorrect application of
the guidelines. United States v. Brumley, 217 F.3d 905, 913
(7th Cir. 2000). Perhaps realizing this problem, the appel-
lants contend that the district court refused a downward
departure because it believed that it could not depart as
opposed to merely declining to do so. This claim is belied
by the record. As McChristian notes, the judge did not
simply dismiss the studies presented by the appellants;
she reviewed the numbers and offered criticisms. She also
recognized that the small size of the Western District of
Wisconsin skewed the results. The district court never
once indicated or even insinuated that she believed she
could not depart on the basis of sentencing disparities.
Moreover, the court faced this question on two separate
occasions, at Fudge’s sentencing hearing and later at
McChristian’s sentencing hearing. At the McChristian
hearing, Judge Crabb specifically noted “I am also not
inclined to give you a downward departure . . . based on the
statistics of this district and other districts.”
McChristian’s appeal was limited to this issue; we now
address each of the remaining appellants’ claims individu-
ally.
2
The statistical compilations were presented to the district court
and cover 1997 through 1999.
8 Nos. 01-3540, 01-3608, 01-3833, 02-2017 and 02-2018
A. Aja Fudge
1. Title III Requirements
Appellant Aja Fudge believes that the evidence obtained
from the wiretap should have been suppressed because
the application for the wiretap failed to comply with Title
III requirements and the showing of necessity pursuant
to 18 U.S.C. § 2518(1)(c). In addition, she claims the au-
thorization of the wiretap did not conform to Title III
requirements. Fudge’s challenges to the Title III intercep-
tions present questions of both law and fact. We review
questions of law de novo and findings of fact for clear error.
Fudge first claims that the application for the wire
tap failed to comply with 18 U.S.C. § 2518(1) and (1)(a)
because it failed to identify on oath or affirmation the
officer authorizing the wiretap. 18 U.S.C. § 2518(1) and
(1)(a) state:
Each application for an order authorizing or approv-
ing the interception of a wire, oral or electronic com-
munication under this chapter shall be made in writ-
ing upon oath or affirmation to a judge of competent
jurisdiction and shall state the applicant’s authority
to make such application. Each application shall in-
clude the following information:
The identity of the investigative or law enforcement
officer making the application, and the officer
authorizing the application.
18 U.S.C. § 2518(1) and (1)(a).
As previously noted, the application asserted:
Pursuant to an application authorized by a duly desig-
nated official of the Criminal Division, United States
Department of Justice, pursuant to the power delegated
to that official by special designation of the Attorney
General and vested in the Attorney General by sec.
Nos. 01-3540, 01-3608, 01-3833, 02-2017 and 02-2018 9
2516 of Title 18, United States Code, to intercept wire
communications.
In addition, the government included two letters specify-
ing the approval and authorization of an application and
an affidavit from the FBI’s lead agent in the investigation.
The government’s piecemeal approach resulted in an
application which tested the boundaries of complying
with statutory provisions. Without demeaning the impor-
tance of technical violations, we note that the Supreme
Court has said that “[not] every failure to comply fully
with any requirement provided in Title III would render
the interception of wire or oral communications ‘unlaw-
ful.’ ” United States v. Chavez, 416 U.S. 562, 574-75 (1974).
Fudge refrains from viewing the whole picture and
instead insists on looking at each document in isolation.
While the government was not a model of clarity as to
the identity of the authorizing official, we, like the dis-
trict court, are left with little doubt the authorizing offi-
cial was Kevin DiGregory. DiGregory, Deputy Assistant
General for the Criminal Division, is a person who Attor-
ney General Reno bestowed upon the power to authorize
wiretap applications.
The district court surmised that Assistant United States
Attorney Jeffery Anderson prepared his application to the
court before knowing which Department of Justice official
would sign the authorization letter. It further posited that
Anderson, instead of retyping a new draft, likely chose
simply to incorporate the authorization letter by attaching
it to the application. We agree with the district court’s
conclusion. There was no chicanery or deception involved
in this application process.
We next consider Fudge’s claim that the order authoriz-
ing the interception was improper. Like the wiretap
application, she challenges the absence of any indication of
10 Nos. 01-3540, 01-3608, 01-3833, 02-2017 and 02-2018
the person who authorized the application, in violation of
18 U.S.C. § 2518(4) and (4)(d). These sections provide:
Each order authorizing or approving the interception
of any wire, oral, or electronic communication under
this chapter shall specify:
The identity of the agency authorized to intercept the
communications, and of the person authorizing the
application.
18 U.S.C. § 2518(4) and (4)(d).
The order authorizing the interception of wire com-
munications did not specify by name the person who
authorized the application. It did, however, state that the
application was authorized “by a duly designated official
of the Criminal Division, United States Department of
Justice, pursuant to the power delegated to that official
by special designation of the Attorney General and vested
in the Attorney General.” At oral argument, the govern-
ment admitted that the order failed to identify who autho-
rized the application, but justified the absence by explain-
ing the district court left it out by mistake. We find better
solace in Chavez v. United States, 416 U.S. 562 (1974),
where the Supreme Court considered errors in the con-
text of 18 U.S.C. § 2518(4)(d). It noted, “[w]here it is estab-
lished that responsibility for approval of the application is
fixed in the Attorney General, however, compliance with
the screening requirements of Title III is assured, and there
is no justification for suppression.” Id. at 572. In the case
sub judice, the order specifically noted authorization was
made pursuant to a power delegated by the Attorney
General. Thus, we believe that under Chavez, the order’s
failure to identify the individual who authorized the ap-
plication did not violate any substantive requirement of
Title III and consequently does not warrant suppression.
Fudge has one final basis for challenging the wiretap. She
argues the application for the wiretap failed to make the
Nos. 01-3540, 01-3608, 01-3833, 02-2017 and 02-2018 11
required showing of necessity pursuant to 18 U.S.C. § 2518(1)(c). This section requires the government, in its applica-
tion for an interception order, to provide “a full and com-
plete statement as to whether or not other investigative
procedures have been tried and failed or why they rea-
sonably appear to be unlikely to succeed if tried or to be
too dangerous.” 18 U.S.C. § 2518(1)(c). These requirements
are set forth in the alternative and thus the government
need only establish one of the three. United States v.
Adams, 125 F.3d 586, 595 (7th Cir. 1997). Wiretaps do
not have to be used only as a last resort in an investiga-
tion. United States v. Thompson, 944 F.2d 1331, 1340 (7th
Cir. 1991). The evil we are trying to avoid is the routine
use of wiretaps as an initial step in the investigation. Id.However, the government’s burden of proving necessity
is not extraordinarily high, and our review is not hyper-
technical. United States v. Dumes, 313 F.3d 372, 378 (7th
Cir. 2002); United States v. Anderson, 542 F.2d 428, 431
(7th Cir. 1976).
Fudge’s first argument essentially contends that evi-
dence of a specific individual engaging in a criminal activ-
ity obviates the need for any additional, more probing,
investigative techniques. Unsurprisingly, she cites no case
law supporting this proposition. The government used
the wiretap for a number of reasons, not the least of
which was to obtain more incriminating evidence. We do
not find such a basis problematic.
Fudge next claims the wiretap was unnecessary be-
cause enough information existed to prosecute each con-
spirator individually. This argument ignores the fact that
this was an intricate investigation involving a large and
dangerous drug conspiracy. The government had exhausted
most, if not all, of the major methods for obtaining informa-
tion. The wiretap enabled them to avoid the logistical
quandaries that would arise if it had taken the litigation
approach Fudge suggests. Moreover, the ability to success-
12 Nos. 01-3540, 01-3608, 01-3833, 02-2017 and 02-2018
fully prosecute all the conspirators would be greatly com-
promised. This situation is akin to that of United States
v. Adams, 125 F.3d 586 (7th Cir. 1997). In Adams, we
upheld the grant of a wiretap because other methods of
investigation would be unsuccessful in identifying the
drug suppliers and in discerning the full scope of the
organization. Id. at 595-96. As in Adams, the government’s
use of the wiretap on the P-Stone Nation effectively supple-
mented the other sources of evidence and permitted them
to view the big picture, from the top of the organization
to the lowest rung. The wiretap was instrumental in filling
the gaps and securing critical evidence against the con-
spirators; we decline to impose implacable burdens that
would frustrate this result.
Fudge cites language from other circuits that appears
favorable to her position. We do not question the logic of
these decisions, rather, they are simply inapplicable to
her case. The underlying facts are clear. The wiretap was
not the first step of this investigation. Actually, the govern-
ment made various attempts to obtain evidence from
many sources. Fudge’s importance to the scheme and her
fungible duties necessitated a wiretap on these phones.
Finally, the wiretap was not just an “additional tool” in the
investigative process. Actually, it was the method that
enabled them to gauge the depth and scope of this conspir-
acy.
Shawn Johnson’s 46-page affidavit was submitted with
the application for an order authorizing a wiretap. It
detailed the need for the interception of wire communica-
tions. It set forth the alternative investigative proce-
dures and their lack of success. The affidavit clearly
establishes that the government met the statutory criteria
set forth in 18 U.S.C. § 2518(1)(c). The district court’s grant
of the wiretap and admission of the evidence obtained
through it was not an abuse of discretion.
Nos. 01-3540, 01-3608, 01-3833, 02-2017 and 02-2018 13
2. Relevant Conduct
Fudge next argues that the district court erred when
it found her relevant drug conduct was more than 1.5
kilograms of crack cocaine. We review the district court’s
factual findings regarding the quantity of drugs attribut-
able to a defendant for clear error and we affirm unless
we have a definite and firm conviction that a mistake
has been made.
Fudge contends that the court did not make a detailed
finding as to how it arrived at a figure of more than 1.5
kilograms. Fudge also argues that the district court im-
properly deemed transactions by other co-defendants to
be foreseeable to Fudge and therefore attributable to her.
To support these arguments, Fudge cites United States
v. McEntire, 153 F.3d 424 (7th Cir. 1998). In McEntire,
we held that a court must make an explicit finding as to
the drug quantity and offense level and how it arrived at
the sentence. Id. at 435. We also noted that a sentenc-
ing court should state the reasons why each individual
defendant was aware of or reasonably foresaw the particu-
lar amount of drugs attributed to her. Id.The case against Fudge is rife with strong, direct and
uncontradicted evidence from a myriad of reliable sources.
Contrary to Fudge’s contentions, this case is distinguish-
able from United States v. Palmer, 248 F.3d 569 (7th Cir.
2001). In Palmer, we vacated the defendant’s sentence
because he pleaded guilty to a small amount (4.7 grams)
of crack cocaine, yet was held accountable for more than
150 grams. Unlike Palmer, Fudge admitted she was in-
volved with a substantial amount (1,395.47 grams) of
crack cocaine. Moreover, the district court adopted the
findings of the Presentence Investigation Report (“PSR”)
which painstakingly set forth the amount of drugs in-
volved in the conspiracy as a whole, and the quantities
attributed to the individual defendants. As the PSR pro-
14 Nos. 01-3540, 01-3608, 01-3833, 02-2017 and 02-2018
vided, and the district court adopted, three witnesses
described cocaine transactions with Fudge in addition to
four co-defendants who described continuous dealings
with her. At the sentencing hearing, the district court
noted that the strength of the evidence against Fudge
was overwhelming and that she served as Raines’ “alter
ego” and “assistant.” The court later noted that the evi-
dence showed “she was a very key player in this conspir-
acy and that she was very, very active in it.” The court
summed up its conclusions, finding that Fudge conspired
to distribute more than 30 kilograms of cocaine base, an
estimate “derived from witness and co-defendant state-
ments, cocaine base seized or controlled buys and ar-
rests and wiretap transfers.”
In our opinion, the district court fully complied with the
letter and spirit of both this Court’s precedent and the
Sentencing Guidelines. The court made explicit findings
as to the drug quantity and offense level and explained
how she arrived at the sentence. Furthermore, the court
emphasized the key role Fudge played in the conspiracy
and consequentially, why she was being held accountable
for more than 1.5 kilograms. The district court did not err
in its sentencing determination.
B. Lamont Gordon
Gordon, like Fudge, also challenges the district court’s
conclusion that his relevant drug conduct included more
than 1.5 kilograms of cocaine base. He argues that the
district court erred because it failed to establish that the
drug quantity was foreseeable to Gordon. As noted above,
we review for clear error.
Gordon asserts that the sentencing hearing was sus-
pect because there were no witnesses presented and the
court relied heavily on the findings presented in the PSR.
This contention ignores our prior rulings. We have held
Nos. 01-3540, 01-3608, 01-3833, 02-2017 and 02-2018 15
that a district court may rely upon any information, “in-
cluding a PSR or trial notes, so long as that informa-
tion bears sufficient indicia of reliability to support its
probable accuracy.” (internal quotes omitted). United States
v. Hickok, 77 F.3d 992, 1009 (7th Cir. 1996). Gordon does
not question the reliability of the PSR; rather, he chal-
lenges the use of the PSR. Our precedent is clear; a district
court’s reliance on the PSR is entirely legitimate, and
thus, Gordon’s argument fails.
Gordon’s also claims that the 30 kilograms of cocaine
attributed to the conspiracy were not foreseeable as to him.
In determining whether the drug quantities were reason-
ably foreseeable to the defendant, we examine the scope
of the defendant’s agreement with the other conspirators.
United States v. Edwards, 945 F.2d 1387, 1392 (7th Cir.
1991). Gordon cites Application Note 6 of the Sentencing
Guidelines, § 1B1.3 as support for his position. Application
Note 6 states in pertinent part:
Defendant P is a street-level drug dealer who knows
of other street-level drug dealers in a geographic
area who sell the same type of drug as he sells. Defen-
dant P and the other dealers share a common source
of supply, but otherwise operate independently. Defen-
dant P is not accountable for the quantities of drugs
sold by the other street-level drug dealers because he
is not engaged in a joint undertaking of criminal ac-
tivity with him.
Application Note 6, § 1B1.3.
Gordon attempts to analogize his situation to this hypo-
thetical. His analogy is misplaced. Gordon did not act
independently of the P-Stones as he contends; rather, he
acted interdependently. This fact, bolstered by direct,
uncontradicted evidence supports a finding that Gordon
was involved in a joint criminal undertaking. The evi-
dence shows that he interacted with other co-conspirators
16 Nos. 01-3540, 01-3608, 01-3833, 02-2017 and 02-2018
on a weekly basis and arranged meetings and drug deals
with other co-conspirators. Gordon acted as a backup, a
reserve who would be called in to relieve the main players
when they got tired or were unavailable. He answered
phone calls for co-defendant Mitchell Davis and aided
him in drug deals. This is not mere knowledge of other
individuals selling drugs; this is prime involvement.
Gordon also highlights his peripheral status in relation
to the overall investigation. Gordon was not on any sur-
veillance videos, was heard on the wiretap only twice, and
was never mentioned in the 46-page affidavit in support
of an application for a wiretap. But Gordon disregards
his own damaging admissions. He admitted that he sold
approximately one-quarter ounce of crack cocaine every
two to three days, that he sold crack cocaine in Madison
for two years, and that he covered for other P-Stone mem-
bers. Moreover, Gordon’s status as a backup dealer does
not diminish his importance in the overarching conspir-
acy and does not hide the substantial amounts of drugs
he peddled.
Gordon made detailed statements regarding his knowl-
edge of the dealings of his co-conspirators which were
encapsulated in the PSR and adopted by the district
court. These statements amply support the district court’s
conclusion that the 30 kilograms of cocaine were reason-
ably foreseeable to Gordon. For these reasons, the court’s
decision concerning Gordon’s relevant conduct was not
clearly erroneous.
C. Rodney Raines
Raines makes a number of challenges concerning his
sentence; we address each in turn.
Nos. 01-3540, 01-3608, 01-3833, 02-2017 and 02-2018 17
1. Burden of Proof
Raines first contends that the district court improperly
enhanced his sentence based on his possession of a fire-
arm. The Sentencing Guidelines provides for a two-level
increase in the offense level “if a dangerous weapon was
possessed.” U.S.S.G. § 2D1.1(b)(1). This adjustment should
be applied “if the weapon was present, unless it is clearly
improbable that the weapon was connected with the of-
fense.” U.S.S.G. § 2D1.1(b)(1), Application Note 3. Whether
something is clearly improbable is a question of fact
we review for clear error. United States v. Vargas, 116 F.3d
195, 197 (7th Cir. 1997).
Raines argues that the court improperly shifted the
burden of having to establish that the firearm was not
part of the conspiracy. His claim ignores the long line of
cases that have addressed this issue. See, e.g., United States
v. Bjorkman, 270 F.3d 482, 492 (7th Cir. 2001); United
States v. Booker, 248 F.3d 683, 689 (7th Cir. 2001); United
States v. Tyler, 125 F.3d 1119, 1122 (7th Cir. 1997). The
government bears the initial burden of showing the defen-
dant possessed a weapon in a place where drugs were
present. Bjorkman, 270 F.3d at 492. Once the government
meets its burden, the burden shifts to the defendant, who
must then demonstrate that it is “clearly improbable” the
gun was connected with the drug offense. United States
v. Johnson, 289 F.3d 1034, 1042 (7th Cir. 2002). This is
precisely what occurred in this case. The government
established that Raines had a firearm in the room where
he was arrested after escaping from prison. At that point,
the government satisfied its burden and the burden
shifted to Raines to demonstrate the weapon was not
connected with the drug offense. He failed.
After entering the premises, authorities found Raines
hiding in a basement bedroom with a loaded subma-
chine gun which was not totally hidden and easily ac-
cessible to him. This qualifies as constructive possession.
18 Nos. 01-3540, 01-3608, 01-3833, 02-2017 and 02-2018
Raines does not fully consider our interpretation of the
enhancement under U.S.S.G. § 2D1.1(b)(1). We have held
that this enhancement may be applied if the defendant
possessed the firearm during the offense that led to the
conviction or during relevant conduct. United States v.
Johnson, 227 F.3d 807, 814 (7th Cir. 2000); United States v.
Berkey, 161 F.3d 1099, 1102 (7th Cir. 1998). Relevant
conduct includes all acts in the course of attempting to
avoid responsibility for that offense. U.S.S.G. § 1B1.3(a)(1).
Raines’ escape was part of the relevant conduct; it was
an attempt to avoid responsibility for the underlying
drug offense. Thus, the district court properly applied
the sentencing guidelines and correctly followed the bur-
den shifting provisions.
Raines also appears to assert that the district court
incorrectly added a two-level enhancement based on his
escape which was not part of the conspiracy. For the
reasons just noted, his argument fails. Relevant conduct
includes all acts in the course of attempting to avoid
responsibility for that offense. U.S.S.G. § 1B1.3(a)(1).
Raines’ escape was part of the relevant conduct; it was
an attempt to avoid responsibility for the underlying
drug offense.
2. Relevant Conduct
Raines contends that the district court erred in attribut-
ing more than 1.5 kilograms of cocaine base to him in
determining his relevant conduct. We review the district
court’s factual findings regarding the quantity of drugs
attributable to a defendant for clear error. United States
v. Palmer, 248 F.3d 569, 570-71 (7th Cir. 2001).
Raines argues that the court enhanced the sentence
based on the mistaken notion that he was the “ring leader.”
The court, however, never used this phrase, instead sim-
ply referring to Raines as “a high-level distributor [who]
Nos. 01-3540, 01-3608, 01-3833, 02-2017 and 02-2018 19
provided a steady supply of cocaine base. . . .” Given the
magnitude of the evidence, this conclusion is correct. Co-
defendants Gordon, Winfield, Davis, Baker and Daniels
all provided detailed information about Raines’ involve-
ment in the conspiracy. Gordon obtained one-quarter
ounce of cocaine base once a week for two years from
Raines. Winfield obtained approximately one ounce of
cocaine base from Raines fifteen to twenty times during
2000. Davis obtained two and a half ounces of cocaine
base from Raines. Finally, Raines sold cocaine base to
Baker from the summer of 2000 through January 2001 and
sold one-quarter ounce of crack cocaine to Daniels biweekly
for two years. The numbers do not lie. The mountain of
evidence pointing toward Raines confirms that the dis-
trict court’s relevant conduct determination was correct.
3. Acceptance of Responsibility
Raines next argues that the district court erred when it
declined to grant him a two-level reduction for acceptance
of responsibility. The United States Sentencing Guide-
lines provide that “if the defendant clearly demonstrates
acceptance of responsibility for his offense, decrease the
offense level by 2 levels.” U.S.S.G. § 3E1.1(a). We review
a district court’s acceptance of responsibility determina-
tion for clear error. United States v. Booker, 248 F.3d 683,
690 (7th Cir. 2001). However, we defer to the district
court because it is in a much better position to assess
the defendant’s statements and demeanor. Id.Raines merely asserts that the court committed error,
offering scant explanation. He does offer some skeletal
reasoning, namely that his good faith plea entitles him to
a reduction for acceptance of responsibility. Although
this provision is designed in part to save the government
the expense of going to trial, a timely guilty plea alone
20 Nos. 01-3540, 01-3608, 01-3833, 02-2017 and 02-2018
does not entitle a defendant to a reduction for acceptance
of responsibility. U.S.S.G. § 3E 1.1, Application Note 3;
United States v. Bosque, 312 F.3d 313, 316 (7th Cir. 2002).
More important, a defendant who obstructs justice is
presumed not to have accepted responsibility. See, e.g.,
U.S.S.G. § 3E1.1, Application Note 4; United States v.
Travis, 294 F.3d 837, 840 (7th Cir. 2002). Because Raines
obstructed justice, he must demonstrate that his case
is “extraordinary” so as to justify a downward adjustment
for acceptance of responsibility. U.S.S.G. § 3E1.1, Applica-
tion Note 4. Raines makes no effort to demonstrate why
his case is extraordinary; likely because there is no basis
to do so. After the indictment, Raines remained a fugi-
tive, warning co-defendant Fudge that all the evidence
in their apartment had to be destroyed. After authorities
apprehended him, he escaped from jail and was later
caught in a room with a loaded TEC 9, submachine gun.
Raines admitted to authorities that he was waiting to
receive new identification and was planning to leave the
area shortly thereafter. Raines decided to accept responsi-
bility only as a last recourse. For these reasons, the dis-
trict court’s decision denying Raines a two-level reduc-
tion for acceptance of responsibility was not erroneous.
4. Ineffective Assistance of Counsel
Finally, Raines claims that he received ineffective as-
sistance of counsel during his plea hearing. Whether
Raines received ineffective assistance of counsel is a mixed
question of law and fact reviewed de novo, with a strong
presumption that his attorney performed effectively.
United States ex rel. Simmons v. Gramley, 915 F.2d 1128,
1333 (7th Cir. 1990). We review an ineffective assistance
of counsel claim under the principles set forth in Strick-
land v. Washington, 466 U.S. 668 (1984). The Supreme
Court has held that the Strickland analysis applies to
Nos. 01-3540, 01-3608, 01-3833, 02-2017 and 02-2018 21
counsel’s conduct during the pleading phase. Hill v. Lock-
hart, 474 U.S. 52, 57-58 (1985). For Raines to be successful,
he must first show his attorney performed in a deficient
manner, Strickland, 466 U.S. at 687, and then prove that
“but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” Hill, 474
U.S. at 59.
If we find that counsel’s alleged deficiency did not preju-
dice the defendant, we need not consider the first prong
of the Strickland test. Matheney v. Anderson, 253 F.3d
1025, 1042 (7th Cir. 2001). We follow this course since
Raines has failed to prove he suffered prejudice as a re-
sult of his counsel’s performance. More precisely, Raines
has not offered a shred of evidence that supports his
claim. As we have noted, a “mere allegation by the defen-
dant that he would have insisted on going to trial is insuf-
ficient to establish prejudice.” Barker v. United States,
7 F.3d 629, 633 (7th Cir. 1993) (quoting United States v.
Arvanitis, 902 F.2d 489, 494 (7th Cir. 1990)). Raines of-
fers no evidence, other than his averment that but for
trial counsel’s advice, he would have gone to trial. Such
an emaciated argument is unpersuasive. A defendant is
required to establish through objective evidence that a
reasonable probability exists that he would have gone to
trial. McCleese v. United States, 75 F.3d 1174, 1179 (7th
Cir. 1996). Moreover, the defendant’s sole assertion that
he would have proceeded to trial cannot carry the burden
to show prejudice under Strickland. See, e.g., Arango-
Alvarez v. United States, 134 F.3d 888, 893 (7th Cir. 1998);
United States v. Arvanitis, 902 F.2d 489, 495 (7th Cir.
1990); Gargano v. United States, 852 F.2d 886, 891 (7th Cir.
1988). The law on this issue is clear and straightfor-
ward and because Raines has failed to meet his burden,
we reject his ineffective assistance claim.
22 Nos. 01-3540, 01-3608, 01-3833, 02-2017 and 02-2018
CONCLUSION
For the foregoing reasons, we AFFIRM the sentences of
each appellant.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-10-03