United States v. Sumner, Thomas J.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1335
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
THOMAS J. SUMNER,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 99 CR 40079—J. Phil Gilbert, Judge.
____________
ARGUED SEPTEMBER 26, 2002—DECIDED APRIL 8, 2003
____________
Before COFFEY, ROVNER, and DIANE P. WOOD, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. This is Thomas Sum-
ner’s second effort to obtain some relief from a 132-month
sentence for drug dealing. On his first appeal to this court,
he was partially successful: we vacated his sentence and
remanded for resentencing because the district court had
not made adequate factual findings linking his uncharged
trafficking of a substantial amount of crack cocaine to the
offense of conviction. United States v. Sumner, 265 F.3d 532(7th Cir. 2001) (Sumner I). At the resentencing hearing,
the district court made the necessary factual findings
and then imposed the same 132-month sentence as before.
2 No. 02-1335
Sumner has appealed again, but this time we find no merit
in his arguments and therefore affirm.
I
Although we reviewed the facts in our earlier opinion,
we repeat the highlights for ease of reference. In August
1999, the FBI and the Federal Housing Drug Task Force
conducted a sting operation against the then-seventy-five-
year-old Sumner, who was selling drugs from his home
in Carrier Mills, Illinois. Three different confidential
sources purchased cocaine from Sumner. One named cus-
tomer, Chrissy Smith, reported upon leaving his residence
that she had just seen someone purchase a large amount
of crack cocaine. On September 15, 1999, agents executed
a search warrant and found in the house powder cocaine
and marijuana, drug paraphernalia, and firearms. No
crack cocaine was recovered during the search.
Sumner was arrested and, after waiving his Miranda
rights, made a series of statements concerning the tim-
ing, amounts, and types of drug sales he had engaged in
beginning in “possibly the winter of 1997.” Sumner specifi-
cally admitted to selling crack cocaine for a period of two
months in 1997. He stopped, he explained, after he wit-
nessed one of his customers in the throes of a convulsive
reaction to the crack; from that time onward, he limited
his stock to powder cocaine and marijuana. (Smith, of
course, claimed otherwise, as she reported a crack sale as
late as August of 1999.) Sumner said that Troy Ash had
been his principal supplier until August 1998, when Ash
was arrested.
At a proffer interview, Sumner provided still more
information, confirming and enlarging upon information
he provided in the post-arrest interview. He again named
Ash as his supplier until Ash’s arrest. After Ash left
the picture, Sumner turned, in July 1999, to a man named
No. 02-1335 3
Mark LNU (or last name unknown, in FBI jargon—we will
call him “Mark”). Mark supplied Sumner until Sumner’s
September 1999 arrest. Sumner admitted that he had
allowed others to cook powder cocaine into crack cocaine
at his residence. Cooperating witnesses confirmed many
of these details, although at least one source claimed to
have purchased powder cocaine from Sumner as early as
April 1999, which was three months before Sumner claims
he located Mark as a source.
The post-arrest interview formed the basis for the pre-
sentence report (PSR). Based on the amounts and timing
of sales Sumner reported in the post-arrest interview, the
Probation Office determined that he sold 56.7 grams of
crack cocaine in the winter of 1997 (with Ash as sup-
plier), 198.45 grams of powder cocaine from January to
July 1998 (again with Ash as supplier), 198.45 grams of
powder cocaine from April to September 1999 (with Mark
as supplier), and 34.3 grams of marijuana.
Sumner made several objections to the PSR. In them, he
presented a very different account of his dealings than he
had done in his post-arrest and proffer interviews. Many
of the PSR findings, he now claimed, lacked “sufficient
indicia of reliability.” He denied ever receiving powder
cocaine from Ash. Instead, according to Sumner’s new
account, Ash gave him only seven grams of crack cocaine.
Along similar lines, Sumner claimed that he had received
only six ounces of powder cocaine from Mark. Sumner
summarized the amounts that he believed could be
counted as relevant conduct as follows: seven grams of
crack cocaine, six ounces (which corresponds to approxi-
mately 170 grams) of powder cocaine, and 34 grams of
marijuana. The PSR, in contrast, recommended that the
court find 56.7 grams of crack, 397 grams of powder cocaine,
and 34 grams of marijuana. When specifically asked about
the relevant-conduct issue, defense counsel reiterated
the amounts Sumner was advocating. Defense counsel
4 No. 02-1335
also expressed concern that the PSR erroneously found
that at least some of the relevant conduct took place dur-
ing Sumner’s probation from August 1996 to October
1998 on unrelated charges of public indecency.
At the ensuing sentencing hearing, the court heard
evidence from Agent Kirkham, who had been present at
both the post-arrest and proffer interviews. Agent Kirk-
ham testified about statements Sumner made on both
occasions. Sumner also testified, changing his story for
a third time. In contradiction to his post-arrest interview,
proffer interview, and objections to the PSR, Sumner
now claimed that he had briefly dealt in crack cocaine,
but in 1992 rather than 1997, and that he never did so
again. He also stated that he had no other drug dealings
until he began selling powder cocaine in March of 1999.
Sumner also specifically testified that he did not sell any
drugs during his probation, between October 1997 and
October 1998. He explained that he kept marijuana around
because “girls” liked it, but that the “girls” in question
were always of adult age. Sumner was then forced to ad-
mit that a 16-year-old girl was present in his house at
the time of his arrest.
The district court rejected all of Sumner’s shifting
stories and effectively adopted the PSR. It sentenced him
to 132 months’ imprisonment, based on 1,213.72 kilo-
grams of marijuana equivalent as well as guidelines en-
hancements for violation of his probation and possession
of firearms, and a reduction for acceptance of responsibil-
ity. Sumner then appealed.
On appeal, we vacated his sentence and remanded for
resentencing on a single ground: that the district court had
failed to make adequate findings of fact whether the crack
cocaine dealings in 1997 were part of the same course
of conduct for sentencing purposes. See Sumner I, 265 F.3d
at 539-40. Although Sumner had forfeited that issue by
No. 02-1335 5
failing to raise it before the district court, we nonetheless
found plain error. Id.Sumner took the remand as a more open-ended invitation
to continue challenging his sentence. As contemplated
by our mandate, he filed supplemental objections to inclu-
sion of the crack cocaine dealings. In addition, however, he
challenged the inclusion of 198.45 grams of powder cocaine
allegedly received from Ash. This was an objection Sum-
ner had initially made to the PSR, but he did not include
it in his first appeal to this court. Sumner also renewed
another of his objections to the PSR—again, one he had not
raised in his first appeal—that he did not deal in crack or
powder cocaine during his probation. The government
filed a Supplemental Addendum to the PSR in opposition.
At the resentencing hearing, the district court heard
additional testimony from Agent Kirkham, but nothing
more from Sumner. The district court specifically found
Agent Kirkham’s testimony credible and specifically re-
jected Sumner’s. It found that the 1997 crack dealings
should be included in the relevant conduct calculations,
because they were sufficiently linked in terms of similarity,
regularity, and temporal proximity to Sumner’s sales of
powder cocaine. Finally, the court found that Sumner’s
dealings with drugs supplied by Ash took place during
Sumner’s probation. The court again sentenced Sumner
to 132 months’ imprisonment. This appeal followed.
II
We turn first to Sumner’s argument that the district court
improperly allowed the government to present new testi-
mony at the remanded sentencing hearing. This conten-
tion presents a question of law, which we generally re-
view de novo. See Jaffee v. Redmond, 142 F.3d 409, 412 (7th
Cir. 1998).
6 No. 02-1335
Sumner’s sole authority for his argument is our decision
in United States v. Wyss, 147 F.3d 631 (7th Cir. 1998).
In Wyss, the defendant was charged with marijuana dis-
tribution and was sentenced based on uncharged posses-
sion of cocaine, at least some of which defendant claimed
he consumed rather than distributed. We held that any
cocaine Wyss had for personal consumption could not
be included in the relevant conduct analysis for distribu-
tion, and that it was the government’s burden to prove
the relative amounts devoted to consumption and distrib-
ution. The case was remanded for resentencing, but impor-
tantly, because Wyss had specifically objected to inclusion
of the personal-use cocaine in the relevant conduct deter-
mination and the government had offered no contrary
evidence, we held that the personal-use percentage ques-
tion was now closed: “[t]he government was entitled to
only one opportunity to present evidence on the issue.” Id.
at 633.
Sumner contends that Wyss stands for the broad proposi-
tion that the government may never offer new evidence
on a sentencing remand. He sees no difference between
an issue that was fully explored at the initial sentencing
hearing and one that received no attention, but was never-
theless reviewed on appeal under the plain error stan-
dard. We disagree. Such a rule would require the govern-
ment to anticipate and present evidence on every con-
ceivable issue that might later be found to constitute
plain error on appeal. This would impose an impossible
burden on the government. Furthermore, it would actually
give the defendant a benefit from plain error review of a
forfeited issue, instead of merely relieving him or her from
the consequences of failure to preserve the issue. Nothing
in FED. R. CRIM. P. 52(b) supports such a consequence. We
conclude that the Wyss rule does not preclude the gov-
ernment, on a sentencing remand, to introduce evidence
relevant to points that the defendant forfeited but that
were considered on plain error review by this court.
No. 02-1335 7
III
We turn next to Sumner’s challenges to three separate
factual findings made by the district court at resentenc-
ing: first, whether the district court erred in finding that
the crack and powder cocaine dealings were part of the
same course of conduct for sentencing purposes (the issue
we remanded to the court); second, whether the district
court erred in finding that half of Sumner’s powder co-
caine dealings were also part of the relevant course of
conduct; and third, whether the district court erred in
determining that Sumner committed drug offenses during
the term of his probation, warranting a two-point enhance-
ment. To the extent that these arguments are properly
before us (which we discuss below), our review is for
clear error only. See United States v. Morrison, 207 F.3d
962, 967 (7th Cir. 2000); United States v. Edwards, 115 F.3d
1322, 1330 (7th Cir. 1997).
A
First, we take up Sumner’s claim that the district court
erred in finding that his crack cocaine dealings were
relevant conduct for sentencing purposes. The core of
Sumner’s contention is that the alleged crack cocaine
dealings lack the similarity, regularity, and temporal
proximity to the later powder cocaine dealings required
by Section 1B1.3 of the Sentencing Guidelines to justify
treating them as part of a single course of conduct.
In calculating a defendant’s base offense level under the
Sentencing Guidelines, “the sentencing court must con-
sider types and quantities of drugs not specified in the
counts of conviction but that were ‘part of the same
course of conduct or common scheme or plan’ as the con-
victed offenses.” United States v. Beler, 20 F.3d 1428, 1431
(7th Cir. 1994) (quoting U.S.S.G. § 1B1.3(a)(2)); United
States v. Acosta, 85 F.3d 275, 279 (7th Cir. 1996). This
8 No. 02-1335
“relevant conduct” rule requires sentencing courts to
consider quantities of drugs not specified in the counts
of conviction, provided “the unconvicted activities bore
the necessary relation to the convicted offense.” United
States v. Duarte, 950 F.2d 1255, 1263 (7th Cir. 1991). In
general, offenses are part of the same course of conduct
if they are “part of a single episode, spree, or ongoing
series of offenses.” U.S.S.G. § 1B1.3(a)(2), Application
Note 9(B). Courts also look for “a strong relationship
between the uncharged conduct and the convicted offense,
focusing on whether the government has demonstrated
a significant similarity, regularity, and temporal proxim-
ity.” Acosta, 85 F.3d at 281 (citations and quotation marks
omitted). When one of these factors is relatively weak or
absent, a stronger showing of the other two will support
a finding of relevant conduct. See U.S.S.G. § 1B1.3(a)(2),
Application Note 9(B); see also Acosta, 85 F.3d at 281;
United States v. Sykes, 7 F.3d 1331, 1336 (7th Cir. 1993). In
Sumner I, it was the fact that the district court had not
made any findings at all on the subject that required a
remand. See 265 F.3d at 540.
The district court found that the crack dealings were
similar for several reasons, including the facts that com-
parable quantities of drugs were sold, all sales were
made from Sumner’s residence, and Sumner was involved
(either actively or passively) in the cooking of powder
cocaine into crack at his residence. Even Sumner conceded
that he was selling “2 ounces of powder cocaine a month” for
a seven-month period prior to his September 1999 arrest,
which is not very different from the “quarter ounce per
week of crack” in 1997 to which he admitted. The fact
that the Guidelines treat powder and crack cocaine differ-
ently for sentencing purposes in no way prevents the two
substances from being included in one course of conduct.
Indeed, we have cases in which two entirely different
substances meet that test. See, e.g., Acosta, 85 F.3d at 281
No. 02-1335 9
(finding cocaine as relevant conduct where only heroin
charged). We find no clear error in the district court’s
finding that the requisite similarity existed, based on
the facts it noted.
Sumner next challenges the district court’s finding
of regularity. In Sykes, this court defined “regularity” as
“repeated acts or events that take place ‘[a]t fixed or cer-
tain intervals’ or ‘[i]n accordance with some consistent
or periodical rule or practice.’ ” 7 F.3d at 1337 (quoting
BLACK’S LAW DICTIONARY 1286 (6th ed. 1990)). Under
this definition, Sumner’s argument is a non-starter. By
his own admission, Sumner dealt a quarter ounce of crack
cocaine per week (and thus two ounces per month) over a
two-month period in 1997, followed by a similar monthly
distribution of powder cocaine for a seven-month period.
These transactions easily meet the Sykes definition.
Perhaps recognizing this, Sumner also claims that the
district court erred by relying exclusively on statements
he made at the post-arrest interview regarding the
amount and the timing of his 1997 crack sales. A defen-
dant has the burden of producing at least some evidence
that the PSR is unreliable or inaccurate beyond a bare
denial, if the facts set forth in a PSR bear “sufficient
indicia of reliability to support [their] probable accuracy.”
U.S.S.G. § 6A1.3(a); United States v. Coonce, 961 F.2d
1268, 1280-81 (7th Cir. 1992); Acosta, 85 F.3d at 283;
United States v. Lanterman, 76 F.3d 158, 161 (7th Cir.
1996). If, however, the PSR is contradictory, inconsistent,
or conclusory, the burden lies in the first instance with the
government to produce evidence from which the district
court can make a reliable finding. See United States v.
Bacallao, 149 F.3d 717, 720 n.2 (7th Cir. 1998); Acosta, 85
F.3d at 283. Sumner claims that the PSR here was so flimsy
that the burden lay on the government to support its
allegations.
10 No. 02-1335
This puts him in an odd position, however, given the
district court’s decision to credit Agent Kirkham’s account
of Sumner’s post-arrest and proffer interviews. Sumner’s
own statements, as reported by Agent Kirkham, provided
the basis for the PSR’s conclusions. The district court
was entitled to credit those admissions even in the ab-
sence of independent evidence corroborating them. See
United States v. Galbraith, 200 F.3d 1006, 1012 (7th Cir.
2000); see also United States v. Cedano-Rojas, 999 F.2d
1175, 1180 (7th Cir. 1993) (testimony of one witness, even
a biased witness, may be sufficient to support a finding
of fact); United States v. Garcia, 66 F.3d 851, 857 (7th Cir.
1995) (trial court may credit uncorroborated testimony of
a convicted felon and government informant). The only
wrinkle here is that Sumner later retracted his post-
arrest admissions, leading to a swearing match at the
sentencing and resentencing hearings between Sumner
and Agent Kirkham. On both occasions, the district
court expressly resolved the credibility contest in favor of
Agent Kirkham. That is a call we have no reason to dis-
turb. The district court was also entitled to conclude that
the most likely explanation for Sumner’s sudden change
in memory at the sentencing hearing—and in particular
his outright denial that he sold any crack at all after
1992—is that Sumner was made aware of the implica-
tions of his earlier statements for the severity of his
eventual sentence. This, in a sense, was another credibility
call that there is no reason to question on clear error
review.
Last, we consider the district court’s finding of tem-
poral proximity between the crack and the cocaine sales.
Sumner relies principally on the time that elapsed be-
tween his 1997-98 dealings in cocaine supplied by Ash and
his 1999 dealings as supplied by Mark to show a lack of
the necessary temporal proximity. We have held in the
past, however, that an involuntary respite from criminal
No. 02-1335 11
conduct does not preclude a finding of temporal proximity.
See Cedano-Rojas, 999 F.2d at 1180; United States v.
Nunez, 958 F.2d 196, 198 (7th Cir. 1992). Whatever lapse
occurred between the Ash and the Mark phase of Sum-
ner’s dealings was involuntary on his part and had more
to do with Ash’s August 1998 arrest than any crisis of
conscience on Sumner’s part. Finally, Sumner admitted
that he distributed both crack and powder cocaine that
he received from Ash. To the extent his dealings in the
two substances are similar, the relevant temporal lapse
is not between the 1997 crack and the 1999 powder cocaine
dealings, but rather between the crack and powder cocaine
dealings leading up to Ash’s August 1998 arrest and Sum-
ner’s turning to Mark as a substitute supplier sometime in
the spring or summer of 1999. Depending on how much
cocaine Sumner had on hand when Ash was arrested, the
lapse in actual dealing may have been even shorter.
In sum, we find no clear error in the district court’s
conclusion that the 56.7 grams of crack cocaine should
be included as relevant conduct for purposes of comput-
ing his guideline level.
B
Sumner would like us to resolve two more points as
well: whether the district court erred in including half of
his powder cocaine dealings for relevant conduct pur-
poses, and whether the court should have imposed a two-
point enhancement under Section 4A1.1(d) of the Sen-
tencing Guidelines for violation of the probation he was
serving for his earlier public indecency offense. We con-
clude that neither point is open to him anymore, and thus
we do not consider them.
With respect to the powder cocaine argument, the gov-
ernment has argued that Sumner’s failure to raise it on
his first appeal means that he has waived it for all time.
We are not sure that strict waiver applies in these cir-
12 No. 02-1335
cumstances, given the fact that Sumner did file an appro-
priate objection in the district court to the PSR, but we
are certain that the law-of-the-case doctrine precludes
him from raising it now. We have repeatedly stated that
changes in litigation position on successive appeals are
barred except where justified by intervening authority, new
and previously undiscoverable evidence, or other changed
circumstances. See People Who Care v. Rockford Bd. of
Educ., 171 F.3d 1083, 1088 (7th Cir. 1999) (collecting cases);
see also United States v. Wilson, 131 F.3d 1250, 1253 (7th
Cir. 1997) (vacating a newly assigned offense level “because
the district court exceeded the scope of our remand in
reassessing the question of relevant conduct”); United
States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996) (“A party
cannot use the accident of a remand to raise in a second
appeal an issue that [she] could just as well have raised
in the first appeal because the remand did not affect it.”).
None of those exceptions applies here, and thus we do
not consider this point further.
The posture of Sumner’s argument about the two-point
enhancement under Section 4A1.1(d) of the Sentencing
Guidelines for violation of his probation served for his
earlier public indecency offense is the same. As with his
powder cocaine claims, Sumner made objections to the PSR,
but he did not raise the issue of the probation enhancement
in his first appeal. It too cannot be raised at this late date,
because of the law-of-the-case doctrine. (Sumner is not
losing anything here, because it is a matter of record that
his probation officially ran from August 1996 to October
1998, and he admitted receiving both crack and powder
cocaine from Ash from the winter of 1997 through August
1998.)
No. 02-1335 13
IV
For these reasons, we AFFIRM the judgment of the dis-
trict court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-8-03