United States v. Cooper, Cortez D.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3607
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CORTEZ COOPER,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 1078—Blanche M. Manning, Judge.
____________
ARGUED JUNE 1, 2006—DECIDED AUGUST 23, 2006
____________
Before FLAUM, Chief Judge, and MANION and WILLIAMS,
Circuit Judges.
WILLIAMS, Circuit Judge. Cortez Cooper appeals his
sentence after conviction for four offenses related to his
participation in a conspiracy to distribute cocaine and
cocaine base. In 2003, Cooper pled guilty to two counts of
possession of cocaine, for which he received a sentence,
enhanced on the basis on his prior narcotics conviction, of
120 months’ imprisonment. This plea represented only a
part of the conduct charged in the indictment, and the
Government continued to pursue its prosecution of the
rest of the indictment. In 2004, Cooper was convicted by
a jury on four additional cocaine-related counts. After the
conviction, the district court imposed a second enhanced
2 No. 05-3607
sentence of 240 months to run concurrently with the 120-
month sentence that he was already serving. In this appeal,
Cooper claims that the district court erred in enhancing his
second sentence pursuant to 21 U.S.C. § 851, and in
denying his motion for a downward departure on the basis
of vindictive prosecution. Because we agree with the district
court that Cooper had notice of the Government’s motion to
enhance his second sentence and that there was no vindic-
tive prosecution, we affirm the district court’s ruling on
both issues.
I. BACKGROUND
Cooper was a member of the Black P Stone Nation gang
in Chicago and was involved in a conspiracy to distribute
cocaine from 1995 to 2001. After a two-year undercover
drug investigation, the Government filed a criminal com-
plaint against Cooper and ten co-defendants, including
Hugh Rogers, the leader of the conspiracy, in 2001. On
December 12, 2001, federal agents arrested Cooper in his
apartment, where they recovered a .357 caliber handgun,
ammunition for a .22 caliber handgun, 32 grams of crack
cocaine, and 111 grams of marijuana.
On February 14, 2002, Cooper entered into a proffer
agreement with the Government. With his lawyer present,
Cooper provided detailed information concerning his
involvement with Hugh Rogers’s drug operation. On April
18, 2002, a grand jury returned a 39-count indictment
against Cooper and his ten co-defendants. The charges
against Cooper included cocaine and cocaine base posses-
sion with intent to distribute, in violation of 21 U.S.C.
§ 841(a), and conspiracy to possess with the intent to
distribute, in violation of 21 U.S.C. § 846.
Shortly after the indictment, the Government tendered a
plea agreement to Cooper. The agreement required Cooper
to plead guilty to both possession with intent to distribute
No. 05-3607 3
and conspiracy with the intent to “distribute quantities . .
. in excess of 50 grams of cocaine base.” In exchange, the
Government agreed to move for a downward departure
under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(c), to the
higher of either two-thirds of the low end of the applicable
Guidelines range or the 10-year statutory minimum
sentence. On May 3, 2002, Cooper pled not guilty to all
counts in the indictment, but the Government continued to
negotiate a possible plea resolution over the next ten
months. Cooper ultimately rejected the Government’s
proposed plea agreement on November 22, 2002.
On March 18, 2003, pursuant to 21 U.S.C. § 851, the
Government filed an information to give notice of its
intention to seek an enhanced sentence based on Cooper’s
prior narcotics conviction. An identical information was
filed against Cooper’s co-defendant Quentin Daniels, the
only other defendant who had not pled guilty. Cooper’s
attorney received a copy of the written notice.
Three weeks after the Government filed its notice of
intention to seek an enhanced sentence, Cooper pled guilty,
without the benefit of a plea agreement, to only counts
Twelve and Thirteen of the indictment, which charged him
with possession. He pled not guilty to the conspiracy count.
On April 17, 2003, the Government filed a superseding
indictment (“first superseding indictment”), which added
two counts of using a telephone to facilitate a drug offense
to the conspiracy and possession charges. The Government
advised Cooper that it was unwilling to withdraw the
Section 851 notice and would be seeking a mandatory
minimum 20-year enhanced sentence. Cooper pled not
guilty to the superseding indictment, and the court set a
sentencing date for Counts Twelve and Thirteen of the
original indictment.
On January 20, 2004, the district court sentenced Cooper
to ten years’ imprisonment for Counts Twelve and Thirteen.
This was the mandatory minimum for the quantities
4 No. 05-3607
involved in Counts Twelve and Thirteen, after the Sec-
tion 851 enhancement. The mandatory minimum for the
quantities involved in the remaining counts was twenty
years’ imprisonment. The district court did not consider the
conspiracy count as relevant conduct at the sentencing. The
court scheduled a trial on the conspiracy count and on the
other pending counts in the first superseding indictment.
Before trial, on June 17, 2004, the Government filed
a second superseding indictment against Cooper, which
added one count of possession of a firearm in furtherance of
a drug trafficking crime to the distribution and conspiracy
counts. On August 9, 2004, Cooper entered a plea of not
guilty to the second superseding indictment. Four days
later, on August 13, 2004, the jury found Cooper guilty
on four counts (including the conspiracy count) and not
guilty on two counts. Importantly, the jury found that
it was foreseeable that the conspiracy “involved 50 grams or
more . . . of cocaine base.”
On August 2, 2005, the district court sentenced Cooper to
240 months’ imprisonment for his convictions resulting
from the second superseding indictment, to run concur-
rently with his 120-month sentence from the original
indictment. Cooper now appeals.
II. ANALYSIS
A. Enhancement under 21 U.S.C. § 851Cooper argues that the Government was required to file
a second Section 851 notice prior to the second sentencing
in order to subject him to an enhanced penalty. In sentenc-
ing appeals, this court reviews the district court’s find-
ings of fact for clear error and the legal conclusions de novo.
See United States v. Chamness, 435 F.3d 724, 726 (7th Cir.
2006).
No. 05-3607 5
Cooper was indicted under 21 U.S.C. § 841(a), which
states that a person who has a prior felony drug offense,
“shall be sentenced to a term of imprisonment which may
not be less than 20 years and not more than life imprison-
ment” when more than 50 grams of cocaine base are
involved. 21 U.S.C. § 841 (b)(1)(A) (emphasis added). A
defendant’s sentence may not be enhanced based on a prior
conviction unless the Government complies with the
requirements of 21 U.S.C. § 851, which states:
No person who stands convicted of an offense under
this part shall be sentenced to increased punish-
ment by reason of one or more prior convictions,
unless before trial or before entry of a plea of guilty,
the United States files an information with the
court (and serves a copy of such information on the
person or counsel for the person) stating in writing
the previous convictions to be relied upon.
Cooper concedes that the Government complied with the
requirements of this section as it pertains to his first
sentencing. But he argues that the superseding indictment,
the intervening sentencing, and trial required the Govern-
ment to file a second information before he could
be subjected to a second enhanced sentence.
The plain language of the statute does not require the
Government to file a second notice in this situation. The
statute only requires that the Government file the informa-
tion “before trial or before entry of a plea of guilty.” The
Government filed the Section 851 notice on March 18, 2003,
which was before Cooper’s trial (on August 9, 2004).
The Eighth, Ninth, Tenth, and Eleventh Circuits have
all concluded that a second information is not required
in situations similar to this one. See, e.g., United States v.
Mayfield, 418 F.3d 1017, 1020 (9th Cir. 2005) (“filing the
information and giving the section 851(a) notice before [the
defendant’s] first trial obviated any need to refile the
6 No. 05-3607
information and regive that notice before his second trial”);
United States v. Kamerud, 326 F.3d 1008, 1014 (8th Cir.
2003) (“the government is not required to re-file a notice
of enhanced sentence under 21 U.S.C. § 851 after the return
of the superseding indictment”) (citing United States v.
Wright, 932 F.2d 868, 882 (10th Cir. 1991)); United States
v. Williams, 59 F.3d 1180, 1185 (11th Cir. 1995) (the
government is not required to file a new Section 851
information for multiple trials in the same case). We have
not addressed this issue before, but we agree with
the circuits that have addressed this issue that, where
the Government files a timely Section 851 notice, it is not
required to file a second notice after an intervening event,
such as a trial or a superseding indictment, in the same
case.
Cooper argues that his case differs from the cases cited
above in that new charges were added to his superceding
indictments. He also argues that his case differs in that he
was sentenced twice, whereas the cases above address
retrials and superseding indictments. Neither of these
distinctions is relevant, however, when viewed in light
of the two purposes of the Section 851 notice provision.
The two purposes of the Section 851 notice provision are:
(1) to allow the defendant to contest the accuracy of the
prior conviction upon which the Government relies, and (2)
to ensure the defendant has full knowledge of a potential
guilty verdict. See Williams, 59 F.3d at 1185 (citing United
States v. Johnson, 944 F.2d 398 (8th Cir. 1991)); see also
Mayfield, 418 F.3d at 1020 (“Section 851(a) ensures proper
notice so a defendant can challenge the information. It
also allows a defendant to make an informed decision about
whether or not to plead guilty.”) (quoting United States v.
Hamilton, 208 F.3d 1165, 1168 (9th Cir. 2000)). In Wil-
liams, the Government filed a Section 851 notice prior to
the defendant’s first trial, which resulted in a conviction.
See Williams, 59 F.3d at 1182, 1185. The Eleventh Circuit
No. 05-3607 7
vacated the conviction because of an evidentiary error on
the part of the district court. After the defendant was
convicted in a subsequent trial, the district court concluded
that it could not enhance his sentence because the Govern-
ment had failed to refile a new Section 851 notice. See
Williams, 59 F.3d at 1182. The Eleventh Circuit reversed,
reasoning that requiring a second notice would not serve
either of the two purposes outlined above.
In this case, the first purpose of the provision was
satisfied because Cooper had an opportunity to contest the
accuracy of the prior conviction when the Government
filed the Section 851 notice before the first sentencing. If
the Government had refiled the Section 851 information
prior to the second sentencing, it would have referenced the
same prior conviction. Cooper concedes that he had ample
time to check the accuracy of the information before the
first sentencing and did not dispute its validity.
Cooper was also aware that he could receive an enhanced
sentence if he was found guilty. Indeed, Cooper saw that his
sentence for counts Twelve and Thirteen of the original
indictment had been enhanced from a Guideline range
of 70-87 months to the 120-month mandatory minimum
with the use of the prior conviction. The Eleventh Circuit in
Williams considered such knowledge from a prior sentenc-
ing in concluding that it was not necessary to file a new
Section 851 notice before the subsequent trial. The court
reasoned that “[t]he same attorney represented Williams at
all three trials, knew that the information had been filed .
. . and had addressed that prior conviction at the sentencing
in the first trial.” See Williams, 59 F.3d at 1182. Based on
all of these factors, the Eleventh Circuit concluded that
“[t]he defendant knew the effect of such enhancement.” Id.Like the defendant in Williams, Cooper was represented by
8 No. 05-3607
the same attorney at the first and second sentencing.1 This
attorney received a copy of the Government’s Section 851
notice prior to Cooper’s April 3, 2003 plea and had informed
Cooper of the effect of the enhancement. The same attorney
also represented Cooper when he was faced with the
decision to either plead guilty or go to trial after the second
superseding indictment. Therefore, Cooper had notice of the
potential consequences of the enhancement before he made
his decision to go to trial.
Given that neither of the purposes of the Section 851
notice would be served by requiring a second information
after Cooper’s first sentencing, we see no reason to read
Section 851 as requiring additional notice here.
B. Vindictive prosecution claim
Cooper also argues that the district court failed to
recognize that it had the discretion to depart downward
from the Sentencing Guidelines and, consequently, did
not properly consider the vindictive prosecution claim.
Cooper’s claim is based on U.S.S.G. § 5K2.0, which
permits a downward departure from the Guidelines in
exceptional circumstances. Cooper argues that his case
presents an exceptional circumstance because the Govern-
ment’s vindictive prosecution caused it to fall “outside of the
heartland of cases contemplated by the Sentencing Commis-
sion.” The “heartland” has been defined as the “set of
typical cases embodying the conduct that each guideline
describes.” United States v. Santoyo, 146 F.3d 519, 525 (7th
Cir. 1998) (quoting U.S.S.G. ch. 1, pt. A (4)(b), introductory
1
Cooper was assigned three different attorneys during the four
years between his original indictment and his second sentencing,
but from the time that the Section 851 notice was filed until the
instant appeal, he had the same attorney.
No. 05-3607 9
cmt. (1998)). Cooper has not advanced a direct vindictive
prosecution claim challenging his conviction’s comportment
with due process. See United States v. Jarrett, 447 F.3d 520,
524-25 (7th Cir. 2006). His claim is limited to his sentence.
As a preliminary matter, it is important to note that “the
concept of ‘departures’ has been rendered obsolete in the
post-Booker world.” United States v. Arnaout, 431 F.3d 994,
1003 (7th Cir. 2005) (citations omitted). Subsequent to the
Supreme Court’s decision in United States v. Booker, 543
U.S. 220, 261 (2005), this court reviews sentences
for “reasonableness.” Arnaout, 431 F.3d at 1003. We
continue to use prior departure law as a framework to
decide what is reasonable. See United States v. Castro-
Juarez, 425 F.3d 430, 434-46 (7th Cir. 2005). Therefore, to
evaluate reasonableness, “we necessarily must scrutinize,
as part of that review, the district court’s refusal to de-
part from the advisory sentencing range.” United States
v. Vaughn, 433 F.3d 917, 924 (7th Cir. 2006).
The issue then, is the reasonableness of Cooper’s sen-
tence. Notwithstanding the new sentencing regime under
Booker, sentencing courts must still comply with the
statutory minimum penalty. See United States v. Duncan,
413 F.3d 680, 683 (7th Cir. 2005) (citing United States v.
Lee, 399 F.3d 864, 866 (7th Cir. 2005)).
Because the district court was bound by the statutory
minimum of 20 years on the basis of Cooper’s prior narcot-
ics conviction, Cooper cannot demonstrate that the sentence
was unreasonable. A defendant may only be given
a sentence below the statutory minimum where one of
two exceptions applies—either the accused substantially
assisted the prosecution, see 18 U.S.C. § 3553(e), or quali-
fied for the “safety valve” exception in § 3553(f). See United
States v. Rivera, 411 F.3d 864, 866 (7th Cir. 2005). Neither
exception applies and Cooper does not argue otherwise.
Since the district court had no authority to give a sentence
10 No. 05-3607
below the statutory minimum, it was unnecessary to
evaluate the merits of his vindictive prosecution argument.
The district court did, nevertheless, examine the merits
of Cooper’s vindictive prosecution argument and con-
cluded that he could not prevail on this claim. Prosecution
is considered vindictive where it “was pursued in retaliation
for the exercise of a protected statutory or constitutional
right.” See United States v. Monsoor, 77 F.3d 1031, 1034
(7th Cir. 1996). For example, where a defendant succeeds in
obtaining a reversal on appeal and the Government brings
more serious charges, there is a presumption of vindictive-
ness that the Government must rebut. See United States v.
Goodwin, 457 U.S. 368, 376 (1982). This presumption of
vindictiveness does not apply to pretrial decisions by the
prosecution because “[a] prosecutor should remain free
before trial to exercise the broad discretion entrusted to him
to determine the extent of the societal interest in prosecu-
tion.” Id. at 382.
To create reasonable doubt regarding prosecutorial
motivations before trial, the defendant “must affirmatively
show through objective evidence that the prosecutorial
conduct at issue was motivated by some form of prosecuto-
rial animus, such as a personal stake in the outcome of the
case or an attempt to seek self-vindication.” United States
v. Falcon, 347 F.3d 1000, 1004 (7th Cir. 2003) (citations
omitted). Cooper did not offer sufficient evidence of prosecu-
torial animus to meet this burden. He primarily relied on
the Government’s filing of the Section 851 enhancement
during the time that it was trying to convince Cooper to
plead guilty. There is nothing particularly suspicious in the
timing of this action. But even if there were, we held in
Falcon that “evidence of suspicious timing alone does not
indicate prosecutorial animus.” Falcon, 347 F.3d at 1005
(citing United States v. Bullis, 77 F.3d 1553, 1559 (7th Cir.
1996)). Moreover, that the Government contemporaneously
filed a Section 851 notice of enhancement against Cooper’s
No. 05-3607 11
co-defendant, Quentin Daniels, rebuts suspicion that the
Government was acting with personal animus against
Cooper.
The only other evidence of prosecutorial animus offered
by Cooper is the addition of the telephone use and gun
charges to the superceding indictments. This was well
within the range of appropriate, pre-trial, prosecutorial
discretion. Cooper has offered no evidence suggesting an
improper motive in the addition of these charges. Therefore,
the district court did not err in concluding that Cooper
could not prevail on his vindictive prosecution claim. Cooper
has failed to demonstrate any error in his sentencing.
III. CONCLUSION
The judgment of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-23-06