United States v. James, Donville

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3070
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DONVILLE JAMES,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 278—-Wayne R. Andersen, Judge.
____________
ARGUED OCTOBER 16, 2006—DECIDED JUNE 4, 2007
____________
Before POSNER, RIPPLE and WOOD, Circuit Judges.
RIPPLE, Circuit Judge. Donville James was convicted of
attempting to possess with intent to distribute more than
five kilograms of cocaine, see 21 U.S.C. §§ 841(a) and 846,
carrying a firearm during and in relation to and in fur-
therance of a drug trafficking crime, see 18 U.S.C. § 924(c),
and counterfeiting obligations of the United States, see 18
U.S.C. § 472. Mr. James was sentenced to 211 months’
imprisonment. He now challenges both his conviction and
sentence. For the reasons set forth in this opinion, we
affirm the judgment of the district court.
2 No. 05-3070
I
BACKGROUND
In November 2001, Allan Dubon approached the Federal
Bureau of Investigation (“FBI”) about becoming a paid
informant. The FBI agreed to hire him, and, within a couple
of weeks, Dubon provided the FBI with information link-
ing Mr. James to counterfeiting and drug trafficking
activities. Dubon told the FBI that he had engaged in drug
transactions with Mr. James in the past. Dubon further
claimed that one of these transactions had created trouble
for him with the Mexican Mafia, his supplier, because Mr.
James had paid Dubon in counterfeit currency.
FBI Agent Frank DePodesta instructed Dubon to remain
in contact with Mr. James. In March 2002, working with
Agent DePodesta, Dubon arranged a transaction involving
fifteen kilograms of cocaine. The details of the proposed
transaction were recorded during a phone call between Mr.
James and Dubon. Mr. James planned to pay for the
cocaine with $300,000 in counterfeit currency, but he was
able to procure less than $100,000. To deal with this
“shortfall,” Mr. James added cut-up paper to the bag
containing the counterfeit money to make it appear to
contain the full $300,000.
On the day of the exchange, the FBI and Secret Service
monitored the transaction visually and through a sound
transmitter worn by Dubon. The transmitting device also
had recording capabilities, but, for an unknown reason, the
recording function did not operate during the exchange.
The FBI provided Dubon with five kilograms of simulated
cocaine for this exchange. Mr. James and Dubon met in
a McDonald’s restaurant parking lot. Mr. James drove
Dubon to another nearby parking lot to show Dubon the
No. 05-3070 3
counterfeit currency, which was in a second car driven by
Mr. James’ girlfriend. Mr. James then returned with Dubon
to the McDonald’s parking lot where they had met origi-
nally. Dubon then left Mr. James to retrieve the simulated
cocaine. After receiving the simulated cocaine from Dubon,
Mr. James was surrounded by FBI and Secret Service
agents. He briefly attempted to flee, but was arrested at the
scene. The authorities later found a loaded handgun in his
vehicle. At about the same time, officers arrested Mr.
James’ girlfriend. The officers discovered a black backpack
containing counterfeit currency in the trunk of her car.
After his arrest, Mr. James made a voluntary statement,
inculpating himself in the transaction and including the
amount of drugs involved. Nevertheless, Mr. James did
not plead guilty, and the case went to trial. The centerpiece
of Mr. James’ trial strategy was to undermine the credibil-
ity of the Government’s case by painting its informant,
Dubon, as an unreliable criminal who was attempting
to extricate himself from his own legal troubles by setting
up Mr. James. Mr. James’ attorneys suggested that, as a
part of this strategy, Dubon intentionally turned off the
recording device that he had worn during the encounter
with Mr. James. To that end, Mr. James sought to inspect
the device. The Government, citing national security
concerns, resisted disclosure of the recording device.
Eventually, however, it agreed to a stipulation, drafted by
Mr. James’ attorneys, that the device was working on the
day of the arrest and that Dubon could have turned it
off. The stipulation also stated that the Government had
refused to disclose the device under a claim of privilege
and that the claim of privilege had been upheld by the
district court.
In keeping with this trial strategy, Mr. James’ attorneys
also sought to cross-examine the federal agents involved
4 No. 05-3070
in the investigation about Dubon’s criminal history. Mr.
James’ attorneys wanted to use this testimony to draw into
question Dubon’s credibility. The Government objected
on the ground that any testimony by the Government’s
witnesses regarding statements by Dubon would be
hearsay. The Government further submitted that, if Mr.
James was permitted to question the federal agents regard-
ing Dubon’s criminal history, the Government should be
permitted to elicit from Agent DePodesta, on direct
examination, testimony that Dubon had informed him of
prior drug transactions with Mr. James in order to give
context to Agent DePodesta’s decision to work with
Dubon and to repair Dubon’s credibility. Although the
district court had denied an earlier motion to allow the
evidence relating to Dubon’s past transactions with Mr.
James, it agreed to allow this testimony if the defense
“opened the door” by questioning the Government agents
regarding Dubon’s credibility. Mr. James’ attorneys agreed
to this arrangement and indicated that they would open
the door on cross-examination. The Government then
proceeded to question Agent DePodesta on Dubon’s
criminal history and on past drug transactions between Mr.
James and Dubon. Mr. James then cross-examined Agent
DePodesta on Dubon’s criminal history.
Before the Government elicited testimony from Agent
DePodesta regarding Dubon’s past transactions with Mr.
James, the district court interrupted the Government’s
examination to issue a limiting instruction to the jury. The
court instructed the jury that any testimony from Agent
DePodesta regarding statements from Dubon could
be considered only to evaluate Dubon’s credibility as an
informant and to provide context for the Government’s
relationship with Dubon. The court instructed the jury
No. 05-3070 5
that any such testimony could not be considered to prove
that Mr. James committed the uncharged offenses. Mr.
James did not object either to the testimony or to the
instruction.
Prior to closing arguments, the Government proposed a
limiting instruction regarding testimony related to prior
crimes. The instruction would limit the jury’s consideration
of this testimony to “the question of intent, knowledge,
and absence of mistake or accident.” R.67 at 13. The dis-
trict court excluded this instruction at Mr. James’ request,
noting that the Government had not attempted “to prove
up any other criminal conduct.” R.113-3 at 519. However,
the court left open the possibility of revisiting the instruc-
tion following closing arguments, in the event that any-
thing that came up in the course of closing arguments
caused Mr. James to change his mind with respect to the
instruction. In the course of the Government’s final clos-
ing argument, the prosecuting attorney made brief refer-
ences to Mr. James’ prior drug activity, but Mr. James did
not object and did not request the court to revisit the
limiting instruction.
Mr. James was convicted on all counts. The court then
proceeded to sentencing. In a series of hearings, Mr.
James presented a number of motions drafted without the
assistance of counsel and requested to represent himself
pro se. The district court never granted this motion;
instead, it encouraged Mr. James to work out an agreement
with his attorney that would allow Mr. James to present
his concerns and to take a more active role in his case. Mr.
James did so: His attorney presented legal arguments, and
Mr. James followed with his own arguments, which
supplemented, without prejudice, those of his attorney.
6 No. 05-3070
Mr. James was sentenced to 211 months’ imprisonment.
This sentence comprised 151 months for the cocaine and
counterfeiting convictions and 60 months for possession of
a firearm in connection with a drug trafficking crime. The
latter component was required by statute to be served
consecutively to his other sentence. The 151 months for
the drug crimes was the bottom of the range prescribed
by the advisory Guidelines.
Mr. James now appeals his conviction and sentence on
several grounds. He submits that the district court erred
when it allowed testimony by Agent DePodesta regard-
ing past drug transactions between Mr. James and Dubon
because such statements were testimonial hearsay and
inadmissible under both the Federal Rules of Evidence
and the Sixth Amendment’s Confrontation Clause. Mr.
James further submits that these statements were inadmis-
sible under Federal Rule of Evidence 404(b) as evidence
of prior bad acts because they were offered to show
conduct in conformity with such acts. Mr. James also
submits that the district court’s failure to compel the
Government to produce the non-functioning recording
device worn by Dubon on the day of the transaction
violated Federal Rule of Criminal Procedure 16(a)(1).
Mr. James also seeks review of his sentence. He contends
that the district court failed to ensure that his waiver of
counsel during the sentencing proceedings was knowing
and voluntary. He further contends that the district court
improperly calculated the appropriate sentencing range
under the Guidelines by basing its Guidelines calcula-
tions on a quantity of drugs that was not found by a jury
beyond a reasonable doubt and by failing to reduce the
quantity of cocaine involved under the sentencing en-
trapment provisions of the Guidelines. Mr. James also
No. 05-3070 7
challenges the reasonableness of his sentence; he submits
that the district court failed to account properly for the
factors listed in 18 U.S.C. § 3553(a) when arriving at his
sentence.
II
DISCUSSION
A. Prior Acts Testimony
We first address Mr. James’ objections to evidence that
implicated his involvement in prior drug transactions. As
we already have noted, he submits that testimony by Agent
DePodesta concerning prior transactions between Mr.
James and Dubon was inadmissible hearsay. He further
contends that, because he had no opportunity to cross-
examine Dubon regarding the past transactions to which
Agent DePodesta testified, he was denied his Sixth Amend-
ment right to confrontation. He also submits that the
evidence was inadmissible under Rule 404(b) of the Fed-
eral Rules of Evidence because it constituted evidence of
prior acts offered to prove conduct in conformity with
those acts. Mr. James bases these arguments on state-
ments by Agent DePodesta that the Government elicited
on direct examination and on statements made during
the Government’s closing arguments.
1. Agent DePodesta’s Testimony
Mr. James’ defense theory was that he was an innocent
person who had been set up by Dubon, a career criminal
looking to save himself from prison and from other drug
dealers to whom he was indebted. Mr. James’ attorney
pursued this theory in her opening statement and on cross-
8 No. 05-3070
examination of the Government’s first witness, Agent
Daniel Dick of the United States Secret Service, by ques-
tioning Agent Dick about Dubon’s background. Anticipat-
ing a similar cross-examination of Agent DePodesta, the
Government sought permission to question Agent
DePodesta on Dubon’s background as a cooperating
informant and on Dubon’s experience with Mr. James
in order to provide context to the investigation and to
explain why the Government had chosen to work with
Dubon. The Government proffered that Agent DePodesta
would testify about what Dubon had told him about
prior drug deals with Mr. James.
As we have noted earlier, prior to trial, the district court
had ruled that the Government could not offer such
testimony unless the defendant had opened the door to
the prior acts. At trial, Mr. James did not object to the
Government’s eliciting testimony from Agent DePodesta
on direct examination regarding Mr. James’ prior drug
deals with Dubon in anticipation of questioning by
Mr. James’ attorneys on cross-examination regarding
Dubon’s background. Indeed, Mr. James’ attorneys stated
explicitly that they were prepared to open the door to this
testimony because of their anticipated cross-examination.
There was no error in the district court’s decision to
admit Agent DePodesta’s testimony regarding Mr. James’
prior dealings with Dubon. Before the Government elicited
the testimony, the district court had issued a limiting
instruction cautioning that any testimony regarding
prior dealings between Mr. James and Dubon could be
considered by the jurors only for purposes of providing
context for the Government’s decision to work with Dubon
and, if it should become an issue, Dubon’s credibility. The
district court specifically stated that such testimony could
No. 05-3070 9
not be considered to determine whether Mr. James com-
mitted the uncharged offenses. “We presume that jurors
follow instructions given them” unless “there is an over-
whelming probability that the jury was unable to follow
the instruction as given.” United States v. Eberhart, 434
F.3d 935, 939 (7th Cir. 2006). The defendant bears the
burden of establishing this overwhelming probability. Id.The testimony elicited from Agent DePodesta tracks the
limitations imposed by the district court. Before question-
ing Agent DePodesta regarding what Dubon had told him
about Mr. James, the Government questioned him about
the events on the day on which Mr. James was arrested.
The Government then questioned Agent DePodesta as to
how he had come to work with Dubon and Dubon’s work
with other officers on other cases. The Government then
asked Agent DePodesta a total of three questions related
to Dubon’s prior dealings with Mr. James, all of which led
to a line of questioning regarding the steps taken to assess
the reliability of the information received from Dubon. Mr.
James did not object to this testimony or to the limiting
instruction.
An out of court statement is hearsay when it is offered
to “prove the truth of the matter asserted.” Fed. R. Evid.
801(c). We have held that statements offered to provide
context for other admissible statements are not them-
selves hearsay because they are not offered to prove the
truth of the matter asserted. See United States v. Van Sach,
458 F.3d 694, 701-02 (7th Cir. 2006) (holding that recorded
statements by a confidential informant introduced only
“to provide context for the defendant’s admissions on
the [same] recordings” are not offered for their truth);
United States v. Tolliver, 454 F.3d 660, 666 (7th Cir. 2006)
(same). We also have suggested that informants’ statements
10 No. 05-3070
offered to explain why authorities targeted a particular
defendant and to dispel an accusation of improper motive
would not be offered to “prove the truth of the matter
asserted,” and thus would not constitute hearsay. See
United States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004)
(noting that testimony regarding an informant’s tip
could be relevant to demonstrating why the Govern-
ment targeted the defendant rather than the truth of the
tip itself, but that no such argument had been advanced
in that case). Furthermore, statements offered to rebut
arguments the defense raises on cross-examination are not
offered to prove the truth of the matter asserted, but to
rehabilitate the witness and likewise are not hearsay. See
United States v. Whitaker, 127 F.3d 595, 604 (7th Cir. 1997)
(holding that testimony elicited in response to the defen-
dant’s suggestion on cross-examination that the witness
had formed his conclusions incorrectly was not offered
for its truth but to rehabilitate the witness).
The district court’s limiting instructions confined the
jury’s consideration of Dubon’s statements to Agent
DePodesta to non-hearsay purposes. The testimony elicited
from Agent DePodesta conformed to those limiting in-
structions. Agent DePodesta’s testimony regarding Mr.
James’ prior dealings with Dubon were not excludable as
hearsay.
The Confrontation Clause of the Sixth Amendment bars
out-of-court testimonial statements unless the defendant
had a prior opportunity to cross-examine the declarant
and the declarant is unavailable to testify. Van Sach, 458
F.3d at 701. However, the Sixth Amendment does not bar
out-of-court statements when the statement is not offered
to prove the truth of the matter asserted; thus, the Sixth
Amendment poses no bar to the admission of non-hearsay
No. 05-3070 11
statements. See Crawford v. Washington, 541 U.S. 36, 60 n.9
(2004); Van Sach, 458 F.3d at 701; Tolliver, 454 F.3d at 665.
When out-of-court statements are not offered to prove
the truth of the matter asserted, the Confrontation Clause
is satisfied if the defendant had the opportunity to cross-
examine the person repeating the out-of-court statement.
See Tennessee v. Street, 471 U.S. 409, 414 (1985). Because
Agent DePodesta’s testimony as to Dubon’s prior deal-
ings with Mr. James was not hearsay and Mr. James had
the opportunity to cross-examine Agent DePodesta, there
is no violation of the Confrontation Clause.
Furthermore, the testimony elicited from Agent
DePodesta was not inadmissible under Rule 404(b) of the
Federal Rules of Evidence. Rule 404(b) prohibits evidence
of prior crimes when such evidence is offered to sug-
gest that the defendant acted in conformity with a particu-
lar character trait. Fed. R. Evid. 404(b). However, the
testimony elicited here was limited to providing context
for the investigation, not to prove the charged offenses.
Absent any showing that the jury could not follow the
court’s cautionary instruction, we presume that the jury
limited its consideration of the testimony in accordance
with the court’s instruction.
There was no error in allowing Agent DePodesta’s
testimony regarding Mr. James’ prior dealings with Dubon.
2. Closing Argument
Mr. James also submits that statements made by coun-
sel for the Government during closing arguments relating
to prior drug transactions violated Rule 404(b) because
they were intended to suggest to the jury that Mr. James
had acted in conformity with earlier uncharged conduct.
12 No. 05-3070
Mr. James’ attorneys raised no objection to these state-
ments in the district court; therefore, we review them for
plain error.
Mr. James first invites our attention to statements by the
Government suggesting that he was an experienced drug
dealer. Read in context, it is clear that the statements
were offered to rebut the defense’s theory that Mr. James
was set up by Dubon because he was “an easy target.” See
R.113-4 at 592; see also id. at 621-22. Evidence of prior acts
is admissible under Rule 404(b) to show proof of motive,
knowledge or absence of mistake or accident. Fed. R. Evid.
404(b). Taken in context, these statements simply rebut
Mr. James’ assertion that he was the naive victim of
Dubon’s efforts to ingratiate himself with the federal
prosecutor to avoid prosecution.1 The Government con-
tended that Mr. James’ statements in taped telephone
conversations and his demeanor when confronting
Dubon were inconsistent with such naivete.
1
In opening arguments, Mr. James’ attorney stated “Allan
Dubon, in order to get more money and curry more favor
with the FBI, in February of 2000 began calling Donville James,
my client. He called him incessantly because he believed that
Donville would be an easy target to set up. He told Donville
the story about the Mexican Mafia trying to kill or hurt him in
order to get Donville to obtain counterfeit money to help him
out.” R.113-1 at 29. During closing arguments, Mr. James’
attorney returned to this theme, stating: “I submit to you that
my client was a target of Allan Dubon because he was stupid.
He was an easy target because he was inexperienced.” R.113-4
at 605. His attorney added, “Allan Dubon knew exactly who
he could control. He knew exactly who could be a good tar-
get, would be a good patsy, who could be set up.” Id.
No. 05-3070 13
Mr. James also points to a particular statement in which
the Government references prior drug transactions with
Dubon. Mr. James claims this statement was used
impermissibly to prove conduct in conformity with the
alleged prior bad acts. The Government stated:
Ladies and gentlemen, Allan Dubon is a drug dealer
who had a very comfortable drug dealing—series of
very comfortable drug-dealing conversations with the
defendant. And the only reason that could happen,
ladies and gentlemen, was because the defendant and
Allan Dubon had a drug relationship. You heard about
heroin, you heard about marijuana and in this case,
which is the case before you, cocaine, the trifecta
of drugs, ladies and gentlemen, all three of them. And
these guys talked about it. Allan Dubon is a drug
dealer. Donville James is a drug dealer. And that is
why you heard the two conversations you heard.
R.113-4 at 615. In context, this statement could be under-
stood merely to continue the Government’s argument
that Mr. James was not the victim of a set up by Dubon.
However, even if we give Mr. James the benefit of the
doubt as to the characterization of this statement, we
cannot say that any such error would affect Mr. James’
substantial rights, and thereby constitute reversible error.
Fed. R. Crim. P. 52(b).
Under plain error review, to demonstrate that an error
has affected his substantial rights, the defendant bears the
burden of “establishing that the outcome probably
would have been different without the error.” United
States v. James, 464 F.3d 699, 709 (7th Cir. 2006). That
burden has not been met. Mr. James has not shown that
the outcome would have been any different absent this
statement. Any prejudice from this statement pales when
evaluated in light of the overwhelming evidence of Mr.
14 No. 05-3070
James’ guilt. Among the evidence introduced by the
Government at trial was: a recorded conversation between
Mr. James and Dubon discussing the transaction, testimony
by federal agents who had witnessed the transaction or
listened to it on the transmitter carried by Dubon, testi-
mony by federal agents who found the gun in Mr. James’
vehicle, testimony by federal agents who found the coun-
terfeit money in the trunk of Mr. James’ girlfriend’s car,
and Mr. James’ signed statement admitting his guilt. In
the face of this evidence, the outcome of Mr. James’ trial
in all probability would have been no different had the
Government never made the statement in question.
Therefore, any error flowing from the statement cannot
be said to affect a substantial right; thus, it is an insuf-
ficient ground for reversal.
B. Access to Evidence
Mr. James next submits that it was error for the district
court to fail to require the Government to produce for
inspection the recording device worn by Dubon. This issue
has been waived. A defendant waives a right by intention-
ally relinquishing a known right. United States v. White,
443 F.3d 582, 591 (7th Cir. 2006). Such a waiver may be
shown where a party asserts a right and later relin-
quishes that right. See id. Mr. James vigorously asserted
his right to inspect the recording device the Government
placed on Dubon. The Government, however, asserted
that allowing Mr. James to inspect the device would
compromise national security, and claimed, therefore, that
the Government was entitled to deny Mr. James access to
the device under a “national security privilege.” Never-
theless, the Government did indicate that it would be
No. 05-3070 15
willing to stipulate to any facts that Mr. James wished to
argue to the jury regarding the device. Therefore, rather
than rule on the Government’s claim of privilege, the
district court asked Mr. James’ trial counsel to draft a
stipulation and to see if the Government would accept it.
Eventually, the parties agreed to a stipulation drafted by
Mr. James’ trial counsel. The stipulation, as read to the
jury, states:
It is stipulated between the parties that the recording
and transmitting device used by the Government on
March 25[], 2002 in this case was not malfunctioning on
that day. The device was capable of recording and
transmitting and the device was capable of being
turned on and off by the Government agents and
informant involved in the case.
[] [I]t is further stipulated that the Government has
declined to produce the recording[-]transmitting
device for viewing by this jury pursuant to a privilege
which the Court has deemed valid.
R.113-3 at 513.2 This stipulation constitutes the intentional
2
Although the stipulation notes that the district court upheld
the Government’s claim of privilege, no such ruling actually
was made. This matter was discussed during the jury instruc-
tion conference when the court considered a proposed jury
instruction that also stated that the Government had declined to
present the device for inspection based on a claim of privilege
deemed valid by the court. A discussion followed in which the
parties and the court recognized that the stipulation had been
agreed to and submitted to the jury without the court having
ruled on the Government’s claim of privilege. The court declined
(continued...)
16 No. 05-3070
relinquishment of a known right; the issue therefore is
waived.
C. Waiver of Counsel
Mr. James next claims that the district court erroneously
concluded that he had waived the right to counsel at his
sentencing. We review the district court’s finding of
waiver de novo. United States v. Kosmel, 272 F.3d 501, 505
(7th Cir. 2001).
A criminal defendant has the right to waive his right to
counsel and to proceed pro se. United States v. Oakey, 853
F.2d 551, 553 (7th Cir. 1988). Such a waiver, however, must
be knowing and voluntary. United States v. Sandles, 23 F.3d
1121, 1126 (7th Cir. 1994). The trial court has an affirmative
obligation to ensure that the defendant’s waiver is volun-
tary and knowing. It therefore must conduct an inquiry
into the defendant’s ability to represent himself. Addition-
ally, it must educate the defendant of the dangers of
proceeding without counsel. Faretta v. California, 422 U.S.
806, 835 (1975); Sandles, 23 F.3d at 1126.
However, our examination of the record reveals that
Mr. James never actually waived his right to counsel
during his sentencing. Following the verdict, Mr. James
discharged his trial counsel and obtained new counsel.
2
(...continued)
to rule definitively on the privilege during the jury instruction
conference, but agreed to instruct the jury that the Government
had declined to turn over the device based on a claim of
privilege deemed valid by the court because such instruction
would “track the language of the stipulation.” R.113-3 at 540.
No. 05-3070 17
There was, however, a period between the time when he
fired his trial counsel and the time when he hired new
counsel in which Mr. James was unrepresented. During
that period, Mr. James filed a number of motions. Indeed,
he continued to file motions on his own behalf even after
he had obtained new counsel. Mr. James’ new counsel
reviewed these motions, informed the court that he could
not adopt any of them, and proceeded to file separate
motions on Mr. James’ behalf. Mr. James, however, pre-
ferred the motions he had filed himself. In light of Mr.
James’ intelligence, which the court considered to be
above average, and the work Mr. James had put into the
motions he had filed on his own behalf, the court permitted
Mr. James to argue those motions to supplement the
motions filed on his behalf by his attorney. Although Mr.
James requested to proceed pro se during his sentencing
proceedings, he also requested that his counsel remain as
“standby counsel” to answer legal questions. In effect, Mr.
James wished to argue his own case with the assistance of
counsel in preparing his case. In the end, the district
court allowed Mr. James to proceed in this manner: The
court permitted Mr. James to supplement the arguments
of counsel with additional or different arguments with-
out prejudice to the arguments presented by counsel. Thus,
Mr. James was represented by counsel throughout the
sentencing process. Although this arrangement resembled
the sort of hybrid representation we previously have
disapproved, there are significant differences. Our disap-
proval in earlier cases was based on the potential of
such arrangements to confuse the jury, the fact that hy-
brid representation would allow the defendant to ad-
dress the jury without being subject to cross-examination
and the potential to offer defendants “two bites at the
apple” during trial. Kosmel, 272 F.3d at 506. Here, those
18 No. 05-3070
concerns were absent. The arrangement was limited to Mr.
James’ sentencing hearing. Moreover, our prior disap-
proval of hybrid representation arose in the context of
whether a criminal defendant has a right to hybrid repre-
sentation, not whether the use of such an arrangement at
sentencing necessarily constitutes reversible error.
Nor does this arrangement appear to have affected the
outcome of Mr. James’ sentencing. From the outset, the
court stated that any potentially incriminating state-
ments by Mr. James would be taken without prejudice to
any legal arguments his lawyer wanted to make.
D. Sentencing
The district court sentenced Mr. James to 211 months’
imprisonment. The court arrived at this sentence by first
calculating the advisory guidelines range for the attempt
to possess with intent to distribute cocaine offense. This
process resulted in an advisory guidelines range of 151-188
months’ imprisonment. After accounting for the factors
set forth in 18 U.S.C. § 3553(a), as required by United
States v. Booker, 543 U.S. 220 (2005), the district court
determined that a sentence of 151 months’ imprisonment
for this offense was appropriate. To this sentence, the
district court added a consecutive 60 month mandatory
minimum sentence for the firearm offense, as required
by 18 U.S.C. § 924(c)(1)(A)(i).
Mr. James submits that his sentence was not reasonable.
He does not contest the district court’s imposition of a 60
month sentence for use of a firearm in connection with a
drug trafficking offense consecutive to the sentence for his
other offenses. He challenges only that portion of his
sentence that is attributable to his conviction for attempting
to possess with intent to distribute cocaine. Mr. James
No. 05-3070 19
contends that the district court committed two errors in
determining the quantity of cocaine that ought to serve as
the basis of his offense level for purposes of calculating
the advisory guidelines range. First, he contends that the
district court erred by basing the amount of cocaine
involved in his offense on quantities that he neither
admitted to attempting to possess nor were determined by
a jury beyond a reasonable doubt. He also submits that
the district court erred by failing to apply the “sentencing
entrapment” provisions of the advisory Guidelines in
determining the amount of cocaine involved. See United
States Sentencing Guidelines Manual § 2D1.1 cmt. n.12 &
14 (2002). Mr. James further contends that the district
court erred by failing to consider properly the § 3553(a)
factors when arriving at his sentence for attempted posses-
sion with intent to distribute cocaine.
We first turn to Mr. James’ contention that the district
court could consider only the amount of cocaine that he
either admitted to attempting to possess or that a jury
had found beyond a reasonable doubt that he had at-
tempted to possess. Because the Guidelines are advisory
only, the Sixth Amendment does not require that any facts
that lead to an increase in the applicable guidelines range
be admitted or found by a jury beyond a reasonable doubt,
so long as those facts do not increase the statutory maxi-
mum sentence. See United States v. White, 472 F.3d 458, 464
(7th Cir. 2006). The statutory maximum sentence for
attempt to possess with intent to distribute more than five
kilograms of cocaine, the quantity charged in the indict-
ment, is life imprisonment. See 21 U.S.C. §§ 841(b)(1)(A),
846. Because Mr. James’ sentence for attempting to possess
with intent to distribute cocaine was 151 months’ imprison-
ment, any factual findings by the district court did not
result in a sentence above the statutory maximum.
20 No. 05-3070
In the post-Booker era, we continue to review the district
court’s factual findings at sentencing, including findings
related to drug quantities involved in an offense, for
clear error. United States v. McLee, 436 F.3d 751, 755 (7th
Cir. 2006). In arriving at its factual findings, the district
court may rely on any evidence bearing sufficient indicia
of reliability. United States v. Sutton, 406 F.3d 472, 474
(7th Cir. 2005). The trial record included recorded conver-
sations between Mr. James and Dubon discussing the
quantity of drugs involved and Mr. James’ written state-
ment in which he states that the transaction was to be for
fifteen kilograms of cocaine. Based on this evidence,
the district court determined that Mr. James did intend
to purchase fifteen kilograms of cocaine. In light of this
evidence, the district court’s finding is not clearly errone-
ous.
The record also supports the district court’s conclusion
that Mr. James did not establish a sentencing entrap-
ment defense. To establish this defense, the defendant
must show that his predisposition not to commit the
crime was “overborne by unrelenting government per-
sistence.” United States v. Gutierrez-Herrera, 293 F.3d 373,
377 (7th Cir. 2002). To overcome this defense, the Govern-
ment only need establish the defendant’s predisposition
to commit the actual offense by demonstrating a “willing-
ness to violate the law without extraordinary induce-
ments.” United States v. Hale, 448 F.3d 971, 989 (7th Cir.
2006). Here, the record showed only two phone calls
between Mr. James and Dubon, the Government informant,
leading to the transaction for which he was arrested and
convicted. The district court found that, rather than dis-
play an unwillingness to commit the crime, Mr. James’
statements during these calls evinced a complete willing-
ness to proceed, even as the size of the proposed transac-
No. 05-3070 21
tion increased over the course of the phone calls. The
district court did not err when it found Mr. James had not
established the defense of sentencing entrapment.
The district court properly calculated the amount of
cocaine involved in Mr. James’ offense. Nonetheless, we
review the defendant’s sentence for reasonableness in
light of the § 3553(a) factors. Although, under the law
of this circuit, a sentence within the properly calculated
advisory guidelines range will be considered presump-
tively reasonable on appeal, United States v. Mykytiuk, 415
F.3d 606, 608 (7th Cir. 2005), the district court’s obligation
to impose a “reasonable” sentence does not end there,
United States v. Laufle, 433 F.3d 981, 987 (7th Cir. 2006). The
district court also must consider the § 3553(a) factors
when arriving at its sentencing decision. Id. “A concise
statement of the factors that caused the judge to arrive at
a particular sentence, consistent with section 3553(a),
will normally suffice.” Id. The court need not make find-
ings as to each of the § 3553(a) factors. Id.
At sentencing, the district court recognized that the
Guidelines were advisory only. After calculating the
applicable advisory guidelines range for Mr. James’ attempt
to possess with intent to distribute cocaine conviction the
district court permitted both Mr. James and his attorney
to speak in favor of a sentence below the advisory guide-
lines range. Both spoke, primarily focusing on Mr. James’
history and personal characteristics. After Mr. James and
his attorney spoke, the court discussed the factors which
led to its decision to stay with the minimum sentence
under the advisory Guidelines. The court first noted the
positive personal traits of Mr. James and also noted that
the advisory guidelines range for Mr. James’ drug offense
did not account for the counterfeiting conviction. Addition-
ally, the court expressed concern that it had to apply the
22 No. 05-3070
Guidelines evenhandedly across cases. The court further
noted the cumulative nature of the offense, involving
drugs, guns and counterfeiting.
Although the court did not couch explicitly its discussion
in terms of the § 3553(a) factors, the facts which led the
court to stay within the advisory guidelines range are
consistent with ensuring that the sentence reflect the
seriousness of the offense and avoiding unwarranted
sentencing disparities among defendants, both of which are
§ 3553(a) factors. See 18 U.S.C. § 3553(a)(2)(A), (a)(6). We
note also that the district court’s discretion with respect
to the sentence it imposed on Mr. James for attempt to
possess with intent to distribute cocaine was cabined by
statute. Because the amount of cocaine involved in the
attempted transaction was more than five kilograms, the
statutory mandatory minimum sentence for that offense
was 120 months’ imprisonment. 18 U.S.C. § 841(b)(1)(A).
Booker does not license district courts to employ § 3353
to disregard statutory mandatory minimum sentences.
See United States v. Duncan, 479 F.3d 924, 930 (7th Cir. 2007).
The advisory guidelines range did not account fully
for Mr. James’ conduct in the offense, i.e., the use of
counterfeit currency, or the cumulative nature of the
offense. Further, Congress has determined through the
statutory mandatory minimum sentence that the quantity
of cocaine involved merited a substantial sentence. There-
fore, we cannot say the district court’s decision to im-
pose a sentence at the bottom of the advisory guidelines
range was unreasonable.3
3
We would reach the same conclusion even if the sentence
were not within the advisory guideline range.
No. 05-3070 23
Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-4-07