United States v. Millet, Christopher

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-2678 & 06-2893
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Cross-Appellant,
v.
CHRISTOPHER MILLET,
Defendant-Appellant,
Cross-Appellee.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 81-1—James B. Moran, Judge.
____________
ARGUED MAY 22, 2007—DECIDED DECEMBER 14, 2007
____________
Before EASTERBROOK, Chief Judge, and WILLIAMS and
SYKES, Circuit Judges.
WILLIAMS, Circuit Judge. In August 2004, Harvey
Gooden, a police informant, invited an attorney, Christo-
pher Millet, to participate in a robbery of a drug dealer.
Millet, who claimed to be well versed in the art of robbing
drug dealers, readily accepted Gooden’s offer. After the
robbery, Gooden asked Millet for a gun, purportedly to
protect himself from the dealer they had robbed, and after
some prodding, Millet obliged. For his actions, Millet
was charged with conspiracy to distribute cocaine, at-
2 Nos. 06-2678 & 06-2893
tempting to distribute a controlled substance, and know-
ingly disposing of a firearm to a known felon. The jury
returned a conviction on the drug distribution counts,
finding that the offenses involved over 500 grams of co-
caine; however, Millet was acquitted on the firearm
charge.
Millet appeals the district court’s refusal to provide an
entrapment instruction on the drug distribution counts,
contending that there was insufficient evidence to show
that he intended to join a conspiracy to steal drugs (in
addition to cash) or that he conspired with anyone other
than Gooden. Millet has failed, however, to demonstrate
a lack of predisposition to commit the charged crimes, so
he was not entitled to an entrapment instruction, and the
evidence was sufficient to show that Millet and his co-
conspirators expected to recover drugs during the robbery
and to give those drugs to a known dealer. Millet also
contests the district court’s assignment of a four-level
enhancement for his role in the offense, the court’s denial
of safety-valve relief, and the adequacy of the court’s
explanation for its within-Guidelines sentence. The rec-
ord is clear that Millet was a leader of a conspiracy hav-
ing five or more participants so he was not eligible for
safety-valve relief, and the role enhancement was proper.
The court also gave an adequate statement of reasons
for its within-Guidelines sentence.
Finally, the government cross-appeals, claiming the
court erred in failing to sentence Millet based on the total
quantity of fake drugs stolen from the fictitious dealer.
This argument has merit because the district court did not
make an independent factual determination as to the
amount of drugs Millet conspired to steal. Thus, we
affirm in part and reverse in part the judgment of the
district court, and remand for re-sentencing.
Nos. 06-2678 & 06-2893 3
I. BACKGROUND
After more than a decade of sobriety during which he
obtained a law degree, Christopher Millet relapsed in 2003
and again became addicted to heroin. That year, Millet
met and began purchasing heroin and cocaine from
Harvey Gooden. In August 2003, Gooden was arrested by
Chicago Police. After that arrest led to federal firearms
and drug distribution charges, Gooden agreed to cooperate
with investigations by the Bureau of Alcohol, Tobacco,
Firearms and Explosives (“ATF”) and the Federal Bureau
of Investigation (“FBI”) to obtain a reduced sentence. In
his role as informant, Gooden told federal authorities
of Millet’s illegal activities.
On June 29, 2004, Gooden told FBI Agent Patrick
Smith that Millet engaged in a scheme to rob drug dealers
of cash. Gooden claimed that Millet had contacts capable
of identifying the bagmen of dealers, knew police officers
who could perpetrate the robberies under color of law, and
invited Gooden to join the scheme. On one occasion, Millet
asked Gooden’s help in robbing a participant in an earlier
robbery of a drug dealer. Millet offered Gooden $5000 if
he could locate a security specialist to deactivate the
target’s home alarm system. In his account of Millet’s
activities, Gooden never accused Millet of selling drugs or
robbing dealers of drugs.
When the FBI decided to launch an operation centered
on Millet, Gooden agreed to be the inside man. On August
3, 2004, Gooden, while wearing an audio recording device,
told Millet that a Mexican drug dealer would be coming
to Chicago to sell twenty kilograms of cocaine and two
hundred pounds of marijuana. Gooden said he intended
to buy two kilograms of cocaine, which he called “birds,”
for $13,000 a piece. Gooden remarked that a kilogram of
cocaine would sell for $18,000 to $20,000 in Chicago. Millet
agreed, “Right, 20 at least.” Gooden again mentioned the
4 Nos. 06-2678 & 06-2893
amount of drugs the dealer would have and said “I wanna
take it.” He then invited Millet to participate, saying “we
can go in up there . . . ,” but vowed to “sting ‘em regard-
less,” meaning with or without Millet’s help. At that point,
Millet interjected the idea of using police in the rip off,
affirming that the “Harvey Police [could] do it.” Several
minutes later, Gooden brought the heist up again, empha-
sizing that he needed a gun, not Millet’s participation
in the robbery.
GOODEN: Hey . . . if you don’t want no parts of it
only thing I probably need from
you . . .
MILLET: Oh, I do want some part . . .
GOODEN: Only thing I probably need from you is
a sword, a gat.
MILLET: Huh?
GOODEN: All I need from you probably is a
missel [sic] the only thing I probably
need is a missel [sic] I got two . . .
MILLET: I give you one of them [unintelligible]
swords [unintelligible].
GOODEN: I’m a throw you somethin’ Joe.
MILLET: Fuck is you talkin’ about . . .
GOODEN: Only thing, if you want some part I’m
sayin’ if you want some part of it
though you welcome.
MILLET: Yeah, I want some parts of it.
Millet proceeded to explain how he wished to carry out the
robbery. He said, he wanted to “go in proper,” meaning
with police, and he agreed to contact his “people” before
his next conversation with Gooden. So, by the end of that
Nos. 06-2678 & 06-2893 5
first conversation, Millet had unequivocally agreed to
participate in the robbery but not to provide Gooden a gun.
The next day, Gooden informed Millet that the dealer
had arrived in Chicago and would be in town for four days.
Millet said he had just gotten off the phone with his
contact and that his folks were on “standby.” Gooden
said they would do the robbery the next day unless
Millet needed more time. Millet said his guys were
ready, “on standby,” but then suggested that it would be
better to wait.
MILLET: That be good, that be good for him to
money up, you know.
GOODEN: Hell yeah, yeah that’s what I’m saying.
MILLET: That’s our thing, if he money up.
...
GOODEN: If he money up, you mean if he sell
that shit, but look . . .
MILLET: Yeah, that be good.
GOODEN: If we hit it . . .
MILLET: Yeah, that be plenty. You know that be
real success, you know. Like you’d be
like, not, not the last customer, damn
near the last.
Although Gooden agreed that it would be best to wait
for the dealer to convert his drugs to cash, Gooden asked
Millet about the obvious possibility that the dealer might
still have drugs at the time of the robbery.
GOODEN: Like we hit him and he got a bird or
two left. Shit I could, I could pop them
...
MILLET: That’s yours, that’s yours. No, that’s
yours.
6 Nos. 06-2678 & 06-2893
GOODEN: Bet, man. I get that? I’m good.
[unintelligble]
MILLET: [Unintelligible] man we ain’t finna to
fuck with that like that man.
...
GOODEN: In case it ain’t all cash. You know
there’s going to be cash, you know
what I’m saying.
MILLET: Right, but I’m saying all that other
shit, you know, that, that’s your exper-
tise, you know.
GOODEN: Oh, okay. So I can get that then? Pop
it will all . . .
MILLET: Yeah man, you know.
With that, Millet agreed to include drugs in the take, and
moments later, he recognized that the drugs would
translate to cash.
MILLET: I understand, you probably have to
work that anyway, won’t you?
GOODEN: Yeah, work that, you kidding. I pop
that . . .
MILLET: Right.
...
GOODEN: I can get ’em off for probably like, like
16.
MILLET: Right.
GOODEN: So that, that’s money too.
MILLET: Right, right, right. But still that’s fast
money.
Nos. 06-2678 & 06-2893 7
On Thursday, August 5, Gooden called Millet to say
that the second half of the dealer’s shipment would
arrive the next day, and that the dealer would not be
leaving Chicago until the following Wednesday. Millet
commented that the dealer would be a “cash cow.” Gooden
agreed, and he added that the dealer probably would not
have “many” leftover kilograms of cocaine at the time
of the robbery. Gooden said, “remember I want, I want,
the uh, the uh, the girl,” meaning cocaine. The callers
were disconnected before Millet could respond. When
Gooden and Millet spoke later that day at Millet’s law
office, they discussed the benefits of partnering with
police in a robbery of dealers. Millet said, “It’s always
better to go with this lick man.” He said, “I done did this
both ways man,” with and without police, “and [was]
willing to do it both ways . . . .” But he and Gooden agreed,
working with police minimized resistance. Millet then
called his police contact, in Gooden’s presence, to confirm
that the robbery would take place Sunday or Monday
because they were waiting on the second shipment. After
the call, Millet told Gooden there would be a total of four
conspirators (for a four-way split) and that Millet and the
other two conspirators would complete the robbery.
The next recordings occurred on Monday, August 9,
2004, the day of the robbery. That morning, the govern-
ment parked a gray Cadillac STS in the parking lot of the
Chicago Park Hotel in Harvey, Illinois. Before parking
the car, federal agents placed a duffel bag containing
$20,000 in cash and two fake kilograms of cocaine in the
trunk of the car. Gooden made four calls to Millet between
10:41 a.m. and 11:00 a.m. During those calls, Gooden
conveyed that he had met the dealer in a Cadillac parked
at the Chicago Park Hotel and that he saw the dealer
throw a duffel bag into the trunk of the car and remove
the cocaine that Gooden purchased from the trunk. He
also said, “I saw, I saw, I saw a couple a birds in there,
8 Nos. 06-2678 & 06-2893
I saw at least 2, 3 of ’em but I saw plenty of money
though.” At trial, Millet admitted that “bird” was slang
for cocaine, but said Gooden’s use of the word “slipped”
passed him because he was interested in the money.
Gooden also told Millet that, while sitting in the Cadillac,
he cracked the passenger window to make it easier for
his confederates to break into the car. When Gooden
asked Millet his estimated time of arrival at the Cadillac,
he learned that Millet was not with the individuals
who would commit the robbery; Millet claims that he was
on his way out of town.
During these initial calls, Gooden reiterated that he
wanted any drugs recovered during the robbery. He told
Millet he was parked in a nearby warehouse, where
Millet could “pass [him] the work . . . .” This comment was
met with an unintelligible response from Millet. Later,
Gooden asked, “how am I going to get the things? . . . I’m
talking about the, I’m talking about the, the things, the
girls so I can pop ’em off. . . . I’m going to sell them just
like that. I gotta sell, right.” That too received an unintelli-
gible response.
Gooden and Millet exchanged additional calls between
11 a.m. and 2 p.m. Often during the calls, Gooden warned
that they might miss the chance to complete the robbery
if they did not hurry. During one call, Gooden read the
Cadillac’s license plate number to Millet. At another
point, after the other conspirators had arrived on the
scene to conduct counter-surveillance, Millet called
Gooden to ask about a maintenance worker in the vicinity
of the car whose presence made the conspirators nervous.
Just after noon, Gooden told Millet he was going to drive
to get his cousin and brother so they could help him
complete the theft. Before Gooden could take this ruse
any further, Millet notified him that the conspirators
had struck and that the drugs they recovered were fake.
Gooden said that he had been sold real cocaine, to which
Nos. 06-2678 & 06-2893 9
Millet replied, “. . . I’m glad yours is cool. I’m saying that
other shit wasn’t nothing but fake move.” Gooden asked
“how many of ’em was it?” Millet replied, “[t]hree,” and
confirmed “[t]here was three birds[.]”
The observations of federal agents conducting surveil-
lance on August 9 correspond with the recorded conversa-
tions. Throughout the morning and early afternoon, agents
saw two vehicles pull into the parking lot and park next
to or near the target vehicle. At about 1:25 p.m., three
men in a car pulled up next to the target automobile. One
man exited the car, popped the trunk of the Cadillac,
removed the duffel bag, and returned to the car, which
quickly drove off.
In a recorded conversation on August 18, Gooden told
Millet that the dealer and the dealer’s Chicago associate
believed Gooden was involved in the robbery. Gooden
said that several days earlier the associate had threatened
him and given him twenty-four hours to return the cash.
Gooden then asked Millet’s help to get a gun, saying “[a]ll
I need is a sword big brother. Man, man . . . Help me.”
Millet agreed to give Gooden a gun. But even after doing
so, Millet tried to convince Gooden that he might not
need to use the gun. Millet explained that they could
“send a message” to the associate by robbing him of what-
ever money remained. This, Millet said, would temper the
bagman’s desire to hurt Gooden. On August 23, Gooden,
accompanied by an undercover ATF agent posing as his
girlfriend, went to Millet’s home and retrieved a shotgun
that Millet supplied to Gooden for protection.
Millet was arrested on October 26, 2004. After speaking
with an attorney, Millet signed a cooperation agreement
and agreed to discuss the attempted robbery with FBI
Special Agent David Twohig. Millet’s conversation with
Twohig was not recorded, but two of Millet’s attorneys
were present during the meeting. According to Twohig,
10 Nos. 06-2678 & 06-2893
Millet made the following statements during the meeting.
He said “the main focus of the robbery was going to be
the recovery of money from drug proceeds,” and that
“any drugs that were going to be recovered were to be
given to Mr. Gooden.” Millet also reportedly said that
he knew “there was going to be a duffel bag with money
and drugs stored in the vehicle.” Finally, Twohig said
Millet identified his police contact as Melvin Jones.
Millet and Jones were named in a superseding indict-
ment. The indictment charged Millet with: (1) conspiring
to possess with intent to distribute more than 500 grams
of cocaine in violation of 21 U.S.C. § 841(a)(1) and
18 U.S.C. § 2; (2) attempting to possess with intent to
distribute a controlled substance in violation of 21 U.S.C.
§ 846; and (3) knowingly disposing of a firearm to a known
felon in violation of 18 U.S.C. § 922(d). During a five-day
trial, the jury heard the recordings detailed above, Agent
Twohig testified to Millet’s confession, and Millet offered
his version of events. Millet explained that he and Gooden
were under the influence of drugs during many of the
recorded conversations. He admitted that he was willing
to rob drug dealers of cash because dealers had profited
from his addiction. But he vigorously denied any intent
to rob the fictitious dealer of drugs. Millet said that he did
not remember Gooden telling him there was cocaine in
the trunk of the Cadillac and that he never heard Gooden
ask for the drugs found in the duffel bag. When confronted
with his statements regarding the number of fake kilo-
grams of cocaine, Millet offered an implausible explana-
tion. Millet testified that he meant to indicate that three
men drove up beside the Cadillac to carry out the rob-
bery, not that there were three fake kilograms of cocaine.
Millet also acknowledged that on the day of his arrest,
Agent Twohig treated him well. Finally, he admitted
to answering some questions, but denied ever saying that
any cocaine recovered during the robbery would go to
Gooden.
Nos. 06-2678 & 06-2893 11
During the jury instructions conference, Millet proposed
an entrapment instruction on all three counts, but the
district court only gave the instruction as to the third,
saying the evidence did not justify giving the instruc-
tion on the drug distribution counts. The jury convicted
Millet on Counts One and Two, and acquitted him on
Count Three. He moved for a new trial, and that request
was denied.
At sentencing, the government argued that Millet should
be sentenced based on a drug amount between two and
3.5 kilograms. The court instead settled on a drug quantity
of between 500 grams and two kilograms. The court
imposed a four-level role in the offense enhancement,
denied Millet’s request for safety-valve relief, and did not
impose an enhancement for obstruction of justice. The
court refused Millet’s request for a below-Guidelines
sentence and settled on a 97 month sentence, which fell
at the bottom of the Guidelines range. Millet now ap-
peals the denial of his request for an entrapment instruc-
tion, his convictions, and his sentence. The government
cross appeals, asserting that the district court erred in
calculating the amount of drugs involved in the crime.
II. ANALYSIS
A. The District Court Did Not Err in Refusing to
Provide an Entrapment Instruction on Counts
One and Two
Millet contends the district court erred in refusing to
give an entrapment instruction on Counts One and Two.
We review the district court’s decision de novo. United
States v. Al-Shahin, 474 F.3d 941, 947 (7th Cir. 2007). A
defendant is entitled to an instruction on his theory of
defense if: (1) the instruction provides a correct state-
ment of the law; (2) the theory of defense is supported
12 Nos. 06-2678 & 06-2893
by the evidence; (3) the theory of the defense is not part
of the government’s charge; and (4) the failure to in-
clude the instruction would deprive the defendant of a
fair trial. Id. The defendant was not entitled to an entrap-
ment instruction on Counts One and Two because he
failed to show that his defense theory was supported by
the evidence.
When claiming entrapment, a defendant must proffer
evidence in support of both of the elements of entrapment:
lack of predisposition on the part of the defendant to
engage in criminal conduct and government inducement
of the crime. See United States v. Haddad, 462 F.3d 783,
789-90 (7th Cir. 2006). If the evidence shows predisposi-
tion, we may reject the entrapment defense without
considering whether the defendant was induced. United
States v. Bek, 493 F.3d 790, 800 (7th Cir. 2007).
1. Millet Was Predisposed to Commit the Acts
Charged in Counts One and Two
In assessing whether a defendant was predisposed to
commit the charged offense, we consider the following
factors:
(1) the defendant’s character or reputation;
(2) whether the government initially suggested
the criminal activity; (3) whether the defendant
engaged in the criminal activity for profit;
(4) whether the defendant evidenced a reluctance
to commit the offense that was overcome by gov-
ernment persuasion; and (5) the nature of the
inducement or persuasion by the government.
United States v. Blassingame, 197 F.3d 271, 281 (7th Cir.
1999). We begin with the fourth factor, which we have
declared to be the most important in our assessment.
See id.Nos. 06-2678 & 06-2893 13
Millet contends he was reluctant to include the theft of
drugs in the robbery scheme, but the record suggests
otherwise. From day one, Millet showed a willingness to
join a conspiracy that might include the stealing of drugs.
During Gooden and Millet’s first conversation about the
robbery, Gooden said the dealer would have “20 [kilograms
of cocaine] and 200 pounds [of] weed” and stated, “I wanna
take it.” Gooden did not specify whether “it” referred to
drugs or money. But “it” was most likely a reference to
the dealer’s inventory, which had been the topic of con-
versation up to that point. Without elaborating on his
intentions, Gooden invited, but did not pressure, Millet to
participate. In fact, Gooden said he would “sting ’em
regardless,” and told Millet “if you don’t want no parts of
it only thing I probably need from you . . . is a sword, a
gat.” Millet jumped at the opportunity, despite the possi-
bility that the heist would target drugs, saying “Yeah,
I want some parts of it.”
In subsequent conversations, Millet expressed a prefer-
ence for money over drugs. He wanted to wait to commit
the robbery until the dealer had an opportunity to “money
up” and disclaimed any personal interest in the drugs,
saying “That’s yours, that’s yours. No that’s yours,” “we
ain’t finna fuck with that like that man,” and “all that
other shit, you know . . . that’s your expertise.” So Millet
had no personal interest in selling drugs, but was undis-
turbed by the notion that Gooden might include drugs in
his take. When Gooden asked if he could steal drugs,
Millet said, “Yeah man, you know,” and “that’s money too.”
The record does not suggest even an initial reluctance,
which is itself insufficient to show a lack of predisposition,
see United States v. Brown, 136 F.3d 1176, 1185 (7th Cir.
1998). Millet has failed to show a reluctance to com-
mit the offense that was overcome only by government
persuasion.
The record also belies Millet’s argument that the gov-
ernment offered some extraordinary benefit sufficient to
14 Nos. 06-2678 & 06-2893
overcome an innocent person’s resistance to committing
the crime. Millet suggests that we find inducement
based on the fact that the government introduced drugs
into the scheme, applied constant pressure on him to
complete the crime, and dangled huge profits in front of
him. But, on these facts, the government’s actions did
not constitute extraordinary inducement.
The mere fact that the government crafted a scheme,
which included drugs, is not sufficient. See United States
v. Higham, 98 F.3d 285, 290-91 (7th Cir. 1996); United
States v. Akinsanya, 53 F.3d 852, 858 (7th Cir. 1995). The
government did not place any exceptional amount of
pressure on Millet. Rather, from the outset, Gooden
communicated that Millet was welcome to participate
but that he did not have to do so. It was Millet who
willingly joined the conspiracy when he said, “Yeah, I want
some parts of it.” Moreover, “the government’s persistence
in attempting to set up a drug transaction is not alone
sufficient to carry the case beyond an ordinary opportu-
nity.” United States v. Santiago-Godinez, 12 F.3d 722, 729
(7th Cir. 1993); United States v. Casanova, 970 F.2d 371,
376 (7th Cir. 1992).
Finally, Millet contends that the government’s induce-
ment was extraordinary because the government suggested
that he could make huge profits from the robbery. Given
the large quantity of drugs the fictitious dealer was said
to possess, the heist could conceivably net several hundred
thousand dollars. Still, this case stands in stark con-
trast to the classic example of extraordinary inducement,
i.e., where “the police offered a derelict $100,000 to com-
mit a minor crime that he wouldn’t have dreamed of
committing for the usual gain that such a crime could be
expected to yield, and he accepted the offer and committed
the crime . . . .” United States v. Evans, 924 F.2d 714, 717
(7th Cir. 1991). Millet was a lawyer (albeit one struggling
with a serious addiction), not a derelict, and his offense
Nos. 06-2678 & 06-2893 15
was no minor offense that any law abiding citizen would
commit if only given the right financial incentive.
Moreover, the huge profits do not appear to explain
Millet’s participation in the criminal endeavor. First,
Millet admits that he committed robberies of cash in the
past for smaller sums of money. So he cannot say that
he would only rob a dealer of cash if an extraordinary
gain could be had. The extraordinary sums also fail to
explain his basis for including the theft of drugs in the
conspiracy. Given that Millet wanted to wait until the
dealer had converted most of his drugs into cash and
appears not to have expected to reap any profit from the
theft of the drugs, he did not agree to Gooden’s request
to rob the dealer of his drugs in anticipation of reaping
extraordinary gains. See United States v. Mahkimetas, 991
F.2d 379, 386 (7th Cir. 1993) (“[t]o show improper in-
ducement, a defendant must put forth evidence showing
that he would not have committed the crime had the
particular attraction or lure that the government held
out not existed” (internal quotation marks and citations
omitted)). This is particularly true since Gooden did not
threaten to exclude Millet from the scheme if drugs
were not included in the take. The remaining factors do
little, if anything, to help Millet carry his burden.
Millet next contends that he did not have the character
to commit the crimes charged in Counts One and Two. We
cannot be so sure. Millet readily admitted a willingness
to profit from drug sales, if not to sell drugs himself. He
had stolen drug money in the past, at times with the
assistance of corrupt officers. And he called a drug dealer
his friend. Millet did not manifest the character of one
who would reject outright the notion of placing drugs in
the hands of a dealer. Clearly, “the record discloses a less
than law abiding background.” Casanova, 970 F.2d at 375.
Millet’s criminal predisposition is further supported by
the fact that he is the one who introduced the idea of
16 Nos. 06-2678 & 06-2893
robbing drug dealers. While Gooden was the first to
suggest robbing a specific dealer (one who did not exist),
Millet had previously introduced the broad idea of stealing
from dealers, had robbed dealers in the past, and asked
Gooden’s assistance in doing so. That Gooden suggested
a particular dealer and asked permission to do the obvious,
steal drugs from a drug dealer, does little to advance
Millet’s lack of predisposition argument.
Finally, Millet expected to profit from the conspiracy, if
not from the sale of drugs. Although Millet did not expect
to gain from the conspiracy’s secondary purpose—the
recovery of drugs—he certainly joined the overall conspir-
acy with the expectation of making a profit.
In sum, because Millet has failed to show that he lacked
the predisposition to commit the crimes charged in Counts
One and Two, the district court did not err in refusing
to give an entrapment instruction on those counts.
B. The Evidence Was Sufficient to Support Millet’s
Convictions
Next, Millet argues that there was insufficient evidence
to support his convictions. In making such an argument,
Millet faces a steep hurdle. Bek, 493 F.3d at 798. “Consid-
ering the great deference owed to the jury’s verdict, we
will view all the evidence and draw all reasonable infer-
ences in the light most favorable to the prosecution and
uphold the verdict if ‘any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt.’ ” United States v. Hicks, 368 F.3d 801, 804-05
(7th Cir. 2004) (quoting United States v. Gardner, 238
F.3d 878, 879 (7th Cir. 2001)).
First, Millet argues that he never agreed that the
robbery would target drugs. There was ample evidence to
the contrary. At Gooden’s request, Millet agreed to ad-
Nos. 06-2678 & 06-2893 17
just the terms of the conspiracy to include the theft of
drugs. The fact that he wanted the dealer to “money up”
and become a “cash cow” is not inconsistent with the
view that the conspiracy would also target drugs. Indeed,
Agent Twohig testified that Millet told him money was
the “main focus” of the robbery, but also that any drugs
recovered would be turned over to Gooden.
Second, Millet contends that he did not know that the
duffel bag contained drugs. This argument is also unper-
suasive. Since Gooden relayed to Millet that the drugs
he purchased were pulled from the trunk of the car, Millet
could have reasonably foreseen that the duffel bag con-
tained both money and drugs, and the jurors heard
testimony that Millet admitted knowing that the bag
contained both money and drugs.
Finally, Millet says that there is no evidence that he
conspired to steal drugs with anyone other than police
informant Gooden (and one cannot conspire with a police
informant, see United States v. Contreras, 249 F.3d 595,
599 (7th Cir. 2001)). Millet notes that he and Gooden
were the only persons to engage in recorded conversa-
tions about stealing drugs. This, he says, prevented the
government from showing that other members of the
conspiracy intended to engage in a conspiracy to steal and
distribute drugs. However, this argument fails because
there was sufficient evidence for a jury to infer that
Millet’s actual co-conspirators (the crooked police officer
and others) shared his intent to steal drugs and give them
to a known dealer. Specifically, since Millet did not take
part in the robbery, he had to tell others to steal money
and drugs to ensure that both would be taken. Addi-
tionally, given that the conspirators knew they were
robbing a drug dealer, they could have reasonably foreseen
that drugs would be present in the duffel bag. A jury could
have reasonably inferred that the persons to execute the
robbery knew and adopted Millet’s intent to steal drugs.
18 Nos. 06-2678 & 06-2893
C. The District Court Did Not Err in Giving the
Role in the Offense Enhancement or Denying
the Safety Valve Reduction
Millet takes issue with the district court’s assignment of
a four-level role in the offense enhancement. Such an
enhancement may be given if the defendant was a leader
in the offense and the offense involved at least five per-
sons or was otherwise extensive. See United States
Sentencing Commission Guidelines Manual (“U.S.S.G.”)
§ 3B1.1(a). These factual questions are reviewed for
clear error. See United States v. Hernandez, 330 F.3d 964,
990 (7th Cir. 2003). Under this standard, we will only
reverse if left with a definite and firm conviction that a
mistake has been made. United States v. Marty, 450 F.3d
687, 689-90 (7th Cir. 2006).
Millet contends that Gooden was the leader in the
offense and that he was not.1 We disagree. In deciding
whether to apply the enhancement, courts consider:
[T]he exercise of decision making authority, the
nature of participation in the commission of the
offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of the
crime, the degree of participation in planning or
organizing the offense, the nature and scope of the
illegal activity, and the degree of control and
authority exercised over others.
U.S.S.G. § 3B1.1, App. Note 4.
These factors point to Millet as a leader in the offense.
Millet certainly exercised decision-making authority. From
day one, he told Gooden that he wanted to be involved,
1
Millet seems to suggest that there can be only one leader in an
offense but that is not the case. See U.S.S.G. § 3B1.1, App.
Note 4.
Nos. 06-2678 & 06-2893 19
structured the robbery to include police officers, and
recruited the other participants. Gooden even pretended
to drop some people from the conspiracy in order to
incorporate Millet’s contacts. Millet made the decision that
the robbery should be delayed until the dealer could
“money up.” He was the conduit of information between
Gooden and Jones, and those two individuals sat on the
margins. Indeed, Millet even notes in his brief that
“Gooden operated at the periphery of the conspiracy.”
Opening Br. of Defendant-Appellant at 37. We can tell that
Gooden came to view Millet as a leader in that Gooden
asked Millet’s permission to take drugs during the rob-
bery.
Also, the district court did not err in finding that the
conspiracy involved at least five individuals: Millet, the
corrupt police officer, and the three individuals in the
car that sped off with the duffel bag. All of those individu-
als were participants in the conspiracy, meaning they were
“criminally responsible for the commission of the offense,”
U.S.S.G. § 3B1.1, App. Note 1, because they gave “knowing
aid in some part of the criminal enterprise.” United States
v. Hall, 101 F.3d 1174, 1178 (7th Cir. 1996). During the
robbery, one grabbed the bag, another acted as a get-
away driver, and the court reasonably believed that the
final person acted as a lookout or protection.
Because the defendant had a leadership role in the
offense, the district court properly denied his request
for a reduction under U.S.S.G § 5C1.2, the safety-valve
provision, which grants defendants relief from statutory
mandatory minimum sentences. A leader or organizer
of criminal activity is disqualified from receiving that
benefit. U.S.S.G. § 5C1.2(a)(4).
20 Nos. 06-2678 & 06-2893
D. The District Court Did Not Err in Addressing
Millet’s Arguments for a Non-Guidelines Sen-
tence
Millet contends that the district court did not consider
the 18 U.S.C. § 3553(a) factors when arriving at a sen-
tence. We evaluate a claim that a district court has
failed to comply with the sentencing procedures in place
after United States v. Booker, 543 U.S. 220 (2005), under
a non-deferential standard of review. United States v.
Rodriguez-Alvarez, 425 F.3d 1041, 1046 (7th Cir. 2005).
After Booker, a sentencing court must: (1) calculate
the applicable Guidelines range; (2) give the defendant
an opportunity to identify any of the 18 U.S.C. § 3553(a)
factors that might warrant a non-Guidelines sentence;
and (3) state which factors influenced the final sentence.
Id. at 1047. The district court satisfied each of these
requirements. First, the district court considered each
party’s argument regarding adjustments for a firearm, a
leadership role, acceptance of responsibility, and obstruc-
tion of justice. The court also addressed the defendant’s
motion for a downward departure based on impairments
caused by his Interferon treatments for Hepatitis C,
familial circumstances, and depression, and rightly
concluded that these conditions were not grounds for a
departure. See U.S.S.G. §§ 5H1.3, 5H1.4, 5H1.6. The
district court arrived at an offense level of thirty and a
criminal history category of a Guidelines range of 97 to
121 months.
The court then allowed both parties to argue for a
particular sentence. The government asked for a Guide-
lines sentence, emphasizing that the defendant had
violated his duties as an officer of the court and had not
shown remorse. The defendant argued for a below-Guide-
lines sentence, reminding the court of his familial circum-
stances and pointing out that the court could consider the
Nos. 06-2678 & 06-2893 21
health implications of Interferon treatments under
§ 3553(a). The court listened to both sides and imposed
a ninety-seven month sentence, which fell at the bottom
of the guideline range. It is evident that the court con-
sidered several of the § 3553(a) factors in arriving at his
sentence. The court addressed the defendant’s history
and characteristics, referencing Millet’s “tough begin-
nings,” his failure to live up to his role as an officer of the
court, and his claims to have committed armed robbery in
the past. See § 3553(a)(1). The court evaluated the serious-
ness of the offense, noting that the case involved a mem-
ber of the bar prepared to engage in armed robbery. See
§ 3553(a)(2). By recommending substance abuse treat-
ment during and after Millet’s incarceration, the court
crafted a sentence to address the defendant’s particular
treatment needs. See § 3553(a)(2)(D). In settling on a
sentence within the Guidelines range, the court necessar-
ily took the Guidelines into account. See § 3553(a)(4).
Additionally, as explained below, the court addressed
Millet’s concerns regarding sentencing manipulation in
arriving at a drug amount for sentencing purposes.
Although the defendant might have liked the court to
address each of his arguments for a below-Guidelines
sentence in detail and list each § 3553(a) factor bearing on
the sentencing determination, the court was not required
to do so. See Rodriguez-Alvarez, 425 F.3d at 1047; United
States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005); United
States v. George, 403 F.3d 470, 472-73 (7th Cir. 2005). The
district court gave an adequate statement of reasons
for the sentence.
E. The District Court Should Have Made an Inde-
pendent Factual Determination as to the Amount
of Drugs Millet Conspired to Steal
In its cross appeal, the government argues that the
district court misapplied the Guidelines in not taking
22 Nos. 06-2678 & 06-2893
into account the full weight of the fake drugs stolen from
the trunk of the Cadillac. Specifically, the government
finds fault with the district court’s decision to accept the
jury’s determination of drug quantity because it was
“troubled by the scenario in which the offense level is
driven to a considerable extent by actions that the gov-
ernment takes in terms of deciding how many kilos to
plant in the truck.” The government suggests that under
U.S.S.G. § 2D1.1, the district court was obligated to
calculate Millet’s offense level based on the total amount
of cocaine that the defendant attempted or conspired to
possess—the two kilograms of fake drugs actually
taken from the automobile. We review the district court’s
interpretation of the Guidelines de novo and its finding
of facts for clear error. See United States v. Melendez, 467
F.3d 606, 607 (7th Cir. 2006).
To begin, the Guidelines are sensitive to the very
concerns expressed by the district court: “[I]n a reverse
sting, the agreed-upon quantity of the controlled sub-
stance would more accurately reflect the scale of the
offense because the amount actually delivered is con-
trolled by the government, not by the defendant.” See
U.S.S.G. § 2D1.1, App. Note 12. So it would not have
been error to calculate Millet’s Guideline range based on
the amount of drugs that he and his co-conspirators
agreed to steal. See United States v. Burke, 431 F.3d 883,
888 (5th Cir. 2005); United States v. Samuels, 308 F.3d
662, 670 (6th Cir. 2002); United States v. Mankiewicz, 122
F.3d 399, 402 (7th Cir. 1997). However, in determining
Millet’s offense level, the district court relied only on the
jury’s conclusion that Millet and his colleagues conspired
to steal at least 500 grams. Neither the district court nor
the jury made an independent determination of the
quantity of drugs that Millet and his co-conspirators
agreed to steal. See U.S.S.G. § 1B1.3, App. Note 2. A
factual determination of drug quantity is needed to
Nos. 06-2678 & 06-2893 23
calculate the defendant’s offense level. See United States
v. Bokhari, 430 F.3d 861, 864 (7th Cir. 2005) (stating that
“it is the role of the district court . . . to make the initial
factual findings necessary to support a sentencing cal-
culation”). Therefore, we remand this case for the dis-
trict court judge to make an independent determination as
to drug quantity, and on remand, the district court may
well issue the same sentence after first determining
the drug quantity and appropriate sentence calculation
under the advisory Guidelines scheme.
III. CONCLUSION
For the reasons detailed above, the judgment of the
district court is affirmed in part and reversed in part. This
case is REMANDED for re-sentencing.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-14-07