United States v. Woolsey, Charles M.

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-4058 & 06-4213
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Cross-Appellant,
v.
CHARLES M. WOOLSEY,
Defendant-Appellant,
Cross-Appellee.
____________
Appeals from the United States District Court
for the Southern District of Indiana, New Albany Division.
No. 4:05CR00014-001––David F. Hamilton, Chief Judge.
____________
ARGUED SEPTEMBER 5, 2007—DECIDED JULY 22, 2008
____________
Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Charles Woolsey was convicted
of drug and firearms offenses after police executed a
search warrant at his residence and discovered a cache
of guns, cocaine, marijuana, and methamphetamine. On
appeal Woolsey challenges the denial of his motion to
suppress the evidence seized at his house, as well as the
district court’s exclusion of two witnesses at his jury trial.
2 Nos. 06-4058 & 06-4213
The government cross-appeals and argues that at sen-
tencing the district court erred in refusing to impose a
life term on his conviction for possession of metham-
phetamine with intent to distribute. We affirm Woolsey’s
convictions but vacate his sentence on the methamphet-
amine count and remand with directions to impose a
life term on that count.
I.
A. Initial Investigation
In March 2005, after police in Paoli, Indiana, had re-
ceived complaints of drug activity, Police Chief Barry
Chastain and Assistant Police Chief Josh Babcock visited
the home of Melissa McCoy. The man who answered the
door—Robert “Bo” Tuell—exhibited signs of heavy drug
abuse, including sores on his face. Chastain and Babcock
knew Tuell, if distantly, and had noticed him around
town in recent months in worsening health. The officers
had also heard rumors that Tuell was selling metham-
phetamine. Their conversation was brief. Chastain and
Babcock told Tuell that if he continued to use and sell
drugs he would “end up back in jail or worse,” that he
needed to stop, and that help was available at a local
drug rehabilitation center. Neither officer threatened arrest.
A few weeks later Tuell contacted Chastain and asked
for assistance. Tuell explained that he was “strung out,”
had ruined a lot of lives, and no longer wanted to be
involved with drugs. Chastain then contacted a local
rehabilitation counselor, and the three men met to dis-
cuss Tuell’s problems. During the meeting Tuell admitted
that he was a drug dealer—and that he was selling drugs
for Charles Woolsey. Chastain invited Tuell to elaborate,
Nos. 06-4058 & 06-4213 3
although he did not offer Tuell any reward for the infor-
mation or threaten Tuell with arrest. Nevertheless, Tuell
told Chastain that in the previous week he had seen over
two pounds of methamphetamine at Woolsey’s house
as well as marijuana and cocaine, all of which could be
found in Woolsey’s tool box, a lock box, or in various
trash cans inside the house. Tuell also mentioned that
Woolsey had recently traveled to Texas, as he did each
month, to obtain a fresh shipment of drugs. When asked
to identify Woolsey, Tuell reported that Woolsey drove
a mid-1990s blue Chevrolet extended-cab pickup truck.
Tuell also provided a home phone number and cell
phone number for Woolsey. Chastain immediately com-
municated this information to Babcock, who super-
vised all drug investigations.
In an effort to corroborate Tuell’s statements, Babcock
spoke with Indiana State Trooper Jonathan Lamb, who
confirmed Tuell’s description of Woolsey’s pickup. Bab-
cock also spoke with Sergeant Paul Andry of the
Indiana State Police, who told Babcock that Tuell had
once before provided reliable information that led to a
criminal conviction, albeit ten to twelve years earlier.
Babcock then prepared an affidavit of probable cause
(summarizing the information provided by Tuell, Lamb,
and Andry) and a proposed search warrant for Woolsey’s
house. In his affidavit, Babcock revealed that Tuell (de-
scribed in the affidavit as a confidential informant) was
a drug addict:
The C.I. is neither seeking leniency nor financial
compensation in exchange for the information that
they have [sic] given. The C.I. is concerned about the
use of illegal drugs, especially methamphetamine, in
the county. The C.I. also stated that they was [sic]
4 Nos. 06-4058 & 06-4213
addicted to methamphetamine and needs help for
his addiction.
A state judge approved the search warrant.
On April 7, 2005, law enforcement officers executed
the search warrant and discovered approximately one-
half pound of cocaine, two pounds of methampheta-
mine, thirty-one pounds of marijuana, numerous guns,
and $16,000 in currency in and around Woolsey’s home.
Federal authorities then took over the investigation and
charged Woolsey in a superseding indictment with pos-
session with intent to distribute 500 grams or more of
methamphetamine, see 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii),
possession with intent to distribute cocaine, see id.U.S.C. § 841(a)(1), possession with intent to distribute
marijuana, see id. U.S.C. § 841(a)(1), (b)(1)(D), possession
of a firearm in furtherance of a drug trafficking crime,
see 18 U.S.C. § 924(c)(1)(A)(i), and possession of a firearm
by a felon, see id. U.S.C. § 922(g)(1).
B. District Court Proceedings
Before trial Woolsey moved to suppress the evidence
seized from his home because, he maintained, the search
warrant was not supported by probable cause. Woolsey
argued that there was no significant corroboration of
Tuell’s statements prior to the search and Tuell’s reliability
as an informant could not rest on a single instance of
useful information provided over a decade ago. Woolsey
also sought suppression under a second, alternative
theory, asserting that Babcock’s affidavit provided false
information and omitted material facts that undermined
probable cause. See Franks v. Delaware, 438 U.S. 154 (1978).
According to Woolsey, the supporting affidavit mis-
Nos. 06-4058 & 06-4213 5
characterized Tuell as a concerned citizen and deceived
the issuing judge by failing to mention that Tuell was a
drug dealer, that Chastain and Babcock had threatened
him with arrest, and that ten years had passed since he
last cooperated with law enforcement. Moreover,
Woolsey argued, Tuell now denied that he ever spoke
to Chastain about Woolsey’s marijuana or Woolsey’s
supplier in Texas.
Following a suppression hearing, the district court
concluded that the supporting affidavit did not establish
probable cause but held, nonetheless, that suppression
was inappropriate in light of the exception enunciated in
United States v. Leon, 468 U.S. 897 (1984). Despite the
absence of probable cause, the district court explained,
the officers had obtained and executed the warrant in
good faith. And Babcock had not, according to the court,
intentionally or recklessly misled the judge who issued
the warrant:
So, even with the deference that a court in my situa-
tion owes to the judge at the time, and even in light of
the flexible and common sense approach we take to
issues of probable cause, I think this was too thin to
establish probable cause. There was no corroboration
of anything incriminating and it all depended on the
uncertain reliability of Mr. Tuell.
....
There are differences between what Chastain and
Babcock remember about what Tuell told Chastain and
what Chastain relayed to Babcock, and what Tuell
remembers about whether he said anything about
marijuana, and whether he told Chastain anything
about his source on or about April 7th, as opposed to
a week or so later.
6 Nos. 06-4058 & 06-4213
I think Chastain and Babcock are credible. I don’t
think what they put in the affidavit is a hundred
percent accurate, but I do believe that they were
being honest in relaying the information.
I also don’t find that there were deliberate omis-
sions or deliberate deceptions in what was presented
to the judge. They let the judge know that Tuell was
a methamphetamine addict. The information that
they had about whether he was involved in dealing
was sketchy enough and dicey enough that I don’t
believe they acted irresponsibly and certainly not
dishonestly by leaving that information out.
After this ruling, Woolsey requested that the district
court compel the appearance at trial of two men in
state custody, Mark Frentz and David Turner. See 28
U.S.C. § 2241(c)(5). Woolsey informed the court that he
anticipated eliciting the following testimony: prior to
Woolsey’s arrest, Frentz—who at the time was in the
county jail awaiting trial on unrelated drug and murder
charges—had suspected that Woolsey was involved
romantically with his girlfriend, and had tried to re-
taliate by soliciting other inmates, including Turner, to
kill Woolsey or plant drugs at his residence. Despite
skepticism that the two men could provide admissible
testimony even if they were willing, the court granted
Woolsey’s request for writs of habeas corpus ad testifican-
dum. See id.On the second day of trial, Frentz and Turner proffered
their testimony outside the presence of the jury. Not
surprisingly, Frentz invoked his Fifth Amendment right
against self-incrimination and refused to answer ques-
tions about his conversations with other jail inmates. He
did, however, deny asking anyone in jail to plant drugs
Nos. 06-4058 & 06-4213 7
on Woolsey’s property. The district court in turn con-
cluded that Frentz had no relevant testimony to offer
the jury and refused to permit his appearance “simply
for the purpose of inviting him to take the 5th Amend-
ment in front of the jury.”
Turner’s proffer was more complex. The district court
summarized the proposed testimony following a series
of questions posed to Turner:
The critical testimony, as I understand it, is that
Mr. Turner would testify that shortly after Mr. Frentz
arrived in his cell block . . . in late January of 2005,
Mr. Frentz expressed jealousy and hatred towards
Mr. Woolsey, and expressed a desire to either kill
Mr. Woolsey or set him up by having someone plant
drugs at Mr. Woolsey’s property.
The testimony would also be that Mr. Turner did not
accept this invitation; that Mr. Frentz remained in
custody at all relevant times, as did Mr. Turner; and
that there is no evidence from Mr. Turner that Frentz
invited anyone else to carry out such a scheme.
The district court concluded that Turner’s testimony
would not be relevant because it established only
Frentz’s motive but not opportunity. After all, the court
noted, “we know that Turner didn’t do it; Frentz didn’t
do it himself; and there’s no evidence that anybody else
did.” Furthermore, the court reasoned, the particular
frame-up that Turner had said Frentz solicited was in-
consistent with the evidence found in Woolsey’s home.
Turner had reported that Frentz proposed building a
methamphetamine laboratory in an outbuilding on
Woolsey’s property and scattering loose marijuana else-
where on the premises. But, as the court observed, the
8 Nos. 06-4058 & 06-4213
methamphetamine, cocaine, and marijuana actually
seized from Woolsey’s residence was worth over
$40,000, an amount that far exceeded what Frentz
could have mustered, however indirectly, after his arrest
and the seizure of his own drugs. Even if Turner’s testi-
mony was relevant, the court continued, it would not
satisfy Federal Rule of Evidence 403 because its potential
to delay the trial or confuse and mislead the jury ex-
ceeded its slight probative value (“virtually zero”). Finally,
the court added, the hearsay exception for statements
against interest would not authorize Turner to testify
about Frentz’s jailhouse solicitation because of the
absence of corroborating circumstances that might sup-
port the trustworthiness of the statements attributed to
Frentz. See FED. R. EVID. 804(b)(3).
At the conclusion of trial, the jury found Woolsey
guilty of all five offenses charged in the superseding
indictment.
C. Sentencing
Prior to trial the government filed an enhancement
information, see 21 U.S.C. § 851, detailing two prior drug
felonies that would trigger a mandatory term of life
imprisonment if, as was alleged in the first count of the
superseding indictment, Woolsey possessed for distribu-
tion at least 500 grams of methamphetamine, see 21
U.S.C. § 841(b)(1)(A)(viii). At sentencing Woolsey con-
ceded that his 1997 Indiana conviction would count for
enhancement purposes, but he challenged the use of his
1974 federal conviction. In 1974, Woolsey explained, an
Arizona district court had sentenced him to two years’
probation under the Federal Youth Corrections Act for
Nos. 06-4058 & 06-4213 9
possessing with intent to distribute approximately
125 pounds of marijuana. Woolsey recounted that his
probation officer had informed him that this conviction
would be set aside automatically upon successful com-
pletion of his probation. But this information was not
accurate, as Woolsey now understood; only an early
discharge of probation had the effect of setting aside a
conviction under the Act, and because Woolsey’s term
was not discharged early, his only recourse after he
completed his probation in 1976 was to petition the dis-
trict court in Arizona to grant him a nunc pro tunc
early unconditional discharge and set aside his convic-
tion. See Tuten v. United States, 460 U.S. 660, 668 (1983);
United States v. Sumner, 226 F.3d 1005, 1009-10 (9th Cir.
2000); United States v. Gardner, 860 F.2d 1391, 1399 (7th Cir.
1988). Woolsey professed that he was unaware of this
requirement until seeing the government’s enhancement
information, which explained why his conviction was
still on the books.
Eager to avoid life imprisonment, Woolsey asked the
district court in this case to set aside his 1974 conviction.
The government urged the court to reject the motion
for numerous reasons, chief among them was that the
court lacked jurisdiction to fulfill the request. Furthermore,
the government insisted, Woolsey’s maneuvering con-
stituted a collateral attack on his earlier conviction—and
the clock had long since run on the five-year statute of
limitations found in 21 U.S.C. § 851(e). The court re-
sponded by postponing Woolsey’s sentencing so he
could seek relief from the Arizona district court. But after
nearly five months had passed with no ruling from Ari-
10 Nos. 06-4058 & 06-4213
zona,1 the court decided to proceed with sentencing
but disregard the 1974 conviction for purposes of
§ 841(b)(1)(A):
I believe it is also appropriate under these circum-
stances to not count the 1974 marijuana conviction
for this purpose. On that issue, with respect to both
the guidelines and the 851 issue, I will say that it
seems to me that there is no apparent reasons in this
record why the defendant should not have been
discharged early as to what is the customary practice
as was intended and, in essence, the Court ought to
treat as having been done what should have been done
under general equitable powers.
Still, even one prior felony drug conviction subjected
Woolsey to a twenty-year mandatory minimum. See 21
U.S.C. § 841(b)(1)(A)(viii). And his § 924(c) charge carried
an additional, consecutive five-year mandatory mini-
mum term. See 18 U.S.C. § 924(c)(1)(A)(i). The applicable
guidelines imprisonment range, without regard to the
statutory minimums, was 235 to 293 months after
pairing Woolsey’s total offense level of 36 with his crim-
inal history category of III. Ultimately, the court imposed
concurrent sentences totaling 240 months on the drug
and § 922(g)(1) counts plus the consecutive 60-month
term on the § 924(c) count. All told, Woolsey would
serve 300 months in prison.
1
The Arizona court eventually denied the motion on Febru-
ary 5, 2007, more than three months after Woolsey was sen-
tenced in this case.
Nos. 06-4058 & 06-4213 11
II.
A. The Leon Question
On appeal Woolsey renews his argument that he was
entitled to suppression because, according to Woolsey,
Leon’s good-faith exception cannot save the search war-
rant. The government takes up the Leon question as well
but does not probe whether probable cause supported
the warrant—the preceding question.
A faulty warrant and an illegal search do not neces-
sarily entitle a defendant to suppression of evidence.
United States v. Mykytiuk, 402 F.3d 773, 777 (7th Cir.
2005). The Supreme Court announced in Leon, 468 U.S.
at 923-26, that suppression is inappropriate if the police
officers who executed a later-invalidated search war-
rant did so in good faith. Leon’s rationale is plain: the
exclusionary rule is designed to deter future unlawful
police misconduct. Inherent in Leon’s exception to the
exclusionary rule is “the view that permitting people to
get away with crime is too high a price to pay for errors
that . . . stem from negligence rather than disdain for
constitutional requirements.” United States v. Cazares-
Olivas, 515 F.3d 726, 728 (7th Cir. 2008).
An officer’s decision to obtain a warrant is prima facie
evidence of good faith. United States v. Otero, 495 F.3d
393, 398 (7th Cir. 2007); Mykytiuk, 402 F.3d at 777. A
defendant may rebut this presumption by showing that
the judge who issued the warrant abandoned his
neutral, detached role and acted as a rubber stamp for
the police, or that the affiant intentionally or recklessly
misled the judge, or that the supporting affidavit is so
lacking in indicia of probable cause that an officer’s be-
lief in its existence would have been entirely unreason-
12 Nos. 06-4058 & 06-4213
able, or that the warrant itself is so facially deficient that
the executing officers could not reasonably have believed
it to be valid. See Leon, 468 U.S. at 923; Otero, 495 F.3d at
398. We review de novo the legal conclusion that a law
enforcement officer reasonably relied on a subsequently
invalidated search warrant. See United States v. Koerth,
312 F.3d 862, 865 (7th Cir. 2002).
Woolsey contends that Babcock could not have ob-
tained the warrant in good faith because his affidavit
conveys false information and omits significant facts that
undermine probable cause—all in an effort to deceive the
issuing judge. See Leon, 468 U.S. at 923; Franks, 438 U.S. at
155-56. Woolsey identifies two allegedly false statements
in the affidavit: that Tuell provided Chastain informa-
tion about Woolsey’s supplier and that he also reported
the presence of marijuana in Woolsey’s home. Woolsey’s
brief catalogues a number of purported omissions as
well: that Chastain and Babcock threatened Tuell with
arrest before he provided any information, that Tuell was
a known drug dealer, and that Tuell’s earlier cooperation
with law enforcement was an isolated incident over a
decade ago.
Woolsey’s list is not enough to win his appeal, how-
ever. In order to prevail, a defendant must establish, by
a preponderance of the evidence, that the affidavit con-
tained false or misleading information, that the decep-
tive information was included intentionally or with
reckless disregard for the truth, and that the information
in question was essential to the finding of probable
cause. See Leon, 468 U.S. at 923; Franks, 438 U.S. at 155-56;
United States v. Hoffman, 519 F.3d 672, 675 (7th Cir. 2008).
Because material omissions can be equally deceptive, a
defendant may also challenge an affidavit by showing
Nos. 06-4058 & 06-4213 13
that the affiant intentionally or recklessly omitted mate-
rial information. See Hoffman, 519 F.3d at 675.
Woolsey’s challenge falters because he did not establish
any intentional or reckless falsehood or omission in the
affidavit. Woolsey argued before the district court that
the statements about marijuana and about Woolsey’s
drug source are false because, at the suppression
hearing, Tuell denied making them to Chastain. But
Chastain testified at the same hearing that Tuell did tell
him about the marijuana and Woolsey’s source. And
the district court did not choose to credit one account
over another because the court found that any erroneous
information included in Chastain’s affidavit was inad-
vertent and not reckless. On this point Woolsey is
silent, and we are unpersuaded by his suggestion that
the court clearly erred in its finding. See United States v.
Biggs, 491 F.3d 616, 621 (7th Cir. 2007); United States v.
Salyers, 160 F.3d 1152, 1161-62 (7th Cir. 1998) (emphasizing
that judge’s credibility determination at Franks hearing
is “entitled to a great deal of deference”).
As to the omissions, Woolsey also failed to develop any
argument before the district court that Babcock intention-
ally or recklessly deceived the issuing judge. See Franks,
438 U.S. at 155-56; United States v. Rodriguez-Suazo, 346
F.3d 637, 648-49 (6th Cir. 2003); United States v. Garey,
329 F.3d 573, 577-78 (7th Cir. 2003). Indeed, some of
Woolsey’s proposed omissions are factually infirm. For
example, at the suppression hearing Babcock, Chastain, and
Tuell denied any threat of arrest. More importantly,
Woolsey did not examine, in any depth, whether the
omitted information would have been material to the
determination of probable cause. See Franks, 438 U.S. at 155-
14 Nos. 06-4058 & 06-4213
56. Instead Woolsey identified three facts—some of them
disputed—that he believes Babcock should have in-
cluded in the affidavit. Woolsey then assumes that their
omission was a deliberate act that deceived the issuing
judge into a finding of probable cause. We require more
to rebut the presumption of good faith. See Leon, 468 U.S.
at 923; Franks, 438 U.S. at 155-56; Garey, 329 F.3d at 577-78.
Woolsey had a second suppression theory before the
district court, although he abandoned it prematurely. His
argument was, essentially, that the affidavit did not
establish probable cause and therefore suppression was
appropriate. But that ignores Leon altogether. The very
point of that decision is that suppression does not neces-
sarily follow from a determination that probable cause
was lacking. The question of probable cause is only the
first step, and on this question the district court agreed
with Woolsey that probable cause was absent. The next
step for Woolsey was to argue that the affidavit was so
lacking in indicia of probable cause that an officer’s
belief in its existence would have been completely unrea-
sonable. See Leon, 468 U.S. at 923; Koerth, 312 F.3d at
868. Woolsey never made this argument, but it would
have failed in any event. A defendant can establish unrea-
sonable reliance only if
courts have clearly held that a materially similar
affidavit previously failed to establish probable cause
under facts that were indistinguishable from those
presented in the case at hand [or] the affidavit is so
plainly deficient that any reasonably well-trained
officer would have known that his affidavit failed to
establish probable cause and that he should not have
applied for the warrant.
Nos. 06-4058 & 06-4213 15
Koerth, 312 F.3d at 869 (citations and quotation marks
omitted). The first possibility is out. We cannot say that
courts have clearly held that this affidavit—which states
that a reliable informant spied a specific quantity of
drugs inside of a drug dealer’s residence within the past
week and police officers corroborated at least some of
the informant’s allegations—is insufficient. Cf. United
States v. Garcia, 528 F.3d 481, 486-88 (7th Cir. 2008); Owens
v. United States, 387 F.3d 607, 608 (7th Cir. 2004); United
States v. Peck, 317 F.3d 754, 757-58 (7th Cir. 2003). Nor
can we say that the affidavit is so plainly deficient that
Babcock should have known that it would not amount
to probable cause. Again, the document conveys con-
siderable detail, including the extent to which Chastain
and Babcock had corroborated Tuell’s statements, the
firsthand observations of Tuell, and the amount of time
that had passed since Tuell saw the drugs. See Koerth,
312 F.3d at 868.
B. Exclusion of Witnesses
Woolsey also protests the district court’s decision to
exclude the testimony of Frentz and Turner at trial. We
review evidentiary rulings of this sort for abuse of dis-
cretion. United States v. Evans, 486 F.3d 315, 325 (7th Cir.
2007).
We begin with Frentz. Woolsey insists that Frentz’s
“admission to participation in the scheme [to plant drugs]
and the execution thereof is admissible to show that
Woolsey neither had knowledge of the drugs presence
or intent to distribute them.” The district court might
have agreed except that Frentz never admitted anything
of the sort. To the contrary, when questioned outside
16 Nos. 06-4058 & 06-4213
the jury’s presence, Frentz denied speaking with anyone
in jail about planting drugs on Woolsey’s property. And
when the questions during that proffer session turned to
Frentz’s contact with Turner in jail, Frentz invoked the
Fifth Amendment and refused to answer. Yet Woolsey
contends that he was entitled to question Frentz in front
of the jury, if only to have Frentz again refuse to testify.
He is mistaken. A jury may not draw any inference from
an individual’s decision to exercise his right against self-
incrimination under the Fifth Amendment. See United
States v. Loggins, 486 F.3d 977, 982 (7th Cir. 2007); United
States v. Mabrook, 301 F.3d 503, 507 (7th Cir. 2002); see
also 2A CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE § 407 (3d ed. 2000)
(“[I]t is improper to put a witness on the stand merely to
have him exercise before the jury his privilege against self-
incrimination.”). Woolsey’s only purpose in calling
Frentz would have been to invite the jury to infer from
Frentz’s refusal to testify that Woolsey was not culpable.
The district court was correct to prevent that occurrence.
As to Turner, Woolsey argues that his testimony was
admissible under various hearsay exceptions. See FED. R.
EVID. 804(b)(3), 807; Chambers v. Mississippi, 410 U.S. 284,
302 (1973). But Woolsey neglects to address the district
court’s core ruling—that Turner’s testimony was not
relevant because “there’s no evidence that anybody . . . was
in a position to carry this out.” As the court explained,
“Mr. Frentz may have had a motive to do harm to
Mr. Woolsey, but there is no evidence he had the means
or opportunity to do so.” Woolsey also ignores the
court’s conclusion that even if Turner’s testimony were
relevant, its probative value was substantially out-
weighed by the threat of delaying the trial or confusing
and misleading the jury. See FED. R. EVID. 403.
Nos. 06-4058 & 06-4213 17
Evidence is relevant if it tends “to make the existence
of any fact that is of consequence to the determination of
the action more probable or less probable.” FED. R. EVID.
401. One test of relevance is whether “its exclusion
would leave a chronological and conceptual void in the
story.” United States v. Westbrook, 125 F.3d 996, 1007 (7th
Cir. 1997) (quotation marks and citations omitted); see
United States v. Bailey, 510 F.3d 726, 737-38 (7th Cir. 2007).
As the district court noted, Turner’s testimony would
have been that he did not accept Frentz’s invitation nor
did he know of anyone who did. Moreover, the scheme
that Turner outlined—constructing a methamphetamine
lab on Woolsey’s property and scattering loose mari-
juana—was at odds with the actual evidence in this case.
The court urged Woolsey to present “more efficient or
stronger evidence suggesting that this was actually any
kind of plausible scheme, that Mr. Frentz might have
had the means or opportunity to carry out something
like this.” Woolsey was unable to do so, however, and
we detect no abuse of discretion in excluding Turner’s
testimony.
C. Sentencing Error
The government cross-appeals to challenge the district
court’s decision to ignore, for purposes of § 841(b)(1)(A),
Woolsey’s 1974 federal conviction. We review questions
of law related to sentencing de novo. See United States
v. Mendoza, 510 F.3d 749, 754 (7th Cir. 2007); United States
v. Tyra, 454 F.3d 686, 687 (7th Cir. 2006).
Underlying the district court’s decision is the Federal
Youth Corrections Act (YCA), since repealed, which
authorized a sentencing court to unconditionally dis-
18 Nos. 06-4058 & 06-4213
charge a youth offender from probation before the end
of the term and thus automatically set aside the convic-
tion. See 18 U.S.C. § 5021(b) (repealed 1984); Tuten v. United
States, 460 U.S. 660, 662-68 (1983). The aim of the YCA
was to combat recidivism and promote the rehabilitation
of youth offenders by offering relief from the social and
civil disabilities that accompany a criminal conviction.
Tuten, 460 U.S. at 663-65. The Supreme Court clarified
in Tuten, however, that only early discharge would result
in the conviction being set aside; simply completing
probation was not enough. Id. at 668. And in order to
earn the early discharge a probationer had to demon-
strate good behavior to the sentencing court before the
probationary period ended. Id. at 667-68. If a youth of-
fender believed that the sentencing court’s failure to
grant an early discharge was a mere oversight, however,
he could move that court—even after completion of
probation—to grant him an early unconditional dis-
charge nunc pro tunc. Id. Woolsey argued at sentencing
that the Arizona district court’s inaction was just such an
oversight, and one that could be corrected at this point
by the federal court in Indiana.
The Indiana district court was not free to ignore
Woolsey’s earlier conviction. First, as Tuten makes clear,
the court that imposed a sentence under the YCA should
be the one to exercise the discretion afforded by the Act.
See id. at 662-63, 668. And we now know that the Arizona
court was not inclined to grant the request. Second,
Woolsey’s efforts amounted to a collateral attack on his
prior conviction to avoid enhancement of his sentence.
But § 851(e) bars any challenge to “the validity of any
prior conviction alleged under this section which
occurred more than five years before the date of the
Nos. 06-4058 & 06-4213 19
information alleging such prior conviction.” We have
upheld the constitutionality of that provision, see United
States v. Magana, 118 F.3d 1173, 1209-11 (7th Cir. 1997);
United States v. Arango-Montoya, 61 F.3d 1331, 1338 (7th
Cir. 1995); see also United States v. Henderson, 320 F.3d 92,
104 (1st Cir. 2003) (collecting cases), and we require only
that the sentencing court ask whether the defendant
denies the prior conviction, “since it is always possible
that the government was mistaken and there was no
prior conviction, or that the facts alleged in the govern-
ment’s information of prior conviction are incorrect.”
Arango-Montoya, 61 F.3d at 1339. Woolsey never denied
the 1974 conviction, and the five-year window closed
some time ago.
Even if § 851(e) posed no obstacle to Woolsey, he
would still have been barred from challenging his 1974
conviction at sentencing. Sentencing is not the right time
to collaterally attack a prior conviction unless the prior
conviction was obtained in violation of the right to
counsel—which Woolsey does not suggest. See Daniels v.
United States, 532 U.S. 374, 378 (2001); Custis v. United
States, 511 U.S. 485, 490-91 (1994); United States v. Dahler,
171 F.3d 441, 443 (7th Cir. 1999); Arango-Montoya, 61 F.3d
at 1336. Furthermore, we have admonished district
courts that the statutory penalties for recidivism found
in § 841(b)(1)(A) are not optional, even if the court
deems them unwise or an inappropriate response to
repeat drug offenders. See United States v. Cannon, 429
F.3d 1158, 1160-61 (7th Cir. 2005). “[T]he point of such
statutes is to limit judicial discretion rather than appeal
to the court’s sense of justice.” Id. at 1160. Accordingly,
the decision to disregard Woolsey’s prior conviction in
light of what the court believed “should have been
done” three decades earlier was incorrect.
20 Nos. 06-4058 & 06-4213
CONCLUSION
We AFFIRM Woolsey’s convictions but VACATE his
sentence as to the methamphetamine count and REMAND
with instructions to impose a sentence of life imprison-
ment on that count.
USCA-02-C-0072—7-22-08