United States v. DaJuan Booker

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-4180
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D AJUAN R. B OOKER,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 182—James B. Zagel, Judge.
A RGUED F EBRUARY 19, 2010—D ECIDED JULY 14, 2010
Before P OSNER, F LAUM, and W OOD , Circuit Judges.
F LAUM, Circuit Judge. Dajuan Booker appeals from a
conviction for possession with intent to distribute
more than 50 grams of crack. He challenges the district
court’s finding that officers had probable cause to
search his truck and arrest him following a tip from
a confidential source. Booker also claims that the trial
judge committed a procedural error during sentencing
by combining a mandatory minimum sentence for the
2 No. 08-4180
drug offense with that for a gun charge on which Booker
was acquitted. Appellant’s contentions lack merit and
we now affirm.
I. Background
On October 21, 2003, a confidential source (the “CS”)
who had previously been charged with a drug offense
agreed to cooperate with law enforcement to secure
more lenient treatment. He told Drug Enforcement Ad-
ministration (“DEA”) investigators that on several
prior occasions, he had purchased anywhere from nine
ounces to half a kilogram of crack cocaine from one
“Big Moe,” and was expecting to buy another half kilo-
gram on October 22 for $10,500. As is often the case in
drug transactions, the CS did not know many personal
details about his business partner but believed that Big
Moe’s last name may have been Booker and that Big Moe
may have resided on School Street in Riverdale, Illinois.
The CS provided a cell phone number for Booker, ex-
plained what Booker looked like (black male, approxi-
mately 35 years old, around 5'9", weighing about 300 lbs),
and stated that he drove a black Ford Harley-Davidson-
model pick-up truck.
The DEA proceeded to investigate the identity of Big
Moe. They contacted the Riverdale Police Department and
learned that a person named Dajuan Booker had some
connections to School Street. Agents ran a criminal history
check that revealed that Dajuan Booker used a School
Street address. Finally, the DEA obtained a driver’s
license photograph of Booker from the Illinois Secretary
of State. The CS identified the man in the photograph as
No. 08-4180 3
Big Moe. All of these events transpired in the span of
several hours—the agency moved quickly to convert
its source’s previously scheduled October 22 exchange
into a controlled buy.
The next morning, the DEA set up surveillance near
the School Street address linked to Booker and began
recording conversations. First, the CS called Booker and
left a message. A few minutes later, the CS received a
call back from a different number from a man who identi-
fied himself as “Moe.” Moe said he was “ready.” Based on
four years’ worth of drug-enforcement experience, one
of the agents interpreted the remark to mean that Moe
was ready to deliver narcotics. The CS then proceeded to
negotiate about the meeting location. The CS first pro-
posed his mother’s house and a nearby club called
Arnie’s, but Moe refused, explaining that there had
recently been a shooting at Arnie’s and the place was
“hot.” The two men then agreed to meet at “the house” in
about an hour. The conversation did not feature many
descriptive nouns. Instead, most remarks were similar
in form to “Uh, then we gonna get ready and then I’ll
just call ya when I get where I’m going. Then you just
come over. You know how to get to [unintelligible].” 1
An hour after the second conversation, Moe called the
CS. The CS asked if Moe “got it ready already.” Moe
said he did and agreed to call the CS when he was
1
This phrase was utterred during the first conversation but
contains approximately the same level of detail as all of the
other exchanges recorded by the DEA.
4 No. 08-4180
pulling in. Two more calls followed, both discussing the
meeting time.
The DEA intended to arrest Booker as soon as he
arrived. It did just that when a black, Harley-Davidson-
model Ford truck arrived at the School Street address
approximately twenty-five minutes after the last call.
Four agents approached the vehicle and ordered the
driver out. When they saw that he matched the photo-
graphs of Booker, they handcuffed him and patted him
down, but did not find any contraband on his person. The
agents took Booker into custody and used his keys to
open the truck bed, which contained a gray bag full of
crack cocaine. The agents told Booker that he was under
arrest for possession of a controlled substance and read
Booker his Miranda rights. Booker then signed a form
listing those same rights.
The DEA took Booker to a police station, where he
agreed to make incriminating statements. He explained
the School Street house belonged to his aunt and that he
lived in an apartment at another location. He admitted
that he had a variety of drugs and drug-making equip-
ment at the apartment and gave written consent for
agents to search it. The DEA also checked the license
plates of his truck and found out that it was registered
to Al Brown, who lived at the School Street address.
When agents could not reach Brown, they detained the
truck and transported it to an impound lot. During
a subsequent inventory search, they found a loaded
revolver in the rear center console of the vehicle.
Booker was tried on four counts: two counts of posses-
sion with intent to distribute in excess of 50 grams of
No. 08-4180 5
cocaine base; one count of possession of a firearm in
relation to a drug-trafficking crime; and one count of
possession of a firearm by a convicted felon, which was
subsequently severed by the district court. Appellant
made several pre-trial motions, including a motion to
suppress evidence on the grounds that agents lacked
probable cause to arrest him, but the district court
denied relief. Booker was then convicted on the two drug
charges. The district court declared a mistrial on the
remaining weapons charge.
At sentencing, the Probation Office classified Booker
as a career offender on the basis of several prior state
convictions. The Presentence Investigation Report (“PSR”)
thus identified a guideline sentencing range of 360
months to life. Booker did not object to this recommenda-
tion. Instead, he asked that the court instead deviate
downwards and impose the mandatory minimum 20-year
sentence based on favorable 18 U.S.C. § 3553(a) factors.
After a lengthy colloquy, the district court considered
Booker’s extensive efforts to rehabilitate himself since
his arrest and imposed a 25-year sentence. The court
reasoned, in part, that Booker almost certainly possessed
a weapon, which would have been associated with a
60-month sentence. It added those 60 months to the 240
months mandated by statute to arrive at 25 years.
Defendant-appellant now argues that because the
DEA lacked probable cause to arrest him and search his
truck, the district court erred in denying his motion to
suppress evidence. Booker also claims that the district
court committed a procedural error when he imposed
6 No. 08-4180
the 25-year sentence without adequately considering 18
U.S.C. § 3553(a) factors. Finally, Booker argues that the
addition of 60 months to the mandatory minimum sen-
tence amounted to a judicial conviction on the gun
charge in violation of his Sixth Amendment right to a
trial by jury.
II. Discussion
A. Motion to Suppress
When we review a district court’s denial of a motion to
suppress evidence, we examine legal issues de novo and
check conclusions of fact for clear error. United States v.
Jackson, 300 F.3d 740, 745 (7th Cir. 2002). Determinations
of the existence of probable cause are mixed questions
of law and fact that are entitled to de novo review.
United States v. Zahursky, 580 F.3d 515, 521 (7th Cir. 2009).
Probable cause exists “where the known facts and
circumstances are sufficient to warrant a man of rea-
sonable prudence in the belief that contraband or
evidence of a crime will be found.” Ornelas v. United
States, 517 U.S. 690, 696 (1996). The Supreme Court has
recognized that when probable cause exists to search
an automobile, officers are permitted to conduct a
warrantless search of “all parts of the vehicle in which
contraband or evidence could be concealed, including
closed compartments and trunks.” United States v. Young,
38 F.3d 338, 340 (7th Cir. 1994) (citing California v. Acevedo,
500 U.S. 565 (1991); Carroll v. United States, 267 U.S. 132,
153-56 (1925)). “[D]etermining whether probable cause
No. 08-4180 7
exists involves a ‘practical, common-sense decision
whether, given all the circumstances set forth . . . there is
a fair probability that contraband or evidence of a crime
will be found in a particular place.’ ” United States v.
Ellis, 499 F.3d 686, 689 (7th Cir. 2007) (ellipsis in original).
The circumstances of Booker’s case pass this test. The
DEA received a specific tip from an informant about
Booker’s participation in the drug trade from a source
who had bought drugs from the suspect on several
prior occasions. The agency then collected corroborating
information for this tip in the form of Booker’s prior
convictions for drug trafficking. Next, agents listened
to conversations where the informant and Booker struck
a deal to purchase a large quantity of crack. Though
Booker himself appears to have never uttered the word
“crack” or a similar descriptive term, the logistics of the
transaction (in particular, the diligence with which
the parties coordinated the timing and location of their
meeting) made the conclusion that drugs were being
sold reasonable. The CS told agents that he had
previously bought drugs from Booker. The familiar tone
of the conversations between the two confirmed these
accounts, as did the men’s mutual, precise understanding
of the otherwise-opaque term “the house.”
When Booker showed up in a vehicle matching the
description provided by the CS at the time the CS identi-
fied on the phone, agents had sufficient evidence to
conclude that there was a fair probability the suspect
was in possession of the large quantity of crack he was
supposed to sell, either on his person or in his truck.
8 No. 08-4180
Booker’s arrest and the search of his vehicle were there-
fore valid. See, e.g., United States v. Zahursky, 580 F.3d 515(7th Cir. 2009). In Zahursky, we found that Secret Service
agents had probable cause to search the car of a suspect
who arrived at a Valparaiso, Indiana, Starbucks to
meet an undercover detective whom he believed was an
underage girl seeking out sex. Zahursky’s vehicle and
outfit matched the description he provided to “Shelly”
over the internet; he also arrived at the right time. Be-
cause the suspect resided nearly 150 miles away in
Lexington, Illinois, we determined that officers could
reasonably expect to find evidence of his intent to cross
state lines or have intercourse in the car. The inference
was strengthened by the Zahursky’s promise to bring
along condoms and lubricant, which he was unlikely to
carry into the public café. The confirmatory details avail-
able to the officers in this case were similarly sufficient
for a finding of probable cause.
Booker nonetheless argues that officers had only a raw
suspicion that drugs were about to change hands and
lacked enough particularized information to reasonably
expect to find contraband in his truck. Appellant thus
takes issue with the credibility of the CS, claiming that
he lacked a prior history of accurate tips and that his tip
was not nearly as detailed as that in Illinois v. Gates,
462 U.S. 213 (1983) (finding probable cause where infor-
mant provided a detailed description of a scheme to
move drugs from Florida to Illinois) or United States v.
Rosario, 234 F.3d 347 (7th Cir. 2000). Booker exaggerates
the difference between the facts at hand and in Rosario
(where we found probable cause for a search based in
No. 08-4180 9
part on the tip of a first-time informant who only knew
the defendant’s nickname and some other potential
aliases), id. at 351, but that does not matter because we
look to the totality of circumstances when evaluating
probable cause. Gates, 462 U.S. at 238.
Booker correctly points out that the CS was unable to
predict many aspects of the transaction, such as where
the drugs could be found, the form of payment Booker
expected to receive in exchange for the drugs (though
presumably drug dealers rarely accept credit cards or
personal checks), or whether anyone else would be in-
volved in the transaction. Appellant asserts that the CS
did not anticipate exchanging drugs at the house because
he proposed two other locations, and that the phone
conversations never explicitly revealed that Booker was
getting drugs ready, as opposed to some other substance.
Finally, he argues that there was nothing suspicious
about Booker pulling up to a house that could well
have been his in a car that the officers had every reason
to believe Booker owned. These gaps and doubts
existed here as they do in countless criminal investiga-
tions. We have not held them to preempt a finding of
probable cause on prior occasions, see, e.g., United States
v. Oliva, 385 F.3d 1111, 1115 (7th Cir. 2004); United States
v. Huebner, 356 F.3d 807, 816 (7th Cir. 2004), and see no
reason to deviate from this precedent today. See also
United States v. Ganser, 315 F.3d 839, 843 (7th Cir. 2003)
(“If an informant is shown to be right about some things,
he is probably right about other facts that he has
alleged, including the claim that the object of the tip is
engaged in criminal activity.”) (citations omitted).
10 No. 08-4180
Overall, Booker argues that everything the DEA knew
when they arrested Booker was consistent with inno-
cent behavior and nothing more. Part of that contention
is correct but carries limited weight, since probable
cause does not demand virtual certainty that illegal
behavior is transpiring. The possibility of an innocent
explanation does not vitiate properly established prob-
able cause. Here, the totality of the information available
to the DEA fully supported the inference that Booker
was a drug dealer because a prior buyer identified
Booker as such, Booker’s background matched this oc-
cupation, and Booker agreed to sell drugs to the buyer
in a recorded phone call. For these reasons, we conclude
that the DEA had probable cause to search Booker
and his truck as soon as he arrived at the School Street
address.2
B. Procedural Unreasonableness of Booker’s Sentence
We review whether the district court followed proper
procedures at sentencing de novo. United States v. Hurt,
574 F.3d 439, 442 (7th Cir. 2009). Pursuant to Gall v. United
States, 552 U.S. 38, 49 (2007), the district court must
begin by looking at the guidelines range. It must then
hear the arguments of the parties and conclude by
making an individualized assessment of the appropriate
sentence based on the § 3553(a) factors. Id. at 49-50.
2
We need not reach the question of whether the “inevitable
discovery” doctrine also applies to the evidence found in
Booker’s truck.
No. 08-4180 11
“Judges need not rehearse on the record all of the
considerations that 18 U.S.C. § 3553(a) lists; it is enough
to calculate the range accurately and explain why (if
the sentence lies outside it) this defendant deserves
more or less.” United States v. George, 403 F.3d 470, 472-73
(7th Cir. 2005).
Appellant argues that his sentence is procedurally
unreasonable because to select a 25-year term of imprison-
ment, the district court combined the mandatory term
for the drug offenses with the length of incarceration
that would have been required if Booker was found
guilty of the weapons charge. Appellant asserts that the
district court did not provide a reasoned explanation for
why it was adding the sixty months associated with the
latter to the 240 months associated with the former,
attributing to the district court only a brief comment
about how he was “quite sure the defendant did possess
a weapon.” Accordingly, Booker claims, the court failed
to carry out the analysis required by 18 U.S.C. § 3553(a).
The government correctly points out, however, that
Booker’s potential possession of a gun was a circum-
stance of the offense within the ambit of 18 U.S.C.
§ 3553(a)(1). Furthermore, Booker grossly mischarac-
terizes the extent and depth of the district court’s sen-
tencing discussion. The record shows that the court care-
fully considered, among other factors, the guidelines
range, Booker’s own arguments, Booker’s family history,
and the impact that various sentences could have on
defendant’s rehabilitation. It then handed down a below-
guidelines sentence. The decision to do so was proce-
12 No. 08-4180
durally sound. See 18 U.S.C. § 3661 (“No limitation shall
be placed on the information concerning the back-
ground, character, and conduct of a person convicted of
an offense which a court of the United States may
receive and consider for the purpose of imposing an
appropriate sentence.”); cf. United States v. Brown,
No. 09-1028, 2010 U.S. App. LEXIS 12212 (7th Cir. June 15,
2010) (remanding for rehearing a sentence where over-
whelmingly negative remarks by the district court
created a gap between the apparent characteristics of
the defendant and his lenient sentence that this Court
was unable to fill in even with appropriate deference).
C. Sixth Amendment Violation
Finally, Booker alleges that the district court’s invoca-
tion of the mandatory minimum sentence that would
accompany a conviction on the gun charge during sen-
tencing amounts to a violation of his Sixth Amendment
right to a jury trial. That is, appellant claims that the
reference was not a permissible discussion of acquitted
but relevant conduct, see United States v. Watts, 519 U.S.
148, 154 (1997); United States v. Hurn, 496 F.3d 784, 788
(7th Cir. 2007), but rather “was an enhancement for
conduct found by the judge, and based on a mandatory
consecutive minimum sentence that was statutorily
impermissible.”
Supreme Court precedent and our own decisions fore-
close this argument. While Watts endorsed consideration
of acts not proven beyond a reasonable doubt at sen-
tencing, 519 U.S. at 156, the Sixth Amendment does
No. 08-4180 13
impose some limits on the discretion of the district court.
Namely, “the Federal Constitution’s jury-trial guarantee
proscribes a sentencing scheme that allows a judge to
impose a sentence above the statutory maximum based
on a fact, other than a prior conviction, not found by
the jury or admitted by the defendant.” Cunningham v.
California, 549 U.S. 270, 274 (2007). No such transgres-
sion occurred here. Under 21 U.S.C. §§ 841 and 851, the
district court had the power to sentence Booker to a
substantively reasonable term of imprisonment ranging
from 20 years to life, as long as it followed the proce-
dure set out in Gall. It did so, and the Sixth Amendment
did not prohibit the court from accounting for the fact
that Booker was not only a drug dealer, but also a con-
victed felon who carried a weapon. See United States v.
Booker, 543 U.S. 220, 233 (2005) (“We have never doubted
the authority of a judge to exercise broad discretion
in imposing a sentence within a statutory range.”); Blakely
v. Washington, 542 U.S. 296, 303-04 (2004) (“[T]he relevant
‘statutory maximum’ is not the maximum sentence a
judge may impose after finding additional facts, but
the maximum he may impose without any additional
findings.”); United States v. Ashqar, 582 F.3d 819, 824-25
(7th Cir. 2009). Accordingly, Booker’s sentence com-
ports with the Constitution’s jury-trial guarantee.
III. Conclusion
For the foregoing reasons, we A FFIRM the district
court’s judgment.
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