U.S.A. v. Williams

• Decision Date: 16 November 2001
• Docket Number: Nos. 99-2722,99-2765,s. 99-2722
• Citation: 272 F.3d 845
• Parties: (7th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALFRED LEONARD WILLIAMS and DERRICK MITCHELL a/k/a DIRKIE, Defendants-Appellants
• Court: U.S. Court of Appeals — Seventh Circuit

Page 845

272 F.3d 845 (7th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALFRED LEONARD WILLIAMS and DERRICK MITCHELL a/k/a DIRKIE, Defendants-Appellants.

Nos. 99-2722, 99-2765

United States Court of Appeals For the Seventh Circuit

Argued OCTOBER 31, 2000

Decided November 16, 2001

Appeals from the United States District Court for the Southern District of Illinois. No. 97 CR 30089 - William D. Stiehl, Judge. [Copyrighted Material Omitted]

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Before BAUER, KANNE and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Alfred Williams was convicted of conspiracy to possess with intent to distribute cocaine and cocaine base, in violation of the 21 U.S.C. sec. 841(a)(1). Derrick Mitchell was acquitted of participating in that same conspiracy, but was convicted of four counts of distributing cocaine base in violation of 21 U.S.C. sec. 841(a)(1). Williams and Mitchell appeal, claiming a number of errors in their joint jury trial. We affirm.

I.

Williams, Mitchell, Michael Andre Hoffman and James Brown were all charged with conspiracy to possess with intent to distribute cocaine and cocaine base. Mitchell was also charged with five counts of distributing cocaine base, although one of these counts was later dismissed. Several other persons were named as previously indicted co- conspirators, including Willie Thomas, Corea Thomas, Lester Smith, Jr., John Rayford Stevenson, Terrell Burch, Robert Hamm, Jerome White, Courtney Hoffman, Anthony Scruggs, James Hoffman, Erskin Scruggs, Everett Sakosko II and James Gurges. Brown pled guilty, and the remaining defendants went to trial before a jury. Mitchell and Hoffman were acquitted of the conspiracy charge, Williams was found guilty of conspiracy, and Mitchell was found guilty of the remaining four counts of distribution. Williams was sentenced to life imprisonment, ten years of supervised release, a $2000 fine and a $100 special assessment. Mitchell was sentenced to 360 months of imprisonment, three years of supervised release, a $1500 fine and a $200 special assessment.

The government established at trial that Williams, a resident of El Paso, Texas, regularly supplied cocaine and marijuana to Courtney Hoffman in the East St. Louis, Illinois metropolitan area. Sometime around 1990, Courtney Hoffman was introduced to Williams in El Paso by Courtney's half brother, Michael Andre Hoffman. Michael Andre was a childhood friend of Williams. Williams supplied drugs to Courtney from the time they met until approximately January 1998. Initially, Williams used his own couriers to deliver drugs to Courtney in East St. Louis. However, in February 1992, Williams was arrested by agents of the Drug Enforcement Administration after he accepted delivery of a kilogram of cocaine in Belleville, Illinois. He was consequently charged with possession with intent to distribute, and entered a written plea agreement with the government. This agreement was never filed with the court, and Williams never pled guilty because the case was dismissed when he agreed to cooperate with authorities in Illinois and Texas.

Following his troubles with law enforcement, Williams continued to supply cocaine and marijuana to Courtney Hoffman but Hoffman had to provide his own couriers. Courtney recruited a number of couriers, including his father, James Hoffman, Freddie Barnes, and Anthony and Erskin Scruggs. James Hoffman usually determined which couriers would make a particular trip. The couriers traveled to El Paso by plane, train, bus, or by driving their own cars. They usually stayed at Michael Andre's house upon arrival. They often carried large amounts of cash, strapped to their bodies, to pay Williams for drugs. After obtaining cocaine from Williams, they carried it back to Illinois either by securing it to their bodies or by secreting it in the liners of plastic coolers. Over the years, law enforcement seized both cash and drugs from the various couriers as they traveled between El Paso and East St. Louis.

Courtney Hoffman distributed the drugs he received from El Paso to various customers in the East St. Louis area. Willie Thomas was one his main distributors. Thomas obtained cocaine in powder form from Hoffman and then converted it to crack before selling it. On approximately six occasions, Thomas received three kilograms of cocaine from Hoffman, and Thomas estimated his total take from Hoffman to be in the neighborhood of 20-25 kilograms. Thomas led a group of family members and close associates that became known as the "Wolf Pack." The Wolf Pack distributed cocaine they obtained from Thomas. Thomas had other distributors as well, including one of the defendants here, Derrick Mitchell. Thomas supplied crack cocaine to Mitchell beginning in 1991 or 1992, then ceased for a period of time when he suspected Mitchell was working for the police, and then resumed the distributor relationship by supplying powder cocaine to Mitchell from 1995 through 1997. On three occasions in 1993 and one occasion in 1995, law enforcement officers, using informants, made controlled purchases of crack from Mitchell in the course of investigating the Wolf Pack. These four purchases formed the basis for the four counts of distributing brought against Mitchell. The jury convicted Mitchell on all four counts of distribution but acquitted him of participating in the conspiracy. The jury convicted Williams on the conspiracy count, and acquitted Michael Andre Hoffman. Mitchell and Williams appeal.

II.

Derrick Mitchell objects to his sentence on five different grounds. First, he contends the district court erred in including as relevant conduct certain drug sales that did not bear the necessary relationship to his offense of conviction. Second, he maintains that the district court erred in increasing his base offense level by two levels for possession of a firearm. Third, he argues that the court erred in increasing his criminal history category two levels for committing the offense of conviction while under a sentence of probation. Fourth, he asserts that the court erred in increasing his criminal history category an additional level for committing the offense of conviction less than two years after being released from custody exceeding 60 days. Finally, he complains that the court erred by denying him a three-level reduction for acceptance of responsibility when the court refused to accept his attempt to plead guilty.

A.

Mitchell contends that the district court erred in relying on the Presentence Investigation Report ("PSR") in determining the drug amount to be included as relevant conduct in calculating his sentence. Mitchell objects to the unsubstantiated proffer statements upon which the PSR relied in assessing relevant conduct. He also claims the court did not state and support its findings that the uncharged conduct bore the necessary relationship to the offense of conviction. We review the district court's fact findings on the relevant conduct assessment for clear error. United States v. Cedeno-Rojas, 999 F.2d 1175, 1179 (7th Cir. 1993). We typically require that a district court explicitly state and support, either at the sentencing hearing or preferably in a written statement of reasons, its finding that the unconvicted activities bore the necessary relation to the offense of conviction. United States v. Patel, 131 F.3d 1195, 1203 (7th Cir. 1997). However, we have been willing to affirm where the record reveals that the district court relied upon the PSR and carefully considered the government's theory on the relationship between the offense of conviction and the additional conduct. Patel, 131 F.3d at 1204 (collecting cases). "[W]here it is clear that the district judge believed the required relationship to be present and the judge's implicit finding is supported by the record, we have been reluctant to remand simply because the judge failed to invoke the 'magic words' of section 1B1.3(a)(2)." Id.

Our review of the sentencing transcript shows that the district judge very carefully considered both the factual and the legal basis for his findings on relevant conduct. At the hearing, Mitchell objected that the uncharged conduct was not related in time, place or persons involved to the offense of conviction. He conceded that the uncharged conduct involved the same drug as the charged offense. He points out that for the charged conduct, he conducted three sales in 1993 and one in 1995. The uncharged conduct occurred over a number of years, from the early 1990's through late 1997. The court accepted the government's portrayal of the evidence in support of the relevant conduct with one exception. The court found the testimony and proffer of Demiko Smith that Mitchell provided him with cocaine during the summer of 1996 through December 1996 not credible because Mitchell was incarcerated during at least a portion of that time. The court found that certain testimony by Smith was credible, but declined to include the vast majority of the cocaine that Smith attributed to Mitchell. As to the other amounts detailed in the PSR, the court found they were sufficiently related to the offense of conviction. These amounts were provided to Mitchell by Willie Thomas and James Brown, among others. Moreover, a confidential source informed law enforcement about two relatively small purchases from Mitchell. All in all, the court added up more than two kilograms of cocaine as relevant conduct. Our review of the PSR reveals that it contains an adequate factual basis for that finding. The record reveals that Mitchell was continuously involved in cocaine sales throughout the 1990's (except for a period of time when he was incarcerated), and that the sales mainly took place in the East St. Louis, Illinois area. Mitchell received the cocaine he sold from members of the conspiracy and persons associated with those charged with...