289 F.3d 968 (7th Cir. 2002), 00-3748, U.S. v. Schuh

Docket Nº:00-3748, 00-3795, 00-3822.
Citation:289 F.3d 968
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robert SCHUH, Lisa Nolen, and Curtis Lane, Defendants-Appellants.
Case Date:May 08, 2002
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 968

289 F.3d 968 (7th Cir. 2002)

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert SCHUH, Lisa Nolen, and Curtis Lane, Defendants-Appellants.

Nos. 00-3748, 00-3795, 00-3822.

United States Court of Appeals, Seventh Circuit

May 8, 2002

Argued June 5, 2001.[*]

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[Copyrighted Material Omitted]

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Stephen P. Sinnott (argued and submitted), Peggy A. Lautenschlager, Office of the U.S. Atty., Madison, WI, for United States.

Robert R. Henak (argued), Milwaukee, WI, for Robert F. Schuh.

Richard H. Parsons, Office of the Pub. Def., Peoria, IL, Lisa A. Nolen, Fed. Med. Center, Lexington, KY, for Lisa A. Nolen.

Robert K. O'Reilly, Milwaukee, WI, for Curtis E. Lane.

Before POSNER, MANION, and ROVNER, Circuit Judges.

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ILANA DIAMOND ROVNER, Circuit Judge.

Jocko's Rocket Ship, a tavern in Madison, Wisconsin, secretly operated as a drug house for over a decade. Its owner, Robert Schuh, pleaded guilty to maintaining a drug house, 21 U.S.C. § 856(a)(1), and eight individuals who dealt drugs at Jocko's pleaded guilty to various other drug offenses. We consolidated Schuh's case with appeals filed by two of the dealers, Lisa Nolen and Curtis Lane. Schuh challenges an upward adjustment for being an organizer or leader, and counsel for both Nolen and Lane move to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asking that we dismiss their respective client's appeal. For the reasons that follow, we vacate Schuh's sentence and remand for resentencing without an adjustment for being an organizer or leader. We also grant both motions to withdraw and dismiss the appeals of Nolen and Lane.

I. Background

Schuh knowingly allowed dealers to sell drugs at Jocko's, but did not supply drugs to the dealers or regularly deal himself. Occasionally he sold drugs on behalf of the dealers, but more often he steered customers to them. The dealers controlled the terms of their own sales, essentially acting as independent contractors. Each dealer determined when, how, and what they would sell at Jocko's. They did not share profits or pay Schuh for the use of Jocko's, but often gave him "gratuities" of cocaine for allowing them to sell there. Although Schuh welcomed the cocaine "gratuities" to support his own habit, he never demanded them from the dealers. Sometimes the dealers used the basement to weigh, package, or sell cocaine, but to get access to the basement they needed permission from Schuh (or a bartender if Schuh was unavailable). Schuh required the dealers to be discreet when dealing, i.e., they could not approach customers at Jocko's and had to transact their business in the restrooms, but the bartenders could pass drugs in matchbooks across the bar. Also, Schuh required the dealers to be cautious about newcomers who might be law enforcement agents. Schuh could "banish" a dealer from Jocko's for breaking these informal rules.

After an undercover investigation, Schuh and eight dealers, including Nolen and Lane, were charged with various drug offenses. Schuh pleaded guilty to maintaining a drug house, 21 U.S.C. § 856(a)(1), and received a 4-level upward adjustment for being an organizer or leader. The district court concluded that Schuh deserved the adjustment because he accepted cocaine from the dealers who worked at Jocko's, controlled access to the basement, required the dealers to act discreetly and to exercise caution when selling to unknown bar patrons, directed bar customers wanting drugs to the dealers, occasionally sold drugs himself, and banned two dealers when they broke his rules. Furthermore, the court reasoned that Schuh's "failure to benefit to a greater financial extent" did not undermine the adjustment because his willingness to accept an occasional gratuity of cocaine in exchange for the use of Jocko's "could have been readily changed for the asking." Schuh was sentenced to 228 months' incarceration, three years' supervised release, and a $100 special assessment.

Nolen, a bartender at Jocko's for two years, sold cocaine there until she was fired in 1999 because of her pregnancy. She pleaded guilty to conspiring to manage a drug house, 21 U.S.C. §§ 846, 856(a)(2), and was sentenced to 70 months' incarceration, 3 years' supervised release, and a $100 special assessment. Lane, a regular dealer at Jocko's, pleaded guilty to conspiring to distribute and possess with intent

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to distribute cocaine, 21 U.S.C. §§ 846, 841(a)(1). Lane later moved to withdraw his plea, claiming that he was pressured into pleading guilty. The district court denied the motion, finding that Lane's reason for moving to withdraw was "incredible" because he contradicted statements made at his plea hearing. The court sentenced him to 135 months' imprisonment, three years' supervised release, and a $100 special assessment.

II. Discussion

A. Robert Schuh

On appeal Schuh challenges the district court's 4-level upward adjustment for being an organizer or leader. U.S.S.G. § 3B1.1. We review for clear error the district court's factual finding that a defendant was an organizer or leader, United States v. Mijangos,240 F.3d 601, 604 (7th Cir. 2001), and will reverse "only if, after reviewing the entire evidence, we are left with the definite and firm conviction that a mistake has been committed," United States v. Carrera, 259 F.3d 818, 826 (7th Cir. 2001).

Schuh argues that the district court erred in concluding that his...

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