U.S. v. Krueger, 04-2539.

• Decision Date: 28 July 2005
• Docket Number: No. 04-2539.,04-2539.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul A. KRUEGER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

415 F.3d 766

UNITED STATES of America, Plaintiff-Appellee, v. Paul A. KRUEGER, Defendant-Appellant.

No. 04-2539.

United States Court of Appeals, Seventh Circuit.

Argued February 15, 2005.

Decided July 28, 2005.

Kelly B. Watzka (argued), Timothy W. Funnell, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Thomas E. Phillip (argued), Federal Defender Services, Green Bay, WI, for Defendant-Appellant.

Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

When defendant-appellant Paul Krueger was stopped for speeding, Wisconsin authorities discovered over two kilograms of marijuana in his truck. Krueger was initially charged in state court for trafficking in marijuana, but the state case was dismissed after federal authorities announced their intent to prosecute Krueger for that offense. Shortly after he was taken into federal custody and at the invitation of federal agents, Krueger waived his right to remain silent and gave a detailed statement regarding his drug trafficking. Krueger later moved to suppress that statement, contending that because he had already invoked his Sixth Amendment right to an attorney as to the state charges, federal agents were barred from questioning him without an attorney present. See Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). The district court denied the motion to suppress. R. 25, 33. Krueger subsequently decided to plead guilty to possessing marijuana with the intent to distribute, while reserving the right to appeal the Sixth Amendment question insofar as his self-incriminating statement had an impact on the district court's sentencing decision. At sentencing, the district court found that Krueger was responsible for distributing between 100 and 400 kilograms of marijuana and ordered Krueger to serve a prison term at the low end (57 months) of the range specified by the U.S. Sentencing Guidelines.

Krueger appeals, contending because his statement to the federal agents was taken in violation of his Sixth Amendment right to counsel it should have been suppressed, and also that his sentence is plainly erroneous under United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We conclude that we need not decide whether Krueger's statement was taken in violation of Krueger's Sixth Amendment rights, because even if it was, the district court was nonetheless free to consider it for sentencing purposes. As for Krueger's sentence, we shall direct a limited remand to the district court so that it may determine whether it would be inclined to sentence Krueger to a lesser prison term knowing in light of Booker that the Sentencing Guidelines are advisory rather than mandatory. See United States v. Paladino, 401 F.3d 471, 483-84 (7th Cir.2005).

I.

A. Admitted Facts as to Krueger's Guilt

We begin with a description of the facts that led to Krueger's arrest and that underlie his conviction. Krueger admitted nearly all of these facts in his written plea agreement. R. 34.

Marinette County, Wisconsin law enforcement officers received information from a confidential informant ("CI") that Krueger traveled to Milwaukee every two weeks to purchase marijuana and transported it back to Marinette County in northeastern Wisconsin, making stops along the way to sell to customers in the Outagamie and Marinette County areas. According to the CI, Krueger had bragged about dealing 450 pounds of marijuana per year. On June 24, 2003, the CI advised Marinette County Deputy Sheriff Rick Berlin that on the morning of June 25, Krueger would be returning to Marinette County from Milwaukee in his truck with a large quantity of marijuana. Deputy Berlin subsequently relayed that information to his patrol officers, along with a description of Krueger's truck and an instruction to "make your own case" (i.e., find a justification for stopping the vehicle) if the truck was spotted.

On the morning of June 25, 2003, Deputy Barry Degnitz was conducting stationary radar surveillance in Marinette County and conducted a traffic stop of Krueger's vehicle, which was traveling above the posted speed limit. Degnitz advised dispatch that he had stopped Krueger's vehicle. He then approached the driver, who identified himself as Krueger. While Degnitz was running Krueger's license and vehicle information through the computer in his squad car, Deputy Jamie Curran along with her drug-detecting canine, a Belgian Malinois by the name of Corey, and Deputy Berlin arrived at the scene. Krueger was asked to step out of his vehicle so that the dog could sniff around the vehicle's exterior for drugs. When the canine exhibited interest in the truck, Berlin asked Krueger if there were any drugs in the vehicle. Krueger initially denied having any drugs but eventually admitted that he had some "smoke" in the pocket of his shirt located inside the cab of the truck. Degnitz searched the cab and found marijuana and a pipe in the location Krueger had described. Krueger was then placed in the backseat of Degnitz's vehicle.

Corey the canine had "alerted" to both the passenger door of the truck and the driver's side of the tailgate. When he was placed on the bed of the truck, Corey pushed the cover off of a cooler located in the back of the truck. The cooler was removed from the truck bed and the canine again alerted to the container by scratching. A subsequent search of the cooler revealed a .357 revolver, wrapped in an article of clothing. Located directly beneath the gun was a backpack containing five large plastic bags of marijuana (with an approximate total weight of 4.8 pounds), as well as another plastic bag containing $3,310.56 in cash.

Berlin advised Krueger of his Miranda rights, which he verbally agreed to waive. Krueger stated that the marijuana in his vehicle was for his personal use, although he refused to identify his source. He admitted that there were a couple of bags of marijuana at his residence but stated "it was all shake." (According to Wikipedia, a free-content online encyclopedia, "shake" is a term used to describe the small bits of marijuana, usually leaves, that break off and accumulate at the bottom of a plastic bag containing marijuana when the bag is handled roughly. See http://en.wikip edia.org; see also R. 19 at 78.) After Krueger refused to consent to a search of his residence, Berlin obtained a search warrant. During the search of the residence, deputies recovered a total of 1.8 pounds of marijuana individually packaged in smaller quantities in plastic bags and other containers along with various paraphernalia related to marijuana trafficking and consumption, including scales and numerous plastic ziplock bags of multiple sizes.

B. Krueger's Uncounseled Statement as to his Marijuana Trafficking

Following his arrest on June 25, 2003, Krueger was initially charged in Wisconsin state court with trafficking in marijuana. An attorney with the state public defender's office was assigned to represent Krueger and did, in fact, represent him in the state proceeding.

Federal authorities took an interest in the case, however, after Marinette County officials referred the matter to Special Agent Kenneth Handy of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") and Handy in turn referred it to the United States Attorney for the Eastern District of Wisconsin. The U.S. Attorney eventually advised the Marinette County District Attorney that he would be pursuing federal charges against Krueger for the same conduct underlying the state charge. On August 7, 2003, a U.S. Magistrate Judge issued a federal warrant for Krueger's arrest pursuant to a sworn criminal complaint charging him with possessing marijuana with the intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D), as well as possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). R. 1, 4.

On the morning of August 8, 2003, Krueger appeared for a hearing in the Marinette County District Court, where the state charges against him were dismissed. Immediately after that proceeding, Krueger was arrested on the federal charges. A Marinette County deputy sheriff then drove Krueger to Green Bay, Wisconsin, where he was transferred to the custody of ATF Special Agents Handy and Sandra DeValkenaere. Deputy Berlin, who had followed his colleague and Krueger to Green Bay, joined the ATF agents as they walked Krueger through the initial stages of federal processing.

Between 1:00 and 1:30 p.m., once Krueger had been interviewed by a federal pretrial services officer, Handy and DeValkenaere drove him to the Brown County Courthouse, where Handy had arranged for Krueger to be held pending his first appearance in U.S. District Court at four o'clock that afternoon. They parked their vehicle on the street in front of the courthouse and allowed Krueger to begin eating a lunch that Berlin and DeValkenaere had obtained for him from McDonald's. While Krueger ate, Agent Handy advised him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and inquired whether he would be willing to cooperate with the ATF's investigation by identifying his source of marijuana and other people that he knew to be involved in drug trafficking, including his customers.

Krueger refused to cooperate at first, but eventually agreed to name one individual. Handy and DeValkenaere told Krueger they were not interested in piecemeal cooperation, however. At several points, Handy threatened to terminate the discussion and take Krueger to his holding cell. "Fine, you're done with your lunch, let's go," he said finally. R. 19 at 101. But as Handy opened his car door and began to get out of the vehicle, Krueger relented and agreed to tell the agents what they wanted to know. At that point, the agents invited Deputy Berlin, who had followed them to the courthouse and whose car was...