582 F.3d 787 (7th Cir. 2009), 06-3574, United States v. White

Docket Nº:06-3574, 06-4038, 06-4067, 06-4171, 07-2086 09-1285.
Citation:582 F.3d 787
Opinion Judge:SYKES, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Derrick WHITE, Melvin Herbert, James Stewart, Corey Evans, and Marvel Thompson, Defendants-Appellants. Marvel Thompson, Plaintiff-Appellant, v. United States of America, Defendant-Appellee.
Attorney:Christopher R. McFadden (argued), Joseph Alesia, Edmond E-Min Chang, Office of the United States Attorney, Chicago, IL, for United States of America. Michael I. Leonard (argued), Meckler, Bulger & Tilson, Chicago, IL, for Derrick White. Richard H. Parsons, Johanna M. Christiansen (argued), Office...
Judge Panel:Before RIPPLE, MANION, and SYKES, Circuit Judges.
Case Date:September 29, 2009
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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582 F.3d 787 (7th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,

v.

Derrick WHITE, Melvin Herbert, James Stewart, Corey Evans, and Marvel Thompson, Defendants-Appellants.

Marvel Thompson, Plaintiff-Appellant,

v.

United States of America, Defendant-Appellee.

Nos. 06-3574, 06-4038, 06-4067, 06-4171, 07-2086 09-1285.

United States Court of Appeals, Seventh Circuit.

September 29, 2009

         Argued Sept. 26, 2008.

         Submitted April 28, 2009 [*].

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         Christopher R. McFadden (argued), Joseph Alesia, Edmond E-Min Chang, Office of the United States Attorney, Chicago, IL, for United States of America.

          Michael I. Leonard (argued), Meckler, Bulger & Tilson, Chicago, IL, for Derrick White.

          Richard H. Parsons, Johanna M. Christiansen (argued), Office of the Federal Public Defender, Peoria, IL, Matthew J. McQuaid, Chicago, IL, for Melvin Herbert.

          Judith E. Olingy, University of Wisconsin Law School, Madison, WI, William O. Walters, Mt. Prospect, IL, for James Stewart.

          Robert A. Handelsman, James A. McGurk, Chicago, IL, Susan Kister, St. Louis, MO, for Corey Evans.

          Andrea E. Gambino (argued), Gambino & Associates, Chicago, IL, for Marvel Thompson.

          Before RIPPLE, MANION, and SYKES, Circuit Judges.

          SYKES, Circuit Judge.

         The five defendants in these consolidated appeals participated in a long-running conspiracy involving the distribution of vast amounts of cocaine, heroin, and marijuana by the Black Disciples street gang in Chicago. Derrick White was convicted following a jury trial, and on appeal he challenges various aspects of his trial. The other four defendants-Melvin Herbert, James Stewart, Corey Evans, and Marvel Thompson-pleaded guilty, and they each (with the exception of Evans, whose attorney has filed an Anders brief) challenge their sentences. We conclude that Stewart is entitled to a remand for resentencing in light of Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). As to the other defendants, we affirm.

         We delayed issuing our decision in these appeals because while they were pending, Thompson filed a motion under Rule 41(g) of the Federal Rules of Criminal Procedure asking the district court to order the government to return more than $300,000 in property it seized when it raided Thompson's residence and business. The district judge denied the motion without prejudice, indicating that after Thompson's merits appeal was decided, she would " promptly decide" a renewed motion. Thompson appealed this order, claiming that the district court should not have denied his Rule 41(g) motion and asking us to order that it be reassigned to a new judge on remand. We dismiss this appeal for lack of jurisdiction because the district court's order was not final. To the extent Thompson seeks reassignment of his Rule 41(g) motion to another judge, we construe his appeal as a petition for mandamus and deny it.

         I. Background

          The Black Disciples street gang operated a massive drug-trafficking organization in Chicago between 1989 and 2004. One of the largest gangs in the city, the Black Disciples financed most of their activities by selling enormous quantities of cocaine, heroin, and marijuana in housing projects and elsewhere on Chicago's South and West Sides. The Black Disciples prevented nongang members from selling drugs in areas the gang controlled unless those outsiders

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paid " street taxes." Money obtained from drug sales and street taxes was laundered through real estate, jewelry, businesses, and vehicles obtained by gang members as part of the conspiracy. Most of the gang's drug-distribution activities occurred in the Englewood neighborhood on Chicago's South Side and public-housing projects on Chicago's South and West Sides.

         The Black Disciples embraced a rigid hierarchical leadership structure. A " king" served as the leader of the Black Disciples and was responsible for developing gang policy and directing the gang's drug-trafficking operations. Marvel Thompson served as king of the Black Disciples from the early 1990s until 2003, at which point the gang shifted to a three-king leadership structure. " Board members" ranked just below the " kings" in the Black Disciples' hierarchy. The king assigned each board member to a specific geographic area, and board members oversaw the gang's narcotics operations in their areas of authority. Lower-ranking gang members paid board members street taxes in exchange for the right to sell drugs within the board member's area of control.

         The Black Disciples protected their drug-trafficking activities by using younger gang members to provide security. The Black Disciples frequently posted gang members at housing projects that served as headquarters for the gang's drug-dealing activities. These gang members carried guns distributed by the gang and were assigned to protect the Black Disciples' activities from interference by the police or other rival gangs. The gang also protected its drug operation by intimidating witnesses, shooting at police officers, and collecting debts through violent means.

         As part of the gang's narcotics-trafficking operation, Black Disciples held frequent meetings to discuss the gang's drug-distribution network and fashion rules, and to decide how to provide security for important gang members and their drug activities. One gang rule called " Aid and Assistance" required all Black Disciples members to automatically and immediately assist any other member when asked for any purpose. Another rule called " Code of Silence" prohibited Black Disciples members from discussing gang business with nongang members. At the meetings gang members decided how to discipline members for violations of these and other rules. For example, if a gang member stole drugs or drug proceeds, cooperated with law enforcement, or failed to follow orders, he could be fined, beaten, shot, or killed.

         On February 8, 2005, a grand jury sitting in the Northern District of Illinois returned a 49-count indictment against 46 defendants stemming from their involvement in the Black Disciples' drug-distribution network. Count 1, the centerpiece of the indictment, accused 45 of the defendants of conspiring to possess and distribute more than 50 grams of crack cocaine, more than 5 kilograms of powder cocaine, and more than 1 kilogram of heroin. Forty-five of the defendants pleaded guilty to various charges in the indictment; the forty-sixth defendant-Derrick White-was convicted after a jury trial of four offenses. Given the sprawling scope of this case, the number of defendants, and the variety of issues each defendant raises on appeal, we save our description of each defendant's individual involvement with the Black Disciples' drug conspiracy for our analysis below.

         II. Analysis

         A. Marvel Thompson

          Marvel Thompson was the king of the Black Disciples from the early 1990s until 2003, when the gang embraced a three-

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king leadership structure that left Thompson in charge of the gang's South Side operation. As a king Thompson directed the Black Disciples' vast drug-trafficking operations and controlled other gang members' activities. Thompson pleaded guilty to the conspiracy charge in the indictment. His presentence report (" PSR" ) placed him in Criminal History Category I, and his adjusted offense level was 46 under the sentencing guidelines (the sentencing table tops out at 43); this yielded an advisory guidelines sentence of life imprisonment. He was sentenced to 540 months in prison.

          On appeal Thompson argues that the district court committed several errors in the application of guidelines enhancements and that his sentence is otherwise unreasonable.1 He first argues that the district court erred when it applied a four-level enhancement for being an " organizer or leader" of the conspiracy. U.S.S.G. § 3B1.1 (a). The gist of Thompson's argument is that the government only established that he was a leader of the Black Disciples gang, not a leader of the drug conspiracy. To the contrary, the government presented substantial evidence that as king of the Black Disciples, Thompson coordinated the drug-distribution conspiracy. Thompson's sentencing hearing spanned two days, and nine different coconspirators testified that Thompson was the king of the Black Disciples and was extensively involved in directing the gang's narcotics operation. They testified that Thompson controlled the entire Black Disciples organization, provided drugs to gang members to sell, controlled more than 15 drug-selling locations, made thousands of dollars a day from drug sales, collected payments from street-level drug dealers, laundered drug money through real estate he owned, resolved disputes among gang members, and disciplined Black Disciples members who broke gang rules. The government also introduced evidence seized from Thompson's apartment, which included several handguns, gang literature, more than $300,000 in small bills, and letters from other Black Disciples members who acknowledged his leadership role and asked for money or assistance.

          Against this mountain of evidence establishing his role as a leader of the Black Disciples' drug conspiracy, Thompson offers two additional arguments, both weak. First, he claims that because much of the evidence was drawn from grand-jury proceedings, the trial of coconspirator Derrick White, plea agreements, and plea colloquies, he did not have the...

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