740 F.3d 440 (7th Cir. 2014), 12-2472, United States v. Cheek

Docket Nº:12-2472.
Citation:740 F.3d 440
Opinion Judge:MANION, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Eric Michael CHEEK, Defendant-Appellant.
Attorney:Scott A.C. Meisler, Department of Justice, Washington, DC, for Plaintiff-Appellee. Catharine Downard O'Daniel, Chicago, IL, for Defendant-Appellant.
Judge Panel:Before BAUER, MANION, and ROVNER, Circuit Judges.
Case Date:January 22, 2014
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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740 F.3d 440 (7th Cir. 2014)

UNITED STATES of America, Plaintiff-Appellee,


Eric Michael CHEEK, Defendant-Appellant.

No. 12-2472.

United States Court of Appeals, Seventh Circuit.

January 22, 2014

Argued Oct. 31, 2013.

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Scott A.C. Meisler, Department of Justice, Washington, DC, for Plaintiff-Appellee.

Catharine Downard O'Daniel, Chicago, IL, for Defendant-Appellant.

Before BAUER, MANION, and ROVNER, Circuit Judges.

MANION, Circuit Judge.

Eric Cheek distributed illegal drugs for most of his adult life. Prior to this case, he was convicted of twelve offenses, including nine felony drug offenses. Following an extensive investigation, law enforcement officers arrested Cheek in 2011 for drug distribution activities. A jury convicted Cheek of four felonies, and the district court sentenced Cheek to 576 months' imprisonment. Cheek appeals both his convictions and sentence. For the reasons discussed below, we affirm.

I. Background

From 2002-2003, Eric Cheek regularly sold marijuana and crack cocaine to a drug dealer, Corey Eason, and Eason's girlfriend, Tabitha Harris. While Cheek was in prison in 2004, one of his associates, Antonio Seymon, supplied Eason and Harris with drugs. After he was released, Cheek again supplied Eason and Harris with marijuana and crack cocaine. He also supplied two other drug dealers, Langston Pates and Andra Pace, with marijuana. He was subsequently incarcerated again in 2008, and before his release in 2010, Cheek informed Eason, Brandon Williams (who had been in the same prison as Cheek in 2008), and Seymon that he would continue selling drugs upon his release. In August 2010, law enforcement persuaded Eason to cooperate in the investigation of Cheek. Eason performed controlled buys of illegal drugs from Cheek and secretly recorded his interactions with Cheek. With court authorization, law enforcement also intercepted more than 20,000 phone conversations and text conversations from telephones used by Cheek and his associates. The investigation uncovered continued drug operations until Seymon was arrested on March 23, 2011. Cheek subsequently was arrested on April 5, 2011.

A grand jury indicted Cheek and three co-defendants, Tabitha Harris, Brandon Williams, and Antonio Seymon, for various drug offenses. Cheek was charged with conspiring to possess and distribute more than 280 grams of crack cocaine and more than 100 kilograms of marijuana from 2001 to 2011; intending to distribute more than 28 grams of crack cocaine on August 9, 2010; intending to distribute marijuana on March 23, 2011; and using a telephone on February 11 and 23, 2011, to facilitate the drug conspiracy. All three co-defendants pleaded guilty. Cheek did not.

Prior to Cheek's trial, the government filed an information pursuant to 21 U.S.C. § 851 expressing its intent to seek an enhanced sentence for Cheek based on seven prior felony drug convictions. In a separate pretrial filing, the government identified several potential expert witnesses. Most of these experts were forensic chemists who were not called at trial because their opinions were presented at trial by stipulation. However, one of the proposed experts (who did not testify at trial) was a Drug Enforcement Agency supervisor who was prepared to testify generally about the use of code words by drug dealers.

A few weeks before trial, Cheek sent a hand-written letter to Harris's teenage daughter in response to a letter he had received from the daughter. Cheek's letter stated in pertinent part:

I remember when I met your little butt too. Yes I am your uncle and you would

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probably be out there if I wasn't hard on you at times. I only did it out of love for you and fear of what you could turn into without guidance. You were the one Eric & Mikey [Cheek's sons] asked about 1st back in the day.... It's been so long since the days I tried to teach you about a dollar by letting you watch the boys for $10-$15.

Now you've got your own little one. And a pretty one at that. You know she would love me right? I am gonna fight to the end to be able to raise my kids and see yall again soon. Free [meaning Tyrell Binion] got 54 months, so he will be out soon. My situation ain't or wasn't bad shall I say. I won't lie Isa, they didn't have shit on none of us. To prove it why would they need your Mom to lie on me if they had something? But the worse part is her own lawyer tricked her because she could've beat the case. She couldn't get more than 5 if she would've just plead guilty without lying on me. Now my life and the lives of my kids lay in the balance of her story she let them make her say. The most she can get is 5 and me LIFE if she doesn't tell the truth. Isa that means I will NEVER see my kids or family again. Nor see yall or any of the people I know and love. Who is gonna teach Er[i]c & Mikey to fight and be men? Who is gonna keep boys away from Emmy [Cheek's daughter] and not let her be like her mom? LIFE means forever!

So as you can see why I am saying this but, yes I love you ... & your mom. But no I will never respect her decision. Still I am looking at LIFE and not because of anybody but her, the person I thought would never lie on me or hurt me. Even if she told the truth she wouldn't be looking at shit but maybe 6 more months but at least I wouldn't be in jail for the Rest of my life. So I am praying that she don't let them keep scaring her. They are gonna use plenty of scare tactics. But it's up to us to man up or woman up.

If God is willing you know who won't tell that lie and I will be there to see yall in the near future. My lawyer [is] saying that is the only thing they have against me is her.

At trial, the government called law enforcement officers and cooperating witnesses, including Eason, Harris, Pates, Pace, and Victoria Williams (who lived with Eason during the conspiracy). The government also offered selections from the intercepted telephone communications and interactions recorded by Eason. The government provided the jury with transcripts of these recordings that contained (within square brackets) interpretations of certain words and phrases from the recordings. The intercepted communications, recordings, and transcripts were admitted into evidence by stipulation. Cheek stipulated that the communications, recordings, and transcripts were accurate, but refused to stipulate to the accuracy of the interpretations within the brackets. Before the recordings were played, the district court instructed the jury that the recordings were the actual evidence and that the transcripts were not evidence 1. The government elicited testimony from FBI Special Agent Greg Catey, the lead case agent, who offered his opinions regarding the meaning of the words and phrases immediately preceding the bracketed information contained within the transcripts. Agent Catey testified that he had extensive experience in drug enforcement and had participated in numerous investigations

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during his law enforcement career. However, he also testified that he knew the meaning of the words in the transcripts based on his specific involvement in the investigation of Cheek and his co-conspirators. Police Detective James Ferguson similarly offered testimony about some of the code words and phrases used by Cheek and his co-conspirators, and stated that his knowledge was based on his participation in this investigation.

In his defense, Cheek argued that he only sold marijuana and did not conspire with anyone. The jury convicted Cheek on all counts. By special verdict, the jury found that the conspiracy involved at least 28 grams but less than 280 grams of crack cocaine and 100 kilograms or more of marijuana.

Cheek's pre-sentence report (" PSR" ) found that Cheek was responsible for the drug-quantity-equivalent of between 3,000 and 10,000 kilograms of marijuana, which placed his base offense level at 34. However, the PSR recommended a 2-level upward adjustment under U.S.S.G. § 3B1.4 because Cheek used a minor in commission of the conspiracy; a 4-level upward adjustment under U.S.S.G. § 3B1.1(a) because Cheek was the leader of a drug-trafficking organization; and a 2-level upward adjustment under U.S.S.G. § 3C1.1 for obstruction of justice because of the letter he sent to Harris's daughter. The PSR recommended a criminal history category of IV due to nine criminal history points. (The PSR found that Cheek had twelve prior convictions, including nine felony drug convictions.) Ultimately, the PSR calculated Cheek's total offense level at 42. Given Cheek's criminal history category of IV, the PSR calculated Cheek's Guidelines range to be 360 months to life. Cheek objected to the obstruction of justice enhancement. But even without that enhancement, Cheek's Guidelines range would have been 360 months to life. Cheek did not otherwise object to the PSR's Guidelines calculations or findings regarding his prior convictions.

Counts I and II carried the greatest statutory maximum penalties: 480 months. The statutory maximum penalty for count III was 120 months. The statutory maximum penalties for counts IV and V were 48 months. However, 21 U.S.C. § 841(b)(1)(B)'s career criminal provision authorized the district court to impose a sentence of up to life on either count I or II. In order to do so, the district court must " before pronouncement of sentence inquire of the person with respect to whom the information was filed whether he affirms or denies that he has been previously convicted as alleged in the information, and shall inform him that any challenge to a prior conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence." 21 U.S.C. § 851(b)...

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