U.S. v. Adams, s. 96-2605

• Decision Date: 24 September 1997
• Docket Number: 96-3496 and 97-1539,Nos. 96-2605,96-3320,96-2664,s. 96-2605
• Citation: 125 F.3d 586
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vincent ADAMS, Robert D. Petty, Jr., Tracy T. Fitzgerald, Charmin Banks And Gregory Hayes, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 586

125 F.3d 586

UNITED STATES of America, Plaintiff-Appellee, v. Vincent ADAMS, Robert D. Petty, Jr., Tracy T. Fitzgerald, Charmin Banks And Gregory Hayes, Defendants-Appellants.

Nos. 96-2605, 96-2664, 96-3320, 96-3496 and 97-1539.

United States Court of Appeals, Seventh Circuit.

Argued May 23, 1997.

Decided Sept. 24, 1997.

Rehearing Denied in No. 97-1539 Nov. 21, 1997.

Thomas P. Schneider, Joseph R. Wall (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee in Nos. 96-2605, 96-3496 and 97-1539.

Joseph R. Wall (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee in No. 96-2664.

Rodney Cubbie, Joseph R. Wall (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee in No. 96-3320.

Nikola Kostich, Styler, Kostich, Lebell, Dobroski & McGuire, Thomas G. Wilmouth (argued), Brennan, Ramirez, Wilmouth & Sesini, Milwaukee, WI, for Vincent Adams in No. 96-2605.

Thomas G. Wilmouth (argued), Brennan, Ramirez, Wilmouth & Sesini, Milwaukee, WI, for Robert D. Petty, Jr. in No. 96-2664.

Gary Seeling (argued), Waukesha, WI, for Tracy Fitzgerald in No. 96-3320.

Michael J. Steinle (argued), Milwaukee, WI, for Charmin Banks in No. 96-3496.

Gerald P. Boyle, Jonathan C. Smith (argued), Milwaukee, WI, for Gregory Hayes in No. 97-1539.

Before BAUER, CUDAHY and FLAUM, Circuit Judges.

CUDAHY, Circuit Judge.

This multi-defendant appeal challenges the convictions and sentences of five co-conspirators. The conspiracy, like so many others, was to distribute cocaine, this time in Milwaukee and Racine, Wisconsin. We address the claims of each defendant in turn, reversing in part and affirming in part.

I. Vincent Adams

Adams was arrested after parking his car and while walking toward his residence early one morning. The police had been following him and, when he parked, they followed suit, then stopped Adams and questioned him. Adams argues that both the stop and the subsequent search were illegal. He also argues that the frisk of his body exceeded permissible limits as it included the squeezing of his pockets and was without reasonable suspicion. Adams believes that all evidence obtained as the fruit of this search was illegally obtained and should be suppressed.

Adams was convicted after he pleaded guilty to conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), according to a written plea agreement. This plea agreement was not conditional under Rule 11(a)(2), nor did it reserve any issues for purposes of appeal. Fed.R.Crim.P. 11. "[A] plea of guilty constitutes a waiver of non-jurisdictional defects occurring prior to the plea." United States v. Robinson, 20 F.3d 270, 273 (7th Cir.1994). This waiver includes Fourth Amendment claims. See United States v. Markling, 7 F.3d 1309, 1312 (7th Cir.1993). Each of Adams' claims on appeal relates to the police search accompanying his arrest. Adams has thus waived these issues and we have no jurisdiction to hear his appeal. Adams' appeal is dismissed.

II. Robert D. Petty, Jr.

Robert Petty also pleaded guilty to the conspiracy. In conjunction with that plea Petty requested a two-level downward reduction in his guideline offense level on account of his status as a "minor participant" in the conspiracy. The government opposed this request. The district court found that Petty was not deserving of a downward reduction for being a minor participant and denied the request. Petty now appeals that decision. He argues that the facts do not support the district court's conclusion and that viewed even in the light most favorable to the government, he is deserving of "minor participant" status.

Petty admits that he and his brother, Billy Petty, "worked in conjunction with Hayes in obtaining cocaine from Chicago and distributing it in the Racine area" and "had their own customer base." Petty Br. at 6 (citing Presentence Report). Petty also admits that the Presentence Report considered him to be the fourth most culpable member of the conspiracy, which had eleven or twelve members. Nevertheless, Petty compares himself to other members of the conspiracy who did receive two-level reductions for their "minor participant" status. For example, Petty points to Charmin Banks (ranked seventh), responsible for between five and fourteen kilograms of cocaine as a courier and dealer in Milwaukee, who received the adjustment. Jamaile Andino (ranked eighth) also received a two-point downward adjustment even though he worked closely with Hayes (the leader of the conspiracy) and was present at the inception of the conspiracy. Petty also compares himself to Walter Ball (ranked eleventh), who was a courier for Hayes and received the "minor participant" reduction.

The crux of Petty's argument is that the district court mistakenly looked only to Petty's involvement in his "branch" of the conspiracy rather than to his involvement in the overall conspiracy. Petty concedes that his involvement in the Racine portion of the conspiracy was more than minor. But, he argues, he lacked understanding of the scope of the larger conspiracy, he knew only four of the other participants and he was not intricately involved in the overall conspiracy. See, e.g., United States v. Valencia, 907 F.2d 671, 686-87 (7th Cir.1990). Petty also argues that he worked with Hayes in only one instance and that all of his other dealings with Hayes consisted merely of Hayes acting as a supplier for Petty and his brother. Finally, Petty points to the district court's finding that Petty lacked "knowledge or understanding of the scope and the structure of the conspiracy and the activities that others were engaged in who were co[-]conspirator[s]." Petty Sentencing Transcript at 40.

We review the district court's decision for clear error. See United States v. Boatner, 99 F.3d 831, 838 (7th Cir.1996). The district court adopted the Presentence Report (PSR) without alteration. The PSR ranked Petty fourth in culpability, with at least six people ranked as less culpable than Petty. Thus, the government argues, Petty is not "less culpable than the average participant" and the district court did not commit clear error. United States v. Kerr, 13 F.3d 203, 206 (7th Cir.1993). Upon review of the sentencing transcript we agree that the district court carefully considered Petty's arguments and found that it could not consider Petty a minor participant. Contrary to Petty's argument, the district court did consider Petty's involvement in the overall conspiracy, not just the Racine portion of the conspiracy. For example, the court stated

that the minimal or minor participant situation is generally somebody who this court has found maybe as a first-time offender or has been drawn into this conspiracy in some other fashion. Now, everybody seems to agree that Ball and Johnson are in that category, but it's hard for this court to find that this defendant played a minor role when he has a record of at least two prior drug convictions and a number of other violations ... he had a business of his own, he decided to go into partnership with his brother, and that they both dealt with Mr. Hayes who was believed to be the leader.

Petty Sentencing Transcript at 40-41. The district court's decision was not clearly erroneous.

III. Tracy T. Fitzgerald

Fitzgerald appeals his conviction and sentence on the grounds that he pleaded guilty to trafficking in "cocaine base" and the government proffered proof of "cocaine base," but the district court sentenced him as if he had pleaded guilty to "crack." All "cocaine base" is not "crack" and Fitzgerald may be arguing that he would not have pleaded guilty to possession of "crack" (although this is not clear). Fitzgerald makes a number of arguments including that his sentence was improper, his attorney ineffective and that he should have been allowed to withdraw his guilty plea. ¹ All of his arguments turn on one issue: whether the government must prove "crack" specifically or merely "cocaine base."

At his change of plea hearing, Fitzgerald objected to the government's characterization of "cocaine base" as "crack." During the government's presentation of what it would prove if it had to go to trial, the following exchange took place:

[Government attorney]: ... Mr. Fitzgerald was found with nine ounces of crack cocaine on his possession on May 25th, 1995. That converts to almost over 25 kilograms of powder cocaine under the conversion. That's the first thing.

Second thing is that Mr. Fitzgerald has been involved in the distribution of cocaine since at least March 1990 when we caught him in a reverse transaction with Greg Hayes at a McDonald's parking lot. We have a substantial amount of evidence naming Tracy Fitzgerald as a cocaine and crack trafficker.

....

If you want to look at just this offense, the nine ounces of crack convert to over 900 ounces of powder cocaine because of the 100-to-1 ratio here.

[Fitzgerald]: But that wasn't crack, it was base you know.

[Government attorney]: Crack is base.

[Fitzgerald]: Oh yeah?

[Government attorney]: Yeah....

Fitzgerald Change of Plea Transcript at 17. Later, Fitzgerald requested both a change of plea and to discharge his attorney. Fitzgerald argued to the district court that he had not understood some portions of his plea agreement, that his attorney had not adequately explained the plea agreement and that his attorney had never been willing to go to trial. The district court denied both motions. Fitzgerald appeals both decisions and his sentence. Fitzgerald's appeal is based on his argument that all cocaine base is not crack and that before the crack enhancement can be applied to his sentence, the government must prove, by a preponderance of the evidence, that he possessed crack.

The sentencing enhancement for crack in relation to that for powder cocaine, in terms of the drug weights corresponding to specified guideline levels, is on the order of...