U.S.A. v. Bjorkman

• Decision Date: 30 October 2001
• Docket Number: 99-4092,99-4025,99-4091,Nos. 99-3302,99-4026,s. 99-3302
• Citation: 270 F.3d 482
• Parties: (7th Cir. 2001) United States of America, Plaintiff-Appellee, v. Trevor Bjorkman, Paul Gunderson, Travis Fearing, Dennis Gunderson, and Joel Hagen, Defendants-Appellants
• Court: U.S. Court of Appeals — Seventh Circuit

Page 482

270 F.3d 482 (7th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Trevor Bjorkman, Paul Gunderson, Travis Fearing, Dennis Gunderson, and Joel Hagen, Defendants-Appellants.

Nos. 99-3302, 99-4025, 99-4026, 99-4091, 99-4092

In the United States Court of Appeals For the Seventh Circuit

Argued June 8, 2001

Decided October 30, 2001

Appeals from the United States District Court for the Western District of Wisconsin. No. 99 CR 37--John C. Shabaz, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Bauer, Easterbrook, and Kanne, Circuit Judges.

Per Curiam.

Pursuant to guilty pleas, the five appellants were convicted of conspiracy to possess with intent to dis tribute and to distribute marijuana. They raise various challenges to their sentences. In addition, one of the appellants appeals the district court's denial of his motion for substitution of counsel, and another objects to the fine imposed by the court. We affirm.

BACKGROUND

The five appellants participated in a drug operation which involved buying marijuana from Mexican sources through contacts in Arizona and transporting it to Minnesota, where it was repackaged and distributed to a group of customers. The enterprise started some time in February of 1996, when Paul Gunderson paid an individual in Tempe, Arizona $10,000 to set up a 100-pound marijuana deal. Paul Gunderson's brother Dennis and two others went to the marijuana source near Tuscon, and Dennis and one other person picked up the 100 pounds of marijuana and drove it to Paul Gunderson's apartment in Minnesota.

At some point in 1996, Paul Gunderson offered Joel Hagen a 50% interest in the drug operation. From early to mid 1996, Paul Gunderson and Hagen used a number of drivers to bring the marijuana in from Arizona, including Dennis Gunderson, Trevor Bjorkman, Travis Fearing, and Wade Stafne. These drivers brought back several loads of marijuana, each of which weighed approximately 100 pounds. The loads were delivered either to Hagen's residence or to Paul Gunderson's apartment, both in Minnesota. There, Hagen, Paul Gunderson and others repackaged the marijuana into one-pound freezer baggies and distributed it to regular customers, each of whom received between 10 and 40 pounds of marijuana. At various times during 1996, Bjorkman and Fearing played the role of "human collateral" (that is, they were held in Arizona by the marijuana suppliers until the suppliers were paid). By mid-1996, Hagen wanted out of the partnership, but he continued to receive large portions of the marijuana delivered to Paul Gunderson.

In early 1997, Hagen and Paul Gunderson had a falling out and ended their drug partnership. Thereafter, Paul and Dennis Gunderson continued to obtain marijuana from their Mexican sources in Tuscon, but they used a new set of drivers. After authorities executed a search warrant at Paul Gunderson's residence in June of 1997, Gunderson sold the operation to his brother Dennis and Dan Madsen for $100,000. Meanwhile, Hagen went into business with an individual named Scot Hendricks. Hagen arranged for deliveries of marijuana to be brought to Minnesota by couriers, including Fearing and Stafne. The marijuana was repackaged at Hagen's residence, after which Hagen and Hendricks each claimed a portion for sale. Hagen and Hendricks continued to obtain marijuana from Arizona in this manner throughout the spring and summer of 1998, receiving at least one shipment of approximately 100 pounds at Hagen's residence in May of 1998.

In August of 1998, search warrants were executed at 18 locations throughout Wisconsin and Minnesota. A search of Hagen's residence led to the seizure of $122,640, a scale, drug packaging materials, two Smith & Wesson handguns, and a clip loaded with hollow-point bullets. At Hagen's brother's residence, police found an additional $30,000 of Hagen's money. A search of Paul Gunderson's residence yielded ten one- pound bags of marijuana and a number of firearms.

On June 3, 1999, the appellants and two others were charged in Count 1 of a superceding indictment with conspiracy to possess with intent to distribute and to distribute marijuana in violation of 21 U.S.C. § 846 and 841(a)(1). Consistent with then-existing case law, the indictment did not allege a quantity of marijuana. Each of the defendants pleaded guilty to Count 1, and each signed a written plea agreement. Each defendant's plea agreement provided that the offense to which he was pleading guilty exposed him to a mandatory minimum sentence of 5 years, and a maximum sentence of 40 years. The district court repeated these facts during each defendant's plea hearing, whereupon each indicated his understanding and agreement. In addition, Bjorkman's, Paul Gunderson's, and Fearing's plea agreements set out the government's position regarding the amounts of marijuana attributable to each defendant. Addressing Bjorkman and Paul Gunderson individually during their plea hearings, the district court repeated the government's position on the amounts of marijuana attributable to them. Presentence reports (PSRs) were prepared for each of the five defendants. Each PSR calculated the defendant's base offense level under the guidelines with reference to particular drug quantities. In Bjorkman's, Fearing's, and Paul Gunderson's cases, the PSR's calculation as to drug quantities fell within the ranges posited by the government in each of their plea agreements. Moreover, the PSRs found each of the five defendants accountable for quantities of marijuana well in excess of the amount triggering a sentencing exposure of 5 to 40 years.

During a joint plea hearing held for Dennis Gunderson, Paul Gunderson, Fearing, and Hagen, the government set out a detailed, consolidated factual basis which referenced quantities of marijuana. For example, the government stated that Paul Gunderson and Hagen used drivers (including Fearing, Bjorkman and Dennis Gunderson) to obtain loads of marijuana which averaged 100 pounds from Arizona, and to deliver them to Hagen or Paul Gunderson's residences in Minnesota. The government also stated that after he fell out with Paul Gunderson, Hagen continued this practice, using Fearing and other couriers. The government made reference to various specific trips and drug quantities. Hagen, Paul Gunderson, and Fearing agreed completely with the government's proffer. Dennis Gunderson challenged the proffer only by pointing out that he had ended his involvement in the conspiracy in December of 1997. The government put forward a similar factual basis at Bjorkman's plea hearing, and while Bjorkman did not admit to all of the government's quantity calculations, he admitted that he was responsible for participating in several marijuana delivery trips which involved quantities of 40 pounds, 85-100 pounds, and further indeterminate amounts. Bjorkman further admitted that he couldn't disagree if the government suggested that it could prove the number of pounds involved by a preponderance of the evidence. At no point prior to this appeal did any of the defendants challenge the position that the mandatory minimum sentence for the offense of conviction was 5 years, or that the maximum sentence was 40 years.

After applying various guideline enhancements, the district court sentenced the appellants to prison terms ranging from 105 to 155 months in prison plus 5 years of supervised release for each, and imposed a $40,000 fine plus criminal forfeiture on Hagen. The appellants' appeal their sentences, raising two joint issues together with various individual issues. We find some of these issues meritless and do not discuss them. For those issues that we do address, we include a discussion of the facts necessary for their resolution.

DISCUSSION

A. Apprendi issue

Defendants were indicted and pled guilty before the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000). Neither the indictment nor the guilty pleas mentioned any specific quantity of marijuana, and defendants did not ask the district judge to ascertain that quantity using the reasonable-doubt standard. Our review therefore is limited to a search for plain error. See United States v. Nance, 236 F.3d 820 (7th Cir. 2000). Defendants do not seriously deny that, if the district judge had used the reasonable-doubt standard, he would have concluded that they conspired to distribute more than 100 kilograms of marijuana (or more than 100 marijuana plants), a quantity that exposed each to a maximum of 40 years' imprisonment--exactly as each plea agreement recited. See 21 U.S.C. § 841(b)(1)(B)(vii). In an effort to avoid this conclusion, defendants contend that after Apprendi drug quantity is an "element" of the offense established by § 841 and that omission of this element means that the district court lacked jurisdiction--which would lead to reversal of the convictions and dismissal of the indictment without regard to the plain-error standard. To employ defendants' approach we would have to overrule not only Nance (which adopted the plain-error standard for review of forfeited Apprendi arguments) but also United States v. Brough, 243 F.3d 1078 (7th Cir. 2001), which held that drug quantity is not an element of § 841 in the technical sense. Neither case is ripe for overruling; nor are we attracted to defendants' position as an original matter.

According to defendants, an indictment that does not mention an element of the offense does not confer subject- matter jurisdiction on the district court. That view is refuted by 18 U.S.C. § 3231, which creates jurisdiction to try charges framed by federal indictments. We held in United States v. Martin, 147 F.3d 529, 531-33 (7th Cir. 1998), and have repeated since, that district judges always have subject-matter jurisdiction based on any indictment purporting to charge a violation of federal criminal law. E.g., Hugi v. United...