U.S.A v. Booker

• Decision Date: 14 July 2010
• Docket Number: No. 08-4180.,08-4180.
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Dajuan R. BOOKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

612 F.3d 596

UNITED STATES of America, Plaintiff-Appellee,v.Dajuan R. BOOKER, Defendant-Appellant.

No. 08-4180.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 19, 2010.

Decided July 14, 2010.

Manish Shah, Attorney (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Rosalie J. Lindsay-Guimaraes, Attorney (argued), Office of the Federal Defender Program, Chicago, IL, for Defendant-Appellant.

Before POSNER, FLAUM, and WOOD, Circuit Judges.

FLAUM, Circuit Judge.

Dajuan Booker appeals from a conviction for possession with intent to distribute more than 50 grams of crack. He challenges the district court's finding that officers had probable cause to search his truck and arrest him following a tip from a confidential source. Booker also claims that the trial judge committed a procedural error during sentencing by combining a mandatory minimum sentence for the drug offense with that for a gun charge on which Booker was acquitted. Appellant's contentions lack merit and we now affirm.

I. Background

On October 21, 2003, a confidential source (the “CS”) who had previously been charged with a drug offense agreed to cooperate with law enforcement to secure more lenient treatment. He told Drug Enforcement Administration (“DEA”) investigators that on several prior occasions, he had purchased anywhere from nine ounces to half a kilogram of crack cocaine from one “Big Moe,” and was expecting to buy another half kilogram on October 22 for $10,500. As is often the case in drug transactions, the CS did not know many personal details about his business partner but believed that Big Moe's last name may have been Booker and that Big Moe may have resided on School Street in Riverdale, Illinois. The CS provided a cell phone number for Booker, explained what Booker looked like (black male, approximately 35 years old, around 5'9?, weighing about 300 lbs), and stated that he drove a black Ford Harley-Davidson-model pick-up truck.

The DEA proceeded to investigate the identity of Big Moe. They contacted the Riverdale Police Department and learned that a person named Dajuan Booker had some connections to School Street. Agents ran a criminal history check that revealed that Dajuan Booker used a School Street address. Finally, the DEA obtained a driver's license photograph of Booker from the Illinois Secretary of State. The CS identified the man in the photograph as Big Moe. All of these events transpired in the span of several hours-the agency moved quickly to convert its source's previously scheduled October 22 exchange into a controlled buy.

The next morning, the DEA set up surveillance near the School Street address linked to Booker and began recording conversations. First, the CS called Booker and left a message. A few minutes later, the CS received a call back from a different number from a man who identified himself as “Moe.” Moe said he was “ready.” Based on four years' worth of drug-enforcement experience, one of the agents interpreted the remark to mean that Moe was ready to deliver narcotics. The CS then proceeded to negotiate about the meeting location. The CS first proposed his mother's house and a nearby club called Arnie's, but Moe refused, explaining that there had recently been a shooting at Arnie's and the place was “hot.” The two men then agreed to meet at “the house” in about an hour. The conversation did not feature many descriptive nouns. Instead, most remarks were similar in form to “Uh, then we gonna get ready and then I'll just call ya when I get where I'm going. Then you just come over. You know how to get to [unintelligible].” ¹

An hour after the second conversation, Moe called the CS. The CS asked if Moe “got it ready already.” Moe said he did and agreed to call the CS when he was pulling in. Two more calls followed, both discussing the meeting time.

The DEA intended to arrest Booker as soon as he arrived. It did just that when a black, Harley-Davidson-model Ford truck arrived at the School Street address approximately twenty-five minutes after the last call. Four agents approached the vehicle and ordered the driver out. When they saw that he matched the photographs of Booker, they handcuffed him and patted him down, but did not find any contraband on his person. The agents took Booker into custody and used his keys to open the truck bed, which contained a gray bag full of crack cocaine. The agents told Booker that he was under arrest for possession of a controlled substance and read Booker his Miranda rights. Booker then signed a form listing those same rights.

The DEA took Booker to a police station, where he agreed to make incriminating statements. He explained the School Street house belonged to his aunt and that he lived in an apartment at another location. He admitted that he had a variety of drugs and drug-making equipment at the apartment and gave written consent for agents to search it. The DEA also checked the license plates of his truck and found out that it was registered to Al Brown, who lived at the School Street address. When agents could not reach Brown, they detained the truck and transported it to an impound lot. During a subsequent inventory search, they found a loaded revolver in the rear center console of the vehicle.

Booker was tried on four counts: two counts of possession with intent to distribute in excess of 50 grams of cocaine base; one count of possession of a firearm in relation to a drug-trafficking crime; and one count of possession of a firearm by a convicted felon, which was subsequently severed by the district court. Appellant made several pre-trial motions, including a motion to suppress evidence on the grounds that agents lacked probable cause to arrest him, but the district court denied relief. Booker was then convicted on the two drug charges. The district court declared a mistrial on the remaining weapons charge.

At sentencing, the Probation Office classified Booker as a career offender on the basis of several prior state convictions. The Presentence Investigation Report (“PSR”) thus identified a guideline sentencing range of 360 months to life. Booker did not object to this recommendation. Instead, he asked that the court instead deviate downwards and impose the mandatory minimum 20-year sentence based on favorable 18 U.S.C. § 3553(a) factors. After a lengthy colloquy, the district court considered Booker's extensive efforts to rehabilitate himself since his arrest and imposed a 25-year sentence. The court reasoned, in part, that Booker almost certainly possessed a weapon, which would have been associated with a 60-month sentence. It added those 60 months to the 240 months mandated by statute to arrive at 25 years.

Defendant-appellant now argues that because the DEA lacked probable cause to arrest him and search his truck, the district court erred in denying his motion to suppress evidence. Booker also claims that the district court committed a procedural error when he imposed the 25-year sentence without adequately considering 18 U.S.C. § 3553(a) factors. Finally, Booker argues that the addition of 60 months to the mandatory minimum sentence amounted to a judicial conviction on the gun charge in violation of his Sixth Amendment right to a trial by jury.

II. Discussion

A. Motion to Suppress

When we review a district court's denial of a motion to suppress evidence, we examine legal issues de novo and check conclusions of fact for clear error. United States v. Jackson, 300 F.3d 740, 745 (7th Cir.2002). Determinations of the existence of probable cause are mixed questions of law and fact that are entitled to de novo review. United States v. Zahursky, 580 F.3d 515, 521 (7th Cir.2009).

Probable cause exists “where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found.” Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). The Supreme Court has recognized that when probable cause exists to search an automobile, officers are permitted to conduct a warrantless search of “all parts of the vehicle in which contraband or evidence could be concealed, including closed compartments and trunks.” United States v. Young, 38 F.3d 338, 340 (7th Cir.1994) (citing California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991); Carroll v. United States, 267 U.S. 132, 153-56, 45 S.Ct. 280, 69 L.Ed. 543 (1925)). “[D]etermining whether probable cause exists involves a ‘practical, common-sense decision whether, given all the circumstances set forth ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” United States v. Ellis, 499 F.3d 686, 689 (7th Cir.2007) (ellipsis in original).

The circumstances of Booker's case pass this test. The DEA received a specific tip from an informant about Booker's participation in the drug trade from a source who had bought drugs from the suspect on several prior occasions. The agency then collected corroborating information for this tip in the form of Booker's prior convictions for drug trafficking. Next, agents listened to conversations where the informant and Booker struck a deal to purchase a large quantity of crack. Though Booker himself appears to have never uttered the word “crack” or a similar descriptive term, the logistics of the transaction (in particular, the diligence with which the parties coordinated the timing and location of their meeting) made the conclusion that drugs were being sold reasonable. The CS told agents that he had previously bought drugs from Booker. The familiar tone of the conversations between the two confirmed these accounts, as did the men's mutual, precise understanding of the otherwise-opaque term “the house.”

When Booker showed up in a vehicle matching the description provided by the CS at the time the CS identified on the phone, agents had sufficient evidence to conclude that there...