U.S. v. Bowlin

• Decision Date: 17 July 2008
• Docket Number: No. 06-3743.,06-3743.
• Citation: 534 F.3d 654
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ivy Gene BOWLIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

534 F.3d 654

UNITED STATES of America, Plaintiff-Appellee, v. Ivy Gene BOWLIN, Defendant-Appellant.

No. 06-3743.

United States Court of Appeals, Seventh Circuit.

Argued September 24, 2007.

Decided July 17, 2008.

Michael C. Carr (argued), George A. Norwood, Office of the United States Attorney, Benton, IL, for Plaintiff-Appellee.

Daniel F. Goggin (argued), Greenville, IL, for Defendant-Appellant.

Before POSNER, FLAUM, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

This appeal is before us because Ivy Gene Bowlin was frustrated in his attempt to withdraw his plea of guilty to a three-count indictment that charged violations of the federal drug laws. If he cannot succeed in withdrawing the plea, Bowlin would like his sentence corrected. He argues that the district court selected the wrong sentence because it erred in its application of the U.S. Sentencing Guidelines, both in determining his relevant conduct and in applying the enhancement for use of a minor in committing an offense. He also claims that the Government should not have been permitted to include drug quantities in his indictment as a basis for enhancing his sentence. Finding no error, we affirm the district court in all respects.

I

On February 8, 2006, a federal grand jury returned a three-count indictment against Bowlin, charging him with conspiracy to manufacture and distribute 50 grams or more of a mixture and substance containing methamphetamine and with two counts of distributing methamphetamine, each on a different date in late December of 2005, all in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. On May 4, 2006, Bowlin pleaded guilty to all three counts. During this proceeding, the district court placed Bowlin under oath and, prior to accepting the plea, gave Bowlin the advice required by FED. R. CRIM. P. 11. As it went through the advice required by Rule 11(b), the district court frequently asked Bowlin whether he understood what was being said and whether he had any questions. Each time, Bowlin replied that he did understand, and that he had no questions. Part of this exchange went as follows:

THE COURT: Do you understand you can persist in a plea of not guilty and have a trial, but if you plead guilty to these charges, you are waiving your right to a trial and there will be no trial, and you will be sentenced as if you were found guilty by a jury. Do you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: It's my understanding you wish to enter into an open plea to these charges; is that correct?

THE DEFENDANT: Yes.

THE COURT: An open plea of guilty?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Have you talked about the sentencing guidelines and how they might apply in your case?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Do you understand this Court cannot determine what guideline applies to your case until it has received and reviewed a Presentence Investigation Report. That the guidelines are advisory now, and the Court will consider those guidelines as well as factors enumerated in 3553(a) of Title 18 when it sentences you. Do you understand that?

THE DEFENDANT: Yes, Your Honor.

The prosecution then laid out the factual basis for its case; the court asked Bowlin whether those representations were correct; and Bowlin confirmed that they were. The court then asked Bowlin how, with respect to each count, he wished to plead; Bowlin replied "Guilty." In response to further questioning, Bowlin confirmed that no threats or promises had been made to him in an effort to induce the guilty plea and that he was acting freely and voluntarily. Satisfied with Bowlin's responses, the court accepted the plea and set a sentencing date of August 3, 2006.

On June 30, 2006, the probation officer completed a Presentence Investigation Report ("PSR") for Bowlin. The record reflects that Bowlin received the PSR in early July of 2006, roughly one month before his August 3 sentencing date. Like many defendants before him, Bowlin was unpleasantly surprised to discover that the PSR delved into not only the charged offenses, but also additional drug transactions that the Government had learned about from a confidential source. Though the Government had acquired this information months before, the prosecution had not disclosed it to Bowlin or to his counsel, because the identity of the informant, Tonya Stone, remained confidential during those earlier phases of the proceedings. Thus, only after reading the PSR did Bowlin learn that Stone had told the Government that from November 2001 until spring of 2003, she was getting two to five grams of methamphetamine from Bowlin "every day that [she] was awake." Stone said that she and Bowlin engaged in a daily trade, in which she gave him pseudoephedrine pills in exchange for methamphetamine. Though these were not the transactions described in the distribution counts of Bowlin's indictment, they overlapped with the period of the charged conspiracy. The PSR therefore included the 1.3 to 1.8 kilograms of methamphetamine that Bowlin had distributed to Stone as relevant conduct under U.S.S.G. § 1B1.3.

The addition of this additional quantity naturally had a significant impact on the sentence recommended in the PSR. Disturbed, Bowlin promptly called his appointed counsel, Daniel Goggin, wanting to discuss this turn of events. But Goggin was preparing for trial in another case, and because he believed "there wasn't anything unusual about [Bowlin's] complaints" regarding the PSR, Goggin did not manage to meet with Bowlin to discuss the PSR until just a couple of days before the August 3 sentencing hearing. Realizing then that Bowlin's distress over the previously undisclosed witness did raise a significant issue, Goggin immediately drafted objections to certain portions of the PSR. He filed those objections on the day of the initial sentencing hearing, August 3, 2006. Goggin admitted to the court that he had "no good excuse" for such a tardy response, but he asked the court to consider the objections nonetheless, explaining that Bowlin's right to due process ought not suffer on account of his lawyer's delay. After the Government conceded that it had inadvertently failed to disclose the statement to Bowlin at a more appropriate time, the district court granted Bowlin a continuance of three weeks, so that Bowlin and his counsel could prepare for the hearing in light of the new information.

When the sentencing hearing reconvened three weeks later, on August 24, 2006, the district court began by confirming with Bowlin that Bowlin had received the PSR and had an opportunity to review and discuss it with his counsel. Bowlin also acknowledged his awareness of the objections Goggin had filed and stated that he had no further objections to the PSR. At that point, Goggin interjected that it was "surpris[ing]" and "unfair" for the Government to spring the previously undisclosed testimony from Stone and the additional 1.3 to 1.8 kilograms of methamphetamine on Bowlin so late in the game. At that point, the district court explicitly offered Bowlin the opportunity to withdraw his guilty plea:

THE COURT: Well, does he want to withdraw his plea and go to trial?

MR. GOGGIN: Just one second, Judge. Let me ask him that. At this point, he doesn't Your Honor.

THE COURT: He doesn't?

MR. GOGGIN: Right.

THE COURT: Are you wanting a continuance of this sentencing hearing so you can subpoena witnesses?

MR. GOGGIN: That's correct, Your Honor.

After this exchange, the district court allowed the Government to present the testimony of its witnesses. As Bowlin had requested, the court then adjourned the hearing until October 3, 2006, to give Bowlin time to subpoena his own witnesses and arrange for their attendance.

Only when the proceedings reconvened on October 3, 2006, did Bowlin (through counsel) make his oral motion to withdraw his guilty plea. When the court asked whether he was ready to proceed, the following exchange ensued:

MR. GOGGIN: Your Honor, I'm ready to do that [proceed], but I would have a request for what it's worth. The last time we were in court, if you recall, you asked me if [my] client wanted to withdraw his plea, and he said no, he was under shock with everything else that he was seeing in his [PSR]. But he and I have spent a lot of time together in the last couple weeks, and he's come to the conclusion if that's still available to him, he will do that. If not we will finish the hearing.

THE COURT: Mr. Goggin — MR. GOGGIN: I want to get this case over, too, Judge. He was caught off guard by that last time.

THE COURT: How many weeks ago? When was this last hearing?

MR. NORWOOD [for the prosecution]: Last time we were here, actually, in court?

THE COURT: Yes. If he wanted to withdraw his plea, file something.

PROBATION OFFICER MILLER: I believe it was August 24th.

THE COURT: For the sake of the record, this is October.

MR. GOGGIN: I know. And I can't say the exact dates I was up in Mt. Vernon to see him. We discussed it thoroughly and I said, "If you come to that conclusion, please let me know before trial." And today is when I talked to him again. I apologize for all of that. It's his wish, but if it's not granted, we're ready for the hearing.

THE COURT: Well, if you're making an oral motion to withdraw your plea, the oral motion is denied.

MR. GOGGIN: Okay.

The court explained that Bowlin had offered no basis for withdrawing his plea and that he had already had plenty of time to decide what to do. Observing that a defendant cannot decide to change his plea simply because "he doesn't like the way the sentencing hearing is going or the way the presentence report came out," the district court underscored the fact that the previously undisclosed statement of the confidential source had no bearing on guilt or innocence, but instead mattered only for sentencing. The district court then proceeded with the remainder of the sentencing hearing.

After hearing Bowlin's evidence, ...