U.S. v. Easter
| Decision Date | 16 January 2009 |
| Docket Number | No. 07-3628.,No. 07-3540.,No. 07-3118.,No. 07-3203.,No. 07-2433.,No. 07-2435.,07-2433.,07-2435.,07-3118.,07-3203.,07-3540.,07-3628. |
| Citation | 553 F.3d 519 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Steven P. EASTER, Jamaul R. McKay, Anthony K. Glover, Darrell D. Davis, Bradford V. Dodson, and Montrell McSwain, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
David E. Bindi, submitted, Office of the United States Attorney, Chicago, IL, for United States.
Franklin C. Cook, Freeport, IL, for Steven P. Easter.
Paul Flynn, argued, Chicago, IL, for Jamaul R. McKay.
Richard H. Parsons, Office of the Public Defender, Peoria, IL, for Anthony Glover.
Anthony Glover, Terre Haute, IN, Pro se.
Daniel J. Cain, Peter B. Nolte, Sreenan & Cain, Rockford, IL, for Darrell D. Davis.
Susan Kister, St. Louis, MO, for Bradford V. Dodson.
Bradford V. Dodson, Beaver, WV, Pro se.
Before MANION, KANNE, and EVANS, Circuit Judges.
In a bit of police work worthy of a TV show, federal and local law enforcement officers installed audio and video recording devices in a house in Rockford, Illinois, that the Titanic Stones gang then used to deal drugs. The police were given this rare opportunity when the gang's leader asked a girlfriend to rent a house for him and she went to the police. Officers monitored and recorded the dealing in the house for about a month in 2005 before the dealers discovered the recording devices. Then the authorities swooped in and arrested the dealers. The government indicted 14 defendants on 32 counts of drug and gun crimes. Three went to trial and were found guilty. Of those, two appeal. The other eleven pleaded guilty, and four of them appeal. Of the six appellants, only two, Jamaul McKay and Darrell Davis, present arguments on the merits. Both pleaded guilty and challenge only their sentences, but neither presents a meritorious argument, so we affirm in both cases. In each of the four other appeals, counsel has moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We grant those motions and dismiss the four appeals because all of the potential issues identified by counsel and the appellants would be frivolous.
McKay and Davis both pleaded guilty to conspiring to possess with intent to distribute heroin and crack, 21 U.S.C. §§ 846, 841(a)(1), and to possessing a gun in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A). At sentencing, McKay did not dispute that the conspiracy itself involved at least 1 kilogram of heroin and at least 50 grams of crack. Instead, he argued that the portion of the overall amount attributed to his jointly undertaken criminal activity, see U.S.S.G. § 1B1.3(a)(1)(B), was overstated. McKay conceded that he should be sentenced on the basis of 960 grams of heroin, but he argued that he should not be responsible for any crack because he sold only heroin and could not have foreseen the crack sales by his coconspirators. The district court disagreed and found that McKay was responsible for some of the crack sold by other members of the conspiracy. The court estimated the amount of crack attributable to McKay at between 45 and 75 grams. The court then used the drug equivalency tables, U.S.S.G. § 2D1.1, cmt. 10, and converted 960 grams of heroin to 960 kilograms of marijuana and 45 to 75 grams of crack to between 900 and 1500 kilograms of marijuana. A range of 1860 to 2460 kilograms of marijuana yielded a base offense level of 32, id. § 2D1.1(c)(4), which the court then reduced by three levels for acceptance of responsibility, id. § 3E1.1. With a total offense level of 29 and a criminal history category of I, McKay faced a guidelines imprisonment range of 87 to 108 months. Without explanation, the court held that McKay was subject to a mandatory minimum sentence of 120 months on the drug count. Perhaps the court thought that the aggregation of the drug totals triggered the mandatory minimum. It is also possible that the court applied the mandatory minimum because McKay conceded that the conspiracy involved at least one kilogram of heroin and at least fifty grams of crack, though he did not concede that those amounts were reasonably foreseeable to him. In any event, McKay did not object or seek clarification. The court sentenced him to 120 months on the conspiracy charge and 60 months on the gun charge, to run consecutively.
Davis, who led the conspiracy, received a much stiffer sentence. The district court found him responsible for between 10 and 30 kilograms of heroin. This quantity yielded a base offense level of 36. U.S.S.G. § 2D1.1(c)(2). The court added 4 levels for Davis's role in the offense, U.S.S.G. § 3B1.1(a), added 2 levels for reckless endangerment during flight, id. § 3C1.2, and subtracted 3 levels for acceptance of responsibility, id. § 3E1.1. The court combined that offense level with Davis's criminal history category of VI to compute a guidelines range of 360 months to life on the conspiracy charge. The court sentenced Davis to 444 months on the conspiracy charge and 60 months on the gun charge, to run consecutively.
The finding of reckless endangerment during flight was based on the testimony at sentencing of the ATF agent who arrested Davis. The agent said he ordered Davis to stop but Davis attempted to run into a house. The agent tried to grab Davis, but Davis pushed him away, pushed away another agent, and ran. The agent gave chase with his gun drawn, and during the chase Davis pulled a gun from his pants. The ATF agent explained:
At this point I see him reaching around with his left hand behind his back, and I see him drawing the butt of a gun. At this point I tell him—I said, He continues running. At this point I've taken up a stationary position, and I've prepared to fire my weapon. He continues running. He's got his arm extended. He's just about to cant it back towards me, and as he's running, he fumbled the gun, and the gun fell.
Davis argued that the agents testimony did not necessarily show that he intended to cause harm when he drew the gun; he could have intended simply to dispose of it. The district court disagreed, finding reckless endangerment during flight based on Davis's violence when he first got away from the police and the risk he created by drawing his gun. The court believed that after seeing the gun one of the officers might have shot Davis, the other officer, or someone else in the area.
The other four appellants, Steven Easter, Anthony Glover, Bradford Dodson, and Montrell McSwain, were all convicted on the same conspiracy charge and one § 924(c)(1) count, Easter and Glover after pleading guilty and Dodson and McSwain after trial. Easter and Glover were both subject to a ten-year mandatory minimum on the conspiracy charge. Easter got 192 months and Glover got 156 months. Dodson and McSwain were both subject to a twenty-year mandatory minimum on the conspiracy charge. Dodson got 360 months and McSwain got 240 months. All four received a consecutive five-year term for possessing a gun in furtherance of a drug trafficking crime.
On appeal McKay argues that the district court should not have sentenced him on the basis of any crack. He also contends that the court mistakenly applied a mandatory minimum to his sentence on the drug count. As McKay views things, the district court applied the mandatory minimum based on the marijuana equivalents for his "share" of the heroin and crack. That is, neither 960 grams of heroin nor 45 grams of crack (the lowest amount the court attributed to McKay under the guidelines) would trigger a 10-year minimum, but 1860 kilograms of marijuana, the aggregate of those amounts following the conversion to marijuana equivalents, would. See 21 U.S.C. § 841(b)(1)(A)(i), (iii), (vii). The government makes no attempt to argue that aggregating quantities of different types of drugs to reach a statutory minimum would be proper. Indeed, one circuit has explicitly rejected the practice. Alaniz v. United States, 351 F.3d 365, 368 (8th Cir.2003). Instead, the government argues that a stray remark by the court at sentencing was an explicit finding that McKay was responsible for at least 50 grams of crack, the amount that would trigger the mandatory minimum under § 841(b)(1)(A)(iii).
The government's reading of the court's remark ignores the language and context of the court's statement:
I think both sides agree that if he is responsible—if I find that he's responsible for the crack cocaine, then that added to the heroin would clearly be over one kilo—well it would be clearly over 50 grams of cocaine, and when you translate that into marijuana and you translate the heroin into marijuana, you come up with a total of—if I were to use the heroin, that translates into 960 kilos of marijuana
The court seemed to refer to 50 grams of crack because, at the time, 50 grams of crack and 1000 kilograms of marijuana both required a base offense level of 32. U.S.S.G. § 2D1.1(c)(4) (2006). The court's discussion at that point in the hearing was not about a mandatory minimum; it was about the base offense level. Whatever the court meant, though, this statement preceded the court's explicit finding that the amount of crack attributable to McKay as relevant conduct fell somewhere in the range of 45 to 75 grams. That is, the court expressly held that the amount could have been less than 50 grams.
But none of this matters because both sides mistakenly assume that the crack amount attributed to McKay as relevant conduct under the guidelines was significant for purposes of applying the statutory minimum. In fact, statutory minimums do not hinge on the particular defendant's relevant conduct. In a drug conspiracy, the amount of drugs attributable to any one codefendant as "relevant conduct" for guidelines purposes is limited to the reasonably foreseeable transactions in...
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