U.S. v. Eppinger, 94-2051

• Citation: 49 F.3d 1244
• Decision Date: 02 March 1995
• Docket Number: No. 94-2051,94-2051
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerisa K. EPPINGER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1244

49 F.3d 1244

UNITED STATES of America, Plaintiff-Appellee, v. Gerisa K. EPPINGER, Defendant-Appellant.

No. 94-2051.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 30, 1994.

Decided March 2, 1995.

K. Tate Chambers, Asst. U.S. Atty., Peoria, IL (argued), for plaintiff-appellee.

Ronald E. Halliday, Parker & Halliday, Peoria, IL (argued), for defendant-appellant.

Before BRIGHT, ^* BAUER and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

On December 17, 1993, Gerisa K. Eppinger pleaded guilty to one count of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846. The defendant was sentenced on April 29, 1994 to nine years incarceration to be followed by five years of supervised release, and a special assessment of $50. Eppinger faced a mandatory minimum sentence of ten years, but received a downward departure for acceptance of responsibility. U.S.S.G. Sec. 3E1.1(b)(1) and (2). She appeals her sentence on the grounds that her plea agreement called for a mandatory minimum sentence of only five years and furthermore, that she should have been allowed to present in camera testimony in support of her motion for another downward departure pursuant to U.S.S.G. Sec. 5K1.1. We AFFIRM.

I. FACTUAL BACKGROUND

On March 11, 1993, the Peoria, Illinois Police Department (PPD) received an anonymous phone call, indicating that a black woman, later identified as Gerisa K. Eppinger, would be departing shortly from the Peoria, Illinois airport for an unidentified southern state to purchase a large quantity of cocaine. The caller told the PPD that the woman would return to Peoria with the cocaine and sell it to Peoria drug dealers. Additionally, the caller provided the PPD with information about the defendant's residence and motor vehicle. Based on the foregoing information, the PPD began an extensive surveillance operation at the Peoria airport on March 13, 1993.

On March 14, 1993, at approximately 1:30 p.m., Eppinger was identified by the PPD when she purchased an airline ticket, with cash, from Peoria to Houston, Texas, under the name of Gerisa Kay Robinson. Once she left the ticket counter, PPD officers interviewed Tammi Bollinger, the ticket agent who assisted Eppinger. Bollinger told the agents that the woman who purchased the ticket called herself Kay Robinson, had traveled on the airline twice a month for the last six months, and always paid for her tickets in cash. Bollinger further related that the defendant usually traveled directly to Houston, with a single layover in St. Louis, but that on this trip, the defendant was going to travel to Chicago, Dallas, Longview, Texas, back to Dallas, and finally, to Houston.

Later that afternoon, PPD officers waited for Eppinger to board her plane, but she was late for the flight and missed it. Five minutes after the flight left, the defendant went to another ticket counter and purchased two tickets, one for herself under the name Gerisa Kay Robinson, and one for her eighteen-year-old daughter. She paid approximately $1100.00 in cash for both of these tickets. The tickets were to Houston, with a change of planes in St. Louis. Eppinger and her daughter boarded the plane which left at 6:25 p.m.

The PPD officers continued their surveillance of the Peoria airport as they waited for Eppinger to return. On March 16, 1993 they received another anonymous phone call telling them that the defendant would return on a flight that evening, with the cocaine. At approximately 10:20 p.m., Eppinger and her daughter were seen leaving a plane at the Peoria airport. The defendant was carrying a blue bag. After Eppinger and her daughter retrieved their luggage, PPD officers immediately approached Eppinger and her daughter and asked them to go to the United States Customs office at the airport. Eppinger agreed to go with the PPD officers and left the blue bag on the floor next to the chair on which she was sitting. Officer Bainter of the PPD carried the bag to the office.

In the Customs office, the PPD officers told Eppinger and her daughter that they were suspected of carrying narcotics and read Eppinger her Miranda rights, which she agreed to waive. After a drug-sniffing dog detected narcotics in one of the pieces of luggage, Eppinger admitted to Officer Kevin Kirwin that she purchased approximately three kilograms of cocaine in Houston, which was in the blue bag. The officers searched her luggage and found 3.2 kilograms of cocaine and 2.6 grams of cocaine base (crack) along with nine pieces of gold jewelry and $4915.00 in United States currency. They performed a field test on the substance suspected to be cocaine and it tested positively for cocaine.

The following day, pursuant to a search warrant, the PPD officers conducted a search of Eppinger's residence. During the search, they found $1612.00 in United States currency, 165.6 grams of cannabis, a loaded .38 caliber Smith and Wesson snubnose revolver, a loaded Jennings semi-automatic handgun, several scales, several plastic zip-lock baggies, pagers, and ammunition. Later that day, when interviewed by PPD officers, Eppinger stated that between December, 1992 and March 16, 1993, she transported a total of approximately 12 kilograms of cocaine from Houston to Peoria. ¹ She was given $22,000 to pay for each kilogram of cocaine and she earned $5000.00 per trip. Eppinger also told the officers that after she brought the cocaine to Peoria, a black male from Galesburg would come and pick up the cocaine.

On April 8, 1993, the government filed a one count indictment in the United States District Court in Peoria charging Eppinger with possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). A superseding indictment was filed on June 10, 1993, which also charged Eppinger with conspiring to distribute cocaine in violation of 21 U.S.C. Sec. 846.

Although Eppinger originally pleaded not guilty to the charges, on December 17, 1993, the government and the defendant entered into a written plea agreement in which Eppinger pleaded guilty to the conspiracy charge in exchange for the government's dismissal of the charge of possession with intent to distribute. The government also agreed to request a three level reduction of Eppinger's offense level under the United States Sentencing Guidelines because of her cooperation and acceptance of responsibility, it agreed to recommend that Eppinger be placed in a minimum security facility as close to her family as possible, and it agreed to recommend a sentence at the bottom of the guideline range if she complied fully with the terms of her agreement.

The plea agreement stated, in relevant part:

Count 1 carries a mandatory minimum penalty of five (5) years' imprisonment [and] up to forty (40) years' imprisonment.... The parties agree that as to Count 1 the defendant may receive any sentence authorized by statute up to and including the maximum sentences set out above. At the time of sentencing the government may recommend any sentence up to and including the maximum sentence.... If the defendant complies fully with the terms of this plea agreement, the government agrees to recommend a sentence at the bottom of the guideline range as that range is determined by the court or the mandatory minimum, whichever is greater. The defendant acknowledges that this is only a recommendation and is not binding on the court.

(Emphasis added). Both parties approved and signed the agreement.

At the change of plea hearing on December 17, 1993, the district judge fully admonished the defendant of the consequences of her plea, including the fact that the government's sentencing recommendation "is not binding on the court." He further stated that crime she was pleading guilty to carried with it a mandatory minimum sentence of five years, a maximum penalty of forty years, and that she could be sentenced to any time within that range. ² He concluded by stating:

It is the finding of the Court ... that the defendant is fully competent and capable of entering an informed plea and that her plea of guilty is a knowing and voluntary plea supported by an independent basis in fact containing each of the essential elements of the offense. Her plea is therefore accepted and she is now adjudged guilty of that offense.

The Probation Office prepared a pre-sentence report. Based on the defendant's statement that she transported twelve kilograms of cocaine, ³ Eppinger's base offense level was assessed at 32, but with an adjustment for acceptance of responsibility, her adjusted level was 29. She also had one criminal history point, which led her to have a criminal history category of I. ⁴ Her sentencing guideline range was 87-108 months, but the Class A felony carried a mandatory minimum sentence of ten years, rather than the mandatory minimum of five years as she was previously informed by the government and the court.

Eppinger objected to the pre-sentence report based on the fact that she was told that her crime would carry only a five year, rather than a ten year, mandatory minimum sentence. She also claimed that there were factors in her case which warranted a downward departure, namely that she had no prior convictions, and that due to personal circumstances surrounding her family and financial situation, that she felt that she had no choice but to become involved in the drug trade. The defendant would not elaborate as to what these factors were, but she stated that she would like to testify as to these circumstances in camera at the sentencing hearing.

The sentencing hearing was held on April 29, 1994 and the first matter which the court addressed was whether Eppinger wished to change her plea to not guilty due to the fact that she was not told about the possible mandatory minimum of ten years at the plea change hearing. The following exchange took place:

THE COURT: It seems to me that the first matter that we have to address here today is the question of whether or not ...