U.S.A. v. Jemison, s. 99-1936 and 99-1979

• Decision Date: 24 January 2001
• Docket Number: Nos. 99-1936 and 99-1979,s. 99-1936 and 99-1979
• Parties: (7th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KELLY JEMISON and DONIAL CARTER, Defendants-Appellants
• Court: U.S. Court of Appeals — Seventh Circuit

Page 911

237 F.3d 911 (7th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KELLY JEMISON and DONIAL CARTER, Defendants-Appellants.

Nos. 99-1936 and 99-1979

In the United States Court of Appeals For the Seventh Circuit

Argued September 6, 2000

Decided January 24, 2001

Appeals from the United States District Court for the Northern District of Illinois, Western Division. No. 98 CR 50037--Philip G. Reinhard, Judge.

Before CUDAHY, COFFEY, RIPPLE, Circuit Judges.

COFFEY, Circuit Judge.

On July 30, 1998, the United States Attorney for the Northern District of Illinois filed a criminal information charging the defendants-appellants Donial Carter and Kelly Jemison each with one count of conspiring to make false statements in an application for the purchase of firearms from a federally licensed firearms dealer, in violation of 18 U.S.C. sec. 371, and three counts of causing false statements to be made in the records of a federally licensed firearms dealer, in violation of 18 U.S.C. sec. 924(a)(1)(A).

On December 22, 1998, Jemison pled guilty to Count One of the information (conspiracy to make a false statement in an application for the purchase of a firearm from a federally licenced firearms dealer) and the other three counts charged were dismissed pursuant to a plea agreement. At Jemison's March 31, 1999 sentencing hearing, the trial judge sentenced her to 16 months of imprisonment, three years of supervised release, and a special assessment of $100. Carter pled guilty to all four counts of the indictment on March 31, 1999. At Carter's April 8, 1999 sentencing hearing, the trial judge ordered him imprisoned for a period of 66 months on each of the four counts with each of his sentences to run concurrent with each other, three years of supervised release, a $500 fine, and a $400 special assessment. On appeal, Jemison argues that she received ineffective assistance of counsel. Carter argues: (1) that the sentencing court committed clear error in increasing his base offense level by four points pursuant to U.S.S.G. sec. 2K2.1(b)(5) for attempting to transfer firearms with reason to believe that those firearms would be used in connection with felony offenses; and (2) that the court erred in sentencing him to four concurrent terms of imprisonment of 66 months each when the statutory maximum term of imprisonment for each count was only 60 months. We affirm as to Jemison. As to Carter, we affirm in part, reverse in part, and remand for re-sentencing.

I. BACKGROUND

A. The Crimes

On November 29, 1997, Donial Carter went to the Shootin' Shack gun shop in Rockford, Illinois, and ordered two nine-millimeter pistols. Mike Douglas, the owner of the gun store, called the Illinois State Police's Firearm Transfer Inquiry Program ("FTIP") and gave Carter's Illinois Firearms Owners Identification Card ("FOID") number for approval to purchase the weapons and the FTIP refused to approve the gun sale to Carter based upon an outstanding arrest warrant.¹ Due to the FTIP's failure to approve the transaction, Douglas declined to make the sale to Carter.

After being refused the opportunity to purchase the pistols, Carter contacted his half-sister, Kelly Jemison, who had a valid Illinois FOID, and requested that she purchase the firearms for him. Jemison agreed, and on December 6, 1997, she accompanied Carter to the gun store and executed a Bureau of Alcohol, Tobacco, and Firearms ("ATF") Form 4473 for the purchase of two firearms, including one of the pistols Carter previously had attempted to purchase in November. In response to the question on the gun sale form asking "Are you the actual buyer of the firearm indicated below?" Jemison answered "Yes." Neither Jemison nor Carter contests that her answer on the application was false and, in fact, Jemison subsequently admitted, in a signed statement to the police, that she was purchasing the weapons for Carter.

Just one month later, on February 5, 1998, Jemison again accompanied Carter to the gun shop and purchased a nine-millimeter pistol. Jemison again executed an ATF Form 4473 in which she answered "Yes" to the question "Are you the actual buyer of the firearm indicated below?" when in fact she was acting as a "strawman" in purchasing the guns for Carter, who in turn re- sold the nine-millimeter pistol.²

On June 12, 1998, Carter called Douglas at the gun store and stated that he wished to purchase 10 Lorcine nine-millimeter pistols. After being quoted a price of $110 per pistol, Carter informed Douglas that it was his intention to re- sell these ten guns for a profit. Although Carter did not disclose the identity of the prospective gun buyers to Douglas, he did admit later to the police that he planned to sell the guns to members of the Gangster Disciples, a nationally known street gang. Douglas advised Carter that it would be illegal to re-sell the pistols without a federal firearms dealer's license. Later that day, Carter and Jemison spoke with Douglas on a conference call, and informed him that Jemison would purchase the ten pistols because he (Carter) still did not possess a valid FOID. Douglas advised Carter and Jemison that their plan constituted an illegal "straw purchase." In spite of this information, Carter told Douglas that he wanted to go through with the purchase of the pistols through Jemison. After their discussion, Douglas notified ATF about the pending gun sale to Jemison for Carter and agreed to cooperate in an investigation of the illegal transaction.

On June 24, 1998, Carter visited the Shootin' Shack and, during a tape-recorded conversation, told Douglas that he intended to take possession of the pistols that Jemison was purchasing from him and sell them to buyers in Chicago. Carter also informed Douglas that in the future he intended to buy about $1,000 worth of guns from him per week for re-sale purposes. Carter left the gun store without making any down-payment on the pistols. Later that day, Carter called to confirm that Jemison would return and make the actual purchase and pick up the weapons. During this telephone conversation, Carter mentioned that he would be re-selling the firearms to buyers living in the Chicago, Illinois, area.

On July 2, 1998, Carter arrived at the store in a car with one other passenger, identified as Tommy Davidson, a member of the Gangster Disciples. Unbeknownst to Carter and Jemison, not only was their trip surveilled by ATF agents, but their conversation in the Shootin' Shack was recorded. Carter and Jemison counted out $1062 in cash for the ten guns, and Carter handed the money to Douglas. After the sale, Carter requested that Douglas prepare a false sales receipt in the amount of $1867.51 to facilitate his charging an inflated price for the guns. Carter left the store carrying the box containing the pistols. He and Davidson stashed nine of the guns in the trunk of their vehicle, and placed the other pistol on the console between them on the front seat. When Jemison exited the store with the phony receipt, she and Carter were arrested and taken into custody.

B. The Confessions

After their arrest, Jemison and Carter were conveyed to the Rockford Public Safety Building (police station) and questioned. Jemison initially stated that she was a gun collector and had purchased the ten pistols for her personal use, but later recanted this fabrication and, in a signed confession, admitted that she had purchased the guns for Carter. Her statement reads:

3 weeks ago Donial called me and asked me if I wanted to make some money and he was going to pay $300.00 using my FOID card. He used my number to order guns at the Shooting Shack in Rockford and told me only that I had to sign gun forms. . . . Donial never paid me the money and (sic) he said he was, and I did not know what he was doing with the guns. No clue.

Carter also initially stated that the guns were purchased for Jemison's private use as a collector. Later, he also retracted that story and admitted in a signed confession that he was purchasing the guns for a Gangster Disciple named "Will" who had directed that Tommy Davidson accompany Carter and observe the transaction. Carter told the police:

I ran into Will after being jumped by some Urban Lord gang members and I talked to him about being protected because he was a G.D. [Gangster Disciple] and we came to a (sic) agreement that if I could find him some guns that he could help me be protected from the gang members. So last week I came to see Mike Douglas about it and he told me that he would order the guns under my sister's name [as I requested.] . . . [Will] gave Tommy the money to ride with me to purchase the guns because he didn't trust me with the money.

C. Jemison's Plea Agreement and Sentencing

In Jemison's negotiated plea agreement, the government agreed not to pursue the two-level enhancement set forth in the United States Sentencing Guideline 3B1.1³ and in return Jemison consented to waive her right to appeal either her conviction or sentence. The appellate waiver clause stated:

Defendant understands that by pleading guilty she is waiving all the rights set forth in the prior paragraph. Defendant's attorney has explained those rights to her and the consequences of waiving all appellate issues that might have been available if she had exercised her right to trial. The defendant is also aware that Title 18, United States Code, Section 3742 affords defendant a right to appeal the sentence imposed. Acknowledging all of this, the defendant knowingly waives the right to appeal any sentence within the maximum provided in the statute of conviction (or manner in which that sentence was determined) on the grounds set forth in section 3742 or on any other ground whatsoever, in exchange for the concessions made by the United States in this Plea Agreement. The defendant also waives her right to challenge her sentence or the manner in which it was determined in any collateral attack, including, but not...