U.S. v. Keeter, s. 96-3284

• Decision Date: 24 November 1997
• Docket Number: Nos. 96-3284,96-3932 and 97-1150,s. 96-3284
• Citation: 130 F.3d 297
• Parties: 48 Fed. R. Evid. Serv. 445 UNITED STATES of America, Plaintiff-Appellee, v. Barry KEETER, Darres Park, and Paul D. Ahrens, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 297

130 F.3d 297

48 Fed. R. Evid. Serv. 445

UNITED STATES of America, Plaintiff-Appellee, v. Barry KEETER, Darres Park, and Paul D. Ahrens, Defendants-Appellants.

Nos. 96-3284, 96-3932 and 97-1150.

United States Court of Appeals Seventh Circuit.

Argued Oct. 27, 1997.

Decided Nov. 24, 1997.

Timothy M. O'Shea (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee in Nos. 96-3284 and 96-3932.

Peggy A. Lautenschlager, Timothy M. O'Shea (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee in No. 97-1150.

R. Alan Bates (argued), Feingold, Bates & Sultze, Janesville, WI, for Barry Keeter.

Stephen J. Meyer (argued), Madison, WI, for Darres Park.

Gary Seeling (argued), Waukesha, WI, for Paul Ahrens.

Before CUMMINGS, EASTERBROOK, and ROVNER, Circuit Judges.

EASTERBROOK, Circuit Judge.

Last year we affirmed the sentence of a federal prisoner who smuggled amphetamine into prison so that other inmates could raise money to pay off gambling debts. United States v. Hall, 101 F.3d 1174 (7th Cir.1996). Now we have the appeals of three other participants in the scheme: Darres Park, the prison bookie; Barry Keeter, a losing gambler who thought up the scheme and resold within the prison the drug that Hall carried; and Paul Ahrens, another unsuccessful gambler who, after his release from prison, supplied the drug to Hall (via Hall's girlfriend). Keeter and Park received modest sentences (less than three years) for their roles; Ahrens was sentenced as a career offender to 88 months, a term substantially reduced by a seven-level reduction for assistance to the prosecution.

Keeter pleaded guilty and asked for a lower sentence under U.S.S.G. § 3E1.1. The judge was more impressed, however, by Keeter's threat to kill a witness. Suspecting that another inmate had provided information to the authorities, Keeter sent this message through an intermediary: "Hope you like this card you no-good snitching punk bitch mother-fucker. One day you'll get yours just like Pat Bell + Connie. See you later punk". This threat, coupled with Keeter's efforts to get two other persons to sign false statements, led to an enhancement for obstruction of justice under U.S.S.G. § 3C1.1. "Conduct resulting in an enhancement under § 3C1.1 ... ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply." U.S.S.G. § 3E1.1 Application Note 4. The judge thought that there was nothing "extraordinary" about Keeter's case, and given deferential appellate review (Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); United States v. Yusuff, 96 F.3d 982, 989 (7th Cir.1996)), it is impossible to gainsay that conclusion. See United States v. Gomez, 24 F.3d 924, 926 (7th Cir.1994). The only supposedly exceptional circumstance is that Keeter did not commit any additional crimes (at least, was not detected committing any) during the 9-month period between release from his old term of imprisonment and his incarceration for smuggling methamphetamine. Why 9 months of law-abiding conduct should be deemed so "extraordinary" that it purges the taint of the obstruction eludes us. Keeter is a career offender who appears to pose a substantial risk of recidivism, and a district judge rationally could conclude that he should not receive a benefit designed for offenders whose guilty pleas imply that the probability of their committing new crimes is low.

Ahrens also pleaded guilty. Although as part of the plea bargain the prosecutor offered to ask the judge to reduce the sentence for substantial assistance, Ahrens wanted to receive his discount from a lower retail price. His convictions marked him as a career offender who normally would be sentenced at the top of the range for persons with the most extensive criminal history. U.S.S.G. § 4B1.1. Seeking to avoid the career-offender designation for his client, attorney Peter A. Vance of San Diego (who appeared in the Western District of Wisconsin pro hac vice) secured a three-month delay in sentencing so that he could initiate a coram nobis proceeding to have one of Ahrens' state convictions annulled. When the day of sentencing arrived, attorney Vance revealed that the trial court in California had declined to upset the conviction, and he asked for more time to pursue an appeal. The district court thought the prospects of an appeal dim and denied the request. At this point Vance revealed that he was not ready to represent Ahrens at sentencing--although he had not sought a continuance in advance despite having ample notice of the date set for sentencing.

Appalled by Vance's indifference to the costs that unpreparedness imposes on the prosecutor, defendant, and court, the judge bawled out Vance and ordered him to refund part of his fee. Then she offered Ahrens three choices: (i) proceed immediately to sentencing with Vance as his lawyer; (ii) represent himself at sentencing; or (iii) fire Vance and engage a new lawyer in preparation for sentencing in a month's time. Waiting a month and then proceeding with Vance was out of the question; the court was reluctant to let counsel help himself to a continuance and was unwilling to take the risk that Vance would be unprepared a second time. After Ahrens expressed hesitation about which path to follow, the judge took a recess so that Ahrens could consult with Vance. Back in court, Ahrens elected to proceed immediately with Vance as his lawyer. He reiterated this position several times after the judge gave him an opportunity to change his mind. Vance then argued for a downward departure from the Guidelines for three principal reasons: Ahrens' cooperation with the prosecutor; the fact that other defendants had received much lower sentences than the one facing Ahrens; and the events leading to a conviction in Colorado (another of the crimes that led to the career-offender designation). According to Vance, Ahrens' lawyer in yet another case induced him to commit a drug offense in order to raise money to pay legal fees; the transaction this lawyer encouraged Ahrens to undertake led to the Colorado conviction. The district court agreed with the first ground for departure (which the prosecutor supported) and reduced Ahrens' offense severity by seven levels. The other two the judge found unimpressive.

Represented by new counsel, Ahrens contends that the judge should not have sentenced him, represented as he was by an unprepared lawyer. Vance disserved both his client and the judicial system by asking on the spot for a continuance, without being ready in the event the request should be denied. But the opportunity Ahrens now asks us to provide--a hearing with the aid of a fully prepared lawyer--was one of the options the district judge extended. Ahrens said that he preferred immediate sentencing with Vance's assistance. It is impossible to say that the judge erred in giving Ahrens what he wanted. No criminal defendant may avoid an explicit waiver, unless the waiver was involuntary. United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993). A claim that has been waived "is not reviewable, even for plain error", because the waiver means that there has been no error at all. United States v. Penny, 60 F.3d 1257, 1261 (7th Cir.1995); United States v. Ross, 77 F.3d 1525, 1541-42 (7th Cir.1996).

Well, then, was Ahrens' choice involuntary or coerced? How could it be? The judge offered him time for reflection and verified, during a colloquy in open court, that the choice was genuine. Election among well-understood alternatives meets the most stringent definition of voluntariness. The district court made it clear to Ahrens that Vance was unprepared; when electing to proceed with Vance anyway, Ahrens knew more about his lawyer's likely performance than litigants do when they choose representatives initially. Although the district judge implied to Ahrens that immediate sentencing would be in his best interests--in part because that would enable him to move more quickly from the county jail to federal prison, and in part because it seemed unlikely that delay would lead to a lower sentence--this does not call the voluntariness of the choice into question. Police who make it clear that they want a suspect to come clean do not render the confession involuntary. Prosecutors may offer strong inducements, such as reduced charges or immunity for family members, to elicit confessions or guilty pleas. Johnson v. Trigg, 28 F.3d 639 (7th Cir.1994). Judge Crabb offered nothing but earnest advice. Immediate sentencing did enable Ahrens to move from the local jail, with its paucity of recreational and training opportunities, to the federal prison. The judge could not have delayed the sentencing yet transferred Ahrens to prison; delay meant staying put.

Even with the benefit of hindsight, it is not clear what delay could have achieved. Ahrens' current lawyer has not improved on...