U.S. v. Kelly

• Decision Date: 10 March 2008
• Docket Number: No. 06-1808.,06-1808.
• Citation: 519 F.3d 355
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vernell KELLY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

519 F.3d 355

UNITED STATES of America, Plaintiff-Appellee, v. Vernell KELLY, Defendant-Appellant.

No. 06-1808.

United States Court of Appeals, Seventh Circuit.

Argued April 2, 2007.

Decided March 10, 2008.

Kruti Trivedi (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Nathaniel Cade, Jr. (argued), Michael Best & Friedrich, Milwaukee, WI, for Defendant-Appellant.

Before RIPPLE, ROVNER, and WOOD, Circuit Judges.

ROVNER, Circuit Judge.

A jury convicted of Vernell Kelly of knowingly possessing a firearm following a felony conviction, in violation of 18 U.S.C. § 922(g)(1), and knowingly and intentionally possessing, with the intent to distribute, crack cocaine, in violation of 21 U.S.C. § 841(a)(1). The district court ordered him to serve a prison term of 235 months. Kelly appeals, contending that the evidence was insufficient to establish his possession of both the firearm and the cocaine underlying one of the two narcotics charges against him, that the evidence did not adequately establish that the cocaine attributed to him took the form of crack cocaine, and that the district court improperly characterized him as a career offender for sentencing purposes. We affirm.

I.

A tip brought Chicago police officers to the corner of Homan and Carroll Streets on Chicago's west side, where the officers were told defendant-appellant Kelly was distributing crack cocaine. Shortly before midnight on the night of June 16, 2004, undercover officer Patrick Thelen observed what appeared to be a drug transaction. Kelly pulled up to the scene in a van and exited the vehicle. Another man approached Kelly, conversed with him briefly, and then handed him money. Kelly then removed a golf-ball sized object from a plastic bag in the back of his pants, handed the object to the other man, and put the plastic bag back into his pants. The other man walked away. Thelen radioed his fellow officers, who were parked a short distance away, to move in on Kelly. As Thelen himself began to approach Kelly, he saw Kelly remove the plastic bag from his pants and drop it to the ground. Officer Mireya Lipsey retrieved the bag and discovered that it contained another golf ball-sized object, which turned out to be twenty small packets each containing a white, chunk-like substance that she suspected was crack cocaine. The twenty bags had blue stars on them. Kelly was placed under arrest and advised of his rights. A search of his van produced no additional contraband.

A set of keys for a basement apartment at 3309 West Warren in Chicago was discovered on Kelly's person. According to the police, Kelly identified 3309 West Warren as his address. The police proceeded to that apartment to continue their investigation.

Shortly after midnight, the arresting officers called at 3309 West Warren. Betsy Washington answered the door to the basement apartment. Washington is the mother of Kelly's daughter. Washington and their daughter resided in the apartment along with Zippora Collins and her daughter. The police solicited and received Washington's written consent to search the apartment.

The apartment contained three bedrooms. Collins would later testify that she and her daughter occupied two of the bedrooms and that Washington and her daughter occupied the third. According to Collins, she saw Kelly at the apartment three to four times per week in June of 2004. She would only see Kelly in the mornings, because Collins typically arrived home at a late hour when everyone else in the apartment was asleep.

In the bedroom occupied by Washington and her daughter, Thelen discovered a .45-caliber semiautomatic Ruger firearm loaded with hollow-point ammunition. In the same room, Lipsey discovered three pieces of mail addressed to Kelly at the Warren Street address. Among them was a letter to Kelly from the Social Security Administration dated June 10, 2004 — six days prior to Kelly's arrest.

In addition to the gun, the officers also retrieved cocaine from the apartment. In a utility closet, Officer Brian Spain discovered a large plastic bag containing nine smaller plastic bags, each of which in turn contained thirteen mini Ziploc bags, for a total of 117 bags. Each of the mini Ziploc bags contained a white, rock-like substance that appeared to be crack cocaine. Each of the mini bags was also marked with blue stars like those found on the bags that Kelly had dropped at Homan and Carroll.

Spain would later testify that mini Ziploc bags are commonly used by narcotics traffickers on Chicago's west side. He also indicated that he had seen a number of such bags with various types of markings (for example, blue devils and red boats) on them. However, he had never before seen bags marked with blue stars.

Their search of the Warren Street apartment complete, officers returned to the police station to question Kelly. Kelly was again advised of Miranda rights. When shown the gun and the cocaine that had been discovered in the apartment, Kelly remarked that "my baby's mama don't know nothing about my gun and the rocks," or words to that effect — although Thelen was certain that he used the term "rocks." R. 85-7 at 135-36, 213. Kelly indicated that he had obtained the gun from a friend and that he kept it for his protection.

A grand jury subsequently returned a three-count indictment against Kelly. Count One charged Kelly with knowingly possessing a firearm in or affecting interstate commerce following a conviction for a felony. See 18 U.S.C. § 922(g)(1). Counts Two and Three charged Kelly with possessing more than five grams of a substance containing cocaine base in violation of 21 U.S.C. 841(a)(1). Count Two involved the cocaine recovered at the scene of Kelly's arrest at Homan and Carroll Streets. Count Three involved the cocaine recovered from the Warren Street apartment.

Prior to trial, Kelly moved unsuccessfully to suppress all of the physical evidence obtained from both the scene of the arrest and the apartment at 3309 West Warren. Kelly argued that his detention and seizure at the arrest scene was contrary to the Fourth Amendment. He testified, contrary to the arresting officers, that he had not engaged in any drug transaction and had not dropped a plastic bag to the ground before he was detained. Instead, Kelly asserted that as he parked his van and got out to patronize a nearby liquor store, the officers stopped him, ordered him onto the ground, handcuffed him, and searched him and then the van. Although Kelly did agree that he had cocaine in his possession — specifically, a "20-pack" of cocaine — he testified that it was in the van rather than in the plastic bag that officers testified he had dropped to the ground. Because the officers lacked a basis on which to stop him and engage in the search, Kelly argued, the cocaine seized from his van along with the gun and cocaine found at the 3309 West Warren apartment all should be suppressed pursuant to the exclusionary rule. See Wong Sun v. United States, 371 U.S. 471, 484-85, 487-88, 83 S.Ct. 407, 416, 417, 9 L.Ed.2d 441 (1963). The district court denied Kelly's motion, observing that the merits of the motion depended on whose version of events the court was to credit (Kelly's or that of the two officers who testified), and the court found the government's evidence to be more credible. R. 27.

As noted, Counts Two and Three of the indictment charged Kelly with possessing, with the intent to distribute, more than five grams of a mixture containing cocaine base in the form of crack cocaine. R. 5 at 2, 3. Although the quantity and particular type of controlled substance are not elements of the crime prohibited by 21 U.S.C. § 841, e.g., United States v. Martinez, 301 F.3d 860, 865 (7th Cir.2002), they do have an important effect on the statutory range of punishment to which the defendant is exposed. Possessing with the intent to distribute a detectable amount of any schedule II controlled substance is punishable by a prison term of 0 to 20 years, § 841(b)(1)(C), whereas possessing more than five grams of a mixture or substance containing cocaine base in the form of crack cocaine exposes the defendant to 5 to 40 years in prison, § 841(b)(1)(B)(iii). The two most common types of cocaine found in the United States are cocaine hydrochloride, which typically takes the form of a white powder and is water soluble, and crack cocaine, a form of cocaine base that typically takes a chunky, rock-like form and is not water soluble. Cocaine hydrochloride can be converted to cocaine base by dissolving it in water, bringing it to a boil, and then adding a base — usually sodium bicarbonate. Sodium bicarbonate reacts with the hydrochloride to form table salt, freeing the cocaine base, which eventually settles to bottom of the liquid. When the liquid is poured off, what is left is cocaine base in a solid form typically referred to as "crack." See R. 85-8 at 282-84; United States v. Edwards, 397 F.3d 570, 574 (7th Cir.2005); United States v. Booker, 70 F.3d 488, 490-91 (7th Cir.1995). Cocaine base can take other forms, so although all crack is cocaine base, not all cocaine base is crack. Edwards, 397 F.3d at 571.

DEA forensic chemist Anthony Harris testified at Kelly's trial that the substances found at both the scene of Kelly's arrest, at Homan and Carrol Streets, and at the apartment at 3309 West Warren chemically were cocaine base. Exhibit 5, the cocaine retrieved from the scene of Kelly's arrest, had a purity of 90 percent. Exhibit 6, the cocaine found at 3309 West Warren, had a purity of 81 percent. No sodium bicarbonate was found in either exhibit, but Harris testified it was possible that the bicarbonate had been removed in the process of pouring off the liquid; it was also possible that another base had been used to convert the powder cocaine into crack.

FBI Special Agent Michael Culloton, who worked as part of a task force investigating drugs and street gangs, and whom the court...