U.S. v. Roche, 04-1475.

• Decision Date: 11 July 2005
• Docket Number: No. 04-1475.,04-1475.
• Citation: 415 F.3d 614
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Devon ROCHE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

415 F.3d 614

UNITED STATES of America, Plaintiff-Appellee, v. Devon ROCHE, Defendant-Appellant.

No. 04-1475.

United States Court of Appeals, Seventh Circuit.

Argued April 5, 2005.

Decided July 11, 2005.

COPYRIGHT MATERIAL OMITTED

Dean R. Lanter (argued), Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

Kerry Connor (argued), Indiana Federal Community Defenders, Inc., Hammond, IN, for Defendant-Appellant.

Before POSNER, EASTERBROOK, and EVANS, Circuit Judges.

EASTERBROOK, Circuit Judge.

Devon Roche sold ecstasy to Derrick Perkins three times during the summer of 2000. Before each sale, Roche called Perkins to discuss logistics. That is, Roche thrice used a telecommunications device to facilitate the distribution of a controlled substance, in violation of 21 U.S.C. § 843(b). As it turned out, Roche's involvement in the ecstasy trade went well beyond these transactions. Between 1998 and 2000, Roche led a group that smuggled more than 120,000 tablets of ecstasy from Amsterdam to Chicago. The prosecutor offered to dismiss charges related to this conduct if Roche would plead guilty to the three facilitation counts. See Fed. R.Crim.P. 11(c)(1)(A). Roche accepted.

As part of the deal, Roche agreed to a limited waiver of his right to appeal:

I agree that the Court has jurisdiction and authority to impose any sentence within the statutory maximum set for my offense as set forth above in paragraph 9.c. of this plea agreement. With that understanding, I expressly waive my right to appeal my sentence, including any appeal right conferred by Title 18, United States Code, Section 3742, on any ground other than the following:

(1) I reserve my right to appeal the district court's determination of relevant conduct pursuant to application of guideline section 1B1.3;

(2) I reserve my right to appeal the total weight of the Ecstasy (3) I reserve my right to appeal any enhancement for an aggravating role under guideline section 3B1.1; and

(4) I reserve my right to appeal any upward departure from my offense level.

Roche raises three of these reserved issues, arguing that the district judge's relevant conduct, drug weight, and aggravating role findings were erroneous. He also contends that the judge erred in two further respects: sentencing him based on facts not found by a jury beyond a reasonable doubt, and declining to award him an acceptance-of-responsibility adjustment under U.S.S.G. § 3E1.1.

Reserving the right to appeal some issues does not entitle a defendant to appeal others. See United States v. Whitlow, 287 F.3d 638 (7th Cir.2002). Roche contends that the right to challenge the results of the district judge's factfinding inquiry includes the right to challenge the judge's power to find those facts after United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), but Booker affects the discretion that district judges enjoy, not their fact-finding powers. See United States v. Lee, 399 F.3d 864, 866 (7th Cir.2005). Having waived his sixth amendment rights by pleading guilty, Roche cannot claim now that the judge blocked access to the jury. Cf. United States v. Lewis, 405 F.3d 511, 513 (7th Cir.2005).

The judge did err in thinking himself bound by the Guidelines range. Although a generic guilty plea does not preclude a contention that the Guidelines are advisory, Roche has waived such an argument. The parties agreed that Roche's sentence would be determined "in accordance with the United States Sentencing Guidelines." This may be sufficient to trigger the rule that a defendant may not challenge on appeal a punishment to which he agrees. See United States v. Porretta, 116 F.3d 296, 300-01 (7th Cir.1997); United States v. Nguyen, 46 F.3d 781, 783 (8th Cir.1995). We need not decide, because Roche has surrendered his right to raise the question in this court. Roche waived the right to appeal "on any ground" other than those specified. The agreement permits Roche to contest the judge's factual conclusions but not the application of the Guidelines to the facts as found; fact and law are different "grounds" of decision. Cf. United States v. Grinard-Henry, 399 F.3d 1294 (11th Cir.2005).

The parties did not foresee Booker, but that does not alter the effect of the plea bargain. The agreement provides that all arguments other than the listed four would be presented to one Article III judge instead of four; to get the substantial benefit offered by the prosecutor, Roche waived the right to challenge his sentence on any other basis, foreseen or not. As we explained in United States v. Bownes, 405 F.3d 634 (7th Cir.2005), there is nothing special about Booker that precludes enforcement of a waiver. See also United States v. Blick, 408 F.3d 162, 170 (4th Cir.2005) (citing cases from nine circuits reaching the same conclusion).

Roche's claimed entitlement to the acceptance-of-responsibility adjustment is not worth discussing except to note that his decision to present the argument at all shows that he is unwilling to live by the plea agreement, and hence has not fully accepted responsibility. Making this argument, in the teeth of the agreement's unambiguous prohibition, confirms that Roche does not take his obligations seriously.

We turn to the arguments that are proper under the agreement, starting with Roche's objection to the relevant-conduct decision. The district judge declined to treat the entire smuggling operation as conduct relevant to the crimes of conviction. Recall that Roche pleaded guilty only to three counts of using a telephone to facilitate a drug transaction. The three sales occurred within four months and involved 235 tablets of ecstasy. The Guidelines provide that the offense level is based on "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred ... in preparation for" the offenses of conviction. U.S.S.G. § 1B1.3(a)(1)(B). Each of Roche's phone calls, the district judge found, was immediately preceded by the arrival in Chicago of a courier with 8,000 tablets of ecstasy. This meant that the importation of 24,000 pills was "in preparation" for the offenses of conviction. The judge also found that these pills weighed on average 250 milligrams apiece and that to produce this supply Roche had organized the activities of five or more persons. See U.S.S.G. § 3B1.3.

None of these findings is clearly erroneous. The conspiracy enlisted Airrion Harvey to ferry ecstasy from Amsterdam to Chicago in the hollow soles of a pair of men's boots. (For his trouble, Harvey was paid $5,000 plus expenses for each trip.) Harvey made at least six successful trips; on trip number seven, he was caught in Belgium with 8,200 tablets of ecstasy. Customs records and Harvey's written statement established that Harvey's arrival in Chicago preceded by two or three days each of Roche's phone calls to Perkins. Harvey also explained that Roche provided money to cover travel expenses and on occasion accompanied a co-conspirator to retrieve the fresh shipment from Harvey's boots. Harvey's account of the smuggling operation and Roche's role in it was corroborated by testimony from a federal agent and several of Roche's other co-conspirators.

While recognizing that hearsay is admissible at sentencing, see Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); 18 U.S.C. § 3661, Roche nonetheless relies on confrontation clause jurisprudence culminating in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), to argue that Harvey should have been subject to cross-examination on the subjects covered by his written statement. But the relevant provision at sentencing is the due process clause, not the confrontation clause; Williams shows that witnesses providing information to the court after guilt is established are not accusers within the meaning of the confrontation clause. Sentencing judges are entitled to use any "procedures adequate to reach informed and accurate decisions in the main". United States v. Escobar-Mejia, 915 F.2d 1152, 1154 (7th Cir.1990); see also United States v. Atkin, 29 F.3d 267 (7th Cir.1994). The Sentencing Guidelines add that judges must limit consideration to information that has "sufficient indicia of reliability to support its probable accuracy." U.S.S.G. § 6A1.3(a). These requirements have been satisfied. Roche contends that Harvey had him mixed up with one of the other members of the conspiracy, but this is an objection to the district judge's factual conclusion and not a constitutional flaw.

Roche does point out that the pills he sold to Perkins were of a design different from those Harvey brought back from Amsterdam — Perkins purchased pink pills with hearts and purple pills with a 007 stamp, but Harvey claimed to have smuggled white pills with a triangular design and beige pills with a Nike stamp....