U.S. v. Waltower

Decision Date05 July 2011
Docket NumberNo. 09–3967.,09–3967.
Citation643 F.3d 572
PartiesUNITED STATES of America, Plaintiff–Appellee,v.Stephen WALTOWER, Defendant–Appellant.
CourtU.S. Court of Appeals — Seventh Circuit


Renai Scherri Rodney (argued), Attorney, Office of the United States Attorney, Chicago, IL, for PlaintiffAppellee.Craig M. Sandberg (argued), Attorney, Muslin & Sandberg, Chicago, IL, for DefendantAppellant.Before POSNER, FLAUM and SYKES, Circuit Judges.FLAUM, Circuit Judge.

Stephen Waltower was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He was acquitted of several other drug-related offenses, but the district court took the underlying (acquitted) conduct into consideration at sentencing. The result was a statutory maximum sentence of 120 months. On appeal, Waltower challenges the use of the acquitted conduct at sentencing. He also maintains that his lawyer should have argued that certain post-arrest, self-incriminating statements he made were solicited in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We affirm.

I. Background

In September 2007, a Cook County circuit judge issued a search warrant for Waltower, as well as the first floor apartment and basement of 161 N. Lamon Avenue, in Chicago, Illinois. The warrant authorized police to seize a black 9mm handgun, any ammunition, and any documents showing residency. Although Waltower had lived at the apartment since January 2007, the apartment was not his. It belonged to his then-girlfriend, Kimesia Gooden. When police searched the apartment, they did not find Waltower, but they did recover a black 9mm semi-automatic Glock pistol, which was loaded with nine rounds; separately stored ammunition of various types; and mail addressed to Waltower (though listing a different address). Nearby, police discovered several items associated with drug trafficking—more than two-hundred plastic bags containing nearly 50 grams of crack cocaine, a scale and grinder, and $640 in cash.

A month after the search, Waltower was arrested; police interviewed him about the search of the apartment. At trial, Chicago Police Officer David Greenwood testified that he read Miranda warnings to Waltower and then asked him about the fruits of the search of the apartment. Waltower agreed to talk and admitted that he had purchased the pistol for $300 or $400. When asked about the drugs, Waltower said he was holding them for someone else. Waltower was charged in a superseding indictment that comprised four counts: conspiring to possess with intent to distribute 5 grams or more of a mixture of crack cocaine and heroin, in violation of 18 U.S.C. § 846; possessing with intent to distribute 5 grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1); possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A); and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Prior to trial, Waltower sought unsuccessfully to suppress evidence obtained from his apartment, arguing that the search was not supported by probable cause. The district court denied the motion and the case proceeded to trial.

Among the key evidence at trial was Kimesia Gooden's testimony, which came in exchange for a grant of immunity. According to her, she rendezvoused with Waltower after the search. She told Waltower, [The police] were looking for your gun.” Waltower asked if the police found it. She answered that they had. Waltower subsequently asked her to “take the charge” on the gun—that is, tell the authorities that it belonged to her—and said that he would similarly cop to any drug charges. She also testified that the gun was found near the drugs in a bedroom where Waltower engaged in drug-processing activity. Officer Greenwood testified at trial, too, relating the contents of Waltower's self-incriminating statements to the jury.

The jury acquitted Waltower of the three drug-related counts but convicted him of the fourth count, being a felon in possession of a firearm. At sentencing, however, he had less luck with the three acquittals. The district judge stated, “Unlike the jury, I believe that the evidence clearly established that Mr. Waltower was dealing drugs out of that apartment” and noted that the drugs and gun were found near each other. Thus, the district court agreed with the pre-sentence investigation report and added a four-level enhancement to the base-offense level for possessing a firearm in connection with another felony offense. In conjunction with other factors, the resulting guidelines range was calculated at 121–151 months.1 Waltower was sentenced to the statutory maximum of 120 months in prison.

II. Discussion

Waltower argues that the district court committed error when it considered acquitted conduct at sentencing, because the practice is unconstitutional in general and was inappropriate in his case. He also argues that his lawyer should have moved to suppress the self-incriminating statements that he made to a police officer. Waltower's contentions regarding the use of acquitted conduct at sentencing conflict with Supreme Court precedent, as well as this circuit's case law. His argument regarding the self-incriminating statements that he made to Officer Greenwood is best understood as an undeveloped ineffective assistance of counsel argument, best left for collateral review. E.g., United States v. Harris, 394 F.3d 543, 558 (7th Cir.2005).

A. Acquitted Conduct and Sentencing

Waltower's primary argument is that it is unconstitutional to consider acquitted conduct at sentencing. The Supreme Court has rejected that argument, stressing that a person whose acquitted conduct is considered at sentencing is not punished for a crime of which he has not been convicted. Rather, he is punished for the crime he did commit: and because the sentencing guidelines direct judges to look at the characteristics of the offense, relevant conduct proved by a preponderance standard can include acquitted conduct. United States v. Watts, 519 U.S. 148, 156–57, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (per curiam) (sentence informed by acquitted conduct violates neither the Fifth Amendment's prohibition on double jeopardy nor its due-process guarantee); see also Alabama v. Shelton, 535 U.S. 654, 665, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002) (“Thus, in accord with due process, [a defendant] could have been sentenced more severely based simply on evidence of the underlying conduct ... even if he had been acquitted of the misdemeanor with the aid of appointed counsel.”) (citations and quotation marks omitted).

The facts from Watts are similar to the facts underlying Waltower's conviction and sentence. A jury had convicted Vernon Watts of possessing cocaine base with intent to distribute, but acquitted him of using a firearm in relation to a drug offense. The district judge nonetheless found by a preponderance of the evidence that Watts had used a firearm in relation to the drug offense for which he was convicted. Therefore, the court added two points to the base-offense level for his possession conviction, because it was part of the offense's relevant conduct. The Ninth Circuit broke ranks with other circuits to have considered the question and held that acquitted conduct could not be considered at sentencing—under any standard of proof. A companion case, consolidated for purposes of certiorari, suggested that “effectively punishing [a defendant] for an offense for which she has been acquitted” constituted double jeopardy in violation of the Fifth Amendment. United States v. Putra, 78 F.3d 1386, 1389 (9th Cir.1996).

The Supreme Court reversed. As for due process, the Court noted that “under the pre-Guidelines sentencing regime, it was ‘well established that a sentencing judge [could] take into account facts introduced at trial relating to other charges, even ones of which the defendant [was] acquitted.’ Watts, 519 U.S. at 152, 117 S.Ct. 633 (quoting United States v. Donelson, 695 F.2d 583, 590 (D.C.Cir.1982) (Scalia, J.)). The promulgation of the federal sentencing guidelines, which the Court interpreted as permitting consideration of acquitted conduct, did not alter that discretion. Id. at 153, 117 S.Ct. 633. “The Guidelines state that it is ‘appropriate’ that facts relevant to sentencing be proved by a preponderance of the evidence, and we have held that application of the preponderance standard at sentencing generally satisfies due process.” Id. at 156, 117 S.Ct. 633 (citing USSG § 6A1.3, comment.). As for double jeopardy, the Court observed that acquittal on a criminal charge is not to be conflated with a declaration of innocence. Moreover, a defendant whose sentence is based partially on acquitted conduct has not been subjected to punishment for crimes of which he has not been convicted. “Rather, the defendant is ‘punished only for the fact that the present offense was carried out in a manner that warrants increased punishment....’ Id. at 155, 117 S.Ct. 633 (quoting Witte v. United States, 515 U.S. 389, 403, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995)). See also 18 U.S.C. § 3661 (“No limitation shall be placed on the information concerning the ... conduct of a person convicted of an offense ... for the purpose of imposing an appropriate sentence.”). Thus, Watts's rights were not violated when the government relitigated acquitted conduct at sentencing under a lower burden of proof. Watts, 519 U.S. at 156, 117 S.Ct. 633 (citing Dowling v. United States, 493 U.S. 342, 349, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990)).

Much of Waltower's brief argues, in effect, that Watts was wrongly decided when it was decided; he argues that the distinction between being punished for acquitted conduct and being sentenced based on the characteristics of an offense for which a defendant has been convicted is “illusory,” Appellant's Brief at 17, and that the Court...

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