U.S. v. Wilson

• Decision Date: 18 September 2007
• Docket Number: No. 06-1870.,06-1870.
• Citation: 502 F.3d 718
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daryl Ramone WILSON, Sr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

502 F.3d 718

UNITED STATES of America, Plaintiff-Appellee, v. Daryl Ramone WILSON, Sr., Defendant-Appellant.

No. 06-1870.

United States Court of Appeals, Seventh Circuit.

Argued January 5, 2007.

Decided September 18, 2007.

James L. Porter (argued), Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.

George E. Moorman (argued), Alton, IL, for Defendant-Appellant.

Before FLAUM, MANION, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

The district court sentenced Daryl Wilson to 180 months' imprisonment after he pleaded guilty to possessing 488 grams of cocaine with intent to distribute. Wilson's advisory sentencing guidelines range reflected enhancements for obstruction of justice and relevant conduct, as well as criminal history enhancements for committing the present offense while on supervised release and within two years of his release from federal prison in 1998. Wilson attacks these enhancements on two grounds. First, he claims they are the product of unconstitutional judicial factfinding. Second, he argues the district court erroneously concluded that more than 5 kilograms of cocaine was attributable to him as relevant conduct and that he obstructed justice in the course of attempting to flee federal agents.

We have repeatedly rejected Wilson's first argument and do so again here. We also find no error in the district court's specific application of the guidelines. The record establishes that the 488-gram cocaine sale that formed the basis for the charged offense was merely the latest in a continuous series of large cocaine deals Wilson participated in since his release from federal prison in 1998. These deals, which easily totaled well over 5 kilograms, occurred monthly (sometimes twice a month), involved the same cast of characters and a common accomplice, and all took place in the St. Louis area. Thus, the district court did not err in attributing at least 5 kilograms of cocaine to Wilson as relevant conduct or in applying the criminal history enhancements. Finally, the court properly applied the obstruction enhancement because Wilson's vehicular movements upon being confronted by federal agents were sufficient to constitute "flight" as that term is defined by the applicable guideline.

I. Background

On February 13, 2004, a confidential informant told federal agents that Daryl Wilson was about to make a large cocaine sale in a gas station parking lot in St. Clair County, Illinois. The agents staked out the gas station on the lookout for Wilson's car, a black Pontiac. When a black Pontiac pulled into an adjacent parking lot, several agents in uniform approached the car to investigate. One agent parked his van behind the Pontiac and walked toward the driver's window. The driver of the Pontiac, later identified as Wilson, began to pull forward as if to leave but stopped when the car of a second agent pulled up and blocked his path. The second agent drew his weapon and pointed it at Wilson, who responded by shifting his car into reverse and backing up a few feet. The car's backward lurch caused the first agent, who was alongside the driver's side of the Pontiac, to fear for his own safety and draw his weapon. This episode forms the basis for the sentencing guidelines enhancement Wilson received for obstructing justice under U.S.S.G. § 3C1.2.

After ordering Wilson out of his car, the agents looked in the backseat and found 488 grams of cocaine. Later that day Drug Enforcement Agency ("DEA") agents interviewed Wilson, who admitted possessing the 488 grams of cocaine with intent to deliver. In addition, Wilson told the agents that since June 2003, he had purchased at least 1.125 kilograms of cocaine from a dealer named "Mike." Wilson said that he also sold cocaine to various customers, including at least 1 kilogram to Manfred McGee. McGee, who was already cooperating with the DEA, had previously told investigators that Wilson obtained half-kilogram packages of cocaine from a dealer named Bill Cooper at least twice a week (McGee brokered these deals for a $2000 fee).

Later that day, a confidential informant confirmed that since Wilson's release from federal prison in 1998, Wilson regularly obtained at least 1 to 2 kilograms of cocaine per month from Cooper. After Wilson's arrest, two other men admitted purchasing a total of 765 grams of cocaine from Wilson. Together with Wilson's admissions during the interview, these witness statements led the district court to conclude under U.S.S.G. § 2D1.1(c) that more than 5 kilograms of cocaine was attributable to Wilson as relevant conduct for sentencing purposes. The jump from 488 grams to more than 5 kilograms resulted in an 8-level increase in Wilson's base offense level, which increased from 24 to 32. Because his 2-level downward adjustment for acceptance of responsibility was offset by his 2-level obstruction adjustment, 32 was also Wilson's total offense level.

Wilson's prior cocaine dealing also affected the computation of his criminal history category. Based on Wilson's confession and the foregoing witness statements, the district court found that Wilson had been "in the business. . . of dealing in cocaine" since before 2003. The district court's treatment of Wilson's prior drug dealing as relevant conduct essentially folded it into the present offense for criminal history purposes. U.S.S.G. § 4A1.1 cmt. nn. 4 & 5 (2005). Consequently, the court determined Wilson committed the offense within two years of his release from prison in 1998 and while on supervised release (which expired in June 2003), which resulted in a 3-point criminal history enhancement under U.S.S.G. § 4A1.1(d)-(e). The Category III criminal history, when combined with Wilson's offense level of 32, yielded an advisory guidelines range of 151 to 188 months. The court overruled Wilson's objections to the guidelines enhancements and imposed a sentence of 180 months.

II. Discussion

Wilson asks us to reduce his sentence to 57 months. He maintains he should not have received the relevant conduct, obstruction of justice, or criminal history enhancements, and that his guidelines range should only reflect the 488 grams of cocaine he pleaded guilty to possessing. He identifies that range as 45 to 57 months, but believes 57 months is appropriate in light of the district court's decision to sentence him at the high end of the advisory range. In support of his position, Wilson first makes a legal argument: that the guidelines enhancements are unconstitutional under Apprendi¹ and its progeny because they are premised upon conduct neither admitted by him nor found by a jury. He also makes the factual claim that the evidence does not support the district court's application of the guidelines enhancements.

Wilson's request that we "resentence" him to 57 months is improper; the choice of sentence is for the district court, not the court of appeals. Wilson's constitutional argument is "frivolous . . . and it ignores the effect that Booker had on federal sentencing." United States v. White, 472 F.3d 458, 464 (7th Cir.2006). We have repeatedly rejected it, reminding counsel that the constitutionality of judicial fact-finding under the guidelines was resolved when the Supreme Court rendered the guidelines advisory in the remedial opinion in United States v. Booker, 543 U.S. 220, 233-34, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). White, 472 F.3d at 464; see also United States v. Owens, 441 F.3d 486, 490 (7th Cir.2006); United States v. Robinson, 435 F.3d 699, 701-02 (7th Cir.2006); United States v. Bryant, 420 F.3d 652, 656 (7th Cir.2005); United States v. LaShay, 417 F.3d 715, 719 (7th Cir.2005).

We review the district court's application of the guidelines and its underlying factual findings for clear error. United States v. Stitman, 472 F.3d 983, 986 (7th Cir.2007). A finding that a defendant's relevant conduct includes uncharged drug quantities is a factual determination entitled to our deference "unless we have a definite and firm conviction that a mistake has been made." United States v. Fudge, 325 F.3d 910, 920 (7th Cir.2003). Nevertheless, because uncharged drug quantities can add months or years (over eight years in Wilson's case) to a defendant's advisory guidelines range, the evidence relied upon by the district court at sentencing must bear sufficient indicia of reliability. See United States v. Acosta, 85 F.3d 275, 282 (7th Cir.1996). In Wilson's case, there must be reliable evidence to support the district court's findings that (1) Wilson possessed at least 5 kilograms of cocaine, and (2) that the uncharged transactions were properly deemed relevant conduct, i.e., that under U.S.S.G. § 1B1.3(a)(2), they were "part of the same course of conduct or common scheme or plan" as Wilson's offense of conviction—possession of 488 grams with intent to distribute on February 13, 2004. See id. at 279.

The district court did not commit clear error in finding Wilson possessed more than 5 kilograms of cocaine. Wilson himself admitted possessing at least 1.613 kilograms (the 488 grams he pleaded to plus the 1.125 kilograms he admitted purchasing from "Mike"). Two other witnesses admitted purchasing at least 765 additional grams from Wilson, bringing the total to roughly 2.4 kilograms. Together with (1) Wilson's admission that he had been purchasing additional quantities for resale from "Mike" since June 2003, (2) McGee's statement that Wilson made half-kilogram purchases from Cooper at least twice a week, and (3) the confidential informant's confirmation that Wilson had been purchasing 1 to 2 kilograms per month from Cooper since his release from prison in 1998, reliable evidence supports the finding that Wilson possessed at least 5 kilograms of cocaine with intent to distribute.

That the court had to estimate the drug quantity beyond the 2.4 kilograms specifically accounted for is immaterial. See United States v. Romero, 469 F.3d 1139, 1147 (7th Cir.20...