United States v. Bennett

• Decision Date: 14 February 2013
• Docket Number: No. 11–3245.,11–3245.
• Citation: 708 F.3d 879
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Gregory BENNETT, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

708 F.3d 879

UNITED STATES of America, Plaintiff–Appellee,

v.Gregory BENNETT, Defendant–Appellant.

No. 11–3245.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 29, 2012.

Decided Feb. 14, 2013.

Timothy M. O'Shea, Munish Sharda (argued) Attorneys, Office of the United States Attorney, Madison, WI, for Plaintiff–Appellee.

Beau B. Brindley (argued), Attorney, Chicago, IL, for Defendant–Appellant.

Before POSNER, KANNE, and ROVNER, Circuit Judges.

KANNE, Circuit Judge.

On March 13, 2006, the Drug Enforcement Administration (“DEA”) interviewed Gregory Bennett in connection with a series of transactions involving marijuana, MDMA (commonly known as “ecstasy”), and crack cocaine. In an attempt to induce complete truthfulness, the government, prior to the interview, agreed not to use Bennett's statements against him, provided that Bennett promised not to later take a position inconsistent with his interview statements. During this proffer session, Bennett admitted that he had supplied all three drugs to a government informant. After the proffer interview, Bennett fled and went into hiding. A grand jury later indicted him. In 2010, Bennett was arrested living under an assumed name in Georgia. Bennett pled guilty to the possession of ecstasy and marijuana with the intent to distribute both. He now alleges that the government violated the terms of the original proffer agreement during the sentencing process, along with other subsidiary errors. We disagree. Finding no error in Bennett's sentence, we affirm the district court's judgment.

I. Background

On November 10, 2010, Gregory Bennett was arrested by U.S. Marshals in Georgia. Over the previous four years, Bennett had been living in Atlanta, where he had held regular employment and acquired a fiancée with whom he had a daughter. Though Bennett initially gave the arresting officer an Illinois drivers license with the name “Charles Scott,” Bennett eventually admitted that the license was fake and that he was “relieved it was over.” (Presentence Investigation Report at ¶ 56.) “[I]t,” in this case, was Bennett's life on the run from a 2006 narcotics indictment in Wisconsin.

On January 27, 2006, Bennett and his associate, Darius Kelly, engaged the services of Amy Hill to transport drugs for them between Chicago and Madison, Wisconsin. The plan, apparently, had been for Bennett and Kelly to meet Hill in Madison that evening and retrieve the drugs they had jointly given her in Chicago (400 ecstasy pills, 870.5 grams of marijuana, and 33.9 grams of crack cocaine). The ecstasy and marijuana belonged to Bennett, and the crack belonged to Kelly, though all of the drugs were given to Hill in one bag by both men. Kelly and Bennett had acquired the narcotics in Chicago and planned to sell them again in Madison; this was a pattern they had repeated on at least four previous occasions, each time using Hill to transport the illicit substances. Hill was hired to transport the drugs only, presumably to help Kelly and Bennett avoid detection. Bennett helped Hill arrange to rent a minivan, and he and Kelly followed two hours behind her on the drive to Madison.

Coincidentally, that same day, Hill was also hired by another individual, Quincy Clark, to transport over 180 grams of crack cocaine between Chicago and Madison. Clark, however, had been arrested earlier and had placed this order at the behest of law enforcement. After acquiring the crack cocaine to fulfill Clark's order from Lawrence Green, Hill was arrested in Madison as she attempted to meet up with Clark. Like Clark, Hill quickly agreed to cooperate with law enforcement. When Hill failed to materialize that evening, however, Bennett and Kelly became worried, and each left two voicemail messages for her before they returned to Chicago.

Back in Chicago on January 31, DEA agents prepared Hill to meet with Green, her source for the bulk of the crack cocaine she was arrested with four days earlier. The DEA outfitted her with a recording device and $5,000 with which to pay Green. Hill met up with Green, and, after accepting payment and running errands around town in his black Hummer, Green took Hill to his cousin's house. There, Bennett and Kelly (both of whom, along with Green, were members of the Gangster Disciples street gang) intercepted Hill; they were angry that she had not met them in Madison and that she appeared to have neither their money nor their drugs (having focused on Green, the DEA had given her money to cover only his drugs). The two took Hill into the house. Bennett and Kelly directed her to strip, at which point they found the recording device. Bennett burned Hill's arms and stomach using cigarettes and cigars while demanding money for the missing drugs. Bennett and Kelly then hooded Hill with a pillowcase and took her to a new location—an abandoned house—where the assault and the demands for drug money continued. Bennett burned Hill further and beat her around the face and body.

Eventually, Hill convinced the two that a boyfriend, “Sweet Lou,” had the drug money and persuaded them to call him. “Sweet Lou” was actually DEA Special Agent Lou Gade. Bennett called Special Agent Gade on Hill's cell phone and demanded the money. The two arranged a drop behind a Chicago restaurant. Bennett remained on the phone with “Sweet Lou,” while Kelly went to retrieve the money. Bennett (correctly) began to suspect that “Sweet Lou” was actually a law enforcement officer and demanded that the drop location be changed. Agent Gade refused. Bennett and Kelly released Hill later that evening, and law enforcement officers brought her to a local hospital where she was treated for the after-effects of the beating.

On March 13, 2006, Bennett, accompanied by his lawyer, engaged in a proffer session with two DEA agents—Special Agent Blake Smith and “Sweet Lou” himself, Special Agent Lou Gade. Before the interview, the government and Bennett, through his attorney, agreed to the standard conditions set out in a proffer agreement. Relevant here is the following passage:

The government requires a completely truthful statement by your client in this proffer. In the likely event your client is subsequently prosecuted, no direct use will be made of his statements, or any information provided by him, in the government's case-in-chief at trial, or in aggravation of his sentence, pursuant to USSG § 1B1.8....

If your client should subsequently testify at any trial or hearing contrary to the substance of the proffer, or presents a position inconsistent with the proffer (for example, during cross-examination of witnesses, through witness testimony, or during arguments), the government is completely free to use the statements and other information from the proffer at sentencing for any purpose, at trial for impeachment or in rebuttal testimony, or in prosecution for perjury.

(R. 231–2 at 2–3.) During the interview, Bennett described his relationship with Kelly, Green, and Hill, as well as his part in the events of January 27 and 31. Importantly, Bennett told the agents during the proffer session that he had “supplied” the drugs from the 27th to Hill: the marijuana, the ecstasy, and 33.9 grams of the crack cocaine. (R. 231–1 at 4.)

Bennett was indicted for various narcotics-related offenses on May 31, 2006, and an arrest warrant was issued on June 14. By that point, Bennet had fled. A superseding indictment against Bennet was subsequently handed down on October 5, 2006. While Bennett was on the run, Green, Kelly, and Hill were all convicted and sentenced for various narcotics-related offenses in connection with these events.

After being apprehended in Georgia four years later, Bennett made his initial appearance in Wisconsin on December 13, 2010, and soon entered into plea negotiations with the government. During the course of negotiations, Bennett, through his counsel, disavowed some of the proffer statements. Specifically, he said that “he did not know anything about the cocaine.” (R. 231–7 at 3.) Based on the drugs he supplied to Hill, Bennett eventually pled guilty to possession of ecstasy and marijuana with the intent to distribute both. He was warned that the cocaine might still be considered “relevant conduct” at sentencing.

When it compiled the PSR, the Probation Office included a description of the information that Bennett provided during his proffer session, but noted that the information was protected. The PSR also included accounts from multiple other witnesses, including Green, Kelly, Hill, and Special Agent Gade. The Probation Office concluded that 33.9 grams of the crack cocaine found on Hill was part of the offense conduct and used it to calculate Bennett's recommended base guideline sentence. The PSR additionally recommended a two-level enhancement for being “an organizer, leader, manager, or supervisor” of the criminal activity. U.S.S.G. § 3B1.1(c). The report did not recommend crediting Bennett for accepting responsibility for his crimes.

Bennett objected to all of these decisions. First, he objected to what he interpreted as the government's use of his proffer statements to determine his recommended sentence in the PSR. He further contended that he was not actually responsible for the cocaine and that, without the proffer statements, the government did not have enough evidence to prove that he was responsible for it. Bennett also argued that he should not receive the “organizer, leader, manager, or supervisor” enhancement. Finally, he argued that he should be credited for accepting responsibility.

The district court accepted the PSR's recommendations and overruled Bennett's objections. In doing so, the court found that Bennett's objections constituted a position inconsistent with his proffer statements; such statements breached the proffer agreement, thereby unlocking the entire content of the interview for sentencingpurposes. Bennett timely appealed that decision and brings essentially the same objections...