United States v. Bonk, No. 19-1948

• Decision Date: 24 July 2020
• Docket Number: No. 19-1948
• Citation: 967 F.3d 643
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wade BONK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

967 F.3d 643

UNITED STATES of America, Plaintiff-Appellee,

v.Wade BONK, Defendant-Appellant.

No. 19-1948

United States Court of Appeals, Seventh Circuit.

Argued June 1, 2020

Decided July 24, 2020

Katherine Virginia Boyle, Attorney, Office of the United States Attorney, Urbana Division, Urbana, IL, W. Scott Simpson, Attorney, Office of the United States Attorney, Springfield, IL, for Plaintiff - Appellee

Steven H. Jesser, Attorney, Steven H. Jesser, Attorney At Law, P.C., Glenview, IL, for Defendant - Appellant

Before Ripple, Wood, and Scudder, Circuit Judges.

Ripple, Circuit Judge.

A grand jury returned a superseding indictment charging Wade Bonk and his two codefendants, Darcy Kampas and Timothy Wood, with conspiracy to possess methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A), and with possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A).

Wood and Kampas pleaded guilty to the conspiracy count in accordance with their plea agreements. Mr. Bonk also pleaded guilty to the conspiracy count, but without the benefit of a cooperation plea agreement. He was sentenced to 262 months’ imprisonment. Final judgment was entered,¹ and Mr. Bonk timely filed a notice of appeal.²

IBACKGROUND

A.

From May until September 2017, Mr. Bonk conspired with Kampas and Wood to distribute ice methamphetamine.³ Some of the 1.5 kilograms of ice methamphetamine for which Mr. Bonk was held responsible was allegedly for his personal consumption.⁴ Mr. Bonk fronted and sold the rest in varying quantities to distributors.

Mr. Bonk was arrested on September 13, 2017, on an outstanding warrant.⁵ The conspiracy ended two days later, when Kampas and Wood, who were under surveillance for suspected drug trafficking, were stopped for speeding. After seeing suspected methamphetamine in plain view, the officer conducted searches of the vehicle, of both Wood's and Kampas's persons, and of Kampas's purse. The searches resulted in the seizure of about 111 grams of ice methamphetamine.

In addition to the federal drug conviction that is central to this appeal, Mr. Bonk has numerous other previous convictions, many of them violent in nature. Namely, he has two felony convictions for battery; two convictions for bodily-harm domestic battery; and convictions for a hate crime, unlawful restraint, aggravated driving under the influence, obstruction of justice, theft of a motor vehicle, driving on a revoked license two separate times, violation of bail bond, and unlawful possession of a firearm by a convicted felon.⁶

Indeed, his Presentence Investigation Report ("PSR") reflected thirty-four criminal history points, which is almost three times the minimum criminal history points required to trigger the criminal history category of VI.⁷ His final total offense level of thirty-five, combined with his criminal history category of VI, resulted in an guidelines range of 292 to 365 months’ imprisonment.⁸ Because Mr. Bonk's criminal history did not include a prior felony drug offense, he faced a mandatory minimum sentence of ten years in prison.⁹

At the sentencing hearing, defense counsel submitted that the guidelines range for methamphetamine mixture should be used, a range of 188 to 235 months, instead of the higher guidelines range for ice methamphetamine.¹⁰ He noted mitigating factors, including that the conspiracy was relatively short in duration; that Mr. Bonk personally consumed up to one-third of the drugs; and that Mr. Bonk was a first-time drug offender. He further contested the unfairness of the sentencing differences between ice methamphetamine and a methamphetamine mixture and contended that the career-offender guideline is not based on empirical evidence.¹¹

The Guidelines distinguish between a methamphetamine mixture that is less pure and ice methamphetamine, a higher-purity methamphetamine. Mr. Bonk noted that the recommended sentence for a defendant in possession of ice methamphetamine is longer than the recommended sentence for a defendant in possession of a methamphetamine mixture because "[t]he fact that a defendant is in possession of unusually pure narcotics may indicate a prominent role in the criminal enterprise and proximity to the source of drugs."¹² He contended, however, that "it is not unusual anymore for anybody to have pure meth in their possession. So what the courts have started to do is they have taken this into consideration, and that's why you are seeing more and more sentences of meth offenders come in below the guideline range."¹³ The Government, in contrast, asked the court to view the conspiracy "through the lens of [Mr. Bonk's] criminal history" that included "13 felony convictions," "[m]any of them violent in nature."¹⁴ The Government also noted that Mr. Bonk's extensive criminal history and the large amount of drugs that he trafficked resulted in a "very rare" scenario where the guidelines calculations resulted in a higher adjusted offense level than the level required by the career-offender guideline.¹⁵

The district court sentenced Mr. Bonk to 262 months’ imprisonment followed by five years of supervised release. The court entered final judgment, and Mr. Bonk filed a timely notice of appeal.

B.

On August 15, 2019, we appointed counsel for Mr. Bonk. On September 1, 2019, counsel filed an emergency motion with the district court requesting access to all sealed documents for Mr. Bonk and both of his codefendants. He stated that he required access to all the sealed documents "for the crucial purpose of analyzing, or ruling-out, whether disparity and/or excessiveness of sentencing was committed by the trial court in separately sentencing the three defendants, upon their pleas."¹⁶ The district court called counsel to inform him that he had access to the sealed documents that had been available to Mr. Bonk's counsel in the district court.¹⁷ On this call, counsel confirmed that he was requesting "access to each and every sealed document in this case."¹⁸

The district court granted the motion in part and denied the motion in part. Because the Pretrial Services Report had been disclosed to trial counsel, the district court ordered the Clerk's Office to make the Pretrial Services Report available to counsel. The district court further noted that counsel's request for the Presentence Investigation Reports for Mr. Bonk was moot because he already had access to them. Although counsel made no specific request for it, the district court ordered the Clerk's Office to make the Third Revised Presentence Investigation Report available to counsel if he lacked access.

The court denied access to documents such as the Sentencing Recommendations for Mr. Bonk because they "are confidential and are not disclosed unless otherwise ordered by the presiding judge."¹⁹ With respect to a handful of the sealed documents relating to Kampas and Wood, the court explained that "[m]any of the requested documents are simply original signed versions of publicly available documents."²⁰ With respect to the remaining documents relating to Kampas and Wood, the court ruled that counsel had failed to " ‘make a specific showing of need for access to the document[s].’ "²¹

On September 7, 2019, counsel filed an amended emergency motion with the district court.²² He reiterated that it was "imperative and beyond question that [he] requires access to all sealed documents for the two co-defendants’ actions ... for the crucial purpose of analyzing, or ruling-out, whether disparity and/or excessiveness of sentencing was committed by the trial court in separately sentencing the three defendants."²³ He submitted, "[t]hat specific need cannot and need not be explicated with ‘more specificity.’ "²⁴ The district court denied the motion with respect to every request except the request for the plea agreements and accompanying exhibits for Kampas and Wood; because counsel would have had access to these documents if he had proceeded to trial, the court directed the Clerk's Office to make them available.²⁵ In denying the rest of the requests, the district court explained that it did

not believe [counsel's] cursory argument—that access is needed to all sealed documents relating to codefendants Kampas and Wood so counsel can analyze whether the sentence imposed on Defendant Bonk was disparate or excessive compared to the sentences of his codefendants—raises to the level of a "compelling, particularized need for disclosure."²⁶

Mr. Bonk renewed his request by motion in this court. After the Government responded and Mr. Bonk replied, one of our colleagues, sitting as motions judge for that period, denied Mr. Bonk's motion.²⁷

IIDISCUSSION

A.

We first examine whether we have jurisdiction to consider whether the district court erred in denying counsel access to all sealed documents in Mr. Bonk's case and the cases of his codefendants. The answer to this question is straightforward: we do not have jurisdiction.

We begin by setting forth the principles that must guide our inquiry. Federal Rule of Appellate Procedure 3 provides in relevant part that "[a]n appeal permitted by law as of right from a district court to a court of appeals may be taken only by filing a notice of appeal" and that the notice "must ... designate the judgment, order, or part thereof being appealed ...." Fed. R. App. P. 3(a)(1), (c)(1)(B). Rule 4(b)(1)(A)(i) of the Federal Rules of Appellate Procedure provides in relevant part that, "[i]n a criminal case, a defendant's notice of appeal must be filed in the district court within 14 days after ... the entry of either the judgment or the order being appealed ." Fed. R. App. P. 4(b)(1)(A)(i) (emphasis added); See also Manrique v. United States , ––– U.S. ––––, 137 S. Ct. 1266, 1270, 197 L.Ed.2d 599 (2017). Thus, "[t]o secure appellate review of a judgment or order, a party must file a notice of appeal from that judgment or order." Manrique , 137 S. Ct. at 1271.

The Supreme Court has stated that "a...