United States v. Gulley

• Decision Date: 17 June 2013
• Docket Number: No. 11–3411.,11–3411.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Parnell GULLEY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

722 F.3d 901

UNITED STATES of America, Plaintiff–Appellee,

v.Parnell GULLEY, Defendant–Appellant.

No. 11–3411.

United States Court of Appeals,Seventh Circuit.

Argued April 8, 2013.

Decided June 17, 2013.

Ronda H. Coleman, Office of the United States Attorney, Urbana, IL, for Plaintiff–Appellee.

Emily A. Reitmeier, Skadden, Arps, Slate, Meagher & Flom LLP, Chicago, IL, for Defendant–Appellant.

Before EASTERBROOK, Chief Judge, and BAUER and SYKES, Circuit Judges.

BAUER, Circuit Judge.

Government agents set up a crack cocaine deal between a confidential informant (CI), Anthony Heard, and a known crack dealer, Pierre Blake. On October 21, 2008, Heard drove to the meeting place wired with a concealed video and audio recording device. The recorder, for all intents and purposes, captured Parnell Gulley—Blake's faithful driver—getting into Heard's car and exchanging a bag of crack cocaine for $200. Gulley was indicted on one count of knowingly and intentionally distributing 5 or more grams of a mixture and substance containing crack cocaine, in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(B). The case proceeded to trial, which ended in a hung jury. At the re-trial, Gulley's counsel argued that Gulley did not “knowingly or intentionally” deliver a controlled substance in violation of the relevant statutes; the jury disagreed and found him guilty.

During the second trial, the government presented testimonial evidence that Gulley admitted to driving Blake to a drug deal with Heard that occurred two days after the charged offense. The government also presented Gulley's admission that he knew Blake was a crack dealer, that he frequently drove Blake around, and that he had previously made a “delivery” for Blake. This was in addition to evidence that crack cocaine, ecstasy, and a firearm were found at Blake's stash house on the day he and Blake were arrested. Gulley did not objectto this testimony at trial, but he now contends the evidence should have been excluded under Federal Rule of Evidence 404(b).

At Gulley's sentencing hearing, the district judge sentenced Gulley to 327 months in prison, followed by an 8–year term of supervised release. In imposing his sentence, the district judge explained that our precedent prohibited retroactive application of the Fair Sentencing Act of 2010(FSA); that precedent has since been overturned. Gulley argues that he should be resentenced in accordance with the FSA while the government contends that any error regarding his prison term was harmless. The parties agree that we should vacate the supervised release term.

For the reasons that follow, we affirm Gulley's conviction but vacate his sentence and remand for resentencing.

I. BACKGROUND

Heard began working as a CI for the Champaign, Illinois Police Department in 2008. The department originally arrested Heard in connection with an investigation into the sale of crack cocaine in the area, and Heard agreed to cooperate as a CI in exchange for leniency.

In October 2008, the Champaign Police Department began an investigation into the crack cocaine dealings of a man known to Heard as “K.D.”—he was also known as “Church” and was later identified as Blake. On the morning of October 21, Heard placed several recorded calls to Blake's phone to arrange a controlled buy of crack cocaine. A time, place, and price were agreed upon. Two people were on the other end of the phone calls at various times: Blake and an unknown male voice, later identified as Gulley, Blake's driver and associate. DEA Special Agent Pablo Ramos and Officer Matthew Henson were present when Heard made the calls.

Later that day, Heard was wired with a hidden video and audio recording device to document the planned transaction. After being equipped with the device, Heard drove to the Country Brook Apartments in Champaign, Illinois, where he parked his car, exited the vehicle, and casually waited in the parking lot. Special Agent Ramos and Officer Henson followed Heard's car to the meeting place but, once they got close, kept at bay because other law enforcement personnel—DEA Task Force Agent Jack Turner, Officer Jaceson Yandell, and another officer—were already in the immediate area conducting surveillance.

Gulley, who at the time was still unknown to Heard and the officers involved, walked out of the complex and spoke to Heard shortly after Heard arrived. The two men got into Heard's car and, according to Heard, Gulley placed a clear plastic baggy containing crack cocaine on the armrest. Heard then gave Gulley $200 in cash, the amount the parties had agreed on. The video recording does not show Gulley's face inside the car, the bag of drugs, or the money changing hands, but the audio recorder captured Gulley's voice as he counted the cash. The audio recorder also captured Heard asking Gulley about purchasing a “six-trey”—63 grams of crack cocaine or one-sixteenth of a kilogram—and whether Blake could come outside to talk. At that time, Gulley got out of the car and went inside the apartment complex. Blake walked outside about a minute later with cocaine residue on his hands and clothing, and he and Heard spoke about future crack cocaine transactions. Blake said he would charge $1,500 to $1,600 for a 63–gram deal.

Heard then left the apartment complex and drove to his agreed-upon meeting location with law enforcement personnel. Once there, Heard gave Special Agent Ramosand Officer Henson the bag he received from Gulley, which contained 6.8 grams of crack cocaine.

Two days later, on October 23, Heard arranged to purchase 63 grams of crack cocaine from Blake, a significantly larger amount than the first buy. Officers parked a video-surveillance van near the residence where Blake stayed with his girlfriend in Champaign, which was a short distance away from the Country Brook Apartments. The surveillance captured Gulley and Blake leaving the residence, getting into a car, and driving to the Country Brook Apartments at approximately 2:35 p.m. Gulley was the driver; Blake sat in the front passenger seat. This information was relayed to other agents and officers involved in the investigation who were standing by at other posts. Heard, again equipped with a video-audio recording device, drove to the Country Brook Apartments at approximately the same time as Gulley and Blake.

At the apartment complex, Blake gave Heard a bag containing 60.7 grams of crack cocaine in exchange for $1,500. Heard then left the apartment complex and delivered the “goodies” to Special Agent Ramos and Officer Yandell. Surveillance captured Gulley and Blake returning to the residence Blake shared with his girlfriend at about that same time.

On October 31, officers secured and executed warrants to search, first, an apartment in the Country Brook Apartments complex—Blake's stash house—and, second, the residence Blake shared with his girlfriend. Crack cocaine, ecstasy, and a firearm were found at the stash house; Gulley, Blake, Blake's girlfriend, another man, and $2,467 in cash were found at the residence. Officers later determined that $1,700 of the cash was money provided for the controlled buys. Gulley was arrested and taken to the police station.

Gulley waived his Miranda rights at the station and told Officer Yandell and Officer Henson that he was unemployed and on parole. He initially told the officers that he had no knowledge of or involvement in Blake's drug-dealing operation but admitted upon further questioning that Blake did not have a driver's license; that he drove Blake around to deliver cocaine, including driving Blake to Chicago to pick up 9 ounces of cocaine a few days before his arrest; that Blake kept cocaine at an apartment in the Country Brook Apartments; and that Blake sold cocaine in quantities of more than 3.5 grams. The interview was not recorded.

On November 18, 2008, Gulley was indicted on one count of knowingly and intentionally distributing 5 or more grams of a mixture and substance containing crack cocaine, in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(B), for his conduct on October 21, 2008. On January 6, 2009, Gulley agreed to cooperate with the government in exchange for a grant of direct use immunity. The agreement required him to provide “complete and truthful” information regarding his criminal conduct.

In accordance with the agreement, Gulley spoke, with his attorney present, to Task Force Agent Turner and Officer Yandell on February 2, 2009. Gulley admitted to driving Blake around and being aware of Blake's drug-dealing venture: he explained that Blake received approximately 63 grams at a time, two to three days a week, and that Blake described his apartment at the Country Brook Apartments as his “stash house.” More significantly, Gulley admitted that, on one occasion, Blake had given him a “bag” at the apartment complex and told him to deliver it to someone in the parking lot in exchange for $200. Gulley stated that he was drunk at the time and did not know what was in the bag. Additionally, Gulley admitted to sellingcocaine for Blake “on one occasion,” though he did not articulate a specific date or time.

The government prosecutor contacted Gulley's attorney on August 13, 2010, to discuss Gulley's participation at Blake's upcoming trial. Four days later, on August 17, the government was informed that Gulley would no longer cooperate—Gulley told his attorney that the government could dismiss the charge against him or proceed to trial. Gulley did not testify at Blake's trial, and the government considered that a violation of their agreement. The district court took judicial notice of the government's position on October 4, 2010.

Shortly before Gulley's first trial, the government filed an exhibit list that included, among other things, a video recording from the October 21 controlled buy, surveillance video from October 23, photos taken during the execution of the October 31 search warrants, and the Miranda warning form from October 31. In response,...