United States v. Hopper

• Decision Date: 20 August 2019
• Docket Number: No. 18-2576,18-2576
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rex A. HOPPER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

934 F.3d 740

UNITED STATES of America, Plaintiff-Appellee,

v.Rex A. HOPPER, Defendant-Appellant.

No. 18-2576

United States Court of Appeals, Seventh Circuit.

Argued April 4, 2019

Decided August 20, 2019

James M. Cutchin, Attorney, George A. Norwood, Attorney, Office of the United States Attorney, Benton, IL, for Plaintiff - Appellee.

Sarah O'Rourke Schrup, Attorney, Northwestern University School of Law, Bluhm Legal Clinic, Chicago, IL, for Defendant - Appellant.

Before Ripple, Hamilton, and St. Eve, Circuit Judges.

Ripple, Circuit Judge.

In June 2017, a federal grand jury indicted Rex Hopper on one count of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846 and 18 U.S.C. § 2. Mr. Hopper was part of a community of methamphetamine users and sellers in southern Illinois. Several of these individuals signed proffer letters with the Government, agreeing to provide testimony against Mr. Hopper in exchange for leniency. Most of these witnesses subsequently entered plea agreements.¹ Mr. Hopper, however, pleaded not guilty to the single count in the indictment and proceeded to trial before a jury in late February 2018.

Over the course of three days, the Government presented the testimony of approximately twenty witnesses against Mr. Hopper. The district court denied Mr. Hopper's motion for disclosure of the proffer letters given to these witnesses. Following deliberations, the jury found Mr. Hopper guilty of conspiracy to distribute methamphetamine, as charged in the indictment, and returned a special verdict form finding that the conspiracy involved an amount of 50 grams or more.

Based on interviews with other participants in the conspiracy, the probation office determined that Mr. Hopper's relevant conduct involved 1.968 kilograms of ice methamphetamine. This drug amount corresponded to a base offense level of 36. At sentencing, the district court determined that Mr. Hopper was subject to a two-level sentence enhancement for maintaining a residence for the purpose of distributing methamphetamine. Based on a total offense level of 38 and a criminal history category of I, the court calculated a guidelines imprisonment range of 235 to 293 months. The district court sentenced Mr. Hopper at the bottom of the guidelines range to 235 months' imprisonment, followed by four years of supervised release.²

Mr. Hopper now challenges both his conviction and his sentence. First, we conclude that the Government presented sufficient evidence to prove that Mr. Hopper engaged in a conspiracy to distribute methamphetamine in southern Illinois, and that there was no material variance between the conspiracy charged in the indictment and the Government's proof at trial. Second, the district court did not err when it denied Mr. Hopper's motion for disclosure of the cooperating witnesses' proffer letters. Third, the district court properly concluded that Mr. Hopper was subject to a two-level sentence enhancement for maintaining his Creal Springs residence for the purpose of distributing methamphetamine. However, we conclude that the district court plainly erred when it calculated Mr. Hopper's relevant conduct and corresponding guidelines range. In context, it is clear that, in their separate interviews, Lucas Holland and Randall Riley were describing the same transactions. By including the amounts described by both Holland and Riley in the calculation of Mr. Hopper's relevant conduct, the presentence report ("PSR"), adopted by the district court, erroneously double-counted those drug quantities.

For the foregoing reasons, we affirm Mr. Hopper's conviction for conspiracy to distribute methamphetamine. We also affirm the district court's determination that he was subject to a sentence enhancement for maintaining a drug premises. Because the court plainly erred in calculating his relevant conduct, however, we vacate Mr. Hopper's sentence and remand his case to the district court for resentencing.³

I.BACKGROUND

A.

In April 2017, law enforcement officers executed a search warrant at Mr. Hopper's residence. They sought to recover items involved in a burglary. Officers observed drug paraphernalia and methamphetamine in plain view. Accordingly, the officers obtained and executed a second search warrant for the residence. Upon finding additional drug paraphernalia and methamphetamine in his home, officers took Mr. Hopper into custody. A federal grand jury later returned an indictment charging Mr. Hopper with one count of conspiracy to distribute methamphetamine, in violation of 18 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846 and 18 U.S.C. § 2, in the Southern District of Illinois.

B.

Mr. Hopper was part of a community of methamphetamine users and sellers in southern Illinois. Around the time of his indictment, the Government also charged other members of this group with conspiracy to distribute methamphetamine. Several of these individuals received proffer letters from the Government and subsequently agreed to provide testimony against Mr. Hopper in exchange for leniency. Most of these witnesses later entered plea agreements. Mr. Hopper, however, pleaded not guilty to the single count in the indictment and proceeded to trial before a jury in late February 2018.

Before the trial began, counsel for Mr. Hopper renewed a previous motion for disclosure of the proffer letters given to the witnesses who would testify against Mr. Hopper. Referencing our decision in United States v. Weidenburner , 550 F. App'x 298 (7th Cir. 2013) (unpublished), counsel recognized that "[t]he Seventh Circuit has ruled that" proffer letters "are not materials that have to be provided."⁴ Nevertheless, counsel wanted "the record to be clear" that he thought he "ought to be provided a copy" of the proffer letters.⁵

Counsel for Mr. Hopper explained that the proffer letter "is an agreement that sets forth the ground rules" for what testimony "may or may not lead to a plea agreement."⁶ He submitted that "this is a very important aspect of the defense" because "no plea agreements are offered until you proffer."⁷ In other words, the proffer letters are "part of the process by which men and women ultimately find their way on to the stand to give testimony against a defendant."⁸ As a result, counsel asserted, "if the[ ] jurors don't have some understanding of this process," the defense would be "really hampered in terms of our constitutional right[s] to put on a defense and ... to confront the witnesses through cross examination that are here to accuse Rex Hopper of various crimes."⁹

Relying on our decision in Weidenburner , the Government responded that "the Seventh Circuit is clear that the proffer letters don't come in," nor does "any information about the proffer," "because it is a preliminary step in the plea agreement, and then the plea agreement supersedes all that."¹⁰ Turning to defense counsel, the court stated, "I think it is pretty clear that, you know, you are not going to get the documents."¹¹

The Government further noted its objection to defense counsel asking any questions about the process of entering a plea agreement. The court asked defense counsel what kind of questions he intended to ask the cooperating witnesses. Counsel explained that he wanted the jury to know that before entering a plea agreement, a witness had to meet with federal agents and "understood that agents would decide and the prosecutors would decide whether you told the truth, and if they didn't think you told the truth that a plea agreement would not be tendered."¹² Counsel acknowledged that he planned to review the terms of the plea agreements with each witness, but argued that the jury would be "missing a big part of this process" without the proffer letters.¹³ Based on our decision in Weidenburner , the Government reiterated that the plea agreement "supersede[s] the proffer letter" and is "the document which the defendant is entitled to and entitled to question witnesses about."¹⁴ The court denied the motion for disclosure of the proffer letters and ruled that counsel could ask the witnesses "whether they've entered into a proffer agreement, but going into the terms of it that are super[s]eded by the plea agreement, I'm not going to let you do."¹⁵

C.

Mr. Hopper proceeded to trial before a jury on February 26, 2018. Over the course of three days, the Government presented the testimony of approximately twenty witnesses against Mr. Hopper. Set forth below is a summary of the witnesses and testimony relevant to this appeal.

Dameon Williams testified that he met Mr. Hopper sometime in 2015 when they were "messing with drugs."¹⁶ He obtained ice methamphetamine from Mr. Hopper "[o]ff and on" for about one year.¹⁷ On these occasions, he received about one to two ounces of methamphetamine at a cost of $ 900 to $ 1200 per ounce. Williams stated that sometimes, he bought the drugs outright, while other times Mr. Hopper provided the drugs to him "on credit," or on a "front."¹⁸ He explained that, in this fronting arrangement, Mr. Hopper provided Williams a quantity of drugs, some of which Williams sold to others in order to pay Mr. Hopper back. He further testified that Mr. Hopper called Williams occasionally and asked him to visit the homes of customers who owed Mr. Hopper money and bring them to Mr. Hopper's house to settle the debt. He explained that he helped Mr. Hopper collect money from his customers because Williams "was selling drugs for him" and "to help him out in his drug business."¹⁹

Brooke Peyton testified that she met Mr. Hopper in 2016 when she was dating William, also known as "Andy," Karnes. With Karnes, she had visited Mr. Hopper's residence in Creal Springs, where Mr. Hopper provided ice methamphetamine to Karnes. She stated that during the summer of 2016, Mr. Hopper provided Karnes three to five "8-balls," or 3.5 gram quantities of ice methamphetamine, several times a week.²⁰ Karnes obtained the methamphetamine from Mr. Hopper "[o]n a front," in which he...