United States v. Redmond

• Decision Date: 12 January 2012
• Docket Number: 10–3914.,Nos. 10–1947,s. 10–1947
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Michael REDMOND and Charles Avery, Jr., Defendants–Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

667 F.3d 863

UNITED STATES of America, Plaintiff–Appellee,

v.Michael REDMOND and Charles Avery, Jr., Defendants–Appellants.

Nos. 10–1947

10–3914.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 6, 2011.Decided Jan. 12, 2012.

Matthew P. Brookman, Attorney, Office of the United States Attorney, Evansville, IN, for Plaintiff–Appellee.

Susan Kister, Attorney, St. Louis, MO, for Defendant–Appellant in No. 10–1947.

Elizabeth Butler, Attorney, Law Office of Elizabeth Butler, Northbrook, IL, for Defendant–Appellant in No. 10–3914.

Before POSNER, FLAUM, and SYKES, Circuit Judges.

FLAUM, Circuit Judge.

This is the consolidated appeal of Charles Avery, Jr. and Michael Redmond. Avery pled guilty to crack cocaine distribution in violation of 21 U.S.C. § 841(a)(1); he appeals the district court's denial of his request to withdraw his guilty plea, the calculation of the crack cocaine quantity attributed to him, as well as his sentence. Redmond pled guilty to crack cocaine distribution conspiracy in violation of 21 U.S.C. § 846 and appeals only his sentence. For the following reasons we affirm as to Avery, and issue a limited remand as to Redmond for the limited purpose of allowing the district court to reconsider his sentence in light of United States v. Corner, 598 F.3d 411 (7th Cir.2010).

I. Background

In 2007, a joint federal, state, and local investigation uncovered a conspiracy to engage in transporting large quantities of crack cocaine from Chicago to Evansville, Indiana for distribution. Members of the conspiracy also trafficked firearms obtained in Indiana to Chicago.

From February through August 2008, law enforcement officers conducted controlled purchases and seizures of crack cocaine from members of the drug trafficking network, including Avery. The investigation culminated in a court-authorized wire surveillance of several cellular telephones used by members of the conspiracy. Redmond was overheard arranging multiple crack cocaine transactions. During the course of the investigation, Avery was identified as a crack cocaine distributor with ties to members of the conspiracy.

A federal grand jury returned an indictment charging Redmond, Avery, and seventeen co-defendants in thirty-five counts, including various crack cocaine and firearms trafficking related offenses.

A. Avery

On October 16, 2008, Avery was charged with three counts in a multi-defendant indictment. Count one alleged conspiracy to possess with intent to distribute, and counts five and seven alleged distribution of a substance containing a detectable amount of cocaine base on February 20, 2008 and March 3, 2008 respectively. Avery was scheduled for trial on Monday July 12, 2010, but on the morning of the trial, he informed the court that he wished to plead guilty to counts five and seven of the indictment.¹ That same day the government filed a motion to dismiss the conspiracy charge. The parties had previously entered into a trial stipulation that the February 20, 2008 buy involved .46 grams of cocaine base substance, and that the March 3, 2008 buy involved .38 grams of cocaine base substance. The court then held a change of plea hearing.

At the hearing, Sergeant Matt Schnell of the Vanderburgh County Sheriff's Department testified in support of the distribution charges. First, he testified to his knowledge of the two controlled purchases, the first on February 20, 2008, and the second on March 3, 2008. Next, he testified that on March 5, 2008, officers stopped Avery in a car and seized $880. Of the $880 seized from the car, $130 were police funds from controlled buys. The officers also seized a set of digital scales covered in cocaine residue. Finally, Sgt. Schnell testified to various controlled buys and seizures of crack cocaine from co-defendants between March and August 2008 over objection. During the hearing, the government stated that it did not intend “to hold [Avery] responsible for any conspiracy weights.” Avery pled guilty, without a plea agreement, to counts five and seven.

On November 30, 2008, the case reconvened for sentencing and Avery requested to withdraw his guilty plea based on findings of the presentence investigation report (“PSR”). He argued first that, contrary to the PSR's finding otherwise, he was entitled to a sentence reduction for acceptance of responsibility. Next, he objected to the amount of crack cocaine attributed to him. He also objected to his classification as a career offender.

The PSR found Avery responsible for 6 grams of crack cocaine, raising his offense level from 14 (less than 1 gram of crack cocaine) to 18 (6 grams of crack cocaine) pursuant to the 2010 sentencing guidelines. Avery objected based on the trial stipulation that less than one gram of cocaine was involved in the two buys. The government countered that $750 of the $880 found in Avery's car could be attributed to relevant conduct which amounted to approximately 6 grams of cocaine base. Additionally, the government argued that the difference in the cocaine amounts would not matter because the PSR classified Avery as a career offender which placed him at a category VI. ² Given the dispute regarding the cocaine quantity, the court did not “feel comfortable” proceeding with the sentencing at the November hearing and continued the sentencing hearing to December 13, 2008.

When the sentencing hearing resumed, the court heard testimony from Evansville police detective Mike Gray who was involved in the investigation concerning the drug purchases from Avery. Gray testified about information obtained from an informant, Giles, and the two buys Avery pled to totaling .84 grams. Apparently, Avery had reached out to Giles in mid-February 2008, indicating that he would be taking over sales from Giles' previous supplier, Lawrence Brandon. Brandon had recently been arrested. According to Gray, the informant regularly purchased crack cocaine from Avery during an approximately two-week period leading up to the first controlled buy. The informant would meet Avery on multiple occasions each day (sometimes up to five or six times daily) and purchase anywhere from one gram to 3.5 grams. At the hearing, the officer conservatively estimated that prior to the start of the controlled transactions on February 20, the informant would meet with Avery twice per day, to purchase one gram each time, to equal approximately 20 grams (1 gram per buy x 10 days x 2 meetings).³ Gray also testified to a controlled buy that took place on February 28, 2008 where Avery sold Giles 3.2 grams of a substance that was fake cocaine. Finally, Gray explained to the court that on March 5, 2008, two days after the last controlled buy, Avery was pulled over in his car by police. Officers found $880, a scale, and a paper with his phone number written several times. Of the $880 found, $130 was police buy money. Gray believed that the remaining $750 were proceeds from other drug sales, and conservatively associated 7.5 grams of crack cocaine with the remaining cash. Adding these figures together totals 31.54 grams of crack cocaine. The district court, however, accepted the figures presented in the government's sentencing memorandum (estimating that Giles purchased 40 grams of crack cocaine from Avery prior to the controlled buys), and attributed 51.5 grams of cocaine base to Avery. This resulted in an offense level 30, but considering Avery's status as career offender, the offense level increased to 34.

Avery also objected to the PSR's conclusion that he is a career offender. Specifically, Avery argued that his three armed-robbery convictions, which occurred on March 10, 11, and 12, 1989, when Avery was 18, should not be considered separate convictions because they were charged under one case number, involved the same victims, and the sentences imposed ran concurrently. As the government pointed out, there were in fact three case numbers and he received separate sentences. The court overruled Avery's objection, finding that the offenses should be counted separately pursuant to the Guidelines.

Ultimately, Avery's offense level was determined to be 34, criminal history VI, with an advisory sentencing range of 262 to 327 months. Avery asked the district court to sentence below the Guidelines range, but did not seek a variance based upon the disparity between crack and powder cocaine. He was sentenced to 262 months for counts 5 and 7 to be served concurrently.

B. Redmond

Redmond pled guilty without a plea agreement to count one of the indictment, conspiracy to possess with intent to distribute in excess of 50 grams of cocaine base. The district court determined that for Guidelines purposes, Redmond was accountable for approximately 3 kilograms of crack cocaine, resulting in a Guidelines offense level 36. That Redmond was a career offender bumped his offense level up to 37. Redmond received a 3–level reduction for acceptance of responsibility, decreasing his offense level to 34. Prior to the plea being finalized, Redmond's attorney indicated that he would argue against the career offender calculation under 18 U.S.C. § 3553(a). Redmond was classified as a career offender under § 4B1.1, with a criminal history category of VI. The resulting advisory Guidelines sentencing range was determined to be 262 to 327.

After agreeing that Redmond was a career offender, defense counsel asked the court to deviate downward pursuant to § 3553(a). Counsel argued that Redmond's criminal history was overstated because (1) his most serious conviction, for robbery, was when he punched a man and took $40; (2) that his controlled substance violations were use-related, not sales-related; and (3) that his longest period of confinement prior to the instant offense was 16 months. Comparing the sentences of Redmond's co-defendants, counsel noted that many had received lesser sentences of 87 or 144 months. In light of Redmond's criminal history, he requested a sentence of 15 or 16 years.

Ultimately, the...