United States v. Sidell
| Decision Date | 03 February 2014 |
| Docket Number | No. 12-3347,No. 12-3286,12-3286,12-3347 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SHELLY L. SIDELL and LLOYL A. TENNISON, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Appeals from the United States District
Court for the Central District of Illinois.
Lloyl Tennison and Shelly Sidell pled guilty without plea agreements to conspiring to manufacture and distribute methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1). Tennison was sentenced to twenty years in prison and Sidell to ten years. Tennison appeals his sentence, arguing that we should overturn circuit precedent concerning a prior felony drug conviction that was applied to raise his sentencing range. We disagree with that contention and affirm his sentence. Sidell's appointed lawyer hasconcluded that her appeal is frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738 (1967). We grant counsel's motion to withdraw and dismiss Sidell's appeal.
The indictment alleges that Tennison and Sidell were part of a conspiracy running from "early 2009" until they and their five codefendants were indicted at the beginning of 2012. During that period, in February 2009, Tennison was charged in state court with possessing material used to manufacture methamphetamine. See 720 ILCS 646/30. He pled guilty to that offense and was sentenced to a brief jail term and probation. Otherwise, as far as the record shows, Tennison and Sidell did not join the conspiracy until December 2010 when they first allowed the other members to manufacture methamphetamine at their shared residence. For about six months, Tennison and Sidell supplied pseudoephedrine pills that were used to manufacture methamphetamine at their house. In return they received a share of the finished product. During this period, Tennison also stored on his property a tank of anhydrous ammonia that was used to make methamphetamine.
In April 2011, Tennison learned to manufacture small amounts of methamphetamine. From then until his arrest in February 2012, he cooked methamphetamine on his own. Sidell supplied him with pseudoephedrine during most of this period.
The indictment alleges that the conspiracy involved 500 grams or more of a mixture containing methamphetamine. That quantity is enough to mandate a statutory minimum prison term of ten years or, if the defendant has one prior conviction for a felony drug offense, twenty years. 21 U.S.C. § 841(b)(1)(A). We consider first Tennison's appeal.
Tennison objects to his sentence of twenty years, which the district court found was the applicable mandatory minimum. Tennison does not dispute that the conspiracy involved at least 500 grams of a mixture containing methamphetamine. Nor does he dispute that his Illinois conviction in 2009 for possessing materials used to manufacture methamphetamine is a felony drug offense for purposes of § 841(b)(1). See 21 U.S.C. § 802(44) (defining "felony drug offense"). That conviction raised his mandatory minimum sentence from ten to twenty years. But Tennison argues that the state conviction was not "prior" to his federal conspiracy conviction, as required to trigger the twenty-year minimum because the state offense was committed as part of the conspiracy charged in federal court. He makes this claim even though no evidence in the record linked him to the conspiracy before December 2010, and he did not make any effort in the district court to establish that his 2009 state offense involved any of his co-conspirators named in the federal indictment. As Tennison recognized, though, it would do him no good to establisha factual relationship between the two crimes because, even if there is one, his argument that the state conviction is not a "prior conviction" is foreclosed by United States v. Garcia, 32 F.3d 1017, 1019-20 (7th Cir. 1994), which held that if any of the defendant's criminal conduct in the federal offense occurred after the earlier conviction, that conviction qualifies as a prior conviction for purposes of § 841(b)(1). The district court adhered to Garcia and sentenced Tennison to twenty years in prison.
Tennison argues that Garcia should be overruled and that he should be sentenced without the twenty year mandatory minimum. We reject the argument for both factual and legal reasons. As a matter of fact, the record does not support Tennison's premise that the state offense occurred during and as part of the federally-charged conspiracy, so he could not prevail even if Garcia did not stand in the way. See United States v. Alden, 527 F.3d 653, 663-64 (7th Cir. 2008) (). The state conviction was for conduct in 2009, and the evidence set forth in the federal case indicates that Tennison joined the charged conspiracy only in 2010.
As a matter of law, we see no persuasive reason to overrule Garcia, where we explained that the purpose of the statutory enhancement "is to target recidivism," and thus "it is more appropriate to focus on the degree of criminal activity that occurs after a defendant's conviction for drug-related activity is final rather than when the conspiracy began." 32 F.3d at 1019-20. In the years since Garcia was issued, we have applied its holding consistently. See Alden, 527 F.3d at 664; United States v. Penrod, 133 F. App'x 327, 329 (7th Cir. 2005); United States v. Williams, 272 F.3d 845, 865 (7th Cir. 2001); United States v. Richardson, 130 F.3d 765, 780 (7th Cir. 1997), vacated on an unrelated ground, 526 U.S. 813 (1999); see also United States v. Thompson, 504 F. App'x 512, 513 (7th Cir. 2013) (). As far as we know, no circuit disagrees with the outcome or reasoning of Garcia. See United States v. Moody, 564 F.3d 754, 759 & n.5 (5th Cir. 2009); United States v. Lino, 493 F.3d 41, 43 (1st Cir. 2007); United States v. Martino, 294 F.3d 346, 350 (2d Cir. 2002); United States v. Johnston, 220 F.3d 857, 862 (8th Cir. 2000); United States v. Howard, 115 F.3d 1151, 1158 (4th Cir. 1997); United States v. Hansley, 54 F.3d 709, 717 (11th Cir. 1995); United States v. Hughes, 924 F.2d 1354, 1361-62 (6th Cir. 1991).
Tennison insists that the Garcia approach "is not unanimous" and should be reconsidered. What he really means is that the First, Sixth, and Eighth Circuits define "prior conviction" in words different from ours in Garcia. Those circuits all say that a conviction is "prior" for purposes of § 841(b)(1) only if the underlying conduct can be characterizedas a "separate" or "distinct" "criminal episode." See Lino, 493 F.3d at 43; Johnston, 220 F.3d at 862; Hughes, 924 F.2d at 1361. An episode, according to the Sixth and Eighth Circuits, is a "punctuated occurrence with a limited duration" that is "part of a series, but forms a separate unit within the whole." Hughes, 924 F.2d at 1361; see United States v. Gray, 152 F.3d 816, 822 (8th Cir. 1998), quoting Hughes. The First Circuit has used similar language but clarified that conduct underlying a prior conviction constitutes a "distinct criminal episode" so long as "the defendant continued to participate in drug activity after the conviction became final." Lino, 493 F.3d at 43; see also United States v. De Jesus Mateo, 373 F.3d 70, 74 (1st Cir. 2007), citing Gray, 152 F.3d at 821-22. This succinct translation coincides with what we said in Garcia but without the "separate episode" language. No circuit requires that the earlier conviction have been for conduct "distinct in time from the conduct on which the defendant is being sentenced," as Tennison argues. As best we can tell, no circuit would reject the district court's conclusion that his state conviction was "prior" to the federal conspiracy.
Tennison's other points about Garcia have no merit. He contends that the Garcia approach is wrong because it fails to acknowledge the harshness of his federal sentence relative to the lenient treatment he received in state court for a crime he describes as "not appreciably different" from his federal offense. The argument that it's unfair to impose a lengthy federal sentence on a defendant who received light punishment for similar state crimes is a non-starter. E.g., United States v. Block, 705 F.3d 755, 762 (7th Cir. 2013). The same is true for Tennison's assertion that Garcia is undermined by Alleyne v. United States, 133 S. Ct. 2151 (2013), which held that the rights to trial by jury and proof beyond a reasonable doubt, as set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000), apply to facts triggering a statutory minimum penalty. Alleyne, 133 S. Ct. at 2155. Apprendi and its progeny have recognized an established exception for enhancements based on prior convictions. See 530 U.S. at 490; see also Almendarez-Torres v. United States, 523 U.S. 224, 230-32 (1998). Alleyne left that exception intact. 133 S. Ct. at 2160 n.1.
So we affirm Tennison's sentence of twenty years. We turn now to Sidell's appeal. At her change-of-plea hearing in May 2012, the district court established a factual basis for the guilty plea by questioning her about her role in the conspiracy and asking the government to describe the evidence it would have presented at trial. Sidell admitted supplying pseudoephedrine to her co-conspirators but said she did not "believe personally that I am—knew anything about 500 grams" being manufactured. She acknowledged uncertainty about the actual amount, however, and conceded that 500 grams "probably" could have been involved if the actions of every co-conspirator were taken into account. The district court told Sidell that the drug quantity would be...
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