USA. v. Hughes, 99-1269

• Decision Date: 03 May 2000
• Docket Number: No. 99-1269,99-1269
• Citation: 213 F.3d 323
• Parties: (7th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RUBEN HUGHES, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 323

213 F.3d 323 (7th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RUBEN HUGHES, Defendant-Appellant.

No. 99-1269

In the United States Court of Appeals For the Seventh Circuit

Argued December 3, 1999

Decided May 3, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 CR 670-01--Harry D. Leinenweber, Judge. [Copyrighted Material Omitted] Before POSNER, Chief Judge, and COFFEY and MANION, Circuit Judges.

COFFEY, Circuit Judge.

Defendant-Appellant Ruben Hughes ("Hughes") was indicted and charged in Count one with conspiring to possess cocaine and cocaine base with intent to distribute, in violation of 21 U.S.C. sec. 846, in Counts two through five with distributing cocaine or cocaine base, in violation of 21 U.S.C. sec. 841(a)(1), and in Count six with possessing a firearm as a felon, in violation of 18 U.S.C. sec. 922(g)(1).¹ The conclusion of a jury trial, Hughes was found guilty on each of the counts, and on January 13, 1999, the court imposed a life sentence on the drug counts,² as well as a ten year concurrent term on the firearm count and a $10,000 fine. Hughes appealed, alleging that the evidence presented at trial constructively amended the indictment and that the trial judge erred when he refused to give the multiple conspiracies jury instruction the defendant requested. Hughes also claims that his attorney failed to adequately discuss the contents of the Presentence Report ("PSR") with him in violation of Federal Rule of Criminal Procedure 32(c)(3)(A), and also challenges the sentencing judge's findings relating to the quantity of drugs that he was responsible for as well as his leadership role in the crimes.

AFFIRM.

I. BACKGROUND

In 1989, Hughes began acting as the leader of a cocaine trafficking operation in the Joliet- Lockport, Illinois area. The drug operation was run primarily from a series of "crack houses" in an area of Joliet referred to as the "Hill." His organization consisted of a confederation of people who prepared cocaine base ("crack") by cooking cocaine powder into crack, bagged the crack for resale and distributed it to customers at Hughes' direction. During the period charged in the indictment ("[b]eginning in 1996 and continuing until on or about June 26, 1997"), Hughes managed and directed his operation from his crack house at the "Hill" called the "Bolo Shop," which sold approximately 4.5 to 9 ounces of crack daily, resulting in an income of $5,000 to $10,000 per day, mainly from the volume sale of "quarter bags" (bags containing between .1 and .3 gram of crack) costing $20 to customers. All monies collected from the sales were given to Hughes, with each worker receiving a small commission either in money or crack. Hughes was never far away from the scene of the sales, and when the workers ran out of their supply, they paged Hughes who would in turn deliver a fresh supply of crack and collect the money. The defendant amassed some 29 vehicles, several houses as well as a car wash from his lucrative cocaine operation.

With Hughes as the star of the show, the cast of characters included two long-time acquaintances who were employed in his operation and later agreed to testify against him--namely, Joseph Nixon ("Nixon") and Jeffrey Lindsey ("Lindsey"). A long-time customer, Kendall Woods ("Woods"), also testified for the government against Hughes.

Nixon began selling drugs for Hughes in 1990. As time progressed, Hughes took him under his wing and soon thereafter Nixon became his "right hand man," selling and "bagging" the crack for him. By 1997, Hughes was allowing Nixon to bag and sell multi-ounce quantities of crack for a $5 profit on every $20 bag sold. Although Hughes' "Bolo Shop" crack house was raided and shut down by the police in January 1997, between January and June 1997, Nixon bagged, sold and delivered in excess of five kilograms of crack for Hughes.

Lindsey at one time was also designated to sell and cook cocaine into crack base for Hughes, and like the other employees, he was given "quarter bags" to sell and would also page Hughes to pick up the proceeds when a replenishment of drugs was needed. On occasion, Hughes would give Lindsey between 6 and 8 grams of crack for every kilogram cooked for him. In the summer of 1996 alone, Lindsey cooked an estimated total of six to ten kilograms of crack for Hughes.³

Woods had known Hughes for some ten years before he began purchasing cocaine and crack from him in 1989. From that time until 1997, Woods made cocaine and crack buys from Hughes over 500 times, in quantities ranging from 3.5 grams to half a kilogram. After Woods' arrest for drug possession and aggravated battery, he agreed to cooperate with law enforcement authorities in the investigation of Hughes. Between January and June of 1997, Woods made four monitored drug buys from Hughes which serves as the basis for Counts two through five of the indictment.⁴

Hughes' drug operation crumbled when he was involved in a traffic accident on June 26, 1997, and an Illinois State trooper named Linda Terando investigated the accident and was informed by a motorist at the scene that the defendant had deposited a red rag in a culvert off the side of the road. Trooper Terando recovered the red rag and discovered that it contained two Grendel handguns.⁵ As a result, the defendant was arrested for possessing a firearm as a felon.⁶

On December 18, 1997, a federal grand jury indicted both Hughes and Nixon in Count one of the charging papers with conspiring to distribute cocaine and cocaine base and in Counts two and five with cocaine and cocaine base distribution, and also indicted Hughes alone in Count three and four with cocaine distribution and in Count six with possessing a firearm as a felon. Likely sensing the strength of the government's case against him, Nixon agreed to assist the government and pled guilty to Count one and became a cooperating witness. Testifying against Hughes at trial, Nixon described how since 1990, he had been personally involved in the processing and delivery of dozens of kilos of cocaine and crack for Hughes, and described in detail the nature of his and Hughes' involvement in the drug operation. Nixon also testified that he helped "cook" cocaine on occasion, but mainly bagged and sold $20 bags of crack to customers from a number of Hughes' crack houses. He also testified that from January through June 1997, he delivered crack to Woods at Hughes' direction. Likewise, Woods testified about the extensive amount of cocaine and crack he had purchased from Hughes since 1989, as well as the details of the 1997 drug transactions during the government sting operation. Lindsey as well testified about the extensive amount of cocaine that he cooked into crack and sold for Hughes.

A jury found Hughes guilty on all counts set forth in the indictment. At sentencing, Hughes objected to the four-level upward adjustment of his offense level from 40 to 44 for his leadership role in the crimes and the quantity of cocaine attributable to him as recommended in the PSR. Hughes also stated at the sentencing hearing that his counsel "never really sat down and discussed" the PSR with him, thus violating Federal Rule of Criminal Procedure 32(c)(3)(A), but his counsel rebutted this testimony. The sentencing judge rejected Hughes' objections to the PSR, adopted its recommendations and sentenced Hughes to life imprisonment on Counts one through five, and a ten year term of imprisonment on Count six, ordered to run concurrently. The defendant appealed.

II. ISSUES

On appeal, the defendant claims that the district court committed reversible error in: (1) allowing the evidence of his uncharged criminal activity to, in effect, constructively amend the indictment; and (2) failing to issue the requested multiple conspiracies jury instruction. Hughes also challenges the computation of his sentence, arguing that: (1) his attorney failed to adequately discuss his PSR with him prior to sentencing; (2) the judge failed to make adequate findings relating to the quantity of cocaine base attributable to him; and (3) the judge erred in adjusting his offense level upward for his leadership role in the crimes.

III. DISCUSSION

A. Hughes' Challenges to His Conviction

1. Constructive Amendment of the Indictment

On appeal, Hughes argues that the evidence at trial relating to his drug activity referred to conduct that occurred prior to the period set forth in the indictment ("[b]eginning in 1996 and continuing until on or about June 26, 1997"), and thereby constructively amended the indictment. We note that the trial record reflects that the defendant failed to object either before or during trial to this specific evidence.⁷ Thus, he has forfeited his challenge to the evidence of his uncharged drug activity and the plain error standard governs.⁸ See Wilson v. Williams, 182 F.3d 562, 568 (7th Cir. 1999) (en banc).

Under the plain error standard, only "those errors which 'seriously affect the fairness, integrity or public reputation of judicial proceedings'" warrant reversal. See United States v. Akinrinade, 61 F.3d 1279, 1283 (7th Cir. 1995) (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)). In other words, plain error is "an error that not only is clear in retrospect but also causes a miscarriage of justice." See Wilson, 182 F.3d at 568. Thus, Hughes must establish not only that "there was error, [but] that error was plain, that error affected his substantial rights, and that it seriously affected the fairness, integrity, or public reputation of the proceeding." United States v. Bursey, 85 F.3d 293, 296 (7th Cir. 1996) (emphasis added) (citing United States v. Olano, 507 U.S. 725, 730-37 (1993)).

Hughes essentially contends that the aggregate of the testimony of Nixon, Lindsey and Woods regarding their pre-1996 involvement in his drug operation denied him a fair trial by constructively...