USA. v. Jones, 99-1307

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: Before POSNER, Chief Judge, COFFEY and ROVNER; COFFEY
• Citation: USA. v. Jones, 209 F.3d 991 (7th Cir. 2000)
• Decision Date: 19 April 2000
• Docket Number: No. 99-1307,99-1307
• Parties: (7th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KEITH JONES, Defendant-Appellant

Page 991

209 F.3d 991 (7th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KEITH JONES, Defendant-Appellant.

No. 99-1307

In the United States Court of Appeals For the Seventh Circuit

Argued November 3, 1999

Decided April 19, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 96 CR 419--George W. Lindberg, Judge.

Before POSNER, Chief Judge, COFFEY and ROVNER, Circuit Judges.

COFFEY, Circuit Judge.

In October 1996, a federal grand jury sitting in the Northern District of Illinois returned a seven-count indictment charging Keith Jones, a former police officer with the Ford Heights, Illinois, Police Department (FHPD), with narcotics violations, extortion, and racketeering.¹ Pursuant to a written plea agreement, counts two through seven were dismissed and Jones pled guilty to count one, a charge of racketeering in violation of 18 U.S.C. sec. 1962(c). The trial judge accepted Jones's negotiated plea and sentenced him to 168 months' imprisonment, three years' supervised release, a $10,000 fine, and a $50 special assessment. On appeal, Jones challenges the imposition of the sentence imposed, arguing that in determining his base offense level, the judge made insufficient factual findings regarding the amount of crack cocaine involved. Jones also argues that the government should have moved for a downward departure pursuant to U.S.S.G. sec. 5K1.1 in exchange for his alleged substantial assistance. We affirm.

I. BACKGROUND

From 1989 to 1996, Jones, while employed at the FHPD, was far from a model employee and, apparently like a few other members of the FHPD, assisted in facilitating rather than prohibiting drug transactions in the Ford Heights area. As Jones admitted in the plea agreement, he accepted pay-offs from drug organizations, distributed narcotics, and agreed to fix court cases in the 1990's.

A. The Drug Organizations

From approximately 1991 until 1996, Jones solicited and received cash payments from various drug organizations in the Ford Heights area. Jones took these pay-offs in exchange for his arranging for the freedom of the drug purveyors to deal and sell large quantities of narcotics in Ford Heights without police interference. The nefarious leaders of five of these different drug organizations were: James Cross, Randolph Holmes, Kalonji "Tutu" McMillan, Tim Smith, and Bryant "Boochie" Greenwood. These malevolent organizations carved up the Ford Heights area as if it were their own private candyland, causing such deterioration in the area that, according to the government, city buses could no longer travel through parts of Ford Heights because the streets were so overrun with drug activity.

In the plea agreement, Jones admitted to detailed accounts of his activities with respect to two of the five named drug organizations: The James Cross and the Randolph Holmes Organizations.

1. The James Cross Organization

On January 6, 1996, Jones met with James Cross, one of the area's most notorious drug dealers. Prior to this time, James Cross had paid-off the defendant-Jones on a number of occasions in order that the officer would not interfere with Cross's drug activities. At a meeting held on January 6, 1996, Cross paid Jones $150 under the pretense of paying-off the officer so the Cross drug operation could continue to distribute narcotics in the Ford Heights area without police interference. Jones was unaware of the fact that, at this time, Cross was acting as an informant for the FBI.

2. The Randolph Holmes Organization

From the end of 1994 through 1995, Holmes paid- off Jones on a number of occasions in order that his drug operation might continue without police interference. In addition to the general pay- offs, Jones, after one of Holmes's employees had been arrested and placed in custody, retrieved the crack cocaine the employee had dropped into a garbage can outside the police station and, instead of inventorying the drugs, he sold the narcotics back to Holmes.

B. The Drug Distribution

Jones, in addition to taking pay-offs from drug organizations, personally distributed narcotics in the Ford Heights area. According to the plea agreement, he and another individual sold approximately 17.3 grams of crack cocaine in January 1995.

C. Attempting to Fix Criminal Cases

Also in January 1995, Jones had a number of conversations with a cooperating witness (CW). In these conversations, Jones agreed to help the CW in an upcoming court case² and the CW, in turn, gave him approximately $1,000. Unsatisfied with the $1,000, Jones later telephoned the CW and asked him for another $500. That same afternoon, the CW handed the defendant another $500. Apparently believing that the well would never run dry, Jones, in February 1995, contacted the CW again and asked for even more money to continue to allegedly assist the CW with the same criminal case. This time, the CW did not give the officer any additional money.

In addition to the facts described above, the plea agreement states that because Jones was responsible for at least 1.5 kilograms of crack cocaine, Jones's base offense level was 38. The plea agreement, however, also notes that Jones "disputes this calculation." Furthermore, the plea agreement also contains a provision stating that if Jones cooperates fully and truthfully with the government, it would, in return, "consider whether Jones's cooperation qualifies as 'substantial assistance' pursuant to U.S.S.G. sec. 5K1.1 and 18 U.S.C. sec. 3553(e)." The plea agreement also set forth in writing that Jones "acknowledges that the determination as to whether he has provided 'substantial assistance' rests solely with the government." (emphasis added).

Following Jones's guilty plea, the trial judge ordered the United States Probation Office to prepare a Presentence Investigation Report (PSR). The Probation Officer submitted the PSR and concluded, based on information supplied by the FBI as well as the U.S. Attorney's Office, that Jones should be held accountable for more than 1.5 kilograms of crack cocaine because each of the drug organizations described above individually distributed well in excess of 1.5 kilograms of crack cocaine during the time frame set forth.

At Jones's sentencing hearing, the defendant asked the judge not to impose the sentence recommended in the PSR because, according to Jones, the PSR incorrectly calculated his base offense level by improperly attributing more than 1.5 kilograms of crack cocaine to him. Additionally, Jones argued that he was entitled, especially in light of his lengthy sentence and prior military and police service record, to a downward departure for his alleged substantial assistance.

The judge rejected both of Jones's arguments, concluding that the evidence in the record was more than sufficient to establish that Jones should be held accountable for at least 1.5 kilograms of crack cocaine. The court also found that the government's refusal to file a motion under section 5K1.1 for a downward departure was proper because Jones had not as yet offered any substantial assistance in any other related federal cases. The judge did note, however, that "it is understood by the Court that future assistance might be considered upon the recommendation of the Government." Jones appeals.

II. ISSUES

On appeal, Jones argues that: 1) the district court made insufficient factual findings regarding the amount of drugs he was accountable for; and 2) the government should have made a motion for a downward departure pursuant to U.S.S.G. sec. 5K1.1 because he, in fact, "cooperated" with the authorities.

III. ANALYSIS

A. The Amount of Drugs Attributable to Jones for Sentencing Purposes

1. Standard of Review

We review a district court's determination of the amount of narcotics attributable to a defendant for sentencing purposes under the clear error standard. See United States v. Johnson, 200 F.3d 529, 537 (7th Cir. 2000). "'The factual findings of the district court will not be overturned unless they are clearly erroneous . . . . Thus, we will reverse the district court's conclusion as to quantity of cocaine attributable to [a] defendant[ ] only if we have a definite and firm conviction that the district court made a clear error in sentencing.'" United States v. Taylor, 72 F.3d 533, 542 (7th Cir. 1995) (quoting United States v. Mumford, 25 F.3d 461, 465 (7th Cir. 1994)). That is, clear error can occur with respect to the amount of drugs attributed to a defendant when the calculation of the amount of drugs he is held accountable for is based on unreliable or insufficient information and, therefore, lacks an adequate evidentiary basis. See United States v. Span, 170 F.3d 798, 803 (7th Cir.), cert. denied, 120 S. Ct. 153 (1999).

As an initial matter, the government argues that Jones has waived the issue of the judge's drug calculation by failing to raise it before the trial court and that we should, therefore, review his claim only for plain error. See United States v. Robinson, 20 F.3d 270, 273 (7th Cir. 1994). We disagree.

In spite of the government's argument to the contrary, it is clear to us that Jones did raise an objection as to the amount of crack cocaine recommended in the PSR that he be held accountable for. At the outset of the sentencing hearing, the judge stated to defense counsel, "you are arguing the amount . . . , if I understand." (emphasis added). To which counsel replied, "[y]es I am, Judge." (emphasis added). Defense counsel then proceeded to argue that Jones should not be held accountable for 1.5 kilograms, but rather a much lesser amount. The government, at the court's request, proceeded to give a detailed account of why Jones should be held accountable for more than 1.5 kilograms of crack, pointing out that each of the five separate drug organizations Jones assisted distributed well in excess of 1.5 kilograms of crack cocaine. Furthermore, the plea agreement, as we noted...