United States v. Collins, Orand L. , 264 F. App'x 513 ( 2008 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 30, 2008
Decided February 12, 2008
Before
Hon. JOEL M. FLAUM, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 07-2313
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of
Illinois
v.
No. 3:06CR30046-002 DRH
ORAND L. COLLINS,
Defendant-Appellant. David R. Herndon
Chief Judge.
ORDER
Orand Collins pleaded guilty to one count of conspiracy to possess and
distribute crack and one count of possession of crack with intent to distribute. See 21
U.S.C. §§ 846, 841(a)(1). The district court concluded that the first count carried a
mandatory minimum sentence of ten years and the second count a mandatory
minimum of five years. But the court granted the government’s motion for a five-
year sentence based on substantial assistance, see 18 U.S.C. § 3553(e); U.S.S.G.
§ 5K1.1, and sentenced him to two concurrent terms of 60 months’ imprisonment.
Collins appeals. Because we conclude that his appeal is foreclosed by an appeal
waiver Collins executed as part of his signed plea agreement with the government,
we affirm.
No. 07-2313 Page 2
Collins stipulated that the following facts occurred and would be proven at a
trial. On November 28, 2005, Collins was arrested by DEA agents after trying to
deliver crack to an informant. The informant had negotiated with Collins’s co-
defendant, Ron Lott, to purchase an ounce of crack. Lott had driven Collins to the
informant’s apartment but stayed in the car and sent Collins to the door to complete
the sale. However, the informant did not know Collins and refused to open the door.
On his way back to the car with the undelivered crack, Collins was stopped by the
DEA agents. Collins had an ounce of crack in his pocket and admitted his connection
with Lott. Shortly after his arrest, Collins told agents that he had delivered smaller
amounts of crack for Lott on multiple occasions in the past, for a total of about 2
ounces (or 56 grams). At his detention hearing, Collins indicated that he had known
Lott for just a month or two prior to the November 28 incident.
The indictment charged Collins and Lott with conspiring “[o]n or about
November 28, 2005” to distribute cocaine base, and also charged Collins with
possession with intent to distribute. Collins and the government entered into a plea
agreement. That agreement includes a clear appeal waiver which states:
[T]he Defendant knowingly and voluntarily waives his right to contest
any aspect of his conviction and sentence that could be contested under
Title 18 or Title 28, or under any other provision of federal law, except
that if the sentence imposed is in excess of the Sentencing Guidelines as
determined by the Court (or any applicable statutory minimum,
whichever is greater), the Defendant reserves the right to appeal the
reasonableness of the sentence.
The plea agreement memorializes the parties’ understanding that Collins was
subject to a statutory minimum of five years on each of the two counts. The parties
also agreed that Collins would be held accountable for a total of 56 grams of crack as
relevant conduct. They projected in the plea agreement that Collins’s sentencing
range under the guidelines would likely be 78 to 97 months.1 During the plea
hearing, the court stated that Collins would be subject to a five-year mandatory
minimum sentence, with the possibility of a lower sentence if he provided substantial
assistance to the government. The court informed Collins that his plea agreement
did not constitute a guarantee of any particular sentence and that his ultimate
sentence would be determined by the court. The court also asked Collins if he
understood that he was giving up his right to appeal a sentence within the advisory
1
As it turned out, the PSR recommended a guidelines range of 63 to 78
months, because it determined that Collins was entitled to an additional 2-level role-
in-the-offense reduction.
No. 07-2313 Page 3
guidelines range, but not one above that range, and Collins stated that he
understood.
Apparently to everyone’s surprise, the probation officer who prepared the PSR
concluded that a ten-year, not a five-year, mandatory minimum applied to the
conspiracy count. The probation officer reasoned that 50 grams of crack triggered a
ten-year minimum, and Collins admittedly delivered more than that amount for Lott
over a short period of time. See 21 U.S.C. § 841(b)(1)(A)(iii). Collins objected,
maintaining that a five-year minimum for both counts was correct. In his written
objection and at the sentencing hearing, Collins argued that the indictment limited
the term of the conspiracy to the period “on or about November 28, 2005,” and
therefore that the crack he delivered for Lott prior to that day was not part of the
offense conduct encompassed by the charged conspiracy. Collins argued that the
district court should distinguish between “offense conduct” and “relevant conduct” for
the purpose of sentencing because of the narrow wording in the indictment.
Relevant conduct is defined more loosely as acts of possession or sale “that were part
of the same course of conduct or common scheme or plan as the offense of conviction.”
U.S.S.G. § 1B1.3(a)(2). Collins contended that the “possible temporal break” between
the past drug deals and the one that led to his conviction prevented them from being
considered part of the same offense for purposes of sentencing.
The district court overruled Collins’s objection, concluding that the earlier
drug sales did constitute part of the charged conspiracy. The court pointed out that
the factual stipulation acknowledged that the prior drug deals constituted relevant
conduct. The court reasoned that if there was a “temporal break” between the drug
sales, then the earlier sales should not have been included as relevant conduct; but
since the parties acknowledged that they were relevant conduct, there could not have
been a temporal break. The court also noted that the acts forming the conspiracy
need not have occurred on November 28, despite the language in the indictment.
The court then gave Collins the opportunity to withdraw his guilty pleas in light of
the parties’ mistake about the mandatory minimum on the conspiracy count, but
Collins stated that he did not wish to withdraw his pleas. The government moved for
a sentence reduction to 60 months based on the substantial assistance Collins
provided by turning over the drugs immediately, making the post-arrest statement,
and providing valuable information about Lott. The district court sentenced Collins
to 60 months’ imprisonment on each count, to be served concurrently.
On appeal Collins argues that the district court erred in concluding that he
was subject to a ten-year statutory minimum on the conspiracy count. Collins
maintains that the actual minimum sentence was five years and that only the 25.5
grams he possessed on November 28 could be used in applying the minimum term
for that count under § 841(b). See United States v. Rodriguez, 67 F.3d 1312, 1324
No. 07-2313 Page 4
(7th Cir. 1995) (noting that statute setting mandatory minimum looks “only to the
conduct which actually resulted in a conviction under that statute”).
Collins faces a threshold problem in the form of his appeal waiver because we
will enforce waivers if they are made knowingly and voluntarily. See United States
v. Sura, No. 05-1478, 2007 U.S. App. LEXIS 28697, at *24 (7th Cir. Dec. 12, 2007);
United States v. Lockwood, 416 F.3d 604, 607-608 (7th Cir. 2005). The issue Collins
raises on appeal falls within the letter of the appeal waiver. Collins does not
challenge the calculation of the applicable sentencing guidelines range or argue that
his overall sentence is above that range (in fact, it is below the range). In his reply
brief, Collins suggests that a new phrase should be read into his appeal waiver in
order to interpret it in accordance with the parties’ intention. According to Collins,
the escape hatch that allows an appeal “if the sentence imposed is in excess of the
Sentencing Guidelines as determined by the Court (or any applicable statutory
minimum, whichever is greater)” should be read instead to free him from the waiver
“if the sentence imposed, before a reduction for substantial assistance, is in excess of
the Sentencing Guidelines as determined by the Court (or any applicable statutory
minimum, whichever is greater).” But Collins’s proposal does not reflect the reality
of sentencing. He was sentenced just once. The court did not impose a sentence on
the conspiracy count and then reduce it for substantial assistance and then impose it
all over again.
In any event, even if the appeal waiver did not apply, we would affirm Collins’s
sentence. Collins contends that his prior crack deliveries were necessarily outside
the scope of the “single day, single delivery conspiracy” on which his indictment and
conviction purportedly are based. But it is well-established that a drug conspiracy
may encompass a series of drug transactions. See United States v. Broce, 488 U.S.
563, 570-571 (1989); United States v. Magana, 118 F.3d 1173, 1190 (7th Cir. 1997).
These transactions may be aggregated when calculating the mandatory minimum
under 21 U.S.C. § 841(b) because they are part of a single, united offense. See United
States v. Pressley, 469 F.3d 63, 66 (2d Cir. 2006); United States v. Gori, 324 F.3d 234,
237 (3d Cir. 2003). The drug quantity that is material to the minimum sentence in a
conspiracy case is the amount arising from all criminal acts within the scope of the
conspiracy and foreseeable to a defendant. United States v. Rivera, 411 F.3d 864,
866 (7th Cir. 2005). And that quantity is not an element of the offense and therefore
need not be charged in the indictment. See United States v. Lewis, 110 F.3d 417, 423
(7th Cir. 1997). In addition, the events leading to conviction need not occur at
exactly the time specified in the indictment. See United States v. Ross, 412 F.3d 771,
774 (7th Cir. 2005); United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir. 1988)
(“[W]hen the indictment uses the ‘on or about’ designation, proof of a date reasonably
near to the specified date is sufficient.”). In this case, it is clear from Collins’s own
testimony at his detention hearing that the prior drug sales occurred within two
No. 07-2313 Page 5
months of the November 28 incident. See United States v. Synowiec, 333 F.3d 786,
790-91 (7th Cir. 2003) (noting that conviction for bribery could be affirmed on basis
of event that occurred one month after “on or about” date alleged in indictment);
United States v. Folks, 236 F.3d 384, 391 (7th Cir. 2001) (affirming § 841 conviction
on basis of activity that occurred almost two months before “on or about” date alleged
in indictment).
United States v. Darmand, 3 F.3d 1578 (2d Cir. 1993), provides the strongest
support for Collins’s position. In Darmand, the defendant was sentenced to a
statutory minimum sentence of ten years under 21 U.S.C. § 841(b) after pleading
guilty. Darmand was charged with conspiracy after he sold crack to an undercover
officer one day in February. The drug quantity used to determine his minimum
sentence, however, included drugs that he was found possessing during a raid the
previous November. The Second Circuit reversed, concluding that the district court
should not have used the November drug quantity in calculating the mandatory
minimum sentence because the court had found that Darmand possessed less than
five grams of cocaine in connection with the February conspiracy charge. 3 F.3d at
1579. In the instant case, however, the district court did conclude that the prior drug
sales were related to the offense leading to Collins’s conviction. And Darmand is
overshadowed by our opinion in Lewis, where the district court included quantities of
crack cocaine from two drug sales besides the one cited in the indictment to arrive at
a mandatory minimum sentence of 50 years’ imprisonment on the conspiracy charge.
AFFIRMED.