United States v. Keith Halliburton ( 2019 )

NONPRECEDENTIAL DISPOSITION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
Submitted October 23, 2019
Decided October 23, 2019
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 18-3669
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 17-20028-001
KEITH HALLIBURTON, Sue E. Myerscough,
Defendant-Appellant. Judge.
ORDER
Keith Halliburton conditionally pleaded guilty to possessing with intent to
distribute cocaine base, 21 U.S.C. § 841(a)(1), preserving the right to challenge the denial
of his motion to suppress evidence. See FED. R. CRIM. P. 11(a)(2). In his plea agreement,
he otherwise waived his right to appeal “any and all issues relating to [his] plea
agreement and conviction and to the sentence,” except the voluntariness of his guilty
plea and the effectiveness of the assistance of counsel. Based on his prior drug-felony
conviction, he received the statutory minimum sentence of 120 months in prison and 8
years’ supervised release. See 21 U.S.C. § 841(b)(1)(B).
Halliburton appeals, but his appointed attorney asserts that the appeal is
frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738 (1967).
No. 18-3669 Page 2
Halliburton opposes counsel’s motion. See CIR. R. 51(b). Because counsel’s brief
thoroughly addresses the issues that an appeal of this kind might be expected to
involve, we limit our review to the subjects that counsel discusses and Halliburton’s
response. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
The United States Postal Service intercepted two packages containing 19 pounds
of marijuana addressed to “Lisa Lawis” at an address in Decatur, Illinois. Police officers
obtained a judicial order permitting them to outfit the packages with GPS tracking
devices and breakaway filaments to alert them when the packages were opened.
Officers also obtained an anticipatory warrant allowing them to search any person who
took control over the packages after delivery and any premises (including vehicles) to
which the packages were brought. Various conditions had to be met before officers
could execute the warrant, chiefly, delivery of the packages to “Lisa Lawis” or an adult
accepting delivery on her behalf.
Police officers suspected that Halliburton was the intended recipient. They knew
that he had paid a water bill at the delivery address within the past year, that he had
been associated with another package containing marijuana two years earlier (the
record does not explain the association), and that he was on federal supervised release
for a drug felony. A detective had previously met with, and could identify, Halliburton,
who was living near the delivery address at a halfway house.
A postal inspector dressed as a mail carrier left the packages at the delivery
address after no one inside the residence responded. A short time later, officers
observed Halliburton arrive in a silver Volkswagen and take both packages. They
followed him as he drove across town, pulled into the driveway of another residence,
placed the packages in a white Pontiac van parked there, and then drove away in the
Volkswagen. A police detective pulled him over. After hearing Miranda warnings,
Halliburton admitted that the packages were meant for him and that they contained
marijuana. He was then taken back to the residence where the Pontiac was parked, and
he gave another detective permission to search it. Using Halliburton’s key to unlock the
van, officers found the packages, more marijuana, and cocaine. Halliburton later
confessed to possessing the cocaine and was charged with that offense.
Halliburton moved to suppress any evidence obtained as a result of the search.
Although an evidentiary hearing was scheduled, the parties instead stipulated to the
facts recounted above. A magistrate judge recommended denying the motion, and the
district judge adopted that recommendation over Halliburton’s objection. The district
judge concluded that the search was proper because: (1) the conditions precedent to the
No. 18-3669 Page 3
execution of the anticipatory search warrant had been met; and (2) even if not, the
officers did not need a warrant because they had reasonable suspicion to stop
Halliburton, and he validly consented to the search. Halliburton then conditionally
pleaded guilty, and, after sentencing, appealed.
Counsel notes that, apart from the denial of the suppression motion, Halliburton
waived his right to challenge anything but the voluntariness of his guilty plea and the
effectiveness of his trial counsel’s assistance. When a defendant knowingly and
voluntarily waives his appellate rights in express and unambiguous terms, we will
enforce the waiver. United States v. Campbell, 813 F.3d 1016, 1018 (7th Cir. 2016). Thus,
“[a]n appeal waiver stands or falls with the underlying guilty plea.” United States v. Zitt,
714 F.3d 511, 515 (7th Cir. 2013). Here, Halliburton does not dispute the knowing or
voluntary nature of his guilty plea. As required, counsel consulted with Halliburton
about the risks and benefits of challenging his plea and represents to us that Halliburton
does not wish to withdraw it; counsel therefore appropriately refrains from discussing
the plea’s validity. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012). Because
the guilty plea remains unchallenged, Halliburton’s “clear and broad” waiver forecloses
any appellate arguments he did not expressly preserve. See Campbell, 813 F.3d at 1018.
With respect to the denial of Halliburton’s motion to suppress, counsel assumes
that he could make a nonfrivolous argument that the anticipatory warrant’s conditions
precedent were not met, and therefore officers lacked authority to execute it.
Halliburton raises this argument in his response to counsel’s motion. But counsel
correctly notes that when a district court announces two alternative holdings, an
appellant must overcome both to prevail. See Boogard v. Nat’l Hockey League, 891 F.3d
289, 295 (7th Cir. 2018); United States v. Hatchett, 245 F.3d 625, 644–45 (7th Cir. 2001).
Therefore, counsel assesses whether it would be frivolous to argue that, although
Halliburton consented to the search of the van, the officers lacked reasonable suspicion
to stop him before he did so.
Counsel rightly concludes that this contention would be futile. To justify an
investigatory stop, officers must have a reasonable suspicion, based on “specific and
articulable facts,” that an individual has committed a felony. United States v. Ruiz,
785 F.3d 1134, 1141 (7th Cir. 2015) (quoting Terry v. Ohio, 392 U.S. 1, 21–22 (1968)). Here,
officers not only witnessed Halliburton take the two packages that they knew contained
marijuana, but they were also aware that he was associated with the delivery address
and had a history of drug trafficking. See United States v. Bullock, 632 F.3d 1004, 1013–14
(7th Cir. 2011). Because there was reasonable suspicion to stop Halliburton, and he then
No. 18-3669 Page 4
consented to the search, there is no need to address further Halliburton’s argument that
the warrant’s conditions never materialized.
Halliburton also wishes to argue that the traffic stop was really a custodial arrest
without probable cause because the detective immediately told him to get out of his car,
placed him in handcuffs, and seated him in a police car. As counsel rightly notes,
however, Halliburton waived this argument by stipulating that he was pulled over
pursuant to an “investigatory stop,” see United States v. Lockwood, 789 F.3d 773, 780
(7th Cir. 2015), and by not raising the argument before the district court,
see United States v. McMillian, 786 F.3d 630, 635–36 (7th Cir. 2015). To the extent
Halliburton contends that his trial lawyer’s choice to stipulate was ineffective
assistance, that claim would be best addressed through a collateral proceeding where
Halliburton can develop the record. See Massaro v. United States, 538 U.S. 500, 505–06
(2003); United States v. Flores, 739 F.3d 337, 341 (7th Cir. 2014).
The motion to withdraw is GRANTED, and the appeal is DISMISSED.