United States v. Chatmon, Delbert L. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1520
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DELBERT L. CHATMON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 4:99CR40085-001—David R. Herndon, Judge.
____________
ARGUED FEBRUARY 14, 2003—DECIDED APRIL 4, 2003
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Before FLAUM, Chief Judge, and DIANE P. WOOD and
EVANS, Circuit Judges.
FLAUM, Chief Judge. After a jury trial, Delbert Chatmon
was convicted of conspiracy to distribute more than 50
grams of crack cocaine and was sentenced to life imprison-
ment. He appeals only his sentence. We affirm.
I. BACKGROUND
Chatmon began distributing crack cocaine in Mt. Vernon,
Illinois, during the summer of 1998. In April 1999 Chat-
mon and coconspirators Jermaine Barnett, Paul Bolling,
and Ashanti Watkins drove to Kansas City to purchase
2 No. 02-1520
approximately one kilogram of powder cocaine because
Mt. Vernon was “dry” at the time. Another coconspirator,
Anthony Moore, did not make the trip but did contribute
$10,000, with the expectation that he would get one half of
the kilogram.
As Chatmon and the others returned to Mt. Vernon,
police officers attempted to stop their car. A chase ensued,
ending at Bolling’s house, at which point Chatmon threw
a package out of the car and into the yard. The package was
later determined to contain 988.65 grams of powder cocaine.
A search of the car also turned up a Pyrex dish, two Pyrex
measuring cups, and a box of baking soda.
After their arrests Barnett, Bolling, Moore, and Watkins
all agreed to testify against Chatmon in exchange for a
plea agreement. According to Barnett’s testimony, which
is of particular relevance to this appeal, Chatmon told
him initially that half the kilogram of powder cocaine
was supposed to go to Moore, but prior to arrest Chatmon
changed course and decided that he wanted to cook all
of the cocaine into crack. They therefore stopped at a
Kroger store to buy Pyrex containers and a box of bak-
ing soda. FBI agent Greg Holston testified that the amount
of baking soda purchased was sufficient to cook over one
kilogram of powder cocaine into crack cocaine.
Barnett further testified that in November 1998 he was
at the house of Kim Bolling, Chatmon’s girlfriend, and saw
Chatmon cooking crack in the kitchen. At that time Barnett
also observed a black 9mm handgun on Kim Bolling’s night-
stand, which was in the bedroom that she shared with
Chatmon.
Steve Nevings was Chatmon’s cellmate at the Jefferson
County Jail, where Chatmon was held temporarily follow-
ing his arrest. Nevings testified at trial that Chatman
told him “to tell Jermaine [Barnett] that he know where
he stay, and if he say something to you all that he’s going
No. 02-1520 3
to send some friends from Kansas to ‘F’ up his family.” At
the time Chatmon made this statement, Barnett and Paul
Bolling were only ten feet away. Barnett testified that
not only did he hear Chatmon make the comment, but
a week later, when Barnett passed by Chatmon’s cell,
Chatmon told him not to forget what he had said.
The jury found Chatmon guilty and returned a special
verdict finding that the offense involved more than 50
grams of crack cocaine. The probation officer then recom-
mended holding Chatmon responsible for over 1.5 kilograms
of crack cocaine, which included the 988.65 grams of pow-
der cocaine that were recovered from Paul Bolling’s yard
on the day of the arrest. Chatmon objected to this deter-
mination, claiming that only half of the 988.65 grams
should be counted as crack because the other half was to
be delivered to Moore, who, according to Chatmon, dealt
only in powder cocaine. In response the government
conceded that the original plan was that only half of the
purchase would be cooked into crack but asserted, relying
on Barnett’s trial testimony, that the plan had changed
just prior to arrest. The government also submitted a
number of proffer statements showing that Chatmon
could be held accountable for an additional 3500 grams of
crack cocaine.
After hearing extended arguments from both parties, the
district court agreed with the government that Chatmon
was responsible for over 1.5 kilograms of crack cocaine,
making clear that its finding was based on the trial testi-
mony and not the proffer statements:
There is absolutely no question in the court’s mind that
the amount of cocaine base or crack cocaine in this case
exceeds 1.5 kilograms. The court relies upon the trial
testimony in this matter for this determination. . . . [I]n
doing a quick bit of math with respect to the trial
testimony alone, I can find at least 1538 grams of crack
4 No. 02-1520
cocaine. If you add in the proffers, there’s in excess
of 2300 grams from the proffers alone. So it would
appear that we have well in excess of 3900 grams of
crack cocaine in this case or 3.9 kilograms in excess
thereof. But in any event, we’re well into the range that
puts us at the upper level with respect to the base
offense level in this case, and that is a 38.
The court then enhanced Chatmon’s offense level by 8
points for possession of a firearm, obstruction of justice, use
of a minor, and leadership role. With a criminal history
category of III, this yielded a guidelines sentence of life
imprisonment.
II. DISCUSSION
Chatmon challenges three aspects of his sentence calcula-
tion: (1) the drug quantity determination, (2) the enhance-
ment for obstruction of justice, and (3) the enhancement for
possession of a firearm. As Chatmon conceded at oral
argument, he must prevail on at least two of these three
challenges in order for there to be any effect on his guide-
lines range.
A. Drug Quantity
Our review of a sentencing court’s drug quantity determi-
nation is for clear error, which exists only if we are left
with a “definite and firm conviction that a mistake has
been committed.” United States v. Gutierrez-Herrera, 293
F.3d 373, 375-76 (7th Cir. 2002) (quotations omitted). Here,
the district court concluded that the trial testimony
alone established that Chatmon should be held respon-
sible for over 1.5 kilograms of crack cocaine. Chatmon
challenges this finding, reasserting his position that only
half of the 988.65 grams recovered at the time of arrest
should be counted as crack; the other half, he says, should
No. 02-1520 5
be counted as powder because the plan was to give it
to Moore. We reject this argument because the district
court’s decision to include all 988.65 grams as crack co-
caine is adequately supported by Barnett’s trial testimony.
Specifically, the following exchange occurred between
the prosecutor and Barnett:
Q: What did Mr. Chatmon want to do with those Pyrex
glasses and with that baking soda?
A: Cook the powder cocaine into crack cocaine.
Q: The entire kilo?
A: Yes, sir.
Barnett repeated this information on cross-examination.
Chatmon contends that Barnett’s testimony was inter-
nally inconsistent because he stated both “that Chatmon
was going to cook the entire kilogram into crack . . . and
that Chatmon told him Moore was going to get half of
the kilogram as powder.” These statements do not strike
us as necessarily inconsistent, however; rather, they seem
in line with the government’s position that, though the
original plan was to give half the purchase to Moore,
Chatmon scuttled that plan just prior to arrest. Moreover,
even if one could find some internal inconsistency, it is
not so “blatant” that it would render the district court’s
reliance on Barnett’s testimony clearly erroneous. See
United States v. Clay, 37 F.3d 338, 344 (7th Cir. 1994)
(witness’s testimony was “noticeably not characterized
by the type of blatant internal inconsistency relating to
the degree of a defendant’s drug involvement which
would require attention and resolution before the court
could depend on only one aspect of the account in necessary
derogation of another”). We also note that there is some
question whether Moore might not have cooked his half
of the powder cocaine into crack cocaine anyway. Though
Moore stated in his proffer that he dealt exclusively in
6 No. 02-1520
powder, he testified later at trial that he “was dealing in
cocaine powder plus crack cocaine.”
Chatmon also maintains that the district court failed to
give adequate reasoning for why it was rejecting his
objections to the drug quantity calculation; this failure, he
says, mandates automatic remand under Fed. R. Crim.
P. 32(c)(1). In response the government asserts that
Chatmon forfeited this point because he did not specif-
ically ask the court to give further explanation under
Rule 32(c)(1). We doubt whether this is right, however,
since Rule 32(c)(1) imposes an affirmative obligation on
the sentencing court to make “[f]or each matter contro-
verted . . . either a finding on the allegation or a deter-
mination that no finding is necessary because the con-
troverted matter will not be taken into account in, or will
not affect, sentencing.” Cf. United States v. Li, 115 F.3d 125,
132 n.3 (2d Cir. 1997) (noting intercircuit conflict regarding
whether defendant should be held to have forfeited his right
to allocution if he failed to request that opportunity, given
that Rule 32(c)(3)(C) imposes an affirmative obligation on
the sentencing court to invite allocution).
This is not an issue that we need decide, however,
because Chatmon’s argument fails under any standard
of review. All that is required for the district court to
comply with its obligation under Rule 32(c)(1) is that it
give enough reasoning to allow the reviewing court to
evaluate its decision. United States v. Taylor, 135 F.3d 478,
483 (7th Cir. 1998). Thus, in Taylor we found the district
court’s statement that it “adopt[ed] the factual findings
and guideline application in the presentence report” to be
sufficient under the Rule. Similarly here, the district
court’s explanation, after hearing extended argument
from the parties, that it “relie[d] on the trial testimony in
this matter for . . . determination [of drug quantity]” is
adequate to allow for appellate review, and so we need
not remand for further findings.
No. 02-1520 7
B. Obstruction of Justice
The district court imposed a two-level obstruction en-
hancement under U.S.S.G. § 3C1.1 based on “directions by
Mr. Chatmon for the defendants in this case to flee[,]
an attempt by him to hide the drugs by throwing them
away from the car . . . [and because he] threatened, and
used others to threaten, witnesses in this case.” Chatmon
contends that this was clear error because an obstruc-
tion enhancement cannot be based on flight from arrest
(in this case Chatmon told Bolling to “step on the gas”) or
on attempts to conceal evidence contemporaneously with
arrest. Chatmon is right that the application notes to
§ 3C1.1 exclude such conduct from the reach of the guide-
line, U.S.S.G. § 3C1.1, comment. (n.4(d), 5(d)), but still, the
district court did not commit clear error because Chat-
mon’s conduct of threatening witnesses provides, by it-
self, a basis for the enhancement, id., comment. (n.4(a)).
Chatmon does not dispute the statement attributed to
him—that he would “send some friends from Kansas to
‘F’ up [Barnett’s] family” if he talked to the authorities—but
claims that it was merely “jailhouse bravado,” not a threat.
As Chatmon acknowledges, however, we rejected the same
“jail talk” argument in United States v. Henderson, 58 F.3d
1145 (7th Cir. 1995), holding that whether a defendant’s
conduct “evinced the requisite intent or was merely false
bravado was a credibility determination left to the sound
discretion of the sentencing court.” Id. at 1154. Chatmon
tries to distinguish Henderson by asserting that the dis-
trict court here failed to find “the requisite specific intent
to obstruct justice.” We disagree. Though the court did
not actually say the words “specific intent,” it expressly
found that “there [was] reliable and reasonable testi-
mony . . . that Mr. Chatmon threatened, and used others
to threaten, witnesses in this case.”
8 No. 02-1520
C. Possession of Firearms
In support of this enhancement, the government sub-
mitted various pieces of hearsay evidence, such as a video
interview and a number of proffer statements. The parties
spend much of their briefs discussing whether the dis-
trict court erred in admitting this evidence, whether
the court gave adequate reasoning for its decision, and
whether Chatmon forfeited any argument that the court
should have made further findings because he did not
ask the court to do so below.
We do not find any of these issues relevant, however,
because the district court did not rely on the hearsay
evidence as a basis for the enhancement. Rather, the
court based its decision exclusively on the trial testimony:
The court does find that the testimony of the witnesses
was reliable with respect to the possession of a firearm
during the commission of this offense. While I think it’s
interesting that it wasn’t in his possession at the time
of the arrest, I don’t think that takes away from the
testimony of the others that it was with Mr. Chatmon
at all other times and was seen in the vicinity and next
to the money and drugs and in very close proximity to
the kitchen where drugs were being cooked.
Evidently, the court was referring to Barnett’s testi-
mony that he saw Chatmon cooking crack in Kim Bolling’s
kitchen with a black 9mm handgun nearby, and Ashanti
Watkins’s testimony that Chatmon “generally” carried
a black handgun, about 8 to 10 inches long, throughout
the three years she had known him.
The government asserts that this trial testimony alone
“clearly established possession of a firearm at a specific
time within the charged conspiracy.” Though this is per-
haps not quite the lock that the government makes it out
to be, ultimately, there is enough evidence to infer con-
structive possession. It is true that “mere proximity” to
No. 02-1520 9
a weapon does not establish possession, United States v.
Harris, 230 F.3d 1054, 1057 (7th Cir. 2000), but in this
case there is circumstantial evidence demonstrating con-
trol: the weapon was nearby and in plain view, and was
located in the bedroom that Kim Bolling shared with
Chatmon. See United States v. Starks, 309 F.3d 1017, 1026-
27 (7th Cir. 2002) (upholding firearms enhancement where
defendant was found within reach of a loaded gun and
there was circumstantial evidence establishing that he
was aware of the presence of guns). Also, though Chatmon
is right that Watkins’s testimony did not link him to
any drug activity per se, the fact that he usually carried
a gun at the least lends credence to Barnett’s testimony.
III. CONCLUSION
As we have said, Chatmon needed to prevail on at least
two of his three challenges in order for his guidelines
range to be any different. He has not succeeded on any of
them, and so the judgment of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-4-03