United States v. Pittman, Maurice C. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1812
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MAURICE C. PITTMAN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 01 CR 30108—William D. Stiehl, Judge.
____________
SUBMITTED JUNE 10, 2005—DECIDED AUGUST 8, 2005
____________
Before EASTERBROOK, MANION, and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. In December 2002, a federal
court jury convicted Maurice C. Pittman of distributing
approximately 6.3 grams of crack cocaine in violation of 21
U.S.C. § 841(a)(1). The jury also returned a finding that the
amount of controlled substances attributable to Pittman in
the distribution charge was at least 5 grams, but less than
50 grams, of cocaine base. The district court sentenced
Pittman to 390 months’ imprisonment to be followed by a
term of supervised release. On appeal, Pittman challenges
2 No. 03-1812
the district court’s denial of his pretrial motion to suppress,
and the court’s failure to provide a limiting instruction to
the jury. In supplemental briefing to this court, Pittman
also contends that his sentence was unconstitutional. In a
previous opinion in this appeal, we affirmed his conviction
and sentence. That opinion was vacated by the Supreme
Court and the case remanded to this court for reconsidera-
tion in light of United States v. Booker, ___ U.S. ___, 125 S.
Ct. 738 (2005), which impacts our determination of the
sentencing issue.
Pittman’s arrest resulted from a traffic stop, the details
of which form the basis of his motion to suppress. On
June 20, 2001, Sergeant Gillespie of the Alton Police
Department, observed Pittman enter a white Cadillac and
begin driving. Gillespie was aware of Pittman’s prior crim-
inal history for robbery, weapons possession, and cocaine
trafficking, and Gillespie had recently received information
that Pittman was distributing cocaine and crack cocaine in
parking lots in Alton. Gillespie placed Pittman’s vehicle
under surveillance, and noticed that the vehicle did not
have a license plate and contained no visible evidence of
registration. He then contacted the police dispatcher and
requested that a uniformed Alton police officer in a marked
patrol car conduct a traffic stop for failure to properly
display a registration tag. While waiting for the officer to
arrive, Gillespie observed Pittman stop in a liquor store
parking lot. Pittman remained in his car with it running,
and Amanda Schoeneweis emerged from a car parked
nearby and entered Pittman’s vehicle. At that time, a
marked Alton patrol car arrived driven by Sergeant
Jonniece Young, who approached Pittman’s car from the
rear. Young testified that she recognized both Pittman and
Schoeneweis, and was aware that both had lengthy criminal
records. Young further testified that she did not see either
a license plate or a temporary tag on the windshield on
Pittman’s vehicle. As she approached the vehicle, she ob-
No. 03-1812 3
served Schoeneweis lean forward positioning herself below
the dashboard, then returning upright to sit back down.
From that behavior, Young suspected that Schoeneweis was
attempting to conceal something. When Pittman was unable
to produce his license and proof of insurance, Young placed
him under arrest. In the subsequent search, she found $200
cash on Pittman, as well as a dollar bill folded in a manner
indicative of use to transport narcotics, which later tested
positive as containing cocaine residue. She also noted that
a valid temporary registration plate was located inside the
front windshield on the driver’s side.
Schoeneweis was also arrested. She later admitted to
secreting crack cocaine in her body when the officer arrived,
and subsequently removed 6.3 grams of cocaine base from
her body.
Pittman contends that there was no basis for Young to
execute the traffic stop, and therefore that all evidence that
resulted from that stop should have been suppressed. As
support for that, he points to Young’s incident report, in
which Young stated:
Officer was advised by dispatch that Special Agent
Richard Gillespie was currently following a vehicle, a
1994 Cadillac El Dorado, bearing applied-for Illinois
registration.
Pittman contends that the incident report reveals that
Gillespie must have known that the vehicle bore applied-
for Illinois registration, and therefore that Young had no
basis for the stop. On re-direct, Young acknowledged that
another part of her incident report was inaccurate, in which
Young stated that Gillespie told her that Pittman was en
route to Schmidt Liquor Store. Young in fact spoke only to
the dispatcher and did not have direct contact with
Gillespie. Young also acknowledged that the statement in
the incident report concerning the applied-for plates could
be incorrect as well. Gillespie and Young both testified that
4 No. 03-1812
they did not see the temporary registration prior to the time
Young approached Pittman’s car. The district court found
that because of the placement of only one temporary tag in
the lower front window, neither Gillespie nor Young was
able to see any evidence of registration, and therefore they
both had probable cause to believe that Pittman was
committing a traffic violation.
Pittman’s motion to suppress rests entirely on its chal-
lenge to that fact-finding by the district court. We review
the district court’s determination of probable cause de novo,
but review findings of fact and credibility determinations
for clear error. United States v. Cashman, 216 F.3d 582, 586
(7th Cir. 2000); United States v. Sawyer, 224 F.3d 675, 679
(7th Cir. 2000). The testimony at trial at best establishes a
contradiction in Young’s testimony as to when she learned
that the vehicle bore applied-for tags. Young herself ac-
knowledged that another statement in her incident report
could not have been accurate, and that her statement as to
what the dispatcher conveyed regarding the tags may have
also been incorrect. Pittman repeatedly argues that the
district court was required to credit the statement in the
incident report, because “the only place the dispatcher could
obtain the information in Young’s incident report that
Pittman’s car bore an ‘applied-for Illinois registration’ was
from Gillespie.” That misses the point. The question is
whether Young, in writing the incident report, accurately
conveyed what the dispatcher said, or whether she inadver-
tently attributed to the dispatcher information (the ex-
istence of the applied-for license) that she actually learned
at a later time. Her testimony established that she was
unaware of the registration tags until she approached the
vehicle, and she acknowledged at trial that her incident
report could be incorrect. The determination as to what
actually transpired is a matter within the district court’s
purview, and there is no reason on this record to question
the court’s finding on the matter. The record provides ample
No. 03-1812 5
support for the finding that neither Gillespie nor Young
were aware of the registration tags in the front of the
vehicle at the time of the stop. Therefore, the stop was
lawful, and the court properly denied the motion to sup-
press.
Pittman next argues that the district court erred in failing
to provide a limiting instruction after admitting, under Fed.
R. Crim. P. 404(b), evidence of Pittman’s prior drug deal-
ings. Rule 404(b) provides that evidence of other crimes or
acts is not admissible to prove the character of the person
in order to demonstrate action in conformity therewith, but
it may be admissible for other purposes including, inter
alia, proof of motive, opportunity, or intent. In this case, the
government introduced evidence of past drug dealing by
Pittman through testimony by Schoeneweis and by Drug
Enforcement Agency (DEA) Agent Harold Watson.
Schoeneweis testified without objection to her prior drug
dealings with Pittman. She was also asked by the govern-
ment for the identity of other persons to whom Pittman sold
drugs. Over defendant’s objection, she provided two names
and acknowledged that there could be others. DEA Agent
Watson testified regarding Pittman’s confession. Asked if
Pittman provided any information about his drug dealing
history, Watson named several suppliers going back to
1992.
In response to the testimony by Schoeneweis and Watson,
Pittman offered an instruction to limit the jury’s use of the
Rule 404(b) evidence. The district court refused the instruc-
tion, holding that the other acts evidence was intricately
related to the charge in the indictment, and that the
statements by Pittman were an admission against interest.
In this appeal, Pittman first clarified that he is not chal-
lenging the admission of the evidence of drug dealing with
individuals other than Schoeneweis. He is only arguing that
a limiting instruction should have been given. Moreover, he
does not challenge the testimony from Schoeneweis of her
6 No. 03-1812
prior drug dealings with Pittman. Pittman concedes on
appeal that her drug dealings with Pittman were intricately
related to the charge in the indictment, and therefore are
not considered Rule 404(b) evidence. Therefore, his chal-
lenge is limited to the contention that the district court
erred in failing to give a limiting instruction regarding
evidence of drug deals that did not involve Schoeneweis.
We need not consider whether a limiting instruction was
required, because even if the failure to provide the instruc-
tion was error, it was harmless. The submission of an
incorrect jury instruction is harmless error if a properly
instructed jury would have returned the same verdict.
United States v. Folks, 236 F.3d 384, 390 (7th Cir. 2001).
That standard is met here. The evidence of Pittman’s guilt
was overwhelming. Officer Gillespie observed Pittman pull
into the parking lot and wait while Schoeneweis joined him
in the car. DEA Agent Watson testified as to Pittman’s
confession that Pittman in fact provided the crack cocaine
to Schoeneweis in the car, which Schoeneweis secreted in
her body, and that she paid him $130 or $140 for it. The
search incident to the arrest found $200 cash on his person,
as well as a dollar bill folded in a manner often used to
carry crack, and with visible residue of crack cocaine on it
that tested positive in a lab. Furthermore, Schoeneweis, in
her testimony, confirmed the details of that drug transac-
tion, and Officer Young observed movements by
Schoeneweis consistent with someone attempting to hide
drugs in her body. Schoeneweis subsequently removed
6.3 grams of cocaine base from her body after the arrest.
Finally, Schoeneweis testified at length as to her history of
drug deals with Pittman. In light of that evidence, the
testimony that Pittman also engaged in drug dealing with
other persons is insignificant. Pittman does not challenge
the voluntariness of his confession. In light of the over-
whelming evidence of Pittman’s guilt, the failure to provide
a limiting instruction as to the other acts evidence was
harmless.
No. 03-1812 7
Pittman attempts to avoid that conclusion by arguing that
the error was a structural one, not subject to the harmless
error analysis. As support, he cites our decision in United
States v. Harbin, 250 F.3d 532 (7th Cir. 2001). Harbin in
fact requires the opposite conclusion. In Harbin, we recog-
nized that some errors affect the framework in which the
trial proceeds which render the criminal trial fundamen-
tally unfair or an unreliable vehicle for determining guilt or
innocence, and are therefore reversible error per se. Id. at
542-43. Such “structural” errors are few in number, includ-
ing errors such as the complete denial of counsel, a biased
judge, racial discrimination in the selection of the grand
jury, the denial of self-representation, the denial of a public
trial, and a defective reasonable doubt instruction. Id. at
543. We also cautioned in Harbin, however, that most
errors during a trial do not fall within that category. In
particular, we noted that trial errors occurring during the
presentation of the case to the jury are generally amenable
to harmless error analysis because they may be quantita-
tively assessed in the context of the evidence as a whole. Id.
at 544. The alleged error in denying a limiting instruction
is precisely such a “trial error.” Even assuming that the
jury, in the absence of a limiting instruction, used the other
acts evidence for an impermissible purpose, we can assess
whether the jury beyond a reasonable doubt would have
returned the same verdict in light of the other evidence
properly before it. Because the impact of that error on the
trial is capable of assessment at this stage, and the error
did not affect the framework in which trial proceeded or the
fundamental integrity of the trial process, it does not
require automatic reversal. We have already concluded that
the provision of the allegedly improper instruction was
harmless error.
Finally, Pittman alleges that his sentence was unconstitu-
tional under Apprendi v. New Jersey, 530 U.S. 466 (2000)
and Blakely v. Washington, 524 U.S. 296 (2004), as inter-
8 No. 03-1812
preted by United States v. Booker, 375 F.3d 508 (7th Cir.
2004). Our decision in Booker has since been affirmed by
United States v. Booker, 125 S. Ct. 738 (2005). Those cases
hold that a defendant has the right to have a jury decide
factual issues that will increase the defendant’s sentence.
Booker, 125 S. Ct. at 756; United States v. Shearer, 379 F.3d
453, 457 (7th Cir. 2004). Specifically, the Supreme Court in
Booker made clear that “[a]ny fact (other than a prior
conviction) which is necessary to support a sentence ex-
ceeding the maximum authorized by the facts established
by a plea of guilty of a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt.”
125 S. Ct. at 756.
First, Pittman argues that the district court improperly
determined that he was responsible for 251 grams of
cocaine base whereas the jury convicted him of possession
with intent to distribute 6.3 grams and returned a special
finding that he distributed at least 5 but less than 50 grams
of crack cocaine. That type of determination of drug quan-
tity as a part of relevant conduct is the type of error that
has led to reversal of other sentences under Blakely and
Booker. In this case, however, the court’s conclusion regard-
ing drug quantity were irrelevant to his sentence, because
his sentence was based not on that relevant conduct, but
rather on the court’s determination that he was a career
offender. His status as a career offender yielded an offense
level of 37 which is higher than the offense level of 34 that
his relevant conduct produced. Accordingly, his sentence
was based on the career offender determination rather than
the relevant conduct determination of drug quantity.
A defendant is considered a career offender under the
Guidelines if:
(1) the defendant was at least 18 years old at the time
the defendant committed the instant offense of convic-
tion; (2) the instant offense of conviction is a felony that
No. 03-1812 9
is either a crime of violence or a controlled substance
offense; and (3) the defendant has at least two prior
felony convictions of either a crime of violence or a
controlled substance offense.
U.S.S.G. § 4B1.1(b). The jury conviction in this case
established the second factor, but Pittman argues that the
jury did not find, and he did not admit, that he was at least
18 years of age at the time of this conviction and that he
had two prior felony convictions for possession of a con-
trolled substance. Pittman acknowledges that he failed to
raise this argument, or any similar argument in the district
court, and therefore that his challenge should be reviewed
for plain error.
We first consider Pittman’s challenge to the use of the two
prior felony convictions. In Almendarez-Torres v. United
States, 523 U.S. 224, 244 (1998), the Supreme Court held
that prior felony convictions were sentencing factors that
need not be charged in an indictment nor proven beyond a
reasonable doubt because they are not elements of the
charged offense. That decision has not been overruled by
Apprendi, Blakely, or Booker. See United States v. Williams,
410 F.3d 397, 402 (7th Cir. 2005) (concluding that
“[w]hatever commonalities a prior conviction might have
with factors that the Court has since held must be proven
to a jury, the Court’s opinions in Apprendi, Blakely, and
Booker have left the holding of Almendarez-Torres undis-
turbed.”); United States v. Schlifer, 403 F.3d 849, 852 (7th
Cir. 2005). Even post-Booker, then, evidence of a prior
conviction that would increase the statutory maximum does
not need to be submitted to a jury, and therefore the district
court did not err in considering the prior felony convictions.
We note that even absent Almendarez-Torres, Pittman’s
argument would fail because he in fact admitted to those
two prior convictions at the sentencing hearing. See Booker,
125 S. Ct. at 756 (judge may impose sentence based on facts
admitted by the defendant as well as those found by the
jury).
10 No. 03-1812
The remaining factor is whether Pittman was at least 18
years of age at the time of the instant offense. As we noted,
Booker requires that any fact necessary to support a sen-
tence must be either established by a guilty plea or a jury
verdict, or admitted by the defendant or proved to a jury
beyond a reasonable doubt. Booker, 125 S. Ct. at 756;
Schlifer, 403 F.3d at 853. The government argues that
Pittman admitted that he exceeded that age threshold
because the presentence report (PSR) included his age and
Pittman’s attorney acknowledged that there were no factual
errors in the PSR. We need not tarry with whether that is
a sufficient “admission,” because even if it were not, this
could not survive harmless error review let alone plain
error review. Pittman does not assert that he was actually
less than 18 years of age at the time of the offense, only
that the jury rather than the judge should have determined
his age. His argument, then, is that the proper procedures
were not followed, but he never argues that the result
would be different. That fails to meet the plain error
standard in that there is not even an allegation that the
alleged error “affected substantial rights and seriously
affected the fairness, integrity, or public reputation of the
judicial proceedings.” United States v. Stotts, 323 F.3d 520,
522 (7th Cir. 2003). In fact, it would fall short under harm-
less error review as well. The alleged error could not have
impacted the outcome of the sentencing, and therefore
Pittman is entitled to no relief on that claim.
Pittman has one remaining claim, however. In Booker, the
Supreme Court invalidated the mandatory application of
the Guidelines, holding that district courts are obligated to
consider them but are not bound by them. 125 S. Ct. at 767.
That decision applies to all cases pending on direct review,
and accordingly it was error for the district court to treat
the Guidelines as binding. Because the issue was not raised
below, Pittman must establish not only error, but plain
error, in order to obtain relief, which requires a showing
No. 03-1812 11
that the error in treating the Guidelines as mandatory
affected his substantial rights. Williams, 410 F.3d at 403-
04. The record provides no answer to whether the district
court might have sentenced him to a lesser sentence had it
known of the advisory nature of the Guidelines, and
therefore whether the error was one affecting his substan-
tial rights. See United States v. Paladino, 401 F.3d 471, 483
(7th Cir. 2005). In accordance with Booker, we must remand
the case to the district court for that determination. If the
district court indicates that it would be inclined to impose
a lesser sentence, then Pittman will have demonstrated
plain error, and we will vacate the sentence and remand for
resentencing. Williams, 410 F.3d at 404; Paladino, 401 F.3d
at 484. On the other hand, if the district court determines
that it would not be inclined to impose a lower sentence
given the advisory nature of the Guidelines, we will con-
sider only whether the sentence was plainly erroneous in
the sense of being unreasonable. Williams, 410 F.3d at 404;
Paladino, 401 F.3d at 484.
Accordingly, we affirm Pittman’s conviction and find no
plain error in the court’s findings as to his age and prior
convictions. Because the district court sentenced Pittman
believing that the Guidelines were binding rather than
advisory, we order a limited remand for the district court to
determine whether it would be inclined to sentence Pittman
to a lesser sentence given that discretion. We retain
appellate jurisdiction pending the outcome of this remand.
12 No. 03-1812
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-8-05