United States v. Trice, Wilfred ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-3347, 05-3349, 05-4169
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILFRED TRICE, JABAR R. SMITH,
and JEFFREY MCREYNOLDS,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 05-CR-22—John C. Shabaz, Judge.
____________
ARGUED FEBRUARY 21, 2007—DECIDED APRIL 30, 2007
____________
Before EASTERBROOK, Chief Judge, and FLAUM and
SYKES, Circuit Judges.
FLAUM, Circuit Judge. Wilfred Trice, Jabar Smith, and
Jeffrey McReynolds pleaded guilty to conspiracy to
possess with intent to distribute fifty grams or more of
cocaine base in violation of 21 U.S.C. §§ 841(a) and 846.
The district court sentenced the defendants to 264, 294,
and 235 months in prison, respectively. McReynolds
appeals his conviction, and all three defendants appeal
their sentences. For the following reasons, the Court
affirms the conviction and sentences.
2 Nos. 05-3347, 05-3349, 05-4169
I. Background
In 1999, the Dane County, Wisconsin Narcotics and Drug
Task Force began investigating a drug conspiracy that
involved Smith and Trice. The investigation led to a
January 2001 search of a Fitchburg, Wisconsin apartment,
where Smith and Trice stored and trafficked their drugs.
Police recovered 150 grams of heroin, 236 grams of cocaine
base, a firearm and ammunition, and $20,000 in cash. As
the investigation continued in late 2001 and early 2002,
undercover agents purchased cocaine base from all three
defendants on a number of occasions, and a confidential
informant gave police further information about the
defendants’ drug trafficking activity. On February 16,
2005, a grand jury indicted the defendants for, among
other things, conspiring to distribute fifty or more grams
of cocaine base.
A. Smith
On May 26, 2005, Smith pleaded guilty to the conspiracy
charge. Shortly afterwards, the probation department
issued a pre-sentence investigation report (PSR), which
found Smith responsible for conspiring to distribute
more than 1.5 kilograms of cocaine base and recommended
a base offense level of 38 under the Sentencing Guidelines.
A two-level increase for possession of a firearm, a three-
level reduction for acceptance of responsibility, and a
criminal history category of III resulted in a proposed
Guidelines range of 262-327 months. Smith told the
probation officer that he had never held a verifiable job
and that he had been helping out with his father’s plumb-
ing business and doing odd jobs before his arrest. He
conceded that most of his money came from drug traffick-
ing and that no physical or mental restriction prevented
him from working full time.
Nos. 05-3347, 05-3349, 05-4169 3
Prior to imposing Smith’s sentence, the district court
evaluated the sentencing factors outlined in 18 U.S.C.
§ 3553(a). It acknowledged the letters it received from
Smith’s family and friends and noted that Smith was a
young defendant, who grew up in a stable home, but
dropped out of high school because he began having
children. The court also cited Smith’s absence of employ-
ment history, noting that there was “no requirement
that he refuse employment.” Based on Smith’s criminal
history and poor adjustment to probation supervision, the
district court concluded that Smith represented a signifi-
cant recidivism risk and sentenced him to the middle of
the Guidelines range, 294 months.
B. Trice
On May 27, 2005, Trice pleaded guilty. The probation
department issued a PSR, which found him responsible for
distributing 1.5 kilograms or more of cocaine base and
recommended a base offense level of 38. It also recom-
mended a two-level increase for possession of a firearm, a
three-level reduction for acceptance of responsibility, and
a criminal history category of II, resulting in a proposed
Guidelines range of 235 to 293 months. The PSR also noted
that Trice was raised in three different foster homes, never
held a verifiable job, and relied on drug trafficking pro-
ceeds as his sole means of support.
At the sentencing hearing, Trice’s attorney argued for
a sentence at the lowest end of the Guidelines range,
noting his client’s unstable upbringing, an insignificant
criminal history, and numerous letters of support indicat-
ing that Trice was a loving father who took parenting
seriously. In imposing a sentence of 264 months, the
district court noted Trice’s numerous arrests as well as his
decision not to go to school, find work, or have a family
life. It also recognized that Trice conspired with others to
4 Nos. 05-3347, 05-3349, 05-4169
distribute a “significant amount” of heroin and cocaine
base in the Madison area and that a sentence in the
middle of the Guidelines range was necessary to prevent
Trice from returning to the streets and dealing drugs in
the future.
C. McReynolds
On August 10, 2005, McReynolds pleaded guilty. His
plea agreement stipulated that he conspired to deliver
crack cocaine, as provided in the notes to the drug quantity
table found in § 2D1.1(c) of the Guidelines, and he con-
firmed at his change of plea hearing that he sold “crack”
cocaine.
On September 14, 2005, the probation department
issued a PSR, which found that McReynolds’s relevant
conduct involved 1.5 or more kilograms of cocaine base and
recommended a base offense level of 38. With a two-level
increase for possession of a firearm and a three-level
reduction for acceptance of responsibility, the PSR pro-
posed a total offense level of 37. Two weeks later,
McReynolds filed an objection to the PSR, arguing that the
government offered little or no evidence tying him to the
drugs sold during the early stages of the conspiracy and
no evidence that he was responsible for the conspiracy’s
use of a firearm. The probation department agreed and
reduced its proposed total offense level to 33. Given
McReynolds’s criminal history category of IV, the PSR’s
recommended Guidelines range was 188 to 235 months.
At the sentencing hearing, the district court said there
was nothing unusual about McReynolds’s case and found
“no justification whatsoever” for providing leniency. The
court noted that McReynolds came from a good family
but declined the opportunity to get more education and
that he was in good health but never held regular employ-
Nos. 05-3347, 05-3349, 05-4169 5
ment. The court also found that the conspiracy took place
over a long period of time and involved a significant
amount of cocaine base. The court then sentenced
McReynolds to 235 months, the top of the Guidelines
range.
II. Analysis
The Court reviews a sentencing court’s factual findings
for clear error and its legal conclusions de novo. See United
States v. Jones, 313 F.3d 1019, 1021 (7th Cir. 2002). Where
a defendant does not raise a particular objection in the
district court, our review is for plain error. See United
States v. Lee, 399 F.3d 864, 866 (7th Cir. 2005). Under that
standard, the defendant has the burden of proving an
error that is obvious and that affects substantial rights.
Id. If all three conditions are met, then this Court may
exercise its discretion to address the error, but only if the
error affects the fairness, integrity, or public reputation of
judicial proceedings. Johnson v. United States, 520 U.S.
461, 467 (1997).
A. Smith
Smith contends that the district court erred by increas-
ing his sentence based on an unsupported factual finding
that he refused legitimate employment. Because Smith did
not object below, our review is for plain error. See Lee, 399
F.3d at 866. Smith premises his argument on a statement
in the middle of the district court’s discussion of the
§ 3553(a) factors, in which it said, “This is a case where
the defendant made his own decisions. No coercion, no
requirement that he refuse employment. He’s 24 years of
age, has three children, a nonexistent employment history.
He relied on drug trafficking proceeds as his primary
means of support.”
6 Nos. 05-3347, 05-3349, 05-4169
The tenor of the district court’s statement was that
Smith never held a legitimate job, even though nothing
(like a disability) prevented him from working. This was
hardly a controversial proposition given the undisputed
fact, laid out in the PSR, that Smith suffered from no
physical or mental disabilities. Nevertheless, Smith
maintains that the district court committed plain error
when it made this remark, because it suggested that
Smith refused employment. This argument is meritless.
Putting aside the question of whether the district court’s
statement was a factual finding that needed record
support, see United States v. Orozco-Vasquez, 469 F.3d
1101, 1108 (7th Cir. 2006) (stating that certain observa-
tions about the § 3553(a) factors are not factual findings
but statements made as part of “an evaluative process
by which the judge considers the particular statutory
factors which inform the sentence he has decided to
impose”), the district court did not find that Smith refused
employment. Rather, it found that there was no physical
or mental limitation that kept Smith from getting a job.
The record adequately supported this finding.
B. Trice
Trice argues that his Guidelines range sentence was
unreasonably harsh for a number of reasons. A sentence
within a properly calculated Guidelines range is presump-
tively reasonable. See United States v. Mykytiuk, 415 F.3d
606, 608 (7th Cir. 2005). Trice did not request a non-
Guidelines sentence in the district court, and he concedes
that our review is for plain error. See United States v. Lee,
399 F.3d 864, 866 (7th Cir. 2005).
Trice first contends that if a Guidelines range sentence
is presumptively reasonable and if 18 U.S.C. § 3553(a)
requires a sentence to be no greater than necessary to
meet the purposes of sentencing, then a district court is
Nos. 05-3347, 05-3349, 05-4169 7
always obliged to sentence a defendant at the low end of
the Guidelines range. We reject this argument. The
presumption of reasonableness that this Court applies
when reviewing a district court’s sentence does not require
a district court to conclude that every sentence within a
defendant’s Guidelines range is a reasonable one. Indeed,
the presumption we apply reflects the fact that district
courts examining the countless Guidelines and non-
Guidelines factors involved in sentencing will come to
different conclusions about what sentence is appropriate
but no greater than necessary. Though our presumption
recognizes that the Guidelines provide a range of generally
acceptable sentencing outcomes, it does not require a
district court to conclude that the low end of the Guide-
lines range is appropriate for every defendant. Such an
approach would ignore the individual facts that make
certain crimes more (or less) reprehensible—facts that
a district court is best suited to analyze through live
testimony. If the district court, as in this case, supports its
Guidelines-range sentence with cogent reasons and
specific facts grounded in the § 3553(a) factors, we will not
disturb its ruling. See, e.g., United States v. Lopez, 430
F.3d 854, 857 (7th Cir. 2005).
Trice next argues that the district court put too much
emphasis on the Guidelines, treating them as “a super-
sentencing factor.” We reject this argument as well.
Justice Breyer’s remedial opinion in United States v.
Booker, 543 U.S. 220, 259-60 (2005), makes clear that a
district court must consider the Guidelines range as part
of its sentencing analysis and that to do otherwise
would constitute reversible error. Trice’s real complaint
is that the district court did not agree with his reasons
for a more lenient sentence—his disadvantaged childhood
8 Nos. 05-3347, 05-3349, 05-4169
and three young daughters.1 The district court, however,
explicitly addressed these factors (which are hardly
unique to defendants facing significant drug sentences)
and concluded that they were outweighed by the need for
individual and societal deterrence. Because the district
court considered the defendant’s arguments and sup-
ported its decision with concerns outlined in § 3553(a), it
did not abuse its discretion, let alone commit plain error.
See United States v. Filipiak, 466 F.3d 582, 583-84 (7th
Cir. 2006) (rejecting the defendant’s reasonableness
challenge where the district court considered mitigating
factors, including the defendant’s restitution, remorse, and
intelligence); United States v. Williams, 436 F.3d 767, 768-
69 (7th Cir. 2006) (rejecting the defendant’s reasonable-
ness challenge where the district court considered mitigat-
ing factors, including the defendant’s particularly trau-
matic experiences as a youth). Indeed, we would uphold
the district court’s sentence as reasonable even if we
had not presumed it to be so. See, e.g., United States v.
Bullion, 466 F.3d 574, 577 (7th Cir. 2006).
C. McReynolds
McReynolds’s attorney has filed an Anders brief, arguing
that there is no issue of arguable merit to present on
appeal. The attorney maintains that the district court held
a thorough plea colloquy and that McReynolds entered the
plea freely, voluntarily, and knowingly. Counsel also states
that the district court adopted the offense level that
McReynolds requested and sentenced him within the
1
Trice also maintains that the district court placed insufficient
weight on his acceptance of responsibility, but that factor was
already reflected in Trice’s Guidelines range. The district court
was not required to consider the factor again as part of its
§ 3553(a) analysis.
Nos. 05-3347, 05-3349, 05-4169 9
applicable Guidelines range. In response, McReynolds
has filed his own brief, arguing that his attorney acted
unreasonably by not advising him that sentences for
crack distribution are harsher than sentences for cocaine
powder distribution. Had his attorney so informed him,
McReynolds contends, he would not have pleaded guilty
because crack is scientifically no different than cocaine.
To prove ineffective assistance of counsel, a defendant
must show that his attorney’s performance was objectively
unreasonable and that the performance prejudiced him.
See Strickland v. Washington, 466 U.S. 668, 688, 691-
92 (1984). Assuming for purposes of argument that
McReynolds’s attorney acted unreasonably by not advising
him about the different sentences for crack and cocaine
powder, McReynolds has not shown that his attorney’s
performance prejudiced him. This lack of information
could not have rendered McReynolds’s plea involuntary,
because the crack/cocaine powder issue is a sentencing
matter and would have been irrelevant to a trial on
whether McReynolds conspired to distribute a controlled
substance. See United States v. Gray, 182 F.3d 762, 768
(10th Cir. 1999) (“We . . . reject appellant’s claim that his
counsel’s failure to request the government preliminarily
to prove a sentencing matter somehow made his plea
involuntary.”) Along the same lines, McReynolds has not
shown that knowing about the crack/cocaine sentencing
disparity would have affected his sentence. He bears
the burden of proving that his sentence would have been
different had his attorney acted reasonably, see United
States v. Johnson-Wilder, 29 F.3d 1100, 1104 (7th Cir.
1994), but he has not offered evidence—or even alleged—
that the substance he possessed was cocaine powder. See
Gray, 182 F.3d at 768 (“Having failed to claim the exis-
tence of evidence that the drug involved was not crack,
appellant cannot meet the prejudice prong of his inef-
10 Nos. 05-3347, 05-3349, 05-4169
fective counsel claim.”). Consequently, his ineffective
assistance claim is meritless.2
McReynolds also maintains that his attorney acted
unreasonably by not advocating for a sentence at the low
end of the Guidelines range. We reject this argument as
well. McReynolds does not suggest that his attorney
should have submitted additional information in support
of an argument for a different sentence, and there is no
reason to believe that the district court would have
sentenced McReynolds differently based on a bald request
for leniency. McReynolds discusses how he would have
weighed the § 3553(a) sentencing factors if he were the
district court judge and why twenty-year drug sentences
are absurd, but his policy arguments concerning the
utility of long drug sentences—though sensible to some—
do not speak to his attorney’s ineffectiveness. Nor do they
speak to our review of the district court’s reasonable-
ness determination.
Finally, McReynolds argues that the 100:1 crack to
cocaine sentencing ratio violates the Equal Protection
Clause and that the district court violated Rule 11 of the
Federal Rules of Criminal Procedure by not informing
him about the ratio. Neither argument has merit. Courts
have repeatedly rejected equal protection challenges to
the crack/cocaine sentencing disparity. See, e.g., United
States v. Spears, 469 F.3d 1166, 1172 n.4 (8th Cir. 2006)
(collecting cases); United States v. Jones, 54 F.3d 1285,
1294 (7th Cir. 1995). Additionally, Rule 11 requires a
district court to inform a defendant who is pleading guilty
of “the nature of the charge” against him. It does not
require the court to inform the defendant how that charge
2
Though McReynolds argues that cocaine and crack are
scientifically indistinguishable, that is simply not true. See
United States v. Booker, 260 F.3d 820, 823-24 (7th Cir. 2001).
Nos. 05-3347, 05-3349, 05-4169 11
compares to other similar charges. See United States v.
Serrano, No. 02-1167, 57 Fed. App’x 12, 15 (2d Cir. 2002)
(rejecting defendant’s contention that Rule 11 required
the district court to advise the defendant of the 100:1
crack to cocaine sentencing disparity); United States v.
Peterson, No. 01-1173, 48 Fed. App’x 348, 349 (2d Cir.
2002) (same).
III. Conclusion
The Court affirms McReynolds’s conviction and all three
defendants’ sentences.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-30-07