United States v. Jones, Tommy ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1489
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TOMMY E. JONES,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 895—Rebecca R. Pallmeyer, Judge.
____________
ARGUED JANUARY 17, 2006—DECIDED JULY 18, 2006
____________
Before BAUER, ROVNER, and SYKES, Circuit Judges.
BAUER, Circuit Judge. Tommy E. Jones sold crack
cocaine to government agents. He was convicted for this and
for the related act of conspiring to distribute cocaine within
1000 feet of a public housing complex under 21 U.S.C.
§§ 841(a)(1) and 846. On appeal, Jones raises three issues.
First, he claims the district court erred in not dismissing
his indictment according to the Interstate Agreement on
Detainers Act. Second, he argues that there was reversible
error at trial based on evidentiary admissions and the form
of the jury instructions. Third, he challenges the propriety
of his sentencing hearing and the length of his term, which
was set at 300 months. For the following reasons, we affirm.
2 No. 05-1489
I. Background
Between February 2000 and January 2001, Tommy E.
Jones conspired with others to distribute, and possessed
with the intent to distribute, cocaine and cocaine base
in the Rockwell Gardens public housing building located
at 340 South Western Avenue (the 340 Building) in Chi-
cago, Illinois. During that time, narcotic sales in the 340
Building were controlled by the Gangster Disciples, a street
gang to which Jones belonged.
Law enforcement authorities, including agents from the
Department of Housing and Urban Development (HUD),
conducted an investigatory operation at the Rockwell
Gardens public housing complex from March 2000 through
January 21, 2001. During this period of time, law enforce-
ment agents surveilled the gang’s activities and conducted
controlled buys that yielded more than 100 grams of crack
cocaine.
In the early afternoon of May 2, 2000, Jones sold crack
cocaine to a federal agent in a stairwell of the 340 Building.
Special Agent Kenneth Popovits, from HUD, posed as a
laborer from Indiana wanting to purchase crack for redistri-
bution. Working with a confidential informant (CI), Agent
Popovits entered the 340 Building after informing a gang
sentry of their supposed intentions. The gang member
directed them to the building lobby, where Popovits and the
CI were searched and redirected to a stairwell.
When Agent Popovits and the CI got to the stairwell, they
encountered and negotiated with three men. Popovits
recognized two of the men: Michael Zolicoffer and the
defendant. Zolicoffer he knew from prior transactions, but
Jones he recognized from intelligence photos of individuals
that frequented the area. Popovits told the men that he and
the CI each wanted to buy ten bags of crack cocaine. (Each
bag contained one rock of crack and was valued at ten
dollars.) The unknown third man provided the first six bags
No. 05-1489 3
to the CI, but turned to Jones to satisfy the remainder of
the request. Jones completed the CI’s order and then asked
Popovits how much crack he still needed. Popovits told him
ten. Jones then handed him ten small black bags of crack
from a larger baggy. Popovits paid him $100 for his ten
bags and he and the CI then left the 340 Building. The
drugs obtained from Jones tested positive for 4.2 grams of
cocaine base.
On the afternoon of the purchase, Agent Popovits pre-
pared a report of the transaction. In it, he described Jones
as FNU LNU No.17 (First-Name-Unknown Last-Name-
Unknown): black male, six feet, one inch tall, weighing 175
lbs. A few days after his report, Popovits identified Jones in
his operation’s “intelligence file.” The file contained photos
of Rockwell Gardens’ residents that had previously been
arrested by the City of Chicago and the Chicago Housing
Authority police departments. Popovits then gave Jones’s
photograph to fellow agent Fount Hankle, who placed it in
a spread of four other men. Agent Popovits again picked
Jones. He was one-hundred percent certain that Jones was
the second man in the stairwell during the May 2 drug
purchase. This entire identification process took place
outside of the CI’s presence.
On September 17, 2002, Jones and several co-defendants
were charged in a criminal complaint for conspiracy to
distribute heroin, cocaine, and cocaine base in violation of
21 U.S.C. § 846. A grand jury returned an indictment
against Jones on January 16, 2003, charging him with one
count of conspiracy to distribute crack cocaine within 1000
feet of a public housing complex, 21 U.S.C. § 846, and one
count of distribution of crack cocaine within 1000 feet of a
public housing complex, 21 U.S.C. § 841(a)(1). A supersed-
ing indictment was returned with the same charges on
August 21, 2003.
Following the initial indictment, a federal detainer was
lodged against Jones on October 29, 2002. The detainer was
4 No. 05-1489
served at Illinois River Correctional Center in Canton,
Illinois, where Jones was serving time for a state conviction.
The purpose of the notice was twofold: it advised Jones that
he was wanted for trial on the federal charge, and it allowed
him to demand a speedy trial. Jones executed the document
on November 19, 2002, and delivered it to the warden of his
holding institution. He was produced for trial on August 21,
2003.
At trial, the government called four witnesses: Charles
Butts, Jerry Harrington, Willie Mobley, and Michael
Zolicoffer. All four men testified that Jones was a fellow
member of the Gangster Disciples and that he sold crack
cocaine on a daily basis at the 340 Building during the
spring of 2000. Further, testimony was introduced that he
was known to sell crack between late 1999 and mid-year
2000. Harrington, Mobley, and Zolicoffer also stated that all
gang members participated in Nation’s Work, which
involved selling drugs for the collective benefit of the
organization. Additionally, Butts, Harrington, and Zolicoffer
testified that all gang members, including the defendant,
were required to attend gang meetings and work security at
the 340 Building. Butts and Zolicoffer attended these
meetings with the defendant between 1999 and 2000.
Aside from the drug sales, Jones occupied a position of
authority within the Gangster Disciples. Harrington,
Mobley, and Zolicoffer testified that Jones was a Regent,
explaining that he was responsible for managing security
assignments within the gang and leading meetings. Har-
rington also testified that he sold crack cocaine for Jones in
February 2000. During the entire month, Jones supplied
Harrington with 36 dime bags of crack per day. (A dime bag
cost $10 and contained one rock of crack.) Harrington sold
Jones’s supply at night and Jones sold during the day. For
each set of 36 bags that Harrington sold, he paid $300 back
to Jones and kept $60 for himself.
No. 05-1489 5
On February 17, 2004, the jury found Jones guilty on both
counts charged in the superseding indictment. He then filed
post-trial motions challenging the district court’s pretrial
and trial rulings. Judge Pallmeyer denied both motions. On
January 28, 2005, Jones was sentenced to 300 months in
custody. He now appeals (1) the timeliness of his trial, (2)
Agent Popovits’s identification procedure, (3) the district
court’s jury instructions, and (4) the findings made at his
sentencing.
II. Analysis
A. The Interstate Agreement on Detainers Act
Jones first argues that the District Court should have
dismissed the charges against him because the government
violated the Interstate Agreement on Detainers Act (IAD),
18 U.S.C.App. § 2. Because the IAD is a congressionally
sanctioned compact, it is subject to federal construction. See
Alabama v. Bozeman, 533 U.S. 146, 149 (2001). Whether
the District Court erred in denying a motion to dismiss the
indictment based on the application of the IAD is a question
of law that we review de novo. See United States v. Pardue,
363 F.3d 695, 698 (8th Cir 2004).
The IAD is a multi-state agreement that is meant to
“encourage the expeditious and orderly disposition of
[outstanding] charges and determination of the proper
status of any and all detainers based on untried indict-
ments, informations, or complaints.” Art. I, 18 U.S.C.App.
§ 2. A detainer is a notice filed with a prisoner’s institution
of incarceration alerting both he and the institution that
the prisoner is wanted to face criminal charges in another
jurisdiction. Practically, the detainer is a request that the
prisoner be held for the other jurisdiction’s prosecutors or
that the holding institution notify the prosecutors of the
prisoner’s pending release. See United States v. Paredes-
Batista, 140 F.3d 367, 372 (2d Cir. 1998). When a detainer
6 No. 05-1489
is so lodged, the defendant “shall be brought to trial
within one hundred and eighty days after he shall have
caused to be delivered to the prosecuting officer and the
appropriate court of the prosecuting officer’s jurisdiction
written notice of . . . his request for a final disposition to be
made of the indictment. . . .” IAD, art. III(a), 18
U.S.C.App. § 2 (emphasis added). The executed demand
notifies the waiting jurisdiction of the prisoner’s intent to
exercise his right to a speedy trial. At issue here is whether
the demand must actually be delivered to the prosecuting
officer and the appropriate court, or if delivery to a sup-
posed agent is sufficient. The trial court found the former.
Jones argues for the latter.
The leading Supreme Court case on this matter, Fex v.
Michigan, found that the IAD demanded actual delivery.
507 U.S. 43 (1993). Appellant Fex demanded a speedy trial
pursuant to the instructions set forth on his detainer. He
then submitted the request to the warden of his penal
institution, who delayed in forwarding the document to
the United States Attorney and the appropriate district
court. Fex’s legal proceeding did not begin within the
demanded 180 days. In light of these facts, the Supreme
Court interpreted IAD Article III(a) to mean that the 180-
day clock does not start until the demand “has actually been
delivered to the [district] court and prosecuting officer of the
jurisdiction that lodged the detainer against him.” Id. at 52.
This decision was made in full consideration of the two
“ ‘worst-case scenarios’ ” presented by the varying interpre-
tations. In the first case, by emphasizing actual delivery,
the IAD language grants the careless or malicious warden
the power to completely prevent the commencement of the
180-day period by failing to deliver the prisoner’s demand.
In the second case, were delivery to the warden by the
inmate sufficient, negligence by the warden in forwarding
the speedy-trial demand to the appropriate attorney would
preclude prosecution “before the prosecutor even knows it
No. 05-1489 7
has been requested.” Id. at 49-51. The Supreme Court found
the latter scenario to be “significantly worse,” and refused
to dismiss the charges against Fex. Id. at 49.
Jones also chose to exercise his right to a speedy trial, but
his detainer (Form USM-17) was never delivered to the U.S.
Attorney or the district court. After executing his demand,
Jones gave the document to the warden of his holding
facility. The warden then forwarded the detainer to the U.S.
Marshals’ Office for the Central District of Illinois, which
sent it to its counterpart in the Northern District. Where
the detainer went from there, the record does not tell us.
We do know, however, that the warden failed to follow the
instructions on the detainer. Jones’s executed Form USM-
17 instructs the warden to “forward the detainer together
with the Certificate of Inmate Status by registered or
certified mail to the U.S. Attorney for the Northern District
of IL and the U.S. District Court for the Northern District
of IL.” Trial Rec. 639.
Relying on agency theory, Jones argues that delivery
occurred when the detainer was received by the Marshals’
Office in the Northern District. Because the U.S. Marshal
is the authorized agent for service, he reasons, we should
find that it is the authorized agent for receipt, as well. To
support this argument, Jones cites two Ninth Circuit
rulings on the IAD’s standards for delivery. The first is
United States v. Johnson, 196 F.3d 1000 (9th Cir. 1999),
where that Court held delivery to the U.S. Marshals’ office
was sufficient to satisfy the requirements of the IAD.
Johnson, however, turned on the fact that the Form USM-
17 executed by the prisoner specifically instructed the
warden to return the document to the U.S. Marshals’ office.
Id. at 1002-03. The Ninth Circuit reasoned that while the
document was a Marshals’ Service form, it was the U.S.
Attorney that was legally responsible for serving the
detainer on the prisoner and they could not “both designate
a manner for delivery and argue that delivery made in that
8 No. 05-1489
manner is invalid.” Id. at 1003; cf. Paredes-Batista, 140
F.3d at 372-73 (finding 180-day speedy trial timeline not
violated where detainer instructed warden to return
executed form to the Marshals’ Office). That is not this case.
The language of Jones’s Form USM-17 restated the Article
III(a) language of the IAD and directed the warden to mail
the document to the U.S. Attorney and the District Court.
The warden simply failed to follow instructions.
United States v. Collins, 90 F.3d 1420 (9th Cir. 1996), is
the second Ninth Circuit case to which Jones calls our
attention. In Collins, the U.S. Attorney’s Office conceded
that delivery to the U.S. Marshal constituted delivery to the
prosecuting officer. Id. at 1426. But in the instant case the
U.S. Attorney contests this point, and the Collins concession
carries no weight in our review. It means only that the
Court was not called upon to determine both points of
delivery. The Court did, however, reject appellant’s argu-
ment that delivery to the U.S. Marshal was sufficient to
satisfy delivery to the district court. Relying on Fex, the
Ninth Circuit wrote that “[d]elivery to the Marshal . . . did
not constitute delivery to the court because the Marshals
are not agents for the court for purposes of accepting every
request they find thrust upon them.” Id.
The IAD, and the interpretation set forth in Fex, is literal:
the executed detainer is “to be delivered to the prosecuting
officer and the appropriate court.” IAD Art. III(a), 18
U.S.C.App. § 2. This language does not contemplate autho-
rized agents and Jones cannot show that his detainer was
actually delivered to the U.S. Attorney or the District Court.
While this may be a strict rule, the Supreme Court’s
decision in Fex explicitly contemplated a more egregious
error on the part of the warden and found dismissal of the
charges to be an inappropriate remedy. See 507 U.S. at 51-
52.
No. 05-1489 9
B. Eyewitness Identification
Jones next claims that the process by which Agent
Popovits made his eyewitness identification was unduly
suggestive, and this evidence should have been excluded
from trial. The district court’s decision to admit or suppress
such an identification is subject to de novo review. United
States v. Harris, 281 F.3d 667, 670 (7th Cir. 2002).
Eyewitness identification testimony violates a defendant’s
right to due process of law when it creates a “ ‘very substan-
tial likelihood of irreparable misidentification.’ ” Neil v.
Biggers, 409 U.S. 188, 198 (1972) (quoting Simmons v.
United States, 390 U.S. 377, 384 (1968)). To determine if
such a violation has occurred, we must undertake a two-
part analysis. First, we look to see if the identification
process was unduly suggestive. United States v. Rogers, 387
F.3d 925, 936 (7th Cir. 2004) (citations omitted). Second, we
review the totality of the circumstances surrounding the
identification to determine if the identification is reliable
irrespective of the suggestive procedure. Id.
In examining the identification process, we focus on the
manner in which the witness was shown the suspect’s
likeness, reserving criticism for procedures that have been
orchestrated to yield the identification of one particular
suspect. Gregory-Bey v. Hanks, 332 F.3d 1036, 1045 (7th
Cir. 2003); United States v. Traeger, 289 F.3d 461, 473-74
(7th Cir. 2002). For the most part, these suggestive proce-
dures involve the repeated presentation of only one suspect
by the police to a witness, or a lineup in which the suspect
is clearly distinguishable from the other persons. See Israel
v. Odom, 521 F.2d 1370 (7th Cir. 1975). Agent Popovits,
however, worked independently to identify Jones from more
than one hundred possible suspects. There were no other
agents involved in his initial selection, which precludes an
external, suggestive, influence on the process. Further, the
CI, the only other person to have witnessed the transaction
10 No. 05-1489
for the law enforcement agents, was not involved in the
identification process until after Popovits had made his
selection. See Gregory-Bey, 332 F.3d at 1047.
Jones argues, however, that the use of the intelligence file
was substantively flawed and that its repeated consultation
conditioned agent Popovits to expect to see certain persons.
In making this argument he relies primarily on Israel v.
Odom, where we held that the repeated presentation of a
single sketch was unduly suggestive. 521 F.2d 1370, 1373-
74 (7th Cir. 1975). In Odom, we wrote that “ ‘the display of
pictures of the suspect alone is the most suggestive and
therefore the most objectionable method of pre-trial identifi-
cation.’ ” Id. (quoting Kimbrough v. Cox, 444 F.2d 9, 10 (4th
Cir. 1971) (internal brackets omitted)) (emphasis added).
But Jones’s photograph was one of dozens reviewed by
Popovits, and the record tells us that he looked at the
intelligence file twice: once less than a month before the
May 2 transaction, and again two days after the buy. These
two viewings fall short of the psychological conditioning of
which Jones complains.
Even assuming the procedure was suggestive, the totality
of the circumstances indicate the identification was reliable.
In making this determination, we consider five factors:
(1) the opportunity of the witness to view the criminal
at the time of the crime; (2) the witness’ degree of
attention; (3) the accuracy of the witness’ prior descrip-
tion of the criminal; (4) the level of certainty demon-
strated by the witness at the confrontation; and (5) the
length of time between the crime and the confrontation.
Gregory-Bey, 332 F.3d at 1050 (citing Biggers, 409 U.S.
at 199-200).
Agent Popovits is a trained law-enforcement agent
whose sole purpose in entering the drug buy was to identify
the people involved. He had a clear opportunity and time to
view the defendant while making the purchase in the 340
No. 05-1489 11
building stairwell. During the buy he watched Jones
complete the CI’s order, he spoke directly with Jones to
remind him how many bags he needed, and he paid Jones
for the purchase. During this transaction, the two men
stood face to face. Further, in his report made the day of the
sale, Agent Popovits described Jones as being 6 feet, 1 inch
tall, weighing 175 pounds. He erred only in overstating
Jones’s weight by five pounds. Additionally, Popovits
testified to remembering Jones’s droopy eye and puffy
cheeks. Further, Popovits testified that when he identified
Jones on May 11, nine days after the drug buy, he was one-
hundred percent sure Jones was FNU LNU No.17. We
cannot quibble with this certainty, and nine days is a
relatively short delay.
Finally, because Jones failed to substantively address the
adequacy of the in-court identification, we deem this issue
waived. See United States v. Johnson, 859 F.2d 1289, 1294
(7th Cir. 1988) (holding pre-trial and in-court identification
procedures subject to two separate inquiries).
C. Jury Instructions
Jones directs his third challenge towards his jury instruc-
tions. He argues that the district court erred in not requir-
ing the jury to find the exact amount of cocaine attributable
to each defendant beyond a reasonable doubt. When the
underlying question of error is one of law, we review a
district court’s choice of jury instructions de novo. United
States v. Macedo, 406 F.3d 778, 787 (7th Cir. 2005).
At the conclusion of trial, Judge Pallmeyer submitted
the Seventh Circuit Pattern Jury Instructions covering 21
U.S.C. §§ 841(a)(1) and 846, and a special verdict question
for the conspiracy count against the defendant. The special
question, to be answered only if the jury found the defen-
dant guilty of participating in the conspiracy, asked them
to determine if the offense involved one of the following
12 No. 05-1489
amounts of cocaine base: (1) less than five grams; (2) more
than five grams, but less than 50 grams; or (3) 50 grams
or more of cocaine base. The latter question ensures that
the jury determines the relevant statutory maximum and
minimum pursuant to the sentencing requirements of
Apprendi v. New Jersey, 530 U.S. 466 (2000). As per our
established jurisprudence, the district court is then free
to make detailed findings at sentencing that do not disturb
these statutory limits defined by the jury. United States
v. Knight, 342 F.3d 697, 711 (7th Cir. 2003).
We have consistently held that drug quantities are not
elements of the offense, and need not be found beyond
a reasonable doubt. See, e.g., Knox v. United States, 400
F.3d 519, 522 (7th Cir. 2005); United States v. Kibler, 279
F.3d 511, 517 (7th Cir. 2002); United States v. Brough, 243
F.3d 1078, 1080 (7th Cir. 2001). Additionally, in Knight, we
wrote that “[o]nce the jury determines the existence of the
conspiracy, the defendants’ participation in it, and assigns
a type and quantity attributable to the conspiracy as a
whole, it has established the statutory maximum sentence
that any one participant in that conspiracy may receive,”
and thus, Apprendi is satisfied. 342 F.3d at 711. The jury
instructions given in the instant matter fall squarely within
the holdings of these cases.
Jones, however, relies on our decision in United States v.
Rivera to argue that we have, sub silentio, turned a corner
on the drug quantity and type as elements of the offense
issue. 411 F.3d 864 (7th Cir. 2005). He is mistaken. Rivera
was convicted of participating in a conspiracy to distribute
more than five kilograms of cocaine. On appeal, she objected
to the length of her sentence, arguing, inter alia, that she
was a minor participant. In dicta, we suggested that it may
have been proper to request a lesser-included-offense
instruction, “so that the jury could determine whether
Rivera’s objectives were less ambitious, and her knowledge
less extensive, than her confederates (who, the judge found,
No. 05-1489 13
actually distributed more than 150 kilograms or cocaine).”
Id. at 866-67 (emphasis added). This suggested instruction
was designed to provide the jury with an opportunity to
choose between different drug quantities attributable to the
defendant for the purpose of setting the statutory terms of
the sentence, not for determining the ultimate question of
guilt on the offense. Were we to reverse Knox, Kibler,
Brough, et al., we would choose a much more conspicuous
manner to do so.
D. Sentencing
Lastly, Jones attacks his sentencing in three parts. First,
that the district court’s factual findings were clearly
erroneous; second, that the district court improperly relied
upon a prior conviction in imposing his sentence; and third,
that his sentence violated the Due Process Clause of the
Fifth Amendment and the Ex Post Facto Clause.
Jones claims that the district court arrived at his sen-
tence after considering unreliable information and without
making an explicit finding as to his drug quantity, offense
level, and manner of calculating his sentence. We review a
district court’s factual findings at sentencing for clear error,
United States v. Trennell, 290 F.3d 881, 891 (7th Cir. 2002),
and reverse the district court only if, “after reviewing the
entire record, we are left with the firm and definite convic-
tion that a mistake has been made.” United States v. Cross,
430 F.3d 406, 410 (7th Cir. 2005) (citations omitted). In
conducting this review, we note that the district court “must
make an explicit finding as to the drug quantity and the
offense level and how it arrived at the sentence.” United
States v. Fudge, 325 F.3d 910, 920 (7th Cir. 2003).
Because Jones was convicted for conspiracy, the district
court calculated his Guidelines range based upon the
quantity of drugs he could have reasonably foreseen being
distributed by the operation: 1.5 kilograms. Rivera, 411
14 No. 05-1489
F.3d at 866. Jones argues, under Fudge, that this aggregate
amount was fashioned from conflicting testimony, and that
the district court’s ruling on the amount did not sufficiently
resolve the conflict. 325 F.3d at 920; United States v.
McEntire, 153 F.3d 424, 435 (7th Cir. 1998). He complains
that the witnesses failed to agree on the exact day of the
month the Gangster Disciples held Nation’s Days or when
and how often Jones sold crack. But this argument misses
the point. During the sentencing hearing, the district court
pointed out that while the witnesses” . . . might not have
been specific about when nations days [sic] were, . . . nobody
said there was no such thing as nations days [sic]. The
testimony about what nations days [sic] were and why they
were was wholly consistent.” Sentencing Hr’g Tr. 39, Jan.
28, 2005. And it was this why that was important to Jones.
It was the why that linked him to the greater conspiracy.
After weighing Jones’s knowledge of the gang’s collective
drug sales, the district court calculated the 1.5 kilograms
attributable to their efforts. In doing so, the district judge
explicitly considered the credibility of Jerry Harrington
and Willie Mobley. She noted that their testimony was
consistent and corroborative, and sufficient to prove, beyond
a reasonable doubt, that 1.5 kilograms was reasonably
foreseeable to the defendant. Sentencing Hr’g Tr. 42, Jan.
28, 2005. Later in the Sentencing Memorandum, the court
wrote:
Even if, contrary to the testimony of several witnesses,
Mr. Jones was not on the premises every day, his
presence even occasionally surely would have permitted
him to recognize the volume of GD crack cocaine sales.
Even as few as two sales per day of 4.2 grams of crack
would mean that the conspirators sold more than 1.5
kilograms of crack in a seven-month period. There was
substantial credible testimony that on most if not all
days, there were not just two, but dozens of such sales
at the 340 Building.
Sentencing Memorandum, 4.
No. 05-1489 15
Lastly, pursuant to U.S.S.G. § 3B1.1(c), the district
court gave Jones a two-point enhancement for being a
Regent. Jones argues that the witnesses never agreed
if Jones occupied this leadership role. At trial however,
three witnesses testified that Jones had been a Regent; they
disagreed only as to the timing of this distinction. The
district court took these corroborating statements into
account and discounted the contradictory testimony offered
by Richard Epps. Further, the court noted that “Mr. Jones
recruited others, and there was also testimony concern-
ing persons who sold for Mr. Jones for at least a short
period of time.” Sentencing Hr’g Tr. 54, Jan. 28, 2005. The
fact that he was found to occupy the role for a short while
was reflected in the court’s decision to add only two points
under 3B1.1(c), not the three points requested by the
government under 3B1.1(b). While the district court could
have been more explicit in its findings regarding which
testimonial evidence it was citing and why, after reviewing
the record, we cannot say that we are left with the “ ‘firm
and definite conviction that a mistake has been made.’ ”
Cross, 430 F.3d at 410.
Jones next argues the court erred by relying on a subse-
quently overturned conviction when determining his
sentence. Were this the case, he would be entitled to a
new sentencing hearing—defendants have a due process
right to be sentenced on the basis of accurate information.
United States v. Tucker, 404 U.S. 443, 447 (1972). But relief
is only granted where the information before the sentencing
court was inaccurate, and the court relied on the misinfor-
mation in passing sentence. United States ex rel. Welch v.
Lane, 738 F.2d 863, 865 (7th Cir. 1984).
At the sentencing hearing, Jones made a statement
seeking leniency from the district court. He denied being a
gang member and explained that he was, instead, a “family
man.” Sentencing Hr’g Tr. 75, Jan. 28, 2005. The district
court rejected this claim out of hand for two reasons. First,
16 No. 05-1489
the court noted that while he had a daughter, he had not
been supporting her. Second, the court reviewed his prior
conviction for the aggravated sexual abuse of a minor. This
conviction, however, was later overturned by the Illinois
Appellate Court. People v. Jones, No. 1-02-1623, slip op. (Ill.
App. May 27, 2005).
That the sentencing court considered inaccurate infor-
mation is not in doubt. But Jones cannot show that the
inaccurate information was relied on in passing sentence. In
ex rel Welch v. Lane, our definitive case on this matter, the
sentencing judge mistakenly believed that one of the
defendant’s convictions for robbery was a conviction for
armed robbery. The judge then noted that this (miscon-
strued) conviction was a “significant factor in the Court’s
determination of the sentence.” 738 F.3d at 864. In the case
before us, however, the sentencing court considered Jones’s
subsequently overturned conviction but gave it
no significant consideration. The conviction was raised
as a secondary attack on the assertion that he was a family
man only after the judge initially noted that Jones failed to
support his own daughter. Further indication that the prior
conviction was not relied upon in sentencing is indicated by
the judge’s statement made before calculating the Guideline
term: “What I have before me, though, is not those other
matters. It’s whether I should impose the guideline sentence
[sic] that is based upon the offense conduct in this case.”
Sentencing Hr’g Tr. 78 (emphasis added).
Finally, we find Jones’s argument that his sentence
violated the Fifth Amendment Due Process Clause and the
Ex Post Facto clause without merit. In United States v.
Jamison, 416 F.3d 538, 539 (7th Cir. 2005), we held that
Booker’s remedial holding offers no ground for an ex post
facto claim. This ruling was recently reiterated in two of our
opinions: United States v. Farris, 448 F.3d 965, 968 (7th
Cir. 2006); United States v. Hale, 448 F.3d 971, 988-89 (7th
Cir. 2006). Jones is correct in noting that we “have signaled
no interest in reconsidering [this] rule.” Def. R.Br. at 4.
No. 05-1489 17
III. Conclusion
For the foregoing reasons we AFFIRM the decision of the
district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-18-06