United States v. Christopher Strode ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1611
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C HRISTOPHER S TRODE,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 06 CR 0082—Sarah Evans Barker, Judge.
A RGUED O CTOBER 29, 2008—D ECIDED JANUARY 14, 2009
Before P OSNER, M ANION, and K ANNE, Circuit Judges.
M ANION, Circuit Judge. After a five-day trial, a jury
convicted Christopher Strode of two counts of conspiring
to possess with the intent to distribute 1,000 kilograms
or more of marijuana in violation of 21 U.S.C. §§ 841(a)(1)
and 846, one count of manufacturing with the intent
to distribute 100 marijuana plants in violation of 21 U.S.C.
§ 841(a)(1), and two counts of money laundering in vio-
lation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and 1957. The
2 No. 08-1611
district court sentenced Strode to 192 months’ imprison-
ment. Strode appeals, challenging his sentence. We affirm.
I.
Strode operated a large-scale marijuana distribution
ring in Indianapolis, Indiana, from 2002 until November
2004. His source of supply was in Phoenix, Arizona,
though he also was in the process of growing large quanti-
ties of marijuana in a house he owned in Indianapolis.
Strode had his associates make numerous trips transport-
ing tens of thousands of dollars in cash to Phoenix, where
they exchanged the cash for marijuana and transported
the marijuana back to Indianapolis. Their preferred
method for hauling the marijuana was using caravans of
rental cars. In early 2003, Strode joined forces with John
Conway, another distributor who had been selling mari-
juana in Indianapolis since 2001, to expand the operation
for shipment of marijuana from Phoenix to Indianapolis.
At trial, several witnesses discussed the quantity of
marijuana that the trips to Phoenix yielded. Conway
testified that, from 2003 to the end of 2004, he and Strode
transported between 20,000 and 30,000 pounds of mari-
juana from Phoenix to Indianapolis. William Askew, an
associate of Conway’s, testified about several trips he made
transporting marijuana with Strode from Arizona to
Indiana. Payton Blackwell, an associate of Strode’s, stated
that Strode paid him a “pound of weed” to transport
$70,000 to Arizona in January 2003. After that first trip,
Blackwell continued to transport large amounts of cash for
Strode. He further stated that, in addition to transporting
No. 08-1611 3
cash, he began escorting the marijuana back to
Indianapolis once a week at the end of March 2003 and,
after he lost his job in August 2003, two to three times a
week. According to Blackwell, he helped Strode transport
marijuana for eleven months, and the smallest load of
marijuana he helped transport was around three
hundred pounds. In addition, Blackwell testified that in
December 2003 he participated in a ten-car caravan trans-
porting marijuana from Phoenix to Indianapolis. Finally,
both John Berndt and Samuel Standard, two of Strode’s
other drug couriers, testified about the multiple trips
they made transporting marijuana on Strode’s behalf.
Berndt made three trips from Indianapolis to Phoenix and
back, transporting over fifty pounds of marijuana in a
rental car each time, while Standard made two.
The government presented hotel, airline, and car rental
records that corroborated the testimony of Conway,
Blackwell, and Askew about many of the trips to Arizona.
The government also presented evidence of several sei-
zures of marijuana and cash by law enforcement officers.
For example, Texas State Trooper Oscar Esqueda testified
that he seized 89 pounds of marijuana from a Ford Taurus
driven by Martin Allen, another of Strode’s couriers.
Allen’s vehicle was part of a three-car convoy transporting
marijuana from Arizona to Indianapolis. On another
occasion, Esqueda stopped Standard and seized 257
pounds of marijuana from the rental car Standard was
driving. Shortly thereafter, another state trooper pulled
over a rental car that appeared to be traveling in tandem
with Standard; Strode was driving that vehicle.
4 No. 08-1611
A grand jury indicted Strode in May 2006 along with six
others, including Conway and Askew. Strode was arrested
but later released pending trial, subject to several condi-
tions. One of the conditions of Strode’s release forbade
contact with any of his co-defendants or potential wit-
nesses. A few months later, on November 3, 2006, Strode
happened upon Conway at the Indianapolis City-County
Building where Conway was attempting to pay his child
support. Despite the court’s no-contact condition, Strode
approached Conway and told him that they needed to
meet to get their stories straight. Later that same day,
Strode, Conway, and Askew met at Glover’s Auto Sales
in Indianapolis. At the meeting, Strode acknowledged
that he was subject to the no-contact order, that they
“ain’t supposed to be havin’ this conversation right
now,” and that if the government found out about their
meeting they could be detained until the end of trial. A
good portion of the protracted and profanity-laced con-
versation among the three was spent attempting to deter-
mine who was talking to law enforcement and how the
government knew so much about their operations.
Throughout the conversation, Strode repeatedly reassured
the others that he was not the source of the snitching.
Unbeknownst to Strode, snitches lay on every side. Both
Conway and Askew had met with federal agents prior
to meeting at Glover’s. The agents had outfitted Conway
with a recording device, and, as a consequence, the entire
conversation at Glover’s was recorded. Caught violating
the no-contact order, Strode had his pretrial release
revoked and was detained through trial. The jury found
him guilty on two marijuana conspiracy counts, one
count of manufacturing marijuana, and two counts of
No. 08-1611 5
money laundering. The jury did acquit Strode, however,
of the 18 U.S.C. § 924(e) violation alleged in count five
of the indictment, which concerned a firearm found at the
house in Indianapolis where Strode had been growing
marijuana.
At sentencing, the district court determined that
Strode’s offense conduct involved between 3,000 and
10,000 kilograms of marijuana and therefore set his base
offense level at 34 under U.S.S.G. § 2D1.1(c)(3). Next, the
district court gave Strode a two-level enhancement for
possession of a dangerous weapon under U.S.S.G.
§ 2D1.1(b)(1). The district court also added a one-level
enhancement under U.S.S.G. § 3C1.1 for obstruction of
justice based on the November 2006 meeting at Glover’s.
After a four-level enhancement for Strode’s leadership
role, the district court arrived at a total offense level of 41,
translating into an advisory guidelines range of 324 to 405
months. Believing that it could not “justify a sentence
within the guidelines given what everybody else has
gotten,” the district court applied the 18 U.S.C. § 3553(a)
factors to reduce Strode’s guidelines range five levels to
188 to 235 months. It then sentenced Strode to a total term
of 192 months’ imprisonment. Strode appeals that sen-
tence.
II.
On appeal, Strode claims the district court erred in
fashioning his sentence in three respects, one involving the
determination of the quantity of marijuana used to calcu-
late his base offense level and the other two dealing with
the enhancements he received for obstruction of justice
6 No. 08-1611
and possession of a firearm. We can quickly dispatch of
Strode’s challenge to the district court’s drug calcula-
tion, which we review under the deferential clear error
standard. United States v. Seymour, 519 F.3d 700, 710 (7th
Cir. 2008). The district court determined that the amount
of marijuana for which Strode was responsible was be-
tween 3,000 and 10,000 kilograms and therefore set Strode’s
base offense level at 34. See U.S.S.G. § 2D1.1(c)(3). Strode
argues on appeal that the district court should have
found only 1,000 to 3,000 kilograms of marijuana, corre-
sponding to a base offense level of 32. See id. § 2D1.1(c)(4).
According to Strode, the district court’s calculation im-
properly relied on Conway’s estimate that 20,000 to 30,000
pounds (or approximately 9,000 to 13,600 kilograms) of
marijuana were involved in Strode’s drug trafficking
conspiracy.
The problem with Strode’s argument is that during the
sentencing hearing his attorney offered an alternative
drug calculation not involving Conway’s 20,000-to-30,000-
pound estimate, yet still came up with a total of 8,000
pounds—or approximately 3,628 kilograms—of marijuana
involved in the conspiracy. The Guidelines require the
district court to make a “reasonable estimate” of the
drug quantity, United States v. Acosta, 534 F.3d 574, 582 (7th
Cir. 2008); Strode conceded in the district court that a
quantity of marijuana around 3,600 kilograms was just
that.1 Said Strode’s attorney at the sentencing hearing:
1
The PSR recommended, and the government contended at
sentencing, that Strode’s offenses involved over 10,000 kilo-
(continued...)
No. 08-1611 7
So when we look at the objective records, Your Honor,
not that we’d rely on one person’s memory or another
person’s memory, assuming that every trip, one-way
trip from Phoenix to Indianapolis was marijuana, and
assuming every round trip was marijuana, it seems to
me, Your Honor, that we were dealing with approxi-
mately 40 to 45 trips.
If we assume that each one of those trips is 200
pounds, that’s approximately—40 times 200 is . . .
8,000 pounds. . . . So everything she has said about the
volume of this is consistent with what we believe
the most accurate amount of pounds is. And so we
believe at a minimum, it’s a guideline level that the
most that’s supported by the evidence would be a
guideline level 34, if not the guideline level 32.2
Strode’s attorney concluded: “And so 3,000 kilos is 6,000-
some pounds, and so we think that is a pretty good
estimate. And we think that that’s what is supported by the
evidence.”
Not surprisingly, Strode now presents to this court a
different estimate—2,800 kilograms. That estimate is based
1
(...continued)
grams of marijuana and therefore merited an offense level of
36. See U.S.S.G. § 2D1.1(c)(2).
2
At the sentencing hearing, Strode offered no method of
calculating the marijuana quantity that would have resulted
in a figure between 1,000 and 3,000 pounds and warranted a
level 32. Instead, Strode argued that he deserved a level 32
simply because that was the level that “everybody in this
case who pled guilty to the marijuana conspiracy” received.
8 No. 08-1611
on 31 trips from Arizona over a 90-week span, with each
trip involving 200 pounds of marijuana. But Strode gives
no explanation of why this new estimate is more accurate
than the one he presented as “the most accurate amount”
to the district court. Much less does Strode now argue that
his previous estimate is not “supported by the evi-
dence”—as he claimed it was—and that the district court
thus erred by relying on it.
In any event, Strode’s new estimate is inconsistent with
the trial testimony. Strode assumes that the conspiracy
involved only one trip from Arizona with marijuana every
2.9 weeks. Blackwell testified, however, that he was
escorting marijuana from Phoenix to Indianapolis once a
week beginning in March 2003, and two to three times a
week starting in August 2003. Thus, we reject Strode’s new
estimate and hold that the district court did not commit
clear error by relying on the conservative estimate of the
drug quantity provided by Strode’s own counsel.
Next, Strode argues that the district court should not
have enhanced his sentence one level under U.S.S.G.
§ 3C1.1 for obstruction of justice.3 Section 3C1.1 provides a
two-level enhancement for a defendant who “willfully
obstructed or impeded, or attempted to obstruct or im-
pede, the administration of justice with respect to the
investigation, prosecution, or sentencing” of the offense
3
The government does not cross-appeal the district court’s
decision to give a one-level enhancement for obstruction of
justice instead of a two-level enhancement as provided
under U.S.S.G. § 3C1.1.
No. 08-1611 9
of conviction. The commentary to § 3C1.1 lists as an
example of obstructive conduct “threatening, intimidating,
or otherwise unlawfully influencing a co-defendant . . .
directly or indirectly, or attempting to do so.” U.S.S.G.
§ 3C1.1 application note 4(a) (2007). The district court
found that Strode attempted to influence the testimony and
defenses of his co-defendants during their conversation at
Glover’s, which violated the court’s no-contact order, and
that the attempt constituted obstruction of justice under
§ 3C1.1. As the district court put it, “So was there in-
timidation? Probably not. Were there threats? No, there
didn’t need to be. But there sure was an orchestration to
get everybody on the same page.”
Although Strode claims that his conversation with
Askew and Conway did not constitute obstruction under
§ 3C1.1 as a matter of law, Strode does not contest that
attempting to influence one’s co-defendants to “stay
strong” and refrain from cooperating with the government
in the face of a federal indictment meets the definition of
“obstruction of justice” contained in § 3C1.1 and the
commentary to that section. Cf. United States v. Wright, 37
F.3d 358, 362 (7th Cir. 1994) (finding telephone call to co-
defendant obstructive where the gist of the message
informed the co-defendant that “if you testify against me,
I will testify against you”); United States v. Robinson, 14 F.3d
1200, 1203-04 (7th Cir. 1994) (finding phone conversation
obstructive where defendant attempted to influence his co-
defendant not to testify for the government). Rather, Strode
challenges the district court’s factual finding that Strode
had such a purpose in mind during the meeting at
Glover’s. Strode claims that the district court misconstrued
10 No. 08-1611
the conversation between Conway, Askew, and himself.
According to Strode, he was not attempting to encourage
his co-defendants to stay strong and prevent them from
cooperating with the government. He characterizes the
meeting as a “mere attempt to discover who is or might be
cooperating.”
We review a district court’s factual findings supporting
a § 3C1.1 enhancement for clear error. United States v.
Dale, 498 F.3d 604, 608 (7th Cir. 2007). In the context of the
recorded conversation at Glover’s, we do not find the
district court’s interpretation of what was said to be
clearly erroneous. Admittedly, the transcript of the con-
versation, as the district court noted, is “not entirely
straightforward.” However, Strode spends a great deal
of effort throughout the conversation attempting to
convince Askew and Conway that he “ain’t said nothin’ ”
and was not cooperating with the government. The district
court reasonably concluded that those assurances were
meant to strengthen Askew’s and Conway’s resolve and
prevent them from cooperating with the government by
conveying that Strode was in this with them. Though
Strode never explicitly stated that he did not want
Askew and Conway to cooperate with the government,
indirectly implying a need for everyone to keep quiet is not
a barrier to an obstruction enhancement. See United States
v. Cherif, 943 F.2d 692, 703 (7th Cir. 1991) (finding that a
letter to a co-conspirator advising her that she did “not
know anything” about their fraudulent scheme was a
“subtle and somewhat clever attempt to tell her, ‘Don’t
spill the beans’ ” and justified a § 3C1.1 enhancement).
No. 08-1611 11
Moreover, the context of the conversation clearly
reveals an obstructive intent. See Wright, 37 F.3d at 362
(noting that allegedly obstructive statement must be
“view[ed] in context”). Strode told Conway that the
purpose for the meeting was so that they could get their
stories straight. Moreover, Strode knew the consequences
if the court caught him meeting with his co-defen-
dants—immediate imprisonment. That Strode knew the
stakes yet chose to meet with his co-defendants anyway
strongly suggests that Strode did not want to see
Conway and Askew simply to shoot the breeze or catch
up on old times. Rather, it suggests a specific business
purpose: to see if he could persuade his co-defendants
not to cooperate with the government by demonstrating
his own loyalty to them. Although his plan did not work
as intended because Askew and Conway had already
turned on him, an unsuccessful attempt suffices under
§ 3C1.1. See United States v. Fuller, 532 F.3d 656, 666 (7th
Cir. 2008). The enhancement was therefore properly
applied.
Lastly, Strode argues that his sentence should not have
been enhanced two levels under U.S.S.G. § 2D1.1(b)(1)
for possession of a firearm. We again apply the clear
error standard of review to assess the accuracy of the
district court’s application of that enhancement. United
States v. Idowu, 520 F.3d 790, 793 (7th Cir. 2008). Section
2D1.1(b)(1) provides: “If a dangerous weapon (including a
firearm) was possessed, increase by 2 levels.” We have
defined “possession” to include firearms possessed by
coconspirators in furtherance of the conspiracy that the
defendant could have reasonably foreseen. Acosta, 534
12 No. 08-1611
F.3d at 588. “Once the government has proved possession,
the defendant must show it is clearly improbable that
the weapon was connected with the offense.” Id.
The district court did not commit clear error by
applying § 2D1.1(b)(1). Indeed, it had its pick of firearms
from which to choose, any one of which was sufficient to
assess the enhancement. There was a firearm that
Blackwell testified he saw in Strode’s BMW; a firearm that
both Conway and Ironn Anderson, another Strode associ-
ate, testified they saw in Strode’s waistband; two
firearms law enforcement officers observed in vehicles
driven by Strode during traffic stops on two separate
occasions; three more firearms law enforcement officers
recovered from homes used by Strode in his drug dis-
tribution operation (not including the loaded weapon
officers found at Strode’s grow house that was the
subject of count five of the indictment); a firearm
found during a search of Strode’s residence; and a firearm
that Askew, Conway, and Blackwell testified Blackwell
pointed at Conway in response to Strode’s order to
prevent Conway from leaving Blackwell’s garage until
Strode arrived to settle a dispute over the proper dis-
tribution of some of the marijuana.
Other than the two firearms found in one of the resi-
dences, Strode makes no claim that the evidence was
insufficient to support an enhancement on the basis of his
possession of those weapons. Nor does Strode argue that
those firearms were unconnected to his drug operations
or that he could not have foreseen them. Instead, Strode
contends that those instances of firearms possession
No. 08-1611 13
suffer from a “credibility problem.” According to Strode,
the jury’s acquittal of him on the charge of possessing
the firearm in the grow house in furtherance of the
marijuana-growing operation shows that the jury found
the other instances of gun possession lacking in “cred-
ibility and probative value.”
That argument has no merit. We do not see how Strode’s
acquittal on that charge sheds any light on what the jury
thought of the other, uncharged acts of gun possession
that came out during the course of trial. Moreover, the
different standards of proof between trial and sentencing
make the jury’s determination irrelevant to the applica-
tion of the § 2D1.1(b)(1) enhancement. Despite the acquit-
tal, although not necessary in this case, the district court
could have permissibly enhanced Strode’s sentence
under § 2D1.1(b)(1) for the weapon that was involved in
the acquitted charge if it found that the enhancement
was supported by a preponderance of the evidence. See
United States v. Watts, 519 U.S. 148, 149 (1997); United
States v. Price, 418 F.3d 771, 788 (7th Cir. 2005). If even the
acquitted conduct was fair game, then the district court
certainly was not prevented from applying the enhance-
ment based on any of the uncharged instances of firearm
possession proved by a preponderance of the evidence
at sentencing.
III.
The district court committed no error in sentencing
Strode. The district court’s drug quantity calculation,
which comported with what Strode’s attorney advanced
14 No. 08-1611
as reasonable in the district court, was not clearly errone-
ous. The district court properly enhanced Strode’s sentence
one level for obstruction of justice based on Strode’s
conversation with his co-defendants in violation of the
court’s no-contact order. And the district court properly
enhanced Strode’s sentence two levels based on the
numerous instances of firearm possession by Strode in the
record. We therefore A FFIRM Strode’s conviction and
sentence.
1-14-09