United States v. Tyree M. Neal, Jr. ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2976
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TYREE M. NEAL, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 4:14-cr-40076 — J. Phil Gilbert, Judge.
____________________
ARGUED OCTOBER 2, 2018 — DECIDED OCTOBER 22, 2018
____________________
Before BAUER, KANNE, and SCUDDER, Circuit Judges.
PER CURIAM. At sentencing Tyree M. Neal, Jr. asserted that
he was not guilty of conspiring to distribute cocaine because
the facts, as he saw them, did not demonstrate that he agreed
with others to buy and sell cocaine. The district court re-
sponded by observing that Neal had already pleaded guilty
and in doing so conceded that the government’s factual prof-
fer sufficed to prove the offense of conspiracy. So the court
2 No. 17-2976
proceeded to sentencing and imposed a term of 30 years’ im-
prisonment, reflecting the scale of the drug-distribution con-
spiracy as well as Neal’s violent conduct while resisting ar-
rest, obstruction of justice, and extensive criminal history. On
appeal Neal contends that the district court should have
treated the reservations he expressed at sentencing as a mo-
tion to withdraw his plea. We affirm, as the record shows not
only that Neal voluntarily pleaded guilty, but also that there
was a sufficient factual basis to support the plea.
I
Neal pleaded guilty to conspiracy to sell cocaine in viola-
tion of 21 U.S.C. § 846. At the plea colloquy, the court ex-
plained that the conspiracy charge alleged that Neal did
“knowingly, intentionally combine, conspire, and agree with
other persons known and unknown to the Grand Jury to
knowingly distribute a mixture and substance containing co-
caine.” With his counsel present, Neal confirmed that he un-
derstood the charge as well as his constitutional right to con-
test it by proceeding to a jury trial. The government then prof-
fered its factual basis for the charge, which included the rep-
resentation that Neal “oftentimes” bought and sold large
quantities of cocaine on credit—what the government called
“fronts”:
Your Honor, if this case were to proceed to trial
the government would prove beyond a reason-
able doubt that during the time of the charged
conspiracy the defendant was involved with nu-
merous other persons in the unlawful distribu-
tion of cocaine in Williamson County in the
Southern District of Illinois. Some of the evi-
No. 17-2976 3
dence would include that the defendant sold co-
caine to a confidential source on multiple occa-
sions in 2012. After those buys a search warrant
was issued and executed, and agents recovered
a large amount of United States currency which
included some of the prerecorded buy money.
The evidence would be that after that incident
the defendant gave a statement to agents and he
admitted that he was getting 4-ounce amounts
of cocaine once or twice a week for the past
three years from, quote, BB, end quote, in Eff-
ingham.
There would be other evidence in 2014 a differ-
ent CS made purchases of dealer amounts of co-
caine from the defendant. That CS indicated
that he or she had regularly been obtaining co-
caine from Neal, from the defendant, and that
the defendant would not sell anything less than
an eight-ball. There would be multiple other
witnesses in addition to the two CSs who indi-
cated they purchased dealer amounts of cocaine
from the defendant. The evidence would be that
oftentimes the cocaine was either obtained or
provided on fronts.
In response to the district court asking whether the factual
proffer was accurate, Neal paused, saying, “Not all of it.”
Neal’s counsel took the response to mean that Neal had res-
ervations with the government’s statement that he bought co-
caine from “B.B.” After a brief recess to permit consultation
with his counsel, Neal no longer vacillated. When the court
asked anew if the government’s factual proffer was correct,
4 No. 17-2976
Neal replied, “Yes.” The court, too, found the proffer suffi-
cient and accepted Neal’s guilty plea.
Neal then appeared to backpedal at sentencing. The dis-
trict court asked Neal if he had any objections to the Presen-
tence Investigation Report. Neal responded by saying, “I
don’t think I have a conspiracy like by myself. Like, I don’t
know how I could do that, conspire by myself? … I don’t have
no—any co-defendants or anything. I don’t know how I’d
conspire—like a conspiracy, I thought it takes more than one
person?”
The district judge reacted by asking Neal if he recalled
pleading guilty under oath. When Neal acknowledged the
prior plea, the court observed, “[t]hat ship has sailed,” and
then moved forward with sentencing, ultimately imposing a
term of 360 months’ imprisonment. The lengthy sentence re-
flected the substantial quantity of cocaine involved in the con-
spiracy as well as Neal’s lengthy criminal history, attempt to
hire someone to kill two potential witnesses, efforts to avoid
arrest by carjacking a vehicle occupied by a woman and three
children, and reckless endangerment during flight by acceler-
ating his vehicle toward a police officer and then ramming
into another police vehicle.
II
Neal contends that the district court abused its discretion
by not allowing him to withdraw his guilty plea. First, he as-
serts that his objection at sentencing to the PSR’s factual basis
should have been treated as the functional equivalent of a pro
se motion to withdraw his guilty plea. Second, Neal argues
that the district court should have granted this motion be-
cause the conspiracy charge lacked an adequate factual basis.
No. 17-2976 5
A defendant may withdraw a guilty plea by moving to do
so (orally or in writing) before the court imposes a sentence,
and providing a “fair and just reason” for the withdrawal.
Fed. R. Crim. P. 11(d)(2)(B); United States v. Bennett, 332 F.3d
1094, 1099 (7th Cir. 2003). Ordinarily we review such a motion
for abuse of discretion. United States v. Silva, 122 F.3d 412, 414–
15 (7th Cir. 1997). If a defendant fails to move to withdraw the
plea, however, we review only for plain error. See United
States v. Arenal, 500 F.3d 634, 637 (7th Cir. 2007). We need not
decide whether Neal’s remarks at sentencing amounted to a
motion to withdraw the plea. Under either standard of re-
view, the district court committed no error.
In contending that the district court should have allowed
him to withdraw his plea, Neal argues that the plea was nei-
ther voluntary (because he did not understand the conspiracy
charge) nor supported by a sufficient factual basis (because
there was no proffer of facts showing an agreement to distrib-
ute cocaine). He “faces an uphill battle,” however, in over-
coming the “presumption of verity” that the law attaches to a
guilty plea. United States v. Patterson, 576 F.3d 431, 437 (7th Cir.
2009) (internal quotation marks omitted); see also Bennett, 332
F.3d at 1099. And Neal does not overcome that presumption
here.
Five factors inform whether a defendant fully understands
the nature of the charge to which he admitted guilt: (1) the
complexity of the charge; (2) the defendant’s intelligence, age,
and education; (3) whether the defendant was represented by
counsel; (4) the district court’s inquiry during the change of
plea hearing and the defendant’s responses; and (5) the evi-
dence proffered by the government for its factual basis. See
6 No. 17-2976
United States v. Bradley, 381 F.3d 641, 645–46 (7th Cir. 2004);
United States v. LeDonne, 21 F.3d 1418, 1423 (7th Cir. 1994).
First, as to the contention that the plea was uninformed
and thus involuntary, the record shows that Neal understood
the conspiracy charge. Conspiracy, we have observed, is in-
deed a complex charge not always or easily understood by a
layperson. United States v. Pineda-Buenaventura, 622 F.3d 761,
771 (7th Cir. 2010). At Neal’s plea, the district court conveyed
the essential nature of the offense, explaining that the indict-
ment alleged that Neal did “knowingly, intentionally com-
bine, conspire, and agree with other persons … to knowingly
distribute … cocaine.” This statement captures the elements
of a drug-distribution conspiracy under 21 U.S.C. § 846: “(1)
two or more people agreed to commit an unlawful act, and (2)
the defendant knowingly and intentionally joined in the
agreement.” United States v. Duran, 407 F.3d 828, 835 (7th Cir.
2005). More than that, Neal’s own contention at sentencing—
that a conspiracy requires more than one person—also sup-
ports the conclusion that he understood the charge.
Second, we examine Neal’s intelligence, age, and educa-
tion. He was twenty-nine at the time of his plea, had an elev-
enth-grade education, and read and understood English.
Nothing that occurred before, during, or after the plea collo-
quy raised a question on this prong of the inquiry.
The next two factors—concerning counsel and the ade-
quacy of the court’s colloquy during the plea allocution—do
not help Neal. He stresses that, although represented by coun-
sel, he had different counsel at different stages of the proceed-
ings in the district court. Beyond conveying the observation,
though, Neal does not explain how having a series of attor-
neys impaired the knowing and voluntary nature of his guilty
No. 17-2976 7
plea. Moreover, before Neal pleaded guilty, the court ex-
plained his rights, described the consequences of pleading
guilty, and received Neal’s express confirmation that his plea
was a free and voluntary act. This colloquy was sufficient to
probe whether Neal’s plea was knowing and voluntary. See
United States v. Hernandez, 731 F.3d 666, 671 (7th Cir. 2013).
The main battleground on appeal comes with the fifth fac-
tor: the sufficiency of the government’s factual proffer to sup-
port the plea. Rule 11(b)(3) required the district court to de-
termine that there is a factual basis for a guilty plea before ac-
cepting it and proceeding to sentencing. In revisiting the same
question on appeal, we are free to rely on the facts proffered
by the government, any part of the record to which the de-
fendant agreed or did not object, and the defendant’s own
statements. See United States v. Musa, 946 F.2d 1297, 1302–03
(7th Cir. 1991).
After reviewing the plea colloquy and government’s fac-
tual proffer, we see no error in the district court’s conclusion
that sufficient facts supported the plea. The government un-
derscores four facts proffered at the plea colloquy: (1) Neal
was involved with others in distributing cocaine; (2) Neal reg-
ularly purchased dealer quantities (at least 4–7 ounces each
week) of cocaine from “B.B.” over the course of three years;
(3) Neal, in turn, supplied cocaine to others; and (4) Neal “of-
tentimes” received and supplied cocaine on fronts. After re-
ceiving an opportunity to confer with his counsel in response
to this factual proffer, Neal expressly acknowledged its accu-
racy. He now advances a different view on appeal, arguing
that the government’s proffer failed to show that he conspired
with anyone to buy or sell cocaine.
8 No. 17-2976
Neal is right to observe that the first three facts are not nec-
essarily inconsistent with an ordinary buyer-seller relation-
ship and thus do not alone demonstrate a conspiracy. Con-
spiracy requires a common criminal goal shared among two
or more people. United States v. Long, 748 F.3d 322, 325 (7th
Cir. 2014). Indeed, we have underscored that ordinary drug
transactions do not entail or reflect a conspiracy, for the
buyer’s only purpose is to buy and the seller’s only purpose
is to sell: the buyer and seller lack a shared criminal goal. See
id. at 325; United States v. Colon, 549 F.3d 565, 569 (7th Cir.
2008). But a shared purpose—some unity of enterprise—be-
tween a buyer and seller to resell drugs to others can be
enough to indicate the requisite common commitment to
demonstrate a conspiracy to distribute drugs. See United
States v. Johnson, 592 F.3d 749, 755–56 (7th Cir. 2010). And such
a shared purpose, we have explained, may be inferred from
“sales on credit or consignment.” Id.To be sure, “occasional” sales on credit are consistent with
an ordinary buyer-seller relationship. United States v. Cruse,
805 F.3d 795, 815 (7th Cir. 2015); see also United States v.
Villasenor, 664 F.3d 673, 680 (7th Cir. 2011) (“For example,
evidence that a supplier extends credit to an individual
purchasing small quantities of drugs for personal
consumption would not suffice to establish conspiracy.”). But,
as we explained in Villasenor, “when a credit sale is combined
with certain other characteristics inherent in an ongoing
wholesale buyer-seller relationship—i.e., large quantities of
drugs, repeat purchases or some other enduring
arrangement—the credit sales become sufficient enough to
distinguish a conspiracy from a nonconspiratorial buyer-
seller relationship.” Id.; see also Cruse, 805 F.3d at 812
(concluding that evidence of a defendant’s longtime
No. 17-2976 9
supplying of drugs for resale within a housing project is
sufficient to establish that the defendant knowingly
participated in a drug-distribution conspiracy).
During Neal’s plea colloquy, the government proffered
that Neal participated in the acquisition and redistribution of
cocaine in transactions that “oftentimes” occurred on credit.
The government also represented that its evidence showed
that Neal regularly acquired resale quantities of cocaine from
the same supplier in Effingham, Illinois. Neal admitted to the
accuracy of these specific facts, and they sufficed to support
the district court’s acceptance of his plea to violating 21 U.S.C.
§ 846.
In briefing and during oral argument, Neal’s counsel em-
phasized the absence of facts in the sentencing record show-
ing drug transactions on credit. In advancing this position,
however, Neal overlooks what he expressly agreed was accu-
rate in pleading guilty—that “oftentimes,” he bought or sold
cocaine “on fronts.” Furthermore, Neal has not identified any
authority requiring the government to come forward at sen-
tencing with evidence of facts previously admitted during a
plea allocution. Neither have we, and we decline to impose
such a mandate. See Musa, 946 F.2d at 1302–03 (determining
that the government’s proffered facts and the defendant’s ad-
missions during his plea allocution were sufficient to support
a plea to conspiracy to distribute cocaine, despite the defend-
ant’s disputes with the quantity distributed and his role in the
distribution activities).
Finally, Neal contends that he did not affirmatively con-
firm during the plea allocution that he conspired with anyone.
But during his plea colloquy, Neal confirmed not only that he
10 No. 17-2976
understood the charge of conspiracy, but also that the govern-
ment’s factual proffer was sufficient. And at no point during
sentencing, despite generally denying participating in a con-
spiracy, did Neal say anything specifically calling the accu-
racy of the government’s proffered evidence into question. If
no evidence affirmatively impugning the validity of the plea
is offered, or if the allegations advanced in support of with-
drawing the plea are conclusory or obviously unreliable, the
request may be denied without a hearing. United States v.
Jones, 381 F.3d 615, 618 (7th Cir. 2004).
Based on the totality of the circumstances, we conclude
that Neal understood the charge against him and his plea had
an adequate factual basis. He has not offered a fair and just
reason to withdraw his guilty plea, and the district court did
not abuse its discretion or otherwise commit error in denying
Neal’s motion to withdraw his plea.
Accordingly, we AFFIRM.