United States v. Cedric Morris , 836 F.3d 868 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2402
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CEDRIC J. MORRIS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 13-CR-250 — Rudolph T. Randa, Judge.
____________________
ARGUED FEBRUARY 18, 2016 — DECIDED SEPTEMBER 9, 2016
____________________
Before WOOD, Chief Judge, KANNE and SYKES, Circuit
Judges.
SYKES, Circuit Judge. In 2015 Cedric Morris pleaded guilty
to two counts of distributing heroin. The plea agreement
called for the government to make several specific sentenc-
ing recommendations: what quantity of drugs should count
as relevant conduct, what Morris’s base offense level should
be, and whether Morris was entitled to an acceptance-of-
responsibility reduction. The agreement also required the
2 No. 15-2402
government “to recommend a sentence within the sentenc-
ing guidelines range as determined by the [district court].”
At sentencing the judge determined that Morris’s Guide-
lines range was 70–87 months. In making that determination,
the judge applied a two-level enhancement for possession of
a dangerous weapon in connection with a drug offense. See
U.S.S.G. § 2D1.1(b)(1). Morris objected, and although the
plea agreement made no mention of a dangerous-weapon
enhancement, the government responded that the enhance-
ment was appropriate because federal agents had recovered
a handgun from Morris’s residence. The government fur-
thermore recommended a sentence at the high end of the
Guidelines range calculated by the judge. The judge im-
posed an 87-month sentence. Morris now appeals, arguing
that the government breached the terms of the plea agree-
ment and that the two-level enhancement for possession of a
dangerous weapon was unwarranted.
There was no breach. The plea agreement expressly states
that the parties remained free to make sentencing recom-
mendations not mentioned in the agreement, which is what
the government did when it supported an enhancement for
possession of a dangerous weapon. The government also
clearly satisfied its obligation to recommend a sentence
within the Guidelines range calculated by the district judge.
Finally, the handgun that was found in Morris’s residence
easily justifies application of the dangerous-weapon en-
hancement. Accordingly, we affirm Morris’s sentence.
I. Background
Cedric Morris, a Chicago resident, was in the business of
organizing regular shipments of heroin to a distributor in
No. 15-2402 3
Milwaukee, Wisconsin. Morris would hire female couriers to
transport small, prepackaged quantities of the drug on the
Amtrak train that runs between the two cities. In February
2013 Morris’s distributor began cooperating with law en-
forcement. With the distributor’s assistance, federal agents
observed and recorded transactions with two of Morris’s
couriers. Based on those transactions, a grand jury in Mil-
waukee returned a four-count indictment charging Morris
and the couriers with distributing heroin, 21 U.S.C. § 841(a),
(b) (Counts 1 and 3), and Morris with directing others to
travel between states with the intent to carry on an unlawful
activity, 18 U.S.C. § 1952 (Counts 2 and 4).
On January 8, 2014, agents attempted to execute arrest
warrants for Morris and Raven Hayes, one of his couriers, at
the residence they shared. Hayes was at home when the
agents arrived, but Morris was not. The agents searched the
residence, including the basement where Hayes indicated
that Morris lived. There they found a bedroom containing
men’s clothing and a number of personal effects bearing
Morris’s name, including prescription medication, parking
citations, and a plane ticket. In a laundry room adjacent to
the bedroom, the agents found a Smith & Wesson .32-caliber
handgun next to a small amount of heroin and a variety of
materials used for packaging heroin. Morris was appre-
hended two months later.
Morris eventually pleaded guilty pursuant to a written
plea agreement to the distribution charges in Counts 1 and 3
of the indictment; in exchange the government dropped the
remaining counts. The agreement stated that the parties had
discussed what they believed to be the relevant provisions of
the Sentencing Guidelines, and the government agreed to
4 No. 15-2402
make three specific sentencing recommendations. First, it
would recommend that the judge attribute 400 to 700 grams
of heroin to Morris as relevant conduct, resulting in a base
offense level of 26. See U.S.S.G. § 2D1.1(a)(5), (c)(7). Second,
the government would recommend an acceptance-of-
responsibility reduction. See id. § 3E1.1. Finally, the govern-
ment agreed “to recommend a sentence within the
[S]entencing [G]uidelines range as determined by the [dis-
trict court].”
The Presentence Investigation Report (“PSR”) incorpo-
rated the parties’ recommendations regarding Morris’s base
offense level and the acceptance-of-responsibility reduction.
However, the PSR also recommended two enhancements not
mentioned in the plea agreement: one for possessing a
dangerous weapon in connection with a drug offense, see
§ 2D1.1(b)(1), and one for having a leadership role in the
offense, see U.S.S.G. § 3B1.1(c). Morris objected, and the
prosecutor responded that both enhancements were appro-
priate.
The district judge did not apply a leadership-role en-
hancement, but he did adopt the rest of the PSR’s findings,
including the dangerous-weapon enhancement. The result-
ing offense level was 25, which yielded a Guidelines range of
70–87 months when combined with Morris’s criminal history
category of III. The judge then asked the government for its
sentencing recommendation. Citing the plea agreement, the
prosecutor recommended a sentence “within the advisory
guidelines as calculated by this [c]ourt” but noted his view
that Morris’s “responsibility falls closer to the higher end of
that level than the lower end.” The prosecutor also noted
that without the dangerous-weapon enhancement, Morris’s
No. 15-2402 5
Guidelines range would have been 57–71 months. After
hearing arguments in mitigation from Morris’s attorney, the
judge imposed an 87-month sentence, the top of the Guide-
lines range.
II. Discussion
A. Breach of the Plea Agreement
Morris’s main argument is that the government breached
the plea agreement in two respects: first, by supporting
enhancements that were not mentioned in the plea agree-
ment, and second, by recommending a sentence at the high
end of the range the district judge calculated. Morris argues
that the government was obligated to recommend a sentence
within the range that would have resulted without the
enhancement for possessing a dangerous weapon: 57–
71 months. He asks that we vacate his sentence and order
resentencing before a different judge.
Because Morris didn’t object to the government’s alleged
breach at sentencing, our review is for plain error. See United
States v. Orlando, 823 F.3d 1126, 1134 (7th Cir 2016). Under
this standard, Morris will prevail only if “there was [an]
error; the error was plain or obvious; the error affected his
substantial rights; and the error seriously affects the fairness,
integrity, or public reputation of the judicial proceedings.”
Id. (quotation marks omitted). To determine whether an
error occurred, we must first decide whether the govern-
ment actually breached the plea agreement. Id. We interpret
the parties’ agreement using ordinary contract principles
and resolving any ambiguities against the government.
United States v. Brown, 779 F.3d 486, 492 (7th Cir. 2015). “We
will hold the government to any explicit or implicit promises
6 No. 15-2402
it has made to the defendant in exchange for his guilty plea,
but the government’s obligations, like the defendant’s, will
be limited to matters on which they have actually agreed.”
Id.
The plea agreement contains three explicit promises that
relate to sentencing, each of which the government satisfied.
First, in paragraphs 16 and 17, the government agreed to
recommend that the judge attribute 400 to 700 grams of
heroin to Morris as relevant conduct, resulting in a base
offense level of 26. It’s undisputed that the government
made that recommendation. Second, paragraph 18 required
the government to recommend an acceptance-of-
responsibility reduction, which it did. Finally, paragraph 22
required the government to “recommend a sentence within
the [S]entencing [G]uidelines range as determined by the
[district court].” The judge calculated a Guidelines range of
70–87 months, and the prosecutor recommended a sentence
“at the higher end of that level.”
Morris contends that Paragraph 14 of the plea agreement
contains additional, implicit promises that the government
did not fulfill. That provision provides in full:
The parties acknowledge, understand, and
agree that the [S]entencing [G]uidelines calcu-
lations included in this agreement represent
the positions of the parties on the appropriate
sentence range under the [S]entencing
[G]uidelines. The defendant acknowledges and
understands that the [S]entencing [G]uidelines
recommendations contained in this agreement
do not create any right to be sentenced within
any particular sentence range, and that the
No. 15-2402 7
court may impose a reasonable sentence above
or below the [G]uideline[s] range. The parties
further understand and agree that if the de-
fendant has provided false, incomplete, or in-
accurate information that affects the calcula-
tions, the government is not bound to make the
recommendations contained in this agreement.
Morris reads this provision as prohibiting the government
from making any recommendations not mentioned in the
plea agreement and requiring the government to recom-
mend a sentence within a Guidelines range of 57–71 months.
That’s an overreading of the agreement. Paragraph 14
required the government to make the three sentencing
recommendations contained in the plea agreement unless
Morris provided “false, incomplete, or inaccurate infor-
mation that affect[ed] the calculations.” Nothing in para-
graph 14 suggests that the government was limited to mak-
ing only those recommendations. Indeed paragraph 21,
which falls under the “Sentencing Recommendations”
heading, is directly to the contrary: “Both parties reserve the
right to make any recommendation regarding any other
matters not specifically addressed by this agreement.”
Likewise paragraph 14 does not even mention a Guidelines
range of 57–71 months, let alone require the government to
recommend a sentence within that range. To the contrary,
paragraph 22 requires the government “to recommend a
sentence within the [S]entencing [G]uidelines range as
determined by the [district court].”
Morris relies on United States v. Navarro, 817 F.3d 494 (7th
Cir. 2015), for the proposition that the government breached
the plea agreement by recommending an enhancement that
8 No. 15-2402
the parties had not discussed. But in Navarro the government
advocated for an upward variance from the Guidelines range
that the district court had calculated, not an enhancement to
the defendant’s base offense level. The distinction is im-
portant: By recommending an upward variance, the gov-
ernment violated the express terms of the plea agreement,
which required it to recommend a sentence within the
Guidelines range calculated by the district court. Id. at 499.
In the present case, the government recommended an en-
hancement, which is not equivalent to seeking a sentence
outside the Guidelines range. Cf. id. at 500 (“We have recog-
nized a clear distinction between adjustments to the
[G]uidelines range and departures from them.”). Nothing in
the plea agreement prohibited the government from making
that recommendation.
In short the government fulfilled all of its obligations un-
der the plea agreement, so there was no breach. Morris is not
entitled to resentencing on this basis.
B. Enhancement for Possession of a Dangerous Weapon
Morris also renews his objection to the judge’s applica-
tion of a two-level enhancement for possessing a dangerous
weapon in connection with a drug offense. The basis for the
enhancement was the handgun that agents found when they
searched Morris’s residence. Morris contends the govern-
ment failed to establish that he possessed the handgun. We
review the judge’s application of the enhancement for clear
error. United States v. Strode, 552 F.3d 630, 635 (7th Cir. 2009).
Section 2D1.1(b)(1) provides for a two-level increase in
the base offense level for a drug offense “[i]f a dangerous
weapon (including a firearm) was possessed.” Application
No. 15-2402 9
note 11 explains that “[t]he enhancement should be applied
if the weapon was present, unless it is clearly improbable
that the weapon was connected with the offense.” § 2D1.1
cmt. n.11. We have construed this provision to require the
government to prove by a preponderance of evidence that
the defendant possessed a weapon. United States v. Orozco,
576 F.3d 745, 751 (7th Cir. 2009). The government can satisfy
its burden by showing either actual possession or construc-
tive possession, meaning “the defendant had the power and
the intention to exercise dominion or control of the firearm.”
United States v. Bothun, 424 F.3d 582, 586 (7th Cir. 2005). If the
government meets its burden, the defendant must show that
it’s clearly improbable he possessed the weapon in connec-
tion with the drug offense. Orozco, 576 F.3d at 751.
At sentencing the government pointed to the handgun’s
location adjacent to Morris’s bedroom in the residence that
Morris and Hayes shared. The government also noted that
the gun was found near a small quantity of heroin and a
variety of materials used to package heroin, including a
hydraulic press, razor blades, scales, and plastic bags. These
facts are easily sufficient to establish that Morris, a convicted
heroin distributor, constructively possessed the handgun.
See Bothun, 424 F.3d at 585–86 (holding that the government
established possession based solely on the fact that the
weapons were found in the defendant’s home and near drug
paraphernalia); see also United States v. Smith, 308 F.3d 726,
746 (7th Cir. 2002) (holding that the defendant possessed
firearms based on their location at his residence and busi-
ness).
Citing United States v. Harris, 230 F.3d 1054 (7th Cir.
2000), Morris argues that the proximity between the hand-
10 No. 15-2402
gun and his bedroom is not enough to establish that he
possessed the handgun. Harris is inapposite. In that case the
defendant’s only connection to a weapon was the fact that he
worked in various drug houses where firearms were stored
and where other individuals regularly carried and used
firearms. The government conceded that the defendant
himself had never used or carried firearms, but it argued
that his access to the firearms and his proximity to others
who used them amounted to constructive possession. We
rejected that argument, stating that the defendant’s “proxim-
ity to the firearms … [was] insufficient to constitute con-
structive possession.” Id. at 1057. In the present case, the
government did not concede that Morris never used or
carried the handgun found in his residence. To the contrary,
the prosecutor argued that the gun’s location in Morris’s
residence and near his personal effects permits the inference
that the gun belonged to Morris. As we’ve just explained,
that inference is entirely justifiable.
Because the government established that Morris pos-
sessed the handgun, the burden shifted to Morris to show
that it’s clearly improbable that he did so in connection with
his heroin-distribution activities. He didn’t come close
making that showing, given the gun’s proximity to his
bedroom and its location next to a small quantity of heroin
and a variety of packaging materials. See Bothun, 424 F.3d at
586 (“[G]uns found in close proximity to drug activity are
presumptively connected to that activity.” (quotation marks
omitted)). The judge was right to apply the two-level en-
hancement under § 2D1.1(b)(1).
AFFIRMED.