United States v. Montreece Kindle , 698 F.3d 401 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-3725, 10-3726, 11-2262 & 11-2439
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
M ONTREECE K INDLE, N ATHAN W ARD ,
D WAYNE W HITE and L ESLIE M AYFIELD,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 CR 687—Harry D. Leinenweber, Judge.
A RGUED M AY 30, 2012—D ECIDED S EPTEMBER 26, 2012
Before E ASTERBROOK, Chief Judge, and B AUER and
P OSNER, Circuit Judges.
B AUER, Circuit Judge. This case represents the consoli-
dated appeal of four defendants charged with, among
other crimes, conspiring to steal cocaine from a fictitious
drug “stash house.” The defendants all pleaded not
guilty, and they were all convicted on the same four
counts: conspiracy to possess with intent to distribute five
2 Nos. 10-3725, 10-3726, 11-2262 & 11-2439
or more kilograms of cocaine in violation of 21 U.S.C. § 846(“Count One”); attempted possession with intent to
distribute five or more kilograms of cocaine in violation
of 21 U.S.C. § 846 (“Count Two”); possession of four
firearms during and in relation to a drug trafficking
offense in violation of 18 U.S.C. § 924(c)(1)(A) (“Count
Three”); and possession of a firearm after previously
having been convicted of a felony in violation of 18 U.S.C.
§ 922(g)(1) (“Count Four”). The defendants appeal
various aspects of their convictions and sentences.
I. BACKGROUND
This case began with an undercover sting operation
carried out by the Bureau of Alcohol, Tobacco, Firearms
and Explosives (ATF); apparently, the ATF has a
standard playbook for such operations, and the facts
between cases are frequently nearly identical. 1 The ATF
had a confidential informant named Jeffrey Potts (not an
ATF agent himself) who shared a workplace with one
of the defendants, Leslie Mayfield. Potts’ role was to
funnel parties interested in armed robberies to an under-
cover ATF agent, for which the ATF would pay Potts a
fee. Someone—either Potts or Mayfield—brought up
the possibility of robbing a drug “stash house.” Potts
1
See, for example, United States v. Lewis, 641 F.3d 773, 777 (7th
Cir. 2011) (describing a similar set of facts as “a rather
shopworn scenario in this court”); United States v. Blitch, 622,
F.3d 658, 661 (7th Cir. 2010); United States v. Corson, 579 F.3d
804, 806-09 (7th Cir. 2009).
Nos. 10-3725, 10-3726, 11-2262 & 11-2439 3
referred Mayfield to undercover ATF Agent Dave Gomez.
A meeting was arranged for July 23, 2009, among
Mayfield, Potts, and Gomez.
At the July 23 meeting, Agent Gomez pretended to be
a disgruntled courier for a Mexican drug cartel; the
ATF’s hidden recording devices captured this and
future meetings of Gomez and the defendants. Gomez
laid out an initial plan for a stash-house robbery. He
explained that he ran a shipment of about 6 to 8
kilograms of cocaine to an unidentified location every
month. He claimed that the location—the stash
house—always contained about 20 to 30 kilograms of
cocaine in addition to the quantity he delivered. No
such stash house actually existed, of course; Gomez
was following the standard playbook for ATF sting opera-
tions of this kind. Gomez told Mayfield that there
were usually about three armed guards inside the stash
house when he made his delivery, and that he needed
an outside crew to assist him to rob the house.
Mayfield asked several logistical questions. He wanted to
know, for example, how a crew could break into the
house and where in the room the three guards were
usually situated. Mayfield ultimately expressed interest
in carrying out the robbery. He told Gomez that he
would assemble his people and agreed to meet later
with the full team present to hash out the plan.
Prior to the second meeting, there was a phone call
between Mayfield and Gomez. During their short con-
versation, Mayfield confirmed the meeting for the fol-
lowing day and indicated an immediate need to move
4 Nos. 10-3725, 10-3726, 11-2262 & 11-2439
some drugs; specifically; he said that he would be inter-
ested in dealing cocaine with Gomez prior to the planned
robbery.
The parties reconvened on August 9, 2009, this time
with a full robbery crew present. And again, they were
all being recorded. Mayfield, Montreece Kindle,
Nathan Ward, and an unidentified fourth individual2
all met with Gomez to discuss the stash-house robbery.
Gomez described the setup once again, including the
part about three armed guards in the stash house.
Mayfield and Kindle pressed Gomez on specifics, such
as how long he was usually present in the stash house
for his pickups and whether the person answering the
door was ever armed. Mayfield stressed the importance
of the element of surprise, and Kindle indicated that
they might have to kill the stash-house guards. The
parties eventually turned to post-robbery plans, and
discussed how they would divvy up the shares of co-
caine. Ward in particular noted that the shares should
be divided five ways, evenly. The parties discussed
some more logistics and eventually agreed to reconvene
on the day of the robbery.
Gomez contacted Mayfield to inform him that the stash-
house delivery would occur at a location in Naperville,
Illinois on August 10, 2009. On that day, Gomez met
Mayfield and his team, which now included Dwayne
2
This fourth individual, known only as “New York,” would
later disappear from the crew and is not otherwise implicated
in this appeal.
Nos. 10-3725, 10-3726, 11-2262 & 11-2439 5
White in addition to Kindle and Ward. Mayfield asked
where the team would go after pulling off the robbery,
and Gomez responded that he could show the team
where they would be storing the stolen cocaine. Mayfield
agreed, telling his crew to follow Gomez in a brown van
to the storage site. Mayfield rode in Gomez’s vehicle
and, during the short trip, they reviewed the robbery
plans. After everyone arrived at the supposed storage
site, they exited their vehicles; Gomez noticed for the
first time that White was new to the crew. Gomez
sought and received assurances that White knew what
was going down. White sought confirmation that there
would be weapons inside the stash house. Finally,
having surveyed the storage facility, the members of
Mayfield’s team indicated their readiness to pro-
ceed with the robbery; Gomez gave a signal, and federal
authorities descended on the party, arresting the defen-
dants.
After the arrest, federal agents searched the crew’s van.
They found several weapons (including a sawed-off
shotgun), ski masks, ammunition, bullet-proof vests,
latex gloves, and a duffel bag suitable for carrying a
large amount of drugs. An agent also recovered a ski
mask directly from White’s pocket. Kindle waived his
Miranda rights and gave a statement to the authorities,
implicating himself and the others in the conspiracy to
rob the fictitious stash house.
All defendants pleaded not guilty and proceeded to
a jury trial. Mayfield, White, and Ward were tried
together, charged with the same four crimes. Kindle was
6 Nos. 10-3725, 10-3726, 11-2262 & 11-2439
charged with the same crimes, but was tried separately
because of his post-arrest statement that implicated
the others. All defendants were found guilty of the fol-
lowing crimes: conspiracy to possess with intent to dis-
tribute five or more kilograms of cocaine in violation of
21 U.S.C. § 846 (“Count One”); attempted possession
with intent to distribute five or more kilograms of
cocaine in violation of 21 U.S.C. § 846 (“Count Two”);
possession of four firearms during and in relation to a
drug trafficking offense in violation of 18 U.S.C.
§ 924(c)(1)(A) (“Count Three”); and possession of a fire-
arm after previously having been convicted of a felony
in violation of 18 U.S.C. § 922(g)(1) (“Count Four”).
II. DISCUSSION
The defendants have mounted several challenges on
appeal. Mayfield, White, Ward, and Kindle all chal-
lenge the sufficiency of the evidence under Counts One
and Two; White also challenges the sufficiency of the
evidence under Count Three. Mayfield argues that the
district court erred when it denied him the right to
present an entrapment defense; he also challenges his
sentence of 322 months. Ward’s counsel filed an Anders
brief and seeks to withdraw her representation; Ward
responded. We deal with each of these issues in turn.
A. Challenges to the Sufficiency of the Evidence
All of the defendants challenge the prosecution’s evi-
dence on various counts, arguing that it was insufficient
Nos. 10-3725, 10-3726, 11-2262 & 11-2439 7
to prove their guilt beyond a reasonable doubt. They
face a “formidable hurdle” with this argument. See
United States v. Dennis, 115 F.3d 524, 534 (7th Cir. 1997).
When considering a challenge to the sufficiency of
the evidence, we construe the record “in the light most
favorable to the prosecution, making all reasonable in-
ferences in its favor, and affirm the conviction so long
as any rational trier of fact could have found the
defendant to have committed the essential elements of
the crime.” United States v. Mota, 685 F.3d 644, 649-650
(7th Cir. 2012) (quoting United States v. Vallar, 635 F.3d
271, 286 (7th Cir. 2011)). Overturning a guilty verdict for
lack of evidence is serious business; we are essentially
asked to take the case out of the jury’s hands, something
we will do “only if the record contains no evidence,
regardless of how it is weighed, from which the jury could
find guilt beyond a reasonable doubt.” Mota, 685 at
650 (emphasis added) (quoting United States v. Fassnacht,
332 F.3d 440, 447 (7th Cir.2003)).
1. Evidence for Count One
All defendants challenge the sufficiency of the evidence
for their guilty verdicts under Count One, conspiracy to
possess cocaine with intent to distribute. See 21 U.S.C.
§ 846. To establish the conspiracy, the government had
to prove: (1) the existence of an agreement between 2 or
more persons to possess with intent to distribute
cocaine; (2) that the defendant knew of the agreement; and
(3) that the defendant intended to join the agreement.
United States v. Spagnola, 632 F.3d 981, 986 (7th Cir. 2011).
8 Nos. 10-3725, 10-3726, 11-2262 & 11-2439
Put simply, the Government presented a mountain of
evidence against these defendants to prove that they
agreed with each other to steal cocaine. We needn’t
detail each piece of evidence produced at the trials;
suffice to say, the Government was able to use the de-
fendants’ own words against them because of the exten-
sive recordings of conversations with Agent Gomez.
Additionally, Kindle waived his Miranda rights at the
time of his arrest and made statements that were used
at trial. And of course, a wealth of physical evidence
was seized from the brown van that the defendants
planned to use for the robbery. Keeping in mind that
we view these factors in the light most favorable to
the Government, a rational jury could easily find that the
defendants agreed with each other to steal cocaine.
But the real gist of the defendants’ argument is that
even if there was a conspiracy between them to steal
cocaine, there was no evidence of an intent to distribute
it, a required element under Count One. We have en-
countered this argument before in contexts very similar
to this one, and we have rejected it. See, e.g., United States
v. Walker, 673 F.3d 649, 654-55 (7th Cir. 2012) (rejecting
a lack-of-evidence-to-distribute argument in another
case involving the planned robbery of a fictitious stash
house); United States v. Lewis, 641 F.3d 773, 782 (7th Cir.
2011) (same).
As we explained in Lewis, 641 F.3d at 782, there are
several permissible inferences a reasonable jury could
draw from the type of evidence presented here. First,
the plan was to rob a stash house containing a large
Nos. 10-3725, 10-3726, 11-2262 & 11-2439 9
amount of cocaine (probably somewhere between 25
and 35 kilograms). Law enforcement officials at trial
testified that 25 to 35 kilograms of cocaine is not a
personal-use amount, and the jury could reasonably infer
that given the sizeable quantity, Mayfield and his crew
intended to distribute it. Additionally, recordings of the
conversations between Gomez and the robbery crew
suggest that the stakes were high in this operation;
the crew members demonstrated a preoccupation
with how to deal with the armed guards in the fictional
stash house, and at one point Kindle even suggested
that they would kill the guards. Indeed, the weapons
found in the van showed that the crew meant business.
A jury could infer that, given the huge risk the
defendants planned on exposing themselves to, they
must have expected an equally huge reward. Such a
reward would require distribution.
In short, the jury had ample reason for finding that
the defendants intended to distribute whatever amount
of cocaine that they expected to recover.
2. Evidence for Count Two
The defendants next challenge the sufficiency of the
evidence for a conviction under Count Two, the crime of
attempting to possess cocaine with intent to distribute.
See 21 U.S.C. § 846. (Although the wording of Counts
One and Two are highly similar, “conspiracy” and “at-
tempt” are two separate criminal offenses.)
To prove attempt, the Government had to show not just
that the defendants acted with the intent to possess the
10 Nos. 10-3725, 10-3726, 11-2262 & 11-2439
cocaine, but also that the defendants took a “substantial
step” toward possessing it. See United States v. Dennis, 115
F.3d 524, 534-35 (7th Cir. 1997). A substantial step is
“something more than mere preparation, but less than
the last act necessary before the actual commission of
the substantive crime.” United States v. Barnes, 230 F.3d
311, 315 (7th Cir. 2000) (citing United States v. Rovetuso,
768 F.2d 809, 821 (7th Cir. 1985)). To qualify as sub-
stantial, the step “must be of such a nature that a rea-
sonable observer viewing it in context could conclude
beyond a reasonable doubt that it was undertaken in
accordance with a design to violate the statute.” Barnes,
230 F.3d at 315.
Here, Mayfield, Kindle, and Ward attended a meeting
prior to the planned robbery to discuss their plans
in detail with Gomez and each other. Mayfield and
Kindle asked logistical questions and Ward commented
on how he thought the drugs should be divided. We
have previously noted the importance of conversations
like these in establishing a substantial step for a showing
of attempt. See, e.g., United States v. Magana, 118 F.3d
1173, 1198-99 (7th Cir. 1997); United States v. Wilks, 46 F.3d
640, 645 (7th Cir. 1995). Those cases involved attempted
drug sales rather than an attempted stash-house rob-
bery, but the planning involved is similar to that
which occurred in this case.
The Government’s strongest evidence of a substantial
step came on the day of the planned robbery. All four of
the defendants, now including White, met Gomez in
their brown van and indicated their readiness to pro-
Nos. 10-3725, 10-3726, 11-2262 & 11-2439 11
ceed with the robbery. They still didn’t know the
exact location of the stash house, but that doesn’t mat-
ter.3 They arrived armed with an assortment of guns,
ski masks, and other implements for a robbery. They
even followed Gomez in their brown van to the site
where they planned to store the drugs after the robbery.
Further, although White was relatively new to the
group, he confirmed with Gomez that he knew the
plan, and authorities recovered a ski mask from his pocket.
The defendants rely heavily on United States v. Cea,
914 F.2d 881 (7th Cir. 1990), in their effort to downplay
their steps toward attempt. In Cea, we overturned a
finding of attempt because there was not ample evi-
dence of a substantial step to purchase drugs;
specifically, the authorities botched the investigation
by arresting Cea too soon (as soon as he left his house).
The Government then failed to produce any evidence
at Cea’s trial to show that the defendant left his house
intending to meet his drug dealer. There was nothing
to show that the defendant knew where to meet with
his dealer or whether he even had the money required
to purchase the drugs. In this case, the evidence
3
Mayfield appears to argue that because there was no
known stash-house location—and perhaps because the stash
house was fictitious to begin with—he cannot be found guilty.
Although the argument is not altogether clear, we assume
he means that he cannot be found guilty of attempting to rob
a place that doesn’t exist. This would be wrong; impossibility
is not a defense to the crime of attempt. See United States
v. Mannava, 565 F.3d 412, 416 (7th Cir. 2009).
12 Nos. 10-3725, 10-3726, 11-2262 & 11-2439
showed that the defendants all took several steps beyond
leaving their houses. They met with Gomez on the day
of the planned robbery after Gomez claimed to have
learned the location of the stash house. They spoke of
their readiness to proceed with the imminent robbery.
And of course, they carried with them the implements
needed to carry out a crime. We will not overturn the
jury’s finding of attempt; the steps taken toward the
attempt to possess here were myriad and, taken
together, quite substantial.
3. Evidence for Count Three
White is the only defendant who argues for a reversal
on Count Three, possession of firearms during and in
relation to a drug trafficking offense. We needn’t linger
on this. White’s argument for insufficient evidence on
Count Three is premised on there being insufficient
evidence for his conviction under Count One, which
constitutes the underlying drug trafficking offense.
Having explained in detail why there was ample
evidence for White’s conviction on Count One, we are
also satisfied that there was enough to convict him on
Count Three. His conviction under Count Three stands.
B. Mayfield’s Entrapment Defense
Mayfield argues that the district court erred when
it granted the Government’s motion in limine to pre-
clude an entrapment defense. We have held that a court
may bar a defendant from arguing entrapment at the
Nos. 10-3725, 10-3726, 11-2262 & 11-2439 13
pretrial stage if the defendant’s evidence of entrapment is
insufficient as a matter of law. See United States v. Johnson,
32 F.3d 304, 307 (7th Cir. 1994). We review the district
court’s decision in this matter de novo. United States v.
Hall, 608 F.3d 340, 343 (7th Cir. 2010).
To have an entrapment defense, Mayfield needed to
show both that the Government induced him to commit
a crime and that he was not otherwise predisposed to
commit that crime. See United States v. Millet, 510 F.3d
668, 675-76 (7th Cir. 2007). We emphasize that Mayfield
had the initial burden of proof on both of these is-
sues. Id. at 675. Because we find that he failed to
provide adequate evidence that he was not predisposed,
we need not address inducement. In determining
whether a defendant was predisposed to commit the
crime at issue, we consider the following factors: (1) the
defendant’s character or reputation; (2) whether the
government initially suggested the criminal activity;
(3) whether the defendant engaged in the criminal
activity for profit; (4) whether the defendant evidenced a
reluctance to commit the offense that was overcome by
government persuasion; and (5) the nature of the induce-
ment or persuasion by the government. Id. at 676 (citing
United States v. Blassingame, 197 F.3d 271, 281 (7th Cir.
1999)). No one factor is dispositive, but it is the fourth
factor that carries the most weight. Millet, 510 at 676.
The Government proffered a wealth of evidence that
Mayfield had a criminal reputation, including reference
to his several prior convictions for crimes such as
burglary, armed robbery, and armed vehicle hijacking.
14 Nos. 10-3725, 10-3726, 11-2262 & 11-2439
Mayfield tried to counter this with evidence that he had
been working hard, had received several certificates
of professional achievement, and had been trying to
get his life back on track, but his own words betray
his supposed honest intentions. In extensive recorded
conversations with Gomez, Mayfield described his past
stash-house robberies in detail, and never seemed shy
about embarking on a new criminal venture. He also
expressed a desire to do a drug deal with Gomez
before the robbery had even been fully planned. These
conversations certainly do not reveal any sort of
reluctance on the part of Mayfield; the first and fourth
factors above weigh heavily against a lack of predisposi-
tion.
Mayfield counters that it was not Gomez but instead
the confidential informant for the ATF, Potts, who pres-
sured him into a crime he was not predisposed to com-
mit. Potts worked with Mayfield and was the first
person, according to Mayfield, to suggest a stash-house
robbery. But how the informant “pressured” Mayfield
is not entirely clear; Mayfield claims the informant
showed him a gang tattoo, and that this somehow
amounted to duress. There is no allegation of a more
specific threat. It seems an odd notion that Mayfield
could be bullied into something that he did not
already want to do. Not only does he have a reputation
for committing serious criminal acts, he was able to
quickly assemble a team of friends (we refer to the co-
defendants) who were all prepared to walk into a
guarded drug house with him, guns blazing. That is not
typically the sort of person who wilts at the suggestion
of a gang affiliation.
Nos. 10-3725, 10-3726, 11-2262 & 11-2439 15
One thing that weighs in Mayfield’s favor is his claim
that Potts approached him first about the stash-house
job, and then repeatedly after that. But Government
solicitation alone does not entitle a defendant to an en-
trapment defense. See United States v. Perez-Leon, 757
F.2d 866, 872 (7th Cir. 1985). We cannot find that
Mayfield was not predisposed to commit the crimes when
approached by the ATF. There was thus no error in the
district court’s decision to bar Mayfield from arguing
entrapment.4
4
The dissent believes that Mayfield was entitled to an entrap-
ment defense. It argues that a jury could have found the
government inducement “extraordinary,” because stash-
house robberies are particularly lucrative compared to other
sorts of robberies. The dissent reasons that the inducement
would only be extraordinary to a non-veteran stash-house
robber, and that it was for the jury to decide if Mayfield had
robbed stash houses before. We cannot endorse this analysis.
It effectively collapses the inducement and predisposition
elements of entrapment and would allow otherwise predis-
posed criminals to claim entrapment simply because they were
entering a new, more lucrative field of crime. Whether a
government agent’s offer is extraordinary should be con-
sidered in light of the terms on which crimes of this sort are
typically committed. See United States v. Pillado, 656 F.3d 754,
765 (7th Cir. 2011). Nothing in the record suggests that this
planned stash-house robbery would be any more lucrative
than the typical stash-house robbery. And as we stressed
previously, the risk-adjusted rewards for this crime were not
so great; Mayfield planned to risk his life and to risk prosecu-
tion for murder if he lived.
16 Nos. 10-3725, 10-3726, 11-2262 & 11-2439
C. Mayfield’s Sentence
The district court sentenced Mayfield to 322 months in
prison. This was based on an offense level of 34 under
the Sentencing Guidelines, triggered because the judge
found that the offense involved between 15 and 50 kilo-
grams of cocaine. U.S.S.G. § 2D1.1(c)(3). The district court
then applied a two-level enhancement to Mayfield’s
sentence because it found that he obstructed justice by
committing perjury at trial. U.S.S.G. § 2D1.1(b)(14)(D).
Mayfield now challenges both the calculation of his
base offense level and the two-level enhancement for
obstruction of justice.
We review a district court’s factual findings about drug
quantities for clear error. United States v. Longstreet,
567 F.3d 911, 924 (7th Cir. 2009). We also review for
clear error a finding that a defendant committed perjury.
United States v. Spagnola, 632 F.3d 981, 988 (7th Cir. 2011).
To find clear error, we must be “left with a definite
and firm conviction that a mistake has been committed.”
United States v. Panaigua-Verdugo, 537 F.3d 722, 724 (7th
Cir. 2008). Finally, we review de novo the adequacy of
the district court’s explanation of his findings. United
States v. Sheikh, 367 F.3d 683, 686 (7th Cir. 2004).
1. The Base Offense Level Calculation
For sentencing purposes, Mayfield is responsible for
whatever amount of cocaine he knew (or should have
known) was the object of his conspiracy. See United States
v. McKenzie, 656 F.3d 688, 691 (7th Cir. 2011). If the
Nos. 10-3725, 10-3726, 11-2262 & 11-2439 17
amount was 15 or more kilograms, a base offense level
of 34 was appropriate. U.S.S.G. § 2D1.1(c)(3).
At trial, the primary thrust of Mayfield’s defense was
that he had actually teamed up with Potts to steal cocaine
from Gomez, and that he never really intended to rob
any stash house. Recall that Gomez claimed to transport
only about 6 to 8 kilograms of cocaine every month.
Because Gomez was his sole target, Mayfield argues that
he never thought to recover an amount larger than
8 or so kilograms of cocaine, and so he does not meet the
15-kilogram minimum requirement for a base offense
level of 34 under the Guidelines. This defense has
gaping holes; it seems nonsensical that an ATF informant
(Potts) would hatch a scheme to rob an undercover
ATF agent (Gomez) of a quantity of drugs that never
really existed. It also strains credulity to imagine how
Mayfield could have agreed with Potts to rob Gomez
without explaining the real plan to his co-defendants.
Sure enough, the jury rejected Mayfield’s version of
events. We know the jury rejected it because Mayfield
was convicted of conspiracy, which required a finding
of an agreement with his co-conspirators—and con-
spiracy is legally impossible by agreement with a gov-
ernment informant (like Potts) alone. See United States
v. Duff, 76 F.3d 122, 127 (7th Cir. 1996). The jury was
properly instructed on this rule of law: “A defendant
cannot enter into an agreement solely with, or join a
conspiracy solely with, confidential informant Jeffrey
Potts or undercover agent David Gomez.” Thus, it is
disingenuous for Mayfield to argue that the jury never
18 Nos. 10-3725, 10-3726, 11-2262 & 11-2439
rejected his defense about an agreement with Potts to
rob Gomez. They necessarily rejected it when they
found him guilty of conspiracy.
In robbing the fictitious stash house, then, how much
cocaine did Mayfield expect to gain? There is suf-
ficient evidence that he expected to recover more than
15 kilograms. In several conversations between Gomez
and Mayfield, Gomez referred multiple times to an
amount of at least 20 kilograms of cocaine stored in the
house. Mayfield never said anything to indicate he
thought there would be a lesser amount. So there was
sufficient evidence for the district court to find that
Mayfield met the 15-kilogram minimum for a base level
calculation of 34.
But Mayfield argues that, even if there was sufficient
evidence, the district court failed to state adequate
grounds for its finding. We have held that, at sentencing,
“a court must make an explicit finding as to the drug
quantity and offense level and how it arrived at the
sentence.” United States v. Fudge, 325 F.3d 910, 920 (7th
Cir. 2003). The district court did not run afoul of this rule.
First, the judge acknowledged having reviewed the
Presentence Investigation Report (PSR), which detailed
the amount of drugs implicated in the offense and pro-
vided Guidelines suggestions. The judge also heard
both parties present their arguments; Mayfield’s attorney
basically re-hashed the same implausible defense pre-
sented at trial about a supposed agreement with Potts
to rob Gomez of 6 to 9 kilograms. When Mayfield’s attor-
ney finished, the district judge stated, “Okay. All right.
Nos. 10-3725, 10-3726, 11-2262 & 11-2439 19
I agree that the 6 to 9 was what Mr. Mayfield testified
his intention [was], but the jury didn’t buy it, and frankly
I really didn’t buy it either, . . . so I’m going to find that
it’s 34.” The only evidence Mayfield had of the 6 to
9 kilogram amount was his own testimony at trial; no
other evidence supported his contention that he had
made a secret agreement with Potts to steal that amount.
So we are satisfied that by explicitly rejecting this argu-
ment, and by acknowledging the PSR suggestions, the
judge adequately explained how it arrived at the base
offense level.
In sum, we find no clear error in the district court’s
sentencing Mayfield at a base offense level of 34.
2. The Two-Level Enhancement for Obstruction
of Justice
The district judge ordered a two-level enhancement of
Mayfield’s sentence for obstruction of justice because
he found that Mayfield perjured himself at trial. U.S.S.G.
§ 2D1.1(b)(14)(D). Specifically, the judge found that
Mayfield lied about his plan to rob Gomez, stating,
[Mayfield] testified, which would have been a
defense to the indictment. Now, he testified that he
committed a different crime or he intended to
commit a different crime, but it was a defense, and
the jury didn’t buy it, so it’s clear that—in my
mind, anyway—that he did not testify truthfully,
so I’m going to enhance two for that.
For the enhancement to stand, the defendant must have
wilfully provided false testimony about a material
20 Nos. 10-3725, 10-3726, 11-2262 & 11-2439
matter. United States v. Johnson, 612 F.3d 889, 893 (7th Cir.
2010). Mayfield argues that his testimony was not false
and that it did not even concern a matter material to
the case.
First, materiality. There is no doubt that the subject
on which Mayfield testified—who he planned to steal
from—was material. It went to the heart of the case.
We have already explained that if jurors had accepted
his testimony, they could not have found him guilty of
conspiracy, since it is legally impossible to conspire with
a government informant alone. So any false testimony
on the subject was certainly material.
Likewise, we needn’t linger on whether the testimony
was false. For reasons we have already discussed at
length, Mayfield’s defense about a secret plan with Potts
to rob Gomez was full of holes. His story directly
conflicted with the testimony of others and with the
recordings that suggested a conspiracy to rob the
fictitious stash house.
But we are not quite finished, because Mayfield also
claims the judge failed to adequately explain a finding
of perjury. It is true that to apply an enhancement for
obstruction of justice, “the district court must make
independent findings necessary to establish all of three
factual predicates for a finding of perjury.” United States
v. Savage, 505 F.3d 754, 763 (7th Cir. 2007). But this re-
quirement is not as stringent as Mayfield suggests. We
have only reversed obstruction enhancements for inade-
quate findings when the sentencing judge presented a
bare-bones explanation, such as, “I thought your testimony
Nos. 10-3725, 10-3726, 11-2262 & 11-2439 21
was riddled with inaccuracies and lies.” United States
v. McGiffen, 267 F.3d 581, 591 (7th Cir. 2001). Such a
thin explanation leaves a defendant with a very poor
idea of how exactly he perjured himself.
So although some specificity is required at sentencing,
“separate findings are not strictly necessary so long as
the court determined that the defendant lied to the judge
and jury about matters crucial to the question of the
defendant’s guilt.” United States v. White, 240 F.3d 656,
662 (7th Cir. 2001). And that is exactly what the court
did in this case. The judge clearly stated that the
perjury involved Mayfield’s defense, and as we have
already noted, that defense went to the heart of
Mayfield’s case; it dealt directly with the question of his
guilt. We thus find no error in the two-level enhance-
ment for obstruction of justice.
D. Ward and the Anders Brief
Ward’s attorney filed an Anders brief in his appeal,
requesting to withdraw because the appeal presents no
non-frivolous issue. See Anders v. California, 386 U.S. 738(1967). One of the potential appealable issues his at-
torney identified—the sufficiency of the evidence for
convictions on Counts One and Two—we have already
considered and rejected. Ward made further arguments
in his response to the Anders brief that are wholly
without merit. We agree with counsel that there are no
remaining non-frivolous issues for appeal.
22 Nos. 10-3725, 10-3726, 11-2262 & 11-2439
III. CONCLUSION
For the aforementioned reasons, we A FFIRM the convic-
tions of Mayfield, White, and Kindle, A FFIRM Mayfield’s
sentence, G RANT Ward’s counsel’s motion to withdraw
and D ISMISS Ward’s appeal.
P OSNER, Circuit Judge, concurring and dissenting.
I join the court’s opinion affirming the convictions and
sentences of Kindle and White. But Mayfield is entitled
to a new trial. A reasonable jury could find that he had
been entrapped, and so the district judge should have
instructed the jury on entrapment rather than barring
the defendant from presenting an entrapment defense.
The defense is unusual. Ordinarily the burden of persua-
sion with respect to an affirmative defense is on the
defendant. But if the defendant persuades the district
court that a reasonable jury could find that he had been
entrapped, the judge must submit the defense to the jury
with an instruction that, to convict, the jury must find
beyond a reasonable doubt that the defendant was not
entrapped. Jacobson v. United States, 503 U.S. 540, 549
(1992); United States v. Pillado, 656 F.3d 754, 763 (7th Cir.
2011). There was enough evidence of entrapment in this
case to require the judge to give such an instruction.
Nos. 10-3725, 10-3726, 11-2262 & 11-2439 23
We should distinguish among three cases in which the
police create an opportunity for someone to commit a
crime and he does so. I will illustrate with bicycle theft. In
case number one, a man is a known bicycle thief or
strongly suspected of being one. The police place an
unlocked bicycle in an area known to be frequented
by him. Sure enough he sees the bike, sees that it’s un-
locked, rides off on it—and is promptly arrested by
police officers who had been watching the bicycle, unob-
served, from afar. In such a case there is no entrapment.
The police arranged for the suspect to commit his usual
crime, only in circumstances in which it would be easy to
apprehend and convict him. “It would be a case in which
the government had merely furnished the opportunity
to commit the crime to someone already predisposed to
commit it . . . . The government’s inducement affects the
timing of the offense; it does not create the offense by
exploiting the susceptibilities of a weak-minded person.”
United States v. Hollingsworth, 27 F.3d 1196, 1203 (7th Cir.
1994) (en banc). “[T]he inducement which brought about
the actual offence was no more than one instance of the
kind of conduct in which the accused was prepared to
engage; and the prosecution has not seduced an
innocent person, but has only provided the means for the
accused to realize his preexisting purpose.” United States
v. Sherman, 200 F.2d 880, 882 (2d Cir. 1952) (L. Hand, J.).
In case number two, a man is known to the police to
have been a bicycle thief, but that was years ago and he’s
gone straight and become respectable. But they want an
easy conviction so they arrange an extraordinary induce-
ment. Pretending to be bicycle thieves they tell him
24 Nos. 10-3725, 10-3726, 11-2262 & 11-2439
they’ll pay him $1,000 to help them steal a bike that they
describe as unusually valuable. He agrees. He had never
made a profit of more than $50 per bike when he was a
bicycle thief. And he needs money because, given his
criminal record, he has been unable to obtain a job that
pays a decent wage. The police stage the theft and then
arrest him. That is entrapment. Jacobson v. United States,
supra, 503 U.S. at 553-54; United States v. Hollingsworth,
supra, 27 F.3d at 1199-1200. He would not, as far as
anyone knows, have ever committed another bicycle
theft had the police not confronted him with an oppor-
tunity far more lucrative than any he had encountered
in his now abandoned criminal career. The police have
thus caused an increase in the number of bicycle thefts,
whereas in the first case they reduced the number of
bicycle thefts by terminating a bicycle thief’s career,
though it would be more accurate to say that the sting
in the first case may well have reduced the number of
bicycle thefts; the reason for the qualification is that
once the thief is taken out of circulation some formerly
law-abiding person may decide to fill the resulting gap
in the ranks of bicycle thieves.
In case number three, the police know the man has
stopped stealing bikes only out of fear of being caught,
and hence that he remains “predisposed” to steal bikes
if circumstances improve. So they arrange the same type
of sting as in case number two, rightly confident that even
if he’d given up stealing bikes he can be enticed by a
promise of $1,000 to steal one more. And he does. There
can be no confidence that had there been no such extra-
ordinary inducement he nevertheless would have com-
Nos. 10-3725, 10-3726, 11-2262 & 11-2439 25
mitted the theft. Often cases say that extraordinary in-
ducements create entrapment even if the defendant
was predisposed to commit the crime. But really what
extraordinary inducements do is show that the
defendant’s commission of the crime for which he’s
being prosecuted is not reliable evidence that he was
predisposed to commit it. Thus, “inducement is sig-
nificant chiefly as evidence bearing on predisposition:
the greater the inducement, the weaker the inference
that in yielding to it the defendant demonstrated that
he was predisposed to commit the crime in question.”
United States v. Hollingsworth, supra, 27 F.3d at 1200. In
contrast, an inducement is “ordinary” when it is “some-
thing close to what unfolds when a sting operation
mirrors the customary execution of the crime charged.”
United States v. Pillado, supra, 656 F.3d at 765; see also
United States v. Sherman, supra, 200 F.2d at 882.
A reasonable jury could have fit Mayfield’s case to our
hypothetical second or third cases had it been permitted
to consider an entrapment defense. So far as appears,
he had never robbed a stash house. It’s true that after
agreeing to participate in the stash-house robbery he
bragged to the government’s undercover agent that he
had robbed stash houses. But he may just have been
trying to reassure the agent, who was to lead the
robbers into the stash house (the agent pretended to be
a drug courier for the house), that he (Mayfield) was
competent to participate in such a dangerous undertak-
ing. He had never even been convicted of a drug offense,
and there is no evidence, other than his boasting, that he
was dealing drugs when approached by the undercover
agent. The jury could also have found that Mayfield’s
26 Nos. 10-3725, 10-3726, 11-2262 & 11-2439
last major criminal act (an armed robbery not involving
drugs) had occurred in the early 1990s; that when
released from prison in 2005, four years before he agreed
to rob the imaginary stash house, he had tried to go
straight—moving away from the city in which he’d
lived and had had criminal associates and getting a legal
job. He had earned his GED, an associate’s degree, and
three vocational certificates in prison, and upon release had
devoted personal time to volunteer activities. There is
no evidence that he had committed any more robberies.
He was 41 at the time of the sting, an age at which
many criminals have aged out of violent crimes.
These were all facts for the jury to weigh (but the
jury was not allowed to do so). The jury could have
found that the defendant had not been predisposed to
rob a stash house. It could have found this even if it
thought him predisposed to commit armed robberies,
for he was offered an extraordinary inducement to rob
the imaginary stash house. Most robberies, even bank
robberies, net little money for the robber. But a stash
house is a potential goldmine. The informant told
Mayfield that there were 25 to 35 kilograms of cocaine
in the stash house. The cocaine was to be divided evenly
among him, his three associates, and the instigator. This
would net him 5 to 7 kilograms of cocaine, with a street
value of $135,000 to $189,000. The potential gain,
coupled with the informant’s eagerness to betray
his supposed employers by revealing the location of
the stash house, created an inducement to commit a
crime that, so far as appears, was unlike any that
Mayfield had ever committed, or that he would ever
have committed had it not been for the sting.
Nos. 10-3725, 10-3726, 11-2262 & 11-2439 27
The inducement would not have been thought extra-
ordinary by a stash house robber. If that is what
Mayfield was, he would have been predisposed to accept
the informant’s offer. But a reasonable jury could have
found that he was not a stash house robber, or even a
drug dealer of any sort, was not predisposed to attempt
a stash house robbery, and accepted the invitation
because of financial desperation.
Not all fictitious stash house stings justify an entrapment
instruction, even though such stings are a disreputable
tactic. Law enforcement uses them to increase the
amount of drugs that can be attributed to the persons
stung, so as to jack up their sentences. Eda Katharine
Tinto, “Undercover Policing, Overstated Culpability” 51-52
(NYU School of Law, Public Law Research Paper No. 12-04,
August 2012; forthcoming in Cardozo Law Review, vol. 34,
2013), http://papers.ssrn.com/sol3/papers.cfm?abstract_
id=2016362 (visited Sept. 4, 2012). And such stings
create an increased risk of entrapment because of
“the potential for the extensive use of inducements and
unrealistic temptations to encourage the suspects’ criminal
conduct.” Id. at 52; see also United States v. Briggs, 623
F.3d 724, 729-30 (9th Cir. 2010). “[T]he government can
‘minimize the obstacles a defendant must overcome to
obtain the drugs.’ For example, the police can convince
a suspect that the stash house robbery would be a shock-
ingly simple and easy crime to commit and can provide
items, such as a car, needed to complete the crime.” Tinto,
supra, at 52-53. Nevertheless I accept the rejection of an
entrapment defense in the superficially similar case of
United States v. Hall, 608 F.3d 340, 343-44 (7th Cir.
28 Nos. 10-3725, 10-3726, 11-2262 & 11-2439
2010). The court thought the defendant predisposed to
rob a stash house, and the expected profit to him
seemed modest, which was evidence of predisposition.
The evidence of predisposition in this case is altogether
thinner.
The government’s major argument is that Mayfield’s
wholehearted commitment to the scheme once he
decided to join proves predisposition—the government’s
brief barely mentions events before he agreed to par-
ticipate in the robbery. But it is hardly surprising that
having yielded to an extraordinary inducement he
would do everything possible to earn the promised
reward. If the defendant “was indeed entrapped, it is
irrelevant that the entrapment was so effective as to
make him not only a willing but an eager participant.”
United States v. Evans, 924 F.2d 714, 716 (7th Cir. 1991); cf.
Sherman v. United States, 356 U.S. 369, 373-74 (1958) (the
same defendant as in Judge Hand’s case, which I cited
earlier, but a subsequent appeal). Moreover, robbing a
stash house is a dangerous business; the undercover
agent told Mayfield that the robbers would encounter
three armed men inside, who would kill to thwart a
robbery. It was natural that Mayfield should seek to
reduce the danger to himself by recruiting associates.
It’s not as if he’d agreed to the scheme when the felon
who was working for the police as an informant on a
commission basis first proposed it to him. The
informant, a coworker, knew Mayfield had a crim-
inal past, and may have thought him likely to be per-
suadable to commit a crime because he expressed con-
Nos. 10-3725, 10-3726, 11-2262 & 11-2439 29
cern about his low wage. According to Mayfield, the
informant’s first suggestion was that Mayfield join him
in selling cocaine. He refused. Next the informant told
him that his (the informant’s) drug supplier (actually
it was a government undercover agent for whom the
informant worked) wanted to rob a stash house and that
if Mayfield joined in the caper he would earn tens of
thousands of dollars. Again Mayfield refused. The infor-
mant kept badgering him, without success. Then May-
field’s car was damaged in an accident, and he didn’t
have enough money to repair it. The informant lent
him $180—and kept on badgering him to join in robbing
the stash house. The informant pointed to the Gangster
Disciples tattoo on Mayfield’s arm and said that he
(the informant) was still connected with the gang; a
reasonable jury could have accepted Mayfield’s claim
that he thought the informant was warning him that
he’d better repay the $180—or else. He couldn’t repay
it without the proceeds of the stash-house robbery. So
finally he caved, and agreed to join the scheme. The
majority opinion omits these critical facts.
Mayfield’s prolonged initial reluctance, which appears
to have lasted for weeks, suggests that he wasn’t eagerly
awaiting an opportunity to resume his abandoned life
of crime. It was only when his need for money became
acute and he feared that a failure to pay his debt to the
informant would place his life in danger that the lure of
participating in a robbery that would net him a large
amount of money became irresistible. Or so at least the
jury might have found had it been allowed to consider
his entrapment defense.
30 Nos. 10-3725, 10-3726, 11-2262 & 11-2439
Criminals do sometimes change and get their lives
back on track and we don’t want the government
pushing them back into a life of crime. Sherman v. United
States, supra, 356 U.S. at 375-76. This may be a case like
Sherman in which “the Government plays on the weak-
nesses of an innocent party and beguiles him into com-
mitting crimes which he otherwise would not have at-
tempted.” Id. at 376 (footnote omitted). Sherman like
Mayfield had a criminal record but was trying to go
straight.
I do not say that Mayfield was entrapped. But there
is considerable evidence that he may have been, and,
considering the stakes (he was sentenced to 322 months
in prison, close to a life sentence given his age), he
was entitled to present an entrapment defense to the
jury. The government would have had a heavy burden
of disproving the defense.
In closing I want to say something about the sentence
and about the criticized practice of fictitious stash house
stings; these are related. I cannot imagine the sense of
imprisoning Mayfield for 27 years (minus modest good-
time credit if he behaves himself). I should think a
sentence of 5 years more than adequate. Can there be
any serious concern that upon emerging he would
embark on a career of robbing stash houses? That if
approached by anyone inviting him to launch such a
career he would listen to the person? Is there anything
in the record to make such a possibility real? Before
succumbing to the blandishments of the informant, May-
field was working at an honest job. He was supporting
Nos. 10-3725, 10-3726, 11-2262 & 11-2439 31
himself. He was not a public charge. Now, as a result of
the sting, we the taxpayers will be supporting him at
considerable expense for the next quarter century.
Does that make any sense?
And now consider the role of such stings in the “war on
drugs.” Are they likely to reduce the sale and use of
illegal drugs? No; they are likely to have the opposite
effect. Stash house robbers do not increase the amount
of drugs in circulation, since they steal their drugs
instead of making or importing them. The effect of a
fictitious stash house sting, when the person stung is,
unlike Mayfield, a real stash house robber, is therefore
to make stash houses more secure by reducing the likeli-
hood of their being robbed. A sting both eliminates
one potential stash house robber (unless the defendant
was entrapped) and deters other criminals from joining
stash house robberies, since they may turn out to be
stings. The greater security that fictitious stash house
stings confer on real stash houses—security obtained at
no cost to the operators of stash houses—reduces their
cost of self-protection, which is a principal cost of the
illegal-drug business. The lower a business’s costs, the
lower the prices charged consumers, and so the greater
the demand for illegal drugs and the more sales and
consumption of them. The operators of stash houses
would pay law enforcement to sting potential stash house
robbers.
9-26-12