United States v. Tommy Adams , 746 F.3d 734 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 12-2125, 12-2379, 12-2759, and 12-2975
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TOMMY ADAMS, CHRISTOPHER
HUNTER, LADONTA GILL, and DANA
BOSTIC,
Defendants-Appellants.
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 CR 673 — Matthew F. Kennelly, Judge.
ARGUED SEPTEMBER 26, 2013 — DECIDED FEBRUARY 26, 2014
Before POSNER, MANION, and KANNE, Circuit Judges.
MANION, Circuit Judge. Christopher Hunter, Tommy
Adams, Ladonta Gill, and Dana Bostic were charged (along
with ten others) in a multi-count indictment with conspiracy to
possess with intent to distribute, and distribution of 1000
grams or more of mixtures and substances containing a
detectable amount of heroin, in violation of 21 U.S.C. § 846 and
§ 841(a)(1). All four eventually pleaded guilty and now appeal
either (or both) their convictions and sentences. Because
Hunter entered a blind guilty plea, thereby waiving his right
2 Nos. 12-2125, 12-2379, 12-2759, and 12-2975
to appeal pre-trial rulings, we dismiss his appeal. We also
reject Adams’s contention on appeal that the district court
erred in calculating the quantity of heroin for which he was
responsible. However, we agree with Gill and Bostic that the
district court erred in enhancing their guideline offense levels
for maintaining a “stash house” because that guideline
provision was not in effect during the commission of their
offenses. Thus, we remand for the limited purpose of allowing
the district court to resentence Gill and Bostic based on the
correct guideline range. We reject, though, Bostic’s attempt to
challenge his guilty plea because the change of plea hearing
establishes his plea was knowing and voluntary. We also reject
Bostic’s assertion that the district court erred in considering, as
a sentencing factor, violence engaged in by the New Breeds
gang without specifying what acts of violence it was holding
him responsible for. We do not require a district court to make
specific findings concerning the § 3553 factors. It is clear the
court considered them and we are able to fully review the
sentence. Accordingly, we DISMISS in part, AFFIRM in part,
and REVERSE and REMAND, in part.
I.
Dana Bostic controlled the New Breeds gang which
operated on the west side of Chicago and which, among other
things, ran a large heroin distribution operation. In the fall of
2009, the Chicago Police Department and the Drug Enforce-
ment Administration (“DEA”) launched an investigation into
the New Breeds organization and its heroin trafficking. As part
of the investigation, the Chicago Police Department and the
DEA conducted controlled purchases of heroin; conducted
surveillance; interviewed informants and cooperating wit-
Nos. 12-2125, 12-2379, 12-2759, and 12-2975 3
nesses; obtained court-authorized wiretaps; and seized more
than 8 kilograms of heroin, as well as numerous firearms.
The investigation revealed that approximately two or three
times a week, Bostic obtained 100 to 200 grams of heroin from
his heroin suppliers, paying the suppliers $6,500 per 100 grams
of heroin. After obtaining these wholesale quantities of heroin,
Bostic and higher-ups in the New Breeds gang, including
Ladonta Gill, took the heroin to various stash houses where
they mixed the wholesale quantities of heroin with additives
in order to dilute the quality and increase the quantity of
heroin for street sales. This cutting process doubled the
amount of heroin that made it to the streets.
After cutting the heroin, street supervisors and runners,
such as Aaron Bagley and Maurice Davis, distributed the
drugs to street sellers in the form of a “pack” or a “jab.” These
were strips of tape or baggies containing 13 or 14 user-quanti-
ties of heroin. Each user-quantity of heroin was about .1 gram
and sold for $10. After selling a jab of heroin, the street sellers
typically returned $100 to the street supervisor and kept, as
compensation, the remaining proceeds, either in cash or heroin.
Daily sales of the Bostic heroin totaled between $4,000 and
$10,000.
Street sellers sold the Bostic heroin on a daily basis, from
about 6:00 a.m. to at least 8:00 p.m., in an area controlled by the
Bostic organization and bordered by Pulaski, Van Buren,
Congress and Karlov Streets. Typically four or five street
sellers would be selling the heroin in the Bostic drug territory
at any given time. Tommy Adams and Christopher Hunter
were two such sellers.
4 Nos. 12-2125, 12-2379, 12-2759, and 12-2975
Based on this and extensive additional evidence, the
government on November 3, 2010, charged Bostic, Gill,
Hunter, Adams, and ten others in a twenty-two-count indict-
ment with conspiracy to possess with intent to distribute, and
distribution of 1000 grams or more of mixtures and substances
containing a detectable amount of heroin, in violation of 21
U.S.C. § 846 and § 841(a)(1).
This appeal involves only the four above-named co-
conspirators, all of whom, under different circumstances,
pleaded guilty. Hunter pleaded guilty under a blind plea to
Count One of the indictment pursuant to a written plea
declaration. In that plea declaration, Hunter unilaterally stated
that he “expressly reserve[d] the right to appeal” the district
court’s denial of his motion to suppress Title III wiretap
evidence. Hunter now seeks review of the denial of that
motion to suppress.
Adams pleaded guilty pursuant to a written plea agree-
ment. In his plea agreement, he reserved the right to contest
the amount of heroin attributable to him. On appeal, Adams
contends that the district court clearly erred in attributing
between one and three kilograms of heroin to him which,
given his career offender status, resulted in a mandatory
minimum sentence of ten years and a guideline range of 262 to
327 months’ imprisonment. The district court sentenced
Adams to 180 months’ imprisonment.
Gill pleaded guilty pursuant to a plea agreement and
reserved his right to appeal his sentence. He now challenges
the district court’s calculation of his sentencing level; specifi-
cally, he argues the district court wrongly enhanced his
sentencing level by two for maintaining a stash house, under
U.S.S.G. § 2D1.1(b)(12).
Nos. 12-2125, 12-2379, 12-2759, and 12-2975 5
Bostic entered a blind guilty plea. He now claims that his
guilty plea was involuntary because he was not informed that
his guilty plea would preclude him from challenging the
district court’s denial of the emergency motion to continue the
trial he had filed shortly before he pleaded guilty. Bostic also
attempts to challenge that denial on appeal. And like Gill, Bost-
ic argues that the district court erred in enhancing his sentence
for maintaining a stash house. Finally, Bostic maintains that the
district court erred in sentencing him based on violence
undertaken by various co-conspirators, without specifying the
violence the court attributed to Bostic.
II.
A. Hunter’s Appeal
First, we consider Hunter’s appeal. Hunter attempts to
challenge the district court’s denial of his motion to suppress
various incriminating evidence obtained through Title III
wiretaps. “But there is an immediate and obvious barrier to his
appeal.” United States v. Adigun, 703 F.3d 1014, 1018 (7th Cir.
2012). Hunter entered an unconditional “blind plea” of guilty.
And “[a]n unconditional guilty plea precludes challenge to the
denial of a motion to suppress because the guilty plea consti-
tutes a waiver of non-jurisdictional defects occurring prior to
the plea.” Id. at 1014–15.
In his opening appellate brief, Hunter’s attorney stated that
in his plea declaration, Hunter had expressly reserved the right
to appeal the denial of his motion to suppress. But a defendant
cannot unilaterally reserve the right to appeal pretrial motions.
Rather, Fed. R. Crim. P. 11(a)(2) requires both the government
and the district court to agree to a conditional plea. There was
no such acquiescence in this case. At no time during the change
6 Nos. 12-2125, 12-2379, 12-2759, and 12-2975
of plea hearing did Hunter or his attorney raise his attempt to
reserve the right to appeal the denial of his motion to suppress.
When a defendant fails to comply with Rule 11(a)(2)’s require-
ments of obtaining “unequivocal government acquiescence”
and “the explicit consent of the district court,” this court lacks
jurisdiction to hear those claims. United States v. Combs, 657
F.3d 565, 569 (7th Cir. 2011).
At oral argument, Hunter’s attorney conceded the error and
asserted that his failure to obtain the government and district
court’s approval of the reservation could constitute ineffective
assistance of counsel. Whether this failure does in fact consti-
tute ineffective assistance of counsel is questionable. See
Adigun, 703 F.3d at 1020 n.1. But, as Hunter’s attorney also
recognized, it would not be appropriate for him to argue his
own ineffectiveness in this appeal. So we leave that question
for another day and reject Hunter’s attempt to now challenge
the denial of the motion to suppress.
B. Adams’s Appeal
On appeal, Adams challenges only his sentence. Specifi-
cally, he argues that the district court erred in determining that
he was responsible for between one and three kilograms of
heroin. The district court found Adams responsible for this
quantity of heroin based on the heroin he personally sold, as
well as the heroin sold by other street-level sellers who were
working alongside him during the 6:00 a.m. to noon shift.1
1
The amount of heroin Adams personally sold totaled less than one
kilogram of heroin. The mandatory minimum sentence for less than one
kilogram of heroin is five years; whereas, for quantities of one to three
kilograms of heroin, the mandatory minimum sentence is ten years. The
(continued...)
Nos. 12-2125, 12-2379, 12-2759, and 12-2975 7
This court reviews a district court’s drug quantity finding
for clear error. United States v. Barnes, 602 F.3d 790, 794 (7th Cir.
2010). We will reverse such a finding only if, “after reviewing
the entire record, [we] are left with the firm and definite
conviction that a mistake has been made.” United States v.
Marty, 450 F.3d 687, 689–90 (7th Cir. 2006).
Under the sentencing guidelines, the drug quantity
attributable to a defendant includes “all reasonably foreseeable
acts and omissions of others in furtherance of the jointly
undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). “A
‘jointly undertaken criminal activity’ is a criminal plan,
scheme, endeavor, or enterprise undertaken by the defendant
in concert with others, whether or not charged as a conspir-
acy.” U.S.S.G. § 1B1.3(a)(1)(B), Application Note 2. And “[i]n
determining the scope of the criminal activity that the particu-
lar defendant agreed to jointly undertake (i.e., the scope of the
specific conduct and objectives embraced by the defendant’s
agreement), the court may consider any explicit agreement or
implicit agreement fairly inferred from the conduct of the
defendant and others.” Id.
Adams argues that the district court clearly erred in
holding him responsible for quantities of heroin sold by other
street-level sellers, claiming that those sales were not a “jointly
undertaken criminal activity.” Adams bases his argument in
large part on Application Note 2(c)(6) to U.S.S.G.
§ 1B1.3(a)(1)(B). That note illustrates the concept of “jointly
1
(...continued)
higher quantity of heroin involved also translated into a total guideline
offense level three levels higher.
8 Nos. 12-2125, 12-2379, 12-2759, and 12-2975
undertaken criminal activity” with this example and explanation:
Defendant P is a street-level drug dealer who knows
of other street-level drug dealers in the same geo-
graphic area who sell the same type of drug as he
sells. Defendant P and the other dealers share a
common source of supply, but otherwise operate
independently. Defendant P is not accountable for
the quantities of drugs sold by the other street-level
drug dealers because he is not engaged in a jointly
undertaken criminal activity with them. In contrast,
Defendant Q, another street-level drug dealer, pools
his resources and profits with four other street-level
drug dealers. Defendant Q is engaged in a jointly
undertaken criminal activity and, therefore, he is
accountable under subsection (a)(1)(B) for the
quantities of drugs sold by the four other dealers
during the course of his joint undertaking with them
because those sales were in furtherance of the jointly
undertaken criminal activity and reasonably foresee-
able in connection with that criminal activity.
U.S.S.G. § 1B1.3(a)(1)(B), Application Note 2(c)(6).
Adams argues that he is like Defendant P, operating
independently from the other street-level sellers. Or as he put
it at oral argument—he was merely an independent contractor,
running a separate franchise. Thus, according to Adams, he
was not acting jointly with the other street-level sellers for
purposes of 1B1.3(a)(1)(B).
At first blush, Application Note 2(c)(6) seems to fit Adams’s
scenario. But as the Application Notes also explain:
Nos. 12-2125, 12-2379, 12-2759, and 12-2975 9
[I]n cases involving contraband (including con-
trolled substances), the scope of the jointly under-
taken criminal activity (and thus the accountability
of the defendant for the contraband that was the
object of that jointly undertaken activity) may
depend upon whether, in the particular circum-
stances, the nature of the offense is more appropri-
ately viewed as one jointly undertaken criminal
activity or as a number of separate criminal activi-
ties.
U.S.S.G. § 1B1.3(a)(1)(B), Application Note 2(c)(8).
The “particular circumstances” involved here change the
complexion of this case. In this case, Adams admitted at his
change of plea hearing that he was one of three or four other
street-level sellers who worked between 6:00 a.m. and noon,
“selling heroin on behalf of Bagley and other New Breeds gang
members.” See Adams’s Change of Plea Hearing at 22–23.
Bagley was a street supervisor who distributed the heroin to
Adams and the other street sellers and then collected the
proceeds. While Adams stated that his knowledge of the other
individuals in the distribution chain above Bagley was limited,
he otherwise agreed with the government’s proffer of the
factual basis for the change of plea, which included the
statement that he and the other street sellers sold heroin “on
behalf of Bagley and other New Breeds gang members.” He
also agreed with the government’s characterization of Bagley
as a “supervisor.” Thus, in this case, Adams and the other
street sellers were working for the same organization, during
the same shift (6:00 a.m. to noon), for the same supervisor, and
selling heroin owned by that organization. Adams also was not
merely working in “the same geographic area” as the other
10 Nos. 12-2125, 12-2379, 12-2759, and 12-2975
street-level sellers; he was “working as a street worker in
Bostic’s organization,” selling drugs in the a territory con-
trolled by the New Breeds gang.2
These facts speak not of several street-level sellers operat-
ing independently to run their own drug franchises, but rather
of the Bostic organization running one drug store with several
employees staffing the various shifts. In fact, that was the
government’s theory before the district court—that the Bostic
organization ran an open-air drug store which attracted
customers by having so many sellers available with its product.
The government explained that by having a ready access to
drugs and several sellers on hand, the Bostic organization
attracted customers to the market. And thus, while Adams and
the other street-level sellers might be competing for their
commission, the government argued that
because of the number of sellers all working there
for the Bostic organization, customers could come
in, [take the “L”], and they knew they would find
sellers there who were selling heroin openly on the
street. These people were not competing with each
other. The reality is that you needed the sheer
critical mass of people to make this a successful
2
The government also represented at oral argument that the street sellers
alerted each other to the presence of police. The government, though, did
not rely on this fact at sentencing. Clearly, this fact would further show that
the street sellers were working together to further the same endeavor. But
there was apparently much about the New Breeds gang left unsaid at
sentencing. See Mick Dumke, “Anatomy of a Heroin Ring,” Chicago Reader,
Feb. 14, 2013,
http://www.chicagoreader.com/chicago/gang-violence-heroin-new-breed
s-vice-lords/Content?oid=8761736 (visited Feb. 8, 2014).
Nos. 12-2125, 12-2379, 12-2759, and 12-2975 11
open-air drug market, and the defendant was a part
of that. The people who were out there were not
competing with him. They were part of the reason
that they were able to draw customers in from all
over the city.
The district court found the government’s argument
persuasive and, given the facts of this case, that conclusion was
eminently reasonable.
Similarly, in a case involving crack dealers operating out of
the same house—but arguably with different suppliers—the
Fifth Circuit found the “marketing symbiosis” supported a
finding of jointly undertaken criminal activity. See United States
v. Smith, 13 F.3d 860, 864–65 (5th Cir. 1994). In Smith, Smith,
Cheney and Adams were dealers operating out of the same
crack house. Smith’s co-defendant, Phillips, had flagged down
two undercover officers who indicated they wanted some
“rocks.” Phillips directed them to the crack house and the trio
showed the officers their wares. The officers purchased some
crack from Smith and then gave the “bust” signal and a raid
ensued. The four retreated into the house, where they were
arrested. None had crack on his person, but officers recovered
3.9 grams of cocaine base from the floor of the house. That
crack was of a different purity and color than the crack Smith
had sold the undercover agents. Smith maintained that it was
not her crack and that therefore the district court erred in
sentencing her based the amount of crack she sold, plus the 3.9
grams recovered from the house.
On appeal, the Fifth Circuit held that Smith was responsible
for the crack recovered from the premises even if it was owned
by a different dealer, because the facts support a finding that
“Smith agreed to engage in jointly undertaken criminal activity
12 Nos. 12-2125, 12-2379, 12-2759, and 12-2975
with Cheney and Adams.”3 In reaching this conclusion, the
Smith court reasoned,
the house had become a very rudimentary shopping
center or flea market for crack, replete with Phillips,
its “barker,” and the friendly competitors who as a
whole created a marketing site greater than the sum
of its parts. The presence of multiple, part-time
pushers and a larger supply for users produced a
marketing symbiosis that far outweighed its minor
competitive aspect.
Id.The facts in this case are even more demonstrative of a
jointly undertaken criminal activity than the facts in Smith.
First, in this case, Adams and the other sellers working the
morning shift in Bostic’s open-air drug market did not own the
drugs. While that factor is not dispositive, it shows that Adams
had much less independence than the dealers in Smith. Yet the
Fifth Circuit found Smith had engaged in jointly undertaken
criminal activity with the two other dealers. Second, in Smith,
there was evidence the crack came from different sources, id.
at 864, which also indicates more independence. Here, though,
Adams and the other sellers were “selling heroin on behalf of
Bagley and other New Breeds gang members.” See Adams’s
Change of Plea Hearing at 22–23. Thus, the facts in this case are
3
Cheney and Adams were not charged federally. See Smith, 13 F.3d at 862
n.2. And while Phillips was also held responsible for the 3.9 grams of crack
recovered from inside the house, the Fifth Circuit reversed his sentence and
remanded for resentencing because the government had not presented any
evidence, and the district court had not found, that Phillips had jointly
undertaken criminal activity with Cheney and Adams.
Nos. 12-2125, 12-2379, 12-2759, and 12-2975 13
even more supportive of a finding of jointly undertaken
criminal activity than those at issue in Smith.
Moreover, even if Adams’s independent contractor charac-
terization was a reasonable view of the facts, there was no clear
error because “[w]here there are two permissible views of the
evidence, the fact-finder’s choice between them cannot be
clearly erroneous.” United States v. Bush, 79 F.3d 64, 66 (7th Cir.
1996). Accordingly, we cannot say that the district court clearly
erred in finding Adams acted jointly with the other street-level
sellers who staffed the Bostic open-air market during the
morning shift and sold drugs on behalf of Bagley and other
New Breeds gang members.
Adams does not claim that the sales of the other sellers
were not foreseeable to him. Nor does he contest that, if he is
held accountable for the drugs sold by the other street-level
sellers during the shifts he worked, the quantity of drugs
involved was between one and three kilograms of heroin.
Accordingly, because the district court did not clearly err in
finding those sales part of the jointly undertaken criminal
activity, the district court did not err in holding Adams
responsible for between one and three kilograms of heroin and
sentencing him accordingly.
C. Gill’s Appeal
Like Adams, Gill only challenges his sentence. He argues
that the district court erred in enhancing his sentencing level
by two for maintaining a stash house, pursuant to U.S.S.G.
§ 2D1.1(b)(12). Specifically, Gill maintains that applying this
enhancement in his case violated the Ex Post Facto clause of
the Constitution because the conspiracy ended “on or about
14 Nos. 12-2125, 12-2379, 12-2759, and 12-2975
August 10, 2010” but the sentencing enhancement was not
effective until November 2010.
At the time the district court sentenced Gill, the controlling
law in this circuit was that, because the guidelines were
discretionary, there was no Ex Post Facto concern. See United
States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006). This court
declined to overrule Demaree on several occasions, including in
United States v. Peugh, 675 F.3d 736, 741 (7th Cir. 2012). How-
ever, the Supreme Court, overruled Demaree in Peugh v. United
States, 133 S.Ct. 2072, 2088 (2013), holding that “a court’s use of
the Guidelines in effect at the time of sentencing was an ex post
facto violation, as the Guidelines had changed to the detriment
of the defendant after he committed his offenses.”
The government acknowledges that under Peugh, Gill’s
sentence should be reversed and the case remanded. The
parties disagree, though, on the scope of remand. The govern-
ment argues that a limited remand is appropriate, citing United
States v. Paladino, 401 F.3d 471, 483–84 (7th Cir. 2005). A
Paladino remand involves our “retaining jurisdiction of the
appeal, [while] order[ing] a limited remand to permit the
sentencing judge to determine whether he would (if required
to resentence) reimpose his original sentence.” Id.A limited Paladino remand is not appropriate in this case.
The Paladino line of cases did not involve the incorrect calcula-
tion of the guidelines range. United States v. Williams, No. 13-
1260, 2014 WL 486244, at *2 (7th Cir. Feb. 7, 2014) (citing
Paladino, 401 F.3d at 483–85). When a district court incorrectly
calculates the guideline range, we normally presume the
improperly calculated guideline range influenced the judge’s
choice of sentence, unless he says otherwise. See, e.g., United
States v. Goodwin, 717 F.3d 511, 520–21 (7th Cir. 2013). Accord-
Nos. 12-2125, 12-2379, 12-2759, and 12-2975 15
ingly, we have concluded that where the error involves the
incorrect guideline calculation, the Paladino procedure is not
appropriate. Williams, 2014 WL 486244, at *2. Thus, in the case
before us a Paladino limited remand is not appropriate.
But we also do not accept Adams’s suggestion that we
order a general remand, as defined in United States v. Barnes,
660 F.3d 1000, 1006 (7th Cir. 2011). In Barnes, “we conclude[d]
that, upon a general remand for resentencing, a district court
may permit new arguments and evidence as it deems necessary
to re-fashion its sentence.” Id. (emphasis added). We added
that a “[g]eneral remand does not, however, entitle the defen-
dants to present new arguments and evidence beyond that
pertinent to the issues raised on appeal.” Id. (emphasis added).
While a general remand is the typical course of action,
United States v. Simms, 721 F.3d 850, 852 (7th Cir. 2013), in some
cases it has caused unnecessary confusion and wasted judicial
resources. The confusion stems, in part, from the
misperception that a general remand requires a district court to
start from scratch. It does not. Barnes, 660 F.3d at 1006; Simms,
721 F.3d at 852. Further, even with a general remand, the
district court’s discretion to consider new arguments is limited
by “[t]wo related principles, the mandate rule and the law of
the case doctrine, [which] prohibit a district court from
revisiting certain issues on remand. The mandate rule requires
a lower court to adhere to the commands of a higher court on
remand.” United States v. Polland, 56 F.3d 776, 777 (7th Cir.
1995). For instance, where this court stated that “the sentence
is Vacated, and the case is Remanded for resentencing on the
issue of obstruction of justice,” we held based on the mandate
rule that “the only issue properly before the district court was
the appropriateness of an enhancement for obstructing justice.”
16 Nos. 12-2125, 12-2379, 12-2759, and 12-2975
Id. at 778. “The law of the case doctrine is a corollary to the
mandate rule and prohibits a lower court from reconsidering
on remand an issue expressly or impliedly decided by a higher
court absent certain circumstances.” Polland, 56 F.3d at 779.
Thus, the law of the case doctrine precludes a defendant from
raising an argument not raised during his first appeal. See
United States v. Sumner, 325 F.3d 884, 891 (7th Cir. 2003); see also
United States v. Whitlow, 740 F.3d 433, 438 (7th Cir. 2014) (“In
assessing the scope of our initial remand, an issue that could
have been raised on appeal but was not is waived and,
therefore, not remanded.”).
Unfortunately, a general remand may leave the parties and
the district court to sort out the parameters of mandamus and
the law of the case doctrine. As a result, this court has faced
several successive appeals which focused mainly on the scope
of the district court’s authority on remand. See, e.g., Whitlow,
740 F.3d at 438–40; Simms, 721 F.3d at 852; United States v.
White, 406 F.3d 827 (7th Cir. 2005); United States v. Young, 66
F.3d 830, 835–37 (7th Cir. 1995); Polland, 56 F.3d at 777–79.
These cases illustrate the waste of judicial resources
sometimes stemming from a general remand. And it is an
unnecessary waste given that Congress has authorized
appellate courts, pursuant to 28 U.S.C. § 2106,4 to “issue
4
Section 2106 provides: “The Supreme Court or any other court of
appellate jurisdiction may affirm, modify, vacate, set aside or reverse any
judgment, decree or order of a court lawfully brought before it for review,
and may remand the cause and direct the entry of such appropriate
judgment, decree, or order, or require such further proceedings to be had
as may be just under the circumstances.” That section applies in the
sentencing context to allow us to limit remand to certain issues or order
(continued...)
Nos. 12-2125, 12-2379, 12-2759, and 12-2975 17
general or limited remands to the district courts.” Young, 66
F.3d at 835. But here we are speaking not of a Paladino
jurisdiction-retaining limited remand, but of “a second type of
limited remand, where the appellate court returns the case to
the trial court but with instructions to make a ruling or other
determination on a specific issue or issues and do nothing
else.” Simms, 721 F.3d at 852.
We find this type of limited remand appropriate here for
reasons of efficiency and judicial economy because it expressly
informs the parties of the scope of our remand, and thereby
preempts unnecessary litigation concerning the district court’s
authority on remand. Accordingly, we remand Gill’s case for
resentencing for the limited purpose of sentencing him based
on the correct guideline level of 38 and guideline range of 292
to 365 months’ imprisonment.5 This limited remand does not,
however, limit the district court’s discretion to hold (or not
hold) further proceedings and consider further arguments to
determine Gill’s sentence based on the § 3553 factors. We
merely limit its authority to reopen the guideline range
calculation. We do so because Gill has already had one
opportunity to present to the district court arguments concern-
ing the guideline range calculation. He has already had one
opportunity to challenge in this court the district court’s ruling
on those arguments. On appeal, Gill challenged only one
ruling—the stash house enhancement. Because Gill’s appeal
presented no other sentencing issues, resentencing should
4
(...continued)
complete resentencing. See Young, 66 F.3d 830, 835 (7th Cir. 1995).
5
The two-level stash house enhancement had raised Gill’s offense level to
40, which resulted in a sentence range of 360 months to life imprisonment.
18 Nos. 12-2125, 12-2379, 12-2759, and 12-2975
similarly be limited to correcting the Ex Post Facto violation
and then sentencing him based on the proper guideline range.
He should not be able to “use the accident of a remand to raise
in a second appeal an issue that he could just as well have
raised in the first appeal because the remand did not affect it.”6
United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996).
However, we have no way of knowing (at least based on
this record) whether a different guideline range would have
prompted the district court to weigh the § 3553 factors differ-
ently. Accordingly, the district court may, if it believes it
appropriate, allow new arguments and a new hearing on the
§ 3553 factors. We stress, though, that this is a may—not a must.
As with a general remand, the district court need not hold
further proceedings or consider further argument.
One final note before closing: While we call this a limited
remand, the remand is still very broad. But a court may fashion
a limited remand as narrowly or broadly as it deems appropri-
ate. Young, 66 F.3d at 835. It might also seem that our limited
remand is no different than a general remand, given that the
latter has the same limitations based on mandamus and the
law of the case doctrine. In a sense that is true because we are
merely stating explicitly (so as to avoid unnecessary litigation)
what is implicit. See Husband, 312 F.3d 247, 251 (7th Cir. 2002)
6
In some cases, “vacating a part of a sentence may justify or even require
a new sentencing hearing. …” See Simms, 721 F.3d at 853. “[T]he calculus is
a practical one” and sometimes a de novo sentencing is necessitated because
“enhancements are inter-connected and the district court's original
sentencing intent may be undermined by altering one portion of the
calculus.” White, 406 F.3d at 832. But this case does not present such a
situation. The stash house enhancement was not interconnected with other
aspects of the guideline range calculation.
Nos. 12-2125, 12-2379, 12-2759, and 12-2975 19
(the court “may explicitly remand certain issues exclusive of all
others; but the same result may also be accomplished implic-
itly”). In other words, our label is not important—our directive
is.
D. Bostic’s Appeal
Finally, we consider Bostic’s appeal. Bostic pleaded guilty
without benefit of a plea agreement, but in doing so executed
a written plea declaration. Bostic now claims that his guilty
plea was involuntary because he was not informed that his
guilty plea would preclude him from challenging the district
court’s earlier denial of his emergency motion to continue the
trial.
At this point, a few additional background facts are needed:
Bostic’s trial had been set (after being rescheduled once) for
February 27, 2010. On February 16, 2010, Bostic’s attorneys had
filed an emergency motion to continue the trial, arguing they
had only recently observed that Bostic was “basically illiterate”
and needed more time to ensure he understood the evidence.
Bostic’s attorneys also argued that they needed more time to
prepare because the government recently informed them that
it was obtaining Bostic’s jail phone calls from the last six mont-
hs and they needed a chance to review those calls. The district
court denied the emergency motion to continue on the same
day it was filed—February 16, 2010—and six days later, Bostic
pleaded guilty to conspiracy to possess with intent to distrib-
ute heroin.
As noted above, Bostic claims on appeal that his plea was
not knowing and voluntary. “A guilty plea must be both a
knowing and voluntary act.” Key v. United States, 806 F.2d 133,
136 (7th Cir. 1986). “To ensure this, Federal Rule of Criminal
20 Nos. 12-2125, 12-2379, 12-2759, and 12-2975
Procedure 11(d) requires that the trial judge ask the defendant
specific questions concerning the voluntariness of the plea
agreement. This questioning creates a record that can be used
in future appeals and collateral attacks,” and that “record is
entitled to a presumption of verity.” Id. Not only is the record
entitled to a presumption of truth, but because Bostic never
sought to withdraw his guilty plea in the district court, our
review is for plain error. United States v. Davenport, 719 F.3d
616, 618 (7th Cir. 2013).
In this case, the Rule 11 record establishes that Bostic’s plea
was both knowing and voluntary. During the Rule 11 colloquy,
the district court asked Bostic: “Has anybody tried to force you,
threaten you, or coerce you or intimidate you to get you to
plead guilty?” Bostic responded “No.” The court then asked:
“Are you pleading guilty to this particular charge of your own
free will?” And Bostic responded “Yes.” The district court also
inquired whether Bostic was under the influence of alcohol or
drugs or suffered from any mental impairment, and Bostic
indicated he had no such issues. The court also asked whether
Bostic had had the opportunity to discuss the charges and the
plea with his attorneys and whether Bostic had any concerns
about his legal representation. Bostic told the court he had
discussed the charges and his guilty plea with his attorneys
and that he was satisfied with his legal representation. The
district court also detailed the many rights Bostic would be
giving up if he pleaded guilty and Bostic stated he understood
the court’s explanation.
In response, Bostic argues that his plea was involuntary
because the district court did not expressly inform him that by
pleading guilty he was waiving the right to appeal the denial
of his motion to continue the trial date. Rule 11(b)(1) of the
Nos. 12-2125, 12-2379, 12-2759, and 12-2975 21
Federal Rules of Criminal Procedure enumerates with specific-
ity the rights of which a district court must inform “the
defendant personally [and] in open court.” See Fed. R. Crim. P.
11(b)(1)(A) – (O). In the case of a plea agreement, the district
court must inform the defendant of “the terms of any plea-
agreement provision waiving the right to appeal or to collater-
ally attack the sentence.” Rule 11(b)(1)(N). But in the case of a
blind plea, Rule 11(b)(1) does not similarly require the district
court to inform the defendant that he is waiving the right to
appeal pretrial rulings. And “[w]e have previously held that
the trial court is not obligated to inform defendants of the
consequences of an unconditional plea on a potential appeal.”
Adigun, 703 F.3d at 1020 (citing United States v. Fisher, 772 F.2d
371, 375 (7th Cir. 1985)). Nonetheless, as we said in Adigun, it
would be better for the district court to explicitly inform
defendants that they are waiving the right to appeal pretrial
rulings to eliminate further controversy. Adigun, 703 F.3d at
1020.
But even if it were error for the district court not to inform
Bostic that he was waiving his right to appeal the denial of his
motion for a continuance, any error would be harmless.
Violations of Rule 11 are harmless if a defendant already knew
the omitted information. See United States v. Driver, 242 F.3d
767, 769 (7th Cir. 2001). Here, the plea declaration Bostic signed
stated: “Mr. Bostic further understands that he is waiving all
appellate issues that might have been available if he had
exercised his right to trial, and only may appeal the validity of
this plea of guilty or the sentence he receives.” And during the
change of plea hearing, Bostic testified that he had read the
entire plea declaration carefully before signing it and that
when he read it he did not have any trouble understanding it.
22 Nos. 12-2125, 12-2379, 12-2759, and 12-2975
Bostic also said he discussed the plea declaration with his
attorneys and that they explained to him everything that was
in the declaration. The district court also asked Bostic if he
believed he understood everything in the plea declaration, to
which Bostic responded: “Yes.” Bostic’s attorneys also stated
to the court that they had read the document to Bostic “line by
line, and he has been through each line with us and had them
all explained to him, and we answered all his questions. So I
made sure that he has had it read to him, not just that he tried
to figure it out on his own.” The court then asked Bostic if that
was correct and Bostic said it was. Accordingly, Bostic already
knew that he was waiving his right to appeal the denial of his
motion for a continuance because he agreed that he was
waiving all appellate issues other than ones involving his
sentence or concerning the validity of his plea. Thus, any error
in failing to inform Bostic that he was waiving his right to
appeal would be harmless.
Bostic also argues that his plea was not knowing and
voluntary because he felt he had no option but to plead guilty
when the district court denied his motion for a continuance.7
But Bostic testified under oath that he was pleading guilty of
his own free will and said nothing during the Rule 11 colloquy
which would indicate he felt pressured to plead guilty. Bostic’s
7
In making this argument, Bostic also attempts to challenge the district
court’s underlying denial of his motion to continue the trial date. See
Appellant Brief at 13 (“Bostic presents one challenge to his guilty plea
(which encompasses a challenge to the district court’s denial of his motion
to continue the trial dates).”) However, because Bostic’s plea was knowing
and voluntary and he did not reserve the right to challenge the denial of his
motion for a continuance, his blind plea precludes any challenge to the
denial of his motion to continue the trial date. Adigun, 703 F.3d at 1018.
Nos. 12-2125, 12-2379, 12-2759, and 12-2975 23
statements are presumed true and Bostic presents no basis for
overcoming this presumption and there was no error—plain or
otherwise. See United States v. Walker, 447 F.3d 999, 1004 (7th
Cir. 2006) (rejecting the defendant’s argument that the district
court’s denial of his motion to transfer the case to another
venue rendered his decision involuntary because “he was
‘anguished and distraught’ by the imminent prospect of going
to trial in Terre Haute”). Accordingly, his plea stands.
Bostic also challenges his sentence.8 The district court
determined that Bostic’s total offense level was 42 and given
his criminal history category of II, the guideline range was 360
months to life imprisonment. The district court sentenced
Bostic to 456 months’ imprisonment and characterized that
sentence as approximately in the middle of the guideline
range.
Bostic claims that in sentencing him to 456 months’ impris-
onment the district court committed procedural error in
addressing the § 3553 factors. Specifically, Bostic argues that
the district court erred when it held him responsible for some
of the violence undertaken by the New Breeds gang, but
without identifying which specific acts of violence the court
was holding Bostic responsible for.
We reject this argument. When addressing the § 3553
factors, “although the judge must … articulate the factors that
determined the sentence that he has decided to impose, his
duty ‘to consider’ the statutory factors is not a duty to make
findings.” United States v. Dean, 414 F.3d 725, 729–30 (7th Cir.
2005). “As a general matter, the record must merely assure us
8
A blind plea of guilty does not waive a defendant’s right to appeal his
sentence.
24 Nos. 12-2125, 12-2379, 12-2759, and 12-2975
that the court thoughtfully considered the statutory provis-
ions.” United States v. Nania, 724 F.3d 824, 838 (7th Cir. 2013).
Explicit findings are required only
to the extent necessary to fulfill two purposes: (1)
“enabl[ing] this court to meaningfully review the
district court’s decision,” United States v. Marion, 590
F.3d 475, 477 (7th Cir. 2009); and (2) responding to
the defendant's principal, nonfrivolous arguments,
United States v. Martinez, 650 F.3d 667, 672 (7th Cir.
2011).
Nania, 724 F.3d at 838.
Bostic does not claim that the district court failed to
respond to a “nonfrivolous argument.” The only question,
then, is whether the district court’s reasoning was sufficient to
enable us to review the district court’s decision. And in
answering this question, we bear in mind that with a within-
guideline sentence (which is what Bostic received), less
explanation is needed. See United States v. Lyons, 733 F.3d 777,
786 (7th Cir. 2013). In this case, the district court’s analysis was
more than adequate to allow our review of the reasonableness
of Bostic’s sentence. The district court discussed, at length, the
violence involved in the Bostic drug operation, including its
conclusion that members of the Bostic organization murdered
Devon Taylor in retaliation for an earlier shooting by a rival
gang which had wounded Bostic and killed his brother. While
the government also presented evidence at the sentencing
hearing of six or seven shootings and that Bostic had given the
green light for the shootings, the district court concluded that
“I can’t say that I know that” Bostic said, “‘I want you to kill
this person.’” But the court continued:
Nos. 12-2125, 12-2379, 12-2759, and 12-2975 25
What I know is that this person [co-conspirator
Davis who was involved in killing Taylor] that I
think the evidence reliably shows that Mr. Bostic
kept close to him. He is involved with him before
and after these events. The shootings, I think it has
been reliably shown that they occurred as a result of,
you know, at least some of them as a result of the
shooting of Mr. Bostic himself. It’s absolutely true
that it’s possible that this just could be some person
saying, hey, you know, somebody shot one of my
people. I’m going to go shoot one of them. I just
don’t think it’s particularly likely that somebody like
Mr. Davis, who is involved in a drug organization
like this that somebody else is in charge of, is just
going to go out and do that on his own without
getting some okay. I just don’t have—I don’t think
it’s a coincidence that all of these people who in one
way or another worked for Mr. Bostic just happened
to be involved in all of this violence that somehow
relates to things that happened to him. And so, you
know, I’m not sentencing Mr. Bostic on any mur-
ders. … I’m sentencing him for a narcotic offense,
but I do think it’s appropriate for me to take into
account that what I think has been reliably shown is
that Mr. Bostic was involved in an organization that
used violence from time to time to accomplish
whatever goals it thought was appropriate at the
time. And, you know, yes, Mr. Bostic is not out there
pulling any triggers, I agree with that. He’s very
well-insulated. He’s like most CEOs. There’s people
that take the weight for him.
26 Nos. 12-2125, 12-2379, 12-2759, and 12-2975
In addition to these statements, the district court found that
the evidence was sufficiently reliable that Bostic “bashed in”
the hand of a co-conspirator for “messing up” the money
count. And that it was without question that Bostic “was the
leader of a drug organization of long standing that was
associated with or that was part of a street gang. And you
know, violence is part of running a business like that. It’s the
business in the life that Mr. Bostic chose.” The district court
then reasoned that it did not need to make specific findings of
whether Bostic committed any particular murder because there
were no guideline enhancements applicable, but that it thought
it appropriate:
to take into account that nature of the business that
Mr. Bostic was in charge of, the fact that he has, I
think reliably been shown to have engaged in
violent acts himself. And I believe that it’s fair to
attribute to him at least some of the violence that has
been attributed to him by other people.
As these excerpts make clear, the district court considered
at length the evidence before it and, while not willing to find
that Bostic ordered any specific murders, concluded that it was
appropriate to take into account the overall violent nature of
the drug business, as well as some of the violence others had
attributed to Bostic. Had Bostic argued that his sentence was
unreasonable—which he did not—the district court’s discus-
sion of the § 3553 factors would be more than sufficient for us
to conclude that his within-guideline sentence of 456 months’
imprisonment was reasonable. Accordingly, the district court
did not commit procedural error by failing to render specific
factual findings concerning the violence engaged in at Bostic’s
behest.
Nos. 12-2125, 12-2379, 12-2759, and 12-2975 27
Finally, Bostic challenges the district court’s sentence based
on the court’s two-level enhancement to his guideline range for
maintaining a stash house, pursuant to U.S.S.G. § 2D1.1(b)(12).
But as discussed earlier, see supra at 14, Peugh holds that it is an
Ex Post Facto violation to calculate a defendant’s sentencing
range based on a sentencing provision not in effect at the time
of the commission of the offense. Peugh, 133 S.Ct. at 2088.
Because the stash house enhancement was not in effect at the
time of Bostic’s offense, the district court erred in applying that
enhancement. Accordingly, we remand to the district court for
the limited purpose of correcting the sentencing range and
resentencing Bostic based on this correct range.9 However, and
again as with Gill, this does not limit the district court’s
discretion to hold (or not hold) further proceedings and
consider further arguments based on the § 3553 factors. We
merely limit its authority to reopen the guideline range
calculation.
III.
In sum, Hunter entered a blind plea of guilty and although
he unilaterally stated that he was preserving the right to appeal
the denial of his motion to suppress Title III wire-tap materials,
the government did not acquiesce to the entering of a condit-
ional guilty plea. Nor did the district court approve such a
plea. Accordingly, Hunter cannot now appeal the denial of his
motion to suppress. Next, Adams’s appeal fails because the
9
The government argued that, unlike Gill, Bostic had waived the Ex Post
Facto clause argument by not adequately presenting it to the district court.
However, even if the argument had been waived, there would be plain
error and remand would be appropriate. See Williams, 2014 WL 486244, at
*2.
28 Nos. 12-2125, 12-2379, 12-2759, and 12-2975
district court did not commit clear error in holding him
responsible for the drugs sales made by other street-level
sellers working alongside Adams. Conversely, Gill and Bostic
both succeed in their Ex Post Facto challenges to the two-level
stash house enhancements they received, and we remand their
cases for the limited purpose of resentencing them based on
the corrected guideline range. Bostic, though, has not estab-
lished plain error in his current claim that his plea was not
knowing and voluntary. Bostic’s claim that the district court
erred in not identifying the specific instances of violence for
which it found him responsible also fails because the court
considered the § 3553 factors sufficiently for our review. For
these and the foregoing reasons, we DISMISS in part, AFFIRM
in part, and REVERSE and REMAND, in part.
Nos. 12‐2125, 12‐2379, 12‐2759 and 12‐2975  29
POSNER,  Circuit  Judge,  concurring  and  dissenting.  I  join
Judge  Manion’s  opinion  with  respect  to  all  the  appellants
except  Adams.  He  is  entitled,  I  am  persuaded,  to  be  resen‐
tenced.  Application  Note  2(c)(6) to  section  1B1.3  of  the  sen‐
tencing guidelines is dispositive:
Defendant  P  is  a  street‐level  drug  dealer  who  knows
of  other  street‐level  drug  dealers  in  the  same  geographic
area who sell the same type of drug as he sells. Defendant
P and the other dealers share a common source of supply,
but  otherwise  operate  independently.  Defendant  P  is  not
accountable  for  the  quantities  of  drugs  sold  by  the  other
street‐level  drug  dealers  because  he  is  not  engaged  in  a
jointly undertaken criminal activity with them. In contrast,
Defendant Q, another street‐level drug dealer, pools his re‐
sources and profits with four other street‐level drug deal‐
ers. Defendant Q is engaged in a jointly undertaken crimi‐
nal activity and, therefore, he is accountable under subsec‐
tion  (a)(1)(B)  for  the  quantities  of  drugs  sold  by  the  four
other  dealers  during  the  course  of  his  joint  undertaking
with  them  because  those  sales  were  in  furtherance  of  the
jointly  undertaken  criminal  activity  and  reasonably  fore‐
seeable in connection with that criminal activity.
Adams is P, not Q, because he doesn’t pool his resources and
profits with any other street‐level dealer. He “knows of other
street‐level  drug  dealers  in  the  same  geographic  area  who
sell the same type of drug as he sells” and “share[s] a com‐
mon source of supply [with them], but otherwise operate[s]
independently.” Because Adams is P, he is “not accountable
for the quantities of drugs sold by the other street‐level drug
dealers because he is not engaged in a jointly undertaken crim‐
inal  activity  with  them.”  I  emphasize  “jointly  undertaken
criminal activity” to make clear that it would not be enough
that  they  were  co‐conspirators  of  his  to  justify  a  sentence
30  Nos. 12‐2125, 12‐2379, 12‐2759 and 12‐2975
based  on  the  quantity  of  drugs  sold  by  the  other  dealers:
“Conspiracy liability, as defined in Pinkerton v. United States,
328  U.S.  640,  646–48  (1946),  is  generally  much  broader  than
jointly  undertaken  criminal  activity  under  §  1B1.3.”  United
States v. Soto‐Piedra, 525 F.3d 527, 531 (7th Cir. 2008).
The majority opinion deems Adams distinguishable from
P because P competes with the other street‐level dealers and
Adams  did  not.  But  the  application  note  doesn’t  say  that  P
competes with other dealers. Nor are competitors necessarily
less likely to engage in joint undertakings than cooperators;
competitors  may  decide  to  collude,  and  thus  become  coop‐
erators. In any event there is no evidence that Adams did not
compete  with  other  street‐level  dealers  who  bought  from
Bostic’s  gang.  The  government  says  that,  unlike  P,  Adams
“worked for (and benefitted from) Bagley,” his contact man
in the gang. But that is just to say that Adams and the other
street‐level vendors had a common source of supply, namely
the same member of the Bostic gang.
The government and the majority opinion confuse a ver‐
tical  agreement—P’s  agreement,  which  the  application  note
tells us does not create a joint criminal undertaking—with a
horizontal agreement, which does. Adams agreed to distrib‐
ute  heroin  for the Bostic gang  at a specified location  and to
remit the proceeds of his sales to Bagley, a supervisory em‐
ployee of Bostic. In exchange he received a cut of those pro‐
ceeds. He thus was a commissioned salesman. Of course he
knew  that  the  gang  marketed  heroin  through  other  street‐
level  vendors  in  his  neighborhood,  and  of  course  he  knew
what  they  did  for  the  gang—the  same  thing  he  did.  But  he
did not work with or help them. At oral argument the gov‐
ernment’s  lawyer  said  that  the  dealers  looked  out  for  each
Nos. 12‐2125, 12‐2379, 12‐2759 and 12‐2975  31
other,  for  example  by  warning  each  other  when  police  ap‐
peared. But he acknowledged that no evidence was present‐
ed  at  Adams’s  sentencing  hearing  that  Adams  did,  or  had
agreed to do, any of that “looking out.”
The  district  judge  based  his  attribution  to  Adams  of  the
heroin sold by the other dealers on Adams’s “understanding
at some level that other people are doing the same thing and
you’re all part  of the same overall group … . I think that  is
sufficient to constitute knowledge and awareness of a jointly
undertaken criminal activity … . What you have to know is
that  you’re  part  of  an  activity  that  is  being  done  in  concert
with them. And even if you’re both at the bottom end … of
the  organizational  chart,  if  you  understand  that  there’s  a
chart that goes up to the same apex and it’s all the same or‐
ganization, I think that is sufficient.” The judge was confus‐
ing knowledge of what other people are doing with agreeing
with other people to do something. Adams knew that Bostic
had  other  street‐level  vendors;  but  he  had  no  agreement
with  them.  Suppose  a  McDonald’s  franchisee  in  Chicago  is
bulking  out  his  hamburgers  with  horse  meat.  Another
McDonald’s  franchisee,  this  one  in  Peoria,  learns  what  the
Chicago franchisee is doing, thinks it’s a clever way of cheat‐
ing  customers,  and  starts  doing  it  himself.  In  merely  acting
upon knowledge of what someone in the same franchise or‐
ganization is doing, he is not a co‐conspirator of that some‐
one even if he buys his horse meat from the same vendor.
The  government  labors  under  the  same  misconception
concerning  the  meaning  of  conspiracy  as  the  district  judge
did  when  it  tells  us  in  its  brief  that  “at  the  end  of  his  shift,
Adams met Bagley to turn in his proceeds, just like the other
street sellers in the Bostic Organization. And as he admitted,
32  Nos. 12‐2125, 12‐2379, 12‐2759 and 12‐2975
Adams knew that the money that those street sellers earned
was  returned  to  Bagley  …  .  This  evidence  proved  that  Ad‐
ams  joined  this  criminal  scheme  in  concert  with  others.  …
Adams  did  not  simply  sell  heroin  in  the  same  geographic
area  in  which  others  sold  heroin.  He  knowingly  sold  the
Bostic  Organization’s  heroin  in  the  Bostic  drug  territory
alongside  other  street‐sellers  who  likewise  worked  for  the
Bostic Organization. … Moreover, Adams knew that he and
other  street  sellers  worked  for  Bagley  …  .  The  conduct  of
those  other  street‐sellers  was  therefore  foreseeable  to  Ad‐
ams.” The majority opinion echoes this when it remarks that
“Adams  does  not  claim  that  the  sales  of  the  other  sellers
were  not  foreseeable  to  him.”  If  you  sell  raspberries  in
Treasure Island, you can foresee that raspberries are also be‐
ing sold in Whole Foods.
What  the  government  asserts  and  the  majority  opinion
echoes is all about knowledge, and just about knowledge. It
is  not  about  cooperation.  It  is  no  different  from  our  hypo‐
thetical McDonald’s case. It flouts unequivocal statements in
cases  such  as  United  States  v.  Salem,  597  F.3d  877,  889  (7th
Cir.  2010),  that  awareness  of  criminal  activity  doesn’t  make
that  activity  “jointly  undertaken.”  See  also  United  States  v.
Soto‐Piedra,  supra,  525  F.3d  at  531;  United  States  v.  Reese,  67
F.3d 902, 909 (11th Cir. 1995).
The  majority  opinion  invokes  Application  Note  2(c)(8),
like 2(c)(6) an attempt by means of example to explain what
“jointly undertaken criminal activity” is. 2(c)(8) reads as fol‐
lows (the deleted material, indicated by the ellipses, consists
merely of citations to subsections of the guidelines):
Defendants  T,  U,  V,  and  W  are  hired  by  a  supplier  to
backpack a  quantity of  marihuana across the border from
Nos. 12‐2125, 12‐2379, 12‐2759 and 12‐2975  33
Mexico into the United States. Defendants T, U, V, and W
receive their individual shipments from the supplier at the
same  time  and  coordinate  their  importation  efforts  by
walking  across  the  border  together  for  mutual  assistance
and  protection.  Each  defendant  is  accountable  for  the  ag‐
gregate quantity of marihuana transported by the four de‐
fendants. The four defendants engaged in a jointly under‐
taken criminal activity, the object of which was the impor‐
tation of the four backpacks containing marihuana … and
aided  and  abetted  each  otherʹs  actions  …  in  carrying  out
the jointly undertaken criminal activity. In contrast, if De‐
fendants  T,  U,  V,  and  W  were  hired  individually,  trans‐
ported  their  individual  shipments  at  different  times,  and
otherwise  operated  independently,  each  defendant  would
be accountable only for the quantity of marihuana he per‐
sonally transported … . As this example illustrates, in cas‐
es involving contraband (including controlled substances),
the  scope  of  the  jointly  undertaken  criminal  activity  (and
thus the accountability of the defendant for the contraband
that was the object of that jointly undertaken activity) may
depend upon whether, in the particular circumstances, the
nature of the offense is more appropriately viewed as one
jointly undertaken criminal activity or as a number of sep‐
arate criminal activities.
The  majority  opinion  quotes  only  the  last  sentence,  thus
missing the distinction between the two examples involving
the four offenders. In the first example the four dealers “co‐
ordinate  their  importation  efforts  …  for  mutual  assistance
and protection” and thus are “engaged in a jointly undertak‐
en criminal activity.” In the second example the four “were
hired individually, transported their individual shipments at
different times, and otherwise operated independently,” and
so “each defendant would be accountable only for the quan‐
34  Nos. 12‐2125, 12‐2379, 12‐2759 and 12‐2975
tity  of  marihuana  he  personally  transported.”  That  is  Ad‐
ams.
The majority opinion  relies on  United States v.  Smith,  13
F.3d  860  (5th  Cir.  1994),  a  case  in  which  four  crack  dealers
shared  a  house  which  they  used  as  “a  very  rudimentary
shopping  center  or  flea  market  for  crack”;  these  “friendly
competitors” had “created a marketing site greater than the
sum of its parts,” producing “a marketing symbiosis that far
outweighed  its  minor  competitive  aspect.”  Id.  at  865.  Alt‐
hough  the  four  were  joint  occupants  of  a  crack  house—a
more  intimate  relation  than  that  between  Adams  and  the
other  sellers  of  drugs  supplied  by  Bostic—Smith  stood  out
from  the  other  crack  dealers  and  was  the  only  one  whose
sentence  was  increased  in  recognition  of  the  existence  of  a
jointly undertaken criminal activity. Adams is no Smith.
Yet  the  majority  opinion  regards  the  present  case  as  a
stronger  one  for  the  government  than  Smith  was,  because
“Adams  and  the  other  sellers  working  the  morning  shift  in
Bostic’s  open‐air  drug  market  did  not  own  the  drugs,”
which  “shows  that  Adams  had  much  less  independence
than  the dealers  in Smith.” Earlier  the  majority opinion had
stated that Adams was “selling heroin owned by [the Bostic]
organization”  rather  than  owned  by  himself.  I  don’t  think
that  distinction  has  the  slightest  relevance.  Remember  that
the question is whether Adams is P or Q in Application Note
2(c)(6).  The  note doesn’t mention ownership. Nor is owner‐
ship  a  sine  qua  non  of  competition,  emphasized  by  the  ma‐
jority  opinion (mistakenly  as I suggested) as  the  key  to dis‐
tinguishing  Adams  from  P.  Often  competition  is  between
owners,  but  often  it  is  not,  as  in  the  case  of  retail  salesmen
who work on commission. If you go to buy a pair of shoes,
Nos. 12‐2125, 12‐2379, 12‐2759 and 12‐2975  35
the  salesmen  you  encounter  will  not  own  the  shoes  they’re
trying to sell but they may well be in competition with each
other for commissions. Or think of a bookstore: what differ‐
ence  does  it  make  whether  the  store  buys  books  from  pub‐
lishers  and  resells  them,  or  sells  them  as  the  publishers’
agent  and  so  title  passes  from  the  publisher  to  the  storeʹs
customer when the customer buys a book?
When one is dealing with illegal activity, moreover, dis‐
tinctions  between  owner  and  agent,  sale  and  consignment,
are  usually  blurred  and  generally  irrelevant.  Why  should
Adams’s sentence depend to the slightest degree on whether
title  to  the  drugs  did  or  did  not  pass  to  him?  The  majority
opinion states that Adams had less “independence” than the
defendants  in  the  Smith  case  by  virtue  of  not  owning  the
drugs he sold. But his dependence was on the Bostic super‐
visor who furnished him the drugs to sell on a consignment
basis, not on the other dealers, which would be the depend‐
ence (suggesting they were jointly dealing drugs) relevant to
Application Note 2(c)(6).
The sentencing error made by the district judge and con‐
doned in the majority opinion is not trivial. The inclusion of
sales  of  heroin  by  the  other  dealers  increased  Adams’s  sen‐
tencing  range  from  188–235  months  to  262–327  months  and
his  statutory  minimum  sentence  from  5  years  to  10.  The
judge sentenced him to 180 months, dipping well below the
guidelines range because he thought its bottom, 262 months,
“way excessive.” A reduction in the guidelines range might
prompt  him to reduce  the sentence further, though because
this is not certain a limited remand would be appropriate to
enable him to reconsider the sentence.