NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 3, 2010
Decided August 3, 2010
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 09‐2954
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Indiana,
Fort Wayne Division.
v.
1:07‐CR‐68‐TLS
TAUREAN L. HAYDEN,
Defendant‐Appellant. Theresa L. Springmann,
Judge.
O R D E R
Taurean Hayden pleaded guilty to possessing with intent to distribute 500 or more
grams of cocaine, see
21 U.S.C. § 841(a)(1), and carrying a firearm in relation to drug
trafficking, see
18 U.S.C. § 924(c). In his plea agreement, Hayden waived his right to appeal
the conviction and sentence but reserved his right to appeal the district court’s denial of his
motion to suppress evidence recovered from his car during a traffic stop, as well as the drug
quantity attributable to him. The district court sentenced him to 188 months for the drug
offense and a consecutive term of 60 months for the firearm offense. Hayden filed a notice
of appeal. His appointed counsel, however, moves to withdraw because he has concluded
that any appellate argument would be frivolous. See Anders v. California,
386 U.S. 738 (1967).
Hayden opposes counsel’s motion. See CIR. R. 51(b). We review only those potential issues
No. 09‐2954 Page 2
identified by counsel in his facially adequate brief and by Hayden in his response. See
United States v. Schuh,
289 F.3d 968, 973‐74 (7th Cir. 2002).
On March 9, 2007, police conducted surveillance of a house on Oliver Street in Fort
Wayne, Indiana. Parked in front of the house was Hayden’s Grand Prix. Three times, a
different car pulled up to the house, stayed for only a few minutes, and as each car drove
away, it was stopped by police, who arrested the driver for drug possession. One of those
drivers, DeShawn Burnett, dropped a kilogram of cocaine as he attempted to flee the police.
Next, detectives followed Hayden leaving the house in the Grand Prix. They saw
him drive evasively and commit several traffic violations. Detective Darrick Engelman,
who had been in continuous radio contact with the detectives conducting surveillance,
effected a traffic stop. The detective smelled the odor of burnt marijuana emanating from
Hayden’s car, so he placed Hayden in the back of the squad car. The detective asked
Hayden for his consent to search the car, but Hayden refused. Engelman then told Hayden
that he would run a canine search, after which Hayden twice agreed to allow a search of the
car. Engelman found a small amount of what he believed to be marijuana on the floor of the
front passenger seat. After an officer searched the perimeter of the car with his drug‐
sniffing dog, the officers searched the trunk and interior of the car and found two hidden
trap compartments, one of which contained two kilograms of cocaine in packaging similar
to the cocaine discarded by Burnett. A later search uncovered behind the radio a third trap
compartment, which concealed a handgun.
Police next obtained warrants to search two houses in Fort Wayne that were
connected to Hayden. At a house on Knollcrest Avenue, officers found 4.01 grams of
marijuana and mail addressed to Hayden. At a house on Salt Trail Canyon Pass, officers
found over $12,159 in cash in a kitchen drawer, $100,000 hidden in the fireplace, and
$282,589 in the trunk of a Dodge Charger that was parked in the attached garage. In the
Charger, police also found Hayden’s identification card.
Hayden moved, unsuccessfully, to suppress evidence recovered during the stop and
search of the Grand Prix. First, the court found that because Engelman had been in constant
radio contact with the surveillance officers, Engelman’s stop of the Grand Prix was
supported by both reasonable suspicion of drug trafficking and probable cause to believe
that he had committed traffic violations. Second, the court concluded that Hayden’s
consent to the search was voluntary and, regardless, the smell of marijuana, the canine sniff,
and the marijuana seen on the floorboard supported the search of the trunk and the hidden
compartments.
Hayden entered a conditional plea of guilty, waiving his right to appeal the
conviction and sentence with two exceptions; he reserved his right to appeal the district
No. 09‐2954 Page 3
court’s denial of his motion to suppress and the drug quantity attributable to him. At
sentencing the district court calculated the drug quantity based on the drugs discovered in
Hayden’s Grand Prix, the drugs and money found in the two houses, and the kilogram of
cocaine discarded by Burnett. Over Hayden’s objection, the court attributed to Hayden the
cocaine discarded by Burnett given his arrest just minutes following his meeting with
Hayden at the Oliver Street house, where Hayden appeared to be dealing cocaine. The
court further overruled Hayden’s objection to the inclusion of the marijuana and money
found in the two houses; the court noted the testimony of Hayden’s landlord that Hayden
was renting the Knollcrest house and was purchasing the house on Salt Trail Canyon Pass
on a land contract, and additional evidence that he was maintaining and using both
residences. The court traced the money to drug proceeds, noting in particular the testimony
of Hayden’s cousin, who reported that he employed Hayden at his used car dealership for
only $200 to $300 per week, and the testimony of DEA special agent, Howard Schneider,
who reported that informants had identified Hayden as a multi‐kilogram cocaine dealer.
The court cited Schneider’s testimony that a kilogram of cocaine sells for $25,000 at the high
end, and concluded that the $394,748 found in the Salt Trail Canyon Pass house represented
at least 15.7 kilograms of cocaine. Using the drug equivalency table of the Sentencing
Guidelines, the court calculated that Hayden was responsible for the equivalence of 3,759
kilograms of marijuana, see U.S.S.G. § 2D1.1 cmt. n.10, yielding a guidelines range of 188 to
235 months for count one and an additional 60 months for count two. The court sentenced
Hayden to the bottom of the guidelines range.
Hayden now wants his guilty plea set aside, so counsel properly considers whether
he could challenge the voluntariness of his guilty plea or the adequacy of the plea colloquy.
See FED. R. CRIM. P. 11; United States v. Knox,
287 F.3d 667, 671‐72 (7th Cir. 2002). Counsel
considers challenging the plea colloquy based on the district court’s failure to advise
Hayden of the court’s authority to order restitution, or his right to present evidence at trial.
See FED. R. CRIM. P. 11(b)(1)(K), (b)(1)(E). The court, however, did inform Hayden that he
could be subject to fines totaling $4,250,000, and ultimately imposed no restitution or fine,
so the court’s omission of a warning about possible restitution was harmless. See United
States v. Fox,
941 F.2d 480, 484 (7th Cir. 1991). The court also informed Hayden that he
could compel the attendance of witnesses and testify in his own defense and that his
decision not to testify or present any evidence could not be used against him at trial. His
right to present evidence at trial was further covered in the written plea agreement, which
he acknowledged having read and understood. Any challenge to the plea colloquy on this
basis would therefore be frivolous. See FED. R. CRIM. P. 11(h); United States v. Dominguez
Benitez,
542 U.S. 74, 83, 85 (2004); United States v. Driver,
242 F.3d 767, 771 (7th Cir. 2001).
Hayden in his Rule 51(b) response, challenges the plea colloquy, contending that the
district court incorrectly informed him of the applicable minimum sentence for his firearm
No. 09‐2954 Page 4
offense under § 924(c)(1). See FED. R. CRIM. P. 11(b)(1)(I). Hayden asserts that he is not
subject to the consecutive 5‐year minimum sentence as provided in § 924(c)(1)(A), relying
on the Second Circuit’s interpretation of § 924(c)(1)(A) in United States v. Whitley,
529 F.3d
150, 152‐53, 158 (2d Cir. 2008). But in United States v. Easter, we expressly rejected the
Second Circuit’s interpretation of § 924(c)(1)(A).
553 F.3d 519, 524‐25 (7th Cir. 2009), cert.
denied sub nom. McKay v. United States,
130 S. Ct. 1281 (2010). The Supreme Court has since
consolidated and granted certiorari in two cases to resolve this circuit split, Gould v. United
States,
130 S. Ct. 1283 (Jan. 25, 2010) (No. 09‐7073); Abbott v. United States,
130 S. Ct. 1284
(Jan. 25, 2010) (No. 09‐479), but we have continued to endorse Easter’s reasoning. See United
States v. Boyd,
608 F.3d 331, 333 (7th Cir. 2010). The district court correctly recited the law of
this circuit as to the minimum sentence that Hayden faced for this count.
Counsel next considers whether Hayden could challenge the district court’s denial of
his motion to suppress, but correctly concludes that any challenge to the stop and search of
the Grand Prix would be futile. As counsel notes, the traffic stop was supported not only by
Hayden’s presence at a known drug house and evasive driving, see United States v. Fiasche,
520 F.3d 694, 695, 697‐98 (7th Cir. 2008); United States v. Baskin,
401 F.3d 788, 791‐92 (7th Cir.
2005), but also by Hayden’s multiple traffic violations, see Whren v. United States,
517 U.S.
806, 810 (1996); United States v. Kenerson,
585 F.3d 389, 392 (7th Cir. 2009). The district court
found that Detective Engelman was in constant communication with the officers who saw
the violations and that they relayed that information to him, giving Engelman probable
cause. See United States v. Harris,
585 F.3d 394, 400‐01 (7th Cir. 2009). Counsel cannot
identify anything in the record that would lead us to disturb the district court’s findings of
fact, which we would review only for clear error. See United States v. Wendt,
465 F.3d 814,
816 (7th Cir. 2006).
As for the search of Hayden’s car, the district court found that Hayden’s consent was
voluntary and correctly explained that a defendant’s consent is unaffected by an officer’s
statement that he will use a drug‐sniffing canine. See United States v. Taylor,
596 F.3d 373,
376‐77 (7th Cir. 2010); United States v. Robinson,
984 F.2d 911, 914 (8th Cir. 1993). In his Rule
51(b) response, Hayden focuses on the marijuana found on the passenger floor and
contends that Detective Engelman concocted the story in order to arrest him and then
search the car. He further contends that the search of the trap compartments exceeded the
officers’ authority for a search incident to arrest. But Hayden points to no evidence in the
record that would directly call into question Engelman’s testimony that he found marijuana
in Hayden’s car. And Hayden’s arrest for possession of the marijuana supported a search of
the car for evidence relevant to that offense. See Arizona v. Gant,
129 S. Ct. 1710, 1719 (2009).
Moreover, the district court credited Engelman’s testimony that he smelled marijuana at the
outset—testimony that also provided the officers with probable cause to search the entire
No. 09‐2954 Page 5
car, including the trunk and any other compartments. See United States v. Cherry,
436 F.3d
769, 772 (7th Cir. 2006).
Counsel also explores but correctly rejects as frivolous a challenge to district court’s
determination of relevant drug quantity. The court appropriately found that the kilogram
retrieved from Burnett was packaged similarly to the cocaine found in the Grand Prix,
discovered immediately after Burnett briefly visited Hayden at a known drug house, and
was reasonably viewed as part of the same course of conduct. See U.S.S.G. § 1B1.3(a)(2);
United States v. Stephenson,
557 F.3d 449, 456‐57 (7th Cir. 2009). And the court’s findings that
the drugs and money were Hayden’s and that he had earned the money through drug
trafficking were well supported by the evidence. Counsel also correctly concludes that any
possible double counting that resulted from the money being converted to drug quantities
would be harmless. Even if the district court had calculated the drug quantity based solely
on the drug proceeds, see United States v. Rivera,
6 F.3d 431, 446 (7th Cir. 1993), Hayden’s
base offense level for the drug trafficking offense would remain the same, see United States v.
Edwards,
581 F.3d 604, 612‐13 (7th Cir. 2009); United States v. Crockett,
82 F.3d 722, 730 (7th
Cir. 1996).
Counsel also evaluates a potential challenge to Hayden’s consecutive 5‐year sentence
under § 924(c)(1)(A) based on the Supreme Court’s recent grant of certiorari. But counsel
correctly deems any such argument precluded by Hayden’s appeal waiver, which we
would enforce. See United States v. McGraw,
571 F.3d 624, 631 (7th Cir. 2009); United States v.
Lockwood,
416 F.3d 604, 608 (7th Cir. 2005).
Finally, Hayden asserts that counsel provided ineffective assistance by negotiating
the plea agreement based on what he contends is an incorrect interpretation of the
mandatory minimum sentence under § 924(c)(1)(A) and by failing to raise the issue in the
district court at sentencing. But Hayden’s appeal waiver bars all claims of ineffective
assistance except those relating directly to the waiver or its negotiation. To the extent that
Hayden’s claim falls within this exception, we would decline to address it on direct appeal
because claims of ineffective assistance are better suited to a collateral action under
28
U.S.C. § 2255, so that a fuller record can be developed. See Massaro v. United States,
538 U.S.
500, 504‐05 (2003); United States v. Harris,
394 F.3d 543, 557‐58 (7th Cir. 2005).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
