United States v. Roberson, Tyray , 207 F. App'x 642 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 3, 2006
Decided October 30, 2006
Before
Hon. DANIEL A. MANION, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
Nos. 05-1958, 05-1960, 05-1968
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff-Appellee, Court for the Western District of Wisconsin.
v. No. 04 CR 162
TYRAY ROBERSON, STEPHEN E. John C. Shabaz,
BLACK, and MONCLAIR Judge.
HENDERSON-EL,
Defendants-Appellants.
ORDER
Stephen Black, Monclair Henderson-El, and Tyray Roberson were caught
dealing crack out of their shared apartment. Black and Roberson both pleaded
guilty to distributing cocaine base, while Henderson-El pleaded guilty to possession
of cocaine base with intent to distribute. See 21 U.S.C. § 841(a)(1). The district
court calculated the guidelines imprisonment range for each defendant based on the
entire amount of crack recovered from the apartment during the execution of a
search warrant. In these consolidated appeals, Roberson and Black challenge the
reasonableness of their prison terms, while Henderson-El’s appointed counsel
moves to withdraw under Anders v. California, 386 U.S. 738 (1967). We affirm
Nos. 05-1960, 05-1968 & 05-1958 Page 2
Roberson’s and Black’s sentences, allow appointed counsel for Henderson-El to
withdraw, and dismiss Henderson-El’s appeal.
I.
An undercover police officer in Madison, Wisconsin, bought crack from Black
three times during August and September of 2004. Black sold the officer 9.66
grams the first time, 26.46 grams the second, and 123.35 grams the third. Each
time surveillance officers watched Black leave an apartment leased to Henderson-
El before he met with the undercover officer. During the first and third
transactions, officers observed Black driving a car registered to Henderson-El.
Officers also saw Roberson conduct “counter-surveillance activities” prior to the
third buy.
On September 30, 2004, the same day as the third undercover buy, officers
executed a search warrant at the apartment. During the search officers handcuffed
Henderson-El and sat him at a table near the kitchen with DEA Special Agent
Craig Grywalsky. After receiving Miranda warnings, Henderson-El said that he
did not want to answer questions until he had spoken to an attorney. Grywalsky
then heard an officer in the kitchen wonder aloud if there were keys for an unlocked
safe found in the storage drawer of the oven. Grywalksy noticed a safe key on the
table in front of him, picked it up, and said, “Here’s some keys.” Henderson-El then
stated, “Those are my keys.” The safe contained 383.9 grams of crack. Officers also
found 1,032.4 grams of crack in Henderson-El’s bedroom, 480.4 grams of crack in
Roberson’s bedroom, and an additional 61.3 grams of crack in a common area. In
total, the officers found just over 1.7 kilograms of crack and $7,530 in currency in
the apartment.
A grand jury returned a four-count indictment charging that Black
distributed cocaine base on August 26 and September 9, 2004 (Counts 1 & 2), that
Black and Roberson distributed cocaine base on September 30, 2004 (Count 3), and
that all three defendants jointly possessed the cocaine base in the apartment on
September 30 with intent to distribute (Count 4). Henderson-El filed a motion to
suppress his statement regarding the safe key, which the district court denied.
All three defendants entered plea agreements. Black pleaded guilty to
Count 1 and Roberson to Count 3. Henderson-El entered a conditional guilty plea
to Count 4, preserving his right to challenge on appeal the denial of his motion to
suppress. At sentencing the district court found that the three men were working
jointly to distribute crack and attributed just under 1.9 kilograms to each. That
total represents the amount of crack recovered during the undercover buys and
apartment search. The court selected a base level of 38—which applies to offenses
Nos. 05-1960, 05-1968 & 05-1958 Page 3
involving 1.5 kilograms or more of crack, see U.S.S.G. § 2D1.1(c)—and, after
individual computations for acceptance of responsibility and criminal history,
calculated imprisonment ranges of 168 to 210 months for Black, 188 to 235 months
for Roberson, and 210 to 262 months for Henderson-El. The court sentenced each
defendant within his applicable imprisonment range: Black to 180 months,
Roberson to 194, and Henderson-El to 210.
II.
A. Black and Roberson
Black and Roberson together argue that their prison sentences are
unreasonably high because the district court did not go below the range to account
for the differential between sentences for powder cocaine versus crack. But in
United States v. Miller, 450 F.3d 270 (7th Cir. 2006), we held that sentencing judges
are required to abide by the 100:1 crack-to-powder ratio when applying the
Sentencing Guidelines to a defendant’s conduct. Id. at 275-76. We are not alone in
this conclusion. See United States v. Williams, 456 F.3d 1353, 1367 (11th Cir.
2006); United States v. Pho, 433 F.3d 53, 63-64 (1st Cir. 2006); United States v.
Eura, 440 F.3d 625, 633-34 (4th Cir. 2006). The 100:1 ratio exists in the guidelines
by legislative decision, and “the judiciary is not free to replace Congress’s approach
with one it deems superior.” Miller, 450 F.3d at 275. Accordingly, Black and
Roberson’s argument is barred. See United States v. Hankton, 463 F.3d 626.629
(7th Cir. 2006) (noting that Miller forecloses reasonableness arguments based on
differential in sentences between crack and powder cocaine).
Roberson raises one additional, meritless argument. He argues that the
rebuttable presumption of reasonableness adopted in United States v. Mykytiuk,
415 F.3d 606, 608 (7th Cir. 2005), for sentences within the guidelines range cannot
be reconciled with the advisory character of the guidelines established in United
States v. Booker, 543 U.S. 220 (2005). This court rejected the same contention in
Mykytiuk. 415 F.3d at 607 (“[W]hile a per se or conclusively presumed
reasonablenss test would undo the Supreme Court’s merits analysis in Booker, a
clean slate that ignores the proper Guidelines range would be inconsistent with the
remedial opinion.”); see Hankton,463 F.3d at 630 n.5 (dismissing as “ridiculous” the
argument that applying Mykytiuk’s rebuttable presumption renders guidelines
mandatory); United States v. Williams, 436 F.3d 767, 769 (7th Cir. 2006)
(recognizing that Mykytiuk avoids conflict with Booker).
Black alone argues that it was error to attribute to him as relevant conduct
all of the crack found in the apartment. A defendant involved with others in a drug
offense is accountable for all reasonably foreseeable drug quantities within the
Nos. 05-1960, 05-1968 & 05-1958 Page 4
scope of the jointly undertaken activity. See U.S.S.G. § 1B1.3, cmt. n.2; United
States v. Sliman, 449 F.3d 797, 801 (7th Cir. 2006). Black concedes that he engaged
in joint activity with Roberson and Henderson-El; he argues, however, that he could
not reasonably have foreseen the amount of crack found in the apartment. This is
so, says Black, because the evidence shows only that he acted as a courier for the
drug sales and does not establish that he was closely tied to his codefendants. He
insists that he was at most an occasional visitor to the apartment—his bedroom was
furnished only with an air mattress—who did not know about the drugs that were
stored there. Black also asserts that the district court gave too much weight to his
1999 arrest with Henderson-El for an unrelated offense, and wrongly stated that
Roberson was arrested with them. Finally, he states that the district court should
not have referenced Roberson’s and Henderson’s 1996 joint arrest for disorderly
conduct or the fact that all three had attended the same high school, because that
evidence was not in the record. Black’s argument is meritless.
Drug quantity is a factual finding that the government must establish by a
preponderance of the evidence, see United States v. Lister, 432 F.3d 754, 762-63 (7th
Cir. 2005); United States v. Breland, 356 F.3d 787, 795 (7th Cir. 2004), and which
we review only for clear error, United States v. Hawk, 434 F.3d 959, 962 (7th Cir.
2006). The evidence showed that Black was staying at the apartment at least
periodically, that he had his own bedroom there, and that crack and thousands of
dollars in currency were found in readily accessible common areas of the apartment.
The evidence also showed that on three occasions within a four-week period Black
sold crack to the same undercover officer just after leaving the apartment, and the
amount of crack that Black sold the undercover officer increased with each sale.
His three sales to this single “customer” totaled 159 grams—very large transactions
in the crack trade. See United States v. Wash, 231 F.3d 366, 371 (7th Cir. 2000)
(characterizing 3.5 and 5.4 grams of crack as “distribution amounts”). Moreover,
the apartment search was executed on the same day as the third buy. Accordingly,
it was not clear error for the court to conclude not only that Black knew that an
ample supply of crack was available at the apartment, but that he had access to it.
Black’s argument that the district court mischaracterized the codefendants’
past relationship is overstated. Black does not assert that they did not attend the
same high school, and he did not object at sentencing when the court referenced
that fact or Roberson’s and Henderson’s prior joint arrest. While Roberson was not
involved in Black’s 1999 arrest with Henderson-El, the district court’s error is
completely harmless given the evidence of Black’s role in the crack distribution
operation.
B. Henderson-El
Nos. 05-1960, 05-1968 & 05-1958 Page 5
Henderson-El filed a response to counsel’s Anders motion, see Cir. R. 51(b),
asserting that he believes the federal judiciary lacks jurisdiction over him because
the probation officer referred to his race as “black” whereas he self-identifies as
“Moorish-American.” This argument can be dismissed out-of-hand, so we turn to
the Anders brief, which is facially adequate. See United States v. Schuh, 289 F.3d
968, 973-74 (7th Cir. 2002).
Counsel first considers whether Henderson-El might argue that the district
court erred by refusing to suppress his statement regarding the safe key. In
particular, counsel suggests that Henderson-El might raise the theory that Agent
Grywalksy was deliberately trying to elicit information from him after he invoked
his right to counsel when the agent said, “Here’s some keys.” The government
conceded that Henderson-El was in custody when he took ownership of the keys to
the safe, so only the question of interrogation was at issue. “Interrogation” in this
context means words or actions “that the police should know are reasonably likely
to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446
U.S. 291, 301 (1980); see United States v. Abdulla, 294 F.3d 830, 834 (7th Cir. 2002).
We review de novo a legal determination that a statement is voluntary, giving
deference to any determinations of “historical” facts. United States v. Gillaum, 372
F.3d 848, 855 (7th Cir. 2004), cert. denied, 534 U.S. 969 (2004).
Counsel is correct that it would be frivolous to challenge the suppression
ruling. Before the district court ruled, a magistrate judge conducted an evidentiary
hearing at which Agent Grywalksy testified that he did not know that the keys
belonged to Henderson-El when he reached for them, that he never asked
Henderson-El if he had keys to the safe, and that he was addressing and looking at
another officer when he said, “Here’s some keys.” The district court adopted the
magistrate judge’s findings that Grywalsky’s statement did not constitute an
interrogation and that Henderson-El volunteered his connection to the keys.
Deferring as we must to the district court’s findings of the circumstances
surrounding Henderson-El’s statement, there is no basis for us to conclude that
Henderson-El’s statements were anything other than volunteered. See, e.g.,
Arizona v. Mauro, 481 U.S. 520, 529 (1987) (stating that statements are volunteered
where not the result of “compelling influences, psychological ploys, or direct
questioning”); Abdulla, 294 F.3d at 835 (concluding statements volunteered when
not in response to any question posed by agents).
Counsel also considers whether Henderson-El might argue that the
government breached paragraph 10 of the parties’ plea agreement by supporting
the probation officer’s recommended crack quantity of 1.9 kilograms. That
paragraph provides: “The defendant agrees that the United States can prove beyond
a reasonable doubt that the defendant’s total offense conduct involved at least 500
Nos. 05-1960, 05-1968 & 05-1958 Page 6
but less than 1.5 kilograms of cocaine base.” As is evident from this language,
Henderson-El’s agreement that the government could prove just shy of 1.5
kilograms beyond a reasonable doubt in no way foreclosed the government from
trying to prove more over Henderson-El’s objection. Indeed, during the plea
colloquy the prosecutor represented that the amount of crack referenced in the plea
agreement was “a floor,” and that the government anticipated that the district court
“may well find that it is above 1.5.” Accordingly, counsel is correct that this
potential argument would be frivolous.
Counsel next questions whether Henderson-El could argue that his guilty
plea was involuntary because he did not understand what amount of cocaine base
he was admitting to having possessed. Counsel notes that during the plea colloquy
Henderson-El stated, “The only thing I know of is the 534 grams.” Counsel has not
indicated, however, that Henderson-El wants his plea set aside, and Henderson-El
makes no such suggestion in his Rule 51(b) response. Thus, counsel should not
have addressed this potential issue in her Anders brief. See United States v. Knox,
287 F.3d 667, 671 (7th Cir. 2002). We note, however, that the district court
substantially complied with Fed. R. Crim. P. 11(b) in taking the plea, so a challenge
to the plea would be frivolous. See Fed. R. Crim. P. 11(h); United States v.
Dominguez-Benitez, 542 U.S. 74, 80 (2004); Schuh, 289 F.3d at 975.
Counsel next considers whether Henderson-El might argue—as does
Black—that the district court erred in attributing to him as relevant conduct the
entire 1.9 kilograms of crack. The argument is meritless as to Black, and utterly
frivolous as to Henderson-El. Henderson-El was the leasee on the apartment, and
1,032 grams of the total crack were found in his bedroom. He also admitted
ownership of a key to the safe that contained another 383.9 grams of crack. On two
occasions Black drove Henderson-El’s car to sell crack to the undercover officer.
Without doubt his jointly undertaken activity extended to the entire crack quantity.
Finally, counsel suggests that Henderson-El might argue that the district
court erred by applying the guideline for crack since the laboratory report identifies
the drugs only as “cocaine base.” See United States v. Edwards, 397 F.3d 570, 571,
576 (7th Cir. 2005) (noting that not all cocaine base is crack). Henderson-El
originally objected to the probation officer’s characterization of the substance as
“crack,” but he withdrew that objection when the government came to sentencing
poised to call two experts who would testify that the cocaine base was, in fact, crack.
Accordingly, Henderson-El waived this potential issue, which would preclude
review of the potential argument that counsel identifies. See United States v.
Cunningham, 405 F.3d 497, 501 (7th Cir. 2005); United States v. Staples, 202 F.3d
992, 995 (7th Cir. 2000).
Nos. 05-1960, 05-1968 & 05-1958 Page 7
We AFFIRM Black’s and Roberson’s sentences, GRANT the Anders motion,
and DISMISS Henderson-El’s appeal.