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United States v. Fuller

July 11, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
WILLIAM FULLER III & BRIAN K. JOHNSON, DEFENDANTS-APPELLANTS.



Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04-CR-253-7&9-David H. Coar, Judge.

The opinion of the court was delivered by: Coffey, Circuit Judge

ARGUED OCTOBER 3, 2007

Before COFFEY, RIPPLE, and KANNE, Circuit Judges.

William Fuller and Brian Johnson were charged as part of a drug trafficking conspiracy operating in the southwest suburbs of Chicago, Illinois from January 2000 until March 2004. The conspiracy's self-professed ringleader, Rodney Bew, pleaded guilty and agreed to testify against Fuller and Johnson in exchange for the government recommending a reduction in his sentence. Fuller and Johnson jointly proceeded to trial, and a jury convicted Fuller of conspiring to possess with intent to distribute cocaine while finding Johnson guilty of conspiring with intent to distribute cocaine and crack. See 21 U.S.C. §§ 841(a)(1), 846. In these consolidated appeals, Fuller challenges the sufficiency of the evidence underlying his conviction and the district court's determination at sentencing that he was responsible for more than 500 grams of cocaine. Johnson's appointed counsel moves to withdraw under Anders v. California, 386 U.S. 738 (1967), because he could not discern any non-frivolous arguments to pursue. We affirm Fuller's conviction and sentence but deny Johnson's counsel's motion to withdraw.

Background

At trial Bew testified at length about his four-year drug-trafficking operation and Johnson's and Fuller's respective roles as deliveryman and purchaser. Bew testified that his operation included sales of powder cocaine, crack, and marijuana. Every week or two he would purchase up to one kilogram of cocaine from his suppliers. To maximize his profit, Bew would chemically alter the cocaine either by "cooking" it into crack, or by "rerocking" it-a process through which he diluted the cocaine with substances such as paint thinner. Bew sold the crack directly to users and the rerock cocaine to drug dealers.

Bew testified that Johnson assisted his operation by delivering crack to customers and returning the proceeds to Bew. Bew also taught Johnson to cook cocaine into crack. In return Bew rewarded Johnson with drugs or by paying for his hotel rooms. In support of Bew's testimony, the government introduced Johnson's grand jury testimony, in which he admitted that he delivered at least 15 to 20 bags of crack for Bew every week between May and August of 2003. He also admitted that on several occasions he accompanied Bew to pick up and transport large quantities of powder cocaine from a supplier. Johnson further admitted that he supplied materials to help Bew prepare and package crack.

As for Fuller, Bew testified that he was a dealer who purchased rerock cocaine from Bew once every week or two beginning in March 2003. The amount of Fuller's purchases varied from an "eight ball" (three grams) up to 127 grams. Bew would give Fuller the cocaine on full or partial credit when he was without sufficient money to pay for it up front, which was the "majority of the time." Fuller usually would make payment within seven to ten days, and Bew would then use this money to buy more drugs. Bew estimated that Fuller bought between 750 grams and one kilogram of cocaine from him in 2003.

Although Bew knew that Fuller was a drug dealer, he did not know Fuller's customers nor did he typically share his customers with Fuller. Bew testified that Fuller was "his own man" and that they kept the customer "end of the business separate." But on one occasion, Bew brought Fuller a customer, Kendrick Pruitte, who wanted to purchase rerock cocaine. It is unclear whether Fuller actually sold Pruitte cocaine, but Bew testified he "believe[s] that they hooked up."

Bew testified that in addition to selling Fuller cocaine, he would occasionally buy small amounts from Fuller when his supply was low. Bew would also seek Fuller out for payments when he needed money to replenish his own cocaine supply. On one such occasion Bew called Fuller to say that he needed money to buy more cocaine, and Fuller agreed to pay him the $1,000 he owed from a previous transaction. Three days later they spoke again, and when Bew pressed Fuller for money so he could go to his suppliers, Fuller asked for more time to sell his cocaine so he could get the money Bew needed.

In addition to Bew's testimony, the government offered transcripts of recordings taken from wiretaps of Bew's phone conversations. Of the approximately 12,000 intercepted calls during a two-month period, 39 involved conversations between Bew and Fuller. The recordings reveal that Bew and Fuller used code words when discussing their drug deals, with "basketball" or "pool table ball" referring to three grams of "work," or cocaine. In the first call, Bew asked Fuller for the $3,500 he owed for 41/2 ounces of rerock cocaine that Bew had fronted him. Bew later informed Fuller that he had overpaid by $100 for a previous drug purchase. In another call Fuller told Bew to go to the hotel where he was staying to pick up cocaine out of the cigar box where he kept his stash.

Before jury deliberations began, the district court instructed the jury that "[t]he existence of a simple buyer/seller relationship between a defendant and another person without more is not sufficient to establish a conspiracy even where the buyer intends to sell cocaine/cocaine base." The jury found both Fuller and Johnson guilty of conspiracy. It returned a special verdict finding that Fuller had participated in a conspiracy involving more than 500 grams of cocaine, and that Johnson had participated in a conspiracy involving more than 500 grams of cocaine and at least 50 grams of crack. Both Johnson and Fuller filed motions for a new trial; the district court denied each of them.

At Johnson's sentencing, the district court found that Johnson was responsible for 134 grams of crack and 2 kilograms of powder cocaine. Using the drug equivalency table set forth in § 2D1.1(c)(3) of the sentencing guidelines, the court applied a base offense level of 34. The court also found that Johnson had threatened Bew when they were in lockup together during the trial; Johnson told Bew he would be killed in jail for cooperating with the government. The court accordingly added a two-level enhancement for obstruction of justice, see U.S.S.G. § 3C1.1, and after considering the sentencing factors set forth in 18 U.S.C. § 3553(a), sentenced Johnson to 262 months in prison, the low end of the guidelines range for Johnson's level IV criminal history and total offense level of 36.

At Fuller's sentencing, the district court found while overruling Fuller's objection that he was responsible for more than 500 grams of cocaine. The court based its finding on Bew's testimony that he sold Fuller at least 27 ounces, or approximately 750 grams, of cocaine in 2003. The court calculated a total offense level of 34, see U.S.S.G. ยง 2D1.1(c)(3), which, when applied against Fuller's criminal history category of VI, ...


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