Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 02 CR 1129-Joan B. Gottschall, Judge.
The opinion of the court was delivered by: Kanne, Circuit Judge
Before CUDAHY, KANNE, and SYKES, Circuit Judges.
Rickey Clark entered a blind guilty plea with respect to one count of conspiring to possess cocaine with intent to distribute, see 21 U.S.C. § 846, and one count of possessing cocaine with intent to distribute, see id. § 841(a)(1). The district court determined by a preponderance of the evidence that Clark had possessed between 15 and 50 kilograms of cocaine. At the sentencing hearing, the government's attorney repeatedly stated, in error, that Clark was not subject to a mandatory minimum sentence. The judge considered the 18 U.S.C. § 3553(a) sentencing factors and imposed a sentence of 48 months' imprisonment. The very next day, the government filed a motion to correct the sentence, see Fed. R. Crim. P. 35(a), based on the fact that the court was required to impose a mandatory minimum sentence of ten years due to the quantity of cocaine Clark possessed, see 21 U.S.C. § 841(b)(1)(A)(ii). The court agreed that the mandatory minimum applied, and it amended the judgment to correct the sentence. Because the district court acted within its power under Federal Rule of Criminal Procedure 35(a) when it corrected Clark's sentence to reflect the statutory mandatory minimum, we affirm Clark's sentence.
Rickey Clark was charged in a multi-count indictment for his participation in a cocaine-distribution conspiracy. Without a written plea agreement from the government, Clark pled guilty to two of the charged counts: conspiring to possess cocaine with intent to distribute, id. § 846, and possessing cocaine with intent to distribute, id. § 841(a)(1). Clark did not admit that his offenses involved a particular quantity of cocaine, and he maintained throughout the proceedings that he possessed less than one kilogram. He also argued that the quantity of drugs at issue is an element of his 21 U.S.C. § 841 offense, and that the Fifth and Sixth Amendments precluded subjecting him to an enhanced sentence based on a drug quantity that was not determined by a jury beyond a reasonable doubt. At the drug-quantity hearing, the district court pointed out that the Seventh Circuit has rejected similar constitutional arguments, and proceeded to decide the drug quantity by a preponderance-of-the-evidence standard.
The government called Juan Corral as a witness at the drug-quantity hearing. Corral was a cocaine dealer who had spent time in prison for drug-trafficking convictions. Clark was one of Corral's repeat, multiple-kilogram customers between the months of February and June, 2002. During that time period, Corral's sales of cocaine to Clark varied in quantity and frequency. Corral experienced some "droughts," during which Corral's suppliers could not provide him with cocaine. But, Corral explained, Clark was one of his "preferred" customers-whenever Corral came off of a drought, Clark was one of the first customers he would call.
Corral shared how he and Clark would arrange their meetings. They would talk over the phone and arrange a meeting place. They used code words to refer to kilograms of cocaine, including the terms "bench press," "reps," and "tickets." Corral recounted one particular conversation he had with Clark, on June 5, 2002, in which the two men referred to the kilograms of cocaine as "tickets." He said that Clark had asked for five tickets (kilograms), but that he was trying to get Clark to take six. Corral said he had no doubt in his recollection that on June 5, he and Clark talked about kilograms of cocaine.
In recalling his encounters with Clark, Corral stated that the smallest amount of cocaine he sold Clark on one occasion was three kilograms; the largest amount was around eight kilograms. The amount of cocaine that Clark most frequently purchased from Corral was five to six kilograms. Corral stated that he was "100 percent sure" that when Clark bought cocaine from him, he bought three or more kilograms at a time. Corral recalled, "to the best of [his] knowledge," that he dealt with Clark about once a month. Based on those recollections, Corral estimated that he sold Clark "maybe 17 kilos" of cocaine during the five-month period. Corral thought that he dealt with Clark one time in February, and maybe twice in March. But he could not give estimates for April, May, or June. Corral did not remember the specific dates on which he sold cocaine to Clark. Corral explained how he arrived at the 17-kilogram estimate, which he felt was conservative: "I dealt with him from February 2002 to June 2002. And I [estimated] three keys a month, that would come out to 15. And I know for sure that he purchased at times more than three keys."
When considering the testimony, the district court explained that standing alone, Corral's memory of the sales to Clark was not "good enough to send somebody away for." The court then asked the government how many conversations between Corral and Clark they had recorded-"how many discussions about transactions is the Government actually able to prove with telephone calls?" The government then referred to the complaint affidavit, which detailed some of the wiretapped conversations. During one such conversation, on May 14, Corral and Clark discussed five kilograms of cocaine. Another set of wiretapped conversations dealt with the June 5 transaction to which Corral testified and addressed five to six kilograms of cocaine. The district court determined that these two phone conversations corroborated Corral's testimony that his drug deals with Clark happened once a month.
The government, however, did not introduce into evidence the actual transcripts or tapes of the wiretapped phone calls. The court instead relied on summaries of the wiretapped conversations contained in a complaint affidavit that was attested to by a drug-trafficking agent in the government's efforts to show probable cause before a magistrate judge. Clark objected to the district court's reliance on the complaint and its affidavit, because "defendants are not included in terms of drafting the complaint, can't cross-examine the drafter of it, can't make any changes, can't make any suggestions. It's the Government's document which they submit."
The district court stated that the summarized wiretapped conversations were "irrefutable evidence that [Clark] was discussing relatively large deals, that's deals in the five-to-six kilogram range with Mr. Corral on two occasions." Those conversations proved to the judge that Corral was "telling the truth in terms of the kind of customer that Mr. Clark was." Even though the tapes were not in evidence, the district court "assum[ed] the Government ha[d] this evidence that it [was] describing in the complaint." The court explained that the govern-ment's summary of the taped conversations was, to some extent, corroborated by Corral. Additionally, the court explained, "This is an official court document. So I'm assuming, for purposes of this drug quantity hearing, where the standard is a preponderance of the evidence, and I don't think rules of evidence strictly apply, that I can rely on the Government's assertion that this complaint is based on surveillance."
Clark also argued that the court should discredit Corral's testimony because Corral was an admitted perjurer who had a deal with the government that was contingent on him testifying to certain things. The district court did not agree, and found that Corral was "trying to be truthful and [ ] trying to be conservative," even though his precision was less than satisfactory. Thus, while Corral's testimony alone was not precise enough, in the district court's view, to justify a 15-kilogram drug-quantity finding, the combination of Corral's testimony with the summarized wiretaps convinced the court that Clark's offense involved more than 15 kilograms of cocaine.
Shortly after the drug-quantity hearing, Clark appeared for sentencing on January 17, 2007. The district court began the sentencing hearing with a question about mandatory minimums: "Is there a mandatory minimum that applies in this case?" The Assistant United States Attorney (AUSA) replied, "There is not, Judge, and the presentence investigation report is incorrect in regard to that." The AUSA explained that without the mandatory minimum, Clark's sentencing range was 108 to 135 months' imprisonment; his Criminal History ...