Argued September 26, 2013
Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 cr 673 - Matthew F. Kennelly, Judge.
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 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.
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 Enforcement 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 witnesses; 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-quantities 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.
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 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).
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 agreement. 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; specifically, 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).
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, Bostic 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.
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 constitutes 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 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 requirements 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 constitute 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. Specifically, 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.
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 conspiracy." U.S.S.G. § 1B1.3(a)(1)(B), Application Note 2. And "[i]n determining the scope of the criminal activity that the particular 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 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 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 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 ...