The opinion
In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-3493 & 09-3636
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R OBERT B. L ONG and JASON P. E DWARDS,
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:08-cr-0088—Larry J. McKinney, Judge.
A RGUED JANUARY 19, 2011—D ECIDED M ARCH 22, 2011
Before P OSNER, K ANNE, and R OVNER, Circuit Judges.
K ANNE, Circuit Judge. Robert Long and Jason Edwards
were corrupt narcotics detectives who, over the course
of several months, capitalized on their police authority
to steal marijuana and drug money from Indianapolis-
area criminals. Unbeknownst to the two, some of their
thefts were coordinated stings by law enforcement.
Based on wiretap recordings and evidence from the
stings, Long and Edwards were arrested and convicted
2 Nos. 09-3493 & 09-3636
of possession of marijuana, attempted possession, and
narcotics conspiracy. Edwards now attacks his convic-
tion, claiming the district court erred when it denied
his motion to dismiss evidence related to the wiretap
order on his phone, while Long raises a laundry list
of complaints related to his sentence. We find none of
these contentions meritorious, and accordingly affirm
Edwards’s conviction and Long’s sentence.
I. B ACKGROUND
In early 2008, police began to suspect that Long and
Edwards—two detectives assigned to the Dangerous
Drugs Section of the Indianapolis Metropolitan Police
Department (“IMPD”)—were cooking up ways to
illegally supplement their income. Police became aware
of Long’s plans when he foolishly asked an informant
if he would be willing to help Long pilfer drugs and
money from area drug couriers. The informant
hinted that he would be willing and then—faithful to
his title—immediately informed police of Long’s inquiry.
Officers decided to set up a sting on Long, both to
gather evidence and to determine the size of his opera-
tion. They wired an informant, who met with Long on
March 12, 2008. The informant told Long that he was
meeting with a drug courier that night and that, after
their exchange, the courier would be carrying a large
sum of money. The supposed courier was actually under-
cover officer Adalberto Martinez. Martinez met the in-
formant in his car as planned and pretended to receive
cash from him. After Martinez drove off, Long worked
Nos. 09-3493 & 09-3636 3
with Edwards and IMPD officer James Davis to locate
Martinez. Davis, driving his IMPD patrol car, pulled
Martinez over under the guise of a legitimate traffic
stop. Long arrived shortly thereafter in his unmarked
detective’s car. Long and Davis then seized the cash
in Martinez’s car and sent him on his way. Long
gave half of the cash to the informant as planned and
split the rest between Davis, Edwards, and himself.
Following the March 2008 rip-off, the government
obtained wiretaps on Long’s phones. Using those wire-
taps, the government recorded several incriminating
calls between Long and other parties throughout
April 2008. The first were a series of calls between Long
and his cousin, Kabec Higgins, during which Long
tipped Higgins to an impending narcotics search of Hig-
gins’s business. The next was a conversation between
Long and an officer with the Columbus Police Depart-
ment, during which the officer (as part of his legitimate
duties) told Long about a suspicious package destined
for Indianapolis. Rather than conduct a lawful seizure,
Long went to the address himself and signed for the
package, which contained marijuana. Edwards and Long
divided the marijuana, storing some at Edwards’s home
and turning the rest in to the IMPD (ostensibly as part
of a legal interdiction). The two ultimately sold the mari-
juana to Higgins and divided the proceeds.
Still unsure as to how many people were involved in
the schemes, the government obtained another wiretap
order on May 13, 2008—this time on Edwards’s phone.
That same day, Long received a tip from an officer in
4 Nos. 09-3493 & 09-3636
Chandler, Arizona, regarding a suspicious package that
had been intercepted while en route to Indianapolis. Long
asked the Arizona authorities to ship the package to
him, telling them he would attempt a controlled delivery.
Long then contacted Edwards, telling him that once
he received the parcel, he would “get a warrant for it,
open it,” and then “switch the shit out real quick.” Long
signed for the package on May 15, 2008. After tele-
phoning Edwards and agreeing on the best way to
steal some of the marijuana, Long obtained a search
warrant for the parcel predicated on false informa-
tion, removed some of the marijuana, and stored the
remainder in the IMPD property room (again claiming
the drugs were proceeds from a lawful seizure). Long
then distributed some of the marijuana to Higgins for sale.
Unaware that federal and state law enforcement were
monitoring them, Long and Edwards continued their
spree. In late May 2008, Edwards received a call from
one of his informants, who provided a tip that a drug
dealer living at the Country Club Apartments in Indian-
apolis had over one hundred pounds of marijuana in
his apartment. Edwards, Long, and Davis had a num-
ber of discussions in which they planned to steal the
marijuana from the dealer, sell it, and split the
proceeds between the three of them and Edwards’s
informant. On May 30, 2008, Edwards provided Long
and Davis with the drug dealer’s address. Long and
Davis then fabricated a warrant and used it to convince
the apartment manager to let them into the residence.
To their disappointment, they found nothing.
Nos. 09-3493 & 09-3636 5
Let down by their fruitless search, Long and Edwards
turned to another opportunity. In May 2008, an informant
working for the FBI told Long about a home in Indiana-
polis containing a large quantity of marijuana and drug
money. Unbeknownst to Long and his compatriots, the FBI
was operating the residence and monitoring it with
recording equipment. On June 2, 2008, the informant gave
Long the address of the home and told him it would
contain up to 250 pounds of marijuana and up to 60,000
dollars. That day, the FBI recorded Long, Edwards, and
Davis enter the residence and retrieve the marijuana
and money. Long then delivered the proceeds to the in-
formant as planned. The informant kept the drugs and
some of the cash, leaving Long, Edwards, and Davis
to split the rest.
Still concerned that more officers might be involved,
the FBI developed a scenario that would require more
participants. In late May, the same informant who
tipped Long about the stash house surreptitiously
operated by the FBI told Long of a U-Haul truck coming
into town that would be carrying between 500 and 700
pounds of marijuana. Long agreed to seize the U-Haul and
deliver it to the informant in exchange for a large bounty.
On June 12, 2008, Long met with the informant about
the scheme and learned that the truck would be coming
into Plainfield, Indiana—a town just west of Indianapo-
lis—that evening. Long contacted Davis and Edwards
and updated them. Edwards agreed to participate, but
Davis was unavailable. Davis couldn’t find anyone in
the IMPD willing to assume his role, so Long tricked a
6 Nos. 09-3493 & 09-3636
Plainfield police officer into assisting, telling the officer
that the operation was a legal seizure. Edwards met Long
at the location where they planned to stop the truck, but
nothing came of their plan, as the truck was fictitious—a
ruse designed by the FBI to determine if there were
any more conspirators prior to arrest.
Satisfied that all of the participants had been identified,
the FBI arrested Long and Edwards on June 16, 2008.
Prior to trial, Edwards moved to suppress the wiretap
recordings, arguing that the affidavit in support of the
wiretap order for his phone lacked sufficient facts to
establish necessity for the wiretap. The district court
denied the motion.
Long and Edwards were ultimately found guilty by
a jury. Long was convicted of one count of narcotics
conspiracy, three counts of possession with intent to
distribute marijuana, and one count of attempted pos-
session with intent to distribute marijuana. Edwards
was convicted of the same, minus one count of posses-
sion with intent. After a hearing, Long was sentenced to
twenty-five years’ incarceration and Edwards to seven-
teen years’ incarceration. Edwards appealed his convic-
tion, while Long appealed his sentence.
II. A NALYSIS
A. Robert Long’s Sentence
We deal first with Long’s sentence. Prior to Long’s
sentencing hearing, probation prepared a presentence
report (“PSR”). The PSR concluded that Long stole or
Nos. 09-3493 & 09-3636 7
intended to steal 421 kilograms of marijuana through-
out the conspiracy count, which led to a base offense
level of 28. The PSR went on to recommend a two-level
increase for possession of a firearm, along with adjust-
ments for obstruction of justice, organizing a con-
spiracy, and abusing the public trust. Based on an
adjusted offense level of 38 and a criminal history
category of I, the PSR recommended a guidelines range
of 235 to 293 months’ incarceration.
At the sentencing hearing, the district court began
by soliciting objections to the findings in the PSR. After
sustaining one objection to the organizing adjustment,
the district court found that Long’s adjusted offense
level was 36 and that his criminal history category was I,
yielding a guidelines range of 188 to 235 months’ incar-
ceration. After inviting commentary regarding its guide-
lines calculation, the district court issued Long’s sen-
tence. The court found that Long possessed or intended
to possess 421 kilograms of marijuana, requiring a base
offense level of 28, and that Long possessed a firearm at
two points during his crimes, leading to a two-level
increase. After applying appropriate adjustments, the
court concluded that the guidelines range was a period
of 188 to 235 months’ incarceration. The court then con-
sidered the 18 U.S.C. § 3553(a) factors and ultimately
departed upward from the advisory guidelines range,
sentencing Long to twenty-five years’ incarceration.
On appeal, Long claims the sentencing hearing was
rife with errors. While his brief is less than clear, Long
seems to contend that the court erred when it failed to
8 Nos. 09-3493 & 09-3636
follow the proper sequence of events in calculating his
guidelines range, failed to enter necessary findings of
fact to support its drug quantity calculation, misapplied
a firearm possession enhancement, and neglected to
reduce Long’s sentence to account for the government’s
alleged misconduct during the investigation. We will
address each argument in turn.
1. The Procedural Sequence of the Sentencing Hearing
Long first contends that the district court erred when
it failed to follow the proper sequence of events at the
sentencing hearing. We review the district court’s sen-
tencing procedures de novo. United States v. Coopman,
602 F.3d 814, 817 (7th Cir. 2010).
As the Supreme Court has made clear, a district court
should begin a sentencing hearing by calculating the
advisory guidelines range. Gall v. United States, 552 U.S.
38, 49 (2007); United States v. Glosser, 623 F.3d 413, 418
(7th Cir. 2010). The court will then subject its proposed
sentence to adversarial testing, hearing arguments
as to whether the advisory sentence should apply. Rita
v. United States, 551 U.S. 338, 351 (2007); United States
v. Smith, 562 F.3d 866, 872 (7th Cir. 2009). Finally,
the court will evaluate the § 3553(a) factors and
impose sentence, providing an “adequate statement of
the judge’s reasons, consistent with section 3553(a), for
thinking the sentence that he has selected is indeed ap-
propriate for the particular defendant.” United States
v. Dean, 414 F.3d 725, 729 (7th Cir. 2005).
Nos. 09-3493 & 09-3636 9
Long first argues that the district court should
have initiated the sentencing hearing by immediately
calculating the guidelines range, rather than engaging
in a preliminary discussion of the findings in the PSR.
As support, Long points us to the Supreme Court’s state-
ment in Gall that “a district court should begin all sen-
tencing proceedings by correctly calculating the ap-
plicable Guidelines range.” 552 U.S. at 49. But Long’s
overly literal interpretation of the statement in Gall
ignores a crucial concept: namely that a discussion of
the PSR and its findings is often an important first
step employed by a district court in coming to a correct
calculation of the advisory guidelines range. This is
reflected by the Supreme Court’s statement in Rita that
a “sentencing judge, as a matter of process, will
normally begin by considering the presentence report
and its interpretation of the Guidelines.” 551 U.S. at 351.
Because a consideration of the PSR is a permissi-
ble—and often useful—part of the guidelines-calculation
process, we see no error on this point.
Long goes on to claim that the court did not follow the
appropriate sequence when it failed to enter a drug
quantity finding prior to making its guidelines range
calculation. We have our doubts as to whether Long’s
premise is accurate: read in context, the record strongly
suggests that the district court adopted the uncontested
quantity findings in the PSR before putting forth its
guidelines determination for adversarial testing. But
even if the court failed to enter a finding on drug
quantity before announcing its guidelines calculation,
this error was certainly harmless, cured by the court’s
10 Nos. 09-3493 & 09-3636
subsequent finding regarding the total amount of mari-
juana Long intended to possess.1
2. The Drug Quantity Determination
Long next contends that the district court’s total drug
quantity finding was deficient, as the court failed to
enter necessary, subsidiary findings of fact to support
its overall quantity determination. Because Long failed
to object to the court’s quantity determination, we
review this claim for plain error. United States v. Jumah,
599 F.3d 799, 811 (7th Cir. 2010). To establish plain
error, Long must show that there was an obvious error
that seriously affected both his substantial rights and
the “fairness, integrity, or public reputation of judicial
proceedings.” United States v. Courtright, 632 F.3d 363, 371
(7th Cir. 2011).
For narcotics offenses, a defendant’s base offense level
is calculated by aggregating drug quantities specified in
the counts of conviction with other quantities not
1
Long claims that the court’s total quantity finding came too
late to give him a meaningful opportunity to object. But Long
was given three opportunities to object to the quantity ulti-
mately used by the district court: first when the court solicited
objections to the PSR, which included the amount Long
now disputes; second when the court implicitly adopted the
PSR amount in its initial guidelines range calculation; and
third after the court explicitly found that Long intended to
possess that quantity of marijuana, imposed sentence, and
invited further comments from counsel.
Nos. 09-3493 & 09-3636 11
specified in the counts of conviction that qualify as
“relevant conduct” under the guidelines. U.S.S.G.
§ 2D1.1(a) & cmt. 12. “Relevant conduct” includes acts
that were “part of the same course of conduct or common
scheme or plan” as the counts of conviction. U.S.S.G.
§ 1B1.3(a)(2).
Long first argues that the district court’s total quantity
determination was inadequate because the court did not
enter incremental findings on the various amounts of
marijuana attributable to Long but not specified in
the counts of conviction. This claim is belied by the
record, which reflects that the court explicitly found
Long had intended to possess 421 kilograms of mari-
juana throughout his crimes based on evidence pre-
sented during the case. And the evidence pre-
sented included the findings in the PSR, which not
only indicated that Long intended to possess 421 kilo-
grams of marijuana, but also laid out with specificity
the various amounts of marijuana underlying that sum.
Because the findings in the PSR were uncontested, the
district court was entitled to rely on them in determining
quantity. United States v. Ali, 619 F.3d 713, 719 (7th Cir.
2010). Because the court’s total quantity finding was
based on reliable, incremental findings, we see no error.
Long next claims that the quantity determination
was insufficient because the court failed to find that the
quantities of marijuana not specified in the conspiracy
count qualified as “relevant conduct” under the guide-
lines. But a review of the record shows that the district
court found that Long’s conspiracy count “involve[d]”
12 Nos. 09-3493 & 09-3636
421 kilograms of marijuana, and that Long “inten[ded]
to possess that much marijuana” throughout his
crimes. These statements constitute, at least, an implicit
finding that those unspecified amounts were part and
parcel of the conspiracy count. See United States v. Wilson,
502 F.3d 718, 723 (7th Cir. 2007) (statements that show
that the district court “plainly believed” that the uncon-
victed conduct was “part of the same course of conduct”
sufficient even without more explicit statements to that
effect). While the district court could have been more
detailed in its relevancy finding, we believe its state-
ments were adequate to show that the unspecified quanti-
ties of marijuana were part of the conspiracy count.
Even if the district court’s findings of fact were some-
how deficient, Long still has not made out plain error.
Deficient findings of fact can be cured, at least for
purposes of plain error review, when the district court
adopts the PSR in its Statement of Reasons, the PSR
provides the necessary factual support for the sentence,
and the defendant had an opportunity to object to the
PSR’s findings. See United States v. Salem, 597 F.3d 877,
888 (7th Cir. 2010) (noting that adoption of a PSR’s
findings in a Statement of Reasons may suffice under
plain error review); United States v. Panaigua-Verdugo,
537 F.3d 722, 726-27 (7th Cir. 2008) (holding that such
an adoption is adequate if the defendant had an oppor-
tunity to object). Each of these prerequisites is satis-
fied here, and thus we find no plain error.
Nos. 09-3493 & 09-3636 13
3. The Firearm Possession Enhancement
Long next contends that the enhancement for
possessing a firearm during the commission of a drug
offense was improper. He argues that it was clearly
improbable that he used his firearm in connection with
the drug pilfering; he instead claims that he possessed
his weapon to further his legitimate law enforcement
duties, which just happened to coincide with his illegal
drug seizures. But one lawful use does not vitiate
another unlawful use. United States v. Shamah, 624 F.3d
449, 459 (7th Cir. 2010). Long had his gun with him
at multiple points during his drug offenses and—in
addition to effectuating his other law enforcement
duties—his weapon clothed his acts with the authority
of a police officer and helped further his crimes. For
example, Long made his gun readily available when he
illegally entered the home of a drug dealer at the
Country Club Apartments, intending to steal the dealer’s
stash. This conduct alone made the enhancement appro-
priate.
4. Sentencing Manipulation
Long’s last complaint is that the government engaged
in sentencing manipulation when it instructed its infor-
mant to tip Long off to large amounts of fictional mari-
juana. This claim is without merit, as we have already
squarely rejected the defense of sentencing manipula-
tion. United States v. Garcia, 79 F.3d 74, 76 (7th Cir. 1996).
Long implores us not to apply Garcia to his case due to
a factual distinction between the two, but his argument
14 Nos. 09-3493 & 09-3636
ignores the wide breadth of Garcia. See id. (“We now hold
that there is no defense of sentencing manipulation in
this circuit.”). And even in those circuits that recognize
the defense of sentencing manipulation, those claims
do not succeed when, as here, the larger quantity of drugs
was used to draw out additional co-conspirators. E.g.,
United States v. Moran, 612 F.3d 684, 692 (8th Cir. 2010).
We thus reject Long’s final attack on his sentence.
B. Jason Edwards’s Conviction
We turn last to Edwards’s claim that the evidence
obtained from the wiretap on his phone should have
been suppressed, as the affidavit in support of the
wiretap did not establish necessity. “We review a
challenge to the necessity of wire surveillance under an
abuse of discretion standard, granting substantial defer-
ence to the determination made by the district court.”
United States v. Gray, 410 F.3d 338, 342 (7th Cir. 2005).
To obtain a wiretap, the government must include
with its application “a full and complete statement as to
whether or not other investigative procedures have been
tried and failed or why they reasonably appear to be
unlikely to succeed if tried or to be too dangerous.” 18
U.S.C. § 2518(1)(c). While this necessity requirement
discourages the use of wiretaps as a first-line investiga-
tive tool in the mine run of cases, it “was not intended
to ensure that wiretaps are used only as a last resort
in an investigation.” United States v. McLee, 436 F.3d 751,
762-63 (7th Cir. 2006). Hence, the government’s burden
of establishing necessity is not high, and whether it met
Nos. 09-3493 & 09-3636 15
that burden is reviewed in a practical, common-sense
fashion. United States v. Campos, 541 F.3d 735, 746 (7th
Cir. 2008).
The affidavit here was more than adequate to establish
necessity, especially under our deferential standard
of review. The affidavit laid out, in detail, the efforts
used to investigate Long and Edwards thus far, the
limited success of those efforts, and the government’s
fear—based on the magnitude of Long and Edwards’s
acts—that the techniques already used had missed a
number of co-conspirators. Edwards’s only argument
against necessity is that the investigation had already
uncovered enough evidence to arrest Edwards prior to
the wiretap application. But the fact that arrest could
have occurred earlier does not preclude a finding of
necessity where, as here, the basis for necessity was a
demonstrated need to root out additional co-conspirators.
McLee, 436 F.3d at 763. We accordingly reject Edwards’s
challenge to his conviction.
III. C ONCLUSION
For the foregoing reasons, we A FFIRM Edwards’s con-
viction and Long’s sentence.
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