United States v. White, Juan

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-4185

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JUAN WHITE,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 03-CR-20092—Michael P. McCuskey, Chief Judge.

____________

ARGUED DECEMBER 7, 2007—DECIDED MARCH 5, 2008

____________

Before POSNER, ROVNER and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge. Juan White was convicted by a

jury of distribution of 50 grams or more of cocaine base

(crack cocaine) in violation of 21 U.S.C. § 841(a)(1). During

the trial, the district court allowed the government to

introduce evidence that its main witness had cooperated

in other cases in order to rehabilitate him, a ruling White

now appeals. Following the trial, the district court sen-

tenced White to 360 months of imprisonment. White

also appeals this sentence. We affirm.

2 No. 06-4185

I.

In 2000, Juan White was the subject of a government drug

investigation in Decatur, Illinois. Troy Fuller, who was

similarly under investigation at that time, was arrested on

drug charges in March 2000 and began cooperating

with authorities. As Fuller previously had purchased

powder cocaine from White, the police instructed Fuller to

contact White and attempt to set up a controlled purchase

of two ounces of crack cocaine. On August 27, 2000, White

and Fuller agreed to meet at a car wash to complete the

purchase. When White arrived a few minutes after Fuller

(who was outfitted with a wire transmitter), he entered

the backseat of Fuller’s car and gave Fuller what was

later determined to be 57.2 grams of crack. Fuller paid

White $1800 and asked him whether he had any “soft”

(meaning powder) cocaine. White responded that he

was hoping to obtain some that night and to call him

within the next few days.

More than three years later, on October 9, 2003, White

was arrested for the August 2000 sale of crack to Fuller. At

that time agents also seized a number of firearms. White

was charged in an indictment (later superseded) with the

August 2000 sale of crack as well as the October 2003

possession of a firearm by a felon. White pleaded guilty

to the firearm charge and proceeded to a jury trial on the

drug charge.

At the trial, Fuller, testifying on behalf of the govern-

ment, recounted his August 2000 transaction with White

and also told the jury that he was testifying pursuant to

a plea agreement with the government in the hopes that

his sentence would be reduced. On cross-examination,

White’s counsel attacked Fuller’s credibility, focusing on

the fact that Fuller was relying on the government to seek

No. 06-4185 3

to reduce what otherwise would be a mandatory mini-

mum sentence. In light of this line of questions, the prose-

cutor requested that he be permitted to rehabilitate his

witness with evidence concerning the cooperation Fuller

had provided to the government in other cases. Following

a hearing, the district court determined that White’s

“full frontal attack” on Fuller’s credibility warranted the

government’s rehabilitation of Fuller. Tr. 374. The gov-

ernment then elicited testimony from an FBI agent describ-

ing three other drug cases in which Fuller had cooperated:

one in which Fuller’s information led to the seizure and

forfeiture of $16,000 and two others which resulted in

guilty pleas. Both at the time this evidence was introduced

and again when he was charging the jury at the close of the

case, the district judge instructed the jurors that this

evidence was admitted only for purposes of evaluating

Fuller’s credibility and not as evidence against White. The

jury, as we have mentioned, convicted White on the drug

distribution charge.

White’s conviction for distributing more than 50 grams

of crack cocaine, coupled with a prior felony drug con-

viction, required a sentence of between 20 years and life in

prison. 21 U.S.C. § 841(b)(1)(A)(iii). Within that statu-

tory range, the sentence recommended by the Sentencing

Guidelines turned in large part on the quantity of

drugs underlying White’s offense. The presentence

report (“PSR”) held White accountable not only for the

57.2 grams of crack cocaine that he sold to Fuller in

August 2000, but also for ten additional sales of crack and

powder cocaine to Fuller and two others, Frederick Porter

and Jeremiah Young, between 1994 and 2003. Those

additional sales were treated as relevant conduct. See

U.S.S.G § 1B1.3(a)(2) and comment n.3. In total, the PSR

4 No. 06-4185

held White accountable for 68.65 kilograms of powder

cocaine and 3.37 kilograms of crack, resulting in a base

level offense of 38.1 White objected not only to the PSR’s

drug calculation, but also to the “deliberate nature of the

sting operation” which, according to White, unfairly

resulted in the triggering of the mandatory sentencing

provisions of 21 U.S.C. § 841(b)(1)(A)(iii). To resolve

these issues, the district court held a number of sentenc-

ing hearings during which Porter and Young, among

others, testified. At the conclusion of these hearings the

court determined that the agents’ direction to Fuller to

purchase the two ounces of crack was neither sentence

entrapment nor sentence manipulation and that the

drug sales as presented in the PSR were properly attribut-

able to White as part of the same course of conduct as the

offense of conviction. Adopting the recommendations

of the PSR, the court found the advisory guidelines range

to be 360 months to life and, after hearing both the gov-

ernment’s recommendations and White’s arguments as

to an appropriate sentence, the court sentenced White to

360 months’ imprisonment.2

II.

A.

White first contests the district court’s ruling which

allowed the government to introduce evidence of Fuller’s

1

White received a three-level enhancement for his managerial

role which he does not challenge. His total offense level at the

time of his sentencing, then, was 41.

2

White was also sentenced to a concurrent 120 month term on

the firearm charge.

No. 06-4185 5

cooperation in other cases in order to rehabilitate him as

its witness.3 We review a district court’s admission of

evidence for abuse of discretion. E.g., United States v.

Bonner, 302 F.3d 776, 780 (7th Cir. 2002). We find there

was no such abuse here and consequently we affirm the

lower court’s ruling.

This Circuit previously has established that a wit-

ness whose credibility has been attacked may be rehabili-

tated (e.g., United States v. Lindemann, 85 F.3d 1232, 1242-43

(7th Cir. 1996)), and where, as here, it is a government

witness who is portrayed as biased in favor of the gov-

ernment, evidence of that witness’s cooperation in other

cases may be admitted for that purpose. E.g., United States

v. Henderson, 337 F.3d 914, 919 (7th Cir. 2003); United States

v. Scott, 267 F.3d 729, 735-37 (7th Cir. 2001). When cross-

examining Fuller, White’s counsel attempted to sug-

gest that Fuller’s desire for government leniency in the

pending case against him made it likely that he was lying

about his transaction with White in order to curry favor

with the government. Without the evidence later intro-

duced by the government that Fuller had cooperated in

other successful cases, the “jury might have believed

that [Fuller’s] plea deal rested solely on [White’s] case,

3

In addition to the brief filed by White’s counsel, we allowed

White to file his own supplemental brief to address two discrete

issues: this one, and the question of whether the court improp-

erly denied him an entrapment defense. (Order, July 16, 2007.)

In his pro se brief, White does not tackle the latter at all but

does raise three other issues well outside the scope of the

Court’s order. Of the arguments raised in White’s supple-

mental brief, therefore, we consider only the question of Fuller’s

rehabilitation.

6 No. 06-4185

thereby making a motive to frame [White] all the more

reasonable.” Henderson, 337 F.3d at 919. The government’s

evidence of Fuller’s other cooperation was relevant because

it made the jury aware that Fuller had other, “multiple

bargaining chips” vis-à-vis the government, making it

less likely that he was lying in this case out of self-interest.

See Scott, 267 F.3d at 736. In addition, the court’s admoni-

tions to the jury about considering this evidence only

insofar as it related to Fuller’s credibility further served

to mitigate any potential for unfairness to White. Id.

B.

White also argues that the government’s specific instruc-

tion to Fuller to buy two ounces of crack from him, an

amount of the drug that triggers a mandatory minimum

sentence under the 21 U.S.C., § 841(b)(1)(A)(iii) (in this

case 20 years with a prior felony drug conviction), was

so “outrageous” that White’s rights clearly were vio-

lated. The fundamental unfairness arises, White theorizes,

from the fact that the police “chose a substance and an

amount with the express purpose of manipulating

the mandatory sentencing provisions…..” This broad,

nebulous argument is without merit. First, this circuit

clearly and consistently has refused to recognize any

defense based on either “sentencing manipulation” or on

asserting “outrageous government conduct.” See United

States v. Veazey, 491 F.3d 700, 710 (7th Cir. 2007) (no defense

of sentencing manipulation) (coll. cases); United States

v. Sherman, 268 F.3d 539, 549 (7th Cir. 2001) (“outrageous

government conduct” is not a recognizable defense) (citing

No. 06-4185 7

United States v. Boyd, 55 F.3d 239, 241 (7th Cir. 1995)).4

Although this might potentially leave White with an

argument of “sentencing entrapment,” White himself

acknowledges that the government’s actions do “not

necessarily qualify as sentence entrapment or sentence

manipulation…..” (White Br. at 13.) Regardless, even if

White had cogently made the argument of sentence en-

trapment, no such finding is warranted here.

Sentencing entrapment occurs in situations when a

defendant who lacks a predisposition to engage in more

serious crimes nevertheless does so “as a result of ‘unre-

lenting government persistence.’ ” Veazey, 491 F.3d at 710

(quoting United States v. Hale, 448 F.3d 971, 989 (7th Cir.

2006), cert. denied, 127 S.Ct. 1020 (2007)). To overcome

this argument, the government need not explain or de-

fend its motives, but must show only that the defendant

was in fact predisposed to violate the law without “ex-

traordinary inducements.” Id.

Here the evidence reveals that White clearly was predis-

posed to distribute crack: White admitted to selling

both cocaine powder and crack to various customers;

there was testimony from other drug purchasers that

White engaged in multiple, individual sales of large

quantities of crack; and Fuller did not offer White any

“extraordinary inducements” whatsoever to make the

sale. In spite of the fact that the purchase was a depar-

ture from Fuller’s previous buying patterns with White,

the fact that White, a drug dealer with a history of dealing

4

White spends a good part of his brief attempting to sway this

Court with arguments in favor of these theories accepted by

other Circuits, to no avail.

8 No. 06-4185

crack, readily acceded to Fuller’s request undercuts any

possible theory of sentence entrapment in this case. We

affirm the district court’s ruling on this issue.

C.

Finally, White appeals from the district court’s calcula-

tion of the quantity of drugs involved in his offense,

claiming that it was improper to hold him accountable

for ten additional drug transactions over a nine-year

period, the inclusions of which increased White’s offense

level from 32 to 38 and effectively nearly doubled the

sentencing range. We review the lower court’s calcula-

tions for clear error. United States v. Olson, 450 F.3d 655,

685 (7th Cir. 2006).

Section 1B1.3(a)(2) of the Guidelines provides that all acts

and omissions that were “part of the same course of

conduct or common scheme or plan as the offense of

conviction” should be considered “relevant conduct” for

sentencing purposes. Conduct that qualifies as relevant is

factored into the Guidelines’ sentencing calculations as

if the defendant had been convicted of that conduct,

even though the defendant was neither charged nor

convicted of the additional crime or crimes. E.g., United

States v. Artley, 489 F.3d 813, 822 (7th Cir.), cert. denied,

128 F.3d 415 (2007). The critical inquiry is whether the

offenses are “sufficiently connected or related to each

other as to warrant the conclusion that they are part of a

single episode, spree, or ongoing series of offenses.”

U.S.S.G. § 1B1.3(a)(2), comment n.9(B). In making this

determination, the court may look to the “similarity of the

offenses, the regularity (repetitions) of the offenses, and the

interval between the offenses.” Id. Relevant conduct must

No. 06-4185 9

be established by a preponderance of the evidence. United

States v. Johnson, 342 F.3d 731, 734 (7th Cir. 2003).

We have noted that the relevant conduct or “aggregation

rule” grants the government a “fearsome tool” in drug

cases by allowing prosecutors to seek enhanced sentences

by asking the sentencing court to consider types and

quantities of drugs not specified in the counts of convic-

tion. See United States v. Ortiz, 431 F.3d 1035, 1040 (7th Cir.

2005) (citing United States v. Duarte, 950 F.2d 1255, 1263

(7th Cir. 1991)). See also United States v. Crockett, 82 F.3d

722, 730 (7th Cir. 1996) (“The determination that an un-

charged drug transaction is to provide the basis for an

increased sentence of imprisonment is, of course, a

very significant matter.”). Yet we have also sustained

its propriety repeatedly, holding that so long as it was

based on reliable evidence, the determination of drug

quantity “is a factual determination entitled to our defer-

ence unless we have a definite and firm conviction that

a mistake has been made.” United States v. Wilson, 502

F.3d 718, 721 (7th Cir. 2007) (internal quotation omitted).

In this case the district court conducted extensive hear-

ings, evaluated the credibility of witnesses, heard and

reviewed considerable, reliable evidence and made

specific findings about the similarity, regularity and

temporal proximity of the offenses. We have no basis

whatsoever to say its findings are clearly erroneous. See

Olson, 450 F.3d at 685 (sentencing judge is best situated to

determine the credibility of witnesses and such conclu-

sions will not be disturbed unless they are wholly with-

out foundation).

White argues that the other drug sales cannot be deemed

relevant conduct for three reasons: those drug sales

which are “removed by years” from the offense of convic-

10 No. 06-4185

tion are too remote to be deemed relevant conduct; there

is no proof of a relationship between Fuller, Porter and

Young; and most of the non-charged drug sales involved

powder cocaine whereas the offense in question involved

crack. We are not persuaded by any of these arguments.5

White’s time-gap argument is hollow. It is true that in

certain circumstances, gaps of time between an offense

and the charged offense may suggest that the behavior

is not part of the same course of conduct. See, e.g. United

States v. Sykes, 7 F.3d 1331, 1337 (7th Cir. 1993). Here,

however, the evidence shows that there were no such

gaps—White’s drug trafficking was more or less con-

sistent over the nine-year period in question. Although

the government did not show that White regularly dis-

tributed to any single buyer, White’s own admission that

from 1997 to 2002 he obtained one-half kilogram quantities

of powder cocaine for resale, twice a week, shows that

White’s drug distribution in general was regular and

steady. In addition, Fuller’s, Porter’s and Young’s testi-

mony, when taken together, shows a continuous pattern

of drug trafficking. For purposes of the aggregation rule,

then, we cannot say that the lower court erred when it

concluded that there was sufficient temporal proximity

between the offenses for relevant conduct purposes.

5

The lower court concluded both that a “common scheme or

plan existed” and that the uncharged conduct involved the

“same course of conduct” as that involved in White’s conviction.

Because a positive finding under either prong is sufficient for

the aggregation rule and because we affirm the district court’s

ruling on the basis of the “course of conduct” prong, we do

not reach the question of whether the behavior at issue con-

stituted a “common plan or scheme” under the statute.

No. 06-4185 11

White’s argument that Fuller, Porter and Young did not

necessarily have relationships with each other is sim-

ilarly unavailing. White’s argument would be more on

point if the relevant conduct determination here turned

on whether the additional transactions were part of a

common scheme or plan among multiple individuals.

See n.5. But the unifying factor here is White and his

unbroken series of sales to lower level drug sellers in

Decatur. As a result, the lack of a relationship between

White’s purchasers becomes irrelevant. Relying in part

on White’s statement that he was the largest drug dealer

in Decatur, the court below found that the transactions

with Fuller, Porter and Young were similar, all part and

parcel of White’s significant distribution of drugs to dealers

in Decatur for redistribution. Again, there is nothing to

suggest this was clear error on the court’s part. See Wilson,

502 F.3d at 724 (no clear error where the district court

viewed the large drug sale which was the basis for the

defendant’s arrest as “the latest in an unbroken series

of large cocaine deals [the defendant] regularly made in

the St. Louis area from 1998 until his arrest [in 2004]”).

Turning to White’s argument that the offense of con-

viction involved crack, a drug different from the powder

cocaine involved in many of the other offenses, we find

this distinction to be immaterial here. There is no question

that non-charged offenses need not involve the same type

of drug as the offense of conviction to be considered

relevant conduct. See, e.g., United States v. Acosta, 85 F.3d

275, 281 (7th Cir. 1996) (weekly cocaine sales predating

arrest on heroin charge constituted relevant conduct for

sentencing purposes where the court found regulatory,

temporal and geographic proximity of the offenses); United

States v. Sumner, 325 F.3d 884, 890 (7th Cir. 2003) (sales of

12 No. 06-4185

crack cocaine included in relevant conduct although

powder cocaine was the drug involved in the conviction).

The district court found that, during his normal course

of “business,” White bought and sold both crack and

powder cocaine, distributing both drugs to dealers in

Decatur. As such, including the non-charged powder

cocaine transactions as relevant conduct for sentencing

is more than defensible and certainly does not con-

stitute clear error.

Lastly, just days after we heard oral argument in this

case, the Supreme Court handed down Kimbrough v.

United States, 128 S. Ct. 558 (2007), clarifying that sen-

tencing courts may, in their discretion, consider the

crack/powder cocaine disparity in imposing sentences

outside the Guidelines’ range. This prompted us to re-

quest supplemental briefing in this case on whether

remand would be appropriate here. After consideration,

we agree with the government that such remand is unnec-

essary given the lower court’s firm statement that it

would have imposed the same sentence even if there

were no Guidelines, thus making clear that the

crack/powder disparity reflected in the Guidelines in

no way affected the court’s sentencing decision.6

6

This approach is entirely consistent with the one we took in

the wake of United States v. Booker, 543 U.S. 220 (2005), pursuant

to which we declined to ordered even limited remands if the

sentencing record made clear that the court’s sentence would

not change even in view of the more ample discretion afforded

the court under Booker. See, e.g., United States v. Julian, 427

F.3d 471, 491 (7th Cir. 2005) (citing United States v. Paladino, 401

F.3d 471, 482-83 (7th Cir. 2005)).

No. 06-4185 13

III.

For the foregoing reasons, the district court’s judgment

is AFFIRMED.

USCA-02-C-0072—3-5-08