United States v. Hatten-Lubick, Micha

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-4310

U NITED STATES OF A MERICA,

Plaintiff-Appellee,

v.

M ICHAEL H ATTEN-L UBICK,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 CR 117—Blanche M. Manning, Judge.

____________

A RGUED N OVEMBER 5, 2007—D ECIDED M AY 12, 2008

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Before P OSNER, E VANS, and SYKES, Circuit Judges.

E VANS, Circuit Judge. Michael Hatten-Lubick (his nick-

name is “Bo-Hunky”) appeals from his conviction and

sentence for various narcotics-related offenses.

Hatten-Lubick was indicted with a codefendant, Isaac

Norfleet. Specifically, Hatten-Lubick was charged with

conspiracy to distribute and possess with the intent to

distribute in excess of 50 grams of cocaine base and in

excess of 500 grams of cocaine, in violation of 21 U.S.C.

§ 846, with two substantive counts of possession with

intent to distribute cocaine, in violation of U.S.C.

2 No. 06-4310

§ 841(b)(1), and with three counts of using a telecom-

munications facility in connection with the drug offenses,

in violation of U.S.C. § 843(b). He was tried to the court. At

trial, the government limited its evidence to distribution

of cocaine, not cocaine base. The court found him guilty

on all counts. He was sentenced to 120 months on the

drug charges, with sentences of 48 months on the other

counts to run concurrently. A $5,000 fine was also imposed.

The evidence at trial included telephone conversations

intercepted with Title III wiretaps on the telephone of a

fellow dealer, Rodney Bew. Bew, facing a long sentence

of his own, cooperated with the government in exchange

for a recommendation for a downward departure; his

testimony was significant.

Bew supplied other dealers with cocaine and crack

cocaine in and near the cities of Joliet and Lockport,

Illinois. Bew had several suppliers and usually purchased

cocaine in amounts ranging from 9 ounces (a quarter

kilogram) to a kilogram at a time or, in the jargon of

these dealers, a “rim” (as in tires) or a “set of rims.” When

Bew was transporting cocaine, he brought two “runners”

or “mules” with him. The runners would drive a car

carrying the drugs and Bew would drive behind them

and act as a distraction. If a police officer attempted to

stop the runners’ car, Bew would deliberately commit

traffic offenses so that the officer would stop him, rather

than the runners, thus allowing the runners to slip away.

If the runners were stopped, the passenger in the car

was supposed to throw the cocaine away or jump out of

the car and run away with the drugs.

Hatten-Lubick had known Bew since childhood and

often purchased large amounts of cocaine from him. When

he needed a supply of cocaine, Hatten-Lubick would call

No. 06-4310 3

Bew, who would call a supplier. Once everyone agreed on

the amount of drugs to be purchased and the price, Hatten-

Lubick would follow Bew to meet the supplier. Bew tried

to prevent Hatten-Lubick from “jumping his back” by

dealing directly with the suppliers, thus cutting Bew out

of the deal—something that had happened on occasion.

The evidence showed that the arrangement started

sometime in 2000. Bew testified that in 2001 and 2002

he brokered five or more deals for Hatten-Lubick with

Brent Terry at a Boston Market restaurant in Calumet City.

In 2001, Bew brokered deals between Hatten-Lubick and

“Nemo” at Park Electronics, a store located at 42nd and

Ashland Avenue in Chicago. In 2003, Bew met Alfonso

Perez and began conducting transactions with him and

brokered deals with him for Hatten-Lubick.

On June 25, 2003, Bew drove his car, closely followed by

Hatten-Lubick and Norfleet in Hatten-Lubick’s car, to the

parking lot of a Subway restaurant in Berwyn. Bew

gave Hatten-Lubick’s money to Perez in exchange for a

kilogram of cocaine. In return for Bew’s services in arrang-

ing the transaction, Hatten-Lubick paid Bew $1,000.

After that transaction, Bew and Hatten-Lubick discussed

their dealings with Perez during a telephone call, which

was intercepted by the FBI’s wiretaps. Hatten-Lubick

expressed his view that Perez should be reducing the

price of the cocaine. Bew assured him the price would

drop if they continued to buy from Perez.

A few days later, Hatten-Lubick called Bew, in another

intercepted conversation, and asked for “the usual,” which

Bew understood to mean that Hatten-Lubick wanted to

purchase a kilogram of cocaine. Bew asked Perez for the

cocaine, but he did not have enough on hand to fill the

order.

4 No. 06-4310

Two days later, though, on July 16, Perez called Bew

and asked whether they still wanted the cocaine. Bew, in

turn, called Hatten-Lubick and during the call informed

Hatten-Lubick that Perez had raised the price. Hatten-

Lubick got angry and rejected the deal. But after further

discussions, a price was agreed on, and Bew, Hatten-

Lubick, and Norfleet drove to Berwyn to purchase the

kilogram of cocaine. They met at a Burger King, and Perez

told them to follow him to his mother’s house.1 They

stopped in an alley behind a garage, from which Perez

retrieved a Burger King bag that carried, not a double

Whopper, but a kilo of cocaine. In exchange for the co-

caine, which was given to Hatten-Lubick, Bew gave

Perez Hatten-Lubick’s money. Bew, Hatten-Lubick, and

Norfleet started to drive back to Joliet.

But, of course, because the telephone call making the

arrangements for the deal was intercepted, the FBI had

the entire operation under surveillance. FBI Special Agent

Ron Reddy arranged for an Illinois state trooper, Chad

Brody, to be stationed along Interstate 55, the route to

Joliet. When Hatten-Lubick drove past Trooper Brody, the

FBI instructed the trooper to pull him over. Bew, using

his modus operandi, tried to intervene by driving errati-

cally and closely following Hatten-Lubick’s car to prevent

the trooper from getting behind it. Bew also began to

weave back and forth on the road, twice almost hitting

the trooper’s car. Despite Bew’s best efforts, Trooper

Brody was undeterred and stopped Hatten-Lubick, not

Bew.

1

For interesting reading, see Freakonomics by Steven D. Levitt

and Stephen J. Dubner questioning why, if drug dealers are

so rich, they live with their mothers.

No. 06-4310 5

When the pinch was made, Trooper Brody summoned

his dog, Buster, into action. Buster was certified by the

Illinois State Police Canine Facility to detect the odor of

narcotics, including cocaine. He alerted to the passenger

door of the car. Under the passenger seat, Brody found

the kilogram of cocaine and arrested Hatten-Lubick and

Norfleet.

But, per Agent Reddy’s instructions, both men were

released without charges later that night. In September,

Hatten-Lubick’s attorney arranged for him to meet

with FBI agents. During an interview, Hatten-Lubick

admitted the Burger King incident but refused to talk

about previous drug dealings.

In this appeal, Hatten-Lubick raises several issues:

whether the evidence could sustain a conviction for

conspiracy, whether his trial counsel was ineffective,

whether the court’s calculation of his drug quantity was

erroneous, whether it was error to increase his sentence

based on a supervisory role in the offense, and whether

it was plain error for the judge not to set a payment

schedule for the fine.

Hatten-Lubick’s claim that the evidence was insuffi-

cient to sustain a conviction for conspiracy was first

raised in his motion, pursuant to Federal Rule of Crim-

inal Procedure 29, after the government presented its case.

The reasons for denying the motion are set out in the

court’s amended findings of fact and conclusions of law

after trial. We review the denial of a motion for judg-

ment of acquittal de novo, looking to see whether, viewing

the evidence in the light most favorable to the govern-

ment, it is sufficient to sustain the conviction. United States

v. Hausmann, 345 F.3d 952 (7th Cir. 2003); United States v.

Jones, 222 F.3d 349 (7th Cir. 2000). We reverse a convic-

6 No. 06-4310

tion only if there is no basis for a fact finder to find the

essential elements of the crime beyond a reasonable doubt.

United States v. McCaffrey, 181 F.3d 854 (7th Cir. 1999). We

defer to the credibility determinations of the trial court.

United States v. Hickok, 77 F.3d 992 (7th Cir. 1996). In

other words, Hatten-Lubick faces a significant challenge

on this claim.

It is a challenge he does not meet. The evidence of a

conspiracy is sufficient despite Hatten-Lubick’s claim that

he had merely a buyer-seller relationship with Bew. The

evidence shows otherwise. It is clear the two were

working in concert to obtain drugs. Hatten-Lubick ac-

companied Bew on trips from Joliet to Chicago to obtain

cocaine from Perez They discussed together how much

they should pay Perez. By using two cars and diversionary

tactics, they were working together, trying to distract

police from finding the drugs. They were coconspirators.

See, e.g., United States v. Garcia, 89 F.3d 362 (7th Cir. 1996);

United States v. Baskin-Bey, 45 F.3d 200 (7th Cir. 1995).

Hatten-Lubick also claims his right to the effective

assistance of counsel was denied. We begin by noting

that because counsel is presumed effective, a defendant

bears a heavy burden in challenging his attorney’s effec-

tiveness. United States v. Jimenez, 992 F.2d 131 (7th Cir.

1993). He must satisfy the two-prong test set forth in

Strickland v. Washington, 466 U.S. 668 (1984). First, he

must show that counsel’s performance “fell below an

objective standard of reasonableness.” Second, he must

show that there exists “a reasonable probability that, but

for counsel’s unprofessional errors, the result of the

proceeding would have been different.”

When a defendant raises an ineffective assistance

claim on direct appeal without supplementing the

No. 06-4310 7

record, his task is even harder. Without other evidence,

a possible error by counsel will be presumed to be a

tactical move. United States v. Ashimi, 932 F.2d 643 (7th

Cir. 1991). Because evidence outside of the record will

ordinarily be required to demonstrate the deficiency in

counsel’s performance, we are generally reluctant to

consider claims of ineffective assistance of counsel

raised for the first time on appeal. United States v. Fish,

34 F.3d 488 (7th Cir. 1994). However, Hatten-Lubick’s

claim is now before us.

He says his attorneys did not act as advocates, their

performance was objectively unreasonable, and their

actions prejudiced him. Specifically, he says that his

10-year sentence is twice what he could have received

by pleading guilty. He faults his attorneys for concen-

trating on casting reasonable doubt on the conspiracy

charge but failing to adequately challenge the substan-

tive counts. There were motions to suppress evidence

pending which Hatten-Lubick says could have sup-

ported a conditional plea and that there was no strategic

reason for not entering such a plea. Unfortunately for

Hatten-Lubick, because we have nothing but the trial

record before us, we must assume that there was a

strategic reason for attacking the conspiracy count. While

saying this, we acknowledge that we have just deter-

mined that there was sufficient evidence of conspiracy;

nevertheless, going into the trial, an attorney might think

the charge could be beaten. Perhaps the lawyers were

less optimistic about winning a suppression motion than

they were about beating the charges at trial. But, of course,

we have no way of knowing exactly what their strategy

was—which is precisely the problem when this issue is

raised on direct appeal.

8 No. 06-4310

As to the sentencing issues, we first consider Hatten-

Lubick’s claim that it was error to assign him a leader-

ship role in the conspiracy. We disagree.

We review the imposition of an enhancement for the role

in the offense for clear error. United States v. Haddad, 462

F.3d 783 (7th Cir. 2006). Clear error exists only when, after

reviewing all the evidence, we are left with a definite and

firm conviction that a mistake has been made. If there are

two permissible views of the evidence, the fact finder’s

choice between them is not clearly erroneous. Hickok,

77 F.3d 992.

Under § 3B1.1 of the United States Sentencing Guidelines,

the court is to make an upward adjustment when the

defendant’s role is that of “organizer, leader, manager, or

supervisor.” The enhancement varies between 2 levels and

4 levels, depending upon the number of participants and

the defendant’s role in the offense. The application

notes to this section list seven factors relevant to the

determination as to whether an adjustment is war-

ranted. They include the exercise of decisionmaking

authority, the nature of the participation, the recruitment

of accomplices, the right to a larger share of the proceeds,

the degree of participation in planning or organizing the

offense, the nature and scope of the illegal activity, and

the degree of authority exercised over others. The dis-

trict judge determined that Hatten-Lubick’s use of

Norfleet as a runner made him a manager or supervisor

in criminal activity that involved five or more people.

She imposed a 3-level enhancement. We agree that the

evidence shows that Norfleet was working for Hatten-

Lubick. An intercepted phone call between Bew and

Hatten-Lubick shows that prior to the transactions with

Perez, Hatten-Lubick recruited Norfleet to be his runner.

No. 06-4310 9

The imposition of the enhancement was not clearly errone-

ous.

Hatten-Lubick also contends that it was error for the

district court to conclude that the drug amount which

could reasonably be attributed to him was in excess of

5 kilograms. Once again our review is for clear error. We

will affirm unless, after considering all the evidence, we

are left with a “definite and firm conviction” that a

mistake has been committed. United States v. Romero, 469

F.3d 1139, 1147 (7th Cir. 2006).

The district judge was clear that she found Bew’s testi-

mony credible. Bew testified that over a four-year period

he helped Hatten-Lubick buy large quantities of cocaine

about 12 times in amounts ranging from a quarter of a

kilogram to a full kilogram. He said that on three occa-

sions he brokered transactions between Hatten-Lubick

and Perez for a kilogram each. One transaction with

Perez was in May 2003 at a gas station/car wash in Chi-

cago; the second in June of that year at a Subway restau-

rant in Berwyn, Illinois; the third was on July 16, the day

Buster found the cocaine in Hatten-Lubick’s car. Other

purchases were from Brent Terry and Nemo, Jo-Jo, and

Hezikiah Paine. The transactions with Perez account for

3 kilograms. If the remaining nine transactions were each

for only quarter kilograms (which seems unlikely), the

result is, nevertheless, in excess of five kilograms.

Hatten-Lubick also claims, however, that he should not

be held accountable for any drug transaction prior to

November 2002 because the indictment alleged that he

participated in a drug distribution conspiracy “from in

or about November 2002 to in or about June 2004.” The

date of the offense is, however, not an element of the

crime. To prove the conspiracy, the government must

10 No. 06-4310

show beyond a reasonable doubt (1) that two or more

people agreed to commit a criminal act and (2) that the

defendant knowingly and intentionally joined in the

agreement. United States v. Johnson, 437 F.3d 665 (7th

Cir. 2006). The district judge considered the transactions

prior to November 2002 as part of the offense of convic-

tion. She stated:

Bew obtained much of the cocaine and other drugs

he sold in Joliet from suppliers in Chicago. One of the

people for whom Bew obtained drugs was Hatten-

Lubick, a friend since childhood. Over a four-year

period, Bew helped Hatten-Lubick buy large quantities

of cocaine about 12 times in amounts ranging from

a quarter of a kilogram to a full kilogram. Sometimes

Hatten-Lubick and Bew would pool their money to

buy large quantities of cocaine, which they would

then split between themselves. But mostly, Hatten-

Lubick used Bew as an intermediary in dealing with

Bew’s suppliers. In exchange for Bew’s work as an

intermediary, Hatten-Lubick would pay him bet-

ween $1,000 and $2,000 for each kilogram purchased.

Even were the transactions not considered part of the

offense of conviction, they would qualify as relevant

conduct under U.S.S.G. § 1B1.3(a)(2). There was no error

in the drug calculation.

Finally, Hatten-Lubick argues that his sentence must be

vacated so that the district court can clarify a payment

schedule for the $5,000 fine imposed on him as a result

of his conviction. As to a payment schedule, the judg-

ment says only that “While on supervised release, defen-

dant shall pay monthly installments of 10% of net

monthly income.” Although not clearly stated, Hatten-

Lubick’s argument must be that because he was required

No. 06-4310 11

to begin payment in prison and the payment schedule

in the judgment applied only after his release, the Bureau

of Prisons unlawfully set a schedule for payments while

he was in prison.

Hatten-Lubick did not raise this issue in the district

court and our review of the issue is, therefore, only for

plain error. We look to see whether there was error, that

was plain, and whether the error “affect[s] substantial

rights.” We consider whether to exercise our discretion to

correct the error if it “seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.”

United States v. Olano, 507 U.S. 725, 732 (1993).

We have recently reexamined the issue of plain error

review of the alleged improper delegation of authority to

either the probation department or the Bureau of Prisons

(BOP). See United States v. Tejeda, 476 F.3d 471 (7th Cir.

2007) (leaving scheduling for drug testing after release

to the probation department, while assumed to be error,

did not require correction under the plain error doctrine

because leaving scheduling to the probation department

did not affect Tejeda’s substantial rights); United States v.

Sawyer, ___ F.3d ___ (7th Cir. 2008) (failure to set a sched-

ule for restitution payments following release and leaving

the payment schedule to the probation department in

the case of two of the three defendants before the court

was error that was plain but the error had no affect on the

defendants’ substantial rights and thus did not merit

relief).

Both Tejeda and the relevant defendants in Sawyer

(Michael Sawyer and Terrell Rogers) objected to what the

probation department did after they were released from

prison. In contrast, what the third defendant in Sawyer

(Patrick Duncan), the defendant in United States v. Ellis, ___

12 No. 06-4310

F.3d ___ (7th Cir. 2008), and Hatten-Lubick contend is that

there was some improper delegation of authority to the

BOP for the payment of fines or restitution while they

were in prison. It is not a claim that can be sustained; there

is no error, say nothing of plain error. In Sawyer we said:

Thus we hold that leaving payment during impris-

onment to the Inmate Financial Responsibility Pro-

gram is not an error at all, let alone a plain error. The

statute requires the judge to set a schedule if the

defendant cannot pay in full at once, . . . but it does not

say when the schedule must begin. We hold today

that it need not, and as a rule should not, begin until

after the defendant’s release from prison. Payments

until release should be handled through the inmate

Financial Responsibility Program rather than the

court’s auspices.

In United States v. Ellis, ___ F.3d ___ (7th Cir. 2008), we

reaffirmed our decision in McGhee v. Clark, 166 F.3d 884,

886 (7th Cir. 1999), that when a fine is payable immedi-

ately, a “payment schedule established by the BOP does

not conflict with the sentencing court’s immediate pay-

ment order.” The door is firmly shut on Hatten-Lubick’s

claim.

Accordingly, Hatten-Lubick’s conviction and sentence

are A FFIRMED.

USCA-02-C-0072—5-12-08