United States v. Robert Stephenson

In the

United States Court of Appeals

For the Seventh Circuit

No. 06-2574

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

R OBERT S TEPHENSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 CR 243 B—Mark R. Filip, Judge.

A RGUED A PRIL 30, 2007—D ECIDED F EBRUARY 17, 2009

Before R OVNER, W OOD , and SYKES, Circuit Judges.

R OVNER, Circuit Judge. Robert Stephenson appeals

his sentence for distribution of a controlled substance,

objecting to the enhanced penalty he received for dis-

tributing crack cocaine. He argues first, that the gov-

ernment failed to prove that he sold crack as opposed to

another form of cocaine, second that the enhanced penal-

ties for crack cocaine are unconstitutionally vague, and,

finally, that the district court had insufficient evidence

to include one kilogram of prior crack distribution as

relevant conduct. We affirm on each point.

2 No. 06-2574

In 2001, the Drug Enforcement Administration (DEA)

targeted Stephenson in its ongoing investigation into

crack dealing by members of the Gangster Disciples street

gang in Evanston, Illinois. As part of the investigation, the

DEA employed a confidential source who had negotiated

crack deals with persons in the area before, including

Stephenson. The confidential source knew Stephenson

as a drug seller who dealt exclusively in crack cocaine.

On July 17, 2001, after two phone calls arranging the

terms of the transaction, Stephenson and the confidential

agent met in a parking lot of an Evanston YMCA where

Stephenson sold the confidential source 36.6 grams of a

white chunky substance for $1,100. Both the DEA agent

and the confidential source visually identified the sub-

stance as crack, and field tests confirmed that the

powder contained some form of cocaine.

Approximately two weeks later, the confidential source

re-contacted Stephenson and, after several phone calls

arranging the deal, the two met again. This time, the

confidential source purchased a plastic baggie con-

taining 57.7 grams of a hard, brownish tan chunky sub-

stance for $1,550. Again, both the DEA agent and the

confidential source identified the substance as crack and

field tests indicated that the product contained cocaine.

DEA agents arrested Stephenson on November 5, 2001.

In a post-arrest interview, after being Mirandized,

Stephenson admitted that he was a crack dealer in the

Evanston, Illinois area. He revealed that he began pur-

chasing small amounts of crack in 1996, and eventually

began buying four and five ounce quantities. He estimated

No. 06-2574 3

that he had purchased one kilogram of crack from one

particular seller over the course of a five to six year

period, ending in 2003. In a second meeting, again

after being Mirandized, Stephenson viewed a tape of the

August 2 drug sale and confirmed that he appeared in

the video selling crack.

On January 13, 2005, Stephenson entered a blind plea to

counts one and two of the superseding indictment which

charged him with knowingly and intentionally distributing

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

of five grams in count one and fifty grams in count two.

After a May 31, 2005 sentencing hearing, on June 2, 2006,

the district court sentenced Stephenson to 180 months on

counts one and two, to be served concurrently, a fine of

$1,000 and a five year term of supervised release for each

count.

Stephenson appealed to this court alleging (1) that the

government failed to prove by a preponderance of the

evidence that Stephenson possessed crack cocaine as

opposed to another form of cocaine; (2) that the enhanced

penalties for crack cocaine are unconstitutionally vague;

and (3) that the district court erred by including one

kilogram of prior crack sales as relevant conduct.

Stephenson’s primary strategy in this appeal is to cast

doubt on the government’s evidence that he sold crack as

opposed to another form of cocaine. Although recent

judicial and congressional actions have lowered some of

the sentences for drug crimes involving crack cocaine,

sentences for the sale of crack cocaine are still significantly

higher than those for other forms of cocaine, and this

4 No. 06-2574

distinction obviously fuels Stephenson’s appeal.1 To

sentence a defendant under the enhanced penalty, the

government must prove by a preponderance of the evi-

1

For example, effective November 1, 2007, the Sentencing

Commission altered the guidelines suggestions for crack

sentencing by reducing the base offense level associated with

each quantity of crack by two levels. See Amendments to the

Sentencing Guidelines for United States Courts, 72 Fed. Reg.

28571-28572 (2007). See also Kimbrough v. United States, 128 S. Ct.

558, 569 (2007). The Sentencing Commission took such action

after its multiple attempts to persuade Congress to reduce or

eliminate the crack/powder disparity were rejected. Further-

more, last year the Supreme Court held that the advisory nature

of the Sentencing Guidelines applies to crack sentencing cases

such that it would not be an abuse of discretion for a district

court to conclude that the crack/powder disparity yields a sen-

tence greater than necessary to achieve the goals of the statute

at issue. Kimbrough, 128 S. Ct. at 575. It is questionable whether

the changes announced in Kimbrough affect Stephenson,

as he appears to have put all his eggs in the “I sold cocaine and

not crack” basket. But see United States v. Padilla, 520 F.3d 766,

774 (7th Cir. 2008) (“[defendant] did contest before the district

court and again on appeal whether the drugs in question were

crack. We can presume that [the defendant’s] primary purpose

in disputing the drug type was to avoid the harsh effects of the

crack sentencing disparity, since no other logical inference

exists. In so doing, [the defendant] preserved the issue, however

obliquely, of whether the district court could consider the 100:1

sentencing disparity in sentencing.”). In any event, at no time

while this appeal has been pending did Stephenson make

any argument regarding Kimbrough or the reasonableness of

his sentence in this court, and thus the argument is waived.

No. 06-2574 5

dence that the substance at issue is crack, and not some

other form of cocaine base. United States v. Branch, 195

F.3d 928, 934 (7th Cir. 1999). As we shall see, more than

ample evidence supports the government’s contention

that Stephenson sold crack cocaine, and we review such

a factual determination of the type of drugs involved in

an offense for clear error only. United States v. Linton,

235 F.3d 328, 329 (7th Cir. 2000).

Given our sophisticated crime laboratories, it might

seem an easy task to determine whether a particular drug

is crack or another form of cocaine base, but no chemical

test can distinguish between crack and cocaine base. Crack

is merely one form of cocaine base—a form that arises as

the end result of one method of turning the salt form of

cocaine, cocaine hydrochloride (powder cocaine), back

into a base form. See United States v. Edwards, 397 F.3d 570,

574 (7th Cir. 2005). Drug dealers alter the form of naturally

occurring cocaine to offer drug users their preferred

method of ingesting the chemical. Crack can be smoked,

but not snorted or injected; powder cocaine can be

snorted, but not smoked. Id. at 490-91.2 Other methods

of converting cocaine hydrochloride into a base form

produce cocaine base that is not crack. See United States

v. Booker, 70 F.3d 488, 491 (7th Cir. 1995). For example,

freebase cocaine, popular in the 1970s, is another form

of cocaine base, although one that has lost popularity

2

For a more comprehensive explanation of the differences

between the various forms of cocaine, see Booker, 70 F.3d at 490-

91.

6 No. 06-2574

due to its volatile and dangerous production methods. Id.

This circuit has rejected rigid definitions of crack, noting

that to employ such a rigid definition would invite those

in the drug trade to make minor changes in structure,

processing, or packaging to avoid the increased penalties

for selling crack cocaine. United States v. Abdul, 122 F.3d

477, 479 (1997). Instead of applying a rigid definition, this

circuit has held that a sentencing judge must determine

whether a defendant sold “crack,” as those who buy

and sell in the market generally understand the term.

Id. The experts in this field are those who spend their

lives and livelihoods enmeshed with the drugs—users,

dealers, and law enforcement officers who specialize in

narcotics crimes. United States v. Kelly, 519 F.3d 355, 364

(7th Cir. 2008); United States v. Bradley, 165 F.3d 594, 596

(7th Cir. 1999) (“those who smoke, buy, or sell this stuff

are the real experts on what is crack.”)

In this case the “experts” all agreed that Stephenson

sold crack and not some other form of cocaine to the

confidential source. The confidential source, a former

crack buyer and addict, readily identified the substance

as crack, and also noted that he had never bought any

drug other than crack from Stephenson.3 In fact, the

confidential source refused the DEA’s request that he

ask Stephenson for “crack, cooked or hard” because, as the

he explained, Stephenson was a crack dealer and only

sold crack. Presumably the confidential source was con-

3

For ease of use, we will refer to the confidential source as “he”

although this may or may not reflect the actual gender of

the confidential source.

No. 06-2574 7

cerned that such an obvious reference to crack would

blow his cover as a government agent.

The DEA agent who testified at Stephenson’s sen-

tencing hearing qualified as another expert in the field. At

the time that he testified, DEA Special Agent Steve

Moran had worked for the DEA for approximately eight

years and had seen hundreds of samples of crack cocaine.

See United States v. Gray, 410 F.3d 338, 347 (7th Cir. 2005)

(agent who had been with the DEA for seven years and

previously had worked for five years as a narcotics

canine officer was qualified as expert in identifying

drugs). He testified that the price, appearance, pack-

aging, and manner of transaction were consistent with

crack cocaine.

The defendant himself identified his wares as “crack.”

After his arrest, and after officers read Stephenson his

Miranda rights, the defendant agreed to speak to the

investigating officers and admitted that he was a “crack

cocaine dealer in Evanston, Illinois,” and described

several aspects of his crack business. Stephenson never

told the agents that he sold cocaine or cocaine base. In

his second post-arrest interview, after viewing a video of

one of his transactions, Stephenson again admitted that

he sold crack, referring to the drugs as “crack,” or

“cooked” or “hard”—slang terms for crack cocaine.

At Stephenson’s plea hearing, the government set forth

its rendition of what the evidence would show if

presented at trial. In that recitation, the government

indicated that Stephenson had sold crack cocaine on two

separate occasions. It used the word “crack cocaine” no

fewer than six times in its presentation of the evidence,

8 No. 06-2574

after which time, the court engaged in the following

colloquy with the defendant:

THE COURT: Mr. Stephenson, have you heard the

statement of the prosecutor?

STEPHENSON: Yes, sir.

THE COURT: Is her statement correct?

STEPHENSON: Yes, sir.

THE COURT: Do you disagree with any part of the

statement?

STEPHENSON: No, sir.

THE COURT: Do you wish to add to any part of the

statement?

STEPHENSON: No, sir.

***

THE COURT: If you could just tell me in your own

words what it was on each of these two

occasions, on July 19, 2001, what was it

that you did that was illegal, in your

own words, not in legalese, just what it

was.

STEPHENSON: Sold the guy cocaine base.

THE COURT: Okay. And when you sold him—when

you sold him the drugs, did you know

it was crack cocaine? Did you know it

was cocaine?

STEPHENSON: Yes.

(TR. 1/13/05, pp. 23-24).

No. 06-2574 9

Stephenson also informed the probation department

that all of the information contained in the superceding

indictment—including the charge that the he “sold cocaine

base in the form of crack cocaine” was true and accurate.

(R. 53 at p. 6).

We need not linger too long over Stephenson’s choice of

words that he “sold the guy cocaine base.” All crack

cocaine is cocaine base, but not all cocaine base is crack.

See Edwards, 397 F.3d at 571. In the context of the dis-

cussion, particularly in light of the immediately preceding

colloquy referencing only crack cocaine, both the court

and Stephenson clearly were referring to that subset of

cocaine base known as crack.

From start to finish, all of the players involved in this

transaction understood that Stephenson was selling

crack cocaine. Nevertheless, Stephenson insists that his

situation resembles that of Carl Edwards, whose case we

remanded for re-sentencing when the district court sen-

tenced Edwards to the mandatory minimum for crack

cocaine after finding that he possessed non-crack forms of

cocaine base. Edwards, 397 F.3d 570. We reversed the

district court in that case because of an error in its legal

conclusion—that is, we reiterated our prior holdings

that the enhanced penalties described in 21 U.S.C. § 841(b)

apply only to crack cocaine and not to other forms of

cocaine base. Id. at 577. We left undisturbed the district

court’s factual finding that Edwards possessed non-crack

forms of cocaine. Id. Although, as it turns out, Edwards

was one of Stephenson’s suppliers, the factual finding

that Edwards possessed non-crack cocaine for the

offense of conviction in that particular case has no

10 No. 06-2574

bearing on the factual findings in this case that Stephenson

possessed crack. Edwards, unlike Stephenson, denied

from the get-go that he sold crack as opposed to powder

cocaine. Id. at 572. Edward’s drug experts testified that

the drug in question had neither the physical form nor

color generally associated with crack. Id. at 573. The

government’s drug expert testified that the substance

was indeed crack, but he based this conclusion not on

scientific tests or expert examination but on the definition

in the Sentencing Guidelines, which reads: “ ‘Cocaine base,’

for the purposes of this guideline, means ‘crack.’ ” Id. at

572. Because the government’s expert relied exclusively

on the legal definition of “cocaine base” rather than

scientific evidence, the district court rejected his con-

clusion that the substances Edwards possessed were

crack. Id. at 572-73. Stephenson’s case presented none of

this confusion. The evidence from all of the experts,

including from Stephenson himself, indicated that

Stephenson sold crack cocaine.

In sentencing the defendant, the district court noted that

“the government has proven that the Defendant was

dealing crack cocaine, as that term has been defined in

the precedent, by any standard of proof known in law,

including proof beyond a reasonable doubt.” (R. 53 at p. 2).

The district court reviewed all of the potential evidence

in the case—all of the evidence we have outlined here—in

concluding that Stephenson sold crack cocaine. Id. at 5.

Particularly, the district court relied on the testimony of the

confidential source and the DEA agent, the physical

description of the drug, and the admissions Stephenson

made after the police read him his Miranda rights. Id.

No. 06-2574 11

All of this, the court noted, was sufficient to establish

beyond a reasonable doubt that Stephenson sold crack

cocaine. Id. The district court also noted that although all

of that evidence sufficiently established that Stephenson

sold crack cocaine, Stephenson’s agreement with the

statements at the plea hearing and with those in the pre-

sentencing report added additional support for the con-

clusion. Id. at 6. This was not a close case; the district court

correctly concluded that Robert Stephenson was selling

crack cocaine.

We turn next to an argument Stephenson makes for the

first time on this appeal—that the definitions of “cocaine

base” is so vague that the enhanced penalties for crack

cocaine run afoul of the due process guarantees of the

Fifth Amendment. Because Stephenson did not raise

this argument below, we review it for plain error only.

United States v. Cusimano, 148 F.3d 824, 828 (7th Cir. 1998).

Stephenson incorrectly labels this question a matter

of first impression. We have held definitively, on

more than one occasion, that the sentencing provisions

for cocaine and cocaine base are not ambiguous and

that the enhanced penalties in 21 U.S.C. § 851 for

“cocaine base” apply to crack cocaine. See Edwards, 397

F.3d at 574-75; Booker, 70 F.3d at 494.4 Despite these

4

Although some circuits have concluded that the enhanced

penalty applies in different manners, see Edwards, 397 F.3d at

575-76 (chronicling division among circuits), in this circuit it

has long been clear that the enhanced penalty applies only to

(continued...)

12 No. 06-2574

clear holdings, we address Stephenson’s argument once

more.

“[T]he void-for-vagueness doctrine requires that a

penal statute define the criminal offense with sufficient

definiteness that ordinary people can understand what

conduct is prohibited and in a manner that does not

encourage arbitrary and discriminatory enforcement.”

Kolender v. Lawson, 461 U.S. 352, 357 (1983). A statute may

operate in an unconstitutionally vague manner if it:

“(1) does not provide a person of ordinary intelligence a

reasonable opportunity to know what is prohibited, or

(2) fails to provide explicit standards to prevent arbitrary

and discriminatory enforcement by those enforcing the

statute.” United States v. Lim, 444 F.3d 910, 915 (7th Cir.

2006). Unless a vagueness challenge threatens a First

Amendment interest, a court must examine the challenge

on an “as-applied” basis—that is, whether the statute

is unconstitutionally vague in light of the facts of the

case at hand. Id.

In this case, the evidence clearly indicates Stephenson

sold crack cocaine. Stephenson admitted that he was a

crack cocaine dealer in Evanston. Both the physical presen-

4

(...continued)

crack cocaine, as that term is understood by those who use

and sell the drug. Id.; Booker, 70 F.3d at 494. The Supreme

Court thus far has not concluded that certiorari is warranted

to resolve these differences. See, e.g., United States v. Brisbane,

367 F.3d 910 (D.C. Cir. 2004) cert. denied, 543 U.S. 938 (2004);

Booker, 70 F.3d at 494, cert. denied, 517 U.S. 1111 (1996).

No. 06-2574 13

tation of the drug and the expert opinions of the confiden-

tial source and the DEA agent supported this identifica-

tion. If indeed some cocaine base samples might lie in a

gray area where they are unidentifiable as either crack or

non-crack cocaine base, these were not. There was

nothing confusing or ambivalent about the physical

description of the crack, the method of packaging, the

price, the language by which the experts, buyers and

sellers referred to the substance, the manner in which

Stephenson sold it, or the fact that Stephenson admitted

to being a crack dealer in Evanston. We have long held

that the statute is not ambiguous and that conclusion is

all the more clear when applied to the facts of this case.

Stephenson’s due process rights have not been impeded

by a vague definition of cocaine base.

Stephenson’s last effort to reduce his sentence takes aim

at the relevant conduct the district court considered in

increasing his sentence. Upon his arrest, Stephenson not

only admitted to selling the crack at issue in the indict-

ment, but also admitted that during the course of his

employ as a crack cocaine dealer in Evanston from 1996 to

2003, he had purchased approximately one kilogram of

crack. The district court, whose finding we review only

for clear error (see United States v. Delatorre, 406 F.3d 863,

866 (7th Cir. 2005)), credited Stephenson’s claim that he

had purchased one kilogram of crack cocaine. Stephenson

argues that the activity was too remote in time, and the

admission too imprecise in details and thus unreliable

to support an increase for relevant conduct.

A court may increase a defendant’s sentence for un-

charged and unconvicted relevant conduct provided that

14 No. 06-2574

the conduct constitutes part of the “same course of conduct

or common scheme or plan as the offense of conviction.”

U.S.S.G. § 1B1.3(a)(2). See also United States v. White, 519

F.3d 342, 347 (7th Cir. 2008). A court may not treat other

drug transactions, in and of themselves, as events common

to the plan or scheme. United States v. McGowan, 478 F.3d

800, 803 (7th Cir. 2008). Rather the assessment must

include specific findings about the “similarity, regularity

and temporal proximity of the offenses.” White, 519 F.3d

at 348. This court requires that the district court explicitly

state which findings demonstrate the necessary relation

to the convicted offense. United States v. Panaigua-Verdugo,

537 F.3d 722, 726 (7th Cir. 2008). The court can do so

expressly (the preferred method) or by reference to the

facts and reasoning of the presentence investigation

report. Id. In this case, the district court did both—refer-

encing specific provisions of the investigation reports

and sentencing transcripts, and concluding that the

multiple sales amounting to a total of approximately one

kilogram of crack cocaine were part of the same course of

conduct as they were connected by a common purpose, a

similar modus operandi, and involved common victims.

(R. at 53, p. 7). In this case Stephenson sold the same

drug (crack), in the same locale (Evanston, Illinois), using

the same one or few suppliers, continuously throughout

a common time frame (1996-2003).

Contrary to Stephenson’s argument, the relevant

conduct was not too remote in time. Stephenson admitted

to selling approximately one kilogram of crack between

1996 and 2003. The court convicted Stephenson for crack

sales which occurred smack in the middle of that time

No. 06-2574 15

frame—in 2001. Delatorre, 406 F.3d at 867 (offenses and his

offense of conviction were part of the same course of

conduct even despite the near three-year gap between

them). Furthermore, the evidence demonstrated that

Stephenson’s drug trafficking was more or less steady

over the period of time in question, showing a con-

tinuous pattern of drug trafficking. See White, 519 F.3d at

348; United States v. Farmer, 543 F.3d 363, 373 (7th Cir.

2008) (“Where the defendant’s convicted offense was

merely the latest drug sale in an unbroken series of deals

regularly made, that is sufficient to find the defendant’s

prior drug transactions were part of the same course

of conduct as the offense of conviction.”)

Moreover, the details of his transactions contained

sufficient specificity to establish evidence of a same

course of conduct. During his post-arrest interview,

Stephenson recited details of his crack transactions that

included names of suppliers, quantities purchased, approx-

imate transaction dates and amounts, and aggregate

quantities. (R. at 40, Ex. 11-26-B, p. 2-3). Stephenson’s

earlier conduct hit all the trigger points for rele-

vancy—significant similarity, regularity, and temporal

proximity as well as common victims, accomplices, pur-

pose, or modus operandi. See Farmer, 543 F.3d at 373.

Finally, the district court rejected Stephenson’s claim

that he exaggerated the amount of his sales to curry favor

and inflate his value as a potential government source.

The district court did not err by considering Stephenson’s

admission as evidence of his relevant conduct. See United

States v. Wilson, 502 F.3d 718, 722 (7th Cir. 2007) (basing

16 No. 06-2574

finding of relevant conduct of selling 1.6 kilograms of

cocaine on defendant’s admission); United States v.

Warneke, 310 F.3d 542, 550 (7th Cir. 2002) (noting that “an

admission of relevant conduct in a plea agreement is

even better than a jury’s finding beyond a reasonable

doubt”); United States v. Beith, 407 F.3d 881, 887 (7th Cir.

2005) (approving district court’s consideration of rele-

vant conduct to which the defendant admitted when

determining which offense guideline most appropriately

reflected the scope of the criminal activity). There was

no evidence to suggest that Stephenson was exaggerating

his drug dealing activities.

In sum, we conclude that the district court did not err

in determining that Stephenson was guilty of distributing

crack cocaine; the definition of crack cocaine is not uncon-

stitutionally vague, and the district court appropriately

considered relevant conduct in calculating Stephenson’s

sentence. The judgment of the district court is A FFIRMED.

2-17-09