United States v. Montreece Kindle

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 10-3725, 10-3726, 11-2262 & 11-2439

U NITED STATES OF A MERICA,

Plaintiff-Appellee,

v.

M ONTREECE K INDLE, N ATHAN W ARD ,

D WAYNE W HITE and L ESLIE M AYFIELD,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 09 CR 687—Harry D. Leinenweber, Judge.

A RGUED M AY 30, 2012—D ECIDED S EPTEMBER 26, 2012

Before E ASTERBROOK, Chief Judge, and B AUER and

P OSNER, Circuit Judges.

B AUER, Circuit Judge. This case represents the consoli-

dated appeal of four defendants charged with, among

other crimes, conspiring to steal cocaine from a fictitious

drug “stash house.” The defendants all pleaded not

guilty, and they were all convicted on the same four

counts: conspiracy to possess with intent to distribute five

2 Nos. 10-3725, 10-3726, 11-2262 & 11-2439

or more kilograms of cocaine in violation of 21 U.S.C. § 846

(“Count One”); attempted possession with intent to

distribute five or more kilograms of cocaine in violation

of 21 U.S.C. § 846 (“Count Two”); possession of four

firearms during and in relation to a drug trafficking

offense in violation of 18 U.S.C. § 924(c)(1)(A) (“Count

Three”); and possession of a firearm after previously

having been convicted of a felony in violation of 18 U.S.C.

§ 922(g)(1) (“Count Four”). The defendants appeal

various aspects of their convictions and sentences.

I. BACKGROUND

This case began with an undercover sting operation

carried out by the Bureau of Alcohol, Tobacco, Firearms

and Explosives (ATF); apparently, the ATF has a

standard playbook for such operations, and the facts

between cases are frequently nearly identical. 1 The ATF

had a confidential informant named Jeffrey Potts (not an

ATF agent himself) who shared a workplace with one

of the defendants, Leslie Mayfield. Potts’ role was to

funnel parties interested in armed robberies to an under-

cover ATF agent, for which the ATF would pay Potts a

fee. Someone—either Potts or Mayfield—brought up

the possibility of robbing a drug “stash house.” Potts

1

See, for example, United States v. Lewis, 641 F.3d 773, 777 (7th

Cir. 2011) (describing a similar set of facts as “a rather

shopworn scenario in this court”); United States v. Blitch, 622,

F.3d 658, 661 (7th Cir. 2010); United States v. Corson, 579 F.3d

804, 806-09 (7th Cir. 2009).

Nos. 10-3725, 10-3726, 11-2262 & 11-2439 3

referred Mayfield to undercover ATF Agent Dave Gomez.

A meeting was arranged for July 23, 2009, among

Mayfield, Potts, and Gomez.

At the July 23 meeting, Agent Gomez pretended to be

a disgruntled courier for a Mexican drug cartel; the

ATF’s hidden recording devices captured this and

future meetings of Gomez and the defendants. Gomez

laid out an initial plan for a stash-house robbery. He

explained that he ran a shipment of about 6 to 8

kilograms of cocaine to an unidentified location every

month. He claimed that the location—the stash

house—always contained about 20 to 30 kilograms of

cocaine in addition to the quantity he delivered. No

such stash house actually existed, of course; Gomez

was following the standard playbook for ATF sting opera-

tions of this kind. Gomez told Mayfield that there

were usually about three armed guards inside the stash

house when he made his delivery, and that he needed

an outside crew to assist him to rob the house.

Mayfield asked several logistical questions. He wanted to

know, for example, how a crew could break into the

house and where in the room the three guards were

usually situated. Mayfield ultimately expressed interest

in carrying out the robbery. He told Gomez that he

would assemble his people and agreed to meet later

with the full team present to hash out the plan.

Prior to the second meeting, there was a phone call

between Mayfield and Gomez. During their short con-

versation, Mayfield confirmed the meeting for the fol-

lowing day and indicated an immediate need to move

4 Nos. 10-3725, 10-3726, 11-2262 & 11-2439

some drugs; specifically; he said that he would be inter-

ested in dealing cocaine with Gomez prior to the planned

robbery.

The parties reconvened on August 9, 2009, this time

with a full robbery crew present. And again, they were

all being recorded. Mayfield, Montreece Kindle,

Nathan Ward, and an unidentified fourth individual2

all met with Gomez to discuss the stash-house robbery.

Gomez described the setup once again, including the

part about three armed guards in the stash house.

Mayfield and Kindle pressed Gomez on specifics, such

as how long he was usually present in the stash house

for his pickups and whether the person answering the

door was ever armed. Mayfield stressed the importance

of the element of surprise, and Kindle indicated that

they might have to kill the stash-house guards. The

parties eventually turned to post-robbery plans, and

discussed how they would divvy up the shares of co-

caine. Ward in particular noted that the shares should

be divided five ways, evenly. The parties discussed

some more logistics and eventually agreed to reconvene

on the day of the robbery.

Gomez contacted Mayfield to inform him that the stash-

house delivery would occur at a location in Naperville,

Illinois on August 10, 2009. On that day, Gomez met

Mayfield and his team, which now included Dwayne

2

This fourth individual, known only as “New York,” would

later disappear from the crew and is not otherwise implicated

in this appeal.

Nos. 10-3725, 10-3726, 11-2262 & 11-2439 5

White in addition to Kindle and Ward. Mayfield asked

where the team would go after pulling off the robbery,

and Gomez responded that he could show the team

where they would be storing the stolen cocaine. Mayfield

agreed, telling his crew to follow Gomez in a brown van

to the storage site. Mayfield rode in Gomez’s vehicle

and, during the short trip, they reviewed the robbery

plans. After everyone arrived at the supposed storage

site, they exited their vehicles; Gomez noticed for the

first time that White was new to the crew. Gomez

sought and received assurances that White knew what

was going down. White sought confirmation that there

would be weapons inside the stash house. Finally,

having surveyed the storage facility, the members of

Mayfield’s team indicated their readiness to pro-

ceed with the robbery; Gomez gave a signal, and federal

authorities descended on the party, arresting the defen-

dants.

After the arrest, federal agents searched the crew’s van.

They found several weapons (including a sawed-off

shotgun), ski masks, ammunition, bullet-proof vests,

latex gloves, and a duffel bag suitable for carrying a

large amount of drugs. An agent also recovered a ski

mask directly from White’s pocket. Kindle waived his

Miranda rights and gave a statement to the authorities,

implicating himself and the others in the conspiracy to

rob the fictitious stash house.

All defendants pleaded not guilty and proceeded to

a jury trial. Mayfield, White, and Ward were tried

together, charged with the same four crimes. Kindle was

6 Nos. 10-3725, 10-3726, 11-2262 & 11-2439

charged with the same crimes, but was tried separately

because of his post-arrest statement that implicated

the others. All defendants were found guilty of the fol-

lowing crimes: conspiracy to possess with intent to dis-

tribute five or more kilograms of cocaine in violation of

21 U.S.C. § 846 (“Count One”); attempted possession

with intent to distribute five or more kilograms of

cocaine in violation of 21 U.S.C. § 846 (“Count Two”);

possession of four firearms during and in relation to a

drug trafficking offense in violation of 18 U.S.C.

§ 924(c)(1)(A) (“Count Three”); and possession of a fire-

arm after previously having been convicted of a felony

in violation of 18 U.S.C. § 922(g)(1) (“Count Four”).

II. DISCUSSION

The defendants have mounted several challenges on

appeal. Mayfield, White, Ward, and Kindle all chal-

lenge the sufficiency of the evidence under Counts One

and Two; White also challenges the sufficiency of the

evidence under Count Three. Mayfield argues that the

district court erred when it denied him the right to

present an entrapment defense; he also challenges his

sentence of 322 months. Ward’s counsel filed an Anders

brief and seeks to withdraw her representation; Ward

responded. We deal with each of these issues in turn.

A. Challenges to the Sufficiency of the Evidence

All of the defendants challenge the prosecution’s evi-

dence on various counts, arguing that it was insufficient

Nos. 10-3725, 10-3726, 11-2262 & 11-2439 7

to prove their guilt beyond a reasonable doubt. They

face a “formidable hurdle” with this argument. See

United States v. Dennis, 115 F.3d 524, 534 (7th Cir. 1997).

When considering a challenge to the sufficiency of

the evidence, we construe the record “in the light most

favorable to the prosecution, making all reasonable in-

ferences in its favor, and affirm the conviction so long

as any rational trier of fact could have found the

defendant to have committed the essential elements of

the crime.” United States v. Mota, 685 F.3d 644, 649-650

(7th Cir. 2012) (quoting United States v. Vallar, 635 F.3d

271, 286 (7th Cir. 2011)). Overturning a guilty verdict for

lack of evidence is serious business; we are essentially

asked to take the case out of the jury’s hands, something

we will do “only if the record contains no evidence,

regardless of how it is weighed, from which the jury could

find guilt beyond a reasonable doubt.” Mota, 685 at

650 (emphasis added) (quoting United States v. Fassnacht,

332 F.3d 440, 447 (7th Cir.2003)).

1. Evidence for Count One

All defendants challenge the sufficiency of the evidence

for their guilty verdicts under Count One, conspiracy to

possess cocaine with intent to distribute. See 21 U.S.C.

§ 846. To establish the conspiracy, the government had

to prove: (1) the existence of an agreement between 2 or

more persons to possess with intent to distribute

cocaine; (2) that the defendant knew of the agreement; and

(3) that the defendant intended to join the agreement.

United States v. Spagnola, 632 F.3d 981, 986 (7th Cir. 2011).

8 Nos. 10-3725, 10-3726, 11-2262 & 11-2439

Put simply, the Government presented a mountain of

evidence against these defendants to prove that they

agreed with each other to steal cocaine. We needn’t

detail each piece of evidence produced at the trials;

suffice to say, the Government was able to use the de-

fendants’ own words against them because of the exten-

sive recordings of conversations with Agent Gomez.

Additionally, Kindle waived his Miranda rights at the

time of his arrest and made statements that were used

at trial. And of course, a wealth of physical evidence

was seized from the brown van that the defendants

planned to use for the robbery. Keeping in mind that

we view these factors in the light most favorable to

the Government, a rational jury could easily find that the

defendants agreed with each other to steal cocaine.

But the real gist of the defendants’ argument is that

even if there was a conspiracy between them to steal

cocaine, there was no evidence of an intent to distribute

it, a required element under Count One. We have en-

countered this argument before in contexts very similar

to this one, and we have rejected it. See, e.g., United States

v. Walker, 673 F.3d 649, 654-55 (7th Cir. 2012) (rejecting

a lack-of-evidence-to-distribute argument in another

case involving the planned robbery of a fictitious stash

house); United States v. Lewis, 641 F.3d 773, 782 (7th Cir.

2011) (same).

As we explained in Lewis, 641 F.3d at 782, there are

several permissible inferences a reasonable jury could

draw from the type of evidence presented here. First,

the plan was to rob a stash house containing a large

Nos. 10-3725, 10-3726, 11-2262 & 11-2439 9

amount of cocaine (probably somewhere between 25

and 35 kilograms). Law enforcement officials at trial

testified that 25 to 35 kilograms of cocaine is not a

personal-use amount, and the jury could reasonably infer

that given the sizeable quantity, Mayfield and his crew

intended to distribute it. Additionally, recordings of the

conversations between Gomez and the robbery crew

suggest that the stakes were high in this operation;

the crew members demonstrated a preoccupation

with how to deal with the armed guards in the fictional

stash house, and at one point Kindle even suggested

that they would kill the guards. Indeed, the weapons

found in the van showed that the crew meant business.

A jury could infer that, given the huge risk the

defendants planned on exposing themselves to, they

must have expected an equally huge reward. Such a

reward would require distribution.

In short, the jury had ample reason for finding that

the defendants intended to distribute whatever amount

of cocaine that they expected to recover.

2. Evidence for Count Two

The defendants next challenge the sufficiency of the

evidence for a conviction under Count Two, the crime of

attempting to possess cocaine with intent to distribute.

See 21 U.S.C. § 846. (Although the wording of Counts

One and Two are highly similar, “conspiracy” and “at-

tempt” are two separate criminal offenses.)

To prove attempt, the Government had to show not just

that the defendants acted with the intent to possess the

10 Nos. 10-3725, 10-3726, 11-2262 & 11-2439

cocaine, but also that the defendants took a “substantial

step” toward possessing it. See United States v. Dennis, 115

F.3d 524, 534-35 (7th Cir. 1997). A substantial step is

“something more than mere preparation, but less than

the last act necessary before the actual commission of

the substantive crime.” United States v. Barnes, 230 F.3d

311, 315 (7th Cir. 2000) (citing United States v. Rovetuso,

768 F.2d 809, 821 (7th Cir. 1985)). To qualify as sub-

stantial, the step “must be of such a nature that a rea-

sonable observer viewing it in context could conclude

beyond a reasonable doubt that it was undertaken in

accordance with a design to violate the statute.” Barnes,

230 F.3d at 315.

Here, Mayfield, Kindle, and Ward attended a meeting

prior to the planned robbery to discuss their plans

in detail with Gomez and each other. Mayfield and

Kindle asked logistical questions and Ward commented

on how he thought the drugs should be divided. We

have previously noted the importance of conversations

like these in establishing a substantial step for a showing

of attempt. See, e.g., United States v. Magana, 118 F.3d

1173, 1198-99 (7th Cir. 1997); United States v. Wilks, 46 F.3d

640, 645 (7th Cir. 1995). Those cases involved attempted

drug sales rather than an attempted stash-house rob-

bery, but the planning involved is similar to that

which occurred in this case.

The Government’s strongest evidence of a substantial

step came on the day of the planned robbery. All four of

the defendants, now including White, met Gomez in

their brown van and indicated their readiness to pro-

Nos. 10-3725, 10-3726, 11-2262 & 11-2439 11

ceed with the robbery. They still didn’t know the

exact location of the stash house, but that doesn’t mat-

ter.3 They arrived armed with an assortment of guns,

ski masks, and other implements for a robbery. They

even followed Gomez in their brown van to the site

where they planned to store the drugs after the robbery.

Further, although White was relatively new to the

group, he confirmed with Gomez that he knew the

plan, and authorities recovered a ski mask from his pocket.

The defendants rely heavily on United States v. Cea,

914 F.2d 881 (7th Cir. 1990), in their effort to downplay

their steps toward attempt. In Cea, we overturned a

finding of attempt because there was not ample evi-

dence of a substantial step to purchase drugs;

specifically, the authorities botched the investigation

by arresting Cea too soon (as soon as he left his house).

The Government then failed to produce any evidence

at Cea’s trial to show that the defendant left his house

intending to meet his drug dealer. There was nothing

to show that the defendant knew where to meet with

his dealer or whether he even had the money required

to purchase the drugs. In this case, the evidence

3

Mayfield appears to argue that because there was no

known stash-house location—and perhaps because the stash

house was fictitious to begin with—he cannot be found guilty.

Although the argument is not altogether clear, we assume

he means that he cannot be found guilty of attempting to rob

a place that doesn’t exist. This would be wrong; impossibility

is not a defense to the crime of attempt. See United States

v. Mannava, 565 F.3d 412, 416 (7th Cir. 2009).

12 Nos. 10-3725, 10-3726, 11-2262 & 11-2439

showed that the defendants all took several steps beyond

leaving their houses. They met with Gomez on the day

of the planned robbery after Gomez claimed to have

learned the location of the stash house. They spoke of

their readiness to proceed with the imminent robbery.

And of course, they carried with them the implements

needed to carry out a crime. We will not overturn the

jury’s finding of attempt; the steps taken toward the

attempt to possess here were myriad and, taken

together, quite substantial.

3. Evidence for Count Three

White is the only defendant who argues for a reversal

on Count Three, possession of firearms during and in

relation to a drug trafficking offense. We needn’t linger

on this. White’s argument for insufficient evidence on

Count Three is premised on there being insufficient

evidence for his conviction under Count One, which

constitutes the underlying drug trafficking offense.

Having explained in detail why there was ample

evidence for White’s conviction on Count One, we are

also satisfied that there was enough to convict him on

Count Three. His conviction under Count Three stands.

B. Mayfield’s Entrapment Defense

Mayfield argues that the district court erred when

it granted the Government’s motion in limine to pre-

clude an entrapment defense. We have held that a court

may bar a defendant from arguing entrapment at the

Nos. 10-3725, 10-3726, 11-2262 & 11-2439 13

pretrial stage if the defendant’s evidence of entrapment is

insufficient as a matter of law. See United States v. Johnson,

32 F.3d 304, 307 (7th Cir. 1994). We review the district

court’s decision in this matter de novo. United States v.

Hall, 608 F.3d 340, 343 (7th Cir. 2010).

To have an entrapment defense, Mayfield needed to

show both that the Government induced him to commit

a crime and that he was not otherwise predisposed to

commit that crime. See United States v. Millet, 510 F.3d

668, 675-76 (7th Cir. 2007). We emphasize that Mayfield

had the initial burden of proof on both of these is-

sues. Id. at 675. Because we find that he failed to

provide adequate evidence that he was not predisposed,

we need not address inducement. In determining

whether a defendant was predisposed to commit the

crime at issue, we consider the following factors: (1) the

defendant’s character or reputation; (2) whether the

government initially suggested the criminal activity;

(3) whether the defendant engaged in the criminal

activity for profit; (4) whether the defendant evidenced a

reluctance to commit the offense that was overcome by

government persuasion; and (5) the nature of the induce-

ment or persuasion by the government. Id. at 676 (citing

United States v. Blassingame, 197 F.3d 271, 281 (7th Cir.

1999)). No one factor is dispositive, but it is the fourth

factor that carries the most weight. Millet, 510 at 676.

The Government proffered a wealth of evidence that

Mayfield had a criminal reputation, including reference

to his several prior convictions for crimes such as

burglary, armed robbery, and armed vehicle hijacking.

14 Nos. 10-3725, 10-3726, 11-2262 & 11-2439

Mayfield tried to counter this with evidence that he had

been working hard, had received several certificates

of professional achievement, and had been trying to

get his life back on track, but his own words betray

his supposed honest intentions. In extensive recorded

conversations with Gomez, Mayfield described his past

stash-house robberies in detail, and never seemed shy

about embarking on a new criminal venture. He also

expressed a desire to do a drug deal with Gomez

before the robbery had even been fully planned. These

conversations certainly do not reveal any sort of

reluctance on the part of Mayfield; the first and fourth

factors above weigh heavily against a lack of predisposi-

tion.

Mayfield counters that it was not Gomez but instead

the confidential informant for the ATF, Potts, who pres-

sured him into a crime he was not predisposed to com-

mit. Potts worked with Mayfield and was the first

person, according to Mayfield, to suggest a stash-house

robbery. But how the informant “pressured” Mayfield

is not entirely clear; Mayfield claims the informant

showed him a gang tattoo, and that this somehow

amounted to duress. There is no allegation of a more

specific threat. It seems an odd notion that Mayfield

could be bullied into something that he did not

already want to do. Not only does he have a reputation

for committing serious criminal acts, he was able to

quickly assemble a team of friends (we refer to the co-

defendants) who were all prepared to walk into a

guarded drug house with him, guns blazing. That is not

typically the sort of person who wilts at the suggestion

of a gang affiliation.

Nos. 10-3725, 10-3726, 11-2262 & 11-2439 15

One thing that weighs in Mayfield’s favor is his claim

that Potts approached him first about the stash-house

job, and then repeatedly after that. But Government

solicitation alone does not entitle a defendant to an en-

trapment defense. See United States v. Perez-Leon, 757

F.2d 866, 872 (7th Cir. 1985). We cannot find that

Mayfield was not predisposed to commit the crimes when

approached by the ATF. There was thus no error in the

district court’s decision to bar Mayfield from arguing

entrapment.4

4

The dissent believes that Mayfield was entitled to an entrap-

ment defense. It argues that a jury could have found the

government inducement “extraordinary,” because stash-

house robberies are particularly lucrative compared to other

sorts of robberies. The dissent reasons that the inducement

would only be extraordinary to a non-veteran stash-house

robber, and that it was for the jury to decide if Mayfield had

robbed stash houses before. We cannot endorse this analysis.

It effectively collapses the inducement and predisposition

elements of entrapment and would allow otherwise predis-

posed criminals to claim entrapment simply because they were

entering a new, more lucrative field of crime. Whether a

government agent’s offer is extraordinary should be con-

sidered in light of the terms on which crimes of this sort are

typically committed. See United States v. Pillado, 656 F.3d 754,

765 (7th Cir. 2011). Nothing in the record suggests that this

planned stash-house robbery would be any more lucrative

than the typical stash-house robbery. And as we stressed

previously, the risk-adjusted rewards for this crime were not

so great; Mayfield planned to risk his life and to risk prosecu-

tion for murder if he lived.

16 Nos. 10-3725, 10-3726, 11-2262 & 11-2439

C. Mayfield’s Sentence

The district court sentenced Mayfield to 322 months in

prison. This was based on an offense level of 34 under

the Sentencing Guidelines, triggered because the judge

found that the offense involved between 15 and 50 kilo-

grams of cocaine. U.S.S.G. § 2D1.1(c)(3). The district court

then applied a two-level enhancement to Mayfield’s

sentence because it found that he obstructed justice by

committing perjury at trial. U.S.S.G. § 2D1.1(b)(14)(D).

Mayfield now challenges both the calculation of his

base offense level and the two-level enhancement for

obstruction of justice.

We review a district court’s factual findings about drug

quantities for clear error. United States v. Longstreet,

567 F.3d 911, 924 (7th Cir. 2009). We also review for

clear error a finding that a defendant committed perjury.

United States v. Spagnola, 632 F.3d 981, 988 (7th Cir. 2011).

To find clear error, we must be “left with a definite

and firm conviction that a mistake has been committed.”

United States v. Panaigua-Verdugo, 537 F.3d 722, 724 (7th

Cir. 2008). Finally, we review de novo the adequacy of

the district court’s explanation of his findings. United

States v. Sheikh, 367 F.3d 683, 686 (7th Cir. 2004).

1. The Base Offense Level Calculation

For sentencing purposes, Mayfield is responsible for

whatever amount of cocaine he knew (or should have

known) was the object of his conspiracy. See United States

v. McKenzie, 656 F.3d 688, 691 (7th Cir. 2011). If the

Nos. 10-3725, 10-3726, 11-2262 & 11-2439 17

amount was 15 or more kilograms, a base offense level

of 34 was appropriate. U.S.S.G. § 2D1.1(c)(3).

At trial, the primary thrust of Mayfield’s defense was

that he had actually teamed up with Potts to steal cocaine

from Gomez, and that he never really intended to rob

any stash house. Recall that Gomez claimed to transport

only about 6 to 8 kilograms of cocaine every month.

Because Gomez was his sole target, Mayfield argues that

he never thought to recover an amount larger than

8 or so kilograms of cocaine, and so he does not meet the

15-kilogram minimum requirement for a base offense

level of 34 under the Guidelines. This defense has

gaping holes; it seems nonsensical that an ATF informant

(Potts) would hatch a scheme to rob an undercover

ATF agent (Gomez) of a quantity of drugs that never

really existed. It also strains credulity to imagine how

Mayfield could have agreed with Potts to rob Gomez

without explaining the real plan to his co-defendants.

Sure enough, the jury rejected Mayfield’s version of

events. We know the jury rejected it because Mayfield

was convicted of conspiracy, which required a finding

of an agreement with his co-conspirators—and con-

spiracy is legally impossible by agreement with a gov-

ernment informant (like Potts) alone. See United States

v. Duff, 76 F.3d 122, 127 (7th Cir. 1996). The jury was

properly instructed on this rule of law: “A defendant

cannot enter into an agreement solely with, or join a

conspiracy solely with, confidential informant Jeffrey

Potts or undercover agent David Gomez.” Thus, it is

disingenuous for Mayfield to argue that the jury never

18 Nos. 10-3725, 10-3726, 11-2262 & 11-2439

rejected his defense about an agreement with Potts to

rob Gomez. They necessarily rejected it when they

found him guilty of conspiracy.

In robbing the fictitious stash house, then, how much

cocaine did Mayfield expect to gain? There is suf-

ficient evidence that he expected to recover more than

15 kilograms. In several conversations between Gomez

and Mayfield, Gomez referred multiple times to an

amount of at least 20 kilograms of cocaine stored in the

house. Mayfield never said anything to indicate he

thought there would be a lesser amount. So there was

sufficient evidence for the district court to find that

Mayfield met the 15-kilogram minimum for a base level

calculation of 34.

But Mayfield argues that, even if there was sufficient

evidence, the district court failed to state adequate

grounds for its finding. We have held that, at sentencing,

“a court must make an explicit finding as to the drug

quantity and offense level and how it arrived at the

sentence.” United States v. Fudge, 325 F.3d 910, 920 (7th

Cir. 2003). The district court did not run afoul of this rule.

First, the judge acknowledged having reviewed the

Presentence Investigation Report (PSR), which detailed

the amount of drugs implicated in the offense and pro-

vided Guidelines suggestions. The judge also heard

both parties present their arguments; Mayfield’s attorney

basically re-hashed the same implausible defense pre-

sented at trial about a supposed agreement with Potts

to rob Gomez of 6 to 9 kilograms. When Mayfield’s attor-

ney finished, the district judge stated, “Okay. All right.

Nos. 10-3725, 10-3726, 11-2262 & 11-2439 19

I agree that the 6 to 9 was what Mr. Mayfield testified

his intention [was], but the jury didn’t buy it, and frankly

I really didn’t buy it either, . . . so I’m going to find that

it’s 34.” The only evidence Mayfield had of the 6 to

9 kilogram amount was his own testimony at trial; no

other evidence supported his contention that he had

made a secret agreement with Potts to steal that amount.

So we are satisfied that by explicitly rejecting this argu-

ment, and by acknowledging the PSR suggestions, the

judge adequately explained how it arrived at the base

offense level.

In sum, we find no clear error in the district court’s

sentencing Mayfield at a base offense level of 34.

2. The Two-Level Enhancement for Obstruction

of Justice

The district judge ordered a two-level enhancement of

Mayfield’s sentence for obstruction of justice because

he found that Mayfield perjured himself at trial. U.S.S.G.

§ 2D1.1(b)(14)(D). Specifically, the judge found that

Mayfield lied about his plan to rob Gomez, stating,

[Mayfield] testified, which would have been a

defense to the indictment. Now, he testified that he

committed a different crime or he intended to

commit a different crime, but it was a defense, and

the jury didn’t buy it, so it’s clear that—in my

mind, anyway—that he did not testify truthfully,

so I’m going to enhance two for that.

For the enhancement to stand, the defendant must have

wilfully provided false testimony about a material

20 Nos. 10-3725, 10-3726, 11-2262 & 11-2439

matter. United States v. Johnson, 612 F.3d 889, 893 (7th Cir.

2010). Mayfield argues that his testimony was not false

and that it did not even concern a matter material to

the case.

First, materiality. There is no doubt that the subject

on which Mayfield testified—who he planned to steal

from—was material. It went to the heart of the case.

We have already explained that if jurors had accepted

his testimony, they could not have found him guilty of

conspiracy, since it is legally impossible to conspire with

a government informant alone. So any false testimony

on the subject was certainly material.

Likewise, we needn’t linger on whether the testimony

was false. For reasons we have already discussed at

length, Mayfield’s defense about a secret plan with Potts

to rob Gomez was full of holes. His story directly

conflicted with the testimony of others and with the

recordings that suggested a conspiracy to rob the

fictitious stash house.

But we are not quite finished, because Mayfield also

claims the judge failed to adequately explain a finding

of perjury. It is true that to apply an enhancement for

obstruction of justice, “the district court must make

independent findings necessary to establish all of three

factual predicates for a finding of perjury.” United States

v. Savage, 505 F.3d 754, 763 (7th Cir. 2007). But this re-

quirement is not as stringent as Mayfield suggests. We

have only reversed obstruction enhancements for inade-

quate findings when the sentencing judge presented a

bare-bones explanation, such as, “I thought your testimony

Nos. 10-3725, 10-3726, 11-2262 & 11-2439 21

was riddled with inaccuracies and lies.” United States

v. McGiffen, 267 F.3d 581, 591 (7th Cir. 2001). Such a

thin explanation leaves a defendant with a very poor

idea of how exactly he perjured himself.

So although some specificity is required at sentencing,

“separate findings are not strictly necessary so long as

the court determined that the defendant lied to the judge

and jury about matters crucial to the question of the

defendant’s guilt.” United States v. White, 240 F.3d 656,

662 (7th Cir. 2001). And that is exactly what the court

did in this case. The judge clearly stated that the

perjury involved Mayfield’s defense, and as we have

already noted, that defense went to the heart of

Mayfield’s case; it dealt directly with the question of his

guilt. We thus find no error in the two-level enhance-

ment for obstruction of justice.

D. Ward and the Anders Brief

Ward’s attorney filed an Anders brief in his appeal,

requesting to withdraw because the appeal presents no

non-frivolous issue. See Anders v. California, 386 U.S. 738

(1967). One of the potential appealable issues his at-

torney identified—the sufficiency of the evidence for

convictions on Counts One and Two—we have already

considered and rejected. Ward made further arguments

in his response to the Anders brief that are wholly

without merit. We agree with counsel that there are no

remaining non-frivolous issues for appeal.

22 Nos. 10-3725, 10-3726, 11-2262 & 11-2439

III. CONCLUSION

For the aforementioned reasons, we A FFIRM the convic-

tions of Mayfield, White, and Kindle, A FFIRM Mayfield’s

sentence, G RANT Ward’s counsel’s motion to withdraw

and D ISMISS Ward’s appeal.

P OSNER, Circuit Judge, concurring and dissenting.

I join the court’s opinion affirming the convictions and

sentences of Kindle and White. But Mayfield is entitled

to a new trial. A reasonable jury could find that he had

been entrapped, and so the district judge should have

instructed the jury on entrapment rather than barring

the defendant from presenting an entrapment defense.

The defense is unusual. Ordinarily the burden of persua-

sion with respect to an affirmative defense is on the

defendant. But if the defendant persuades the district

court that a reasonable jury could find that he had been

entrapped, the judge must submit the defense to the jury

with an instruction that, to convict, the jury must find

beyond a reasonable doubt that the defendant was not

entrapped. Jacobson v. United States, 503 U.S. 540, 549

(1992); United States v. Pillado, 656 F.3d 754, 763 (7th Cir.

2011). There was enough evidence of entrapment in this

case to require the judge to give such an instruction.

Nos. 10-3725, 10-3726, 11-2262 & 11-2439 23

We should distinguish among three cases in which the

police create an opportunity for someone to commit a

crime and he does so. I will illustrate with bicycle theft. In

case number one, a man is a known bicycle thief or

strongly suspected of being one. The police place an

unlocked bicycle in an area known to be frequented

by him. Sure enough he sees the bike, sees that it’s un-

locked, rides off on it—and is promptly arrested by

police officers who had been watching the bicycle, unob-

served, from afar. In such a case there is no entrapment.

The police arranged for the suspect to commit his usual

crime, only in circumstances in which it would be easy to

apprehend and convict him. “It would be a case in which

the government had merely furnished the opportunity

to commit the crime to someone already predisposed to

commit it . . . . The government’s inducement affects the

timing of the offense; it does not create the offense by

exploiting the susceptibilities of a weak-minded person.”

United States v. Hollingsworth, 27 F.3d 1196, 1203 (7th Cir.

1994) (en banc). “[T]he inducement which brought about

the actual offence was no more than one instance of the

kind of conduct in which the accused was prepared to

engage; and the prosecution has not seduced an

innocent person, but has only provided the means for the

accused to realize his preexisting purpose.” United States

v. Sherman, 200 F.2d 880, 882 (2d Cir. 1952) (L. Hand, J.).

In case number two, a man is known to the police to

have been a bicycle thief, but that was years ago and he’s

gone straight and become respectable. But they want an

easy conviction so they arrange an extraordinary induce-

ment. Pretending to be bicycle thieves they tell him

24 Nos. 10-3725, 10-3726, 11-2262 & 11-2439

they’ll pay him $1,000 to help them steal a bike that they

describe as unusually valuable. He agrees. He had never

made a profit of more than $50 per bike when he was a

bicycle thief. And he needs money because, given his

criminal record, he has been unable to obtain a job that

pays a decent wage. The police stage the theft and then

arrest him. That is entrapment. Jacobson v. United States,

supra, 503 U.S. at 553-54; United States v. Hollingsworth,

supra, 27 F.3d at 1199-1200. He would not, as far as

anyone knows, have ever committed another bicycle

theft had the police not confronted him with an oppor-

tunity far more lucrative than any he had encountered

in his now abandoned criminal career. The police have

thus caused an increase in the number of bicycle thefts,

whereas in the first case they reduced the number of

bicycle thefts by terminating a bicycle thief’s career,

though it would be more accurate to say that the sting

in the first case may well have reduced the number of

bicycle thefts; the reason for the qualification is that

once the thief is taken out of circulation some formerly

law-abiding person may decide to fill the resulting gap

in the ranks of bicycle thieves.

In case number three, the police know the man has

stopped stealing bikes only out of fear of being caught,

and hence that he remains “predisposed” to steal bikes

if circumstances improve. So they arrange the same type

of sting as in case number two, rightly confident that even

if he’d given up stealing bikes he can be enticed by a

promise of $1,000 to steal one more. And he does. There

can be no confidence that had there been no such extra-

ordinary inducement he nevertheless would have com-

Nos. 10-3725, 10-3726, 11-2262 & 11-2439 25

mitted the theft. Often cases say that extraordinary in-

ducements create entrapment even if the defendant

was predisposed to commit the crime. But really what

extraordinary inducements do is show that the

defendant’s commission of the crime for which he’s

being prosecuted is not reliable evidence that he was

predisposed to commit it. Thus, “inducement is sig-

nificant chiefly as evidence bearing on predisposition:

the greater the inducement, the weaker the inference

that in yielding to it the defendant demonstrated that

he was predisposed to commit the crime in question.”

United States v. Hollingsworth, supra, 27 F.3d at 1200. In

contrast, an inducement is “ordinary” when it is “some-

thing close to what unfolds when a sting operation

mirrors the customary execution of the crime charged.”

United States v. Pillado, supra, 656 F.3d at 765; see also

United States v. Sherman, supra, 200 F.2d at 882.

A reasonable jury could have fit Mayfield’s case to our

hypothetical second or third cases had it been permitted

to consider an entrapment defense. So far as appears,

he had never robbed a stash house. It’s true that after

agreeing to participate in the stash-house robbery he

bragged to the government’s undercover agent that he

had robbed stash houses. But he may just have been

trying to reassure the agent, who was to lead the

robbers into the stash house (the agent pretended to be

a drug courier for the house), that he (Mayfield) was

competent to participate in such a dangerous undertak-

ing. He had never even been convicted of a drug offense,

and there is no evidence, other than his boasting, that he

was dealing drugs when approached by the undercover

agent. The jury could also have found that Mayfield’s

26 Nos. 10-3725, 10-3726, 11-2262 & 11-2439

last major criminal act (an armed robbery not involving

drugs) had occurred in the early 1990s; that when

released from prison in 2005, four years before he agreed

to rob the imaginary stash house, he had tried to go

straight—moving away from the city in which he’d

lived and had had criminal associates and getting a legal

job. He had earned his GED, an associate’s degree, and

three vocational certificates in prison, and upon release had

devoted personal time to volunteer activities. There is

no evidence that he had committed any more robberies.

He was 41 at the time of the sting, an age at which

many criminals have aged out of violent crimes.

These were all facts for the jury to weigh (but the

jury was not allowed to do so). The jury could have

found that the defendant had not been predisposed to

rob a stash house. It could have found this even if it

thought him predisposed to commit armed robberies,

for he was offered an extraordinary inducement to rob

the imaginary stash house. Most robberies, even bank

robberies, net little money for the robber. But a stash

house is a potential goldmine. The informant told

Mayfield that there were 25 to 35 kilograms of cocaine

in the stash house. The cocaine was to be divided evenly

among him, his three associates, and the instigator. This

would net him 5 to 7 kilograms of cocaine, with a street

value of $135,000 to $189,000. The potential gain,

coupled with the informant’s eagerness to betray

his supposed employers by revealing the location of

the stash house, created an inducement to commit a

crime that, so far as appears, was unlike any that

Mayfield had ever committed, or that he would ever

have committed had it not been for the sting.

Nos. 10-3725, 10-3726, 11-2262 & 11-2439 27

The inducement would not have been thought extra-

ordinary by a stash house robber. If that is what

Mayfield was, he would have been predisposed to accept

the informant’s offer. But a reasonable jury could have

found that he was not a stash house robber, or even a

drug dealer of any sort, was not predisposed to attempt

a stash house robbery, and accepted the invitation

because of financial desperation.

Not all fictitious stash house stings justify an entrapment

instruction, even though such stings are a disreputable

tactic. Law enforcement uses them to increase the

amount of drugs that can be attributed to the persons

stung, so as to jack up their sentences. Eda Katharine

Tinto, “Undercover Policing, Overstated Culpability” 51-52

(NYU School of Law, Public Law Research Paper No. 12-04,

August 2012; forthcoming in Cardozo Law Review, vol. 34,

2013), http://papers.ssrn.com/sol3/papers.cfm?abstract_

id=2016362 (visited Sept. 4, 2012). And such stings

create an increased risk of entrapment because of

“the potential for the extensive use of inducements and

unrealistic temptations to encourage the suspects’ criminal

conduct.” Id. at 52; see also United States v. Briggs, 623

F.3d 724, 729-30 (9th Cir. 2010). “[T]he government can

‘minimize the obstacles a defendant must overcome to

obtain the drugs.’ For example, the police can convince

a suspect that the stash house robbery would be a shock-

ingly simple and easy crime to commit and can provide

items, such as a car, needed to complete the crime.” Tinto,

supra, at 52-53. Nevertheless I accept the rejection of an

entrapment defense in the superficially similar case of

United States v. Hall, 608 F.3d 340, 343-44 (7th Cir.

28 Nos. 10-3725, 10-3726, 11-2262 & 11-2439

2010). The court thought the defendant predisposed to

rob a stash house, and the expected profit to him

seemed modest, which was evidence of predisposition.

The evidence of predisposition in this case is altogether

thinner.

The government’s major argument is that Mayfield’s

wholehearted commitment to the scheme once he

decided to join proves predisposition—the government’s

brief barely mentions events before he agreed to par-

ticipate in the robbery. But it is hardly surprising that

having yielded to an extraordinary inducement he

would do everything possible to earn the promised

reward. If the defendant “was indeed entrapped, it is

irrelevant that the entrapment was so effective as to

make him not only a willing but an eager participant.”

United States v. Evans, 924 F.2d 714, 716 (7th Cir. 1991); cf.

Sherman v. United States, 356 U.S. 369, 373-74 (1958) (the

same defendant as in Judge Hand’s case, which I cited

earlier, but a subsequent appeal). Moreover, robbing a

stash house is a dangerous business; the undercover

agent told Mayfield that the robbers would encounter

three armed men inside, who would kill to thwart a

robbery. It was natural that Mayfield should seek to

reduce the danger to himself by recruiting associates.

It’s not as if he’d agreed to the scheme when the felon

who was working for the police as an informant on a

commission basis first proposed it to him. The

informant, a coworker, knew Mayfield had a crim-

inal past, and may have thought him likely to be per-

suadable to commit a crime because he expressed con-

Nos. 10-3725, 10-3726, 11-2262 & 11-2439 29

cern about his low wage. According to Mayfield, the

informant’s first suggestion was that Mayfield join him

in selling cocaine. He refused. Next the informant told

him that his (the informant’s) drug supplier (actually

it was a government undercover agent for whom the

informant worked) wanted to rob a stash house and that

if Mayfield joined in the caper he would earn tens of

thousands of dollars. Again Mayfield refused. The infor-

mant kept badgering him, without success. Then May-

field’s car was damaged in an accident, and he didn’t

have enough money to repair it. The informant lent

him $180—and kept on badgering him to join in robbing

the stash house. The informant pointed to the Gangster

Disciples tattoo on Mayfield’s arm and said that he

(the informant) was still connected with the gang; a

reasonable jury could have accepted Mayfield’s claim

that he thought the informant was warning him that

he’d better repay the $180—or else. He couldn’t repay

it without the proceeds of the stash-house robbery. So

finally he caved, and agreed to join the scheme. The

majority opinion omits these critical facts.

Mayfield’s prolonged initial reluctance, which appears

to have lasted for weeks, suggests that he wasn’t eagerly

awaiting an opportunity to resume his abandoned life

of crime. It was only when his need for money became

acute and he feared that a failure to pay his debt to the

informant would place his life in danger that the lure of

participating in a robbery that would net him a large

amount of money became irresistible. Or so at least the

jury might have found had it been allowed to consider

his entrapment defense.

30 Nos. 10-3725, 10-3726, 11-2262 & 11-2439

Criminals do sometimes change and get their lives

back on track and we don’t want the government

pushing them back into a life of crime. Sherman v. United

States, supra, 356 U.S. at 375-76. This may be a case like

Sherman in which “the Government plays on the weak-

nesses of an innocent party and beguiles him into com-

mitting crimes which he otherwise would not have at-

tempted.” Id. at 376 (footnote omitted). Sherman like

Mayfield had a criminal record but was trying to go

straight.

I do not say that Mayfield was entrapped. But there

is considerable evidence that he may have been, and,

considering the stakes (he was sentenced to 322 months

in prison, close to a life sentence given his age), he

was entitled to present an entrapment defense to the

jury. The government would have had a heavy burden

of disproving the defense.

In closing I want to say something about the sentence

and about the criticized practice of fictitious stash house

stings; these are related. I cannot imagine the sense of

imprisoning Mayfield for 27 years (minus modest good-

time credit if he behaves himself). I should think a

sentence of 5 years more than adequate. Can there be

any serious concern that upon emerging he would

embark on a career of robbing stash houses? That if

approached by anyone inviting him to launch such a

career he would listen to the person? Is there anything

in the record to make such a possibility real? Before

succumbing to the blandishments of the informant, May-

field was working at an honest job. He was supporting

Nos. 10-3725, 10-3726, 11-2262 & 11-2439 31

himself. He was not a public charge. Now, as a result of

the sting, we the taxpayers will be supporting him at

considerable expense for the next quarter century.

Does that make any sense?

And now consider the role of such stings in the “war on

drugs.” Are they likely to reduce the sale and use of

illegal drugs? No; they are likely to have the opposite

effect. Stash house robbers do not increase the amount

of drugs in circulation, since they steal their drugs

instead of making or importing them. The effect of a

fictitious stash house sting, when the person stung is,

unlike Mayfield, a real stash house robber, is therefore

to make stash houses more secure by reducing the likeli-

hood of their being robbed. A sting both eliminates

one potential stash house robber (unless the defendant

was entrapped) and deters other criminals from joining

stash house robberies, since they may turn out to be

stings. The greater security that fictitious stash house

stings confer on real stash houses—security obtained at

no cost to the operators of stash houses—reduces their

cost of self-protection, which is a principal cost of the

illegal-drug business. The lower a business’s costs, the

lower the prices charged consumers, and so the greater

the demand for illegal drugs and the more sales and

consumption of them. The operators of stash houses

would pay law enforcement to sting potential stash house

robbers.

9-26-12