UNITED STATES of America, Plaintiff-Appellee, v. Adebisi T. ADIGUN, Defendant-Appellant.
No. 11-1888.
United States Court of Appeals, Seventh Circuit.
Decided Dec. 28, 2012.
703 F.3d 1014
Argued Jan. 6, 2012.
The defendants argue that because the antitrust laws specify treble damages for violations, prospective plaintiffs should not be allowed to sit on their hands after sustaining antitrust injury, in order to run up their damages. But they aren‘t allowed to sit on their hands; the discovery rule requires diligence. Merck & Co. v. Reynolds, 559 U.S. 633, 130 S.Ct. 1784, 1793-94, 176 L.Ed.2d 582 (2010); Cathedral of Joy Baptist Church v. Village of Hazel Crest, 22 F.3d 713, 717 (7th Cir. 1994); SEC v. Gabelli, 653 F.3d 49, 59 (2d Cir. 2011). And punitive damages, whether in the form of trebling compensatory damages or in other forms, are available for violations of a number of different federal statutes, to all of which, as far as we know, the discovery rule applies. We can‘t think of any reason to treat antitrust statutes differently.
Nevertheless, for the reasons discussed earlier, the judgment of the district court is
AFFIRMED.
Jeffrey Michael Brandt (argued), Attorney, Robinson & Brandt, Covington, KY, for Defendant-Appellant.
Before MANION and WILLIAMS, Circuit Judges, and CASTILLO, District Judge.*
WILLIAMS, Circuit Judge.
Adebisi T. Adigun was charged with three drug offenses after officers seized crack and cocaine powder from him on two separate occasions. On the day of his scheduled trial, Adigun pled guilty in open court and was later sentenced to 151 months’ imprisonment. On appeal, Adigun argues that the district court erred by failing to suppress contraband seized from his car and by incorrectly calculating a ten-year mandatory minimum sentence. We find that Adigun waived any objection to the suppression ruling by entering an unconditional guilty plea before the district court. And though the minimum sentence
I. BACKGROUND
Two arrests, separated by less than a month, led to Adigun‘s indictment in the current case. On March 16, 2010, Adigun was seated in the driver‘s seat of a van that was parked, with its engine running, in a church parking lot. A Jeep Grand Cherokee, driven by Amy Oakley, pulled into the parking lot next to the van. Officer Michael Haynes said he saw the Jeep run a stop sign and proceeded to investigate. Haynes first questioned Oakley and then walked over to the van. He asked Adigun whether an open can on the car‘s console contained beer. When Adigun said yes, Haynes told him to empty the contents onto the ground. While he was reaching for the beer can, Adigun dropped a plastic bag in his other hand outside the passenger window. When Haynes asked Adigun what he had thrown on the ground, he responded, “Well, that‘s my girlfriend‘s. She likes to smoke crack.” Haynes placed Adigun under arrest.
The next month, on April 7, 2010, Adigun was stopped for driving a vehicle with expired license plаtes. He had paid a friend to use the car and was driving with his girlfriend, Jessica Marczewski, to Chicago from his home in Herrin, Illinois. Officer Todd Zeigler approached the car to advise the occupants of the expired plate. Zeigler said he saw beer bottles missing from a six-pack and suspected Adigun and Marczewski might be drunk. He asked Adigun to accompany him to his patrol car for a driver‘s license check. Officer Zeigler claimed that in the patrol car, Adigun insisted that he was sober and gave him permission to search for аny open alcohol containers in the car. Adigun disputes that he ever gave consent for any search. A microphone system routinely used to record traffic stops was not activated or failed to function properly so there was no recording of the alleged consent. When Zeigler searched the car, he saw cocaine powder residue in a plastic bag. A further search revealed crack cocaine lodged beneath a booster seat and Adigun was arrested.
On August 3, 2010, Adigun was charged in а three-count indictment with conspiracy to distribute and possession with intent to distribute crack and powder cocaine, aided and abetted by Marczewski. Marczewski entered into a cooperating plea agreement with the government. Adigun moved to suppress evidence seized in the March 16 and April 7 arrests. As to the March 16 seizure, the district court denied the motion. With respect to the April 7 seizure, the district court initially granted the motion after hearing testimony from Officer Zeigler and Adigun. The court reasoned that without evidence beyond Zeigler‘s contested account, the government could not meet its burden of proof that Adigun consented to the search over the defendant‘s testimony that he had not.
A week before the October 19, 2010 trial was set to begin, Adigun filed a supplemental motion to suppress Marczewski‘s testimony as fruit of the April 7 seizure. In responding to the supplemental motion, the government asked the court to reconsider its prior suppression ruling under a new theory: that Adigun had no standing to challenge the search because hе was driving a borrowed car beyond the scope of permission and had not established a reasonable expectation of privacy. On October 15, the district court agreed and vacated its suppression ruling on the April 7 seizure, permitting all of the evidence to come in against Adigun. The district judge also found that Adigun lacked credi
The morning of trial, Adigun asked for a continuance and a new lawyer. He said that after the court reversed its ruling on the Aрril 7 seizure, disagreements had arisen with his counsel about how to proceed. Adigun believed his counsel was not prepared for trial given the recent setback. He said: “I just don‘t think that my counsel is ready at this time, and ... his perspective on appeal to the output of the trial, I don‘t think, is in my best interest.”
Adigun‘s attorney advised the court that he was prepared to try the case whether or not evidence from the April 7 seizure was suppressed. But he noted that he had already recommended that Adigun plead guilty both before and after the district court vacated the suppression ruling. When the April 7 seizure had been suppressed, the government had been willing to recommend a sentence of 24 to 30 months. Although he left the final decision up to his client and would vigorously try the case, Adigun‘s counsel said he had strongly recommended accepting the initial offer.
The judge denied the continuance and the request for new counsel, advising Adigun that his attorney had a reputation for excellent work. He told the defendant, “the jury is here, and I‘m going to give you plenty of time, a little more time, but I‘m not going to inconvenience those jurors.... So make up your mind one way or the other. The court has no interest in how you decide it, but you‘re going to have to make a decision. I‘ve got my stopwatch on.” After speaking with his sister during a 15-minute recess, Adigun agreed to plead guilty.
The district court described the charges in the indictment, verified Adigun‘s competence and education level, advised Adigun of his right to proceed to trial and the rights he would be waiving by pleading guilty. The judge stated, “I‘m also told by my clerk that this is an open plea.” Adigun‘s сounsel replied, “It is an open plea. The government has agreed to a few concessions.” One such concession was that “the
At sentencing, the district court sustained several of Adigun‘s objections to the PSR and adopted his calculation of drug quantity over that offerеd by the probation officer. An 18-to-1 crack-powder ratio under the
II. ANALYSIS
A. Adigun‘s Unconditional Guilty Plea
Adigun asks this court to review the suppression rulings made by the district court before his guilty plea. But there is an immediate and obvious barrier to his appeal. An unconditional guilty plea precludes challenge to the denial of a mo
The
In United States v. Yasak, we permitted a conditional plea without a written agreement on the basis of representations in the plea transcript. 884 F.2d 996, 1000 (7th Cir. 1989). But here we must reach the opposite conclusion—that Adigun‘s plea was unconditional. Defense counsel stated that Adigun was entering an “open plea” and there is no indication in the record of any issues preserved for appeal. Even if the full colloquy were ambiguous, we could not infer a conditional plea from the record. “When there is no special written reservation of the right to appeal, the parties’ statements regarding the plea are ambiguous, and the government declines to assent to an appeal, there is not a valid conditional plea under
Adigun further argues that, however the plea is characterized, we can infer from the record that he only pled guilty because he believed he was preserving a right to appeal the suppression rulings. Adigun cites United States v. Carrasco, 786 F.2d 1452, 1455 (9th Cir. 1986), overruled on separate grounds in United States v. Jacobo Castillo, 496 F.3d 947 (9th Cir. 2007) (en banc), for the proposition that the purported ambiguity regarding appellate review should permit him to “plead anew.” We cannot agree. In Carrasco, it was uncontested that the government had initially offered the defendant a conditional plea agreement which it later withdrew after choosing not to dismiss a separate count in the indictment. The defendant filed notice with the court that she would still enter a conditional guilty plea to the first count. The Ninth Circuit concluded that the plea was, in fact, unconditional because there was no clear consent from the government or district court to the modified, partial agreement. Nevertheless, the Carrasco court chose to vacate the plea entirely because it was impossible to determine on that record
The facts in this case are plainly distinct. There is no evidence whatsoever that the government ever offered Adigun a conditional plea agreement. To the contrary, the record suggests that Adigun was consciously waiving his rights, quite unlike Carrasco. Adigun appears to have disagreed with his counsel over the importance of preserving a right tо appeal the suppression rulings. He told the district court that his counsel‘s “perspective on appeal to the output of the trial, I don‘t think, is in my best interest.” But, he later pled guilty despite this disagreement, after both the district court and his counsel advised him he could freely proceed to trial.1
We have previously held that the trial court is not obligated to inform defendants of the consequences of an unconditional plea on a potential appeal. United States v. Fisher, 772 F.2d 371, 375 (7th Cir. 1985). Nevertheless, many lay defendants do not recognize the effect a plea can have on appellate review of alleged constitutional errors. For this reason, many district courts explicitly inform defendants that they are waiving the right to appeal pretrial rulings. Though we conclude that Adigun voluntarily entered an unconditional plea, it would have been preferable for the district court to have expressly advised him of the full extent of the waiver. That would have eliminated further controversy on the matter.
B. Right to Challenge Adverse Suppression Rulings Was Waived
Bеcause Adigun‘s plea was unconditional, the government asserts that this court has no subject-matter jurisdiction to review the district court‘s suppression rulings. This was our conclusion in United States v. Combs, 657 F.3d 565, 571 (7th Cir. 2011) (per curiam), cert. denied, --- U.S. ---, 132 S.Ct. 2373, 182 L.Ed.2d 1025 (2012). Adigun cites contrary authority from United States v. Robinson, where we stated that “[e]ven when a defendant pleads guilty unconditionally or fails to object at sentencing, the court may review non-jurisdictional errors for plain error.” 20 F.3d 270, 273 (7th Cir. 1994). Adigun asks us to reject Combs and apply plain error review to the district court‘s suppression rulings pursuant to Robinson.
Robinson is something of an outlier within this circuit. Beyond Combs, other cases have rejected appellate jurisdiction
Though waiver and forfeiture are related, the terms have sometimes been used interchangeably, which can lead to confusion. The difference is that “forfeiture is the failure to make the timely assertion of a right, [whereas] waiver is the ‘intentional relinquishment or abandonment of a known right.‘” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal quotation marks and citation omitted). So forfeiture is characterized by a negligent or accidental omission while waiver involves a party‘s intentional (and often strategic) choice not to invoke a right. Despite the differences, the Supreme Court has acknowledged that the two terms have been conflated in its own case law and by other courts. See id.; see also Freytag v. C.I.R., 501 U.S. 868, 894 n. 2, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (Scalia, J., concurring) (observing that waiver and forfeiture “are really not the same, although our cases have so often used them interchangeably that it may be too late to introduce precision“); see also United States v. Richardson, 238 F.3d 837, 841 (7th Cir. 2001) (describing dual use of the term “waiver“).
Though the terms can be confused, the procedural effects of forfeiture and waiver are very different. In сases of forfeiture,
We note that Robinson cited
The critical difference in Robinson‘s analysis is that the court exercised jurisdiction under those circumstances, whereas Combs declined to do so. Combs concluded that even when the government fails to assert the waiver effect of a defendant‘s unconditional plea, the appellate court has an independent obligation to reject the appeal because it no longer has subject-matter jurisdiction. 657 F.3d at 571. No party can waive or forfeit a lack of subject-matter jurisdiction, “which we must enforce even if everyone else has ignored it.” United States v. Smith, 438 F.3d 796, 799 (7th Cir. 2006). Combs held that an unconditional guilty plea resolves the issue of factual culpability, relying on Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) (“When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may nоt thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.“). After an unconditional plea, Combs reasoned, the court has no jurisdiction over pre-plea claims because there is no longer a case or controversy under Article III of the Constitution.
As noted above, other circuits have disagreed with us on this question. They treat an unconditional plea as a procedural waiver, which can in turn be waived or forfeited by the gоvernment, and interpret Tollett as addressing the preclusive effect of a guilty plea rather than subject-matter jurisdiction. See De Vaughn, 694 F.3d at 1155-58 (declining to follow Combs); Jacobo Castillo, 496 F.3d at 955-56. But even if we felt it necessary to revisit our precedent as Adigun urges, we do not believe this case presents a proper occasion to do so. Whether the bar is jurisdictional or procedural, the government has invoked it by asserting the preclusive effect of Adigun‘s unconditional plea. The government did not waive or forfeit the issue as it did in Robinson, Jacobo Castillo, and De Vaughn. No case in any circuit permits review when a defendаnt‘s waiver has been asserted by the government. So there is little need to resolve any tension in precedent here. We therefore conclude that we cannot review Adigun‘s Fourth Amendment claims.
C. The Error in Adigun‘s Mandatory Minimum Sentence Was Harmless
Adigun objects to the district court setting a ten-year mandatory minimum sentence based on the quantity of crack cocaine he possessed and distributed. The district court arrived at the minimum sentence by applying then-controlling precedent from United States v. Fisher, 635 F.3d 336, 340 (7th Cir. 2011), a decision that has since been reversed, Dorsey v. United States, --- U.S. ---, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012). Although Adigun committed his offenses (in part) before passage of the
The government asserts, however, that any error as to the minimum sentence is harmless given the reasons the district court gave for the sentence. We agree. An error is harmless if it “did not affect the district court‘s selection of the sentence imposed.” Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992); United States v. Anderson, 517 F.3d 953, 965 (7th Cir. 2008). Here, the trial court weighed the seriousness of Adigun‘s crime and rejected his mоtion for a downward variance after finding Adigun to be “dishonest,” “manipulative,” and “very dangerous.” The court expressly concluded, “this is a Guideline sentence,” and selected 151 months from the correctly calculated range of 151 to 188 months. Adigun does not object to the calculation of his Guideline range, which incorporated the
We are not saying that an error setting a mandatory minimum will automatically be harmless if a district court imposes a sentence above that minimum. But on this record, we conclude that the error had no effect on the sentence the district court selected.
III. CONCLUSION
Because we find that the error in Adigun‘s minimum sentence was harmless and that we cannot review his other claims, we AFFIRM the district court‘s sentence and DISMISS the remainder of this appeal.
MANION, Circuit Judge, concurring.
I concur with the result of the case and the court‘s reasoning in II.A and II.C. However, I differ somewhat from the court‘s analysis of United States v. Robinson, 20 F.3d 270 (7th Cir. 1994), and United States v. Combs, 657 F.3d 565 (7th Cir. 2011) (per curiam), in Part II.B. As I see it, Combs and Robinson are compatible and share a common rule.
In Combs, the defendant pleaded guilty, but later objеcted to the submission of evidence with a motion to suppress. 657 F.3d at 566. Typically, issues about a motion to suppress would be deemed “waived” by an unconditional guilty plea, but the government did not make this argument on appeal. See id. at 568-69. Nonetheless, we ruled that the guilty plea “removes the issue of guilt from this case, rendering moot any pre-plea challenges that do not implicate the validity of the admission itself.” Id. at 571 (quoting United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc) (Callahan, J., dissenting)). Because the defendant‘s pre-plea claims were moot, the claims no longer included a case or controversy, and we therefore lacked Article III jurisdiction over those claims. Id.
Therefore, Combs stated our rule on the extent of the waiver that results from an unconditional guilty plea: If a defendant enters an unconditional guilty plea, the defendant waives—and we therefore lack jurisdiction over—claims that: (1) occurred pre-plea; (2) do not challenge the validity of the plea; and (3) do not challenge the jurisdiction of the courts (which parties are not allowed to waive regardless of a рlea). See id.; see also Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); United States v. Phillips, 645 F.3d 859, 862-63 (7th Cir. 2011).
Although the defendant‘s guilty plea in Robinson had not waived the issues on appeal, the defendant had not raised many of these issues before the district court. Id. at 273. We determined that we could review these issues for plain error under
In this case, Adebisi T. Adigun‘s chаllenges clearly fall under Combs, and not Robinson. Adigun‘s claim challenged the evidence supporting his guilt. This issue occurred pre-plea, and does not attack the validity of the plea or the jurisdiction of the federal court. We therefore lack jurisdiction over this claim because Adigun‘s unconditional guilty plea waived it.
ANN CLAIRE WILLIAMS
UNITED STATES CIRCUIT JUDGE