Case Information
*1 Before B AUER , M ANION , and R OVNER , Circuit Judges. M ANION , Circuit Judge.
Eric Cheek distributed illegal drugs for most of his adult life. Prior to this case, he was convicted of twelve offenses, including nine felony drug offenses. Following an extensive investigation, law enforcement officers arrested Cheek in 2011 for drug distribution activities. A jury convicted Cheek of four felonies, and the district court sentenced Cheek to 576 months’ imprisonment. Cheek appeals both his convic- tions and sentence. For the reasons discussed below, we affirm.
I. Background
From 2002–2003, Eric Cheek regularly sold marijuana and crack cocaine to a drug dealer, Corey Eason, and Eason’s girlfriend, Tabitha Harris. While Cheek was in prison in 2004, one of his associates, Antonio Seymon, supplied Eason and Harris with drugs. After he was released, Cheek again sup- plied Eason and Harris with marijuana and crack cocaine. He also supplied two other drug dealers, Langston Pates and Andra Pace, with marijuana. He was subsequently incarcer- ated again in 2008, and before his release in 2010, Cheek informed Eason, Brandon Williams (who had been in the same prison as Cheek in 2008), and Seymon that he would continue selling drugs upon his release. In August 2010, law enforce- ment persuaded Eason to cooperate in the investigation of Cheek. Eason performed controlled buys of illegal drugs from Cheek and secretly recorded his interactions with Cheek. With court authorization, law enforcement also intercepted more than 20,000 phone conversations and text conversations from telephones used by Cheek and his associates. The investigation uncovered continued drug operations until Seymon was arrested on March 23, 2011. Cheek subsequently was arrested on April 5, 2011.
A grand jury indicted Cheek and three co-defendants, Tabitha Harris, Brandon Williams, and Antonio Seymon, for various drug offenses. Cheek was charged with conspiring to possess and distribute more than 280 grams of crack cocaine and more than 100 kilograms of marijuana from 2001 to 2011; intending to distribute more than 28 grams of crack cocaine on August 9, 2010; intending to distribute marijuana on March 23, 2011; and using a telephone on February 11 and 23, 2011, to facilitate the drug conspiracy. All three co-defendants pleaded guilty. Cheek did not.
Prior to Cheek’s trial, the government filed an information pursuant to 21 U.S.C. § 851 expressing its intent to seek an enhanced sentence for Cheek based on seven prior felony drug convictions. In a separate pretrial filing, the government identified several potential expert witnesses. Most of these experts were forensic chemists who were not called at trial because their opinions were presented at trial by stipulation. However, one of the proposed experts (who did not testify at trial) was a Drug Enforcement Agency supervisor who was prepared to testify generally about the use of code words by drug dealers.
A few weeks before trial, Cheek sent a hand-written letter to Harris’s teenage daughter in response to a letter he had received from the daughter. Cheek’s letter stated in pertinent part:
I remember when I met your little butt too. Yes I am your uncle and you would probably be out there if I wasn’t hard on you at times. I only did it out of love for you and fear of what you could turn into without guidance. You were the one Eric & Mikey st [Cheek’s sons] asked about 1 back in the day. … It’s been so long since the days I tried to teach you about a dollar by letting you watch the boys for $10–$15. Now you’ve got your own little one. And a pretty one at that. You know she would love me right? I am gonna fight to the end to be able to raise my kids and see yall again soon. Free [meaning Tyrell Binion] got 54 months, so he will be out soon. My situation ain’t or wasn’t bad shall I say. I won’t lie Isa, they didn’t have shit on none of us. To prove it why would they need your Mom to lie on me if they had something? But the worse part is her own lawyer tricked her because she could’ve beat the case. She couldn’t get more than 5 if she would’ve just plead guilty without lying on me. Now my life and the lives of my kids lay in the balance of her story she let them make her say. The most she can get is 5 and me LIFE if she doesn’t tell the truth. Isa that means I will NEVER see my kids or family again. Nor see yall or any of the people I know and love. Who is gonna teach Er[i]c & Mikey to fight and be men? Who is gonna keep boys away from Emmy [Cheek’s daughter] and not let her be like her mom? LIFE means forever!
So as you can see why I am saying this but, yes I love you … & your mom. But no I will never respect her decision. Still I am looking at LIFE and not because of anybody but her, the person I thought would never lie on me or hurt me. Even if she told the truth she wouldn’t be looking at shit but maybe 6 more months but at least I wouldn’t be in jail for the Rest of my life. So I am praying that she don’t let them keep scaring her. They are gonna use plenty of scare tactics. But it’s up to us to man up or woman up.
… 5
If God is willing you know who won’t tell that lie and I will be there to see yall in the near future. My lawyer [is] saying that is the only thing they have against me is her.
At trial, the government called law enforcement officers and cooperating witnesses, including Eason, Harris, Pates, Pace, and Victoria Williams (who lived with Eason during the conspiracy). The government also offered selections from the intercepted telephone communications and interactions recorded by Eason. The government provided the jury with transcripts of these recordings that contained (within square brackets) interpretations of certain words and phrases from the recordings. The intercepted communications, recordings, and transcripts were admitted into evidence by stipulation. Cheek stipulated that the communications, recordings, and transcripts were accurate, but refused to stipulate to the accuracy of the interpretations within the brackets. Before the recordings were played, the district court instructed the jury that the recordings were the actual evidence and that the transcripts were not evidence . The government elicited testimony from FBI Special [1]
Agent Greg Catey, the lead case agent, who offered his opinions regarding the meaning of the words and phrases immediately preceding the bracketed information contained within the transcripts. Agent Catey testified that he had extensive experience in drug enforcement and had participated in numerous investigations during his law enforcement career. However, he also testified that he knew the meaning of the words in the transcripts based on his specific involvement in the investigation of Cheek and his co-conspirators. Police Detective James Ferguson similarly offered testimony about some of the code words and phrases used by Cheek and his co- conspirators, and stated that his knowledge was based on his participation in this investigation.
In his defense, Cheek argued that he only sold marijuana and did not conspire with anyone. The jury convicted Cheek on all counts. By special verdict, the jury found that the conspiracy involved at least 28 grams but less than 280 grams of crack cocaine and 100 kilograms or more of marijuana.
Cheek’s pre-sentence report (“PSR”) found that Cheek was responsible for the drug-quantity-equivalent of between 3,000 and 10,000 kilograms of marijuana, which placed his base offense level at 34. However, the PSR recommended a 2-level upward adjustment under U.S.S.G. § 3B1.4 because Cheek used a minor in commission of the conspiracy; a 4-level upward adjustment under U.S.S.G. § 3B1.1(a) because Cheek was the leader of a drug-trafficking organization; and a 2-level upward adjustment under U.S.S.G. § 3C1.1 for obstruction of justice because of the letter he sent to Harris’s daughter. The PSR recommended a criminal history category of IV due to nine criminal history points. (The PSR found that Cheek had twelve prior convictions, including nine felony drug convic- tions.) Ultimately, the PSR calculated Cheek’s total offense level at 42. Given Cheek’s criminal history category of IV, the PSR calculated Cheek’s Guidelines range to be 360 months to life. Cheek objected to the obstruction of justice enhancement. But even without that enhancement, Cheek’s Guidelines range would have been 360 months to life. Cheek did not otherwise object to the PSR’s Guidelines calculations or findings regard- ing his prior convictions.
Counts I and II carried the greatest statutory maximum penalties: 480 months. The statutory maximum penalty for count III was 120 months. The statutory maximum penalties for counts IV and V were 48 months. However, 21 U.S.C. § 841(b)(1)(B)’s career criminal provision authorized the district court to impose a sentence of up to life on either count I or II. In order to do so, the district court must “before pronouncement of sentence inquire of the person with respect to whom the information was filed whether he affirms or denies that he has been previously convicted as alleged in the information, and shall inform him that any challenge to a prior conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence.” 21 U.S.C. § 851(b). At sentencing, the district court did not comply with § 851(b).
The government requested a prison sentence of “not less than 40 years,” and argued that Cheek was “a bane to society” whose operations covered significant portions of Illinois and included enormous drug quantities. The government empha- sized that it was unusual that Cheek had managed to remain out of custody after racking up so many prior felony drug convictions. The government characterized Cheek as a dishon- est and manipulative person who was willing to use a minor to further his conspiracy and used profane language in her presence when she “couldn’t get his money laundering down right.” In closing, the government reiterated its request “for a sentence within the guideline range.”
In response, Cheek’s attorney emphasized that violence was never part of Cheek’s admittedly extensive drug-dealing career. Cheek’s attorney also observed that, if the district court imposed a 480-month sentence, Cheek would be “77 years old if he was ever able to get out of the penitentiary.” During his allocution, Cheek admitted that he was not “the best person in the world,” but repeatedly asserted that he was “not the worst person in the world either.” Cheek briefly detailed a past incident in which he had assisted the police by informing them that accusations against Detective Ferguson (who happened to be a witness at Cheek’s trial), involving misconduct allegedly occurring in Cheek’s presence, were false. Cheek also told the district court that his mother had died when he was 16 years old, and that he had four children whom he loved and wanted to be there for.
After reciting the factors from 18 U.S.C. § 3553(a), the district court told Cheek, “I’m not saying you’re a bad person.” The district court commented that Cheek was clearly an intelligent person who spoke well and made a “nice appear- ance.” But the district court noted that, despite Cheek’s potential, he had chosen from a young age to engage in criminal drug activity. The district court observed that Cheek had opportunities to turn aside, but time and again “chose to continue in the drug world, and the drug trafficking world,” which leads “only to violence and death on city streets of young people or a sentence to prison.” The district court concluded that based on Cheek’s decision to play by his own rules and significant history of criminal activity, a significant prison sentence was appropriate. Therefore, the district court imposed prison sentences of 576 months on counts I and II. The 9 district court also imposed prison sentences of 120 months on count III and 48 months on counts IV and V. The court directed that all sentences would run concurrently. Cheek appeals both his convictions and sentences. [2]
II. Analysis
On appeal, Cheek argues that his convictions should be vacated because Agent Catey’s testimony included expert testimony that should not have been admitted, and because the jury should not have been provided (either at trial or in deliberations) with copies of the transcripts containing Agent Catey’s interpretations (in square brackets) of various words and phrases from the recordings played at trial. Cheek also argues that his sentence should be vacated because the district court failed to comply with the procedure provided in § 851(b). Additionally, Cheek contends that the district court violated his rights under the Fifth and Sixth Amendments to the Constitution as interpreted by the Supreme Court in Apprendi v. New Jersey , 530 U.S. 466 (2000), when the district court invoked § 841(b)(1)(B), which enhanced Cheek’s potential sentence beyond the 480-month statutory maximum penalties for counts I and II, because the jury did not find beyond a reasonable doubt that Cheek had been convicted of the prior felonies supporting application of § 841(b)(1)(B). Cheek also argues that his sentence is procedurally unreasonable because the district court erred in imposing the obstruction of justice enhancement and failed to consider meaningfully the argu- ments Cheek offered in mitigation of his sentence under § 3553(a). Finally, Cheek contends that his 576-month sentence is a de facto life sentence that is substantively unreasonable.
A. Agent Catey’s Testimony and the Opinions Contained
in the Transcripts Provided to the Jury
Cheek’s challenges to his convictions arise from portions of
Agent Catey’s testimony at trial and from the use of transcripts
(both during trial and deliberations) containing Agent Catey’s
interpretations (in square brackets) of various words and
phrases within the transcripts. Because he did not object,
Cheek concedes that our review is for plain error. “Applying
this standard, we reverse only when we find: ‘(1) an error or
defect (2) that is clear or obvious (3) affecting the defendant’s
substantial rights (4) and seriously impugning the fairness,
integrity, or public reputation of judicial proceedings.’”
United
States v. Johnson
, 680 F.3d 966, 973 (7th Cir. 2012) (quoting
United States v. Anderson
,
Agent Catey’s Testimony Cheek contends that Agent Catey offered expert testimony when testifying as a lay witness. Specifically, Cheek argues that Agent Catey testified as an expert about the meaning of drug code words and phrases used by the conspirators, the price for a kilo of cocaine, the main ingredient in crack cocaine, how a wiretap is physically conducted, and the meaning of such terms as “wire room, minimization, sessions, magneto optical disk, pen register trap and trace, spin off wiretap, special federal officer, case agent, controlled buy, front and controlled payment.” Cheek argues that allowing Agent Catey to offer expert testimony under the guise of lay testimony cloaked that testimony in an aura of expertise without subject- ing it to the reliability standards of Fed. R. Evid. 702 or the mandatory pretrial disclosure requirements of Fed. R. Crim. P. 16.
The government may use a law enforcement officer as both
an expert and lay witness in the same trip to the witness stand.
United States v. York
,
The government argues that these concerns do not apply in
this case because Agent Catey was only called as a lay witness.
As far as Agent Catey’s testimony about the drug code words
and phrases used by Cheek and his co-conspirators are
concerned, we agree. When a law enforcement officer testifies
about the meaning of drug code words used by defendants
based on personal knowledge obtained from the investigation
of those defendants, the officer is testifying as a lay witness.
United States v. Moreland
, 703 F.3d 976, 983 (7th Cir. 2012).
However, if the officer testifies from “expertise having derived
from his involvement in other drug investigations,” then the
officer is testifying as an expert witness.
Id.
As the lead case
agent, Agent Catey was intimately involved in the investiga-
tion of Cheek and his co-conspirators. For example, he re-
viewed more than 20,000 intercepted communications and
interviewed more than 100 witnesses as part of the investiga-
tion into the conspiracy. Moreover, when the prosecutor
questioned Agent Catey about the meaning of the drug code
words used by the conspirators, the prosecutor phrased his
questions in terms of Agent Catey’s “understanding based on
this investigation” or “familiarity with this investigation.”
These facts convince us that Agent Catey’s testimony about the
drug code words and phrases used by Cheek and his co-
conspirators “was based on his own personal observations and
perceptions derived from this particular case.”
United States v.
Rollins
,
Moreover, even if Agent Catey’s testimony about the drug
code words and phrases used by the conspirators could be
labeled as improperly admitted expert testimony, any error
would be harmless. First, the overwhelming evidence offered
at trial demonstrates that Agent Catey’s interpretations of the
drug code words and phrases used by Cheek and his conspira-
tors were accurate. For example, Cheek focuses on Agent
Catey’s testimony that the words or phrases “girl,” “girly,” or
“bumping into ol’ girl” were references to “cocaine or crack
cocaine.” Harris, Eason, and Williams testified that these terms
referred to cocaine or crack cocaine.
See
Trial Tr. 161 (Harris
testifying that “ol’ girl” referred to “cocaine”); 428–29 (Eason
testifying that “ol’ girl” means “cocaine” and “girl” means
“cocaine”); 675–76 (Williams testifying that “Christina, ol’ girl,
[and] white girl” refer to “crack cocaine”). And Goodwin
testified that Cheek used these terms to refer to cocaine.
See
Trial Tr. 631–33; 637 (Goodwin testifying that Cheek used “ol’
girl” to refer to “cocaine”). Second, at oral argument, Cheek’s
counsel conceded that Agent Catey would likely have been
qualified as an expert.
See United States v. Jones & Brown
, Nos.
11-3864 & 12-1695, slip op. at 10,
kind of testimony that Agent Catey offered concerning the meaning of drug code words and phrases used by the conspir- ators. See Jones & Brown , Nos. 11-3864 & 12-1695, slip op. at 10. For both these reasons, no harm could have come to Cheek from failing to subject Agent Catey’s testimony about the drug code words and phrases used by the conspirators to the reliability standards of Rule 702 or the mandatory pretrial disclosure requirements of Rule 16.
Assuming that Agent Catey’s testimony about the drug code words and phrases used by the conspirators was lay testimony, Cheek contends alternatively that the testimony was not “helpful,” and consequently inadmissible, see Fed. R. Evid. 701(b), because Agent Catey testified that the code words could refer either to cocaine or crack cocaine—but Cheek was only charged with crack cocaine offenses. We disagree. It would have been improper for Agent Catey to state that the code words referred only to crack cocaine given that they also could refer to powder cocaine. Agent Catey’s testimony may [3]
have been insufficient on its own to support Cheek’s crack cocaine convictions, but the testimony was certainly helpful to the jury inasmuch as it excluded any other potential interpreta- tion of the code words besides either “cocaine” or “crack cocaine.” And Cheek does not raise an insufficiency argument on appeal. [4]
15 All of Agent Catey’s remaining testimony about which Cheek complains could be properly admitted lay testimony. A witness could form true opinions regarding whether cocaine is the main ingredient in crack cocaine, how a wiretap is con- ducted, or the meanings of terms such as “wire room, minimization, sessions, magneto optical disk, pen register trap and trace, spin off wiretap, special federal officer, case agent, controlled buy, front and controlled payment,” without that knowledge being based on “scientific, technical, or other specialized knowledge.” Fed. R. Evid. 701. For example, the *16 16
witness might have observed another person making crack cocaine or conducting a wiretap; or the witness might consult a dictionary. When Agent Catey testified about the ingredients of crack cocaine, he did not identify the source of his knowl- edge. And when he testified that $23.50 referred to $23,500 for a kilo of cocaine, he testified that his opinion was based on his review of the calls. With respect to this testimony, precisely because Agent Catey did not specify whether his opinions were based on “scientific, technical, or other specialized knowledge,” we cannot say that it was “clear or obvious” that the testimony was expert in nature.
Moreover, Cheek does not dispute the accuracy of any of this testimony. Indeed, as noted, Cheek’s counsel conceded [5]
that Agent Catey would likely have been qualified as an
expert. Therefore, the concern that Agent Catey’s uncontested
testimony may have been cloaked in an aura of expertise, while
not concomitantly being subjected to the reliability standards
of Rule 702 or the mandatory pretrial disclosure requirements
of Rule 16, could not have affected Cheek’s substantial rights.
See United States v. Sykes
,
Perhaps Cheek believes that Agent Catey’s testimony on
these matters cloaked the rest of his testimony—including
matters that were contested—in an aura of expertise. But
Cheek does not explain how Agent Catey’s undisputed
testimony about the ingredients of crack cocaine, the meanings
of technical terms, or the process for conducting a wiretap
would bolster the rest of his testimony. Moreover, the govern-
ment did not explicitly present Agent Catey to the jury
as an
expert
. Consequently, there was little risk that the jury might
have been confused by Agent Catey’s “dual roles” as both an
expert and lay witness, that his status as an expert might
overawe the jury, or that the jury might have mistakenly
believed that his expert opinions were based on facts about the
defendant not presented at trial.
See United States v. Gar-
cia-Avila
,
The Transcripts Cheek also contends that the district court erred in allowing the jury to have the transcripts (both during trial and delibera- tions) containing Agent Catey’s interpretations. These interpre- *18 18
tations were inserted in square brackets following various code words and phrases from the recordings. Specifically, Cheek argues that this unfairly bolstered Agent Catey’s testimony and usurped the fact-finding function of the jury. [6]
“[D]istrict courts have wide discretion in determining
whether to allow juries to use written transcripts as aids in
listening to audiotape recordings.”
United States v. Breland
, 356
F.3d 787, 794 (7th Cir. 2004) (citing
United States v. Keck
, 773
F.2d 759, 766 (7th Cir. 1985)). And “[w]e have previously
permitted transcripts to be admitted at trial and used by the
jury during their deliberations when the underlying tapes are
actually played during the trial (as was the case here).”
Breland
,
Even assuming arguendo that providing the transcripts with Agent Catey’s interpretations to the jury was error, any error would not have been “clear or obvious” to the district court given our precedent cited above and Cheek’s disclaimer of any objection. Moreover, Cheek does not identify which (if any) of Agent Catey’s interpretations contained in the transcripts are inaccurate. If Agent Catey’s interpretations are correct, Cheek’s substantial rights could not have been affected and the 19 fairness, integrity, or public reputation of judicial proceedings could not have been seriously impugned. [7]
For support, Cheek cites our decision
United States v. Berry
,
B. Cheek’s Challenges to his Sentence Cheek argues that his 576-month prison sentence is procedurally unreasonable because the district court failed to comply with the procedure provided in § 851(b), erroneously invoked § 841(b)(1)(B), erroneously imposed the 2-level obstruction of justice enhancement, and failed to consider meaningfully Cheek’s mitigation arguments. Additionally, Cheek contends that a 576-month sentence is a de facto life sentence that is substantively unreasonable.
Section 851(b)/Apprendi Arguments Cheek argues that his 576-month sentence must be vacated because the district court failed to comply with procedural requirements of 21 U.S.C. § 851(b) and because the sentence violates his rights under the Fifth and Sixth Amendments to the Constitution as interpreted by the Supreme Court in Apprendi .
None of the counts for which Cheek was convicted carries a statutory maximum penalty greater than 480 months’ imprisonment. However, pursuant to 21 U.S.C. § 841(b)(1)(B), the district court could sentence Cheek to a prison term of up to life on counts I and II provided that Cheek had been previously convicted of at least one drug felony. The district court only could invoke § 841(b)(1)(B) if the requirements of § 851 were met. Cheek contends that the district court failed to comply with § 851(b)’s requirement that the court “after conviction but before pronouncement of sentence inquire of the person with respect to whom the information was filed whether he affirms or denies that he has been previously convicted as alleged in the information.”
Generally, “[w]hether the district court followed proper
sentencing procedure is a legal question reviewed de novo.”
United States v. Pape
,
Cheek also contends that his 576-month sentence violates
his rights under the Fifth and Sixth Amendments as inter-
preted by
Apprendi
. In
Apprendi
, the Supreme Court held that
“any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.”
Cheek concedes that we review for plain error because he
failed to raise any
Apprendi
argument before the district court.
But we need not dally over the standard of our review because
Apprendi
expressly excludes any question of “the fact of a prior
conviction” from the scope of its holding.
Id.
at 490. And even
if we thought the Supreme Court was going to reconsider this
ruling, it has “told the lower courts in no uncertain terms to
leave the overruling of its precedents to it.”
United States v.
Ousley
,
Obstruction of Justice Enhancement Next, Cheek contends that the district court improperly calculated his Guidelines range when it imposed a 2-level upward adjustment under U.S.S.G. § 3C1.1 for obstruction of justice. Guideline U.S.S.G. § 3C1.1 provides:
If (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administra- tion of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant's offense of conviction and any relevant conduct; or (B) a closely related offense, increase the offense level by 2 levels.
The district court thought that Cheek’s letter to Harris’s daughter was an attempt to convince “the child to get to her mother.” Thus, over Cheek’s objection, the district court concluded that the letter constituted an obstruction of justice. However, the district court remarked, “I don’t find [the letter] very significant.”
“When reviewing an obstruction of justice enhancement,
we review the underlying factual findings, like all such
findings, for clear error, ‘and we review de novo whether those
findings adequately support the enhancement.’”
United States
v. Taylor
,
Moreover, even if the district court erred when it imposed
the obstruction of justice enhancement, that error would be
harmless. Enhancements are “used merely to determine the
applicable Guidelines range.”
States v. Maggi
,
Cheek’s Arguments in Mitigation and the Section 3553(a) Factors
Cheek also contends that his sentence was procedurally
unreasonable because the district court failed to consider that
the sentence amounted to a
de facto
life sentence and did not
explain why it believed a sentence greater than that recom-
mended by the government was reasonable. Cheek relies upon
our decision
United States v. Patrick
,
In arguing that the district court procedurally erred by
failing to explain why it believed a sentence greater than that
recommended by the government was reasonable, Cheek
asserts that the government requested a 480-month sentence.
That is not quite true; the government asked for “a sentence of
not less than 40 years [480 months] in prison … .” Moreover,
Cheek’s sentence was within his Guidelines range, and “a
within-guidelines sentence receives a presumption of reason-
ableness … .”
United States v. Diekemper
,
Cheek also argues that the district court failed to consider meaningfully the arguments Cheek offered in mitigation of his sentence under 18 U.S.C. § 3553(a). Cheek identifies the following factors as ones upon which he argued for leniency at sentencing: his age (37 years old), the extraordinary length of a Guidelines sentence of 360 months to life, his history of non-violence, his advanced age upon completing a lengthy sentence, that he had assisted law enforcement in an unrelated matter, that his mother had died when he was only 16 years old, and that he had children.
First of all, although Cheek’s counsel remarked at sentenc- ing that Cheek “is 37 years old,” he did not develop any argument for leniency from that fact. And it is not apparent why Cheek’s age would support leniency. Cheek is not so young that one might attempt to excuse his criminal activity as the result of immaturity—nor is he elderly. Therefore, we will not fault the district court for failing to mention explicitly Cheek’s age during sentencing. See United States v. Jones , 438 F. App’x 515, 519 (7th Cir. 2011) (noting that the defendant “never explained why his age justified a below-guidelines sentence” and so the court was not required to address it). Similarly, our review of the sentencing transcript reveals no argument by either Cheek or his counsel that the “extraordi- nary length of a [Guidelines] sentence of 360 months to life” constitutes a basis for leniency.
F u r t h e r m o r e , m o s t o f C h e e k ’ s r e m a i n i n g
arguments—namely, that he will be elderly when he is
released from prison, that his mother died when he was only
16 years old, and that he has children—are the kinds of stock
arguments that sentencing courts are not obliged to address.
See United States v. Brock
, 433 F.3d 931, 937 (7th Cir. 2006)
(ruling that a district court may reasonably find arguments
about a difficult childhood so weak as not to merit discussion
where the defendant fails to explain why his difficult child-
hood should be a mitigating factor);
United States v. Tahzib
, 513
F.3d 692, 695 (7th Cir. 2008) (holding that “family ties” are
“nothing more than stock arguments that sentencing courts see
routinely”);
United States v. Nurek
,
Cheek’s final argument for leniency was based on the fact
that he had once assisted law enforcement by clearing Detec-
tive Ferguson of accusations of misconduct. This was Cheek’s
most developed argument at sentencing. But the fact that
Cheek did not lie to the police on an unrelated matter hardly
constitutes the kind of meritorious conduct deserving of a
sentencing reduction. And, to the extent Cheek’s could be said
to have rendered “substantial assistance” to the police, still “[a]
defendant’s claim that substantial assistance to the government
warrants leniency is ‘routine,’ … and thus a sentencing court
may reject that claim with little or no explanation.”
See Jones
,
Moreover, we will not find a sentence to be procedurally
unreasonable as long as the totality of the record establishes
that the district judge considered the arguments in mitigation,
“even if implicitly and imprecisely.”
Diekemper
,
Substantive Unreasonableness
Finally, Cheek argues that his sentence—a
de facto
life
sentence—is substantively unreasonably long. But Cheek’s
sentence was within his Guidelines range, and “a
within-guidelines sentence receives a presumption of reason-
ableness … .”
Diekemper
, 604 F.3d at 355. Indeed, “such a
sentence ‘will almost never be unreasonable.’”
United States v.
Vallar
, 635 F.3d 271, 279 (7th Cir. 2011) (quoting
Tahzib
, 513
F.3d at 695). In fact, the district court could have imposed a life
sentence on Cheek and still remained within his Guidelines
range. The district court recounted the § 3553(a) factors and
concluded that, despite the significant cost of incarceration, a
within-Guidelines sentence was appropriate in light of Cheek’s
egregious criminal history, including nine prior felony drug
convictions, and serious present offenses, including distribut-
ing at least 28 grams of crack cocaine and 100 kilograms of
marijuana. We previously have found lengthy sentences to be
substantively reasonable under similar circumstances.
See
,
e.g.
,
United States v. Taylor
, 701 F.3d 1166, 1175 (7th Cir. 2012)
(affirming 480-month sentence in light of egregious criminal
conduct and extensive criminal history);
Vallar
,
III. Conclusion
The district court did not plainly err when it admitted Agent Catey’s testimony and permitted the government to provide the jury with transcripts containing Agent Catey’s interpretations of various words and phrases from the record- ings. At least, any error would have been harmless. Addition- ally, the district court did not err when it imposed a 2-level obstruction of justice enhancement, and the court adequately considered Cheek’s mitigation arguments in light of the § 3553 factors. The district court’s failure to comply with the proce- dure provided in § 851(b) was, at most, harmless error—especially given that Cheek’s counsel never raised the issue. Finally, Cheek’s 576-month prison sentence—authorized by § 841(b)(1)(B)—is not substantively unreasonable. There- fore, we AFFIRM Cheek’s convictions and sentence.
Notes
[1] This instruction is difficult to reconcile with the fact that the intercepted communications, recordings, and transcripts were admitted into evidence by stipulation.
[2] Because Cheek’s sentences run concurrently, we refer to them as his 576- month sentence.
[3] Eason confirmed that “ol’ girl” and “girl” can refer either to crack cocaine or regular cocaine.”
[4] Relatedly, Cheek argues that this testimony blurred the distinction between powder cocaine and crack cocaine, which could have confused the (continued...)
[4] (...continued) jury into convicting Cheek for crack cocaine offenses even though the jury only believed that Cheek had committed powder cocaine offenses. But evidence admitted at trial distinguished between powder and crack cocaine. See Trial Tr. 672 (Williams testifying that she received both “powder and hard crack”); 155 (Harris testifying that she’d never seen Cheek “with crack,” but that twice bought cocaine from him); 532 (stipulation distin- guishing between “cocaine base” and “powder cocaine”). And Cheek’s defense was not that he was selling powder cocaine instead of crack cocaine. Moreover, as noted, while Agent Catey’s testimony about the drug code words and phrases used by the conspirators would not have been sufficient on its own to support Cheek’s crack cocaine convictions, Cheek does not raise an insufficiency argument on appeal. Anyway, the govern- ment offered sufficient evidence that Cheek committed the crack cocaine offenses with which he was charged. See , e.g. , Trial Tr. 113 (Agent Catey testifying that cooperating witnesses recorded purchases of crack cocaine from Cheek); 125 (Harris testifying that Cheek’s conspiracy distributed crack cocaine); 405–06 (Eason testifying that he obtained crack cocaine from Cheek); 611 (Detective Ferguson testifying about controlled buy of crack from Cheek). Indeed, Eason testified that Cheek supplied him with 63 grams of crack cocaine every few weeks during 2002–2003, 2006–2008, and 2010–2011. See Trial Tr. 405–06, 411–13, 417–20. Thus, Cheek sold signifi- cantly more than 280 grams of crack cocaine to just one of his customers.
[5] Detective Ferguson also testified that “$23.50” meant “$23,500.” But Cheek does not object to Detective Ferguson’s testimony.
[6] Based on interpretations in the transcripts that read “cocaine/crack cocaine,” Cheek reiterates his concern that the jury may have been misled into convicting him for the crack cocaine offenses based on evidence that may have only proved powder cocaine offenses. For the reasons discussed above, this argument is without merit.
[7] We observe that Detective Ferguson testified that a number of the words or phrases in the transcripts meant what the interpretations in the adjacent square brackets stated. For example, the transcripts contained the word “kilograms” in square brackets following the word “books,” the phrase “1/8th ounce or ‘8-ball’ sample” in square brackets following the word “ball,” and the phrase “$23,500 per kilogram” in square brackets following the number “$23.50,” Detective Ferguson testified that he believed the word “book” as used in the recorded conversations between Cheek and others referred to a “kilogram of cocaine.” He also testified that the word “ball” meant “a ball of cocaine” that was being given to a customer as a “sample.” And he testified that “$23.50” meant “$23,500.” Yet Cheek does not contend on appeal that the inclusion of these interpretations in square brackets in the transcripts unfairly bolstered Detective Ferguson’s trial testimony or usurped the fact-finding role of the jury.
[8] Actually, the government appealed twice. The first time we remanded for
the district court to explicitly determine whether there was a reasonable
possibility that the jury’s use of the transcript during deliberations
prejudiced the defendant.
See United States v. Berry
,