*4 REVERSE REMAND, and part. POSNER, Before MANION, and KANNE, Circuit Judges.
I. MANION, Judge. Circuit Dana Bostic controlled the New Breeds Christopher Hunter, Adams, Tommy gang which operated on the west side of Gill, Ladonta and Dana Bostic were which, Chicago and among other things, others) charged (along with ten in a multi- ran a large heroin operation. distribution count indictment with conspiracy pos- to the fall of the Chicago Police sess with distribute, intent and distribu- Department Drug and the Enforcement tion of 1000 grams or of more mixtures (“DEA”) Administration launched an in- and substances containing a detectable vestigation into the New organiza- Breeds heroin, amount of in violation of 21 U.S.C. tion and its heroin trafficking. part As of 841(a)(1). § § 846 and All eventually four the investigation, the Chicago Police De- pleaded (or and guilty appeal now either partment the DEA and both) conducted con- their convictions and sentences. Be- trolled purchases heroin; of conducted cause Hunter entered a guilty plea, blind surveillance; interviewed thereby informants waiving and right appeal pre- witnesses; cooperating trial rulings, we dismiss his obtained court-au- appeal. We reject wiretaps; Adams’s thorized contention on appeal seized more than 8 that the district court kilograms heroin, erred calculating of as well as numerous quantity heroin of for which he was firearms. 738 amount of containing a detectable stances approxi- revealed investigation of U.S.C. week, heroin, in violation times or three
mately two 841(a)(1). from § heroin grams 100 to obtained suppliers paying suppliers, his heroin above- only the four involves appeal This heroin. After $6,500 grams per whom, all of under coconspirators, named quantities wholesale obtaining these circumstances, guilty. pleaded different in the New higher-ups heroin, Bostic and plea a blind under guilty pleaded Hunter Gill, took Ladonta including gang, Breeds pursuant indictment One to Count where houses stash to various the heroin plea In that plea declaration. to a written of her- quantities they mixed wholesale unilaterally stated declaration, Hunter to dilute in order additives oin with ap- right “expressly reserve[d] of heroin quantity increase quality mo- court’s denial peal” the dou- cutting process This sales. for street wiretap evidence. Title III suppress tion to it to that made heroin the amount bled of the denial review now seeks Hunter the streets. suppress. motion to heroin, supervi- street cutting After guilty pursuant pleaded Bagley Aaron runners, such as sors plea In his agreement. written Davis, distributed and Maurice to con- right reserved agreement, “pack” of a in the form sellers to street *5 to of heroin attributable amount test the or strips tape of were These “jab.” a Adams contends appeal, him. On user-quantities or 14 containing 13 baggies attributing clearly erred district of user-quantity heroin Each of heroin. kilograms of heroin three one and between for After and sold gram $10. .1 about which, his career offender given to him heroin, street sellers jaba of selling mandatory minimum status, in a resulted super- to street returned typically $100 years of and ten sentence re- compensation, the as kept, and visor imprisonment. months’ 262 to 327 of range or heroin. in cash either maining proceeds, Adams to 180 court sentenced The district Bostic heroin totaled sales Daily imprisonment. months’ $10,000. $4,000 and between to a guilty pursuant pleaded Gill heroin on sold Bostic sellers Street ap- to right his reserved agreement and to at least basis, a.m. from about 6:00 daily challenges the He now peal his sentence. by the area controlled p.m., 8:00 an sentencing his calculation of court’s district by Pula- organization bordered Bostic the district level; he argues specifically, Burén, and Karlov ski, Congress Van lev- sentencing his wrongly enhanced sell- four or five street Typically Streets. house, a stash maintaining for byel two heroin in selling the be ers would 2Dl.l(b)(12). under U.S.S.G. any given time. territory drug Bostic Christopher Hunter Tommy Adams He guilty plea. a blind Bostic entered two such sellers. were plea was invol- guilty his claims that now informed he was not untary because additional and extensive on this Based him from preclude would 3, guilty plea November evidence, government on denial district court’s Hunter, Adams, challenging Gill, Bostic, 2010, charged trial motion to continue emergency in- twenty-two-count ain and ten others pleaded shortly before filed he had possess conspiracy to dictment challenge attempts to also Bostic guilty. distribute, and distribution to intent Gill, Bos- like appeal. And denial sub- of mixtures grams 1000 more argues ll(a)(2)’s tic that the district court erred with Rule requirements of ob- enhancing his for maintaining taining sentence “unequivocal government acquies- Finally, stash house. cence” explicit maintains and “the consent of the court,” that the district jurisdiction district court erred in this court lacks to him based on hear those violence undertaken vari- claims. United States v. Combs, (7th Cir.2011). ous F.3d co-conspirators, without specifying the violence the court attributed to Bostic. At argument, oral attorney Hunter’s the error and
conceded asserted that his II. failure to obtain the and dis- trict approval court’s of the reservation Appeal A. Hunter’s could constitute ineffective assistance First, we consider appeal. Hunter’s counsel. Whether this failure does in fact Hunter attempts challenge constitute ineffective assistance of counsel court’s denial suppress motion to questionable. Adigun, See 703 F.3d at incriminating various evidence obtained But, 1020 n. 1. as attorney Hunter’s through Title wiretaps. III “But there is recognized, it would not appropriate be an immediate and obvious barrier to his him argue his own ineffectiveness in this appeal.” States v. Adigun, 703 appeal. So we question leave that Hunter another day reject attempt Hunter’s entered an unconditional “blind plea” of challenge now the denial of the motion guilty. And unconditional guilty plea “[a]n suppress.
precludes challenge to the denial a mo Appeal B. Adams’s suppress tion to because the guilty plea constitutes a non-jurisdictional waiver On appeal, challenges only his occurring prior defects plea.” to the Id. at sentence. Specifically, argues that the 1014-15. court erred determining that he *6 was responsible for between one and three In his opening appellate brief, kilograms of heroin. The district court attorney Hunter’s stated that in his responsible found Adams this quantity for declaration, expressly Hunter had re of heroin based on the personal- heroin he served the right appeal the denial of his sold, ly as well as the heroin sold other motion to suppress. But a defendant can street-level sellers who were working unilaterally right reserve the appeal alongside him during the 6:00 a.m. to noon pretrial Rather, motions. Fed.R.Crim.P. shift.1 11(a)(2) requires both the agree court to to a conditional This court reviews a district plea. There no acquiescence such in drug quantity finding court’s for clear er this during case. At time change Barnes, no the of ror. United States v. plea hearing (7th Cir.2010). did Hunter or attorney his We will reverse raise his to reserve the attempt right if, such a finding only reviewing the “after appeal the denial of record, his motion to sup entire are left with firm [we] the press. When defendant comply fails to and definite conviction that a mistake has heroin, 1. The amount of personally grams heroin Adams mandatory of the minimum sold kilogram totaled than one less heroin. of years. higher quantity sentence is ten of The mandatory minimum sentence for less heroin involved also into a total translated kilogram years; than one whereas, of heroin is five higher. offense level three levels quantities for of one to three kilo- with four profits sources Marty, 450 States made.” United been Q Defendant drug dealers. street-level 689-90 crimi- undertaken jointly in a the guidelines, Under and, therefore, is account- he activity nal to a defendant attributable drug quantity (a)(1)(B) for subsection able under acts reasonably foreseeable “all includes by the four oth- drugs sold of quantities furtherance of others omissions joint course of during the dealers er activity.” criminal undertaken jointly those them undertaking with lB1.3(a)(l)(B). ‘jointly “A un- § U.S.S.G. jointly in furtherance were sales is a criminal activity’ criminal dertaken reason- activity and undertaken criminal un- endeavor, enterprise or scheme, plan, connection ably foreseeable in concert with by the defendant dertaken activity. criminal con- charged as a others, or not whether lB1.3(a)(l)(B), Application lB1.3(a)(l)(B), § Appli- § U.S.S.G. spiracy.” U.S.S.G. 2(c)(6). determining the Note 2. And “[i]n cation Note par- activity criminal scope of the Defendant he is argues that like Adams jointly under- agreed to ticular defendant from the other P, independently operating conduct specific (i.e., scope of the take it at oral put Or as sellers. street-level by the defen- objectives embraced independent merely an argument was—he may consider agreement), dant’s franchise. contractor, running separate agree- implicit agreement any explicit Adams, was not Thus, according to from the conduct fairly inferred ment the other street-level jointly acting Id. and others.” the defendant lB1.3(a)(l)(B). purposes sellers argues blush, Note Application At first responsible clearly holding erred But 2(c)(6) scenario. to Adams’s seems fit by other of heroin sold quantities explain: *7 explanation: circumstances, of nature particular drug P a dealer street-level Defendant viewed appropriately offense is more drug other street-level of who knows activi- criminal jointly undertaken as one who geographic area the same dealers in criminal separate of as a number ty or drug as he sells. type of sell same activities. dealers share P and the Defendant other lB1.3(a)(l)(B), Application U.S.S.G. but supply, source of other- a common 2(c)(8). Note Defendant independently. operate wise involved circumstances” “particular The quantities P is not accountable this case. complexion of change the here drug street-level drugs by sold change case, admitted at Adams In this he is not dealers because of three he was one hearing that activity criminal jointly undertaken worked sellers who other street-level contrast, Q, four anoth- Defendant them. In noon, “selling her- 6:00 a.m. dealer, re- between pools drug er street-level Bagley oin on behalf of and other New hand, and several sellers on gang Breeds members.” See Adams’s organization Bostic attracted customers to Change Hearing of Plea Bagley 22-23. thus, the market. And while Adams and supervisor was street who distributed the other street-level sellers might be com- the heroin to Adams and the other street peting commission, for their govern- sellers and then proceeds. collected the argued ment While Adams stated that his knowledge of because of the number sellers all the other individuals the distribution working there for the organiza- Bostic limited, chain above was Bagley he other- tion, in, customers could come [take the wise agreed government’s with the proffer “L”], they they knew would find of the factual basis for the change plea, sellers there who selling were heroin which included the statement that he and openly on the street. people These the other street sold sellers heroin “on were not competing with each other. Bagley behalf and other New Breeds reality The you is that needed the sheer gang members.” agreed He also with the critical mass of people to make this a government’s characterization of Bagley as successful open-air drug market, and the Thus, a “supervisor.” case, in this part defendant was a of that. peo- The and the other street sellers were working ple who were out were not there com- organization, for the same during the same peting with him. They part were (6:00 noon), shift a.m. to same reason they were able to draw cus- supervisor, selling heroin by owned tomers from all city. over the that organization. Adams also was not The district court govern- found the merely working “the same geographic argument ment’s persuasive and, given the sellers; area” as the other street-level case, facts of this that conclusion was emi- “working was as a street worker in Bos- nently reasonable. organization,” tic’s selling drugs in the a territory by the controlled New Breeds Similarly, in a involving case crack deal- gang.2 ers operating out of same house—but speak These facts not of several arguably street- suppliers different —the operating level sellers independently to Fifth Circuit found the “marketing sym- franchises, run their own drug but rather biosis” supported a finding jointly un- of the Bostic organization running one activity. dertaken criminal See United drug employees Smith, store with staffing several States v. 864-65 fact, the various In Smith, shifts. Smith, Cheney and government’s theory before the district Adams were operating dealers out of the court—that the organization ran an same co-defendant, crack house. Smith’s open-air drug store which Phillips, attracted cus- had flagged two down undercover by tomers having many so sellers available officers who indicated wanted some product. with its ex- “rocks.” Phillips directed them to the plained having ready crack access house and the trio showed the offi- *8 represented 2. The also at oral apparently there was much about the New argument that the street gang sellers sentencing. alerted each Breeds left unsaid at See Dumke, presence police. to the govern- of The "Anatomy Mick Ring," of a Heroin ment, though, rely Reader, 14, 2013, did not on this fact at Chicago http://www. Feb. sentencing. Clearly, this fact would further chicagoreader.com/chicago/gang-violence- that the working show street sellers were to- heroin-new-breeds-vicelords/Content?oid= gether (visited 8, 2014). further same the But endeavor. Feb. less inde- had Adams much that it shows purchased The officers their wares. cers Yet dealers in Smith. the the than gave pendence and then Smith crack from some had found Smith four Fifth Circuit The the raid ensued. and a signal “bust” activity with criminal house, jointly were undertaken in where the into retreated Smith, Second, in other dealers. person, on his the two crack None had arrested. came from crack cocaine the of was evidence grams 3.9 there recovered but officers id. sources, which That house. of the different floor from the base Here, independence. color more and purity indicates a different was of crack were other sellers under- and the the Adams though, had sold Smith the crack than and Bagley of on behalf “selling heroin maintained agents. Smith cover See gang the members.” therefore Breeds other New crack not her was Hearing at 22-23. Plea Change her of Adams’s erred court district more sold, are even plus Thus, in this case she the of crack facts the amount based jointly undertak- finding of the house. of a from supportive recovered grams the 3.9 at issue activity than those en criminal held that Fifth the Circuit appeal, On Smith. crack recov- for the responsible was Smith if it was premises Moreover, independent even from the if Adams’s ered even dealer, the a reason- a different owned contractor characterization agreed finding facts, that “Smith no clear a there was support facts able view the criminal “[wjhere jointly per- undertaken are two engage in there error because evidence, and Adams.”3 fact- Cheney activity with of the views missible conclusion, the Smith be cannot reaching this them between finder’s choice United States reasoned, clearly erroneous.” Ac- Bush, very rudimenta- house had become say the district cannot cordingly, we market center or flea ry shopping acted “barker,” finding Adams clearly erred crack, Phillips, its replete sellers other street-level jointly who as with the friendly competitors and the market open-air the Bostic greater staffed marketing site who whole created drugs on and sold morning shift presence during parts. of its than sum Breeds New and other and a pushers Bagley behalf part-time multiple, gang a mar- members. produced supply for users larger outweighed its that far keting symbiosis that the sales not claim Adams does aspect. competitive minor not were foreseeable the other sellers Id. that, if he contest him. Nor does by the for the sold held accountable even more in this case are
The facts during the shifts sellers other street-level undertaken jointly aof demonstrative drugs involved worked, quantity in Smith. than the facts activity criminal kilograms and three one was between case, and the other First, Adams in this Accordingly, because heroin. in Bos- shift working morning sellers finding those clearly err court did not not own market drug did open-air tic’s crimi- jointly undertaken part sales dispositive, is not that factor drugs. While resentencing because charged tence remanded feder- were Cheney any evi- presented government had not Smith, And 862 n. 2. 13 F.3d at ally. See found, dence, court had responsible for was also held Phillips while criminal Phillips jointly had undertaken inside grams of crack recovered the 3.9 Cheney and activity with Adams. house, his sen- Fifth Circuit reversed
743 activity, nal the district court did not err in mand to permit the sentencing judge to (if holding responsible determine between whether he would required resentence) reimpose one kilograms original and three of heroin his sen- tence.” Id. sentencing accordingly. A limited Paladino remand is not Appeal C. Gill’s appropriate in this case. The Paladino Adams, only Like Gill challenges his line of cases did not involve the incorrect sentence. argues He calculation of guidelines range. Unit enhancing erred in Williams, ed States v. 304, 742 F.3d 306- house,
level
two maintaining
a stash
07,
(7th
486244,
2014
Cir.2014)
WL
*2
2Dl.l(b)(12).
pursuant
to U.S.S.G.
Spe-
Paladino,
(citing
483-85).
401 F.3d at
cifically, Gill maintains that applying this When a district court incorrectly calculates
enhancement
case
violated the Ex
guideline
range, we normally presume
Post Facto
of the
clause
Constitution
improperly
be-
calculated
range
cause
influenced the
conspiracy
judge’s
sentence,
ended “on or about
choice of
says
See,
unless he
August 10,
otherwise.
e.g.,
2010” but the
sentencing en-
Goodwin,
States v.
511,
717 F.3d
520-21
hancement
not
effective until Novem-
(7th Cir.2013). Accordingly, we have con
ber 2010.
cluded that where the error involves the
At the time the district court sentenced
incorrect guideline calculation, the Paladi-
Gill, the controlling
law this circuit was
no
procedure
not
appropriate.
that, because the guidelines were discre-
Williams,
306-07,
744
result,
aAs
1006;
the case doctrine.
the
of
Barnes,
at
law
F.3d
660
not.
does
ap-
successive
several
Further,
has faced
even this court
Simms,
at 852.
F.3d
721
scope of
mainly on the
focused
court’s
which
remand,
peals
district
the
a general
authority on remand.
is
court’s
arguments
new
the district
to consider
discretion
438-40;
Whitlow,
See,
the
740 F.3d
principles,
e.g.,
related
by “[t]wo
limited
852;
v.
Simms,
States
doc-
F.3d at
United
law of the case
721
rule and
mandate
(7th Cir.2005);
from
United
White,
court
a district
Unfortunately, general does limited remand This imprisonment5 and the district court parties leave the court’s di not, however, limit of mandamus parameters sort out applies in the sentenc Supreme That section stances.” provides: "The 4. Section us to limit remand ing to allow jurisdic- context appellate any other court of Court or resentencing. complete vacate, or affirm, issues order or certain modify, set may aside tion Young, See of a or order any judgment, decree reverse review, lawfully brought before it for had house enhancement two-level stash cause and direct 5. The may remand decree, result- which level judgment, Gill's offense raised entry appropriate of such range to life of 360 months order, proceedings ed sentence require further or such imprisonment. just may be under circum- had as to be *11 (or hold) cretion to pro- may hold fashion a further limited remand as narrowly ceedings and consider further arguments broadly or as it appropriate. deems to determine Gill’s sentence based on the Young, 66 F.3d at might It 835. also seem § 3553 factors. merely We limit its au- that our limited remand is no different thority to reopen range cal- guideline than general remand, given that culation. We do so because al- Gill has latter has the same limitations based on ready had one opportunity present to mandamus and the law of the case doc- the district court arguments concerning trine. In a sense that is true because we guideline range calculation. He has (so are merely stating explicitly as to avoid already had one opportunity to challenge unnecessary litigation) implicit. what in this court the ruling district court’s on Husband, See United States v. 312 F.3d arguments. those appeal, On Gill chal- 247, Cir.2002) (the court “may lenged only one ruling stash house —the explicitly remand certain issues exclusive enhancement. appeal pre- Because Gill’s others; of all but the same result may also issues, sented no other sentencing resen- be accomplished implicitly”). In other tencing should be similarly limited to cor- words, our label important is not di- —our recting the Ex Post Facto violation and rective is. sentencing then on the proper based
guideline range. He should not be able to D. Appeal Bostic’s “use the accident of a remand to raise in a Finally, appeal second we an issue that consider Bostic’s just appeal. he could pleaded as well Bostic guilty have raised appeal in the first without benefit of a plea agreement, the remand did not affect but in doing it.”6 so executed a Parker, United States v. 527, written plea declaration. Bostic now (7th Cir.1996). claims that his guilty plea was involuntary because he was not informed that his However, (at we have no way knowing guilty plea preclude would him from chal- record) least based on this whether a dif- lenging the district court’s earlier denial of ferent range prompt- would have his emergency motion to continue the trial. ed the § district court weigh tó differently. factors Accordingly, the dis- At point, this a few additional back- may, trict court if it it appropri- believes ground facts are needed: Bostic’s trial had ate, allow new arguments and a new hear- (after once) been set being rescheduled on ing stress, 3553 factors. We 27, February 16, February 2010. On though, that a must. may this is a —not attorneys Bostic’s had filed an emergency general remand, with a As trial, motion to continue arguing they court need not hold proceedings further only recently had observed Bostic was argument. consider further “basically illiterate” and needed more time
One final to ensure closing: note before he understood the evidence. While we call remand, this a limited the Bostic’s attorneys argued very remand is still broad. But a court needed more time prepare because the cases, 6. "vacating part In some may of a sen- by altering intent be undermined one may justify require tence or even a new White, sen- portion of the calculus." 406 F.3d at Simms, tencing hearing_” See 721 F.3d at present 832. But this case does not such a practical "[T]he calculus is a one" and situation. The stash house enhancement was sentencing a de sometimes novo is necessitat- aspects interconnected with other ed because "enhancements are inter-connect- guideline range calculation. and the original ed court’s Bos- representation. legal about his them that cerns recently informed had discussed court he tic told the jail phone calls Bostic’s obtaining attor- with his guilty plea charges they needed months last six with his was satisfied that he neys and The district calls. those chance to review The district legal representation. con- motion to emergency court denied Bostic would many rights also detailed day it was filed—Febru- same tinue and Bos- guilty up pleaded if he later, giving be days six ary 2010—and *12 expla- the court’s understood tic stated possess to conspiracy to guilty pleaded nation. heroin. intent to distribute plea his argues that Bostic response, In above, appeal claims Bostic As noted court the district involuntary because was knowing and volun- was not plea that his inform him expressly did not a know- be both plea must tary. guilty “A right to waiving the guilty he was pleading Key v. voluntary act.” United ing and to continue (7th Cir.1986). of his motion the denial 133, appeal States, 136 F.2d 806 11(b)(1) Feder- of the the trial date. Rule this, Rule of Criminal Federal “To ensure Procedure enumer- al Rules of Criminal 11(d) trial the requires Procedure a rights of which the specificity ates with questions specific the defendant judge ask defendant inform “the court must plea district of the voluntariness concerning See Fed. open court.” personally [and] a creates questioning This agreement. 11(b)(1)(A) (0). In the case of R.Crim.P. in future appeals can be used record that — court must the district agreement, attacks,” plea a and that “record and collateral any of of “the terms the defendant inform verity.” Id. a presumption entitled to right waiving the provision plea-agreement pre- to record entitled only is the Not the sen- collaterally attack or to appeal to truth, Bostic nev- but sumption ll(b)(l)(N). But in the case Rule in the tence.” guilty plea his sought to withdraw er 11(b)(1) does not Rule plea, a blind error. court, plain is for our review district in- to the district court 616, similarly require 719 Davenport, v. F.3d States United waiving the that he is the defendant (7th form 618 rulings. And “[w]e right appeal pretrial to case, 11 Rule record this court is trial previously held have both plea was that Bostic’s establishes defendants obligated to inform During Rule voluntary. knowing plea on unconditional consequences an court asked Bostic: colloquy, 11 Adigun, F.3d appeal.” 703 potential you, to force threaten anybody tried “Has Fisher, 772 (citing States 1020 you get to or you, you intimidate or coerce Cir.1985)). (7th Nonethe- 371, F.2d 375 responded Bostic guilty?” you plead less, Adigun, would be we said as you asked: then “Are “No.” The explicitly court to district better charge of to this pleading guilty particular waiving are inform defendants respond Bostic your free will?” And own rulings to elim- pretrial right appeal also inquired ed “Yes.” The district controversy. Adigun, further inate influence of was Bostic under whether at 1020. any men or suffered alcohol for the if it were error But even and Bostic indicated impairment, tal that he to inform Bostic court not court also asked had no such issues. the denial right appeal waiving his to was opportunity had had whether Bostic continuance, any error of his motion his plea charges and discuss the of Rule 11 Violations be harmless. con- would any had attorneys and whether Bostic are if a harmless defendant knew already Bostic also argues that plea was not the omitted information. See United knowing and voluntary because he felt he Driver, States v. 242 F.3d had no option plead but to guilty when the Cir.2001). Here, plea Bos- declaration district court denied his motion for a con- tic signed stated: “Mr. Bostic un- farther tinuance.7 But Bostic testified under oath derstands that waiving he is all appellate that he pleading guilty his own free issues that might have been available if he will and nothing said during the Rule 11 trial, had right exercised only colloquy which would pres- indicate he felt may appeal the validity of this plea sured to plead guilty. Bostic’s statements guilty or the sentence he receives.” And presumed are true and presents no during change of plea hearing, Bostic basis for overcoming this presumption testified that he had read the entire there was no plain or otherwise. error — declaration carefully before signing it and Walker, See United States v. that when he read it he any did not have (7th Cir.2006) (rejecting the defen- trouble understanding it. Bostic also said *13 argument dant’s that the district court’s he plea discussed the declaration his denial of his motion to transfer the case to attorneys they explained that to him another venue rendered his decision invol- everything that was the declaration. untary “he ‘anguished was The district court also asked Bostic if he distraught’ by the prospect imminent believed he everything understood in the going Haute”). to trial in Terre Accord- plea declaration, to which Bostic respond- ingly, plea his stands. ed: ‘Tes.” attorneys Bostic’s also stated to the court that had read the document Bostic also challenges his sentence.8 line, to Bostic “line by he been has The district court determined that Bostic’s through each line with us and had them all total offense level was 42 given his him, to explained and we answered all his history II, criminal category guide- the questions. So I made sure that he has had line range was 360 imprison- months to life him, just it read to that he tried to ment. The district court sentenced Bostic figure it out on his own.” The court then to imprisonment 456 months’ and charac- asked Bostic if that was correct and Bostic terized that sentence as approximately in said it Accordingly, was. already Bostic the middle range. that knew waiving right was his to Bostic claims that in appeal the him to denial of his motion for a con- imprisonment 456 months’ tinuance the agreed because he that district he was court waiving appellate procedural all committed issues error in ad- than § ones involving dressing sentence the 3553 concerning Specifically, his factors. validity Thus, plea. any argues his in Bostic that the error erred failing to inform Bostic that he waiv- when it him responsible held for some of ing right his to would appeal be harmless. the violence undertaken the New making argument, 7. this Bostic at- right challenge also reserve to the denial of tempts to challenge the district continuance, under- court's his plea motion for a his blind lying denial of his motion to continue the trial precludes any challenge to the denial of his ("Bostic Appellant date. See Brief pres- at 13 motion to Adigun, continue the trial date. (which one challenge guilty plea ents to his 703 at F.3d encompasses challenge to the district court’s denial of his motion to continue the plea guilty 8. A blind does not waive a However, dates).”) trial because Bostic's right appeal defendant's sentence. voluntary was knowing and and he did 748 wounded Bostic which had gang which rival identifying gang, but without
Breeds govern- While his brother. was hold- and killed the court of violence acts specific at the sen- evidence presented ment for. responsible ing Bostic shootings or seven hearing of six tencing argument. this reject We given green light Bostic had and that factors, “al 3553 addressing When court con- the district shootings, for the ... articulate must judge though the that I know that” say “I can’t that cluded that the sentence determined that factors “ per- kill this said, you T want Bostic duty ‘to impose, has decided ” continued: But the court son.’ duty not a factors is statutory consider’ Dean, States v. findings.” United person to make this [co- I know is that What Cir.2005). (7th “As a 725, 729-30 F.3d involved Davis who was conspirator merely matter, must record general think the evidence Taylor] that I killing con thoughtfully assure us kept close reliably shows Mr. United statutory provisions.” sidered him before He is involved to him. Nania, v. States I shootings, and after these events. required are findings Explicit reliably shown has think it been only know, of, you they occurred as result necessary two to fulfill extent
to the as a result least some of them (1) “enabling] this court purposes: It’s ab- himself. shooting of Mr. Bostic court’s meaningfully review possible it’s this solutely true that Marion, States decision,” hey, saying, person be some just could *14 (2) (7th Cir.2009); and 475, 477 F.3d my know, somebody shot one you principal, to the defendant’s responding one going go I’m to shoot people. v. States arguments, nonfrivolous just particularly it’s I don’t think them. (7th Martinez, 667, Cir. Davis, like Mr. somebody that who likely 2011). organization like drug in a is involved Nania, of, 724 F.3d at charge is in somebody else this that that on his go and do just going to out is the district claim
Bostic does not okay. just I some getting without own a “nonfrivolous respond to to court failed think it’s coinci- then, have—I don’t don’t is only question, argument.” in people who one that all of these dence reasoning was court’s the district whether for Mr. Bostic way or another worked review the dis- enable us to to sufficient involved all just happened be answering And in court’s decision. trict relates this violence somehow in mind that with we question, bear this so, him. And (which happened to things that is what within-guideline sentence know, sentencing Mr. Bostic I’m not you received), is need- explanation less Bostic sentencing I’m any murders.... Lyons, on ed. See United States offense, think it’s I do narcotic but ease, for a In this into account me take appropriate ad- more than analysis was court’s district reliably I think has been what reason- of the allow review equate to our was involved is that Mr. Bostic shown Bostic’s sentence. The ableness used violence organization that in- an discussed, length, violence court at accomplish whatever to time to includ- time drug operation, volved in the Bostic at appropriate thought goals was of the that members its conclusion ing know, is And, yes, Mr. Bostic you Tay- time. murdered Devon organization I any triggers, pulling not out there shooting by an earlier in retaliation for lor agree with that. He’s very well-insulat- reasonable. Accordingly, the district court ed. He’s like most peo- CEOs. There’s did not commit procedural by error failing ple that weight take the for him. specific render findings factual concern- ing the violence engaged at Bostic’s statements, In addition to these the dis- behest. trict found that the evidence was sufficiently reliable that Bostic in” “bashed Finally, Bostic challenges the district
the hand of a co-conspirator for “messing court’s sentence based on the court’s two- money count. up” And that it was level enhancement guideline to his range question without that Bostic “was the lead- for maintaining house, a stash pursuant to drug er of a organization of long standing 2D1.1(b)(12). U.S.S.G. But as discussed that was with or part associated that was earlier, supra see at Peugh holds that of a gang. know, street you And violence it is an Ex Post Facto violation to calculate part running a business like that. It’s a defendant’s range based business the life that Mr. Bostic sentencing provision in effect at the chose.” The district court then reasoned time of the commission offense. that it did not need to specific make find- Peugh, 133 S.Ct. 2088. Because the ings whether any Bostic committed par- stash house enhancement was not in effect ticular murder there were no at offense, the time of Bostic’s applicable, enhancements but in applying erred that enhancement. thought that it it appropriate: Accordingly, we remand to the district to take into account nature of the court for the limited purpose of correcting business that Mr. Bostic in charge the sentencing range and resentencing of, has, the fact that he I think reliably Bostic based on this range.9 correct How been shown to have in violent ever, again Gill, as with this does not acts himself. And I believe that it’s fair limit the district court’s discretion to hold to attribute to him at least some of the (or hold) further proceedings and con violence that has been attributed to him sider further arguments based on the people. § 3553 merely factors. We limit its au *15 As excerpts clear, these make the dis- thority to reopen guideline range cal trict court considered at length the evi- culation. and,
dence before it
while not willing find that
any
specific
ordered
mur-
III.
ders, concluded
appropriate
that it was
take into account
sum,
the overall violent nature
Hunter entered a blind plea of
business,
drug
of the
as well as some of guilty
although
unilaterally
and
stated
the violence others had attributed to Bos-
that he
preserving
was
right
appeal
argued
tic. Had Bostic
that his sentence
the denial of his
suppress
motion to
Title
was unreasonable —which he did
materials,
not—the
III wire-tap
government
did
§
district court’s discussion of the
3553 not acquiesce to the entering of a condi-
factors would be more than sufficient for
tional guilty plea. Nor did the district
us to conclude
within-guideline
that his
court approve such a plea. Accordingly,
sentence of 456
imprisonment
months’
was Hunter cannot now appeal the denial of his
that,
Gill,
9. The
argued
waived,
unlike
ment
plain
had been
there would be
Bostic had waived the Ex Post Facto clause
error
Williams,
appropriate.
and remand would be
See
argument by
adequately
306-07,
presenting
not
it to
The with horse meat. majority Another opin- franchisee, ion McDonald’s confuse vertical agreement Peoria, a this one in —P’s agreement, which the learns what application the Chicago note tells franchisee is do- joint us does not ing, create a criminal under- thinks it’s clever way of cheating taking a horizontal agreement, customers, starts doing it himself. In —with which does. agreed Adams to distribute merely acting upon knowledge of what heroin for the Bostic gang specified at a someone in the same organiza- franchise location and remit proceeds of his tion is doing, he is not a co-conspirator of sales to Bagley, supervisory employee of that someone if buys even his horse Bostic. In exchange he received a cut of meat from the same vendor. proceeds.
those He thus was a commis- The labors under the same sioned salesman. Of course he knew that misconception concerning meaning gang marketed heroin through other conspiracy as the district judge did when it street-level vendors in his neighborhood, tells us in its brief that “at the end of his and of course he knew what did for shift, Adams Bagley met to turn in his gang same thing he did. But he —the proceeds, just like the other street sellers did not work or help them. At oral in the Bostic Organization. And as he argument government’s lawyer said admitted, Adams knew the money that the that other, dealers looked out each for that those street sellers example earned by warning was re- each other when turned police appeared. Bagley.... But This evidence acknowledged proved that no joined presented evidence Adams this criminal Adams’s sentencing hearing did, scheme in concert with had others.... Adams agreed do, any of that “looking out.” did not sell simply heroin in the same geographic in which area others sold her- The judge based his attribution oin. knowingly He sold Organi- the Bostic to Adams of the heroin sold the other zation’s heroin in drug the Bostic territory dealers on Adams’s “understanding at alongside other street-sellers who likewise some level other people doing are worked for the Bostic Organization.... thing same you’re all part of the same Moreover, Adams knew that he and other overall I group.... think sufficient street sellers worked Bagley.... knowledge constitute and awareness of conduct of jointly those other street-sellers was undertaken criminal activity.... you therefore What have foreseeable to to know Adams.” The ma- you’re part is that activity jority opinion of an that is being echoes this done concert when remarks *17 with them. that you’re And even if “Adams both does not claim at the that the sales bottom end ... of organizational chart, the other the sellers were not foreseeable to you if understand there’s a chart him.” you If raspberries sell in Treasure up goes to the apex Island, same you and it’s all the raspberries can foresee that organization, same I think is suffi- being are also sold Whole Foods. 752 substances), scope the cluding controlled the asserts and
What activi- undertaken criminal jointly is all about knowl- of the echoes majority opinion (and accountability is not knowledge. It thus the just ty and about edge, from no different It that was cooperation. contraband about for the defendant It case. McDonald’s my hypothetical ac- jointly undertaken object of that in cases such statements unequivocal whether, flouts in the upon may depend tivity) Salem, v. States as United circumstances, nature of particular crimi- (7th Cir.2010), that awareness viewed appropriately is more the offense activity activity doesn’t make nal activi- criminal jointly undertaken as one United See “jointly undertaken.” criminal separate as a number ty or Soto-Piedra, supra, 525 F.Sd at v. States activities. Reese, v. States 531; United only opinion quotes majority The sentence, missing the distinction last thus Applica- invokes opinion majority The involving the examples the two between 2(c)(6) by 2(c)(8), attempt an like tion Note example the In the first four offenders. “jointly what example explain means of importation their dealers “coordinate four 2(c)(8) activity” is. criminal undertaken pro- and assistance ... for mutual efforts material, (the indi- deleted follows reads as jointly in a “engaged thus are and tection” merely of consists by ellipses, cated activity.” In the sec- criminal undertaken guidelines): subsections citations to individu- “were hired the four example ond T, U, V, are hired and W Defendants shipments individual transported their ally, quantity a backpack supplier a times, operated otherwise and at different from Mexi- the border across marihuana “each defendant and so independently,” Defendants States. co into United only quantity for the accountable be would V, their individual T, U, receive and W transported.” personally of marihuana at the same supplier from the shipments is Adams. That importation their coordinate time and to- the border by walking across efforts on majority opinion relies The protec- mutual assistance gether for (5th Cir.1994), Smith, F.3d 860 States is accountable tion. defendant Each shared crack dealers in which four case of marihuana quantity aggregate very rudimen- as “a they used which house defendants. by the four transported flea market tary shopping center in a jointly four defendants had crack”; “friendly competitors” these object activity, the criminal undertaken than the marketing greater site “created of the four importation was the of which marketing “a parts,” producing its sum of marihuana ... containing backpacks minor outweighed its that far symbiosis other’s actions abetted each aided and Although aspect.” Id. competitive jointly undertak- carrying out the ... of a crack joint occupants the four were contrast, if De- activity. en criminal than that relation more intimate house—a V, hired T, U, W were fendants sellers of and the between their individual individually, transported out stood Bostic—Smith supplied by times, other- at different shipments and was dealers the other crack de- each independently, operated wise increased whose only one sentence only for fendant would be accountable jointly aof existence recognition personally quantity of marihuana no activity. Adams is criminal undertaken illus- example As this transported.... (in- Smith. trates, contraband involving cases
Yet majority the opinion regards the the dependence (suggesting they were present case as a stronger one for the jointly dealing drugs) relevant to Applica- than Smith 2(c)(6). tion Note “Adams and the other sellers working the The sentencing error made by the dis- morning shift in Bostic’s open-air drug trict judge and condoned the majority market did not own drugs,” the which opinion is not trivial. The inclusion of “shows that Adams had much less inde- by sales of heroin the other dealers in- pendence than the Smith” dealers creased Adams’s sentencing from range Earlier the majority opinion had stated 188-235 months to 262-327 months and his “selling Adams was heroin by owned statutory minimum sentence from years organization” [the Bostic] rather than to 10. The judge sentenced him to 180 by owned himself. I think don’t that dis- months, dipping well below the guidelines tinction slightest has the relevance. Re- range because he thought bottom, its member question is whether months, “way A excessive.” reduction in Q Adams is P or in Application Note the guidelines range might prompt him to 2(c)(6). The note mention doesn’t owner- further, reduce the sentence though be- ship. Nor is a sine qua non ownership cause this is not certain a limited remand competition, emphasized by the majority would be appropriate to enable him to opinion (mistakenly I suggested) as as reconsider the sentence. key to distinguishing Adams from P. Often competition owners, is between but often it not,
is inas the case of retail salesmen who
work on you commission. If go buy
pair shoes, you salesmen encounter
will not they’re own shoes trying to sell
but may well be competition
each other for commissions. Or think of a bookstore: what difference does it make Joseph BUECHEL, W. Plaintiff- whether the store buys books pub- Appellant, them, lishers and resells or sells as them publishers’ agent and so passes title from the publisher to the store’s America, customer UNITED STATES of when buys the customer a book? Defendant-Appellee. When one dealing illegal activity, No. 13-2278.
moreover, distinctions between owner and United States Appeals, Court of agent, sale and consignment, usually are Seventh Circuit. blurred and generally Why irrelevant. should Adams’s depend sentence Argued Nov. 2013.
slightest degree on whether title Decided March did did not pass to him? The majority opinion states Adams had “independence”
less than defendants in Smith case virtue of not owning the
drugs he sold. But dependence onwas supervisor who furnished
the drugs to sell consignment basis, on a dealers, which would be Notes Application as the sellers, claiming that those street-level (includ- contraband involving cases [I]n “jointly undertaken crimi- sales were not substances), scope of controlled ing argument activity.” Adams bases nal activity criminal jointly undertaken 2(c)(6) to Note Application large part (and accountability of the de- thus the lB1.3(a)(l)(B). That note illus- U.S.S.G. was the contraband that for the fendant undertaken concept “jointly trates activi- jointly undertaken object example and this activity” with criminal whether, in the upon ty) may depend