UNITED STATES OF AMERICA, Plаintiff-Appellee, v. TYREE M. NEAL, JR., Defendant-Appellant.
No. 17-2976
United States Court of Appeals For the Seventh Circuit
ARGUED OCTOBER 2, 2018 — DECIDED OCTOBER 22, 2018
Before BAUER, KANNE, and SCUDDER, Circuit Judges.
Appeal from the United States District Court for the Southern District of Illinois. No. 4:14-cr-40076 — J. Phil Gilbert, Judge.
I
Neal pleaded guilty to conspiracy to sell cocаine in violation of
Your Honor, if this case were to proceed to trial the government would prove beyond a reasonable doubt that during the time of the charged conspiracy the defendant was involved with numerous other persons in the unlawful distribution of cocaine in Williamson County in the Southern District of Illinois. Some of the evi-dence would include that the defendant sold cocaine to a confidential source on multiple occasions in 2012. After those buys a search warrant was issued and executed, and agents recovеred a large amount of United States currency which included some of the prerecorded buy money. The evidence would be that after that incident the defendant gave a statement to agents and he admitted that he was getting 4-ounce amounts of cocaine once or twicе a week for the past three years from, quote, BB, end quote, in Effingham.
There would be other evidence in 2014 a different CS made purchases of dealer amounts of cocaine from the defendant. That CS indicated that he or she had regularly been obtaining cocaine from Neal, from thе defendant, and that the defendant would not sell anything less than an eight-ball. There would be multiple other witnesses in addition to the two CSs who indicated they purchased dealer amounts of cocaine from the defendant. The evidence would be that oftentimes the cocaine was either obtained or provided on fronts.
In response to the district court asking whether the factual proffer was accurate, Neal paused, saying, “Not all of it.” Neal‘s counsel took the response to mean that Neal had reservations with the government‘s statement that he bought cocaine from “B.B.” After a brief recess to permit consultation with his counsel, Neal no longer vacillated. When the court asked anew if the government‘s factual proffer was correct, Neal replied, “Yes.” The court, too, found the proffer sufficient and accepted Neal‘s guilty plea.
Neal then appeared to backpedal at sentencing. The district court asked Neal if he had any objections to the Presentence Investigation Report. Neal responded by saying, “I don‘t think I have a conspiracy like by myself. Like, I don‘t know how I could do that, conspire by mysеlf? ... I don‘t have no—any co-defendants or anything. I don‘t know how I‘d conspire—like a conspiracy, I thought it takes more than one person?”
II
Neal contends that the district court abused its discretion by not allowing him to withdraw his guilty plea. First, he asserts that his objection at sentencing to the PSR‘s factual basis should have been treated as the functional equivalent of a pro se motion to withdraw his guilty plea. Second, Neal argues that the district court should have granted this motion because the conspiracy charge lacked an adequate factual basis. A defendant may withdraw a guilty plea by moving to do so (orally or in writing) before the court imposes a sentence, and providing a “fair and just reason” for the withdrawal.
In сontending that the district court should have allowed him to withdraw his plea, Neal argues that the plea was neither voluntary (because he did not understand the conspiracy charge) nor supported by a sufficient factual basis (because there was no proffer of facts showing an agrеement to distribute cocaine). He “faces an uphill battle,” however, in overcoming the “presumption of verity” that the law attaches to a guilty plea. United States v. Patterson, 576 F.3d 431, 437 (7th Cir. 2009) (internal quotation marks omitted); see also Bennett, 332 F.3d at 1099. And Neal does not overcome that presumption here.
Five factors inform whether a defendant fully understands the nature of the charge to which he admitted guilt: (1) the complexity of the charge; (2) the defendant‘s intelligence, age, and education; (3) whether the defendant was represented by counsel; (4) the district court‘s inquiry during the change of plea hearing and the defendant‘s responses; and (5) the evidence proffered by the government for its factual basis. See United States v. Bradley, 381 F.3d 641, 645–46 (7th Cir. 2004); United States v. LeDonne, 21 F.3d 1418, 1423 (7th Cir. 1994).
First, as to the contention that the plea was uninformed and thus involuntary, the record shows that Neal understood the conspiracy charge. Conspiracy, we have observed, is indeed a complex charge not always or easily understood by a layperson. United States v. Pineda-Buenaventura, 622 F.3d 761, 771 (7th Cir. 2010). At Neal‘s plea, the district court conveyed the essential nature of the offense, explaining that the indictment alleged that Neal did “knowingly, intentionally combine, conspire, and agree with other persons ... to knowingly distribute ... cocaine.” This
Second, we examine Neal‘s intelligence, age, and education. He was twenty-nine at the time of his plea, had an eleventh-grade education, and read and understood English. Nothing that occurred before, during, or after the plea colloquy raised a question on this prong of the inquiry.
The next two factors—concerning counsel and the adequacy of the court‘s colloquy during the plea allocution—do not help Neal. He stresses that, although represented by counsel, he had different counsel at different stages of the proceedings in the district court. Bеyond conveying the observation, though, Neal does not explain how having a series of attorneys impaired the knowing and voluntary nature of his guilty plea. Moreover, before Neal pleaded guilty, the court explained his rights, described the consequences of pleading guilty, and recеived Neal‘s express confirmation that his plea was a free and voluntary act. This colloquy was sufficient to probe whether Neal‘s plea was knowing and voluntary. See United States v. Hernandez, 731 F.3d 666, 671 (7th Cir. 2013).
The main battleground on appeal comes with the fifth factor: the sufficiency of the government‘s factual proffer to support the plea.
After reviewing the plea colloquy and government‘s factual proffer, we see no error in the district court‘s conclusion that sufficient facts supported the plea. The government underscores four facts proffered at the plea colloquy: (1) Neal was involved with others in distributing cocaine; (2) Neal regularly purchased dealer quantities (at least 4–7 ounces each week) of cocaine from “B.B.” over the course of three yеars; (3) Neal, in turn, supplied cocaine to others; and (4) Neal “oftentimes” received and supplied cocaine on fronts. After receiving an opportunity to confer with his counsel in response to this factual proffer, Neal expressly acknowledged its accuracy. He now advances a different view on appeal, arguing that the government‘s proffer failed to show that he conspired with anyone to buy or sell cocaine. Neal is right to observe that the first three facts are not necessarily inconsistent with an ordinary buyer-seller relationship and thus do not alone demonstrate a conspiracy. Conspiracy requires a common criminal goal shared among two or more people. United States v. Long, 748 F.3d 322, 325 (7th Cir. 2014). Indeed, we have underscored that ordinary drug transactions do not entail or reflect a conspiracy, for the buyer‘s only purpose is to buy and the seller‘s only purpose is to sell: the buyer and seller lack a shared criminal goal. See id. at 325; United States v. Colon, 549 F.3d 565, 569 (7th Cir. 2008). But a shared purpose—some unity of enterprise—between a buyer and seller to resell drugs to others can be enough to indicate the requisite common commitment to demonstrate a conspiracy to distribute drugs.
To be sure, “occasional” sales on credit are consistent with an ordinary buyer-seller relationship. United States v. Cruse, 805 F.3d 795, 815 (7th Cir. 2015); see also United States v. Villasenor, 664 F.3d 673, 680 (7th Cir. 2011) (“For example, evidence that a suppliеr extends credit to an individual purchasing small quantities of drugs for personal consumption would not suffice to establish conspiracy.“). But, as we explained in Villasenor, “when a credit sale is combined with certain other characteristics inherent in an ongoing wholesale buyer-seller relationship—i.e., large quantities of drugs, repeat purchases or some other enduring arrangement—the credit sales become sufficient enough to distinguish a conspiracy from a nonconspiratorial buyer-seller relationship.” Id.; see also Cruse, 805 F.3d at 812 (concluding that evidence of a defendant‘s longtime supplying of drugs for resаle within a housing project is sufficient to establish that the defendant knowingly participated in a drug-distribution conspiracy).
During Neal‘s plea colloquy, the government proffered that Neal participated in the acquisition and redistribution of cocaine in transactions that “oftentimes” occurred on credit. The government also represented that its evidence showed that Neal regularly acquired resale quantities of cocaine from the same supplier in Effingham, Illinois. Neal admitted to the accuracy of these specific facts, and they sufficed to support the district court‘s acceptance of his plea to violating
In briefing and during oral argument, Neal‘s counsel emphasized the absence of facts in the sentencing record showing drug transactions on credit. In advancing this position, however, Neal overlooks what he expressly agreed was accurate in pleading guilty—that “oftentimes,” he bought or sold cocaine “on fronts.” Furthermore, Neal has not identified any authority requiring the government to come forward at sentencing with evidence of facts previously admitted during a plea allocution. Neither have we, and we decline to impose such a mandate. See Musa, 946 F.2d at 1302–03 (determining that the government‘s proffered facts and the defendant‘s admissions during his plea allocution were sufficient to support a plea to conspiracy to distribute cocaine, despite the defendant‘s disputes with the quantity distributed аnd his role in the distribution activities).
Finally, Neal contends that he did not affirmatively confirm during the plea allocution that he conspired with anyone. But during his plea colloquy, Neal confirmed not only that he understood the charge of conspiracy, but also that the government‘s factual proffer was sufficient. And at no point during sentencing, despite generally denying participating in a conspiracy, did Neal say anything specifically calling the accuracy of the government‘s proffered evidence into question. If no evidence affirmatively impugning the validity of the plea is offered, or if the allegations advanced in support of withdrawing the plea are conclusory or obviously unreliable, the request may be denied without a hearing. United States v. Jones, 381 F.3d 615, 618 (7th Cir. 2004).
Based on the totality of the circumstances, we conclude that Neal understood the charge against him and his plea had an adequate factual basis. He has not offered a fair and just reason to withdraw his guilty plea, and the district court did not abuse its discretion or otherwise commit
Accordingly, we AFFIRM.