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[[COURTLISTENER_SUBOPINION {"id":"3203288","type":"010combined","part":"opinion","author":null,"source_field":"html_with_citations"}]]
In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14‐1363, 14‐1364, 14‐1426 & 14‐2689
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JERRY BROWN, et al.,
Defendants‐Appellants.
____________________
Appeals from the United States District Court for the
Central District of Illinois.
No. 12‐cr‐40031 — Sara Darrow, Judge.
____________________
ARGUED NOVEMBER 9, 2015 — DECIDED MAY 13, 2016
____________________
Before WOOD, Chief Judge, ROVNER, Circuit Judge, and
SHAH, District Judge.*
WOOD, Chief Judge. This case involves a conspiracy to dis‐
tribute crack cocaine in Kewanee, Illinois, and surrounding
areas. Spotting the opportunity for profit, Chicago drug
dealer Frederick Coleman and a colleague began to focus on
* Of the Northern District of Illinois, sitting by designation.
2 Nos. 14‐1363, 14‐1364, 14‐1426 & 14‐2689
Kewanee in late 2008. Eventually, Jerry Brown, Darrion Ca‐
pers, Nicholas Clark, Qubid Coleman, and James Tatum
(among others) joined their operation. The police eventually
caught up with them, and in 2012 they were charged by a
grand jury with conspiracy to distribute and possess with in‐
tent to distribute at least 280 grams of crack cocaine, in viola‐
tion of
21 U.S.C. §§ 841
(a)(1), (b)(1)(A), and 846. Qubid Cole‐
man and Tatum pleaded guilty and are not part of this appeal.
Frederick Coleman, Brown, Capers, and Clark were convicted
after a jury trial and sentenced to varying terms of imprison‐
ment and supervised release. These four have appealed. Be‐
fore this court, they raise challenges to both their convictions
and their sentences. Finding no reversible error, we affirm the
judgments of the district court.
I
Throughout the twelve‐day trial, the government pre‐
sented evidence that Frederick Coleman and his colleague,
Dorian Thompson, had been selling drugs in Chicago for
some time. (From this point, our references to “Coleman”
mean Frederick unless we specify otherwise.) In 2008, they re‐
alized that there were untapped profit opportunities in
Kewanee. They tested the potential new market by jointly
purchasing some powder cocaine, cooking it into crack, and
selling it there. Pleased with the results, they invited Nicholas
Clark to join shortly thereafter; Clark acted as the Kewanee
operation’s first “runner,” helping to deliver the drugs to cus‐
tomers and collect money. Coleman ended his alliance with
Thompson in early 2009, when he entered into a partnership
with Brown. Participating runners included Clark, Capers,
Tatum, Qubid Coleman, and others.
Nos. 14‐1363, 14‐1364, 14‐1426 & 14‐2689 3
The government’s theory was that Coleman and Brown
obtained the cocaine in Chicago, cooked it into crack with the
help of the runners at different locations in Kewanee and Chi‐
cago, and had various members of the conspiracy transport
either the powder or the crack from Chicago to Kewanee.
Members of the conspiracy sometimes elicited assistance
from customers and sometimes compensated those customers
with crack. The conspiracy’s members used Western Union
and MoneyGram to circulate money among sellers, purchas‐
ers, and wholesalers, often handing cash to family members,
friends, or customers and directing that they conduct a trans‐
fer.
Kewanee law enforcement officers became aware of the
operation and conducted eight controlled buys with four of
the conspiracy’s customers. At trial, the government backed
up the controlled‐buy testimony with audio and video re‐
cordings of the exchanges and call logs from the three cell
phones the conspiracy’s members used for drug sales. The
government also presented evidence of the Western Union
and MoneyGram transactions, along with testimony by some
of the people involved in the transactions; jail calls between
arrested members of the conspiracy and members not yet ar‐
rested; evidence of drugs and drug money; and extensive tes‐
timony by members of the conspiracy, eleven customers, and
various other involved witnesses. After the jury convicted, the
court sentenced the four defendants as follows: Coleman and
Brown received mandatory life sentences, to be “followed” by
ten years of supervised release; Capers was sentenced to 188
months’ imprisonment and five years’ supervised release; and
Clark received a 120‐month sentence, followed by ten years of
supervised release.
4 Nos. 14‐1363, 14‐1364, 14‐1426 & 14‐2689
II
A
The defendants raise a number of challenges to the district
court’s handling of the evidence at trial. We review these rul‐
ings for abuse of discretion. United States v. Briscoe,
896 F.2d
1476, 1490
(7th Cir. 1990) (“appellants carry a heavy burden
in challenging the trial court’s evidentiary rulings on appeal
because a reviewing court gives special deference to the evi‐
dentiary rulings of the trial court.”
Id.
at 1489–90 (internal
quotation marks omitted)). They also assert that the cumula‐
tive errors were so serious that they did not receive the due
process that is guaranteed by the Constitution; we review this
de novo. Finally, Coleman, Brown, and Capers challenge vari‐
ous aspects of their sentences; we review these arguments us‐
ing a mixed standard of review.
1
Before trial, the defendants learned that the government
intended to use the MoneyGram and Western Union records
in its case‐in‐chief. They filed a motion in limine to prevent
this, but they were unsuccessful, and so they objected again
at trial. The government had obtained through subpoenas the
records of the two companies showing wire transfer transac‐
tions between the defendants and others allegedly involved
in the conspiracy. The lead investigator in the case, Inspector
Nicholas Welgat, created summary exhibits from the subpoe‐
naed records. The summaries grouped transactions by sender
and listed the amount of money sent, the date of the transac‐
tion, the sender’s name and address, the recipient’s name, and
the agency from which the funds were sent. The exhibits in‐
cluded the sender’s phone number and recipient’s address for
Nos. 14‐1363, 14‐1364, 14‐1426 & 14‐2689 5
some transactions. The government witnesses testified that
the summary exhibits were generally consistent with their
recollections of the drug transactions in which they had en‐
gaged with the defendants, and the government later moved
to admit the actual exhibits through Inspector Welgat.
The court admitted the exhibits as summaries of records
of regularly conducted activity, colloquially known as “busi‐
ness records.” Federal Rule of Evidence 1006 authorizes a pro‐
ponent of evidence to use a “summary, chart, or calculation to
prove the content of voluminous writings, recordings, or pho‐
tographs that cannot be conveniently examined in court,”
provided that the proponent makes the content available to
the other party. Federal Rule of Evidence 803(6) allows admis‐
sion of hearsay documents that record a “regularly conducted
activity” where (A) the records are made “at or near the time”
of the activity “by—or from information transmitted by—
someone with knowledge;” (B) the records are “kept in the
course of a regularly conducted activity of a business, organ‐
ization, occupation, or calling;” (C) “making the record [i]s a
regular practice of that activity;” (D) “all these conditions are
shown by the testimony of the custodian or another qualified
witness, or by a certification;” and (E) “neither the source of
the information nor the method or circumstances of prepara‐
tion indicate a lack of trustworthiness.” Federal Rule of Evi‐
dence 902(11) identifies “certified domestic records of a regu‐
larly conducted activity” as “self‐authenticating” where the
custodian or other qualified person does the certifying in
compliance with a federal statute or Supreme Court rule.
The defendants maintain that the involvement of a third
party in creating the MoneyGram and Western Union rec‐
6 Nos. 14‐1363, 14‐1364, 14‐1426 & 14‐2689
ords—namely, the customer making the wire transfer—re‐
moves those records from the ambit of Rule 803(6). But third‐
party involvement is not inevitably fatal. In United States v.
Emenogha,
1 F.3d 473, 484
(7th Cir. 1993), we found that “addi‐
tional sources of corroboration” can “cure the hearsay prob‐
lem” that a third party’s involvement in creating a business
record introduces. There, the defendant argued that bank rec‐
ords of drug‐money transactions purportedly conducted by
him were inadmissible because an imposter might have been
impersonating him at the bank.
We found his argument unavailing because the bank pres‐
ident testified that he recognized the defendant as a customer,
and the bank’s regular practice was to request an identifica‐
tion and account number before completing a transaction.
Id.
We contrasted the situation in Johnson v. Lutz,
170 N.E. 517
(N.Y. 1930), a New York case in which the state court found a
police report inadmissible as a business record because it in‐
cluded information provided by a bystander, rather than facts
personally known by the officer making the record. It was
critical for admissibility in Emenogha that the bank required
an ID and had a witness who could confirm the identity.
1 F.3d
at 484
(comparing United States v. Lieberman,
637 F.2d 95, 100
(2nd Cir. 1980), where the Second Circuit denied admission of
a hotel guest card, part of which was filled out by the guest,
because it was not the hotel’s practice to request identification;
with United States v. Zapata,
871 F.2d 616
, 625–26 (7th Cir. 1989)
(abrogated on other grounds) (registration card admissible
because the hotel’s practice was to verify identification and
witnesses testified that they met the person at the hotel).
The First and Tenth Circuits have directly addressed West‐
ern Union records. The Tenth Circuit found Western Union
Nos. 14‐1363, 14‐1364, 14‐1426 & 14‐2689 7
records inadmissible to prove the identity of the senders of
money, because no identification was required to send money,
but the records could be used to prove the identity of recipi‐
ents because identification was required to receive the money.
United States v. McIntyre,
997 F.2d 687
, 701–02 (10th Cir. 1993).
The First Circuit similarly concluded that Western Union rec‐
ords provided by the company could not be admitted to
prove the identity and address of the sender. United States v.
Vigneau,
187 F.3d 70, 77
(1st Cir. 1999).
Taking all this into account, we find no abuse of discretion
in the district court’s decision to admit the Western Union and
MoneyGram records here. We agree with the defendants that
certification alone would not be enough: a Rule 902(11) certi‐
fication cannot overcome Rule 803(6)’s requirement that the
records must be trustworthy. And a government witness tes‐
tified that Western Union and MoneyGram did not require
identification for transfers of less than $1,000, meaning that
one of the forms of corroboration used in Emenogha and Za‐
pata was not present for at least some of the transactions. But
the record contains more than certifications: we have the tes‐
timony of the witnesses about their recollections of actually
conducting the transactions, and that testimony fills any gap
left by the certifications.
We grant that the records and the testimony were not fully
consistent: some witnesses testified that the summaries in‐
cluded some transactions that they recalled conducting and
some that they did not. But we need not conduct a case‐by‐
case inquiry into each transaction. Any inconsistencies go to
the weight of the evidence, not its admissibility. See United
States v. Keplinger,
776 F.2d 678, 693
(7th Cir. 1985) (“The de‐
terminations whether a proper foundation has been laid for
8 Nos. 14‐1363, 14‐1364, 14‐1426 & 14‐2689
application of the business records exception to a particular
document and whether the circumstances of the document’s
preparation indicate untrustworthiness are within the discre‐
tion of the trial court.”); United States v. Towns,
718 F.3d 404,
410
(5th Cir. 2013) (finding no abuse of discretion in admission
of pharmacy drug purchase records, noting that a driver’s li‐
cense was required for the purchases and a signature was ob‐
tained for many of them, and “Towns was free to make argu‐
ments at trial that he was not the actual purchaser of the
drugs, but accuracy does not control admissibility.”). The gov‐
ernment’s use here of summary charts that were not fully cor‐
roborated by their witnesses may have been sloppy, but the
evidence was reliable enough to reach the jury. Any further
discounting was for the jury to make.
2
We add that even if the district court’s admission of the
summary exhibits was error, that error was harmless. See FED.
R. CRIM. P. 52(a). Improper admission of evidence is harmless
where the remaining evidence of guilt is overwhelming.
United States v. Hanson,
994 F.2d 403, 407
(7th Cir. 1993). Harm
results only when there is a “substantial and injurious effect
or influence on the jury’s verdict.”
Id.
(internal quotations
marks omitted).
The defendants paint the MoneyGram and Western Union
records as the “lynchpin” of the government’s case and thus,
if admitted improperly, harmful. But the evidence of their
guilt was overwhelming. It included testimony from more
than a dozen witnesses who purchased crack cocaine or
worked with the defendants and knew the day‐to‐day opera‐
tions of the conspiracy, eight controlled buys monitored by
law enforcement, and phone records and recorded jail calls in
Nos. 14‐1363, 14‐1364, 14‐1426 & 14‐2689 9
which members of the conspiracy plotted to cover up and
maintain the conspiracy after their arrest. This is more than
enough to render any error with regard to the summaries
harmless.
B
Defendants raise a separate Confrontation Clause objec‐
tion to the district court’s admission of testimony about the
Western Union and MoneyGram records. Because this claim
was not raised at trial, we review it only for plain error. See
FED. R. CRIM. P. 52(b). Reversal is appropriate only if there was
a “clear or obvious error that affected the outcome of the
trial.” United States v. Dumeisi,
424 F.3d 566, 576
(7th Cir. 2005).
Because the records in question were nontestimonial, there
was no error of this type, let alone plain error.
The Confrontation Clause applies only to testimonial evi‐
dence. U.S. Const. amend. VI; Crawford v. Washington,
541 U.S.
36, 68
(2004) (“Where testimonial evidence is at issue, how‐
ever, the Sixth Amendment demands what the common law
required: unavailability and a prior opportunity for cross‐ex‐
amination.”). Testimonial statements are formal statements to
government officers, or formalized testimonial materials such
as affidavits, depositions, and the like, that are destined to be
used in judicial proceedings. See Crawford, 541 U.S. at 51–52;
see also Bullcoming v. New Mexico,
564 U.S. 647
(2011) (blood‐
alcohol report testimonial); Michigan v. Bryant,
562 U.S. 344
(2011) (statements to police during ongoing emergency not
testimonial); Melendez‐Diaz v. Massachusetts,
557 U.S. 305
, 309–
10 (2009) (certificates from laboratory analysts identifying a
narcotic substance testimonial); Davis v. Washington,
547 U.S.
813
, 829–30 (2006) (statements made to 911 operator not testi‐
monial).
10 Nos. 14‐1363, 14‐1364, 14‐1426 & 14‐2689
Business records are generally nontestimonial. Crawford,
541 U.S. at 56
. Logically, if they are made in the ordinary
course of business, then they are not made for the purpose of
later prosecution.
Id.
In United States v. Ellis,
460 F.3d 920, 926,
927
(7th Cir. 2006), we held that hospital blood and urine test
records were admissible as business records because they
were made “in the ordinary course of business,” were “rou‐
tine,” and were “too far removed from the principal evil at
which the Confrontation Clause was directed to be consid‐
ered testimonial.”
Id.
(internal quotation marks omitted). The
same can be said about the Western Union and MoneyGram
records. They were routine and prepared in the ordinary
course of business, not in anticipation of prosecution. The rec‐
ords were therefore nontestimonial, and the defendants were
not entitled under the Sixth Amendment to confront the per‐
sons who created them.
C
The defendants also raised claims under Brady v. Mary‐
land,
373 U.S. 83
(1963), in their motion for a new trial under
Federal Rule of Criminal Procedure 33—a motion that the dis‐
trict court denied. We review this ruling for abuse of discre‐
tion. United States v. Stallworth,
656 F.3d 721, 731
(7th Cir.
2011). To prevail, defendants need to show “(1) that the pros‐
ecution suppressed evidence; (2) that the evidence was favor‐
able to the defendant; and (3) that it [was] material to an issue
at trial.”
Id.
Material evidence is that which creates a “reason‐
able probability that, had [it] been disclosed to the defense,
the result of the proceeding would have been different.”
Id.
Even when evidence material to the credibility of government
witnesses is made available as late as during trial, there is still
no Brady violation as long as the defense has “an appropriate
Nos. 14‐1363, 14‐1364, 14‐1426 & 14‐2689 11
opportunity to incorporate that information into their cross‐
examination … .” United States v. Knight,
342 F.3d 697, 706
(7th
Cir. 2003). Defendants allege several Brady violations: the sup‐
pression of information related to witness John Hart, the fail‐
ure to inform the defense that government witness Ed Kolata
had suffered a brain injury, and the suppression of infor‐
mation about inconsistent grand jury testimony by witnesses
Heather Murphey and Jennifer Ince.
After being found with crack paraphernalia, Hart agreed
to become a confidential source for the government. As a re‐
sult of his cooperation, he was not charged. Defendants were
notified of this fact in a September 29, 2012, letter; Hart testi‐
fied at trial on May 20, 2013. There he denied that he had been
arrested and that he had received any benefit in exchange for
being a confidential informant. The district court decided that
he had not perjured himself. Defendants argue that the gov‐
ernment violated Brady by misleading defense counsel about
who would be the best witness to impeach Hart. But the de‐
fendants knew that Hart had lied, and the prosecution has no
obligation to assist the defense in crafting a trial strategy. Be‐
cause the government did not suppress information about
Hart’s arrest, there was no Brady violation.
Neither did the government suppress information about
Kolata’s brain injury: it was not aware of the injury until Ko‐
lata’s questioning on cross‐examination. The defendants have
pointed to no evidence that would suggest that the govern‐
ment became aware of the injury any earlier than the defense
did. Additionally, defense counsel was able to cross‐examine
Kolata fully about the details of his injury.
The defendants next allege that the government sup‐
pressed the fact that Murphey and Ince lied to the grand jury
12 Nos. 14‐1363, 14‐1364, 14‐1426 & 14‐2689
about when and how often they purchased crack from the de‐
fendants. The defendants point to testimony during Welgat’s
cross‐examination that reveals that he was aware of what the
two witnesses had said to the grand jury. There is no evidence,
however, indicating that Welgat knew that the women in‐
tended to tell a different story at trial. Without that, there is
no suppression and no Brady violation. Once again, the de‐
fendants were able to explore these witnesses’ inconsistencies
on cross‐examination.
The defendants raise one last perplexing Brady theory: that
the government failed to disclose statements by defendants
that it intended to use at trial involving threats to witnesses.
But Brady material must be exculpatory. See United States v.
Grintjes,
237 F.3d 876, 880
(7th Cir. 2001). These statements are
about as far from exculpatory as one can imagine. They are
not covered by Brady.
D
Cumulative trial error that is so serious that the proceed‐
ing violated the defendant’s due process rights can be demon‐
strated by (1) identifying at least two errors committed during
trial and (2) establishing that the errors considered together,
along with the record, so infected the jury’s deliberation that
they denied the appellants a fundamentally fair trial. United
States v. Avila,
557 F.3d 809
, 821–22 (7th Cir. 2009). Even if this
standard is met, reversal is not warranted if the error was
harmless “beyond a reasonable doubt.” Chapman v. California,
386 U.S. 18, 24
(1967). Because the defendants have demon‐
strated at most one colorable trial error—improper admission
of summary exhibits of MoneyGram and Western Union
transfer records—we have no “cumulative” error to consider.
Furthermore, the evidence of guilt was strong enough that
Nos. 14‐1363, 14‐1364, 14‐1426 & 14‐2689 13
even if the defendants were correct about all their alleged er‐
rors, they cannot prevail: any error was harmless beyond a
reasonable doubt.
III
We now turn to Brown, Coleman, and Capers’s challenges
to their sentences. We review the district court’s determina‐
tion of facts at sentencing for clear error, and its interpretation
of the guidelines and other statutory enhancements de novo.
United States v. Hinds,
770 F.3d 658, 662
(7th Cir. 2014); United
States v. Reeves,
695 F.3d 637, 639
(7th Cir. 2012).
A
Brown and Coleman argue that their sentences—manda‐
tory life terms because of prior drug felonies pursuant to 21
U.S.C. § 841—are improper because a jury did not find the ex‐
istence of their prior felonies. This argument is foreclosed by
Almendarez‐Torres v. United States,
523 U.S. 224
(1998) (reject‐
ing petitioner’s claim that commission of a prior crime is an
element of the offense that a jury must find beyond a reason‐
able doubt.). Almendarez‐Torres remains good law after Alleyne
v. United States,
133 S. Ct. 2151
(2013) (holding that all facts
that increase a mandatory minimum sentence must be found
by jury), and so we are bound to follow it.
B
Capers was sentenced to 188 months, based on an offense
level of 34 and a criminal history category of III, which yields
a Sentencing Guidelines range of 188 to 235 months. His of‐
fense level was based on his conviction of conspiracy and the
court’s calculation that he was responsible for the sale of be‐
tween 840 grams and 2.8 kilograms of cocaine base. Capers
14 Nos. 14‐1363, 14‐1364, 14‐1426 & 14‐2689
argues that the district court made two errors. First, he con‐
tends that it miscalculated the quantity of cocaine base at‐
tributable to him as a member of the conspiracy. Second, he
maintains that because he was a member of the conspiracy for
only about four months, his sentence should not be longer
than the 120‐month sentence given to Clark, who was in‐
volved in the conspiracy for more time.
Although the jury convicted Capers of a crime involving
only a named quantity of “at least 280 grams” of crack co‐
caine, the district court was required at sentencing to estimate
the actual quantity of drugs attributable to him. United States
v. Booker,
543 U.S. 220
(2005). The court may use trial testi‐
mony, testimony at sentencing, and other evidence to make
the determination; we review the calculation for clear error.
See, e.g., United States v. Bautista,
532 F.3d 667, 674
(7th Cir.
2008).
The court held all four defendants responsible for the
same quantity of cocaine base. The court was purposefully
conservative, basing its calculation on one year of the three‐
year conspiracy. It estimated that the defendants sold approx‐
imately $30,000 worth of crack cocaine each week, in $500
bundles that contained at a minimum 2.5 grams of crack. This
amounted to 150 grams of crack per week. Based on Capers’s
16‐week involvement in the conspiracy, the court attributed
2.4 kilograms of crack cocaine to him.
The Sentencing Guidelines commentary provides that a
defendant is liable for all of the drugs being sold for which he
is directly involved, as well as all other sales which are rea‐
sonably foreseeable and within the scope of the conspiracy.
U.S.S.G. § 1B1.3(a)(1)(B) cmt. n.2 (2012). For Capers’s sentence
to stand, there must be sufficient evidence to support not only
Nos. 14‐1363, 14‐1364, 14‐1426 & 14‐2689 15
the district court’s finding of the quantity of drugs being sold
by the whole operation every week, but also its assessment of
Capers’s role in the operation. Capers argues that the only di‐
rect evidence implicating him involves a maximum of ap‐
proximately 8.5 grams of cocaine—the sum of the drugs in‐
volved in a controlled buy in which he participated and the
drugs and cash later found on him at arrest. He urges that the
evidence does not show that the extent of the sales operation
was foreseeable to him.
The government tried to bolster the trial record with testi‐
mony at sentencing from Qubid Coleman, who pleaded
guilty to his involvement in the conspiracy, to demonstrate
Capers’s role. But the court found that Qubid lacked credibil‐
ity and declared that it would not rely on his account. Rather,
the court chose to rely on Tatum’s trial testimony about the
quantity of drugs sold.
Tatum testified that he had not “necessarily conspired
with” Capers and had not met him before to their arrest. Ac‐
cording to the Presentence Investigation Report (PSR), Qubid
Coleman, Tatum, Clark, and Capers were all “runners” in the
conspiracy. They slept at customers’ homes and sometimes
cooked powder into crack cocaine and stored it with the cus‐
tomers as well. But Tatum and Capers were never “runners”
at the same time: Capers filled the position Tatum left open.
The PSR stated that “[a] role reduction [for Capers] is not war‐
ranted because the defendant was an essential part of the dis‐
tribution network and had complete knowledge of the scope
of the conspiracy.”
At sentencing, the district court judge resolved the quan‐
tity issue with these comments:
16 Nos. 14‐1363, 14‐1364, 14‐1426 & 14‐2689
I think that there’s a few different theories to ar‐
gue why the full weight of the conspiracy would
be appropriate to attribute to Mr. Capers, but I
don’t think it’s necessary. I still think he’s appro‐
priately at a level 34 because if you take 150
grams per week times 16 weeks, that’s 2.4 kilos
which falls squarely within offense level of 34.
So, based on that, the Court takes the proba‐
tion’s position … and the appropriate level is 34.
The court declined to attribute the whole length of the con‐
spiracy to Capers, but it did attribute the full drug amounts
involved during the 16 weeks of his involvement.
The court otherwise adopted the PSR, but neither the court
nor the PSR identified a specific evidentiary basis for attrib‐
uting the whole scope of the conspiracy to Capers. Nonethe‐
less, there is sufficient evidence in the record to conclude that
Capers was aware of the scope of the conspiracy, and the dis‐
trict court did not commit clear error by adopting the PSR’s
conclusion to that effect. Tatum testified at trial that he and
“Money” (Qubid Coleman) sold about $10,000 of crack co‐
caine per day at the height of his involvement in the conspir‐
acy. Tatum received drugs directly from the leaders—“Black”
(Frederick Coleman) and “Jake” (Jerry Brown)—or picked
them up from a stash house. Frederick Coleman and Brown
would put customers in touch with Tatum and Qubid Cole‐
man through Tatum’s personal cell phone or through a sepa‐
rate phone that was just for the drug sales. It was reasonable
for the district court to adopt the PSR’s finding that Capers
was a participant and that Capers’s involvement resembled
Tatum’s; this in turn supports the finding that Capers was
aware of the full scope of the conspiracy.
Nos. 14‐1363, 14‐1364, 14‐1426 & 14‐2689 17
Capers also contends that his sentence is unreasonably
long as a substantive matter, because it exceeds the term that
Clark received. A sentencing court must consider “the need to
avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar
conduct.”
18 U.S.C. § 3553
(a)(6). Some sentencing disparities
are reasonable, and others are not. United States v. Meza,
127
F.3d 545, 549
(7th Cir. 1996). Disparities between co‐defend‐
ants that result from use of the Guidelines are reasonable.
Id.
An unreasonable disparity is “a disparity in sentences that
cannot be explained by a comparison of each defendant
against the Guidelines as a set of rules.”
Id. at 550
.
The district court found Capers and Clark responsible for
the same quantity of crack cocaine: between 840 grams and
2.4 kilograms. Clark’s sentence was lower because his crimi‐
nal history score was lower and he was eligible for U.S.S.G. §
5C1.2(a)’s “safety‐valve” provision. The court also found that
Clark was involved in the conspiracy “to a lesser degree” than
Capers. A sentence “within a properly ascertained
range … cannot be treated as unreasonable by reference to
3553(a)(6).” United States v. Boscarino,
437 F.3d 634, 638
(7th
Cir. 2006). Because the district court did not commit clear er‐
ror in calculating the drug quantity attributable to Capers,
and the resulting Guidelines range differed for Capers and
Clark because of the other factors, we reject Capers’s argu‐
ment that his sentence was unreasonably long.
IV
We AFFIRM the judgments of the district court in each de‐
fendant’s case.Case Information
- Court
- 7th Cir.
- Decision Date
- May 13, 2016
- Status
- Precedential