In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1831
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R OLLIE M ITCHELL,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 08 CR 00016—Sarah Evans Barker, Judge.
A RGUED N OVEMBER 4, 2010—D ECIDED M ARCH 24, 2011
Before B AUER, M ANION, and H AMILTON, Circuit Judges.
M ANION, Circuit Judge. Rollie Mitchell was convicted
for distributing cocaine base and sentenced to life im-
prisonment, in large part due to his participation in
the murder of a confidential informant in his case. He
appeals his sentence. We find that the district court
properly calculated the guidelines range and did not
improperly consider Mitchell’s exercise of his Sixth
Amendment right to counsel. We therefore affirm.
2 No. 10-1831
I.
In June 2006, Mitchell sold approximately 144 grams
of cocaine base to Tony Hurd, a police informant in
Richmond, Indiana. Hurd also purchased cocaine base
from two of Mitchell’s associates, Billy Hicks and Tyree
Smith. Mitchell, Hicks, and Smith were all charged
in state court with controlled substance offenses. Fol-
lowing the state charges, the county clerk’s office er-
roneously—and tragically—made public Hurd’s iden-
tity. In July, Hurd began receiving threats such as
“snitch, you’re going to die.” In August, Hurd was mur-
dered—shot eight times while he sat in an automobile
in a gas station parking lot near Dayton, Ohio.
Mitchell was then indicted on federal drug offenses.
Following a jury trial, he was convicted of knowingly
distributing 50 grams or more of cocaine base, in viola-
tion of 21 U.S.C. § 841(a)(1). At the sentencing hearing,
the prosecution presented evidence that Mitchell par-
ticipated in planning and funding Hurd’s murder, al-
though there was no suggestion that he was the actual
triggerman. Special Agent Noel Gaertner of the Drug
Enforcement Agency testified about an interview he
had with informal jailhouse lawyer—and sometime
informant—Edward Bradley. According to Gaertner,
Bradley stated that Mitchell had related to him the plan
for Hurd’s murder: Billy Hicks had recruited a woman
to bring Hurd to a gas station, where he would be
killed; Mitchell’s role in the scheme was supplying
money to pay the shooter. The next witness was
Mitchell’s ex-girlfriend, Heather Clark. She testified
No. 10-1831 3
that shortly after Hurd’s murder, she had overheard
a phone call between Mitchell and someone Mitchell
identified as “Billy.” She then had driven Mitchell (who
was injured at the time) to meet with Billy in person.
Clark could not hear the entire conversation, but she
testified that she overheard Billy say something about
hiring a girl to have “something happen to [her boy-
friend],” and that Mitchell expressed surprise that Billy
would pay someone to do something like that. At the
time of her testimony, Clark assumed that “Billy” was
Billy Hicks, but she did not know Hicks at the time of
the shooting and could not have identified him. Finally,
the prosecution called another jailhouse lawyer, David
Jones, who also testified that Mitchell had discussed
involvement in Hurd’s murder and sought help formul-
ating a defense strategy.
After hearing the evidence, the district court found, by
a preponderance of the evidence, that Mitchell partic-
ipated in Hurd’s murder, and applied the murder cross-
reference, U.S.S.G. § 2D1.1(d)(1). The resultant guidelines
range was life imprisonment. The district court then
considered other sentencing factors, including Mitchell’s
extensive criminal history, his lack of remorse, and his
manipulative character. The court also noted the fact
that Mitchell’s current lawyer was his fourth lawyer.1 It
concluded that Mitchell was “willing to do whatever
1
Specifically, the court stated that Mitchell used lawyers “like
most people use Kleenex . . . us[ing] them up and throw[ing]
them away.”
4 No. 10-1831
is required to make sure that you come out on top . . .
[and] willing to manipulate things and overpower
others so that you can do pretty much what you want
to, and you’re not held accountable for it.” The district
court sentenced Mitchell to life imprisonment and, in
case the sentence was modified to less than life,
10 years’ supervised release. Mitchell appeals only his
sentence.
II.
Mitchell first argues that the district court erred by
enhancing his sentence to life under the murder cross-
reference based solely on a finding by a prepon-
derance of the evidence that Mitchell participated in
the first-degree murder of Hurd. Because Mitchell did
not raise this issue at his sentencing hearing below,
our review is for plain error only. United States v. Ofcky,
237 F.3d 904, 906 (7th Cir. 2001). He concedes that we
have expressly rejected the argument that, post-Booker,
a higher standard of proof is required for substantial
enhancements based on facts not found by a jury.
United States v. Reuter, 463 F.3d 792, 793 (7th Cir. 2006).
But he presents his argument to preserve it for
possible further appeal and to urge us to reconsider
our precedent.
Mitchell calls our attention to a split among the circuits
on this issue, and argues that we should revisit Reuter
not only because it was incorrectly decided, but also
because it does not deserve full precedential weight.
No. 10-1831 5
First, he argues that the holding in Reuter was unneces-
sary because, as the court noted, the evidence there—
including an amply corroborated confession— easily was
enough to meet a clear and convincing standard. Id. at
792. Second, he argues that the issue was not fully
engaged in Reuter because it was presented under the
posture of an Anders brief by the defendant’s lawyer,
who sought to withdraw for want of nonfrivolous
grounds for appeal. Id. This not only reduced the at-
torney’s incentive to fully argue the contrary position,
but also eliminated any incentive for petitions for en banc
review or certiorari.
But we would not overturn circuit precedent merely
because we disagreed—otherwise the entire doctrine of
stare decisis is “out the window.” Tate v. Showboat Marina
Casino P’ship, 431 F.3d 580, 582 (7th Cir. 2005). And both
of Mitchell’s arguments regarding the diminished prece-
dential weight of Reuter fail for the same basic reason:
we have since relied on Reuter in three published opin-
ions. United States v. Pira, 535 F.3d 724, 728 (7th Cir. 2008);
United States v. Santiago, 495 F.3d 820, 824 (7th Cir. 2007);
United States v. McMahan, 495 F.3d 410, 424 (7th Cir. 2007)
(vacated on other grounds by Smith v. United States, 552
U.S. 1091 (2008)). Neither Pira nor McMahan involved
evidence that would necessarily have met a clear and
convincing evidence standard. Moreover, none of the
three cases was decided on an Anders motion. Had this
circuit desired to reconsider Reuter, there has been
ample opportunity. Finally, to the extent that the ex-
istence of a circuit split factors into our decision whether
6 No. 10-1831
to reconsider our precedent, we note that Reuter sits
firmly in the majority camp on this issue.2
Mitchell also argues that the evidence of his involve-
ment in Hurd’s murder did not even meet the preponder-
ance of the evidence standard. We review the district
court’s factual findings on sentencing for clear error.
United States v. McLee, 436 F.3d 751, 765 (7th Cir. 2006).
Mitchell singles out two pieces of evidence for criticism.
First, he attacks as hearsay Special Agent Gaertner’s
testimony that jailhouse informant Edward Bradley
reported that Mitchell had confided that he assisted in
making arrangements to have Hurd killed. But a district
court may consider hearsay at sentencing unless it is
“devoid of any indicia of reliability.” United States v.
Sanchez, 507 F.3d 532, 538 (7th Cir. 2007).
Second, he points out the gaps in the testimony of
Mitchell’s ex-girlfriend, Heather Clark. He argues that,
taken by itself, her testimony establishes only that
Mitchell met with someone named Billy (Clark only
assumed at the time of her testimony that it was
2
Compare United States v. Staten, 466 F.3d 708, 717-20 (9th Cir.
2006) (requiring clear and convincing evidence for dispropor-
tionate impact enhancements) with United States v. Martinez,
525 F.3d 211, 214–15 (2d Cir. 2008) (preponderance of the
evidence); United States v. Fisher, 502 F.3d 293, 301-08 (3d Cir.
2007) (same); United States v. Grubbs, 585 F.3d 793, 799-803 (4th
Cir. 2009) (same); United States v. Brika, 487 F.3d 450, 460-61
(6th Cir. 2007) (same); United States v. Villareal-Amarillas, 562
F.3d 892, 894-98 (8th Cir. 2008) (same).
No. 10-1831 7
Billy Hicks) and that Mitchell was surprised that Billy
had given money to “some girl who was supposed to
have her boyfriend, I assume Tony, something happen
to him.” Even if Mitchell is correct that Clark’s testi-
mony, standing alone, would not be enough to support
the application of the murder cross-reference, the
district court does not consider individual bits of
evidence in isolation. Clark’s testimony is evidence of
Mitchell’s involvement in Hurd’s murder, and thus
lends credibility to Bradley’s statements to Gaertner
recounting Mitchell’s admissions, as well as the in-court
statements of David Jones to the same effect. And based
on the evidence from Bradley and Jones, the inferences
the district court used to fill in the gaps in Clark’s testi-
mony were not unreasonable at all. In short, the district
court’s finding that Mitchell participated in Hurd’s
murder was not clearly erroneous.
Finally, Mitchell argues that the district court abused its
discretion when it considered Mitchell’s use—manipula-
tion in the district court’s view—of four different at-
torneys over the course of the criminal proceedings.
Because Mitchell’s right to choose his lawyers, as well
as the inner workings of his relationships with his
lawyers, is constitutionally protected under the Sixth
Amendment, he argues that the district court erred by
considering his exercise of those rights in calculating
his sentence. Cf. Mitchell v. United States, 526 U.S. 314,
329 (1999) (holding it constitutional error to consider de-
fendant’s exercise of his Fifth Amendment privilege as
a sentencing factor). Mitchell did not raise the argu-
ment below and concedes our review is for plain
8 No. 10-1831
error only. United States v. Ofcky, 237 F.3d 904, 906 (7th Cir.
2001).
We agree that it would be constitutionally problematic
for a district court to punish a defendant at sentencing
for the exercise of his Sixth Amendment right to coun-
sel. But that is not what happened here. While the
district court’s reference to “using lawyers like most
people use Kleenex” could be misinterpreted, we
believe the reference to Mitchell’s relationship with his
lawyers was merely an example of what was readily
apparent from the record: that Mitchell “was willing
to manipulate things and overpower others so that you
can do pretty much what you want to, and you’re not
held accountable for it.”
Moreover, any possible error in the district court’s
reference to the history of Mitchell’s representation by
four successive attorneys would not be plain error be-
cause it was not prejudicial. See United States v. Miller,
601 F.3d 734, 739 (7th Cir. 2010). Mitchell’s interaction
with his attorneys was but one minor factor among
a slew of major factors establishing his manipulative
character and his ultimate sentence. The district court
correctly calculated a guideline range of life imprison-
ment based on the murder cross-reference, and the
finding that Mitchell participated in the murder of a
government witness was clearly the driving factor in
its sentence. The court also found a life sentence appro-
priate because Mitchell’s extensive criminal history
indicated that reform was unlikely at best, and because
Mitchell lacked remorse for both the crime of conviction
No. 10-1831 9
and the murder of a witness. Further, Mitchell points
out that the district court’s knowledge of his interac-
tions with his attorneys came exclusively from the
docket showing the changes of attorney, but this only
suggests that the number of attorneys Mitchell went
through was not a significant factor in the sentence
because the district court likely formed its opinion of
Mitchell’s relationship with his attorneys based on its
evaluation of his character, and not vice versa.
III.
The district court did not clearly err in finding by a
preponderance of the evidence—the proper evidentiary
standard—that Mitchell participated in the murder of
Hurd. Nor did it improperly weigh against Mitchell
his exercise of his Sixth Amendment right to counsel.
The sentence of the district court is therefore A FFIRMED.
3-24-11