In the
United States Court of Appeals
For the Seventh Circuit
No. 99-1307
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEITH JONES,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 CR 419--George W. Lindberg, Judge.
Argued November 3, 1999--Decided April 19, 2000
Before POSNER, Chief Judge, COFFEY and ROVNER,
Circuit Judges.
COFFEY, Circuit Judge. In October 1996, a
federal grand jury sitting in the Northern
District of Illinois returned a seven-count
indictment charging Keith Jones, a former police
officer with the Ford Heights, Illinois, Police
Department (FHPD), with narcotics violations,
extortion, and racketeering./1 Pursuant to a
written plea agreement, counts two through seven
were dismissed and Jones pled guilty to count
one, a charge of racketeering in violation of 18
U.S.C. sec. 1962(c). The trial judge accepted
Jones’s negotiated plea and sentenced him to 168
months’ imprisonment, three years’ supervised
release, a $10,000 fine, and a $50 special
assessment. On appeal, Jones challenges the
imposition of the sentence imposed, arguing that
in determining his base offense level, the judge
made insufficient factual findings regarding the
amount of crack cocaine involved. Jones also
argues that the government should have moved for
a downward departure pursuant to U.S.S.G. sec.
5K1.1 in exchange for his alleged substantial
assistance. We affirm.
I. BACKGROUND
From 1989 to 1996, Jones, while employed at the
FHPD, was far from a model employee and,
apparently like a few other members of the FHPD,
assisted in facilitating rather than prohibiting
drug transactions in the Ford Heights area. As
Jones admitted in the plea agreement, he accepted
pay-offs from drug organizations, distributed
narcotics, and agreed to fix court cases in the
1990’s.
A. The Drug Organizations
From approximately 1991 until 1996, Jones
solicited and received cash payments from various
drug organizations in the Ford Heights area.
Jones took these pay-offs in exchange for his
arranging for the freedom of the drug purveyors
to deal and sell large quantities of narcotics in
Ford Heights without police interference. The
nefarious leaders of five of these different drug
organizations were: James Cross, Randolph Holmes,
Kalonji "Tutu" McMillan, Tim Smith, and Bryant
"Boochie" Greenwood. These malevolent
organizations carved up the Ford Heights area as
if it were their own private candyland, causing
such deterioration in the area that, according to
the government, city buses could no longer travel
through parts of Ford Heights because the streets
were so overrun with drug activity.
In the plea agreement, Jones admitted to
detailed accounts of his activities with respect
to two of the five named drug organizations: The
James Cross and the Randolph Holmes
Organizations.
1. The James Cross Organization
On January 6, 1996, Jones met with James Cross,
one of the area’s most notorious drug dealers.
Prior to this time, James Cross had paid-off the
defendant-Jones on a number of occasions in order
that the officer would not interfere with Cross’s
drug activities. At a meeting held on January 6,
1996, Cross paid Jones $150 under the pretense of
paying-off the officer so the Cross drug
operation could continue to distribute narcotics
in the Ford Heights area without police
interference. Jones was unaware of the fact that,
at this time, Cross was acting as an informant
for the FBI.
2. The Randolph Holmes Organization
From the end of 1994 through 1995, Holmes paid-
off Jones on a number of occasions in order that
his drug operation might continue without police
interference. In addition to the general pay-
offs, Jones, after one of Holmes’s employees had
been arrested and placed in custody, retrieved
the crack cocaine the employee had dropped into
a garbage can outside the police station and,
instead of inventorying the drugs, he sold the
narcotics back to Holmes.
B. The Drug Distribution
Jones, in addition to taking pay-offs from drug
organizations, personally distributed narcotics
in the Ford Heights area. According to the plea
agreement, he and another individual sold
approximately 17.3 grams of crack cocaine in
January 1995.
C. Attempting to Fix Criminal Cases
Also in January 1995, Jones had a number of
conversations with a cooperating witness (CW). In
these conversations, Jones agreed to help the CW
in an upcoming court case/2 and the CW, in turn,
gave him approximately $1,000. Unsatisfied with
the $1,000, Jones later telephoned the CW and
asked him for another $500. That same afternoon,
the CW handed the defendant another $500.
Apparently believing that the well would never
run dry, Jones, in February 1995, contacted the
CW again and asked for even more money to
continue to allegedly assist the CW with the same
criminal case. This time, the CW did not give the
officer any additional money.
In addition to the facts described above, the
plea agreement states that because Jones was
responsible for at least 1.5 kilograms of crack
cocaine, Jones’s base offense level was 38. The
plea agreement, however, also notes that Jones
"disputes this calculation." Furthermore, the
plea agreement also contains a provision stating
that if Jones cooperates fully and truthfully
with the government, it would, in return,
"consider whether Jones’s cooperation qualifies
as ’substantial assistance’ pursuant to U.S.S.G.
sec. 5K1.1 and 18 U.S.C. sec. 3553(e)." The plea
agreement also set forth in writing that Jones
"acknowledges that the determination as to
whether he has provided ’substantial assistance’
rests solely with the government." (emphasis
added).
Following Jones’s guilty plea, the trial judge
ordered the United States Probation Office to
prepare a Presentence Investigation Report (PSR).
The Probation Officer submitted the PSR and
concluded, based on information supplied by the
FBI as well as the U.S. Attorney’s Office, that
Jones should be held accountable for more than
1.5 kilograms of crack cocaine because each of
the drug organizations described above
individually distributed well in excess of 1.5
kilograms of crack cocaine during the time frame
set forth.
At Jones’s sentencing hearing, the defendant
asked the judge not to impose the sentence
recommended in the PSR because, according to
Jones, the PSR incorrectly calculated his base
offense level by improperly attributing more than
1.5 kilograms of crack cocaine to him.
Additionally, Jones argued that he was entitled,
especially in light of his lengthy sentence and
prior military and police service record, to a
downward departure for his alleged substantial
assistance.
The judge rejected both of Jones’s arguments,
concluding that the evidence in the record was
more than sufficient to establish that Jones
should be held accountable for at least 1.5
kilograms of crack cocaine. The court also found
that the government’s refusal to file a motion
under section 5K1.1 for a downward departure was
proper because Jones had not as yet offered any
substantial assistance in any other related
federal cases. The judge did note, however, that
"it is understood by the Court that future
assistance might be considered upon the
recommendation of the Government." Jones appeals.
II. ISSUES
On appeal, Jones argues that: 1) the district
court made insufficient factual findings
regarding the amount of drugs he was accountable
for; and 2) the government should have made a
motion for a downward departure pursuant to
U.S.S.G. sec. 5K1.1 because he, in fact,
"cooperated" with the authorities.
III. ANALYSIS
A. The Amount of Drugs Attributable to Jones for
Sentencing Purposes
1. Standard of Review
We review a district court’s determination of
the amount of narcotics attributable to a
defendant for sentencing purposes under the clear
error standard. See United States v. Johnson, 200
F.3d 529, 537 (7th Cir. 2000). "’The factual
findings of the district court will not be
overturned unless they are clearly erroneous . .
. . Thus, we will reverse the district court’s
conclusion as to quantity of cocaine attributable
to [a] defendant[ ] only if we have a definite
and firm conviction that the district court made
a clear error in sentencing.’" United States v.
Taylor, 72 F.3d 533, 542 (7th Cir. 1995) (quoting
United States v. Mumford, 25 F.3d 461, 465 (7th
Cir. 1994)). That is, clear error can occur with
respect to the amount of drugs attributed to a
defendant when the calculation of the amount of
drugs he is held accountable for is based on
unreliable or insufficient information and,
therefore, lacks an adequate evidentiary basis.
See United States v. Span, 170 F.3d 798, 803 (7th
Cir.), cert. denied, 120 S. Ct. 153 (1999).
As an initial matter, the government argues
that Jones has waived the issue of the judge’s
drug calculation by failing to raise it before
the trial court and that we should, therefore,
review his claim only for plain error. See United
States v. Robinson, 20 F.3d 270, 273 (7th Cir.
1994). We disagree.
In spite of the government’s argument to the
contrary, it is clear to us that Jones did raise
an objection as to the amount of crack cocaine
recommended in the PSR that he be held
accountable for. At the outset of the sentencing
hearing, the judge stated to defense counsel,
"you are arguing the amount . . . , if I
understand." (emphasis added). To which counsel
replied, "[y]es I am, Judge." (emphasis added).
Defense counsel then proceeded to argue that
Jones should not be held accountable for 1.5
kilograms, but rather a much lesser amount. The
government, at the court’s request, proceeded to
give a detailed account of why Jones should be
held accountable for more than 1.5 kilograms of
crack, pointing out that each of the five
separate drug organizations Jones assisted
distributed well in excess of 1.5 kilograms of
crack cocaine. Furthermore, the plea agreement,
as we noted earlier, states that Jones takes
issue with basing his offense level on 1.5
kilograms of crack cocaine. Given that Jones
raised the argument concerning the amount of
drugs he would be held accountable for before the
district court, we disagree with the government’s
contention that the defendant waived his right to
challenge the judge’s calculation as to the
amount of crack cocaine he was responsible for
and, therefore, we review under the clear error
standard.
2. Relevant Conduct
Even though Jones has preserved the issue for
review, he still faces an uphill struggle in
convincing us that the court committed clear
error. In attempting to do just that, Jones
argues that the judge relied upon insufficient
and unreliable evidence in concluding that he was
responsible for at least 1.5 kilograms of crack
cocaine.
Section 1B1.3(a)(1)(B) explains what can be
considered as relevant conduct when determining
a defendant’s base offense level. The Guideline
states that relevant conduct is "all reasonably
foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal
activity, that occurred during the commission of
the offense of conviction, in preparation for
that offense, or in the course of attempting to
avoid detection or responsibility for that
offense." U.S.S.G. sec. 1B1.3(a)(1)(B); see also
United States v. Lezine, 166 F.3d 895, 905-06
(7th Cir. 1999). When calculating the amount of
drugs a defendant is liable for, the judge may
"consider a wide range of information" so long as
it has a "’sufficient indicia of reliability to
support its probable accuracy.’" United States v.
Robinson, 164 F.3d 1068, 1070 (7th Cir.), cert.
denied, 120 S. Ct. 122 (1999) (quoting United
States v. Taylor, 72 F.3d 533, 543 (7th Cir.
1995)). Furthermore, "it is the sentencing judge
alone who, based upon the evidence received,
decides the identity and quantity of the drug
distributed in an offense." United States v.
Branch, 195 F.3d 928, 934 (7th Cir. 1999) (citing
United States v. Edwards, 105 F.3d 1179, 1180
(7th Cir. 1997) (emphasis added).
In this case, not only did the U.S. Attorney’s
Office submit a letter detailing its position
concerning Jones’s accountability for more than
1.5 kilograms of crack cocaine, but the PSR, in
relevant part, states that, "[a]ccording to the
FBI, although a specific amount of cocaine could
not be determined, there is evidence that the
drug establishments of each of the aforementioned
[drug organizations] sold over 1.5 kilograms of
cocaine base" during the time period in question.
(emphasis added). Additionally, the trial court
also received statements from the government
introduced at Jones’s sentencing hearing which
established the scope of the Holmes drug
operation; an operation Jones admitted assisting
for more than a year. The government informed the
judge, without objection from defense counsel,
that testimony at the trial of Jack Davis, the
former FHPD police chief, established that the
Holmes drug operation was a 24-hour a day
operation with shifts of workers. The government
further informed the judge that the drug activity
in the Ford Heights area was so vast that it
interfered with the free and unimpaired flow of
traffic, to the extent that buses were unable to
operate on the street because of the constant
drug activity. According to the government’s
recitation of facts, again received without
objection, the "Holmes drug operation sold easily
in excess of 1.5 kilograms of crack cocaine each
week or two, let alone in the course of a couple
of years." (emphasis added).
At Jones’s sentencing hearing, defense counsel
acknowledged that his client was responsible for
all reasonably foreseeable quantities of drugs
within the scope of the criminal activity that
Jones jointly undertook, but nevertheless still
argued that: "I would ask the court to consider,
particularly in light of my [prior] argument . .
. , and this man’s background, I would ask you to
consider, Judge, a reduction of [the amount of
drugs attributed to Jones] in the interests of
justice and fairness. I think he’s eligible for
it. I think it’s a comfortable reduction [23
grams instead of 1.5 kilograms] that even the
government should be comfortable with." Here, in
stating that Jones should be held accountable for
less than 1.5 kilograms, Jones’s counsel argued
only that "I think the evidence will reflect it."
(emphasis added). We have held that a "defendant
cannot show that a PSR is inaccurate by simply
denying the PSR’s truth. Instead, . . . he must
produce some evidence that ’calls the reliability
or correctness of the alleged facts into question.’"
United States v. Mustread, 42 F.3d 1097, 1102
(7th Cir. 1994) (quoting United States v. Isirov,
986 F.2d 183, 186 (7th Cir. 1993) (emphasis
added). We are of the opinion that Jones has
failed to meet his burden because he has failed
to present any evidence demonstrating that the
facts set forth in the PSR, the information
contained in the U.S. Attorney’s letter, or any
of the other information presented to the
sentencing court was unreliable or inaccurate.
Jones’s argument that "the evidence will reflect
it" amounts to no more than a "bare denial" and
is thus insufficient to call the reliability of
the drug quantity calculation of the PSR, or any
other source the judge relied upon, into
question. See Mustread, 42 F.3d at 1101.
Accordingly, we conclude that the judge did not
commit clear error in holding Jones accountable
for more than 1.5 kilograms of crack cocaine.
B. Downward Departure
1. Standard of Review
It is now well-settled that plea agreements are
contracts, and that the government must therefore
fulfill the promises it makes in exchange for the
defendant’s guilty plea. See United States v.
Jimenez, 992 F.2d 131, 134 (7th Cir. 1993). More
specifically, in circumstances where a defendant
fulfills his part of a plea agreement, and the
government fails to carry out its part of the
plea agreement promising to file a section 5K1.1
motion, the court must give the defendant an
opportunity to withdraw his plea of guilty and go
to trial. See Lezine 166 F.3d at 901. This being
said, it must always be kept in mind that the
government will only be held responsible for
promises it actually made in exchange for the
defendant’s guilty plea. See id./3
2. Section 5K1.1 Motion
Section 5K1.1 provides that "[u]pon motion of
the government stating that the defendant has
provided substantial assistance in the
investigation . . . of another person who has
committed an offense, the court may depart from
the guidelines." In this case, the government did
not make a section 5K1.1 motion because, as the
prosecutor explained at the sentencing hearing,
"I have no authority to make a motion under 5K1.1
at this point. . . . [I]n terms of him [Jones]
cooperating in anybody else’s case, that hasn’t
happened up to this point."/4
The plea agreement Jones signed states that
"Defendant acknowledges that he has read this
Agreement and carefully reviewed each provision
with his attorney. Defendant further acknowledges
that he understands and voluntarily accepts each
and every term and condition of this agreement."
(emphasis added). The plea agreement further
states that:
Defendant agrees he will fully and truthfully
cooperate with the government in any matter in
which he is called upon to cooperate that is
related to or results from the charges in this
case, or in any related matter in which the
government seeks his cooperation.
At the time of sentencing, the government will
recommend a sentence within the applicable
guideline range. In the event that the
defendant’s cooperation is completed prior to the
defendant’s sentencing, the government agrees to
consider whether the cooperation qualifies as
"substantial assistance" pursuant to Guideline
sec. 5K1.1 and 18 U.S.C. sec. 3553(e). . . .
[T]he defendant acknowledges that the
determination as to whether he has provided
"substantial assistance" rests solely with the
government.
(emphasis added). Furthermore, the plea agreement
states that the "defendant will not urge the
Court to depart based on substantial assistance
beyond a level determined appropriate by the
government in the government’s sole discretion."
(emphasis added).
The language of the plea agreement is clear in
that the only promise made by the government is
that it would, in its sole discretion, determine
whether Jones’s alleged cooperation amounted to
substantial assistance. According to the
government, Jones’s cooperation did not qualify
as substantial assistance because while he
acknowledged information concerning his own
personal activity in the criminal conduct, he
failed to assist the government in any of the
other related federal cases. We note that Jones
fails to point to any instance in which his
cooperation or the information he supplied helped
the government make cases against other persons.
In fact, even Jones’s counsel stated during the
sentencing hearing that although Jones was
"willing" to provide assistance, he "didn’t have
a lot of information" about other federal
defendants. In fact, we are of the opinion that
given the wealth of information the government
had against Jones, his cooperation in his own
case was no more than frosting on the cake and
cannot be considered substantial assistance in
any respect.
Based on the record in this case, we are
convinced that the government did not violate the
agreement when it determined, in its sole
discretion, that although Jones did cooperate in
his own case by pleading guilty, he did not
provide substantial assistance meriting a section
5K1.1 downward departure because he failed to
assist the government in any of the other related
federal cases./5
Thus, we are not left with a "definite and firm
conviction" that the district court erroneously
attributed more than 1.5 kilograms of crack
cocaine to Jones. Nor are we persuaded that the
government violated the plea agreement when it
decided not to move for a downward departure
pursuant to U.S.S.G. sec. 5K1.1.
Jones’s sentence is
AFFIRMED.
/1 Count One of the indictment charged Jones with
racketeering in violation of 18 U.S.C. sec.
1962(c). The pattern of Jones’s racketeering
activity includes extortion under color of
official right in violation of 18 U.S.C. sec.
1951, narcotics offenses in violation of 21
U.S.C. sec.sec. 841 & 846, and felony bribery in
violation of 720 Ill. Comp. Stat. 5/33-1(d).
Count Two of the indictment charged Jones with
conspiracy to distribute 17.3 grams of cocaine
base in violation of 21 U.S.C. sec. 841(a)(1) and
18 U.S.C. sec. 2. Count Three charged Jones with
the distribution of 17.3 grams of crack cocaine
in violation of 21 U.S.C. sec. 841(a)(1) and 18
U.S.C. sec. 2. Counts Four, Five, and Seven of
the indictment charged Jones with extortion under
color of official right in violation of 18 U.S.C.
sec. 1951. Count Six of the indictment charged
Jones with aiding and abetting a narcotics
conspiracy in violation of 21 U.S.C. sec. 846 and
18 U.S.C. sec. 2.
/2 The record does not reflect just how Jones would
have been able to influence CW’s state criminal
case.
/3 The government, once again, argues that Jones has
waived the 5K1.1 issue by failing to raise it
before the district court. But we disagree. At
the outset of the sentencing hearing, the judge
clearly stated that he understood that defense
counsel was "requesting a downward departure."
The prosecution, after defense counsel argued
that his client was entitled to a downward
departure, then detailed why it chose not to make
a downward departure under section 5K1.1. Given
that the government and the sentencing judge both
understood that the issue of a 5K1.1 departure
was being argued, Jones, contrary to the
government’s position on appeal, has preserved
this issue for review.
/4 At the sentencing hearing, the government also
suggested that if Jones provided substantial
assistance after his sentencing, it would then
consider making a motion for reduction of
sentence pursuant to Fed. R. Crim. P. 35(b):
"Hopefully, it [substantial assistance] maybe
will happen in the future, and the plea agreement
contemplates that might happen in the future."
/5 Jones also argues that in 1996, the government
orally promised to make a section 5K1.1 motion.
But because Jones did not make this argument at
the sentencing hearing, it is waived. See
Jimenez, 992 F.2d at 134 & n.2.