NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 28, 2007
Decided March 30, 2007
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Nos. 06-1803 & 06-1817
UNITED STATES OF AMERICA, Appeals from the United States
Plaintiff-Appellee, District Court for the Southern
District of Indiana, Indianapolis
Division
v.
No. 05 CR 119
JASON W. BLACK and DANNYE T.
MCINTOSH, David F. Hamilton,
Defendants-Appellants. Judge.
ORDER
Jason Black, Dannye McIntosh, and Irving Posada were charged with
possessing marijuana with intent to distribute, 21 U.S.C. § 841(a)(1), and
conspiring to possess marijuana with intent to distribute, id. §§ 846, 841(a)(1), after
they accepted delivery of 464 kilograms of marijuana from an undercover agent.
Posada pleaded guilty, but Black and McIntosh went to trial and were convicted on
both counts. Black challenges his sentence on appeal, while McIntosh’s appointed
counsel moves to withdraw under Anders v. California, 386 U.S. 738 (1967). We
affirm Black’s sentence, allow appointed counsel for McIntosh to withdraw, and
dismiss McIntosh’s appeal.
Nos. 06-1803 & 06-1817 Page 2
I.
In July 2005 Special Agent Oscar Hagelsieb infiltrated an organization that
was smuggling marijuana from Mexico into the United States. He picked up a
shipment of marijuana in El Paso, Texas, and was instructed to deliver it to
Indianapolis, Indiana, where Hagelsieb made contact with Posada.
Hagelsieb and Posada went together to the location appointed for the
delivery—a parking lot in an industrial park—but the first attempt to deliver the
marijuana went awry. A truck pulled into the lot, ostensibly to pick up the
shipment, but the truck sped away without the marijuana after one of its occupants
told Posada, “There are too many cars; it’s too hot.”
Over the next several hours, Hagelsieb and Posada both spoke by telephone
with the suppliers in Mexico and El Paso, and the parties scrambled to make
alternate delivery arrangements. Finally, at around 12:15 a.m., Hagelsieb learned
that Posada was going to return to the parking lot in the industrial park. Hagelsieb
drove back to the lot and began throwing the marijuana, which was packed in
boxes, off the truck. However, when the boxes hit the ground, several broke open at
the corners, releasing a strong odor of marijuana, according to Hagelsieb.
At around 1:00 a.m, a pick-up truck carrying Posada and two other
men—later identified as Black and McIntosh—drove into to the lot. The three men
“feverishly” loaded the boxes onto their truck, under surveillance by authorities the
entire time. Black, who was driving the pick-up truck, almost collided with a patrol
car as he was leaving the parking lot, and then he ran a stop sign. The officer
signaled for Black to pull over, but instead Black led the officer—later joined by at
least three other patrol cars—on a high-speed chase, racing down city streets at
speeds of 60 to 75 m.p.h., running several red lights, and turning corners so
abruptly that several boxes of marijuana flew out of the back of the vehicle. Black
apparently lost control of the truck and, as the truck skidded through a yard, both
he and McIntosh jumped out and fled on foot. They were quickly apprehended and
arrested, along with Posada who was pulled from the back seat of the truck.
Posada, Black, and McIntosh were charged with possessing marijuana with
intent to distribute, 21 U.S.C. § 841(a)(1), and conspiring to possess marijuana with
intent to distribute, id. §§ 846, 841(a)(1). Posada pleaded guilty to both counts and
was sentenced to 46 months’ imprisonment. Black and McIntosh went to trial and
were convicted on both counts. Black was sentenced to 151 months’ imprisonment,
the top of his guidelines range. McIntosh’s guidelines range was much higher than
Nos. 06-1803 & 06-1817 Page 3
Black’s—360 months to life—because he was a career offender. See U.S.S.G.
§ 4B1.1. The district court sentenced him to 360 months.
II.
A. Black
Black raises only one argument on appeal: that the district court should have
deemed him a minor participant and reduced his total offense level by two levels
because he was “only involved for less than one hour in one shipment in a
conspiracy that was likely exponentially larger than this one transaction.” See
U.S.S.G. § 3B1.2(b). Black concedes that he failed to raise this issue before the
district court, but we treat that omission as a forfeiture and review for plain error
because nothing in the record suggests that he made a “knowing and intentional
decision” to forgo the possibility of a § 3B1.2 reduction. United States v.
Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir. 2005).
We conclude, however, that the district court did not plainly err by not
granting Black the § 3B1.2 reduction. As the proponent of the reduction, Black
bears the burden of proving that he was “substantially less culpable than the
average participant” in his offense. U.S.S.G. § 3B1.2 cmt. nn.3(A), 5; see also
United States v. Rodriguez-Cardenas, 362 F.3d 958, 959 (7th Cir. 2004). Black was
not held accountable for any quantities distributed by members of the overarching
conspiracy, so we are less concerned with his culpability in relation to that
enterprise than we are with his culpability as compared to McIntosh and Posada.
There, Black helped load the shipment onto his truck (suggesting that he knew the
shipment involved a substantial quantity of marijuana) and he attempted to evade
the police, leading them on a dangerous chase. These acts exacerbated his
involvement in the offense beyond the point where he could reasonably be called a
“minor participant,” and therefore we find that the district court’s failure to grant
the reduction was not error, let alone plain error. See United States v. McKee, 389
F.3d 697, 700 (7th Cir. 2004) (denying reduction where defendant’s acts of
assistance to conspiracy made him an “essential component” thereof).
B. McIntosh
McIntosh also filed a notice of appeal, but his appointed counsel now seeks to
withdraw under Anders v. California, 386 U.S. 738 (1967), because she is unable to
discern a nonfrivolous issue to pursue. Counsel’s supporting brief is facially
adequate, and McIntosh has responded to our invitation under Circuit Rule 51(b) to
comment on counsel’s submission. We limit our review to the potential issues
Nos. 06-1803 & 06-1817 Page 4
identified in counsel’s brief and McIntosh’s response. See United States v. Schuh,
289 F.3d 968, 973-74 (7th Cir. 2002).
Counsel first considers whether McIntosh could argue that the evidence
adduced at trial was insufficient to support the jury’s findings of guilt on the
conspiracy and possession counts. McIntosh never moved for a judgment of
acquittal, see Fed. R. Crim. P. 29, so we would review such a claim for plain error,
reversing only if “the record is devoid of evidence pointing to guilt” and allowing the
conviction to stand would result in a “manifest miscarriage of justice.” United
States v. Carrillo, 435 F.3d 767, 777 (7th Cir. 2006).
First, the evidence in the record is sufficient on the conspiracy count if it
shows that McIntosh was aware that the goal of the conspiracy was to distribute
marijuana and he acted to further that goal, see United States v. Medina, 430 F.3d
869, 882 (7th Cir. 2005), even if the evidence is entirely circumstantial, see United
States v. Brisk, 171 F.3d 514, 526 (7th Cir. 1999). Here, the evidence showed that
McIntosh called Black four times between 12:23 a.m. and 12:35 a.m., which was
about twenty-five minutes before the three men attempted to pick up the
marijuana. The jury could reasonably infer that McIntosh made these phone calls
in order to recruit Black to use his pick-up truck to retrieve the marijuana.
McIntosh then rode with Black and Posada to the location and proceeded to help
load the boxes—some of which broke open prior to being loaded and all of which had
a “strong marijuana odor”—suggesting that McIntosh knew that the boxes
contained marijuana. This inference is further supported by the fact that McIntosh
jumped out of the fleeing pick-up truck as it was still moving, evaded the police, and
hid underneath a car that was parked nearby. It would, therefore, be frivolous for
McIntosh to argue that the record is devoid of evidence that he knew that there was
a conspiracy to distribute marijuana and that he acted to further that goal by
recruiting a driver and loading the truck.
Second, the evidence is sufficient on the possession count if it shows that
McIntosh possessed the marijuana with the intent to distribute it while knowing
that it was a controlled substance. See United States v. Orozco-Vasquez, 469 F.3d
1101, 1106 (7th Cir. 2006). It would be frivolous to argue in the face of the evidence
described above that McIntosh was unaware that the boxes contained marijuana or
that he did not possess it. Moreover, the jury heard that the shipment weighed
more than 1000 pounds and was worth between $700,000 and $1 million. The
quantity and cost of the drugs amply support an inference that McIntosh’s
possession was with intent to distribute.
McIntosh, in his Rule 51(b) response, argues that the evidence described
above established nothing more than his “mere presence” during the offense. The
Nos. 06-1803 & 06-1817 Page 5
mere presence doctrine forbids the government from asking ask a jury “to convict a
defendant just because he was found in proximity to illegal activity,” United States
v. Garcia, 439 F.3d 363, 368 (7th Cir. 2006), but the doctrine applies only to a
defendant who is present “and nothing more,” United States v. Starks, 309 F.3d
1017, 1026 (7th Cir. 2002). Here, the evidence showed that McIntosh was an active
participant—he recruited Black and loaded some of the boxes onto the truck—and
thus it would be frivolous for McIntosh to try to argue that he was merely present
during the offense.
McIntosh also challenges his conviction on two additional grounds, both of
which are frivolous. First, he proposes to argue that the district court erroneously
admitted hearsay testimony from Agents Hagelsieb and Lievers, both of whom
testified regarding statements Posada made to them. McIntosh forfeited this issue
when his counsel failed to object to the admission of this testimony at trial;
therefore, we review for plain error. See United States v. Taylor, 471 F.3d 832, 841
(7th Cir. 2006). Thus McIntosh would have to show (among other things) that the
admission of the testimony affected his substantial rights, see id., and this he
cannot do because none of the testimony to which he objects has anything to do with
his involvement in the offense. Moreover, Posada is a coconspirator, and the
statements he made to Hagelsieb while arranging delivery of the marijuana were
made “during the course and in furtherance of the conspiracy”; such statements are
not hearsay. Fed. R. Evid. 801(d)(2)(E).
Second, McIntosh raises a virtually unintelligible argument concerning a
“flight instruction.” Indeed, we disfavor flight instructions, which authorize the
jury to draw an inference of guilt from the fact that a suspect fled from authorities,
see United States v. Rodriguez, 53 F.3d 1439, 1451 (7th Cir. 1995); United States v.
Williams, 33 F.3d 876, 879 (7th Cir. 1994), but exactly what McIntosh proposes to
argue here is unclear. Neither party requested a flight instruction, and the district
court did not deliver one. Any argument on this point would be frivolous.
Finally, counsel considers whether McIntosh could argue that his guidelines-
range sentence of 360 months (almost triple what the advisory sentence would have
been were he not a career offender, see U.S.S.G. § 4B1.1) is “greater than necessary”
to serve the purposes of sentencing described in 18 U.S.C. § 3553(a). Counsel notes
that the sentence is presumed reasonable. See United States v. Mykytiuk, 415 F.3d
606, 608 (7th Cir. 2005). The Supreme Court recently granted a writ of certiorari to
consider whether according a presumption of reasonableness to a sentence within
the guidelines range is consistent with United States v. Booker, 543 U.S. 220 (2005),
see United States v. Rita, No. 05-4674, 2006 WL 1144508 (4th Cir. May 1, 2006),
cert. granted, 127 S. Ct. 551 (U.S. Nov. 3, 2006) (No. 06-5754), but regardless of how
Nos. 06-1803 & 06-1817 Page 6
that question is ultimately answered, it would be frivolous for McIntosh to
challenge the reasonableness of his sentence.
At sentencing, McIntosh admitted that he was a career offender, but he
argued for leniency because coconspirators Posada and Black had received much
lower sentences. The district court rejected this argument, commenting on
McIntosh’s extensive criminal history and noting that McIntosh was on supervised
release after serving a long sentence for federal drug offenses when he committed
the instant offense. See United States v. McIntosh, No. 96-CR-0130-02 (S.D. Ind.
Sept. 9, 1997). The district court said that this criminal history accounted for any
“disparity” between McIntosh’s sentence and his coconspirators’ sentences and then
selected the lowest possible sentence within the guidelines’ range. The district
court considered the § 3553(a) factors and articulated its reasons for the sentence
chosen; it would be frivolous to argue that the sentence it chose was unreasonable.
See United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005).
III.
Therefore we affirm Black’s sentence, grant the Anders motion filed by
McIntosh’s counsel, and dismiss McIntosh’s appeal.