November 13, 2015
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. l:13-cr-00269-l -
Edmond E. Chang, Judge.
Posner, Ripple, and Sykes, Circuit Judges.
Ripple, Circuit Judge.
an extensive sting operation by federal law enforcement of a
drug distribution ring in Chicago, Charles Tankson was
indicted on three counts of distributing 100 grams of heroin
and one count of distributing a detectable amount of heroin,
both in violation of 21 U.S.C. § 841(a)(1). He entered a
written plea declaration without a plea agreement. At
sentencing, the Government introduced Mr. Tankson's
post-arrest statement to authorities in order to establish
significant additional drug quantities as relevant conduct.
The district court credited the statement and, on the basis
of the newly established drug quantities, both increased his
offense level under the quantity table and determined that he
was subject to the career offender guideline. The court
calculated a guidelines range of 360 months to life but
sentenced him below the applicable guidelines range to 228
months' imprisonment. Mr. Tankson now appeals his
sentence. He challenges the district court's reliance on
his post-arrest statement in determining his relevant
conduct. He also contends that the court, in calculating his
criminal history category, erred in including a 1995
conviction. We conclude that the district court was entitled
to credit his statement and to consider the 1995 conviction.
Accordingly, we affirm the judgment of the district court.
and 2013, the FBI investigated a drug and gun trafficking
operation headed by Walter Blackman, a member of the Black
Disciples gang. Blackman's operation distributed heroin,
powder cocaine, and crack in an area on the far south side of
Chicago. The FBI's investigation employed confidential
sources, controlled buys, wiretaps of Blackman's phones,
traditional surveillance, and other information to uncover
the scope of Blackman's activities and to identify the
individuals involved in his network. In the course of this
investigation, the FBI identified Mr. Tankson as
Blackman's heroin supplier. On four occasions between
November 2012 and January 2013, the FBI became aware of
transactions between Mr. Tankson and Blackman. Each involved
at least 100 grams of heroin. The FBI intercepted calls
arranging these purchases and sur-veilled or otherwise
monitored the actual exchanges. On at least one occasion,
Blackman resold the product to a confidential informant;
subsequent testing confirmed the presence of heroin. In April
2013, Mr. Tankson was one of eighteen individuals arrested on
charges related to Blackman's operation.
custody, Mr. Tankson waived, orally and in writing, his right
to consult with an attorney under Miranda v.
Arizona, 384 U.S. 436 (1966). FBI Special Agents Ward
Yoder and Joshua Rongitsch interviewed him on April 4, 2013.
In the interview, he gave the agents significant details
about his relationship with Blackman's operation. The
interview was not recorded, but was summarized by the agents
in a report drafted the following day.
Tankson told the agents that he and Blackman had grown up
together and that both were members of the Black Disciples
gang. He admitted to participating in the four transactions
ultimately charged in the indictment and indicated that three
of them involved 100 grams of heroin and that the fourth
involved 150 grams. When agents played the taped
conversations for Mr. Tankson, he identified his voice and
Blackman's, explained code words, and described his
transactions in detail. He identified a photo of heroin
packaged and sold to Blackman. He also described his being
stopped by law enforcement after a sale to Blackman in which
the authorities had seized $3, 500 in drug proceeds.
addition to his statements about his relationship with and
sales to Blackman, Mr. Tankson also gave statements about his
own heroin suppliers and described more extensive trafficking
activities. He stated that he had sold marijuana growing up,
but began selling powder cocaine and heroin after meeting
"'a Mexican man'" at an auto repair shop
near 1-55 and Western Avenue in Chicago. Although he
described the shop as three blocks south of 1-55 on Western,
Mr. Tankson could not locate the shop on a map or provide any
further detail. For a few months after their initial meeting,
the "Mexican man" sold Mr. Tankson marijuana, and,
when Mr. Tankson earned his trust, began selling him powder
cocaine. Mr. Tank-son admitted to purchasing roughly 1.5
kilograms of powder cocaine from this supplier, until the
supplier was robbed of proceeds and subsequently ceased
dealing drugs. The supplier then introduced Mr. Tankson to a
second supplier, again at the auto repair shop.
Tankson met the second supplier only once. He described him
as Mexican, short, thin, and with a short, black,
military-style haircut. The two men communicated by T-mo-bile
prepaid drop phones that were changed on a frequent basis at
the supplier's request. When Mr. Tankson wanted to make a
purchase, he would call the supplier's phone number and
would be given a time and location for the buy. He recalled
using a Mexican country code to place the calls, although he
could not recall what the code was. He no longer had the
phone with the second supplier's number in his possession
because he had ceased heroin dealing three months earlier,
after the police stopped him and seized the $3, 500. Mr.
Tankson stated that he would only place an order for as much
heroin as he could sell on a specific day because he did not
want to store any additional product. He estimated that he
placed 100 orders with this second supplier over two years,
each for between 300 and 400 grams of heroin. He purchased
the heroin at $6, 500 per 100 grams, which he then resold at
$8, 000. The supplier changed couriers often, but they were
generally other Mexican men in their forties, driving
minivans with car seats or plain work trucks. Mr. Tankson
said that the buys occurred in vehicles by window-to-window
transactions at the Ford City Mall in Cicero, Illinois. He
stopped all trafficking activity in January 2013, after the
police stopped him with the proceeds of a sale to Blackman.
2, 2013, Mr. Tankson was charged in a four-count indictment
with distribution of heroin in violation of 21 U.S.C. §
841(a)(1): three counts of distribution of 100 grams or more
of heroin and one count of distribution of a detectable
amount of heroin.
his pretrial proceedings, Mr. Tankson filed a motion to
suppress his post-arrest statement confessing to the charged
offenses. He contended that he had not received adequate
Miranda warnings and had not made many of the
statements contained in the agents' report. Indeed, he
testified that, in his numerous arrests, he never had been
advised of his Miranda rights by any law enforcement
officer. He admitted trafficking marijuana, but denied
involvement in heroin trafficking. The court held a hearing
at which Mr. Tankson and the interviewing officer, Special
Agent Ward Yoder, each testified. Following the hearing, the
court denied the motion and made a specific finding that
Agent Yoder had testified credibly and Mr. Tankson had
testified falsely. Accordingly, it concluded that the
Government had proved by a preponderance of the evidence that
adequate warnings had been provided and that Mr. Tankson had
knowingly waived them.
days before his trial was set to begin, Mr. Tankson entered a
written plea on all charges, including admitting the factual
basis for the four charged heroin sales. He was silent with
respect to the remainder of his prior confession.
presentence investigation report ("PSR") credited
the post-arrest statement and concluded that Mr. Tankson had
distributed 427.1 grams of heroin to Blackman and an
additional thirty kilograms to other customers between 2011
and 2013. The PSR identified all of the sales as part of an
ongoing pattern of conduct. Although his sales were not all
related to Blackman and his particular ring, they all used a
common accomplice (the second supplier) and an identical
method and had an identical purpose. The probation officer
concluded that the connections were sufficient to draw the
additional thirty kilograms within the relevant conduct
guideline, U.S.S.G. § 1B1.3(a)(2), which resulted in a
base offense level of 38. The PSR also denied credit for
acceptance of responsibility and instead applied a two-level
enhancement for obstruction of justice because Mr. Tankson
had lied about the extent of his criminal conduct in his
suppression hearing testimony and had delayed his plea until
the eve of trial. The PSR found that his 12 criminal history
points qualified him for category V, but also found him to be
a career offender under § 4Bl.l(a) based on two
predicate controlled substance convictions. His offense level
was therefore 40, with a criminal history category of VI. The
resulting Guidelines range was 360 months' to life
sentencing, Mr. Tankson called Special Agent Yoder as well as
a private investigator hired by the defense. The investigator
testified that there were no auto body shops within the
vicinity that Mr. Tankson identified in his post-arrest
statement. On cross-examination, the prosecutor clarified
that Mr. Tankson's statement had referenced an auto
repair shop, and the investigator admitted that
there was one such shop four blocks from the intersection of
1-55 and Western Avenue. (Mr. Tankson had said three.) Mr.
Tankson's counsel asked Special Agent Yoder numerous
questions about the degree of follow-up given to the details
of Mr. Tankson's statement, such as whether he had looked
for a tire shop or tried to identify the suppliers or their
phone numbers. Special Agent Yoder confirmed that they had
not expanded their investigation of the Blackman enterprise
and their existing thirty targets to include Mr.
Tankson's suppliers. The agent said that the decision to
circumvent the investigation was a resource issue. He did
state, however, that he believed Mexican country codes had
been located on the three or four phones seized from Mr.
Tankson at the time of his arrest.
Tankson's counsel argued that, because the relevant
conduct had become the primary driver at sentencing, the
court could use a higher standard of proof than preponderance
of the evidence if it chose. He also contended that the
Government had made no attempt to corroborate Mr.
Tank-son's statements in the post-arrest interview.
Further, he argued that the standard is reliability, and
"[j]ust because Mr. Tankson said it ..., allegedly said
it, if you find that he said it, doesn't mean it is
reliable." He also argued that a common scheme or
plan is not established simply because the defendant engaged
in other drug transactions, citing United States v.
McGowan, 478 F.3d 800 (7th Cir. 2007).
Government argued that the information was reliable because
Mr. Tankson's statement generally was corroborated.
First, his criminal record showed a period of drug
trafficking stretching back more than a decade. Second,
various specific details were confirmed independently by
other evidence including the cash amounts he claimed were
involved, the drug quantities involved in the charged
transactions, and the use of drop phones to contact his
supplier. The Government also maintained that Mr.
Tankson's ability to access large quantities of heroin in
short periods of time suggested that he had an ongoing
relationship with a supplier. Mr. Tankson's statements
also matched his personal details regarding his wife, his
parents, and his gang affiliation. In the Government's
view, his truthfulness about these matters tended to suggest
that he also spoke truthfully to the officers when he
described his relationship with the suppliers and with
Blackman. Finally, the Government submitted that because the
statement was against his own interest it should be deemed
district court, using the preponderance standard, determined
first that Mr. Tankson actually had made the post-arrest
statement and that Agent Yoder had testified credibly about
the interview. The court, noting that it already had found at
the suppression hearing that the procedures followed by Agent
Yoder were appropriate, also found the statement reliable
because it was given in a "noncoercive
environment." In the court's view, that
consideration increased the reliability of the statement
"because ordinarily people do not make incriminating
statements about themselves unless it is
true." The court concluded that Mr. Tankson in
fact did traffic the thirty to forty kilograms of heroin set
forth by the PSR.
to the legal standard for relevant conduct, the court
concluded that it was "part of a common scheme or plan
or, at the very least, the same course of
conduct." The court relied on the fact that it
involved the same drug, from the same supplier, over the same
timeframe as the charged conduct.
Mr. Tankson's eligibility for the career offender
enhancement, the court looked at two Illinois controlled
substance convictions, including one for which Mr. Tankson
had completed his prison term in July 1997. Under U.S.S.G.
§ 4A1.2(e)(1), a predicate offense can be counted only
if the offense or the defendant's incarceration for the
offense occurred within fifteen years of the present offense.
Defense counsel argued that this earlier predicate was too
old to qualify because Mr. Tankson's release from prison
had occurred fifteen years and four months before the date of
the first charged offense. The court disagreed with this
argument and counted both state offenses because the earlier
state offense had occurred within fifteen years of the
earliest relevant conduct related to the crime for
which he was being sentenced. Accordingly, the court
determined that the enhancement applied.
the court concluded that Mr. Tankson was not entitled to a
reduction for acceptance of responsibility and instead would
receive, on the basis of his false testimony at the
suppression hearing, an enhancement for obstruction. Because
of an amendment to the guidelines after the PSR was drafted,
Mr. Tankson's base offense level was 36, and his total
offense level was 38. The court determined that it was
appropriate to sentence him as a career offender (criminal
history category VI), but noted as well that, even without
that device, his range at category V would be the same-360
months' to life imprisonment.
Government requested a below-guidelines sentence of twenty
years. Mr. Tankson requested the ten-year mandatory minimum.
After reviewing the § 3553(a) factors, including Mr.
Tankson's support of twelve children,  his criminal
history, and his accountability for "an enormous
quantity of a powerfully addictive and destructive drug"
that translated to "tens of thousands of individual
uses, " the court imposed a below-guidelines sentence of