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United States v. Tankson

United States Court of Appeals, Seventh Circuit

September 12, 2016

United States of America, Plaintiff-Appellee,
v.
Charles Tankson, Defendant-Appellant.

          Argued November 13, 2015

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. l:13-cr-00269-l - Edmond E. Chang, Judge.

          Before Posner, Ripple, and Sykes, Circuit Judges.

          Ripple, Circuit Judge.

         Following 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.

         I

         BACKGROUND

         A.

         In 2012 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.

         Once in 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.

         Mr. 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.

         In 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.[1] 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.

         Mr. 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.

         B.

         On May 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.

         During 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.

         Two 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.

         The 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 imprisonment.

         At 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.[2]

         Mr. 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."[3] 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).[4]

         The 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 more reliable.

         The 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."[5] 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."[6] The court concluded that Mr. Tankson in fact did traffic the thirty to forty kilograms of heroin set forth by the PSR.

         Turning 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."[7] The court relied on the fact that it involved the same drug, from the same supplier, over the same timeframe as the charged conduct.

         Addressing 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.

         Finally, 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.

         The 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, [8] 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 nineteen ...


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