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United States v. Dearborn

United States Court of Appeals, Seventh Circuit

October 12, 2017

United States of America, Plaintiff-Appellee,
Bradley D. Dearborn, Defendant-Appellant.

          Argued June 7, 2017

         Appeals from the United States District Court for the Central District of Illinois. No. 12-CR-10017-001 - Michael M. Mihm, Judge.

          Before Ripple, Rovner, and Hamilton, Circuit Judges.

          Hamilton, Circuit Judge.

         Bradley Dearborn pled guilty to distributing crack cocaine. In an earlier appeal, we remanded for correction of certain conditions of supervised release. United States v. Dearborn, No. 14-3032 (7th Cir. Feb. 24, 2015). Now, in Appeal No. 16-3346, Dearborn argues that during resentencing the court should have reconsidered its earlier denial of a motion to suppress evidence. We conclude that Dearborn waived that argument, however, so we affirm the district court's new sentence. Appeal No. 16-3905, which Dearborn briefed pro se, concerns the denial of several motions for an immediate transfer to a federal prison from the county jail where Dearborn was housed temporarily after resentencing. Because Dearborn has since been transferred to a federal prison, we dismiss the pro se appeal as moot.

         In 2011 agents with the Macomb Police Department began investigating whether Dearborn and an associate, Darvey Cochran, sold crack cocaine together. After conducting two controlled buys from Dearborn and six controlled buys from Cochran, the agents obtained warrants from a state court to search two residences Cochran rented. The agents arrested Dearborn at one of the residences, where they also seized 60 grams of crack cocaine and $360 in marked bills that had been used for the controlled buys. Dearborn admitted during a post-arrest interview that he had recently travelled to Chicago to buy about $1, 800 worth of crack cocaine, a portion of which he had already resold in the Macomb area. A federal grand jury later indicted Dearborn with conspiracy to distribute crack cocaine, possession with intent to distribute, and two counts of distribution. 21 U.S.C. §§ 841(a)(1) & 846.

         Dearborn moved to suppress the evidence obtained during the search, arguing that, in describing the investigation in the search warrant application, Officer Lindsey May had omitted relevant details about the reliability of the two informants used in the controlled buys. Dearborn faulted Officer May for not telling the judge who issued the warrant that (1) one of the controlled buys might have occurred one day later than specified in the search warrant application, (2) the police might have used an unduly suggestive procedure in obtaining an identification of Dearborn from one of the informants, (3) the informants had criminal histories and received compensation for helping the police, and (4) certain audio and video recordings referred to in the application were of poor quality. Dearborn requested a hearing under Franks v. Delaware, 438 U.S. 154 (1978), to determine whether the omissions were reckless or intentional. The district court denied that request, finding that the supposed omissions were too insubstantial to have affected the state court's finding of probable cause.

         Dearborn pled guilty to the two distribution counts with no agreement other than the government's oral assurance that it would move to dismiss the remaining two counts. Before sentencing, however, the parties agreed that Dearborn would reserve his right to appeal the denial of his motion to suppress. The district court then sentenced Dearborn to 172 months in prison and six years of supervised release.

         In his initial appeal, however, Dearborn did not challenge the denial of his motion to suppress. Instead, he argued only that the district court erred by imposing sixteen conditions of supervised release without explaining them. The government agreed and moved this court to remand for resentencing in light of United States v. Thompson, 777 F.3d 368 (7th Cir. 2015). This court granted the motion. United States v. Dearborn, No. 14-3032 (7th Cir. Feb. 24, 2015).

         Back in the district court, Dearborn filed a rather expansive if not confusing sentencing memorandum. It included a disclaimer saying that the arguments were being presented at Dearborn's request, contrary to his counsel's advice. And, in fact, most of those arguments seemed to be irrelevant to the issues before the district court on remand. For example, Dearborn argued for the first time that the government obtained his indictment by submitting misleading testimony to the grand jury Dearborn also alluded to Officer May's supposed failure to mention relevant facts to the state judge who issued the search warrant. Dearborn added, without elaboration, that Officer May recently had been found by a state court in an unrelated case to have "made up probable cause in order to secure an arrest." Dearborn offered to submit a copy of the transcript in that case if "necessary" but did not attach it to his memorandum. Dearborn's insistence on including these arguments in his sentencing memorandum is especially puzzling since he did not ask to withdraw his guilty plea. He requested only that the court conduct a full re-sentencing and consider a below-guideline sentence.

         The district court concluded that these arguments "could have been raised earlier" and were irrelevant to the re-sentencing proceedings. The court ultimately imposed another 172-month prison sentence.

         Within days of his resentencing hearing, Dearborn fought with another prisoner at the Fulton County Jail. He was soon charged with attempted murder, aggravated battery, and mob action. After a state judge issued a writ commanding the Marshals Service and the Bureau of Prisons to produce Dearborn for a preliminary hearing, Dearborn asked the federal court to order his immediate transfer to the Federal Correctional Institution in Greenville, Illinois. Dearborn argued that his continued detention at the Fulton County Jail violated his right to due process and the Interstate Agreement on Detainers, 18 U.S.C. App. 2.

         The district court denied Dearborn's motions, reasoning that 18 U.S.C. § 3623 expressly authorized the Bureau of Prisons to detain Dearborn at a state correctional facility pending resolution of the state charges.

         After the resentencing proceedings, Dearborn's attorney filed a notice of appeal on his behalf, and Dearborn separately appealed pro se from the denial of his motions under the Interstate Agreement on Detainers. The two appeals were docketed and briefed separately until the government moved for leave to ...

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