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United States v. Paulette

United States Court of Appeals, Seventh Circuit

May 30, 2017

United States of America, Plaintiff-Appellee,
Ayiko L. Paulette, Defendant-Appellant.

          Argued March 1, 2017

         Appeal from the United States District Court for the Southern District of Illinois. No. 14-CR-30152-NJR-01 - Nancy J. Rosenstengel, Judge.

          Before Posner, Sykes, and Hamilton, Circuit Judges.

          Hamilton, Circuit Judge.

         Ayiko Paulette helped found the Waverly Crips street gang in East St. Louis, Illinois, during the late 1980s and early 1990s. By 2012 he and the gang were trafficking large amounts of drugs in the area. Before his luck ran out in 2014, Paulette was leading the gang and managing its drug trade. He even controlled the sale of illegal drugs in nearby Washington Park, Illinois, and had many people working for him. Things unraveled, though, after Paulette sold 105 grams of cocaine to an informant during two controlled buys in May 2014. Two months later, authorities were waiting when Paulette and eight travel companions got off a train in St. Louis. They were returning from a supply run to Texas. Seven of them were carrying a total of 2.4 kilograms of cocaine in packages concealed under their clothing.

         Paulette eventually pled guilty to eight counts related to drug trafficking and was sentenced to a total of 300 months in prison. He appeals that sentence, focusing on the count charging him with conspiracy to distribute controlled substances in violation of 21 U.S.C. §§ 846 and 841(a)(1). Paulette disputes the scope of the conspiracy and argues that the district court, in calculating his imprisonment range under the Sentencing Guidelines, wrongly counted certain years of drug dealing as relevant conduct under U.S.S.G. § 1B1.3. We affirm his sentence.

         I. Factual Background

         The indictment charged that Paulette and nine others, along with additional unnamed "persons known and unknown, " had conspired to distribute controlled substances from January 2007 to July 2014. The conspiracy count specifically alleged that, in addition to heroin, the offense had involved at least five kilograms of cocaine and no less than fifty grams of methamphetamine. Despite pleading guilty, Paulette refused to admit precise drug quantities. He also declined to endorse the government's factual basis detailing its position about the timeframe of the conspiracy and the people involved. During the plea colloquy, Paulette said only that he had "sold drugs" and "violated the law." He did acknowledge, however, that in the event of trial the government could produce evidence consistent with its version of the facts. He also admitted in his plea agreement that "the amount of cocaine that was involved in the conspiracy ... was 5 kilograms or more, and the amount of methamphetamine (actual) that was involved in the conspiracy ... was 50 grams or more."

         Later, in the presentence report, the probation officer recounted Paulette's long history of drug dealing, including with persons not specifically identified in the indictment. That history included Paulette's regular cocaine sales to Lucille Brim from about May through November 2011, to Paul Barnett from October 2011 through November 2012, and to Joe Garcia in October 2012. Altogether Paulette had sold more than 4.6 kilograms of cocaine to Brim, Barnett, and Garcia. The probation officer also recapped Paulette's methamphetamine dealings from this same timeframe. Paulette had sold Barnett 396 grams of "ice, " a highly purified form of methamphetamine, also known as crystal methamphetamine, in several transactions between the summer of 2012 and December 2012. Likewise, during most of 2012 Paulette had trafficked ice with Garcia and Marcus Lewis-more than 1.5 kilograms total. Until September of that year, Paulette had been delivering to Lewis directly, but then he arranged for Garcia to begin supplying the ice. Garcia did so until the following month when he was caught with a quantity of ice and cocaine intended for Lewis and Paulette.

         The probation officer also detailed trafficking activity after 2012. That included the March 2013 search of Paulette's house by police officers investigating reports of gunshots in the area. Inside the house the officers found guns, ammunition, and 2.5 grams of cocaine. Also covered in the presentence report were Paillette's sales to Allen Henry, a named co-conspirator. For three months in early 2014, Paulette was providing cocaine to Henry every other day for a total exceeding 2.4 kilograms. He also supplied 56 grams of heroin to Henry over the course of four deals. And as mentioned above, the activity included two controlled buys of cocaine and the supply run to Texas in 2014.

         In calculating the quantity of drugs involved in the conspiracy, the probation officer aggregated the cocaine, ice, and heroin from transactions before 2013 involving Brim, Barnett, Garcia, and Lewis. The probation officer also included amounts from transactions in 2013 and 2014 involving Henry. The probation officer included, too, drugs from the search of Paulette's home, the amounts from the two controlled buys, and the cocaine seized from Paulette's travel companions in July 2014.[1]

         In sum, the probation officer concluded, Paulette had trafficked approximately nine kilograms of cocaine, 56 grams of heroin, and 1.9 kilograms of ice. These amounts add up to 40, 133 kilograms of "marijuana equivalent, " see U.S.S.G. § 2D1.1 cmt. n.8(B), and result in a base offense level of 36. With a total offense level of 43 and a criminal-history category of II, Paillette's guideline sentence would be life in prison.

         Paulette objected to including drug amounts from his transactions before 2013 with Brim, Barnett, Garcia, and Lewis. He argued that his trafficking activity with these individuals was not part of or relevant to the charged conspiracy, which Paulette insisted did not begin until 2013. His lawyer conceded at sentencing, however, that Paulette's objection was "general in nature, meant to preserve this record for appellate purposes." The district court overruled the objection, reasoning that Paulette's drug dealing with those four people, which the court characterized as "jointly undertaken criminal activity, " was relevant conduct under U.S.S.G. § 1B1.3. The court found that because the indictment charged a conspiracy running from January 2007 to July 2014, "that is the offense of conviction and anything back to then would be ...

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