United States v. Bootsy N. Cleggett, Also Known as Bootsey Cleggett

179 F.3d 1051, 1999 U.S. App. LEXIS 11892, 1999 WL 371674
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 9, 1999
Docket98-3456
StatusPublished
Cited by11 cases

This text of 179 F.3d 1051 (United States v. Bootsy N. Cleggett, Also Known as Bootsey Cleggett) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Bootsy N. Cleggett, Also Known as Bootsey Cleggett, 179 F.3d 1051, 1999 U.S. App. LEXIS 11892, 1999 WL 371674 (7th Cir. 1999).

Opinion

BAUER, Circuit Judge.

On April 23, 1998, a federal grand jury indicted Bootsy Cleggett (“Cleggett”) on a single count of conspiracy to distribute crack cocaine (“crack”), in violation of 21 U.S.C. § 846. On July 2, Cleggett pled guilty to the charges in the indictment. At sentencing, the district court found that Cleggett was responsible for dealing ap *1053 proximately 1.7 kilograms of crack from April of 1996 to April of 1998. The district court determined that Cleggett’s base offense level was 35 and his criminal history category was III. Accordingly, he was sentenced to 228 months of imprisonment, a five-year term of supervised release, and fines and special assessments. We affirm.

I. BackgRound

In April of 1998, a drug task force working in the Centralia, Illinois area made several controlled buys of crack from a room in the Home Motel. The motel room was occupied by Cleggett and his brother, Gregory Cleggett (“Gregory”). On April 10, FBI agents obtained a search warrant and entered the motel room, where they found Cleggett and Gregory, along with several rocks of crack, multiple plastic baggies, and approximately $1,900 in cash. Both men were arrested.

Both Cleggett and Gregory made post-arrest statements to the agents. Cleggett provided the agents with the names of his suppliers, contacts, and customers, as well as information regarding the quantity of drugs that he bought and sold. He also informed the agents that he sold crack sporadically between 1988 and 1995 and that between April of 1996 and April of 1998, he sold approximately one ounce of crack per week on a routine basis. In Gregory’s post-arrest statement, he corroborated many of the statements made by Cleggett, such as the names of contacts, suppliers, and customers and the quantity of crack that he and his brother sold.

At the sentencing hearing, Cleggett testified that a small portion of his post-arrest statement was unreliable because, at the time of his statement, he was under the influence of crack, heroin, and alcohol. Specifically, Cleggett recanted the portion of his statement in which he said that he had been selling crack for two years prior to his arrest. Cleggett then stated that he did not begin to sell crack until October of 1997 (whereas he previously stated that he began selling in April of 1996).

FBI agent Jerry Granderson conducted Cleggett’s post-arrest interview and testified for the government at the sentencing hearing. Granderson testified that he was familiar with the physical signs of persons who were under the influence of crack, heroin, and alcohol, and that at the time of Cleggett’s post-arrest statement, he did not appear to exhibit any of the signs of a, person under the influence of these substances. In fact, Granderson stated that Cleggett had no difficulty responding to his questions. Granderson also testified that he met with both Cleggett and Gregory subsequent to their arrests and that both men affirmed the accuracy of the facts in the post-arrest statements (except for one extraneous matter, which is not relevant to this appeal).

The district court found Cleggett’s recantation of his post-arrest statement unconvincing and determined that, for sentencing purposes, Cleggett’s statement that he sold approximately one ounce of crack per week from April of 1996 to April of 1998 (104 weeks), should be used in determining the length of time that Cleg-gett sold crack. Working from a period of 104 weeks, the district court subtracted 28 weeks upon finding that Cleggett was in prison from April of 1996 to October of 1996. The court subtracted another 12 weeks upon finding that Cleggett was in Arkansas for a three-month period. The court subtracted several additional months and arrived at a total of 60 weeks in which Cleggett had been dealing crack. The court multiplied 60 weeks by one ounce per week and concluded that Cleggett was responsible for 60 ounces of crack. The court then converted the ounces to kilograms and concluded that the amount of controlled substance sold by Cleggett, and thus attributable to his relevant conduct for sentencing purposes, was 1.7 kilograms of crack.

On appeal, Cleggett argues that the district court erred in calculating his relevant conduct for sentencing purposes because it incorrectly determined the amount of time *1054 for which he sold crack. Cleggett also argues that the district court should have appointed a new attorney to represent him so that his original attorney could have testified at the sentencing hearing as to conversations between Cleggett and agent Granderson.

II. Discussion

A. The District Court’s Sentencing Determination

In reviewing a district court’s sentencing determination, we review the findings of fact underlying the application of the sentencing guidelines for clear error. United States v. Villarreal, 977 F.2d 1077, 1080 (7th Cir.1992); see also 18 U.S.C. § 3742(e) (reviewing courts “shall accept the findings of fact of the district court unless they are clearly erroneous”). A finding of fact is clearly erroneous when, “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. McEntire, 153 F.3d 424, 431 (7th Cir.1998) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). Congress has mandated this deferential standard of review and we do not second-guess the sentencing judge. United States v. Garcia, 66 F.3d 851, 856 (7th Cir.1995).

Cleggett first argues that the district court improperly relied upon his post-arrest statement in determining the length of time that Cleggett sold crack for sentencing purposes. Cleggett asserts that the court should have given weight to the statements he made at the sentencing hearing, in which he recanted the post-arrest statement and asserted that he had only been dealing crack since October of 1997.

We disagree with Cleggett’s position. While a criminal defendant “has a due process right to be sentenced on the basis of accurate information,” United States v. Westbrook, 986 F.2d 180, 182 (7th Cir.1993) (citations omitted), it is well established that the evidentiary standards that apply to sentencing are not as stringent as those applicable in a criminal trial. The criminal code provides that:

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179 F.3d 1051, 1999 U.S. App. LEXIS 11892, 1999 WL 371674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bootsy-n-cleggett-also-known-as-bootsey-cleggett-ca7-1999.