United States v. Stewart

107 F. App'x 667
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 18, 2004
DocketNo. 03-4353
StatusPublished
Cited by1 cases

This text of 107 F. App'x 667 (United States v. Stewart) 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. Stewart, 107 F. App'x 667 (7th Cir. 2004).

Opinion

[668]*668ORDER

Donte Stewart appeals the district court’s revocation of his supervised release and imposition of a 27-month term of re-imprisonment. The government’s petition to revoke stems primarily from an incident at the Traveler Motel in Bettendorf, Iowa, on September 28, 2003. There the police discovered Stewart in a motel room with a female prostitute, a crack pipe, and a four-time convicted felon named Rob Dagit. Stewart struggled with police and attempted to flee the scene but was apprehended in the motel parking lot. Based on testimony from Dagit and the arresting officer, the district court concluded that Stewart had violated the terms of his supervised release by committing the new crimes of battery (in the scuffle with the police) and possession of crack with intent to distribute. On appeal Stewart argues that Dag-it’s testimony was unreliable and that the district court’s sentence is unreasonable. Because the district court’s assessment of Dagit’s credibility is not clearly erroneous and Stewart’s resulting sentence is not so harsh as to be plainly unreasonable, we affirm.

In 1996 Stewart pleaded guilty to possession of crack with intent to distribute. 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii). He was sentenced to 97 months in prison (later reduced to 73 months) and five years of supervised release. He began serving his supervised release in November 2001. In September 2003 Stewart consented to modification of supervision because of multiple violations of his conditions of release, including possession and use of alcohol, marijuana, and cocaine. He was ordered to serve four months of community confinement; before that confinement term began, the government petitioned to revoke his supervised release, alleging that Stewart had committed the additional violations of “pimping” and fleeing from police. In a supplemental petition, the government further alleged that Stewart had sold crack to Dagit on as many as 13 occasions, possessed crack with the intent to sell it to Dagit on September 28, had sex with a prostitute, and associated with a convicted felon.

At the hearing on the government’s petition, Stewart’s counsel told the district court that the parties had reached a tentative agreement: Stewart would admit resisting a police officer, a Grade C violation, and the government would recommend 12 months’ detention (eight months’ imprisonment plus the still-unserved four months in a halfway house) and three years of supervised release. However, when the district court questioned Stewart about the resisting-an-officer violation, Stewart denied that he had been attempting to avoid arrest, prompting the district court to move directly to a hearing on all of the allegations in the petition.

Dagit testified that he bought crack from Stewart on September 28 and approximately three other occasions, including September 27. He testified that he and Stewart had gone to the Traveler Motel in Bettendorf on September 27 and were there again on the evening of September 28 “smoking crack and partying.” Dagit testified that earlier on September 28 he had asked Stewart to sell him $100 worth of crack. He also asked Stewart to find a “lady who wanted to party.” That night Stewart brought a prostitute with him when he joined Dagit at the motel. Dagit paid her $200 to have sex with both him and Stewart but got a $100 refund because Stewart wasn’t interested in having sex with her. The district court questioned Dagit to clarify the number and dates of the crack buys from Stewart. Dagit answered in the affirmative when the court asked him to confirm that he bought crack from Stewart on September [669]*66928 and “three other times,” including “the day before on the 27th.”

Bettendorf Police Officer Jeremy Salisbury testified that while patrolling the motel parking lot at about 10:30 p.m. on September 28, he ran a check on the license plates of a Toyota 4-Runner and determined that it was registered to Stewart, who had an outstanding warrant. Salisbury then checked with the motel desk clerk to locate Stewart’s room and called for backup. While Salisbury and a backup officer were standing outside Stewart’s room waiting for a third officer, the door opened and the prostitute started to leave. Salisbury and his partner entered the room, saw a crack pipe on the table, and ordered everyone to sit down. Dagit then reached for the crack pipe. Salisbury grabbed him by the shoulder and forced him back into a seated position. Meanwhile, Stewart made a break for the door. Salisbury and his partner attempted to stop him, there was a struggle, and Stewart wrestled free, leaving Salisbury “with a handful of shirt.”

Officer Salisbury caught up with Stewart in the motel parking lot, arrested him, and returned to the motel room. Dagit was still sitting on the bed but the prostitute was gone, and so was the crack pipe. Although the officers later located the prostitute, they never found the crack pipe. They also did not find any drugs on Stewart, Dagit, or the prostitute; nor did they find any evidence of drug packaging except a piece of plastic on the floor, which was not seized because it had no drug residue on it. When searched, Stewart and the prostitute each had a $100 bill.

On cross-examination Stewart’s counsel highlighted a number of problems with Dagit and his testimony. Dagit admitted that he is bipolar, takes several powerful medications for the disorder, and receives Social Security disability benefits. Convicted of multiple felonies, Dagit stood to lose his benefits if convicted of another crime. Dagit also conceded that when he binges on crack, he stops taking his medication, and that his cognitive ability may be impaired by his crack use.

Counsel also elicited several inconsistencies between Dagit’s and Officer Salisbury’s version of events. Dagit denied ever reaching for the crack pipe or being restrained by the officer. Dagit also claimed that the police arrived at the motel room in the “early evening” as opposed to about 10:30 p.m. as Salisbury testified. Salisbury testified that the desk clerk had told him that she saw Stewart, Dagit, and the prostitute together; Dagit testified that the three had never walked past the desk clerk together.

The district court concluded that the government had established by a preponderance of the evidence that Stewart sold crack to Dagit twice — on September 27 and 28. The court also found that Stewart had pushed the police officer in attempting to flee, committing a battery as alleged in paragraph 3.D. of the supplemental petition. Acknowledging that Dagit’s testimony was problematic in some respects, the district court “believed in the basic credibility of his testimony.” The Grade A violation of selling crack, see U.S.S.G. § 7B1.1, combined with Stewart’s criminal history category of II and underlying Class A felony resulted in a recommended guideline range of 27 to 33 months’ reimprisonment. The district court imposed 27 months in prison (in addition to the four outstanding months of community confinement) and three years of supervised release.

On appeal Stewart does not challenge the district court’s conclusion regarding the battery to the police officer, but argues that there is insufficient evidence to support the district court’s finding that he [670]*670sold crack to Dagit. He asserts that there is no evidence of a crack sale on September 27 and that Dagit’s testimony is so inherently suspect and unreliable that no deference is owed to the district court’s conclusion regarding the crack sale on September 28.

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Bluebook (online)
107 F. App'x 667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-stewart-ca7-2004.