United States v. Taurean Hayden
Opinion
NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604
Submitted August 3, 2010 Decided August 3, 2010
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 09‐2954
UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff‐Appellee, Court for the Northern District of Indiana, Fort Wayne Division.
v.
1:07‐CR‐68‐TLS
TAUREAN L. HAYDEN, Defendant‐Appellant. Theresa L. Springmann, Judge.
O R D E R
Taurean Hayden pleaded guilty to possessing with intent to distribute 500 or more grams of cocaine, see 21 U.S.C. § 841(a)(1), and carrying a firearm in relation to drug trafficking, see 18 U.S.C. § 924(c). In his plea agreement, Hayden waived his right to appeal the conviction and sentence but reserved his right to appeal the district court’s denial of his motion to suppress evidence recovered from his car during a traffic stop, as well as the drug quantity attributable to him. The district court sentenced him to 188 months for the drug offense and a consecutive term of 60 months for the firearm offense. Hayden filed a notice of appeal. His appointed counsel, however, moves to withdraw because he has concluded that any appellate argument would be frivolous. See Anders v. California, 386 U.S. 738 (1967). Hayden opposes counsel’s motion. See CIR. R. 51(b). We review only those potential issues
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identified by counsel in his facially adequate brief and by Hayden in his response. See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
On March 9, 2007, police conducted surveillance of a house on Oliver Street in Fort Wayne, Indiana. Parked in front of the house was Hayden’s Grand Prix. Three times, a different car pulled up to the house, stayed for only a few minutes, and as each car drove away, it was stopped by police, who arrested the driver for drug possession. One of those drivers, DeShawn Burnett, dropped a kilogram of cocaine as he attempted to flee the police.
Next, detectives followed Hayden leaving the house in the Grand Prix. They saw him drive evasively and commit several traffic violations. Detective Darrick Engelman, who had been in continuous radio contact with the detectives conducting surveillance, effected a traffic stop. The detective smelled the odor of burnt marijuana emanating from Hayden’s car, so he placed Hayden in the back of the squad car. The detective asked Hayden for his consent to search the car, but Hayden refused. Engelman then told Hayden that he would run a canine search, after which Hayden twice agreed to allow a search of the car. Engelman found a small amount of what he believed to be marijuana on the floor of the front passenger seat. After an officer searched the perimeter of the car with his drug‐ sniffing dog, the officers searched the trunk and interior of the car and found two hidden trap compartments, one of which contained two kilograms of cocaine in packaging similar to the cocaine discarded by Burnett. A later search uncovered behind the radio a third trap compartment, which concealed a handgun.
Police next obtained warrants to search two houses in Fort Wayne that were connected to Hayden. At a house on Knollcrest Avenue, officers found 4.01 grams of marijuana and mail addressed to Hayden. At a house on Salt Trail Canyon Pass, officers found over $12,159 in cash in a kitchen drawer, $100,000 hidden in the fireplace, and $282,589 in the trunk of a Dodge Charger that was parked in the attached garage. In the Charger, police also found Hayden’s identification card.
Hayden moved, unsuccessfully, to suppress evidence recovered during the stop and search of the Grand Prix. First, the court found that because Engelman had been in constant radio contact with the surveillance officers, Engelman’s stop of the Grand Prix was supported by both reasonable suspicion of drug trafficking and probable cause to believe that he had committed traffic violations. Second, the court concluded that Hayden’s consent to the search was voluntary and, regardless, the smell of marijuana, the canine sniff, and the marijuana seen on the floorboard supported the search of the trunk and the hidden compartments.
Hayden entered a conditional plea of guilty, waiving his right to appeal the conviction and sentence with two exceptions; he reserved his right to appeal the district
No. 09‐2954 Page 3
court’s denial of his motion to suppress and the drug quantity attributable to him. At sentencing the district court calculated the drug quantity based on the drugs discovered in Hayden’s Grand Prix, the drugs and money found in the two houses, and the kilogram of cocaine discarded by Burnett. Over Hayden’s objection, the court attributed to Hayden the cocaine discarded by Burnett given his arrest just minutes following his meeting with Hayden at the Oliver Street house, where Hayden appeared to be dealing cocaine. The court further overruled Hayden’s objection to the inclusion of the marijuana and money found in the two houses; the court noted the testimony of Hayden’s landlord that Hayden was renting the Knollcrest house and was purchasing the house on Salt Trail Canyon Pass on a land contract, and additional evidence that he was maintaining and using both residences. The court traced the money to drug proceeds, noting in particular the testimony of Hayden’s cousin, who reported that he employed Hayden at his used car dealership for only $200 to $300 per week, and the testimony of DEA special agent, Howard Schneider, who reported that informants had identified Hayden as a multi‐kilogram cocaine dealer. The court cited Schneider’s testimony that a kilogram of cocaine sells for $25,000 at the high end, and concluded that the $394,748 found in the Salt Trail Canyon Pass house represented at least 15.7 kilograms of cocaine. Using the drug equivalency table of the Sentencing Guidelines, the court calculated that Hayden was responsible for the equivalence of 3,759 kilograms of marijuana, see U.S.S.G. § 2D1.1 cmt. n.10, yielding a guidelines range of 188 to 235 months for count one and an additional 60 months for count two. The court sentenced Hayden to the bottom of the guidelines range.
Hayden now wants his guilty plea set aside, so counsel properly considers whether he could challenge the voluntariness of his guilty plea or the adequacy of the plea colloquy. See FED. R. CRIM. P. 11; United States v. Knox, 287 F.3d 667, 671‐72 (7th Cir. 2002). Counsel considers challenging the plea colloquy based on the district court’s failure to advise Hayden of the court’s authority to order restitution, or his right to present evidence at trial. See FED. R. CRIM. P. 11(b)(1)(K), (b)(1)(E). The court, however, did inform Hayden that he could be subject to fines totaling $4,250,000, and ultimately imposed no restitution or fine, so the court’s omission of a warning about possible restitution was harmless. See United States v. Fox, 941 F.2d 480, 484 (7th Cir. 1991). The court also informed Hayden that he could compel the attendance of witnesses and testify in his own defense and that his decision not to testify or present any evidence could not be used against him at trial. His right to present evidence at trial was further covered in the written plea agreement, which he acknowledged having read and understood. Any challenge to the plea colloquy on this basis would therefore be frivolous. See FED. R. CRIM. P. 11(h); United States v. Dominguez Benitez, 542 U.S. 74, 83, 85 (2004); United States v. Driver, 242 F.3d 767, 771 (7th Cir. 2001).
Hayden in his Rule 51(b) response, challenges the plea colloquy, contending that the district court incorrectly informed him of the applicable minimum sentence for his firearm
No. 09‐2954 Page 4
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