United States v. Terrell

344 F. App'x 275
CourtCourt of Appeals for the Seventh Circuit
DecidedSeptember 4, 2009
DocketNo. 09-1364
StatusPublished

This text of 344 F. App'x 275 (United States v. Terrell) 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. Terrell, 344 F. App'x 275 (7th Cir. 2009).

Opinion

ORDER

A jury convicted Tyree Terrell of distributing at least 50 grams of crack in [277]*277violation of 21 U.S.C. § 841(a)(1), and he was sentenced to 360 months’ imprisonment. Terrell now appeals his conviction and sentence, but his appointed counsel has asked to withdraw because he cannot discern any nonfrivolous arguments to pursue. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel’s supporting brief is facially adequate, and Terrell has responded to our invitation under Circuit Rule 51(b) to comment on counsel’s submission. We limit our review to Terrell’s arguments and the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).

At trial, a government agent testified that in March, 2006, a confidential informant told him that Terrell wanted to sell 63 grams of crack for $1,300. The agent called Terrell and, identifying himself as a friend of the informant, arranged for the three to meet in order to purchase the crack. Before the meeting, the agent equipped the informant with a device to record the conversation. When they arrived at the meeting, Terrell made a phone call to his source and asked for 63 grams of crack. The men then waited for a while, and Terrell, in an apparent attempt to bolster his credibility with the “buyers,” told them that he had previously been arrested and the court had set bail at $85,000. Eventually, the three men, joined by one of Terrell’s friends, drove to meet two men in a car in a hospital parking lot. The agent gave Terrell $1,300, and the informant and Terrell got into the back seat of the car. After a minute, the informant got out of the car and gave the agent 63 grams of crack. The next day the agent called Terrell a second time, and Terrell offered to sell him firearms. The following week, Terrell and the agent spoke again, and Terrell told the agent that he was ready to sell him another 63 grams of crack whenever he wanted it. Although the government had noted in a preliminary filing that the district judge should instruct the jury that the informant’s statements should be considered not for their truth but only to provide context for Terrell’s statements, at trial neither party requested such an instruction and the judge did not make one. The jury voted to convict Terrell on the sole count in the indictment of distributing over 50 grams of crack.

After trial, Terrell filed a pro se motion asking for new counsel and counsel moved to withdraw. The district court granted the motion and appointed new counsel, but several days after entering his appearance, Terrell’s second lawyer also moved to withdraw, citing a breakdown in communication. The district court granted that motion, too, and appointed a third attorney, Paul Camarena, who represents Terrell on appeal. Two weeks before sentencing, Terrell submitted a pro se letter to the court identifying a number of disagreements that he had with Camarena.

At Terrell’s sentencing hearing, the district court first addressed his letter. The district judge explained that Terrell could not advance arguments pro se while represented by counsel, noted that he was on his third lawyer, and told him: “[Wje’re at a point now where if you’re not satisfied with this attorney, you can certainly proceed on your own if that’s what you want to do. Otherwise we will proceed with your attorney and the motions and the issues that he has raised. The choice is yours.” Terrell opted to retain Camarena and proceed with sentencing and allocution.

The court then announced the sentence. It observed that Terrell qualified as a career offender because he was older than 18 when he committed this drug crime and [278]*278had two prior felony convictions for armed robbery as well as a conviction for possession of a controlled substance with intent to deliver. See U.S.S.G. § 4B1.1. The court thus applied a base offense level of 37 under U.S.S.G. § 4Bl.l(b), which when combined with Terrell’s criminal history category of VI yielded an imprisonment range of 360 months to life. In considering the sentencing factors listed in 18 U.S.C. § 3553(a), the district judge placed particular emphasis on Terrell's lengthy criminal history of 11 convictions and 32 additional arrests, observing that it was “one of the most extensive [the judge had] seen.” The court then sentenced Terrell at the bottom of the guidelines range.

In his Anders submission, counsel first asks whether Terrell could argue that insufficient evidence supported the jury’s verdict. We would uphold Terrell’s conviction unless no rational trier of fact could have concluded, based on the evidence viewed in the light most favorable to the prosecution, that all of the elements of the charged crime were proved beyond a reasonable doubt. See United States v. Khattab, 536 F.3d 765, 769 (7th Cir.2008). To convict Terrell of distributing crack, the government had to prove that he (1) knowingly distributed 50 grams or more of crack and (2) knew that what he was distributing was a controlled substance. 21 U.S.C. § 841(a)(1); United States v. Graham, 315 F.3d 777, 781 (7th Cir.2003). A government chemist testified at trial that the substance was, in fact, over 50 grams of crack. And the government agent who attended the drug sale testified that he had asked Terrell to sell him crack and that at their arranged meeting he gave Terrell the money they had agreed upon for the crack. Although the agent did not see Terrell hand the crack to the informant — the exchange occurred in the car and the agent could not see through its windows — a rational jury could infer that Terrell knew that he had brokered the transaction to sell crack. We agree with counsel that the government presented enough evidence to sustain a conviction.

Terrell and counsel next turn to potential evidentiary issues. They initially consider whether Terrell could argue that some of the government’s testimony was inadmissible under Federal Rule of Evidence 404(b) as character evidence. Specifically, they point to Terrell’s recorded statements that he had guns for sale, would supply another 63 grams of crack if the agent needed it, and had previously been arrested and had bond set at $85,000.

Rule 404(b) prohibits the use of prior convictions or other evidence of bad acts to establish that the defendant is the kind of person who commits crimes. See United States v. Ross, 510 F.3d 702, 713 (7th Cir.2007). The rule does, however, permit the government to introduce evidence of prior bad acts to prove other material facts, including identity and knowledge. Id. Here, Terrell has waived a challenge to the admission of his prior arrest and bail because he stipulated to those facts, see United States v. DeSilva,

Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
Rita v. United States
551 U.S. 338 (Supreme Court, 2007)
United States v. Dwight A. Graham
315 F.3d 777 (Seventh Circuit, 2003)
United States v. Vincent Lane
323 F.3d 568 (Seventh Circuit, 2003)
United States v. Gale Nettles
476 F.3d 508 (Seventh Circuit, 2007)
United States v. Donville James
487 F.3d 518 (Seventh Circuit, 2007)
United States v. Kimberly Prude
489 F.3d 873 (Seventh Circuit, 2007)
United States v. Gooden
564 F.3d 887 (Seventh Circuit, 2009)
United States v. Lewis
567 F.3d 322 (Seventh Circuit, 2009)
United States v. Harvey
516 F.3d 553 (Seventh Circuit, 2008)
United States v. Ellis
548 F.3d 539 (Seventh Circuit, 2008)
United States v. Irby
558 F.3d 651 (Seventh Circuit, 2009)
United States v. DeSilva
505 F.3d 711 (Seventh Circuit, 2007)
United States v. Ross
510 F.3d 702 (Seventh Circuit, 2007)
United States v. Khattab
536 F.3d 765 (Seventh Circuit, 2008)
United States v. Burgos
539 F.3d 641 (Seventh Circuit, 2008)
United States v. Ryals
512 F.3d 416 (Seventh Circuit, 2008)

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Bluebook (online)
344 F. App'x 275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-terrell-ca7-2009.