United States v. Tyree M. Neal, Jr.

• Court: Court of Appeals for the Seventh Circuit
• Decided: October 22, 2018
• Docket: 17-2976
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 17-2976 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

TYREE M. NEAL, JR., Defendant-Appellant. ____________________

Appeal from the United States District Court for the Southern District of Illinois. No. 4:14-cr-40076 — J. Phil Gilbert, Judge. ____________________

ARGUED OCTOBER 2, 2018 — DECIDED OCTOBER 22, 2018 ____________________

Before BAUER, KANNE, and SCUDDER, Circuit Judges. PER CURIAM. At sentencing Tyree M. Neal, Jr. asserted that he was not guilty of conspiring to distribute cocaine because the facts, as he saw them, did not demonstrate that he agreed with others to buy and sell cocaine. The district court re- sponded by observing that Neal had already pleaded guilty and in doing so conceded that the government’s factual prof- fer sufficed to prove the offense of conspiracy. So the court 2 No. 17-2976

proceeded to sentencing and imposed a term of 30 years’ im- prisonment, reflecting the scale of the drug-distribution con- spiracy as well as Neal’s violent conduct while resisting ar- rest, obstruction of justice, and extensive criminal history. On appeal Neal contends that the district court should have treated the reservations he expressed at sentencing as a mo- tion to withdraw his plea. We affirm, as the record shows not only that Neal voluntarily pleaded guilty, but also that there was a sufficient factual basis to support the plea. I Neal pleaded guilty to conspiracy to sell cocaine in viola- tion of 21 U.S.C. § 846. At the plea colloquy, the court ex- plained that the conspiracy charge alleged that Neal did “knowingly, intentionally combine, conspire, and agree with other persons known and unknown to the Grand Jury to knowingly distribute a mixture and substance containing co- caine.” With his counsel present, Neal confirmed that he un- derstood the charge as well as his constitutional right to con- test it by proceeding to a jury trial. The government then prof- fered its factual basis for the charge, which included the rep- resentation that Neal “oftentimes” bought and sold large quantities of cocaine on credit—what the government called “fronts”: Your Honor, if this case were to proceed to trial the government would prove beyond a reason- able doubt that during the time of the charged conspiracy the defendant was involved with nu- merous other persons in the unlawful distribu- tion of cocaine in Williamson County in the Southern District of Illinois. Some of the evi- No. 17-2976 3

dence would include that the defendant sold co- caine to a confidential source on multiple occa- sions in 2012. After those buys a search warrant was issued and executed, and agents recovered a large amount of United States currency which included some of the prerecorded buy money. The evidence would be that after that incident the defendant gave a statement to agents and he admitted that he was getting 4-ounce amounts of cocaine once or twice a week for the past three years from, quote, BB, end quote, in Eff- ingham. There would be other evidence in 2014 a differ- ent CS made purchases of dealer amounts of co- caine from the defendant. That CS indicated that he or she had regularly been obtaining co- caine from Neal, from the defendant, and that the defendant would not sell anything less than an eight-ball. There would be multiple other witnesses in addition to the two CSs who indi- cated they purchased dealer amounts of cocaine from the defendant. The evidence would be that oftentimes the cocaine was either obtained or provided on fronts. In response to the district court asking whether the factual proffer was accurate, Neal paused, saying, “Not all of it.” Neal’s counsel took the response to mean that Neal had res- ervations with the government’s statement that he bought co- caine from “B.B.” After a brief recess to permit consultation with his counsel, Neal no longer vacillated. When the court asked anew if the government’s factual proffer was correct, 4 No. 17-2976

Neal replied, “Yes.” The court, too, found the proffer suffi- cient and accepted Neal’s guilty plea. Neal then appeared to backpedal at sentencing. The dis- trict court asked Neal if he had any objections to the Presen- tence Investigation Report. Neal responded by saying, “I don’t think I have a conspiracy like by myself. Like, I don’t know how I could do that, conspire by myself? … I don’t have no—any co-defendants or anything. I don’t know how I’d conspire—like a conspiracy, I thought it takes more than one person?” The district judge reacted by asking Neal if he recalled pleading guilty under oath. When Neal acknowledged the prior plea, the court observed, “[t]hat ship has sailed,” and then moved forward with sentencing, ultimately imposing a term of 360 months’ imprisonment. The lengthy sentence re- flected the substantial quantity of cocaine involved in the con- spiracy as well as Neal’s lengthy criminal history, attempt to hire someone to kill two potential witnesses, efforts to avoid arrest by carjacking a vehicle occupied by a woman and three children, and reckless endangerment during flight by acceler- ating his vehicle toward a police officer and then ramming into another police vehicle. II Neal contends that the district court abused its discretion by not allowing him to withdraw his guilty plea. First, he as- serts that his objection at sentencing to the PSR’s factual basis should have been treated as the functional equivalent of a pro se motion to withdraw his guilty plea. Second, Neal argues that the district court should have granted this motion be- cause the conspiracy charge lacked an adequate factual basis. No. 17-2976 5

A defendant may withdraw a guilty plea by moving to do so (orally or in writing) before the court imposes a sentence, and providing a “fair and just reason” for the withdrawal. Fed. R. Crim. P. 11(d)(2)(B); United States v. Bennett, 332 F.3d 1094, 1099 (7th Cir. 2003). Ordinarily we review such a motion for abuse of discretion. United States v. Silva, 122 F.3d 412, 414– 15 (7th Cir. 1997). If a defendant fails to move to withdraw the plea, however, we review only for plain error. See United States v. Arenal, 500 F.3d 634, 637 (7th Cir. 2007). We need not decide whether Neal’s remarks at sentencing amounted to a motion to withdraw the plea. Under either standard of re- view, the district court committed no error. In contending that the district court should have allowed him to withdraw his plea, Neal argues that the plea was nei- ther voluntary (because he did not understand the conspiracy charge) nor supported by a sufficient factual basis (because there was no proffer of facts showing an agreement to distrib- ute cocaine). He “faces an uphill battle,” however, in over- coming the “presumption of verity” that the law attaches to a guilty plea. United States v. Patterson, 576 F.3d 431, 437 (7th Cir. 2009) (internal quotation marks omitted); see also Bennett, 332 F.3d at 1099. And Neal does not overcome that presumption here. Five factors inform whether a defendant fully understands the nature of the charge to which he admitted guilt: (1) the complexity of the charge; (2) the defendant’s intelligence, age, and education; (3) whether the defendant was represented by counsel; (4) the district court’s inquiry during the change of plea hearing and the defendant’s responses; and (5) the evi- dence proffered by the government for its factual basis. See 6 No. 17-2976

United States v. Bradley, 381 F.3d 641, 645–46 (7th Cir. 2004); United States v. LeDonne, 21 F.3d 1418, 1423 (7th Cir. 1994). First, as to the contention that the plea was uninformed and thus involuntary, the record shows that Neal understood the conspiracy charge. Conspiracy, we have observed, is in- deed a complex charge not always or easily understood by a layperson. United States v. Pineda-Buenaventura, 622 F.3d 761, 771 (7th Cir. 2010). At Neal’s plea, the district court conveyed the essential nature of the offense, explaining that the indict- ment alleged that Neal did “knowingly, intentionally com- bine, conspire, and agree with other persons … to knowingly distribute … cocaine.” This statement captures the elements of a drug-distribution conspiracy under 21 U.S.C. § 846: “(1) two or more people agreed to commit an unlawful act, and (2) the defendant knowingly and intentionally joined in the agreement.” United States v. Duran, 407 F.3d 828, 835 (7th Cir. 2005). More than that, Neal’s own contention at sentencing— that a conspiracy requires more than one person—also sup- ports the conclusion that he understood the charge. Second, we examine Neal’s intelligence, age, and educa- tion. He was twenty-nine at the time of his plea, had an elev- enth-grade education, and read and understood English. Nothing that occurred before, during, or after the plea collo- quy raised a question on this prong of the inquiry. The next two factors—concerning counsel and the ade- quacy of the court’s colloquy during the plea allocution—do not help Neal. He stresses that, although represented by coun- sel, he had different counsel at different stages of the proceed- ings in the district court. Beyond conveying the observation, though, Neal does not explain how having a series of attor- neys impaired the knowing and voluntary nature of his guilty No. 17-2976 7

plea. Moreover, before Neal pleaded guilty, the court ex- plained his rights, described the consequences of pleading guilty, and received Neal’s express confirmation that his plea was a free and voluntary act. This colloquy was sufficient to probe whether Neal’s plea was knowing and voluntary. See United States v. Hernandez, 731 F.3d 666, 671 (7th Cir. 2013). The main battleground on appeal comes with the fifth fac- tor: the sufficiency of the government’s factual proffer to sup- port the plea. Rule 11(b)(3) required the district court to de- termine that there is a factual basis for a guilty plea before ac- cepting it and proceeding to sentencing. In revisiting the same question on appeal, we are free to rely on the facts proffered by the government, any part of the record to which the de- fendant agreed or did not object, and the defendant’s own statements. See United States v. Musa, 946 F.2d 1297, 1302–03 (7th Cir. 1991). After reviewing the plea colloquy and government’s fac- tual proffer, we see no error in the district court’s conclusion that sufficient facts supported the plea. The government un- derscores four facts proffered at the plea colloquy: (1) Neal was involved with others in distributing cocaine; (2) Neal reg- ularly purchased dealer quantities (at least 4–7 ounces each week) of cocaine from “B.B.” over the course of three years; (3) Neal, in turn, supplied cocaine to others; and (4) Neal “of- tentimes” received and supplied cocaine on fronts. After re- ceiving an opportunity to confer with his counsel in response to this factual proffer, Neal expressly acknowledged its accu- racy. He now advances a different view on appeal, arguing that the government’s proffer failed to show that he conspired with anyone to buy or sell cocaine. 8 No. 17-2976

Neal is right to observe that the first three facts are not nec- essarily inconsistent with an ordinary buyer-seller relation- ship and thus do not alone demonstrate a conspiracy. Con- spiracy requires a common criminal goal shared among two or more people. United States v. Long, 748 F.3d 322, 325 (7th Cir. 2014). Indeed, we have underscored that ordinary drug transactions do not entail or reflect a conspiracy, for the buyer’s only purpose is to buy and the seller’s only purpose is to sell: the buyer and seller lack a shared criminal goal. See id. at 325; United States v. Colon, 549 F.3d 565, 569 (7th Cir. 2008). But a shared purpose—some unity of enterprise—be- tween a buyer and seller to resell drugs to others can be enough to indicate the requisite common commitment to demonstrate a conspiracy to distribute drugs. See United States v. Johnson, 592 F.3d 749, 755–56 (7th Cir. 2010). And such a shared purpose, we have explained, may be inferred from “sales on credit or consignment.” Id. To be sure, “occasional” sales on credit are consistent with an ordinary buyer-seller relationship. United States v. Cruse, 805 F.3d 795, 815 (7th Cir. 2015); see also United States v. Villasenor, 664 F.3d 673, 680 (7th Cir. 2011) (“For example, evidence that a supplier extends credit to an individual purchasing small quantities of drugs for personal consumption would not suffice to establish conspiracy.”). But, as we explained in Villasenor, “when a credit sale is combined with certain other characteristics inherent in an ongoing wholesale buyer-seller relationship—i.e., large quantities of drugs, repeat purchases or some other enduring arrangement—the credit sales become sufficient enough to distinguish a conspiracy from a nonconspiratorial buyer- seller relationship.” Id.; see also Cruse, 805 F.3d at 812 (concluding that evidence of a defendant’s longtime No. 17-2976 9

supplying of drugs for resale within a housing project is sufficient to establish that the defendant knowingly participated in a drug-distribution conspiracy). During Neal’s plea colloquy, the government proffered that Neal participated in the acquisition and redistribution of cocaine in transactions that “oftentimes” occurred on credit. The government also represented that its evidence showed that Neal regularly acquired resale quantities of cocaine from the same supplier in Effingham, Illinois. Neal admitted to the accuracy of these specific facts, and they sufficed to support the district court’s acceptance of his plea to violating 21 U.S.C. § 846. In briefing and during oral argument, Neal’s counsel em- phasized the absence of facts in the sentencing record show- ing drug transactions on credit. In advancing this position, however, Neal overlooks what he expressly agreed was accu- rate in pleading guilty—that “oftentimes,” he bought or sold cocaine “on fronts.” Furthermore, Neal has not identified any authority requiring the government to come forward at sen- tencing with evidence of facts previously admitted during a plea allocution. Neither have we, and we decline to impose such a mandate. See Musa, 946 F.2d at 1302–03 (determining that the government’s proffered facts and the defendant’s ad- missions during his plea allocution were sufficient to support a plea to conspiracy to distribute cocaine, despite the defend- ant’s disputes with the quantity distributed and his role in the distribution activities). Finally, Neal contends that he did not affirmatively con- firm during the plea allocution that he conspired with anyone. But during his plea colloquy, Neal confirmed not only that he 10 No. 17-2976

understood the charge of conspiracy, but also that the govern- ment’s factual proffer was sufficient. And at no point during sentencing, despite generally denying participating in a con- spiracy, did Neal say anything specifically calling the accu- racy of the government’s proffered evidence into question. If no evidence affirmatively impugning the validity of the plea is offered, or if the allegations advanced in support of with- drawing the plea are conclusory or obviously unreliable, the request may be denied without a hearing. United States v. Jones, 381 F.3d 615, 618 (7th Cir. 2004). Based on the totality of the circumstances, we conclude that Neal understood the charge against him and his plea had an adequate factual basis. He has not offered a fair and just reason to withdraw his guilty plea, and the district court did not abuse its discretion or otherwise commit error in denying Neal’s motion to withdraw his plea. Accordingly, we AFFIRM.