United States v. Brasher

105 F.4th 1002

UNITED STATES of America, Plaintiff-Appellee, v. Bernell BRASHER, Defendant-Appellant.

No. 23-1180

United States Court of Appeals, Seventh Circuit

Argued January 22, 2024

Decided June 28, 2024

Appeal from the United States District Court for the Southern District of Illinois. No. 4:21-cr-40070 — J. Phil Gilbert, Judge.

Casey Bloodworth, Attorney, James M. Cutchin, Attorney, Office of the United States Attorney, Benton, IL, for Plaintiff-Appellee.

Johanna M. Christiansen, Attorney, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before Easterbrook, St. Eve, and Jackson-Akiwumi, Circuit Judges.

St. Eve, Circuit Judge.

This appeal asks us to hold that some of Bernell Brasher's past conduct bore too attenuated a link to his offense of conviction to qualify as relevant conduct at sentencing. But Brasher never raised that issue below, so we review here for plain error. Finding no such error, we affirm.

I. Introduction

A. Factual Background

This case started when the Drug Enforcement Administration ("DEA") got a lucky break on October 27, 2021. A confidential source gave them a call with good news: a man named Bacaree Oaks had turned up at the source's Murphysboro, Illinois home that night with a pound of meth for sale. The source had told Oaks he would find a buyer, but then deployed a "ruse" so that he could call DEA. When law enforcement reached the scene for surveillance, they saw Oaks exit the source's home and depart in a vehicle with Bernell Brasher, the appellant here.

Oaks and Brasher returned to the source's residence not long after. Rather than find another buyer immediately, the source suggested that he would take the meth on credit and sell it, paying Oaks and Brasher $5,000 afterward. The three agreed to this deal. But instead of distributing the meth, the source turned it over to law enforcement. Their laboratories tested the package, which turned out to comprise 416.7 grams of 99% pure methamphetamine.

Police later arrested Brasher and Oaks. While police drove Brasher to jail, he told officers he owed money to his own supplier, in Mexico, for about 100 pounds of meth Brasher had out on the street. Officers took note, since the meth sold to the confidential source also came in a pound quantity.

B. Procedural Background

Less than a month later, on November 17, a grand jury indicted both Brasher and Oaks for conspiracy to distribute methamphetamine under 21 U.S.C. § 841(a). Brasher pleaded guilty, and then the district court ordered a presentence investigation report ("PSR"). The PSR concluded that for sentencing purposes, Brasher's relevant conduct included four instances of past drug distribution activity. We take them in chronological order.

The Birmingham Deal. In February 2018, a different confidential source had flagged Brasher to law enforcement. The source asked Brasher about sourcing meth for a buyer in Birmingham, Alabama. Brasher told the source he could supply four to eight ounces of the drug—then, in March, asked the source to travel with him from St. Louis, Missouri to Birmingham to conduct the deal. That trip never happened, so this conduct added no drug weight to Brasher's tab.

The Kansas Stop. A few months later, in May 2018, Kansas Highway Patrol troopers stopped a rental vehicle Brasher was driving. The car had been rented in the name of LaShae Broadway, the mother of Brasher's daughter. The troopers smelled marijuana and searched the car. Inside, they found about $34,000 in oddly stored cash: it had been vacuum sealed, covered in hand sanitizer, and wrapped in plastic. The troopers released Brasher from the scene. No drug weight stemmed from this interaction either.

The N.N. Sales. Another confidential source (this one going by N.N.) told police in January 2020 he had bought a pound of meth from Brasher a couple of times. That counted for 907.2 grams (2 pounds) of a mixture and substance containing methamphetamine, which the PSR recommended factoring into Brasher's sentence as relevant conduct.

The Crontz Conduct. This last, most important conduct is named for Brasher's co-conspirators, Tammy and Jerry Crontz. On July 15, 2020, a confidential source explained that the husband-and-wife pair had been selling ice (i.e. pure, crystalline) meth in ounce quantities from their home. They were happy to discuss their supplier with the source: it was Brasher. Later that month, agents got word that a drug shipment would come to Ava, Illinois, addressed to the Crontzes' nephew's home. Just as planned, police saw the nephew pick up the package and deliver it to the elder Crontzes.

The police then arrested and questioned Tammy Crontz. She told them she bought meth from a man she called "Boo," and then the police took her back to her home to search it. On the way there, she informed the officers three pounds of meth had arrived in the mail that same day, representing her largest ever shipment. Typically, Tammy said, the suppliers would pick up drug proceeds at her home. In fact, one supplier had picked up $17,200 just that morning. In the end, police found 882.5 grams (1.95 pounds) of 99% pure ice in her home. Then both Tammy and her husband talked with agents, telling them they had received one to two pounds of ice from Brasher 10 to 15 different times. The PSR, taking the low end of both estimates, later attributed to Brasher 10 pounds (or 4,536 grams) of a mixture containing methamphetamine. Tammy told police, too, that she had shipped about $15,000 in cash to Brasher in San Diego.

Agents also intercepted four calls between Tammy and Brasher. The two discussed the $15,000 shipment—Brasher did not have it because agents had seized it—as well as a future shipment of cocaine and ice. Brasher surmised that law enforcement had seized the package and agreed with Tammy to talk in person on August 4. Meanwhile in Ava, both agents and Crontz affiliates asked the Post Office about Brasher's drug packages. The package the agents wanted was out for delivery. The Crontzes' son came to the office, too, to ask that the Post Office allow someone else to pick up one of his packages—that one turned out to contain 80 grams of cocaine.

Tammy and Brasher met on August 4, though Tammy had flipped by then to work for the police. They discussed upcoming drug deliveries. The next day, agents picked up another shipment from San Diego, this one addressed to Jerry Crontz. Testing revealed it contained 77 grams of cocaine, 1.1 pounds of marijuana, and 1,575.7 grams of actual methamphetamine.

Tammy talked with agents again on August 13. She explained that before getting into distribution, she had bought on a retail basis: "one-ounce quantities of methamphetamine from Brasher every seven to ten days between December 2019 and April 2020." The PSR again made a conservative estimate, holding Brasher responsible for 6 ounces or 170.1 grams of a mixture and substance containing meth. Things had progressed from there, with Brasher sending meth directly to Tammy as well as packages containing meth and marijuana products to her son's home.

Based on the N.N. sales, the Oaks deal, and the Crontz conduct, the PSR concluded that Brasher's relevant conduct "involved the possession and distribution of 2,874.9 grams of actual methamphetamine; 5,613.3 grams of a mixture and substance containing methamphetamine; 157 grams of cocaine; and 1.1 pounds of marihuana." That amounts to a converted drug weight of 68,756.49 kilograms.

After factoring in the relevant conduct, Brasher had an offense level of 33 with a criminal history category of III, and a corresponding Guidelines range of 168 to 210 months of imprisonment.

Brasher made three objections to the PSR. None is part of this appeal. He cited United States v. Carnell, 972 F.3d 932 (7th Cir. 2020), to ask the district court to treat all the methamphetamine officers had recovered as a "mixture and substance containing methamphetamine," with its lighter sentencing consequences. He objected to his criminal history score, asserting (wrongly) that he had not been on probation when he committed his offense. And he objected to the PSR's identifying him as part of the Crip gang.

At sentencing, the district court first confirmed Brasher had no other objections that might affect the Guidelines range. He did not. The court then heard arguments on Brasher's three objections, ultimately adopting the PSR's findings except on the gang affiliation issue. Since Brasher had not raised any question about the relevance of his past conduct, the district court did not address this issue. Brasher took responsibility for his crimes during allocution, including those with the Crontzes, about which he told the court "I'm not going to make any excuses."

The district court sentenced Brasher to 200 months' imprisonment, which fell within his Guidelines range.

Brasher appealed.

II. Analysis

When Brasher pleaded guilty to his drug crime with Oaks, the district court calculated his base offense level by totaling the drug weight from the above past conduct. This practice finds its roots in U.S.S.G. § 1B1.3(a)(2). Under that guideline, other acts "that were part of the same course of conduct or common scheme or plan as the offense of conviction" enter the mix for calculating a base offense level. Id. At the same time, the mere "fact that a defendant engaged in other uncharged or acquitted drug transactions" is not enough. United States v. Rollerson, 7 F.4th 565, 572 (7th Cir. 2021). To bridge the gap between past conduct and the offense of conviction, we look for "significant 'similarity, regularity and temporal proximity' " between the offense of conviction and the other conduct. Id. (quoting United States v. McGowan, 478 F.3d 800, 802 (7th Cir. 2007)).

From within that framework, Brasher urges that the court should have excluded his past conduct—with the Crontzes, mainly—from the drug weight calculation. Because Brasher did not raise this issue before the...