United States v. Tate

97 F.4th 541

UNITED STATES of America, Plaintiff-Appellee, v. Christopher TATE and Sandra Kellogg, Defendants-Appellants.

No. 22-2060

No. 22-2124

United States Court of Appeals, Seventh Circuit

Argued February 22, 2024

Decided April 3, 2024

Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:20-cr-00096 — Tanya Walton Pratt, Chief Judge.

Bradley A. Blackington, Meredith Wood, Attorneys, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Kenneth Lawrence Riggins, Esq., Attorney, Devries Law Office, Indianapolis, IN, for Defendant-Appellant Christopher Tate.

Charles Chrystal Hayes, Jane Corbett Hinton Ruemmele, Attorneys, Hayes Ruemmele LLC, Indianapolis, IN, for Defendant-Appellant Sandra Kellogg.

Before Sykes, Chief Judge, and Ripple and St. Eve, Circuit Judges.

Ripple, Circuit Judge.

The Government charged twelve people with conspiracy to distribute illegal drugs and other drug offenses. Ten of them pleaded guilty; Christopher Tate and Sandra Kellogg elected to go to trial. They were tried jointly, and the jury convicted them on all counts with which they were charged. The district court imposed substantial, yet below-guidelines, prison sentences. On appeal, Mr. Tate and Ms. Kellogg each raise a challenge to the sufficiency of the evidence on one of the counts of their convictions. They each also raise a challenge to one of the enhancements used to determine their guidelines sentencing ranges. For the reasons stated in this opinion, we affirm the convictions and sentences of both defendants.

IBACKGROUND

A. Facts

Between the summer of 2019 and early 2020, Mr. Tate and Ms. Kellogg were part of a methamphetamine and heroin distribution cell based in Indianapolis. Darrell Stennis and Robert Hinton were the main suppliers. Mr. Tate bought from Stennis and Hinton and sold drugs to a variety of customers. Ms. Kellogg was one such customer. She bought methamphetamine from Mr. Tate and sold it to her own customers, all with the help of her boyfriend, Dwyatt Harris.

The Government presented evidence at trial of several of Mr. Tate's sales to Ms. Kellogg. In most of those sales, Ms. Kellogg coordinated the details with Mr. Tate and sent Harris to pick up the methamphetamine from Jovan Stewart, Mr. Tate's runner. Sometimes, however, Ms. Kellogg went to pick the drugs up herself. On January 16, 2020, for example, Ms. Kellogg and Harris went together to pick up an ounce of meth from Aaron Brown, who handed them the meth on Mr. Tate's behalf.¹ Ms. Kellogg and Harris then drove that ounce to a customer whose contact was saved in Ms. Kellogg's phone as "J." On February 7, 2020, Ms. Kellogg went alone to pick up the meth from Mr. Tate and spoke with Harris about delivering the meth to a person whose contact was saved in her phone as "Trish."

The larger drug distribution scheme started to unravel when, on February 20, 2020, Stennis was murdered. Before he was murdered, Stennis had been storing fifteen one-pound packages of meth at the house of his girlfriend, Tia Dimmett. Dimmett called Mr. Tate and asked for help selling the meth. Mr. Tate went over to Dimmett's house, took eight of the meth packages, and sold those eight packages. Meanwhile, Dimmett drove the seven other packages to her grandmother's house and put them in her grandmother's garage. Dimmett and Mr. Tate met up again at Dimmett's house, and the two of them, along with Stewart, drove back to Dimmett's grandmother's house. Mr. Tate met with a customer in front of the house and sold the customer two packages of meth.

Mr. Tate planned to sell the five remaining packages to two of his regular customers. Dimmett went into her grandmother's garage and retrieved a pillowcase containing the packages of meth and a gun. She then took the pillowcase out to the car and gave it to Mr. Tate. Mr. Tate removed the gun from the pillowcase and gave it to Dimmett, who stowed it under the driver's seat. Mr. Tate placed the pillowcase (which still contained the packages of meth) under the front passenger seat, where he was sitting. The three of them then drove away from Dimmett's grandmother's house, planning to drop off Dimmett and sell the drugs to Mr. Tate's customers. Before they could do either, however, local police stopped their car. The officers found the gun and the meth in the car. They also found mail addressed to Mr. Tate and a vehicle order agreement for the car, with Mr. Tate's name on it.

Law enforcement later conducted searches of both Mr. Tate's and Ms. Kellogg's houses. At Mr. Tate's house, the DEA seized $3,000 in cash from the master bedroom and a loaded handgun from underneath the mattress of the guest room. At Ms. Kellogg's house, the DEA seized a handgun, a digital scale, Ms. Kellogg's cellphone, and about 11 ounces of meth, packaged in one-ounce bags. In a post-arrest interview, Ms. Kellogg said that the 11 ounces of meth in her home came from a pound of meth she had purchased within the past week.

B. Prior Proceedings

In March 2020, the Government filed an indictment charging Mr. Tate, Ms. Kellogg, Harris, and nine others with various drug offenses. Seven of these co-defendants then pleaded guilty. In the operative superseding indictment, filed in January 2021, the Government charged Mr. Tate, Ms. Kellogg, Harris, Stewart, and Hinton. Harris, Stewart, and Hinton pleaded guilty soon after that indictment was filed. Mr. Tate was charged with one count of conspiracy to distribute methamphetamine and heroin, in violation of 21 U.S.C. § 846; two counts of distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1); and one count of possession of methamphetamine with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1). Ms. Kellogg was charged with one count of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 846, and one count of possession of methamphetamine with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1).

The district court tried Mr. Tate and Ms. Kellogg jointly. At the trial, the Government relied on cell-site location information, text messages and recordings of phone calls intercepted in wiretaps, the testimony of former co-conspirators, the testimony of agents who conducted surveillance and executed searches of the defendants' houses, and other evidence. Neither Mr. Tate nor Ms. Kellogg presented evidence. After the Government rested, Mr. Tate moved for a judgment of acquittal on all counts, and Ms. Kellogg moved for a judgment of acquittal on the conspiracy count. In support of Ms. Kellogg's motion for judgment of acquittal, counsel for Ms. Kellogg stated: "There may very well be a separate conspiracy involving Ms. Kellogg and Mr. Harris, but that's not what Count 1 is. Count 1 is a conspiracy with Tate."² The district court denied both motions. After deliberations, the jury found both Mr. Tate and Ms. Kellogg guilty on all of the counts with which they were charged.

The district court sentenced Mr. Tate a few months later. It determined his base offense level (38) based on offense conduct involving 4.5 kilograms or more of actual methamphetamine. It applied U.S.S.G. § 2D1.1(b)(1)'s 2-level firearm possession enhancement, in part because "there was a firearm located in his residence during the search . . . , which was in the close proximity to large sums of cash."³ It also applied both a 4-level enhancement for Mr. Tate's role as an organizer or leader of criminal activity that involved five or more participants and a 3-level enhancement for obstruction of justice. The district court then explained that, although the sum of Mr. Tate's base offense level and enhancements was 47, his total offense level could be no higher than 43, the maximum under the Guidelines. Because Mr. Tate's offense level was the maximum under the Guidelines, the Guidelines recommended life imprisonment. The district court sentenced him to 400 months' imprisonment, to be followed by 10 years of supervised release.

The district court sentenced Ms. Kellogg on the same day that it sentenced Mr. Tate. It determined Ms. Kellogg's base offense level (34) based on offense conduct involving 500 grams but less than 1.5 kilograms of actual methamphetamine. The district court applied U.S.S.G. § 2D1.1(b)(1)'s 2-level firearm-possession enhancement. It also applied § 3B1.1(b)'s 3-level enhancement for Ms. Kellogg's role as a manager or supervisor of criminal activity that involved five or more participants. Based on Ms. Kellogg's total offense level (39) and her criminal history (category III), the district court calculated her guidelines range as 324 to 405 months. The district court sentenced her to 288 months' imprisonment, to be followed by 5 years of supervised release.

Mr. Tate and Ms. Kellogg appealed.

IIDISCUSSION

A. Evidentiary Challenges to Convictions

Each of the defendants raises a sufficiency of the evidence challenge to one of the counts on which they were convicted. We will overturn a conviction for insufficient evidence only if, viewing the evidence in the light most favorable to the government, "no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. O'Leary, 957 F.3d 731, 733 (7th Cir. 2020); see Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

1.

Mr. Tate challenges the sufficiency of the evidence supporting his conviction on the possession with intent to distribute count. The Government based its charge on that count on the five pounds of methamphetamine that the police discovered during the traffic stop. Those five pounds of meth were part of the fifteen pounds that Mr. Tate was helping Dimmett sell after Stennis's murder.

Mr. Tate contends that the Government did not prove beyond a reasonable doubt that he had possession of the drugs. Because possession can be sole or joint, United States v. Lawrence, 788 F.3d 234, 240 (7th Cir. 2015), the...