In the
United States Court of Appeals
For the Seventh Circuit

Nos. 98-2649 and 99-1933

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANTHONY HALL and SCOTT WALKER,

Defendants-Appellants.



Appeals from the United States District Court
for the Southern District of Illinois.
No. 96 CR 40094--J. Phil Gilbert, Chief Judge.


Argued January 6, 2000--Decided May 16, 2000



      Before COFFEY, FLAUM and KANNE, Circuit Judges.

      COFFEY, Circuit Judge. A federal grand jury
returned a fourteen count superseding indictment
against co-Defendants Anthony Hall ("Hall") and
Scott Walker ("Walker") on July 9, 1997, charging
each of them: in Count one with conspiring to
distribute methamphetamine and marijuana; and in
Count two with conspiring to distribute LSD./1
In Count three, Walker alone was charged with
conspiring to distribute LSD, and in Counts five,
eight and twelve, he was charged with carrying a
firearm in relation to a drug trafficking crime.
In Counts nine and eleven, Walker was also
charged with possessing methamphetamine with
intent to distribute, and in Count ten, he was
charged with possessing marijuana with intent to
distribute. At the conclusion of a jury trial, a
verdict of guilty was returned against Walker on
Counts one, two, three, ten and eleven. He argued
at his sentencing that he received ineffective
assistance of counsel with respect to his plea
agreement negotiations and also moved for a
downward departure, alleging that an unjustified
disparity existed between his sentence and that
of one Timothy Conway ("Conway"), a co-
conspirator tried and sentenced in a separate,
albeit related, case. Following a two-day
sentencing hearing, the judge denied Walker’s
ineffective assistance claim and motion for
downward departure, and sentenced him to life on
Count one, twenty year concurrent sentences on
Counts two, three and eleven, and five years on
Count ten, all sentences ordered to run
concurrently and concurrent with each other. With
regard to Hall, a jury returned a verdict of
guilty against him on Counts one and two. Making
no objections to his Presentence Investigation
Report ("PSR"), the judge adopted its
recommendations and sentenced Hall to 87 months’
imprisonment on Counts one and two, ordered to
run concurrently and concurrent with each other.
We AFFIRM.

I.   BACKGROUND

      From 1990 through 1996, as the consummate drug
"middleman," Walker was the organizer and leader
of a large drug distribution ring and obtained
his marijuana, methamphetamine and LSD from
various drug sources in Arizona for distribution
primarily in southern Illinois. Walker’s drug
distribution ring consisted of more than 15
participants, including Hall, a dealer himself,
and also Conway, one of Walker’s Arizona drug
suppliers who later became a witness for the
government.

      Walker and his drug associates typically
transported drugs from Arizona to southern
Illinois via automobile or commercial airline but
on occasion, shipped the drugs through the mail
or various shipping companies. As the number of
drug dealers and customers associated with Walker
increased, he commenced introducing his Arizona
drug suppliers to his street dealers and
customers in order that they might deal directly.
In exchange for Walker’s assistance, his drug
suppliers paid him a "finder’s fee" in both drugs
and money./2In sum, federal drug agents estimate
that Walker and his drug ring were responsible
for distributing approximately 545 kilograms of
marijuana, nine kilograms of methamphetamine, 1.3
kilograms of cocaine and 18,700 "hits" (or doses)
of LSD between 1993 and 1996. They also estimate
that within the conspiracies, a pound of
marijuana, an ounce of cocaine and an ounce of
methamphetamine each sold for approximately
$1,000, while one hit of LSD sold for $5 to
customers.
      Walker and Hall were arrested by federal law
enforcement officers in November 1996. The court
at Walker’s sentencing incorporated the findings
and recommendations of the PSR and concluded that
his relevant conduct involved approximately three
kilograms of methamphetamine, five thousand doses
of LSD, 32 kilograms of marijuana and 200 grams
of cocaine. The court also followed the PSR’s
recommendation that Walker receive a number of
upward adjustments: (1) four levels for his
leadership role in the offense, (2) two levels
for possessing a firearm during the commission of
a drug trafficking offense, (3) two levels for
using minors to commit the offense, (4) and two
levels for obstructing justice, resulting in a
total offense level of 43, accompanied by a
criminal history category of III.

      Walker moved for a downward departure, arguing
that an unjustified disparity existed between his
sentence and that of Conway, and claimed that he
received ineffective assistance of counsel from
his prior attorney, Duane Verity ("Verity"), in
negotiating a plea agreement. The court disagreed
and found that Verity’s representation of Walker
was well within the range of competence required
of criminal trial attorneys, and also concluded
that the disparity between Conway’s and Walker’s
sentences was justified. As the court noted,
Conway was sentenced to 71 months’ imprisonment
resulting from a total offense level of 23 and a
criminal history category of III.

      With regard to Hall’s sentencing, as referred
to in his PSR, 19.96 kilograms of marijuana, 580
dosage units of LSD and 126.7 grams of
methamphetamine were attributed to his relevant
conduct, which resulted in a total offense level
of 26, accompanied by a criminal history category
of II. Without objection, the judge adopted his
PSR’s findings and recommendations, but on
appeal, Hall argues that his sentencing under the
1997 Sentencing Guidelines violated the ex post
facto clause.

II.    ISSUES

      On appeal, Walker argues that: (1) the court
erred in refusing to grant his motion for a
downward departure based on the disparity between
his and Conway’s sentence; and (2) Verity
provided him with ineffective assistance of
counsel during plea negotiations. Hall claims
that: (1) he should have been sentenced under the
less severe 1994 Sentencing Guidelines instead of
the 1997 version, which was in effect at the time
of his sentencing; and (2) his conviction under
Counts one and two is insufficiently supported by
the evidence.

III.    DISCUSSION

A.    Defendant Walker

        1.   Sentencing Disparity Claim

      Walker argues the sentencing judge abused his
discretion when he refused to grant him a
downward departure based upon the allegedly
unjustified disparity between his and Conway’s
sentences. We have previously held that
a disparity among co-defendants’ sentences is not
a valid basis to challenge a guideline sentence
otherwise correctly calculated. United States v.
Edwards, 

, 1397-98 (7th Cir. 1991);

("[n]othing in 18 U.S.C.
sec. 3742(a) . . . allows review of a sentence
imposed in conformity with the Guidelines on
grounds that a codefendant was treated
differently."). As we noted in United States v.
Guerrero, 

, 267 (7th Cir. 1990),
"[t]here is no statement in the legislative
history suggesting that sentences within the
Guidelines should be reviewed because of a claim
that a particular sentence is draconian or too
lenient." . . . Even under pre-Guidelines
sentencing procedure, disparity among sentences
received by co-defendants was grounds for
reversal only if the judge failed to give
"thoughtful consideration" to the matter, see
United States v. Nowicki, 

, 409 (7th
Cir. 1989), and "mere disparity of sentences
between co-defendants and co-conspirators cannot
alone prove an abuse of [the district court’s]
discretion." United States v. Coonce, 

, 1282 (7th Cir. 1992); see also United
States v. Morris, 

, 1403 (7th Cir.)
(same), cert. denied, 

, 

, 

(1992).

United States v. Dillard, 

, 311 (7th
Cir. 1994).

      Indeed,

[t]here are two types of disparities: justified
and unjustified. A justified disparity is one
that results from the proper application of the
Guidelines to the particular circumstances of a
case. This type of disparity can never be a basis
for departure from the Guidelines’ sentencing
range because it is the application of the
Guidelines that created the disparity in the
first place.

United States v. Meza, 

, 549 (7th
Cir. 1997) (citations omitted) (emphasis added);
see United States v. Krilich, 

, 1031
(7th Cir. 1998) ("Differences that occur as a
result of a proper application of the Guidelines
in light of the prosecutor’s charging decisions
are never ’unjustified’ . . . ."); United States
v. Monem, 

, 911 n.3 (7th Cir. 1997)
("We have held on several occasions that [a
disparity between sentences] is not a valid basis
on which to challenge a sentence that is
otherwise correctly calculated.").

      Here, Walker’s criminal activity was far more
serious than Conway’s: initially, let us point
out that Conway pled guilty pursuant to a plea
agreement and cooperated with law enforcement
authorities by assisting in the investigation and
testifying against the defendants, and thus
received a total offense level of 23. Walker, on
the other hand, was the leader of a large drug
conspiracy, refused to cooperate with law
enforcement authorities in their investigation
and prosecution, used a firearm during his drug
trafficking, employed minors to sell and
distribute his drugs and went so far as to
threaten potential witnesses. Moreover, while
Walker was an active participant in the
conspiracies for more than four years, Conway’s
activity was but two years in duration. Thus,
Walker received a total offense level of 43, some
twenty levels greater than Conway.

      Likewise, this court held in Meza that

[when] a defendant’s substantial assistance to
the government and a defendant’s acceptance of a
plea agreement are the mitigating sentencing
factors, . . . any resulting disparity between
the sentences of the coconspirators is the result
of the application of these factors. "The
Guidelines’ goal of national sentencing
uniformity is not aimed only at the particular
criminal conduct that co-conspirators may share,
but also addresses other factors that often vary
between co-conspirators" like acceptance of plea
agreements and assistance to the government.
Justified disparities like these, therefore, can
never be a basis for departure from the
Sentencing Guidelines as it is the Guidelines
that produce the disparity.

(citations omitted)
(emphasis added). We are convinced that the
disparity between Walker’s and Conway’s sentences
is justified, and conclude that the judge did not
abuse his discretion in denying Walker’s motion
for downward departure. See United States v.
Gonzalez-Portillo, 

, 1123 (7th Cir.
1997).


      2.   Ineffective Assistance of Counsel Claim

      Next, Walker essentially argues that his former
attorney, Verity, provided ineffective assistance
of counsel by failing to procure a plea agreement
with the government./3 To make out a successful
ineffective assistance of counsel claim, the
petitioner must demonstrate that: (1) his
counsel’s performance fell below an objective
standard of reasonableness; and (2) the deficient
performance so prejudiced his defense that it
deprived him of a fair trial. See Strickland v.
Washington, 

, 688-94 (1984).
With regard to the performance prong, [the]
defendant must direct us to the specific acts or
omissions which form the basis of his claim. The
court must then determine whether, in light of
all the circumstances, the alleged acts or
omissions were outside the wide range of
professionally competent assistance.

. Ineffective assistance
of counsel claims are generally frowned upon on
direct appeal. See United States v. D’Iguillont,

, 614 (7th Cir. 1992). Nonetheless,
"[r]egardless of when it is made, because counsel
is presumed effective, a party bears a heavy
burden in making out a winning claim based on
ineffective assistance of counsel." United States
v. Trevino, 

, 338 (7th Cir. 1995).

      Claims that an attorney was ineffective
necessarily involve inquiries into an attorney’s
trial strategies, which in turn requires facts
which usually are not found in the trial record.
As such, many trial tactics, like so many "other
decisions that an attorney must make in the
course of representation[, are] a matter of
professional judgment." United States v.
Berkowitz, 

, 1382 (7th Cir. 1991).
Thus, we resist a natural temptation to become a
"Monday morning quarterback." Harris v. Reed, 

, 877 (7th Cir. 1990).

It is not our task to call the plays as we think
they should have been called. On the contrary, we
must seek to evaluate the conduct from counsel’s
perspective at the time, and must indulge a
strong presumption that counsel’s conduct falls
within a wide range of reasonable professional
assistance.

United States v. Ashimi, 

, 648 (7th
Cir. 1991) (citations and quotations omitted).

      Should the petitioner satisfy the performance
prong, he must next fulfill the prejudice prong
and demonstrate "that there is a reasonable
probability that, but for counsel’s
unprofessional errors, the result of the
proceedings would have been different." United
States v. Starnes, 

, 1210 (7th Cir.
1994). "In making the determination whether the
specified errors resulted in the required
prejudice, a court should presume . . . that the
judge or jury acted according to law."

.

      During Walker’s two-day sentencing hearing, the
judge heard the testimony of a number of
witnesses, including Verity, and became aware of
his version of the plea agreement question and
proceeded to find reliable his description that
both the government and Walker were "intractable"
about plea negotiations and that each time he
discussed the option of pleading guilty with
Walker, the defendant demanded to go to trial
unless the government agreed not to insist on any
prison time. Further, even though Walker
presented affidavits from various family members
and friends stating that he would have accepted
a plea agreement if one had been offered, he does
not dispute the fact that the government never
offered a plea agreement. After considering the
evidence offered at the sentencing hearing and
the documents presented on this issue, the court
concluded that no formal plea agreement was
offered to Walker, and also determined that
Walker remained steadfast in refusing to ever
consider any plea agreement involving time in a
federal prison.
      We are convinced from our review that Walker’s
counsel’s representation did not fall below an
objective standard of reasonableness. Indeed,
Verity testified that his attempts to
successfully negotiate a plea agreement were also
stymied by Walker himself, through his
unreasonable demand that despite his extensive
drug activity, he avoid any and all jail time.
Further, the successful negotiation of a plea
agreement involves factors beyond the control of
counsel, including the cooperation of his client,
clearly absent here, as well as the cooperation
of the prosecutor, who has no obligation to offer
such an agreement. See United States v. Springs,

, 749 (7th Cir. 1993) ("Prosecutors
need not offer discounts and may withdraw their
offers on whim. Defendants have no substantive
right to bargain-basement sentences."); see,
e.g., United States v. Webb, 

, at
*1 (10th Cir. July 25, 1997) ("[B]ecause
negotiating such a plea would require the
cooperation of both the government and district
court--neither of which have any obligation in
that regard--the ability to obtain a conditional
plea agreement was beyond [the] attorney’s
control."). Bearing in mind that "Congress has
dictated and we agree that severe sentences must
be imposed for such offenders if we hope to halt
the cancer of drugs on humanity," United States
v. Tolson, 

, 1505 (7th Cir. 1993),
we are of the opinion that it is axiomatic that
the government is not bound to discuss, much less
enter into, a plea agreement because there are
people who truly belong behind bars due to the
serious harm they pose to society, especially
those who choose to "poison the community with
the sale of illegal drugs." United States v.
O’Grady, 

, 355 (7th Cir. 1997).

      It is also evident that following Verity’s
withdrawal as counsel, Walker’s successor counsel
had several months to negotiate a plea agreement
but obviously failed to for reasons not
specifically set forth in the record, other than
suggesting that Walker’s continual insistence
that he not serve jail time or that the
government’s refusal to offer a plea bargain was
the reason why a plea agreement never became a
reality. Accordingly, because Walker instructed
Verity that he would not accept any plea
agreement that included any jail time and no
prosecutor is ever under any obligation to
consider much less offer a plea bargain, Walker
has failed to demonstrate that Verity’s
assistance fell below an objective standard of
reasonableness. We reject Walker’s ineffective
assistance of counsel claim./4

B.   Defendant Hall

      1. Hall’s Challenge to His Sentencing Under the
1997 Guidelines

       Hall contends that his sentencing under the
1997 Sentencing Guidelines violated the ex post
facto clause because he was not an active
participant in the conspiracy to distribute
methamphetamine and marijuana after June 1995,
and thus, the less severe 1994 Guidelines should
have been applied to his sentencing. We note at
the outset that Hall raises this challenge for
the first time on appeal, and thus, it is deemed
waived and the plain error standard applies. See
United States v. Rivero, 

, 623 (7th
Cir. 1993). Nevertheless, "[a] sentence based on
an incorrect guideline range constitutes an error
affecting substantial rights and can thus
constitute plain error." United States v.
Robinson, 

, 273 (7th Cir. 1994); see
United States v. Aman, 

, 557 (7th Cir.
1994).

      As a general rule, a court imposes a sentence
based on the guidelines in effect as of the date
of sentencing. See U.S.S.G. sec. 1B1.11(a). But
if "the court determines that use of the
Guidelines Manual in effect on the date that the
defendant is sentenced would violate the ex post
facto clause [(i.e., "subject the defendant to
increased punishment")] . . ., the court shall
use the Guidelines Manual in effect on the date
that the offense of conviction was committed."
sec. 1B1.11(b)(1), cmt. (backg’d); see United
States v. Kezerle, 

, 870 (7th Cir.
1996); United States v. Brassell, 

,
277 (7th Cir. 1995); United States v. Seacott, 

, 1384 (7th Cir. 1994).

      To resolve Hall’s claim,/5 we must initially
determine the date of the occurrence of Hall’s
criminal offense and determine if the version of
the sentencing guidelines in effect at that time
would have resulted in a less severe penalty
because the "retroactive application of a harsher
sentencing guideline contravenes the very purpose
of the Ex Post Facto Clause." 

. Hall contends that his active participation
in the conspiracy to distribute methamphetamine
and marijuana ended as of June 1995, when the
1994 Guidelines were still in effect.

      It is evident from the charging papers and the
record, however, that Hall was charged and
convicted of conspiring to distribute
methamphetamine and marijuana from June 1993 to
November 1996. We also note that Hall did not
raise any objections to the information contained
in his PSR, which concluded that the drug
conspiracy charged in Count one continued from
1993 through August 1996.

      Indeed, a court may adopt

the factual findings and calculations contained
in a PSR, provided that those findings are based
upon sufficiently reliable information. United
States v. LaGrone, 

, 340 (7th Cir.
1994); 

; United States v.
Musa, 

, 1308 (7th Cir. 1991). In
fact, when a defendant has failed to produce any
evidence calling the report’s accuracy into
question, a district court may rely entirely on
the PSR. . . . In the absence of actual evidence
controverting the information in the PSR, i.e.,
something more than the appellants’ mere denials,
it was not necessary for the court to conduct any
further inquiry into the disputed sentencing
issues.

United States v. Taylor, 

, 547 (7th
Cir. 1995).

      Further, the evidence presented at trial
established his participation in the conspiracy
during the period charged in the indictment
(Count one: from 1993 through 1996). Regardless
of the date of the occurrence of his final
criminal act, as a member of a conspiracy, Hall’s
relevant conduct for sentencing purposes includes
"all reasonably foreseeable acts . . . of others
in furtherance of the jointly undertaken criminal
activity, that occurred during the commission of
the offense of conviction." U.S.S.G. sec.
1B1.3(a)(1)(B).

It is not, however, all that easy to withdraw
from a conspiracy. Withdrawal requires an
affirmative act to either defeat or disavow the
purposes of the conspiracy, such as making a full
confession to the authorities or communicating to
co-conspirators that one has abandoned the
enterprise. United States v. Patel, 

,
294 (7th Cir. 1989). Merely ceasing participation
in the conspiracy, even for extended periods, is
not enough. 

v. Bafia, 

, 1477 (7th
Cir. 1991) (emphasis added). The burden to
establish withdrawal from a conspiracy remains
firmly on the defendant even once it appears that
he has been expelled from the conspiracy. See
United States v. Schweihs, 

, 1322-23
(7th Cir. 1992). It is evident that other than
his bald assertion to the contrary, the record is
devoid of any evidence that demonstrates that
Hall affirmatively disavowed the purposes of the
conspiracy.

      For these reasons, we reject Hall’s assertion
that his involvement in the conspiracy ended in
1995, and conclude that he remained a member of
the conspiracy until its end in 1996, and for
purposes of sentencing, is responsible for the
reasonably foreseeable offenses of his
coconspirators, which also carried through 1996.
See U.S.S.G. sec. 1B1.3(a)(1)(B). We hold that
the sentence the court imposed upon Hall under
the 1997 Guidelines was not in violation of the
ex post facto clause for this version of the
Guidelines was in effect at the time of his
sentencing./6

        2.   Sufficiency of the Evidence Presented at
Trial

      Essentially, Hall argues that the government
failed to present evidence that supports his
conviction on the specific conspiracies set forth
in Counts one and two. In reviewing Hall’s
sufficiency of the evidence claim, we are
cognizant of the fact that Hall "faces a nearly
insurmountable hurdle," United States v. Moore,

, 1363 (7th Cir. 1997), because

[w]hen reviewing a conviction for sufficiency of
the evidence, we neither reweigh the evidence nor
do we substitute our judgment of the facts for
that of the factfinder. See United States v.
Hatchett, 

, 1416 (7th Cir. 1994). We
consider the evidence in the light most favorable
to the prosecution, making all reasonable
inferences in its favor, and affirm the
conviction so long as any rational trier of fact
could have found the defendant to have committed
the essential elements of the crime. See Jackson
v. Virginia, 

, 319, 

, 

(1979). Reversal is warranted
"’only when the record is devoid of any evidence,
regardless of how it is weighed, from which a
jury could find guilt beyond a reasonable doubt.’"
United States v. Garcia, 

, 1128 (7th
Cir. 1994) (quoting United States v. Gutierrez,


, 1468-69 (7th Cir. 1992)).

United States v. Masten, 

, 794 (7th
Cir. 1999).

      We conclude that there was more than sufficient
evidence presented at trial to support Hall’s
conviction of conspiring to distribute
methamphetamine and marijuana, as well as
conspiring to distribute LSD because a number of
witnesses (at least six) testified that Hall was
involved with Walker and his drug associates in
the conspiracies to purchase and distribute
drugs. Further, at least five of Hall’s former
drug co-conspirators, including Conway and McRoy,
later became cooperating witnesses against the
defendants and testified that on numerous
occasions during 1994 and 1995, Hall traveled by
himself and at times with other co-conspirators
to Arizona to purchase marijuana, methamphetamine
and LSD.

      Hall also contends that the testimony of the
government informant who testified against him at
trial was perjurious. He does not take issue with
the heart of the informant’s testimony,
describing Hall as a drug dealer, but challenges
the informant’s testimony that relates to Hall
attacking the informant and the informant’s wife
at a bar./7 It is evident from the record that
the informant’s testimony on this issue can at
worst be classified as confused, which was
brought out to the attention of the jury by
Hall’s counsel during cross-examination. Let us
also point out that this portion of the
informant’s challenged testimony relates only to
a collateral, inconsequential event that does not
pertain to the drug conspiracies in which Hall
was involved. Indeed, the informant’s confused
testimony on a non-material event clearly does
not constitute perjury. See United States v.
Dunnigan, 

, 94 (1993) ("A witness
testifying under oath or affirmation [commits
perjury] if he or she gives false testimony
concerning a material matter with the willful
intent to provide false testimony, rather than as
a result of confusion, mistake or faulty
memory.") (emphasis added).
      Because the record contains more than sufficient
evidence from which a rational jury could have
concluded that Hall committed the crimes charged
in Counts one and two, see 

, we reject his sufficiency of the evidence
challenge to his conviction.

IV.   CONCLUSION

      We hold that the trial court properly exercised
its discretion when it refused Walker’s motion
for a downward departure, and properly rejected
his ineffective assistance of counsel claim. As
to Hall, we hold that the court’s application of
the 1997 Guidelines to his sentencing was proper
and that his convictions for the conspiracies
charged in Counts one and two of the indictment
are amply supported by the evidence received at
trial. Walker’s and Hall’s convictions and
sentences are AFFIRMED.



/1 The indictment also charged four other co-
conspirators who are not involved in this appeal.

/2 As early as January 1994, Hall also made frequent
trips to Arizona with Walker and other drug
associates to purchase cocaine, LSD, marijuana
and methamphetamine from Walker’s drug sources,
including Conway. Like Walker, Hall would travel
to Arizona to purchase drugs, transport drugs
himself or arrange for the transport of drugs
back to Illinois.

      According to the testimony of a confidential
informant, during May and June of 1995, the
informant made controlled buys of cocaine, LSD,
and marijuana from Hall and Christopher McRoy
("McRoy"), a co-conspirator who later also became
a cooperating witness for the government. McRoy
and Hall were arrested and charged with state
drug charges resulting from the informant’s
cooperation.

      The informant testified at trial that shortly
after Hall and McRoy were released on bail, they
threatened him with death. The informant also
testified that McRoy "beat him up" while Hall
physically assaulted his wife.

/3 Walker’s only claim dealing with ineffective
assistance of counsel is that Verity was not able
to procure a negotiated plea agreement.
/4 Walker also argues that "the district court erred
in failing to hold an evidentiary hearing on
whether [Verity] provided constitutionally
ineffective assistance of counsel." It is evident
from the record, however, that during a two-day
sentencing hearing, the court in fact fully
considered Walker’s moving papers and affidavits
submitted in support of his claim, together with
the government’s responses, as well as heard
testimony from Verity and considered Walker’s
offer of proof. Thus, we conclude that Walker’s
argument is without merit.

/5 We note that Hall’s ex post facto challenge
relates only to his sentencing for Count one,
conspiring to distribute methamphetamine and
marijuana.
/6 As referred in Hall’s PSR, "[t]he 1997 edition of
the Guidelines Manual has been used in this case.
The conversion of different drug types to
[marijuana] equivalents results in the same base
offense level as the 1995 edition of the
Guidelines Manual." (emphasis added).

/7 Hall specifically challenges the informant’s
failure to recall the exact date when the alleged
assault occurred.