In the
United States Court of Appeals
For the Seventh Circuit

Nos. 99-1936 and 99-1979

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KELLY JEMISON and DONIAL CARTER,

Defendants-Appellants.



Appeals from the United States District Court
for the Northern District of Illinois, Western Division.
No. 98 CR 50037--Philip G. Reinhard, Judge.


Argued September 6, 2000--Decided January 24, 2001




      Before CUDAHY, COFFEY, RIPPLE, Circuit Judges.

      COFFEY, Circuit Judge. On July 30, 1998, the
United States Attorney for the Northern District
of Illinois filed a criminal information charging
the defendants-appellants Donial Carter and Kelly
Jemison each with one count of conspiring to make
false statements in an application for the
purchase of firearms from a federally licensed
firearms dealer, in violation of 18 U.S.C. sec.
371, and three counts of causing false statements
to be made in the records of a federally licensed
firearms dealer, in violation of 18 U.S.C. sec.
924(a)(1)(A).

      On December 22, 1998, Jemison pled guilty to
Count One of the information (conspiracy to make
a false statement in an application for the
purchase of a firearm from a federally licenced
firearms dealer) and the other three counts
charged were dismissed pursuant to a plea
agreement. At Jemison’s March 31, 1999 sentencing
hearing, the trial judge sentenced her to 16
months of imprisonment, three years of supervised
release, and a special assessment of $100. Carter
pled guilty to all four counts of the indictment
on March 31, 1999. At Carter’s April 8, 1999
sentencing hearing, the trial judge ordered him
imprisoned for a period of 66 months on each of
the four counts with each of his sentences to run
concurrent with each other, three years of
supervised release, a $500 fine, and a $400
special assessment. On appeal, Jemison argues
that she received ineffective assistance of
counsel. Carter argues: (1) that the sentencing
court committed clear error in increasing his
base offense level by four points pursuant to
U.S.S.G. sec. 2K2.1(b)(5) for attempting to
transfer firearms with reason to believe that
those firearms would be used in connection with
felony offenses; and (2) that the court erred in
sentencing him to four concurrent terms of
imprisonment of 66 months each when the statutory
maximum term of imprisonment for each count was
only 60 months. We affirm as to Jemison. As to
Carter, we affirm in part, reverse in part, and
remand for re-sentencing.

I.   BACKGROUND
A.   The Crimes

      On November 29, 1997, Donial Carter went to the
Shootin’ Shack gun shop in Rockford, Illinois,
and ordered two nine-millimeter pistols. Mike
Douglas, the owner of the gun store, called the
Illinois State Police’s Firearm Transfer Inquiry
Program ("FTIP") and gave Carter’s Illinois
Firearms Owners Identification Card ("FOID")
number for approval to purchase the weapons and
the FTIP refused to approve the gun sale to
Carter based upon an outstanding arrest
warrant./1 Due to the FTIP’s failure to approve
the transaction, Douglas declined to make the
sale to Carter.

      After being refused the opportunity to purchase
the pistols, Carter contacted his half-sister,
Kelly Jemison, who had a valid Illinois FOID, and
requested that she purchase the firearms for him.
Jemison agreed, and on December 6, 1997, she
accompanied Carter to the gun store and executed
a Bureau of Alcohol, Tobacco, and Firearms
("ATF") Form 4473 for the purchase of two
firearms, including one of the pistols Carter
previously had attempted to purchase in November.
In response to the question on the gun sale form
asking "Are you the actual buyer of the firearm
indicated below?" Jemison answered "Yes." Neither
Jemison nor Carter contests that her answer on
the application was false and, in fact, Jemison
subsequently admitted, in a signed statement to
the police, that she was purchasing the weapons
for Carter.

      Just one month later, on February 5, 1998,
Jemison again accompanied Carter to the gun shop
and purchased a nine-millimeter pistol. Jemison
again executed an ATF Form 4473 in which she
answered "Yes" to the question "Are you the
actual buyer of the firearm indicated below?"
when in fact she was acting as a "strawman" in
purchasing the guns for Carter, who in turn re-
sold the nine-millimeter pistol./2

      On June 12, 1998, Carter called Douglas at the
gun store and stated that he wished to purchase
10 Lorcine nine-millimeter pistols. After being
quoted a price of $110 per pistol, Carter
informed Douglas that it was his intention to re-
sell these ten guns for a profit. Although Carter
did not disclose the identity of the prospective
gun buyers to Douglas, he did admit later to the
police that he planned to sell the guns to
members of the Gangster Disciples, a nationally
known street gang. Douglas advised Carter that it
would be illegal to re-sell the pistols without
a federal firearms dealer’s license. Later that
day, Carter and Jemison spoke with Douglas on a
conference call, and informed him that Jemison
would purchase the ten pistols because he
(Carter) still did not possess a valid FOID.
Douglas advised Carter and Jemison that their
plan constituted an illegal "straw purchase." In
spite of this information, Carter told Douglas
that he wanted to go through with the purchase of
the pistols through Jemison. After their
discussion, Douglas notified ATF about the
pending gun sale to Jemison for Carter and agreed
to cooperate in an investigation of the illegal
transaction.

      On June 24, 1998, Carter visited the Shootin’
Shack and, during a tape-recorded conversation,
told Douglas that he intended to take possession
of the pistols that Jemison was purchasing from
him and sell them to buyers in Chicago. Carter
also informed Douglas that in the future he
intended to buy about $1,000 worth of guns from
him per week for re-sale purposes. Carter left
the gun store without making any down-payment on
the pistols. Later that day, Carter called to
confirm that Jemison would return and make the
actual purchase and pick up the weapons. During
this telephone conversation, Carter mentioned
that he would be re-selling the firearms to
buyers living in the Chicago, Illinois, area.

      On July 2, 1998, Carter arrived at the store in
a car with one other passenger, identified as
Tommy Davidson, a member of the Gangster
Disciples. Unbeknownst to Carter and Jemison, not
only was their trip surveilled by ATF agents, but
their conversation in the Shootin’ Shack was
recorded. Carter and Jemison counted out $1062 in
cash for the ten guns, and Carter handed the
money to Douglas. After the sale, Carter
requested that Douglas prepare a false sales
receipt in the amount of $1867.51 to facilitate
his charging an inflated price for the guns.
Carter left the store carrying the box containing
the pistols. He and Davidson stashed nine of the
guns in the trunk of their vehicle, and placed
the other pistol on the console between them on
the front seat. When Jemison exited the store
with the phony receipt, she and Carter were
arrested and taken into custody.

B.   The Confessions

       After their arrest, Jemison and Carter were
conveyed to the Rockford Public Safety Building
(police station) and questioned. Jemison
initially stated that she was a gun collector and
had purchased the ten pistols for her personal
use, but later recanted this fabrication and, in
a signed confession, admitted that she had
purchased the guns for Carter. Her statement
reads:

      3 weeks ago Donial called me and asked me if I
wanted to make some money and he was going to pay
$300.00 using my FOID card. He used my number to
order guns at the Shooting Shack in Rockford and
told me only that I had to sign gun forms. . . .
Donial never paid me the money and (sic) he said
he was, and I did not know what he was doing with
the guns. No clue.

      Carter also initially stated that the guns were
purchased for Jemison’s private use as a
collector. Later, he also retracted that story
and admitted in a signed confession that he was
purchasing the guns for a Gangster Disciple named
"Will" who had directed that Tommy Davidson
accompany Carter and observe the transaction.
Carter told the police:

      I ran into Will after being jumped by some
Urban Lord gang members and I talked to him about
being protected because he was a G.D. [Gangster
Disciple] and we came to a (sic) agreement that
if I could find him some guns that he could help
me be protected from the gang members. So last
week I came to see Mike Douglas about it and he
told me that he would order the guns under my
sister’s name [as I requested.] . . . [Will] gave
Tommy the money to ride with me to purchase the
guns because he didn’t trust me with the money.

C.   Jemison’s Plea Agreement and Sentencing

      In Jemison’s negotiated plea agreement, the
government agreed not to pursue the two-level
enhancement set forth in the United States
Sentencing Guideline 3B1.1/3 and in return
Jemison consented to waive her right to appeal
either her conviction or sentence. The appellate
waiver clause stated:

      Defendant understands that by pleading guilty
she is waiving all the rights set forth in the
prior paragraph. Defendant’s attorney has
explained those rights to her and the
consequences of waiving all appellate issues that
might have been available if she had exercised
her right to trial. The defendant is also aware
that Title 18, United States Code, Section 3742
affords defendant a right to appeal the sentence
imposed. Acknowledging all of this, the defendant
knowingly waives the right to appeal any sentence
within the maximum provided in the statute of
conviction (or manner in which that sentence was
determined) on the grounds set forth in section
3742 or on any other ground whatsoever, in
exchange for the concessions made by the United
States in this Plea Agreement. The defendant also
waives her right to challenge her sentence or the
manner in which it was determined in any
collateral attack, including, but not limited to,
a motion brought under Title 28, United States
Code, Section 2255.

On December 22, 1998, Jemison and her attorney,
Mark Danielson, signed the agreement which
averred that they had read the entire plea
document, including the appellate waiver
provision. Jemison subsequently entered a plea of
guilty to Count One of the information
(conspiracy to make a false statement in an
application for the purchase of a firearm from a
federally licenced firearms dealer) and the other
three counts charged were dismissed pursuant to
the plea agreement. The court, after
interrogating her as to the voluntariness of her
plea and knowledge of the plea agreement,
accepted her plea, ordered a pre-sentence report,
and continued her sentencing hearing to March 31,
1998.

      At Jemison’s sentencing hearing, defense counsel
moved for a continuance and informed the court he
had been advised by his client at the start of
the hearing that, for reasons not set forth in
the record, she was attempting to hire new
counsel. In support thereof, Jemison went on and
asserted that she had already hired new counsel.
The court, after questioning her, found Jemison’s
claim of newly retained counsel to be implausible
given the fact that no other attorney had either
filed a written notice of substitution of counsel
nor was a substitute attorney present in court
for the scheduled sentencing hearing. The trial
judge denied her motion for a continuance and
proceeded with the hearing and sentenced her to
16 months’ imprisonment./4 Carrying out the
terms of the plea agreement, the prosecution did
not request (and the court did not apply)
enhancements to Jemison’s sentence. Jemison
appeals her conviction and sentence,
apparently/5 arguing that her counsel was
somehow ineffective in: (1) failing to file pre-
trial motions attacking unspecified "violations
of her Fourth and Fifth Amendment Rights," and
(2) failing to file a motion requesting the he be
allowed to withdraw prior to her sentencing
hearing based upon a "break-down" in
communications between counsel and Jemison.

D.    Carter’s Sentencing

      On December 22, 1998, Carter appeared before
the sentencing judge and entered a plea of guilty
to Counts One through Four of the information./6
The trial judge, after interrogating Carter and
satisfying himself that the plea was being
entered knowingly and voluntarily, found Carter
guilty and ordered a Presentence Investigation
Report ("PSR"). The PSR recommended that Carter’s
offense level be increased four levels under
U.S.S.G. sec. 2K2.1(b)(5) since Carter purchased
the firearms with the intent to transfer them to
another while having "reason to believe" those
firearms would be used in connection with the
commission of a felony offense./7 Carter
objected to this enhancement, arguing that just
because he had knowledge that the guns were being
purchased by gang members did not give him reason
to believe that the weapons would be used in a
future felony.

      The trial judge rejected this argument and
stated:

      He knew that the Gangster Disciples, as a Gang,
that they are engaged in all sorts of illegal
activity. It’s well known the Gangster Disciples
gang is engaged in felony drug offenses and other
crimes of violence and shootings that are felony
offenses and that they are using weapons for
illegal purposes. It would just be naive of me to
say that under the facts, well, you have to show
that even though he knew they were being provided
to a gang, he really didn’t know what they were
going to be used for. I think that that would be
an unreasonable assumption and that he knew that
they were going to be used for felony offenses.

II.    ISSUES

      On appeal, Jemison argues that she received
ineffective assistance of counsel. Carter argues
that: (1) the district court committed clear
error in enhancing his offense level four levels
pursuant to U.S.S.G. sec. 2K2.1(b)(5) for
attempting to transfer firearms with "reason to
believe" that those weapons would be used in
connection with a future felony offense; and (2)
that the district court erred in sentencing him
to concurrent terms of 66 months when the
statutory maximum term of imprisonment on each
count was only 60 months.
III. ANALYSIS
A. Waiver of Jemison’s Ineffective Assistance of
Counsel Claim

      On appeal, Jemison broadly asserts that she
received ineffective assistance of counsel in
violation of her Sixth Amendment rights, but
fails to set forth particulars as to how her
counsel was ineffective. If we hold that she has
entered into a binding appellate waiver, we need
not address the merits of her claim of
ineffective assistance of counsel as we "have
routinely held that a defendant may waive the
right to a direct appeal as part of a written
plea agreement."/8 Jones v. United States, 

, 1144 (7th Cir. 1999).

      1.   Enforceability of the Appellate Waiver

      As previously stated, both Jemison and her
attorney, Mark Danielson, knowingly and
voluntarily signed the plea agreement and averred
that they had read the plea document, including
the appellate waiver provision. Thereafter,
Jemison entered a plea of guilty on December 22,
1998 which was accepted by the court. The
appellate waiver clause in Jemison’s plea
agreement explicitly stated:

      Defendant understands that by pleading guilty
she is waiving all the rights set forth in the
prior paragraph. Defendant’s attorney has
explained those rights to her and the
consequences of waiving all appellate issues that
might have been available if she had exercised
her right to trial. The defendant is also aware
that Title 18, United States Code, Section 3742
affords defendant a right to appeal the sentence
imposed. Acknowledging all of this, the defendant
knowingly waives the right to appeal any sentence
within the maximum provided in the statute of
conviction (or manner in which that sentence was
determined) on the grounds set forth in section
3742 or on any other ground whatsoever, in
exchange for the concessions made by the United
States in this Plea Agreement. The defendant also
waives her right to challenge her sentence or the
manner in which it was determined in any
collateral attack, including, but not limited to,
a motion brought under Title 28, United States
Code, Section 2255.

      An appellate waiver will be enforced if: (1)
its terms are clear and unambiguous; and (2) the
record demonstrates that it was entered into
"knowingly and voluntarily." 

. We are convinced that the appellate waiver
set forth in Jemison’s plea agreement fulfills
these requirements. Furthermore, we note that we
have previously enforced an appellate waiver
identical to the waiver language contained in
Jemison’s plea agreement. United States v.
Williams, 

, 667-68 (7th Cir. 1999).
In Williams, we found that the terms of the
waiver, as in this case, constituted an "express
and unambiguous" waiver. 

believe
that Jemison’s testimony before an Illinois state
court judge at her December 22, 1998, sentencing
hearing clearly illustrates that she "knowingly
and voluntarily" entered into and accepted the
appellate waiver terms of the plea agreement. At
that hearing, the following colloquy took place:

THE COURT: You have seen this plea agreement?
MS. JEMISON: Yes, I have.
THE COURT: And you have read it?
MS. JEMISON: Yes.
THE COURT: And you have discussed it with your
lawyer?
MS. JEMISON: Yes.
THE COURT: And you understand it?
MS. JEMISON: Yes.
THE COURT: Did anybody force you to sign it
either physically or mentally?
MS. JEMISON: No.

      The prosecution then recited for the record the
evidence that would have been introduced at trial
had Jemison not entered a plea of guilty,
including the fact that Jemison had falsely
filled out multiple ATF Form 4473’s when she knew
Carter’s FOID card was invalid during the time
period that she was making the firearms
purchases. Jemison also admitted that she was
told by Carter that she would be paid to make the
purchases, allowing the factfinder to conclude
that she knew the illegality of the gun-buying
scheme and the assistance she was providing in
its furtherance. Furthermore, she conceded that
she had been less then truthful when telling the
police that she was a firearms collector when she
was well aware that she was acting as a
"strawman" for Carter and making firearms
purchases because he did not possess a valid
FOID. When asked if she had committed the acts
set forth by the prosecution in its offer of
proof, Jemison answered "Correct." Following
Jemison’s admission, the trial judge advised her
that she was giving up her Constitutional rights
(including, but not limited to the right to a
trial by jury, the right to appointed counsel,
and the right to examine the prosecution’s
witnesses and present her own witnesses) by
entering into the plea agreement. The district
court also carefully explained in basic terms the
effect that the appellate waiver would have on
Jemison’s guilty plea:
THE COURT: Normally you would have the right
when you plead guilty to appeal the sentence or
appeal the sentencing procedures or any error
that I might make today in the plea of guilty
proceedings, but in your plea agreement you have
agreed that you are not going to take an appeal
at all or any other form of action to go to a
higher court to try to ultimately overturn what
I may rule in this case to be your sentence or
any other matter that I may rule on. Do you
understand that?
MS. JEMISON: Yes.
THE COURT: The essence is that I’m the last judge
in your case, and you ordinarily would have a
right to go to a higher judge. Do you understand
that?
MS. JEMISON: Yes.
THE COURT: And you have discussed that with your
lawyer?
MS. JEMISON: Yes.
THE COURT: And you understand. I take it you
think that’s in your best interest, is that
correct?
MS. JEMISON: Correct.
THE COURT: Now, I have explained to you all your
rights, and you say that you understand them. Do
you wish to give them up and plead guilty?
MS. JEMISON: Yes.

Based upon the facts set forth in the record,
including the admissions and statements made by
Jemison in open court, we are convinced that she
knowingly and voluntarily entered into an
enforceable appellate waiver whose terms were
clear and unambiguous. Jemison’s appeal is
dismissed.


B. Carter’s Objection to his Sentencing
Enhancement

      United States Sentencing Guideline Section
2K2.1(b)(5) authorizes an increase in the base
offense level in firearms offenses if the
defendant "possessed or transferred any firearm
or ammunition with knowledge, intent, or reason
to believe that it would be used or possessed in
connection with another felony offense." U.S.S.G.
sec. 2K2.1 (b)(5). Carter argues (in order that
it might benefit his own situation) that the
sentencing court should have interpreted section
2K2.1(b)(5) so that the mere transfer of multiple
firearms to a street gang, in and of itself, is
insufficient for a court to hold that he had
"reason to believe" such weapons would be used in
felonious activities. Essentially Carter asserts
that the guideline requires the prosecution to
establish that he had "reason to believe" that
the pistols would be used in a specific offense
in the future. We review the district court’s
finding at sentencing that Carter attempted to
"transfer" firearms with "reason to believe they
would be used in connection with other felonies"
for clear error. United States v. Purchess, 

, 1265 (7th Cir. 1997).

      We have previously affirmed imposing an
increased penalty under section 2K2.1(b)(5) for
defendants whose actions have resulted in
multiple gang members illegally coming into the
possession of firearms. United States v. Gilmore,

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

(7th Cir. 1995). Based upon
our review, we are convinced that Carter knew or
possessed good "reason to believe" that any
firearms he purchased and in turn re-sold to
members of the Gangster Disciples would in all
probability be used in connection with felonious
activities. Unlike the defendant-appellant in
Gilmore, Carter admitted that he intended to
provide firearms to members of a street gang,
specifically the Gangster Disciples. The Gangster
Disciples, of course, are an infamous nationwide
criminal organization based in Chicago, Illinois,
whose far-ranging illegal activities have in the
past included the sale of illicit drugs under
terms often negotiated and enforced, literally,
at gunpoint. See United States v. Smith, 

(7th Cir. 2000). We are well aware that
judges and the public are not blissfully ignorant
of the connection between criminal violence and
street gangs. See United States v. Sargent, 

, 328 (7th Cir. 1996). Like the trial
judge stated, we believe it would be "naive" for
either the trial court or this court to conclude
that Carter never had any reason to believe that
the firearms he supplied to the Gangster
Disciples would be used in the commission of
future felonies.

C. Carter’s Objection to Being Sentenced to 66
Months of Imprisonment


      Carter argues, the government concedes, and we
agree that the district court erred in sentencing
him to concurrent terms of 66 months when the
statutory maximum term of imprisonment was
limited to 60 months on each of the four counts
of his conviction. See United States v. Joetski,

, 1098 (9th Cir. 1991). While the
trial judge obviously could have sentenced Carter
to 66 months (and a great deal more) if he would
have imposed consecutive sentences, his order
specifically directs that Carter’s sentences are
to run concurrently with one another. The
procedure for sentencing on multiple counts of
conviction is set forth at U.S.S.G. sec. 5G1.2.
Section 5G1.2(d) states:
If the sentence imposed on the count carrying the
highest statutory maximum is less than the total
punishment, then the sentence imposed on one or
more of the other counts shall run consecutively,
but only to the extent necessary to produce a
combined sentence equal to the total punishment.
In all other respects, sentences on all counts
shall run concurrently, except to the extent
otherwise required by law.

We remand Carter’s case to the district court for
re-sentencing, requesting that the sentencing
court make clear whether it intended to either:
(1) sentence Carter utilizing consecutive
sentences under U.S.S.G. sec. 5G1.2(d); or (2)
sentence him to 60 months imprisonment on all
four counts, with each sentence to run concurrent
with each other. 

      We hold that Jemison knowingly and voluntarily
entered into a written plea agreement that
contained a clear and unambiguous appellate
waiver clause that clearly recited that she was
forfeiting her rights to contest either her
conviction or sentence and we accordingly DISMISS
her appeal. We are convinced that Carter knew, or
at the very least, had "reason to believe" that
the firearms he was attempting to sell to members
of the Gangster Disciples would be used for
felonious offenses, thus we AFFIRM the district
court’s imposition of a U.S.S.G. sec. 2K2.1(b)(5)
sentencing enhancement as to his sentence.
Finally, as stated earlier, we agree that the
district court erred in imposing upon Carter a
sentence (66 months) in excess of that allowed
under the applicable sentencing guidelines (60
months).

      The decision of the district court is AFFIRMED in
part, REVERSED in part and REMANDED to the district
court for sentencing in conformance with U.S.S.G.
sec. 5G1.2(d) and this opinion.



/1 Any purchaser of a firearm in Illinois must
possess a valid Firearms Owners Identification
Card ("FOID"). Illinois Firearms dealers are
required to notify the Illinois State Police’s
Firearm Transfer Inquiry Program ("FTIP") prior
to making any weapons sale. FTIP performs a
criminal background check on the prospective
purchaser using the buyer’s FOID number given to
the dealer. If the prospective buyer has any
felony convictions or outstanding arrest
warrants, FTIP must decline approval of the sale
and the dealer is notified that he is legally
prohibited from selling any firearms to the
prospective purchaser. Carter’s denial was based
upon an outstanding Kane County, Illinois, arrest
warrant for domestic battery.

/2 A gun sale wherein an individual who is
authorized to purchase firearms from a licensed
Federal Firearms Dealer buys weapons for another
person who is not legally eligible to purchase
and/or possess a firearm is referred to as a
"straw purchase."


/3 Pursuant to United States Sentencing Guideline
3B1.1, if a defendant was an organizer, leader,
manager or supervisor of any criminal activity,
a two-level enhancement should be applied.

/4 Jemison’s original counsel continued to represent
her at sentencing after the court denied the
motion for a continuance.

/5 As detailed below, in her appellate brief Jemison
failed to develop either a factual basis or legal
reasoning for any claim of relief.

/6 No written plea agreement was entered.

/7 U.S.S.G. sec. 2K2.1(b)(5) authorizes an increase
to the base offense level for a defendant
convicted of a firearms offense where the
defendant "possessed or transferred any firearm
or ammunition with knowledge, intent, or reason
to believe that it would be used or possessed in
connection with another felony offense."

/8 We have previously recognized that a valid
appellate waiver, though binding in other
respects, does not preclude judicial review of a
criminal defendant’s assertion that her plea
agreement was itself the product of ineffective
assistance of counsel. United States v. Joiner,

, 645 (7th Cir. 1999). As Jemison has
neither argued that her appellate waiver was the
product of ineffective assistance of counsel nor
set forth facts illustrating that her attorney
was deficient in negotiating her plea agreement,
we proceed with an analysis of the validity of
her appellate waiver. 

.