In the

United States Court of Appeals
               For the Seventh Circuit

No. 06-4109

U NITED S TATES OF A MERICA,
                                               Plaintiff-Appellee,
                                v.

C LEVELAND F RANKLIN , JR.,
                                           Defendant-Appellant.


           A ppeal from the U nited States District Court
   for the Southern District of Indiana, Indianapolis Division.
            N o. 05CR208— John Daniel Tinder, Judge.



   A RGUED S EPTEMBER 25, 2008—D ECIDED O CTOBER 27, 2008




  Before P OSNER, F LAUM, and E VANS, Circuit Judges.
  F LAUM, Circuit Judge. Cleveland Franklin, Jr. was
stopped by the Indianapolis Police Department on Decem-
ber 1, 2005, and a subsequent search of his car led police
to over 270 grams of crack cocaine hidden in the dash-
board. Franklin pled guilty to one count of possession
of cocaine with intent to distribute and one count of
carrying a firearm during a drug trafficking crime. Before
pleading guilty, Franklin raised a number of challenges to
2                                               No. 06-4109

the search of his car, which he renews on appeal, along
with various arguments about the indictment, the trial
procedures, and his sentence.
  For the following reasons, we affirm the decision of
the district court.


                      I. Background
  In 2005, the Indianapolis Police Department was investi-
gating Franklin for drug trafficking. On December 1, 2005,
Detective Robert Wheeling, who was conducting that
investigation, radioed Officer Matt Hall and informed
him that Franklin was driving a gold Chevrolet Impala,
and was likely in possession of a large amount of crack
cocaine. Wheeling also informed Hall that Franklin had
previous convictions for drug and weapon offenses.
  Hall spotted Franklin’s car driving through Indianapolis
later that same evening. While following him, Hall ob-
served that Franklin’s car was traveling forty miles per
hour in a thirty-five zone, and that the car made a lane
change without signaling. Having witnessed these two
traffic offenses, Hall made a traffic stop of Franklin’s car.
While approaching the vehicle, Hall noticed the smell of
burnt marijuana coming from the open passenger side
window. After telling Franklin about his traffic infractions,
Hall also noticed something that looked like a marijuana
stem near Franklin’s knee. Hall asked Franklin to get out
of his car and had him stand near the trunk. Franklin, who
had been driving, denied having any drugs or guns in
the car. When Franklin kept reaching near his pocket
No. 06-4109                                                3

despite Hall’s warnings that he not do that, Hall
handcuffed Franklin and had him sit on the curb. About
this time, Hall’s back-up, Officer Brady Ball, arrived. After
Franklin’s passenger, James Wright, refused to cooperate
with instructions from the officers, Ball removed him
from the car and placed him in handcuffs.
  Suspicious of Franklin’s denials that the car contained
any drugs, Hall retrieved his drug sniffing dog, Bubba
Deuce, from his patrol car. The dog alerted near the
driver’s side door. Officer Hall then proceeded to con-
duct a search of the Impala. While examining the interior
of the car, Hall noticed that Franklin had placed a number
of air fresheners underneath the dashboard of his car;
knowing from his experience that this was often used to
mask the odor of drugs, Hall searched around the dash.
He ultimately discovered bags containing over 270 grams
of crack cocaine in the fuse box panel on the right side
of the dashboard.
  According to the police, Franklin then made incrim-
inating comments about the crack cocaine seized from
his car while sitting in the back of a police squad car. At
the station, Franklin said in a monitored phone call that
the police missed a semiautomatic handgun that he
had hidden inside the dashboard of the Impala. After
obtaining a search warrant, the police seized the gun
from the car.
   On December 21, 2005, Franklin was charged with
possession with intent to distribute in violation of
21 U.S.C. § 841(a)(1) and 841(b)(1)(A)(iii); carrying a
firearm during a drug trafficking crime in violation of
4                                                 No. 06-4109

18 U.S.C. § 924(c)(1); and unlawful possession of a firearm
by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
  Franklin filed a suppression motion on April 7, 2006,
challenging the search of his car. The district court initially
denied this motion on May 12, 2006, but reopened the
question after Franklin supplemented the motion. The
district court held a hearing on the suppression question
in June 2006, ultimately denying the suppression
motion for a second time after the hearing.
   On July 28, 2006, Franklin entered a conditional plea of
guilty to counts one and two of the indictment, the posses-
sion with intent to distribute charge and the use of a
firearm in a drug trafficking crime charge. Franklin re-
served the right to appeal the district court’s denial of his
suppression motion. On October 5, 2006, Franklin filed
a second motion to re-open the suppression issue, and
the district court held a second hearing and again
denied the motion. On November 17, 2006, Franklin was
sentenced to 300 months imprisonment and ten years
of supervised release, along with a fine of $1,000. This
appeal follows.


                        II. Discussion
    A. Whether the indictment was defective with respect
       to the first count, in that it failed to charge that
       the firearm was used “in relation” to a drug traffick-
       ing crime.
  Franklin first challenges the sufficiency of his indictment,
arguing that it fails to charge an essential element of
No. 06-4109                                               5

§ 924(c)(1). That statute provides criminal penalties for
anyone who carries a gun “during and in relation to any
crime of violence or drug trafficking crime . . .” 18 U.S.C.
§ 924(c)(1). Franklin’s indictment stated only that he
carried a firearm “during a drug trafficking crime.” At
issue, then, is whether the indictment is insufficient
because it eliminated the phrase “in relation to.”
  Franklin did not object to the indictment in the district
court. Consequently, in this court the indictment “is
immune from attack unless it is so obviously defective
as not to charge the offense by any reasonable construc-
tion.” United States v. Smith, 

, 571 (7th Cir.
2000) (internal quotation marks and citations omitted).
Moreover, this court will allow Franklin to withdraw the
plea on the basis that it is obviously defective only if
he shows that accepting the plea under the deficient
indictment was plain error by the district court. United
States v. Harvey, 

, 455 (7th Cir. 2007).
  Franklin argues that since he was charged under the
portion of § 924(c)(1) that makes it a crime to carry a
gun during and in relation to a drug trafficking crime, the
“in relation to” portion of the statute is an essential ele-
ment that must be charged in the indictment. He argues
that the omission of the phrase made the indictment
so deficient that he was unaware of the charges to which
he was pleading guilty. The government concedes that
the indictment was not perfect, and should have used
the phrase “in relation to” rather than just “during” a
drug trafficking crime. However, the government argues
that the indictment is constitutionally sufficient insofar
6                                               No. 06-4109

as it made Franklin aware of the statute under which
he was being charged and the way in which he violated
the statute.
  All parties agree that the indictment should have said
that Franklin carried the firearm “during and in relation
to” a drug trafficking offense. However, this circuit does
not require that a particular word or phrase always be
used when charging an offense in an indictment; rather,
this circuit has held that “[i]n determining whether an
essential element of the crime has been omitted from the
charge, courts will not insist that any particular word or
phrase . . . be used. The element may be alleged in any
form which substantially states it.” United States v.
Weatherspoon, 

, 600 (7th Cir. 1978). The indict-
ment here is flawed, but not so flawed that it merits
reversal; the count of the indictment that is in question
gave Franklin the date and place at which the offense
occurred, identified the handgun that he carried, and cited
the statute under which he was charged. This circuit has
previously held, with respect to § 924(c)(1), that the
recitation of those facts is sufficient to give the
defendant notice of the statute in question and the
conduct that the government alleges ran afoul of the
statute. 

. We thus cannot find that
an indictment that listed the statute under which
Franklin was charged and that provided specifics about
the predicate crime and the conduct that ran afoul of the
statute was so defective that it does not charge a viola-
tion of the statute under any reasonable construction.
Nor do we find that the district court abused its discre-
tion by accepting Franklin’s guilty plea.
No. 06-4109                                                 7

  B. Whether the defendant’s guilty plea was entered
     knowingly and voluntarily.
  Franklin next argues that his guilty plea was not entered
knowingly and voluntarily, because neither the plea
colloquy nor the plea agreement adequately set forth all
of the elements of a violation of § 924(c)(1). Franklin did
not seek to withdraw his guilty plea in the district court.
This court will thus examine the record below only for
plain error that seriously affected either the fairness, the
integrity, or the public reputation of the prior proceeding.
United States v. Vonn, 

, 63 (2002).
  Franklin argues that his plea was not knowing and
voluntary because neither the district court, during the
Rule 11 plea colloquy, nor the plea agreement, adequately
spelled out the “in relation to” element of § 924(c)(1). He
argues that his case is similar to United States v. Bradley,

, 645 (7th Cir. 2004), in which this court
determined that a guilty plea was not knowing and
voluntary because the defendant did not receive ade-
quate notice of the elements of § 924(c)(1). He also cites
United States v. Seesing, 

, 462 (9th Cir. 2000), a
Ninth Circuit case in which the court determined that a
guilty plea was not knowing or voluntary because the
defendant was unaware of the “in relation to” element of
the offense.
  The government argues in response that the plea collo-
quy adequately demonstrated Franklin’s understanding
of the charges against him. Additionally, at the plea
hearing, the government presented testimony from DEA
Officer Paul Buchman, who testified to the circumstances
8                                               No. 06-4109

of Franklin’s arrest, the amount of crack cocaine found
in his car, and the monitored phone call in which
Franklin talked about the police missing the Ruger hand-
gun that he had kept in the car while transporting the
drugs. The government also argues that the discovery of
the gun and the drugs in the same part of the car (under
the dashboard, while the drugs were found in a fuse box
panel on the side of the dashboard) was sufficient to
establish that the firearm was carried during and in
relation to the drug trafficking crime.
  Finally, the government points out that Franklin stipu-
lated that there was an adequate factual basis for every
element charged in the indictment. His counsel’s exact
stipulation, taken from the plea proceeding, is that
“Mr. Franklin does not agree with all of the details of the
factual basis, but he does stipulate that there is a factual
basis for each element charged in both count 1 and count
2 of the indictment.” Change of Plea Tr. at 38-39. Franklin
argues in his reply brief that this stipulation is mean-
ingless because it only stipulated to the elements con-
tained in the indictment which, he claimed before, was
defective.
  This court uses a totality of the circumstances approach
when evaluating whether or not a defendant voluntarily
made a guilty plea. “Under this approach, we consider
(1) the complexity of the charge; (2) the defendant’s level
of intelligence, age, and education; (3) whether the defen-
dant was represented by counsel; (4) the judge’s inquiry
during the plea hearing and the defendant’s statements;
and (5) the evidence proferred by the government.” United
States v. Fernandez, 

, 1025 (7th Cir. 2000).
No. 06-4109                                                    9

  In this case, the charges were not especially complex, and
the charge at issue was simply that the gun was present
while Franklin was transporting crack cocaine and was
connected with the transport of crack cocaine. Franklin
stated at the plea hearing that he was thirty years old
and had completed the eleventh grade; while Franklin did
not have extensive formal education, he also stated that
he reads fiction, non-fiction, and law books, and so it
was not plain error for the district court to conclude that
he was capable of understanding the charges to which
he was pleading. The district court inquired at the plea
hearing into Franklin’s understanding of the penalties
that he would face by pleading guilty to count two and
received the stipulation above that there was a factual
basis for the elements charged in the indictment. Franklin’s
effort to minimize the import of this stipulation is not
especially helpful to him; while it is true that the indict-
ment in this case was far from perfect, the citation to
the statute in count two should have informed Franklin
about the elements of the crime to which he was
pleading guilty. It was not an error, then, for the district
court to accept this as a stipulation to the elements of
§ 924(c)(1). Finally, the government’s presentation of the
factual basis for the plea, while brief, established that the
crack cocaine and Ruger pistol were found in the same
part of Franklin’s Impala and that Franklin had both the
drugs and the gun in the car at the same time. That prox-
imity is sufficient to establish a violation of § 924(c)(1). See
United States v. Molina, 

, 932 (7th Cir. 1996); see
also United States v. Pike, 

, 389-90 (7th Cir. 2000).
10                                              No. 06-4109

  Finally, Franklin’s citation to United States v. Bradley is
not much help in this case. In Bradley, the defendant was
charged with a § 924(c) offense for carrying a firearm
during a drug trafficking crime and attempted to with-
draw his guilty plea after the government only produced
evidence that he had been guilty of possession of mari-
juana, which is not a drug trafficking crime and thus not
a predicate to § 924(c). 

. Thus,
while Bradley does indicate that this court will allow a
defendant to withdraw a guilty plea when the district
court, the government, and the defendant all seem to
be confused about the necessary elements of § 924(c), it is
not much help to the defendant in a case where there
was adequate proof of a predicate drug trafficking crime
and the government demonstrated that a handgun was
used during and in relation to that drug trafficking offense.


  C. Whether the district court properly denied the sup-
     pression motion.
  Franklin next argues that Officer Hall’s traffic stop was
pretextual and that the district court thus improperly
denied Franklin’s suppression motion. This issue is
entirely a protective appeal, as Franklin’s counsel plans to
seek a writ of certiorari asking the Supreme Court to
reconsider its decision in Whren v. United States, 

(1996). Franklin argues that the decision in Whren
now requires reversal because of empirical evidence
that the police use racial profiling techniques when deter-
mining whether or not to conduct a search pursuant to a
traffic stop, and thus that minority drivers are much
No. 06-4109                                                 11

more likely than non-minorities to be subjected to a full
search pursuant to a traffic stop.
  The government argues that the district court properly
found that the search was supported by probable cause.
First, the government argues that the probable cause
determination in this case largely came down to a cred-
ibility determination between the witnesses for the
defense and the arresting officer, and that the district
court credited Officer Hall’s testimony. On matters like
this, “the district court’s choice of whom to believe is
almost never vulnerable to a finding of clear error.” United
States v. Alvarado, 

, 862 (7th Cir. 2003); see also
United States v. Thornton, 

, 247 (7th Cir. 1999).
Second, the government argues that Officer Hall made a
proper traffic stop; Franklin admits he does not
remember how fast he was going and Officer Hall
testified that he witnessed Franklin commit two traffic
violations. Hall also had probable cause to search Frank-
lin’s vehicle for drugs because he could smell marijuana
smoke through an open window as he approached the
car. This probable cause determination was bolstered
by his use of a drug-sniffing dog, who alerted near the
front of the car. A police officer who smells marijuana
coming from a car has probable cause to search that car.
See United States v. Wimbush, 

, 951 (7th Cir.
2003). And a police officer’s use of a drug-sniffing dog
around the exterior of a car is not an illegal search under
the Fourth Amendment. Illinois v. Caballes, 

,
409 (2005).
  Franklin’s argument that the stop was pretextual and
thus unconstitutional is not really addressed to this court;
12                                              No. 06-4109

it is addressed to the Supreme Court. Whren has been
reaffirmed by Arkansas v. Sullivan, 

(2001), in
which the Court reiterated that it would not entertain
arguments based on the “real” motivations behind other-
wise lawful traffic stops. 

The Court’s recent
Fourth Amendment jurisprudence offers observers little
reason to believe that the justices wish to revisit this
decision. See, e.g., Virginia v. Moore, No. 06-1082 (Sup. Ct.
Apr. 23, 2008), Atwater v. Lago Vista, 

(2001). Regardless, we need only apply Supreme Court
precedent to determine that Officer Hall made a lawful
traffic stop of Franklin’s car and had probable cause to
search the car for narcotics. We thus affirm the district
court’s decision on the motion to suppress.


  D. Whether the district court denied Franklin his right
     to counsel at two hearings in which defense counsel
     moved to withdraw.
  Franklin argues that the district court denied him his
right to counsel by not appointing a separate attorney to
appear on his behalf at two hearings in which his
defense counsel moved to withdraw. The first hearing
occurred when Franklin’s retained counsel, Linda Wag-
oner, made a motion to withdraw from her representa-
tion. The district court conducted a hearing on this motion
on July 10, 2006, with only defense counsel and Franklin
present. The district court granted the motion and ap-
pointed William Marsh from the Community Defender to
represent Franklin. In October 2006, Franklin, through
Marsh, requested that the district court appoint new
No. 06-4109                                                13

counsel, after Marsh refused to file a motion to suppress
that Franklin had prepared. The district court denied
the motion because the disagreement did not threaten
Marsh’s ability to serve as an effective advocate. Franklin’s
position is that at both hearings he was essentially forced
to represent himself, and that the district court did not
conduct an investigation into his competence to do that
(Franklin cites Faretta v. California, 

(1975), on
this point).
  Franklin admits that there is no case defining a hearing
on a defense counsel’s motion to withdraw as a “critical
stage” of the proceeding entitling a defendant to coun-
sel. Before taking up the question of whether a withdrawal
motion is a critical stage, it is worth noting that at no time
was Franklin without counsel; when the district court held
the first hearing on Wagoner’s motion to withdraw,
Wagoner was still serving as Franklin’s counsel and was
only allowed to withdraw after the hearing, at which point
the district court gave Franklin a choice between having
counsel appointed or hiring another attorney. Marsh never
withdrew as Franklin’s counsel. Thus, aside from the brief
interval between Wagoner’s withdrawal and Marsh’s
appointment that is not at issue here, Franklin had repre-
sentation for the entire proceeding.
  Franklin is apparently arguing that he was entitled to
additional counsel to represent him at the hearings on
his own defense counsel’s motion to withdraw. Franklin
cites no authority for this interpretation of his Sixth
Amendment right to counsel. Nor, objectively, does a
defense counsel’s motion to withdraw qualify as a
14                                                  No. 06-4109

critical stage of the proceedings for Sixth Amendment
purposes, as the proceeding is simply not the sort of trial-
like confrontation between the accused and the state
that gives an accused a Sixth Amendment right to counsel
(or, in this case, additional counsel). See United States v.
Ash, 

, 312 (1973) (reviewing the historical
“expansion of the counsel guarantee to trial-like con-
frontations . . . ”); see also United States v. Jackson, 

, 843 (7th Cir. 1989) (critical stage is one where “absence
of defense counsel or lack of advice may derogate from
the accused’s right to a fair trial.”). Indeed, the attorneys
for the government were asked to leave the courtroom
during the hearing on Wagoner’s motion to withdraw,
and while the government was present for the colloquy
on the motion regarding Marsh’s appointment, the gov-
ernment was not involved in the discussion of that motion.
Franklin had the assistance of counsel at all times in the
proceeding below and was not entitled to additional
counsel during the hearings on his own counsel’s motion
to withdraw. Accordingly, we find no denial of
Franklin’s Sixth Amendment rights during the pro-
ceedings below.


  E. Whether the district court properly considered the
     scope of the search of Franklin’s car in their
     motion to suppress.
  Franklin next argues that Hall’s search of his car went
beyond the scope of probable cause because smelling an
odor of marijuana smoke would not give a police officer
probable cause to search for drugs in the dashboard or
No. 06-4109                                                  15

other compartments of the car. The factual support for
this argument rests in large part on Franklin’s claim that
the police conducted multiple searches of his car, a claim
that the district court heard and decided not to credit. The
legal support for this claim is derived from a Tenth
Circuit case in which that court held that a police officer
would not have probable cause to search the trunk of a
car simply because he smelled marijuana smoke in the
passenger compartment. United States v. Nielsen, 

, 1491 (10th Cir. 1993). Franklin’s only citation to a
case in this circuit is to United States v. Garcia, 

, 1419 (7th Cir. 1990), a case that held that dismantling
door panels could not be justified by consent to search
but could be justified by probable cause (and was
justified by probable cause, in that case).
  In this case, the district court credited Hall’s testimony
that he smelled marijuana smoke in the passenger com-
partment of Franklin’s car and that a drug-sniffing dog
alerted to the presence of narcotics from outside the car.
As discussed earlier, both would give the police probable
cause to search the interior of the passenger compartment
for drugs. This circuit has held that the search can go as far
as probable cause extends, even into separate containers
or the trunk of the car. United States v. Ledford, 

,
688 (7th Cir. 2000) (citing Wyoming v. Houghton, 

, 300-01 (1999) and United States v. Ross, 

,
820-21 (1982)). In this case, the odor of marijuana would
provide an officer with probable cause to search the
passenger compartment and containers within the passen-
ger compartment, and the police dog’s alerting to the
presence of narcotics would provide additional probable
16                                              No. 06-4109

cause to search for narcotics. Accordingly, the search here
did not exceed the scope of probable cause, and we affirm
the district court’s ruling on this part of the suppression
issue.


  F. Whether the mandatory minimum sentences in
     21 U.S.C. § 841 are constitutional.
  Franklin next argues that the mandatory minimum
sentences established by Congress in § 841 are an unconsti-
tutional deprivation of his due process rights. He argues
that the district court should have been free to depart from
the mandatory minimum and consider the factors set forth
in 18 U.S.C. § 3553 of the sentencing guidelines in imposing
a lesser sentence.
  This issue, as the government points out, was raised for
the first time on appeal, and so is waived. But even assum-
ing that Franklin can make this argument here, the Su-
preme Court and this court have consistently held that
mandatory minimum sentences are not a violation of a
defendant’s due process rights. Chapman v. United States,

(1991); United States v. Velasco, 

,
1476 (7th Cir. 1992). Franklin does not argue that his case
qualifies under exception to the mandatory minimum
sentence for persons offering “substantial assistance”
during a police investigation, as set forth in § 3553(e). Nor
does he qualify under the safety valve exception to the
mandatory minimum set forth in § 3553(f), since, among
other disqualifying factors, he possessed a firearm in
connection with his drug trafficking offense. Accordingly,
we affirm the sentence of the district court.
No. 06-4109                                              17

  G. Whether the defendant’s prior felony drug convic-
     tion needed to be pleaded in the indictment
     and proven to a jury.
  Franklin finally argues that the prior convictions pre-
sented to the court pursuant to 21 U.S.C. § 851 should have
been alleged in the indictment and presented to the jury.
He argues that this was the position of the Supreme
Court in Almendarez-Torres v. United States, 

(1998), and of Justice Thomas’ concurring opinion in
Apprendi v. New Jersey, 

, 499 (2000).
  Again, this challenge to the indictment was not
presented to the district court but assuming arguendo
that Franklin can present it to this court, the Supreme
Court’s opinion in Almendarez-Torres specifically rejected
the argument that a prior conviction triggering a manda-
tory minimum sentence is an element of an offense
that must be proved to a jury. 

. Franklin correctly argues that Justice Thomas’
concurring opinion in Apprendi treated a prior conviction
as an element that a prosecutor must present to the jury,
but this was not a majority opinion, and the opinion of
the court holds that prior convictions need not be charged
in an indictment or presented to a jury. 

. We affirm the district court’s sentence in this
case.
18                                          No. 06-4109

                    III. Conclusion
  For the foregoing reasons, we A FFIRM the judgment of
the district court.




                        10-27-08