United States of America v. Rickey J. Willis

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2209
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
R ICKEY J. W ILLIS ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00 CR 202—Rudolph T. Randa, Judge.
____________
A RGUED N OVEMBER 9, 2001—D ECIDED A UGUST 12, 2002
____________
Before M ANION , K ANNE and R OVNER , Circuit Judges.
R OVNER , Circuit Judge. Rickey Willis pled guilty to a
charge of distributing 50 or more grams of cocaine base in
violation of 21 U.S.C. § 841(a)(1). He retained the right
to appeal his sentence, and now challenges a two-level
enhancement for possessing a firearm in connection with
a drug offense, the calculation of his criminal history cat-
egory and the district court’s refusal to apply a reduc-
tion for acceptance of responsibility. We affirm.
I.
Rickey Willis worked at a factory in Grafton, Wisconsin
with Rex Hylton. Hylton was a crack addict and Willis

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2 No. 01-2209
was his supplier. In the summer of 2000, Hylton ap-
proached the Grafton Police Department and offered to
help the police make a case against Willis. The Grafton
police put Hylton in contact with the Ozaukee County
Sheriff’s Department drug unit. Hylton became an infor-
mant for the Ozaukee drug unit and he participated in a
series of controlled buys with Willis as the target. Be-
tween August 30, 2000 and September 22, 2000, Hylton
purchased crack cocaine from Willis in five separate con-
trolled buys. Unbeknownst to the police, Hylton partici-
pated in some “uncontrolled buys” as well, purchasing
crack from Willis for personal use during this same time.
Like many government informants, Hylton had a check-
ered past, including felony convictions for robbery and
sexual assault as well as a misdemeanor conviction for
retail theft. Hylton received nothing more than $55 in ex-
penses for his efforts in the sting, and he testified against
Willis at a sentencing hearing.
Hylton testified that he had purchased drugs on a week-
ly basis from Willis for a period of approximately one to
one and a half years prior to the sting operation. Tr. at 7,
27-28. He sometimes went to Willis’s home for the transac-
tions and sometimes met Willis other places. On two
occasions at Willis’s home, Willis emerged from a bedroom
brandishing a gun. Tr. at 19-20. Hylton told the drug unit
officers about the gun before they executed a search war-
rant on Willis’s home. Tr. at 19, 59-60, 66. Hylton also
told the officers that he had discussed with Willis
where Willis could hide cocaine in his house. Tr. at 20-22.
Hylton and Willis discussed the ventilation system and
the basement as good hiding places because Willis shared
the basement with other tenants and could deny owner-
ship of drugs found there. Tr. at 66. Although the police
audiotaped conversations between Hylton and Willis
during the controlled buys, Hylton testified that Willis
brandished the gun and discussed hiding places during

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No. 01-2209 3
meetings that were not part of the controlled buys. Thus,
no audiotape was available to corroborate Hylton’s
claims about the gun and the hiding places for drugs.
Hylton was unable to determine the dates of these conver-
sations with any certainty. Tr. at 32-34.
Following the fifth controlled buy, the drug unit offi-
cers arrested Willis and searched his home. They found
a gun in a box under the bed in the bedroom shared by
Willis and his wife. They discovered 34.3 grams of crack
cocaine in the duct work of the ventilation system in the
basement. Willis was charged with five counts of distrib-
uting cocaine base, each count corresponding to one of
the controlled buys. He also was charged with one count
of possession with intent to distribute cocaine base for
the crack recovered from the basement duct work.
Pursuant to a plea agreement, Willis pled guilty to one
count of distribution. At his sentencing hearing, Willis
denied that the crack found in the basement of his duplex
was his. Tr. at 85. He also denied ownership of the gun
and claimed not to know that it was under his bed. Tr. at
82-84. He testified that he never brandished a gun in
Hylton’s presence and that he never discussed hiding
drugs in his home with Hylton. Tr. at 84, 89. He also de-
nied selling cocaine to Hylton prior to the sting opera-
tion. Tr. at 81-82. Willis’s wife testified that the gun was
hers and that her husband did not know the gun was
present in the house. Tr. at 75-76.
Ultimately, the district court credited the testimony
of Hylton and the drug unit officers over that of Willis
and his wife. The court enhanced Willis’s sentence two
levels for using a gun in a drug offense, and refused to
reduce his sentence for acceptance of responsibility be-
cause Willis frivolously contested ownership of the co-
caine found in the basement and falsely denied that he
sold drugs to Hylton prior to the sting operation. On the

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4 No. 01-2209
basis of information presented in the Presentence Inves-
tigation Report, the court included in Willis’s criminal
history calculation a municipal court conviction for retail
theft from 1992. The district court sentenced Willis to 210
months’ imprisonment and five years’ supervised release.
The court also ordered Willis to pay a $100 special assess-
ment and $5900 in restitution to the Ozaukee County
Sheriff’s Department. In exchange for his guilty plea, the
government dismissed the remaining charges against him.
Willis retained his right to appeal his sentence.
II.
Willis appeals his sentence in three respects. First, he
maintains that the district court clearly erred in finding
that he possessed a weapon that was used in the offense
and in applying a two-level enhancement for that posses-
sion under USSG § 2D1.1(b)(1). Second, he argues that
the district court erred in finding that he had previous-
ly been convicted of retail theft in Milwaukee Municipal
Court and should not have included that conviction in
calculating his criminal history category. Third, Willis
contends that the trial court erred in finding that he
frivolously contested relevant conduct and was not en-
titled to a sentence reduction for acceptance of responsi-
bility under USSG § 3E1.1.
The Sentencing Guidelines for drug trafficking provide
that “[i]f a dangerous weapon (including a firearm) was
possessed, increase by 2 levels.” USSG § 2D1.1(b)(1). The
Application Note for that Guideline specifies that “[t]he
adjustment should be applied if the weapon was present,
unless it is clearly improbable that the weapon was con-
nected with the offense. For example, the enhancement
would not be applied if the defendant, arrested at his
residence, had an unloaded hunting rifle in the closet.”
USSG § 2D1.1, Application Note 3. We review the district

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No. 01-2209 5
court’s determination that a defendant possessed a fire-
arm in connection with a drug offense for clear error.
United States v. Booker, 248 F.3d 683, 688 (7th Cir. 2001).
Willis complains that the evidence supporting the dis-
trict court’s finding is thin. The district court relied on
Hylton’s testimony that Willis brandished the gun during
two drug buys. The court also considered that the gun
was found under Willis’s bed. Willis now objects that
both he and his wife testified that Willis was unaware
of the gun, and that Hylton’s testimony was patently in-
credible because Hylton is himself a criminal and his
testimony is uncorroborated.
We give special deference to the district court’s find-
ings when they are based on credibility determinations.
United States v. Berthiaume, 233 F.3d 1000, 1002 (7th Cir.
2000). A finding based on a credibility determination “can
virtually never be clear error.” Id. (quoting United States
v. Hickok, 77 F.3d 992, 1007 (7th Cir. 1996), cert. denied,
517 U.S. 1200 (1996)). We have previously affirmed dis-
trict court findings based on the testimony of a govern-
ment informant, especially when that testimony is cor-
roborated. See United States v. Johnson, 227 F.3d 807, 814
(7th Cir. 2000), cert. denied, 532 U.S. 1024 (2001). Here
Hylton told the drug unit officers that they should look
for a .380 handgun in Willis’s bedroom. Hylton knew the
gun was a .380 because Willis displayed it during drug
transactions, and Hylton predicted it would be found in
Willis’s bedroom because Willis emerged from the bed-
room holding the gun on two occasions. This testimony
was corroborated when the police officers in fact found
a .380 gun under Willis’s bed. The district court was
entitled to credit Hylton’s testimony over that of Willis
and his wife. The court did not clearly err in finding the
gun was connected to the offense.
Willis next contends that the district court clearly erred
in finding that he had been convicted of retail theft

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6 No. 01-2209
in Milwaukee Municipal Court. The district court relied
on the Presentence Investigation Report (“PSR”) in find-
ing that Willis was convicted of retail theft in Milwaukee
on July 16, 1992. Willis objected to the PSR and denied
that he was the individual convicted of retail theft as
stated in the PSR. In response, the probation officer who
prepared the PSR stated that Municipal Court records
confirmed the date of the arrest and disposition as indi-
cated in the PSR. The probation officer also informed
the court that Willis’s first name, middle initial, last
name, date of birth and Wisconsin driver’s license number
all appeared on the municipal citation. At his sentenc-
ing hearing, Willis testified he was never convicted of re-
tail theft. Tr. at 83. The court credited the information
provided by the probation officer over Willis’s contrary
testimony and used the municipal conviction in calculat-
ing Willis’s criminal history category. Willis contends
that his denial under oath obliged the government to
produce more than the bare allegations in the PSR in or-
der to prove the truth of the conviction.
We review the district court’s fact-findings for sentenc-
ing purposes for clear error. United States v. Jones, 209
F.3d 991, 994-95 (7th Cir. 2000). Generally, a court is
entitled to rely on the PSR in ruling on factual issues in the
sentencing context so long as the PSR is based upon
sufficiently reliable information. United States v. Taylor,
72 F.3d 533, 547 (7th Cir. 1995). Moreover, a defendant
cannot show that a PSR is inaccurate by simply denying
the PSR’s truth; rather the defendant must produce some
evidence that calls the reliability or correctness of the
alleged facts into question. Taylor, 72 F.3d at 547 (citing
United States v. Mustread, 42 F.3d 1097, 1101 (7th Cir.
1994)). If the defendant offers no more than a bare denial,
the court is entitled to rely entirely on the PSR. Taylor,
72 F.3d at 547; Jones, 209 F.3d at 996. Here Willis did
no more than deny the truth of the allegations in the

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No. 01-2209 7
PSR. The court was thus entitled to rely entirely on the
PSR in determining that the conviction was valid so long
as the PSR was based upon sufficiently reliable informa-
tion. The PSR was based on municipal records which the
probation officer cross-referenced with Willis’ full name,
date of birth, and driver’s license number. The PSR was
therefore based on sufficiently reliable information. The
court did not err in concluding that Willis’s conviction
for retail theft should be included in the calculation of
his criminal history category.
Finally, Willis maintains that the trial court erred in
refusing to grant him a reduction for acceptance of responsi-
bility. In the plea agreement, Willis argues, the govern-
ment promised to recommend a reduction for acceptance
of responsibility if Willis exhibited behavior consistent
with acceptance of responsibility. At the time the govern-
ment made this promise, it was aware that Willis in-
tended to dispute the amount of crack attributable to
relevant conduct and also to contest whether he possessed
a dangerous weapon during a drug offense. Willis con-
tends that the government deluded Willis in the plea
agreement by making an illusory promise to recommend
a reduction for acceptance of responsibility when the
government fully intended to argue that Willis frivolously
denied ownership of the gun and the crack found in the
basement duct work. The district court denied the reduc-
tion after finding that Willis falsely denied having sold
drugs to Hylton before the first controlled sale and also
falsely denied that the drugs found in the basement duct
work were his.
The district court’s acceptance of responsibility deter-
mination is a factual finding that we review for clear er-
ror. United States v. Fiore, 178 F.3d 917, 925 (7th Cir.
1999). Application Note 1 to Sentencing Guideline 3E1.1
clarifies that a false denial or a frivolous contest to rele-
vant conduct is inconsistent with acceptance of responsi-

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8 No. 01-2209
bility. Fiore, 178 F.3d at 925. A defendant must prove
his entitlement to a reduction for acceptance of responsi-
bility. Taylor, 72 F.3d at 549. Simply pleading guilty
does not automatically entitle a defendant to a reduc-
tion for acceptance of responsibility. United States v.
McIntosh, 198 F.3d 995, 999 (7th Cir. 2000). The district
court was certainly entitled to credit the testimony
of Hylton over that of Willis after hearing both testify.
Berthiaume, 233 F.3d at 1004. Having found that Willis
falsely denied the extent of his drug dealing, the dis-
trict court did not err in denying Willis a reduction for
acceptance of responsibility. Moreover, we note that
the government’s promise was not illusory. If the district
court had believed Willis’s testimony, the government
would have been obliged to recommend a reduction in
Willis’s sentence for acceptance of responsibility. We
therefore affirm the judgment of the district court.
A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—8-12-02

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