United States of America v. Chazzie T. Isom

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1085
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHAZZIE T. ISOM,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 09-20012-001—Michael P. McCuskey, Chief Judge.
ARGUED DECEMBER 14, 2010—DECIDED MARCH 14, 2011
Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. After a jury trial, Chazzie Isom
was convicted of three counts of distributing cocaine
base. See 21 U.S.C. § 841(a)(1), (b)(1)(A). The sales
totaled about 70 grams, but the district court attributed
to him as relevant conduct a much larger amount—
roughly 600 grams—and sentenced him to 262 months’
imprisonment. On appeal Isom primarily challenges
this relevant conduct finding, arguing that he should

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2 No. 10-1085
“Eight-ball” is a street term for one-eighth of an ounce. 1
See United States v. Plummer, 581 F.3d 484, 486 (7th Cir. 2009),
cert. denied, 130 S. Ct. 1105 (2010).
not be accountable for drug transactions involving two
coconspirators. Because the district court properly calcu-
lated the drug quantity using reliable information,
we affirm.
I.
At trial, an undercover special agent with the Illinois
State Police described three controlled buys of crack
cocaine from Isom; each purchase was the basis for a
separate count. Regarding the first purchase, the agent
testified that he called Isom in December 2008 and ar-
ranged to buy two “eight-balls” (about 3.5 grams of crack1
cocaine each) in a parking lot. The agent went to the
lot, parked next to a red van, and climbed in. He
bought about 6 grams of crack from a woman in the
van, Nancy Rose. Rose too testified at trial, corroborated
the agent’s account, and stated that she was at the
parking lot at Isom’s instruction. She also stated that
she used crack twice a day, and that Isom gave her
drugs in exchange for letting him sell drugs from her
home and occasionally delivering for him.
The second purchase occurred five days later. The
agent recounted that he called Isom and arranged to
buy more crack in another parking lot; Isom arrived in
the same red van, entered the agent’s car, and handed

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No. 10-1085 3
the agent a Doritos bag containing 5.5 grams of crack
cocaine.
The third purchase occurred in January 2009. According
to the agent, after a series of phone calls, Isom agreed
to sell him an ounce of crack cocaine. Isom met the agent
at a Wendy’s parking lot, entered the agent’s car, took
the agent’s money, and then told the agent that he
could find the drugs in a trash can in the Wendy’s
restroom. There, the agent found 61.3 grams of crack
cocaine, and Isom was arrested later that day.
In the presentence report, the probation officer held
Isom accountable not only for the 72.8 grams (6 + 5.5 + 61.3)
he sold to the agent, but also for 537.28 grams he
allegedly distributed to coconspirators Karen Coffey
and Nancy Rose. Isom’s dealings with Coffey constituted
the lion’s share of this quantity. The probation officer
estimated Isom’s distribution to Coffey at 467.28 grams,
based on statements she gave to law enforcement that
from August 2007 to spring 2008 she delivered drugs
for Isom 5 days a week, up to 20 times a day, and that
nearly every delivery involved crack cocaine worth $50.
Based on this statement, the probation officer cal-
culated that on 132 occasions Isom distributed 3.54
grams (132 x 3.54 = 467.28). The probation officer at-
tributed to Isom an additional 70 grams based on state-
ments Rose made to law enforcement that—in addition
to the amounts she distributed for Isom—he typically
gave her $50 to $75 worth of crack cocaine per day over
2½ months. Based on these sums, the probation officer
estimated that Isom gave Rose one gram a day for
70 days—totaling 70 grams.

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4 No. 10-1085
The presentence report’s reference to 80.2 grams is a mystery, 2
and the parties offer no explanation for its source. The crimes
of conviction accounted for 72.8 grams, and Isom contends
that he was properly held accountable for an additional 9 grams
(3.4 + 5.6).
Isom was also held accountable for an additional 9 grams
stemming from two uncharged, controlled sales: one
that Isom made to the undercover agent in early Decem-
ber for 3.4 grams of crack; and one that Coffey made to
the agent for 5.6 grams while the agent was trying to
arrange to buy drugs from Isom. Isom did not (nor does
he now) contest that these 9 grams were properly in-
cluded as relevant conduct.
Isom curtly disagreed with the presentence report’s
inclusion of the 537.28 grams distributed to Rose and
Coffey as relevant conduct; he asserted without elabora-
tion that this relevant conduct was based on unreliable
hearsay. But the probation officer did not address this
disagreement because, the officer wrote, “it did not rise
to the level of a formal objection.” He noted, though,
that Isom’s concession of being responsible for 80.22
rather than 72.8 grams reflected Isom’s acknowledg-
ment that the report contains “some accurate information.”
At the sentencing hearing, the agent who bought drugs
from Isom testified in support of the probation officer’s
drug-quantity calculation. The agent verified that Coffey
was an associate of Isom’s: the agent had called Isom’s
phone and spoken to Isom’s girlfriend, who arranged
for the agent to buy drugs from Coffey. The agent

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No. 10-1085 5
added that Coffey later acknowledged delivering drugs
for Isom and identified both Rose and Isom’s girlfriend
as persons she knew who were also selling drugs on
Isom’s behalf. The agent likewise verified that Nancy
Rose told officers who interviewed her that Isom was
selling drugs from her home and that he gave her
crack. The agent also testified that Rose identified Coffey
as a regular customer of Isom’s.
The district court adopted the probation officer’s recom-
mendation, and included 619.08 grams (72.8 + 9 + 537.28)
as relevant conduct. The court found the agent credible
and noted that the drug-quantity calculation was con-
servative given the broad scope of the uncharged con-
spiracy. The court calculated Isom’s base offense level
at 34, see U.S.S.G. § 2D1.1(c)(3), added 3 points for a
managerial role in the offense, see id. § 3B1.1(b), and
assigned a criminal history category of III, to arrive at
a guidelines range of 262 to 327 months. The court sen-
tenced Isom to 262 months’ imprisonment, remarking
that the sentence was reasonable and necessary to
punish Isom for his crime and deter him and his
coconspirators from engaging in future criminal activity.
II.
Now represented on appeal by different counsel, Isom
makes two arguments for resentencing. First, he asserts
that the district court overstated his relevant conduct
and, as a result, imposed too severe of a sentence. He
also argues that his counsel was ineffective at sen-
tencing for failing to raise the sentencing disparity

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6 No. 10-1085
Isom overstates the increase in the guidelines range. He 3
asserts that the inclusion of the relevant conduct increased his
range from 168-210 months to 262-327 months. But Isom’s
calculations overlook the 20-year mandatory minimum that
applies because of his prior conviction for a felony drug offense.
See 21 U.S.C. § 841(b)(1)(A). If a statutory minimum sentence
is greater than the maximum of the applicable guideline
range, then that statutory minimum sentence becomes the
bottom of the guideline range. See U.S.S.G. § 5G1.1(b);
United States v. Gibbs, 578 F.3d 694, 695 (7th Cir. 2009).
between crack and powder under Kimbrough v. United
States, 552 U.S. 85 (2007).
Isom argues that the district court erroneously
increased his base offense level when it earmarked 537.28
grams of drugs as relevant conduct. The relevant
conduct beyond the 80 grams that he conceded he sold
increased his sentencing exposure from a mandatory
minimum of 240 months to an advisory guideline range
of 262 to 327 months. See 21 U.S.C. § 841(b)(1)(A); U.S.S.G.3
§ 2D1.1(c)(3).
Isom contends that the district court should have pre-
sumed that Rose’s and Coffey’s statements—which led to
his being held accountable for 537.28 grams—were unreli-
able hearsay because the two were non-testifying
coconspirators. He cites United States v. Jones, 371 F.3d
363, 369 (7th Cir. 2004), and United States v. Santiago, 495
F.3d 820, 825 (7th Cir. 2007), to argue that a sentencing
court must presume a coconspirator’s statement unreli-
able if that statement: (1) was given with government

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No. 10-1085 7
involvement; (2) described past events; and (3) has not
been subjected to adversarial testing. He notes that, for
her involvement, Rose received 48 months’ probation
in state court.
But Isom misapprehends this court’s interpretation of
the presumption. Jones recognized this presumption
when admitting a coconspirator’s statement at trial, not
sentencing. 371 F.3d at 369; see United States v. House, 551
F.3d 694, 699 n.2 (7th Cir. 2008). A district court in deter-
mining a sentence is not bound by the same evidentiary
standards that apply in a criminal trial. See FED. R. EVID.
1101(d)(3); United States v. Johnson, 489 F.3d 794, 796 (7th
Cir. 2007). The presumption of unreliability for non-
testifying coconspirators is premised on the defendant’s
right at trial to confront his accusers, see, e.g., Lilly v.
Virginia, 527 U.S. 116, 137 (1999) (plurality opinion); United
States v. Ochoa, 229 F.3d 631, 637 (7th Cir. 2000), but the
Confrontation Clause does not apply at sentencing,
Williams v. New York, 337 U.S. 241, 250-51 (1949); United
States v. Betts, 576 F.3d 738, 744 (7th Cir.), cert. denied, 130
S. Ct. 1027 (2009); United States v. Roche, 415 F.3d 614, 618
(7th Cir. 2005). With regard to sentencing, this court has
declined to attach any presumption of unreliability to
coconspirators’ statements. See House, 551 F.3d at 699 n.2;
United States v. Artley, 489 F.3d 813, 821 (7th Cir. 2007);
Johnson, 489 F.3d at 797; see also United States v. Moncivais,
492 F.3d 652, 659-60 (6th Cir. 2007). As this court has
repeatedly observed, a sentencing judge is free to credit
testimony that is “totally uncorroborated,” “comes from
an admitted liar, convicted felon, . . . large scale drug-
dealing, paid government informant,” or “self-interested

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8 No. 10-1085
co-conspirator[].” Johnson, 489 F.3d at 797 (internal quota-
tion and citation omitted).
Isom’s reliance on Santiago is similarly misplaced. In
that case, which involved videotaped confessions of two
men that were used to substantiate the defendant’s role
in a kidnapping and murder, this court bypassed
any discussion of the presumption. The opinion quoted
the elements of the presumption and noted the district
court’s awareness of them, yet affirmed the defendant’s
sentence without deciding the reliability of the recorded
confessions. Santiago, 495 F.3d at 824-25; see United States
v. Busara, 551 F.3d 669, 672-73 (7th Cir. 2008).
As the government points out, Isom invokes this pre-
sumption to avoid the consequences of trial counsel’s
insufficient objection to the presentence report. The
probation officer determined that trial counsel had not
raised a formal objection through a written submission
stating only that he objected to “all relevant conduct, as
relevant conduct is based on unreliable hearsay.” Nor
did Isom raise much of an objection at the sentencing
hearing, merely alluding to the fact that one of the
coconspirators was not charged with a federal crime.
Isom had to produce more than a bare denial to ade-
quately object, which he did not. See United States v.
Turner, 604 F.3d 381, 385 (7th Cir. 2010). Absent an ob-
jection, the district court was entitled to rely on the
presentence report—even if it rested on hearsay. See FED.
R. CRIM. P. 32(i)(3); United States v. Aviles-Solarzano,
623 F.3d 470, 475 (7th Cir. 2010); United States v.
Charlesworth, 217 F.3d 1155, 1160 (9th Cir. 2000).

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No. 10-1085 9
In any event, the key at both trial and sentencing to
admitting statements from non-testifying coconspirators
is reliability. At trial, the government can over-
come the presumption against self-serving statements
from non-testifying coconspirators by showing that the
statements are reliable, or have “particularized guaran-
tees of trustworthiness.” Lee v. Illinois, 476 U.S. 530, 543
(1986); see Varela v. United States, 481 F.3d 932, 935 (7th
Cir. 2007). At sentencing, courts may rely on presentence
reports containing even double-hearsay, i.e., statements
by coconspirators to investigators, so long as those state-
ments are reliable. See Artley, 489 F.3d at 821; United
States v. Westmoreland, 240 F.3d 618, 629-30 (7th Cir. 2001);
see also United States v. Jones, 195 F.3d 379, 382 (8th Cir.
1999); United States v. Randall, 171 F.3d 195, 211-12 (4th Cir.
1999); United States v. Query, 928 F.2d 383, 384-85 (11th
Cir. 1991).
Here, the government established that both Rose’s and
Coffey’s accounts as recounted in the presentence
report were reliable. Reliability can be established by
internal consistency, corroborating evidence, and pro-
viding missing facts and details. See United States v. Mays,
593 F.3d 603, 608 (7th Cir.), cert. denied, 130 S. Ct. 3340
(2010); United States v. Hankton, 432 F.3d 779, 791 (7th Cir.
2005); United States v. Thomas, 280 F.3d 1149, 1154 (7th
Cir. 2002); United States v. Galbraith, 200 F.3d 1006, 1013
(7th Cir. 2000). Rose’s testimony at trial was consistent
with what she told the officers as recounted in the
presentence report. Moreover, the agent testified that
when Rose was interviewed, Rose stated that Coffey
was “a regular customer of Isom’s who would come to

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10 No. 10-1085
her residence frequently to purchase crack cocaine,” and
that “after [Rose] kicked Isom out of her residence, Isom
began selling crack cocaine from Coffey’s apartment.”
Regarding Coffey, the agent testified that she was an
associate of Isom’s. When the agent could not reach
Isom for a crack-cocaine delivery, Coffey subbed in
and sold the agent cocaine. If Isom wanted to impeach
this testimony, Isom could have done so, but he elected
not to. See United States v. Schaefer, 291 F.3d 932, 943 (7th
Cir. 2002). The court’s reliance on those accounts, cor-
roborated and reinforced by the agent’s testimony, was
not clearly erroneous.
We turn now to Isom’s argument that his trial counsel
was ineffective for failing to raise the Kimbrough issue.
In his brief to this court, Isom’s appellate lawyer
argued that trial counsel had no strategic reason for
remaining silent on the Kimbrough issue, and thus was
deficient in not raising the claim. We likewise are hard-
pressed to discern any strategic justification for trial
counsel’s silence. When the district judge asked counsel
whether he had anything further on the drug-quantity
issue, counsel stressed that in his 30 years’ experience
he learned it was best to keep his “mouth shut.” We will
not justify as “strategic” a decision to stay silent if we
cannot discern any way in which silence would have
improved the client’s position. See Girts v. Yanai, 501
F.3d 743, 757-58 (6th Cir. 2007); Miller v. Martin, 481
F.3d 468, 473 (7th Cir. 2007).
Before oral argument, however, Isom’s appellate
counsel notified this court that he was withdrawing the

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No. 10-1085 11
ineffective-assistance argument “with no waiver to the
argument being asserted in a subsequent proceeding
under 28 U.S.C. § 2255.” Counsel confirmed that state-
ment at oral argument. This was a wise move since
ineffective-assistance claims typically require a more
developed record than exists on direct appeal. See
Massaro v. United States, 538 U.S. 500, 505 (2003); United
States v. Schuh, 289 F.3d 968, 976 (7th Cir. 2002). And on
the off chance that Isom might have a valid postcon-
viction claim that trial counsel was ineffective for failing
to raise a Kimbrough argument, it would be premature
for us to discuss that question. At oral argument we
also asked appellate counsel if he wished us to address
the forfeited Kimbrough claim as a matter of plain error
in lieu of his ineffective-assistance claim, which we
have power to do, see United States v. Olano, 507 U.S. 725,
733-34 (1993); Silber v. United States, 370 U.S. 717, 717-18
(1962). But counsel declined our invitation.
Conclusion
Because the district court’s relevant-conduct deter-
mination rested on reliable evidence, we AFFIRM.
3-14-11

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