Brendanshiller.com

UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
in the Southern District of Illinois, Eastern Division The Honorable Judge G. Patrick Murphy, presiding Defendant-Appellant Michael Alden’s Brief
Attorney for the Defendant-Appellant Brendan Shiller 36 South Wabash Avenue Suite 1310 Chicago, Illinois 60603 (312) 332-6462 Certificate of Interest
Court number 07-1709
1. The full name of every party or amicus the attorney represents in this case: 2. If such party or amicus is a corporation: A list of its stockholder which are publicly held companies owning 10% or more of the stock in the party or amicus 3. The names of all law firms whose partners or associates have appeared for the party in the case or are expected to appear forth in this court: Attorney’s Signature_/s___________________________________ Attorney’s Printed Name_________________________________ Date:_________________________________________________ Table of Contents
Certificate of Interest……………………………………………………… Table of Contents…………………………………………………………. Table of Authorities………………………………………………………. Jurisdictional Statement…………………………………………………… Statement of the Issues For Review………………………………………. Statement of the Case.……………………………………………………. Statement of the Facts……………………………………………………. Summary of Arguments…………………………………………………. Argument…………………………………………………………………. The District Court Should Have Ordered, Sua Sponte, A Competency Exam……………………………………. The District Court Abused Its Discretion In Having Alden Proceed Pro Se……………………………………. There Were Several Sentencing Errors, And The Sentence Was Unreasonable………………………………………. Conclusion………………………………………………………………… Certificate of Compliance With F.R.A.P. Rule 32(a)(7)(B)……………… Certificate of Compliance With Rules 30(a), (b) and 31(e)……………… Appendix…………………………………………………………………. Cases Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970)…………. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975)…………. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)………. Leach v. Kolb, 911 F.2d 1249 (7th Cir.1990)……………………………………… Timberlake v. Davis, 409 F.3d 819 (7th Cir.2005)…………………………………. United States v. Alburay, 425 F.3d 782 (7th Cir. 2005)……………………………. United States v. Andrews, 469 F.3d 1113 (7th Cir. 2006)…………………………… United States v. Atkinson, 979 F.2d 1219 (7th Cir.1992)…………………………. United States v. Avery, 208 F.3d 597 (7th circuit 2000)……………………………. United States v. Barnes, 948 F.2d 325 (7th Cir.1991)………………………………. United States v. Beler, 20 F.3d 1428 (7th Cir. 1994)………………………………. United States v. Campbell, 985 F.2d 341 (7th Cir.1993)…………………………… United States v. Carroll, 346 F.3d 744 (7th Cir. 2003)………………………………. United States v. Collins, 949 F.2d 921 (7th Cir. 1991)………………………………. United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005)………………………… United States v. Dean, 414 F.3d 725, 727 (7th Cir. 2005)…………………………… United States v. Gaines, 7 F.3d 101 (7th Cir. 1993)…………………………………. United States v. Galbraith, 200 F.3d 1006 (7th Cir.2000)……………………………. United States v. Eschman, 227 F.3d 886 (7th Cir. 2001)……………………………. United States v. George, 403 F.3d 470 (7th Cir. 2005)………………………………. United States v. Lane, 804 F.2d 79 (7th Cir.1986)…………………………………… United States v. Luepke, 495 F.3d 443 (7th Cir. 2007)………………………………… United States v. McLee, 436 F.3d 751 (7th Cir. 2006)………………………………… United States v. Mietus, 237 F.3d 866 (7th Cir.2001)………………………………… United States v. Moya-Gomez, 860 F.2d 706 (7th Cir.1988)…………………………. United States v. Mykytiuk, 415 F.3d 606 (7th Cir.2005)……………………………… United States v. O'Leary, 856 F.2d 1011 (7th Cir.1988)………………………………. United States v. Paulino, 996 F.2d 1541 (3d Cir. 1994)………………………………. United States v. Rodriguez-Alvarez, 425 F.3d 1041 (7th Cir. 2005)…………………… United States v. Todd, 424 F.3d 525 (7th Circuit 2005)………………………………. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)………. United States v. Wesley, 422 F.3d 509, 2005 WL 2106166 (7th Cir.2005)…………… United States v. Westbrook, 986 F.2d 180 (7th Cir.1993)……………………………. United States v. Williams, 2005 WL 2455110 (7th Cir. 2005)………………………… Statutes USSG § 2D1.1…………………………………………………………………………. U.S.S.G. § 6A1.3 ………………………………………………………………………. 18 U.S.C. § 3553………………………………………………………………………. 21 USC § 841…………………………………………………………………………… 21 USC § 846…………………………………………………………………………… Rules FRCP Rule 32…………………………………………………………………………… Circuit Rule 36…………………………………………………………………………. Jurisdiction
Pursuant to F.R.A.P. Rule 28(a)(4), and Circuit Court Rule 28(b), Appellant states: 1. A Southern District of Illinois Grand Jury handed down a one-count, 31-defendant indictment on July 7, 2004, (R. 2), charging Appellant with conspiracy from “the Summer of 1995, to in or about June 2004, in Wayne County, and White Counties, Illinois and elsewhere in the Southern District of Illinois,” in violation of 21 USC § 846. (R. 2). The first superseding indictment, charging the same one count against Alden, was returned on July 7, 2005. (R. 353). A second superseding indictment, again only changing the named co-defendants, was returned on January 5, 2006. On November 8, 2006, A Southern District of Illinois Grand Jury returned a third superseding indictment, charging Appellant with “conspiring to knowingly and intentionally manufacture, possess with intent to distribute, and to distribute divers (sic) amounts of a mixture and substance containing methamphetamine, a Schedule II Controlled Substance, in violation of Title 21, United States Code, Sections 841(a)(1) and 841 (b)(1)(A)(viii), all in violation of Title 21, United States Code, Section 846.” All events alleged were in the Southern District of Illinois. The district court had jurisdiction pursuant to 18 U.S.C. §3231. 2. Following a three-day jury trial, commenced on November 14, 2006 and held in the courtroom of the Honorable Judge G. Patrick Murphy, Appellant was convicted. (R. 1236). Defendant was sentenced on March 26, 2007, (R. 1317), and judgment was entered on the same day. (R. 1321). A timely Notice of Appeal was filed, in this case, was also filed on March 26, 2007. (R. 1324). This Court has jurisdiction pursuant to 28 1 Docket entries from the District Court Level are cited as “R. *”. Issues For Review
1. Whether Appellant was denied due process when the district court failed to order, sua sponte, a fitness examination of Appellant prior to forcing Appellant to go to trial. 2. Whether Appellant actually waived his right to counsel, and whether Appellant’s second waiver to proceed pro se was intelligent and knowing. 3. Whether there were errors in sentencing and whether the sentence was reasonable. Statement of The Case
Michael Alden was tried on the third superseding indictment that alleged a sprawling methamphetamine conspiracy in two Southern Illinois counties. For the purpose of this appeal, the procedural history that led to the trial is more important than the substantive evidence that came to light in the chock-full three-day trial. Between the initial indictment in the summer of 2004, and the eventual trial on the fourth indictment in the fall of 2006, Alden had four different appointed counsel, appeared before three different judges, and filed more than four-dozen pro se Eventually, Alden defending himself in a three-day conspiracy trial and was found guilty on the single charge of conspiring to possess with intent to deliver more than 500 grams of methamphetamine, and sentenced to 324 months. 2 Appellant considered raising an ineffective assistance of counsel argument that centered on his trial counsels’ failure to request a fitness exam. However, because it is Appellant’s desire to raise a global ineffective assistance of counsel argument, Appellant has been counseled to do so in a 2255 petition should he lose the instant appeal. Appellant is not waiving this issue for the purposes of collateral attack. Statement of Facts
For the purpose of this brief, the entire procedural history is relevant. The lengthy procedural trek of this case began with a simple one-count indictment filed on July 9, 2004, that alleged a sprawling drug conspiracy involving 20 co-defendants. (R. 2). The one-count indictment charged a drug conspiracy from “the Summer of 1995, to in or about June 2004, in Wayne County, and White Counties, Illinois and elsewhere in the Southern District of Illinois.” (R. 2). The sparsely written indictment alleged that the conspirators were involved in the selling of more than 500 grams of methamphetamine. (R. 2). Causing much consternation for Alden and his various counsel was the fact that the docket entry on the indictment states that it was originally filed suppressed on July 7, 2004. (R. 2). Alden was initially arraigned, along with 13 of his co-defendants, on July 9, 2004, before District Court Judge James Foreman. (R. 11). Also on that day, following his arraignment, Defendant received his second court-appointed attorney. (R. 45). Judge Foreman initially set the pretrial conference for September 7, 2007, and the trial for September 13, 2007. (R. 11). Arraignments of co-defendants were held on July 22, 2007 (R. 79), and July 27, 2007. (R. 114). On July 23, 2004, Defendant was ordered detained by District Court Judge Fraizer for the purposes of pre-trial. (R. 97). Alden’s pre-trial services report contained the picture of a different defendant. (R. 539). On August 30, 2004, Judge Foreman continued the pretrial conference to November 11, 2004, excluding time citing ends of justice. (R. 171). On October 4, 2004, Appellant filed his first of many pro se motions, this one seeking to dismiss the indictment and to have new counsel appointed. (R. 198). Alden then filed four additional pro se motions in October, 2004, including a motion to dismiss, a motion for bail, a motion for speedy trial, and a combined motion to appoint new counsel and to produce Jencks material. (R. 206-209). The Court struck all pro se motions on October 29, 2004. (R. 211). On November 1, 2004, Alden’s second appointed counsel was given leave to withdraw. (R. 212). Alden’s third appointed counsel was given leave to file his appearance on November 4, 2004. (R. 213). On November 12, 2004, the district court again continued the pre-trial conference, until December 13, 2004, citing ends of justice. (R. 216). On November 15, 2004, Appellant filed motions for production of 404(b) evidence and a pro se motion for production of impeachment material (R. 218 and 219). The motions stated that they were filed through counsel, and included counsel’s electronic signature. On November 22, 2004, the Court struck the motions for being filed pro se. (R. 221). The court realized its mistake the next day and In response to both motions, the government contended that it had an open file policy and therefore did not need to specify which, if any, of these materials it might use at trial. (R. 226 and 227). The Court agreed on February 3, 2005. (R. 239). On December 8, 2004, the district court granted two of Alden’s codefendants’ motions to continue. (R. 225). On December 20, 2004 Appellant filed a motion for leave to file a sealed document, as well as a sealed motion. (R. 230 and 231). Appellant was allowed to file the sealed motion. (R. 234). A sealed order ruled these motions moot. (R. 246). On March 21, 2005, Defendant filed a notice of intent to go to trial. (R. 244). On March 17, 2005, the court set the final pretrial conference date for April 25, 2005. (R. 243). On April 6, 2005, the Government filed a Section 851 sentence enhancement notice. (R. 247). In that notice, the government noted that Appellant was charged, and pled guilty to, unlawful possession of a controlled substance on February 11, 1999 and unlawful possession with intent to distribute cannabis on February 11, 1999. (R. 247). The Government also stated that these two offenses occurred prior to the charged conduct in the instant case. (R. 247). Appellant’s motion for release on bond was filed on April 7, 2005. (R. 258). On April 21, 2005, two more sealed motions were filed by Appellant. (R. 285 and R. 286). On April 25, 2005, the Court ordered the government to respond to Alden’s bond motion by May 9, 2007. (R. 289). The government did respond on May 9. (R. 296). This motion, and various attendant motions, were continued various times until September 8, 2005. On September 8, 2005, the court withheld ruling on the bond motion. (R. 505). By written order, the motion for release on bond was On April 19, 2005, the district court noted that because a co-defendant was arraigned on April 18, 2005, the pretrial conference would be continued to May 31, 2005, and the trial would be set for June 6, 2005. (R. 282). On May 4, 2005, the court vacated these dates, and left open- ended the time for trial, citing ends of justice. (R. 295). Less than a week later, the first in what would be a long line of guilty pleas was entered. (R. 297, 298, 299). Co-Defendant Williams’ plea stipulation did not mention Alden. Id. On May 26, 2005, the court ordered Alden’s pre-trial conference set for July 11, 2007, citing ends of justice. (R. 324). Co-defendants Atkins, Barton, Colyer, Shell, and Joseph Weccele all entered their pleas on May 31, 2005. (R. 328-342). On June 24, 2005, the court continued the pretrial conference, as well as Alden’s bond motion. (R. 348, 349). On July 7, 2005, the first superseding indictment was handed down. (R. 353). This indictment, similar to the first, briefly alleged a drug conspiracy from the summer of 1995 until June, 2004. (R. 353). This indictment named 25 co-defendants, and included a handful of other co-conspirators. (R. 353). Alden’s second arraignment was held on July 27, 2005 and he again On July 11, 2005, Jimmie White and Monte White pled guilty. (R. 384, 385, 387, 389). Also, on July 11, 2005, Alden filed a motion for appointment of standby counsel and to proceed pro se. (R. 395). On July 25, 2005, the court struck the pre-trial conference, citing the filing of the superseding indictment, and reset the date for September 26, 2005. (R. 442, 443). The next day, the court set August 22, as the date for hearing on Alden’s motion for appointment of standby counsel and to proceed pro se. (R. 445). Co-defendant Hutchison pled guilty pursuant to an agreement on August 8, 2005. (R. 472-474. Elmer Weccele entered his guilty plea on August 15, 2005. (R. 482-485). On August 22, 205, co-defendant Gregory entered is agreed-upon guilty plea. (R. 489-491). On August 8, 2005, Alden filed a pro se motion alleging ineffective assistance of counsel. (R. 475). The crux of Alden’s concerns revolved around the late filing of his motion for bond, and the delay in that motion being heard, as well as his inability to demand trial. (R. 475). On August 23, the court continued the hearing on Alden’s various pending motions until September On September 6, 2005, the court continued the pretrial conference for all remaining defendants until November 7, 2005, citing ends of justice. (R. 502). On September 8, 2005, the court granted Defendant’s motion to proceed pro se. (R. 505). Alden then filed a motion for a bill of particulars as well as a motion for severance. (R. 537 and R. 538). Four days later, on October 7, 2005, Alden filed a motion for a Santiago proffer, a motion for discovery and a motion for unsealing of a sealed motion filed under docket number 199. (R. 540-542). The government’s responses to these various motions were filed on October 18 and 20 of 2005. (R. 558, 559, 565 and 566). The Court’s order denying Alden’s May, 2005 bond motion was entered Alden filed a pro se motion for another review of his pre-trial detention on October 25, 2005. (R. 570). The government’s response came on November 8, 2005. (R. 588). Another pro se discovery motion was filed on November 10, 2005. (R. 589). On October 31, 2005, the Court continued the November 16 pretrial conference date to November 21 (R. 572), the court then vacated the November 21 date on November 16 (R. 593), and ordered all defendants to file status reports by November 30, 2005. (R. 593). Co-defendant Melton entered his agreed-upon plea on November 21, 2005. (R. 595-597). On December 6, 2005, the court set February 6, 2006 as the date for the final pretrial conference. (R. 625). On December 12, 2005, Alden filed a pro se motion for another detention hearing, for discovery, for new counsel and for uncensored mail. (R. 627). The government’s response came four days later. (R. 630). On that same day, Alden filed a notice of appeal for the previous order on his pre-trial detention, as well as the failure of the court to address his various discovery That appeal was docketed in this Court as number 05-4655. That appeal was eventually On January 3, 2006, Alden filed a pro se motion seeking proof of the validity of the indictment. (R. 639). The following day, Alden’s standby counsel (formerly his third appointed counsel) filed a “fifth notice of compliance”. (R. 640). On January 5, 2006, a second superseding indictment was handed down. (R. 643). This indictment read essentially the same as the first two, except that five of the previous co- defendants had merely become co-conspirators, and two forfeiture allegations were added against other defendants. (R. 643). The court initially set arraignment for February 6, 2006. (R. 656). On January 31, 2006, the court vacated the February 6 date, citing Alden’s interlocutory Alden filed another pro se motion for discovery on January 12, 2006. (R. 655). On January 26, 2006 Alden filed yet another motion to reconsider bond, and a motion to dismiss. (R. 664). In his motion to dismiss, Alden alleged a violation of both his constitutional and statutory speedy trial rights, a violation of his right to effective assistance of counsel, and a violation of his 5th amendment right to be charged by grand jury indictment. Id. Four days later, Alden again filed a motion requesting counsel. (R. 670). A similar motion followed on Valentines Day, 2006. (R. 684). That was accompanied by a six-page plea for why he was not being appointed counsel, (R. 685), as well as a document intended to be a response to the Seventh Circuit’s request made On March 7, 2006, Defendant again demanded a speedy trial. (R. 710). On March 9, 2007, Alden filed another document that appears to be another attack on the validity of the indictment, and a plea for the other co-defendants to join him on this attack. (R. 711). On the same day that the mandate for the interlocutory appeal of the denial of bond was returned, (R. 727), Alden filed a motion for Writ of Habeas corpus Ad subjiceindum. (R. 728). On March 29, co-defendants Ewing and Vaughn pled guilty. (R. 734-739). On April 4, 2006, Alden filed a pro se motion seeking a response to his Writ of Habeas corpus ad subjiciendum. (R. 745). On April 13, Alden filed a letter again attacking the validity of the indictment, and again attacking the counsel representing the other defendants. (R. 755). On April 17, 2006, the District Court denied Alden’s motion for Bill of Particulars (R. 537), found moot his motion to Sever (R. 538), denied his motions for bond (R. 540, 570, 664, 627), granted his motion for discovery (R. 655), found moot three other motions for discovery (R. 541, 627 and 636), denied two other discovery motions (R. 542 and 589), denied all motions requesting counsel (R. 475, 627, 634, 639, and 670), denied his motions to dismiss (R. 664), found moot his motion for a speedy trial (R. 710). (R. 768). The day after entering this order, the court set May 30, 2006 as the day of arraignment on the second-superseding indictment for Alden. (R. 773). Co-defendants Masterson and Cramer entered their pleas on April 17, 2006. (R. 762-767). On April 19, 2006, standby counsel filed an unsigned waiver of Defendant’s right not to be tried within thirty days of arraignment. (R. 777). On May 2, 2006, Alden filed a pro se motion stating he did not wish to waive this right. (R. 807). On April 24, 2006, co-defendant Downs entered her guilty plea. (R. 794-795). On April 27, 2006 Defendant filed a motion questioning the validity of the indictment, and a request for a ruling on his motion for Writ of Habeas Corpus Ad Subjiciendum. (R. 815 Co-defendant Bruce filed his plea agreement on May 3, 2006. (R. 811, 812). Gill, Pragit, and Linder entered theirs on May 15, 2006. (R. 832-842). On May 30, co-defendants Melton, Thomas, West, McKitrick and McDaniel entered their agreed-upon pleas. (R. 876-887). Also on May 15, 2006, Alden filed yet another notice to the other attorneys. (R. 843). On May 30, 2006, Alden was arraigned for the third time, again pleading not guilty. (R. 886). On that same day the pre-trial conference was held. (R. 888). Alden’s various pending motions were taken under advisement. (R. 888). Magistrate Judge Wilkerson entered his report and recommendations as to Alden’s motions on June 6, 2006. (R. 902). On June 13 and 14, Alden filed pro se objections to the report and recommendations. (R. 913 and 914). Alden filed another discovery motion on June 16, 2006. (R. 920). Judge Foreman adopted the magistrate’s report and recommendations on June 21, 2006. (R. 937). Alden filed an objection to this adoption. (R. 950). On July 28, 2006, the court set the final pretrial conference for August 8, 2006, citing ends of justice to exclude time. (R. 995). On July 31, 2006, Alden filed an objection to this continuance. (R. 1006). On August 2, 2006, Alden’s standby counsel filed a motion seeking to withdraw as standby counsel and asking that counsel be appointed to represent Alden. (R. 1014). In this motion, attorney Stobbs detailed both Alden’s conduct as well as the observation that Alden could not competently represent himself. (Id.). On August 24, 2006, Alden filed, pro se, a speedy trial demand, (R. 1051). Four days later, Alden filed another motion attacking the validity of the indictment. (R. 1053). On August 30, 2006, the court granted Stobb’s motion to withdraw as standby, and appointed Alden his fourth attorney. (R. 1062). That same day, Alden filed another motion attacking the validity of On September 5, 2006, Alden filed another trial demand. (R. 1070). On September 12, 2006, the government responded to Alden’s various pending motions attacking the indictment and seeking grand jury information. (R. 1088). Alden filed a reply on September 22. (R. 1022). On September 28, 2006, Alden filed a letter complaining of his various previous appointed On October 10, 2006, the court confirmed the appointment of Gomric and denied Alden’s pending motions. (R. 1157). On November 7, 2006, a hearing was held at which, Gomric was given leave to withdraw, and was appointed standby counsel. (R. 1223). On November 8, 2006, a third superseding indictment was handed down. (R. 1224). This indictment read, in its From at least in or about January 1998, to in or about June 2004, in Wayne County and elsewhere within the Southern District of Illinois and the United States, Michael L. Alden, defendant herein, did knowingly and intentionally combine, conspire, and agree together with John Melton, Elmer Weccele, and Joseph Weccele, as well as with other persons both known and unknown to the Grand Jury, to knowingly and intentionally manufacture, possess with intent to distribute, and to distribute divers (sic) amounts of a mixture and substance containing methamphetamine, a Schedule II Controlled Substance, in violation of Title 21, United States Code, Sections 841(a)(1) and 841 (b)(1)(A)(viii), all in violation of Title 21, United States Code, Section 846. The total amount of methamphetamine involved in the conspiracy which was reasonably foreseeable to defendants exceeds 500 grams of a mixture or substance containing methamphetamine. Defendant was arraigned on November 8, 2006. (R. 1227). Also on that day, Alden signed a waiver of his right to ask for a continuance, and noted his intention to proceed pro se at his November 14, 2006 trial. (R. 1228). The trial began as scheduled. (R. 1230). On the second day of trial, Alden filed a motion to dismiss for due process violations (R. 1233), as well as a motion to withdraw his November 8th waiver. (R. 1234). The Court entered an order denying the Ultimately, 21 witnesses testified against Alden, and Defendant was found guilty. (R. 1236). Following a protracted sentencing process, where Alden was again appointed an attorney, Alden was sentenced to 324 months in prison. (R. 1321). District Court Statements Regarding Alden’s Capacity The district court called Alden unsophisticated and unknowledgeable. Tr. Vol. 6, p. 13. The Court also called defendant “helpless.” Later the district court called Alden “rather slow”. Tr. Vol. 11, p. 530. The Court followed up by asking Alden if Alden knew just how slow he was. Id. During sentencing the district court noted, as an aside, that once in prison there would be “professionals” who would help Alden. Tr. Vol. 13, p. 14. The Two Waivers To Proceed Pro Se On two different occasions, Alden proceeded pro se. The first was from September 8, 2005 until October 10, 2006. On September 8, 2005, Judge Foreman heard the motion of Alden’s third appointed counsel to withdraw. Tr. Vol 4, at p. 2. The first two pages of the hearing’s transcripts consist of that counsel explaining his difficulties with Alden. Id., at 2-4. Following this statement, the district court said: I really think he’s hit the nail on the head, Mr. Alden. You, as far as this Court is concerned, you’ve got to make a choice. You either accept his services as an attorney or you represent yourself. So the decision is up to you. Tr. Vol. 4., at 4. This statement was followed by a back and forth between Alden and the Court regarding discovery. Id., at 4-5. The Court then repeated itself, saying: [Y]ou are going to have to make up your mind, and you’re going to have to do it today, whether or not you represent yourself or whether you accept the services of Mr. Stobbs. You already have had one lawyer. Mr. Skaggs is a competent lawyer. He’s a very good lawyer. You couldn’t get along withdraw…[Stobbs] is a very good lawyer…I think it would be the wrong thing for you to do, but you’ve got to fish or cut bait today. You’re going to have to say yes or no one way or the other. Tr. Vol. 4, at 5. After Alden again raised discovery issues, the court responded with: I’m not going to hear anything else. I’m going to hear from you what you want to do. You want to represent yourself or do you want Mr. stobbs to do it? If you represent yourself I’ll have him to serve as standby counsel. He’s not going to withdraw…If you think you know more about it than he does, well, then, you represent yourself. That’s up to you. Tr. Vol. 4, at 6. After Alden stated that he wanted “adequate counsel,” the court responded: And you, Mr. Alden, I don’t like to talk to defendants this way, but you’re pulling everybody’s chain pretty good here. You’re writing motions that I shouldn’t have to consider. You’re going to fiddle around and trip yourself up, and you’re going to make some admissions in there that the government’s going to pick up on. It’s going to be bad for you…You’re going to have to make up your mind, sir. You’re going to have to make up your mind right now whether you want Mr. Stobbs to represent you or whether you are going to represent yourself. You can represent yourself. The law provides for that, and I don’t have a problem. I’ve tried hundreds of cases with individuals representing themselves, and I think they make a mistake when they do it, and I would say that to you, but that’s up to you. Tr. Vol. 4, at 7. Alden stated, “I do not want to represent myself, but I want counsel to represent me.” Id. The Court and Alden then discussed Alden’s issues regarding various motions. Tr. Vol. 4, at 7-10. After this back and forth, the Court again demanded that Alden make a decision, “you want Mr. Stobbs to represent you or do you want to represent yourself?” Id., at 11. Alden responded, “I don’t want him to represent me, and I don’t want to represent myself.” Id. The Court replied that Alden couldn’t “have it both ways.” Id. Finally, an exacerbated court said, “so let’s do this then. You represent yourself. You represent yourself.” Id., at 12. Alden protested, saying that he did not want to represent himself. Id., at 12. The Court and Stobbs then suggested that Alden hire an attorney, to which Alden responded that he could not afford one. Id., at 13. The Court concluded the discussion by saying, “You represent yourself and that’s the way it will be. I think that’s what you want to do anyway.” Id., at 14. On November 7, 2006, less than a month after Alden received the services of his fourth court-appointed attorney, another hearing was held. Tr. Vol. 7. The crux of the dispute between Alden and Attorney Gomric was that the trial was set for November 14, 2006 and a third superseding indictment was to be returned on November 8, 2006 and Gomric would not be set to go to trial. Tr. Vol. 7, at 3-4. Judge Murphy told Alden that he would allow Gomric to withdraw and would appoint Gomric as standby counsel. Id., at 4-5. The court asked Alden if he understood how standby counsel worked. Id., at 5. Alden said yes. Id. Unlike what occurred on September 8, 2005, the Court did proceed to inquire Alden as to COURT: All right. Now you, though, would prefer to go it alone rather than have your case COURT: Very well. Now what is your experience, if any, in defending criminal prosecution cases? Have you participated in your defense before? COURT: Do you realize that you are looking at a mandatory minimum sentence of 20 years in a COURT: Do you realize that under the federal system that means at a minimum you would have COURT: And the Court might see fit at the end of the day to give you more time than that. You could be sentenced up to life. Do you understand that? COURT: And you do understand that in a criminal case where you are charged with a conspiracy that the ordinary rules of evidence are different, that is to say the statements of a lot of other persons who are not actually defendants in the case will come in against you. Do you understand COURT: No knowing all that, and knowing your limitations, you would prefer to go forward Alden’s three-day trial consisted of the government calling 21 witnesses and offering 33 exhibits into evidence. The defense presented 3 witnesses and offered no exhibits into evidence. The government began by calling Glenn Roundtree an inspector with Illinois State Police assigned to Zone 7 Narcotics in Carmi, IL. (Tr., Vol. 9, p. 71), who the government qualified as an expert (Id., p. 78), and testified to the role that Exhibits 26A-J (photographs of meth precursors), played in the manufacture of methamphetamine. (Id., p. 80-99) . Next the government called Trooper Matt McCormick an Illinois State Trooper assigned to Zone 5 Investigations in Champaign. (Id., p. 108). McCormick testified about the search and seizure of Alden in a Walmart parking lot on February 11, 1999 (Id., p. 81) and the arrest of Alden on November 8, 2002. (Id., p. 119) Also, McCormick explained government exhibits 1-4 which are the result of the search of Alden’s car from the 1999 arrest. (Id., p. 115-117). Officer Blake Adams also testified about the 1999 arrest of Alden, (Id., p. 130) and identified exhibits 2A-C, and 6-8, which were receipts that were also found as a result of the search of Alden’s car. (Id., p. 135-141). Officer Brian Rawls also testified about the February 1999 arrest of Alden (Id., p. 144). Rawls participated in the search of the vehicle, watching Alden after he was placed under arrest, and transported Alden to jail, and received the items that were found as a result of the search. (Id., p. 144-145). Rawls identified exhibits 2A-D as items received as a result of the search of Alden’s vehicle. (Id., p. 146). The next government witness was Daniel Lecocq a retired Forensic Scientist who tested the evidence of the February 1999 arrest of Alden and determined it to be 14.4 grams of cannabis and 3.21 grams of methamphetamine.(Id., p. 152-155). John Melton was the governments next witness and he testified that he used and manufactured methamphetamine with Alden, and that Alden sold methamphetamine to Rodney Shana Ewing testified that Alden sold methamphetamines to her boyfriend Rick Garner. (Id., p. 178-180). Additionally Eving stated that John Melton told her that he was giving Alden large amounts of methamphetamine to sell to Rodney Esmon and Buddy Ewing (Id., p. 183-184). The next expert witness the government called was Grace Lively who is established as an expert in Forensic Science Analysis (Id., p. 188). Lively tested 62.1 grams of the 822.3 grams of pills that were found as a result of the 1999 search of Alden’s vehicle and determined that they contained pseudoephedrine (Id., p. 191). Next the government called Officer Bruce McDonald a patrolman with the Mt. Vernon Police Department who testified to the August 14, 2001 arrest of Alden (Id., p. 196). McDonald identified government’s exhibit 25, which was a photograph of Carla Bowen who was also arrested (Id., p. 195), and exhibits 9-2 which were receipts, a bag of methamphetamine, a bag of cannabis various precursors used in the manufacture of methamphetamine, and tools used to ingest methamphetamine, all of which were discovered during the search of Alden, his vehicle The next witness was Officer David Keen who explained the chain of custody of the above evidence (Id., p. 215-218). Thomas Sadowski was the next expert Forensic Scientist Analysis that testified to testing the above methamphetamine and cannabis and determined the weights to be 1.1 grams of methamphetamine and 1.1 grams of cannabis. (Id., p. 222-225). Next the government called Joseph Weccele and offered his plea agreement as Governments exhibit 28. (Id., p. 230). Weccele testified to knowing Alden, getting high with him, manufacturing methamphetamine with him, and agreeing to show Alden his pill buying route and in exchange Alden would help out Weccele’s wife and kids while he was in jail. (Id., p. The government’s next witness was Carla Bowen, who testified to knowing Alden, using methamphetamine with him (Id., p.272), and helping him to shop for methamphetamine precursors in August of 2001 when they were both arrested.(Id., p. 279-281). Additionally Bowen identified government exhibits 18-20 as pseudophedrine pills (Id., p. 281) and exhibits 15 and 16 as the items that Bowen purchased at Walmart and camping fuel (Id., p. 283-284). The government called Augenia Downs, the girlfriend of Elmer Weccele, to testify that Alden would manufacture methamphetamine with Elmer, (Id., p. 297), and that she observed this manufacture at least six times. (Id., p. 301). The government entered Downs’ plea agreement as exhibit 33 (Id., p. 304). The government then called Elmer Weccele to testify and entered his plea agreement as exhibit 27. (Id., p. 308) Weccele testified that he worked with Alden and that he and Alden would use and manufacture methamphetamine together around the job site. (Id., p. Jimmie and Monte Ray White are brothers and their plea agreements were entered as government exhibits 29 (Id., p. 351) and 30. (Id., p. 371). Jimmie White stated that he used methamphetamine with Alden (Id., p. 355), and traded anhydrous ammonia to Alden for methamphetamine. (Id., p. 360) Monte Ray White testified that he observed Alden trade anhydrous ammonia for methamphetamine. (Id., p. 378). Next, the government called Rodney Esmon who testified that he used methamphetamine with Alden. (Id., p. 401). Esmon also testified about the November 2002 traffic stop where both Esmon and Alden were arrested and said that the point of the trip was to buy precursors. (Id., p. Gary Melton was called next by the government to testify that he booked Alden on the night of the November 2000 arrest and he had $735.51 in his possession. (Id., p. 409-410). Russell Pragit was the next witness for the government called and his plea agreement was entered into evidence as governments exhibit 32 (Id., p. 412). Pragitt testified that he agreed to trade 4 grams of methamphetamine to Alden in exchange for Alden giving him 4 ounces of marijuana. (Id., p. 416). Even though Pragitt never met Alden, the transactions took place through Judy Ewing who approached Pragitt with the deal. (Id., p. 416). Lastly Judy Ewing another convicted coconspirator whose plea agreement was entered as government’s exhibit 31 (R. 421), testified to being the middleman for the above agreement. (Id., p. 433), and received in return a quarter ounce of marijuana and a half a gram of methamphetamine. (Id., p. 435). Alden began his case by recalling John Melton to testify about his August 1999 proffer statement including the statements regarding Alden’s February 1999 arrest and Melton’s observation of Alden’s December 23, 1997 traffic stop. (Id., p. 442) Next Alden called Patty Alden to testify that the reason for the trip with Alden and Esmon in November of 2000 was for Alden to purchase a new pickup truck. (Id., p. 448). She also testified that since 1999 Alden was subject to urinalysis tests for drugs from various Lastly, Alden called Officer Glenn Roundtree to question him about the proffer statements of John Melton Regina Weccele, Augenia Downs and Jennifer McKenzie (Id., p. 455- 456). After the testimony of Roundtree Alden concluded his defense. Initially, the Probation Office concluded that Alden’s relevant conduct was for 4.4 kilograms of a mixture or substance containing methamphetamine. (Initial PSI, at p. 62). A month later, the Probation Office revised its finding, and concluded that Alden’s relevant conduct was for 5.1 kilograms. (revised PSI, at p. 63.). The calculations made by the probation office were based on trial testimony and were presented as follows
Incident/Person
Initial PSI Amount
Revised PSI Amount Basis for
Difference
Initial PSI excluded extra weight as double counting Added weight for supplying of anhydrous ammonia. 4,233.89
4,849.89
PSI’s Totals
3 What was actually seized was 3.2 grams of a substance containing methamphetamine, and 156.24 grams of a meth precursor that is itself a controlled substance. Instead of applying the marijuana equivalency to this precursor, the probation office estimated the weight of how much meth this precursor would create. According to USSG §2D1.1 equivalency tables, 1 gram of pseudoephedrine equals 10 kilograms of marijuana. 4 Again, what was actually seized was 40.65 grams of pseudophoedrine. 5 $600-$800 meant to purchase 900 grams of pseudoephedrine. 6 Actual item was 3.5 gallons of precursor anhydrous ammonia. 7 Testimony was to 2000 pseydoephedrine pills. Pursuant to Section 2D1.1, the threshold level is 5 kilograms. In the initial PSI, Alden’s offense level was 34. In the revised PSI, Alden’s offense level was 36. The sentencing court accepted this finding. (R. 1348, Tr., p. 5). The government argued that a 2-point enhancement for obstruction was appropriate because Alden, as pro se counsel, called a witness that the government contended was intended to mislead the jury. (R. 1318, at p. 62). The Probation Office made no recommendation regarding this enhancement. Id. The Court accepted the government’s argument. (R. 1348, Tr., pp. 5-6). Consequently, the Court found that Alden’s For his criminal history category, Alden was assigned 3 points for a 1989 felony conviction for aggravated criminal sexual abuse, and 3 points for a 1999 conviction for unlawful possession of a weapon by a felon, in both the initial and revised PSI. See, PSI, p. 95-96. The probation office, and the court accepted, the addition of two points because the conduct occurred while Alden was on parole in 98-CF-274, and one point because the conduct occurred less than two years after Alden was released from custody for his conviction in 98 CF-274. PSI, p. 96-98. Consequently, it was found that Alden’s total criminal history points were 9, and that his The sentencing court found that the proper guideline range was 324 to 405 months, based on an offense level of 38 and a criminal history category of IV. (R. 1348, Tr., p. 7). The court also found that the statutory minimum and maximum was 20 years to life, based on the 851 enhancement. (R. 1348, Tr., p. 4-5). At sentencing, Alden challenged the 851 enhancement. (R. 1348, Tr., p. 9). Ultimately, Alden was sentenced to 324 months. Id., at 15. Prior to entering sentence, the Court invited Alden to speak regarding his sentence. Id., at 9-11. Because Alden’s statement contained various reiterations of his legal concerns, the court cut him off. Id., at 11. At that point, the following colloquy occurred: ALDEN: You didn’t let me say nothing at trial. You controlled everything. COURT: Let me tell you something. I said you are finished. COURT: Do you need some help being finished? Is anybody in here for the next hearing? Now, let me explain something to you. If there was someone in here that might be shocked at this, I wouldn’t take extraordinary measures. But if you keep talking, I’m going to take extraordinary measures. Now, it is not when the tape goes on that’s bad. It’s whyen it comes Summary of the Argument
The record before the district court contained sufficient evidence of Defendant’s irrationality that the district court should have ordered, sua sponte, a competency hearing of defendant to see if he was fit to stand trial. In addition, both times that Alden proceeded pro se was an abuse of discretion by the district court. In the first instance, Alden never waived his right to counsel. In the second instance, the context of the waiver, combined with Alden’s capacity made the court’s ruling an abuse of discretion. There were a number of sentencing errors. The sentencing court miscalculated the amount of drugs attributable to Alden, applied the wrong standard in making the drug determination, did not properly consider the Section 3553 factors, and failed to give Alden a meaningful opportunity to make a pre-sentencing statement to the court. Argument
Appellant Was Denied Due Process, When The District Court Failed To Order
A Fitness Exam
a. Standard of Review
When a district court makes findings regarding whether or not to hold a competency hearing, those findings are reviewed for clear error. United States v. Andrews, 469 F.3d 1113, 1120 (7th Cir. 2006). When a Defendant requests a competency hearing and it is denied, then such denial is reviewed for abuse of discretion. Id., at 1121. When, as occurred here, there were no factual findings, and no request for a competency hearing, the question becomes whether there was, based on the record, a bona fide doubt as to Defendant’s competency. Id., at 1122. b. Background

Three different attorneys and two different judges made various comments regarding Alden’s mental capacity and irrational behavior throughout the pretrial and post-trial proceedings. Alden filed more than four dozen pro se filings. Most of the filings revealed Alden’s obsession with the issue of the indictment. Several of the filings reveal Alden’s paranoia regarding a district-wide (and possibly circuit-wide) conspiracy to deprive him and his co-defendants of a fair trial. According to Alden’s PSI, he had never been to any type of mental The district court called Alden unsophisticated and unknowledgeable. Tr. Vol. 6, p. 13. The Court also called defendant “helpless.” Later the district court called Alden “rather slow”. Tr. Vol. 11, p. 530. During sentencing the district court noted, as an aside, that once in prison there would be “professionals” who would help Alden. Tr. Vol. 13, p. 14. c. Analysis

Appellant contends that there was a sufficient record of Appellant irrational behavior to compel the district court to order a competency hearing. This Court has consistently held that “‘[u]nquestionably, due process requires a defendant to be competent to stand trial.’” United States v. Andrews, 469 F.3d 1113, 1117 (7th Cir. 2006), quoting United States v. Collins, 949 F.2d 921, 924 (7th cir. 1991). Consequently, a defendant must have the “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . [and must] ha[ve] a rational as well as factual understanding of the proceedings against him.” Id., citing Leach v. Kolb, 911 F.2d 1249, 1260 (7th Cir.1990). Therefore, it is not incumbent upon the defendant to move for a competency hearing because, “the due process clause requires the trial judge to inquire sua sponte into a defendant's mental state if events in court imply that the accused may be unable to appreciate the nature of the charges or assist his counsel in presenting a defense.” Id., quoting Timberlake v. Davis, 409 F.3d
819, 822 (7th Cir.2005) [emphasis added]. The obligation of the court to act sua sponte occurs whenever there is “evidence of a defendant's irrational behavior, his demeanor at trial, [and/or] any prior medical opinion.” Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). According to the Supreme Court, “even one of these factors standing alone may, in some circumstances, be sufficient” for the court to order a competency exam. Drope, 420 U.S. at 172, 180, 95 S.Ct. 896. An earlier Supreme Court ruling noted that “[I]t is not enough for the district judge to find that ‘the defendant [is] oriented to time and place and [has] some recollection of events,’ but that the ‘test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.’” Dusky v. United States, 362 U.S. 402, 403, 80 S.Ct. 788, 4 On the surface Alden may have appeared competent because he is literate and is able to mimic legal writings with some appearance of understanding. When looking at the entire proceedings below, however, it should have become clear that Alden was obsessed with certain irrelevant issues—and that obsession continued regardless of how several very smart people (at least three lawyers and two judges) tried to explain to Alden the fallacy of his thinking. In addition, Alden’s filings also revealed a deep-seated paranoia. It is true that most criminal defendants distrust the criminal justice system (as maybe they should since they are defendants), but Alden’s filings reveal a certain irrationality that should have been obvious to the district It appears that the district court chose to believe that Alden was just playing games. See e.g. Tr., Vol. 4, at p. 7. This is a possibility. Criminal defendants do some times play games. The breadth of pro se filings and on-the-record conversations, however, show a person that is not playing games—but instead a defendant who simply cannot comprehend certain basic tenets about the law and the procedure of his case. The record reveals that no matter what his lawyers and the court explained about the Speedy Trial Act, and how it is tolled when the defendant files certain motions, Alden could not help himself and kept filing motions, even while he kept demanding trial. The record reveals that no matter what his lawyers and the court explained about the process of sealing indictments until arrests are made, Alden could not and does not comprehend this simple procedure, and continues to make filings to this day regarding the “suppression” of his indictment. The record reveals that no matter what his lawyers and the court explained about the role of counsel when representing a defendant, Alden could not comprehend this role. At some point, the district court had an obligation to inquire whether these finite acts of irrationality were symptoms of a larger irrationality. At some point the district court had an obligation to turn to professionals to determine if Alden truly had “a rational as well as factual understanding of the proceedings against him.’” Dusky, 362 U.S. at 403. The district court clearly knew something was wrong. Instead of inquiring into Alden’s mental capacity, however, the court chose to believe that Alden was just a difficult client and “rather slow.” Part of the question of competency is whether a defendant can assist in his own Clearly this Defendant could not assist in his own defense. The Court’s response, was
II. The Court Abused Its Discretion By Allowing Appellant to Proceed Pro Se

a. Standard of Review

Generally, a lower Court's decision to force a defendant to proceed pro se is reviewed for an abuse of discretion. United States v. Avery, 208 F.3d 597, 601, (7th Cir. 2000). b. Background
Defendant defended himself pro-se, with standby counsel, from September 8, 2005 until October 10, 2006, and then again from November 7, 2006 through the completion of the trial. When Alden’s third counsel was given leave to withdraw on September 8, 2005, Alden was not warned of the difficulties of going pro se. In fact, he was given an ultimatum, and when he made it clear that he did not want to proceed pro se, the district court ruled that he would anyway. During the period between September 8, 2005 and October 10, 2006 Alden was indicted on a second superseding indictment and arraigned. On November 7, 2006, Alden was warned on the difficulties of going pro se. He stated that he wanted to go pro se, because that was the only way he could go to trial on the November 14, 2006 trial date. Following the second waiver, Alden was indicted on a third superseding indictment on November 8, 2006, arraigned on that same day, and then went to trial on c. Analysis
The decision of the defendant to proceed pro se must be made knowingly and voluntarily and with the court warning the defendant of the advantages and disadvantages of self representation. United States v. Avery, 208 F.3d 597, 601 (7th circuit 2000). To ensure that these warnings have been administered the court conducts a formal hearing where the court can determine if defendant is making an informed decision to proceed with self representation. United States v. Todd, 424 F.3d 525, 530 (7th Circuit 2005). The Sixth Amendment right to counsel applies during all “critical stages of the prosecution.” Id., quoting United States v. Lane, 804 F.2d 79, 81 (7th Cir.1986), which in turn quoted United States v. Wade, 388 U.S. 218, 237, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). “A critical stage is one where potential substantial prejudice to defendant's rights inheres in the . confrontation [of the accused by the prosecution] and where counsel's abilities can help avoid that prejudice.” Id., quoting United States v. O'Leary, 856 F.2d 1011, 1014 (7th Cir.1988), citing Coleman v. Alabama, 399 U.S. 1, 9, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). As this Court noted in Todd, “the Supreme Court has recognized that the period from arraignment to trial is ‘perhaps the most critical period of the proceedings.’” Todd, supra, 424 F.3d at 530, citing Wade, 388 U.S. at 225, 87 S.Ct. 1926 . Alden was originally indicted on July 7, 2004. Clearly his right to adequate counsel had attached. Further, during the 13-month period where Alden proceeded pro se, he was indicted It is true that a defendant may waive his right to counsel. Todd, 424 F.3d at 530. This Court considers four factors in determining if that waiver is knowing and intelligent. Id. They are: “(1) whether and to what extent the district court conducted a formal hearing into the defendant's decision to represent himself; (2) other evidence in the record that establishes whether the defendant understood the dangers and disadvantages of self-representation; (3) the background and experience of the defendant; and (4) the context of the defendant's decision to waive his right to counsel.” Id. Generally, the district court should “conduct a formal inquiry” to determine if the defendant “has been adequately warned of the dangers and disadvantages of self-representation.” Id., at 530-531, citing United States v. Moya-Gomez, 860 F.2d 706, 733 (7th Cir.1988). In the case of the first waiver, there never was a real waiver, and all factors weigh against finding that there was a knowing and intelligent waiver. As a starting point, Alden simply never agreed to go pro se. Not only did he not agree to it during the motion to withdraw hearing in September 8, 2005, but he subsequently filed several motions seeking appointment of counsel. For lack of a better term, the September 8, 2005 hearing was more of a procedurally infirmed sanction hearing against Alden that resulted in an unconstitutional sanction of depriving Alden of his Sixth Amendment right to counsel. Further, there is nothing in the record (at least until November 7th and 8th, 2006) that shows that Alden understood the dangers of self-representation. Just the opposite in fact. It appears from the record that Alden believed there were no dangers in self-representation, as he continuously made pro se filings, and continuously argued on his own behalf during hearings. Further, there was nothing in defendants background that suggested that he could competently represent himself—not that the district court would have known this on September 8, 2005. Again, nothing about the defendant’s education and training was put into the record Finally, if there was a waiver on September 8, 2005, then it was a coerced waiver. At no time did Alden explicitly waive his right to counsel (again until November 8, 2006). If the court chose to take Alden’s refusal (or inability) to cooperate with Attorney Stobbs as a waiver, then the context of such a waiver bodes against a knowing and intelligent waiver. Even the November 7, 2006 waiver is questionable. In that case there was a formal inquiry conducted—but that inquiry was limited. And, the context of the waiver again reveals a coercive environment. Alden simply did not understand (and does not to this day) the exact import of a third superseding indictment. It is clear, from the record, that Alden believes he went to trial on the first indictment that was returned on July 7, 2004. In Alden’s view, his demand to go to trial was coming more than two years after the indictment, and the court system and his lawyers were simply frustrating his attempt to get his day in court. For the foregoing reasons, the court abused its discretion in forcing Alden to proceed pro se both from September 8, 2005 until October 10th, 2006, and from November 8th, 2006 through trial, because Alden did not waive his right to counsel for the first period, and the waiver for the second period was not intelligent and knowing. The Court Made Guideline Calculation Errors, Failed To Properly Consider
The Section 3553 Factors, and Did Not Provide An Meaningful Opportunity For
Defendant To Speak Prior To Sentencing
a. Standard of Review
The application of the guidelines are reviewed de novo. United States v. Carroll, 346 F.3d 744, 747 (7th Cir. 2003). The standard of review for factual findings in making guideline determinations is still whether the findings were clearly erroneous. United States v. McLee, 436 F.3d 751, 765 (7th Cir. 2006). The application of the legal principles of the Guidelines, and of the proper sentencing procedure, however, are not viewed deferentially. See e.g. United States v. Rodriguez-Alvarez, 425 F.3d 1041, 1046 (7th Cir. 2005). It is true that in the post-Booker era, sentences are generally reviewed for reasonableness, and that “any sentence that is properly calculated under the Guidelines is entitled to a rebuttable presumption of reasonableness.” United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005). If, however, the guideline calculation was not proper, or the Booker procedure was not properly applied, then the sentence cannot be deemed reasonable. See e.g. Rodriguez-Alvarez, 425 F.3d at 1046; see also United States v. Wesley, 422 F.3d 509, 2005 WL 2106166 (7th Cir.2005) (noting that “‘it is always an abuse of discretion to base a decision on an incorrect view of the law [and] review of this type of underlying legal ruling is non-deferential,’” quoting United States v. Mietus, 237 F.3d 866, 870 (7th Cir.2001)). In the post-Booker era, among the factors to consider in sentencing are the history and characteristics of the defendant, 18 USC §3553(a)(1), as well as the need for judges to sentence base on the seriousness of the offense, the desire to provide just punishment and adequate deterrence and to effectively provide rehabilitation for the defendant. §3553(a)(2). The PSR and ultimate sentencing guideline range are still important, however, in that in addition to being a factor, the guideline range provides a framework for the determination of whether a sentence was reasonable on review. See United States v. Cunningham, 429 F.3d 673, 675-676 (7th Cir. 2005). Post-Booker cases in this circuit have held that the sentencing judge must first compute the applicable guideline range, and then determine if the sentence imposed will be within that range. See e.g. Mykytiuk, supra, 415 F.3d at 607-08; United States v. Dean, 414 F.3d 725, 727 (7th Cir. 2005); and United States v. George, 403 F.3d 470, 472-73 (7th Cir. 2005). Although a sentence imposed within a properly calculated guideline range is presumed to be reasonable, Mykytiuk, supra, 415 F.3d at 608, the sentencing court cannot rest on the guideline range itself, and still must address each of the Section 3553 factors, and make relevant factual findings. Cunningham, supra, 429 F.3d at 675-676. “Whether a sentence is reasonable depends on its conformity to the sentencing factors set forth in 18 U.S.C. § 3553(a)(2).” Id., citing Booker, 125 S. Ct. at 765-66 (2005). The Section 3553 factors are “a directive to the sentencing court.” Id. Consequently, “the sentencing judge may not rest on the guidelines alone, but must, if asked by either party, consider whether the guidelines sentence actually conforms, in the circumstances, to the statutory factors. Id., citing United States v. Williams, 2005 WL 2455110, at *1-2 (7th Cir. Oct. 6, 2005). Just because a sentencing falls within the guidelines, does not mean that it is reasonable. Id b. Background

The sentencing court found that Alden’s relevant conduct was more than 5 kilograms 8 The other five sentencing factors under Section 3553 are: the kinds of sentences available; the sentencing range under the guidelines; pertinent policy statements; avoidance of unwarranted sentence disparities; and victim restitution. 18 USC 3553, et. seq. of methamphetamine, adopting the revised PSI’s finding. The sentencing court, therefore concluded that the base offense level was 36. The sentencing court also applied a 2-point enhancement because Alden, pro se, called his wife to testify on what the court determined was misleading testimony. Consequently, the court found that Alden’s total offense level was 38, and that the advisory guideline range was 324 to 405 months. The sentencing court appeared to address one of the 3553 factors in coming to its final sentence, but did not appear to address any of the others. See generally Sent. Tr., pp. 13-15. The Court did allow Alden to speak briefly, but then quickly interrupted. Sent. Tr., pp. 10-12. c. Analysis

The Court Clearly Erred In Relevant Conduct Determination The Court’s finding that Defendant’s relevant conduct was for more than 5 kilograms of methamphetamine was clear error, because it appears to be based on faulty math. The amounts put forth simply do not add up to more than 5 kilograms. For these reasons, not only was this determination clear error, it was also plain error. See e.g. United States v. Alburay, 425 F.3d 782, 789 (7th Cir. 2005) (holding that the government’s math error in calculating restitution was plain Using the numbers supplied to the Probation Office by the Government, and applied by the Probation Office in its revised PSI, Alden appears to be responsible for about 4.8 kilograms. Consequently, Alden’s base offense level was 34, not 36, and the sentencing court incorrectly Even If Math Had Been Right, Quantity Not Supported By Evidence Even if the government, the court, and the Probation Office added right, the determination as to the amount of methamphetamine that would have been created from the pseudophoedrine pills and anhydrous ammonia was not sufficiently supported by reliable evidence. It is the government’s burden to prove, by a preponderance, the quantity of drugs attributable to Alden. United States v. Eschman, 227 F.3d 886, 890, United States v. Galbraith, 200 F.3d 1006, 1011 (7th Cir.2000). Alden also “‘has a due process right to be sentenced on the basis of reliable information.’” United States v. Beler, 20 F.3d 1428, 1432-33 (7th Cir. 1994), citing United States v. Campbell, 985 F.2d 341, 348 (7th Cir.1993); United States v. Westbrook, 986 F.2d 180, 182 (7th Cir.1993); and United States v. Atkinson, 979 F.2d 1219, 1224 (7th Cir.1992). According to USSG § 6A1.3(a) the sentencing court must “consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable
For sentencing purposes “the district court must ‘approximate the quantity of the controlled substance’ at issue, and the court may consider, for example, ‘the price generally obtained for the controlled substance, financial or other records, similar transactions in controlled substances by the defendant, and the size or capability of any laboratory involved.’” Beler, supra, 20 F.3d at 1433, citing U.S.S.G. § 2D1.1 application note 12. The Government’s conjecture, speculation and “[u]nreliable allegations must not be considered.” Beler, supra, 20 F.3d at 1433, citing U.S.S.G. § 6A1.3 commentary. Similar to the defendant in Eschman, supra, here the government’s weight approximations assume (without any evidentiary basis) an almost ideal meth manufacturing operation by Alden. See Eschman, 227 F.3d at 890 (reversing drug quantity finding because “the record contains no evidence regarding the sorts of yields Eschman could, with his equipment and recipe, obtain in his methamphetamine laboratory (or, for that matter, even evidence regarding yields of similarly-situated defendants).”). Section 6A1.3(a)'s reliability standard is not to be given lip-service or ignored, and instead “must be rigorously applied.” Beler, 20 F.3d at 1433. “The sentencing court must carefully scrutinize the government's proof to ensure that its estimates are supported by a preponderance of the evidence.” United States v. Paulino, 996 F.2d 1541, 1545 (3d Cir. 1994). The sentencing guidelines requirement of approximating drug quantity “is not a license to calculate drug amounts by guesswork.” 996 F.2d at 1545. More importantly, the Application Note 12 process applies only when there were no drugs seized. See USSG §2D1.1, Application Note 12. Here, there were drugs seized, on three different occasions. What was seized was the precursor pseudoephedrine. And, the guidelines have specific equivalency values, marijuana equivalencies, and guideline ranges for pseudoephedrine. See generally USSG §2D1.1. This Court addressed a similar situation in United States v. Gaines, 7 F.3d 101 (7th cir. 1993). In Gaines, the Defendant was found responsible for 4500 doses of LSD. 7 F.3d at 102- 103. Only 1000 of those doses were recovered, where the weight was known. Id. The sentencing court chose to use the actual known weight as the weight for all doses, even those uncovered. Id. The Defendant challenged this determination, and contended that the district court should have used the typical weight table for those uncovered doses. Id. In rejecting a challenge to this determination, this Court cited USSG § 2D1.1, Application Note 11, and wrote, “reliance on the table is not necessary because there is clearly a “more reliable estimate of the total weight” which can be gleaned from ‘case specific information.’” Id., at 104. Here, the district court had actual pseudophoedrine pills, with actual weights, and a guideline that would allow it to use marijuana equivalencies. This clearly would have been far more reliable “case specific information” than the government’s conjecture regarding how much The Sentence Was Procedurally Unreasonable The sentencing judge must first compute the applicable guideline range, and then determine if the sentence imposed will be within that range. See e.g. Mykytiuk, supra, 415 F.3d at 607-08. Although a sentence imposed within a properly calculated guideline range is presumed to be reasonable, Mykytiuk, supra, 415 F.3d at 608, the sentencing court cannot rest on the guideline range itself, and still must address each of the Section 3553 factors, and make relevant factual findings. Cunningham, supra, 429 F.3d at 675-676. “Whether a sentence is reasonable depends on its conformity to the sentencing factors set forth in 18 U.S.C. § 3553(a)(2).” Id., citing Booker, 125 S. Ct. at 765-66 (2005). The Section 3553 factors are “a directive to the sentencing court.” Id. Consequently, “the sentencing judge may not rest on the guidelines alone, but must, if asked by either party, consider whether the guidelines sentence actually conforms, in the circumstances, to the statutory factors. Id. Just because a sentencing falls within the guidelines, does not mean that it is reasonable. Id The sentencing court did not even give lip service to the Section 3553 factors, let alone The Court addressed one factor-Alden’s criminal history, then made a side comment that seemed to imply that the Court believed that Alden was off and need the help of “professionals,” The Court was clearly through with Alden, and made it clear that it was tired of having Alden in its presence. That said, in its rush to dispose of the case, the court abrogated its mandate to consider the Section 3553 factors prior to entering sentence. The Shortened Statement Was Error The sentencing judge, clearly exacerbated by Alden’s fixation with certain issues that the court felt were irrelevant, rushed to enter judgment without properly considering the Section 3553 factors, and without properly giving Alden an opportunity to address the court prior to sentencing. Consequently, Alden was denied his right to a meaningful statement prior to sentencing. See Fed.R.Crim.P. 32(i)(4)(A)(ii). This Court recently addressed a somewhat similar situation involving an allocution following a guilty plea. See United States v. Luepke, 495 F.3d 443 (7th Cir., 2007). In that case, this Court remanded for resentencing, when the sentencing court allowed the defendant to make a statement, but only after the Court suggested it already knew what its sentence would be. Id., This Court noted that the rule giving the defendant a meaningful opportunity to speak aids both the substantive sentencing decision and ensures the prestige of the court system in general. See Id., at 451 (quoting United States v. Barnes, 948 F.2d 325 (7th Cir.1991) as saying “[a]side from its practical role in sentencing, the right has value in terms of maximizing the This Court concluded that allowing a defendant to speak after the court has already suggested the sentence is not a meaningful statement as envisioned by Rule 32. Similarly here, it cannot be said that Alden was given a meaningful opportunity to speak. The judge was clearly not receptive, and was not going to listen to what Alden had to say. This belies the first purpose of the rule—to allow the defendant to inform the sentence based on his full statement. See Luepke, 495 F.3d at 451 (noting that this opportunity to influence the sentence is even more Further, the judges clear anger and threats towards Alden, in an attempt to shut him up, belie the second purpose of this rule—to ensure “the legitimacy of the sentencing process” both actually and in perception. Id., at 452. In fact, given that the Court was dealing with a defendant that was clearly distrustful of the entire process it was even more incumbent upon the Court to ensure that it gave Alden the full opportunity to express whatever facts that Alden felt were relevant to sentencing. It was not as if Alden had rambled endlessly before the Court ended the statement. In fact, Alden was beginning to make certain mitigation arguments that could be heard by any criminal defense attorney when he was shut up. See Sent Tr., at p. 11 (Alden’s last line was that drug addiction was a sickness that needed treatment not prisons, before the Court Conclusion
WHEREFORE, Defendant requests that this Court remand for a fitness examination, or remand for a new trial with the directive that new counsel be appointed for that trial, or remand for re-sentencing, and that if this Court remands for any reason it apply Circuit Rule 36. Attorney for the Defendant-Appellant Brendan Shiller 36 South Wabash Avenue Suite 1310 Chicago, Illinois 60603 (312) 332-6462 CERTIFICATE OF COMPLIANCE WITH F.R.A.P. RULE 32(a)(7)(B)
The undersigned, counsel of record for Defendant—Appellant, furnishes the following compliance with F.R.A.P. Rule 32(a)(7) and Circuit Court Rule I hereby certify that this brief conforms to the rules contained in F.R.A.P. Rule 32(a)(7)(B) and Circuit Court Rule 32(d)(2) for a brief produced with a proportionally spaced font. According to the word processing program used to prepare this brief, the portion of the brief required to be counted under Circuit Court Rule 32(d)(2)(c) contains 10,980 words. Date____________
_________________________ Attorney for the Defendant-Appellant Brendan Shiller 36 South Wabash Avenue Suite 1310 Chicago, Illinois 60603 (312) 332-6462 CERTIFICATE OF COMPLIANCE WITH RULE 30(a) and (b) and 31(e)
The undersigned, counsel of record for Defendant—Appellant, certifies that all materials required by Circuit Court Rule 30(a), (b) and (d) are contained in this In addition, I have filed electronically, pursuant to Circuit Rule 31(e), versions of the brief and all of the appendix items that are available in non-scanned Date____________
_________________________ Attorney for the Defendant-Appellant Brendan Shiller 36 South Wabash Avenue Suite 1310 Chicago, Illinois 60603 (312) 332-6462 Appendix: Table of Contents
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
in the Southern District of Illinois, Eastern Division The Honorable Judge G. Patrick Murphy, presiding CERTIFICATE OF SERVICE
Brendan Shiller, a licensed attorney, states that a copy of the foregoing Brief of Defendant-Appellant was caused to be delivered, by U.S. Mail, to the following: James M. Cutchin Office of the U.S. Attorney 402 W. Main Street Suite 2A Benton, IL 62812 _____________________________________ Brendan Shiller Attorney for the Defendant-Appellant Brendan Shiller 36 South Wabash Avenue Suite 1310 Chicago, Illinois 60603 (312) 332-6462

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