In the
United States Court of Appeals
For the Seventh Circuit

Nos. 99-2115, 99-2134, 99-2237 & 99-3403

United States of America,

Plaintiff-Appellee,

v.

Darryl Milquette, Lyle Rivard,
Stephen Putzlocker, and James Sherard,

Defendants-Appellants.



Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 98-CR-193--Charles N. Clevert, Judge.


Argued February 25, 2000--Decided June 2, 2000



  Before Bauer, Ripple, and Manion, Circuit Judges.

  Bauer, Circuit Judge. From early-1997 through
mid-1998, James Sherard was the leader of a
cocaine distribution network that supplied drugs
to the Green Bay, Wisconsin area. Working out of
Milwaukee, Wisconsin, Sherard obtained cocaine
and arranged for Lyle Rivard and Stephen
Putzlocker to transport the drugs from Milwaukee
to Green Bay. After the drugs arrived in Green
Bay, Darryl Milquette was in charge of packaging
and distributing the cocaine; Putzlocker helped
Milquette package and distribute the drugs. After
the drugs had been sold, Rivard and Putzlocker
returned to Milwaukee and delivered cash to
Sherard who gave them more cocaine to take back
to Green Bay.

  Eventually, the law caught up with the drug
ring and a grand jury in the Eastern District of
Wisconsin returned an indictment charging
Sherard, Milquette, Rivard, and Putzlocker/1
with conspiracy to distribute and possess with
intent to distribute cocaine in violation of 21
U.S.C. sec.sec. 841(a)(1) and 846 and 18 U.S.C.
sec. 2. All four pled guilty, but Sherard moved
to withdraw his plea. After a hearing, the
district court denied Sherard’s motion. The
district court then sentenced Sherard to 374
months in prison, 60 months of supervised
release, and a $2000 fine. Sherard appeals the
denial of his motion to withdraw his guilty plea.

  Rule 32(e) of the Federal Rules of Criminal
Procedure authorizes a district judge to permit
the withdrawal of a guilty plea "if the defendant
shows any fair and just reason." However, once a
district court has accepted a guilty plea, the
defendant does not have an unlimited right to
withdraw the plea; rather, the burden is on the
defendant to demonstrate a fair and just reason
for such withdrawal. United States v. Schilling,
142 F.3d 388, 398 (7th Cir. 1998). We review a
district court’s denial of a motion to withdraw
a guilty plea for abuse of discretion. United
States v. Pike, No. 99-2532, 2000 WL 520594, at
*3 (7th Cir. May 1, 2000). In reviewing the
district court’s decision, we will uphold factual
findings as to whether the defendant has
demonstrated a fair and just reason unless they
are clearly erroneous. United States v. LeDonne,
21 F.3d 1418, 1423 (7th Cir. 1994).

  Sherard argues that the district court should
have permitted him to withdraw his plea for two
reasons. First, he claims that he was in a state
of panic when he entered his guilty plea. Sherard
contends that he pled guilty the day his trial
was scheduled to begin only because he had just
learned that all of his codefendants were going
to testify against him. According to Sherard,
"this information clouded his judgment" and
"overwhelmed" him. Sherard told the district
court that he was innocent of the crime, but that
since all of his codefendants were going to
testify against him, he was sure he would be
convicted "no matter what the truth was." As his
second reason for wanting to withdraw his guilty
plea, Sherard asserts that he did not fully
understand the prison sentence that he faced.
Sherard claims that he thought his plea agreement
would give him a sentence of ten years instead of
the more than thirty year sentence he received.

  At the hearing on Sherard’s motion to withdraw
his guilty plea, the district court inquired at
great length into the circumstances of Sherard’s
guilty plea. Judge Clevert reviewed the
transcript of Sherard’s change of plea hearing
and had substantial portions of the transcript
read into the record. When denying Sherard’s
motion to withdraw his plea, the district court
stated:

I don’t find anything, any fair or just reason on
this record to warrant vacating the plea.
[Sherard] has not, first of all, in listening to
the exchange and recalling what took place during
the course of the guilty plea hearing there is no
doubt in my mind that [Sherard] was clear
thinking at the time of the plea.
The fact that your client did not blindly accept
the factual allegations of the U.S. Attorney and
went so far as to precisely talk about the dates
involved and what he did and what others did
underscores my conclusion that he was clear
thinking and that he was not in a state of panic.

I could search with a telescope and not find any
reasons in this case on this particular record.
I have not heard you say anything which would
allow me to conclude that Mr. Sherard did not
enter this guilty plea with full and complete
knowledge of what it was, what was charged, and
that he did not know whether or not he should
plead guilty or not guilty. On this record from
what he said he clearly acknowledged his
involvement in the conspiracy.

  The district court found, as a matter of fact,
that Sherard was thinking clearly and was not in
a state of panic when he entered his guilty plea.
The district court based this factual finding on
its own recollection of Sherard’s demeanor during
his change of plea hearing as well as the fact
that Sherard contested certain facts at the
hearing and provided very specific information
about the conspiracy. This factual determination
was not clearly erroneous; rather, based on the
record, this conclusion was entirely reasonable.
Since Sherard offered no credible factual support
for his argument that he panicked, the district
court did not abuse its discretion in rejecting
it.

  Sherard’s second argument for withdrawing his
plea, that he did not understand the sentence
that could be imposed, is also without factual
support. Contrary to Sherard’s assertions, the
record shows that the district court advised him
of the maximum possible penalty at the change of
plea hearing. At that hearing, the district court
read the portions of the plea agreement which
related to sentencing. The district judge
specifically asked Sherard if he understood those
sections and Sherard said that he did. The trial
court further advised Sherard that his plea
agreement did not provide any guarantees as to
what his sentence would be and that much of his
final sentence rested within the discretion of
the United States Attorney’s Office.

  Moreover, at the hearing to withdraw the plea,
the district court and Sherard’s attorney had the
following exchange:

SHERARD’S ATTORNEY: It was clear in Mr.
Sherard’s mind that somehow it was, it’s his
recollection that he was fairly comfortable with
the fact that if he cooperated and provided the
information that the government wanted that his
sentence would be somewhere in the range of ten
years. I don’t recall that portion of the
conversation and he feels that it was explicitly
stated.

When we got an opportunity to sit down after he
returned with an actual sentencing guideline and
he began to discuss his recollections of what was
taking place just prior to the time he entered
the plea agreement I didn’t feel that those were
realistic expectations unless there was some new
information I wasn’t aware of. And I realize that
for some reason his recollection was totally
different than mine and his understanding at the
time he entered into the plea agreement according
to what he’s telling me is completely different
than what I felt we discussed.

THE COURT: Is there something in the plea
agreement which you can specifically point to as
evidence that your client did not know the
maximum possible penalty in this case?

SHERARD’S ATTORNEY: No, Your Honor. I believe
the maximum possible penalty was well known by
the defendant prior--

At that point, Sherard interrupted and declared
that he never knew about the maximum possible
penalty, but, as we explained, the record clearly
contradicts this position. Because the factual
record shows that Sherard was advised of the
possible penalties in this case, the district
court did not abuse its discretion in denying his
motion to withdraw his plea agreement.
  Darryl Milquette received a sentence of 110
months imprisonment, 60 months of supervised
release, and a $2000 fine. When calculating
Milquette’s criminal history category under the
Guidelines, the district court included criminal
history points for two battery "citations" that
Milquette received from the Green Bay Municipal
Court. By including these two battery citations,
the trial court calculated Milquette’s criminal
history to be III, which (when coupled with his
offense level) called for a sentencing range of
97 to 121 months imprisonment.

  Milquette challenges the inclusion of the two
battery offenses. According to Milquette, if
these battery citations had been excluded, he
would have been sentenced with a criminal history
category of II which would have given him a
sentencing range of 87 to 108 months in prison.
We review the district court’s ruling on this
issue de novo. United States v. Redding, 104 F.3d
96, 98 (7th Cir. 1996); United States v. Booker,
71 F.3d 685, 688 (7th Cir. 1995).
  Section 4A1.2(c)(1) of the United States
Sentencing Guidelines governs whether a local
ordinance violation must be included in
calculating a defendant’s criminal history
category. Although it generally prohibits
counting local ordinance violations, sec.
4A1.2(c)(1) actually requires courts to include
ordinance violations that are also criminal
offenses under state law. Id.; United States v.
Staples, 202 F.3d 992, 996 (7th Cir. 2000);
Redding, 104 F.3d at 99; see also United States
v. Hooks, 65 F.3d 850, 855 (10th Cir. 1995)
("local ordinance violations that are also
criminal offenses under state law are counted in
computing a defendant’s criminal history
score."). Application Note 12 of the Guideline
confirms our interpretation of sec. 4A1.2 (c)(1)
and provides:

12. Local Ordinance Violations. A number of
local jurisdictions have enacted ordinances
covering certain offenses (e.g., larceny and
assault misdemeanors) that are also violations of
state criminal law. This enables a local court
(e.g., a municipal court) to exercise
jurisdiction over such offenses. Such offenses
are excluded from the definition of local
ordinance violations in sec. 4A1.2(c)(1) and,
therefore, sentences for such offenses are to be
treated as if the defendant had been convicted
under state law.

  Here, Milquette was assigned criminal history
points for two separate acts of battery. In one
case, he hit a man in the back of the head with
a brick. In the other case, he punched an
unsuspecting man in the face. Both acts clearly
satisfy Wisconsin’s state law requirements for
criminal battery. Therefore, because Milquette’s
local ordinance citations were imposed for
conduct that also violated Wisconsin criminal
law, the district court properly counted these
offenses when calculating his criminal history
category.

  Stephen Putzlocker received a sentence of 120
months imprisonment, 60 months supervised
release, and a $500 fine. Putzlocker’s main
argument/2 on appeal is that the district court
should have deducted two points from his offense
level under U.S.S.G. sec. 3B1.2(b) because he was
a "minor participant" in the drug distribution
conspiracy. Putzlocker contends that he qualifies
as a minor participant because he was a low-level
courier who acted at the direction of others,
received no share of the profits, and whose
involvement with the conspiracy only lasted five
months. We review the district court’s conclusion
on this issue for clear error. United States v.
James, 113 F.3d 721, 731 (7th Cir. 1997).
  Section 3B1.2(b) of the Guidelines directs
district courts to decrease a defendant’s offense
level by two points if "the defendant was a minor
participant in any criminal activity."
Application Note 3 of that Guideline defines a
"minor participant" as "any participant who is
less culpable than most other participants, but
whose role could not be described as minimal." We
have previously held that "downward adjustments
to the base offense level for minor participants
are to be used infrequently." United States v.
Tanksley, 104 F.3d 924, 925 (7th Cir. 1997) (per
curiam). "When a defendant requests a decrease in
his offense level, he has the burden of
demonstrating that he is eligible for the
reduction by a preponderance of the evidence."
United States v. Nobles, 69 F.3d 172, 190 (7th
Cir. 1995).

  In denying Putzlocker’s request for a two point
reduction as a minor participant, Judge Clevert
observed:

it seems to me that Mr. Putzlocker is among other
parties who were essentially couriers in this
drug conspiracy. And it does not appear that Mr.
Putzlocker is dissimilar from others and,
therefore, not entitled to some kind of special
treatment as a minor participant . . .

If we just go through the numbers here and look
at who was involved in this conspiracy, and if
you look at the persons named . . . Mr.
Putzlocker had people below him, by his own
acknowledgment, and others at his level. And I
see nothing in his level of participation that
would distinguish him in a way that he should be
given some kind of mitigation in this particular
case.

The facts in this case amply support the district
judge’s finding. Putzlocker made numerous trips
between Milwaukee and Green Bay to transport
drugs. And, although he was primarily a drug
courier, Putzlocker also played an active role
packaging and distributing the cocaine he had
brought to Green Bay. There were members of the
conspiracy who ranked below Putzlocker and whose
participation was far less important to the
success of the operation than was Putzlocker’s.
Finally, we note that the district judge had
carefully familiarized himself with the many
individuals involved in this conspiracy and was
in a good position to determine the extent of
each one’s participation. In short, there are
several facts in the record to support the
district court’s finding that Putzlocker was not
a minor participant in this drug conspiracy. We
therefore conclude that Judge Clevert did not
commit clear error by denying Putzlocker’s
request for a two point reduction.

  The last defendant whose case is before us,
Lyle Rivard, was sentenced to 130 months in
prison, 60 months supervised release, and ordered
to pay a $500 fine. At sentencing, the district
court found that Rivard was a minor participant
in the conspiracy and therefore reduced his
offense level by two points under U.S.S.G. sec.
3B1.2(b). However, the trial court denied a
government motion under U.S.S.G. sec. 5K1.1 to
deduct an additional point from Rivard’s offense
level for substantial assistance to the
government. Rivard complains that the district
court misapplied the Guidelines when it concluded
that he was a minor participant but
simultaneously denied the government’s motion for
a downward departure based on substantial
assistance. The government counters Rivard’s
appeal by arguing that we do not have
jurisdiction to review the district judge’s
discretionary denial of the sec. 5K1.1 motion.

  We lack jurisdiction to review a district
court’s refusal to depart downward where that
refusal resulted from a proper exercise of the
district judge’s discretion. United States v.
Winters, 117 F.3d 346, 348 (1997); United States
v. Franz, 886 F.2d 973, 978 (7th Cir. 1989).
Rivard claims that he is entitled to a downward
departure for substantial assistance because he
provided information about Sherard’s drug
distribution conspiracy as well as information
concerning a murder in Green Bay. The district
court denied the sec. 5K1.1 motion because it
found that Rivard did not provide any information
that the government did not already have
regarding the drug conspiracy. The trial court
reached this conclusion because Rivard did not
cooperate with the government until
"substantially late in the game" and, by that
time, the government had already arranged for
several other codefendants to testify against
Sherard. Similarly, Judge Clevert found that the
information Rivard provided regarding a murder in
Green Bay had not yet proven to be useful or even
connected to that crime.

  There were certainly facts in the record to
support Judge Clevert’s conclusion that Rivard
did not provide useful information to the
government. By making this finding, the district
judge simply exercised his discretion and
determined that Rivard had not provided the
requisite substantial assistance necessary to
qualify him for a downward departure under
U.S.S.G. sec. 5K1.1. Because the denial of the
government’s motion for a downward departure
resulted from a proper exercise of Judge
Clevert’s discretion, we have no jurisdiction to
consider Rivard’s appeal.

  The decisions in Sherard’s, Milquette’s, and
Putzlocker’s cases are affirmed. Rivard’s appeal
is dismissed for lack of jurisdiction.



/1 Four other people were charged in the same
indictment, but their cases are not before us.

/2 Putzlocker also asserts that the district court
should not have included his municipal ordinance
violations when calculating his criminal history
category. We reject Putzlocker’s argument for the
same reasons we rejected Milquette’s argument--
the conduct Putzlocker was cited for also
violated Wisconsin state law. Furthermore, the
inclusion of these ordinance violations was
harmless because even if they had not been
counted in his criminal history score, Putzlocker
would remain a criminal history category VI.
