### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 17-2976
U NITED S TATES OF A MERICA, Plaintiff-Appellee,

v.

T YREE M. N EAL , J R ., Defendant-Appellant

.

____________________ Appeal from the United States District Court for the Southern District of Illinois. No. 4:14-cr-40076 — J. Phil Gilbert
, Judge

.

____________________
A RGUED O CTOBER 2, 2018

— D ECIDED O CTOBER 22, 2018

____________________

Before B AUER , K ANNE , and S CUDDER , Circuit Judges

. P ER C URIAM . At sentencing Tyree M. Neal, Jr. asserted that he was not guilty of conspiring to distribute cocaine because the facts, as he saw them, did not demonstrate that he agreed with others to buy and sell co caine. The district court responded by observing that Neal had already pleaded guiltyand in doing so conceded that the government’s factual proffer su ffi ced to prove the o ff ense of conspiracy. So the court2 No. 17-2976

proceeded to sentencing and imposed a term of 30 years’ imprisonment, re fl ecting the scale of the drug-distribution conspiracy as well as Neal’s violent conduct while resisting arrest, obstruction of justice, and extensive criminal history. On appeal Neal contends that the district court should havetreated the reservations he expressed at sentencing as a motion to withdraw his plea. We a ffi rm, as the record shows not only that Neal voluntarily pleaded guilty, but also that there

was a su ffi cient factual basis to support the plea.

INeal pleaded guilty to conspiracy to sell cocaine in violation of 21 U.S.C. § 846. At the plea colloquy, the court explained that the conspiracy charge alleged that Neal did “knowingly, intentionally combine, conspire, and agree with other persons known and unknown to the Grand Jury to knowingly distribute a mixture and substance containing cocaine.” With his counsel present, Neal con fi rmed that he understood the charge as well as his constitutional right to contest it by proceeding to a jury trial. The government then proffered its factual basis for the charge, which included the representation that Neal “oftenti mes” bought and sold large quantities of cocaine on credit—what the government called “fronts”: Your Honor, if this case were to proceed to trialthe government would prove beyond a reasonable doubt that during the time of the chargedconspiracy the defendant was involved with numerous other persons in the unlawful distribution of cocaine in Williamson County in the Southern District of Illinois. Some of the evi-No. 17-2976 3

dence would include that the defendant sold cocaine to a con fi dential source on multiple occasions in 2012. After those buys a search warrant was issued and executed, and agents recovered a large amount of United States currency which included some of the prerecorded buy money. The evidence would be that after that incident the defendant gave a statement to agents and he admi tt ed that he was ge tt ing 4-ounce amounts of cocaine once or twice a week for the past three years from, quote, BB, end quote, in E ff

ingham.

There would be other evidence in 2014 a di ff erent CS made purchases of dealer amounts of cocaine from the defendant. That CS indicatedthat he or she had regularly been obtaining cocaine from Neal, from the defendant, and that the defendant would not sell anything less than an eight-ball. There would be multiple otherwitnesses in addition to the two CSs who indicated they purchased dealer amounts of cocaine from the defendant. The evidence would be that oftentimes the cocaine was either obtained or provided on fronts. In response to the district co urt asking whether the factual pro ff er was accurate, Neal paused, saying, “Not all of it.” Neal’s counsel took the response to mean that Neal had reservations with the government’s statement that he bought cocaine from “B.B.” After a brief recess to permit consultation with his counsel, Neal no long er vacillated. When the court asked anew if the government’s factual pro ff er was correct,4 No. 17-2976

Neal replied, “Yes.” The court, too, found the pro ff er su ffi

cient and accepted Neal’s guilty plea.Neal then appeared to backpedal at sentencing. The district court asked Neal if he had any objections to the Presentence Investigation Report. Neal responded by saying, “I don’t think I have a conspiracy like by myself. Like, I don’t know how I could do that, conspire by myself? ... I don’t have no—any co-defendants or anything. I don’t know how I’d conspire—like a conspiracy, I thought it takes more than one person?” The district judge reacted by asking Neal if he recalled pleading guilty under oath. When Neal acknowledged the prior plea, the court observed, “[t]hat ship has sailed,” and then moved forward with sentencing, ultimately imposing aterm of 360 months’ imprisonment. The lengthy sentence refl ected the substantial quantity of cocaine involved in the conspiracy as well as Neal’s lengthy criminal history, a tt empt to hire someone to kill two potential witnesses, e ff orts to avoid arrest by carjacking a vehicle occupied by a woman and three children, and reckless endangerment during fl ight by accelerating his vehicle toward a police o ffi cer and then ramming into another police vehicle.

II

Neal contends that the district court abused its discretionby not allowing him to withdraw his guilty plea. First, he asserts that his objection at senten cing to the PSR’s factual basis should have been treated as the functional equivalent of a pro
se motion to withdraw his guilty plea. Second, Neal arguesthat the district court should have granted this motion because the conspiracy charge lacked an adequate factual basis.No. 17-2976 5

A defendant may withdraw a guilty plea by moving to do so (orally or in writing) before the court imposes a sentence, and providing a “fair and just reason” for the withdrawal. Fed. R. Crim. P. 11(d)(2)(B); United States v. Benne tt, 332 F.3d 1094, 1099 (7th Cir. 2003). Ordinarily we review such a motion for abuse of discretion. United States v. Silva , 122 F.3d 412, 414– 15 (7th Cir. 1997). If a defendant fails to move to withdraw the plea, however, we review only for plain error. See United States v. Arenal , 500 F.3d 634, 637 (7th Cir. 2007). We need not decide whether Neal’s remarks at sentencing amounted to a motion to withdraw the plea. Under either standard of review, the district court commi tt ed no error. In contending that the distri ct court should have allowedhim to withdraw his plea, Neal argues that the plea was neither voluntary (because he di d not understand the conspiracy charge) nor supported by a su ffi cient factual basis (because there was no pro ff er of facts showing an agreement to distribute cocaine). He “faces an uphill ba tt le,” however, in overcoming the “presumption of verity” that the law a tt aches to a guilty plea. United States v. Pa tt erson , 576 F.3d 431, 437 (7th Cir. 2009) (internal quotation marks omi tt ed); see also Benne tt, 332 F.3d at 1099. And Neal does not overcome that presumption here. Five factors inform whether a defendant fully understands the nature of the charge to which he admi tt ed guilt: (1) the complexity of the charge; (2) th e defendant’s intelligence, age, and education; (3) whether the defendant was represented by counsel; (4) the district court’ s inquiry during the change of plea hearing and the defendant’ s responses; and (5) the evidence pro ff ered by the government for its factual basis. See6 No. 17-2976

United States v. Bradley, 381 F.3d 641, 645–46 (7th Cir. 2004); United States v. LeDonne , 21 F.3d 1418, 1423 (7th Cir. 1994). First, as to the contention that the plea was uninformed and thus involuntary, the record shows that Neal understoodthe conspiracy charge. Conspiracy, we have observed, is indeed a complex charge not always or easily understood by a layperson. United States v. Pineda-Buenaventura , 622 F.3d 761, 771 (7th Cir. 2010). At Neal’s plea, the district court conveyed the essential nature of the o ff ense, explaining that the indictment alleged that Neal did “knowingly, intentionally combine, conspire, and agree with other persons ... to knowingly distribute ... cocaine.” This st atement captures the elements of a drug-distribution conspiracy under 21 U.S.C. § 846: “(1) two or more people agreed to commit an unlawful act, and (2) the defendant knowingly and intentionally joined in the agreement.” United States v. Duran , 407 F.3d 828, 835 (7th Cir. 2005). More than that, Neal’s own contention at sentencing— that a conspiracy requires mo re than one person—also supports the conclusion that he understood the charge.Second, we examine Neal’s intelligence, age, and education. He was twenty-nine at the time of his plea, had an eleventh-grade education, and read and understood English. Nothing that occurred before, du ring, or after the plea colloquy raised a question on this prong of the inquiry.The next two factors—concerning counsel and the adequacy of the court’s colloquy during the plea allocution—donot help Neal. He stresses that, although represented by counsel, he had di ff erent counsel at di ff erent stages of the proceedings in the district court. Be yond conveying the observation, though, Neal does not explain how having a series of a tt orneys impaired the knowing and voluntary nature of his guiltyNo. 17-2976 7

plea. Moreover, before Neal pleaded guilty, the court explained his rights, described th e consequences of pleading guilty, and received Neal’s express con fi rmation that his plea was a free and voluntary act. This colloquy was su ffi cient to probe whether Neal’s plea was knowing and voluntary. See United States v. Hernandez , 731 F.3d 666, 671 (7th Cir. 2013).

The main ba tt leground on appeal comes with the fi fth factor: the su ffi ciency of the government’s factual pro ff er to support the plea. Rule 11(b)(3) requ ired the district court to determine that there is a factual basis for a guilty plea before accepting it and proceeding to sent encing. In revisiting the same question on appeal, we are fr ee to rely on the facts pro ff ered by the government, any part ofthe record to which the defendant agreed or did not object, and the defendant’s own statements. See United States v. Musa , 946 F.2d 1297, 1302–03 (7th Cir. 1991).After reviewing the plea colloquy and government’s factual pro ff er, we see no error in the district court’s conclusion that su ffi cient facts supported the plea. The government underscores four facts pro ff ered at the plea colloquy: (1) Nealwas involved with others in distributing cocaine; (2) Neal regularly purchased dealer quantities (at least 4–7 ounces each week) of cocaine from “B.B.” over the course of three years; (3) Neal, in turn, supplied cocain e to others; and (4) Neal “oftentimes” received and supplied cocaine on fronts. After receiving an opportunity to confer with his counsel in response to this factual pro ff er, Neal expressly acknowledged its accuracy. He now advances a di ff erent view on appeal, arguing that the government’s pro ff er failed to show that he conspired with anyone to buy or sell cocaine.8 No. 17-2976

Neal is right to observe that the fi rst three facts are not necessarily inconsistent with an ordinary buyer-seller relationship and thus do not alone demonstrate a conspiracy. Conspiracy requires a common criminal goal shared among two or more people. United States v. Long, 748 F.3d 322, 325 (7th Cir. 2014). Indeed, we have unde rscored that ordinary drug transactions do not entail or re fl ect a conspiracy, for the buyer’s only purpose is to buy and the seller’s only purpose is to sell: the buyer and seller lack a shared criminal goal. See id. at 325; United States v. Colon , 549 F.3d 565, 569 (7th Cir.2008). But a shared purpose—some unity of enterprise—between a buyer and seller to resell drugs to others can be enough to indicate the re quisite common commitment to demonstrate a conspiracy to distribute drugs. See United States v. Johnson , 592 F.3d 749, 755–56 (7th Cir. 2010). And such a shared purpose, we have explained, may be inferred from “sales on credit or consignment.” Id. To be sure, “occasional” sales oncredit are consistent with an ordinary buyer-seller relationship. United States v. Cruse, 805 F.3d 795, 815 (7th Cir. 2015); see also United States v. Villasenor , 664 F.3d 673, 680 (7th Cir. 2011) (“For example, evidence that a supplier extends credit to an individual purchasing small quantities of drugs for personal consumption would not su ffi ce to establish conspiracy.”). But, as we explained in Villasenor , “when a credit sale is combined with certain other characteristics inherent in an ongoing wholesale buyer-seller relationship— i.e. , large quantities of drugs, repeat purchases or some other enduring arrangement—the credit sales become su ffi cient enough todistinguish a conspiracy from a nonconspiratorial buyerseller relationship.” Id. ; see also Cruse, 805 F.3d at 812 (concluding that evidence of a defendant’s longtimeNo. 17-2976 9

supplying of drugs for resale within a housing project is

su ffi cient to establish that the defendant knowingly participated in a drug-distribution conspiracy). During Neal’s plea colloquy, the government pro ff ered that Neal participated in the ac quisition and redistribution of cocaine in transactions that “o ftentimes” occurred on credit. The government also represented that its evidence showed that Neal regularly acquired resa le quantities of cocaine from the same supplier in E ffi ngham, Illinois. Neal admi tt ed to the accuracy of these speci fi c facts, and they su ffi ced to support the district court’s acceptance of his plea to violating 21 U.S.C. § 846.
In brie fi ng and during oral argum ent, Neal’s counsel emphasized the absence of facts inthe sentencing record showing drug transactions on credit . In advancing this position,however, Neal overlooks what he expressly agreed was accurate in pleading guilty—that “oftentimes,” he bought or sold cocaine “on fronts.” Furthermore, Neal has not identi fi ed anyauthority requiring the government to come forward at sentencing with evidence of facts previously admi tt ed during a plea allocution. Neither have we, and we decline to impose such a mandate. See Musa , 946 F.2d at 1302–03 (determining that the government’s pro ff ered facts and the defendant’s admissions during his plea allocution were su ffi cient to supporta plea to conspiracy to distribute cocaine, despite the defendant’s disputes with the quantity distributed and his role in the distribution activities). Finally, Neal contends that he did not a ffi rmatively confi rm during the plea allocution that he conspired with anyone. But during his plea colloquy, Neal con fi rmed not only that he10 No. 17-2976

understood the charge of conspira cy, but also that the government’s factual pro ff er was su ffi cient. And at no point duringsentencing, despite generally denying participating in a conspiracy, did Neal say anything speci fi cally calling the accuracy of the government’s pro ff ered evidence into question. If no evidence a ffi rmatively impugning the validity of the plea is o ff ered, or if the allegations advanced in support of withdrawing the plea are conclusory or obviously unreliable, the request may be denied without a hearing. United States v. Jones , 381 F.3d 615, 618 (7th Cir. 2004). Based on the totality of the circumstances, we conclude that Neal understood the charg e against him and his plea had an adequate factual basis. He has not o ff ered a fair and just reason to withdraw his guilty pl ea, and the district court did not abuse its discretion or otherwise commit error in denying Neal’s motion to withdraw his plea. Accordingly, we AFFIRM.