In the

United States Court of Appeals

For the Seventh Circuit

No. 12-2472

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ERIC MICHAEL CHEEK,

Defendant-Appellant.

Appeal from the United States District Court for the 

Central District of Illinois. 

No. 11-CR-10040 — James E. Shadid, Chief Judge.

ARGUED OCTOBER 31, 2013 — DECIDED JANUARY 22, 2014

Before BAUER, MANION, and ROVNER, Circuit Judges.

MANION, Circuit Judge. Eric Cheek distributed illegal drugs

for most of his adult life. Prior to this case, he was convicted of

twelve offenses,including nine felony drug offenses. Following

an extensive investigation, law enforcement officers arrested

Cheek in 2011 for drug distribution activities. A jury convicted

Cheek of four felonies, and the district court sentenced Cheek

to 576 months’ imprisonment. Cheek appeals both his convictions and sentence. Forthe reasons discussed below, we affirm.
2 No. 12-2472

I. Background

From 2002–2003, Eric Cheek regularly sold marijuana and

crack cocaine to a drug dealer, Corey Eason, and Eason’s

girlfriend, Tabitha Harris. While Cheek was in prison in 2004,

one of his associates, Antonio Seymon, supplied Eason and

Harris with drugs. After he was released, Cheek again supplied Eason and Harris with marijuana and crack cocaine. He

also supplied two other drug dealers, Langston Pates and

Andra Pace, with marijuana. He was subsequently incarcerated again in 2008, and before his release in 2010, Cheek

informed Eason, Brandon Williams (who had been in the same

prison as Cheek in 2008), and Seymon that he would continue

selling drugs upon his release. In August 2010, law enforcement persuaded Eason to cooperate in the investigation of

Cheek. Eason performed controlled buys of illegal drugs from

Cheek and secretly recorded his interactions with Cheek. With

court authorization, law enforcement also intercepted more

than 20,000 phone conversations and text conversations from

telephones used by Cheek and his associates. The investigation

uncovered continued drug operations until Seymon was

arrested on March 23, 2011. Cheek subsequently was arrested

on April 5, 2011. 

A grand jury indicted Cheek and three co-defendants,

Tabitha Harris, Brandon Williams, and Antonio Seymon, for

various drug offenses. Cheek was charged with conspiring to

possess and distribute more than 280 grams of crack cocaine

and more than 100 kilograms of marijuana from 2001 to 2011;

intending to distribute more than 28 grams of crack cocaine on

August 9, 2010; intending to distribute marijuana on March 23,

2011; and using a telephone on February 11 and 23, 2011, to
No. 12-2472 3

facilitate the drug conspiracy. All three co-defendants pleaded

guilty. Cheek did not. 

Prior to Cheek’s trial, the government filed an information

pursuant to 21 U.S.C. § 851 expressing its intent to seek an

enhanced sentence for Cheek based on seven prior felony drug

convictions. In a separate pretrial filing, the government

identified several potential expert witnesses. Most of these

experts were forensic chemists who were not called at trial

because their opinions were presented at trial by stipulation.

However, one of the proposed experts (who did not testify at

trial) was a Drug Enforcement Agency supervisor who was

prepared to testify generally about the use of code words by

drug dealers.

A few weeks before trial, Cheek sent a hand-written letter

to Harris’s teenage daughter in response to a letter he had

received from the daughter. Cheek’s letter stated in pertinent

part:

I remember when I met your little butt too. Yes I am

your uncle and you would probably be out there if

I wasn’t hard on you at times. I only did it out of

love for you and fear of what you could turn into

without guidance. You were the one Eric & Mikey

[Cheek’s sons] asked about 1 back in the day. ... It’s

st

been so long since the days I tried to teach you about

a dollar by letting you watch the boys for $10–$15.

Now you’ve got your own little one. And a pretty

one at that. You know she would love me right? I

am gonna fight to the end to be able to raise my kids

and see yall again soon. Free [meaning Tyrell
4 No. 12-2472

Binion] got 54 months, so he will be out soon. My

situation ain’t or wasn’t bad shall I say. I won’t lie

Isa, they didn’t have shit on none of us. To prove it

why would they need your Mom to lie on me if they

had something? But the worse part is her own

lawyer tricked her because she could’ve beat the

case. She couldn’t get more than 5 if she would’ve

just plead guilty without lying on me. Now my life

and the lives of my kids lay in the balance of her

story she let them make her say. The most she can

get is 5 and me LIFE if she doesn’t tell the truth. Isa

that means I will NEVER see my kids or family

again. Nor see yall or any of the people I know and

love. Who is gonna teach Er[i]c & Mikey to fight and

be men? Who is gonna keep boys away from Emmy

[Cheek’s daughter] and not let her be like her mom?

LIFE means forever!

So as you can see why I am saying this but, yes I

love you ... & your mom. But no I will never respect

her decision. Still I am looking at LIFE and not

because of anybody but her, the person I thought

would never lie on me or hurt me. Even if she told

the truth she wouldn’t be looking at shit but maybe

6 more months but at least I wouldn’t be in jail for

the Rest of my life. So I am praying that she don’t let

them keep scaring her. They are gonna use plenty of

scare tactics. But it’s up to us to man up or woman

up.

... 
No. 12-2472 5

If God is willing you know who won’t tell that lie

and I will be there to see yall in the near future. My

lawyer [is] saying that is the only thing they have

against me is her.

At trial, the government called law enforcement officers

and cooperating witnesses, including Eason, Harris, Pates,

Pace, and Victoria Williams (who lived with Eason during the

conspiracy). The government also offered selections from the

intercepted telephone communications and interactions

recorded by Eason. The government provided the jury with

transcripts of these recordings that contained (within square

brackets) interpretations of certain words and phrases from the

recordings. The intercepted communications, recordings, and

transcripts were admitted into evidence by stipulation. Cheek

stipulatedthat the communications, recordings, andtranscripts

were accurate, but refused to stipulate to the accuracy of the

interpretations within the brackets. Before the recordings were

played, the district court instructed the jury that the recordings

were the actual evidence and that the transcripts were not

evidence . The government elicited testimony from FBI Special 1

Agent Greg Catey, the lead case agent, who offered his

opinions regarding the meaning of the words and phrases

immediately preceding the bracketed information contained

within the transcripts. Agent Catey testified that he had

extensive experience in drug enforcement and had participated

in numerous investigations during his law enforcement career.

This instruction is difficult to reconcile with the fact that the intercepted 1

communications, recordings, and transcripts were admitted into evidence

by stipulation.
6 No. 12-2472

However, he also testified that he knew the meaning of the

words in the transcripts based on his specific involvement in

the investigation of Cheek and his co-conspirators. Police

Detective James Ferguson similarly offered testimony about

some of the code words and phrases used by Cheek and his coconspirators, and stated that his knowledge was based on his

participation in this investigation.

In his defense, Cheek argued that he only sold marijuana

and did not conspire with anyone. The jury convicted Cheek

on all counts. By special verdict, the jury found that the

conspiracy involved at least 28 grams but less than 280 grams

of crack cocaine and 100 kilograms or more of marijuana.

Cheek’s pre-sentence report (“PSR”) found that Cheek was

responsible for the drug-quantity-equivalent of between 3,000

and 10,000 kilograms of marijuana, which placed his base

offense level at 34. However, the PSR recommended a 2-level

upward adjustment under U.S.S.G. § 3B1.4 because Cheek

used a minor in commission of the conspiracy; a 4-level

upward adjustment under U.S.S.G. § 3B1.1(a) because Cheek

was the leader of a drug-trafficking organization; and a 2-level

upward adjustment under U.S.S.G. § 3C1.1 for obstruction of

justice because of the letter he sent to Harris’s daughter. The

PSR recommended a criminal history category of IV due to

nine criminal history points. (The PSR found that Cheek had

twelve prior convictions, including nine felony drug convictions.) Ultimately, the PSR calculated Cheek’s total offense

level at 42. Given Cheek’s criminal history category of IV, the

PSR calculated Cheek’s Guidelines range to be 360 months to

life. Cheek objected to the obstruction of justice enhancement.

But even without that enhancement, Cheek’s Guidelines range
No. 12-2472 7

would have been 360 months to life. Cheek did not otherwise

object to the PSR’s Guidelines calculations or findings regarding his prior convictions.

Counts I and II carried the greatest statutory maximum

penalties: 480 months. The statutory maximum penalty for

count III was 120 months. The statutory maximum penalties

for counts IV and V were 48 months. However, 21 U.S.C.

§ 841(b)(1)(B)’s career criminal provision authorized the

district court to impose a sentence of up to life on either count

I or II. In order to do so, the district court must “before

pronouncement of sentence inquire of the person with respect

to whom the information was filed whether he affirms or

denies that he has been previously convicted as alleged in the

information, and shall inform him that any challenge to a prior

conviction which is not made before sentence is imposed may

not thereafter be raised to attack the sentence.” 21 U.S.C. §

851(b). At sentencing, the district court did not comply with §

851(b).

The government requested a prison sentence of “not less

than 40 years,” and argued that Cheek was “a bane to society”

whose operations covered significant portions of Illinois and

included enormous drug quantities. The government emphasized that it was unusual that Cheek had managed to remain

out of custody after racking up so many prior felony drug

convictions. The government characterized Cheek as a dishonest and manipulative person who was willing to use a minor

to further his conspiracy and used profane language in her

presence when she “couldn’t get his money laundering down

right.” In closing, the government reiterated its request “for a

sentence within the guideline range.” 
8 No. 12-2472

In response, Cheek’s attorney emphasized that violence

was never part of Cheek’s admittedly extensive drug-dealing

career. Cheek’s attorney also observed that, if the district court

imposed a 480-month sentence, Cheek would be “77 years old

if he was ever able to get out of the penitentiary.” During his

allocution, Cheek admitted that he was not “the best person in

the world,” but repeatedly asserted that he was “not the worst

person in the world either.” Cheek briefly detailed a past

incident in which he had assisted the police by informing them

that accusations against Detective Ferguson (who happened to

be a witness at Cheek’s trial), involving misconduct allegedly

occurring in Cheek’s presence, were false. Cheek also told the

district court that his mother had died when he was 16 years

old, and that he had four children whom he loved and wanted

to be there for. 

After reciting the factors from 18 U.S.C. § 3553(a), the

district court told Cheek, “I’m not saying you’re a bad person.”

The district court commented that Cheek was clearly an

intelligent person who spoke well and made a “nice appearance.” But the district court noted that, despite Cheek’s

potential, he had chosen from a young age to engage in

criminal drug activity. The district court observed that Cheek

had opportunities to turn aside, but time and again “chose to

continue in the drug world, and the drug trafficking world,”

which leads “only to violence and death on city streets of

young people or a sentence to prison.” The district court

concluded that based on Cheek’s decision to play by his own

rules and significant history of criminal activity, a significant

prison sentence was appropriate. Therefore, the district court

imposed prison sentences of 576 months on counts I and II. The
No. 12-2472 9

district court also imposed prison sentences of 120 months on

count III and 48 months on counts IV and V. The court directed

that all sentences would run concurrently. Cheek appeals both

his convictions and sentences.2

II. Analysis

On appeal, Cheek argues that his convictions should be

vacated because Agent Catey’s testimony included expert

testimony that should not have been admitted, and because the

jury should not have been provided (either at trial or in

deliberations) with copies of the transcripts containing Agent

Catey’s interpretations (in square brackets) of various words

and phrases from the recordings played at trial. Cheek also

argues that his sentence should be vacated because the district

court failed to comply with the procedure provided in § 851(b).

Additionally, Cheek contends that the district court violated

his rights under the Fifth and Sixth Amendments to the

Constitution as interpreted by the Supreme Court in Apprendi

v. New Jersey, 530 U.S. 466 (2000), when the district court

invoked § 841(b)(1)(B), which enhanced Cheek’s potential

sentence beyond the 480-month statutory maximum penalties

for counts I and II, because the jury did not find beyond a

reasonable doubt that Cheek had been convicted of the prior

felonies supporting application of § 841(b)(1)(B). Cheek also

argues that his sentence is procedurally unreasonable because

the district court erred in imposing the obstruction of justice

enhancement and failed to consider meaningfully the arguBecause Cheek’s sentences run concurrently, we refer to them as his 576- 2

month sentence.
10 No. 12-2472

ments Cheek offered in mitigation of his sentence under

§ 3553(a). Finally, Cheek contends that his 576-month sentence

is a de facto life sentence that is substantively unreasonable.

A. AgentCatey’sTestimony and the Opinions Contained

in the Transcripts Provided to the Jury

Cheek’s challenges to his convictions arise from portions of

Agent Catey’s testimony at trial and from the use of transcripts

(both during trial and deliberations) containing Agent Catey’s

interpretations (in square brackets) of various words and

phrases within the transcripts. Because he did not object,

Cheek concedes that our review is for plain error. “Applying

this standard, we reverse only when we find: ‘(1) an error or

defect (2) that is clear or obvious (3) affecting the defendant’s

substantial rights (4) and seriously impugning the fairness,

integrity, or public reputation of judicial proceedings.’” United

States v. Johnson, 680 F.3d 966, 973 (7th Cir. 2012) (quoting

United States v. Anderson, 604 F.3d 997, 1002 (7th Cir. 2010)).

Agent Catey’s Testimony

Cheek contends that Agent Catey offered expert testimony

when testifying as a lay witness. Specifically, Cheek argues

that Agent Catey testified as an expert about the meaning of

drug code words and phrases used by the conspirators, the

price for a kilo of cocaine, the main ingredient in crack cocaine,

how a wiretap is physically conducted, and the meaning of

such terms as “wire room, minimization, sessions, magneto

optical disk, pen register trap and trace, spin off wiretap,

special federal officer, case agent, controlled buy, front and

controlled payment.” Cheek argues that allowing Agent Catey

to offer expert testimony under the guise of lay testimony
No. 12-2472 11

cloaked that testimony in an aura of expertise without subjecting it to the reliability standards of Fed. R. Evid. 702 or the

mandatory pretrial disclosure requirements of Fed. R. Crim. P.

16.

The government may use a law enforcement officer as both

an expert and lay witness in the same trip to the witness stand.

United States v. York, 572 F.3d 415, 425 (7th Cir. 2009). However,

there are some inherent dangers with this kind of dual testimony. For example, the witness’s dual role might confuse the

jury. Or, the jury might be smitten by an expert’s “aura of

special reliability” and therefore give his factual testimony

undue weight. Or, “the jury may unduly credit the opinion

testimony of an investigating officer based on a perception that

the expert was privy to facts about the defendant not presented

at trial.” Id. (citations omitted).

The government argues that these concerns do not apply in

this case because Agent Catey was only called as a lay witness.

As far as Agent Catey’s testimony about the drug code words

and phrases used by Cheek and his co-conspirators are

concerned, we agree. When a law enforcement officer testifies

about the meaning of drug code words used by defendants

based on personal knowledge obtained from the investigation

of those defendants, the officer is testifying as a lay witness.

United States v. Moreland, 703 F.3d 976, 983 (7th Cir. 2012).

However, if the officer testifies from “expertise having derived

from his involvement in other drug investigations,” then the

officer is testifying as an expert witness. Id. As the lead case

agent, Agent Catey was intimately involved in the investigation of Cheek and his co-conspirators. For example, he reviewed more than 20,000 intercepted communications and
12 No. 12-2472

interviewed more than 100 witnesses as part of the investigation into the conspiracy. Moreover, when the prosecutor

questioned Agent Catey about the meaning of the drug code

words used by the conspirators, the prosecutor phrased his

questions in terms of Agent Catey’s “understanding based on

this investigation” or “familiarity with this investigation.”

These facts convince us that Agent Catey’s testimony about the

drug code words and phrases used by Cheek and his coconspirators “was based on his own personal observations and

perceptions derived from this particular case.” United States v.

Rollins, 544 F.3d 820, 833 (7th Cir. 2008) (finding law enforcement witness’s interpretations of code words as admissible lay

testimony where witness based interpretationonly onlistening

first-hand to numerous recorded telephone calls in that

particular investigation). And the fact that Agent Catey was an

experienced investigator does not alter this conclusion. See

Moreland, 703 F.3d at 983 (“Had the agent been testifying

exclusively as a lay witness about the code words he had

learned the meaning of in the course of his investigation of the

defendants’ conspiracy, it would not have been improper to

introduce him to the jury as an experienced investigator, rather

than a novice listening to taped conversations of drug conspirators for the first time, any more than it is improper to ask an

eyewitness whether he has good vision.”). At the very least, it

would not have been “clear or obvious” to the district court

that Agent Catey was offering expert testimony about the drug

code words and phrases used by the conspirators.

Moreover, even if Agent Catey’s testimony about the drug

code words and phrases used by the conspirators could be

labeled as improperly admitted expert testimony, any error
No. 12-2472 13

would be harmless. First, the overwhelming evidence offered

at trial demonstrates that Agent Catey’s interpretations of the

drug code words and phrases used by Cheek and his conspirators were accurate. For example, Cheek focuses on Agent

Catey’s testimony that the words or phrases “girl,” “girly,” or

“bumping into ol’ girl” were references to “cocaine or crack

cocaine.” Harris, Eason, and Williams testified that these terms

referred to cocaine or crack cocaine. See Trial Tr. 161 (Harris

testifying that “ol’ girl” referred to “cocaine”); 428–29 (Eason

testifying that “ol’ girl” means “cocaine” and “girl” means

“cocaine”); 675–76 (Williams testifying that “Christina, ol’ girl,

[and] white girl” refer to “crack cocaine”). And Goodwin

testified that Cheek used these terms to refer to cocaine. See

Trial Tr. 631–33; 637 (Goodwin testifying that Cheek used “ol’

girl” to refer to “cocaine”). Second, at oral argument, Cheek’s

counsel conceded that Agent Catey would likely have been

qualified as an expert. See United States v. Jones & Brown, Nos.

11-3864 & 12-1695, slip op. at 10, 2014 WL 68143 (7th Cir. Jan.

9, 2014) (finding no harm from failing to comply with Rule 702

with respect to a detective who offered expert testimony where

the defendant did not challenge the detective’s qualifications

or the validity of his testimony); United States v. Tucker, 714

F.3d 1006, 1016 (7th Cir. 2013) (“Further, [the defendant] does

not question Officer Baranek’s qualifications, and there is little

doubt he would have been able to be qualified as an expert,

thus failure to ‘formally anoint’ him as such is harmless.”).

Indeed, before trial the government disclosed that it would call

a DEA agent to testify regarding the meaning of drug code

words and phrases used by the drug dealers in general. Thus,

Cheek had notice that the government intended to offer the
14 No. 12-2472

kind of testimony that Agent Catey offered concerning the

meaning of drug code words and phrases used by the conspirators. See Jones & Brown, Nos. 11-3864 & 12-1695, slip op. at 10.

For both these reasons, no harm could have come to Cheek

from failing to subject Agent Catey’s testimony about the drug

code words and phrases used by the conspirators to the

reliability standards of Rule 702 or the mandatory pretrial

disclosure requirements of Rule 16.

Assuming that Agent Catey’s testimony about the drug

code words and phrases used by the conspirators was lay

testimony, Cheek contends alternatively that the testimony

was not “helpful,” and consequently inadmissible, see Fed. R.

Evid. 701(b), because Agent Catey testified that the code words

could refer either to cocaine or crack cocaine—but Cheek was

only charged with crack cocaine offenses. We disagree. It

would have been improper for Agent Catey to state that the

code words referred only to crack cocaine given that they also

could refer to powder cocaine. Agent Catey’s testimony may 3

have been insufficient on its own to support Cheek’s crack

cocaine convictions, but the testimony was certainly helpful to

the jury inasmuchas it excluded any other potential interpretation of the code words besides either “cocaine” or “crack

cocaine.” And Cheek does not raise an insufficiency argument

on appeal.4

Eason confirmed that “ol’ girl” and “girl” can refer either to crack cocaine 3

or regular cocaine.”

Relatedly, Cheek argues that this testimony blurred the distinction

4

between powder cocaine and crack cocaine, which could have confused the

(continued...)
No. 12-2472 15

All of Agent Catey’s remaining testimony about which

Cheek complains could be properly admitted lay testimony. A

witness could form true opinions regarding whether cocaine is

the main ingredient in crack cocaine, how a wiretap is conducted, or the meanings of terms such as “wire room,

minimization, sessions, magneto optical disk, pen register trap

and trace, spin off wiretap, special federal officer, case agent,

controlled buy, front and controlled payment,” without that

knowledge being based on “scientific, technical, or other

specialized knowledge.” Fed. R. Evid. 701. For example, the

 (...continued) 4

jury into convicting Cheek for crack cocaine offenses even though the jury

only believed that Cheek had committed powder cocaine offenses. But

evidence admitted at trial distinguishedbetweenpowder and crack cocaine.

See Trial Tr. 672 (Williams testifying that she received both “powder and

hard crack”); 155 (Harris testifying that she’d never seen Cheek “with

crack,” but that twice bought cocaine from him); 532 (stipulation distinguishing between “cocaine base” and “powder cocaine”). And Cheek’s

defense was not that he was selling powder cocaine instead of crack

cocaine. Moreover, as noted, while Agent Catey’s testimony about the drug

code words and phrases used by the conspirators would not have been

sufficient on its own to support Cheek’s crack cocaine convictions, Cheek

does not raise an insufficiency argument on appeal. Anyway, the government offered sufficient evidence that Cheek committed the crack cocaine

offenses with which he was charged. See, e.g., Trial Tr. 113 (Agent Catey

testifying that cooperating witnesses recorded purchases of crack cocaine

from Cheek); 125 (Harris testifying that Cheek’s conspiracy distributed

crack cocaine); 405–06 (Eason testifying that he obtained crack cocaine from

Cheek); 611 (Detective Ferguson testifying about controlled buy of crack

from Cheek). Indeed, Eason testified that Cheek supplied him with 63

grams of crack cocaine every few weeks during 2002–2003, 2006–2008, and

2010–2011. See Trial Tr. 405–06, 411–13, 417–20. Thus, Cheek sold significantly more than 280 grams of crack cocaine to just one of his customers. 
16 No. 12-2472

witness might have observed another person making crack

cocaine or conducting a wiretap; or the witness might consult

a dictionary. When Agent Catey testified about the ingredients

of crack cocaine, he did not identify the source of his knowledge. And when he testified that $23.50 referred to $23,500 for

a kilo of cocaine, he testified that his opinion was based on his

review of the calls. With respect to this testimony, precisely

because Agent Catey did not specify whether his opinions

were based on “scientific, technical, or other specialized

knowledge,” we cannot say that it was “clear or obvious” that

the testimony was expert in nature.

Moreover, Cheek does not dispute the accuracy of any of

this testimony. Indeed, as noted, Cheek’s counsel conceded 5

that Agent Catey would likely have been qualified as an

expert. Therefore, the concern that Agent Catey’s uncontested

testimony may have been cloaked in an aura of expertise, while

not concomitantly being subjected to the reliability standards

of Rule 702 or the mandatory pretrial disclosure requirements

of Rule 16, could not have affected Cheek’s substantial rights.

See United States v. Sykes, 614 F.3d 303, 312 (7th Cir. 2010) (“An

error affects substantial rights when it ‘affected the outcome of

the district court proceedings.’” (quoting United States v. Olano,

507 U.S. 725, 734 (1993))). 

Perhaps Cheek believes that Agent Catey’s testimony on

these matters cloaked the rest of his testimony—including

matters that were contested—in an aura of expertise. But

Detective Ferguson also testified that “$23.50” meant “$23,500.” But 5

Cheek does not object to Detective Ferguson’s testimony.
No. 12-2472 17

Cheek does not explain how Agent Catey’s undisputed

testimony about the ingredients of crack cocaine, the meanings

of technical terms, or the process for conducting a wiretap

would bolster the rest of his testimony. Moreover, the government did not explicitly present Agent Catey to the jury as an

expert. Consequently, there was little risk that the jury might

have been confused by Agent Catey’s “dual roles” as both an

expert and lay witness, that his status as an expert might

overawe the jury, or that the jury might have mistakenly

believed that his expert opinions were based on facts about the

defendant not presented at trial. See United States v. Garcia-Avila, 737 F.3d 484, 489 (7th Cir. 2013) (observing that the

risk of unfair prejudice is reduced where a witness does not

testify both as an expert and as a lay witness); Moreland, 703

F.3d at 983 (finding no “realistic danger” that the jury might be

smitten by the agent’s testimony). And the evidence of Cheek’s

guilt was overwhelming—Cheek admitted that he sold

marijuana, and Detective Ferguson as well as a number of

Cheek’s co-conspirators testified that Cheek distributed crack

cocaine. Therefore, any error in admitting Agent Catey’s

testimony on these matters would be harmless. See United

States v. Gaytan, 649 F.3d 573, 582–83 (7th Cir. 2011); Rollins, 544

at 833 (“Besides, the other evidence of guilt of these two

defendants is so overwhelming that even if the [officer’s]

‘impressions’ testimony had crossed the line, it would have, at

worst, amounted to harmless error.”).

The Transcripts

Cheek also contends that the district court erred in allowing

the jury to have the transcripts (both during trial and deliberations) containing Agent Catey’s interpretations.These interpre-
18 No. 12-2472

tationswere inserted in square brackets following various code

words and phrases from the recordings. Specifically, Cheek

argues that this unfairly bolstered Agent Catey’s testimony

and usurped the fact-finding function of the jury.

6

“[D]istrict courts have wide discretion in determining

whether to allow juries to use written transcripts as aids in

listening to audiotape recordings.” United States v. Breland, 356

F.3d 787, 794 (7th Cir. 2004) (citing United States v. Keck, 773

F.2d 759, 766 (7th Cir. 1985)). And “[w]e have previously

permitted transcripts to be admitted at trial and used by the

jury during their deliberations when the underlying tapes are

actually played during the trial (as was the case here).” Breland,

356 F.3d at 794–95 (collecting cases). In fact, Cheek’s counsel

explicitly informed the district court that the defense had no

objection to providing the transcripts to the jury. See Tr. 67, 838.

Even assuming arguendo that providing the transcripts with

Agent Catey’s interpretations to the jury was error, any error

would not have been “clear or obvious” to the district court

given our precedent cited above and Cheek’s disclaimer of any

objection. Moreover, Cheek does not identify which (if any) of

Agent Catey’s interpretations contained in the transcripts are

inaccurate. If Agent Catey’s interpretations are correct,Cheek’s

substantial rights could not have been affected and the

Based on interpretations in the transcripts that read “cocaine/crack 6

cocaine,” Cheek reiterates his concern that the jury may have been misled

into convicting him for the crack cocaine offenses based on evidence that

may have only proved powder cocaine offenses. For the reasons discussed

above, this argument is without merit.
No. 12-2472 19

fairness, integrity, or public reputation of judicial proceedings

could not have been seriously impugned.7

For support, Cheek cites our decision United States v. Berry,

92 F.3d 597, 601 (7th Cir. 1996), wherein, unbeknownst to the

judge, the jury retained transcripts provided to them at trial

during their deliberations. The district court granted the

defendant a new trial and the government appealed. On 8

appeal, we observed that “the government’s case was not

strong,” and that our “deferential review” led us to conclude

that the district court did not abuse its discretion in granting a

new trial. Id. at 601–02. We stated that “[a] criminal defendant

has ‘a right to be tried on the basis of the evidence admitted at

We observe that Detective Ferguson testified that a number of the words

7

or phrases in the transcripts meant what the interpretations in the adjacent

square brackets stated. For example, the transcripts contained the word

“kilograms” in square brackets following the word “books,” the phrase

“1/8th ounce or ‘8-ball’ sample” in square brackets following the word

“ball,” and the phrase “$23,500 per kilogram” in square brackets following

the number “$23.50,” Detective Ferguson testified that he believed the word

“book” as used in the recorded conversations between Cheek and others

referred to a “kilogram of cocaine.” He also testified that the word “ball”

meant “a ball of cocaine” that was being given to a customer as a “sample.”

And he testified that “$23.50” meant “$23,500.” Yet Cheek does not contend

on appeal that the inclusion of these interpretations in square brackets in

the transcripts unfairly bolstered Detective Ferguson’s trial testimony or

usurped the fact-finding role of the jury.

Actually, the government appealed twice. The first time we remanded for

8

the district court to explicitly determine whether there was a reasonable

possibility that the jury’s use of the transcript during deliberations

prejudiced the defendant. SeeUnited States v. Berry, 64 F.3d 305, 308 (7th Cir.

1995).
20 No. 12-2472

his trial, and this right may be violated if the jury gets access to

extra-record evidence ... even if the access is not the result of

any prosecutorial misconduct.’” Id. at 600 (quoting United

States v. Sababu, 891 F.2d 1308, 1333 (7th Cir. 1989)). But here,

unlike in Berry, the transcripts provided to the jury were

admitted into evidence at trial by stipulation. See Tr. 67, 88.

And our standard of review is at the opposite edge of the

spectrum in this case—in Berry our highly deferential review

(abuse ofdiscretion) favored the defendant’s position, whereas

here our even more highly deferential review (plain error)

favors the government’s position. Moreover, unlike in Berry,

the government’s case is very strong—composed as it is from

the testimony of five of Cheek’s co-conspirators and Detective

Ferguson as well as recordingsofCheek’s communications and

interactions with one of his customers. Therefore, we conclude

that the district court did not plainly err—or at least that any

error would be harmless—when the court permitted Agent

Catey’s testimony and allowed the jury to have the transcripts

containing Agent Catey’s interpretations in square brackets.

B. Cheek’s Challenges to his Sentence

Cheek argues that his 576-month prison sentence is

procedurally unreasonable because the district court failed to

comply with the procedure provided in § 851(b), erroneously

invoked § 841(b)(1)(B), erroneously imposed the 2-level

obstruction of justice enhancement, and failed to consider

meaningfully Cheek’s mitigation arguments. Additionally,

Cheek contends that a 576-month sentence is a de facto life

sentence that is substantively unreasonable.
No. 12-2472 21

Section 851(b)/Apprendi Arguments

Cheek argues that his 576-month sentence must be vacated

because the district court failed to comply with procedural

requirements of 21 U.S.C. § 851(b) and because the sentence

violates his rights under the Fifth and Sixth Amendments to

the Constitution as interpreted by the Supreme Court in

Apprendi.

None of the counts for which Cheek was convicted carries

a statutory maximum penalty greater than 480 months’

imprisonment. However, pursuant to 21 U.S.C. § 841(b)(1)(B),

the district court could sentence Cheek to a prison term of up

to life on counts I and II provided that Cheek had been

previously convicted of at least one drug felony. The district

court only could invoke § 841(b)(1)(B) if the requirements of

§ 851 were met. Cheek contends that the district court failed to

comply with § 851(b)’s requirement that the court “after

conviction but before pronouncement of sentence inquire of

the person with respect to whom the information was filed

whether he affirms or denies that he has been previously

convicted as alleged in the information.”

Generally, “[w]hether the district court followed proper

sentencing procedure is a legal question reviewed de novo.”

United States v. Pape, 601 F.3d 743, 746 (7th Cir. 2010). However,

the government urges us to review the district court’s compliance with § 851(b) for plain error because Cheek did not object

to the criminal history section of his PSR and “did not object to

the alleged procedural deficiency at the time of sentencing ... .”

United States v. Corona-Gonzalez, 628 F.3d 336, 340 (7th Cir.

2010). But the standard of our review does not affect the
22 No. 12-2472

outcome in this case. “No person who stands convicted of an

offense under this part may challenge the validity of any prior

conviction alleged under this section which occurred more

than five years before the date of the information alleging such

prior conviction.” 21 U.S.C § 851(e). And five of Cheek’s seven

felony drug convictions listed in the § 851(a) information filed

by the government prior to trial occurred more than five years

before the date the information was filed. Thus, Cheek was

barred from challenging the validity of any of these five prior

felony drug convictions. Only one such conviction was needed

to trigger § 841(b)(1)(B). “A district court is not required to

‘adhere to the rituals of § 851(b) where a defendant, as a matter

of law, is precluded from attacking the conviction forming the

basis of the enhancement information.’” United States v. Flores,

5 F.3d 1070, 1082 (7th Cir. 1993) (quoting United States v. Nanez,

694 F.2d 405, 413 (5th Cir. 1982)). So the district court did not

err; but even if it did, any error was harmless. See United States

v. Williams, 298 F.3d 688, 692–93 (7th Cir. 2002) (finding

harmless any error resulting from the district court’s failure to

comply with § 851(b)); United States v. Arango-Montoya, 61 F.3d

1331, 1339 (7th Cir. 1995) (per curiam) (“Since [the defendant]

attempts to challenge his prior conviction and § 851(e) bars him

from doing so, any failure by the district court to ‘inform him

that any challenge to a prior conviction which is not made

before sentence is imposed may not thereafter be raised to

attack the sentence,’ 21 U.S.C. § 851(b), is harmless.”).

Cheek also contends that his 576-month sentence violates

his rights under the Fifth and Sixth Amendments as interpreted by Apprendi. In Apprendi, the Supreme Court held that

“any fact that increases the penalty for a crime beyond the
No. 12-2472 23

prescribed statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt.” 530 U.S. at 490. The

question of whether Cheek had been convicted of any prior

drug felonies is a factual prerequisite to the district court’s

invocation of § 841(b)(1)(B) and imposition of a prison term

greater than 480 months. It is undisputed that this question

was not submitted to the jury.

Cheek concedes that we review for plain error because he

failed to raise any Apprendi argument before the district court.

But we need not dally over the standard of our review because

Apprendi expressly excludes any question of “the fact of a prior

conviction” from the scope of its holding. Id. at 490. And even

if we thought the Supreme Court was going to reconsider this

ruling, it has “told the lower courts in no uncertain terms to

leave the overruling of its precedents to it.” United States v.

Ousley, 698 F.3d 972, 976 (7th Cir. 2012) (quoting United States

v. Cephus, 684 F.3d 703, 709 (7th Cir. 2012)). To the extent Cheek

wishes to preserve his Apprendi argument for the Supreme

Court, he has done so.

Obstruction of Justice Enhancement

Next, Cheek contends that the district court improperly

calculated his Guidelines range when it imposed a 2-level

upward adjustment under U.S.S.G. § 3C1.1 for obstruction of

justice. Guideline U.S.S.G. § 3C1.1 provides:

If (1) the defendant willfully obstructed orimpeded,

or attempted to obstruct or impede, the administration of justice with respect to the investigation,

prosecution, or sentencing of the instant offense of

conviction, and (2) the obstructive conduct related to
24 No. 12-2472

(A) the defendant's offense of conviction and any

relevant conduct; or (B) a closely related offense,

increase the offense level by 2 levels.

The district court thought that Cheek’s letter to Harris’s

daughter was an attempt to convince “the child to get to her

mother.” Thus, over Cheek’s objection, the district court

concluded that the letter constituted an obstruction of justice.

However, the district court remarked, “I don’t find [the letter]

very significant.”

“When reviewing an obstruction of justice enhancement,

we review the underlying factual findings, like all such

findings, for clear error, ‘and we review de novo whether those

findings adequately support the enhancement.’” United States

v. Taylor, 637 F.3d 812, 817 (7th Cir. 2011) (quoting United States

v. Vallar, 635 F.3d 271, 288 (7th Cir. 2011)). Cheek contends that

the district court erred in concluding that the letter was

obstructive because the letter urges Harris to tell the truth and

urges Harris’s daughter to respect her mother’s decision. But,

in the letter, Cheek also states that Harris’s testimony for the

government would be lies, that her testimony is all the government had to convict him, and that Harris had been tricked by

her own lawyer. Cheek remarks that he will “never respect

[Harris’s] decision” and that he thought she would never lie

about him. Cheek also notes that if Cheek is convicted, then he

will go to prison for the rest of his life and be unable to raise

his children or protect his daughter from boys. In conjunction

with this expression of parental concern, Cheek also makes a

flattering reference to Harris’s daughter’s child. Finally, Cheek

invokes “God” and remarks that “it’s up to us to man up or

woman up.” In short, Cheek’s letter was an intentional effort
No. 12-2472 25

to convince Harris’s daughter that her mother’s testimony

would be lies, which were the only evidence the government

had against him, and that a conviction would ruin his “life and

the lives of [his] kids.” The district courtreasonably interpreted

this effort as a willful attempt to persuade Harris’s daughter to

try to sway her mother’s testimony. Certainly this interpretation was not clearly erroneous. And an effort to influence a

witness’s testimony—albeit vicariously—is a prototypical

example of obstruction of justice. See U.S.S.G. § 3C1.1 Application Note 4(A).

Moreover, even if the district court erred when it imposed

the obstruction of justice enhancement, that error would be

harmless. Enhancements are “used merely to determine the

applicable Guidelines range.” States v. Maggi, 44 F.3d 478, 482

(7th Cir. 1995). And the imposition of the obstruction of justice

enhancement did not change Cheek’s Guidelines range. In

addition, the district court explicitly stated that he did not

think the letter significant. Therefore, it is apparent that the

enhancement did not affect Cheek’s sentence. See United States

v. Eubanks, 593 F.3d 645, 655 (7th Cir. 2010) (“To prove harmless error, the government must be able to show that the

guidelines error did not affect the district court’s selection of

the sentence imposed.” (quoting United States v. Abbas, 560 F.3d

660, 667 (7th Cir. 2009)).

Cheek’s Arguments in Mitigation and the Section

3553(a) Factors

Cheek also contends that his sentence was procedurally

unreasonable because the district court failed to consider that

the sentence amounted to a de facto life sentence and did not
26 No. 12-2472

explain why it believed a sentence greater than that recommended by the government was reasonable. Cheek relies upon

our decision United States v. Patrick, 707 F.3d 815, 819–20 (7th

Cir. 2013), wherein the district court expressed an intent not to

impose a life sentence but then imposed a sentence that

effectively amounted to a life sentence. Under those circumstances, we were unable “to discern whether the court appreciated the severity of the sentence it imposed, and in particular

its equivalence to the life sentence that it had purportedly

rejected.” Id. Patrick does not stand for the proposition that,

every time a district court imposes a sentence that exceeds the

defendant’s life expectancy, the court must explicitly recognize

that fact. And Patrick is distinguishable from Cheek’s case

because here the district court never stated that he wished to

give Cheek something less than a life sentence. Instead, the

district court explained that, based on Cheek’s extensive

“history of criminal activity,” the court was untroubled by the

fact that Cheek would be imprisoned “at least for a significant

amount of time.” Unlike in Patrick, we are able “to discern

[that] the court appreciated the severity of the sentence it

imposed ... .” Id.

In arguing that the district court procedurally erred by

failing to explain why it believed a sentence greater than that

recommended by the government was reasonable, Cheek

asserts that the government requested a 480-month sentence.

That is not quite true; the government asked for “a sentence of

not less than 40 years [480 months] in prison ... .” Moreover,

Cheek’s sentence was within his Guidelines range, and “a

within-guidelines sentence receives a presumption of reasonableness ... .” United States v. Diekemper, 604 F.3d 345, 355 (7th
No. 12-2472 27

Cir. 2010). Where such a presumption applies, we doubt that

a sentencing court has a procedural obligation to explain why

it has chosen not to adopt the government’s recommended

sentence. And, as discussed below, the district court had good

reasons for concluding that Cheek deserved a long sentence.

Cheek also argues that the district court failed to consider

meaningfully the arguments Cheek offered in mitigation of his

sentence under 18 U.S.C. § 3553(a). Cheek identifies the

following factors as ones upon which he argued for leniency at

sentencing: his age (37 years old), the extraordinary length of

a Guidelines sentence of 360 months to life, his history of

non-violence, his advanced age upon completing a lengthy

sentence, that he had assisted law enforcement in an unrelated

matter, that his mother had died when he was only 16 years

old, and that he had children.

First of all, although Cheek’s counsel remarked at sentencing that Cheek “is 37 years old,” he did not develop any

argument for leniency from that fact. And it is not apparent

why Cheek’s age would support leniency. Cheek is not so

young that one might attempt to excuse his criminal activity as

the result of immaturity—nor is he elderly. Therefore, we will

not fault the district court for failing to mention explicitly

Cheek’s age during sentencing. See United States v. Jones, 438 F.

App’x 515, 519 (7th Cir. 2011) (noting that the defendant

“never explained why his age justified a below-guidelines

sentence” and so the court was not required to address it).

Similarly, our review of the sentencing transcript reveals no

argument by either Cheek or his counsel that the “extraordinary length of a [Guidelines] sentence of 360 months to life”

constitutes a basis for leniency.
28 No. 12-2472

Furthe rmor e , mos t of Che ek’ s r emaining

arguments—namely, that he will be elderly when he is

released from prison, that his mother died when he was only

16 years old, and that he has children—are the kinds of stock

arguments that sentencing courts are not obliged to address.

See United States v. Brock, 433 F.3d 931, 937 (7th Cir. 2006)

(ruling that a district court may reasonably find arguments

about a difficult childhood so weak as not to merit discussion

where the defendant fails to explain why his difficult childhood should be a mitigating factor); United States v. Tahzib, 513

F.3d 692, 695 (7th Cir. 2008) (holding that “family ties” are

“nothing more than stock arguments that sentencing courts see

routinely”); United States v. Nurek, 578 F.3d 618, 626 (7th Cir.

2009) (holding that defendant’s “physical ailments and

[advanced] age are not significant mitigating factors” that the

district court needed to separately address). Similarly, Cheek’s

argument that none of his numerous prior convictions involved violence is essentially an argument that his criminal

history category substantially over-represents the seriousness

of his past crimes. See United States v. Stephen, 160 F. App’x 505,

507 (7th Cir. 2005). This argument is also a stock argument that

the district court was not required to address. United States v.

Moreno-Padilla, 602 F.3d 802, 811–12 (7th Cir. 2010) (“To that

end, there is no requirement that a district court extensively

address non-principal arguments, or ‘stock arguments that

sentencing courts see routinely,’ including ‘how [a defendant’s] criminal history category over-represents the seriousness of his prior conviction.’” (quoting Tahzib, 513 F.3d at 695)).

Cheek’s final argument for leniency was based on the fact

that he had once assisted law enforcement by clearing Detec-
No. 12-2472 29

tive Ferguson of accusations of misconduct. This was Cheek’s

most developed argument at sentencing. But the fact that

Cheek did not lie to the police on an unrelated matter hardly

constitutes the kind of meritorious conduct deserving of a

sentencing reduction. And, to the extent Cheek’s could be said

to have rendered “substantial assistance” to the police, still “[a]

defendant’s claim that substantial assistance to the government

warrants leniency is ‘routine,’ ... and thus a sentencing court

may reject that claim with little or no explanation.” See Jones,

438 F. App’x at 519 (citing United States v. Gonzalez, 462 F.3d

754, 756 (7th Cir. 2006)). 

Moreover, we will not find a sentence to be procedurally

unreasonable as long as the totality of the record establishes

that the district judge considered the arguments in mitigation,

“even if implicitly and imprecisely.” Diekemper, 604 F.3d at 355;

United States v. Poetz, 582 F.3d 835, 839 (7th Cir. 2009). In this

case, the district court recited the § 3553(a) factors and focused

on Cheek’s extensive criminal history—Cheek spent his entire

adult life as a drug dealer and was convicted of nine prior

felony drug convictions. The district court recognized that

Cheek had offered arguments that he was not a bad person.

Indeed, the district court told Cheek, “I’m not saying you’re a

bad person.” Nevertheless,despite recognizing the good things

about Cheek, the district court concluded that the facts

surrounding Cheek’s current offenses andhis extensive history

of criminal activity called for a significant prison sentence.

Moreover, the district court’s decision to impose a sentencing

enhancement onCheek for obstructing justice demonstrates that

the court implicitly rejected any argument that Cheek’s

sentence should be reduced because he assisted justice. There-
30 No. 12-2472

fore, even assuming the district court was required to address

Cheek’s mitigation argument based on his prior assistance, we

conclude that the court sufficiently considered it. In any event,

even if the district court did not adequately consider this

mitigation argument, the error would be harmless because the

court’s focus on Cheek’s extensive and egregious history of

criminal activity, and serious present offenses, convince us that

Cheek’s sentence would not have been different. United States

v. Glosser, 623 F.3d 413, 419 (7th Cir. 2010) (“When we are

convinced the sentence would have been the same absent the

error, we deem the error harmless.”).

Substantive Unreasonableness

Finally, Cheek argues that his sentence—a de facto life

sentence—is substantively unreasonably long. But Cheek’s

sentence was within his Guidelines range, and “a

within-guidelines sentence receives a presumption of reasonableness ... .” Diekemper, 604 F.3d at 355. Indeed, “such a

sentence ‘will almost never be unreasonable.’” United States v.

Vallar, 635 F.3d 271, 279 (7th Cir. 2011) (quoting Tahzib, 513

F.3d at 695). In fact, the district court could have imposed a life

sentence on Cheek and still remained within his Guidelines

range. The district court recounted the § 3553(a) factors and

concluded that, despite the significant cost of incarceration, a

within-Guidelines sentence was appropriate in light of Cheek’s

egregious criminal history, including nine prior felony drug

convictions, and serious present offenses, including distributing at least 28 grams of crack cocaine and 100 kilograms of

marijuana. We previously have found lengthy sentences to be

substantively reasonable under similar circumstances. See, e.g.,

United States v. Taylor, 701 F.3d 1166, 1175 (7th Cir. 2012)
No. 12-2472 31

(affirming 480-month sentence in light of egregious criminal

conduct and extensive criminal history); Vallar, 635 F.3d at 280

(affirming 360-month sentence in light of “the seriousness of

[the defendant’s] crime, his past recidivism and the likelihood

that he would continue to commit crimes if released from

prison, the fact that he directed the operation of a drug

distribution ring while in a federal prison, his lack of remorse

for his offense, and its conclusion that [he] is a threat to society

due to his persistent distribution of drugs.”). The record

demonstrates that Cheek has repeatedly refused to give up his

life of criminal drug distribution—despite the efforts of the

justice system to deter him. Cheek’s sentence is lengthy, but we

cannot say that the district court abused its discretion in

concluding that Cheek deserved it.

III. Conclusion

The district court did not plainly err when it admitted

Agent Catey’s testimony and permitted the government to

provide the jury with transcripts containing Agent Catey’s

interpretations of various words and phrases from the recordings. At least, any error would have been harmless. Additionally, the district court did not err when it imposed a 2-level

obstruction of justice enhancement, and the court adequately

considered Cheek’s mitigation arguments in light of the § 3553

factors. The district court’s failure to comply with the procedure provided in § 851(b) was, at most, harmless

error—especially given that Cheek’s counsel never raised the

issue. Finally, Cheek’s 576-month prison sentence—authorized

by § 841(b)(1)(B)—is not substantively unreasonable. Therefore, we AFFIRM Cheek’s convictions and sentence.