In the

United States Court of Appeals

For the Seventh Circuit

Nos. 99-1936 and 99-1979

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KELLY JEMISON and DONIAL CARTER,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Western Division.

No. 98 CR 50037--Philip G. Reinhard, Judge.

Argued September 6, 2000--Decided January 24, 2001

 Before CUDAHY, COFFEY, RIPPLE, Circuit Judges.

 COFFEY, Circuit Judge. On July 30, 1998, the

United States Attorney for the Northern District

of Illinois filed a criminal information charging

the defendants-appellants Donial Carter and Kelly

Jemison each with one count of conspiring to make

false statements in an application for the

purchase of firearms from a federally licensed

firearms dealer, in violation of 18 U.S.C. sec.

371, and three counts of causing false statements

to be made in the records of a federally licensed

firearms dealer, in violation of 18 U.S.C. sec.

924(a)(1)(A). 

 On December 22, 1998, Jemison pled guilty to

Count One of the information (conspiracy to make

a false statement in an application for the

purchase of a firearm from a federally licenced

firearms dealer) and the other three counts

charged were dismissed pursuant to a plea

agreement. At Jemison’s March 31, 1999 sentencing

hearing, the trial judge sentenced her to 16

months of imprisonment, three years of supervised

release, and a special assessment of $100. Carter

pled guilty to all four counts of the indictment

on March 31, 1999. At Carter’s April 8, 1999

sentencing hearing, the trial judge ordered him

imprisoned for a period of 66 months on each of

the four counts with each of his sentences to run

concurrent with each other, three years of
supervised release, a $500 fine, and a $400

special assessment. On appeal, Jemison argues

that she received ineffective assistance of

counsel. Carter argues: (1) that the sentencing

court committed clear error in increasing his

base offense level by four points pursuant to

U.S.S.G. sec. 2K2.1(b)(5) for attempting to

transfer firearms with reason to believe that

those firearms would be used in connection with

felony offenses; and (2) that the court erred in

sentencing him to four concurrent terms of

imprisonment of 66 months each when the statutory

maximum term of imprisonment for each count was

only 60 months. We affirm as to Jemison. As to

Carter, we affirm in part, reverse in part, and

remand for re-sentencing. 

I. BACKGROUND

A. The Crimes

 On November 29, 1997, Donial Carter went to the

Shootin’ Shack gun shop in Rockford, Illinois,

and ordered two nine-millimeter pistols. Mike

Douglas, the owner of the gun store, called the

Illinois State Police’s Firearm Transfer Inquiry

Program ("FTIP") and gave Carter’s Illinois

Firearms Owners Identification Card ("FOID")

number for approval to purchase the weapons and

the FTIP refused to approve the gun sale to

Carter based upon an outstanding arrest

warrant./1 Due to the FTIP’s failure to approve

the transaction, Douglas declined to make the

sale to Carter.

 After being refused the opportunity to purchase

the pistols, Carter contacted his half-sister,

Kelly Jemison, who had a valid Illinois FOID, and

requested that she purchase the firearms for him.

Jemison agreed, and on December 6, 1997, she

accompanied Carter to the gun store and executed

a Bureau of Alcohol, Tobacco, and Firearms

("ATF") Form 4473 for the purchase of two

firearms, including one of the pistols Carter

previously had attempted to purchase in November.

In response to the question on the gun sale form

asking "Are you the actual buyer of the firearm

indicated below?" Jemison answered "Yes." Neither

Jemison nor Carter contests that her answer on

the application was false and, in fact, Jemison

subsequently admitted, in a signed statement to

the police, that she was purchasing the weapons

for Carter. 

 Just one month later, on February 5, 1998,

Jemison again accompanied Carter to the gun shop

and purchased a nine-millimeter pistol. Jemison

again executed an ATF Form 4473 in which she

answered "Yes" to the question "Are you the

actual buyer of the firearm indicated below?"

when in fact she was acting as a "strawman" in
purchasing the guns for Carter, who in turn resold the nine-millimeter pistol./2 

 On June 12, 1998, Carter called Douglas at the

gun store and stated that he wished to purchase

10 Lorcine nine-millimeter pistols. After being

quoted a price of $110 per pistol, Carter

informed Douglas that it was his intention to resell these ten guns for a profit. Although Carter

did not disclose the identity of the prospective

gun buyers to Douglas, he did admit later to the

police that he planned to sell the guns to

members of the Gangster Disciples, a nationally

known street gang. Douglas advised Carter that it

would be illegal to re-sell the pistols without

a federal firearms dealer’s license. Later that

day, Carter and Jemison spoke with Douglas on a

conference call, and informed him that Jemison

would purchase the ten pistols because he

(Carter) still did not possess a valid FOID.

Douglas advised Carter and Jemison that their

plan constituted an illegal "straw purchase." In

spite of this information, Carter told Douglas

that he wanted to go through with the purchase of

the pistols through Jemison. After their

discussion, Douglas notified ATF about the

pending gun sale to Jemison for Carter and agreed

to cooperate in an investigation of the illegal

transaction.

 On June 24, 1998, Carter visited the Shootin’

Shack and, during a tape-recorded conversation,

told Douglas that he intended to take possession

of the pistols that Jemison was purchasing from

him and sell them to buyers in Chicago. Carter

also informed Douglas that in the future he

intended to buy about $1,000 worth of guns from

him per week for re-sale purposes. Carter left

the gun store without making any down-payment on

the pistols. Later that day, Carter called to

confirm that Jemison would return and make the

actual purchase and pick up the weapons. During

this telephone conversation, Carter mentioned

that he would be re-selling the firearms to

buyers living in the Chicago, Illinois, area.

 On July 2, 1998, Carter arrived at the store in

a car with one other passenger, identified as

Tommy Davidson, a member of the Gangster

Disciples. Unbeknownst to Carter and Jemison, not

only was their trip surveilled by ATF agents, but

their conversation in the Shootin’ Shack was

recorded. Carter and Jemison counted out $1062 in

cash for the ten guns, and Carter handed the

money to Douglas. After the sale, Carter

requested that Douglas prepare a false sales

receipt in the amount of $1867.51 to facilitate

his charging an inflated price for the guns.

Carter left the store carrying the box containing

the pistols. He and Davidson stashed nine of the
guns in the trunk of their vehicle, and placed

the other pistol on the console between them on

the front seat. When Jemison exited the store

with the phony receipt, she and Carter were

arrested and taken into custody.

B. The Confessions

 After their arrest, Jemison and Carter were

conveyed to the Rockford Public Safety Building

(police station) and questioned. Jemison

initially stated that she was a gun collector and

had purchased the ten pistols for her personal

use, but later recanted this fabrication and, in

a signed confession, admitted that she had

purchased the guns for Carter. Her statement

reads:

 3 weeks ago Donial called me and asked me if I

wanted to make some money and he was going to pay

$300.00 using my FOID card. He used my number to

order guns at the Shooting Shack in Rockford and

told me only that I had to sign gun forms. . . .

Donial never paid me the money and (sic) he said

he was, and I did not know what he was doing with

the guns. No clue.

 Carter also initially stated that the guns were

purchased for Jemison’s private use as a

collector. Later, he also retracted that story

and admitted in a signed confession that he was

purchasing the guns for a Gangster Disciple named

"Will" who had directed that Tommy Davidson

accompany Carter and observe the transaction.

Carter told the police:

 I ran into Will after being jumped by some

Urban Lord gang members and I talked to him about

being protected because he was a G.D. [Gangster

Disciple] and we came to a (sic) agreement that

if I could find him some guns that he could help

me be protected from the gang members. So last

week I came to see Mike Douglas about it and he

told me that he would order the guns under my

sister’s name [as I requested.] . . . [Will] gave

Tommy the money to ride with me to purchase the

guns because he didn’t trust me with the money.

C. Jemison’s Plea Agreement and Sentencing

 In Jemison’s negotiated plea agreement, the

government agreed not to pursue the two-level

enhancement set forth in the United States

Sentencing Guideline 3B1.1/3 and in return

Jemison consented to waive her right to appeal

either her conviction or sentence. The appellate

waiver clause stated: 

 Defendant understands that by pleading guilty

she is waiving all the rights set forth in the
prior paragraph. Defendant’s attorney has

explained those rights to her and the

consequences of waiving all appellate issues that

might have been available if she had exercised

her right to trial. The defendant is also aware

that Title 18, United States Code, Section 3742

affords defendant a right to appeal the sentence

imposed. Acknowledging all of this, the defendant

knowingly waives the right to appeal any sentence

within the maximum provided in the statute of

conviction (or manner in which that sentence was

determined) on the grounds set forth in section

3742 or on any other ground whatsoever, in

exchange for the concessions made by the United

States in this Plea Agreement. The defendant also

waives her right to challenge her sentence or the

manner in which it was determined in any

collateral attack, including, but not limited to,

a motion brought under Title 28, United States

Code, Section 2255.

On December 22, 1998, Jemison and her attorney,

Mark Danielson, signed the agreement which

averred that they had read the entire plea

document, including the appellate waiver

provision. Jemison subsequently entered a plea of

guilty to Count One of the information

(conspiracy to make a false statement in an

application for the purchase of a firearm from a

federally licenced firearms dealer) and the other

three counts charged were dismissed pursuant to

the plea agreement. The court, after

interrogating her as to the voluntariness of her

plea and knowledge of the plea agreement,

accepted her plea, ordered a pre-sentence report,

and continued her sentencing hearing to March 31,

1998.

 At Jemison’s sentencing hearing, defense counsel

moved for a continuance and informed the court he

had been advised by his client at the start of

the hearing that, for reasons not set forth in

the record, she was attempting to hire new

counsel. In support thereof, Jemison went on and

asserted that she had already hired new counsel.

The court, after questioning her, found Jemison’s

claim of newly retained counsel to be implausible

given the fact that no other attorney had either

filed a written notice of substitution of counsel

nor was a substitute attorney present in court

for the scheduled sentencing hearing. The trial

judge denied her motion for a continuance and

proceeded with the hearing and sentenced her to

16 months’ imprisonment./4 Carrying out the

terms of the plea agreement, the prosecution did

not request (and the court did not apply)

enhancements to Jemison’s sentence. Jemison

appeals her conviction and sentence,

apparently/5 arguing that her counsel was

somehow ineffective in: (1) failing to file pre-
trial motions attacking unspecified "violations

of her Fourth and Fifth Amendment Rights," and

(2) failing to file a motion requesting the he be

allowed to withdraw prior to her sentencing

hearing based upon a "break-down" in

communications between counsel and Jemison.

D. Carter’s Sentencing

 On December 22, 1998, Carter appeared before

the sentencing judge and entered a plea of guilty

to Counts One through Four of the information./6

The trial judge, after interrogating Carter and

satisfying himself that the plea was being

entered knowingly and voluntarily, found Carter

guilty and ordered a Presentence Investigation

Report ("PSR"). The PSR recommended that Carter’s

offense level be increased four levels under

U.S.S.G. sec. 2K2.1(b)(5) since Carter purchased

the firearms with the intent to transfer them to

another while having "reason to believe" those

firearms would be used in connection with the

commission of a felony offense./7 Carter

objected to this enhancement, arguing that just

because he had knowledge that the guns were being

purchased by gang members did not give him reason

to believe that the weapons would be used in a

future felony.

 The trial judge rejected this argument and

stated:

 He knew that the Gangster Disciples, as a Gang,

that they are engaged in all sorts of illegal

activity. It’s well known the Gangster Disciples

gang is engaged in felony drug offenses and other

crimes of violence and shootings that are felony

offenses and that they are using weapons for

illegal purposes. It would just be naive of me to

say that under the facts, well, you have to show

that even though he knew they were being provided

to a gang, he really didn’t know what they were

going to be used for. I think that that would be

an unreasonable assumption and that he knew that

they were going to be used for felony offenses.

II. ISSUES

 On appeal, Jemison argues that she received

ineffective assistance of counsel. Carter argues

that: (1) the district court committed clear

error in enhancing his offense level four levels

pursuant to U.S.S.G. sec. 2K2.1(b)(5) for

attempting to transfer firearms with "reason to

believe" that those weapons would be used in

connection with a future felony offense; and (2)

that the district court erred in sentencing him

to concurrent terms of 66 months when the

statutory maximum term of imprisonment on each

count was only 60 months.
III. ANALYSIS

A. Waiver of Jemison’s Ineffective Assistance of

Counsel Claim

 On appeal, Jemison broadly asserts that she

received ineffective assistance of counsel in

violation of her Sixth Amendment rights, but

fails to set forth particulars as to how her

counsel was ineffective. If we hold that she has

entered into a binding appellate waiver, we need

not address the merits of her claim of

ineffective assistance of counsel as we "have

routinely held that a defendant may waive the

right to a direct appeal as part of a written

plea agreement."/8 Jones v. United States, 167

F.3d 1142, 1144 (7th Cir. 1999). 

 1. Enforceability of the Appellate Waiver

 As previously stated, both Jemison and her

attorney, Mark Danielson, knowingly and

voluntarily signed the plea agreement and averred

that they had read the plea document, including

the appellate waiver provision. Thereafter,

Jemison entered a plea of guilty on December 22,

1998 which was accepted by the court. The

appellate waiver clause in Jemison’s plea

agreement explicitly stated: 

 Defendant understands that by pleading guilty

she is waiving all the rights set forth in the

prior paragraph. Defendant’s attorney has

explained those rights to her and the

consequences of waiving all appellate issues that

might have been available if she had exercised

her right to trial. The defendant is also aware

that Title 18, United States Code, Section 3742

affords defendant a right to appeal the sentence

imposed. Acknowledging all of this, the defendant

knowingly waives the right to appeal any sentence

within the maximum provided in the statute of

conviction (or manner in which that sentence was

determined) on the grounds set forth in section

3742 or on any other ground whatsoever, in

exchange for the concessions made by the United

States in this Plea Agreement. The defendant also

waives her right to challenge her sentence or the

manner in which it was determined in any

collateral attack, including, but not limited to,

a motion brought under Title 28, United States

Code, Section 2255. 

 An appellate waiver will be enforced if: (1)

its terms are clear and unambiguous; and (2) the

record demonstrates that it was entered into

"knowingly and voluntarily." Jones, 167 F.3d at

1144. We are convinced that the appellate waiver

set forth in Jemison’s plea agreement fulfills
these requirements. Furthermore, we note that we

have previously enforced an appellate waiver

identical to the waiver language contained in

Jemison’s plea agreement. United States v.

Williams, 184 F.3d 666, 667-68 (7th Cir. 1999).

In Williams, we found that the terms of the

waiver, as in this case, constituted an "express

and unambiguous" waiver. Id. Second, we believe

that Jemison’s testimony before an Illinois state

court judge at her December 22, 1998, sentencing

hearing clearly illustrates that she "knowingly

and voluntarily" entered into and accepted the

appellate waiver terms of the plea agreement. At

that hearing, the following colloquy took place:

THE COURT: You have seen this plea agreement?

MS. JEMISON: Yes, I have.

THE COURT: And you have read it?

MS. JEMISON: Yes.

THE COURT: And you have discussed it with your

lawyer?

MS. JEMISON: Yes.

THE COURT: And you understand it?

MS. JEMISON: Yes.

THE COURT: Did anybody force you to sign it

either physically or mentally?

MS. JEMISON: No.

 The prosecution then recited for the record the

evidence that would have been introduced at trial

had Jemison not entered a plea of guilty,

including the fact that Jemison had falsely

filled out multiple ATF Form 4473’s when she knew

Carter’s FOID card was invalid during the time

period that she was making the firearms

purchases. Jemison also admitted that she was

told by Carter that she would be paid to make the

purchases, allowing the factfinder to conclude

that she knew the illegality of the gun-buying

scheme and the assistance she was providing in

its furtherance. Furthermore, she conceded that

she had been less then truthful when telling the

police that she was a firearms collector when she

was well aware that she was acting as a

"strawman" for Carter and making firearms

purchases because he did not possess a valid

FOID. When asked if she had committed the acts

set forth by the prosecution in its offer of

proof, Jemison answered "Correct." Following

Jemison’s admission, the trial judge advised her

that she was giving up her Constitutional rights

(including, but not limited to the right to a

trial by jury, the right to appointed counsel,

and the right to examine the prosecution’s

witnesses and present her own witnesses) by

entering into the plea agreement. The district

court also carefully explained in basic terms the

effect that the appellate waiver would have on

Jemison’s guilty plea:
THE COURT: Normally you would have the right

when you plead guilty to appeal the sentence or

appeal the sentencing procedures or any error

that I might make today in the plea of guilty

proceedings, but in your plea agreement you have

agreed that you are not going to take an appeal

at all or any other form of action to go to a

higher court to try to ultimately overturn what

I may rule in this case to be your sentence or

any other matter that I may rule on. Do you

understand that?

MS. JEMISON: Yes.

THE COURT: The essence is that I’m the last judge

in your case, and you ordinarily would have a

right to go to a higher judge. Do you understand

that?

MS. JEMISON: Yes.

THE COURT: And you have discussed that with your

lawyer?

MS. JEMISON: Yes.

THE COURT: And you understand. I take it you

think that’s in your best interest, is that

correct?

MS. JEMISON: Correct.

THE COURT: Now, I have explained to you all your

rights, and you say that you understand them. Do

you wish to give them up and plead guilty?

MS. JEMISON: Yes.

Based upon the facts set forth in the record,

including the admissions and statements made by

Jemison in open court, we are convinced that she

knowingly and voluntarily entered into an

enforceable appellate waiver whose terms were

clear and unambiguous. Jemison’s appeal is

dismissed.

B. Carter’s Objection to his Sentencing

Enhancement

 United States Sentencing Guideline Section

2K2.1(b)(5) authorizes an increase in the base

offense level in firearms offenses if the

defendant "possessed or transferred any firearm

or ammunition with knowledge, intent, or reason

to believe that it would be used or possessed in

connection with another felony offense." U.S.S.G.

sec. 2K2.1 (b)(5). Carter argues (in order that

it might benefit his own situation) that the

sentencing court should have interpreted section

2K2.1(b)(5) so that the mere transfer of multiple

firearms to a street gang, in and of itself, is

insufficient for a court to hold that he had

"reason to believe" such weapons would be used in

felonious activities. Essentially Carter asserts

that the guideline requires the prosecution to

establish that he had "reason to believe" that

the pistols would be used in a specific offense

in the future. We review the district court’s
finding at sentencing that Carter attempted to

"transfer" firearms with "reason to believe they

would be used in connection with other felonies"

for clear error. United States v. Purchess, 107

F.3d 1261, 1265 (7th Cir. 1997).

 We have previously affirmed imposing an

increased penalty under section 2K2.1(b)(5) for

defendants whose actions have resulted in

multiple gang members illegally coming into the

possession of firearms. United States v. Gilmore,

60 F.3d 392 (7th Cir. 1995); United States v.

Messino, 55 F.3d 1241 (7th Cir. 1995). Based upon

our review, we are convinced that Carter knew or

possessed good "reason to believe" that any

firearms he purchased and in turn re-sold to

members of the Gangster Disciples would in all

probability be used in connection with felonious

activities. Unlike the defendant-appellant in

Gilmore, Carter admitted that he intended to

provide firearms to members of a street gang,

specifically the Gangster Disciples. The Gangster

Disciples, of course, are an infamous nationwide

criminal organization based in Chicago, Illinois,

whose far-ranging illegal activities have in the

past included the sale of illicit drugs under

terms often negotiated and enforced, literally,

at gunpoint. See United States v. Smith, 223 F.3d

554 (7th Cir. 2000). We are well aware that

judges and the public are not blissfully ignorant

of the connection between criminal violence and

street gangs. See United States v. Sargent, 98

F.3d 325, 328 (7th Cir. 1996). Like the trial

judge stated, we believe it would be "naive" for

either the trial court or this court to conclude

that Carter never had any reason to believe that

the firearms he supplied to the Gangster

Disciples would be used in the commission of

future felonies.

C. Carter’s Objection to Being Sentenced to 66

Months of Imprisonment 

 

 Carter argues, the government concedes, and we

agree that the district court erred in sentencing

him to concurrent terms of 66 months when the

statutory maximum term of imprisonment was

limited to 60 months on each of the four counts

of his conviction. See United States v. Joetski,

952 F.2d 1090, 1098 (9th Cir. 1991). While the

trial judge obviously could have sentenced Carter

to 66 months (and a great deal more) if he would

have imposed consecutive sentences, his order

specifically directs that Carter’s sentences are

to run concurrently with one another. The

procedure for sentencing on multiple counts of

conviction is set forth at U.S.S.G. sec. 5G1.2.

Section 5G1.2(d) states:
If the sentence imposed on the count carrying the

highest statutory maximum is less than the total

punishment, then the sentence imposed on one or

more of the other counts shall run consecutively,

but only to the extent necessary to produce a

combined sentence equal to the total punishment.

In all other respects, sentences on all counts

shall run concurrently, except to the extent

otherwise required by law.

We remand Carter’s case to the district court for

re-sentencing, requesting that the sentencing

court make clear whether it intended to either:

(1) sentence Carter utilizing consecutive

sentences under U.S.S.G. sec. 5G1.2(d); or (2)

sentence him to 60 months imprisonment on all

four counts, with each sentence to run concurrent

with each other. Id.

IV. CONCLUSION

 We hold that Jemison knowingly and voluntarily

entered into a written plea agreement that

contained a clear and unambiguous appellate

waiver clause that clearly recited that she was

forfeiting her rights to contest either her

conviction or sentence and we accordingly DISMISS

her appeal. We are convinced that Carter knew, or

at the very least, had "reason to believe" that

the firearms he was attempting to sell to members

of the Gangster Disciples would be used for

felonious offenses, thus we AFFIRM the district

court’s imposition of a U.S.S.G. sec. 2K2.1(b)(5)

sentencing enhancement as to his sentence.

Finally, as stated earlier, we agree that the

district court erred in imposing upon Carter a

sentence (66 months) in excess of that allowed

under the applicable sentencing guidelines (60

months). 

 The decision of the district court is AFFIRMED in

part, REVERSED in part and REMANDED to the district

court for sentencing in conformance with U.S.S.G.

sec. 5G1.2(d) and this opinion.

/1 Any purchaser of a firearm in Illinois must

possess a valid Firearms Owners Identification

Card ("FOID"). Illinois Firearms dealers are

required to notify the Illinois State Police’s

Firearm Transfer Inquiry Program ("FTIP") prior

to making any weapons sale. FTIP performs a

criminal background check on the prospective

purchaser using the buyer’s FOID number given to

the dealer. If the prospective buyer has any

felony convictions or outstanding arrest

warrants, FTIP must decline approval of the sale

and the dealer is notified that he is legally

prohibited from selling any firearms to the
prospective purchaser. Carter’s denial was based

upon an outstanding Kane County, Illinois, arrest

warrant for domestic battery.

/2 A gun sale wherein an individual who is

authorized to purchase firearms from a licensed

Federal Firearms Dealer buys weapons for another

person who is not legally eligible to purchase

and/or possess a firearm is referred to as a

"straw purchase." 

/3 Pursuant to United States Sentencing Guideline

3B1.1, if a defendant was an organizer, leader,

manager or supervisor of any criminal activity,

a two-level enhancement should be applied.

/4 Jemison’s original counsel continued to represent

her at sentencing after the court denied the

motion for a continuance.

/5 As detailed below, in her appellate brief Jemison

failed to develop either a factual basis or legal

reasoning for any claim of relief.

/6 No written plea agreement was entered.

/7 U.S.S.G. sec. 2K2.1(b)(5) authorizes an increase

to the base offense level for a defendant

convicted of a firearms offense where the

defendant "possessed or transferred any firearm

or ammunition with knowledge, intent, or reason

to believe that it would be used or possessed in

connection with another felony offense." 

/8 We have previously recognized that a valid

appellate waiver, though binding in other

respects, does not preclude judicial review of a

criminal defendant’s assertion that her plea

agreement was itself the product of ineffective

assistance of counsel. United States v. Joiner,

183 F.3d 635, 645 (7th Cir. 1999). As Jemison has

neither argued that her appellate waiver was the

product of ineffective assistance of counsel nor

set forth facts illustrating that her attorney

was deficient in negotiating her plea agreement,

we proceed with an analysis of the validity of

her appellate waiver. Jones, 167 F.3d at 1146.