In the

United States Court of Appeals

For the Seventh Circuit

No. 06-4109

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CLEVELAND FRANKLIN, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division. 

No. 05CR208—John Daniel Tinder, Judge.

ARGUED SEPTEMBER 25, 2008—DECIDED OCTOBER 27, 2008

Before POSNER, FLAUM, and EVANS, Circuit Judges.

FLAUM, Circuit Judge. Cleveland Franklin, Jr. was

stopped by the Indianapolis Police Department on December 1, 2005, and a subsequent search of his car led police

to over 270 grams of crack cocaine hidden in the dashboard. Franklin pled guilty to one count of possession

of cocaine with intent to distribute and one count of

carrying a firearm during a drug trafficking crime. Before

pleading guilty, Franklin raised a number of challenges to
2 No. 06-4109

the search of his car, which he renews on appeal, along

with various arguments about the indictment, the trial

procedures, and his sentence.

For the following reasons, we affirm the decision of

the district court.

I. Background

In 2005, the Indianapolis Police Department was investigating Franklin for drug trafficking. On December 1, 2005,

Detective Robert Wheeling, who was conducting that

investigation, radioed Officer Matt Hall and informed

him that Franklin was driving a gold Chevrolet Impala,

and was likely in possession of a large amount of crack

cocaine. Wheeling also informed Hall that Franklin had

previous convictions for drug and weapon offenses.

Hall spotted Franklin’s car driving through Indianapolis

later that same evening. While following him, Hall observed that Franklin’s car was traveling forty miles per

hour in a thirty-five zone, and that the car made a lane

change without signaling. Having witnessed these two

traffic offenses, Hall made a traffic stop of Franklin’s car.

While approaching the vehicle, Hall noticed the smell of

burnt marijuana coming from the open passenger side

window. After telling Franklin about his traffic infractions,

Hall also noticed something that looked like a marijuana

stem near Franklin’s knee. Hall asked Franklin to get out

of his car and had him stand near the trunk. Franklin, who

had been driving, denied having any drugs or guns in

the car. When Franklin kept reaching near his pocket
No. 06-4109 3

despite Hall’s warnings that he not do that, Hall

handcuffed Franklin and had him sit on the curb. About

this time, Hall’s back-up, Officer Brady Ball, arrived. After

Franklin’s passenger, James Wright, refused to cooperate

with instructions from the officers, Ball removed him

from the car and placed him in handcuffs.

Suspicious of Franklin’s denials that the car contained

any drugs, Hall retrieved his drug sniffing dog, Bubba

Deuce, from his patrol car. The dog alerted near the

driver’s side door. Officer Hall then proceeded to conduct a search of the Impala. While examining the interior

of the car, Hall noticed that Franklin had placed a number

of air fresheners underneath the dashboard of his car;

knowing from his experience that this was often used to

mask the odor of drugs, Hall searched around the dash.

He ultimately discovered bags containing over 270 grams

of crack cocaine in the fuse box panel on the right side

of the dashboard.

According to the police, Franklin then made incriminating comments about the crack cocaine seized from

his car while sitting in the back of a police squad car. At

the station, Franklin said in a monitored phone call that

the police missed a semiautomatic handgun that he

had hidden inside the dashboard of the Impala. After

obtaining a search warrant, the police seized the gun

from the car.

On December 21, 2005, Franklin was charged with

possession with intent to distribute in violation of

21 U.S.C. § 841(a)(1) and 841(b)(1)(A)(iii); carrying a

firearm during a drug trafficking crime in violation of
4 No. 06-4109

18 U.S.C. § 924(c)(1); and unlawful possession of a firearm

by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

Franklin filed a suppression motion on April 7, 2006,

challenging the search of his car. The district court initially

denied this motion on May 12, 2006, but reopened the

question after Franklin supplemented the motion. The

district court held a hearing on the suppression question

in June 2006, ultimately denying the suppression

motion for a second time after the hearing.

On July 28, 2006, Franklin entered a conditional plea of

guilty to counts one and two of the indictment, the possession with intent to distribute charge and the use of a

firearm in a drug trafficking crime charge. Franklin reserved the right to appeal the district court’s denial of his

suppression motion. On October 5, 2006, Franklin filed

a second motion to re-open the suppression issue, and

the district court held a second hearing and again

denied the motion. On November 17, 2006, Franklin was

sentenced to 300 months imprisonment and ten years

of supervised release, along with a fine of $1,000. This

appeal follows.

II. Discussion

A. Whether the indictment was defective with respect

to the first count, in that it failed to charge that

the firearm was used “in relation” to a drug trafficking crime.

Franklin first challenges the sufficiency of his indictment,

arguing that it fails to charge an essential element of
No. 06-4109 5

§ 924(c)(1). That statute provides criminal penalties for

anyone who carries a gun “during and in relation to any

crime of violence or drug trafficking crime . . .” 18 U.S.C.

§ 924(c)(1). Franklin’s indictment stated only that he

carried a firearm “during a drug trafficking crime.” At

issue, then, is whether the indictment is insufficient

because it eliminated the phrase “in relation to.”

Franklin did not object to the indictment in the district

court. Consequently, in this court the indictment “is

immune from attack unless it is so obviously defective

as not to charge the offense by any reasonable construction.” United States v. Smith, 223 F.3d 554, 571 (7th Cir.

2000) (internal quotation marks and citations omitted).

Moreover, this court will allow Franklin to withdraw the

plea on the basis that it is obviously defective only if

he shows that accepting the plea under the deficient

indictment was plain error by the district court. United

States v. Harvey, 484 F.3d 453, 455 (7th Cir. 2007).

Franklin argues that since he was charged under the

portion of § 924(c)(1) that makes it a crime to carry a

gun during and in relation to a drug trafficking crime, the

“in relation to” portion of the statute is an essential element that must be charged in the indictment. He argues

that the omission of the phrase made the indictment

so deficient that he was unaware of the charges to which

he was pleading guilty. The government concedes that

the indictment was not perfect, and should have used

the phrase “in relation to” rather than just “during” a

drug trafficking crime. However, the government argues

that the indictment is constitutionally sufficient insofar
6 No. 06-4109

as it made Franklin aware of the statute under which

he was being charged and the way in which he violated

the statute.

All parties agree that the indictment should have said

that Franklin carried the firearm “during and in relation

to” a drug trafficking offense. However, this circuit does

not require that a particular word or phrase always be

used when charging an offense in an indictment; rather,

this circuit has held that “[i]n determining whether an

essential element of the crime has been omitted from the

charge, courts will not insist that any particular word or

phrase . . . be used. The element may be alleged in any

form which substantially states it.” United States v.

Weatherspoon, 581 F.2d 595, 600 (7th Cir. 1978). The indictment here is flawed, but not so flawed that it merits

reversal; the count of the indictment that is in question

gave Franklin the date and place at which the offense

occurred, identified the handgun that he carried, and cited

the statute under which he was charged. This circuit has

previously held, with respect to § 924(c)(1), that the

recitation of those facts is sufficient to give the

defendant notice of the statute in question and the

conduct that the government alleges ran afoul of the

statute. Harvey, 484 F.3d at 457. We thus cannot find that

an indictment that listed the statute under which

Franklin was charged and that provided specifics about

the predicate crime and the conduct that ran afoul of the

statute was so defective that it does not charge a violation of the statute under any reasonable construction.

Nor do we find that the district court abused its discretion by accepting Franklin’s guilty plea.
No. 06-4109 7

B. Whether the defendant’s guilty plea was entered

knowingly and voluntarily.

Franklin next argues that his guilty plea was not entered

knowingly and voluntarily, because neither the plea

colloquy nor the plea agreement adequately set forth all

of the elements of a violation of § 924(c)(1). Franklin did

not seek to withdraw his guilty plea in the district court.

This court will thus examine the record below only for

plain error that seriously affected either the fairness, the

integrity, or the public reputation of the prior proceeding.

United States v. Vonn, 535 U.S. 55, 63 (2002).

Franklin argues that his plea was not knowing and

voluntary because neither the district court, during the

Rule 11 plea colloquy, nor the plea agreement, adequately

spelled out the “in relation to” element of § 924(c)(1). He

argues that his case is similar to United States v. Bradley,

381 F.3d 641, 645 (7th Cir. 2004), in which this court

determined that a guilty plea was not knowing and

voluntary because the defendant did not receive adequate notice of the elements of § 924(c)(1). He also cites

United States v. Seesing, 234 F.3d 456, 462 (9th Cir. 2000), a

Ninth Circuit case in which the court determined that a

guilty plea was not knowing or voluntary because the

defendant was unaware of the “in relation to” element of

the offense.

The government argues in response that the plea colloquy adequately demonstrated Franklin’s understanding

of the charges against him. Additionally, at the plea

hearing, the government presented testimony from DEA

Officer Paul Buchman, who testified to the circumstances
8 No. 06-4109

of Franklin’s arrest, the amount of crack cocaine found

in his car, and the monitored phone call in which

Franklin talked about the police missing the Ruger handgun that he had kept in the car while transporting the

drugs. The government also argues that the discovery of

the gun and the drugs in the same part of the car (under

the dashboard, while the drugs were found in a fuse box

panel on the side of the dashboard) was sufficient to

establish that the firearm was carried during and in

relation to the drug trafficking crime.

Finally, the government points out that Franklin stipulated that there was an adequate factual basis for every

element charged in the indictment. His counsel’s exact

stipulation, taken from the plea proceeding, is that

“Mr. Franklin does not agree with all of the details of the

factual basis, but he does stipulate that there is a factual

basis for each element charged in both count 1 and count

2 of the indictment.” Change of Plea Tr. at 38-39. Franklin

argues in his reply brief that this stipulation is meaningless because it only stipulated to the elements contained in the indictment which, he claimed before, was

defective.

This court uses a totality of the circumstances approach

when evaluating whether or not a defendant voluntarily

made a guilty plea. “Under this approach, we consider

(1) the complexity of the charge; (2) the defendant’s level

of intelligence, age, and education; (3) whether the defendant was represented by counsel; (4) the judge’s inquiry

during the plea hearing and the defendant’s statements;

and (5) the evidence proferred by the government.” United

States v. Fernandez, 205 F.3d 1020, 1025 (7th Cir. 2000).
No. 06-4109 9

In this case, the charges were not especially complex, and

the charge at issue was simply that the gun was present

while Franklin was transporting crack cocaine and was

connected with the transport of crack cocaine. Franklin

stated at the plea hearing that he was thirty years old

and had completed the eleventh grade; while Franklin did

not have extensive formal education, he also stated that

he reads fiction, non-fiction, and law books, and so it

was not plain error for the district court to conclude that

he was capable of understanding the charges to which

he was pleading. The district court inquired at the plea

hearing into Franklin’s understanding of the penalties

that he would face by pleading guilty to count two and

received the stipulation above that there was a factual

basis for the elements charged in the indictment. Franklin’s

effort to minimize the import of this stipulation is not

especially helpful to him; while it is true that the indictment in this case was far from perfect, the citation to

the statute in count two should have informed Franklin

about the elements of the crime to which he was

pleading guilty. It was not an error, then, for the district

court to accept this as a stipulation to the elements of

§ 924(c)(1). Finally, the government’s presentation of the

factual basis for the plea, while brief, established that the

crack cocaine and Ruger pistol were found in the same

part of Franklin’s Impala and that Franklin had both the

drugs and the gun in the car at the same time. That proximity is sufficient to establish a violation of § 924(c)(1). See

United States v. Molina, 102 F.3d 928, 932 (7th Cir. 1996); see

also United States v. Pike, 211 F.3d 385, 389-90 (7th Cir. 2000).
10 No. 06-4109

Finally, Franklin’s citation to United States v. Bradley is

not much help in this case. In Bradley, the defendant was

charged with a § 924(c) offense for carrying a firearm

during a drug trafficking crime and attempted to withdraw his guilty plea after the government only produced

evidence that he had been guilty of possession of marijuana, which is not a drug trafficking crime and thus not

a predicate to § 924(c). Bradley, 381 F.3d at 644. Thus,

while Bradley does indicate that this court will allow a

defendant to withdraw a guilty plea when the district

court, the government, and the defendant all seem to

be confused about the necessary elements of § 924(c), it is

not much help to the defendant in a case where there

was adequate proof of a predicate drug trafficking crime

and the government demonstrated that a handgun was

used during and in relation to that drug trafficking offense.

C. Whether the district court properly denied the suppression motion.

Franklin next argues that Officer Hall’s traffic stop was

pretextual and that the district court thus improperly

denied Franklin’s suppression motion. This issue is

entirely a protective appeal, as Franklin’s counsel plans to

seek a writ of certiorari asking the Supreme Court to

reconsider its decision in Whren v. United States, 517 U.S.

806 (1996). Franklin argues that the decision in Whren

now requires reversal because of empirical evidence

that the police use racial profiling techniques when determining whether or not to conduct a search pursuant to a

traffic stop, and thus that minority drivers are much
No. 06-4109 11

more likely than non-minorities to be subjected to a full

search pursuant to a traffic stop.

The government argues that the district court properly

found that the search was supported by probable cause.

First, the government argues that the probable cause

determination in this case largely came down to a credibility determination between the witnesses for the

defense and the arresting officer, and that the district

court credited Officer Hall’s testimony. On matters like

this, “the district court’s choice of whom to believe is

almost never vulnerable to a finding of clear error.” United

States v. Alvarado, 326 F.3d 857, 862 (7th Cir. 2003); see also

United States v. Thornton, 197 F.3d 241, 247 (7th Cir. 1999).

Second, the government argues that Officer Hall made a

proper traffic stop; Franklin admits he does not

remember how fast he was going and Officer Hall

testified that he witnessed Franklin commit two traffic

violations. Hall also had probable cause to search Franklin’s vehicle for drugs because he could smell marijuana

smoke through an open window as he approached the

car. This probable cause determination was bolstered

by his use of a drug-sniffing dog, who alerted near the

front of the car. A police officer who smells marijuana

coming from a car has probable cause to search that car.

See United States v. Wimbush, 337 F.3d 947, 951 (7th Cir.

2003). And a police officer’s use of a drug-sniffing dog

around the exterior of a car is not an illegal search under

the Fourth Amendment. Illinois v. Caballes, 543 U.S. 405,

409 (2005).

Franklin’s argument that the stop was pretextual and

thus unconstitutional is not really addressed to this court;
12 No. 06-4109

it is addressed to the Supreme Court. Whren has been

reaffirmed by Arkansas v. Sullivan, 532 U.S. 769 (2001), in

which the Court reiterated that it would not entertain

arguments based on the “real” motivations behind otherwise lawful traffic stops. Id. at 771-72. The Court’s recent

Fourth Amendment jurisprudence offers observers little

reason to believe that the justices wish to revisit this

decision. See, e.g., Virginia v. Moore, No. 06-1082 (Sup. Ct.

Apr. 23, 2008), Atwater v. Lago Vista, 532 U.S. 318

(2001). Regardless, we need only apply Supreme Court

precedent to determine that Officer Hall made a lawful

traffic stop of Franklin’s car and had probable cause to

search the car for narcotics. We thus affirm the district

court’s decision on the motion to suppress.

D. Whether the district court denied Franklin his right

to counsel at two hearings in which defense counsel

moved to withdraw.

Franklin argues that the district court denied him his

right to counsel by not appointing a separate attorney to

appear on his behalf at two hearings in which his

defense counsel moved to withdraw. The first hearing

occurred when Franklin’s retained counsel, Linda Wagoner, made a motion to withdraw from her representation. The district court conducted a hearing on this motion

on July 10, 2006, with only defense counsel and Franklin

present. The district court granted the motion and appointed William Marsh from the Community Defender to

represent Franklin. In October 2006, Franklin, through

Marsh, requested that the district court appoint new
No. 06-4109 13

counsel, after Marsh refused to file a motion to suppress

that Franklin had prepared. The district court denied

the motion because the disagreement did not threaten

Marsh’s ability to serve as an effective advocate. Franklin’s

position is that at both hearings he was essentially forced

to represent himself, and that the district court did not

conduct an investigation into his competence to do that

(Franklin cites Faretta v. California, 422 U.S. 806 (1975), on

this point).

Franklin admits that there is no case defining a hearing

on a defense counsel’s motion to withdraw as a “critical

stage” of the proceeding entitling a defendant to counsel. Before taking up the question of whether a withdrawal

motion is a critical stage, it is worth noting that at no time

was Franklin without counsel; when the district court held

the first hearing on Wagoner’s motion to withdraw,

Wagoner was still serving as Franklin’s counsel and was

only allowed to withdraw after the hearing, at which point

the district court gave Franklin a choice between having

counsel appointed or hiring another attorney. Marsh never

withdrew as Franklin’s counsel. Thus, aside from the brief

interval between Wagoner’s withdrawal and Marsh’s

appointment that is not at issue here, Franklin had representation for the entire proceeding.

Franklin is apparently arguing that he was entitled to

additional counsel to represent him at the hearings on

his own defense counsel’s motion to withdraw. Franklin

cites no authority for this interpretation of his Sixth

Amendment right to counsel. Nor, objectively, does a

defense counsel’s motion to withdraw qualify as a
14 No. 06-4109

critical stage of the proceedings for Sixth Amendment

purposes, as the proceeding is simply not the sort of triallike confrontation between the accused and the state

that gives an accused a Sixth Amendment right to counsel

(or, in this case, additional counsel). See United States v.

Ash, 413 U.S. 300, 312 (1973) (reviewing the historical

“expansion of the counsel guarantee to trial-like confrontations . . . ”); see also United States v. Jackson, 886 F.2d

838, 843 (7th Cir. 1989) (critical stage is one where “absence

of defense counsel or lack of advice may derogate from

the accused’s right to a fair trial.”). Indeed, the attorneys

for the government were asked to leave the courtroom

during the hearing on Wagoner’s motion to withdraw,

and while the government was present for the colloquy

on the motion regarding Marsh’s appointment, the government was not involved in the discussion of that motion.

Franklin had the assistance of counsel at all times in the

proceeding below and was not entitled to additional

counsel during the hearings on his own counsel’s motion

to withdraw. Accordingly, we find no denial of

Franklin’s Sixth Amendment rights during the proceedings below.

E. Whether the district court properly considered the

scope of the search of Franklin’s car in their

motion to suppress.

Franklin next argues that Hall’s search of his car went

beyond the scope of probable cause because smelling an

odor of marijuana smoke would not give a police officer

probable cause to search for drugs in the dashboard or
No. 06-4109 15

other compartments of the car. The factual support for

this argument rests in large part on Franklin’s claim that

the police conducted multiple searches of his car, a claim

that the district court heard and decided not to credit. The

legal support for this claim is derived from a Tenth

Circuit case in which that court held that a police officer

would not have probable cause to search the trunk of a

car simply because he smelled marijuana smoke in the

passenger compartment. United States v. Nielsen, 9 F.3d

1487, 1491 (10th Cir. 1993). Franklin’s only citation to a

case in this circuit is to United States v. Garcia, 897 F.2d

1413, 1419 (7th Cir. 1990), a case that held that dismantling

door panels could not be justified by consent to search

but could be justified by probable cause (and was

justified by probable cause, in that case).

In this case, the district court credited Hall’s testimony

that he smelled marijuana smoke in the passenger compartment of Franklin’s car and that a drug-sniffing dog

alerted to the presence of narcotics from outside the car.

As discussed earlier, both would give the police probable

cause to search the interior of the passenger compartment

for drugs. This circuit has held that the search can go as far

as probable cause extends, even into separate containers

or the trunk of the car. United States v. Ledford, 218 F.3d 684,

688 (7th Cir. 2000) (citing Wyoming v. Houghton, 526 U.S.

295, 300-01 (1999) and United States v. Ross, 456 U.S. 798,

820-21 (1982)). In this case, the odor of marijuana would

provide an officer with probable cause to search the

passenger compartment and containers within the passenger compartment, and the police dog’s alerting to the

presence of narcotics would provide additional probable
16 No. 06-4109

cause to search for narcotics. Accordingly, the search here

did not exceed the scope of probable cause, and we affirm

the district court’s ruling on this part of the suppression

issue.

F. Whether the mandatory minimum sentences in

21 U.S.C. § 841 are constitutional.

Franklin next argues that the mandatory minimum

sentences established by Congress in § 841 are an unconstitutional deprivation of his due process rights. He argues

that the district court should have been free to depart from

the mandatory minimum and consider the factors set forth

in 18 U.S.C. § 3553 of the sentencing guidelines in imposing

a lesser sentence.

This issue, as the government points out, was raised for

the first time on appeal, and so is waived. But even assuming that Franklin can make this argument here, the Supreme Court and this court have consistently held that

mandatory minimum sentences are not a violation of a

defendant’s due process rights. Chapman v. United States,

500 U.S. 453 (1991); United States v. Velasco, 953 F.2d 1457,

1476 (7th Cir. 1992). Franklin does not argue that his case

qualifies under exception to the mandatory minimum

sentence for persons offering “substantial assistance”

during a police investigation, as set forth in § 3553(e). Nor

does he qualify under the safety valve exception to the

mandatory minimum set forth in § 3553(f), since, among

other disqualifying factors, he possessed a firearm in

connection with his drug trafficking offense. Accordingly,

we affirm the sentence of the district court.
No. 06-4109 17

G. Whether the defendant’s prior felony drug conviction needed to be pleaded in the indictment

and proven to a jury.

Franklin finally argues that the prior convictions presented to the court pursuant to 21 U.S.C. § 851 should have

been alleged in the indictment and presented to the jury.

He argues that this was the position of the Supreme

Court in Almendarez-Torres v. United States, 523 U.S. 224

(1998), and of Justice Thomas’ concurring opinion in

Apprendi v. New Jersey, 530 U.S. 466, 499 (2000).

Again, this challenge to the indictment was not

presented to the district court but assuming arguendo

that Franklin can present it to this court, the Supreme

Court’s opinion in Almendarez-Torres specifically rejected

the argument that a prior conviction triggering a mandatory minimum sentence is an element of an offense

that must be proved to a jury. Almendarez-Torres, 523 U.S.

at 247. Franklin correctly argues that Justice Thomas’

concurring opinion in Apprendi treated a prior conviction

as an element that a prosecutor must present to the jury,

but this was not a majority opinion, and the opinion of

the court holds that prior convictions need not be charged

in an indictment or presented to a jury. Apprendi, 530

U.S. at 490. We affirm the district court’s sentence in this

case.
18 No. 06-4109

III. Conclusion

For the foregoing reasons, we AFFIRM the judgment of

the district court.

10-27-08