In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-3743

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

IVY GENE BOWLIN,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 06-CR-40011-JPG—J. Phil Gilbert, Judge.

____________

ARGUED SEPTEMBER 24, 2007—DECIDED JULY 17, 2008

____________

Before POSNER, FLAUM, and WOOD, Circuit Judges.

WOOD, Circuit Judge. This appeal is before us because

Ivy Gene Bowlin was frustrated in his attempt to withdraw his plea of guilty to a three-count indictment that

charged violations of the federal drug laws. If he cannot

succeed in withdrawing the plea, Bowlin would like

his sentence corrected. He argues that the district court

selected the wrong sentence because it erred in its application of the U.S. Sentencing Guidelines, both in determining his relevant conduct and in applying the enhancement for use of a minor in committing an offense. He

also claims that the Government should not have been
2 No. 06-3743

permitted to include drug quantities in his indictment as

a basis for enhancing his sentence. Finding no error, we

affirm the district court in all respects.

I

On February 8, 2006, a federal grand jury returned a

three-count indictment against Bowlin, charging him

with conspiracy to manufacture and distribute 50 grams or

more of a mixture and substance containing methamphetamine and with two counts of distributing methamphetamine, each on a different date in late December of

2005, all in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B),

and 846. On May 4, 2006, Bowlin pleaded guilty to all

three counts. During this proceeding, the district court

placed Bowlin under oath and, prior to accepting the plea,

gave Bowlin the advice required by FED. R. CRIM. P. 11. As

it went through the advice required by Rule 11(b), the

district court frequently asked Bowlin whether he understood what was being said and whether he had any

questions. Each time, Bowlin replied that he did understand, and that he had no questions. Part of this exchange went as follows:

THE COURT: Do you understand you can persist in

a plea of not guilty and have a trial, but if you plead

guilty to these charges, you are waiving your right

to a trial and there will be no trial, and you will be

sentenced as if you were found guilty by a jury. Do

you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: It’s my understanding you wish to

enter into an open plea to these charges; is that correct?
No. 06-3743 3

THE DEFENDANT: Yes.

THE COURT: An open plea of guilty?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Have you talked about the sentencing guidelines and how they might apply in your

case?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Do you understand this Court cannot

determine what guideline applies to your case until

it has received and reviewed a Presentence Investigation Report. That the guidelines are advisory now,

and the Court will consider those guidelines as well as

factors enumerated in 3553(a) of Title 18 when it

sentences you. Do you understand that?

THE DEFENDANT: Yes, Your Honor.

The prosecution then laid out the factual basis for its case;

the court asked Bowlin whether those representations

were correct; and Bowlin confirmed that they were. The

court then asked Bowlin how, with respect to each count,

he wished to plead; Bowlin replied “Guilty.” In response

to further questioning, Bowlin confirmed that no threats

or promises had been made to him in an effort to induce

the guilty plea and that he was acting freely and voluntarily. Satisfied with Bowlin’s responses, the court accepted

the plea and set a sentencing date of August 3, 2006.

On June 30, 2006, the probation officer completed a

Presentence Investigation Report (“PSR”) for Bowlin. The

record reflects that Bowlin received the PSR in early July

of 2006, roughly one month before his August 3 sentencing date. Like many defendants before him, Bowlin

was unpleasantly surprised to discover that the PSR
4 No. 06-3743

delved into not only the charged offenses, but also additional drug transactions that the Government had learned

about from a confidential source. Though the Government had acquired this information months before, the

prosecution had not disclosed it to Bowlin or to his counsel, because the identity of the informant, Tonya Stone,

remained confidential during those earlier phases of the

proceedings. Thus, only after reading the PSR did Bowlin

learn that Stone had told the Government that from

November 2001 until spring of 2003, she was getting two

to five grams of methamphetamine from Bowlin “every

day that [she] was awake.” Stone said that she and Bowlin

engaged in a daily trade, in which she gave him

pseudoephedrine pills in exchange for methamphetamine. Though these were not the transactions described

in the distribution counts of Bowlin’s indictment, they

overlapped with the period of the charged conspiracy. The

PSR therefore included the 1.3 to 1.8 kilograms of methamphetamine that Bowlin had distributed to Stone as relevant conduct under U.S.S.G. § 1B1.3.

The addition of this additional quantity naturally had a

significant impact on the sentence recommended in the

PSR. Disturbed, Bowlin promptly called his appointed

counsel, Daniel Goggin, wanting to discuss this turn of

events. But Goggin was preparing for trial in another

case, and because he believed “there wasn’t anything

unusual about [Bowlin’s] complaints” regarding the

PSR, Goggin did not manage to meet with Bowlin to

discuss the PSR until just a couple of days before the

August 3 sentencing hearing. Realizing then that Bowlin’s

distress over the previously undisclosed witness did

raise a significant issue, Goggin immediately drafted

objections to certain portions of the PSR. He filed those

objections on the day of the initial sentencing hearing,

August 3, 2006. Goggin admitted to the court that he
No. 06-3743 5

had “no good excuse” for such a tardy response, but he

asked the court to consider the objections nonetheless,

explaining that Bowlin’s right to due process ought not

suffer on account of his lawyer’s delay. After the Government conceded that it had inadvertently failed to

disclose the statement to Bowlin at a more appropriate

time, the district court granted Bowlin a continuance of

three weeks, so that Bowlin and his counsel could prepare for the hearing in light of the new information.

When the sentencing hearing reconvened three weeks

later, on August 24, 2006, the district court began by

confirming with Bowlin that Bowlin had received the

PSR and had an opportunity to review and discuss it

with his counsel. Bowlin also acknowledged his awareness of the objections Goggin had filed and stated that

he had no further objections to the PSR. At that point,

Goggin interjected that it was “surpris[ing]” and “unfair”

for the Government to spring the previously undisclosed

testimony from Stone and the additional 1.3 to 1.8 kilograms of methamphetamine on Bowlin so late in the

game. At that point, the district court explicitly offered

Bowlin the opportunity to withdraw his guilty plea:

THE COURT: Well, does he want to withdraw his

plea and go to trial?

MR. GOGGIN: Just one second, Judge. Let me ask

him that. At this point, he doesn’t Your Honor. 

THE COURT: He doesn’t?

MR. GOGGIN: Right.

THE COURT: Are you wanting a continuance of this

sentencing hearing so you can subpoena witnesses?

MR. GOGGIN: That’s correct, Your Honor.
6 No. 06-3743

After this exchange, the district court allowed the Government to present the testimony of its witnesses. As Bowlin

had requested, the court then adjourned the hearing

until October 3, 2006, to give Bowlin time to subpoena

his own witnesses and arrange for their attendance.

Only when the proceedings reconvened on October 3,

2006, did Bowlin (through counsel) make his oral motion

to withdraw his guilty plea. When the court asked whether

he was ready to proceed, the following exchange ensued:

MR. GOGGIN: Your Honor, I’m ready to do that

[proceed], but I would have a request for what it’s

worth. The last time we were in court, if you recall, you

asked me if [my] client wanted to withdraw his plea,

and he said no, he was under shock with everything

else that he was seeing in his [PSR]. But he and

I have spent a lot of time together in the last couple

weeks, and he’s come to the conclusion if that’s still

available to him, he will do that. If not we will finish

the hearing.

THE COURT: Mr. Goggin —

MR. GOGGIN: I want to get this case over, too,

Judge. He was caught off guard by that last time.

THE COURT: How many weeks ago? When was this

last hearing?

MR. NORWOOD [for the prosecution]: Last time we

were here, actually, in court?

THE COURT: Yes. If he wanted to withdraw his plea,

file something.

PROBATION OFFICER MILLER: I believe it was

August 24th. 
No. 06-3743 7

THE COURT: For the sake of the record, this is

October.

MR. GOGGIN: I know. And I can’t say the exact

dates I was up in Mt. Vernon to see him. We discussed

it thoroughly and I said, “If you come to that conclusion, please let me know before trial.” And today

is when I talked to him again. I apologize for all of

that. It’s his wish, but if it’s not granted, we’re ready

for the hearing.

THE COURT: Well, if you’re making an oral motion

to withdraw your plea, the oral motion is denied.

MR. GOGGIN: Okay.

The court explained that Bowlin had offered no basis for

withdrawing his plea and that he had already had

plenty of time to decide what to do. Observing that a

defendant cannot decide to change his plea simply because “he doesn’t like the way the sentencing hearing is

going or the way the presentence report came out,” the

district court underscored the fact that the previously

undisclosed statement of the confidential source had no

bearing on guilt or innocence, but instead mattered only

for sentencing. The district court then proceeded with

the remainder of the sentencing hearing.

After hearing Bowlin’s evidence, the court began by

adopting the PSR as its own findings. It specified that

the offense involved 1.5 kilograms to 5 kilograms of a

mixture and substance containing methamphetamine,

which supported a base offense level of 34 for purposes of

the Sentencing Guidelines. The court then added two

more points under § 3B1.4 for use of a minor to commit

the offense and subtracted three for acceptance of responsibility, for a final offense level of 33; Bowlin’s criminal
8 No. 06-3743

history category was VI. Taking into account the advisory

Guidelines range, the parties’ recommendations, and the

factors set forth in 18 U.S.C. § 3553(a) (including especially

Bowlin’s extensive criminal history), the court sentenced

Bowlin to 360 months’ imprisonment, five years’ supervised release, a $750 fine, and a $300 special assessment.

Though the prison term of 360 months was above the

advisory Guidelines range, the district court explained

that the additional time was appropriate because of

Bowlin’s “abysmal” criminal record (which earned him

24 criminal history points, well above the number

needed for category VI) and the danger he posed to the

public. The court noted that the sentence was still below

the statutory maximum of 480 months.

II

We first address Bowlin’s claim that the district court

erred in denying his belated motion to withdraw his

guilty plea. A defendant’s right to withdraw a plea of

guilty before sentencing is not absolute, “although the

court may allow him to do so if he has a ‘fair and just

reason’ for doing so.” United States v. Carroll, 412 F.3d 787,

792 (7th Cir. 2005); FED. R. CRIM. P. 11(d)(2)(B). This

court reviews a district court’s denial of a motion to

withdraw a plea of guilty for an abuse of discretion. We

have cautioned that a “defendant seeking to [withdraw

a guilty plea] faces an ‘uphill battle’ after a thorough

Rule 11 colloquy” has already occurred. United States v.

Bradley, 381 F.3d 641, 645 (7th Cir. 2004) (quoting United

States v. Bennett, 332 F.3d 1094, 1099 (7th Cir. 2003)); see

also United States v. Logan, 244 F.3d 553, 558 (7th Cir. 2001)

(“The presumption of verity [of a defendant’s statements

in pleading guilty] is overcome only if the defendant
No. 06-3743 9

satisfies a heavy burden of persuasion.” (brackets in Logan)

(internal quotation marks omitted)).

One “just and fair reason” for withdrawing a defendant’s plea of guilty is that the plea was not voluntarily

made. United States v. Ellison, 835 F.2d 687, 692-93 (7th Cir.

1987). As the Government points out, however, this

principle does not override the presumption that the

record created by a Rule 11 inquiry is true. See, e.g.,

United States v. Trussel, 961 F.2d 685, 689 (7th Cir.

1992).The exchanges reproduced above show that the

district court engaged in an extensive Rule 11 colloquy

with Bowlin, thoroughly informing him of his rights and

ensuring that he understood the stakes involved in his

plea. Even so, Bowlin now urges that his plea was not

“intelligent and voluntary” because, not knowing about

Stone’s testimony when he pleaded, he was mistaken

or misinformed about the “reasonable variables that

might cause his possible sentence to fluctuate within

predictable parameters.”

Bowlin sees his case as falling squarely within the

framework of United States v. Bradley, supra, in which

we found that a guilty plea was not “intelligent and

voluntary” because of a mutual mistake about the essential elements of the charged offense. As a result of the

mistake, “the facts to which Mr. Bradley admitted, both in

the plea agreement and at the Rule 11 colloquy, did not

establish the § 924(c) offense with which he was charged.”

381 F.3d at 646. We therefore could “not say Mr. Bradley

fully understood the nature of the charge to which he

admitted guilt”; his plea was not knowing and voluntary,

and the district court’s denial of his request to withdraw

it was improper. Id. at 645-46.
10 No. 06-3743

We are not persuaded by Bowlin’s effort to squeeze

his case into Bradley’s result. A mistake about the substantive offense goes to the heart of the guilty plea; a

mistake about the possible sentence—especially when

the defendant has been warned that the judge will determine the sentence based on information collected by

the Probation Office and at any sentencing hearing—does

not. We have repeatedly held that “the fact that a defendant underestimated his sentence when entering his

plea is not a fair and just reason to permit him to withdraw that guilty plea.” United States v. Gilliam, 255 F.3d

428, 433-34 (7th Cir. 2001) (quoting United States v. Knorr,

942 F.2d 1217, 1220 (7th Cir. 1991)).

The district court was also entitled to take into account

the timing of Bowlin’s request. As we noted earlier,

Bowlin received the PSR in early July of 2006, about one

month before the initially scheduled date of his sentencing. When Bowlin’s counsel requested additional time to

review the PSR in light of the new information about the

confidential source, the district court obliged with a threeweek continuance. On August 24, when the initial sentencing hearing finally got underway, the district judge on his

own initiative asked counsel if Bowlin wished to withdraw

his plea of guilty, and both Bowlin and the lawyer said no.

The court was entitled to take Bowlin seriously when he

represented that all he wanted was additional time to

subpoena witnesses. The court gave him that time.

Not until the October 3, 2006, proceedings, three months

after Bowlin first received the PSR and learned the critical

information, did Bowlin attempt to withdraw his plea.

Nothing in this chain of events would support a finding

that Bowlin’s plea of guilty was not knowing and voluntary. The district court thus did not abuse its discretion

when it denied Bowlin’s motion to withdraw his plea.
No. 06-3743 11

III

Our rejection of Bowlin’s request to withdraw his plea

means that we must address his challenges to his sentence. He contests both the two-point enhancement under

§ 3B1.4 of the Sentencing Guidelines for use of a minor

to commit a crime, and the district court’s calculation of

relevant conduct under § 1B1.3. We examine each of

these points in turn, reviewing the district court’s application of the Sentencing Guidelines de novo and its factual

determinations for clear error. United States v. Warren,

454 F.3d 752, 762 (7th Cir. 2006).

A

Section 3B1.4 authorizes a two-level enhancement where

the defendant “used or attempted to use” a minor to

commit the offense. Application Note 1 further specifies

that the phrase “used or attempted to use” includes all of

the following: “directing, commanding, encouraging,

intimidating, counseling, training, procuring, recruiting,

or soliciting.” In addition, “[a]s this Court held in United

States v. Ramsey, ‘use’ requires the affirmative involvement of the minor in the crime.” United States v. Hodges,

315 F.3d 794, 802 (7th Cir. 2003) (citing Ramsey, 237 F.3d

853, 859 (7th Cir. 2001)). “Use” of a minor within the

meaning of this section can be established both “when the

minor is a partner in the criminal offense . . . as well as

when the minor’s role is subordinate to that of the criminal defendant.” Id. (alteration in Hodges) (quoting

Ramsey, 237 F.3d at 859). We have upheld the application

of this enhancement even when the defendant’s “use” of

the minor is minimal. See, e.g., United States v. Vivit, 214

F.3d 908, 920 (7th Cir. 2000) (in a mail fraud and
12 No. 06-3743

false claims case, applying the minor enhancement to

defendant, a physician, who had minor patients (ages 16,

9, and 7) sign attendance sheets that fraudulently inflated

the number of visits they had paid to defendant).

The district court did not clearly err when it found that

Bowlin’s use of a minor warranted the enhancement. The

record shows that Kimberly Carlton, 17 years old and

living with Bowlin as his girlfriend during relevant times

of his offenses, assisted Bowlin in his manufacture of

methamphetamine. At Bowlin’s sentencing hearing,

Carlton testified that she often assisted Bowlin in his

makeshift meth-lab (located in the attic of the residence

they shared) by cleaning jars “whenever [Bowlin] needed

them cleaned,” and that, at Bowlin’s request, she also

frequently fetched various ingredients needed for the

manufacture of methamphetamine in their home. Carlton

testified that on one occasion, Bowlin allowed her to

assist him in the actual manufacturing process by letting

her complete (while he watched) the final stage of “smoking off” a liquid into powdered methamphetamine.

Considering this testimony, which it found credible, the

district court concluded: “There’s no question that

Kimberly Carlton was a minor at the time. This defendant

used her to assist in committing the offense. Whether

it’s one time or ten times or a hundred times doesn’t make

any difference. One time’s enough to do it.”

Bowlin’s final argument that the enhancement is improper because Carlton offered to assist him is without

merit, for it does not negate his conscious decision to

accept such assistance. The law presumes that minors need

more protection than adults. Their consent to a wide

range of things is thus ineffective, whether it is to the

signing of a contract, or to sexual relations, or to assist-
No. 06-3743 13

ance with drug-manufacturing operations. The enhancement for use of a minor was thus properly applied in

computing Bowlin’s advisory Guidelines range.

B

Bowlin’s second sentencing argument challenges the

district court’s determination of his relevant conduct. At

issue is the court’s inclusion, as relevant conduct, of the

substantial amounts of methamphetamine that Stone

claimed Bowlin gave her in exchange for precursor ingredients. Bowlin does not directly dispute the amounts

that Stone mentioned; he argues instead that his transactions with Stone were not “part of the same course of

conduct” to which he pleaded guilty, and therefore they

should not have been included for purposes of his sentence.

“In assessing whether offenses are part of the same

course of conduct, we look to whether there is a strong

relationship between the uncharged conduct and the

convicted offense, focusing on whether the government

has demonstrated a significant similarity, regularity, and

temporal proximity.” United States v. Ortiz, 431 F.3d 1035,

1040 (7th Cir. 2005) (internal quotation marks omitted). In

this case, the conspiracy to which Bowlin pleaded guilty

lasted from December 2002 through January 2006. The

transactions described by Stone started in November

2001 and went through March or April 2003. Bowlin argues

that the four months or so of overlap (from December 2002

to March 2003) between his daily dealings with Stone and

the charged conspiracy are insufficient to form the necessary link between the uncharged conduct and the charged

conduct. He also asserts that, because Stone never men-
14 No. 06-3743

tioned Bowlin’s alleged co-conspirators, his dealings

with her were not sufficiently related to the conspiracy

charge. These arguments are unavailing, for it is well

established that relevant conduct can be (and often is)

broader than the conduct underlying the offense of conviction. See, e.g., United States v. Payne, 226 F.3d 792, 796

(7th Cir. 2000). The district court did not err in finding

that the charged conspiracy and the deals with Stone

were sufficiently similar, regular, and temporally proximate to be included in the relevant conduct calculation.

Bowlin’s attempts to shed doubt on the relevant conduct finding by attacking Stone’s credibility also must fail.

Bowlin attempted to impeach Stone during the sentencing hearing, but the district court made an explicit

finding that Stone was credible. We will reverse a district court’s findings on witness credibility only if the

testimony is “incredible as a matter of law,” meaning that

“it must have been either physically impossible for the

witness to observe that which he or she claims occurred,

or impossible under the laws of nature for the occurrence

to have taken place at all.” Ortiz, 431 F.3d at 1039 (internal

quotation marks omitted). Given the standard of review, this line of argument provides no help to Bowlin.

IV

Finally, we turn to Bowlin’s argument that the Government is barred from alleging drug quantities in the indictment that can later serve as grounds for enhancing a

defendant’s sentence. This argument need not detain us

long: there is no such rule. In fact, before a drug quantity

may be used to affect a statutory maximum sentence,

that quantity must be charged in the indictment and proved
No. 06-3743 15

to a trier of fact beyond a reasonable doubt. Apprendi v.

New Jersey, 530 U.S. 466, 488-90 (2000); United States v.

Flagg, 481 F.3d 946, 949-50 (7th Cir. 2007); United States v.

Macedo, 406 F.3d 778, 786 (7th Cir. 2005); United States v.

Mietus, 237 F.3d 866, 874 (7th Cir. 2001). When Bowlin

pleaded guilty, he admitted the facts charged in the

indictment. The court was therefore entitled to take

that quantity into account when it established Bowlin’s

sentencing range.

V

Because we conclude that Bowlin’s plea was knowing,

his sentence reasonable, and his challenge to drug quantities in the indictment meritless, the judgment of the district court is AFFIRMED.

USCA-02-C-0072—7-17-08