In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 01-3558, 01-3559 & 01-3683

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

KAMORUDEEN SOWEMIMO,

ROBERT THOMAS, and

CORNELL GREEN,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 CR 3—Suzanne B. Conlon, Judge.

____________

ARGUED OCTOBER 28, 2002—DECIDED JULY 7, 2003

____________

 Before KANNE, DIANE P. WOOD, and EVANS, Circuit

Judges.

DIANE P. WOOD, Circuit Judge. This appeal comes to

us from three members of a large heroin distribution

organization in Chicago. Cornell Green, the organization’s

mastermind and leader, Robert Thomas, one of his key

supervisors, and Kamorudeen Sowemimo, a Nigerian

heroin importer, were indicted along with twelve other

members of the organization. Green and Sowemimo each

pleaded guilty to conspiracy to possess with intent to

distribute heroin, the first count of a nineteen-count

indictment. Thomas tried his luck before the jury. Green
2 Nos. 01-3558, 01-3559 & 01-3683

and Sowemimo have both appealed various aspects of

their plea agreements and sentences, and Green has

added a challenge to the statute under which he was

convicted. Thomas, who was convicted of conspiracy to

possess with intent to distribute heroin, appeals the district court’s application of the U.S. Sentencing Guidelines in his case. Finding no error in the district court’s

decisions, we affirm in all three cases.

I

Cornell Green headed up an extensive heroin distribution organization from 1993 until he was arrested in

2001. His organization employed street level dealers

whose efforts were overseen by supervisors—also employed

by Green—including co-defendant Robert Thomas. At the

organization’s peak, it was moving approximately 100

grams of heroin a day, for which it was receiving about

$10,000. Green and many members of his organization

were affiliated with the Mickey Cobras street gang, in

which Green held the rank of “King,” the second highest

position in the gang. Green’s gang ties ensured that

his dealers could sell drugs in territory controlled by the

gang.

The heroin that Green’s dealers sold was wholesale, highpurity product imported by Nigerian drug dealers, including co-defendant Kamorudeen Sowemimo. Green bought

heroin from Sowemimo in 100- to 300-gram quantities,

at an average cost of $10,500 per 100 grams. He then

cut the pure heroin with a diluting agent to increase his

profits and make the drugs fit for human consumption.

Green’s heroin was reputed to be superior to comparably

priced drugs on the market. In fact, his reputation for

mixing high quality heroin earned him the nickname “ChefBoy-R-Dee,” or “the Chef,” among Chicago’s heroin users

and dealers.
Nos. 01-3558, 01-3559 & 01-3683 3

Although the exact dates of Thomas’s involvement in

Green’s heroin network are disputed, it appears that

he worked from some time in the summer of 1999 until the

end of that year. Green testified at Thomas’s trial that

Thomas worked for him for seven to eight months. During

this time Thomas worked as a supervisor, a job that

involved handling routine problems among the street

dealers and collecting the proceeds of their drug sales

for Green. On an average day Thomas collected between $5,000 and $6,000 from Green’s various dealers.

He continued to work for Green until some time in early

2000. With the help of his vast network of dealers and

supervisors, Green’s narcotics business flourished. He

amassed an impressive collection of real estate, cars

and luxury items with the profits he earned.

Green’s heroin empire came tumbling down in January

2001, when he was arrested. On May 3, 2001, Green and

fourteen members of his organization were named in a

nineteen-count indictment that charged them with

various narcotics-related offenses. Of the fifteen who

were indicted, all but Green, Thomas and Sowemimo

pleaded guilty long before trial. Green eventually experienced a change of heart, and on June 27, 2001, he entered

a guilty plea to Count I of the indictment and agreed

to cooperate fully with the authorities in exchange for a

government motion for a downward departure from the

Sentencing Guidelines’ mandatory minimum sentence.

Green also agreed to a forfeiture judgment of $1,000,000,

which included various cars and real property obtained

with drug proceeds. A bit later, Sowemimo also decided

to plead guilty to the first count of the indictment. He

did so on July 9, 2001, at the end of the first day of a twoday trial. The following day, Thomas was convicted by

the jury of conspiracy to distribute heroin under 21 U.S.C.

§ 846. The district judge sentenced all three on September

14, 2001. Green and Thomas each received 360-month
4 Nos. 01-3558, 01-3559 & 01-3683

sentences and Sowemimo was sentenced to 168 months

in prison.

II

The appellants raise several arguments for our consideration. Because Green and Sowemimo pleaded guilty

and have no desire to withdraw those pleas, their arguments on appeal are limited to challenges to the constitutionality of the statute under which they were convicted

and to the sentences they received.

A

Green challenges the constitutionality of 21 U.S.C.

§ 841(b), on the ground that it is inconsistent with the

Supreme Court’s decision in Apprendi v. New Jersey, 530

U.S. 466 (2000). This is an argument that we may easily

dispose of. First, although the government failed to point

this out, Green’s guilty plea did not reserve this as an

argument for appeal, and it is thus waived. See, e.g., United

States v. Broce, 488 U.S. 563, 569 (1989) (guilty plea

waived possible double jeopardy claim). Second, even if

Green has preserved the point somehow, it could not

prevail: this court has rejected exactly this argument on

several occasions, most recently in United States v.

Arocho, 305 F.3d 627, 638 (7th Cir. 2002), and United States

v. Martin, 287 F.3d 609, 615-16 (7th Cir. 2002). See also

United States v. Brough, 243 F.3d 1078 (7th Cir.), cert.

denied, 534 U.S. 889 (2001) (finding § 841 constitutional).

Green presents no reason why these decisions should be

revisited, and we decline to overrule precedent or to part

ways with the other courts of appeals that have also

upheld the constitutionality of § 841(b). See, e.g., United

States v. Outen, 286 F.3d 622, 634 (2d Cir. 2002); United

States v. Palmer, 297 F.3d 760, 767 (8th Cir. 2002); United
Nos. 01-3558, 01-3559 & 01-3683 5

States v. Buckland, 277 F.3d 1173, 1177 n.1 (9th Cir. 2002)

(en banc) (collecting cases from other circuits).

B

Next, Green argues that his sentence should be vacated

because the government failed to move for a downward

departure pursuant to § 5K1.1 of the U.S. Sentencing

Guidelines (U.S.S.G.) as it agreed to do in the parties’ plea

agreement if Green cooperated fully in this and other

investigations. He also believes that the district court

erred in not compelling the government to file such a

motion. While Green concedes that his cooperation stopped

shortly after his co-defendants’ trial, he believes nonetheless that he was entitled to benefit from his earlier

assistance. In his view, the government received a windfall by first reaping the benefits of his full cooperation

prior to and during Sowemimo’s and Thomas’s trial, and

then failing to “pay” for that benefit by seeking the promised downward departure for Green. We review Green’s

interpretation of the plea agreement de novo. United

States v. Lezine, 166 F.3d 895, 900 (7th Cir. 1999).

The government contends that Green’s argument is

waived because he conceded to the district court that

he stopped cooperating with the government, which is a

clear breach of the terms of the plea agreement. Therefore,

the government asserts, he cannot now claim that he

was entitled to the benefit of the terms of the plea bargain. At the very least the government believes that

Green forfeited this issue by failing to argue below that

the government was obliged to move for a downward

departure from the Sentencing Guidelines at the time

of sentencing. See, e.g., United States v. Ramunno, 133

F.3d 476, 484 (7th Cir. 1998). Accordingly, the government asks that at most we review this issue for plain

error. Id.
6 Nos. 01-3558, 01-3559 & 01-3683

In the end it does not matter whether Green knowingly

relinquished his right to bring this argument (waiver),

or whether he merely failed to raise the argument in a

timely manner (forfeiture), because either way he cannot prevail. See United States v. Olano, 507 U.S. 725, 734

(1993) (explaining difference between waiver and forfeiture). Green cannot get around the fact that he did

not comply with the terms of his plea agreement. Paragraph 12 of the plea agreement states that Green “willfully and truthfully cooperate with the government in any

matter in which he is called upon to cooperate.” The

agreement also specifies that the “defendant further

agrees to cooperate fully and truthfully in identifying

and forfeiting tainted assets subject to forfeiture, regardless where they may have been transferred or hidden.”

Id. at ¶ 15. At sentencing, Green’s lawyers acknowledged

that he stopped cooperating shortly after Sowemimo’s and

Thomas’s trial. They then asked the court to postpone

sentencing to enable Green to resume his cooperation.

In addition to relying on this cessation of cooperation

(whether it was temporary or permanent), the government also claims that Green was not forthright about

the true extent of his tainted assets, although it concedes that it lacks hard proof that Green has anything

more squirreled away.

Even if Green was completely truthful about his

tainted assets, it remains the case that he has otherwise admitted to violating the terms of the plea agreement. This is enough to preclude him from prevailing on

an argument that he had a right to a government motion

for a downward departure. This is so because both parties

acknowledge that plea agreements are interpreted and

enforced as a matter of contract law. Ramunno, 133 F.3d

at 484. It is a long-established principle of contract law

that one party’s failure to fulfill its end of the bargain

relieves the other party of its obligations under the agree-
Nos. 01-3558, 01-3559 & 01-3683 7

ment. Id. Although the government may not unilaterally

decide whether a defendant has substantially breached

the terms of a plea agreement in deciding whether it is

bound to move for a downward departure per the parties’

agreement, see United States v. Frazier, 213 F.3d 409, 419

(7th Cir.), cert. denied sub nom., Walker v. United States,

531 U.S. 1015 (2000), here, the fact that Green admitted

that he did not fully cooperate with the government eliminates the need to hold an evidentiary hearing on the

question of breach and relieves the government of its

obligation to move for the downward departure. See Wade

v. United States, 504 U.S. 181, 186 (1992) (holding that

defendant is not entitled to evidentiary hearing on question of breach of substantial terms of plea agreement

without making “a ‘substantial threshold showing’ ”).

That Green’s cooperation was significant before he

experienced a change of heart—and this is not disputed by

either side—does not change the fact that he failed to

continue to cooperate when he was asked to do so. See, e.g.,

Ricketts v. Adamson, 483 U.S. 1, 10 (1987) (failure to fulfill terms of plea agreement, despite initial cooperation,

may constitute breach). The parties did not include any

provisions for partial fulfillment of the terms of the plea

bargain and we will not write such a clause into their

agreement.

The law with respect to a defendant’s entitlement to

the third-level adjustment for acceptance of responsibility

under U.S.S.G. § 3E1.1 changed significantly with the

passage of the Prosecutorial Remedies and Tools Against

the Exploitation of Children Today Act of 2003 (the PROTECT Act). See Pub. L. No. 108-21, § 401(g), 117 Stat. 650,

671 (April 30, 2003). Under the new statute, the additional adjustment of one level may be granted only upon

the prosecutor’s motion, and only at the pretrial stage.

We have no need to decide here whether the PROTECT

Act applies to a pending case like Green’s, however, be-
8 Nos. 01-3558, 01-3559 & 01-3683

cause he has not shown an entitlement to the adjustment

even under the prior law.

Green had one remaining option after the district

court refused to postpone sentencing in his case to enable

him to demonstrate his renewed willingness to cooperate fully. The court invited Green to resume cooperation

after he was sentenced. Had he chosen to do so, the government could have moved to reduce his sentence within one year of the date of sentencing under Rule 35(b) of

the Federal Rules of Criminal Procedure. Although both

the government and the court were open to this possibility, the record does not indicate that Green in fact resumed cooperation.

C

Like Green, Sowemimo challenges his sentence. He

believes that the district court erred when it denied him

an additional one-point reduction in the level of his offense pursuant to U.S.S.G. § 3E1.1(b) for timely acceptance of responsibility. Whether a defendant meets the

requirements of § 3E1.1(b) turns on questions of fact;

therefore we review the district court’s refusal to grant

an additional one-point sentencing reduction under the

clear error standard. United States v. Bosque, 312 F.3d

313, 316 (7th Cir. 2002); United States v. Nielsen, 232 F.3d

581, 583 (7th Cir. 2000). See also U.S.S.G. § 3E1.1, Application Note 5.

A defendant who accepts responsibility for her criminal

activity may receive up to a three-point reduction under

the Sentencing Guidelines. To receive two of the three

points the defendant must “clearly demonstrate[ ] acceptance of responsibility” for the offense charged. See U.S.S.G.

§ 3E1.1(a). Under the law at the time of this trial, defendants were entitled to an additional one-point reduction

if they qualified for the two-point reduction under
Nos. 01-3558, 01-3559 & 01-3683 9

§ 3E1.1(a), but only if their offense level prior to this

reduction was level 16 or greater, and if they either

“timely provide[d] complete information to the government

concerning [their] own involvement in the offense,”

§ 3E1.1(b)(1) or “timely notified the authorities of [their]

intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and

permitting the court to allocate its resources efficiently.”

§ 3E1.1(b)(2).

At sentencing, the district court granted Sowemimo a

two-point reduction under § 3E1.1(a) because of his

overall acceptance of responsibility as evidenced by his

guilty plea. The court refused to reduce further his offense

level by one point for the timeliness of his acceptance

of responsibility because Sowemimo failed to enter his

guilty plea prior to the pretrial conference as the court

asked the defendants who wished to so plead to do, and

as all of the defendants except Green, Sowemimo and

Thomas actually did.

The additional one-point reduction under § 3E1.1(b) is

meant to reward conduct that “occur[s] particularly early

in the case.” U.S.S.G. § 3E1.1(b), Application Note 6; see

also Nielsen, 232 F.3d at 583. As the Commentary to

this section of the Sentencing Guidelines explains,

[T]o qualify under subsection (b)(2), the defendant

must have notified authorities of his intention to

enter a plea of guilty at a sufficiently early point in

the process so that the government may avoid preparing for trial and the court may schedule its calendar

efficiently.

Id. The district court found Sowemimo’s decision to plead

guilty after the first day of a two-day trial not only an

inefficient use of its resources, but “acutely disruptive” of

the court’s schedule. This is the type of factual determination that we do not disturb on appellate review, see, e.g.,
10 Nos. 01-3558, 01-3559 & 01-3683

United States v. Wallace, 114 F.3d 652, 655 (7th Cir. 1997),

and it is fatal to Sowemimo’s argument. (Once again,

because Sowemimo loses even under the prior law, we

have no need to decide whether the stricter requirements for the additional adjustment imposed by the

PROTECT Act apply here. We note, however, that it may

be problematic to apply retroactively the requirement

of a government motion.)

In the alternative, Sowemimo believes that he is entitled

to an additional one-point reduction under § 3E1.1(b)(1) because of the post-arrest statements that he made concerning his heroin sales to Green. The problem with this

argument is that the Sentencing Guidelines offer an

additional point for the timely provision of “complete

information,” id. (emphasis added), and Sowemimo subsequently recanted some of his post-arrest admission.

Furthermore, the information that Sowemimo provided

was limited to his role in the heroin network. He provided the government with no information about his

heroin suppliers or how the drugs entered the United

States. The government argues that these two shortcomings mean Sowemimo may not benefit from the one

point reduction under § 3E1.1(b)(1) because he has not provided complete information. We agree. Cf. United States

v. Francis, 39 F.3d 803, 809 (7th Cir. 1994).

D

Finally, Robert Thomas, the only member of Cornell

Green’s heroin operation who was actually tried and

convicted by a jury, wants to set aside the district court’s

drug quantity calculations. Initially, we must decide

whether Thomas has preserved this argument for review

on appeal. In his opening brief, Thomas candidly acknowledged that the specific argument raised on appeal was

not pressed in the district court. Acting pro se despite
Nos. 01-3558, 01-3559 & 01-3683 11

the fact that he was still represented by counsel at the

time, Thomas filed two motions in the district court challenging the quantity of drugs that were attributed to him

in the Presentence Investigation Report (PSR). The district judge understood these motions as raising an objection to the amount of heroin attributed to Thomas, even

if the objections were less than clearly articulated in his

pro se filings. Our review of the transcript satisfies us

that Thomas did enough to raise this point before the

district court, and we thus are free to consider his argument on the merits.

Even so, Thomas has a difficult task, because we will

reverse a district court’s drug quantity calculations only

if they are clearly erroneous. United States v. Noble, 246

F.3d 946, 951 (7th Cir. 2001). To meet this standard,

Thomas must convince us that a mistake has been made

in the sense that none of the evidence in the record supports the district court’s drug quantity calculations.

See United States v. Martin, 287 F.3d 609, 616 (7th Cir.

2002), cert. denied sub nom., Alicea v. United States, 123

S. Ct. 116 (2002).

In support of his claim that the district court erred,

Thomas argues that the judge failed to arrive at the

most conservative estimate of heroin that may be attributed to him. In his view, if the district court had

taken into consideration the fact that Green cut the pure

heroin with a filler before selling the drugs, the drug

quantity estimate would have been in the range of 7.8

kilograms. What Thomas ignores is the fact that the

countable weight for drug quantity calculations includes any mixture or substance containing a detectable

quantity of the drug. See U.S.S.G. § 2D1.1(c), Note (A). The

district court was thus obliged to consider the filler, as

well as the pure heroin, in making its calculations. We

find ample evidence in the record to support the estimate

that the district court reached in this case (which was
12 Nos. 01-3558, 01-3559 & 01-3683

by no means the highest number the court could have

chosen).

III

Finding no merit in any of appellants’ arguments, we

AFFIRM the judgments of the district court.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-7-03