UNITED STATES of America, Plaintiff-Appellee, v. Eddie Mae IVORY, Cleo Thomas Hightower, Betty Ann Berry, and Anthony Heard, Defendants-Appellants, 11 F.3d 1411

PER CURIAM. The defendants were involved in a cocaine distribution ring in Madison, Wisconsin, from April 1991 through October 1991. The ring initially distributed its wares from Betty Berry’s apartment, where Cleo Thomas High-tower and Eddie Mae Ivory also planned their business. In July 1991 Hightower and Ivory began to use street sellers (called “workers”) to distribute their crack cocaine. The district court concluded that Anthony Heard was among , these workers. Because of Berry’s addiction, Hightower and Ivory rented an apartment of their own and moved the distribution operation there in August 1991.

Concern over the safety of the drug cache prompted another move, on October 1, 1991, to a townhouse Hightower and Ivory rented as husband and wife. On October 25, 1991, the Madison Police Department executed a search warrant at this latest address. The officers found 33 grams of crack cocaine, $9,000 in cash, 18 guns, and the names and addresses of co-conspirators as well as drug buyers. Hightower and Ivory were present when the police officers executed the warrant. Hightower, Ivory, Berry, and Heard all pleaded guilty. They raise distinct issues on appeal.

Betty Berry attacks the district court’s refusal to grant her a “minor role” reduction pursuant to U.S.S.G. § 3B1.2. The guideline range, computed without regard to this reduction, was 51 to 63 months. The district court selected 60 months, the mandatory minimum under the statute. Berry does not contend that a sentence of less than 60 months is legally permissible, which renders the precise computation of the offense level irrelevant. We therefore need not decide whether Berry played a “minor role,” for the answer makes no difference to her sentence.

Eddie Mae Ivory pleaded guilty to an offense involving more than 50 but less than 150 grams of cocaine base. Her base offense level is 32. There was a downward- adjustment of two levels for acceptance of responsibility and an upward adjustment of four levels, pursuant to Guideline § 3Bl.l(a), for her role as an organizer or leader of a criminal activity involving five or more participants. The final offense level of 34 produced an imprisonment range of 151-88 months. In imposing sentence, the court selected a sentence at the bottom of the range. Ivory attacks the four-level upward adjustment.

She offers two reasons for disputing the finding that she was an organizer or leader of the criminal activity: first, that the unsworn statements in the presentence report are insufficient for such a finding; second, that she was not as much in charge as Hightower. Both of these arguments fail. ■ On July 16, 1992, Ivory filed objections to the presentence report. She contested only the opinions. and conclusions the probation officer drew from the factual information in the report; she did not attack the factual statements themselves. Ivory did not testify at the sentencing hearing or ask to do so.

The district court was permitted to adopt unchallenged factual propositions in the pre-sentence report. United States v. Spears, 965 F.2d 262, 273 (7th Cir.1992); United States v. Musa, 946 F.2d 1297, 1308 (7th Cir.1991). Such, an adoption ordinarily satisfies the .provisions of Fed.R.Crim.P. 32(c)(3)(D). The absence of sworn testimony from which the factual material was derived therefore' does not matter; Ivory is stuck with factual statements that she did not contest. Given the facts narrated in the pre-sentence report, Ivory’s challenge to the adjustment is doomed.

The district court’s inferences (and consequent disposition under the Guidelines) will be disturbed only if clearly erroneous. Spears, 965 F.2d at 273; United States v. Bafia, 949 F.2d 1465, 1479 (7th Cir.1991); United States v. Cagle, 922 F.2d 404, 406 (7th Cir.1991). The Commentary to § 3B1.1 states that various factors should be analyzed in distinguishing a leadership and organizational role from one of mere management or- supervision. ■ The district court considered these, explaining: I’m fully satisfied that Ms. Ivory qualifies for a four level enhancement because of her role in this activity.

The indications are that she received two fur coats, as the Presentence Report says, excessive amounts of food, also food stamps, all kinds of loot that she obtained in exchange for crack,cocaine. She was enjoying it, she enjoyed the fruits of all of these sales. She was highly involved in organizing it. Despite the fact that she was concerned about her own children’s use of crack cocaine, she didn’t seem to have any concern about involving greater and greater numbers of people in the use of crack cocaine, whatever it would do to them.

She handled the drugs, she counted the money, she was involved in deciding who would buy, who would be let into the apartment. She made arrangements with her own kids to some extent. She carried a weapon to protect the drugs and money. She was heavily and significantly involved in the largest crack cocaine conspiracy that I’ve ever known about in the city of Madison' ... and I think there are few people that deserve that four level enhancement more than Miss Ivory and Mr. Hightower.

In response to Ivory’s contention that she was less culpable and less a leader of criminal activity than Hightower, the court stated: I’m not at all convinced in my own mind whether Mr. Hightower or Ms. Ivory was the dominant player in this conspiracy. They were both significantly involved, and they were involved in organizing and supervising, but it’s not entirely clear which of the two was dominant. But certainly Ms. Ivory was a very important player and she exercised a great deal of influence in this conspiracy.

A defendant need not be the creator of the criminal scheme or enterprise or control all aspects of it in order to be an organizer or leader. United States v. Brown, 900 F.2d 1098, 1101-02 (7th Cir.1990). The district court’s finding that Ivory was an organizer or leader is not clearly erroneous. Cleo Thomas Hightower pleaded guilty to possession of cocaine base with intent to distribute it and to a violation 'of 18 U.S.C. § 924(c), which forbids the use or carrying of a firearm in connection with a drug trafficking crime.

Hightower later asked to withdraw his plea, contending that shortly before he pleaded guilty he had been diagnosed with colon cancer and believed he only had a few years to live. He contends that he pleaded guilty without caring what he was doing. Now that he has learned he still has a substantial time to live, he wants to withdraw the plea and go to trial. Doctors performed a right hemicolectomy on Hightower on April 29, 1992, and discharged him on May 6, 1992, “in good condition”, with a return in four days for removal of surgical staples, and in two to three weeks for routine follow-up.

Hightower pleaded guilty on May 15, 1992. At that time the court engaged in the following colloquy with Hightower: THE COURT: Thank you. Mr. Hightower, for the record, how old are you? THE DEFENDANT: Fifty-two. THE COURT: How much formal education have you had? THE DEFENDANT: High school. THE COURT: Is there any reason why you might not be able to understand what is being said to you today such as being ill or very tired or being under the influence of drugs or alcohol? THE DEFENDANT: No.

The court then went on to ask Hightower’s attorney if he was aware of any reason why the court should not ask Hightower how he wished to plead to Counts I and IV. High-tower’s attorney stated that he knew of none. An analysis of the attempted withdrawal of a guilty plea requires reference to both Fed. R.Crim.P. 11 and 32. Rule 11(

d) provides that the court will not accept a plea until it has determined that “the plea is voluntary and not the result of force or threats”. The judge also must address the defendant and inquire whether the defendant’s willingness to plead guilty resulted from prior discussions between the attorney for the government and the defendant or the defendant’s attorney. The judge complied with these requirements.

Hightower misstates Rule 32 in asserting that “Rule 32(d) ... permits a defendant to withdraw a plea before sentencing for ‘any fair and just reason’.” The rule actually states that a court may permit withdrawal of the plea. A defendant “does not have an absolute right to withdraw his guilty plea, and the decision to allow him to do so is within the sound discretion of the trial court.” United States v. Caban, 962 F.2d 646, 649 (7th Cir.1992), quoting United States v. McFarland, 839 F.2d 1239, 1241 (7th Cir.1988).

The district court afforded Hightower a hearing on his motion to vacate his plea and did not abuse its discretion in denying the motion. The judge stated: “Mr. High-tower may regret his choice at this time, but he hasn’t said anything to convince me that the choice he made was not a knowing and intelligent and voluntary choice.” Hightower may not have “cared,” as he now asserts, about his decision to plead guilty, but a casual plea is nonetheless voluntary.

Statements made to the court at the time of the plea are binding, and Hightower’s current attempt to retract them does more to expose him to a prosecution for perjury than to justify the withdrawal of the plea. Anthony Heard pleaded guilty to conspiracy to possess cocaine and cocaine base with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. As part of the plea bargain, the prosecutor stipulated that Heard did not anticipate that the other conspirators would distribute more than five grams of crack, which enabled Heard to escape the mandatory minimum penalty.

He was sentenced to 33 months’ imprisonment. After pleading guilty and locking in the concession (a subject on which the prosecutor could not change his mind, even if the case went to trial, without confessing a violation of the Department of Justice’s rule against “undercharging” in order to evade the Guidelines and minimum penalty laws), Heard asked to withdraw the plea. He asserted that the record does not establish a factual basis for the plea and that the court failed to inform him of the elements of the offense to which he was pleading. The latter contention is frivolous, so we focus on the former.

Criminal Rule 11(

f) provides: “Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.” Although language in a few of this circuit’s cases suggests that only the defendant’s statements may supply the necessary “factual basis”—e.g., United States v. Frye, 738 F.2d 196, 199 (7th Cir.1984); United States v. Plisek, 657 F.2d 920, 924 (7th Cir.1981); United States v. Wetterlin, 583 F.2d 346, 352-53 (7th Cir.1978)—Rule 11 does not distinguish between factual material supplied by the defendant and that supplied by the prosecutor. Consequently, “Rule 11(

f) does not require the district judge to engage in a colloquy with the defendant to establish a factual basis for a guilty plea. A judge may find the factual basis from anything that appears on the record, which includes the government’s proffer.” Musa, 946 F.2d at 1302. Limiting the search to the defendant’s own statements would forbid guilty pleas in which the defendant denies culpability but concedes that the prosecutor can prove facts supporting a conviction. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Defendants may have a lot to gain from Alford pleas, and Rule 11 does not deny them those benefits by imprisoning them in their privileges.

Section 846, the conspiracy statute involved here, does not require the prosecutor to prove an overt act. United States v. Sassy 966 F.2d 283 (7th Cir.1992). Thus Rule 11 is satisfied if the record provides a factual basis for concluding that Heard agreed to distribute drugs (even if he did not in fact distribute any), or indeed that Heard agreed to promote the drug-distribution enterprise without himself making any of the retail sales. See generally United States v. Lechuga, 994 F.2d 346 (7th Cir.1993) (in banc).

The prosecutor told the district judge that two persons, Canary Smith and Edward Per-ryman, were willing to testify that Heard became a “worker” (i.e., a street vendor) in the drug ring, and that a third person would testify that he saw Heard carrying out this role. Smith and Perryman also would have testified that Heard did not last long as a retail seller; he was unreliable in paying for the drugs “fronted” to him and was cut off.

Apparently Heard consumed too much of the cocaine provided to him, and so did not sell enough to cover his costs. • As the prosecutor narrated the evidence, the government could prove that Heard asked Hightower for more cocaine to sell, but that Hightower was not cooperative. Heard’s lawyer conceded in open court that the prosecutor could prove all of these things.

Heard himself then spoke, minimizing his role: THE COURT: Do you understand the government says that you agreed with some other people — namely Cleo' Hightower, Eddie Mae Ivory, Robert Ivory, Theresa Jackson, Shawn Laird, and Betty Ann Berry — to possess cocaine with the intent to distribute it. THE DEFENDANT: No I didn’t know who they were. THE COURT: That’s what the government says you did. THE DEFENDANT: Oh.

THE COURT: Do you understand that’s what the government is saying in this Indictment, that you reached an agreement with some or all of these people to possess cocaine and cocaine base with the intent to distribute it. THE DEFENDANT: Yeah, I understand. THE COURT: And, Mr. Heard, is there anything that you think [the prosecutor] could not prove at trial? THE DEFENDANT: That I — that he [Hightower] was giving me, supplying me with some cocaine. Okay, like I was cleaning his vans and cars and stuff. And he would give me, you know, a couple bags. But I wasn’t — he wasn’t supplying me to sell cocaine.

THE COURT: You are saying that the government could only prove that Mr. Hightower gave you cocaine sort of as a form of payment for cleaning out his van? THE DEFENDANT: Yes, ma’am. THE COURT: But not enough for you to sell? THE DEFENDANT: Well, yeah. I mean there was like a couple bags, you know, I could have sold, you know. But I wasn’t— I wasn’t — he wasn’t giving me enough to sell to make a profit off of. THE COURT: I am not sure I understand you. He gave you enough or he gave you enough cocaine that you could sell it. But you are saying he didn’t give you enough that you could really make any money off of it.

THE DEFENDANT: Yes, ma’am. THE COURT: Did you sell some of the cocaine that he gave you? THE DEFENDANT: Well, once or twice I did. Once or twice I have sold it, a couple bags. But that I was mostly using it myself. THE COURT: Mostly it was for your own use. THE DEFENDANT: Yes, ma’am. THE COURT: And is it your position that Cleo Hightower is the only person you dealt with? THE DEFENDANT: Yes ma’am. THE COURT: Did Eddie Mae Ivory ever give you any cocaine? THE DEFENDANT: No, ma’am. THE COURT: Or any of the others named in the conspiracy or in the Indictment?

THE DEFENDANT: I bought from just about everyone on there. THE COURT: And did you buy just enough for your own use, or did you buy enough to sell to other people? Just enough for my own use. This colloquy is consistent with the prosecutor’s description of the evidence: Heard agreed to sell cocaine for the drug enterprise, but Hightower did not supply Heard with enough for him to satisfy his habit and' still make a profit.

Heard added that to obtain drugs he acted as a common laborer for the drug ring. (“Okay, like I was cleaning his vans and cars and stuff.”) Working for drugs could support a conviction for conspiracy, as it shows that Heard joined the enterprise and sought to promote its success. It may be that the colloquy in open court establishes only a conspiracy between Heard and Hightower, but that is quite sufficient for criminal liability. Affirmed.