In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1680
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DIJON FOSTON,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17 CR 40 — John J. Tharp, Jr., Judge.
____________________
ARGUED JUNE 5, 2024 — DECIDED JULY 23, 2024
____________________
Before EASTERBROOK, BRENNAN, and JACKSON-AKIWUMI,
Circuit Judges.
EASTERBROOK, Circuit Judge. Dijon Foston pleaded guilty to
four crimes: conspiracy to engage in racketeering (18 U.S.C.
§1962(d)) (RICO), possession of marijuana with intent to dis-
tribute (
21 U.S.C. §841(a)(1)), possession of a firearm as a felon
(
18 U.S.C. §922(g)(1)), and possession of a firearm in connec-
tion with a drug offense (
18 U.S.C. §924(c)(1)). The prosecutor
dismissed two other charges: possessing another firearm and
2 No. 23-1680
intimidating a witness. The judge sentenced Foston to 143
months on the racketeering and drug charges and 120 months
on one of the gun charges. These three sentences run concur-
rently. The sentence on the second gun conviction is 60
months, consecutive to the other three sentences. The total is
203 months in prison, to be followed by three years’ super-
vised release. Since the bottom of Foston’s range under the
Sentencing Guidelines is 262 months, this is a favorable out-
come for him.
Foston contends on appeal that the judge should not have
accepted his guilty plea on the racketeering charge, because
the colloquy under Fed. R. Crim. P. 11 did not accurately in-
form him of that charge’s nature. Because he did not move in
the district court to withdraw that plea, relief in this court de-
pends on a finding that accepting the plea was plain error. For
that to be so, Foston must show an error, that is plain, and that
affected his substantial rights (i.e., caused prejudice). See, e.g.,
United States v. Olano,
507 U.S. 725, 732–35 (1993), applied to
guilty pleas in United States v. Vonn,
535 U.S. 55 (2002). Show-
ing these three things is not enough unless the court also con-
cludes that the error seriously affected the fairness, integrity,
or public reputation of the judicial process.
507 U.S. at 736.
And “a defendant who seeks reversal of his conviction after a
guilty plea, on the ground that the district court committed
plain error under Rule 11, must show a reasonable probability
that, but for the error, he would not have entered the plea.”
United States v. Dominguez Benitez,
542 U.S. 74, 83 (2004). As a
practical matter, the inquiries into prejudice and whether the
defendant would have pleaded guilty in the absence of the
error often come to the same thing.
Id. at 85.
No. 23-1680 3
The indictment alleged, and Foston admitted, that he was
a member of the LAFA street gang in Chicago and promoted
the gang’s activities by selling drugs, robbing at least one per-
son at gunpoint, and threatening at least one other person at
gunpoint to prevent that person from speaking with law en-
forcement. The indictment depicted LAFA as an enterprise
that engaged in multiple predicate criminal offenses, and it
alleged that Foston engaged in a pattern of racketeering activ-
ity on the gang’s behalf. These allegations match the statutory
elements of the offense. Conspiracy is an agreement to com-
mit some other offense. For Foston that other offense is de-
fined by §1962(c) as conducting an enterprise’s affairs through
a pattern of racketeering activity.
Foston knew of these elements before pleading guilty. The
prosecutor described them in open court, and Foston himself
filed with the court a written declaration of his activities that
he conceded the prosecutor could establish at trial. Neither
the declaration nor the prosecutor’s statement used the word
“elements,” but legal verbiage is not essential. The statements
and the declaration show that Foston knew the charge.
Nonetheless, Foston asserts that the judge failed to comply
with Rule 11(b)(1)(G), which requires the judge to inform the
defendant in open court of the offense’s “nature”. According
to Foston, the judge had to tell him that guilt depends on
proof that he conspired to perform services helping the enter-
prise’s leaders. That does not appear in the statutory text, but
our decision in Brouwer v. Raffensperger, Hughes & Co., 199 F.3d
961, 967 (7th Cir. 2000), a civil case, says that to violate
§1962(c) a person must “agree to perform services of a kind
which facilitate the activities of those who are operating the
enterprise”. Similar language appears in the William J. Bauer
4 No. 23-1680
Pattern Criminal Jury Instructions of the Seventh Circuit 836
(2023). The pattern instructions do not state where this lan-
guage comes from. At about the time the draft pattern instruc-
tions were being circulated for review, United States v. Farmer,
38 F.4th 591, 602 (7th Cir. 2022), recapped the ingredients of a
RICO conspiracy this way: “(1) an agreement to conduct or
participate in the affairs (2) of an enterprise (3) through a pat-
tern of racketeering activity”. Farmer did not mention services
assisting the enterprise’s managers or operators.
The most one can say about this topic is that the Seventh
Circuit has an internal disagreement about whether a RICO
conspiracy includes an extra-statutory requirement of agree-
ment to assist persons with direction over the enterprise. So
even if we assume that Brouwer is right about this subject, the
district judge’s error in omitting this information is not
“plain” (Olano’s second step). Given the conflict, neither
Brouwer nor Farmer can be treated as the only possible under-
standing of §1962. A conflict in judicial decisions does not pro-
duce a “plain” answer to a legal issue. The Seventh Circuit
needs to resolve this disagreement, but the occasion for that
resolution will be a case in which the issue has been properly
briefed in the district court and on appeal.
Then there is the matter of prejudice. Foston received a
discount for accepting responsibility, plus the dismissal of
two of the indictment’s counts. (The prosecutor was not
bound by a plea agreement to dismiss those charges but
elected to do so in light of Foston’s guilty pleas.) Revoking his
guilty plea to the RICO charge would put these benefits in
jeopardy—and without much prospect of a return, given that
the sentence on the RICO conviction runs concurrently with
an equal 143-month sentence on the drug-distribution count.
No. 23-1680 5
The only marginal punishment for the RICO conviction is the
$100 special assessment. If convicted on the RICO charge at
trial, Foston would face a higher sentencing recommendation
under the Guidelines, having lost the acceptance-of-responsi-
bility discount for the RICO count. He also might lose his be-
low-range sentence.
The very best outcome for Foston would be an acquittal on
the RICO charge, accompanied by retaining the acceptance-
of-responsibility benefit on the three remaining convictions
and the prosecutor’s decision not to reinstate the two dis-
missed charges. Yet it is hard to see how even that would help
him. At oral argument his lawyer asserted that the Guideline
range on the remaining three convictions would fall, leading
to less time in prison (or at least a lesser recommended time).
The problem with this position is that the RICO conviction
did not affect the Guideline range, which was driven by Fos-
ton’s status as a career offender plus his firearms convictions.
Foston’s offense level (34) was higher than the one that
would apply under the career-offender Guideline (32), and
the greater of the two applies, U.S.S.G. §4B1.1. But because
Foston also was convicted of violating 18 U.S.C. §924(c) and
another statute, the career-offender Guideline provides that
his range is the greater of: (1) the range resulting from adding
§924(c)’s 60-month mandatory minimum to the range for his
other offenses; or (2) the range set out in U.S.S.G. §4B1.1(c)(3),
which for Foston was 262 to 327 months because he qualified
for a three-level reduction for accepting responsibility.
U.S.S.G. §4B1.1(c)(2), (3). The range under the first of those al-
ternatives is lower than 262 to 327 months, so Foston’s final
range was 262 to 327 months.
6 No. 23-1680
If Foston were to be acquitted of the RICO conspiracy
charge, his range would not change. Foston would still be a
career offender and would still have convictions for violating
§924(c) and another statute. His range under the first alterna-
tive above would be 170 to 197 months based on an offense
level of 25 (28 for possessing a firearm as a felon minus 3 for
accepting responsibility); a criminal-history category of VI be-
cause Foston is a career offender; and 60 months added to
each end of the range to account for §924(c)’s minimum,
U.S.S.G. §4B1.1(c)(2)(A). Because 170 to 197 months is lower
than 262 to 327 months, Foston’s range again would be 262 to
327 months. U.S.S.G. §4B1.1(c)(2), (3). Foston’s actual sentence
of 203 months would remain below the low end of the
properly computed range.
Acquittal on the RICO charge would not retract any of the
admissions Foston made, such as drug distribution, robbery,
firearms usage, and witness tampering, that affected his sen-
tence. We appreciate that the removal of a RICO conviction
could affect the exercise of judicial discretion—though
whether it would is hard to gauge. Because Foston could have
suffered major losses by forfeiting the acceptance-of-respon-
sibility deduction and having other charges reinstated, we
doubt that he would have taken those risks just to secure a
chance of a discretionary benefit, should he be acquitted of the
RICO charge at trial. This means that the requirement of
Dominguez Benitez is not met.
The upshot is that, even if we assume that the district
judge committed an error, that error was neither plain nor
prejudicial. Under the text of Fed. R. Crim. P. 52(b) and the
holding of Olano, Foston is not entitled to relief.
AFFIRMED