United States v. Kenneth Block ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240,
11-1509, 11-1680, 11-2630
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
K ENNETH L. B LOCK, et al.,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Western Division.
No. 09 cr 50041—Frederick J. Kapala, Judge.
A RGUED F EBRUARY 16, 2012—D ECIDED F EBRUARY 1, 2013
Before P OSNER, R IPPLE, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. This consolidated criminal
appeal involves eight defendants who participated in a
large heroin distribution conspiracy that operated out
of Rockford, Illinois. Each pled guilty to one count of
conspiracy to possess with intent to distribute more
than one kilogram of heroin and more than fifty grams
of cocaine base. The principal argument on appeal is that
2 Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240,
11-1509, 11-1680, 11-2630
the district court failed to make a conservative drug
quantity calculation for sentencing purposes. But for the
reasons explained further below, we find the district
court did not err and carefully examined the evidence
from a variety of sources before determining that the
conspiracy distributed 700 grams of heroin per week.
Defendants Nathaniel Clay and Robert Cobb mount
other separate objections to their sentences. Clay essen-
tially argues that the district court failed to consider the
sentencing disparities between drug runners, like him-
self, who were prosecuted in federal court and those
prosecuted in state court. Cobb claims that the district
court failed to address each of the factors under 18
U.S.C. § 3553(a) at his sentencing. Neither of these argu-
ments have any merit and so we affirm their sentences.
Defendant Samuel Peeples’s sentence, however, is more
troubling. He received a two-level enhancement under
§ 2D1.1(b)(1) for the possession of firearms by his co-
conspirators. Though we have said before that drugs
and firearms often go hand in hand, the enhancement
Peeples received for his co-conspirators’ firearm posses-
sion is not supported by the record. Therefore, we
vacate his sentence and remand for resentencing.
I. BACKGROUND
In the summer of 2007, Hollis Daniels and others began
operating a drug trafficking organization (hereinafter
“DTO”) in Rockford, Illinois that sold primarily heroin
and some crack cocaine. Daniels, the DTO’s leader, was
Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240, 3
11-1509, 11-1680, 11-2630
incarcerated at various times throughout 2008, but that
did not hurt his drug sales. He set up a drug telephone
hotline for customers to call and place their orders
from 8:00 a.m. to 11:00 p.m. daily. To meet this level of
demand, the DTO employed a group of so-called “care-
takers.” The caretakers included defendants Kenneth
Block, Kenneth Townsend, Robert Cobb, and John Knox.
They were responsible for running the daily operations
of the DTO, including purchasing raw heroin from sup-
pliers in Chicago and Rockford, “stretching” the heroin
by diluting it with an over-the-counter sleep aid, and
recruiting and managing the drug runners (i.e., street-
level distributors). After the raw heroin was diluted
according to Daniels’s special formula, the run-
ners—including defendants Nathaniel Clay and Samuel
Smith—were supplied with a packet known as a “jab,”
containing 25 smaller baggies for resale. Each individual
baggie contained approximately .10 grams of heroin and
was sold to customers for $10. After collecting $250 for
selling the entire jab, the runner was supposed to keep
$50 and give the remaining $200 to the organization.
Sometime in September or October 2008, Samuel Peeples
approached Daniels and asked for a job. Peeples started
out as a driver for several of the caretakers for a couple
of weeks, but quit after police arrested Clay while he
was getting into Peeples’s car. Peeples returned to
Chicago, but he did not stay away from the DTO for
long. In December 2008, Peeples returned to Rockford
and resumed working for Daniels as the head of the
runners until his arrest in March 2009. The DTO con-
4 Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240,
11-1509, 11-1680, 11-2630
tinued to operate until Daniels was finally arrested
in September 2009.
A federal grand jury indicted fifteen individuals in-
volved in the DTO on charges of conspiring with each
other to possess with intent to distribute heroin and
crack cocaine. The eight here on appeal each pled guilty.
Daniels’s sentencing hearing occurred first and set the
stage for the other defendants’ later hearings.
Representing himself pro se, with only the aid of
standby counsel, Daniels contested the PSR’s drug
quantity calculation and the two-level enhancement
under U.S.S.G. § 2D1.1(b)(1) for possession of a firearm
in connection with a drug offense. The district court
heard testimony from various witnesses, including ATF
Special Agent Daniel Ivancich, who interviewed Daniels
after his arrest on September 9, 2009. Ivancich explained
that Daniels told agents that the DTO had been “going
through a hundred grams of raw heroin a week” and
stretching it out to sell 700 grams of heroin mix per
week for the past year (i.e., since 2008). Daniels testified
on his own behalf and admitted that he may have told
agents that he could stretch the 100 grams of raw heroin
by diluting it seven times to produce 700 grams of
heroin mix, yet denied having told them that he had
been doing this “for the past year.” But the district court
heard other evidence that corroborated Agent Ivancich’s
testimony, and concluded that the DTO distributed
700 grams of heroin per week, or 72.8 kilograms of
heroin over the course of the two-year conspiracy. The
Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240, 5
11-1509, 11-1680, 11-2630
court also found that Daniels possessed a firearm as part
of the conspiracy after hearing additional testimony
from Agent Ivancich and others, and ultimately sen-
tenced him to 520 months’ imprisonment.
Each of the other remaining defendants were repre-
sented by counsel at their respective sentencing hearings
and argued that the DTO distributed a much smaller
quantity of drugs. But the district court rejected these
arguments, crediting Agent Ivancich’s testimony about
Daniels’s drug quantity admission as the best evidence
before the court. The court also applied the two-level
sentencing enhancement for possession of a firearm
to defendants Block, Townsend, Knox, Clay, and Peeples
after finding that the possession of firearms by other
members of the conspiracy was reasonably foreseeable
and done in furtherance of the conspiracy. Each of the
defendants filed timely appeals, which we consolidated.
II. ANALYSIS
We review a district court’s applications of the Sen-
tencing Guidelines de novo and its findings of fact under-
lying the application of the Guidelines for clear error.
United States v. Johnson, 227 F.3d 807, 812 (7th Cir. 2000).
The majority of the defendants only challenge the
district court’s finding that the conspiracy sold 700
6 Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240,
11-1509, 11-1680, 11-2630
grams of heroin per week.1 So we begin with the joint
issue regarding drug quantity, and then move on to the
separate arguments made by Clay, Cobb, and Peeples.
A. Drug Quantity Calculation Did Not Constitute
Clear Error
A district court’s calculation of the quantity of drugs
attributable to a defendant is a finding of fact reviewed
for clear error. United States v. Morales, 655 F.3d 608, 635
(7th Cir. 2011). Such findings of fact are given great
deference and overturned only if we are “left with the
definite and firm conviction that a mistake has been
committed.” Johnson, 227 F.3d at 813 (citation omitted).
District courts are entitled to estimate drug quantity
from testimony about the amount of drugs dealt over
a specified period of time, but ultimately it is the weight
of the consumable mixture (or substance containing
the illegal drug), rather than the weight of the illegal
drug itself that counts for sentencing purposes. U.S.S.G.
§ 2D1.1, Application Note 1 (2009); United States v.
1
We note at the outset that Knox’s and Peeples’s appeals on
this ground must be dismissed as waived. They both pled
guilty and agreed in their plea agreements not to challenge
the government’s drug quantity determination. See United
States v. Staples, 202 F.3d 992, 995 (7th Cir. 2000). The govern-
ment contends that Smith has also waived any appeal of
this issue, but we disagree because his plea agreement
reserved the right to challenge the drug quantity amount.
Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240, 7
11-1509, 11-1680, 11-2630
Stewart, 361 F.3d 373, 377 (7th Cir. 2004). We will not
find clear error in a case “where two permissible views
of the evidence exist.” United States v. Marty, 450 F.3d
687, 690 (7th Cir. 2006). This is one of those cases.
To establish the quantity of drugs attributable to the
DTO’s members, the government relied on three main
pieces of evidence at the sentencing hearings. First, Agent
Ivancich explained that Daniels told agents that the
DTO used “a hundred grams of raw heroin” and mixed
“seven additional times” with sleeping pills and other
products to ultimately sell 700 grams of diluted heroin
per week. Daniels maintained that he never admitted
to selling this quantity of drugs since 2008, but also sug-
gested that the court should discount his previous state-
ment to the agents because he “had no intentions on
cooperating with them” and was simply telling them
what they wanted to hear. The district court did not
misunderstand Daniels’s testimony as the defendants
suggest; it simply did not believe him and for good
reason. If anything, it seems more likely that Daniels
would have sought to minimize his conduct—not deliber-
ately inflate the quantity of drugs being purchased and
resold every year—in an effort to be released from
custody as soon as possible. See United States v. Contreras,
249 F.3d. 595, 602 (7th Cir. 2001) (finding “[n]o one
was more qualified than [the defendant] himself to put
a number on the amounts of cocaine he was purchasing
and re-selling, and [the agent] was simply recounting
what [the defendant] told him in this regard”); United
States v. Corral, 324 F.3d 866, 871-72 (7th Cir. 2003) (col-
8 Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240,
11-1509, 11-1680, 11-2630
lecting cases). In any event, the district court had to
make a credibility determination and we are not in a
position to second-guess such a determination on ap-
peal. Johnson, 227 F.3d at 813; United States v. Etchin,
614 F.3d 726, 738 (7th Cir. 2010) (noting that when a
sentencing challenge is based on a credibility determina-
tion, our review is “especially deferential to the district
judge’s assessment of the testimony”).
But there is more. Tashayla Paige, Daniels’s girlfriend,
stated in a proffer that DTO members purchased between
50 and 100 grams of raw heroin twice per week. And the
government also offered grand jury testimony from a
caretaker named Jamel Gregory, who stated that he made
trips to Chicago twice a week to obtain 200 grams of raw
heroin. This additional evidence suggests that the DTO
may have obtained as much as 200 to 400 grams of
raw heroin per week to cut and dilute—making the 100
gram estimate the district court attributed to the defen-
dants appear conservative.
Nevertheless, the defendants contend that the district
court failed to make a cautious estimate of drug quantity
because defendant Clay proposed at sentencing that the
DTO did not sell anywhere close to 700 grams of heroin
mix per week, but rather sold approximately 250 grams.
But the district court noted that Clay’s suggested calcula-
tion began with the flawed premise that there were
only three runners working for the conspiracy at one
time, whereas Agent Ivancich credibly testified that
there were often between four and six. Moreover, Clay’s
Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240, 9
11-1509, 11-1680, 11-2630
estimate was derived in part from other co-conspirators
whose statements sometimes conflicted and all of
whom had much more limited roles in the conspiracy
than Daniels. In reality, the trial court tried its best to
evaluate a mountain of conflicting evidence from several
different sources. As we have often observed, drug quan-
tity calculations are an art, not a science.2 See United
States v. Jarrett, 133 F.3d 519, 530 (7th Cir. 1998) (noting
that we afford trial courts “some room for speculation
and reasonable estimation” so long as “percentages and
quantities were not pulled out of thin air” (citation omit-
ted)). And even if we were to consider the defen-
dants’ view of the evidence as a “reasonable alternative”
in this case, an alternative view of evidence does not
constitute clear error. See Marty, 450 F.3d at 690; Anderson
2
The defendants argue that the court’s drug quantity determi-
nation would have given the DTO an extraordinary amount
of revenue. If the conspiracy sold 700 grams per week, it would
have grossed $70,000 per week in revenue ([700 grams÷2.5 grams
per jab]×25 baggies per jab×$10 sale per baggie). Defendants
contend that the very idea of a DTO of this size and scope
earning to the tune of over $7 million in just over two years
is “economically implausible.” Maybe. But these sums do not
include the DTO’s business expenses and some of its profits
could have easily been secreted away. See United States v.
Hernandez, 544 F.3d 743, 750 (7th Cir. 2008) (“We have long
recognized that the drug quantity calculation is necessarily
imprecise because ‘drug dealers ordinarily do not use
invoices and bills of lading.’ ” (quoting United States v.
Rodriguez, 67 F.3d 1312, 1325 (7th Cir. 1995)).
10 Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240,
11-1509, 11-1680, 11-2630
v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985). The
defendants further argue that once the district court
determined at Daniels’s sentencing that the organization
distributed 700 grams of heroin per week, it erred by
attributing that amount to each of the other members of
the conspiracy. We disagree.
The confusion appears to have started at Block’s sen-
tencing when the parties attempted to lower Block’s base
offense level by stipulation. In response, the district court
referred to the drug quantity established at Daniels’s
hearing and stated: “It is my understanding that we’re
talking about the same conspiracy and that I cannot [under
United States v. Taylor, 600 F.3d 863 (7th Cir. 2010)]
change amounts from one defendant to another. . . . The
stipulation asks me to ignore facts and engage in a
fiction [regarding drug quantity], and I can’t do that.” The
district court was not bound by the parties’ attempt to
lower the base offense level for Block in his plea agree-
ment. See United States v. Barnes, 602 F.3d 790, 796 (7th Cir.
2010); U.S.S.G. § 6B1.4(d). The commentary to U.S.S.G.
§ 6B1.4(d) makes clear:
[T]he court is not obliged to accept the stipulation
of the parties. Even though stipulations are expected
to be accurate and complete, the court cannot rely
exclusively upon stipulations in ascertaining the
factors relevant to the determination of sentence.
Rather, in determining the factual basis for the
sentence, the court will consider the stipulation,
together with the results of the presentence investi-
gation, and any other relevant information.
Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240, 11
11-1509, 11-1680, 11-2630
Indeed, Block does not argue on appeal that the par-
ties’ offense level stipulation in the plea agreement
was binding.
The district court’s statement could suggest that the
judge thought Taylor bars any reconsideration of drug
quantities for defendants subsequently charged in a
conspiracy. We do not read Taylor quite so broadly. In
Taylor, the district court sentenced four co-defendants
who pled guilty on the basis of a five to fifteen
kilogram drug quantity stipulated in their plea agree-
ments. But when two other co-defendants proceeded to
trial and were convicted, the trial court found that they
should be sentenced according to a forty kilogram drug
quantity. 600 F.3d 863. The problem in that case was the
district court’s failure to explain the discrepancy in the
amount of drugs attributable to the various defendants
given an identical factual record. We never held that trial
courts cannot consider new evidence in sentencing a
defendant after making an earlier drug quantity determi-
nation for his co-conspirator. See Barnes, 602 F.3d at 796-97(explaining that district courts have “the authority to
disregard the factual stipulations in the plea agreements
for cooperating defendants if [they feel] that they were not
supported by the evidence”).
This is not a situation where the defendants who
were sentenced after Daniels claimed to have had only
a minor role in the conspiracy. Instead, they contend
that the district court incorrectly calculated the amount
of heroin attributed to the entire conspiracy. But the
12 Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240,
11-1509, 11-1680, 11-2630
court listened at great length to all of the additional
evidence each defendant presented to contest the
quantity of heroin sold by the conspiracy. For instance,
Clay argued that several lab reports from the seizures of
heroin sold by the DTO showed a wide range in drug
purity, which suggested that the DTO did not con-
sistently dilute all of its heroin by “cutting it” seven
times. But the district court did not disregard this
evidence without justification. It simply found it unper-
suasive given other conflicting testimony and declined
to depart from the previously determined drug quantity
amount. Applying its drug quantity calculation consis-
tently among the various defendants was therefore
not clearly erroneous.
B. No Error in Refusing to Consider Sentencing
Disparities with State Court Defendants
Defendant Clay argues that the district court failed to
consider the sentencing disparities between himself and
other runners who were prosecuted in state court. Ac-
cording to Clay, the runners sentenced in state court
only received sentences between five and seven years,
whereas he was sentenced to 320 months’ imprisonment.
The record shows that the district court addressed
Clay’s claim of unwarranted sentencing disparities and
rightly rejected it. None of the state court defendants
were convicted of conspiracy, and the state court
appears to have had limited evidence at its disposal in
arriving at the runners’ sentences. But more im-
Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240, 13
11-1509, 11-1680, 11-2630
portantly, the government is correct that federal
courts need not consider disparities with state court
sentences. We explained in United States v. Schulte that
“[t]he Guidelines have no effect on a state legislature’s
freedom to impose criminal punishments that differ
from the federal government’s sanctions for the same
conduct. . . . A disparity is not ‘unjustified’ simply because
the federal and relevant state governments impose dif-
ferent punishments on similar conduct.” 144 F.3d
1107, 1110-11 (7th Cir. 1998). So this argument fails too.
C. Cobb’s Request for Downward Variance Was
Adequately Addressed
The next matter is Cobb’s claim that the district court
failed to adequately address each of the sentencing
factors under 18 U.S.C. § 3553(a). He maintains that
the district court specifically failed to consider his
personal history and cooperation with law enforcement.
This argument does not warrant much discussion.
The district court sentenced Cobb to 245 months’ impris-
onment, toward the low end of the applicable Guide-
line range. A sentence within a properly calculated
Guideline range is, for purposes of appellate review,
presumptively reasonable. United States v. Robinson, 435
F.3d 699, 701 (7th Cir. 2006). The district court must give
meaningful consideration to the sentencing factors set
out in § 3553(a) and explain its sentencing decision, but
a district court must only “say enough to allow
meaningful appellate review.” United States v. Lua-
14 Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240,
11-1509, 11-1680, 11-2630
Guizar, 656 F.3d 563, 566 (7th Cir. 2011). In other words,
the court “need not mention every single factor, so long
as we have confidence that the sentencing process was
fair.” Id. (citation omitted). The record here demon-
strates that the district court more than satisfied this
task. The court carefully analyzed Cobb’s arguments for
a reduced sentence over six transcript pages before ex-
plicitly stating that it had considered each of Cobb’s
arguments and still declined to reduce his sentence. Cobb
may have found this exchange with the court unsatisfac-
tory, but the district court committed no error. See
United States v. Garcia-Oliveros, 639 F.3d 380, 381 (7th
Cir. 2011) (“[A] sentencing court is not required to
explain its view on every argument in mitigation or
aggravation.” (citing United States v. Miranda, 505 F.3d
785, 792 (7th Cir. 2007); United States v. Acosta, 474 F.3d
999, 1003 (7th Cir. 2007))).
D. Calculation of Peeples’s Firearms Enhancement
Was Flawed
The last matter to settle is defendant Peeples’s chal-
lenge to his sentence. As explained above, Peeples was
involved in the DTO for approximately fourteen weeks
out of the twenty-seven month conspiracy. On appeal, he
objects to the district court’s application of a two-level
sentencing enhancement under U.S.S.G. § 2D1.1(b)(1) for
the possession of firearms by his co-conspirators. We
review the district court’s factual findings supporting
the enhancement for clear error. United States v. Strode,
Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240, 15
11-1509, 11-1680, 11-2630
552 F.3d 630, 635 (7th Cir. 2009). It is the government’s
burden to “establish the appropriateness of the enhance-
ment by a preponderance of the evidence.” Vold, 66 F.3d
at 920. Though it is a close call, we cannot conclude that
the two-level enhancement of Peeples’s offense level
was supported by this record.
Section 2D1.1(b)(1) provides for a two-level enhance-
ment “if a dangerous weapon (including a firearm) was
possessed.” U.S.S.G. § 2D1.1(b)(1). We have repeatedly
observed that the enhancement is not only applicable
for the defendant who actually possesses a gun in the
course of a drug offense, but “section 1B1.3(a)(1)(B)
makes clear that defendants can also be on the hook for
firearms possessed by their coconspirators so long as
such possession was reasonably foreseeable.” United
States v. Luster, 480 F.3d 551, 558 (7th Cir. 2008) and
cases cited therein; see also United States v. Harris, 230
F.3d 1054, 1057 (7th Cir. 2000). The district court must
therefore make two separate findings: (1) “that someone
in the conspiracy actually possessed a firearm in fur-
therance of the conspiracy”; and (2) “that the co-con-
spirator’s firearm possession was reasonably foreseeable
to the defendant.” Luster, 480 F.3d at 558 (citations omit-
ted). If the government meets its burden of showing
gun possession by a co-conspirator, then “the bur-
den shifts to the defendant to show that it was clearly
improbable that the gun was connected to the offense.”
United States v. Olson, 450 F.3d 655, 684 (7th Cir. 2006)
(citing United States v. Berthiaume, 233 F.3d 1000, 1004 (7th
Cir. 2000)).
16 Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240,
11-1509, 11-1680, 11-2630
Based on the record before it, the district court did
not err in concluding that certain DTO members
possessed firearms. At sentencing, Peeples argued that
the use of firearms was not part of any jointly
undertaken criminal activity, but evidence showed
that several members of the DTO—including Daniels,
Townsend, Knox, and Paige—not only possessed
firearms, but did so as part of their conspiracy. The
district court specifically pointed to the fact that
Daniels told federal agents he would give guns to any
member of the DTO who wanted them for protection.
Moreover, Paige said that Daniels and other DTO
members used guns as a “means of protection” for
the organization.
The more difficult question is whether Peeples should
have reasonably foreseen his co-conspirators’ gun pos-
session as a member of this conspiracy. In tackling
this question, the district court first referenced prior
cases from our circuit holding that courts are permitted
to consider the practical reality of the drug trafficking
industry in determining whether the possession of
firearms by other members of a conspiracy is rea-
sonably foreseeable to a particular defendant. See
United States v. Berchiolly, 67 F.3d 634, 640 (7th Cir. 1995)
(noting that “the drug industry is by nature dangerous
and violent”); United States v. Vaughn, 585 F.3d 1024,
1029 (7th Cir. 2009) (recognizing that “guns are tools of
the drug trade”). The district court acknowledged, how-
ever, that common sense assumptions about the drug
trade only go so far and cannot alone satisfy the
Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240, 17
11-1509, 11-1680, 11-2630
foreseeability requirement. See Vold, 66 F.3d at 921 (“We
have never held . . . that the mere risk involved in a
drug manufacturing conspiracy establishes the rea-
sonable foreseeability of a concealed firearm under
Guideline § 2D1.1(b)(1) absent other evidence.”). The
government also concedes that the use of firearms was
not reasonably foreseeable to every runner in the DTO
and it did not seek the firearm enhancement for Smith
given the lack of evidence supporting the enhancement.
But in attempting to fill the gap between what is
known about the drug industry generally and the par-
ticular circumstances of this case, the district court errone-
ously relied on several irrelevant facts. For example, the
court highlighted the fact that Daniels told agents he
purchased guns for other members of the conspiracy
to use, but there is no evidence that Peeples ever
heard Daniels make a statement even close to this ef-
fect. This case is somewhat similar to United States v.
Vold in this regard. In that case, the government tried
to prove that a co-defendant’s gun possession was rea-
sonably foreseeable based on certain statements he
made to a third party about his willingness to engage in
a shoot-out with police, but there was no evidence that
the defendant ever heard his co-defendant make
those statements. See 66 F.3d at 921.
The district court also looked at the fact that Peeples
admitted to seeing a rifle at Daniels’s home during the
time he was a member of the conspiracy. But seeing a
gun at someone’s home is different than seeing a gun at
18 Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240,
11-1509, 11-1680, 11-2630
a drug stash house. And the government cannot point
to any evidence of Peeples seeing drugs at Daniels’s
home while he was a member of the conspiracy. There
is also no evidence in this record to suggest that
Daniels’s home was the base of the DTO’s drug distribu-
tion activity. This situation is therefore critically dif-
ferent from other textbook cases we have dealt with in
the past where a co-conspirator clearly possessed a
firearm at the same location where the defendant saw
drugs being stored or distributed. See, e.g., Luster, 480
F.3d at 558; United States v. Artley, 489 F.3d 813, 823 n.5
(7th Cir. 2007); United States v. Banks, 987 F.2d 463, 468 (7th
Cir. 1993) (collecting cases).
The district court also stated that Peeples knew that
Clay possessed a firearm. But Peeples pointed out in his
sentencing memorandum that Clay was arrested while
getting into Peeples’s car due to allegations from Clay’s
girlfriend that he threatened her with a gun. That was
the only reference to Clay’s firearm possession in the
record, and it does not establish the reasonable
foreseeability of Clay or others using a firearm in their
drug business. The court finally stated that Peeples
had firsthand knowledge that guns and drugs go hand
in hand because of his use of a firearm in connection
with a previous conviction from 2003. But Peeples’s past
dealings with guns in 2003 does not establish the
foreseeability of his co-conspirators’ conduct in 2008.
See United States v. Noe, 411 F.3d 878, 889 (8th Cir. 2005)
(refusing to take into account guns recovered from defen-
dant’s residence in 1999 when conspiracy at issue did not
Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240, 19
11-1509, 11-1680, 11-2630
begin until 2000). We conclude that the district court
committed clear error when it enhanced Peeples’s sen-
tence for possession of a firearm.
III. CONCLUSION
For the reasons set forth above, we V ACATE
Peeples’s sentence and R EMAND to the district court
for resentencing. The sentences of all other defendants
are A FFIRMED.
2-1-13