United States v. Fox, Walter J. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 07-3830 and 07-3831
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
W ALTER J. F OX AND R ODNEY S YKES,
Defendants-Appellants.
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 07-CR-101-S—John C. Shabaz, Judge.
A RGUED S EPTEMBER 9, 2008—D ECIDED N OVEMBER 14, 2008
Before B AUER, C UDAHY, and W OOD , Circuit Judges.
C UDAHY, Circuit Judge. Rodney Sykes and Walter Fox
pleaded guilty to conspiracy to distribute and to
possess with intent to distribute crack cocaine. Each
disagrees with the application of the Sentencing Guide-
lines to the facts of his case and contends that his sen-
tence is unreasonable. Sykes argues that the district court
improperly increased his base offense level on the basis
that he was an organizer of the offense, and Fox contends
that the drug quantity for which he was responsible
2 Nos. 07-3830 and 07-3831
was miscalculated. We find that Sykes is entitled only to
a limited remand under Kimbrough v. United States, 128
S. Ct. 558, 564, 169 L. Ed. 2d 481 (2007), but that Fox’s
sentence must be vacated and remanded for reconsid-
eration of the applicable drug quantity.1
I. Background
A. Facts
The appellants, Rodney Sykes and Walter Fox, are self-
described crack cocaine addicts who bought, sold and used
drugs together. They spent a lot of their time getting high
at Sykes’s house. At some point, Sykes, Fox and their co-
defendant James Sanderson attracted the attention of
the authorities and became targets of an investigation.
On June 1, 2007, an undercover officer (the UO) made
arrangements to purchase crack cocaine from Sykes. Sykes
met the UO at a designated location and sold her 2.541
grams of crack cocaine for $150. On June 6, the UO made
arrangements to purchase more crack cocaine from
Sykes. While the UO was waiting at the designated loca-
tion, Sykes called her and asked her to meet him at a gas
station. There, the UO met Sykes and an unknown as-
sociate; the associate sold her 4.743 grams of crack cocaine
for $300.
The UO again made arrangements with Sykes to pur-
chase crack cocaine on June 13, 2007. Police officers ob-
1
This court has jurisdiction over the appeal pursuant to
28 U.S.C. §§ 1291, 1294 and 18 U.S.C. § 3742(a).
Nos. 07-3830 and 07-3831 3
served Fox leave Sykes’s residence and travel to the
designated location. Fox sold the UO one “eight-ball” 2 of
crack cocaine for $150. The UO asked Fox if he had the
other eight-ball that the UO had requested. Fox did not,
but he agreed to retrieve it. The police officers observed
Fox travel back to Sykes’s house and then return to the
designated location where the UO was waiting. Fox then
provided the UO with the second eight-ball. The com-
bined weight of the two eight-balls was 4.138 grams.
On June 22, the UO once again made arrangements with
Sykes to purchase crack cocaine. This time James Sander-
son met the UO at the designated location and sold her
5.886 grams for $450.
Finally, on June 27, investigators executed a search
warrant at Sykes’s residence. They found 40 grams of crack
cocaine and other items indicative of the use and sale of
drugs. Sykes was arrested and gave a statement to the
police.
B. Procedural History
On June 27, 2007, the grand jury returned a six-count
indictment against Sykes, Fox and Sanderson. Count One
charged all three men with conspiracy to distribute and to
possess with intent to distribute five grams or more of
crack cocaine from on or about June 1, 2007 to on or about
2
An “eight-ball” is typically one eighth of an ounce of crack
cocaine, or 3.5 grams.
4 Nos. 07-3830 and 07-3831
June 22, 2007. Sykes and Fox pleaded guilty to Count One
of the indictment on September 12, 2007 pursuant to
written plea agreements. Sanderson did not plead guilty
at that time; instead, when the present case was appealed,
his case was still active in the district court.
In Sykes’s Presentence Investigation Report (PSR), the
probation officer recommended a two point upward
adjustment to his offense level for his role in the offense
“because [Sykes] instructed Mr. Fox and Mr. Sanderson
on the delivery of cocaine.” Sykes objected to the ap-
plication of this adjustment and argued that it was
based on an incomplete summary of his post-arrest state-
ment to investigators.
Sykes acknowledged that in his statement he said that
officers would find marijuana and crack cocaine in their
search of his residence, that any drugs located in his
residence belonged to him, that he had been selling drugs
for approximately four or five months, that he sold drugs
to make money to buy more drugs, that he usually ob-
tained an ounce to an ounce and a half of drugs every
two or three days and that he sold the majority of them
but smoked about a quarter to a half ounce per day with
Fox and Sanderson. In support of his objection to the
enhancement for his role in the offense, Sykes submitted
an extended excerpt from the statement, in which he
gave the following answers to questions:
Detective Linsmeier: How often did you have Jamie
[Sanderson] and Walt [Fox] running dope for you?
Sykes: Running dope for me?
Nos. 07-3830 and 07-3831 5
Detective Linsmeier: Yeah, delivering dope for you.
Sykes: Walter don’t deliver no dope for me. Walt
don’t deliver no dope at all. He gets high.
Detective Linsmeier: You’re covering for Walt,
Rodney.
Sykes: No I’m not. If Walt’s delivering dope, he ain’t
delivering it for me. Now Jamie, he may go and drop
something off . . . and they don’t be doing it for me,
they be doing it for themselves.
Detective Linsmeier: So if someone calls you up to
order some dope . . .
Sykes: I go myself.
Detective Linsmeier: Yeah, but what happens if
you’re not able to?
Sykes: Jamie will run it sometimes.
Detective Linsmeier: How often does Jamie run it
for you?
Sykes: Every now and then Jamie would make a run.
Detective Linsmeier: How often? How many times
a week?
Sykes: Maybe three or four times.
Detective Linsmeier: A week?
Sykes: Yeah.
...
Detective Linsmeier: Did Walter ever deliver. . .
6 Nos. 07-3830 and 07-3831
Sykes: If Walter ever delivered, he’d run his own shit.
He won’t be running for me.
Detective Chamulak: So if somebody called you and
said “hey, I need something,” and you’d say, “Ok,
I’ll take care of you,” but you didn’t have it, and then
you called somebody else to take care of it?
Sykes: Yeah, I’ll do that.
Detective Linsmeier: So hypothetically someone
called you up and said I want whatever, five 8-balls,
or whatever, if you don’t have it. . .
Sykes: Then I’ll send them to somebody else.
Detective Linsmeier: Who have you sent them to in
the past?
Sykes: [Fox, Sanderson and others.]
...
Sykes: Somebody’s calling me, I may call Jamie;
I may call Walt; I may call somebody and say, uh,
somebody want some, you want that? And they be
like, “I’ll go get it.”
Detective Linsmeier: Okay, so where did Jamie or
Walt get the coke from? Did they get it from you or
their own source?
Sykes: They already had it. They probably already
had their own shit.
Detective Linsmeier: From you or from their own
source?
Sykes: From their own source.
Nos. 07-3830 and 07-3831 7
Sykes argued that, when his statement was considered
as a whole, it did not support a finding that Fox and
Sanderson were delivering drugs on his behalf or that
he was a leader or organizer of the activity. He also quoted
an exchange between Fox and the district court
that occurred during Fox’s change of plea hearing:
Court: Mr. Fox, what was your role in the conspiracy?
And were you a member of it?
Fox: Yes, Your Honor. I was a member according
to Count One, and on the 13 th [of June, 2007] I did
deliver . . . to the young lady that showed up at Wood-
man’s parking lot who was an undercover. . ..
Court: Where did you get that crack? You bought it
or just sold it? Who was your source? How did you
get it? Who gave it to you? How did you get it for
distribution?
Fox: Well, I ended up purchasing the crack cocaine.
At Sykes’s sentencing, the district court found that he
had organized the distribution of crack cocaine and
applied the two-point upward adjustment to his offense
level. The court noted that it “has read [Sykes’s post-
arrest statement] on several occasions and finds that
you can probably make 15 conclusions out of it, 14 of
which do not benefit the defendant and the Court isn’t
going to take that 15th step.” It pointed to the undisputed
fact that the undercover officer called Sykes to order
crack cocaine and that on at least two occasions the
drugs were delivered by someone other than Sykes. On
the subject of the June 13, 2007 sale, the court said,
8 Nos. 07-3830 and 07-3831
[T]he undercover officer made arrangements to
obtain two 8 ball quantities of crack cocaine from the
defendant. Mr. Sykes did not refer the officer to
Mr. Fox because he was out of cocaine; rather, Fox
delivered the drugs after he was observed by law
enforcement leaving the defendant’s residence.
Sykes must have provided the location and descrip-
tion of the customer to Fox; Sykes did, in order to
complete the sale. When Fox met with the undercover
officer, he did not have the requested amount of drugs.
He was observed by law enforcement driving back to
defendant’s residence, presumably to obtain the
additional quantity, immediately return[ing] to the
location where the undercover officer was waiting
and provid[ing] the additional crack cocaine.
Based on these circumstances, the court concluded that
the government had proven by a preponderance of the
evidence that Sykes had instructed Fox to deliver crack
cocaine at least on June 13, 2007. Later in the hearing, the
court reiterated,
A two-level increase pursuant to Section 3B1.1(c) is
applicable because the defendant organized the distri-
bution of crack cocaine. Mr. Sykes did that. He did that
over a period of time. The evidence clearly shows
the defendant arranged to supply an undercover
officer crack cocaine on June 13, 2007 and then pro-
vided the crack to Fox who made the delivery; at least
Nos. 07-3830 and 07-3831 9
that’s what Fox apparently is saying.3 Defendant also
directed Fox and Sanderson to other customers . . . .
The court then calculated Sykes’s guidelines imprison-
ment range. It found him to be a career offender under
U.S. Sentencing Guidelines Manual [U.S.S.G.] § 4B1.1(a),
but, because his adjusted offense level was higher under
Chapters 2 and 3 of the guidelines, the court applied
this higher offense level. This resulted in an offense level
of 33 and a criminal history category of six, which corre-
sponded to a guidelines imprisonment range of 235 to 293
months. The court imposed a sentence of 250 months,
based in large part on Sykes’s criminal history, which
it referred to as “the horrendous amount of crime that
this defendant has committed.”
In Fox’s PSR, the probation officer said he believed “the
government can prove by a preponderance of the
evidence that [Fox’s] relevant conduct involved 44.138
grams of crack cocaine.” This included both the 4.138
grams from the June 13, 2007 sale and the 40 grams found
in Sykes’s residence on June 22, 2007. The probation
officer’s justification for including the 40 grams from
Sykes’s residence was that “[Fox] was aware Mr. Sykes
3
The court may have been referring here to a statement Fox
made during his debriefing. In Fox’s objections to his PSR, he
characterized that statement as follows: “Mr. Fox provided
detail about [the June 13, 2007 sale] during his debriefing,
explaining to police that he wanted to use Mr. Sykes’ truck and
Sykes would not allow him to do that unless Fox agreed to
do the drop off.”
10 Nos. 07-3830 and 07-3831
stored drugs at this location because he traveled to the
residence between controlled buys on June 13, 2007.”
Fox objected to the inclusion of the additional 40 grams
on the following bases: (1) the record did not support
the existence of a conspiracy between Fox and Sykes
beyond the one that started and ended on June 13, 2007;
(2) there was no evidence that the 40 grams were possessed
(a) in furtherance of the jointly undertaken criminal
activity and (b) during the commission of the offense of
conviction, as required by U.S.S.G. § 1B1.3(a)(1)(B); and
(3) the record did not support a conclusion that Fox
should have foreseen Sykes’s possession of the 40 grams
on June 27, 2007.
At Fox’s sentencing hearing, after Fox and the govern-
ment made their arguments on the extent of relevant
conduct, the entirety of the court’s comments were
the following:
The defendant is responsible for the crack cocaine
located at [Sykes’s] residence on the date of the
search warrant. Sykes provided drug customers to the
defendant. Defendant was aware that Sykes stored
drugs in his residence. Defendant was observed
traveling to that residence to obtain additional crack
cocaine on the date he delivered crack cocaine to the
undercover officer.
...
[Fox] is, as a member of that conspiracy, responsible
for the crack cocaine located at the residence of the
codefendant Sykes on the day of the search. He was
Nos. 07-3830 and 07-3831 11
provided drug customers. He provided them to the
defendant. He was aware that Sykes was storing
drugs at his residence and was observed traveling to
that residence to obtain additional crack cocaine . . . .
The court then calculated Fox’s guidelines imprison-
ment range using the 44.138 grams of crack cocaine and the
drug quantity table in U.S.S.G. § 2D1.1(c). This process
resulted in an adjusted offense level of 23, which was
paired to Fox’s criminal history category of one to
produce a range of 46 to 57 months. After considering
Fox’s mitigating personal circumstances, the court
imposed a sentence of 46 months’ imprisonment.
Sykes and Fox both timely appealed. On September 5,
2008, Sykes submitted a letter to this court citing United
States v. Clanton, 538 F.3d 652 (7th Cir. 2008), as supple-
mental authority on the modified crack penalty in
support of his entitlement to a remand under Kimbrough
v. United States, 128 S. Ct. 558, 169 L. Ed. 2d 481 (2007).
II. Discussion
We review a district court’s determinations of a defen-
dant’s role in the offense under U.S.S.G. § 3B1.1, relevant
conduct under U.S.S.G. § 1B1.3 and drug quantity under
U.S.S.G. § 2D1.1 for clear error. United States v. Artley,
489 F.3d 813, 821 (7th Cir. 2007); United States v. Johnson,
489 F.3d 794, 796 (7th Cir. 2007). We will affirm the
district court’s decision unless, after considering all of
the evidence, we are left with a definite and firm convic-
tion that a mistake has been made. Artley, 489 F.3d at
12 Nos. 07-3830 and 07-3831
821 (citing, inter alia, United States v. Bennett, 461 F.3d
910, 912 (7th Cir. 2006)).
A. Sykes’s Role in the Offense
Sykes argues that there was not sufficient evidence in
the record to support the district court’s finding that he
was an organizer of the offense under U.S.S.G. § 3B1.1 and
that the evidence cited by the district court was not
reliable.4 We have summarized the evidence relied on by
4
Section 3B1.1(c), under which Sykes was sentenced, provides
the following:
Based on the defendant’s role in the offense, increase the
offense level as follows:
If the defendant was an organizer, leader, manager, or
supervisor in any criminal activity other than [one
involving five or more participants], increase by
2 levels.
U.S.S.G. § 3B1.1(c). Application Note 2 thereto says,
To qualify for an adjustment under this section, the defen-
dant must have been the organizer, leader, manager, or
supervisor of one or more other participants. An upward
departure may be warranted, however, in the case of a
defendant who did not organize, lead, manage, or
supervise another participant, but who nevertheless exer-
cised management responsibility over the property, assets,
or activities of a criminal organization.
U.S.S.G. § 3B1.1(c) cmt. n.2. And Application Note 4 says,
In distinguishing a leadership and organizational role from
one of mere management or supervision, titles such as
(continued...)
Nos. 07-3830 and 07-3831 13
the district court. But we may affirm the application of
Section 3B1.1 on those grounds or any others that are
supported by the record. Schuh, 289 F.3d at 973.
The evidence available to the district court included
the statements made to law enforcement by Sykes and
Fox: Sykes’s post-arrest statement, Fox’s statement
during his plea hearing and Fox’s representations to the
court in his objections to his PSR. These statements
were inconsistent on the issue whether Fox and
Sanderson delivered drugs on Sykes’s behalf. The
district court appears to have made credibility findings
with respect to these statements, sifting and winnowing
the true from the questionable. The court found that the
bulk of Sykes’s statement supported application of the
adjustment, and that Fox’s statements provided
additional support in that they showed that Fox made
deliveries for Sykes. A district court’s findings on witness
(...continued)
“kingpin” or “boss” are not controlling. Factors the court
should consider include the exercise of decision making
authority, the nature of participation in the commission
of the offense, the recruitment of accomplices, the claimed
right to a larger share of the fruits of the crime, the degree
of participation in planning or organizing the offense, the
nature and scope of the illegal activity, and the degree of
control and authority exercised over others. There can, of
course, be more than one person who qualifies as a leader
or organizer of a criminal association or conspiracy. This
adjustment does not apply to a defendant who merely
suggests committing the offense.
U.S.S.G. § 3B1.1(c) cmt. n.4.
14 Nos. 07-3830 and 07-3831
credibility (even when only implied) are entitled to great,
although not absolute, deference. See Anderson v. City
of Bessemer City, N.C., 470 U.S. 564, 573-75 (1985).5 Here,
despite obvious conflicts in the statements, it was not
clear error for the district court to find that the state-
ments of Sykes and Fox supported the conclusion that
Sykes was providing direction for Fox and Sanderson,
and that conclusion supports the application of the ad-
justment.
In addition, there was circumstantial evidence relating
to the drug sales on which to rely. On at least two occa-
sions, the UO called Sykes to order crack cocaine, Sykes
agreed to make the sale and Sykes and the UO determined
a time and location for the sale, but someone other than
Sykes showed up to make the exchange. On June 13, 2007,
Fox appeared to make the sale, was apparently unaware
that the deal was for two eight-balls and went back to
Sykes’s residence to pick up the other eight-ball. One
could make inferences from these circumstances that
would not support the application of Section 3B1.1, but
5
In Anderson, the Court explained, “the trial judge may [not]
insulate his findings from review by denominating them
credibility determinations, for factors other than demeanor
and inflection go into the decision whether or not to believe
a witness. Documents or objective evidence may contradict
the witness’ story; or the story itself may be so internally
inconsistent or implausible on its face that a reasonable
factfinder would not credit it. Where such factors are present,
the court of appeals may well find clear error even in a
finding purportedly based on a credibility determination.” Id.
at 575.
Nos. 07-3830 and 07-3831 15
one not implausible inference is that Sykes was
directing his acquaintances, and it was not clear error for
the district court to make that inference.
Sykes argues that acting as a middleman or a narcotics
broker is alone insufficient to support an adjustment
under Section 3B1.1, citing United States v. Reneslacis, 349
F.3d 412, 417 (7th Cir. 2003), and United States v. Schuh, 289
F.3d 968, 973 (7th Cir. 2002). Those cases were clarified
in United States v. Howell, 527 F.3d 646, 649 (7th Cir.
2008), when the court said, “while we examine all of the
factors, we emphasize both relative responsibility and
control over other participants, and recognize that middle-
man status is not necessarily inconsistent with being
a manager or supervisor.” 6
There is more evidence here to support an organizer
adjustment than there was in United States v. Mustread,
42 F.3d 1097, 1100-01 (7th Cir. 1994), one of the cases
Sykes cites in support of his argument that he did not
have more control over the offense than did Fox or Sander-
6
Moreover, the present case is distinguishable from Schuh
because in that case, “there was no evidence that [the defendant]
organized, led, or in any way controlled the [drug dealers]. . . .
[A]cting as a ‘middleman’ by directing customers to dealers
is insufficient for a § 3B1.1 adjustment. . . . [The defendant]
did not supply the cocaine to the dealers or control who sold
it, when they sold it, at what price they sold it, how they
acquired it, how much or to whom they sold, what type they
sold, or how many dealers could sell at [his bar] at any given
time.” 289 F.3d at 973. Here, the district court found that
Sykes was more than just a middleman and that he did exer-
cise control over his codefendants.
16 Nos. 07-3830 and 07-3831
son. In Mustread, the only evidence that supported the
district court’s application of Section 3B1.1 was the fact
that in one instance, the defendant asked a friend’s drug
“mule” to transport drugs for him. The mule agreed to
do so only after asking permission from his boss (the
defendant’s friend). Id. This court found that evidence to
be insufficient to support a leadership adjustment to
the defendant’s sentence and therefore that the district
court clearly erred in applying Section 3B1.1. Id. at 1104-
05. The court said,
[W]e have recognized that a key inquiry, though not
the only inquiry, is whether the defendant exercised
some control over at least one other participant. That
does not mean that others must have played mario-
nette to the defendant’s puppeteer. For these pur-
poses, to control another the defendant may simply
have organized or in some way directed him. But
however control is defined, Mustread lacked ade-
quate control over any other participant . . . .
Mustread’s actions do not fit the rest of the seven-part
framework, either.
Id. at 1104 (citations omitted).
Sykes cites cases for the proposition that he has a due
process right to be sentenced on the basis of reliable
information, and “the hallmark of reliability is consistency
of facts and details.” United States v. Johnson, 489 F.3d 794,
798 (7th Cir. 2007) (quoting United States v. Zehm, 217 F.3d
506, 514 (7th Cir. 2000); United States v. Galbraith, 200 F.3d
1006, 1012 (7th Cir. 2000)). The mere existence of an
inconsistency, however, especially in the defendant’s
Nos. 07-3830 and 07-3831 17
own statement, cannot fully thwart the court’s reliance
on such a statement. In the present case, Sykes’s ad-
mission that Sanderson sometimes delivered for him
was corroborated by the fact that Sanderson was
observed making a sale (the June 22, 2007 sale) that was
originally arranged by Sykes. The district court did not
clearly err in adjusting Sykes’s offense level based on
his supervisory role.
B. Fox’s Relevant Conduct
As noted, the district court found that the 40 grams of
crack cocaine found in Sykes’s residence were part of
Fox’s relevant conduct under U.S.S.G. § 1B1.3(a)(1)(B). It
therefore included that amount in applying the drug
quantity table in Section 2D1.1(c) to determine Fox’s base
offense level. Fox has repeatedly objected to this
inclusion but his objections have thus far fallen on deaf
ears. He now asks us to vacate his sentence, arguing that
the government, the PSR and the district court focused
exclusively on the foreseeability requirement of relevant
conduct, ignoring its other requisites, and that in any
event, the record did not support the inclusion. For
the following reasons, we agree with Fox.7
7
The relevant conduct section of the Sentencing Guidelines
provides as follows:
(a) [Relevant conduct] shall be determined on the basis
of the following:
(continued...)
18 Nos. 07-3830 and 07-3831
7
(...continued)
...
(1)(B) in the case of a jointly undertaken criminal activity
(a criminal plan, scheme, endeavor, or enterprise under-
taken by the defendant in concert with others, whether or
not charged as a conspiracy), all reasonably foreseeable acts
and omissions of others in furtherance of the jointly undertaken
criminal activity,
that occurred during the commission of the offense of conviction,
in preparation for that offense, or in the course of attempt-
ing to avoid detection or responsibility for that offense[.]
U.S.S.G. § 1B1.3(a)(1)(B) (emphasis added). And relevant
excerpts from Application Note 2 say,
In the case of a jointly undertaken criminal activity, subsec-
tion (a)(1)(B) provides that a defendant is accountable
for the conduct (acts and omissions) of others that was both:
(i) in furtherance of the jointly undertaken criminal
activity; and
(ii) reasonably foreseeable in connection with that
criminal activity.
Because a count may be worded broadly and include the
conduct of many participants over a period of time, the
scope of the criminal activity jointly undertaken by the
defendant (the “jointly undertaken criminal activity”) is not
necessarily the same as the scope of the entire conspiracy, and
hence relevant conduct is not necessarily the same for every
participant. In order to determine the defendant’s account-
ability for the conduct of others under subsection (a)(1)(B),
the court must first determine the scope of the criminal activity
(continued...)
Nos. 07-3830 and 07-3831 19
7
(...continued)
the particular defendant agreed to jointly undertake (i.e., the
scope of the specific conduct and objectives embraced by the
defendant’s agreement). The conduct of others that was both
in furtherance of, and reasonably foreseeable in connection
with, the criminal activity jointly undertaken by the defen-
dant is relevant conduct under this provision. The conduct
of others that was not in furtherance of the criminal activity
jointly undertaken by the defendant, or was not reasonably
foreseeable in connection with that criminal activity, is not
relevant conduct under this provision.
....
U.S.S.G. § 1B1.3 cmt. n.2 (emphasis added).
One of the provided illustrations demonstrates this point:
Defendants H and I engaged in an ongoing marihuana
importation conspiracy in which Defendant J was hired
only to help off-load a single shipment. Defendants H, I, and
J are included in a single count charging conspiracy to
import marihuana. Defendant J is accountable for the
entire single shipment of marihuana he helped import
under subsection (a)(1)(A) and any acts and omissions in
furtherance of the importation of that shipment that were
reasonably foreseeable (see the discussion in example (a)(1)
above). He is not accountable for prior or subsequent
shipments of marihuana imported by Defendants H or I
because those acts were not in furtherance of his jointly
undertaken criminal activity (the importation of the
single shipment of marihuana).
U.S.S.G. § 1B1.3 cmt. n.2, illus. (c)(3).
20 Nos. 07-3830 and 07-3831
Fox first contends that the district court neglected to first
determine the scope of the criminal activity that he
agreed to jointly undertake, as is preliminarily required.
In response, the government—as it did just recently in
United States v. Soto-Piedra, 525 F.3d 527, 531 (7th Cir.
2008)—suggests that it was not required to demonstrate the
scope of Fox’s jointly undertaken criminal activity because
he pleaded guilty to conspiracy. But, as we noted in Soto-
Piedra, that proposition is insupportable; Section 1B1.3 was
amended in 1992 specifically to disavow it. Id. “Conspiracy
liability, as defined in Pinkerton v. United States, 328 U.S.
640, 646-48, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946), is generally
much broader than jointly undertaken criminal activity
under § 1B1.3.” Id.
Second, Fox contends that the district court did not
consider whether Sykes’s possession of the 40 grams
was in furtherance of any joint criminal activity involving
Fox and Sykes. The only significant facts in the record
involving the joint criminal activity between the two men
are Fox’s participation in the June 13, 2007 deal and the
agreed fact that Fox was a crack addict who spent time
at Sykes’s residence getting high. It is impossible for us
to tell from this record whether Sykes’s possession of
40 grams of crack cocaine on June 27, 2007 was in further-
ance of any joint criminal activity involving him and Fox.
Third, Fox points out that neither the government, nor
the PSR, nor the district court addressed the fact that the
40 grams of crack cocaine was found in Sykes’s residence
on June 27, 2007, five days after the end of the charged
conspiracy between the men. This circumstance is not
Nos. 07-3830 and 07-3831 21
dispositive, but it should be considered in the totality of
the circumstances. For example, there is evidence in the
record that suggests that this particular 40 grams was
probably not possessed by Sykes during the charged
conspiracy: Sykes testified that he typically obtained an
ounce to an ounce and a half every two to three days, and
therefore it is at least possible that the 40 grams he pos-
sessed on June 27 was acquired after June 22 (the end of
the charged conspiracy).
The court did consider whether Sykes’s possession
was foreseeable to Fox. But it did not consider that ques-
tion in the context of a connection with the joint crim-
inal activity between Fox and Sykes. See, e.g., United
States v. Artley, 489 F.3d 813, 822-23 (7th Cir. 2007). The
court stated that “[Fox] was aware that Sykes stored drugs
at his residence.” Without consideration of whether
that awareness arose out of Fox’s joint criminal activity
with Sykes, however, this finding is insufficient, because
reasonable foreseeability requires more than just sub-
jective awareness. United States v. Edwards, 945 F.2d 1387,
1393 (7th Cir. 1991).
In Fox’s case, the district court’s inclusion of the
40 grams of crack cocaine in his drug quantity calcula-
tion instead of only the 4.138 grams involved in the
June 13, 2007 transaction resulted in a guidelines range
of imprisonment of 46-57 months instead of 24-30
months, which is a substantial increase. Although a
district court’s findings of relevant conduct are reviewed
only for clear error, even such deference cannot cure an
absence of findings on key elements of the analysis.
22 Nos. 07-3830 and 07-3831
United States v. Schaefer, 291 F.3d 932, 939 (7th Cir. 2002).
For these reasons, we will vacate and remand Fox’s
sentence for reconsideration of his relevant conduct
under Section 1B1.3 and applicable drug quantity under
Section 2D1.1.
C. Reasonableness of Sentences
Sykes and Fox also contend that their sentences were
both procedurally unreasonable (because the district court
erred in applying the Sentencing Guidelines) and sub-
stantively unreasonable (because they do not reflect the
18 U.S.C. § 3553(a) factors). These arguments relating to
application of the guidelines have already been addressed,
and the arguments relating to substantive reason-
ableness are not persuasive because the district court
carefully examined each of their situations and did not
abuse its discretion in selecting their sentences.
D. Kimbrough Remands
The district court sentenced Sykes and Fox on
November 21, 2007 using the 100-to-one powder to
crack cocaine ratio. On December 10, 2007, the Supreme
Court decided Kimbrough v. United States, 128 S. Ct. 558,
564, 169 L. Ed. 2d 481 (2007), in which it held that this
ratio is not dictated by statute, but is merely advisory. In
United States v. Taylor, 520 F.3d 746, 747-48 (7th Cir. 2008),
we held that a limited remand is appropriate in cases
where the defendant did not object to the ratio in the
district court. Additionally, in United States v. Clanton,
Nos. 07-3830 and 07-3831 23
538 F.3d 652, 660 (7th Cir. 2008), we held that a defendant
who was characterized as a career offender but whose
offense level calculated under § 2D1.1 was higher than
that calculated under § 4B1.1(b), was effectively sen-
tenced under the guideline’s crack-to-powder ratio and
was also entitled to a Kimbrough remand.
Sykes did not waive the crack penalty argument
because he did not expressly decline to raise it, and there
is no forfeiture because it was not clear until Clanton
that he was entitled to a Kimbrough remand. Therefore,
his case will be remanded for resentencing in light of
Kimbrough.
III. Conclusion
For the foregoing reasons, we V ACATE the sentences
and R EMAND Sykes’s case for resentencing in light of
Kimbrough and Fox’s case for resentencing consistent
with this opinion.
11-14-08