United States v. Longstreet, Ray ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 07-1657, 07-2685 & 07-3083
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R AY L ONGSTREET, M ICHAEL E RVIN ,
and A NSELMO Z EPEDA,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 471—Matthew F. Kennelly, Judge.
A RGUED N OVEMBER 3, 2008—D ECIDED JUNE 8, 2009
Before K ANNE, E VANS, and SYKES, Circuit Judges.
K ANNE , Circuit Judge. Ray Longstreet, Michael Ervin,
and Anselmo Zepeda were among twenty-nine defendants
charged with a variety of federal offenses arising from
their participation in a large drug operation on the west
side of Chicago. The defendants ranged from suppliers
to gang leaders to low-level, street-corner drug dealers.
All twenty-nine defendants were indicted for, inter alia,
a conspiracy to possess and distribute controlled sub-
2 Nos. 07-1657, 07-2685 & 07-3083
stances. Unfortunately, we see many cases involving
large drug conspiracies. It is disheartening to know that
when the legal system removes one drug conspirator
from the street, someone else will quickly fill the void.
But as long as the actions occur, we must deal with
the actors.
Of the three appellants, only Longstreet—the leader of
the west side faction of the Four Corner Hus-
tlers—proceeded to trial, where a jury found him guilty
of a number of charges. Ervin and Zepeda both pled
guilty. The district court sentenced Longstreet, Ervin, and
Zepeda to 456, 300, and 210 months in prison, respectively.
On appeal, Longstreet challenges his conviction, and all
three defendants present issues regarding their sentences.
I. B ACKGROUND
This case involves a widespread drug operation on
Chicago’s troubled west side, and the twenty-nine co-
defendants included individuals involved in all aspects of
the business. The primary player for purposes of this
appeal is Ray Longstreet, who was the alleged “chief” of
the west side faction of a street gang named the Four
Corner Hustlers. Longstreet oversaw a drug network that
trafficked in heroin, cocaine, crack, and marijuana.
Longstreet’s activities included coordinating the purchase,
mixture, and packaging of substances containing heroin
and crack; directing drug sales by lower-level gang mem-
bers; collecting “street rent” from dealers in exchange
for permission to sell drugs in his territory; and con-
trolling the types of drugs available and the street
corners on which the dealers sold them.
Nos. 07-1657, 07-2685 & 07-3083 3
Michael Ervin was a mid-level gang operative who
allegedly served as Longstreet’s “enforcer” and also sold
heroin on Longstreet’s behalf. Unlike the other two ap-
pellants, Anselmo Zepeda was involved on the conspir-
acy’s supply side; he allegedly fronted other dealers large
quantities of drugs to be repackaged and resold on the
streets. The remaining details reflect an all-too-common
illegal drug operation, and we see no need to describe
them further except as they relate to the analysis below.
In 2004, the Chicago Police Department and the Drug
Enforcement Agency began investigating drug trafficking
in the area controlled by the Four Corner Hustlers. The
investigation included live and video surveillance of
Longstreet and his co-conspirators, undercover
purchases at one of Longstreet’s corners, and court-autho-
rized wiretaps relating to three telephone numbers. In
total, law enforcement recorded between 3,000 and 5,000
calls on one telephone belonging to Longstreet and two
telephones belonging to Anthony Sutton, a crack cocaine
dealer who operated in Longstreet’s territory. Many of
the calls revealed the mechanics of a modern-day drug
business. At Longstreet’s trial, the government played
over one hundred of these calls, many of which
involved Longstreet and nearly all of which related to
drug activity.
On September 14, 2005, a grand jury returned a sixty-
seven-count indictment, Count One of which charged
twenty-nine individuals with a single conspiracy to
possess with intent to distribute, and to distribute, con-
trolled substances in violation of 21 U.S.C. § 846. The
4 Nos. 07-1657, 07-2685 & 07-3083
controlled substances included mixtures and substances
containing cocaine, heroin, marijuana, and cocaine base
in the form of crack. The three appellants were also
charged with a number of other offenses related to
their participation in the drug operation.
Longstreet proceeded to trial, and the government, in
addition to introducing the recorded telephone conversa-
tions, called law enforcement officers and four
cooperating witnesses, each of whom testified about his
or her interactions with Longstreet. The key government
witness was Anthony Sutton, who testified extensively
about Longstreet’s various roles in the local drug
business, as well as Sutton’s own role as a drug dealer.
After a week-long trial, the jury convicted Longstreet
for his participation in the conspiracy and several
related offenses. On March 19, 2007, the district court
sentenced Longstreet to 456 months in federal prison on
the conspiracy charge.1
Ervin and Zepeda each pled guilty to the conspiracy
charge and two related offenses. On May 23, 2007, the
district court sentenced Ervin to 300 months in prison.
On August 9, the district court sentenced Zepeda to
210 months in prison.
1
The district court also sentenced Longstreet to concurrent
prison sentences on the related offenses. Longstreet does not
challenge those convictions, and we need not address them.
Nos. 07-1657, 07-2685 & 07-3083 5
II. A NALYSIS
We consolidated the defendants’ cases for appeal. Each
co-defendant raises separate issues, and we address
each of them in turn. We first consider Longstreet’s
challenges to both his conviction and his sentence. We
next address the sole issue that Ervin presents, which
Longstreet raises as well: whether a limited remand is
appropriate for the district court to consider the
disparity created by the Sentencing Guidelines’
crack/powder cocaine ratio. Last, we address Zepeda’s
challenges to his sentence.
A. Longstreet’s Challenges to His Conviction and Sentence
Longstreet challenges both his conviction and his sen-
tence, and he raises four issues: (1) whether the govern-
ment produced sufficient evidence to prove that he was
part of the charged conspiracy; (2) whether the district
court properly instructed the jury regarding multiple
conspiracies; (3) whether the district court properly
precluded him from calling Andre Kincaid to testify
about drug purchases from a co-conspirator; and
(4) whether the court properly sentenced him to 456
months in prison.
1. Fatal Variance/Sufficiency of the Evidence
Longstreet first claims that there was a prejudicial
variance between the conspiracy charged and the evidence
produced at trial. According to him, the proof demon-
6 Nos. 07-1657, 07-2685 & 07-3083
strated, at best, a number of smaller conspiracies, rather
than one unified conspiracy including him and Anthony
Sutton. Although Longstreet makes a belated effort to
separate himself from the activities of other co-conspira-
tors, particularly Sutton, we find his argument unavailing.
A variance arises when the facts proved at trial differ
from those alleged in the indictment. United States v.
Griffin, 493 F.3d 856, 862 (7th Cir. 2007). In a conspiracy
case, we treat a defendant’s variance claim as a challenge
to the sufficiency of the evidence supporting the jury’s
finding that the defendant was a member of the charged
conspiracy. Id. To succeed, Longstreet must establish
that (1) the evidence at trial was insufficient to support
the jury’s finding that he belonged to a single conspiracy,
and (2) he was prejudiced by the variance. United States
v. Jones, 275 F.3d 648, 651 (7th Cir. 2001). We view the
evidence in the light most favorable to the government
and will overturn a conviction only if the record contains
no evidence from which a reasonable juror could have
found the defendant guilty. United States v. Rollins, 544
F.3d 820, 835 (7th Cir. 2008). The defendant’s “heavy”
burden when challenging a conviction for insufficiency
of the evidence is “nearly insurmountable.” United States
v. Moses, 513 F.3d 727, 733 (7th Cir. 2008) (quotations
omitted); see also United States v. Melendez, 401 F.3d 851,
854 (7th Cir. 2005) (“Sufficiency of the evidence chal-
lenges rarely succeed because we owe great deference to
the jury’s verdict.”)
Therefore, we must determine whether the record
contains sufficient evidence for a reasonable juror to have
Nos. 07-1657, 07-2685 & 07-3083 7
found Longstreet guilty of the conspiracy in Count One
of the indictment. A conspiracy exists when two or more
people agree to commit an unlawful act, and the
defendant knowingly and intentionally joins that agree-
ment. Rollins, 544 F.3d at 835. A conspiracy under
21 U.S.C. § 846 requires “ ‘substantial evidence that the
defendant knew of the illegal objective of the conspiracy
and agreed to participate.’ ” Id. (quoting United States
v. Thornton, 197 F.3d 241, 254 (7th Cir. 1999)).
In proving a conspiracy, the government need not
establish with whom the defendant conspired; it must
simply prove “ ‘that the defendant joined the agreement
alleged, not the group.’ ” Griffin, 493 F.3d at 862 (quoting
United States v. Stigler, 413 F.3d 588, 592 (7th Cir. 2005)). “So
long as the evidence demonstrates that the co-conspirators
embraced a common criminal objective, a single con-
spiracy exists, even if the parties do not know one or
another and do not participate in every aspect of the
scheme.” Jones, 275 F.3d at 652. For a drug conspiracy,
“[a]ll that is necessary is ‘enough circumstantial evidence
to support, beyond reasonable doubt, an inference that
the defendants agreed among themselves to distribute
drugs.’ ” United States v. Pagan, 196 F.3d 884, 889 (7th Cir.
1999) (quoting United States v. Townsend, 924 F.2d 1385,
1390 (7th Cir. 1991)).
In this case, the government introduced ample evidence
from which a reasonable juror could have found that
Longstreet knowingly agreed with others to distribute
illegal drugs. As long as such evidence was before the
jury, its verdict must stand; it is the jury’s role to deter-
8 Nos. 07-1657, 07-2685 & 07-3083
mine the credibility of the witnesses and weigh the evi-
dence. Rollins, 544 F.3d at 835; see also Pagan, 196 F.3d at
889. It is unnecessary to recount all of the facts of this
case; we will merely note a few pieces of evidence that
adequately support the jury’s verdict. The government
presented evidence that Longstreet controlled drug
trafficking in a particular area, operated his own drug
business by hiring employees to package and sell heroin,
and collected rent from dealers in exchange for the right
to sell drugs on street corners that he controlled. The jury
not only saw witnesses testify to these facts, but it
also heard multiple wiretapped phone conversations
between Longstreet and co-conspirators discussing drugs,
guns, and territory. This evidence supports the conspiracy
conviction.
First, evidence demonstrated that Longstreet operated
his own heroin business, which Longstreet does not
appear to contest on appeal. Several witnesses testified
that Longstreet purchased large quantities of heroin
from multiple suppliers, who often fronted him the
drugs expecting to be repaid from the proceeds of their
sale. Cf. United States v. Bustamante, 493 F.3d 879, 884-85
(7th Cir. 2007) (noting that factors indicating a drug
conspiracy include transactions involving large quantities
of drugs and sales on credit). Various co-conspirators
explained that Longstreet employed them to assist in
mixing and repackaging the drugs, to sell heroin at his
drug spots on the streets, to collect the proceeds, and, if
necessary, to act as his “enforcers.” This evidence
indicates that Longstreet was neither an individual,
disinterested drug distributor, nor engaged in a single
Nos. 07-1657, 07-2685 & 07-3083 9
drug transaction. Cf. id. at 884 (“[B]uying and selling
drugs, without more, does not constitute a conspiracy.”).
Second, there was plentiful evidence indicating a crimi-
nal agreement between Longstreet and Anthony Sutton.
Sutton testified that Longstreet was the chief of the Four
Corner Hustlers and that he controlled the territory
bordered by Pulaski Avenue, Chicago Avenue, Hamlin
Avenue, and Division Street. Sutton explained that
Longstreet was in a position of power over him and other
dealers, that Longstreet enlisted employees to handle
problems with the dealers, and that Longstreet required
the dealers—including Sutton—to pay rent for the right
to sell drugs in his territory. Sutton’s drug spot was
located in front of Longstreet’s home, and Sutton stopped
paying rent only when “Ray Longstreet told him he
didn’t have to anymore.” During cross-examination,
Sutton testified that when he first reopened this spot in
2002, three of Longstreet’s employees separately demanded
rent, using Longstreet’s name expressly. The record is
littered with evidence—including multiple recorded
telephone calls between Longstreet and Sutton—reflecting,
at least, an agreement between Longstreet and Sutton
to coordinate their own drug sales, and, at most,
Longstreet’s efforts to control the drug sales of many
dealers in the area.
Sutton also contradicted one of the theories that
Longstreet propounded in an effort to undermine a
single conspiracy. Longstreet argued that the two men
competed with one another for heroin sales, which he
claims indicated that they were operating two separate
10 Nos. 07-1657, 07-2685 & 07-3083
conspiracies. According to Sutton, however, he and
Longstreet agreed that Sutton would sell crack cocaine,
while Longstreet would sell heroin. Sutton stated a
number of times, including during cross-examination, that
he did not sell heroin. Longstreet attempted to introduce
evidence to the contrary, which we address below, but
even if we assume that Sutton competed with Longstreet
by selling heroin on occasion, the other evidence still
suggests that they joined in a single agreement to
possess and distribute illegal drugs. See United States v.
Maholias, 985 F.2d 869, 876 (7th Cir. 1993) (“Conspirators
who distribute drugs often sell in parallel strands rather
than in links essential to one another.”).
Longstreet goes to great lengths to separate himself
from Sutton, explaining how he lacked control over
Sutton; that Sutton sold his own drugs and withheld
from him information and profits; that Longstreet was
in prison or on house arrest during some relevant time
periods; and that Longstreet “was not a drug kingpin”
overseeing a large drug dealing operation. But none of
these affect the quintessential elements of a conspiracy.
These arguments, which perhaps suggest that Longstreet
was not omnipotent or overly successful at his business,
do not change the fact that there was evidence to support
a reasonable juror’s finding that Longstreet agreed with
others—Sutton included—to possess and distribute
controlled substances. The charge did not require the jury
to find that Longstreet was a “kingpin”—it merely re-
quired the government to prove that he joined a criminal
conspiracy to possess and distribute illegal drugs, which
Nos. 07-1657, 07-2685 & 07-3083 11
is exactly what Sutton and his fellow co-conspirators
said that Longstreet did.
There is evidence in the record from which a reason-
able juror could have found Longstreet guilty of the
conspiracy charged in the indictment. True, much of the
evidence came from Anthony Sutton, an admitted drug
dealer. But as we have already stated, if there is evidence
supporting a reasonable juror’s conclusion, it is up to the
juror, not this court, to evaluate and weigh that evidence.
Rollins, 544 F.3d at 835; see also Pagan, 196 F.3d at 889 (“The
extent to which [a witness’s] personal failings and motiva-
tions may have influenced his testimony was for the jury
to decide.”). Because a rational jury could have believed
the witnesses’ testimony, there was no variance between
the charge and the evidence produced at trial.
2. Absence of a Jury Instruction Regarding Evidence of
Multiple Conspiracies
Longstreet’s second challenge to his conviction is that
the district court should have instructed the jury not to
consider evidence related to any separate, distinct con-
spiracy when considering Longstreet’s guilt. Without
such an instruction, he argues, the jury was free to con-
sider criminal activity unrelated to him when rendering
its verdict, thereby prejudicing him.
Prior to trial, Longstreet proposed jury instructions
that included a multiple conspiracy instruction. At the
end of the trial, the government proposed its own
multiple conspiracy instruction, which the district court
12 Nos. 07-1657, 07-2685 & 07-3083
accepted after a brief discussion among counsel;
Longstreet’s counsel stated that he would accept that
instruction. The instruction stated that the jury may find
the existence of multiple conspiracies, rather than a
single one, and it informed the jury that it must base
this decision “only on what the defendant did or said.” It
did not, however, expressly instruct the jury to
disregard evidence of conduct in any conspiracy in
which it might find that the defendant did not participate.
We typically review an attack on a jury instruction for
an abuse of discretion, but when the underlying error
implicates a question of law, we review de novo. United
States v. Macedo, 406 F.3d 778, 787 (7th Cir. 2005). However,
because Longstreet agreed to the instruction as written
and failed to request a component directing the jury not
to consider evidence of unrelated conspiracies, he
forfeited this challenge on appeal,2 and we review for
plain error. See United States v. Trennell, 290 F.3d 881, 886
(7th Cir. 2002); see also United States v. Olano, 507 U.S. 725,
732 (1993) (explaining that error must be plain and affect
defendant’s substantial rights to merit reversal).
We find no plain error here. Longstreet is correct that if
the evidence produced at trial does not support the
2
The government concedes that Longstreet did not waive
his challenge by expressly agreeing to the multiple conspiracy
instruction. Cf. United States v. Griffin, 493 F.3d 856, 863 (7th
Cir. 2007). We agree because Longstreet did not intentionally
relinquish his right to seek an additional instruction that the
jury could not use against him any evidence of conspiracies of
which he was not a part.
Nos. 07-1657, 07-2685 & 07-3083 13
conspiracy alleged in the indictment, the court should
instruct the jury “that evidence relating to the other
conspiracy or conspiracies disclosed may not be used
against him under any circumstances.” United States v.
Lindsey, 602 F.2d 785, 787 (7th Cir. 1979) (quotations
omitted). But that is as far as Longstreet’s argument
takes him.
First, the evidence at trial supported the conspiracy
alleged in the indictment; we have already determined that
there was no variance. Therefore, there was no “other
conspiracy” disclosed at trial. Second, the absence of an
express instruction to disregard any potential evidence
of another conspiracy did not deprive Longstreet of a fair
trial. See Olano, 507 U.S. at 732 (noting that a court of
appeals has discretion to correct a plain error and “should
not exercise that discretion unless the error seriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings” (alteration in original) (quotations
omitted)). The district court’s instruction properly in-
formed the jury of the requirements for a conspiracy
conviction and that it was only allowed to evaluate
Longstreet’s own words and conduct to determine the
conspiracies, if any, in which he participated. The instruc-
tion also stated that the jury could find Longstreet
guilty only if he participated in the conspiracy alleged
in the indictment. Further, the district court advised the
jury that it should consider the convictions of the testi-
fying co-conspirators for credibility purposes only, not
to determine Longstreet’s guilt. In light of the entire
instruction, the court did not commit plain error.
14 Nos. 07-1657, 07-2685 & 07-3083
3. Proposed Testimony of Andre Kincaid
Longstreet’s third challenge to his conviction is that the
district court improperly prohibited him from ques-
tioning co-defendant Andre Kincaid about Anthony
Sutton. As noted, Longstreet claimed that Sutton operated
a distinct conspiracy in which Sutton competed with
Longstreet to sell heroin. Sutton, however, testified that
the two men had an agreement to sell different drugs
within Longstreet’s territory. At trial, Sutton claimed that
he sold only cocaine, crack, and marijuana, meaning that
his drug dealing activity did not conflict with Longstreet’s
heroin business. Sutton denied selling heroin in 2004
and specifically denied selling it to Andre Kincaid.
Longstreet sought to impeach Sutton with testimony
from Kincaid, who pled guilty to participating in the
conspiracy and admitted to purchasing cocaine and crack
from Sutton. In addition to crack purchases, Kincaid
had previously informed the government that he pur-
chased heroin from Sutton, that he saw Sutton’s workers
giving heroin away, and that Sutton had an international
heroin source. The district judge was prepared to permit
Kincaid to testify to these facts over the government’s
objection that it was an improper collateral impeachment.
Before testifying, however, Kincaid invoked his Fifth
Amendment right against self-incrimination, which the
district court accepted. The court then determined that
Kincaid was unavailable to testify, see Fed. R. Evid.
804(a)(1), and permitted Special Agent Chris Carlson of
the Internal Revenue Service to testify regarding Kincaid’s
prior proffer, see id. 804(b)(3). Agent Carlson was present
Nos. 07-1657, 07-2685 & 07-3083 15
at Kincaid’s interview, and he testified that Kincaid
provided the government with the information stated
above. Longstreet asserts that the court erred because
he only intended to call Kincaid to testify about what he
had seen, not what he had done, i.e., there was no possibil-
ity that Kincaid’s testimony could be self-incriminating.
The Fifth Amendment ensures that a criminal defendant
shall not “be compelled . . . to be a witness against him-
self.” U.S. Const. amend. V. Such a right “must be
confined to instances where the witness has reasonable
cause to apprehend danger from a direct answer.” Hoffman
v. United States, 341 U.S. 479, 486 (1951). Thus, when a
witness invokes his Fifth Amendment right, the district
court should confirm that he “cannot possibly incriminate
himself,” and if the “witness’s testimony may make
him vulnerable to prosecution, the trial court may allow
him to . . . refuse to testify.” United States v. Mabrook, 301
F.3d 503, 506 (7th Cir. 2002). Because Kincaid had not yet
been sentenced when asked to testify, he retained the
ability to invoke his guarantee against self-incrimination.
See Mitchell v. United States, 526 U.S. 314, 325 (1999). We
review a district court’s Fifth Amendment privilege
determination for an abuse of discretion. Mabrook, 301
F.3d at 506.
Although Longstreet characterizes Kincaid’s proffered
testimony as encompassing only his observations of others,
the record tells a different story. Throughout the discus-
sions regarding Kincaid’s testimony, the government,
Longstreet’s counsel, and the district court referred to
Kincaid’s prior statements that he had purchased heroin
16 Nos. 07-1657, 07-2685 & 07-3083
from Sutton, and the record reflects that these state-
ments were the primary focus of the dispute. Longstreet’s
counsel added that Kincaid observed Sutton’s other
heroin activities, but he also noted a number of times
that Kincaid bought heroin from Sutton. If questioned
about this activity, the answers certainly had the
potential to incriminate Sutton, and such testimony falls
squarely within the ambit of the privilege against self-
incrimination.
On appeal, Longstreet argues that the district court could
have permitted questioning about some of Kincaid’s
observations, yet prevented questions directly implicating
him. Longstreet’s counsel never made this argument to
the district court. In fact, Longstreet’s primary argument
in favor of allowing Kincaid’s testimony was that
Kincaid relinquished or waived his Fifth Amendment
privilege by voluntarily making his prior proffer to the
government, an argument the court considered and
appropriately rejected.
But even if Longstreet had sought to limit Kincaid’s
testimony before the district court, Kincaid still could
have refused to take the stand. A testifying witness
“cannot deprive the opposing party of the right of cross-
examination.” United States v. Herrera-Medina, 853 F.2d 564,
567-68 (7th Cir. 1988). Consequently, a witness may not
choose to testify and then “assert the Fifth Amendment
privilege with respect to specific questions if they are
within the scope of his testimony.” Id. at 567. Thus, even
if Kincaid’s testimony on direct examination was limited
to non-incriminating statements, his testimony would
Nos. 07-1657, 07-2685 & 07-3083 17
have exposed him to “broad-ranging cross-examination,”
id., the proper scope of which could have included his
heroin transactions with Sutton and other potentially
incriminating information. Kincaid could have been
incriminated by his answers to these questions, and,
therefore, “[h]is fear of self-incrimination was hardly
fanciful.” Id. at 568 (quotations omitted).
Last, Longstreet did not suffer prejudice from the
exclusion of Kincaid’s testimony. The district court permit-
ted Agent Carlson to tell the jury exactly what Longstreet
wanted Kincaid to say, and Longstreet has not suggested
any information that he was unable to present as a result
of Kincaid’s unavailability. Longstreet cannot demon-
strate a reasonable possibility that Kincaid’s testimony
would have altered the jury’s verdict. See United States
v. Castaldi, 547 F.3d 699, 705 (7th Cir. 2008). Consequently,
the district court did not abuse its discretion by
permitting Kincaid to invoke his Fifth Amendment privi-
lege.
4. Longstreet’s Sentencing Issues
Finally, Longstreet challenges his sentence. After hearing
argument from both sides, the district court found that
Longstreet had a base offense level of thirty-eight and a
criminal history that placed him in sentencing category
six. The court added a two-level enhancement for posses-
sion of a gun and a four-level enhancement for his leader-
ship role in the conspiracy, resulting in a final offense
18 Nos. 07-1657, 07-2685 & 07-3083
level of forty-four.3 The advisory Sentencing Guidelines
range was life imprisonment, but the district court im-
posed a below-Guidelines sentence of 456 months.
Longstreet contests that the district court committed
two errors that improperly increased his sentence:
(1) attributing to him drug quantities from sales that did
not relate to him; and (2) imposing the leadership role
enhancement.
a. Drug Quantity Attributable to Longstreet
Longstreet first challenges the district court’s calculations
of the drug quantities used to establish his base offense
level under the 2006 version of the Sentencing Guidelines.
At sentencing, the government has the burden of proving
the quantity of drugs attributable to a defendant by a
preponderance of the evidence. United States v. Krasinski,
545 F.3d 546, 551 (7th Cir. 2008). Although the district
court is not limited to evidence admissible at trial, United
States v. Clark, 538 F.3d 803, 812 (7th Cir. 2008), it must base
its sentence on information with “sufficient indicia of
reliability to support its probable accuracy,” United States
v. Bautista, 532 F.3d 667, 672 (7th Cir. 2008) (quotations
omitted). We review the district court’s factual findings
regarding drug quantity for clear error, id., which is a
“highly deferential standard of review[,] and we refuse
3
Because this total offense level was above the highest offense
level in the sentencing table, the district court applied the
highest offense level, forty-three.
Nos. 07-1657, 07-2685 & 07-3083 19
to second-guess the sentencing judge,” Clark, 538 F.3d at
812 (quotations omitted).
According to the Sentencing Guidelines, a defendant is
“accountable for all quantities of contraband [including
controlled substances] with which he was directly
involved and, in the case of a jointly undertaken
criminal activity, all reasonably foreseeable quantities of
contraband that were within the scope of the criminal
activity that he jointly undertook.” U.S. Sentencing Guide-
lines Manual (U.S.S.G.) § 1B1.3(a)(1) cmt. n.2 (2006); see also
Bautista, 532 F.3d at 672; United States v. Nubuor, 274
F.3d 435, 443 (7th Cir. 2001) (noting that the district court
may sentence a defendant “for drug quantities that he
did not handle, so long as he could reasonabl[y] foresee
that the drug transactions would occur”). Further, “[t]he
guidelines’ concept of reasonable foreseeability does not
require that a coconspirator be aware of the precise quan-
tity involved in each of an ongoing series of illegal trans-
actions.” United States v. Scroggins, 939 F.2d 416, 423 (7th
Cir. 1991). Having already determined that Longstreet
and Sutton engaged in a single criminal conspiracy, we
must now consider whether Sutton’s crack cocaine sales
should be attributed to Longstreet as “reasonably foresee-
able” transactions within the scope of their conspiracy.
The probation officer recommended in Longstreet’s
presentence investigation report (PSR) that he be held
responsible for at least 1.5 kilograms of crack cocaine and
three kilograms of heroin. According to the Sentencing
Guidelines, this quantity of crack alone placed him at the
highest base offense level, thirty-eight. See U.S.S.G.
20 Nos. 07-1657, 07-2685 & 07-3083
§ 2D1.1(c)(1) (Drug Quantity Table) (2006). The district
court, after examining the PSR and hearing argument
from the government and defendant, agreed with the
probation officer’s recommendation of a base offense
level of thirty-eight.
The driving force behind Longstreet’s base offense level
was the quantity of crack cocaine dealt by Anthony Sutton.
Specifically, the district court found that Longstreet was
accountable for at least 1.5 kilograms of crack handled
by Sutton. Because this quantity of crack provided a
sufficient basis for the recommended offense level, see id.,
the court did not address Longstreet’s heroin quantities,
nor did it incorporate drugs moved at any other operators’
drug spots within Longstreet’s territory.4
Longstreet asserts that Sutton’s crack sales should not
be attributed to him because Sutton operated his own
conspiracy and did not share profits or details of his drug
sales. We discard much of this argument based on our
determination above that the evidence supports a single
conspiracy. According to the previously described arrange-
ment between the two men, Sutton sold crack at an esti-
mated 1.5 ounces per day, seven days a week, over a nearly
4
The government concedes that there was an error in the PSR’s
calculation of heroin quantities attributable to Longstreet. This
error did not affect Longstreet’s base offense level, however,
because the district court did not reach the PSR’s heroin cal-
culations, and we find that the court properly attributed
Sutton’s crack cocaine sales to Longstreet. This quantity alone
places Longstreet at a base level of thirty-eight.
Nos. 07-1657, 07-2685 & 07-3083 21
three-year period. To reach the 1.5 kilogram quantity that
the district court calculated, Longstreet would have to be
attributed with only 53 ounces of crack. 5 At a rate of 1.5
ounces per day, this would have taken a mere 36 days.
Sutton’s testimony clearly supports this amount. See
U.S.S.G. § 2D1.1 cmt. n.12 (2006) (“Where there is no drug
seizure or the amount seized does not reflect the scale of
the offense, the court shall approximate the quantity of the
controlled substance.”); Krasinski, 545 F.3d at 552 (“A
district court may use a reasonable estimate of the quantity
of drugs attributable to a defendant for guidelines pur-
poses.”).
The district judge chose to credit Sutton’s testimony,
finding that although the two men did not expressly
share their profits, they were part of a single conspiracy in
which Sutton paid Longstreet rent for the right to sell
drugs in his territory. Therefore, Sutton’s crack sales
were within the scope of the conspiracy. If Sutton’s testi-
mony is true, such an agreement certainly renders future
crack sales reasonably foreseeable to Longstreet. That
Sutton was a potentially self-interested drug dealer does
not preclude the district court from crediting his testi-
mony, for a district court’s determination of a witness’s
credibility is “entitled to great deference and can virtually
never be clear error.” Clark, 538 F.3d at 813 (quotations
omitted). We find no such error here; the district court
properly calculated Longstreet’s base offense level.
5
One kilogram equals 35.2739 ounces. Therefore, 1.5 kilograms
equals 52.9109 ounces.
22 Nos. 07-1657, 07-2685 & 07-3083
b. Leadership Role Enhancement
In addition to setting Longstreet’s base offense level, the
district court applied a four-level enhancement based on
Longstreet’s leadership role in the conspiracy. Longstreet
contends that the evidence presented at trial did not
support the court’s finding that he was an organizer or
leader. We review the district court’s leadership enhance-
ment for clear error, which exists only when “we are
left with a definite and firm conviction that a mistake
has been made.” United States v. Hatten-Lubick, 525 F.3d
575, 580 (7th Cir. 2008).
Under § 3B1.1 of the Sentencing Guidelines, a district
court may enhance a defendant’s sentence by four levels
if it determines that he “was an organizer or leader of a
criminal activity that involved five or more participants
or was otherwise extensive.” U.S.S.G. § 3B1.1(a) (2006).
Longstreet does not dispute that the conspiracy in this
case involved more than five participants, and thus
we focus on Longstreet’s role within it.
To receive any § 3B1.1 increase for an aggravated role,
the defendant must, at a minimum, “have had some real
and direct influence, aimed at furthering the criminal
activity, upon one other identified participant.” United
States v. Mustread, 42 F.3d 1097, 1103 (7th Cir. 1994). In
deciding to apply the enhancement, courts should con-
sider:
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
Nos. 07-1657, 07-2685 & 07-3083 23
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.
U.S.S.G. § 3B1.1 cmt. n.4. The list is non-exclusive, we
have not necessarily given each factor equal weight, and
we may uphold Longstreet’s sentence on any ground in
the record, regardless of the rationale used by the
district court. See Mustread, 42 F.3d at 1104.
After reviewing the record and considering the above
factors, we agree with the government that the evidence
adequately supported Longstreet’s leadership enhance-
ment. As noted above and explained in the PSR, witnesses
testified that Longstreet was the leader of a faction of the
Four Corner Hustlers and controlled the drug business in
a particular territory. He procured various harmful illegal
drugs from a number of suppliers, employed and directed
workers to mix and repackage them, and operated a
variety of drug spots using other employees. For other
dealers, such as Anthony Sutton, Longstreet charged rent
for the right to sell within his territory and attempted
to control the locations where those dealers set up shop.
Sutton’s testimony alone demonstrates that Longstreet
sought to exert control over components of the charged
conspiracy. But even without considering Longstreet’s
relationship with Sutton, Longstreet exercised control over
many co-conspirators in this drug business, which is
sufficient for the § 3B1.1 enhancement.
Throughout his brief, Longstreet attempts to down-
play his role in the charged conspiracy, painting himself
24 Nos. 07-1657, 07-2685 & 07-3083
as an out-of-touch former kingpin who is now struggling
to regain some semblance of his former power and terri-
tory. But even the facts he raises support the leadership
enhancement. For example, he notes as the “most telling
evidence” of his minimal role that alleged co-conspirators
admitted to ignoring some of his orders. But this fact
necessarily implies that he was indeed giving orders, a
characteristic consistent with someone in a leadership role.
Similarly, he notes that “people routinely refused to pay
Longstreet drug money owed to him.” Unless we misun-
derstand the drug business—or any business, for that
matter—one is not typically owed money unless he
provided something in exchange. Although being a drug
dealer, alone, is insufficient to support a leadership
enhancement, see Mustread, 42 F.3d at 1104, the evidence
at trial indicated that Longstreet was not out on the
corner selling his own drugs; he directed and controlled
other workers who sold drugs on his behalf. Rather than
demonstrate a lesser role, the facts that Longstreet high-
lights simply indicate that he was not very good at the
leadership role he actually possessed. There is ample
evidence in the record of Longstreet’s elevated role in
this conspiracy, and we find no clear error below.
B. Defendants Longstreet and Ervin—Consideration of the
Crack/Powder Cocaine Ratio
Both Longstreet and co-defendant Michael Ervin assert
that they are entitled to a limited remand to permit the
district court to reconsider the previously mandatory 100:1
crack/powder cocaine ratio. At the time Longstreet and
Nos. 07-1657, 07-2685 & 07-3083 25
Ervin were sentenced in the spring of 2007, our precedent
prohibited a district court from departing from the Sen-
tencing Guidelines based on the disparity created by the
crack/powder cocaine ratio. See, e.g., United States v. Miller,
450 F.3d 270, 275 (7th Cir. 2006). Following their
sentencings, however, the United States Supreme Court
determined that a district court may deviate from the
advisory guidelines range after considering the
crack/powder cocaine disparity. Kimbrough v. United
States, 552 U.S. 85 (2007). Consequently, a limited remand
may be warranted to permit the district court to state
whether it would have imposed a different sentence
under Kimbrough. United States v. Taylor, 520 F.3d 746, 748
(7th Cir. 2008).
Both Longstreet and Ervin were sentenced based solely
on crack cocaine quantities.6 Neither defendant, however,
raised this issue in the proceedings below, and we
cannot determine whether the district court would have
considered the disparity had it not been constrained by
our pre-Kimbrough precedent. See Taylor, 520 F.3d at 748-49.
Therefore, a limited remand is appropriate under Taylor
to allow the district court to state whether it wishes to re-
sentence Longstreet or Ervin in light of Kimbrough.
6
Like Longstreet, Ervin trafficked in other drugs, but the
PSR and district court determined that he was responsible for
at least 1.5 kilograms of crack cocaine. Therefore, as with
Longstreet, the crack quantity alone placed him in the
highest base offense level, and the district court did not at-
tempt to quantify the amount of other drugs attributable to him.
26 Nos. 07-1657, 07-2685 & 07-3083
C. Zepeda’s Challenges to His Sentence
A third co-defendant, Anselmo Zepeda, also challenges
his sentence. Zepeda was a supplier who worked with
fellow co-conspirators to distribute drugs to other mem-
bers of the conspiracy. Anthony Sutton was one of
Zepeda’s primary cocaine purchasers. On appeal, Zepeda
claims that the district court did not have sufficient,
reliable evidence to support the quantity of drugs it
attributed to him and that the government failed to meet
its burden of proving “relevant conduct” under U.S.S.G.
§ 1B1.3(a)(1)(B).
On November 7, 2006, Zepeda pled guilty, without a
plea agreement, to the conspiracy to possess and
distribute controlled substances alleged in Count One of
the indictment. At his plea hearing, the government stated
that if the case were to proceed to trial, it would demon-
strate that Zepeda conspired to distribute over five kilo-
grams of cocaine and quantities of marijuana. The gov-
ernment proffered that Zepeda distributed at least five
kilograms of cocaine to Sutton, in kilogram or multi-
kilogram quantities per transaction, with the understand-
ing that Sutton would resell it. Specifically, in Decem-
ber 2004, Zepeda began supplying Sutton with one kilo-
gram of cocaine approximately two times per week;
within one month, the quantity of cocaine per transaction
increased to three kilograms; and in March 2005, it in-
creased again to five kilograms per transaction. Zepeda
agreed that these statements represented the govern-
ment’s factual basis for his guilty plea.
The government’s written factual basis for Zepeda’s
plea included these statements and also asserted that on
Nos. 07-1657, 07-2685 & 07-3083 27
March 31, 2005, a co-conspirator attempted to deliver to
Sutton six kilograms of Zepeda’s cocaine, which Zepeda
did not dispute. The factual basis also stated that Zepeda
fronted Sutton with twenty-five pounds of marijuana
on two occasions.
The probation officer attached the government’s
written factual basis for the plea to the PSR and recom-
mended a finding that the total amount of drugs attribut-
able to Zepeda was at least fifty kilograms of cocaine
and approximately fifty kilograms of marijuana. The
bases for these quantities were statements in the indict-
ment, the written factual basis for the plea, and an inter-
view with IRS Agent Chris Carlson. The PSR reflected the
same transactions between Zepeda and Sutton from
December 2004 to March 2005 that Zepeda admitted and
that were detailed in the written factual basis for the
plea, with one exception: the PSR did not mention the
increase from one to three kilograms of cocaine that
Zepeda supplied to Sutton within one month of Decem-
ber 2004. The PSR also found that Zepeda had engaged
in “relevant conduct,” see U.S.S.G. § 1B1.3(a)(1)(B), in that
he supplied an individual with cocaine from the end of
1994 until the end of 1996 or early 1997, first in one-quarter
kilogram quantities and later in two kilogram quantities.
The district judge considered the evidence in the
record, accepted the PSR’s calculation, and set Zepeda’s
base offense level at thirty-seven. The court applied a
leadership enhancement, and it sentenced Zepeda to
210 months on the conspiracy count. Zepeda’s main
argument is that the district court did not have reliable
28 Nos. 07-1657, 07-2685 & 07-3083
information to determine that Zepeda was responsible
for over fifty kilograms of cocaine. He bases this assertion
primarily on a perceived conflict between the PSR and
Zepeda’s own admissions regarding the increase to three-
kilogram deliveries of cocaine to Sutton.
Zepeda did not object to the PSR’s recommended quan-
tity of drugs prior to the sentencing hearing, nor at the
hearing itself. Consequently, he has forfeited his chal-
lenge, and we review the district court’s calculation for
plain error. United States v. Jaimes-Jaimes, 406 F.3d 845, 849
(7th Cir. 2005); see also United States v. Middlebrook, 553 F.3d
572, 577 (7th Cir. 2009). Under such a standard, we will
correct only particularly egregious errors to prevent a
miscarriage of justice, and even if there was plain error, the
error must “ ‘seriously affect[] the fairness, integrity, or
public reputation of judicial proceedings’ ” to warrant
reversal. Middlebrook, 553 F.3d at 578 (quoting United States
v. Cusimano, 148 F.3d 824, 828 (7th Cir. 1998)). This stan-
dard is high, and we find no such error here.
As described above, see supra pt. II.A.4.a., the district
court must determine the quantity of drugs attributable
to a defendant by a preponderance of the evidence.
Krasinski, 545 F.3d at 551. In so doing, the sentencing
court “may appropriately conduct an inquiry broad in
scope, largely unlimited either as to the kind of informa-
tion he may consider, or the source from which it may
come,” United States v. Hankton, 432 F.3d 779, 789 (7th Cir.
2005) (quotations omitted), as long as it has “sufficient
indicia of reliability to support its probable accuracy,”
Bautista, 532 F.3d at 672. The district court, therefore, is not
Nos. 07-1657, 07-2685 & 07-3083 29
limited to reviewing the PSR when calculating drug
quantity; “what controls the analysis is the ‘entire evi-
dence’ before the district court.” United States v. Sutton,
406 F.3d 472, 474 (7th Cir. 2005) (quoting United States v.
Span, 170 F.3d 798, 803 (7th Cir. 1999)); see also Hankton, 432
F.3d at 790 (“In determining reliability we consider the
totality of the evidence before the sentencing judge.”). We
may affirm a sentence on any basis supported by the
record, even evidence not relied on by the sentencing
judge. Sutton, 406 F.3d at 474.
Particularly damaging to Zepeda’s claim is that he
gave the district court no reason to believe that the infor-
mation upon which it relied to calculate the drug quantities
was inaccurate. A district court may rely on a PSR’s
recommended calculations where the defendant fails to
alert the court to potentially inaccurate or unreliable
information. See United States v. Artley, 489 F.3d 813, 821
(7th Cir. 2007); see also United States v. Jones, 209 F.3d 991,
996 (7th Cir. 2000) (rejecting defendant’s drug quantity
challenge because a mere denial of PSR’s truth is insuffi-
cient, and he failed to demonstrate that the information
upon which the district court relied was inaccurate). On
appeal, a defendant must show “that the information
before the court was inaccurate, and that the court
relied on it” to successfully challenge his sentence. See
Hankton, 432 F.3d at 790 (quotations omitted). Zepeda
has made no such showing.
Here, Zepeda not only failed to object to the PSR’s
recommended drug quantities, but he actually admitted
during his plea colloquy that the government’s evidence
30 Nos. 07-1657, 07-2685 & 07-3083
would demonstrate a series of transactions involving
cocaine quantities that, when added together, totaled at
least fifty kilograms of cocaine. Cf. Krasinski, 545 F.3d at 552(“Admissions in a plea agreement also conclusively
establish the admitted facts.”); United States v. Warneke,
310 F.3d 542, 550 (7th Cir. 2002) (“An admission is even
better than a jury’s finding beyond a reasonable doubt; it
removes all contest from the case.”). We have previously
upheld a defendant’s sentence based largely on the defen-
dant’s own admissions or a plea agreement. See, e.g.,
Krasinski, 545 F.3d at 552 (using a range of ecstasy pills that
defendant admitted to distributing to calculate the total
quantity); United States v. Arenal, 500 F.3d 634, 639-40 (7th
Cir. 2007) (upholding sentence based on defendant’s
admission of quantity in plea agreement); Sutton, 406
F.3d at 474 (upholding sentence even though defendant
gave two different quantities of crack at plea colloquy).
The evidence before the district court—including the
PSR, the government’s factual basis for the plea, and
Zepeda’s own admissions—provided sufficiently reliable
information for the district court’s calculations, and we
need not reach the drug quantities attributed to Zepeda as
“relevant conduct.” Zepeda admitted that the evidence
at trial would demonstrate that he sold cocaine to
Anthony Sutton two times per week from Decem-
ber 2004 to the end of March 2005, beginning with one
kilogram deliveries, but increasing within one month to
three kilograms per exchange. In March 2005, the amount
increased again to five kilograms per transaction, and
there was one additional attempted transaction for six
kilograms. Zepeda sets forth what he deems the most
Nos. 07-1657, 07-2685 & 07-3083 31
conservative number of transactions (twenty-seven), see
Petr.’s Br. 10, but even using this number of transactions,
multiplied by the weights that he admitted, the total
amount exceeds fifty kilograms. The omission from the
PSR of the increase to three-kilogram deliveries of crack
to Sutton does not alter our conclusion. The PSR did not
contradict Zepeda’s own admissions, and the district
court could rely on any evidence in the record. Further, a
district court does not automatically commit clear error
when it fails to use the most conservative calculation
possible. See Krasinski, 545 F.3d at 553 (noting that district
court could have employed a more conservative calcula-
tion, but that it based the quantity on information pro-
vided by the defendant himself). The district court had
reliable support for holding Zepeda responsible for at
least fifty kilograms of cocaine, and we therefore find no
plain error that would result in a miscarriage of justice.
See Middlebrook, 553 F.3d at 578. Consequently, we
affirm Zepeda’s sentence.
III. C ONCLUSION
We find no error in Longstreet’s trial, and we A FFIRM
his conviction. We also find no error in the district court’s
calculation of the quantity of drugs attributable to
Longstreet, nor in its enhancement of his sentence based
on his leadership role. However, the district court did not
consider the crack/powder cocaine disparity when sen-
tencing both Longstreet and Ervin, and we therefore
order a L IMITED R EMAND in both cases to allow the
district court to consider whether it wishes to resentence
32 Nos. 07-1657, 07-2685 & 07-3083
either defendant in light of Kimbrough. Last, the district
court did not err in calculating Zepeda’s base offense
level, and we A FFIRM his sentence.
6-8-09