United States v. Tyrone Vaughn ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-4169
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
T YRONE V AUGHN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 08 CR 18—Robert L. Miller, Jr., Chief Judge.
A RGUED A PRIL 14, 2009—D ECIDED N OVEMBER 3, 2009
Before K ANNE, R OVNER and W OOD , Circuit Judges.
R OVNER, Circuit Judge. A jury convicted Tyrone Vaughn
of possession with intent to distribute five grams or
more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1);
distribution of marijuana, in violation of 21 U.S.C.
§ 841(a)(1); possession of a firearm in furtherance of a
drug trafficking crime, in violation of 18 U.S.C. § 924(c);
and possession of a firearm by a felon, in violation of
18 U.S.C. § 922(g)(1). On appeal, Vaughn contends that
the evidence was insufficient to support his conviction
2 No. 08-4169
for possession of a firearm in furtherance of a drug traf-
ficking crime. He also contests the district court’s deter-
mination on sentencing of the amount of drugs he dealt,
arguing that his own uncorroborated statement to
police officers following his arrest is insufficient to estab-
lish the amount of drugs he bought and sold. We affirm.
I.
Tyrone Vaughn supplied crack cocaine to Richard Gee
on a regular basis. The two men knew each other through
their work as truck drivers, with Gee occasionally driving
trucks for Vaughn. In November 2007, a federal law
enforcement agent came to Gee’s home looking for his
son who was implicated in a criminal case. Gee decided
to clean up his life and set a better example for his son, and
so he told the Alcohol, Tobacco and Firearms (“ATF”)
agent, Jason Gore, that he wanted to act as a confidential
informant for the ATF. Gee told Agent Gore about
Vaughn’s drug trafficking, and offered other information
about Vaughn. Agent Gore accepted Gee’s offer and
began to process the paperwork to document Gee’s
anticipated work as a confidential informant.
On November 19, 2007, before Agent Gore finished
processing the paperwork, Gee called to say that Vaughn
had “fronted” him a pound of marijuana.1 Agent Gore
took custody of the marijuana, but was not pleased with
1
“Fronting” drugs means supplying them without charge
and collecting payment when the recipient sells them and
earns enough money to pay the debt.
No. 08-4169 3
this development because Gee was not yet documented
and because Agent Gore could not control the situation.
Approximately one week later, with the paperwork still
pending, Gee called Agent Gore again, this time to
report that Vaughn had just fronted him six additional
pounds of marijuana. Agent Gore again took custody of
the drugs and advised Gee to avoid Vaughn until the
paperwork was complete.
By December 2, 2007, Gee was an officially sanctioned
confidential informant. He owed Vaughn $650 for the
initial one-pound delivery of marijuana, so Agent Gore
arranged for Gee to deliver the money while carrying
recording devices monitored by law enforcement offi-
cials. Gee delivered the money to Vaughn at his home, and
as law enforcement listened, the two discussed payment
for the additional six pounds. In 2006, Gee had given
Vaughn an SKS rifle as payment for a quarter ounce of
crack cocaine. Because Vaughn was a felon who was not
allowed to own firearms, he had written up a receipt
showing that Gee sold the rifle to Vaughn’s wife for $300
After paying for the pound of marijuana, Gee asked
Vaughn if he could buy back the rifle he had previously
given Vaughn. The ATF had supplied Gee with an addi-
tional $300 to purchase the gun back. But Vaughn was not
interested in the $300. Instead he proposed that if Gee
could sell the additional six pounds of marijuana and pay
for it in full, Vaughn would give the rifle back to Gee.
Agent Gore had also prepared Gee to introduce a “business
partner” to Vaughn. In reality, the business partner was an
undercover ATF agent who posed as a truck driver by the
name of “Wild Bill.” Gee mentioned to Vaughn that Wild
4 No. 08-4169
Bill had sold the first pound of marijuana and would be
enlisted to sell the additional six pounds.
At the urging of the ATF agents, Gee subsequently set up
a December 18, 2007 meeting among Gee, Vaughn and
Wild Bill. The agents again arranged to record the
meeting, which was set to take place in a department
store parking lot. They supplied Gee and Wild Bill with
$3300, the agreed-upon price for the six pounds of mari-
juana. Vaughn arrived at the parking lot in a car with
three female passengers. He entered Gee’s car and Wild
Bill paid him $3300. Gee paid Vaughn an additional
$200 to settle an old drug debt. Vaughn then engaged
Wild Bill in a discussion of his ability to supply more
marijuana, as well as ecstasy pills and cocaine. Vaughn
then returned to his own car, where he pulled the SKS
rifle (wrapped in a blanket) from the trunk. He brought
it to Gee’s car and placed it in the back seat.
Agent Gore then arranged for Gee and Wild Bill to
meet Vaughn at a hotel on February 5, 2008, where Vaughn
was arrested by the waiting agents. When Agent Gore
searched Vaughn, he found 9.47 grams of crack cocaine
in Vaughn’s pocket, packaged into four small bags con-
tained in one larger bag. Agent Gore read Vaughn his
Miranda rights, Vaughn waived his right to remain silent
and participated in an interview with the agent. At that
interview, Vaughn told Agent Gore that the two trucks
that comprised his trucking business were both
inoperable, and that his entire income came from selling
marijuana, cocaine and guns. Vaughn told Agent Gore
that he had dealt cocaine, marijuana and firearms for
No. 08-4169 5
most of his life. Apparently seeking to make a deal with
Agent Gore, Vaughn offered information about other
people in the drug trade, and other purchases and sales
he had made, including a forty-pound purchase of mari-
juana and a quarter-kilogram purchase of crack cocaine.
He also told Agent Gore the name of the person who
was to supply additional guns to sell to Wild Bill.
In the end, no deal was struck and Vaughn was charged
in a four-count indictment as we detailed above. After
the government rested its case, Vaughn moved for a
judgment of acquittal on the count charging possession
of a firearm in furtherance of a drug trafficking crime.
He contended that the firearm did not further the crime
because Vaughn had already been paid in full for the
six pounds of marijuana when Vaughn returned the gun
to Gee. The court denied the motion, and denied the
renewed motion at the close of evidence. The jury con-
victed Vaughn on all four counts. He appeals.
II.
On appeal, Vaughn raises two claims. First, he chal-
lenges his conviction for possessing a firearm in further-
ance of a drug trafficking crime. According to Vaughn, his
possession of the rifle did nothing to further any drug
transaction. Second, Vaughn contests the district court’s
calculation of the amount of drugs at issue in determining
a guidelines sentence for Vaughn. Vaughn argues that
his own statements about drug quantities he dealt were
exaggerations and cannot be used to establish his sen-
tence without corroboration.
6 No. 08-4169
A.
Vaughn’s first challenge is to the sufficiency of
the evidence on the charge of possessing a firearm in
furtherance of a drug trafficking crime. We will overturn
a jury verdict for insufficiency of the evidence only if,
after viewing the evidence in the light most favorable to
the government, the record is devoid of evidence from
which a reasonable jury could find guilt beyond a rea-
sonable doubt. United States v. Boisture, 563 F.3d 295, 298
(7th Cir. 2009); United States v. Groves, 470 F.3d 311, 323-24
(7th Cir. 2006). Vaughn asserts that his possession of the
rifle did not facilitate the delivery of the six pounds of
marijuana in any way. Instead, he maintains, the drug
transaction was complete when Wild Bill paid $3300 for
the marijuana and Gee paid $200 to Vaughn. Vaughn
insists that the subsequent transfer of the rifle did not
further the already completed drug transaction. Vaughn
contends that the mere presence of a firearm at a drug
transaction is not enough to establish a violation of
section 924(c). He also cites United States v. Watson, 128
S. Ct. 579 (2007), as holding that receiving a gun in
barter for drugs is not “use” of a gun in connection with
a drug transaction. Vaughn questions whether trading a
gun for money after the drug price is paid in full can be
said to further a drug trafficking crime when Watson
holds that a defendant does not violate section 924(c) when
he trades a gun for drugs. The government responds
that the rifle furthered the drug transaction by providing
an incentive or sales commission to Gee for selling the
entire six-pound quantity of marijuana and paying for it
in full.
No. 08-4169 7
Vaughn’s portrayal of the transaction construes some
of the evidence in a light favorable to Vaughn, and of
course, we must take the evidence in the light most favor-
able to the government at this stage. See Boisture, 563
F.3d at 298. Although Vaughn would have us believe
that he simply sold the gun back to Gee after the drug
transaction was complete, the government’s evidence
showed that there was no sale. When Gee gave Vaughn
$200 on December 18, Gee was simply paying Vaughn
an old debt unrelated to the gun or to the six pounds
of marijuana. According to the earlier recorded conversa-
tions between Vaughn and Gee, when Gee sought to
buy the gun back, Vaughn declined. Instead Vaughn
offered to give Gee the gun if Gee could sell the entire
six pounds and pay for it in full. Knowing that Gee
wanted the gun back, Vaughn held onto it and offered it
as an incentive or sales commission. Vaughn carried
through on his offer when, after Gee paid in full for the
six pounds of marijuana, Vaughn gave him the gun.
The government’s theory is novel but we think the
evidence was sufficient to prove that Vaughn possessed
the rifle in furtherance of a drug trafficking crime. The
usual scenario for a section 924(c) charge is a drug dealer
who keeps a gun close to the drugs or close to the trans-
action to protect the drugs or the proceeds of the transac-
tion or the dealer himself. See United States v. Fouse, 578
F.3d 643, 651 (7th Cir. 2009) (noting the unanimously
accepted legal theory that a possessed gun can forward a
drug transaction by providing protection for the dealer, the
drugs, the proceeds or the dealer’s territory); United States
v. Duran, 407 F.3d 828, 840 (7th Cir. 2005) (same); United
8 No. 08-4169
States v. Castillo, 406 F.3d 806, 815 (7th Cir. 2005) (holding
that gun possession may further a drug crime by protecting
the drugs and the dealer, and by serving as a warning to
those who might contemplate theft of the drugs). Although
these are the most common ways for a firearm to further a
drug trafficking crime, this is not an exclusive list.
We have interpreted the phrase “in furtherance of” as
meaning “furthering, advancing, or helping forward.”
Castillo, 406 F.3d at 814. Vaughn is correct that the mere
presence of a firearm at the scene of a drug transaction
is not enough. Castillo, 406 F.3d at 814-15. Even though
experts have repeatedly testified (and we have echoed
this testimony many times) that guns are tools of the
drug trade, in order to show that a firearm furthered a
drug trafficking crime, the government must establish a
specific nexus between the particular weapon and the
particular drug crime at issue. Castillo, 406 F.3d at 815.
In short, “in furtherance of” means what it says: The
Government must present a viable theory as to how
the gun furthered the drug . . . distribution (e.g., being
available to protect the drugs or drug dealer), and it
must present specific, non-theoretical evidence to tie
that gun and the drug crime together under that
theory. The Fifth Circuit has developed a non-exclusive
list of factors to help in determining whether a
gun was, in fact, possessed “in furtherance of” the
drug crime: “the type of drug activity that is being
conducted, accessibility of the firearm, the type of
the weapon, whether the weapon is stolen, the
status of the possession (legitimate or illegal), whether
No. 08-4169 9
the gun is loaded, proximity to drugs or drug profits,
and the time and circumstances under which the
gun is found.” Ceballos-Torres, 218 F.3d at 414-15.
These factors are useful, but, given the fact-intensive
nature of the “in furtherance of” inquiry, the weight,
if any, these and other factors should be accorded
necessarily will vary from case to case.
Castillo, 406 F.3d at 815.2
The government’s theory here is that Vaughn’s posses-
sion of the rifle advanced the sale of the six pounds of
marijuana by providing an incentive to Gee to sell the
full quantity for the full price. Vaughn knew that Gee
wanted the rifle back and was even willing to pay for
its return. Selling all six pounds of the marijuana at full
price was more important to Vaughn than the $300
Gee offered to pay for the gun outright, so Vaughn
refused to sell the gun. Instead he held onto it and offered
it to Gee like Mary Kay might offer a pink Cadillac to a top-
selling cosmetics salesperson. As the district court re-
marked, in the usual section 924(c) case, “weapons are
used more as a stick, but there’s no reason it couldn’t be
used as a carrot.” R. 64, Tr. at 157. In the same way that
a sales commission plays a role in a business
transaction, Vaughn used the rifle “to speed the pay-
ment and to assure full payment.” R. 64, Tr. at 157.
2
The full cite for the Fifth Circuit case cited in Castillo is
United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir.
2000).
10 No. 08-4169
The government thus tied the particular weapon to the
particular transaction and demonstrated that Vaughn’s
possession of the rifle helped forward the sale of the six
pounds of marijuana. The evidence was thus sufficient
to support the conviction.
Vaughn’s citation to Watson adds nothing to his argu-
ment. Watson held that a person who trades drugs for a
gun does not “use” the gun “during and in relation to . . .
[a] drug trafficking crime” within the meaning of
section 924(c)(1)(A). 128 S. Ct. at 581. That holding was
the natural extension of the Court’s earlier rulings in
Smith v. United States, 508 U.S. 223 (1993), and Bailey v.
United States, 516 U.S. 137 (1995). All three cases focused
on the ordinary and natural meaning of the word “use.”
In Smith, the Court held that a person who trades a
firearm for drugs “uses” the firearm during and in
relation to a drug trafficking offense under section
924(c)(1). Smith, 508 U.S. at 241; Watson, 128 S. Ct. at 581.
The Court noted that nothing in the statute required
that the firearm be used as a weapon; it was sufficient
that the defendant used the gun as an item of barter.
Smith, 508 U.S. at 240. The danger of combining drugs
and guns was the same, the Court found, even when the
firearm was used as a form of payment because a gun
“can be converted instantaneously from currency to
cannon.” Smith, 508 U.S. at 240. As in Smith, the
defendant here used the firearm as currency, in this
instance to pay a commission to a drug salesman for
successfully selling the drugs for full price and
delivering full payment.
No. 08-4169 11
In Watson, the Court considered the inverse of the
question presented in Smith, whether a person who
receives a firearm in trade for drugs “uses” the firearm
in relation to a drug trafficking crime. The Court con-
cluded that the ordinary understanding of the word
“use” did not include receiving a firearm in a barter
transaction. Watson, 128 S. Ct. at 583. The Court noted
that a boy who trades an apple to get a granola bar uses
the apple, but no one would say that the boy used the
granola bar in the transaction. Id. The first person who
possesses the firearm is the one who “uses” it in the
trade. Watson, 128 S. Ct. at 584. In Bailey, the Court
held that the word “use” in section 924(c) required evi-
dence of active employment of the firearm, rejecting the
government’s position that possessing a firearm near
the scene of a drug trafficking crime was sufficient
under the statute. Bailey, 516 U.S. at 143. After
Bailey, Congress modified section 924(c)(1) to prohibit
possession of a firearm in furtherance of a drug trafficking
crime. Watson, 128 S. Ct. at 582 n.3. The government
charged Vaughn under that amendment, alleging that
he “knowingly possessed a firearm in furtherance of a
drug trafficking crime.” R. 9, at 3. Certainly under
Smith, the government could have charged Vaughn with
using the firearm during and in relation to a drug traf-
ficking crime rather than possessing it in furtherance of
a drug trafficking crime. As we noted above, the possession
charge is a somewhat creative use of the statute. Vaughn,
though, does not argue about the difference between
possessing the rifle and using the rifle. Instead he
confined his argument to the “in furtherance” language,
12 No. 08-4169
to whether the rifle furthered the sale of the six pounds
of marijuana. In this instance, we think the distinction
makes little difference because Vaughn both held onto
the rifle, i.e., possessed it, and then used it to pay a com-
mission, and so both the possession and the use
furthered the sale. The possession itself furthered the
marijuana sale because Vaughn knew that Gee wanted
the rifle back and declined to give it to him until Gee
could sell and then pay for the entire six pounds. Thus,
the evidence was sufficient to sustain the conviction.
B.
Vaughn also argued that his sentence should be
vacated because it was premised, in part, on a drug
quantity that is not supported by the record. In
particular, Vaughn argues that he should be held ac-
countable only for the seven pounds of marijuana
and 9.47 grams of crack cocaine recovered from him. In
assessing Vaughn’s relevant conduct for guidelines
purposes, the district court credited Vaughn’s own ad-
missions to ATF agents that (1) the 9.47 grams of crack
cocaine found in his pocket was all that remained of a
quarter-kilogram quantity he purchased from Tia
Williams in December 2007; (2) he had purchased forty
pounds of marijuana from Eddie Abrams in late 2007; and
(3) he was prepared to obtain sixty more pounds of mari-
juana from Abrams if “Wild Bill” could advance him
$7500. We review the district court’s factual findings
regarding drug quantities and whether uncharged
offenses are relevant conduct for clear error. United States
No. 08-4169 13
v. Delatorre, 406 F.3d 863, 866 (7th Cir. 2005); United States
v. Parra, 402 F.3d 752, 762-63 (7th Cir. 2005).
Vaughn posits that his uncorroborated admissions are
insufficient to support the court’s findings. Vaughn claims
that he was lying to the agents when he stated he had
recently purchased a quarter of a kilogram of crack
cocaine and forty pounds of marijuana. He exaggerated
his purchases, he asserts, because he wanted to appear
to be a valuable cooperating witness who could assist
the government in prosecuting other dealers, in the
hopes of reducing the charges against himself. He also
lied about being able to obtain sixty additional pounds
for Wild Bill, he claims, because he was simply trying to
steal $7500 from Wild Bill and never had access to that
much marijuana. In further efforts to boost his value as
an informant, Vaughn also admitted to the agents that
he had been a drug dealer most of his adult life. The
court found that it was more likely than not that
Vaughn was being truthful at the time he made those
admissions. The court also found that the transactions
proved at trial corroborated Vaughn’s access to larger
quantities of drugs. The court noted that the quarter-
kilogram quantity of crack cocaine and the forty pounds
of marijuana placed Vaughn at an offense level of 34.
Using the guidelines conversion tables, the court found
that a quarter-kilogram of crack cocaine is equivalent to
5000 kilograms of marijuana. Forty pounds of marijuana
added 18.144 kilograms to that total. Sixty pounds of
marijuana added another 27.2 kilograms. Under the
guidelines, a range of 3,000 to 10,000 kilograms of mari-
juana results in a base offense level of 34. The crack cocaine
14 No. 08-4169
alone would have placed Vaughn in this range and the
court’s findings regarding the forty- and sixty-pound
quantities of marijuana did not affect the result.
The district court rightly rejected Vaughn’s contention
that his own admissions were insufficient to establish
the drug quantity for relevant conduct calculations.
Although an uncorroborated confession is insufficient to
prove guilt beyond a reasonable doubt, we have stated
many times that uncorroborated evidence may support
fact-findings for sentencing purposes under the more
lenient preponderance-of-the-evidence standard. Compare
Wong Sun v. United States, 371 U.S. 471, 488-89 (1963) (“It
is a settled principle of the administration of criminal
justice in the federal courts that a conviction must rest
upon firmer ground than the uncorroborated admission
or confession of the accused.”), with United States v.
Johnson, 489 F.3d 794, 797 (7th Cir. 2007) (in sentencing,
the district court may credit testimony that is totally
uncorroborated and comes from an admitted liar, con-
victed felon, or large scale drug-dealing, paid govern-
ment informant). Vaughn is certainly not the first defen-
dant to argue that he was lying to a confidential
informant or government agent when he bragged about
his past purchases of controlled substances and his
ability to make future purchases. See United States v.
Corral, 324 F.3d 866, 871 (7th Cir. 2003) (in calculating drug
amounts for relevant conduct, court may rely on defen-
dant’s admissions to a confidential informant about
past and future purchases uttered during delivery of
drugs and bona fide negotiations for future sales). In
Corral, we noted that we have “long relied on a
No. 08-4169 15
defendant’s admissions to hold that defendant
responsible for a certain quantity of drugs.” 324 F.3d at
871-72 (collecting cases). Vaughn’s admissions regarding
the quarter-kilogram of crack cocaine and the forty
pounds of marijuana, together with his delivery of seven
pounds of marijuana and the recovery of 9.47 grams of
crack cocaine, were sufficient to support the district
court’s relevant conduct findings. As for the sixty
pounds that Vaughn promised to obtain for Wild Bill,
the guidelines expressly allow a court to include as rele-
vant conduct negotiated quantities of undelivered drugs
so long as there was true negotiation and not idle talk.
Corral, 324 F.3d at 871; U.S.S.G. § 2D1.1, Comment 12.
Given Vaughn’s completed deliveries, which confirmed
his access to substantial quantities of marijuana, the
court did not err in concluding that Vaughn actually
intended to sell an additional sixty pounds of marijuana
and had the ability to obtain that amount. In any event,
as we noted above, the additional sixty pounds did not
change the applicable offense level, and so there would
be no prejudice if the court erred in including this amount.
A FFIRMED.
11-3-09