United States v. Willie Johnson ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1912
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
W ILLIE E ARL JOHNSON ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 980—Blanche M. Manning, Judge.
A RGUED D ECEMBER 2, 2009—D ECIDED JANUARY 19, 2010
Before P OSNER, F LAUM, and S YKES, Circuit Judges.
S YKES, Circuit Judge. We are called upon to articulate
once again the distinction between a drug-distribution
conspiracy and nonconspiratorial drug dealing. Willie
Earl Johnson was convicted on several drug charges,
including one count of conspiracy to possess and
distribute crack cocaine. The government’s case was
based on wiretapped phone calls that captured conversa-
tions in which Johnson asked to purchase resale quantities
2 No. 09-1912
of drugs from his supplier Craig Venson or from one
of Venson’s associates.
As we explained in United States v. Colon, 549 F.3d 565
(7th Cir. 2008), and recently reiterated in United States
v. Kincannon, 567 F.3d 893 (7th Cir. 2009), a drug
purchaser does not enter into a conspiracy with his sup-
plier simply by reselling the drugs to his own customers.
A conspiracy requires more; it requires evidence that
the buyer and seller entered into an “agreement to
commit a crime other than the crime that consists of the
sale itself.” Colon, 549 F.3d at 569 (internal quotation
marks omitted). The government therefore had to prove
that Johnson and someone else entered into an agree-
ment to distribute drugs, and this required evidence
that is distinct from the agreement to complete the under-
lying wholesale drug transaction. Although the content
of the intercepted phone calls suggested Johnson was a
middleman who resold the drugs he purchased, that is
all it suggested. As such, the evidence was insufficient to
prove Johnson entered into a conspiracy to distribute
drugs. We therefore vacate Johnson’s conviction on
the conspiracy count.
Johnson also contests his convictions for possession
of cocaine with intent to distribute and using a tele-
phone to facilitate the commission of a drug felony. We
conclude there is sufficient evidence to affirm the jury’s
verdict on these counts. However, because Johnson’s 72-
month sentence hinged largely on his conspiracy convic-
tion, we vacate the sentence and remand to the district
court for resentencing on the remaining offenses.
No. 09-1912 3
I. Background
Craig Venson was the kingpin of a major narcotics
operation. He and his lieutenants were responsible for
distributing copious quantities of crack cocaine and
heroin in and around Aurora, Illinois, from approxi-
mately 2002 until 2005. In mid-2003 the FBI began in-
vestigating Venson’s operation, and by 2004 the FBI
had intercepted approximately 11,000 telephone con-
versations occurring on two of Venson’s telephones.
These telephone calls revealed significant drug trafficking
and led to the arrests of Venson, Willie Johnson, and
seven other individuals the government alleged were
part of a conspiracy to distribute drugs.
The government indicted Johnson and the others on
conspiracy and other drug charges, and seven of the
alleged coconspirators, including Venson, pleaded guilty.
This left only Johnson and Ismael Garza, two lower-
level targets, to go to trial. Johnson and Garza were
tried jointly as coconspirators, and a jury found both men
guilty on all counts charged against them. Specifically,
Johnson was convicted of conspiracy to distribute and
to possess with intent to distribute controlled substances
in violation of 21 U.S.C. § 846 (Count One), possession
with intent to distribute a controlled substance in viola-
tion of 21 U.S.C. § 841(a)(1) (Count Eleven), and using
a telephone to facilitate a felony drug crime in violation
of 21 U.S.C. § 843(b) (Count Twelve). Garza was
similarly convicted on the conspiracy count and other
lesser offenses. Because Garza played a greater role in
Venson’s drug empire, he received a 120-month sentence;
Johnson was sentenced to 72 months’ imprisonment.
4 No. 09-1912
Both Garza and Johnson appealed. While their appeals
were pending, this court decided Colon and then
Kincannon, both of which explained the nature of the
proof required to convict a defendant for participating
in a drug-distribution conspiracy. In light of these deci-
sions, the government conceded that Garza’s conspiracy
conviction would not hold up on appeal and
stipulated that it should be vacated. See United States v.
Garza, No. 08-3005 (7th Cir. August 7, 2009) (order
vacating & remanding); Joint Mot. to Summ. Vacate J. as
to Count One, to Voluntarily Dismiss the Appeal, &
to Remand for Resentencing, United States v. Garza,
No. 08-3005 (7th Cir. July 22, 2009). The government
did not take a similar view of Johnson’s conspiracy con-
viction, however.
Invoking Colon and Kincannon, Johnson contends the
evidence was insufficient to convict him of conspiracy.
He argues in the alternative that trying him together
with Garza violated his right to a fair trial and resulted
in a fatal variance between the conspiracy alleged in
the indictment and the proof offered at trial. He also
contests the validity of his convictions on the lesser
counts. Finally, he challenges the district court’s sen-
tencing findings regarding drug quantity.
Seventeen recorded phone calls allegedly linked
Johnson to Venson’s drug-distribution operation.1 The
phone calls included conversations between Johnson
1
At the time of his arrest, Johnson did not possess any crack
cocaine, guns, scales, or packaging material for narcotics.
However, he did possess a small bag of marijuana.
No. 09-1912 5
and Venson, or Johnson and alleged coconspirator
Tosumbua Parker (Venson’s “right hand” man), in which
Johnson asked Venson or Parker to supply him with
“packs,” “basketballs,” or a “quarter pounder with
cheese”—code words for crack-cocaine quantities. At
trial Parker and FBI Special Agent Colluton testified that
a “pack” referred to 1/16 of an ounce (1.75 grams) of
crack, a “basketball” referred to 1/8 of an ounce (3.5 grams)
of crack,2 and a “quarter pounder with cheese” referred to
1/4 of an ounce (7 grams) of crack.3 Other drug-code
language was used as well. For example, in at least one
2
Parker also testified that he and Venson cut the drug quanti-
ties to lesser amounts. Accordingly, a “pack” was cut from 1.5
to approximately 1.0 grams, and a “basketball” was cut from
3.5 to 3.0 grams. In calculating the total drug quantity
attributed to Johnson as part of the conspiracy, the district
judge accepted Parker’s figures for “packs” but rejected his
figures regarding “basketballs.” Hence, one gram of crack was
attributed to each “pack” sold, but 3.5 grams were attributed
to each “basketball” sold. The judge’s decision to split the
difference was supported by Johnson’s counsel, who conceded
that 3.5 grams was an accurate number for each “basketball.”
3
Special Agent Colluton testified that while the term “pack” or
“basketball” almost certainly referred to quantities of crack
cocaine, the term “quarter pounder with cheese” was more
ambiguous because both marijuana and crack cocaine are
regularly sold in 1/4-ounce quantities. However, Parker testified
that a “quarter pounder” referred to crack cocaine. At sen-
tencing the district judge accepted Parker’s testimony and
attributed seven grams of crack for the “quarter pounder with
cheese” Johnson asked to purchase from Venson in one par-
ticular phone call.
6 No. 09-1912
call, Johnson told his supplier he needed drugs because
he had a “lick,” meaning a customer.
Beyond these 17 phone calls, however, the govern-
ment offered scant evidence inculpating Johnson in a
conspiracy. Only two of the alleged coconspirators
testified—Parker and April Hartline—and only Parker’s
testimony had anything to do with Johnson. In addition
to explaining the meaning of the code words, Parker
testified that he sold drugs to Johnson on no more than
four occasions and that he never sold Johnson any
drugs on credit. The only other items of evidence poten-
tially linking Johnson to Venson’s drug conspiracy
were pen-register records showing 344 calls were placed
between Johnson’s and Venson’s phones from Decem-
ber 2003 to October 2004. For about two months during
this time period, the government monitored Venson’s
phones and recorded the conversations that were played
at trial.
II. Discussion
A. Sufficiency of the Evidence: Conspiracy
Johnson contends there was insufficient evidence to
support his conspiracy conviction. We will overturn a
conviction on sufficiency-of-the-evidence grounds only
if no rational jury could have found the essential
elements of the crime beyond a reasonable doubt.
Kincannon, 567 F.3d at 898. In making this determination,
we view all evidence and draw all reasonable inferences
in the light most favorable to the prosecution. See id.
No. 09-1912 7
To convict a defendant of conspiracy, the government
must prove that (1) two or more people agreed to commit
an unlawful act, and (2) the defendant knowingly and
intentionally joined in the agreement. United States v.
Rollins, 544 F.3d 820, 835 (7th Cir. 2008). A drug-distribu-
tion conspiracy under 21 U.S.C. § 846 requires proof that
the defendant knowingly agreed—either implicitly or
explicitly—with someone else to distribute drugs.4 Colon,
549 F.3d at 569. When the alleged coconspirators are in a
buyer-seller relationship, however, we have cautioned
against conflating the underlying buy-sell agreement
with the drug-distribution agreement that is alleged to
form the basis of the charged conspiracy. To support a
conspiracy conviction, there must be sufficient evidence
of “ ‘an agreement to commit a crime other than the crime
that consists of the sale itself.’ ” See id. (quoting United
States v. Lechuga, 994 F.2d 346, 347 (7th Cir. 1993) (en banc)
(emphasis added)).
Articulating this principle is somewhat easier than
applying it; it is often difficult to determine what proof is
sufficient to establish that individuals in a buyer-seller
relationship also agreed to distribute drugs. Certain
characteristics inherent in any ongoing buyer-seller
relationship will also generally suggest the existence of a
conspiracy. For example, sales of large quantities of
drugs, repeated and/or standardized transactions, and a
4
Proof of an overt act is not required for drug conspiracies
under 21 U.S.C. § 846. United States v. Shabani, 513 U.S. 10, 11
(1994).
8 No. 09-1912
prolonged relationship between the parties constitute
circumstantial evidence of a conspiracy. See, e.g., United
States v. Avila, 557 F.3d 809, 816 (7th Cir. 2009); United
States v. Contreras, 249 F.3d 595, 599 (7th Cir. 2001); United
States v. Zarnes, 33 F.3d 1454, 1465 (7th Cir. 1994). And
ordinarily, the government may prove a conspiracy on
circumstantial evidence alone. Avila, 557 F.3d at 815-16;
United States v. Townsend, 924 F.2d 1385, 1390 (7th Cir.
1991); United States v. Redwine, 715 F.2d 315, 320 (7th Cir.
1983) (“The government need not establish that there
existed a formal agreement to conspire; circumstantial
evidence and reasonable inferences drawn therefrom
concerning the relationship of the parties, their overt
acts, and the totality of their conduct may serve as proof.”).
Yet we have routinely held that a conviction for con-
spiracy to distribute drugs cannot be sustained solely on
circumstantial evidence if the evidence contains no
basis for the jury to distinguish the alleged conspiracy
from the underlying buyer-seller relationship. See Colon,
549 F.3d at 567 (evidence of standardized transactions,
large quantities of drugs, and prolonged relationship
between supplier and purchaser insufficient to sustain
conspiracy conviction); Lechuga, 994 F.2d at 347 (“ ‘large
quantities of controlled substances, without more,
cannot sustain a conspiracy conviction’ ” (quoting United
States v. Lamon, 930 F.2d 1183, 1191 n.18 (7th Cir. 1991))).
Thus, to prove a conspiracy, the government must offer
evidence establishing an agreement to distribute drugs
that is distinct from evidence of the agreement to
complete the underlying drug deals.
No. 09-1912 9
This rule is based on a fundamental principle of criminal
law: the requirement that the government prove the
defendant guilty beyond a reasonable doubt. If the prose-
cution rests its case only on evidence that a buyer and
seller traded in large quantities of drugs, used standard-
ized transactions, and had a prolonged relationship, then
the jury would have to choose between two equally
plausible inferences. On one hand, the jury could infer
that the purchaser and the supplier conspired to
distribute drugs. On the other hand, the jury could infer
that the purchaser was just a repeat wholesale customer
of the supplier and that the two had not entered into
an agreement to distribute drugs to others. In this situa-
tion, the evidence is essentially in equipoise; the plausi-
bility of each inference is about the same, so the jury
necessarily would have to entertain a reasonable doubt
on the conspiracy charge. See, e.g., United States v.
Lovern, Nos. 08-3141 & 08-3149, 2009 WL 2871538, at *9
(10th Cir. Sept. 9, 2009) (When “the evidence . . . gives
equal or nearly equal circumstantial support to a theory
of guilt and a theory of innocence, we must reverse
the conviction, as under these circumstances a rea-
sonable jury must necessarily entertain a reasonable
doubt.” (internal quotation marks omitted)); O’Laughlin
v. O’Brien, 568 F.3d 287, 301 (1st Cir. 2009) (same);
United States v. Elashyi, 554 F.3d 480, 492 (5th Cir. 2008)
(“When the evidence is essentially in balance, a rea-
sonable jury must necessarily entertain a reasonable
doubt.” (internal quotation marks omitted)); United States
v. Hawkins, 547 F.3d 66, 71 (2d Cir. 2008) (same); United
States v. Caseer, 399 F.3d 828, 840 (6th Cir. 2005) (same).
10 No. 09-1912
Absent some other evidence of a conspiratorial agree-
ment to tip the scales, the jury must acquit. Otherwise,
the law would make any “wholesale customer of a con-
spiracy . . . a co-conspirator per se.” Colon, 549 F.3d at 569.
In Colon we gave the following examples of other evi-
dence that would distinguish a conspiracy from a
nonconspiratorial wholesale buyer-seller relationship:
sales on credit or consignment,5 an agreement to look for
5
A consignment sale that permits the middleman to return the
unused drugs is quintessential evidence of a conspiracy
because it shows that the supplier will not get paid until the
middleman resells the drugs. See Lechuga, 994 F.2d at 363
(Cudahy, J., concurring in part and dissenting in part).
Indeed, a consignment sale demonstrates a codependent joint
enterprise because neither party profits until the middleman
distributes the drugs to others. From this, a jury could easily
infer an agreement to distribute. Credit sales are different; not
all credit sales can support an inference that there was an
agreement to distribute. For example, a supplier extending
credit to an individual buying a small quantity of drugs for
personal consumption does not create a conspiracy. See id.; cf.
United States v. Baker, 905 F.2d 1100, 1106 (7th Cir. 1990) (one-
time credit purchase of large quantity of drugs not evidence
of a conspiracy). However, when a credit sale is coupled
with certain characteristics inherent in an ongoing wholesale
buyer-seller relationship—i.e., large quantities of drugs, “repeat
purchases or some other enduring arrangement”—the credit
sale becomes sufficient evidence to distinguish a conspiracy
from a nonconspiratorial buyer-seller relationship. See Baker,
905 F.2d at 1106. In this situation, the credit arrangement could
(continued...)
No. 09-1912 11
other customers, a payment of commission on sales, an
indication that one party advised the other on the
conduct of the other’s business, or an agreement to warn
of future threats to each other’s business stemming
from competitors or law-enforcement authorities. See id.
at 568-70.
Recognizing that the validity of Johnson’s conspiracy
conviction depends on evidence of this sort, the govern-
ment argues that it proved: (1) Venson sold drugs to
Johnson on credit; (2) Johnson looked for customers for
Venson; and (3) Johnson warned Venson of a police
presence. The record, however, does not support this
characterization of the evidence.
The government’s first two contentions—that there
were sales on credit and Johnson agreed to find cus-
tomers for Venson—rest entirely on a July 2, 2009 phone
conversation in which Johnson asked for a discount on
the price of the drugs he was ordering from Venson.
Johnson called Parker and asked if he could get five
“packs” (of crack) for the price of four, a $30 discount.
Hearing this, Venson grabbed the phone from Parker
and asked if Johnson was “high.” Venson then said he
would agree only if Johnson paid the $30 later. Johnson
rejected this counteroffer and persisted in his attempt
to secure a $30 discount. Johnson reminded Venson that
5
(...continued)
easily “support an inference that [the buyer] became a
co-venturer” because he will not got paid until the drugs
are resold. Id.
12 No. 09-1912
he would continue to do business with him and
indicated that he had a friend who wanted to buy
drugs from Venson. 6 Venson then relented and agreed to
the five-for-four deal.
The government argues that this evidence established
a conspiracy because it showed both that Venson sold
drugs to Johnson on credit and that Johnson agreed to
find more customers for Venson to further the joint enter-
prise. See Colon, 549 F.3d at 570 (explaining that the sale
of drugs on credit and an agreement to find new
customers may constitute evidence of a conspiracy to
distribute). This interpretation is quite strained. For
starters, Johnson did not buy drugs on credit because he
never agreed to repay Venson the $30. Johnson got a
discount, not an advance. The government suggests in
the alternative that a discount is evidence of a con-
spiracy because it shows that Venson and Johnson
“shared a financial interest in arranging customers for
Venson’s drugs, and Venson’s price cut was designed
to encourage [Johnson] to augment Venson’s market.” This
is more weight than a one-time $30 discount can bear. As
a general matter, every buyer-seller transaction involves
a “shared financial interest” in the sense that each
party exchanges something of value. Here, Venson ap-
parently thought Johnson’s continued business and the
6
Johnson’s actual response was littered with profanity and
difficult to comprehend. However, both parties agree that
Johnson’s response indicated he was promising to buy his
drugs from Venson in the future and promising to refer a
friend to Venson.
No. 09-1912 13
possibility of a referral was worth the $30 discount, but
that hardly suggests the two agreed to a drug-distribution
venture. Rather, Johnson traded on his status as a
regular customer and promise of a referral in order to
secure a one-time discount on the price of the drugs and
to consummate the transaction immediately. Importantly,
Johnson did not agree to recruit new customers for
Venson, but simply said he had a friend who needed a
drug supplier. Cf. id. (agreement to look for new cus-
tomers can be evidence of conspiracy). In short, the July 2
conversation is insufficient to establish that Johnson and
Venson had an agreement to distribute drugs that was
distinct from the agreement to complete the underlying
drug deal.
The government’s third and final contention is that
Johnson warned Venson of a police presence in the neigh-
borhood and that this is distinguishing evidence of a
conspiracy. On August 31, 2004, Johnson called Venson
and ordered a “quarter pounder with cheese.” While
Venson was en route to deliver the drugs, Johnson
again called Venson and told him the police were in
the area. Like the one-time discount, this singular
warning is insufficient to establish the existence of a
conspiracy. Johnson warned Venson because he was
waiting for Venson to deliver the drugs he had just or-
dered. Venson was in the car and was just arriving at
the spot where he planned to hand over the drugs; in
this situation, any ordinary drug purchaser would warn
his supplier of a nearby police presence to ensure he
received the delivery. This is not conspiratorial
behavior; it is self-preservation.
14 No. 09-1912
The rest of the government’s case consisted of the sort
of generic circumstantial evidence that is inherent in any
wholesale buyer-seller relationship.7 For example, there
is evidence Johnson repeatedly purchased drugs in stan-
dardized quantities and then resold the drugs to his
customers. Moreover, the large volume of phone calls
between Johnson and Venson (approximately 300 calls
over 10 months) established a prolonged relationship of
mutual trust. But as we explained in Colon, this kind of
evidence typifies a nonconspiratorial wholesale buyer-
seller relationship. See id. (explaining that some level of
mutual trust is inherent in any buyer-seller relationship).
The jury had no evidence before it other than that which
is routinely present in an ongoing buyer-seller relation-
ship. As such, the evidence is insufficient to support
Johnson’s conspiracy conviction.8
7
At oral argument the government disclaimed any reliance on
evidence of an unexplained trip Johnson, Parker, and Venson
took to Iowa in 2003. Parker testified that the three traveled
to Iowa and while there Johnson sold a small quantity of drugs
to some of Venson’s family members. The purpose of the Iowa
trip is unclear from the record, as are the circumstances sur-
rounding the drug transaction. In light of the government’s
disclaimer, however, we need not consider this ambiguous
evidence any further.
8
As we have noted, Johnson also contends his conviction
should be overturned because there was a fatal variance
between the conspiracy alleged in the indictment and the
proof offered at trial. See Townsend, 924 F.2d at 1389. In particu-
(continued...)
No. 09-1912 15
Our conclusion necessarily means that no reasonable
jury could have convicted Johnson of a conspiracy on
these facts, see Kincannon, 567 F.3d at 898, but we note
the jury received the same conspiracy instructions we
said in Colon were “muddle[d],” 549 F.3d at 570-71. John-
son’s jury was told to consider the following factors:
(1) whether the transactions involved large quantities of
crack; (2) whether the parties had a standardized way of
doing business over time; (3) whether the sales were
on credit or consignment; (4) whether the parties had a
continuing relationship; (5) whether the seller had a
financial stake in a resale to the buyer; and (6) whether
the parties had an understanding that the drugs would
be resold. As we explained in Colon, only the third of
these factors—sales on credit or consignment—actually
distinguishes a conspiracy from a nonconspiratorial
wholesale buyer-seller relationship. Id. at 570. The re-
maining factors are pertinent only if the government has
offered some evidence from which the jury can
distinguish a conspiracy from a mere buyer-seller rela-
tionship. Id. Where the government has offered some
distinguishing evidence, the jury may rely on the other
8
(...continued)
lar, he claims he was prejudiced by being tried jointly with
Garza because the jury heard numerous wiretapped phone
calls involving discussions between Garza and other
alleged coconspirators or discussions between the alleged
coconspirators who were not on trial. Because we are
vacating Johnson’s conspiracy conviction on sufficiency-of-the-
evidence grounds, we need not consider this argument.
16 No. 09-1912
factors listed in the instruction to buttress an inference
that there was an agreement to distribute drugs. But in
the absence of other evidence, the presence of the re-
maining factors suggests only a nonconspiratorial whole-
sale buyer-seller relationship and will not support a
conspiracy conviction.
B. Sufficiency of the Evidence: Remaining Counts
Johnson also challenges the sufficiency of the evidence
supporting his convictions for possession of cocaine with
intent to distribute and using a telephone to facilitate a
drug felony. On the possession count, the jury concluded
that on or about July 2, 2004, Johnson possessed with
intent to distribute a controlled substance containing
cocaine. We will sustain this conviction if a reasonable
jury could conclude from the evidence that Johnson
(1) knowingly and intentionally possessed cocaine,
(2) with intent to distribute it, (3) while knowing it was a
controlled substance. United States v. Irby, 558 F.3d 651,
654 (7th Cir. 2009). A jury may infer that the defendant
actually or constructively possessed drugs from circum-
stantial evidence alone. See United States v. Morris, 576
F.3d 661, 666-69 (7th Cir. 2009).
The July 2, 2004 phone intercepts, along with other
record evidence, support a reasonable inference that
Johnson possessed cocaine with intent to distribute. The
phone intercepts begin on the evening of July 2 with the
recording we have already described, which captures
Johnson attempting to secure a $30 discount on the price
of five “packs” of crack. This recording starts with
No. 09-1912 17
Johnson telling an unidentified male in the background
that he would try to get the “buy four, get five” deal. After
haggling back and forth, Venson agreed to the discount.
About three hours later, at 11:22 p.m., Johnson called
Venson back and complained about the delay in deliv-
ery. During this call, Johnson interrupted his conversation
with Venson to speak to the unidentified male. Johnson
asked the man what he wanted, and the man responded, “a
basketball.” Johnson then ordered a “basketball” from
Venson, and Venson said he would deliver it in 15 minutes.
A third phone call about an hour later is circumstantial
evidence that Johnson actually received the requested
cocaine. At 12:19 a.m. Johnson called Venson and told
him the drugs were “phat”—that is, they were of high
quality. This supports an inference that Johnson re-
ceived—and therefore possessed—the crack he had
previously ordered. Other wiretaps corroborated the
inference that Johnson intended to distribute the drugs
he purchased from Venson. For instance, on August 14,
2004, Johnson called Venson and asked for a “basketball”
because he had a “lick” (meaning a customer) coming
over in 15 minutes. Although Johnson’s possession con-
viction was based on his activities of July 2, 2009, the
jury reasonably could rely on this August 14 call to rein-
force a conclusion that Johnson’s purchase on July 2
was for resale. All in all, there is sufficient evidence to
support Johnson’s conviction for possession of cocaine
with intent to distribute.
We also conclude the evidence is sufficient to sustain
Johnson’s conviction for using a telephone to facilitate a
18 No. 09-1912
drug felony in violation of 21 U.S.C. § 843(b). To convict
on this count, the government had to prove that Johnson
knowingly or intentionally used a telephone to further a
felony drug crime and that the felony indeed occurred.
See United States v. McGee, 408 F.3d 966, 985-86 (7th Cir.
2005). There is no dispute here about Johnson’s use of a
telephone. The indictment alleged that Johnson used
the telephone to further two separate crimes—the con-
spiracy (Count One) and possession with intent to distrib-
ute (Count Eleven). Although we have vacated the con-
spiracy conviction, the possession conviction still stands,
and it supports Johnson’s conviction on the use-of-a-
telephone count.
C. Sentencing
Johnson was sentenced to 72 months’ imprisonment
for his convictions on the conspiracy and possession
counts, and 48 months’ imprisonment for his conviction
on the use-of-the-telephone count, with the terms
running concurrently. This sentence was plainly driven
by the conspiracy charge. The jury returned a special
verdict finding Johnson accountable for between 5 and 50
grams of crack cocaine based on his involvement in the
conspiracy. At sentencing the district judge assessed
Johnson’s drug quantity more specifically at 31.5 grams of
crack cocaine and used this figure to calculate his
advisory sentencing range under the Sentencing Guide-
lines. But now the conspiracy conviction is vacated, and
gone with it is the jury’s special verdict assigning a quan-
tity of 5 to 50 grams of crack cocaine. All that remains
No. 09-1912 19
is a conviction for possession (with no special verdict
assigning a drug quantity) and a conviction for using a
telephone to further that felony. Johnson is therefore
entitled to resentencing.
Accordingly, we V ACATE Johnson’s conspiracy convic-
tion and his sentence, A FFIRM the remaining convic-
tions, and R EMAND for resentencing.
1-19-10