United States v. Johnny Jones ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2658
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHNNY JONES,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District Indiana, South Bend Division.
No. 3:16-cr-00080-JD-MGG-3 — Jon E. DeGuilio, Judge.
____________________
ARGUED FEBRUARY 16, 2018 — DECIDED AUGUST 14, 2018
____________________
Before WOOD, Chief Judge, and KANNE and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. After a jury convicted Johnny Jones
of possessing and conspiring to distribute methamphetamine,
the district court sentenced him to a term of imprisonment of
145 months. In calculating Jones’ sentence, the district court
considered Jones’ possession of a gun carried in the purse of
his co-conspirator and also several quantities of methamphet-
amine for which Jones claimed he was not responsible. We
2 No. 17-2658
have reviewed these findings by the district court for clear er-
ror and finding none, we affirm.
I.
In February or March 2016, Jones and his girlfriend, Jen-
nai Rowland, moved to Benton Harbor, Michigan, staying in
various hotels and, on occasion, with Jones’ cousin, Stephanie
Smith. 1 Jones and Rowland used Smith’s address as their
own. Hard times had befallen Smith and she joined with Jones
and Rowland to sell drugs, particularly methamphetamine.
Smith’s role was to find buyers and connect them to Jones and
Rowland. Jones and Rowland controlled the business. They
set the prices, authorized transactions, and provided instruc-
tions for meeting—communicating with Smith by way of text
messages or in person. When Smith found a buyer, she would
contact Jones or Rowland, and then obtain the methampheta-
mine from Rowland. Sometimes Jones would be present at
these transactions and give the go-ahead for the sale; some-
times Rowland would arrive alone. After selling the metham-
phetamine, Smith would give the buyers’ money to Rowland
or Jones. When Smith needed to earn more money, she would
send a text message to Jones’ phone asking that he send more
customers her way.
From May 2 through August 8, 2016, an undercover police
officer purchased approximately 60 grams of methampheta-
1 We recite the facts in the light most favorable to the jury verdict, Common
v. City of Chicago, 661 F.3d 940, 945 (7th Cir. 2011), but we note later which
facts Jones disputes for purposes of sentencing, and which the judge
found by a preponderance of the evidence, rather than the jury’s finding
beyond a reasonable doubt.
No. 17-2658 3
mine from Smith over the course of six controlled buys. (A
single “dose” of methamphetamine is usually about a half of
a gram). For each transaction, Smith would contact Rowland
and Jones and obtain the drugs from them.
The conspiracy unraveled on August 30, 2016, after a final
controlled buy. On that day, Smith agreed to sell the under-
cover officer eight ounces (226.8 gm) of methamphetamine at
a Walmart parking lot in Niles, Michigan, a few miles north
of the Indiana boarder. She arrived with only two ounces (56.7
gm) of methamphetamine, but offered to travel to South Bend
for the remaining six ounces.
Smith left the two ounces of methamphetamine with the
undercover officer in exchange for $2,000 cash (the serial
numbers of which had been pre-recorded by the police). She
then drove to South Bend where she met Jones, Rowland, and
Jones’ mother at a hotel. After Smith explained to Jones and
Rowland that she needed more methamphetamine, Jones told
Rowland to “[g]et her what she need.” R. 185 at 104. The four
then walked out of the hotel to a silver Mustang. As they
walked out, Jones’ mother pointed out that Rowland had a
gun hanging out of her purse. Jones was irritated that the gun
was not properly concealed and pushed it back down into
Rowland’s purse.
With Jones present, Rowland gave Smith two more ounces
of methamphetamine. 2 Smith gave $1,500 of the undercover
officer’s money to Jones and he allowed her to keep the
2Neither the record nor the briefs explain why Smith, who promised the
undercover agent six more ounces of methamphetamine, only received
two more ounces from Jones and Rowland.
4 No. 17-2658
remaining $500. Smith then returned to the Walmart parking
lot where law enforcement officers arrested her.
Meanwhile, investigators followed the silver Mustang to a
mall parking lot where it approached a blue Buick, stopping
driver’s side to driver’s side. Investigators followed the car
but could not hear the conversation or see anything inside the
Mustang, but they could see that someone tossed two baggies
containing a golf-ball-sized white substance from the Mus-
tang’s driver’s side window to the Buick, and someone from
the Buick got out of the car and handed a bundle of cash into
the Mustang’s driver’s side window. Immediately after the
transaction, investigators stopped the Mustang and arrested
Jones, who was driving, and Rowland, the front seat passen-
ger. Jones had $1,500 in pre-recorded money from the under-
cover agent in his pocket and an additional $2,400 in cash. In
a purse that Rowland had on her lap at the time of the stop,
investigators found “one fairly small package” of metham-
phetamine and a loaded .380 caliber pistol. R. 185 at 136, 155–
56. Investigators did not find any of Jones’ fingerprints on the
gun, but did find them on the magazine inside the weapon.
They also found a plastic grocery bag in the back seat which
contained 53.8 grams of marijuana, two packages of metham-
phetamine, empty baggies, and a digital scale. They also
found another digital scale and two cell phones in the car’s
center console area. A law enforcement officer testified that
the two packages of methamphetamine in the back seat were
“substantially larger” than the package in Rowland’s purse.
R. 185 at 135–37. In all, law enforcement officers recovered
three baggies of methamphetamine from the car—one from
Rowland’s purse and two from the back seat. The three bags
contained the following amounts of methamphetamine: 1.6
grams, 15.9 grams and 29.6 grams. Unfortunately the bags
No. 17-2658 5
were not marked with the location in which they were found
and one was not properly sealed. Nevertheless, given the tes-
timony that the substantially smaller of the bags came from
Rowland’s purse, there is sufficient evidence for us to con-
clude (as did the trial court) that the 1.6 gram bag came from
Rowland’s purse and the 15.9 and 29.6 gram bags came from
the rear seat.
One of the cell phones found in the search of the Mustang
was linked to the phone number that Smith used to communi-
cate with Jones. This phone was also the phone used in text
message exchanges with Rowland’s phone, including a mes-
sage sent on July 26, 2016, from Rowland’s phone, which said
“Meet the newest member of our family. … “ along with a
picture of the .380 caliber pistol posed with a bundle of cash.
R. 186 at 32.
A grand jury charged Smith, Rowland, and Jones with
multiple drug related crimes. Jones’ indictment charged him
with conspiring to distribute over 50 grams of methampheta-
mine in violation of 21 U.S.C. § 846; possession with the intent
to distribute methamphetamine in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2; and possession of a firearm in
furtherance of a drug trafficking crime in violation of 18
U.S.C. § 924(c). R. 80. Rowland pled guilty to possessing a fire-
arm in furtherance of a drug trafficking crime. Smith pled
guilty to conspiring to distribute methamphetamine and
agreed to cooperate with the government by testifying at
Jones’ trial.
At trial, Smith testified that she received the first two
ounces of methamphetamine that she sold to the undercover
agent on August 30, 2016, from Rowland the night before the
sale. She also testified that when she arrived at the hotel to get
6 No. 17-2658
the second batch, she explained what she needed to Rowland
and Jones, and, in response, Jones told Rowland to give her
two additional ounces of methamphetamine. She also wit-
nessed Jones push the gun which was visible in Rowland’s
purse out of sight and then reprimand Rowland for allowing
it to be visible.
At trial, one police officer testified that he recovered the
smaller baggie of methamphetamine from Rowland’s purse
and the two “substantially larger” bags from the Mustang’s
rear seat. He identified Government Exhibits 21, 22 and 23 as
the three recovered bags, but he did not specifically identify
for the jury which bag was which. Each evidence bag was
marked with a weight—Exhibit 21, 1.6 grams; Exhibit 22, 15.9
grams; Exhibit 23, 29.6 grams. See R. 202-1. 3
During deliberations, the jury immediately asked a ques-
tion about the weight of the three exhibits. The judge allowed
the jurors to inspect Exhibits 21–23 in the courtroom. A few
hours later the jurors returned a verdict convicting Jones of
conspiring to distribute over 50 grams of methamphetamine
and possessing with intent to distribute methamphetamine.
The jury acquitted Jones of possessing a firearm in further-
ance of a drug trafficking crime.
Jones waived his right to counsel for sentencing after a
breakdown in the attorney-client relationship over strategy.
The district court allowed him to represent himself, but
3 None of the trial exhibits were included originally in the record on ap-
peal, but these three were added later. See Appellate Court Record at 21.
None of the other trial exhibits were included in the record on appeal. We
urge all counsel in all cases to include trial exhibits in the record on appeal
to make this court’s review of the record more efficient and thorough.
No. 17-2658 7
assigned stand-by counsel. The pre-sentence report calcu-
lated Jones’ base offense level at 26, based on a total amount
of methamphetamine estimated at 288.29 grams. This calcula-
tion included the following:
Amount Event
62 gm Sold by Smith during controlled transactions,
May-August 2016
111 gm Delivered by Smith on 8-30-16 at Walmart
47 gm Found in Mustang upon arrest (including 1.6
gm in purse, 15.9 from rear seat, 29.6 gm from
rear seat)
68 gm Calculated by converting $2400 in cash at an es-
timated sale price of $1000/ounce
288 gm TOTAL
At sentencing, Jones objected to the quantities going back
to May 2016 arguing that he was only found guilty of the Au-
gust 30 incident, and, he asserted, there was no evidence that
he was involved with Smith while she was selling to the un-
dercover officer on prior occasions.
The presentence report contained a claim by Jones that he
supported himself by selling cars for cash and that the seized
cash came from those vehicle sales. When asked about it at
sentencing, however, Jones admitted he had no evidence to
support the claim. Nor did Jones object to the formula for cal-
culating the conversion ratio and raised no claim at sentenc-
ing that his cash came from the marijuana sales. He also
8 No. 17-2658
argued, without evidence, that he was not responsible for the
methamphetamine in Rowland’s purse as it was for her per-
sonal use.
The district court rejected Jones’ objections, and accepted
the calculations from the Walmart transaction, the drugs
found in the Mustang (which it aggregated), and the cash con-
version, for a finding that Jones was responsible for a little
over 288 grams of methamphetamine. The district court spe-
cifically accepted Smith’s credibility that she received all of
her methamphetamine from Jones and/or Rowland and that
Jones set the price and paid Smith for her efforts. The judge
rejected Jones’ claims to the contrary. The court noted that the
calculations likely underestimated the breadth of the drug
distribution because they did not include drugs distributed
without Smith’s involvement even though there was evidence
that Jones and Rowland distributed methamphetamine with-
out Smith acting as middleman.
As for the firearm enhancement, the presentence report
recommended a two-level increase for the use of a dangerous
weapon during a drug offense. See U.S.S.G. § 2D1.1(b)(1).
Jones objected to the increase, arguing that there was insuffi-
cient evidence to find that he had personally possessed the
firearm, noting that his fingerprints were found on the maga-
zine, but not on the weapon itself.
The court overruled the objection and applied the en-
hancement finding that there was sufficient evidence set forth
at trial that Rowland possessed the firearm in furtherance of
the drug conspiracy. The district court also found that Row-
land’s possession of the firearm was not only foreseeable to
Jones, but that there was evidence that he actually knew about
it.
No. 17-2658 9
Based on these rulings and Jones’ criminal history cate-
gory of V (Jones had two prior federal convictions, including
one prior drug conviction), the district court calculated the
Sentencing Guidelines range to be 130–162 months of impris-
onment. Jones was subject to a mandatory minimum of ten
years based on his prior drug felony conviction. After consid-
ering the factors required by § 3553 such as Jones’ difficult
childhood, his drug addictions, and inability to obtain a social
security card and thus a legitimate job, the district court sen-
tenced Jones to a mid-range sentence of 145 months. The
judge also noted that even if the court had sustained the ob-
jection to the firearm enhancement it still would have im-
posed the same sentence based on Jones’ criminal history and
non-compliance with supervision in the past. Jones commit-
ted the crimes at issue here while on supervised release.
II.
A. Drug quantity calculations
Jones’ primary argument on appeal is that the district
court miscalculated the drug quantities used to calculate his
sentence. On that argument he faces an uphill battle. We re-
view a district court’s drug quantity calculations for clear er-
ror. United States v. Patterson, 872 F.3d 426, 437 (7th Cir. 2017).
This means that we uphold the district court’s factual findings
on these matters unless we have a firm and definite belief that
the district court has erred. United States v. Ranjel, 872 F.3d
815, 818 (7th Cir. 2017). A district court calculating drug quan-
tities at sentencing need only support its findings by a pre-
ponderance of the evidence. United States v. Bozovich, 782 F.3d
814, 818 (7th Cir. 2015).
10 No. 17-2658
The problem for Jones on almost all of his arguments on
this matter is the theory of conspirator liability. Under a Pink-
erton theory of liability, a defendant is liable for the criminal
conduct of co-conspirators where those criminal acts “(1)
were reasonably foreseeable to the defendants; and (2) oc-
curred during the time that they were members of the con-
spiracy.” United States v. Conley, 875 F.3d 391, 401 (7th Cir.
2017) (citing Pinkerton v. United States, 328 U.S. 640, 647–48
(1946)). Thus, in a drug conspiracy, each conspirator is re-
sponsible not only for drug quantities directly attributable to
him but also for amounts involved in transactions by co-con-
spirators that were reasonably foreseeable to him. United
States v. Austin, 806 F.3d 425, 431 (7th Cir. 2015).
This means that all of Jones’ arguments that try to place
the drugs in Rowland’s possession, rather than his, are futile
provided that her possession of those drugs was foreseeable
to Jones and in furtherance of the conspiracy. Even Jones’ at-
tempts to claim that the drugs found in Rowland’s purse were
for her personal use only cannot prevail under a clear error
review. A district court calculating drug quantities at sentenc-
ing need only support its findings by a preponderance of the
evidence “and district courts may make reasonable though
imprecise estimates based on information that has indicia of
reliability.” Bozovich, 782 F.3d at 818. Determining drug quan-
tities is not an exact science. Austin, 806 F.3d at 431.
At trial, an officer testified that the police found a small
bag of methamphetamine in Rowland’s purse and two larger
bags of methamphetamine in the back seat of the car. Given
the quantities of methamphetamine in each bag—1.6 grams,
15.9 grams and 29.6 grams—the district court could certainly
put together the officer’s testimony and the weights on the
No. 17-2658 11
bags to find, by a preponderance of the evidence, that the 1.6
gram bag was in Rowland’s purse and the other two bags
were in the back seat. The failure to mark the location where
each bag was found would not have passed muster if the gov-
ernment had needed to prove quantity beyond a reasonable
doubt. Under the burdens associated with calculations at sen-
tencing, however, this was sufficient.
On the day of their arrest, Jones and Rowland had been
involved in at least two drug sales—one with Smith and the
other with the occupants of a blue Buick. This was not a situ-
ation where the police found a different stash of drugs back
at Rowland’s apartment in her nightstand, for example. The
two were driving around together in a car full of drugs, cash,
and a weapon. The district court was within its discretion to
determine that all of the drugs in and around Jones and Row-
land that day were packaged and ready for sale by them in
pursuit of their joint venture. Drugs that a defendant obtained
for personal use from a supplier can also be part of a common
plan or scheme of a conspiracy. See United States v. Snook, 60
F.3d 394, 396 (7th Cir. 1995).
In any event, given the other drug quantities, the 1.6 grams
found in Rowland’s purse would have had no impact on
Jones’ sentence even if incorrectly attributed to him. Errors in
calculating relevant conduct are subject to a harmless error
analysis. United States v. Crockett, 82 F.3d 722, 730 (7th Cir.
1996). Any error here was harmless at worst, as it would not
have affected the Guidelines range.
Based on this same theory of conspirator liability, the dis-
trict court did not err in attributing to Jones, as co-conspirator,
all of Smith’s sales to the undercover officer. The district court
found that Jones and Rowland were a team. They arrived in
12 No. 17-2658
Michigan together, lived together, and worked together to
distribute methamphetamine. When Rowland obtained a
gun, she sent a photograph of it to Jones telling him they had
a new “member of the family.” Rowland held the drugs and
gave them to Smith to sell while Jones set prices, authorized
sales, and sometimes came along for the transaction. Smith
joined the conspiracy to connect buyers to the drugs. She con-
tacted Jones and Rowland when she needed to procure drugs
for specific transactions, and she physically obtained drugs
from Rowland, and sometimes from both Rowland and Jones
together. She received instructions and authorization from
Jones and returned the proceeds to both Jones and Rowland
and took a share of the profits for herself with Jones’ permis-
sion.
The district court was well within its discretion to con-
clude that Jones, Rowland, and Smith all participated in a con-
spiracy and therefore to count against Jones the six occasions
in which Smith sold methamphetamine to an undercover
agent between May and August 2016. The district court found
Smith’s testimony on all of these facts to be credible, a finding
to which we give exceptional deference, overturning only for
clear error. Austin, 806 F.3d at 431.
The district court’s credibility finding also puts to bed
Jones’ argument that the court erred in attributing the $2,400
in cash to drug sales. “When there is a sufficient basis to be-
lieve that cash found in a defendant’s possession was derived
from drug sales, a court properly includes the drug equiva-
lent of that cash in the drug-quantity calculation.” United
States v. Simmons, 582 F.3d 730, 737 (7th Cir. 2009). While ob-
jecting to the amount in the presentence report, Jones made a
feeble argument that the cash came from vehicle sales, but he
No. 17-2658 13
admitted at sentencing that he had no evidence for that asser-
tion. On appeal, Jones abandons that claim and argues instead
that the government failed to establish the required relation-
ship between the transaction and the offense as required by
United States v. Patel, 131 F.3d 1195, 1203 (7th Cir. 1997). We
disagree.
When the police arrested Jones and Rowland, they found
$2,400 in Jones’ pocket along with the $1,500 from the under-
cover agent’s controlled purchase (the latter of which they
could verify by the pre-recorded serial numbers). Immedi-
ately after Smith procured more methamphetamine from
Jones and Rowland, police officers watched Jones and Row-
land drive to a mall parking lot and toss some baggies con-
taining a white substance from their Mustang into the win-
dow of a blue Buick. The officers also watched the driver of
the blue Buick pass a bundle of cash into the Mustang’s
driver’s side window. The officers testified that, given their
experience, they recognized these events to be a drug pur-
chase. Law enforcement officers attempted to stop the Buick,
but they lost contact with it and were unable to do so. Of
course it would have been better had the police been able to
stop the Buick and verify that the people in the car had pur-
chased methamphetamine and note the quantity purchased.
And although the investigators testified that they saw white
colored baggies pass between the cars, they were also hin-
dered from seeing inside the Mustang because of glare on the
window. Nevertheless, determining drug quantities at sen-
tencing is not an exact science and requires only proof by a
preponderance of the evidence. Austin, 806 F.3d at 431. Of
course evidence can always be stronger, but the district court
certainly had a sufficient preponderance of evidence to deter-
mine that Jones and Rowland had just exchanged a significant
14 No. 17-2658
amount of methamphetamine for cash just before being
stopped, arrested, and searched. To the extent that Jones ar-
gues that the cash could have come from the sale of mariju-
ana, the court was entitled to credit the police testimony that
the exchanged baggies contained a white substance (as op-
posed to green or brown as it might have been in a marijuana
sale). This was sufficient under the preponderance standard
to link the cash to the drugs such that the district court could
convert the $2,400 in currency into a drug quantity. Jones did
not object to the court’s formula that estimated the sale price
at $1000/ounce for a total of 2.4 ounces or 68 grams.
B. Firearm sentencing enhancement
Jones has no easier of a task arguing that the district court
improperly imposed a sentencing enhancement for posses-
sion of a firearm in furtherance of the crime under U.S.S.G.
§ 2D1.1(b)(1). We review this decision for clear error too.
United States v. Morris, 836 F.3d 868, 872 (7th Cir. 2016).
Jones tries to distance himself from the weapon by saying
“I grilled [Rowland] every day to keep a firearm away from
me because I did not want firearms around me because I had
already been to prison for a firearm.” R. 188 at 22. Unfortu-
nately this particular strategy does not work for a criminal in-
volved in a conspiracy. As we have noted, a defendant is lia-
ble for the criminal conduct of co-conspirators, including pos-
session of a firearm, where those criminal acts were reasona-
bly foreseeable to the defendants and occurred during the
time that they were members of the conspiracy. Conley, 875
F.3d at 401 (internal citations omitted). The government need
only establish these facts by a preponderance of the evidence.
United States v. Ramirez, 783 F.3d 687, 690 (7th Cir. 2015).
No. 17-2658 15
In this case, the court credited Smith’s testimony that, as
she was walking with Rowland and Jones at the hotel, Jones
noticed the firearm sticking out of Rowland’s purse and
pushed it back in and then reprimanded her for not doing a
better job of hiding it. Once a district court makes a credibility
finding, we must defer to it unless we find clear error. United
States v. Patton, 705 F.3d 734, 737 (7th Cir. 2013). We see no
reason to question the credibility determination. The fact that
Jones grilled Rowland to “keep a firearm away from me be-
cause I did not want firearms around me because I had al-
ready been to prison for a firearm,” actually supports the con-
clusion that Jones knew that Rowland was carrying a firearm,
as does the text from Rowland to Jones which said, “meet the
newest member of our family,” and included a picture of a
gun. R. 188 at 22; R. 186 at 32. It seems that the only thing that
Jones did not know was that he would be culpable for Row-
land’s possession of the gun whether she kept it away from
him or not. He knew she had a gun. He knew she had it when
they were at the hotel selling drugs. She carried the loaded
gun in her purse while she and Jones received cash and
turned over drugs to Smith at the hotel. Then she rode with
Jones and a substantial quantity of drugs to a shopping mall
while he participated in another drug transaction, all the
while with the gun right in her purse on her lap within arm’s
reach. The purse with the gun was still on her lap when she
was arrested. Our court has recognized that, given the dan-
gers of drug trafficking, guns and drugs often go hand in
hand. United States v. Thompson, 842 F.3d 1002, 1007 (7th Cir.
2016); United States v. Gulley, 722 F.3d 901, 909 (7th Cir. 2013).
Because Jones knew that Rowland had a gun in her purse
while the two were engaged in a drug sale, the court did not
err by finding that it was reasonably foreseeable to Jones that
16 No. 17-2658
Rowland would possess the gun while furthering their drug
trafficking. And because the two were involved in a drug sale
together just moments after the gun slipped out of Rowland’s
purse, there is no doubt that both Jones and Rowland were
members of the conspiracy at the time.
Once the government showed by a preponderance of the
evidence that Jones possessed the firearm (via co-conspirator
liability in this case), the burden shifted to Jones to demon-
strate clear improbability that the possession was in connec-
tion with the drug offense. Morris, 836 F.3d at 872. That he
could not do. The gun was present during the actual drug
transaction. It was sitting in a purse in the front seat of a car
next to a baggie of drugs, and just behind it, in the back seat,
was a grocery bag full of methamphetamine, marijuana and
digital scales. Given the connection between guns and drugs
in the drug trafficking trade, we have held that “[i]f a firearm
is found in close proximity to the drugs or its paraphernalia,
the conclusion that the firearm is connected to that drug ac-
tivity is a reasonable one in light of the common use for that
purpose.” United States v. Clinton, 825 F.3d 809, 812 (7th Cir.
2016).
The district court properly calculated the drug quantity
and applied the enhancement for possession of a weapon. We
AFFIRM the decision of the district court in all respects.