United States v. Maurice Vaughn

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 12-1835 & 12-1947
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M AURICE D. V AUGHN and
M AURICE C. L OCKHART,
Defendants-Appellants.
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 11 CR 90—William M. Conley, Chief Judge.
A RGUED A PRIL 12, 2013—D ECIDED JULY 3, 2013
Before B AUER, P OSNER, and F LAUM, Circuit Judges.
F LAUM, Circuit Judge. In August 2010, Maurice Vaughn
and Maurice Lockhart were indicted for conspiring to
distribute more than 100 grams of heroin in violation of
21 U.S.C. §§ 841(a) and 846. Lockhart worked for Vaughn
as one of Vaughn’s two heroin distributors in Beloit,
Wisconsin and sold small bags of heroin to buyers
who arranged purchases through Vaughn. Before trial,
2 Nos. 12-1835 & 12-1947
Lockhart moved to dismiss the indictment and re-
quested a bill of particulars. The district court denied
his motions. Maintaining their innocence, the de-
fendants proceeded to trial on January 23, 2012, and a
jury convicted them of the crimes charged, largely on
the basis of circumstantial evidence. The district court
then sentenced Vaughn to 240 months in prison and
sentenced Lockhart to 72 months in prison. Both defen-
dants appeal. Lockhart contends that the district court
erred in denying his motion to dismiss the indictment
and his motion for a bill of particulars. Separately,
Vaughn argues that there was insufficient evidence
presented at trial to support the jury’s verdict and that
the district court erred in imposing his 240-month sen-
tence. For the reasons set forth below, we affirm.
I. Background
A. Factual Background
For three months during the summer of 2010, Vaughn
served as the leader of a heroin distribution conspiracy
in Beloit, Wisconsin. Several tips from heroin users led
police to one of Vaughn’s distributors who, after being
arrested with seventy small bags of heroin on his person,
signed a plea agreement and agreed to testify against
Vaughn and Lockhart.
1. Maurice Vaughn
Beloit police began investigating Vaughn for drug
trafficking in 2007. In June of that year, when Vaughn
Nos. 12-1835 & 12-1947 3
was on federal supervised release for a cocaine distribu-
tion conviction, a confidential informant attempted to
purchase two grams of heroin from Vaughn as part of a
controlled buy. The informant wore a wire, got into
Vaughn’s car, and handed over $250 for the arranged
purchase. Before exchanging the drugs, however,
Vaughn checked the informant for a wire. When he
located the recording device on the informant’s body,
Vaughn ripped it off, kicked the informant out of the
car, and tossed the money out of his car window as he
drove away.
During the same period of time in 2007, Vaughn was
also distributing heroin to Jesse Green. Green told investi-
gators that from the beginning of 2007 to September 2007,
he bought between three and five grams of heroin
from Vaughn each day for his own use and for sale.
In late 2007 or early 2008, Patrick Riley began using
heroin he obtained from Vaughn, whom Riley had met
when the two worked together for the same employer.
Riley estimated that from 2008 through mid-2010, he
received gram quantities of uncut heroin from Vaughn.
Generally, Riley would purchase the heroin from
Vaughn directly, but once Vaughn began using Carlos
Ford as a distributor in 2010, Ford would make
deliveries to Riley only after Riley had first contacted
Vaughn to arrange a purchase.
2. The Distributors
Ford worked as a distributor for Vaughn from
December 2009 through March 2010. Each day, Vaughn
4 Nos. 12-1835 & 12-1947
would supply Ford with heroin to sell in exchange for
personal-use quantities or cash. For a short time in the
spring of 2010, Ford and Vaughn had a falling out in
response to customer complaints about the purity of
the product, but after their dispute, they quickly
resumed their supplier/distributor relationship. At that
point, however, Vaughn assumed more control over
Ford’s heroin sales. Rather than going directly to Ford,
as they had in the past, the customers were required to
contact Vaughn first and Vaughn would direct them on
where and when to meet Ford. Following a customer
request, Vaughn would contact Ford by cell phone and
tell him where to meet the buyer.
Ford testified that each morning during the summer
of 2010, he picked up approximately fifty to seventy
small bags containing pre-weighed heroin (also referred
to as bindles or “dime bags”) from Vaughn along with
the cell phone that enabled Vaughn to contact Ford
and give him directions after a call from a customer.
Upon the completion of his daily shift, Vaughn in-
structed Ford to drop off money from the day’s sales
and any remaining heroin to Vaughn or to Lockhart.
During that summer, Lockhart served in the same role
as Ford and distributed heroin in front of his house
in Beloit.
Vaughn’s customers knew that he ran a two-shift ar-
rangement. If they wanted heroin during the day, Vaughn
directed them to meet with Ford for delivery. If
customers ordered heroin in the afternoon or evening,
Vaughn would instruct them to meet with Lockhart.
Nos. 12-1835 & 12-1947 5
Prior to his dealings with Vaughn, Ford did not know
Lockhart. And although Ford had been obtaining heroin
from Vaughn and selling it as early as December 2009,
Lockhart did not become involved until the spring of
2010, the point at which Vaughn began exercising
more direct control over the distribution.
3. Ford’s Arrest and the Subsequent Indictments
On August 11, 2010, an officer conducted a traffic stop
after observing Ford driving erratically in Beloit. During
the course of that stop, officers searched Ford’s person and
located a key chain containing two bags of heroin. Im-
mediately following his arrest, officers observed Ford
moving around in the back seat of the squad car as if he
were attempting to conceal an item behind him.
Shortly thereafter, a strip search at the jail revealed
seventy bindles containing a total of 11.621 grams of
heroin between Ford’s buttocks. Ford later testified that
the seventy bags of heroin in his possession at the time
of his arrest was the daily supply he had just picked up
from Vaughn. After weighing the contents of the bags,
Detective Andre Sayles estimated that each package
contained 0.13 gram of heroin.
Six days after Ford’s arrest, a grand jury in the Western
District of Wisconsin returned a one-count indictment
against Vaughn and Lockhart for conspiring with each
other, Ford, and others to distribute 100 grams or more
of heroin from May 2010 to August 10, 2010 in violation
of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. Officers
arrested Lockhart on August 29, 2011 and Vaughn
6 Nos. 12-1835 & 12-1947
on October 10, 2011 without recovering any physical
evidence. Both defendants pleaded not guilty to the
charged offense.
B. Procedural Background
Before trial, Lockhart moved to dismiss the indictment
as impermissibly vague, urging the district court to
adopt civil pleading standards in ruling on his motion.
Lockhart also requested a bill of particulars. The district
court denied both motions and the case proceeded to trial.
1. Trial Testimony
During the trial, several witnesses testified to their
interactions with and knowledge of Vaughn and
Lockhart, corroborating Ford’s description of the heroin
distribution arrangement. The defendants’ customers
also testified to the amount of heroin they obtained
from Lockhart and Ford.
a. Casie Kast
Casie Kast, Ford’s girlfriend, testified that during the
summer of 2010, she would drive Ford to a house in
Beloit where Ford would pick up the day’s supply of
heroin from Vaughn. Kast saw the daily supply of heroin
and, as a heroin user herself, had used some of the heroin
each day. Kast also confirmed that Ford would receive
cell phone calls from Vaughn, instructing Ford on when
and where to meet customers that had arranged a pur-
Nos. 12-1835 & 12-1947 7
chase. At the end of Ford’s shift on approximately fifteen
to twenty occasions, Kast explained that she drove Ford
to Lockhart’s house on Dewey Street so that he could
drop off the money from the heroin sales and pass the
cell phone along to either Vaughn or Lockhart.
b. Ashley Titus, Darrell Jackson, and Andre Simms
Ashley Titus and Darrell Jackson also testified at trial.
Both admitted to using heroin in the summer of 2010 and
explained that they would contact an intermediary,
Andre Simms, for the purchase of heroin. In their
presence, Simms would make a phone call, and Titus
and Jackson would then drive Simms to either of two
typical locations where the person on the phone had
directed him. Titus and Jackson would watch as Simms
met with one of two distributors, who Titus and Jackson
identified as Ford and Lockhart.
Simms confirmed Titus’s and Jackson’s testimony
about the heroin deals he middled involving purchases
from Ford and Lockhart. Simms also corroborated Ford’s
account of the manner in which heroin purchases from
Ford changed during the summer of 2010, requiring
Simms to call Vaughn to set up a purchase. When
Simms called Vaughn, he would tell Vaughn that he
wanted to purchase heroin, and Vaughn would then
instruct Simms to meet with either Ford or Lockhart at
a specified location.
8 Nos. 12-1835 & 12-1947
c. Lawrence McShan
Like Simms, Lawrence McShan served as an intermedi-
ary for heroin users in order to support his own heroin
habit. McShan testified that in the summer of 2010, he
would pick up heroin from Ford or Lockhart after
calling a designated number to arrange a purchase. The
person McShan called would direct him to meet with
Ford during the morning hours and to meet with
Lockhart during the evening hours. On one occasion when
McShan met with Ford, McShan did not have enough
money to cover his purchase. McShan recalled that
Ford told him, “You can’t be short man. You gonna have
to talk to Reese about this.” McShan testified that he
knew “Reese” to be Maurice Vaughn.
d. Crystal Freeman
Crystal Freeman, who used McShan as an intermediary,
identified both Lockhart and Ford as heroin distributors.
She explained that she had watched McShan meet with
Lockhart in front of his home on numerous occasions,
and although she did not know his name, she recog-
nized Lockhart from prior contact she had with him
at her former place of employment in Beloit. Freeman
testified that on other occasions, McShan would call
someone on his cell phone before going to meet Ford. She
estimated that McShan met with Ford to purchase
heroin for her approximately thirty to forty times during
the summer of 2010, and testified that she observed
McShan meet with Lockhart to get heroin “every day” that
summer. Finally, Freeman confirmed the different shifts
Nos. 12-1835 & 12-1947 9
during which Ford and Lockhart sold the drugs: Ford
sold during the morning, and Lockhart sold in the after-
noon and evening.
e. Seized Heroin
During the trial, the government showed each of the
customer witnesses the bags of heroin seized from Ford
at the time of his arrest in August 2010. Kast, Jackson,
Simms, and Freeman identified those bags as representa-
tive of the bags they had seen used when purchasing
heroin through either Ford or Lockhart. Customers who
bought multiple times in a single day and who there-
fore ended up buying from both Ford and Lockhart
testified that the packaging in which they received the
heroin was the same in the morning and the evening.
The witnesses also testified to the number of bags and
the frequency with which they purchased heroin from Ford
and Lockhart during the summer of 2010. The govern-
ment used the samples seized from Ford as a reference
for the average weight of each bag. Detective Sayles, who
had seized the seventy bags of heroin from Ford after
his arrest, testified to his estimate that each small
package contained an average of 0.13 gram of heroin.
2. Jury Verdict
When the government rested its case, both defendants
moved to dismiss, alleging a failure to prove their in-
volvement in the charged conspiracy beyond a rea-
10 Nos. 12-1835 & 12-1947
sonable doubt. The court denied the motions and after
the conclusion of the trial, the jury found both defendants
guilty and made a special finding that the conspiracy
involved 100 grams or more of heroin. Neither defendant
submitted a post-verdict motion or a request for a
new trial.
3. Sentencing
The probation office filed Vaughn’s Presentence In-
vestigation Report (“PSR”) on March 5, 2012. The PSR
noted that the crime lab had determined that the
heroin seized from Ford actually weighed a total of 11.621
grams, resulting in an average weight per bag of 0.166
gram. Vaughn did not object to this calculation.
The PSR also outlined the frequency and bindle
number estimates attributed to each witness who
admitted to purchasing heroin from Ford and Lockhart.
The PSR multiplied the estimated number of bags ob-
tained by each witness by the 0.13 gram weight estimate
to which Detective Sayles testified at trial unless the
particular witness’s testimony differed from the typical
bag. The calculation, when added to the relevant-conduct
weight estimates for Vaughn, resulted in a total drug
weight of 1,568.65 grams of heroin.
The probation officer’s calculation of the relevant drug
quantities together with a two-level enhancement for
Vaughn’s role in the conspiracy as a leader or organizer
resulted in a 235- to 293-month range for sentencing.
Lockhart’s guidelines range for sentencing was 108 to
Nos. 12-1835 & 12-1947 11
135 months, based in part on his much less substantial
criminal history. On March 29, 2012, the district court
sentenced Vaughn to 240 months’ imprisonment and
on April 12, 2012, the court sentenced Lockhart to
72 months’ imprisonment. Both defendants appealed.
III. Discussion
On appeal, Lockhart contends that the indictment
charging the heroin distribution conspiracy in this case
provided insufficient factual allegations to support the
charge. He maintains that the district court erred in
denying his motion to dismiss the indictment and his
motion for a bill of particulars. Separately, Vaughn chal-
lenges his conviction, arguing that there was insufficient
evidence offered at trial to support the jury’s verdict.
Vaughn also disputes his guidelines calculation for sen-
tencing and contends that the court erred in computing
the relevant drug weight, calculating his criminal
history score, and applying a two-level enhancement
for his role as a leader or organizer of the conspiracy.
Finally, Vaughn argues that the sentence imposed by
the district court is substantively unreasonable.
A. The District Court Properly Denied Lockhart’s
Motion to Dismiss the Indictment.
Pursuant to a defendant’s right to be informed of the
charges against him and his right to be free from convic-
tion without notice and without having meaningful
opportunity to defend, Federal Rule of Criminal Pro-
12 Nos. 12-1835 & 12-1947
cedure 7(c)(1) provides that an “indictment or informa-
tion must [include] a plain, concise, and definite written
statement of the essential facts constituting the offense
charged.” Fed. R. Crim. P. 7(c)(1). In line with this di-
rective, we have held that an indictment is legally suffi-
cient if it (1) states all the elements of the crime charged,
(2) adequately informs the defendant of the nature of
the charges against him, and (3) allows the defendant to
assert the judgment as a bar to future prosecutions of
the same offense. United States v. Smith, 230 F.3d 300, 305
(7th Cir. 2000). We have further explained that an in-
dictment “that ‘tracks’ the words of a statute to state
the elements of the crime is generally acceptable, and
while there must be enough factual particulars so the
defendant is aware of the specific conduct at issue, the
presence or absence of any particular fact is not
dispositive.” United States v. White, 610 F.3d 956, 958-59
(7th Cir. 2010); see also United States v. Resendiz-Ponce,
549 U.S. 102, 109 (2007) (explaining that an indictment
“parroting the language of a federal criminal statute” is
sufficient so long as the crime is not one that must be
charged with greater specificity).
To successfully challenge the sufficiency of an indict-
ment, a defendant must demonstrate that the indictment
did not satisfy one or more of the required elements and
that he suffered prejudice from the alleged deficiency.
United States v. Dooley, 578 F.3d 582, 589-90 (7th Cir. 2009).
“The test for validity is not whether the indictment
could have been framed in a more satisfactory manner,
but whether it conforms to minimal constitutional stan-
dards.” United States v. Hausman, 345 F.3d 952, 955 (7th
Nos. 12-1835 & 12-1947 13
Cir. 2003) (internal quotation marks omitted). We review
de novo a defendant’s challenge to the sufficiency of
an indictment. Smith, 230 F.3d at 305.
On August 17, 2010, a grand jury in the Western District
of Wisconsin issued an indictment charging Vaughn and
Lockhart as follows:
From in or about May 2010 until on or about August
10, 2010, in the Western District of Wisconsin, the
defendants, Maurice D. Vaughn and Maurice C.
Lockhart, knowingly and intentionally conspired and
agreed with each other and with Carlos Ford, named
as a co-conspirator but not a defendant herein, and
with other persons known and unknown to the grand
jury, to distribute heroin, a Schedule I controlled
substance, with this offense involving 100 grams or
more of a mixture or substance containing heroin, in
violation of Title 21, United States Code, Section
841(a)(1). (All in violation of Title 21, United States
Code, Section 846).
Dkt. 1. This court has consistently held that an indictment
charging an offense under 21 U.S.C. §§ 841(a) and 846,
which are the statutes the defendants were charged
with violating in this case, fulfills the requirements of
Rule 7(c)(1) and of the constitution “if it sets forth the
existence of a drug conspiracy, the operative time of the
conspiracy, and the statute violated.” United States v.
Singleton, 588 F.3d 497, 499-500 (7th Cir. 2009). The indict-
ment here contains each of the required elements and was
sufficient to notify Lockhart of what the government
intended to prove. Although it does not allege facts
14 Nos. 12-1835 & 12-1947
addressing any particular drug transactions, our cases
do not require such specificity.1
To avoid our established precedent on this issue, which
plainly supports the sufficiency of the indictment in
this case, Lockhart urges this court to adopt the civil
pleading standards articulated by the Supreme Court in
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662 (2009), to assess the suffi-
ciency of a criminal indictment. No court has taken this
approach, and we decline Lockhart’s invitation to do so
here. Importantly, the Supreme Court’s decisions in
Twombly and Iqbal ushered in a requirement that civil
pleadings demonstrate some merit or plausibility in
complaint allegations to protect defendants from having
to undergo costly discovery unless a substantial case is
brought against them. See Limestone Dev. Corp. v. Village
of Lemont, Ill., 520 F.3d 797, 802-03 (7th Cir. 2008). We do
not believe that the concerns guiding the Court’s
approach in the civil context apply with equal force in
the case of a criminal indictment, and if a defendant
has serious apprehension about his ability to prepare a
defense in light of the charges against him, he can seek
a bill of particulars. Here, the criminal indictment meets
1
The indictment at issue in Singleton, a case in which we
affirmed the district court’s denial of the defendant’s motion
to dismiss the indictment, conforms to a nearly identical
structure as and presents substantially similar language to the
indictment charging the defendants in this case. See United
States v. Singleton, No. 07-CR-524-3, 2008 WL 4853419, at *1
(N.D. Ill. Nov. 3, 2008).
Nos. 12-1835 & 12-1947 15
the requirements outlined by the Supreme Court in
Resendiz-Ponce, and we decline to stray from that
approach without a change in course undertaken by the
Court itself. See Agostini v. Felton, 521 U.S. 203, 237
(1997) (directing courts of appeals to leave to the
Supreme Court “the prerogative of overruling its own
decisions”).
B. The District Court Did Not Abuse its Discretion in
Denying Lockhart’s Motion for a Bill of Particulars.
Lockhart next argues that the district court erred in
denying his motion for a bill of particulars—a written
statement providing the defendant with detailed infor-
mation concerning the charges against him. We review
the district court’s decision to deny such a motion under
a deferential standard and will reverse only upon a
showing that the court abused its discretion and that
the defendant suffered prejudice as a result. United
States v. Blanchard, 542 F.3d 1133, 1140 (7th Cir. 2008).
This court’s bill-of-particulars analysis is similar to
its constitutional sufficiency-of-the-indictment analysis;
“in both cases, the key question is whether the defendant
was sufficiently apprised of the charges against him in
order to enable adequate trial preparation.” Id. Indeed,
we have previously explained that a bill of particulars
is “unnecessary where the indictment sets forth the
elements of the charged offenses and provides sufficient
notice of the charges to enable the defendant to prepare
his defense.” United States v. Hernandez, 330 F.3d 964, 975
(7th Cir. 2003); see also United States v. Kendall, 665 F.2d
16 Nos. 12-1835 & 12-1947
126, 135 (7th Cir. 1981) (“[A] defendant is not entitled
to know all the evidence the government intends to
produce, but only the theory of the government’s case.”
(internal quotation marks omitted)). And as discussed
above, an indictment that includes each of the elements
of the charged offense, the time and place of the
accused’s allegedly criminal conduct, and a citation to the
applicable statute or statutes is sufficient to meet that
standard. United States v. Fassnacht, 332 F.3d 440, 446
(7th Cir. 2003).
Lockhart moved for a bill of particulars pursuant to
Federal Rule of Criminal Procedure 7(f) at the time he
sought dismissal of the indictment. In that motion, he
asked that the government:
1. Identify all acts (including time, date, place and
persons present) committed by Mr. Lockhart
which support the charged conspiracy.
2. Identify all acts (including time, date, place and
persons present) committed by Mr. Lockhart’s co-
defendants which the government believes sup-
ported, aided or abetted in his illegal activity, or
are otherwise attributable to Mr. Lockhart.
3. Identify the dates or approximate dates when
Mr. Lockhart is alleged to have joined the con-
spiracy and dates he left the conspiracy.
4. Identify what Mr. Lockhart agreed to do as a
member of the conspiracy.
Dkt. 24 at 2. In his brief in support of his motion in the
district court, Lockhart argued that the bill of particulars
Nos. 12-1835 & 12-1947 17
would help him better understand his role in the
charged offense. He explained that the government found
no heroin in his possession at any time and never at-
tempted to purchase heroin from him through the use of
a confidential informant.
In support of his argument that the district court erred
in denying his request for a bill of particulars, Lockhart
cites a District of D.C. case in which the court deter-
mined that the less stringent pleading requirements for a
narcotics conspiracy charged under § 846 increase the
need for a bill of particulars in such a case. See United
States v. Ramirez, 54 F. Supp. 2d 25, 30 (D.D.C. 1999). The
court in Ramirez reasoned that because a charged defen-
dant has very little information about the actual events
supporting the charge, he should be given additional
information to allow him to prepare adequately for trial.
Id. Of course, we recognize the importance of ensuring
that a defendant has sufficient information about his
charges to allow him to prepare an adequate defense, but
we have also explained that a bill of particulars is unneces-
sary if the information the defendant seeks is readily
available through alternate means such as discovery.
Blanchard, 542 F.3d at 1140; see also United States v. Redd,
167 F. App’x 565, 568 (7th Cir. 2006) (holding that a de-
fendant was not entitled to a bill of particulars where
the indictment charging a violation of § 841(a) included
an allegation of conspiracy, the time period in which
the conspiracy operated, and the statute violated and
where the defendant had access to more detailed infor-
mation through discovery).
18 Nos. 12-1835 & 12-1947
Here, before Lockhart moved for a bill of particulars
in the district court, the government produced over
350 pages of discovery, including investigative and sur-
veillance reports and numerous reports of interviews
with witnesses who were involved in transactions with
the conspirators. We agree with the district court that a
350-page production detailing witness statements and
other surveillance activities is adequate to satisfy the
need for a bill of particulars without being so voluminous
that it places an unreasonable burden on the defendant.
But even if the information relevant to Lockhart’s defense
was not available to him through discovery, Lockhart
did not attempt to show that the denial of the bill of
particulars resulted in actual prejudice, which is an
element we require for reversal. See Hernandez, 330 F.3d
at 975. Having found no error in the district court’s res-
olution of Lockhart’s pretrial motions, we affirm his
conviction in this case.
C. Vaughn’s Conviction is Supported by Sufficient
Evidence in the Record.
We turn now to Lockhart’s co-defendant. In appealing
his conviction, Vaughn contends that the government
failed to prove the existence of a conspiracy beyond a
reasonable doubt. He argues that the government, at
best, demonstrated merely a buyer-seller relationship
between Vaughn, Lockhart, and Ford. Ordinarily, a
conviction may be reversed on appeal only where the
record, viewed in the light most favorable to the govern-
ment, is “devoid of evidence from which a reasonable
Nos. 12-1835 & 12-1947 19
jury could find guilt beyond a reasonable doubt.” United
States v. Durham, 645 F.3d 883, 892 (7th Cir. 2011).
But where, as here, a defendant does not move for a
judgment of acquittal in the district court, “the even more
stringent plain-error standard applies.” Id. “Under this
most demanding standard,” a defendant will “prevail
only if he can show that, absent reversal, a manifest
miscarriage of justice will result.” United States v. Beaver,
515 F.3d 730, 741-42 (7th Cir. 2008) (internal quotation
marks omitted).
1. Requirements for Proof of a Conspiracy
To convict a defendant on a conspiracy charge, the
government must prove that (1) two or more people agreed
to commit an unlawful act, and (2) the defendant know-
ingly and intentionally joined in the agreement. United
States v. Rollins, 544 F.3d 820, 835 (7th Cir. 2008). Specifi-
cally, a drug-distribution conspiracy charged under
21 U.S.C. §846 “requires proof that the defendant know-
ingly agreed—either implicitly or explicitly—with someone
else to distribute drugs.” United States v. Johnson, 592
F.3d 749, 754 (7th Cir. 2010). This court has repeatedly
explained that a conspiracy does not exist where a
drug purchaser resells to his own customers drugs he
obtained from a supplier. Id.; United States v. Colon,
549 F.3d 565, 567 (7th Cir. 2008). Instead, a conspiracy
“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.” Johnson, 592 F.3d at 754(internal quotation marks omitted).
20 Nos. 12-1835 & 12-1947
Because certain characteristics inherent in a buyer-
seller relationship may also suggest the existence of a
conspiracy, we have recognized that it is difficult to
determine what evidence is sufficient to establish an
agreement to distribute drugs. Id. For example, the sale
of large quantities of drugs, standardized transactions,
and a sustained relationship between the parties may
demonstrate either a buyer-seller relationship or a con-
spiracy to distribute. Id. at 754-55. Consequently, we
require the government to “offer evidence establishing
an agreement to distribute drugs that is distinct from
evidence of the agreement to complete the underlying
drug deals.” Id. at 755. For example, the government may
prove the conspiratorial agreement through evidence of
sales on credit or consignment, an agreement to seek out
additional customers, commission payments, one party
providing advice for the other’s business, or an agreement
to warn of potential threats to each other’s business. United
States v. Villasenor, 664 F.3d 673, 680 (7th Cir. 2011); see also
Colon, 549 F.3d at 568-70. To be sure, “not all credit sales
can support an inference that there was an agreement
to distribute.” United States v. Vallar, 635 F.3d 271, 287
(7th Cir. 2011) (internal quotation marks omitted). But
when a credit sale is combined “with certain character-
istics inherent in an ongoing wholesale buyer-seller
relationship—i.e., large quantities of drugs, repeat pur-
chases or some other enduring arrangement—the credit
sale becomes sufficient evidence to distinguish a con-
spiracy from a nonconspiratorial buyer-seller relation-
ship.” Id.Nos. 12-1835 & 12-1947 21
2. Evidence of an Agreement to Distribute
Here, when considered in the light most favorable to
the government, the evidence in the record demonstrates
that the government successfully distinguished Vaughn’s
conspiratorial relationship with his co-defendants from
a nonconspiratorial buyer-seller affiliation. Ford testified
at trial that he picked up between fifty and seventy pre-
packaged bags of heroin and a cell phone from Vaughn
each day during the summer of 2010 and that he sold
those bags to customers who called Vaughn to set up
deals. At the end of his shift, Ford would turn over the
money from the sales and any leftover heroin to either
Lockhart or Vaughn, and Lockhart would sell heroin
in the afternoon. In exchange for selling the heroin, Ford
testified that he received either heroin for his personal
use, cash, or both. During his testimony, Ford also ex-
plained that Vaughn wanted to exercise control over
his heroin sales because of earlier complaints about the
quality of the product. Other witnesses corroborated
Ford’s description of the two-shift arrangement and
Vaughn’s command over the drug sales, including Ford’s
girlfriend, who often drove Ford to pick up the heroin
and to drop off the proceeds and the cell phone at Lock-
hart’s house.
Vaughn seemingly recognizes that Ford’s testimony
implicates him in a conspiracy, but contends that Ford
was not a credible witness and that his testimony was
influenced by a desire to reduce his own sentence.
He suggests that the jury could not have given any
credit to Ford’s testimony or to that of his girlfriend, which
22 Nos. 12-1835 & 12-1947
he argues was tainted by her desire to have Ford serve
a shorter sentence. But in determining whether the evi-
dence in the record supports the jury’s verdict, this
court’s task is not to “weigh the evidence” or “to second-
guess the trier of fact.” United States v. Smith, 576 F.3d 681,
686 (7th Cir. 2009) (internal quotation marks omitted).
While jurors have an “opportunity to observe the verbal
and nonverbal behavior of the witnesses,” this court
may look only to the cold appellate record. Id. at 687.
We have therefore adopted a clearly erroneous standard
with respect to credibility determinations; a jury’s con-
clusions on credibility will be set aside “only if [it] has
chosen to credit exceedingly improbable testimony,”
meaning that the testimony is “internally inconsistent” or
“implausible on its face.” Id. (internal quotation marks
omitted).
True, Ford is a convicted felon and heroin user who
agreed to testified against Vaughn as a part of his plea
agreement. Kast, his girlfriend, was granted immunity.
And several of the witnesses who corroborated the struc-
ture of the transactions testified under the impression
that they would not be prosecuted for their testimony.
But each witness faced cross-examination concerning
their own charges, prior convictions, plea agreements,
immunity, and bias, giving the jury an opportunity to
assess each witness’s testimony in light of those facts.
Notwithstanding this cross-examination and the de-
fense’s arguments in closing relating to the witness’s
motives, the jury apparently accepted the testimony as
credible, a determination we do not find to be clearly
Nos. 12-1835 & 12-1947 23
erroneous. Ford’s testimony unquestionably supports
the finding of an agreement to distribute heroin and is
neither internally inconsistent nor facially implausible.
Accordingly, we conclude that there was sufficient evi-
dence in the record to support Vaughn’s conviction
for conspiracy to distribute heroin.
D. The District Court Properly Calculated Vaughn’s
Guidelines Range for Sentencing.
For the first time on appeal, Vaughn challenges three
aspects of his sentencing guidelines determination. First,
he argues that the district court made incorrect findings
as to the drug amounts that were part of the same
course of conduct as the charged offense. Second, he
contends that the district court miscalculated his
criminal history. And finally, he asserts that the district
court improperly applied a two-level enhancement for
acting as a leader or organizer in the conspiracy. We
review a district court’s application of the sentencing
guidelines de novo and its factual findings for clear error.
United States v. Turner, 400 F.3d 491, 500 (7th Cir. 2005).
When no objection to the guidelines calculation is made
at trial, however, we review the calculation for plain
error. United States v. Jumah, 599 F.3d 799, 811 (7th Cir.
2010). Here, because we find no error affecting Vaughn’s
substantial rights in the district court’s determination
of the appropriate guidelines range for sentencing,
we affirm the sentence imposed. See id.24 Nos. 12-1835 & 12-1947
1. Drug Weight Calculation
During Vaughn’s sentencing hearing, the district court
adopted the probation officer’s guidelines calculation in
the PSR and explicitly stated that the calculation “takes
into consideration the defendant’s relevant conduct
according to Section 1B1.3.” Vaughn argues that in calcu-
lating the relevant drug weight applicable to his base
offense level, the district court erred by considering drug
transactions that were not a part of the conspiracy and
that were too far removed from the conspiracy to be
considered relevant conduct. Moreover, Vaughn con-
tends that the district court double counted a portion
of the relevant drug weight by attributing to two indi-
viduals heroin that the individuals shared.
a. Relevant Conduct
Section 1B1.3 of the guidelines instructs district courts
to compute sentences based on quantities of distributed
drugs that were not accounted for in the actual conviction
but that were “part of the same course of conduct or
common scheme or plan” as the convicted offense. United
States v. Arroyo, 406 F.3d 881, 888 (7th Cir. 2005) (quoting
U.S.S.G. § 1B1.3(a)(2)). This “relevant conduct” rule
allows district courts to consider additional quantities of
drugs not specified in the conviction on the condition
that “the unconvicted activities bore the necessary rela-
tion to the convicted offense.” United States v. Bacallao, 149
F.3d 717, 719 (7th Cir. 1998) (internal quotation marks
omitted). According to the guidelines, two or more of-
fenses are part of a common scheme or plan if they are
Nos. 12-1835 & 12-1947 25
“substantially connected to each other by at least one
common factor, such as common victims, common ac-
complices, common purpose, or similar modus ope-
randi.” U.S.S.G. § 1B1.3 cmt. n.9. Offenses that do not meet
the requirements of a common scheme or plan may
nonetheless qualify as part of the same course of
conduct if they are “sufficiently connected or related to
each other as to warrant the conclusion that they are
part of a single episode, spree, or ongoing series of of-
fenses.” Id. When a court relies solely on the PSR to make
its relevant conduct finding, the PSR must explain how
the earlier distribution activities were a part of the same
course of conduct or common scheme as the offense
of conviction. United States v. Sumner, 265 F.3d 532, 539-40
(7th Cir. 2001).
On the basis of statements made by individuals who
had purchased heroin from Vaughn, the probation
officer included in Vaughn’s drug weight calculation
amounts of heroin that he sold before the conspiracy
began, dating back to beginning of 2007. The relevant pre-
conspiracy amounts are reflected in the top portion of
the following chart:
Drug Amounts Attributable to Vaughn
as Stated in the PSR
Pre-Conspiracy Relevant Conduct Amounts
Errin Meding (Dec. 23, 2009) 11.1 grams of heroin
Valerie Crenshaw (Dec. 16, 2009) 0.5 gram of heroin
26 Nos. 12-1835 & 12-1947
Andre Shelley (Dec. 2009 through April 22, 3 grams of heroin
2010)
Pat Riley (Late 2007/Early 2008 through 215 grams of heroin
Mid-2010)
Jesse Green (Beginning of 2007 through 729 grams of heroin
Sept. 2007)
Amounts Included in the Conviction
Pat Riley (included in the conspiracy) 53 grams of heroin
Crystal Freeman (included in the 31.85 grams of heroin
conspiracy)
Andre Simms (included in the conspiracy) 23.4 grams of heroin
Carlos Ford (included in the conspiracy)2 455 grams of heroin
Darrell Jackson (included in the conspiracy) 46.8 grams of heroin
Total Amount Attributable to Vaughn 1,568.65 grams of heroin
2
Because the drug amounts attributed to Ford are included in
the total calculation, the amounts the other purchasers
received from Ford were not included in the drug weight
calculation. Instead, only the heroin the purchasers obtained
through Lockhart was considered in the overall calculation. It
appears from the PSR that some of the 53 grams Pat Riley
purchased during the course of the conspiracy may have been
purchased from Ford, but Vaughn did not raise an objection
to this particular calculation in either the district court or
on appeal.
Nos. 12-1835 & 12-1947 27
Dkt. 40 at 14. In addition to listing the estimated purchase
amounts, the PSR included a short summary of the state-
ments from each individual who admitted to purchasing
heroin from either Vaughn or Lockhart, including state-
ments from Jesse Green who bought heroin from Vaughn
in 2007, three years before the initiation of the charged
conspiracy. Vaughn argues that the district court erred
in relying on these statements when it accepted the
PSR’s relevant conduct finding because the statements
were not admitted at trial and the individuals were not
subject to cross-examination.
That the PSR relied on statements not offered during
Vaughn’s sentencing hearing or during his trial is of no
consequence. See United States v. Wilson, 502 F.3d 718, 722
(7th Cir. 2007). “Reliable drug quantity evidence need
not come directly from sworn witnesses” as Vaughn
suggests. Id. The evidence may also come from the PSR
so long as the report itself is based on reliable witness
statements. Id. And Vaughn offers no support for his
assertion that Green’s statement to law enforcement
was “presumptively unreliable as it was given with govern-
ment involvement, it described events from three years
prior and Vaughn never had an opportunity to test it via
cross-examination or otherwise.” 3 Appellant Br. at 34.
However, we must proceed with caution when
assessing the nature of relevant conduct occurring long
3
Vaughn also argued that “the trial court did not make
findings of the trustworthiness of Meding, Crenshaw or
Shelly’s statements.” Appellant Br. at 35.
28 Nos. 12-1835 & 12-1947
before a charged conspiracy. See, e.g., United States v.
McGowan, 478 F.3d 800, 802 (7th Cir. 2007); United State v.
Bullock, 454 F.3d 637, 642 (7th Cir. 2006). We have previ-
ously noted that long gaps of time between a conspiracy
and other drug sales can “cast doubt on the relevance of the
earlier conduct.” McGowan, 478 F.3d at 802. But amounts
from earlier drug sales may still be included in
a defendant’s overall drug weight for sentencing if the
government makes a sufficient showing on the other
course-of-conduct factors. See id.Indeed, Vaughn’s sales to Green, which added 729
grams of heroin to his overall drug weight calculation
(moving his base offense level from 30 to 32), occurred
between January 2007 and September 2007, nearly three
years prior to the formation of the charged conspiracy.
But unlike a case in which a defendant engaged in no
apparent drug activity between a charged offense and an
uncharged drug offense two years earlier, see, e.g.,
Bullock, 454 F.3d at 642, the evidence summarized in
Vaughn’s PSR places Vaughn repeatedly selling gram
quantities of heroin to at least one individual in Beloit
from the beginning of 2007 until the end of the con-
spiracy in 2010 with little, if any, interruption. When a
substantial period of time exists between drug offenses
without any intervening activity, it is possible to
conclude that the defendant put his criminal activity on
hold during that period of time. But where a defendant
sells drugs, albeit to different purchasers, for an ex-
tended period of time with little or no break leading up
to the charged offense, it is much more likely that the
Nos. 12-1835 & 12-1947 29
sales are part of the same common scheme or plan as the
offense of conviction. Thus, while Vaughn’s sales to
Green in 2007 were nearly three years removed from the
charged conspiracy, the sales came on the heels of
Vaughn’s distribution to Riley in late 2007 or early 2008,
which continued into the time of the conspiracy. In light
of the statements supporting the continuity of Vaughn’s
heroin distribution in the PSR, we conclude that the
district court did not plainly err when it accepted the
probation officer’s relevant conduct determination. See
United States v. Acosta, 85 F.3d 275, 280 (7th Cir. 1996)
(“[W]here it is clear from the record that the district
court considered and adopted the facts recited in the
presentence report, as well as the government’s rea-
soning concerning the significance of those facts in estab-
lishing the defendant’s responsibility for uncharged
conduct, we have upheld the court’s decision to treat the
uncharged activities as relevant conduct despite the lack
of an express finding that the activities were part of ‘the
same course of conduct’ or ‘common scheme or plan’ as
the convicted offense.”).
b. Double Counting
In challenging the district court’s drug weight calcula-
tion, Vaughn also argues that the district court double
counted the heroin attributed to Vaughn through sales
to Jackson and Simms. The relevant testimony at trial
indicated that Jackson and Titus would contact Simms,
an intermediary, for the purchase of heroin. Simms
would make a phone call in their presence and the three
30 Nos. 12-1835 & 12-1947
would then travel to a specified location to pick up the
heroin. Jackson testified that during the summer of 2010,
he obtained heroin from Lockhart, through Simms, thirty
to sixty times. In exchange for the money Jackson and
Titus gave Simms for the purchases, Simms would obtain
twelve bags of heroin. Simms would then keep one or
two of the bags as payment, and Jackson and Titus
would divide the remaining bags for their own personal
use. Although Simms testified that he orchestrated at
least one heroin purchase for Aaron Thompson on July 14,
2010 and stated that he received heroin twice a day for
approximately a month supplied by either Ford or Lock-
hart, he did not indicate the specific quantity of heroin
he received from Lockhart each day or whether the
quantity reflected the heroin he received in exchange
for brokering the purchases for Jackson and Titus. More-
over, Thompson’s statements to authorities revealed
only that Simms middled deals between Thompson and
Ford, not between Thompson and Lockhart.
Based on this information, the PSR calculated the
amounts attributable to Vaughn through Jackson and
Simms as follows:
• Jackson: “(Approximately 30 occasions x 12 bags x
0.13 gram of heroin = 46.8 grams of heroin
received from Lockhart). On a number of occa-
sions Jackson purchased heroin from Simms who
received it from Carlos Ford. (This amount is not
included in the calculations to avoid double
counting as it is included in Ford’s drug calcula-
tions.)” Dkt. 40 at 12.
Nos. 12-1835 & 12-1947 31
• Simms: “The drug quantities he received from Ford
are included in Ford’s drug amounts and are
not included in the calculations to avoid double
counting. Simms received approximately a total of
23.4 grams directly from Lockhart. (30 days x 6 bags
x .13 gram of heroin = 23.4 grams of heroin).” Dkt. 40
at 9.
The PSR did not include the heroin Titus divided with
Jackson, apparently because every bag of heroin the
pair obtained through Simms was included in Jackson’s
calculation.4
Although we believe that the PSR properly calculated
Jackson’s drug quantities, even if those quantities in-
cluded the heroin Jackson ultimately divided with Titus
or gave to Simms as payment, it is less clear where the
probation officer found support for the additional 23.4 grams
of heroin that the PSR attributed to Simms as purchases
from Lockhart. The PSR indicates that Simms testified he
received heroin twice a day for approximately a month
from either “Ford or . . . Lockhart,” but the PSR does not
state how much heroin Simms received each day or
whether the heroin he received from Lockhart is the same
as the “one or two bags of heroin” Simms would keep after
brokering a deal for Jackson and Titus. This detail is
4
Vaughn argues that the PSR did not make clear the fact that
Jackson’s totals included the bags he shared with Titus. But
while the PSR did not include an explicit statement regarding
the breakdown, the overall calculation did not include any
amounts for Titus.
32 Nos. 12-1835 & 12-1947
important because although Jackson testified that Simms
would keep one or two of the twelve bags he received
from Lockhart, Jackson’s drug weight calculation in-
cluded all twelve bags.
But ultimately, the inclusion of the amounts attributed
to Simms in the PSR, if an error, was harmless. The drug
quantity the district court used to formulate Vaughn’s
base offense level, which amounted to 1,568.65 grams of
heroin, far exceeds the one kilogram of heroin required
to reach the base offense level of 32, even when the 23.4
grams of heroin attributed to Simms in the PSR are sub-
tracted from that calculation. We therefore find no plain
error in the court’s calculation of Vaughn’s base offense
level because of the inclusion of the heroin attributed
to Simms.
c. Average Weight
In one last attempt to dispute the district court’s cal-
culation of the relevant drug weight, Vaughn contends
that the court improperly relied on the 0.13 gram-per-
bindle calculation completed by the detective who
seized the seventy bags of heroin from Ford on the day
of his arrest. Vaughn suggests that a more appro-
priate estimate, as Lockhart put forth in his sentencing
memorandum, would have been a measure of 0.09 grams
per bindle. Prior to his sentencing, Lockhart submitted a
report prepared by a chemistry student obtaining a PhD
at UW-Madison who had visually compared packages of
a similar substance and speculated that it would have
Nos. 12-1835 & 12-1947 33
been possible for the packages to contain 0.09 gram of
heroin, which would change the total weight figures.
In contrast to the PhD student, the testifying detective
physically weighed the bindles of heroin he seized from
Ford. He weighed all of the bindles together and then
weighed one of the empty bags. The detective multiplied
the weight of the single, empty bag by seventy and then
subtracted that number from the overall weight of the bags
and the heroin combined to arrive at an average weight
of 0.13 gram of heroin per bindle. Moreover, the PSR
noted that the crime lab had actually determined the
weight of the heroin in the seventy bags seized from Ford
to be 11.621 grams, yielding an average weight of 0.166
gram per bag, but it ultimately used the detective’s more
conservative estimate to calculate the relevant drug weight.
The district court accepted the PSR’s calculation of the
average weight per bindle during Vaughn’s sentencing
hearing on March 29, 2012, before Lockhart submitted
the report offering the alternative 0.09 gram figure.5 Because
the 0.13 gram per bindle calculation is supported by
reliable information in the PSR, we find no error in
the district court’s acceptance of that estimate. And
having determined that the district court committed no
prejudicial error in identifying the relevant drug quantities
or approving the average drug weight, we affirm the
calculation of Vaughn’s base offense level for sentencing.
5
Lockhart submitted the report to the district court on
April 12, 2012.
34 Nos. 12-1835 & 12-1947
2. Criminal History Calculation
Vaughn turns next to the district court’s calculation of
his relevant criminal history. He contends that but for the
court’s consideration of the heroin sales to Green in 2007
as relevant conduct, the district court could not have
included a 1998 conviction for unlawful possession of a
controlled substance and a two-point increase for com-
mitting the instant offense while under supervised re-
lease. U.S.S.G. § 4A1.2(e)(1) (specifying that “[a]ny prior
sentence of imprisonment exceeding one year and one
month that was imposed within fifteen years of the de-
fendant’s commencement of the instant offense” and “any
other prior sentence that was imposed within ten years
of the defendant’s commencement of the instant offense”
should be counted when computing the defendant’s
criminal history); U.S.S.G. § 4A1.1(d) (directing the addi-
tion of two points “if the defendant committed the
instant offense while under . . . supervised release”); see
also U.S.S.G. § 4A1.2 comment n.8 (defining the “com-
mencement of the instant offense,” as including any
relevant conduct considered under § 1B1.3). Having
already determined that the district court committed no
plain error by including the 2007 drug sales as relevant
conduct, we agree with the district court’s calculation
of Vaughn’s criminal history points. The prior conviction
at issue was imposed by an Illinois court within ten
years of the 2007 conduct, and Vaughn was on supervised
release until August 1, 2008 for a more recent offense.
Nos. 12-1835 & 12-1947 35
3. Application of the Leader/Organizer Enhancement
Vaughn’s final argument with respect to the district
court’s calculation of his guidelines range pertains to the
court’s application of a two-level leader or organizer
enhancement. Section 3B1.1(c) of the sentencing guide-
lines provides that a defendant’s offense level should be
increased by two levels “[i]f the defendant was an orga-
nizer, leader, manager, or supervisor in any criminal
activity.” U.S.S.G. § 3B1.1(c). Vaughn contends that
in his case, the application of the enhancement was im-
proper because the facts presented at trial demonstrated
no more than a buyer-seller relationship or alternatively,
because he played the lesser role of bringing the parties
together. Vaughn argues, as he did in challenging his
conviction, that the record is devoid of any evidence
corroborating Ford’s and Kast’s testimony placing
Vaughn in the leadership role.
In determining whether a defendant acted as an organ-
izer, leader, manager, or supervisor, we have held that
courts may consider the factors outlined in Application
Note 4 to § 3B1.1(c), including the degree of control and
authority the defendant exercised over others. See United
States v. Weaver, No. 12-3324, 2013 WL 2402851, *3 (7th
Cir. June 3, 2013) (allowing but not requiring courts to
reference the factors in Application Note 4 to the extent
they “help to straighforwardly identify whether a defen-
dant helps manage or supervise a criminal scheme” (inter-
36 Nos. 12-1835 & 12-1947
nal quotation marks omitted)).6 There may be cases in
which a court need not consider those factors in order to
conclude that the defendant was a leader or manager,
but here, the factor addressing control and authority is
instructive. See id. The evidence at trial showed that Vaughn
supplied Ford with heroin to sell each day during the
conspiracy and exercised direct, ongoing control over
Ford’s sales by requiring customers to contact him before
purchasing from Ford. Only when Vaughn called Ford on
the cell phone Vaughn provided would Ford be informed
of when and where to meet a purchaser to distribute the
pre-packaged, sealed bags of heroin. At the end of each
shift, Ford testified that he returned the cell phone and the
proceeds to either Vaughn or Lockhart so that Lockhart
could continue selling into the afternoon and evening.
This arrangement is distinct from one in which a
supplier merely fronts drugs to distributors; Vaughn told
Ford what to do and determined whether he had done
it. See United States v. Figueroa, 682 F.3d 694, 697 (7th Cir.
2012). And although Vaughn again urges this court to
discredit Ford’s and his girlfriend’s testimony, we refuse
to re-weigh the evidence presented to the jury or indep-
endently assess each witness’s credibility. The jury
accepted Ford’s testimony, which clearly established
Vaughn’s supervisory role, and the district court appro-
6
In Weaver, we explained that “[a]lthough Note 4 offered
these factors to distinguish between organizer/leaders and
managers/supervisors, we have, in the past, consulted these
factors to decide whether Guideline 3B1.1 applies in the first
place.” Weaver, 2013 WL 2402851 at *3 (emphasis in original).
Nos. 12-1835 & 12-1947 37
priately applied the two-level enhancement. Together
with Vaughn’s base offense level and his criminal
history, the district court properly determined Vaughn’s
guidelines range for sentencing to be 235 to 293 months.
E. Vaughn’s Within-Guidelines Sentence is Substan-
tively Reasonable.
After hearing argument from the parties and con-
sidering the relevant sentencing documents, the district
court imposed a sentence of 240 months’ imprisonment.
Although sentences within or below a correctly-calculated
guidelines range are presumed reasonable, United
States v. Poetz, 582 F.3d 835, 837 (7th Cir. 2009), Vaughn
contends that the district court committed procedural
error by not properly considering the factors outlined in
18 U.S.C. § 3553(a) and that it ultimately imposed a sub-
stantively unreasonable sentence. This court reviews
de novo whether the sentencing court committed a pro-
cedural error, but considers the substantive reason-
ableness of the sentence for an abuse of discretion in
light of the factors in § 3553(a). United States v. Annoreno,
713 F.3d 352, 357 (7th Cir. 2013).
A sentencing court is not required to comprehensively
discuss each of the factors listed in 18 U.S.C. § 3553(a) and
explicitly formulate a conclusion with respect to each
one. United States v. Vizcarra, 668 F.3d 516, 527 (7th Cir.
2012). Instead, “sentencing judges must only demonstrate
meaningful consideration of [the] § 3553(a) factors.” United
States v. Paige, 611 F.3d 397, 398 (7th Cir. 2010). And “we
regularly affirm sentences where the district judge does
38 Nos. 12-1835 & 12-1947
not explicitly mention each argument raised by the de-
fendant.” Id.Before imposing Vaughn’s sentence, the district court
addressed the seriousness of the offense and Vaughn’s
history and characteristics. The judge explained that
Vaughn’s relevant conduct involved a conservative esti-
mate of 1.57 kilograms of heroin, an extremely addictive
substance, and noted that Vaughn’s previous terms
of imprisonment had not deterred him from com-
mitting additional crimes. Although Vaughn had been
laid off from his job at a GM parts distributor in the fall
of 2008, the judge explained that his drug activity could
not be traced back to that event because Vaughn began
selling heroin while he was still employed. Given the
nature of the offense and Vaughn’s personal history and
characteristics, the judge determined that a custodial
sentence of twenty years would be reasonable and no
greater than necessary to satisfy the statutory purposes of
sentencing.
With respect to the court’s consideration of the § 3553(a)
factors, Vaughn essentially argues that the district court
gave insufficient weight to facts that may have coun-
seled in favor of a lower sentence, such as his desire to
act as a father to his step daughters and biological son.
This court has explained, however, that “it is perfectly
acceptable for courts to assign varying weights to the
factors as they deem appropriate in the context of each
case.” United States v. Busara, 551 F.3d 669, 674 (7th Cir.
2008). Because the district court adequately considered
the statutory sentencing factors and provided a compre-
Nos. 12-1835 & 12-1947 39
hensive explanation for the sentence imposed, it com-
mitted no procedural error. See United States v. Ashqar,
582 F.3d 819, 826-27 (7th Cir. 2009).
In addition to contesting the procedural aspects of
his sentencing, Vaughn argues that his sentence is sub-
stantively unreasonable in light of the lesser, seventy-two-
month sentence Lockhart received for his role in the
conspiracy. True, § 3553(a)(6) requires judges to consider
the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found
guilty of similar conduct. 18 U.S.C. § 3553(a)(6). But the fact
that the district court imposed a lesser sentence on
Vaughn’s co-defendant does not mean that Vaughn’s
sentence is therefore unreasonable. United States v. Hill,
683 F.3d 867, 871 (7th Cir. 2012). Vaughn’s criminal
history points put him in criminal history category V,
whereas Lockhart fell within category II. Moreover, Lock-
hart’s need for rehabilitation and deterrence was much
less pronounced than Vaughn’s. And although Vaughn
suggests that he played a lesser role in the conspiracy,
the court properly imposed a two-level enhancement
for his role as a leader, an enhancement that was not
applicable to Lockhart. These distinctions resulted in
considerably different guidelines ranges, and the sen-
tencing disparity between them was warranted. Accord-
ingly, we conclude that Vaughn has not overcome the
presumption of reasonableness attached to his within-
guidelines sentence.
40 Nos. 12-1835 & 12-1947
III. Conclusion
For these reasons, we A FFIRM Lockhart’s conviction,
A FFIRM Vaughn’s conviction, and A FFIRM Vaughn’s 240-
month sentence.
7-3-13