United States v. Elk, 632 F.3d 455

Spotted Elk and Red Feather were part of Geraldine Blue Bird's drug trafficking network on the Pine Ridge Oglala Sioux Reservation selling marijuana and cocaine.
Spotted Elk exchanged cocaine for firearms; Red Feather sold about 14 ounces of cocaine monthly until he left Pine Ridge in early 2005.
Blue Bird's network expanded to about a kilogram of cocaine every 3–4 weeks until arrests disrupted it in late 2005.
Sixteen defendants were convicted; Spotted Elk and Red Feather appealed, and we affirmed in part but remanded for resentencing.
On remand, Spotted Elk challenged the dangerous weapon enhancement after a § 924(c) conviction was vacated following Watson v. United States.
Red Feather challenged the amount of drug quantity used for sentencing under § 1B1.3, arguing he ceased participation in early 2005.

Issue	Plaintiff's Argument	Defendant's Argument	Held
May the dangerous weapon enhancement be applied on remand after vacatur of § 924(c)?	Spotted Elk argues remanding for resentencing cannot alter his sentence without authority to apply the enhancement.	Spotted Elk contends the district court lacked authority to apply the weapon enhancement once § 924(c) was vacated.	Yes; district court could apply the enhancement on remand.
Proper scope of relevant conduct for Red Feather under § 1B1.3 after remand—jury quantity vs. individualized conduct.	Red Feather argues the district court must follow the jury's total quantity finding for the conspiracy.	Red Feather argues the district court should assess his own joint activity, not the entire conspiracy quantity.	The district court erred in treating the jury's conspiracy quantity as controlling; determined relevant conduct by foreseeability of Red Feather's own ongoing activity.
Whether withdrawal theory governs Red Feather's relevant conduct when he stopped selling in 2005.	Red Feather contends withdrawal ends § 1B1.3 analysis upon cessation of participation.	Foreseeability governs relevant conduct; withdrawal does not negate continued liability for foreseeable conduct.	Withdrawal is not controlling; foreseeability governs, and continued reasonably foreseeable conduct supported the relevant quantity.

Gardiner v. United States, 114 F.3d 734 (8th Cir. 1997) (district court may apply guideline enhancement after § 924 conviction is vacated)
Spotted Elk v. United States (this case referenced remand for resentencing following vacatur), 548 F.3d 641 (8th Cir. 2008) (remand for resentencing on remaining counts; guidance on § 2D1.1(b)(1) and 1B1.3)
United States v. Spikes, 543 F.3d 1021 (8th Cir. 2008) (sentence within guideline range can be affirmed if same result would have been imposed)
United States v. Watson, 552 U.S. 74 (2007) (SCOTUS holding that § 924(c) does not apply to the receipt of a firearm in exchange for drugs)
United States v. Campos, 362 F.3d 1013 (8th Cir. 2004) (jury verdict on quantity vs. § 1B1.3 relevant conduct standard)