Case Information
*1 Before P OSNER W OOD W ILLIAMS , Circuit Judges . W ILLIAMS Circuit Judge
. While investigating large distribution conspiracy involving Robert Atkins, federal agents uncovered smaller operation involving Atkins friend, Eldred Claybrooks. eventual ly charged two related offenses arising relationship Atkins including count violation U.S.C. §§ 841(a)(1). Following trial served government’s key witness, Claybrooks convicted and sentenced years’ imprisonment.
On appeal, Claybrooks argues failed present enough evidence for reasonable jury find guilty beyond reasonable doubt. We do not view evidence same way. Both Atkins’s and recordings conversations between Atkins and supplied enough for reasonable two men knowingly agreed co caine. challenges his sentence basis court did not make determination regard ing amount involved conspiracy. issue, we agree. After reviewing transcript, we conclude did concerning offense. Therefore, affirm conviction but vacate his sentence remand resentencing.
I. BACKGROUND In FBI agents began looking into various dis tribution networks northeastern Illinois. Investigators soon focused their attention Robert Atkins, large scale cocaine distributor area. To get sense op erations, FBI agents obtained orders wiretaps two phones began recording telephone con versations.
Over course their investigation, FBI agents inter cepted several calls Atkins Eldred Claybrooks. In recorded conversations, dis cussed details various transactions. May phone call, brokered sale two kilograms cocaine Atkins cousin. two men discussed customer relations problems
that Claybrooks encountered when distributing cocaine he received from Atkins. During one series calls June Claybrooks complained to Atkins about quality some cocaine that had recently purchased. Claybrooks told kins that wanted to return cocaine exchange for refund or another kilogram better quality. When Atkins asked whether kilogram was largely intact (and therefore suitable for return Atkins’s supplier), Claybrooks said no. stated his customers had removed nine ounces from kilogram test its strength, and, disap pointed with results, had returned remainder Claybrooks. This was problem Atkins. With so much original kilogram now missing, supplier would exchange it another kilogram. then reminded about proper way have customers test kilogram cocaine, was remove ounce or two corner while keeping packaging intact:
I told you million times … went over s ‐‐ t … as long as it’s wrapped up, cut corner[,] get you zip out or two, do what’ch you gotta do. If ain’t right, stick s ‐‐ t back corner. Put some tape corner bring s ‐‐ t back. A grand eventually indicted two related felonies result dealings Atkins. charged count possess intent distribute five kilo grams more violation U.S.C. §§ 841(a)(1) and one count distribution grams or more cocaine violation U.S.C. § 841(a)(1). trial, relied heavily on from Atkins to establish guilt. Atkins testified he began supplying Claybrooks cocaine 2001. Accord ing to Atkins, over next seven years he regularly distrib uted cocaine to Claybrooks quantities ranging from four and half ounces to several kilograms. Atkins typically pro vided to Claybrooks consignment. Under arrangement, Claybrooks would receive cocaine from Atkins, resell it, and then pay Atkins using proceeds. If, some reason, Claybrooks could resell cocaine, he could return it Atkins. In total, Atkins estimated distributed between twenty thirty kilograms cocaine Claybrooks over course their relationship. Nor their relationship entirely one sided: Atkins also stated Claybrooks supplied him kilograms cocaine three four occasions.
Atkins testified Claybrooks occasionally bro kered cocaine sales Atkins cus tomers. occasion, Atkins told jurors, Claybrooks would identify customer wanted purchase cocaine from Atkins. would collect purchase money customer behalf then deliver money Atkins. Once Atkins had money, would then give kilogram cocaine delivery custom er. such transaction, told Atkins about customer Bloomingdale, Illinois, who wanted buy three four kilograms cocaine. supplied requested had deliver customer.
Atkins stated association Claybrooks ended in August 2008. Around time, Atkins testified, pro vided Claybrooks $60,000 purchase two kilograms cocaine behalf. According Atkins, Claybrooks took the money but never delivered the cocaine. Atkins tried resolve situation but kept avoiding would return phone calls.
Atkins also testified about certain recorded telephone conversations had Claybrooks. After portion conversation was played jury, Atkins would testify regarding meaning coded language used pro vide context about matters discussed. In way, Atkins described May conversation which brokered cocaine deal cousin Atkins. also informed jury details sur rounding some calls June regarding customer relations issues. conclusion trial, jury found
guilty both charge distribution charge. addition general guilt determination, jury made special findings regarding amount involved each offense. verdict form, jury asked select three possible ranges correctly characterized amount involved each offense: (1) measurable but less than grams; (2) least grams, but fewer than five kilograms; (3) five kilograms or more. The found both counts least grams but fewer than five kilo grams mixtures containing cocaine. Probation Office prepared Presen
tence Investigation Report (“PSR”) following 12 1413 conviction. In PSR, Probation Office concluded that Claybrooks should be held responsible for at least seven kilograms cocaine. Probation Office based its drug quantity finding on following evidence: (1) Atkins’s tes ‐ timony and wiretap recordings suggesting that pro ‐ vided Claybrooks kilogram cocaine June 2007; (2) Atkins’s testimony that Claybrooks supplied kilogram cocaine on three occasions; (3) Atkins’s tes ‐ timony that he provided Claybrooks three kilograms cocaine delivery customer Bloomingdale. last point, PSR contained notation that transaction was corroborated proffer statements Claybrooks’s co defendant, Robert Wasp, Wasp stated he delivered three kilograms Claybrooks on At kins’s behalf. Based its drug quantity finding Claybrooks’s prior felony conviction, Probation Of fice concluded was subject mandatory minimum sentence years. U.S.C. § 841(b)(1)(A). hearing took place February 2012. At hearing, argued
Claybrooks was responsible least kilograms co caine based supplied between kilograms over course their relationship. In response, contended kins’s estimate too unreliable. Instead, asked adopt jury’s co caine offenses, grams kil ograms, would set mandatory minimum sentence years. U.S.C. § 841(b)(1)(B). end, declined adopt quantities advanced either govern ment. The court noted that Atkins’s 20–30 kilogram approx imation amount he dealt was “too indefinite me even that satisfies prepon derance.” The court was uncomfortable with accepting kins’s estimate total amount light certain ambiguities his testimony:
So we’ve got [Atkins] talking about relationship started with dealing 4.5 ounce quantities over time became relationship where there were kilos transferred, but he never told us how many kilos year were transferred. He just said relationship ac tually grew that. So I think that—and then, you know, we’ve got three four times says he thinks defendant provided kilo. Given its concerns testimony this issue, court concluded “we’re pretty secure based going PSR, which kilo grams.” court characterized this as “compro mise Atkins’[s] estimate, which didn’t pin down all, jury’s finding, was minimal.” reasoning, determined mandatory minimum sentence years. After acknowledging “the mandatory minimums they operate case no sense,” sentenced mandatory minimum term incarceration. now appeals both conviction sentence.
II. ANALYSIS presents two challenges appeal. He first argues did present sufficient evi dence trial to prove was guilty conspiring At ‐ kins to distribute cocaine. He next contends the erred in failing to a finding as to the implicated in his offense conduct.
A. Government Presented Enough Evidence to Support Conspiracy Conviction asks we vacate conspiracy conviction
because evidence the trial record insufficient a reasonable entered into an agreement distribute cocaine. Because pre served argument moving judgment acquittal close prosecution’s case, review claim de novo. United States v. Tavarez F.3d 902, (7th Cir. 2010). When evaluating challenge sufficiency evidence, “we consider evidence light most favor able prosecution, making all reasonable inferences its favor, and affirm conviction so long any rational trier fact could have found defendant have commit ted essential elements crime.” Val lar F.3d (7th Cir. 2011) (internal quotation marks omitted).
According Claybrooks, government’s ly established series transactions kins could support two men were part larger conspiracy drugs. To convict defendant must establish (1) two more people agreed commit unlawful act; (2) defendant knowingly intentionally joined agreement. Rollins (7th Cir. 2008). For distribution conspiracy, govern ment must prove “that defendant knowingly agreed— *9 9 No. 12 1413 either implicitly explicitly—with someone else to distrib ‐ ute drugs.” United States v. Johnson , F.3d 749, (7th Cir. 2010). Proving conspiracy requires more than simply showing individuals agreed consum ‐ mate number of drug deals. Instead, “the government must offer evidence establishing an agreement drugs is distinct evidence of agreement complete underlying deals.” Vallar , F.3d at (internal citations omitted). may prove existence of agreement through circumstantial evidence. Carrillo , F.3d 767, 776–77 (7th Cir. 2006).
When evaluating sufficiency government’s cir ‐ cumstantial proof an agreement distribute, we “consid ‐ er totality circumstances … tak[ing] into account all evidence surrounding alleged mak[ing] holistic assessment” whether evidence could support verdict. Brown WL 4048243, at *8 (7th Cir. Aug. 12, 2013). Alt hough approach allows examination many types evidence indicative conspiracy, some forms ev idence are more powerful than others. id. (“True, repeat ed consideration similar circumstances seems have identified few per se rules.”). For example, “[a] consign ment sale permits middleman return unused quintessential conspiracy.” Johnson n.5. Consignment sales suggest agreement seller purchaser engage retail distribution “because neither party profits until middle man distributes others.” Id. ; see also Brown WL *5 (“[A] consignment arrangement ex hibits another key attribute have stressed identifying conspiracies: an actively pursued course of sales”) (internal quotation marks omitted). case, presented enough evidence
for reasonable Claybrooks Atkins knowingly agreed form cocaine distribution enterprise. regarding consignment sales between Claybrooks him constituted strong of distri ‐ bution conspiracy. Johnson F.3d n.5. Atkins routinely supplied large quantities co caine, allowed him pay after reselling them customers, permitted return cocaine if could sell retail. nature their business rela tionship indicates both men were aware of, con sented to, retail distribution activities. Moreo ver, Atkins testified provided basis seven years, lengthy period collaboration suggestive conspiracy. Cf. Contreras F.3d 599–600 (7th Cir. 2001) (finding insufficient evi dence conspiracy absence “prolonged cooperation” alleged co conspirator).
Apart from consignment sales, other aspects relationship Atkins supported exist ence agreement them drugs. For example, Atkins testified acted as agent identifying customers willing purchase bulk Atkins. Payton (7th Cir. 2003) (“[W]hen … seller is assisted third person, collaboration punishable … because conspirators are same side sale”) (emphasis original). Furthermore, recorded conversations demon strated advised certain aspects *11 11 12 1413 his operation, including proper method sampling co caine. See Johnson , 592 F.3d at 755–56 (listing “indication party advised other conduct of other’s business” among factors suggestive of conspiracy). When viewed in light most favorable government, a rea sonable could easily infer knowingly entered into an agreement cocaine.
B. District Court’s Drug Quantity Finding Was Inade quate Constituted Clear Error maintains district erred sen tencing failing a determination amount drugs attributable result convic tion. We review court’s factual findings sentenc ing, including quantity involved an offense, clear error. United States v. Thomas , F.3d 714, (7th Cir. 2007). Under standard, “[w]e will upset court’s factual findings unless are ‘left definite firm conviction mistake has been commit ted.’” United States v. Williams , F.3d 644, (7th Cir. 2013) (quoting United States v. Sauerwein F.3d 275, (7th Cir. 1993)).
For those defendants convicted related offenses, determination narcotics involved their offense forms essential part sentencing analysis. District courts “should begin all proceedings correctly calculating applicable Guidelines range.” Gall U.S. (2007). “The first step calculation is ascertain correct base offense level.” Dean (7th Cir. 2009). For crimes, defendant’s base offense level largely function offense. ‐ 1413 United States v. Beler F.3d 1428, (7th Cir. 1994); see al so U.S.S.G. § 2D1.1. light significance attached the amount a defendant’s offense, “we re quire that a court explicit drug quantity finding” facilitate appellate review ultimate sen tence. Palmer F.3d (7th Cir. 2001). first glance, transcript suggests district court did render a quantity stating “we’re pretty secure based going with PSR, kilograms.” Ordinarily, court’s adoption PSR findings would be enough satisfy us court rendered specific determination involved. Are (7th Cir. 2009) (“[W]here court adopts PSR’s findings … [it] rarely needs add de tails”).
But did stop there. Instead, explicitly questioned reliability cited Proba tion Office support its calculation. During lengthy discussion problematic aspects tes timony, mentioned statement provided him kilogram three or four occasions:
So we’ve got [Atkins] talking about relationship started dealing 4.5 ounce quantities over time became relationship where there were kilos transferred, but he never told us how many kilos year were transferred. He just said relationship ac tually grew that. So I think that—and then, you know, we’ve got three four times says thinks defendant provided kilo. This was no minor quibble. Probation Office used this portion testimony as the basis finding that drug conviction involved three kil ‐ ograms cocaine. Given that the PSR concluded that total seven kilograms were involved, the district court’s state ‐ ment constituted significant challenge the Probation Of ‐ fice’s finding. When these three transactions are removed the equation, the remaining evidence cited by the PSR only adds up four kilograms, not the “5 kilograms” announced court. light district court’s discomfort underlying evidence, are convinced court did not adopt Probation Office’s conclusion point. Dean at n.12 (concluding court did not accept drug quantity finding when dis ‐ trict made statements “at odds finding PSR”).
Despite refusing credit supporting sig nificant portion PSR’s quantity finding, dis trict nonetheless settled “5 kilograms” as an acceptable compromise, halfway point, between jury’s quantity urged gov ernment:
Well, I think Atkins’[s] about kilos is too indefinite me even find sat isfies preponderance. I actually think proba tion office’s compromise Atkins’[s] estimate, which didn’t pin down all, jury’s ing, minimal, is probably safest thing do case. This same thing determining were offense. id. (con cluding district court’s attempt “‘split the difference’” drug quantity in PSR jury’s finding did not equate independent determination of drug amount). We recognize calculating amount involved in particular offense an inexact science. making de termination, court must necessarily engage “ some amount reasoned ‘speculation reasonable estima tion.’” United States v. Hollins F.3d 622, (7th Cir. 2007) (emphasis original). But district court cannot simp ly select number without least some description reliable evidence used support finding meth od used calculate it. Jarrett F.3d 530–31 (7th Cir. 1998) (distinguishing permissible ing others quantity “pulled out thin air”). Based on hearing transcript, we cannot discern what reliable evidence district court relied upon arrive “5 kilograms” quantity. court did not clearly adopt cited PSR. Instead, disputed reliability supporting substantial part PSR’s finding, did not provide any alternative evidentiary rationale up deficiency. Without such an explanation, must conclude district clearly erred making any finding on important question. Fox 532–33 (7th Cir. 2008) (“Although court’s findings relevant conduct are reviewed ly clear error, even such deference cannot cure ab sence findings key elements analysis”).
C. District Court Must Apply Alleyne Remand Aside rendering offense, remand *15 15 12 1413 should set the mandatory minimum in manner consistent recent Supreme Court precedent. After oral argument in case, the Supreme Court issued its decision Alleyne v. , 133 S. Ct. 2151 (2013). In Alleyne , Supreme Court overruled Harris , 536 U.S. 545 (2002), held that Sixth Amendment allows judges independently determine facts that raise defend ant’s mandatory minimum sentence. Harris, U.S. at 565. Alleyne , Court reversed course decided Sixth Amendment Fifth Amendment’s Due Process Clause require jury determine any fact increases mandatory minimum punishment for offense. Alleyne , S. Ct. 2162–63.
After Alleyne Claybrooks’s mandatory minimum sen tence must be determined by described jury’s special verdict form. Cf. Blakely Washington U.S. (2004) (holding statutory maximum Sixth Amendment “purposes is maximum sentence judge may impose solely basis facts reflected verdict admitted defendant ”) (emphasis origi nal). Because jurors concluded conviction involved more than grams but less than kilograms cocaine, mandatory minimum sen tence is years’ imprisonment. U.S.C. § 841(b)(1)(B). This mandatory minimum sentence case. dis trict judge cannot raise mandatory floor based its own determination offense additional amounts narcotics beyond those de termined jury. Cf. Alleyne S. Ct. (“[I]f judge were fact increased statutory maxi mum sentence, such would violate Sixth Amendment”). 1413
Although judicially determined facts are no longer rele ‐ vant to deciding applicable mandatory minimum, a dis ‐ trict court should continue whatever factual ‐ ings are needed calculate a defendant’s advisory Guide ‐ lines range. id. (“Our ruling today does not mean any fact influences judicial discretion must be found a jury”); Booker , U.S. (2005) (“[W]hen trial judge exercises his discretion select specific sentence within defined range, defendant has no right determination facts judge deems relevant”); Apprendi New Jersey U.S. (2000) (“[N]othing in history suggests is imper missible judges exercise discretion—taking into con sideration various factors relating both offense fender—in imposing judgment within range prescribed statute”) (emphasis in original). remand, must independently determine in offense in order calculate ad visory sentencing range under Guidelines. generally Gall U.S. 49.
III. CONCLUSION
We A FFIRM conviction. We V ACATE sentence R EMAND resentencing con sistent opinion.
[1] Following Supreme Court’s decision Alleyne we asked par ties file supplemental briefing effect, if any, Court’s deci sion case. response, each side filed supple mental brief discussing whether sentence violated rights under Sixth Amendment. While we thank parties their efforts, need decide issue light our remand based absence determination. resentencing, will course ensure sentence imposed consistent Supreme Court’s decision Alleyne .