Case Information
*1 Before W ILLIAMS , S YKES , and T INDER , Circuit Judges . S YKES , Circuit Judge
. The five defendants in this appeal were part of a conspiracy to distribute cocaine on the South Side of Chicago. Ahmad Williams pleaded guilty, but the other four—Joe Long, Daniel Coprich, Glenn Island, and Isaiah *2 Hicks—went to trial and were convicted by a jury. On appeal each defendant raises a number of different challenges to his conviction and sentence. Only one has merit: Island must be resentenced under the Fair Sentencing Act, which after Dorsey v. United States , 132 S. Ct. 2321 (2012), applies to defendants sentenced after the Act wаs passed. We affirm in all other respects.
I. Background
Each defendant raises a different mix of challenges to his conviction and sentence, and none of the challenges are shared among all defendants. So we begin with a brief discussion of the facts common to all and elaborate on the details in our discussion of the issues raised by each individual defendant.
Isaiah Hicks led a large organization that distributed crack cocaine on the South Side of Chicago. He oversaw the acquisi- tion, processing, and packaging of the drugs with help from Daniel Coprich, Ahmad Williams, and others. Once the processing was complete, Hicks sold the cocaine to distribu- tors, including Joe Long and Glenn Island. On multiple occasions Hicks sold drugs to his distributors on credit.
As is common in many drug-trafficking prosecutions, much of the government’s evidence at trial consisted of wiretapped phone conversations between various members of the conspir- acy. The jury also heard testimony from participants in Hicks’s organization, including Kevin Masuca, Hicks’s former right- hand man, and Latasha Williams, Hicks’s former girlfriend. Masuca described the defendants’ involvement in the *3 conspiracy; for instance, he testified that on several occasions Williams helped process and package cocaine, and that Coprich helped Hicks acquire cocaine for processing. Less favorably to the prosecution, he testified that Long and Island were only customers of the conspiracy, not members of it. Finally, the government presented Masuca’s handwritten lеdger, which listed the organization’s drug deals over a few months in early 2008.
The jury convicted all five defendants of conspiracy with
intent to distribute over 50 grams of crack cocaine, among
other offenses. The judge sentenced each according to two
sentencing principles that have since been overruled: First,
following this court’s instructions in
United States v. Fisher
II. Discussion
A. Sufficiency of the Evidence
Long and Island argue that the evidence showed only that they were customers, not members, of Hicks’s organization. *4 Because a mere buyer-seller relationship does not support an inference of conspiracy, they contend that the evidence was insufficient to allow a jury to convict them of conspiring with Hicks. In evaluating the sufficiency of the evidence, we “draw all reasonable inferences in the light most favorable to the prosecution” and reverse “only if no rational jury could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Johnson , 592 F.3d 749, 754 (7th Cir. 2010).
To obtain a conspiracy conviction, the government must
prove that the defendant knowingly and intentiоnally agreed
with at least one other person to commit an unlawful act.
See
id.
Although every drug deal involves an unlawful agreement
to exchange drugs, we’ve held that a buyer-seller arrangement
can’t by itself be the basis of a conspiracy conviction because
there is no common purpose: “[T]he buyer’s purpose is to buy;
the seller’s purpose is to sell.”
United States v. Mancillas
580 F.2d 1301, 1307 (7th Cir. 1978) (quoting
United States v.
Ford
, 324 F.2d 950, 952 (7th Cir. 1963)). So there must be an
agreement, in addition to the underlying purchase agreement,
to commit a common crime; in cases like this, it’s usually an
agreement thаt the buyer will resell drugs to others. The
government may use circumstantial evidence to prove a resale
agreement, but it may not rely solely on purchases and sales,
which after all are present in both buyer-seller and conspiracy
arrangements. If the evidence is equally consistent with either
a buyer-seller relationship or a conspiratorial relationship, the
jury would be left with two equally plausible inferences and
could not conclude beyond a reasonable doubt that there was
a conspiracy.
See Johnson
,
To decide whether circumstantial evidence was sufficient to
support the jury’s inference of conspiracy, “[w]e take into
account all [of] the evidence surrounding the alleged conspir-
acy and make a holistic assessment of whether the jury reached
a reasonable verdict.”
United States v. Brown
,
Here there was evidence that both Long and Island made multiple purchases on credit in the context of an ongoing wholesale relationship. Masuca testified about at least two occasions in which he delivered 63 grams of crack cocaine to Long without receiving any money in return and a third occasion in which Hicks had Masuca deliver one-eighth of an ounce while allowing Long to pay later. Similarly, Masuca’s ledger showed that on at least two separate ocсasions Island purchased 63 grams of crack on credit.
Other evidence supported the conspiracy inference as well.
In one conversation with Masuca, for instance, Hicks explained
that ordinary customers were not allowed to purchase at the
same price offered to Island, implying that Island held a more
important position in the conspiracy than a normal customer.
Long and Hicks discussed plans for expanding their business;
in one phone call Long told Hicks, “we all gonna make this s**t
tоgether,” to which Hicks replied, “I’m feelin’ it … . That’s
what we’re gonna do … .” These conversations strongly
suggest that Long and Island were Hicks’s business partners,
not customers, reinforcing our conclusion that the evidence
was sufficient under the totality of the circumstances.
See
Brown
,
It’s true that Masuca testified on cross-examination that Long and Island were only Hicks’s customers, not members of the organization. But Long and Island didn’t have to be members of Hicks’s gang to be guilty of conspiring with Hicks; the legal definition of a conspirator is not the same as thе street definition. Legally, Long and Island were guilty of conspiracy if they knowingly agreed with Hicks to distribute drugs— regardless of whether Hicks or anyone else ever considered them real members of the organization. There was sufficient evidence to support the jury’s conclusion that Long and Island agreed to resell drugs, and Masuca’s testimony was not inconsistent with that finding.
B. Motion for Mistrial
Long also argues that the district court should have granted a mistrial after the government played a recorded conversation *7 in which Long discussed a murder with Hicks. The jury heard Lоng say, “n***a supposed to have killed the m***r on 64th and Aberdeen.” The government intended to redact this portion of the call (apparently considering it irrelevant) but failed to stop the tape in time. The transcripts provided to jurors did not include this segment of the conversation, but they did include Long’s subsequent statement that he would “do any m***in’ thing I need to make money.”
Long moved for a mistrial immediately after the tape was played, arguing that the jury could not fairly decide the case knowing that Long was somehow conneсted to a murder, and that the transcript only exacerbated the problem by suggesting that Long would do literally anything, even murder, for money. The judge denied the motion. He noted first that the unredacted snippet did not actually connect Long to the murder; in fact, it was impossible to understand who was involved in the murder at all. The judge went on to explain that the government would be presenting “[l]ots of tapes, lots of discussions,” and that the brief snippet would probably not stand out in jurors’ minds. The judge also noted that a limiting instruction would be pointlеss since it would only highlight the otherwise isolated statement. Long does not argue on appeal that any curative instruction was required; instead he contends that once the tape was played, the judge was required to grant a mistrial.
We have held that “a mistrial is appropriate when an event
during trial has a real likelihood of preventing a jury from
evaluating the evidence fairly and accurately, so that the
defendant has been deprived of a fair trial.”
United States v.
*8
Collins
,
Relying in part on
United States v. Mannie
,
Long’s trial was not characterized by the sort of chaos at issue in Mannie . The jury heard Long make a fleeting reference to a murder that was unconnected to the case; the statement was introduced inadvertently and never discussed again over *9 the course of a lengthy trial. Moreover, there was no indication that Long was involved in the killing, whereas the jury heard dozens of phone calls in which Long expliсitly implicated himself in high-stakes drug deals. Since all of Long’s offenses involved dealing drugs, the judge reasonably concluded that these calls—rather than a single unexplained statement about murder—would dominate the jury’s deliberations.
The trial judge was in the best position to assess the effect
that this “inadvertent, isolated and ambiguous” statement had
on the jury.
United States v. Curry
,
C. Sentencing Issues
All defendants argue that the judge improperly determined the applicable mandatory minimum sentence, violating the Fair Sentencing Act, the Fifth Amendment, the Sixth Amend- ment, or some combination of all three. Island properly raised a meritorious challenge on these grounds below, so we will vacate his sentence and remand for resentencing. The other defendants’ objections either lack merit or were never raised below. We begin by discussing the principles that apply to all defendants and then consider each defendant’s particular circumstаnces in more detail.
Mandatory minimums for drug felonies are based on quantity and recidivism. Under the Fair Sentencing Act of 2010 (“FSA”), drug felonies involving over 28 grams of crack *10 cocaine carry a mandatory minimum sentence of five years, which increases to ten years if the government shows by information that the defendant has previously been convicted of a drug felony. See 21 U.S.C. §§ 841(b)(1)(B), 851(a). Felonies involving over 280 grams carry a minimum of ten years, increasing to twenty if the government shows a prior drug- felony conviction. See id. § 841(b)(1)(A)(iii). Before the FSA the quantity thresholds werе lower: 5 grams triggered the five- and ten-year minimums, and 50 grams triggered the ten- and twenty-year minimums.
When the defendants were sentenced, the law of this circuit required district courts to apply the lower, pre-FSA thresholds to any defendant who was convicted for conduct occurring before the FSA was passed. See United States v. Fisher , 635 F.3d 336, 340 (7th Cir. 2011). The defendants distributed cocaine before the FSA was enacted, so in accordance with Fisher , the district court denied their request for application of the higher, post-FSA thresholds. But the Supreme Court has since over- turnеd Fisher and held that the FSA applies to any defendant sentenced after the Act was enacted, regardless of when the underlying conduct occurred. See Dorsey v. United States 132 S. Ct. 2321, 2326 (2012). Since all defendants were sen- tenced after the FSA was enacted, Dorsey requires us to vacate and remand for resentencing unless the failure to apply the FSA was harmless.
Long, Coprich, Williams, and Hicks also argued below that
their prior drug-felony convictions should not increase the
mandatory minimum because the government never proved
the fact of those convictions to the jury; instead the
*11
government demonstrated the prior convictions by filing an
information with the judge.
See
21 U.S.C. § 851 (describing
procedure for proving prior convictions by information). The
district court found this argument foreclosed by
Harris v.
United States
,
Alleyne
would support the defendants’ position but for a
footnotе in the opinion identifying “a narrow exception … for
the fact of a prior conviction,” which need not be proved to the
jury.
Id.
at 2160 n.1. The exception comes from
Almendarez-
Torres v. United States
,
Long, Coprich, and Williams also filed a supplemental brief
arguing that the drug quantity should have been decided by
the jury rather than the judge. That’s true: After
Alleyne
drug
quantities can only trigger a mandatory minimum if found by
a jury beyond a reasonable doubt.
See United States v.
Claybrooks
,
1. Long’s Sentence
The district court found Long responsible for between 129.5 and 192 grams of crack cocaine and sentenced him at the pre-FSA mandatory minimum of ten years. Long argued that the FSA should apply and, after losing that point, asked the judge to state whether he would impose a different sentence if *13 the FSA had applied. The judge imposed the sentence without making any such statement, leading the government to ask directly whether the judge felt “constrained” by the mandatory minimum. The judge replied, “I do not feel constrained. This is the sentence I would have given under any circumstances.”
Long now argues that his sentence must be vacated in light
of
Dorsey
because the judge failed to apply the FSA and under
Alleyne
because the jury never found a fact necessary for
triggering the mandatory minimum (namely, that Long was
responsible for over 280 grams of crack cocaine). But the judge
clearly explained that Long would have received the same
sentence with or without the mandatory minimum, so any
error in applying the mandatory minimum was harmless.
See
United States v. Foster
,
2. Coprich’s Sentence
Coprich received the mandatory minimum sentence of
240 months after the judge found him responsible for over
1.6 kilograms of crack cocaine. Although the guidelines
recommended a sentence of 360 months to life, the judge
decided to sentence below the range and explained: “I am, by
law, required to give you a certain sentence. Below that
sentence, I can’t really go.” Coprich now argues that his
sentence violates
Dorsey
and
Alleyne
because the jury didn’t
find him responsible for the 280 grams of crack cocaine needed
to support the 240-month mandatory minimum under the FSA.
Coprich never made this argument below, so we review for
plain error. Under the plain-error standard, we can’t reverse if
we are “convinced that upon a properly worded indictment, a
properly instructed jury would have found the defendants
guilty of distributing the requisite threshold quantities of
narcotics.”
Kirklin
,
Overwhelming evidence showed that Coprich was respon- sible for distributing far more than 280 grams of crack. Masuca testified that he delivered 63 grams to Coprich four or five times every week; even two weeks at that pace would put Coprich over the threshold. Masuca’s testimony was corrobo- ratеd by his ledger, which showed that Masuca gave Coprich at least 63 grams of crack on over 20 occasions, and by wire- taps, which captured three of those transactions. Moreover, *15 Masuca’s testimony and some recorded phone calls indicated that Coprich helped Hicks obtain kilograms of powder cocaine to be processed into crack for distribution. We find it highly unlikely that a jury would have convicted Coprich for his role in the conspiracy without also finding him responsible for at least 280 grams of crack, so we will not reverse on plain-error review. See id.
3. Williams’s Sentence
Williams pleaded guilty to conspiracy to distribute over 50 grams of crack. At sentencing the government argued that Williams was responsible for over 44 kilograms , holding him accountable for all the foreseeable dealing of his coconspirators in furtherance of the conspiracy. See U.S.S.G. § 1B1.3(a)(1)(B). Williams countered that he was merely a distributor for Hicks with no part in the broader organization—in other words, he was just a “spoke” in Hicks’s “hub-and-spokes conspir- acy”—аnd therefore, he should not be held responsible for the activities of the entire organization. The judge agreed with the government, finding that Williams was “a committed member” of Hicks’s organization, and gave Williams the mandatory minimum of 120 months. The judge noted that “if it weren’t for the mandatory minimum, I might give you a sentence that was a little lower, but it wouldn’t be much lower.” Williams now argues that the mandatory minimum should not have applied because he never admitted responsibility for over 280 grams, and since he pleaded guilty, no jury ever found him responsi- ble fоr that quantity either. He did not raise this argument below, so our review is for plain error.
We have already explained that an
Alleyne
challenge will
fail on plain-error review if the record leaves us “convinced
that … a properly instructed jury would have found the
defendants guilty of distributing the requisite threshold
quantities of narcotics.”
Kirklin
, 727 F.3d at 719 (quoting
Mansoori
,
The record here leaves us convinced that a properly
instructed jury would have found Williams responsible for the
full amount sold by Hicks’s organization because he was a
committed member of the conspiracy who supported its
operations as a whole. For example, the government presented
testimony, confirmed by wiretаps, demonstrating that
Williams warned Hicks about an imminent search of Masuca’s
house, giving the gang time to remove the weapons and drugs
stashed there before police arrived. Warning an organization
about police activity is usually evidence of conspiracy,
see
United States v. Bustamante
,
Other evidence confirms that Williams was a key member of Hicks’s organization. Latasha Williams and Masuca corrobo- rated each other’s account of Williams’s participation in cooking, packaging, and transporting crack cocaine with other members of the conspiracy. Wiretaps reveal that Williams sometimes received crack on credit. Masuca even testified that the organization paid Williams a salary and supplied him with a gun. Given all this evidence, there is no real possibility that a jury would have found Williams responsible for less than 280 grams of crack cocaine. Since Williams would have received the same minimum sentence even if the question had been sent to a jury, we can’t say that the failure to do so affected Williams’s substantial rights or impugned the fairness, integrity, or reputation of the proceedings, and thus his challenge must fail.
4. Island’s Sentence
Island received the pre-FSA mandatory minimum of 240 months after the judge found him accountable for 259 grams of crack cocaine and determined that he had previously been convicted of a drug felony. Under the FSA these findings wouldn’t have been enough: The 240-month mandatory minimum would apply only if Island were respon- sible for over 280 grams of crack cocaine. See 21 U.S.C. § 841(1)(A)(iii). Island argued at his sentencing hearing that the *18 FSA should apply, a position later vindicated by the Supreme Court in Dorsey . See 132 S. Ct. at 2326. The government concedes that because Island preserved his challenge on this point, he is entitled to resentencing in accordance with the FSA.
5. Hicks’s Sentence
Hicks argues that his sentence of 30 years was substantively unreasonable. He acknowledges that his sentence is below the properly calculated guidelines recommendation of life impris- onment. He nonetheless argues that his below-guidelines sentence was not low enough because the judge failed to properly consider the nature of his crimes, his horrible child- hood history, and his mental-health problems as required by 18 U.S.C. § 3553(a). In particular, he notes that his crimes were mostly nonviolеnt, that his childhood was characterized by neglect and abuse (including a shocking incident in which his mother stabbed him in the eye, leaving him partially blind), and that he currently suffers from depression.
A sentence within or below the guidelines range is pre-
sumed reasonable, and we review the application of § 3553(a)
only for abuse of discretion.
See United States v. Boroczk
III. Conclusion
For the foregoing reasons, we V ACATE Island’s sentence and R EMAND for resentencing in light of Dorsey and the Fair Sentencing Act. In all other respects, the defendants’ convic- tions and sentences are A FFIRMED .
