United States v. Miles Musgraves , 831 F.3d 454 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2371
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MILES MUSGRAVES,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:13-CR-30276-MJR — Michael J. Reagan, Chief Judge.
____________________
ARGUED FEBRUARY 24, 2016 — DECIDED JULY 27, 2016
____________________
Before EASTERBROOK, ROVNER, and HAMILTON, Circuit
Judges.
HAMILTON, Circuit Judge. In 2015, defendant Miles Mus-
graves was convicted of five crimes stemming from his life as
a drug dealer-turned-informant. His appeal challenges the
search warrant for his apartment, the sufficiency of evidence
on three of his convictions, and his sentence as a career of-
fender. We affirm in part and reverse in part.
2 No. 15-2371
In Part I, we affirm the denial of Musgraves’s motion to
suppress evidence seized based on the search warrant. In Part
II, we reverse for insufficient evidence three of Musgraves’s
convictions, for conspiracy to distribute cocaine, possession
of a firearm as a felon, and distribution of cocaine near a
school. In Part III, we affirm the district court’s finding that
Musgraves qualifies as a career offender under the Sentencing
Guidelines. Accordingly, we affirm two of Musgraves’s con-
victions, reverse three convictions, vacate his sentence, and
remand for resentencing on the two remaining convictions.
I. The Warrant to Search Musgraves’s Home
Starting from an informant’s tip in 2012, the police in Al-
ton, Illinois, investigated Musgraves for suspected drug deal-
ing. The matter was not urgent, but the police eventually ob-
tained a warrant to search Musgraves’s home in July 2013. The
search revealed ammunition, which Musgraves could not
possess legally because of a prior felony conviction. Mus-
graves argues there was no probable cause to support a search
warrant. The police and state court procedures were sloppy,
but in the end we find no error and affirm the denial of the
motion to suppress.
A. Factual Background
1. Confidential Informant Tisdale
On August 14, 2012, Sergeant William Brantley and Detec-
tive Kurtis McCray of the Alton Illinois Police Department re-
ceived a tip from a confidential informant named Thomas Tis-
dale. He told Brantley and McCray that he could buy cocaine
from a seller who lived in town. The officers agreed to have
Tisdale make a controlled buy from the seller, known as “L”
and later identified as defendant Miles “Lou” Musgraves. In
No. 15-2371 3
the presence of the officers, Tisdale called to arrange to buy
$100 worth of crack cocaine at Musgraves’s home. The officers
provided Tisdale with money, placed hidden video recorders
on him, and followed as he drove to the buy site.
The deal did not run smoothly. Tisdale entered the house
and returned to his car ten minutes later, but he was out of
gas. A woman came out of the house and agreed to drive Tis-
dale to a nearby gas station. He filled up a container with gas,
returned to the house, refueled his car, and only then drove
back to the police station. Tisdale gave the officers a plastic
bag containing what appeared to be crack cocaine. The video
recording showed Tisdale handing $100 to Musgraves in ex-
change for a bag of white powder similar to the bag Tisdale
had given the police.
More than a month later, on September 21, Tisdale con-
tacted Musgraves to make a second controlled buy. Things
quickly fell apart. When Tisdale arrived at Musgraves’s
house, he spoke with Musgraves and his half-brother, Romell
Stevens. Stevens accused Tisdale of cooperating with police.
He sternly told Tisdale that neither he nor Musgraves sold
drugs and that Tisdale had better leave. Back at the police sta-
tion, Tisdale received a call from Stevens again accusing him
of being an informant, and then a second call from Musgraves
trying to make peace with him. The investigation of Mus-
graves stalled, at least for a while.
2. Boner’s Identification of Musgraves
By 2013, the Alton police had shifted their attention to Ste-
vens. He had been released from prison in 2012 with a long
criminal record that included felony drug distribution and
possession of a firearm. Stevens moved into the home of Mark
4 No. 15-2371
Gordon, where he began selling cocaine almost immediately.
When Stevens’ drug supply would run low, he would drive to
Musgraves’s house, buy cocaine from Musgraves, and then
return to complete the sale to his own customers.
When Stevens’ customers could not afford the cocaine,
they would sometimes put up firearms as collateral. A few of
those transactions are relevant to the case against Musgraves.
One customer, Donald Bock, twice traded firearms for drugs
with Stevens in early 2013. Bock once pawned an Arsenal 7.62
millimeter rifle (similar to an AK-47) to Stevens in exchange
for a gram or two of crack cocaine. Another time, Bock pro-
posed using his H&K .40 caliber handgun as collateral. Ste-
vens in turn asked Musgraves if he was interested in the gun
as payment for crack cocaine. Bock drove Stevens to Mus-
graves’s house, where he saw Stevens enter the house with the
gun and return with crack cocaine. Stevens would later testify
that he had left both the rifle and handgun with Musgraves,
who nonetheless “didn’t want them there, so he said he was
going to get them out of there.” Bock later tried to pay back
his debt and retrieve the guns, but Stevens did not produce
them. In a startling display of chutzpah, Bock called the sher-
iff’s department to report the guns stolen—falsely describing
them as having been “stolen out of my vehicle”—and pro-
vided their serial numbers.
In 2013, Stevens moved to the home of Kenneth Boner and
his mother. Stevens resumed selling both crack and powder
cocaine in exchange for cash, pills, and guns. At the same
time, Boner—17 years old in 2013—and his mother illegally
sold prescription medication out of their home. This arrange-
ment did not last long. The chief of police happened to live
across the street from the Boners, and he saw that Stevens’
No. 15-2371 5
drug-addicted customers were often around the home. Ste-
vens was arrested on July 9, 2013.
The police interviewed Boner as part of the Stevens inves-
tigation. Boner identified a photograph of Musgraves as the
source of Stevens’ drug supply. Boner told officers that Mus-
graves had driven over to the house. Stevens got in Mus-
graves’s car briefly and then emerged with cocaine for sale.
Boner also led officers to Musgraves’s home to confirm his
identity.
3. The Search Warrant
On July 10, 2013, the police sought a search warrant for
Musgraves’s house, supported by two affidavits. Sergeant
Brantley’s affidavit detailed the August 2012 controlled buy
from Musgraves but said nothing about the problems with the
buy. The affidavit did not identify Tisdale but referred to him
only as “confidential informant 12-16” and provided no fur-
ther information about his background, credibility, or crimi-
nal history.
The second affidavit was from Kenneth Boner, identified
only as “John Doe.” Boner said that he had seen “Stevens’
brother” provide Stevens powder cocaine in exchange for
$100, that he had seen Stevens enter his brother’s home with
Vicodin and emerge with cocaine, that he had identified a
photograph of Musgraves as Stevens’ brother, and that he had
escorted Sergeant Brantley and Detective McCray to Mus-
graves’s house. No information was provided about Boner’s
background, credibility, or criminal history.
Both Sergeant Brantley and Boner appeared before a state
court judge to secure the search warrant. The judge asked
6 No. 15-2371
only that Brantley and Boner swear the information in the af-
fidavits was correct to their knowledge. Boner was not asked
to reveal his real name or background. As Sergeant Brantley
would later testify, this was not unusual. In his experience, no
judge in the county had ever asked him to provide any infor-
mation impeaching the credibility of an affiant or to put that
information in his search warrant requests.
The judge issued the warrant to search for controlled sub-
stances, weapons, drug paraphernalia, and instruments and
records of drug sales. On July 12, 2013, police searched Mus-
graves’s house. The search turned up three boxes of 9 mm am-
munition, money, and Musgraves’s personal identification,
though it produced no concrete evidence of drug activity and
no firearms. As a convicted felon, Musgraves was prohibited
from possessing ammunition. See 18 U.S.C. § 922(g)(1). We
pause here in recounting the facts to consider the legality of
the search.
B. Analysis
Musgraves was later indicted on several federal charges
and moved to suppress the evidence of the July 2013 search,
including the ammunition, currency, and identification docu-
ments, as well as all post-arrest statements. The district court
denied the motion. On appeal from the denial of a motion to
suppress, we review conclusions of law de novo and findings
of fact for clear error. United States v. Glover, 755 F.3d 811, 815
(7th Cir. 2014), citing United States v. McGee, 280 F.3d 803, 805
(7th Cir. 2002).
A judge’s decision to issue a search warrant must be sup-
ported by probable cause, established with facts that make it
No. 15-2371 7
likely that contraband or evidence will be found in a particu-
lar place. United States v. Mullins, 803 F.3d 858, 861 (7th Cir.
2015), citing Illinois v. Gates, 462 U.S. 213, 238 (1983). Review-
ing courts give great deference to an issuing judge’s probable
cause determination. Gates, 462 U.S. at 236; United States v.
McIntire, 516 F.3d 576, 578 (7th Cir. 2008).
When a defendant challenges probable cause for a search
warrant based on an informant’s report, we consider the total-
ity of the circumstances, focusing on five non-exclusive fac-
tors: (1) “the level of detail,” (2) “the extent of firsthand obser-
vation,” (3) “the degree of corroboration,” (4) “the time be-
tween the events reported and the warrant application,” and
(5) “whether the informant appeared or testified before the
magistrate.” Glover, 755 F.3d at 816, citing United States v. John-
son, 655 F.3d 594, 600 (7th Cir. 2011). While no one factor is
dispositive and the inquiry is highly fact-specific, we have
emphasized that “information about the informant’s credibil-
ity or potential bias is crucial.” Glover, 755 F.3d at 816.
When the police omit “known, highly relevant, and dam-
aging information about [an informant’s] credibility,” and
particularly his criminal record, prior deception of law en-
forcement, and expectation of payment, the problem is seri-
ous. Id. at 817. Without such information, a judge lacks the
opportunity to assess the reliability of the information relied
upon to authorize a highly intrusive search. See id. at 818.
Omission of credibility information is not necessarily fatal,
though, because “a strong showing on the primary factors can
salvage the warrant.” Id., citing United States v. Taylor, 471 F.3d
832, 840 (7th Cir. 2006). The affidavits submitted to obtain this
search warrant did not include any information about the
8 No. 15-2371
credibility of the two informants, and the judge who issued
the warrant apparently did nothing to test their credibility.
Sergeant Brantley’s affidavit about Tisdale’s clumsy efforts
to buy drugs from Musgraves in 2012 did not provide prob-
able cause for the search warrant in July 2013. By omitting Tis-
dale’s name and details of his extensive criminal history,
Brantley did not provide the judge “with even a minimum of
information on credibility that might have triggered further
inquiry.” Glover, 755 F.3d at 818. No other factors resuscitate
the Tisdale information. Sergeant Brantley failed to mention
the irregularities in the first, poorly controlled buy. Moreover,
eleven months had passed between that buy and the warrant
request. That information was simply too stale to justify a
search for drugs and related items. See United States v. Seiver,
692 F.3d 774, 777 (7th Cir. 2012) (“‘Staleness’ is highly relevant
to the legality of a search for a perishable or consumable ob-
ject, like cocaine … .”); United States v. Pappas, 592 F.3d 799,
803 (7th Cir. 2010) (noting “the recency of information con-
tained in a search warrant application is one factor bearing on
the question of probable cause”). Also, Tisdale did not appear
before the judge in 2013. See United States v. Sutton, 742 F.3d
770, 773 (7th Cir. 2014) (noting significance of informant ap-
pearing in person before issuing judge). This was not the
“strong showing” we require for cases where credibility in-
formation was omitted. Glover, 755 F.3d at 818.
The Boner affidavit, however, rescues the search warrant,
keeping in mind the deference we give the issuing judge’s de-
cision. Unlike Tisdale, Boner did not have a criminal record at
the time he submitted the affidavit. One cannot criticize the
omission of information that does not exist. Also, the events
No. 15-2371 9
Boner described in his affidavit were very recent, and he ap-
peared in person before the judge. While Boner did not pro-
vide a firsthand account of drug deals with Musgraves, his
affidavit provided dates and times of his trips to Musgraves’s
house with Stevens. Boner’s account had some possible dis-
crepancies regarding Musgraves’s physical appearance and
stature, but he had identified Musgraves from a photograph.
A reasonably prudent person could find Boner’s affidavit,
standing alone, sufficient to establish probable cause to search
Musgraves’s house. See United States v. Hicks, 650 F.3d 1058,
1065 (7th Cir. 2011) (issuing judge’s task is to make a “practi-
cal, common-sense decision whether … there [was] a fair
probability” that contraband would be found), quoting Gates,
462 U.S. at 238.
We must note, though, that if the police and state courts
were following routine practices here, those practices put
other investigations and convictions at risk. It is hard to see a
legitimate reason for the police not to inform a judge about
known facts relevant to a confidential informant’s credibility.
Sergeant Brantley should have provided Tisdale’s criminal
history in his affidavit, as was his responsibility. See Glover,
755 F.3d at 818.
Sergeant Brantley defended his practice in two troubling
ways. First, he testified it was “not a secret” to judges in the
county that Tisdale had an extensive criminal history. Yet as
Sergeant Brantley himself admitted, Tisdale was not identi-
fied by name in the affidavit, so the judge “didn’t have any
opportunity to assess properly the reliability of Tisdale.” Sec-
ond, Sergeant Brantley said that in his experience, neither the
judge in this case nor any other judge in Madison County, Il-
10 No. 15-2371
linois, had ever asked about the criminal history of an inform-
ant. If that is true, that explanation is not comforting. It is hard
to understand a judge not raising a question about the credi-
bility of an anonymous informant whose story is offered to
justify the dramatic invasion of privacy that occurs in a police
search of a home.
It is the “primary responsibility” of the judge to determine
probable cause. Glover, 755 F.3d at 818. If “affiants repeatedly
provide the minimum of information,” we would expect
judges to demand more. Id. The credibility of an informant is
bolstered when he appears before the judge precisely because
he opens himself up to questioning. We have no reason to
credit such appearances if they are no more than pro forma
affirmances of affidavits. If the hearing consists merely of a
judge asking affiants to swear that the information in their af-
fidavits is true, the process would devolve into a useless feed-
back loop: officers omit credibility information because
judges never ask for it, and judges never ask about credibility
information that is never presented to them.
Notwithstanding these flaws, we agree with the district
court that there was enough to find probable cause for this
search warrant because the Boner information was recent and
specific, because he appeared before the judge, and because
there was no damning information about Boner’s credibility
for the police to omit. Accordingly, we affirm the denial of the
motion to suppress, which effectively defeats Musgraves’s
challenge to his Count 3 conviction for possession of ammu-
nition as a felon. 1
1Musgraves also briefly argues that he was entitled to a Franks hear-
ing to test the evidence omitted from the affidavits. In Franks v. Delaware,
No. 15-2371 11
II. Sufficiency of Evidence for Conspiracy, Possession of Firearm,
and Drug Distribution
With the challenge to the warrant settled, we turn now to
the charges arising from Musgraves’s second arrest, which oc-
curred in November 2013. He argues that the government
failed to offer sufficient evidence to convict him of conspiracy
to distribute cocaine (Count 2 of the Indictment), being a felon
in possession of a firearm (Count 4), and cocaine distribution
(Count 5). At trial, Musgraves moved for judgment of acquit-
tal at the close of evidence, and the district court denied the
motion. Musgraves appeals the denial as to all three counts. 2
We may reverse for insufficient evidence only if no ra-
tional jury could have found the essential elements of the
crime beyond a reasonable doubt. United States v. Bloch, 718
F.3d 638, 641–42 (7th Cir. 2013), quoting United States v. John-
son, 592 F.3d 749, 754 (7th Cir. 2010). On these three charges,
Musgraves has met that high standard. The government
438 U.S. 154 (1978), the Supreme Court held that a search warrant is inva-
lid if officers intentionally or recklessly provided the court with false in-
formation necessary to the probable cause determination. United States v.
McMurtrey, 704 F.3d 502, 504 (7th Cir. 2013). We find no error on this point.
The omitted information about Tisdale’s criminal background would not
have undermined probable cause because of (a) the more important role
of the recent information from Boner, and (b) the video recording that cor-
roborated Tisdale’s account of the controlled buy back in 2012.
2 Musgraves also argues at length that his statements to officers on
November 17, 2013 should be suppressed, either as part of a valid proffer
agreement based on the July 12 conversation or as involuntary, coerced
statements. Because we determine that Musgraves prevails on his suffi-
ciency of the evidence motion on appeal even with the November 17 state-
ments in evidence, we need not decide whether those statements should
be suppressed.
12 No. 15-2371
proved the existence of a simple buyer-seller relationship be-
tween Musgraves and Stevens but not a drug distribution
conspiracy. The firearm possession and cocaine distribution
convictions both depended on conjecture, which cannot sup-
port proof beyond a reasonable doubt.
A. Conspiracy to Distribute Cocaine (Count 2)
Musgraves was convicted of conspiring with Romell Ste-
vens to distribute cocaine from February 2013 until Mus-
graves’s first arrest in July 2013. To prove a conspiracy, the
government must demonstrate that the defendant knowingly
and intentionally joined in an agreement with at least one
other person to distribute drugs. United States v. Pulgar, 789
F.3d 807, 813 (7th Cir. 2015), citing Johnson, 592 F.3d at 754.
The problem here is that, without more, a buyer and a
seller in a simple drug deal are not engaged in a conspiracy.
Rather, the government must produce evidence of “an agree-
ment to distribute drugs that is distinct from evidence of the
agreement to complete the underlying drug deals.” Pulgar,
789 F.3d at 812 (emphasis in original), quoting Johnson, 592
F.3d at 755. Merely agreeing to exchange drugs for money or
property is simply “the crux of the buyer-seller transaction”
and “insufficient to prove a conspiracy.” United States v. Kin-
cannon, 567 F.3d 893, 897 (7th Cir. 2009), citing United States v.
Colon, 549 F.3d 565, 567–68 (7th Cir. 2008). As we said in United
States v. Pulgar, we actively police this distinction. 789 F.3d at
813, citing Johnson, 592 F.3d at 759 (vacating drug conspiracy
conviction), Colon, 549 F.3d at 569–72 (same), United States v.
Contreras, 249 F.3d 595, 601–02 (7th Cir. 2001) (same), United
States v. Rivera, 273 F.3d 751, 757 (7th Cir. 2001) (same), and
United States v. Baker, 905 F.2d 1100, 1106–07 (7th Cir. 1990)
(same).
No. 15-2371 13
The government may prove a conspiracy by producing ei-
ther evidence of an express agreement or circumstantial evi-
dence. Pulgar, 789 F.3d at 813. We view circumstantial evi-
dence as a totality, and we have provided some guidance as
to the type of evidence we look for: (1) sales on credit (known
as “fronting”), (2) an agreement to look for other customers,
(3) the payment of a commission, (4) advice by one party to
the other on business tactics, and/or (5) an agreement that
each will warn the other of threats from competitors or law
enforcement. Johnson, 592 F.3d at 755–56, citing Colon, 549 F.3d
at 568–70.
In practice, fronting is often the best indicator of a drug
conspiracy because a sale on credit aligns the objectives of
both the buyer and seller to see the drugs are resold to repay
the debt. United States v. Long, 748 F.3d 322, 326 (7th Cir. 2014)
(“Both parties … share the common objective of reselling the
drugs since resale is the means of closing out the credit trans-
action.”). The government did not offer evidence of sales on
credit by Musgraves to Stevens. The government relies on Ste-
vens’ testimony that when he was unable to pay cash for co-
caine on one occasion, he gave Musgraves his gun instead un-
til he had the money. That was not fronting but pawning. The
gun was collateral and had value to Musgraves whether or
not Stevens returned with cash from downstream drug sales.
This was not a sale on consignment or credit. See, e.g., United
States v. Brown, 726 F.3d 993, 1002 (7th Cir. 2013) (conspiracy
establishment by “either a consignment arrangement, or …
multiple, large-quantity purchases, on credit”); United States
v. Fuller, 532 F.3d 656, 663 (7th Cir. 2008) (finding fronting
14 No. 15-2371
where a seller would consistently allow buyer to take cocaine
on full or partial credit). 3
The government argues further that Musgraves “un-
doubtedly knew that Stevens was not using all the cocaine for
himself” due to the circumstances of their drug deals. Accord-
ingly, the government contends that the fact that Musgraves
knew the cocaine was being used for further drug sales is ev-
idence of a conspiracy. That argument misstates the inquiry.
Conspiracy must be proven whether the sales are wholesale
or retail.
The other relevant factors are not sufficient here to estab-
lish a drug conspiracy. The government does not argue that
Musgraves and Stevens had an agreement to look for new
customers or that one paid the other a commission. To the ex-
tent the government mentions advice from one party to the
other on business tactics, the point was not supported with
clear evidence. The government argues that there was an
agreement to warn of future threats from law enforcement:
the government’s closing particularly pointed to Stevens’
statements to Tisdale that Musgraves “doesn’t sell drugs, I
don’t sell drugs.” This incident was offered to show that Mus-
graves and Stevens trusted each other and wanted to protect
each other from a potential informant. But this single incident
occurred in September 2012, months before the alleged con-
spiracy began in February 2013. Moreover, we have cautioned
3In addition, Stevens’s testimony on this incident was so unclear that
we do not think it can support proof beyond a reasonable doubt of a con-
spiracy between the two. He first testified that he received cocaine from
Musgraves, “but not for that gun.” He then testified Musgraves would
hold the gun until Stevens “paid him back.” And finally, he backtracked
again: “It is getting mixed up. The AK-47, I had already paid for it.”
No. 15-2371 15
that a “singular warning is insufficient to establish the exist-
ence of a conspiracy,” especially when the person giving the
warning is acting out of self-preservation. Johnson, 592 F.3d at
757.
The core of the government’s conspiracy case is evidence
showing a sense of trust between Musgraves and Stevens go-
ing beyond a normal buyer-seller relationship. As we noted
in United States v. Brown, we have moved away from using
“the level of mutual trust between the buyer and seller” as a
factor in conspiracy analysis. 726 F.3d 993, 998–99 (7th Cir.
2013). Because the list of factors is not intended to be exhaus-
tive, though, we consider the point. First, the government
notes that Musgraves held Stevens’ gun in his home, illegally,
and despite Musgraves’s protests. The government argues
Musgraves would not have done this unless he and the buyer
shared an unusual level of confidence and trust. But this type
of behavior does not prove a conspiratorial agreement. Cf.
United States v. de Soto, 885 F.2d 354, 367 (7th Cir. 1989)
(“Courts must be especially watchful … when a conspiracy is
alleged to be composed of family members … .”).
The government also said in its closing argument: “Why
is only Romell [Stevens] allowed to go into the house and not
the buyers? If Lou [Musgraves] is running arms length busi-
ness, if there is a store front counter, can’t anybody come in
and buy cocaine? No. Only the trusted one can.” The point
seems to be that screening drug customers transforms sellers
and buyers into conspirators. It does not. Of course a drug
dealer will screen customers. He is committing a crime and
wants to sell to regulars to reduce the risk of being ensnared
by an informant or undercover officer. A drug dealer’s choice
not to open up the doors of his home to every prospective
16 No. 15-2371
buyer does not show he is conspiring when he does choose to
open his door. To be sure, it is a crime, and Musgraves was
properly convicted on Count 1 for maintaining a drug-in-
volved premises. But it is not a conspiracy.
As the government noted in its closing arguments, much
of the evidence on the conspiracy count “mirrors the evidence
on Count 1 all about drug dealing.” That is precisely the prob-
lem. Conspiracy is a separate conviction than drug distribu-
tion and requires evidence of a larger conspiratorial agree-
ment. Musgraves is entitled to judgment of acquittal on the
conspiracy charged in Count 2.
B. The November 17, 2013 Charges
Musgraves was also convicted of being a felon in posses-
sion of a firearm and of distributing cocaine, both on or about
November 17, 2013. We turn to those convictions next, focus-
ing first on the firearm charge. We pick up the facts where we
left off: in July 2013 after the search of Musgraves’s house and
the end of the alleged drug conspiracy. We recount the evi-
dence in the light most favorable to the government. United
States v. Griffin, 684 F.3d 691, 694–95 (7th Cir. 2012), citing
United States v. Garrett, 903 F.2d 1105, 1109 (7th Cir. 1990).
1. Musgraves’s Agreement to Cooperate
Upon his arrest for possession of ammunition in July 2013,
Musgraves was taken to the Alton police station and was soon
joined by his attorney. Musgraves and the police agreed infor-
mally that the police would hold off on prosecuting Mus-
graves, at least for a while, to give him some unspecified
amount of time to help the police make cases against others.
No. 15-2371 17
Between July and October, Musgraves and Detective
McCray stayed in contact by phone and text message. On Sep-
tember 17, Musgraves told McCray about a person who had
an AK-47, but nothing came of that tip. On September 29,
Musgraves apologized to McCray for not producing any in-
formation and promised him fruitful leads. McCray, frus-
trated by the lack of information, responded that the “time
has come to either do something or not. … It’s your decision,
man. I’m not going to push you to do something and I ain’t
mad at you if you don’t, but I gotta do what I gotta do. … You
got a couple of weeks to figure it out.”
On November 15, McCray went to speak with Stevens,
who had agreed to a proffer as to his knowledge of criminal
activity. Stevens told McCray that he had received guns from
Bock in a drug sale, and that he had given the weapons in turn
to Musgraves.
2. Musgraves’s November 17 Report
On November 17, 2013, Musgraves texted and called
McCray to report that a man parked in front of his house had
a gun and cocaine in his car. Police arrived at the house and
found a car with a man named Jesse Smith passed out inside.
A search found crack cocaine in Smith’s pocket and powder
cocaine in the visor of the vehicle, but no gun.
McCray texted Musgraves back to report that drugs, but
no gun, had been found in the vehicle. Musgraves insisted
that there was a gun in the car. McCray obtained a warrant to
search the car, which had by that time been moved to a secure
parking lot. No gun was visible initially, but while moving the
driver’s seat forward, officers spotted a handgun. Based on
18 No. 15-2371
the placement of the handgun and the direction it was point-
ing, McCray believed it was more likely that the gun was
placed under the seat by someone coming in from the back
door than by Smith himself in the driver’s seat. McCray later
admitted that it was theoretically possible that the weapon
had moved while the vehicle was being towed to the station,
but no other evidence supported this theory.
Smith had been charged with drug possession, but Officer
McCray continued to follow up on the case. The serial number
on the handgun showed that it was one of the guns Donald
Bock had (falsely) reported stolen. After examining the police
report for Bock’s stolen weapon, McCray realized that the .40
caliber handgun was one of the two guns traded to Stevens in
exchange for drugs. Stevens confirmed to McCray that Bock
had indeed traded the weapons, including the handgun, to
him in exchange for cocaine. Bock soon recanted his story that
the weapons had been stolen. Upon Detective McCray’s re-
quest, the charges against Smith were dropped. Instead, Mus-
graves himself was charged with being a felon in possession
of a firearm and distribution of cocaine, both on or about No-
vember 17, 2013.
C. Analysis of Felon in Possession and Drug Distribution Con-
victions
Musgraves challenges the convictions based on the fire-
arm and cocaine found in Smith’s car on November 17. The
government’s primary theory of the felon-in-possession and
cocaine distribution charges is that Musgraves planted both
items in Smith’s car to prove to the police that he was helping
them. In its closing argument, the government summed up its
theory: “So what does [Musgraves] do? He plants the drugs
and gun on Jesse Smith, felon in possession. We don’t have to
No. 15-2371 19
prove he planted the gun. We have to prove that Lou pos-
sessed the gun at some point, but he planted the gun.” In the
alternative, the government implies that Musgraves’s 911 calls
showed his proximity to the contraband and therefore his
constructive possession of it. Musgraves argues the prosecu-
tion’s evidence is too speculative to support these theories be-
yond a reasonable doubt. We agree.
We start with the framing theory and the evidence of fram-
ing on both the firearm and cocaine convictions. First, the
government established through testimony that Bock had
given the .40 caliber handgun to Stevens to trade for cocaine,
that Bock drove Stevens to Musgraves’s house with the fire-
arm, that Stevens entered with the gun, and that he left the
home with cocaine and no gun. The later July 2013 search of
Musgraves’s house turned up ammunition but no firearms or
drugs, and the government does not argue that the ammuni-
tion seized fit a .40 caliber handgun. Finally, the government
presented the serial number from the gun found in Smith’s car
to prove it was Bock’s original handgun, the communications
between Musgraves and McCray to show Musgraves’s incen-
tive to produce information, the 911 call from Musgraves to
show his personal knowledge that a firearm and cocaine were
in the car, the odd position of the handgun in the car to show
that it might have been planted, and the cocaine found in the
car’s visor to bolster the planting theory. In its closing argu-
ment, the government also suggested that Musgraves “was
drunk too. … People make bad decisions when they are drunk
… .” The government argues that the sum total of this evi-
dence is sufficient proof that Musgraves framed Smith and
did so by possessing the firearm and distributing cocaine.
20 No. 15-2371
To prove the felon-in-possession charge, the government
had to prove: (1) the defendant is a convicted felon, who (2)
possessed a firearm, which (3) had traveled in or affected in-
terstate commerce. 18 U.S.C. § 922(g)(1); United States v. Sew-
ell, 780 F.3d 839, 847 (7th Cir. 2015). Musgraves argues on ap-
peal only that he did not possess the firearm. Possession may
be either actual or constructive. Sewell, 780 F.3d at 847, citing
United States v. Villasenor, 664 F.3d 673, 681 (7th Cir. 2011). The
government relies on both actual and constructive theories of
possession, but the framing theory boils down to an argument
for actual possession: that on November 17, Musgraves per-
sonally placed the weapon in Smith’s vehicle.
A defendant has actual possession of a firearm when he
knowingly maintains immediate physical control of a firearm.
United States v. Hampton, 585 F.3d 1033, 1040 (7th Cir. 2009),
quoting United States v. Stevens, 453 F.3d 963, 965 (7th Cir.
2006). This is usually proven by witness testimony placing the
firearm directly in the defendant’s hands, United States v. Mat-
thews, 520 F.3d 806, 809 (7th Cir. 2008), or on the defendant’s
person, Hampton, 585 F.3d at 1041 (gun seen in defendant’s
hands and placed in his waistband).
Only one piece of evidence points directly to Musgraves’s
actual possession of the firearm: Stevens’ testimony that he
left the gun with Musgraves in exchange for cocaine. For pur-
poses of this appeal, we must accept Stevens’ account as true
despite his incentive and proclivity for dishonesty. And we
must therefore assume that Musgraves possessed the Bock-
Smith firearm eight months before the charged offense. The
key point is that that was at least eight months before the date
No. 15-2371 21
of the felon-in-possession charge, November 17, 2013. 4 And,
critically, no firearm was found in the July 2013 search of Mus-
graves’s home.
The government points out correctly that it can prove its
case by showing that a felon held a firearm for only a moment.
United States v. Lane, 267 F.3d 715, 718–19 (7th Cir. 2001) (brief
holding and inspection of firearm established possession).
The problem is that the government seeks to prove that Mus-
graves possessed the firearm on or about November 17, 2013,
on the basis of testimony that he received it no later than
March 2013, and despite the intervening search in July 2013
revealing no firearm. Even viewing the evidence in the light
most favorable to the government, possession no later than
March 2013 cannot support a conviction for a charge of pos-
session on or about November 17, 2013. As we explained in
United States v. Ross, 412 F.3d 771, 774 (7th Cir. 2005), “on or
about” language in an indictment means that proof of the ex-
act date of offense is not required, but the government must
prove the crime was committed at a time “reasonably near
that named in the indictment.” In Ross, we reversed a convic-
tion and ordered a new trial where the jury instructions
would have allowed conviction for actual possession four
years before the charged “on or about” date. Id. at 774–75, cit-
ing United States v. Hinton, 222 F.3d 664, 672–73 (9th Cir. 2000)
(while a few weeks of variance is allowable, seven months of
variance “between the facts proved and the dates alleged in
the indictment” is “prejudicial”); United States v. Casterline,
103 F.3d 76, 77–78 (9th Cir. 1996) (firearm possession seven
4 Bock did not provide an exact date of the Stevens-Musgraves trade
of the handgun. But Bock reported the guns stolen on March 12, 2013, so
the dealing took place sometime in the months before that date.
22 No. 15-2371
months earlier insufficient to establish felon-in-possession
conviction reasonably near indictment date); cf. United States
v. Blanchard, 542 F.3d 1133, 1143 (7th Cir. 2008), citing United
States v. Leibowitz, 857 F.2d 373, 379 (7th Cir. 1988) (variances
of one to three weeks were permissible).
We must also grant the government that Musgraves had a
motive to try to frame Smith to get the police off of his own
back. And we must assume that Musgraves had an oppor-
tunity to plant the firearm and the cocaine in Smith’s car. But
motive and opportunity alone are not enough to find guilt be-
yond a reasonable doubt. See Spivey v. Rocha, 194 F.3d 971, 978
(9th Cir. 1999) (accused could present evidence of third-party
guilt to raise reasonable doubt about his own guilt, but third
party’s motive or opportunity are not enough to be admissi-
ble). We concede that it’s possible that Musgraves framed
Smith, meaning that he would have possessed the firearm and
distributed the powder cocaine on or about November 17, but
the evidence falls short of proof beyond a reasonable doubt.
The government also argues that Musgraves construc-
tively possessed the firearm, presumably by virtue of his be-
ing near Smith’s vehicle on November 17. A defendant con-
structively possesses contraband when “he knowingly has the
power and intention at a given time to exercise dominion and
control over the object.” United States v. Kelly, 519 F.3d 355, 361
(7th Cir. 2008). As relevant here, the government must
demonstrate a substantial connection both between the de-
fendant and the location as well as between the defendant and
the contraband itself, United States v. Griffin, 684 F.3d 691, 696–
97 (7th Cir. 2012), and therefore prove that Musgraves was
more than a mere bystander. United States v. Lawrence, 788 F.3d
234, 240 (7th Cir. 2015), citing Griffin, 684 F.3d at 695.
No. 15-2371 23
The government did not present evidence establishing a
substantial connection between Musgraves and Smith’s car.
The facts here differ from the joint occupancy cases cited by
the government, where a connection between the defendant
and the contraband’s location is a given. The only evidence of
proximity is the series of 911 calls from Musgraves indicating
that he had seen Smith with the contraband nearby No wit-
nesses were able to place Musgraves in proximity to the car
and therefore the contraband, and apart from the govern-
ment’s framing theory, there is no evidence supporting an in-
ference that Musgraves had the power and intention to exer-
cise control over the firearm in Smith’s car. We therefore re-
verse the felon-in-possession conviction under Count 4 of the
indictment.
For essentially the same reasons, we also reverse Mus-
graves’s conviction on Count 5 for distributing cocaine on or
about November 17, 2013. The government’s theory and evi-
dence on this charge tracked Count 4 and relied on the theory
that Musgraves tried to frame Smith by planting both the co-
caine and the firearm in Smith’s car. The evidence on the drug
charge was a little weaker since there was no evidence tying
Musgraves to the cocaine package at any time, unlike the fire-
arm, which we must assume he possessed at least eight
months before the charged offense. The cocaine package in
the visor was never tested for fingerprints or DNA evidence
that might have connected it to Musgraves. Musgraves is en-
titled to a judgment of acquittal on the drug distribution
charge in Count 5 of the Indictment.
24 No. 15-2371
III. Musgraves’s Career Offender Status
We turn finally to Musgraves’s objection to his sentencing
as a career offender under the Sentencing Guidelines. The dis-
trict court determined that he qualified as a career offender
despite some uncertainty as to the exact nature of one of his
predicate prior offenses. Musgraves appeals that determina-
tion. Because we are reversing three of his five convictions, he
must be resentenced on the remaining two. The guideline
finding may well affect that decision.
The dispute focuses on a 2006 conviction in Illinois state
court for unlawful possession of a controlled substance with
intent to distribute. Musgraves pled guilty to unlawfully pos-
sessing a controlled substance with intent to deliver, which is
considered a Class X felony in Illinois. Both sides agree that
there are discrepancies in the records of the 2006 conviction.
Illinois law requires a minimum nine-year sentence for this
Class X felony. 720 Ill. Comp. Stat. 570/401(a)(2)(B). And yet
the state court gave Musgraves a sentence of 25 months. Nei-
ther party was able to explain the reason for the mismatch,
but each offered some speculation.
Musgraves argued that the best explanation for the dis-
crepancy was that the state court judge reduced the charge to
a mere possession offense but never recorded this in court
documents. Simple possession without intent to distribute
would not have been a drug trafficking conviction and would
not have counted toward the career offender finding. The
government suggested two other scenarios: first, that the state
judge imposed an erroneous sentence by failing to give man-
datory minimum nine-year sentence, and second that the
state judge reduced the charge to possession with intent to
distribute a quantity of less than one gram of cocaine, which
No. 15-2371 25
would make the sentence legal for a Class 2 felony. The district
judge determined that either pathway reached the same re-
sult: the 2006 offense was a drug trafficking conviction with
more than a year’s imprisonment and thus a predicate convic-
tion for career offender status.
We review de novo “whether a prior conviction qualifies as
a predicate conviction for purposes of applying the career of-
fender enhancement.” United States v. Womack, 610 F.3d 427,
430 (7th Cir. 2010), citing United States v. Woods, 576 F.3d 400,
408 (7th Cir. 2009). We find no error on the part of the district
judge. The district court relied here on solid evidence that
Musgraves pled guilty to a predicate controlled substance of-
fense. The parties then offered three speculative explanations
for the sentencing discrepancy, but no evidence that would
solve that mystery. Neither party contends, however, that the
plea agreement stating the crime of conviction was inaccurate.
The agreement was neither speculative nor disputed. The dis-
trict court thus had before it clear evidence that Musgraves
had pled guilty to and been adjudged guilty of an offense that
qualifies as a predicate “controlled substance offense,” a drug
trafficking felony punishable by a prison term exceeding one
year. See U.S.S.G. § 4B1.2(b). The judge did better to rely on
that information than to ignore it.
Musgraves also contends his right to due process was vio-
lated when the district judge considered inaccurate infor-
mation—either the label of the crime or the sentence given.
See United States v. Coonce, 961 F.2d 1268, 1275 (7th Cir. 1992).
But on that theory the burden was on Musgraves to “demon-
strate that the information before the court was inaccurate
and that the court relied on it.” Id., citing United States v. Musa,
946 F.2d 1297, 1306 (7th Cir. 1991). He has not done so. The
26 No. 15-2371
district court properly sentenced Musgraves as a career of-
fender on the record before it.
To sum up, Musgraves was indicted and convicted on five
counts. We AFFIRM the denial of the motion to suppress the
evidence obtained in the July 2013 search of Musgraves’s
apartment, which means we affirm his convictions on Counts
1 and 3. We REVERSE the convictions on Count 2 (drug-dis-
tribution conspiracy), Count 4 (felon in possession of a fire-
arm), and Count 5 (cocaine distribution) for insufficient evi-
dence. We VACATE his sentence and REMAND this case to
the district court for resentencing on Counts 1 and 3 con-
sistent with this opinion.