United States v. Robinson, Marcus , 224 F. App'x 523 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued March 26, 2007
Decided April 26, 2007
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-2512
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Eastern Division.
v.
No. 04 CR 1090
MARCUS ROBINSON,
Defendant-Appellant. Mark R. Filip,
Judge.
ORDER
Marcus Robinson was found guilty by a jury of conspiracy to distribute crack
cocaine, 21 U.S.C. § 846, and possession with intent to distribute crack cocaine, id.§ 841, along with other offenses not relevant to this appeal. The district court
sentenced him to 240 months’ imprisonment and 10 years of supervised release. He
now challenges the jury’s verdict on the ground that insufficient evidence supported
his convictions, particularly the conviction for conspiracy, because, he contends, he
and his supplier were merely a buyer and seller and did not conspire to further drug
sales. In addition, he challenges the reasonableness of his sentence. Because
sufficient evidence shows that Robinson and his supplier were in a conspiracy that
included the resale of drugs by Robinson, and because his sentence could not have
No. 06-2512 Page 2
been lower since it was the applicable statutory minimum, we affirm.
I. BACKGROUND
The government’s case included wiretap recordings of Robinson’s phone calls
with his supplier, James Cross. The wiretap (of Cross’s phone) was in place
between May and July 2004, but the drug conspiracy itself ran from January to
August 2004. In addition to hearing about Robinson’s drug activities from the
horse’s mouth over these recordings, the jury heard testimony from Cross, who pled
guilty and cooperated in exchange for a shorter sentence, and from Milton
Patterson, Cross’s cousin, housemate, and occasional middleman. The combined
effect of that evidence is that over the eight-month period of time at issue, Robinson
frequently bought distribution levels of crack and powder cocaine from
Cross—sometimes an ounce at a time, but more frequently a half- or quarter-ounce.
(Cross testified that on the street, crack intended for personal use is usually bought
in dime bags ($10) or nickel bags ($5), and that a half-ounce of crack yields about 40
dime bags.) Robinson would then resell the drugs on the street or by telephone and
return to Cross for more.
II. ANALYSIS
On appeal, Robinson first contends that insufficient evidence showed that he
and Cross conspired that Robinson would resell the drugs, arguing that instead,
they merely maintained a buyer/seller relationship. This will be a tough slog since
appellate courts are deferential to juries; we view the record in the light most
favorable to the government and will reverse only if there is no evidence from which
the jury could have found the elements of the charged offenses beyond a reasonable
doubt. See United States v. Johnson, 437 F.3d 665, 675 (7th Cir. 2006).
To prove a conspiracy to distribute drugs under 21 U.S.C. § 846, the
government had to show that Robinson and Cross agreed to commit an unlawful act
beyond the sale of drugs from Cross to Robinson. See United States v. Rock, 370
F.3d 712, 714 (7th Cir. 2004). In this case, that additional unlawful act was
Robinson’s resale of the drugs. But merely buying drugs from someone and
reselling them—even doing so regularly—does not create a conspiracy. See United
States v. Rivera, 273 F.3d 751, 755 (7th Cir. 2001). Cross must have been
sufficiently interested in the resales that he and Robinson could be said to be on the
same side of the deal, rather than a buyer and a seller operating at arm’s length.
See id. Courts look at a number of factors, none of which standing alone is
sufficient, to determine whether a buyer and seller cross the fuzzy line into a
conspiracy: the length of the relationship; the existence of mutual trust; established
methods of payment, especially “fronting” (sale on credit); standardization of
transactions; and the seller’s knowledge of the buyer’s resale objectives. Id.; see also
United States v. Melendez, 401 F.3d 851, 854 (7th Cir. 2005). Thus the existence of
No. 06-2512 Page 3
a few deals in which the seller doesn’t depend on the buyer’s ability to turn around
and sell the drugs is insufficient, United States v. Thomas, 284 F.3d 746, 752–56
(7th Cir. 2002); Rivera, 273 F.3d at 756; United States v. Contreras, 249 F.3d 595,
599–600 (7th Cir. 2001); United States v. Torres-Ramirez, 213 F.3d 978, 981–83 (7th
Cir. 2000), whereas a series of standardized deals involving fronting and other
indicia of mutual trust adds up to a conspiracy, United States v. Carillo, 435 F.3d
767, 776 (7th Cir. 2006); United States v. Askew, 403 F.3d 496, 502 (7th Cir. 2005);
United States v. Haywood, 324 F.3d 514, 517 (7th Cir. 2003).
This is not as strong a case for the government as, say, United States v.
Smith, 393 F.3d 717, 719–20 (7th Cir. 2004), in which the seller was so wound up in
the buyer’s resale business that he didn’t expect payment until the buyer was able
to move the drugs on the street. Nevertheless, sufficient evidence supports the
jury’s verdict on the conspiracy charge. Cross and Robinson had an extensive
relationship, as evidenced by a pen register capture of over 800 phone calls between
the two during the period in question. See United States v. Eberhart, 467 F.3d 659,
669 (7th Cir. 2006) (196 phone calls between parties over six months showed
substantial relationship). Over an eight-month period, Robinson regularly bought if
not uncommonly large amounts of cocaine, certainly more than he could use
himself. Evidence also showed that Robinson apprised Cross of his progress (or
bemoaned his lack thereof) in selling the drugs, and that Cross maintained an
interest in his buyer, warning Robinson to stay away from other sellers who were
under investigation and checking in to make sure Robinson made it home after a
sale without running into the police. On one occasion Robinson loaned Cross his
drug scale when Cross’s stopped working; on another Robinson tried to refer a client
to Cross whom Cross could supply with drugs for street sales. The two clearly
trusted each other: Cross loaned Robinson money and once accepted less than full
payment until Robinson could make up the rest on the street—which Robinson
repeatedly promised to do. Whether we characterize this as partial fronting or
merely “a favorable price on the cocaine on the expectation of future purchases,”
Contreras, 249 F.3d at 600, it still tends, when coupled with the other evidence, to
show a concrete, interlocking interest that goes beyond individual buy and sell
transactions. See also Askew, 403 F.3d at 502 (partial payment indicates a regular
course of dealings).
Robinson also briefly challenges the sufficiency of the evidence on his
conviction for possessing with intent to distribute between 5 and 50 grams of crack
cocaine. This challenge fails as well. Both Cross and middleman Patterson
testified about one particular deal on June 24, 2004, in which Cross, acting through
Patterson, sold Robinson one ounce (or 28.35 grams) of crack. Wiretaps corroborate
this testimony. Robinson says that the day’s sale was made in powder cocaine, but
both Cross and Patterson specifically and repeatedly said it was crack, and the jury
believed them. We will not reweigh that finding on appeal. See United States v.
Radziszewski, 474 F.3d 480, 485 (7th Cir. 2007).
No. 06-2512 Page 4
Finally, Robinson contends that the district court recited but did not apply
the factors set out in 18 U.S.C. § 3553(a) when imposing sentence. But Robinson
received the statutory minimum sentence based on his conspiracy conviction and a
prior felony drug offense, and he does not argue that the exceptions to the statutory
minimum set out in § 3553(e) or (f) apply. He could not have received a lower
sentence. See United States v. Cooper, 461 F.3d 850, 856 (7th Cir. 2006).
Robinson makes several other arguments that invite us to upset well-settled
legal principles. These contentions are unpersuasive and do not require additional
discussion. The judgment of the district court is AFFIRMED.