United States v. Alvin Fouse, III ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3945
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A LVIN F OUSE III,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 06-CR-100—Charles N. Clevert, Jr., Judge.
A RGUED N OVEMBER 5, 2008—D ECIDED A UGUST 24, 2009
Before E ASTERBROOK, Chief Judge, and R IPPLE and
R OVNER, Circuit Judges.
R OVNER, Circuit Judge. Alvin Fouse was convicted
after a jury trial of conspiracy to distribute cocaine, 21
U.S.C. §§ 846, 841(a)(1), and possession of a firearm in
furtherance of that conspiracy, 18 U.S.C. § 924(c). He was
sentenced to a total of 270 months’ imprisonment. On
appeal Fouse argues that the evidence underlying his
convictions is insufficient, that both the district court’s
2 No. 07-3945
decision to give the jury a “dynamite charge” during its
deliberations and the charge itself were in error, and
that his prison term for the drug conspiracy is unrea-
sonable. We reject each of these contentions and affirm
the judgment.
I.
Fouse was indicted in 2006. In addition to the con-
spiracy and gun counts, he was also charged with con-
spiracy to launder money, 18 U.S.C. § 1956(h). Two
codefendants pleaded guilty to the drug conspiracy, and
Fouse went to trial along with his father, who was
charged only on the money-laundering count. At trial
the government called Rosendo Heredia, Fouse’s principal
drug accomplice, who testified that beginning in 2002
he delivered a kilogram of cocaine every few days to
Fouse’s house on 21st Street in Racine, Wisconsin. Accord-
ing to Heredia, Fouse paid cash for the first kilogram of
cocaine he purchased but all subsequent deals were on
credit. Heredia recounted that, after serving various jail
terms in 2004, he again began supplying Fouse with any
quantity of cocaine he could obtain. The two of them,
Heredia said, then bought and sold drugs together until
they were moving three to five kilograms of cocaine per
week. Heredia stated that he obtained cocaine from his
sources and delivered it to Fouse’s 21st Street home,
where he and Fouse would then jointly decide what to
do with the drugs, whom to sell to, and what price to
charge. Five witnesses testified that Heredia and Fouse
supplied cocaine to drug dealers in Racine and that Fouse
No. 07-3945 3
knew buyers were cooking the powder cocaine into crack
for resale. Witnesses also testified to seeing kilogram
packages of drugs delivered to Fouse’s 21st Street house
and to seeing exchanges of large amounts of money
between Fouse and other drug dealers.
In August 2005 officers from the Racine Police Depart-
ment executed search warrants at the 21st Street house
and an auto-repair garage belonging to Fouse’s father. The
21st Street house was Fouse’s only residence, which he
shared with his wife. In the garage of that house, police
officers found a small bag of cocaine and wrappers con-
sistent with those used to package kilograms of cocaine.
Inside the house officers discovered an arsenal of weapons,
including a rifle, shotguns, handguns, ammunition, a
speedloader (used to load ammunition very quickly), a
flash suppressor (which preserves a shooter’s night
vision by reducing a gun’s muzzle flash), and a bullet-
proof vest. Two of the handguns were found in the base-
ment next to a container covered with cocaine residue.
At Fouse’s father’s auto-repair garage, police found a gram
scale, a mixer, plastic baggies, a bottle of inositol (a
“cutting” agent commonly used to dilute powder co-
caine), several boxes of baking soda, a bowl covered
with cocaine residue, and eight more guns. Police also
retrieved a total of $100,000 in currency during the
searches. Heredia testified that, despite the August 2005
searches, he continued to supply Fouse with cocaine
through September 2005.
Fouse did not testify or present evidence at trial. During
closing argument his lawyer attacked the credibility of the
4 No. 07-3945
witnesses who identified themselves as Fouse’s drug
associates. Counsel characterized Heredia as an “admitted
liar” and argued that the evidence failed to prove the
existence of a drug conspiracy. Counsel noted that the
searches of Fouse’s home and his father’s garage had
turned up only 7.3 grams of cocaine, which, counsel
insisted, undermined all the testimony about Fouse being
involved with large amounts of drugs. With respect to
the gun count, counsel argued that no government wit-
ness had ever seen Fouse with a gun, though this con-
tention ignored testimony from a police officer who
recovered a gun from Fouse during a traffic stop in
2003. According to the defense, the guns found at Fouse’s
home were for personal protection. Finally, defense
counsel also insisted that the government had failed to
prove a money-laundering conspiracy because there was
no evidence that Fouse made purchases or gave money
away in order to hide the proceeds of drug sales.
After a six-day trial the jury deliberated for nearly eleven
hours before the foreman sent a note to the judge ex-
plaining that the jurors had not been able to reach a
verdict on the conspiracy count and had not even con-
sidered the other charges. The foreman stated in his note
that he was “having trouble keeping tempers from flaring”
and “would appreciate [the judge’s] thoughts on this
matter.” As things stood, the foreman added, he did not
think the jury would ever be able to agree on a verdict.
Fouse asked for a mistrial and objected, as did the gov-
ernment, when the district court instead decided to let
the deliberations continue. The court then gave the fol-
lowing supplemental instruction to the jury orally:
No. 07-3945 5
There’s no doubt that you recognize that the verdict
must represent your considered judgment, but it’s
also important to point out that it is your duty as
jurors to consult with one another and to deliberate
with a view to reaching a unanimous decision.
I emphasize that and also that you must proceed in a
fashion with due regard for the views of fellow jurors.
In other words, you’ve got to decide the case for
yourselves but only after an impartial consideration of
the evidence with your fellow jurors. So that means
you have to really communicate. You have to open
your eyes with regard to the evidence and how your
other—fellow jurors have evaluated the evidence.
I must also point out, particularly in view of the fact
that notes were being taken, that if someone has
something in his notes or her notes it doesn’t mean
that they are in a better position to evaluate the evi-
dence than you as a collective body. Stated differently,
no greater weight should be given to the view of a
juror with notes than a juror who does not have some-
thing in his or her notes.
I must also point out that as you proceed you should
do so respectfully. You’ve mentioned that tempers
have flared; and I will tell you, and I mentioned this
to counsel, it is not uncommon for tempers to flare
during jury deliberations. It’s hard work. It’s very hard
work, but it’s necessary work; but as you proceed, do
not hesitate to change your opinion if you are con-
vinced your initial impressions and opinions were
erroneous.
6 No. 07-3945
On the other hand, do not surrender your honest
conviction as to the weight or effect of evidence
solely because of the opinion of fellow jurors or,
particularly at this stage, for the mere purpose of
returning a verdict. I emphasized earlier and will
repeat now, you are not partisans. You’re not
combatives. You’re judges of the facts. Your inter-
est—Your sole interest is to determine the truth from
the evidence, not from speculation, but from the
evidence as you find it collectively in this case.
So with that in mind I ask that you go back to the
jury room and put forth additional effort, notwith-
standing a note, to reach a unanimous decision in
this matter.
Fouse objected after the instruction was read because,
he said, its phrasing unduly emphasized that the jurors
could change their minds. The government echoed the
defense’s concern that this instruction would lead the
jury to reach a verdict not based on the evidence or
law. Less than two hours later, the jury returned with
verdicts of guilty as to Fouse on the conspiracy and gun
counts and not guilty on the money-laundering charge.
The panel also acquitted Fouse’s father. On the con-
spiracy count, the jury specifically found that the crime
involved 500 or more grams of powder cocaine and 5
or more grams of crack.
At Fouse’s sentencing hearing, two of the trial witnesses
maintained that they had told Fouse they needed to buy
pure powder that could be turned into crack. The first
witness, John Mares, said he bought 1.5 kilograms of
No. 07-3945 7
cocaine from Fouse over the course of 12 weeks. The
second witness, Demetreus Green, estimated that his
total purchases from Fouse over two years totaled about
20 kilograms. Based on the testimony of these two wit-
nesses, the district court attributed 1.5 kilograms of crack
to Fouse. The court set a base offense level of 36, see
U.S.S.G. § 2D1.1(c)(2), and applied no adjustments. That
offense level, coupled with Fouse’s criminal history
category of II, yielded on the conspiracy count a guide-
lines imprisonment range of 210 to 262 months. The
court sentenced Fouse to 210 months for that offense
and imposed a consecutive 60-month term for the gun
count, for a total of 270 months.
II.
On appeal Fouse begins by challenging the sufficiency
of the evidence supporting his conspiracy conviction. He
argues that the government’s succession of witnesses
established only that he bought cocaine from Heredia
and sold it to other drug dealers. These were nothing
but buyer-seller relationships, Fouse contends, which do
not prove the existence of a drug conspiracy. This is a
contention we encounter frequently, but one that rarely
succeeds because, more often than not, it depends on
looking at the evidence from the defendant’s perspective
and not the jury’s. See United States v. Rollins, 544 F.3d
820, 835 (7th Cir. 2008); United States v. Bender, 539 F.3d
449, 453 (7th Cir. 2008); United States v. Fuller, 532 F.3d 656,
662 (7th Cir. 2008). But we must view the trial evidence
in the light most favorable to the government and will
8 No. 07-3945
uphold the jury’s verdict if “any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979); see United States v. Bailey, 510 F.3d 726, 733 (7th
Cir. 2007).
Fouse is correct that a conspiracy conviction under § 846
requires more than an agreement to buy or sell drugs;
the statute is violated only if two or more persons have
agreed to fulfill a separate criminal objective, such as
distributing drugs. See United States v. Kincannon, 567
F.3d 893, 897 (7th Cir. 2009); United States v. Colon, 549 F.3d
565, 567-68 (7th Cir. 2008). On the other hand, Fouse is
wrong in assuming that the government cannot sustain
a conspiracy charge without proving conclusively that
every alleged coconspirator had more than a buyer-
seller relationship with the defendant. See United States v.
Avila, 557 F.3d 809, 816 (7th Cir. 2009) (“Proving that
[defendant] joined the conspiracy alleged in the indict-
ment does not require that the government prove he
conspired with the individuals named in the indictment.”);
United States v. Carrillo, 435 F.3d 767, 777 (7th Cir. 2006);
United States v. Contreras, 249 F.3d 595, 598 (7th Cir. 2001).
What is essential, instead, is that the government prove
the requisite agreement between the defendant and at
least one other coconspirator, whether or not named in
the indictment. See Kincannon, 567 F.3d at 898; Avila,
557 F.3d at 816; Carrillo, 435 F.3d at 777.
The indictment in this case alleges that Fouse conspired
with Mario and Raymond Garcia, and with “others known
and unknown” to the grand jury. Fouse might have a
No. 07-3945 9
plausible argument that his connection to codefendants
Mario and Raymond Garcia and to others who received
cocaine from him and Heredia was limited to buyer-
seller; the government’s evidence of a more-significant
relationship between Fouse and many of the witnesses
is, given the need for proof beyond a reasonable doubt,
tenuous. But Fouse cannot make the same assertion
about Heredia. Heredia testified that he often sold cocaine
to Fouse, typically on credit, but the two of them some-
times purchased cocaine jointly. In any event, Heredia
added they worked together to sell the drugs. Heredia
explained that he and Fouse jointly decided how much to
“cut” the cocaine, whom to sell to, and what price to
charge for the drugs. And, said Heredia, the two men
often accompanied each other on drug sales. None of
this testimony is acknowledged by Fouse, who wants us
simply to disregard it. But the choice whether to
believe Heredia was for the jury, not us. See United States
v. Longstreet, 567 F.3d 911, 919 (7th Cir. 2009); Rollins, 544
F.3d at 835. And a rational jury could have concluded
beyond a reasonable doubt from that testimony that
Fouse and Heredia had much more than a buyer-seller
relationship. See United States v. Harris, 567 F.3d 846, 851-52
(7th Cir. 2009) (concluding that defendant and
coconspirator had more than buyer-seller relationship
because they pooled money and shared resources for
extended period of time); United States v. Zaragoza, 543
F.3d 943, 948 (7th Cir. 2008) (finding conspiracy based
on duration of relationship, sales on credit, and “inter-
locking” financial interests); Bender, 539 F.3d at 454 (up-
holding jury’s finding of drug conspiracy based on large-
10 No. 07-3945
quantity sales on credit showing shared stake in venture).
Thus, whether or not the conspiracy was as broad as the
government tried to make it out to be, the evidence
that Fouse was part of a conspiracy to distribute cocaine
is beyond dispute.
III.
Fouse claims on appeal that the government failed to
prove he possessed a firearm in furtherance of the drug
conspiracy. Fouse attacks two elements of the § 924(c)
charge. First, he contends that the government did not
establish his possession of the weapons because, in his
view, the jury could not find that he exercised exclusive
control over the guns seized at either his 21st Street
home or his father’s auto-repair garage. Second, Fouse
argues that, even if he possessed the guns, the govern-
ment did not prove that their presence furthered the drug
conspiracy. Once again we review the evidence in the
light most favorable to the government and will overturn
the verdict only if there is no evidence from which a
rational jury could find guilt beyond a reasonable doubt.
See United States v. Duran, 407 F.3d 828, 839 (7th Cir. 2005).
As far as possession, Fouse is really saying that he could
not be convicted without proof of actual possession or
direct physical contact with a gun. And no witness, he
emphasizes, placed any of the seized guns in his hands.
But even without proof of actual possession, a defendant
may nevertheless be held accountable on a theory of
constructive possession if the evidence establishes that
he owned or controlled the gun. See United States v.
No. 07-3945 11
McLee, 436 F.3d 751, 758 (7th Cir. 2006); United States v.
Walls, 225 F.3d 858, 864 (7th Cir. 2000). Here, even putting
aside the eight guns found at the auto-repair garage
because others had access to the garage and those weap-
ons, a jury could conclude that Fouse constructively
possessed the guns found at his 21st Street home. Fouse
and his wife lived there alone, and there was no evidence
that others had access to the house when the couple
was not home. The weapons were found throughout the
house, including Fouse’s bedroom, and though Fouse
had been arrested with a handgun in his possession two
years before these weapons were found, there was no
suggestion that Fouse’s wife ever possessed these or any
other guns. Fouse’s assertion that a jury could not ratio-
nally conclude that the weapons were constructively
possessed by him is frivolous. See McLee, 436 F.3d at 757
(upholding finding of constructive possession based on
evidence that defendant observed frequenting home
where gun was found although he did not live there
and had not been seen with gun).
Fouse’s argument about the “in furtherance” element
fares no better. A jury can rely on circumstantial evidence
in finding that a gun in the defendant’s constructive
possession was kept to further a drug trafficking crime.
See United States v. Santiago, 560 F.3d 62, 66 (1st Cir.
2009); United States v. Doddles, 539 F.3d 1291, 1295 (10th
Cir. 2008). Factors distinguishing innocent gun posses-
sion from possession in furtherance of a drug crime
include the nature of the drug activity, the type and
accessibility of the weapon, whether the weapon was
loaded, and the proximity of the weapon to drugs or drug
12 No. 07-3945
profits. See United States v. Seymour, 519 F.3d 700, 715 (7th
Cir. 2008); Duran, 407 F.3d at 840. “One legal theory
that has been advanced, and unanimously accepted, is
that a possessed gun can forward a drug-trafficking
offense by providing the dealer, his stash or his territory
with protection.” Duran, 407 F.3d at 840.
The indictment in this case charged Fouse with possess-
ing a firearm in furtherance of the drug conspiracy on
or around the date the search warrants were executed in
August 2005. At oral argument defense counsel primarily
argued that Fouse could not be convicted of possessing
the seized guns in furtherance of the charged conspiracy
because, drawing from his first appellate claim, the con-
spiracy charge was not adequately proven. But we have
already rejected that contention, and it has no more
traction the second time around. In his appellate brief
Fouse tried a different tack and argued, not that the
conspiracy was not established, but that the govern-
ment failed to prove that the guns found in his home or
in his father’s garage were used in aid of his drug dealing.
Although no trial witnesses reported seeing the guns
Fouse kept near his drug stash and profits, the jury still
could have concluded that Fouse had a reason for
stashing loaded guns nearby and at the ready. Fouse
and Heredia were distributing up to five kilograms of
cocaine per week, and most of their work in dividing and
repackaging the cocaine occurred at Fouse’s 21st Street
home. That residence was Fouse’s base of operations, and
both the volume and types of weapons found there
during the August 2005 search—a rifle, shotguns, and
handguns plus a speedloader and flash suppressor—
No. 07-3945 13
suggest that these were not used for ordinary personal
protection but rather to thwart those who might try to
relieve Fouse of his inventory and profits.
IV.
Fouse’s third argument on appeal is that the district
court abused its discretion by ignoring the requests from
both sides to declare a mistrial and instead giving a
supplemental jury instruction, also known as an “Allen
charge” or a “dynamite charge.” See Allen v. United States,
164 U.S. 492 (1896); United States v. Vaiseta, 333 F.3d 815, 818
(7th Cir. 2003); United States v. Collins, 223 F.3d 502, 5098
(7th Cir. 2000). We give great deference to a district
court’s decision whether to declare a mistrial on the
basis of a deadlocked jury because the trial judge is
most aware of the circumstances of the trial. See United
States v. Taylor, 569 F.3d 742, 746 (7th Cir. 2009); United
States v. Charlton, 502 F.3d 1, 5 (1st Cir. 2007); Vaiseta, 333
F.3d at 818. The fact that both the defense and the gov-
ernment wanted a mistrial does not affect our unwilling-
ness to second-guess the court’s exercise of discretion. See
Taylor, 569 F.3d at 747. In this case, the district court
did not feel that the jury’s deliberations had been unusu-
ally long and wanted to give the jury a reasonable op-
portunity to reach a verdict. The trial had lasted for 6 days,
and at the point when the foreman’s note was delivered
to the court, the jury had been out just 11 hours. Thus, we
cannot say that the district court abused its discretion. See
United States v. Kramer, 955 F.2d 479, 488-89 (7th Cir. 1992)
(concluding that district court did not err by declining to
14 No. 07-3945
declare mistrial despite several messages from jury
stating that it was deadlocked); United States v. Lindell,
881 F.2d 1313, 1321 (5th Cir. 1989) (upholding district
court’s refusal to declare mistrial despite four notes from
jury stating that they were “hopelessly deadlocked”);
United States v. Armstrong, 654 F.2d 1328, 1333 (9th Cir.
1981) (finding no error in district court’s decision to
give two Allen charges).
Fouse, however, criticizes more than the decision to
refuse a mistrial; he also argues that the district court’s
instruction strays too far from the parameters of United
States v. Silvern, 484 F.2d 879 (7th Cir. 1973) (en banc). In
Silvern we approved a model instruction for a district
court to give a deadlocked jury if the court decides that
a mistrial would be premature:
The verdict must represent the considered judgment of
each juror. In order to return a verdict, it is necessary
that each juror agree thereto. Your verdict must be
unanimous. It is your duty, as jurors, to consult with
one another and to deliberate with a view to reaching
an agreement, if you can do so without violence to
individual judgment. Each of you must decide the
case for yourself, but do so only after an impartial
consideration of the evidence with your fellow jurors.
In the course of your deliberations, do not hesitate
to reexamine your own views and change your
opinion if convinced it is erroneous. But do not sur-
render your honest conviction as to the weight or
effect of evidence solely because of the opinion of your
fellow jurors, or for the mere purpose of returning a
No. 07-3945 15
verdict. You are not partisans. You are judges—judges
of the facts. Your sole interest is to ascertain the truth
from the evidence in the case.
Silvern, 484 F.2d at 883. In the years following Silvern, we
have also approved the modified Silvern instruction set
forth in § 7.06 of the Federal Criminal Jury Instructions of
the Seventh Circuit. See United States v. Collins, 223
F.3d 502, 505 (7th Cir. 2000); United States v. Rodriguez,
67 F.3d 1312, 1320 (7th Cir. 1995).
But we do not require district courts to replicate
verbatim either the Silvern or § 7.06 instructions. See Collins,
223 F.3d at 509 (“Any deviation from Silvern is not neces-
sarily reversible error.”); United States v. Rodriguez, 67
F.3d 1312, 1319-20 (7th Cir. 1995) (“[W]e have not required
trial courts to replicate the [Silvern] language with no
deviation.”); United States v. Hamann, 688 F.2d 507, 511 (7th
Cir. 1982) (explaining that district court’s additions to
language of § 7.06 instruction were not erroneous
because remarks did not depart from spirit of Silvern). If a
district court deviates from the approved model instruc-
tions, we will reverse if the ultimate instruction given
was “coercive of unanimity.” United States v. Willis, 523
F.3d 762, 775 (7th Cir. 2008); see also United States v.
Degraffenried, 339 F.3d 576, 580-81 (7th Cir. 2003);
Rodriguez, 67 F.3d at 1321.
Here, when considering the dynamite charge as a
whole, we discern no basis to conclude that the district
court encouraged the jurors to cast aside their opinions
for the expedience of reaching a verdict. At trial Fouse
objected to the supplemental instruction on the ground
16 No. 07-3945
that it emphasized that jurors may change their minds. Yet
both the Silvern and § 7.06 instructions encourage jurors
to reexamine their views and, if warranted, change their
opinions. That, after all, is the very point of a dynamite
charge. See United States v. LaVallee, 439 F.3d 670, 689 (10th
Cir. 2006); United States v. Wills, 346 F.3d 476, 495 (4th Cir.
2003). At all events, the instruction in this case, although
not a verbatim repetition of the approved language, is
substantively indistinguishable from the language of
Silvern and § 7.06. Moreover, immediately after telling
jurors that they should reevaluate their opinions, the
district court reminded them that in reconsidering
their views they should not surrender their “honest
conviction as to the weight or effect of evidence.” And
Fouse’s complaint strikes us as odd because it assumes
that the jurors who would change their minds favored
acquittal, but the foreman’s note did not disclose how
the jury was divided, and apparently the government
feared that the jurors were leaning toward acquittal.
The district court’s instruction does not imply that only
jurors in the minority should rethink their position, see
Bedford v. Collins, 567 F.3d 225, 238 (6th Cir. 2009), nor is
there any indication that the district court knew the
identity of the holdout jurors when it gave the dynamite
charge, see United States v. Williams, 547 F.3d 1187, 1206
(9th Cir. 2009).
On appeal Fouse does not challenge any particular
portion of the instruction but argues instead that the
circumstances of the jury’s verdict demonstrate that the
dynamite charge was coercive. He asserts that the jury’s
two-hour deliberation after receiving the supplemental
No. 07-3945 17
instruction suggests that jurors ignored the evidence in
order to reach a verdict. But the timing of the jury’s
verdict is not a sound basis from which to infer that the
jury felt coerced. See United States v. Banks, 514 F.3d 959, 975
(9th Cir. 2008) (concluding dynamite charge was not
coercive even though jury deliberated only two hours
after receiving charge); United States v. Miller, 159 F.3d
1106, 1110-11 (7th Cir. 1998) (upholding guilty verdict
rendered one hour after judge’s instruction to dead-
locked jury); United States v. Coffman, 94 F.3d 330, 336 (7th
Cir. 1996) (upholding guilty verdict rendered 20 minutes
after judge’s instruction to deadlocked jury). And if
Fouse was correct that we should measure the coercive
potential of the dynamite charge, not by the instruction’s
language, but by the events following its delivery, we
would not overlook that the instruction did not
dissuade the jury from acquitting Fouse and his father
on the money-laundering count. Finally, to the extent
that Fouse additionally contends that the jury’s drug
quantity findings somehow show that the jury ignored
the evidence, we simply fail to comprehend his point. The
cocaine and crack amounts determined the statutory
minimum sentence for the conspiracy, and any perceived
connection to the guilty verdicts eludes us.
V.
Finally, Fouse takes issue with his prison sentence for
the conspiracy count. He first argues that the district
court, in calculating his base offense level, erroneously
attributed 1.5 kilograms of crack to him based on the
18 No. 07-3945
testimony of Mares and Green. The evidence at trial
established that Fouse sold powder cocaine to both men,
who then processed that powder into crack. Fouse
submits that he did not undertake joint criminal activity
with either man, and so it was improper to hold him
accountable for what they did with the powder cocaine
he sold them. We review for clear error a district court’s
drug-quantity calculations. Rollins, 544 F.3d at 837; United
States v. White, 519 F.3d 342, 348 (7th Cir. 2008). The
government has the burden to establish the amount of
drugs attributable to a defendant by a preponderance of
the evidence. United States v. Stott, 245 F.3d 890, 911 (7th
Cir. 2001); United States v. Gee, 226 F.3d 885, 898 (7th Cir.
2000). A defendant is accountable for the conduct of
others if that conduct was in furtherance of a jointly
undertaken criminal activity and reasonably foreseeable
in connection with that criminal activity. U.S.S.G. § 1B1.3;
United States v. Soto-Piedra, 525 F.3d 527, 531-32 (7th
Cir. 2008).
Here, the district court’s determination that Fouse was
responsible for 1.5 kilograms of crack is not clearly errone-
ous. Mares and Green testified to buying a total of 21.5
kilograms of powder cocaine from Fouse over the course
of twelve weeks and two years, respectively. Mares and
Green emphasized that their negotiations with Fouse
had focused on the purity of the powder he could
provide because, as they made clear to him, they were
processing all of the powder into crack for resale. Mares
also testified that eventually Fouse sold to him on credit
and waited to be paid from Mares’s crack profits. Based
on this testimony the district court could conclude that
No. 07-3945 19
Fouse was engaged in a drug-distribution enterprise
with Mares and Green, and that Fouse therefore was
accountable for the crack sold by Mares and Green. The
government’s evidence of joint activity between Fouse
and these witnesses may not be enough to overcome a
buyer-seller defense under the reasonable-doubt standard
that governed at trial, but at sentencing, as the district
court noted, the government was required to prove
Fouse’s relationship with the men only by a preponder-
ance. See United States v. Burns, 526 F.3d 852, 859 (5th Cir.
2008); United States v. Artley, 489 F.3d 813, 822-23 (7th Cir.
2007). Moreover, given that Fouse sold Mares and Green
21.5 kilograms of powder cocaine, the court’s drug-quan-
tity finding represents a generous conversion rate of 7.3%
for powder to crack cocaine. Courts routinely uphold
conversion rates of 80% or higher. See United States v.
Taylor, 116 F.3d 269, 273-74 (7th Cir. 1997); United States v.
Singleton, 545 F.3d 932, 935 n.4 (11th Cir. 2008); United
States v. Pope, 461 F.3d 1331, 1334 (11th Cir. 2006); United
States v. Fox, 189 F.3d 1115, 1120 (9th Cir. 1999).
Fouse’s second sentencing argument is that the district
court impermissibly considered the involvement of weap-
ons as a factor when determining his conspiracy sentence.
Fouse says that taking the weapons into account when
sentencing on the conspiracy charge constituted “double
counting” because he received a consecutive 60-month
term of imprisonment for possession of a firearm in
furtherance of the drug conspiracy. See 18 U.S.C.
§ 924(c)(1). The government counters that the district
court did not weigh the presence of the guns in
fashioning a sentence on the conspiracy count, but we do
not share the government’s certainty about this factual
20 No. 07-3945
question. Fouse, however, offers no authority supporting
his assumption that the § 924(c) conviction put the guns
off limits to the court when exercising its discretion to
select an appropriate sentence on the conspiracy count.
It is true that Fouse’s gun conviction precluded the court
from imposing a two-level upward adjustment when
calculating the offense level and resulting imprisonment
range on the conspiracy count. See U.S.S.G. § 2D1.1(b)(1),
2K2.4(b) & cmt. n.4; United States v. Chavez, 549 F.3d 119,
132-33 (2d Cir. 2008); United States v. Podhorn, 549 F.3d
552, 560 (7th Cir. 2008). But the district court followed
that mandate, so Fouse has no claim that his guidelines
range was miscalculated. And after United States v.
Booker, 543 U.S. 220 (2005), a sentencing court has
freedom to consider a broad range of information in
deciding on an appropriate sentence, and in exercising that
discretion the court may disagree with the weight the
Sentencing Commission has assigned to a particular
factor. See United States v. Bartlett, 567 F.3d 901, 908 (7th Cir.
2009); United States v. Jackson, 547 F.3d 786, 792 (7th Cir.
2008). Because the district court sentenced Fouse to 210
months’ imprisonment, the bottom of the properly calcu-
lated guidelines range, his sentence is presumptively
reasonable. See Rita v. United States, 127 S. Ct. 2456, 2462
(2007); United States v. Mykytiuk, 415 F.3d 606, 608 (7th
Cir. 2005). The court’s mention of a weapon in relation
to Fouse’s drug-conspiracy sentence does not undermine
this presumption of reasonableness.
A FFIRMED.
8-24-09