United States v. Rex A. Hopper ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2576
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
REX A. HOPPER,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 4:17-cr-40034-JPG-1 — J. Phil Gilbert, Judge.
____________________
ARGUED APRIL 4, 2019 — DECIDED AUGUST 20, 2019
____________________
Before RIPPLE, HAMILTON, and ST. EVE, Circuit Judges.
RIPPLE, Circuit Judge. In June 2017, a federal grand jury
indicted Rex Hopper on one count of conspiracy to distrib-
ute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B), 846 and 18 U.S.C. § 2. Mr. Hopper was part of a
community of methamphetamine users and sellers in south-
ern Illinois. Several of these individuals signed proffer letters
with the Government, agreeing to provide testimony against
Mr. Hopper in exchange for leniency. Most of these witness-
2 No. 18-2576
es subsequently entered plea agreements.1 Mr. Hopper,
however, pleaded not guilty to the single count in the in-
dictment and proceeded to trial before a jury in late Febru-
ary 2018.
Over the course of three days, the Government presented
the testimony of approximately twenty witnesses against
Mr. Hopper. The district court denied Mr. Hopper’s motion
for disclosure of the proffer letters given to these witnesses.
Following deliberations, the jury found Mr. Hopper guilty of
conspiracy to distribute methamphetamine, as charged in
the indictment, and returned a special verdict form finding
that the conspiracy involved an amount of 50 grams or more.
Based on interviews with other participants in the con-
spiracy, the probation office determined that Mr. Hopper’s
relevant conduct involved 1.968 kilograms of ice metham-
phetamine. This drug amount corresponded to a base of-
fense level of 36. At sentencing, the district court determined
that Mr. Hopper was subject to a two-level sentence en-
hancement for maintaining a residence for the purpose of
distributing methamphetamine. Based on a total offense lev-
el of 38 and a criminal history category of I, the court calcu-
lated a guidelines imprisonment range of 235 to 293 months.
The district court sentenced Mr. Hopper at the bottom of the
guidelines range to 235 months’ imprisonment, followed by
four years of supervised release.2
1One witness entered an “open” guilty plea, for which there was no
written plea agreement.
2 The district court had jurisdiction under 18 U.S.C. § 3231.
No. 18-2576 3
Mr. Hopper now challenges both his conviction and his
sentence. First, we conclude that the Government presented
sufficient evidence to prove that Mr. Hopper engaged in a
conspiracy to distribute methamphetamine in southern Illi-
nois, and that there was no material variance between the
conspiracy charged in the indictment and the Government’s
proof at trial. Second, the district court did not err when it
denied Mr. Hopper’s motion for disclosure of the cooperat-
ing witnesses’ proffer letters. Third, the district court proper-
ly concluded that Mr. Hopper was subject to a two-level sen-
tence enhancement for maintaining his Creal Springs resi-
dence for the purpose of distributing methamphetamine.
However, we conclude that the district court plainly erred
when it calculated Mr. Hopper’s relevant conduct and corre-
sponding guidelines range. In context, it is clear that, in their
separate interviews, Lucas Holland and Randall Riley were
describing the same transactions. By including the amounts
described by both Holland and Riley in the calculation of
Mr. Hopper’s relevant conduct, the presentence report
(“PSR”), adopted by the district court, erroneously dou-
ble-counted those drug quantities.
For the foregoing reasons, we affirm Mr. Hopper’s con-
viction for conspiracy to distribute methamphetamine. We
also affirm the district court’s determination that he was
subject to a sentence enhancement for maintaining a drug
premises. Because the court plainly erred in calculating his
relevant conduct, however, we vacate Mr. Hopper’s sentence
and remand his case to the district court for resentencing.3
3We have jurisdiction over this appeal under 28 U.S.C. § 1291 and 18
U.S.C. § 3742.
4 No. 18-2576
I.
BACKGROUND
A.
In April 2017, law enforcement officers executed a search
warrant at Mr. Hopper’s residence. They sought to recover
items involved in a burglary. Officers observed drug para-
phernalia and methamphetamine in plain view. According-
ly, the officers obtained and executed a second search war-
rant for the residence. Upon finding additional drug para-
phernalia and methamphetamine in his home, officers took
Mr. Hopper into custody. A federal grand jury later returned
an indictment charging Mr. Hopper with one count of con-
spiracy to distribute methamphetamine, in violation of 18
U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846 and 18 U.S.C. § 2, in
the Southern District of Illinois.
B.
Mr. Hopper was part of a community of methampheta-
mine users and sellers in southern Illinois. Around the time
of his indictment, the Government also charged other mem-
bers of this group with conspiracy to distribute metham-
phetamine. Several of these individuals received proffer let-
ters from the Government and subsequently agreed to pro-
vide testimony against Mr. Hopper in exchange for leniency.
Most of these witnesses later entered plea agreements.
Mr. Hopper, however, pleaded not guilty to the single count
in the indictment and proceeded to trial before a jury in late
February 2018.
Before the trial began, counsel for Mr. Hopper renewed a
previous motion for disclosure of the proffer letters given to
the witnesses who would testify against Mr. Hopper. Refer-
No. 18-2576 5
encing our decision in United States v. Weidenburner, 550
F. App’x 298 (7th Cir. 2013) (unpublished), counsel recog-
nized that “[t]he Seventh Circuit has ruled that” proffer let-
ters “are not materials that have to be provided.”4 Neverthe-
less, counsel wanted “the record to be clear” that he thought
he “ought to be provided a copy” of the proffer letters.5
Counsel for Mr. Hopper explained that the proffer letter
“is an agreement that sets forth the ground rules” for what
testimony “may or may not lead to a plea agreement.”6 He
submitted that “this is a very important aspect of the de-
fense” because “no plea agreements are offered until you
proffer.”7 In other words, the proffer letters are “part of the
process by which men and women ultimately find their way
on to the stand to give testimony against a defendant.”8 As a
result, counsel asserted, “if the[] jurors don’t have some un-
derstanding of this process,” the defense would be “really
hampered in terms of our constitutional right[s] to put on a
defense and … to confront the witnesses through cross ex-
amination that are here to accuse Rex Hopper of various
crimes.”9
Relying on our decision in Weidenburner, the Government
responded that “the Seventh Circuit is clear that the proffer
4 R.118 (Trial Tr. Day 1) at 8.
5 Id. at 5.
6 Id. at 6.
7 Id.
8 Id.
9 Id. at 7.
6 No. 18-2576
letters don’t come in,” nor does “any information about the
proffer,” “because it is a preliminary step in the plea agree-
ment, and then the plea agreement supersedes all that.”10
Turning to defense counsel, the court stated, “I think it is
pretty clear that, you know, you are not going to get the
documents.”11
The Government further noted its objection to defense
counsel asking any questions about the process of entering a
plea agreement. The court asked defense counsel what kind
of questions he intended to ask the cooperating witnesses.
Counsel explained that he wanted the jury to know that be-
fore entering a plea agreement, a witness had to meet with
federal agents and “understood that agents would decide
and the prosecutors would decide whether you told the
truth, and if they didn’t think you told the truth that a plea
agreement would not be tendered.”12 Counsel acknowl-
edged that he planned to review the terms of the plea
agreements with each witness, but argued that the jury
would be “missing a big part of this process” without the
proffer letters.13 Based on our decision in Weidenburner, the
Government reiterated that the plea agreement “super-
sede[s] the proffer letter” and is “the document which the
defendant is entitled to and entitled to question witnesses
about.”14 The court denied the motion for disclosure of the
10 Id. at 8.
11 Id.
12 Id. at 10.
13 Id. at 11.
14 Id. at 14.
No. 18-2576 7
proffer letters and ruled that counsel could ask the witnesses
“whether they’ve entered into a proffer agreement, but go-
ing into the terms of it that are super[s]eded by the plea
agreement, I’m not going to let you do.”15
C.
Mr. Hopper proceeded to trial before a jury on February
26, 2018. Over the course of three days, the Government pre-
sented the testimony of approximately twenty witnesses
against Mr. Hopper. Set forth below is a summary of the
witnesses and testimony relevant to this appeal.
Dameon Williams testified that he met Mr. Hopper some-
time in 2015 when they were “messing with drugs.”16 He ob-
tained ice methamphetamine from Mr. Hopper “[o]ff and
on” for about one year.17 On these occasions, he received
about one to two ounces of methamphetamine at a cost of
$900 to $1200 per ounce. Williams stated that sometimes, he
bought the drugs outright, while other times Mr. Hopper
provided the drugs to him “on credit,” or on a “front.”18 He
explained that, in this fronting arrangement, Mr. Hopper
provided Williams a quantity of drugs, some of which Wil-
liams sold to others in order to pay Mr. Hopper back. He
further testified that Mr. Hopper called Williams occasional-
ly and asked him to visit the homes of customers who owed
Mr. Hopper money and bring them to Mr. Hopper’s house
15 Id. at 15–16.
16 Id. at 59.
17 Id.
18 Id. at 61.
8 No. 18-2576
to settle the debt. He explained that he helped Mr. Hopper
collect money from his customers because Williams “was
selling drugs for him” and “to help him out in his drug
business.”19
Brooke Peyton testified that she met Mr. Hopper in 2016
when she was dating William, also known as “Andy,”
Karnes. With Karnes, she had visited Mr. Hopper’s resi-
dence in Creal Springs, where Mr. Hopper provided ice
methamphetamine to Karnes. She stated that during the
summer of 2016, Mr. Hopper provided Karnes three to five
“8-balls,” or 3.5 gram quantities of ice methamphetamine,
several times a week.20 Karnes obtained the methampheta-
mine from Mr. Hopper “[o]n a front,” in which he would sell
drugs to others in order to pay Mr. Hopper back for the
drugs he had obtained previously.21 Peyton further testified
that sometimes, Mr. Hopper came to her home to drop off
methamphetamine for Karnes. On other occasions, he sent
Williams to deliver the drugs.
Robert Weir, also known as “Boog,” testified that he and
Mr. Hopper reconnected around April or May 2015. At some
point, he, Mr. Hopper, Lucas Holland, and Randall Riley be-
gan an arrangement in which the four of them pooled their
money together to purchase methamphetamine from a
source in Cape Girardeau, Missouri. Sometimes, Weir gave
Mr. Hopper his money, and Mr. Hopper drove to Murphys-
boro, where he gave Weir’s and his money to Riley to pur-
19 Id. at 64.
20 Id. at 89.
21 Id. at 90.
No. 18-2576 9
chase the drugs. Other times, Mr. Hopper gave Weir his
money, and Weir delivered the money to Riley. Still other
times, Weir and Mr. Hopper visited Riley together. After Ri-
ley obtained the drugs from Cape Girardeau, the group di-
vided the methamphetamine into equal, one-ounce shares.
Weir stated that he paid about $800 to $900 per ounce of
methamphetamine. This arrangement lasted about a month,
during which the group obtained methamphetamine two to
three times per week.
In March 2016, police arrested Riley. Weir and Mr. Hop-
per then arranged to pool their money with Holland to pur-
chase methamphetamine. Holland took their money and ran,
and they never got their drugs. Additionally, Weir acknowl-
edged that he had personally observed Mr. Hopper distrib-
ute methamphetamine to other individuals.
Lucas Holland testified that, at the beginning of 2016, he
had been living at Riley’s house for about four or five
months. Holland confirmed the details of the pooling ar-
rangement he engaged in with Mr. Hopper, Riley, and Weir
to purchase methamphetamine from a source in Cape
Girardeau. He reiterated that Mr. Hopper or Weir, or some-
times the two together, came to Riley’s house to deliver their
money. Holland and Riley then drove to Cape Girardeau to
obtain the methamphetamine. When Holland and Riley re-
turned to Illinois, the group of four split up the drugs. Ac-
cording to Holland, this arrangement lasted from about De-
cember 2015 to February 2016.
Holland testified that, on one occasion, he traveled to
Cape Girardeau with Riley, Mr. Hopper, and Erin Wright,
Mr. Hopper’s girlfriend, for a drug deal that Mr. Hopper
had arranged. The group pooled their money, and Mr. Hop-
10 No. 18-2576
per gave it to an individual in Cape Girardeau. In addition,
Holland confirmed that a few days after police arrested Ri-
ley, Mr. Hopper and Weir gave him money to purchase
drugs. He acknowledged that he “ran off with it.”22 Holland
also testified that he had observed Mr. Hopper sell metham-
phetamine to individuals, including Kevin Shuman, at his
home in Creal Springs.
Randall Riley testified that he met Mr. Hopper around
the end of 2015 or early 2016 through a mutual acquaintance
when Mr. Hopper was seeking methamphetamine. Riley
confirmed that eventually, he, Mr. Hopper, Holland, and
Weir began a pooling arrangement in which they combined
their money to purchase methamphetamine from a source in
Cape Girardeau. According to Riley, the group bought four
ounces of methamphetamine every day and split the drugs
between the four of them. Either Mr. Hopper, Weir, or both
came to Riley’s home with $2,200 for Mr. Hopper and Weir’s
shares. Riley and Holland drove to Missouri to obtain the
drugs. When they returned, they met either at Riley’s home
or at Mr. Hopper’s residence in Creal Springs to divide up
the drugs.
Riley confirmed that on one occasion, his source was un-
available, so Mr. Hopper arranged a transaction with his
own source. He, Riley, Holland, and Wright drove to Cape
Girardeau, where Mr. Hopper gave the source the money
they had pooled together.
Blake Gordon testified that he met Mr. Hopper through
Weir. According to Gordon, he sold methamphetamine to
22 R.122 (Trial Tr. Day 2) at 54.
No. 18-2576 11
Mr. Hopper “more than ten times.”23 On such occasions, he
provided Mr. Hopper methamphetamine in amounts rang-
ing from one to fourteen grams. He also stated that “on nu-
merous occasions,” he drove Mr. Hopper around the south-
ern Illinois area to deliver drugs to his customers.24 Gordon
described one occasion in which he, Mr. Hopper, and Weir
pooled their money together. Weir drove to Cape Girardeau
to obtain the methamphetamine, which they divided among
the three of them when he returned to Illinois.
Crystal Boulton testified that in March 2016, she and her
children were living at Riley’s home with Riley, her boy-
friend, as well as Holland and his girlfriend. She stated that
she personally observed Mr. Hopper obtain methampheta-
mine from Riley at Riley’s residence about four or five times.
On such occasions, Mr. Hopper paid Riley for the metham-
phetamine and Riley gave Boulton the money to count. She
counted about $1,000 to $1,200 per ounce of methampheta-
mine. Boulton also overheard discussions between Riley and
Mr. Hopper about pooling their money together and making
trips to Cape Girardeau to obtain methamphetamine.
Erin Wright testified that she met Mr. Hopper in Sep-
tember 2015 and moved in with him at his home in Creal
Springs soon after. She confirmed that Mr. Hopper and Weir
went to Riley’s house to get drugs. Usually, Mr. Hopper re-
turned with an ounce of methamphetamine. She stated that
Mr. Hopper had scales at his Creal Springs home, which he
used to weigh drugs. She further testified that, sometimes,
23 Id. at 123.
24 Id.
12 No. 18-2576
Riley and Holland came to the Creal Springs home to do
business with Mr. Hopper. She described one occasion on
which she and Mr. Hopper went to Kansas City, Missouri,
where Mr. Hopper and an individual named Jason Clapp
obtained methamphetamine. Wright stated that there were
also a few times when Clapp came to the Creal Springs resi-
dence to provide Mr. Hopper with methamphetamine.
William Craig testified that he knew Mr. Hopper through
Weir. He bought methamphetamine from Mr. Hopper about
ten or fifteen times. On such occasions, he obtained meth-
amphetamine in quantities up to eight ounces. When Craig
obtained the methamphetamine for himself, Mr. Hopper
would not charge him. When Craig purchased the metham-
phetamine to deliver to others, he paid Mr. Hopper in cash.
Craig stated that on one occasion, after Mr. Hopper and
Weir pooled their money together, Craig drove with Weir to
Charleston, Missouri, to purchase methamphetamine. They
returned to Mr. Hopper’s home, where Mr. Hopper and
Weir divided the drugs. Craig also confirmed that he had
seen Mr. Hopper sell methamphetamine at his home to Kev-
in Page and to Andy Karnes on multiple occasions.
Kevin Shuman testified that he had known Mr. Hopper
for years. He moved in with Mr. Hopper at his Creal Springs
home and lived there in December 2015 and January 2016.
Initially, he obtained “small amounts” of methamphetamine,
ranging from “seven grams to an 8-ball,” from Mr. Hopper.25
Shuman bought the drugs “on a front,” explaining that he
sold drugs in order to repay Mr. Hopper for previously pur-
25 R.123 (Trial Tr. Day 3) at 26.
No. 18-2576 13
chased quantities of methamphetamine.26 He recalled two
occasions on which he drove Mr. Hopper to Jackson, Mis-
souri, to obtain methamphetamine. When they returned
home, Mr. Hopper gave Shuman drugs in return for driving.
After a brief term in jail in early 2016, Shuman returned,
and the quantities he bought from Mr. Hopper increased
from grams to ounces of methamphetamine. The two had an
arrangement in which Mr. Hopper placed methampheta-
mine for Shuman in the garage. Shuman, who was no longer
living with Mr. Hopper, retrieved the drugs from the garage
and left in their place the money he owed Mr. Hopper for
previously fronted methamphetamine. Shuman further testi-
fied that he drove Mr. Hopper around southern Illinois to
deliver methamphetamine to his customers.
D.
At the close of the Government’s case in chief, counsel for
Mr. Hopper moved for a judgment of acquittal under Feder-
al Rule of Criminal Procedure 29, which the court denied.
Mr. Hopper elected not to testify, and the defense rested its
case. Following jury instructions and closing arguments, the
jury retired to deliberate. Approximately an hour later, the
court received a note from the jury stating, “Pages 17 + 21
are confusing us as to the definition of ‘conspiracy.’”27 Page
17 of the jury instructions stated that:
A conspiracy is an express or implied
agreement between two or more persons to
26 Id.
27 R.72 at 1 (capitalization omitted).
14 No. 18-2576
commit a crime. A conspiracy may be proven
even if its goal was not accomplished.
In deciding whether the charged conspiracy
existed, you may consider all of the circum-
stances, including the words and acts of each
of the alleged participants.[28]
Page 21 of the jury instructions stated that:
A conspiracy requires more than just a
buyer-seller relationship between the defend-
ant and another person. In addition, a buyer
and seller of a mixture and substance contain-
ing methamphetamine do not enter into a con-
spiracy to distribute a mixture and substance
containing methamphetamine simply because
the buyer resells the [] mixture and substance
containing methamphetamine to others, even if
the seller knows that the buyer intends to resell
the [] mixture and substance containing meth-
amphetamine.
To establish that a seller knowingly became
a member of a conspiracy with a buyer to dis-
tribute a mixture and substance containing
methamphetamine, the government must
prove that the buyer and seller had the joint
criminal objective of distributing a mixture and
28 R.74 at 17.
No. 18-2576 15
substance containing methamphetamine to
others.[29]
After conferring with the parties, the court responded to
the jury, “All instructions should be read together. I cannot
give you any more instruction other than what you have
been given.”30 Following further deliberations, the jury
reached a verdict, finding Mr. Hopper guilty of conspiracy
to distribute methamphetamine, as charged in the indict-
ment. The jury returned a special verdict form finding that
the conspiracy involved an amount of 50 grams or more.
E.
Prior to Mr. Hopper’s sentencing, the probation office
prepared a PSR. To determine the scope of his relevant con-
duct, the probation office interviewed several witnesses with
knowledge of the conspiracy. Based on these interviews, the
initial PSR determined that Mr. Hopper had a base offense
level of 36, which corresponds to offenses involving “at least
1.5 kilograms but less than 4.5 kilograms of ice.”31 Specifical-
ly, according to the PSR, the conspiracy involved 1.968 kilo-
grams of ice methamphetamine.
To calculate Mr. Hopper’s relevant conduct, the PSR to-
taled the drug amounts described in four separate inter-
views with other participants in the conspiracy. In particu-
lar:
On August 24, 2016, Lucas Holland participat-
29 Id. at 21.
30 R.72 at 1.
31 R.81 ¶ 28.
16 No. 18-2576
ed in an interview with investigating agents.
Holland divulged that he received four ounces
of ice every day for a month from Randall Ri-
ley; of the four ounces, he would give the de-
fendant one ounce on each occasion. (30 ounc-
es = 850 grams)[32]
On February 14, 2017, Randall Riley was inter-
viewed by investigating agents. Riley stated
that from January through March, he sold one
ounce of ice every day to the defendant for
$1,100. (28 days [February] x 28.35 grams = 793
grams) [33]
On May 4, 2017, Erin Wright participated in an
interview with agents. … Wright stated she
traveled with Hopper on ten occasions to pick
up ice from Gary Mims in Cape Girardeau. She
stated on average, they would obtain an ounce
of ice per visit (10 ounces or 283.5 grams of
ice). [34]
On July 19, 2017, Erin Wright was inter-
view[ed] by investigating agents. According to
Wright, the defendant purchased ice from
Robert Weir from October or November 2015
until Weir was arrested in March 2016. Wright
estimated that the defendant would purchase
32 Id. ¶ 12.
33 Id. ¶ 14.
34 Id. ¶ 19.
No. 18-2576 17
3.5 grams to 28 grams per week, conservative-
ly. (12 weeks [December—February] x 3.5
grams = 42 grams)[35]
The PSR explained that Mr. Hopper’s “relevant conduct is
outlined in bold above and involves the amounts obtained
by the defendant, which he then distributed to others.”36
Further, the PSR noted that “[t]he amount of ice that the de-
fendant distributed was not counted to avoid double count-
ing.”37 Adding the drug amounts described above, the PSR
totaled Mr. Hopper’s relevant conduct to be 1.968 kilograms
of ice methamphetamine.
The initial PSR awarded Mr. Hopper a two-level sentence
reduction for acceptance of responsibility. Based on a total
offense level of 34 and a criminal history category of I, the
PSR calculated a guidelines imprisonment range of 151 to
188 months. Mr. Hopper filed an objection to the initial PSR,
challenging the sentence reduction for acceptance of respon-
sibility.38 He asserted that he had “neither denied, nor ad-
mitted, any … involvement” in the conspiracy.39 He also
35 Id. ¶ 20.
36 Id. ¶ 21.
37 Id.
38 Mr. Hopper’s trial counsel acknowledged that this objection was high-
ly unusual. See R.82 at 1 (“This marks the first instance in Undersigned
Counsel’s career in which he levels an objection on behalf of a client that
operates to raise the applicable advisory guidelines range. Thus, it
should be noted that this objection is filed with Defendant Rex Hopper’s
consent and at his direction.”).
39 Id.
18 No. 18-2576
stated that he “underst[ood] that this objection [would]
doom any opportunity he might have at the two-level [ac-
ceptance of responsibility] reduction.”40 He submitted that,
as a result, his total offense level was 36 and the proper
guidelines range was 188 to 235 months’ imprisonment.
Consequently, the probation office filed a revised PSR,
which removed the acceptance of responsibility reduction.
Based on a total offense level of 36 and a criminal history
category of I, the revised PSR calculated a guidelines impris-
onment range of 188 to 235 months. The Government filed
an objection to the revised PSR, contending that Mr. Hopper
was subject to a two-level sentence enhancement for main-
taining a residence for the purpose of distributing metham-
phetamine. See U.S.S.G. § 2D1.1(b)(12).
Accordingly, the probation office filed a second revised
PSR, adopting the Government’s recommendation that
Mr. Hopper was subject to the two-level sentence enhance-
ment for maintaining a drug premises. Based on a total of-
fense level of 38 and a criminal history category of I, the sec-
ond revised PSR calculated a guidelines imprisonment range
of 235 to 293 months. Mr. Hopper filed an objection to the
second revised PSR, challenging the application of the drug
premises enhancement. He maintained that, consistent with
the first revised PSR, his total offense level was 36 and his
guidelines imprisonment range was 188 to 235 months.
The district court conducted a hearing to impose its sen-
tence. At the outset, the court asked whether there were any
objections to the PSR other than Mr. Hopper’s challenge to
40 Id.
No. 18-2576 19
the application of the drug premises enhancement. Both sets
of counsel stated that there were not. The court then turned
to the sentence enhancement.
The Government introduced additional testimony from
Wright, Mr. Hopper’s former girlfriend. She testified that
she had lived with Mr. Hopper at his Creal Springs home
from about October 2015 until May 2017. She acknowledged
that, during this time, she saw methamphetamine at the res-
idence. She elaborated that “[i]t was always there” and that
she saw drugs in the home “[p]retty much every day.”41
Wright testified that after Mr. Hopper obtained metham-
phetamine from others, he brought it back to the Creal
Springs house. She further stated that she saw Mr. Hopper
distribute methamphetamine from the residence. She said
that this occurred “[t]hroughout the week” and that “each
week there was some sort of activity going on” involving
methamphetamine.42 Wright acknowledged that Mr. Hopper
collected money from individuals who bought methamphet-
amine at his home. She testified that he had drug scales at
the house, which he used “[t]o weigh out the product.”43 She
estimated that, while she lived with him, Mr. Hopper dis-
tributed methamphetamine from his residence approximate-
ly “[w]eekly.”44 She added, however, that toward the end of
41 R.125 at 8.
42 Id. at 9.
43 Id.
44 Id. at 10.
20 No. 18-2576
their time living together, Mr. Hopper’s drug selling dimin-
ished and he was “just using.”45
The court inquired what Mr. Hopper did for a living.
Wright explained that Mr. Hopper had received a monetary
settlement after working in the coal mines. Subsequently, he
had a “side business” buying and selling cars, and he dealt
drugs.46 Wright acknowledged that Mr. Hopper did not “of-
ficially work.”47
Based on the testimony introduced at trial and at sentenc-
ing, the court concluded that Mr. Hopper stored metham-
phetamine at and distributed it from the Creal Springs resi-
dence. Given Wright’s testimony that this occurred weekly
over an extended period of time, the court determined that
the distribution was “more than just incidental or collat-
eral.”48 Accordingly, the court overruled Mr. Hopper’s objec-
tion and concluded that he was subject to the two-level en-
hancement for maintaining a residence for the purpose of
distributing methamphetamine.
Noting that there were no other objections, the court
adopted the findings of the PSR as the findings of the court.
This included the finding that the conspiracy involved be-
tween 1.5 and 4.5 kilograms of ice methamphetamine, specif-
ically 1.968 kilograms, which corresponded to a base offense
level of 36. Given its conclusion regarding the two-level
45 Id. at 24.
46 Id. at 32.
47 Id.
48 Id. at 41.
No. 18-2576 21
drug premises enhancement, the court determined that
Mr. Hopper had a total offense level of 38. With a criminal
history category of I, the court concluded that his corre-
sponding guidelines imprisonment range was 235 to 293
months.
Neither party objected to the court’s guideline range
findings. The Government recommended a sentence near or
at the top of the guidelines range, while counsel for
Mr. Hopper recommended a sentence of 188 months. Based
on the information in the PSR, the factors set forth in 18
U.S.C. § 3553(a), and the arguments of Mr. Hopper’s counsel,
the court sentenced Mr. Hopper at the bottom of the guide-
lines range to 235 months’ imprisonment, followed by four
years of supervised release. At the conclusion of the hearing,
the court asked defense counsel, “Are there any other argu-
ments I have not considered?”49 Counsel for Mr. Hopper re-
sponded that there were not. Following the entry of final
judgment, Mr. Hopper filed a timely notice of appeal.
II.
DISCUSSION
Mr. Hopper raises four arguments on appeal. First, he as-
serts that the evidence presented at trial was insufficient to
support his conviction for conspiracy to distribute metham-
phetamine and that, even if the Government established the
existence of multiple, smaller conspiracies, there was a fatal
variance between the single, overarching conspiracy alleged
in the indictment and the Government’s proof at trial. Sec-
49 Id. at 59.
22 No. 18-2576
ond, he contends that the district court erred when it denied
his motion for disclosure of the cooperating witnesses’ prof-
fer letters. Third, he challenges the district court’s applica-
tion of a two-level sentence enhancement for maintaining a
drug premises. Finally, he submits that the district court
erred in calculating his guidelines range because, in deter-
mining Mr. Hopper’s relevant conduct, it double-counted
the drug transactions described by Holland and Riley.
A.
1.
We begin with Mr. Hopper’s attack on the sufficiency of
the evidence. United States v. Douglas, 874 F.2d 1145, 1150
(7th Cir. 1989), abrogated on other grounds by United States v.
Durrive, 902 F.2d 1221 (7th Cir. 1990).50 He contends that
there was insufficient evidence to support his conviction for
conspiracy to distribute methamphetamine because the
Government proved only a series of buyer-seller relation-
ships. He preserved this argument by moving for a judg-
ment of acquittal at the close of all evidence, so we review
50 In United States v. Douglas, 874 F.2d 1145 (7th Cir. 1989), abrogated on
other grounds by United States v. Durrive, 902 F.2d 1221 (7th Cir. 1990), we
adopted a “policy” of “routinely addressing evidentiary sufficiency in
criminal cases when a defendant presents the issue on appeal.” Id. at
1150. We reasoned that “[i]f in fact insufficient evidence is presented at a
first trial, a retrial, on any basis, ordinarily may be a wasted endeavor.”
Id. By contrast, if we find “that the evidence is sufficient to sustain a con-
viction, but reverse based on trial error, a retrial” is proper. Id. Accord-
ingly, to conserve the “scarce and costly resources” of the courts and the
parties, we address a challenge to the sufficiency of the evidence first. Id.
No. 18-2576 23
his claim de novo. United States v. Claybrooks, 729 F.3d 699,
704 (7th Cir. 2013).
A defendant’s burden in showing the evidence was in-
sufficient to support a conviction is indeed a high one. See
United States v. Rollins, 544 F.3d 820, 835 (7th Cir. 2008). In
attempting to describe that burden, we often have said that
the burden is a direct function of the strength of the Gov-
ernment’s case. See United States v. Garcia, 919 F.3d 489, 496–
97 (7th Cir. 2019); United States v. Jones, 713 F.3d 336, 339 (7th
Cir. 2013). Because “[w]e accord great deference to jury ver-
dicts,” United States v. Brown, 726 F.3d 993, 1004–05 (7th Cir.
2013) (internal quotation marks omitted), “[w]e will over-
turn a conviction on sufficiency-of-the-evidence grounds on-
ly 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). “In making this de-
termination, we view all evidence and draw all reasonable
inferences in the light most favorable to the prosecution.” Id.
See Jackson v. Virginia, 443 U.S. 307, 319 (1979), superseded on
other grounds by statute, Antiterrorism and Effective Death
Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (stat-
ing standard of proof in criminal cases). Cf. Anderson v. Liber-
ty Lobby, Inc., 477 U.S. 242, 252–53 (1986) (comparing meth-
odology in adjudicating a motion for judgment of acquittal
in a criminal case with a motion for summary judgment in a
civil case).
“To convict a defendant of conspiracy, the government
must prove that (1) two or more people agreed to commit an
unlawful act, and (2) the defendant knowingly and inten-
tionally joined in the agreement.” Johnson, 592 F.3d at 754.
“For a drug-distribution conspiracy, the government must
24 No. 18-2576
prove that the defendant knowingly agreed—either implicit-
ly or explicitly—with someone else to distribute drugs.”
Claybrooks, 729 F.3d at 704 (internal quotation marks omit-
ted).
Our cases “have underscored that ordinary drug transac-
tions do not entail or reflect a conspiracy, for the buyer’s on-
ly purpose is to buy and the seller’s only purpose is to sell:
the buyer and seller lack a shared criminal goal.” United
States v. Neal, 907 F.3d 511, 515 (7th Cir. 2018) (per curiam).
In other words, “evidence of a buyer-seller relationship,
standing alone, is insufficient to support a conspiracy con-
viction.” United States v. Townsend, 924 F.2d 1385, 1394 (7th
Cir. 1991). Instead, we require “[e]vidence of an agreement
to advance further distribution—beyond the initial transac-
tion.” United States v. Pulgar, 789 F.3d 807, 812 (7th Cir. 2015).
“The government may prove the existence of this agreement
through circumstantial evidence.” Claybrooks, 729 F.3d at
704–05.
A “nonexhaustive list of characteristics that strongly dis-
tinguish a conspiracy from a buyer-seller relationship” in-
cludes:
“sales on credit or consignment, an agreement
to look for other customers, a payment of
commission on sales, an indication that one
party advised the other on the conduct of the
other’s business, or an agreement to warn of
future threats to each other’s business stem-
ming from competitors or law enforcement au-
thorities.”
No. 18-2576 25
United States v. Pereira, 783 F.3d 700, 704 (7th Cir. 2015)
(quoting Johnson, 592 F.3d at 755–56). “We employ a totali-
ty-of-the-circumstances approach in these cases,” “‘tak[ing]
into account all the evidence surrounding the alleged con-
spiracy and mak[ing] a holistic assessment of whether the
jury reached a reasonable verdict.’” Pulgar, 789 F.3d at 813
(quoting Brown, 726 F.3d at 1002).
In this case, the Government presented sufficient evi-
dence for a reasonable jury to conclude that Mr. Hopper en-
tered an agreement to distribute methamphetamine in
southern Illinois. Our conclusion is supported by evidence
that Mr. Hopper sold methamphetamine on credit, or
“fronted” it, to his co-conspirators and that he engaged in
pooling arrangements with other co-conspirators to pur-
chase large quantities of methamphetamine for further dis-
tribution.
Evidence of repeated, “fronted” transactions can be com-
pelling circumstantial evidence of an agreement to distribute
drugs because it demonstrates that the defendant “had
knowingly thrown his lot in” with other members of the
conspiracy. United States v. Dortch, 5 F.3d 1056, 1070 (7th Cir.
1993) (internal quotation marks omitted). In a fronting ar-
rangement, “the seller becomes the buyer’s creditor, adding
a dimension to the relationship that goes beyond a spot sale
for cash.” United States v. Colon, 549 F.3d 565, 569 (7th Cir.
2008). Such a relationship indicates that the defendant “had
a keen interest” in his co-conspirators’ “success at reselling”
the drugs. Dortch, 5 F.3d at 1070. Although “not all credit
sales can support an inference that there was an agreement
to distribute,” “when a credit sale is coupled with certain
characteristics inherent in an ongoing wholesale buyer-seller
26 No. 18-2576
relationship—i.e., large quantities of drugs, repeat purchas-
es[,] or some other enduring arrangement—the credit sale
becomes sufficient evidence to distinguish a conspiracy from
a nonconspiratorial buyer-seller relationship.” Johnson, 592
F.3d at 756 n.5 (internal quotation marks omitted).
At Mr. Hopper’s trial, the Government presented evi-
dence that he fronted methamphetamine to Williams, Shu-
man, and Karnes. Williams testified that he obtained about
one to two ounces of ice methamphetamine from Mr. Hop-
per “[o]ff and on” for about one year.51 He stated that some-
times, he bought the drugs outright, while other times,
Mr. Hopper provided the drugs to him “on credit,” or on a
“front.”52 Williams explained that, in this fronting arrange-
ment, Mr. Hopper provided him a quantity of drugs, some
of which Williams sold to others in order to pay Mr. Hopper
back for previously fronted drugs. Williams further testified
that occasionally, Mr. Hopper called Williams and asked
him to bring customers who owed Mr. Hopper money to
Mr. Hopper’s house to settle their debt. Williams explained
that he helped Mr. Hopper collect money from his customers
because Williams “was selling drugs for him” and “to help
him out in his drug business.”53
Shuman also testified that he bought drugs from
Mr. Hopper “on a front.”54 In early 2016, the quantities he
51 R.118 at 59.
52 Id. at 61 (internal quotation marks omitted).
53 Id. at 64.
54 R.123 at 26.
No. 18-2576 27
purchased increased from grams to ounces of methamphet-
amine. The two had an arrangement in which Mr. Hopper
placed methamphetamine for Shuman in Mr. Hopper’s gar-
age. Shuman retrieved the drugs from the garage and left in
their place the money he owed Mr. Hopper for previously
fronted methamphetamine. Shuman further testified that he
drove Mr. Hopper around southern Illinois to deliver meth-
amphetamine to his customers. He also described two occa-
sions on which he drove Mr. Hopper to Jackson, Missouri, to
obtain methamphetamine. When they returned home,
Mr. Hopper gave Shuman drugs in return for driving.
Similarly, Peyton testified that Karnes, her former boy-
friend, obtained methamphetamine from Mr. Hopper “[o]n a
front,” in which he would sell drugs to others in order to
pay Mr. Hopper back for the drugs he had previously ob-
tained.55 She stated that during the summer of 2016,
Mr. Hopper provided Karnes three to five “8-balls,” or 3.5
gram quantities of ice methamphetamine, several times a
week.56 She added that on occasion, Mr. Hopper sent Wil-
liams to deliver drugs to Karnes.
These fronting arrangements are “substantial evidence”
that Mr. Hopper “expected and encouraged” Williams,
Shuman, and Karnes “to redistribute the drugs he had pro-
vided.” United States v. Avila, 557 F.3d 809, 816 (7th Cir.
2009). Because Mr. Hopper expected to be repaid based on
sales of previously fronted methamphetamine, “he was de-
pendent upon the further resale of the drugs to make a prof-
55 R.118 at 90.
56 Id. at 89.
28 No. 18-2576
it.” Id.; see also United States v. Kozinski, 16 F.3d 795, 808–09
(7th Cir. 1994) (reasoning that evidence that co-conspirator
sold cocaine to the defendant “on credit” indicated that he
“took a stake in her business—he received payment after,
and as a result of, her resale”). Mr. Hopper also “demon-
strated a high level of trust and confidence in” Shuman, Wil-
liams, and Karnes, given that he provided them “with large
quantities of drugs without requiring any payment until the
drugs were resold.” Avila, 557 F.3d at 816.57
That Mr. Hopper “fronted” methamphetamine to Wil-
liams, Shuman, and Karnes repeatedly, in large quantities,
over an extended period of time makes clear that these activ-
ities were more than mere buyer-seller relationships. See
Brown, 726 F.3d at 1006 (permitting “an inference of conspir-
acy” based on evidence of “repeated transactions, in whole-
sale quantities, on credit”). These “factors suggest standard-
ized transactions and lower transaction costs in the business
as well as a continuing relationship.” Kozinski, 16 F.3d at 809;
see also Dortch, 5 F.3d at 1070 (reasoning that evidence of
“multiple transactions over a prolonged period of time”
suggested “that transaction costs … were quite low, which
counsels a finding of conspiracy”). Evidence that Williams
and Shuman drove Mr. Hopper around southern Illinois to
deliver drugs to his customers and that Mr. Hopper sent
Williams to deliver drugs on his own or to pick up custom-
ers who owed Mr. Hopper money reinforces that these rela-
57Cf. United States v. Colon, 549 F.3d 565, 569 (7th Cir. 2008) (noting “[t]he
mutual trust in this case was less than it would have been had [a
co-conspirator] ‘fronted’ cocaine to the defendant (a factor mentioned in
almost all the cases) rather than being paid in cash at the time of sale”).
No. 18-2576 29
tionships were in furtherance of Mr. Hopper’s distribution of
drugs. Based on this evidence, a jury could rationally con-
clude that Mr. Hopper conspired to distribute methamphet-
amine. See Pereira, 783 F.3d at 704–05.
The Government also presented considerable testimony
establishing that Mr. Hopper pooled his resources with other
members of the conspiracy to obtain methamphetamine at a
reduced cost from out-of-state sources. This is circumstantial
evidence of an agreement to distribute drugs because, by
“put[ting] their money and transportation resources together
for an extended period of time,” the co-conspirators “there-
by ha[d] a stake in each other’s success, and kn[ew] that the
others intended to resell” the drugs. United States v. Harris,
567 F.3d 846, 851 (7th Cir. 2009) (citation omitted); see also
United States v. Lomax, 816 F.3d 468, 475 (7th Cir. 2016) (hold-
ing that “[a] reasonable jury could have found that the
shared supplier, funds, and product indicated an agree-
ment” to sell drugs). Based on such evidence, we upheld the
defendant’s conspiracy conviction in United States v. Hay-
wood, 324 F.3d 514 (7th Cir. 2003), reasoning that:
[I]n driving to Chicago together, then bringing
the drugs back … and splitting them up upon
their return, Haywood and Jackson had a
standardized way of doing business; they had
a continuing relationship, making three trips
together to Chicago and talking about making
one to Oklahoma; and they both knew that the
cocaine would be resold.
Id. at 517. Similarly, in Harris, we held that there was suffi-
cient evidence of a conspiracy to distribute drugs where the
defendant “pooled his money with that of … the other al-
30 No. 18-2576
leged co-conspirators to buy larger amounts of crack cocaine
from outside the state for resale.” 567 F.3d at 851.
In this case, Holland, Riley, and Weir testified that, to-
gether with Mr. Hopper, they pooled their money and
transportation resources over approximately a month-long
period to purchase methamphetamine from a source in Cape
Girardeau, Missouri. Mr. Hopper, Weir, or both brought the
money to Riley’s home, where Holland also lived. Holland
and Riley drove to Missouri to obtain the drugs. When they
returned, the group met at either Riley’s home or Mr. Hop-
per’s home to divide up the drugs. The group pooled their
money multiple times per week to purchase four ounces of
methamphetamine at a time, which they divided into equal,
one-ounce shares upon return to Illinois.
Evidence that Mr. Hopper pooled funds, shared suppli-
ers, and coordinated transport out of state with Holland, Ri-
ley, and Weir, underscored a common goal between them to
distribute methamphetamine.58 That this pooling arrange-
ment involved multiple transactions per week over an ex-
58 United States v. Lomax, 816 F.3d 468, 474 (7th Cir. 2016) (upholding
conspiracy conviction based on testimony that Lomax and his
co-conspirator “shared customers, a supplier, and heroin, and pooled
funds”); United States v. Harris, 567 F.3d 846, 851 (7th Cir. 2009) (reason-
ing that evidence that the co-conspirators “pooled their money and
shared rides to buy cheaper crack” from outside the state “mean[t] that
each could earn more if the others succeeded”); United States v. Haywood,
324 F.3d 514, 517 (7th Cir. 2003) (affirming conspiracy conviction where
Haywood and his co-conspirator “pooled their money and shared rides
to Chicago in order to buy inexpensive crack, meaning that each could
run a cheaper operation—and earn higher profits—if the other succeed-
ed”).
No. 18-2576 31
tended period of time reinforces the conclusion that
Mr. Hopper had entered an agreement to distribute drugs in
southern Illinois. Thus, the jury had ample evidence, based
on the “fronted” transactions and the pooling arrangement,
to convict Mr. Hopper of conspiring to distribute metham-
phetamine.
2.
Mr. Hopper also submits that even if the Government
presented some evidence of conspiracy, we must vacate his
conviction “because of the variance between the indictment
(alleging a single, overarching conspiracy) and the proof at
trial (showing, at most, smaller sub-conspiracies), which
prejudiced Mr. Hopper.”59 We conclude that there was no
fatal variance in this case.
At the close of all evidence, Mr. Hopper’s trial counsel
moved for a judgment of acquittal under Federal Rule of
Criminal Procedure 29. Rule 29 requires the court to “enter a
judgment of acquittal of any offense for which the evidence
is insufficient to sustain a conviction.” Mr. Hopper’s counsel
did not articulate the grounds for his motion and, in denying
the motion, the district court ruled only that the Government
had presented sufficient evidence of the charge against
Mr. Hopper.60 Because Mr. Hopper’s counsel did not raise
the possibility of a fatal variance in the district court, that
court did not have the opportunity to address this claim.
59 Appellant’s Br. 17–18.
60 See R.123 at 55.
32 No. 18-2576
Therefore, we review his variance claim for plain error only.
United States v. Womack, 496 F.3d 791, 794 (7th Cir. 2007).61
“A variance arises when the facts proved by the govern-
ment at trial differ from those alleged in the indictment.”
Avila, 557 F.3d at 815 (quoting United States v. Stigler, 413
F.3d 588, 592 (7th Cir. 2005)). We treat a conspiracy variance
claim “as an attack on the sufficiency of the evidence.” Unit-
ed States v. Handlin, 366 F.3d 584, 589 (7th Cir. 2004). Alt-
hough we treat the question of variance as an attack on the
sufficiency of the evidence, a party must raise with specifici-
ty the issue of variance. A timely objection affords the dis-
trict court the opportunity to address the issue and under-
take curative steps. See United States v Pierson, 925 F.3d 913,
921–22 (7th Cir. 2019). To prevail on his claim, Mr. Hopper
must show both that (1) “no rational trier of fact could have
found that the evidence at trial proved a single conspiracy”
and (2) “the variance was prejudicial.” United States v.
DeKelaita, 875 F.3d 855, 858 (7th Cir. 2017). “Even if the evi-
dence arguably established multiple conspiracies, there is no
material variance from an indictment charging a single con-
spiracy if a reasonable trier of fact could have found beyond
a reasonable doubt the existence of the single conspiracy
charged in the indictment.” United States v. Williams, 272
F.3d 845, 862 (7th Cir. 2001).
Mr. Hopper contends that there was a variance between
the Government’s proof at trial and the conspiracy alleged in
61Like the defendant in United States v. Womack, 496 F.3d 791, 795 (7th
Cir. 2007), Mr. Holmes did not ask for a jury instruction on multiple con-
spiracies.
No. 18-2576 33
the indictment because the Government “failed to tie togeth-
er the disparate purposes of Mr. Hopper’s alleged
co-conspirators” to demonstrate a single conspiracy.62 He
submits that this variance prejudiced him at trial and at sen-
tencing.
To evaluate Mr. Hopper’s variance claim, “we turn to the
indictment first and then to the proof at trial.” Id. at 863. The
indictment alleged that from about January 2015 through
May 31, 2017, in Williamson and Franklin Counties, in the
Southern District of Illinois, “and elsewhere,” Mr. Hopper
conspired “with other persons known and unknown” to dis-
tribute methamphetamine.63 As detailed above, at trial, the
Government presented substantial evidence that Mr. Hop-
per entered an agreement to distribute methamphetamine in
southern Illinois. It is sufficient that the purpose of the con-
spiracy “was simply to distribute narcotics,” and that “each
co-conspirator agreed to advance” that goal. United States v.
Martin, 618 F.3d 705, 736–37 (7th Cir. 2010). Based on the ev-
idence that Mr. Hopper “fronted” methamphetamine to Wil-
liams, Shuman, and Karnes for further distribution and that
he engaged in a pooling arrangement with Holland, Riley,
and Weir to obtain methamphetamine at a low cost for re-
sale, a rational jury could have found that Mr. Hopper joined
the single conspiracy alleged in the indictment. Because
“[t]he key to proving a conspiracy is that the defendant
joined [an] agreement, not [a] group,” Avila, 557 F.3d at 816,
any failure to identify the connection between Mr. Hopper’s
62 Appellant’s Br. 34.
63 R.32 at 1.
34 No. 18-2576
co-conspirators did not amount to a material variance. See,
e.g., Williams, 272 F.3d at 863 (concluding there was no mate-
rial variance where there was sufficient evidence “for the ju-
ry to conclude that a number of people had an agreement to
distribute drugs in East St. Louis, and that Williams joined
that agreement”).
In any event, Mr. Hopper suffered no prejudice as a re-
sult of the alleged variance. First, he contends that the vari-
ance prejudiced him at trial because his counsel “was unable
to adequately prepare his defense because the government
did not define the scope of the alleged conspiracy until clos-
ing arguments.”64 But “[i]t is the grand jury’s statement of
the existence of the conspiracy agreement rather than the
identity of those who agree which places the defendant on
notice of the charge he must be prepared to meet.” Townsend,
924 F.2d at 1389 (internal quotation marks omitted). The
Government’s evidence at trial demonstrated that Mr. Hop-
per joined others in an agreement to distribute methamphet-
amine in southern Illinois. Mr. Hopper had sufficient notice
of the charged conspiracy and the evidence presented at tri-
al.65
Next, Mr. Hopper submits that “[t]he indictment and the
government’s arguments at trial were so broad as to make it
64 Appellant’s Br. 36.
65 See,e.g., United States v. Hardimon, 329 F. App’x 660, 665 (7th Cir. 2009)
(unpublished) (determining that there was no variance and explaining
that “the indictment’s allegation of a conspiracy agreement alone was
sufficient notice of the charge that Hardimon needed to be prepared to
meet, and the indictment was not required to name all those who partic-
ipated in the conspiracy”).
No. 18-2576 35
impossible for Mr. Hopper to invoke his Fifth Amendment
right against double jeopardy” in a subsequent prosecu-
tion.66 He stresses that the record does not reveal the scope
of the conspiracy, his role in it, or “with whom the jury con-
victed him of conspiring.”67 If we uphold his conviction “on
the basis that some sub-conspiracy existed,” he posits, the
Government could indict him “for any other act within that
time frame even though he had already been found guilty by
the jury on the charged indictment.”68
We have held that, despite a variance between the in-
dictment and the proof at trial, we had “no difficulty in
judging the scope of the conviction for double jeopardy pur-
poses” where the indictment alleged a specific crime, “dur-
ing a finite interval,” “involved a particular perpetrator,”
and “alleged specific misconduct by the perpetrator.” United
States v. Ratliff-White, 493 F.3d 812, 822, 824 (7th Cir. 2007)
(upholding defendant’s mail fraud conviction because de-
fendant was not prejudiced by the variance between the in-
dictment, “which pinpointed a particular step in the pay-
ment process” of her alleged fraud, “and the proof at trial,
which established another”). In the same way, here, the in-
dictment alleged a specific crime (conspiracy to distribute
methamphetamine), during a finite interval (about January
2015 through about May 31, 2017), involving a particular
perpetrator (Mr. Hopper and “other persons known and un-
known”), and specific misconduct by the perpetrator (know-
66 Appellant’s Br. 38.
67 Id.
68 Id. at 38–39.
36 No. 18-2576
ingly conspiring to distribute a mixture and substance con-
taining methamphetamine).69 The scope of Mr. Hopper’s
conviction is sufficiently specific to avoid a future double
jeopardy problem.
He further contends that the alleged variance prejudiced
him at trial because the jury was confused about the instruc-
tions regarding the scope of the conspiracy. Evidence of
multiple conspiracies may pose “a danger of ‘spillover’ prej-
udice” where multiple defendants are tried together and the
jury hears incriminating evidence relevant against only
some, but not all, of the defendants. Townsend, 924 F.2d at
1411. Because Mr. Hopper was tried alone, however, this
concern was not implicated. See, e.g., United States v. Curtis,
37 F.3d 301, 306 (7th Cir. 1994) (holding that “there could be
no prejudice” where “Curtis was the only person on trial,
thus eliminating the customary concern with jury confusion
resulting from the ‘spillover’ effect associated with simulta-
neously trying multiple defendants with various connec-
tions to the purported scheme”).
Additionally, Mr. Hopper asserts that the variance preju-
diced him at sentencing because it “improperly increased the
quantity of drugs attributed to him.”70 As we have stated,
however, there was ample evidence to support Mr. Hopper’s
conspiracy conviction, including but not limited to the pool-
ing arrangement he participated in with Holland, Riley, and
Weir. Moreover, the PSR calculated Mr. Hopper’s relevant
conduct based on “the amounts obtained by the defendant,
69 R.32 at 1.
70 Appellant’s Br. 39.
No. 18-2576 37
which he then distributed to others.”71 Because the district
court did not sentence Mr. Hopper based on drug transac-
tions not related to the conspiracy in which he participated,
see Townsend, 924 F.2d at 1412 (determining there was no
prejudice where “none of the defendants [could] claim that
their sentences were increased on the basis of drug transac-
tions that were not attributable to the limited conspiracies in
which they participated”), or based on drug quantities sold
by his co-conspirators that were within the scope of the con-
spiracy, see Avila, 557 F.3d at 819 (concluding there was no
prejudice where the defendant’s sentence was based on
drugs he supplied to others, not “the quantities of drugs that
were seized from the entire drug organization”), he did not
suffer prejudice at sentencing.
B.
1.
Mr. Hopper next submits that the district court erred
when it ruled that the Government was not required to dis-
close the proffer letters of its cooperating witnesses. He as-
serts that the court erroneously “based its decision solely on
Brady[72] and Giglio,[73] and thus did not recognize” that Fed-
eral Rule of Criminal Procedure 16 “is an independent and
more expansive basis for disclosure of proffer letters.”74
Mr. Hopper’s trial counsel never filed a request under Rule
71 R.94 ¶ 21.
72 Brady v. Maryland, 373 U.S. 83 (1963).
73 Giglio v. United States, 405 U.S. 150 (1972).
74 Appellant’s Br. 14.
38 No. 18-2576
16 for disclosure of the proffer letters. Nor did counsel sug-
gest to the district court, during the hearing on his motion or
otherwise, that Rule 16 might be a basis for disclosure. That
counsel moved for disclosure of the proffer letters and ar-
gued that the court should disregard our decision in United
States v. Weidenburner, 550 F. App’x 298 (7th Cir. 2013) (un-
published), was not sufficient to preserve the instant argu-
ment under Rule 16.75 Because there is no evidence in the
record that Mr. Hopper intended to relinquish this argu-
ment, however, we conclude that he has forfeited, not
waived, his request for disclosure under Rule 16. United
States v. Brodie, 507 F.3d 527, 530 (7th Cir. 2007) (explaining
that “[f]orfeiture occurs when a defendant negligently fails
to assert a right in a timely fashion”).
Rule 16, which governs discovery and inspection, pro-
vides in relevant part that:
Upon a defendant’s request, the government
must permit the defendant to inspect and to
75 Cf. United States v. McMillian, 786 F.3d 630, 636 (7th Cir. 2015) (defend-
ant forfeited argument that his arrest was unlawful because his motion
to suppress challenged only the protective sweep of his home, not his
arrest); United States v. Kelly, 772 F.3d 1072, 1078 (7th Cir. 2014) (defend-
ant forfeited argument that the warrant application failed to establish
probable cause because his motion to suppress argued only that the war-
rant lacked sufficient particularity in the description of the place to be
searched); United States v. Murdock, 491 F.3d 694, 698 (7th Cir. 2007) (de-
fendant forfeited argument that his waiver of his Fifth Amendment
rights and subsequent confession were involuntary due to the coercive
conditions of his confinement because, in the district court, he argued
only that his confession was involuntary because the police did not ad-
minister Miranda warnings).
No. 18-2576 39
copy or photograph books, papers, documents,
data, photographs, tangible objects, buildings
or places, or copies or portions of any of these
items, if the item is within the government’s
possession, custody, or control and … the item
is material to preparing the defense.
Fed. R. Crim. P. 16(a)(1)(E).
Relatedly, Rule 12 provides that certain motions, includ-
ing a request for “discovery under Rule 16,” “must be raised
by pretrial motion if the basis for the motion is then reason-
ably available and the motion can be determined without a
trial on the merits.” Fed. R. Crim. P. 12(b)(3). Under this
Rule, “[t]he court may … set a deadline for the parties to
make pretrial motions,” and if no deadline is set, then “the
deadline is the start of trial.” Fed. R. Crim. P. 12(c)(1). “If a
party does not meet the deadline for making a Rule 12(b)(3)
motion, the motion is untimely.” Fed. R. Crim. P. 12(c)(3).
“But a court may consider the defense, objection, or request
if the party shows good cause.” Id.
Rule 12 thus “imposes an antecedent good-cause re-
quirement when a defendant fails to file a timely motion.”
United States v. McMillian, 786 F.3d 630, 636 (7th Cir. 2015). In
other words, “if a defendant fails to raise a[n] … argument
below—even if he does so under circumstances that suggest
a forfeiture—we cannot proceed directly to a review of the
district court’s actions for plain error.” United States v. Kelly,
772 F.3d 1072, 1079 (7th Cir. 2014). Instead, we first must ask
whether there was good cause for the failure. United States v.
Johnson, 415 F.3d 728, 730–31 (7th Cir. 2005).
40 No. 18-2576
Mr. Hopper offers no explanation for his trial counsel’s
failure to request disclosure of the proffer letters under Rule
16 or to otherwise assert Rule 16 as a basis for disclosure of
the letters before the district court. Further, his counsel made
no request for relief based on good cause before the district
court or in this court. Absent a showing of good cause as re-
quired by Rule 12, his claim is not subject to further review.
United States v. Daniels, 803 F.3d 335, 352 (7th Cir. 2015);
United States v. Hargrove, 508 F.3d 445, 450 (7th Cir. 2007).76
2.
Mr. Hopper further contends that “the district court
erred in presuming that proffer letters are never” required to
be disclosed under Brady v. Maryland, 373 U.S. 83 (1963), or
Giglio v. United States, 405 U.S. 150 (1972).77 We review the
district court’s determination that the proffer letters need not
be disclosed for an abuse of discretion. United States v. Jumah,
599 F.3d 799, 807 (7th Cir. 2010).
At the hearing on Mr. Hopper’s motion, the discussion
centered on our decision in Weidenburner, where we held
that proffer letters “are not Giglio material or Jencks Act[78]
statements.” 550 F. App’x at 304. In that case, the defendant
moved for a new trial based on the Government’s assertion
76 We note in passing that Mr. Hopper’s counsel had the information
contained in the proffer letters, even though he did not have the letters
themselves. He also was permitted to cross examine the witness about
the proffer process. His client therefore suffered no prejudice from the
absence of the letters.
77 Appellant’s Br. 16.
78 18 U.S.C. § 3500.
No. 18-2576 41
that it could not locate copies of the proffer letters for two
codefendants who testified against Weidenburner. Id. Nei-
ther witness disputed the existence of the proffer letters, and
Weidenburner received copies of both witnesses’ plea
agreements. Id. Consequently, we rejected Weidenburner’s
claim of nondisclosure as frivolous. Id. Acknowledging that
“Giglio requires disclosure of inducements for a witness[]’s
testimony,” we reasoned that “the prosecutor fulfilled that
obligation by producing the plea agreements, which de-
scribe[d] the benefits [the witnesses] would receive for coop-
erating.” Id. Because “[t]he proffer letters were preliminary
to the resulting plea agreements,” we concluded that “Giglio
was satisfied by disclosure of the plea agreements.” Id. Fur-
ther, we determined that “the Jencks Act [wa]s irrelevant”
because “[t]he proffer letters were statements of the prosecu-
tor who wrote them,” not “factual narrative[s] useful for im-
peachment.” Id. at 305 (internal quotation marks omitted).79
79 At least one of our sister circuits also has held that “the government
satisfied its obligations” by disclosing a cooperating witness’s plea
agreement to the defense. United States v. Santisteban, 501 F.3d 873, 880
(8th Cir. 2007). In Santisteban, the defendant alleged that the Govern-
ment’s non-disclosure of the proffer letters sent to a cooperating witness
“violated his due process right to receive exculpatory or impeachment
evidence.” Id. Because “the government had already provided [the wit-
ness]’s plea agreement,” the district court “declined to compel the pro-
duction” of the proffer letters. Id. The Eighth Circuit held that there was
no due process violation. Id. “Regardless of any preliminary proffer
agreements,” the court reasoned, “the formal plea agreement governed
[the witness]’s cooperation, and it provided the jury with a sufficient ba-
sis for judging the credibility of [his] testimony at trial.” Id. The court
concluded that “[t]he terms of the proffer letters were not material to the
defense.” Id.
42 No. 18-2576
In this case, the Government disclosed the cooperating
witnesses’ plea agreements, which superseded the proffer
letters and outlined the terms of the witnesses’ cooperation.
The agreements provided a sufficient basis for Mr. Hopper’s
counsel to impeach the Government’s witnesses and for the
jury to assess the credibility of those witnesses. Therefore,
the district court did not abuse its discretion when it denied
Mr. Hopper’s motion for disclosure of the proffer letters.
C.
Next, Mr. Hopper challenges the district court’s finding
that he was subject to a two-level sentence enhancement
based on evidence that he maintained his Creal Springs resi-
dence for the purpose of distributing methamphetamine.
Mr. Hopper preserved this challenge by filing an objection to
the application of the enhancement in the district court.
Therefore, “we review the district court’s application of the
U.S. Sentencing Guidelines de novo and its underlying factual
findings for clear error.” United States v. Flores-Olague, 717
F.3d 526, 530 (7th Cir. 2013).
The guidelines provide for a two-level sentence en-
hancement “[i]f the defendant maintained a premises for the
purpose of manufacturing or distributing a controlled sub-
stance.” U.S.S.G. § 2D1.1(b)(12). This includes “storage of a
controlled substance for the purpose of distribution.” Id.
cmt. n.17. The application notes clarify that
“[m]anufacturing or distributing a controlled substance need
not be the sole purpose for which the premises was main-
tained, but must be one of the defendant’s primary or prin-
cipal uses for the premises, rather than one of the defend-
ant’s incidental or collateral uses for the premises.” Id. Be-
cause it is undisputed that Mr. Hopper “maintained” the
No. 18-2576 43
Creal Springs house, which was his home, our review is lim-
ited to whether distributing methamphetamine was a “pri-
mary or principal” use of the home.
“[T]o determine whether drug distribution was a prima-
ry or incidental use, the district courts are not required to
apply a simple balancing test that compares the frequency of
unlawful activity at the residence with the frequency of law-
ful uses.” United States v. Contreras, 874 F.3d 280, 284 (7th Cir.
2017) (per curiam). That is because “such a test would im-
munize every family home that is also used for drug distri-
bution from being deemed an illegally maintained ‘premis-
es,’” since “the amount of lawful activity in a home is all but
certain to exceed the amount of illegal activity.” Id. Instead,
“the sentencing court should focus on both the frequency
and significance of the illicit activities.” Id. “Neither a specif-
ic frequency nor a particular significance automatically war-
rants applying the enhancement.” United States v. Sanchez,
710 F.3d 724, 731 (7th Cir. 2013), vacated on other grounds,
Sanchez v. United States, 571 U.S. 801 (2013). “Rather, we con-
sider the two in tandem and determine whether the prohib-
ited purpose can be fairly described as a ‘primary or princi-
pal’ use of the premises.” Id. Factors relevant to this analysis
include “quantities dealt, customer interactions, keeping
‘tools of the trade’ and business records, and accepting pay-
ment.” Contreras, 874 F.3d at 284.
First, with respect to frequency, Mr. Hopper contends
that Wright’s “vague and inconsistent testimony” at the sen-
tencing hearing “was not enough” to establish the frequent
use of his home to distribute drugs.80 He further asserts that
80 Appellant’s Br. 45.
44 No. 18-2576
“the district court failed to account for [his] affirmative deci-
sion to stop using his home for drug distribution several
months before the end of the charged conspiracy.”81 We con-
clude that these contentions are without merit.
Testimony introduced at Mr. Hopper’s trial and at the
sentencing hearing highlighted that he distributed metham-
phetamine from his home on approximately a weekly basis
for the duration of the conspiracy. Wright testified that she
had lived with Mr. Hopper at his Creal Springs home from
about October 2015 until May 2017. During this time, meth-
amphetamine “was always there” and she saw drugs in the
home “[p]retty much every day.”82 Wright estimated that,
while she lived with him, Mr. Hopper distributed metham-
phetamine from his residence approximately “[w]eekly.”83
She added, however, that toward the end of their time living
together, Mr. Hopper’s drug selling diminished and he was
“just using.”84
Similarly, Shuman testified that Mr. Hopper distributed
methamphetamine to him while Shuman was living at the
81 Id.
82 R.125 at 8.
83 Id. at 10.
84 Id. at 24:8–15 (“Q. Ms. Wright, did you also add that most of the meth
transactions that you were aware of occurred at Hopper’s brother’s
house, Mark Hopper? A. I’ve never—I didn’t say that like that. That’s
been taken out of context. I said that happened there, but everything was
done in Creal in the very beginning, and then he slacked off, and to-
wards the end of the relationship he was just using, he wasn’t selling
it.”).
No. 18-2576 45
Creal Springs home in December 2015 and January 2016. Af-
ter Shuman returned from jail in early 2016, the two had an
arrangement in which Mr. Hopper placed methampheta-
mine for Shuman in the garage. Shuman, who was no longer
living with Mr. Hopper, retrieved the drugs from the garage
and left the money he owed Mr. Hopper in their place. Mul-
tiple witnesses, including Craig, Holland, and Peyton, also
testified that they observed Mr. Hopper sell methampheta-
mine to other individuals at his home.
This evidence that Mr. Hopper stored drugs at his house
and regularly distributed methamphetamine to customers
there for the better part of 2016 confirms that he used the
house for the purpose of drug distribution with sufficient
frequency.85 That Mr. Hopper conducted distribution activi-
ties with less frequency toward the end of the conspiracy
does not undermine this conclusion.
Turning to the significance of the distribution activities,
Mr. Hopper submits that “[t]he scope of drug activity at [his]
85 See, e.g., United States v. Contreras, 874 F.3d 280, 284 (7th Cir. 2017)
(concluding that “evidence of eight transactions, most within a
two-month period, support[ed] the courts’ findings that significant deals
were occurring frequently enough for the home to be deemed, in es-
sence, a drug den for the purposes of § 2D1.1(b)(12)”); United States v.
Winfield, 846 F.3d 241, 243 (7th Cir. 2017) (per curiam) (upholding appli-
cation of enhancement based on evidence that “in the twelve weeks be-
fore the raid, [an] informant bought drugs from Winfield at his apart-
ment four times and spotted additional drugs and drug paraphernalia
during each transaction”); United States v. Flores-Olague, 717 F.3d 526, 533
(7th Cir. 2013) (holding that enhancement applied based on evidence that
the defendant “sold and stored drugs at his home” and “did so ‘on a dai-
ly basis’ over a three-year period”).
46 No. 18-2576
home was not significant enough to warrant the enhance-
ment.”86 Again, the testimony adduced at trial and at sen-
tencing amply demonstrated that Mr. Hopper carried on
significant aspects of his distribution business from his
home.
We have already observed that there was substantial tes-
timony that Mr. Hopper stored and distributed metham-
phetamine at his house.87 In this respect, Wright testified
that Mr. Hopper had drug scales at the Creal Springs home,
which he used “[t]o weigh out the product.”88 Further, we
consider evidence of financial transactions in the home to be
significant activity for the purpose of distributing drugs.89
Here, Williams testified that, when customers owed
Mr. Hopper money, Williams occasionally brought these in-
86 Appellant’s Br. 47.
87 See, e.g., Contreras, 874 F.3d at 284 (upholding application of enhance-
ment based on “evidence that drugs were shipped to and stored at Con-
treras’s home” and that “Contreras accepted payment for drugs at his
home”). We have also recognized that keeping “tools of the trade” on the
premises may indicate “that drug trafficking was the principal use of the
premises.” United States v. Thomas, 845 F.3d 824, 834 (7th Cir. 2017) (in-
ternal quotation marks omitted) (upholding application of enhancement
where a “search of the home yielded a digital scale, a cutting agent, and
plastic sandwich baggies with the corners cut out”).
88 R.125 at 9.
89 See United States v. Sanchez, 710 F.3d 724, 732 (7th Cir. 2013), vacated on
other grounds, Sanchez v. United States, 571 U.S. 801 (2013) (noting that “in
conducting this large drug trade, Sanchez used his residence not only for
the drop-off, storage, and pick-up of drugs, but also as a secure place to
settle the financials”), vacated on other grounds, Sanchez v. United States,
571 U.S. 801 (2013) .
No. 18-2576 47
dividuals to the house to settle their debt with Mr. Hopper.
Wright also acknowledged that Mr. Hopper collected money
from individuals who bought methamphetamine at his
home. Finally, testimony that the defendant’s “only regular
and reliable source of income stemmed from proceeds of
drug trafficking activities” is evidence that the distribution
of drugs from his home was significant to his livelihood.90
For this reason, it is meaningful that Wright testified that
Mr. Hopper had received money from a settlement and had
a “side business” buying and selling cars, but that he did not
“officially work.”91
In sum, we conclude that there was evidence of frequent,
significant drug distribution activities at Mr. Hopper’s
home. Therefore, the district court properly determined that
Mr. Hopper was subject to the sentence enhancement for
maintaining a drug premises.
D.
Finally, we turn to Mr. Hopper’s claim that the district
court erred in determining his guidelines range because it
adopted an incorrectly calculated relevant conduct finding
from the PSR. He contends that most of the relevant conduct
was based on drug amounts identified in interviews the
90 Flores-Olague, 717 F.3d at 533; see also Winfield, 846 F.3d at 243 (noting
that “Winfield at the time of his arrest was ‘primarily living off proceeds
from drug sales’”); Sanchez, 710 F.3d at 732 (reasoning that because
“Sanchez had no legitimate job and no source of income beyond his drug
sales,” “the illicit transactions occurring at the premises were signifi-
cant—in quantity, in scope, and in importance to Sanchez’s livelihood”).
91 R.125 at 32.
48 No. 18-2576
probation office conducted with Holland and Riley. Accord-
ing to Mr. Hopper, in their separate interviews, Holland and
Riley were actually referring to the same transactions. Thus,
by including the drug amounts described in both Holland
and Riley’s interviews in the calculation of Mr. Hopper’s rel-
evant conduct, the district court double-counted the same set
of drugs.
Mr. Hopper did not challenge the relevant conduct calcu-
lation in his objection to the initial PSR, his objection to the
second revised PSR, or at the sentencing hearing. Therefore,
we review his claim for plain error only. Fed. R. Crim. P.
52(b) (“A plain error that affects substantial rights may be
considered even though it was not brought to the [district]
court’s attention.”). We have discretion to remedy the for-
feited error provided that Mr. Hopper has satisfied the fol-
lowing conditions: (1) there is an error “that has not been in-
tentionally relinquished or abandoned”; (2) the error is
“plain—that is to say, clear or obvious”; (3) the error “affect-
ed the defendant’s substantial rights”; and (4) the error “se-
riously affects the fairness, integrity or public reputation of
judicial proceedings.” Molina-Martinez v. United States, 136
S. Ct. 1338, 1343 (2016) (quoting United States v. Olano, 507
U.S. 725, 736 (1993), superseded on other grounds by rule, Fed.
R. Crim. P. 24(c) (1999)); see also United States v. Pierson, 925
F.3d 913, 919 (7th Cir. 2019).
The Supreme Court’s recent jurisprudence has clarified
the application of the third and fourth prongs in the context
of sentencing errors. To demonstrate that the error affected
his substantial rights, “in the ordinary case,” the defendant
must “show a reasonable probability that, but for the error,
the outcome of the proceeding would have been different.”
No. 18-2576 49
Molina-Martinez, 136 S. Ct. at 1343 (internal quotation marks
omitted). According to the Court, “[w]hen a defendant is
sentenced under an incorrect Guidelines range—whether or
not the defendant’s ultimate sentence falls within the correct
range—the error itself can, and most often will, be sufficient
to show a reasonable probability of a different outcome ab-
sent the error.” Id. at 1345. “That probability is all that is
needed to establish an effect on substantial rights for pur-
poses of obtaining relief under Rule 52(b).” Id. at 1349. Fur-
ther, “[i]n the ordinary case, … the failure to correct a plain
Guidelines error that affects a defendant’s substantial rights
will seriously affect the fairness, integrity, and public reputa-
tion of judicial proceedings.” Rosales-Mireles v. United States,
138 S. Ct. 1897, 1911 (2018). In other words, “[a] plain Guide-
lines error that affects a defendant’s substantial rights is pre-
cisely the type of error that ordinarily warrants relief under
Rule 52(b).” Id. at 1907.
To calculate Mr. Hopper’s relevant conduct, the PSR to-
taled the drug amounts described in four separate inter-
views with other participants in the conspiracy.92 In particu-
lar:
On August 24, 2016, Lucas Holland participat-
ed in an interview with investigating agents.
Holland divulged that he received four ounces
of ice every day for a month from Randall Ri-
ley; of the four ounces, he would give the de-
92 Though the probation office revised Mr. Hopper’s PSR twice before
sentencing, the relevant conduct calculations did not change. For pur-
poses of this discussion, we reference the most recent version of the re-
port, the second revised PSR.
50 No. 18-2576
fendant one ounce on each occasion. (30 ounc-
es = 850 grams)[93]
On February 14, 2017, Randall Riley was inter-
viewed by investigating agents. Riley stated
that from January through March, he sold one
ounce of ice every day to the defendant for
$1,100. (28 days [February] x 28.35 grams = 793
grams)[94]
On May 4, 2017, Erin Wright participated in an
interview with agents. … Wright stated she
traveled with Hopper on ten occasions to pick
up ice from Gary Mims in Cape Girardeau. She
stated on average, they would obtain an ounce
of ice per visit (10 ounces or 283.5 grams of
ice).[95]
On July 19, 2017, Erin Wright was inter-
view[ed] by investigating agents. According to
Wright, the defendant purchased ice from
Robert Weir from October or November 2015
until Weir was arrested in March 2016. Wright
estimated that the defendant would purchase
3.5 grams to 28 grams per week, conservative-
ly. (12 weeks [December—February] x 3.5
grams = 42 grams)[96]
93 R.94 ¶ 12.
94 Id. ¶ 14.
95 Id. ¶ 19.
96 Id. ¶ 20.
No. 18-2576 51
The PSR explained that Mr. Hopper’s “relevant conduct is
outlined in bold above and involves the amounts obtained
by the defendant, which he then distributed to others.”97
Further, the PSR noted that “[t]he amount of ice that the de-
fendant distributed was not counted to avoid double count-
ing.”98 As demonstrated by the following chart, adding the
drug amounts described above, the PSR totaled Mr. Hop-
per’s relevant conduct to be 1.9685 kilograms of ice meth-
amphetamine.
Interviewee Drug Amount
Holland 850 grams
Riley 793 grams
Wright 283.5 grams
Wright 42 grams
1,968.5 grams
Total
(1.9685 kilograms)
We agree with Mr. Hopper that the district court plainly
erred in adopting the PSR’s relevant conduct calculation.
First, we conclude that Mr. Hopper did not “intentionally
relinquish[] or abandon[]” this challenge. Molina-Martinez,
136 S. Ct. at 1343. Neither party objected to the relevant con-
duct calculation prior to or during the sentencing hearing.
At sentencing, the district court adopted the findings of the
PSR, including the relevant conduct calculation, without fur-
97 Id. ¶ 21.
98 Id.
52 No. 18-2576
ther comment. “Given the complexity” of calculating a de-
fendant’s guidelines range, “district courts sometimes make
mistakes.” Rosales-Mireles, 138 S. Ct. at 1904. Accordingly,
“when a district court’s sentencing of a defendant within the
framework of an incorrect Guidelines range goes unnoticed
by the parties as well,” a defendant is “not entirely without
recourse.” Id. (internal quotation marks omitted).
Second, the error here was plain. At trial, Holland, Riley,
and Weir all testified that, together with Mr. Hopper, they
pooled their money over approximately a month-long peri-
od sometime between late 2015 and early 2016 to purchase
methamphetamine from a source in Cape Girardeau, Mis-
souri. Mr. Hopper, Weir, or both brought the money to Ri-
ley’s home, where Holland also lived. Holland and Riley
drove to Missouri to obtain the drugs. When they returned,
the group met at either Riley’s home or Mr. Hopper’s home
to divide up the drugs. Holland, Riley, and Weir all de-
scribed how the group pooled their money to purchase four
ounces of methamphetamine at a time, which they divided
into equal, one-ounce shares.
In context of the testimony presented at trial, it is clear
that Holland and Riley were describing the same pooling
arrangement during their separate interviews with the pro-
bation office. The amounts attributed to Holland and Riley
in the PSR differ only because Riley’s more specific state-
ments prompted the Government to use a 28-day month in-
stead of a 30-day month to calculate the total amount of
methamphetamine described. Regardless, the trial testimony
consistently showed that Mr. Hopper, Holland, Riley, and
Weir participated in a pooling arrangement and that follow-
ing each purchase, each member of the group obtained one
No. 18-2576 53
ounce of methamphetamine. Because Holland and Riley
were describing the same set of transactions, it was plainly
erroneous to include the drug amounts described in both in-
terviews in calculating Mr. Hopper’s relevant conduct.
Third, we hold that this plain error affected Mr. Hopper’s
substantial rights because it increased his base offense level
and his corresponding guidelines imprisonment range. Mo-
lina-Martinez, 136 S. Ct. at 1346 (“In most cases a defendant
who has shown that the district court mistakenly deemed
applicable an incorrect, higher Guidelines range has demon-
strated a reasonable probability of a different outcome.”). At
sentencing, the district court adopted the PSR’s relevant
conduct calculation of 1.968 grams of ice methamphetamine,
which resulted in a base offense level of 36. Applying the
two-level enhancement for maintaining a residence for the
purpose of distributing methamphetamine, the court calcu-
lated a total offense level of 38. With a criminal history cate-
gory of I, the corresponding guidelines imprisonment range
was 235 to 293 months. The court sentenced Mr. Hopper to
235 months’ imprisonment, which is “conspicuous for its po-
sition as the lowest sentence within what the [d]istrict
[c]ourt believed to be the applicable range.” Id. at 1347.
If we count the drugs described by Holland and Riley on-
ly once, Mr. Hopper’s base offense level falls to 34. Assum-
ing for purposes of this calculation that the relevant month
was 30 days and, consistent with the testimony at trial, that
Mr. Hopper received one ounce of methamphetamine ice per
transaction, the resulting drug quantity is 850 grams. Add-
ing these 850 grams to the drug amounts described by
Wright, the total quantity is only 1,175.5 grams, or 1.1755
kilograms, as shown in the following chart:
54 No. 18-2576
Interviewee Drug Amount
Holland/Riley 850 grams
Wright 283.5 grams
Wright 42 grams
1,175.5 grams
Total
(1.1755 kilograms)
This amount is significantly below the 1.5-kilogram
threshold that would trigger a base offense level of 36. See
U.S.S.G. § 2D1.1(c)(2). At a base offense level of 34, applying
the two-level drug premises enhancement, Mr. Hopper’s to-
tal offense level would be 36. With a criminal history catego-
ry of I, the corresponding guidelines imprisonment range
would be 188 to 235 months. At sentencing, the district court
“said nothing to suggest that it would have imposed” a sen-
tence of 235 months “regardless of the Guidelines range.”
Molina-Martinez, 136 S. Ct. at 1348. Consequently, “there is at
least a reasonable probability that the [d]istrict [c]ourt would
have imposed a different sentence had it known that” a low-
er sentence was appropriate. Id.; United States v. Adams, 746
F.3d 734, 743 (7th Cir. 2014) (“When a district court incor-
rectly calculates the guideline range, we normally presume
the improperly calculated guideline range influenced the
judge’s choice of sentence, unless he says otherwise.”).
Fourth, we conclude that Mr. Hopper satisfied the last
prong of the plain-error analysis. “The risk of unnecessary
deprivation of liberty particularly undermines the fairness,
integrity, or public reputation of judicial proceedings in the
context of a plain Guidelines error because of the role the
district court plays in calculating the range and the relative
No. 18-2576 55
ease of correcting the error.” Rosales-Mireles, 138 S. Ct. at
1908. This conclusion is especially forceful where, as here,
the error “was based on a mistake made in the presentence
investigation report by the Probation Office, which works on
behalf of the [d]istrict [c]ourt.” Id. Therefore, we conclude
that resentencing based on recalculation of Mr. Hopper’s
relevant conduct is required.99
The Government insists that any error in calculating
Mr. Hopper’s relevant conduct was harmless because the
district court actually “severely undercounted” the amount
of drugs attributable to Mr. Hopper.100 According to the
Government, the district court should have attributed to
Mr. Hopper the entire amount purchased by Mr. Hopper,
Holland, Riley, and Weir each time they pooled their money
together because “[t]he entire four ounces was foreseeable
relevant conduct” to Mr. Hopper.101 The Government con-
cedes that it failed to challenge the relevant conduct calcula-
99See, e.g., United States v. Garrett, 528 F.3d 525, 530 (7th Cir. 2008) (hold-
ing that plain error in calculating the defendant’s criminal history points,
which resulted in a higher guidelines range, required resentencing be-
cause we had “no reason to believe” that the district court’s error “did
not affect its selection of the particular sentence”).
100 Appellee’s Br. 49.
101 Id. at 50; see U.S.S.G. § 1B1.3(a)(1)(B) (providing that, “in the case of a
jointly undertaken criminal activity,” a defendant’s base offense level
shall be determined based on “all acts and omissions of others” that were
“(i) within the scope” of the conspiracy; “(ii) in furtherance of” the con-
spiracy; and “(iii) reasonably foreseeable in connection with” the con-
spiracy).
56 No. 18-2576
tion before the district court but explains that “it most likely
would not have affected the advisory guideline range.”102
We have recognized that “an appellate court can affirm
the determination of a sentencing range ‘on any ground
supported by the record even if that ground was not relied
upon by the district court.’” United States v. Benitez, 92 F.3d
528, 538 (7th Cir. 1996) (quoting United States v. Rivera, 6 F.3d
431, 447 (7th Cir. 1993)). But the Government has not offered,
nor have we located, any authority to suggest that we can
rely on a relevant conduct calculation not presented to the
district court to affirm a defendant’s sentence. Indeed, our
decision in United States v. Henderson, 58 F.3d 1145 (7th Cir.
1995), suggests quite the opposite.
In that case, a jury found Henderson guilty of conspiracy
to distribute cocaine base and distributing cocaine base. Id.
at 1147. At sentencing, the district court attributed to Hen-
derson the 18 grams of cocaine he was convicted of selling.
Id. at 1151. The court also attributed ten percent of the
amounts of cocaine described by Henderson’s
co-conspirator. Id. The court explained that it did not accept
the full amount claimed by his co-conspirator because of
“the ‘vagueness and generalized’ nature” of the co-
conspirator’s testimony “and the lack of money to support
his contentions that he sold such large amounts of drugs.”
Id. Henderson challenged the amount of drugs the district
court attributed to him, arguing that “by accepting only 10%
of [the co-conspirator’s] testimony, the court did not simply
act conservatively, but instead indicated its belief that [the
102 Appellee’s Br. 50 n.6.
No. 18-2576 57
co-conspirator’s] information was not sufficiently reliable to
support any amounts above the 18 grams.” Id. We agreed
that the court clearly erred because it “did not have suffi-
cient faith” in the co-conspirator’s testimony “to use it as the
basis for attributing further amounts to Henderson.” Id. at
1152.
The Government submitted, however, that remand was
not required because other calculations would result in drug
amounts within the range applied by the district court. Id.
For instance, the Government contended that we could cal-
culate the drug quantity by multiplying the number of used
plastic baggies by the amount of cocaine typically packaged
in each baggie. Id. at 1153. Although we were “fairly certain
that this calculation … would adequately sustain the court’s
determination,” we declined to “embrace it ourselves.” Id.
We explained that “[t]he government first presented this cal-
culation on appeal,” such that “the district court, which has
sentencing responsibility, [] had no opportunity to consider
it.” Id. The Government also proposed that we could deter-
mine the drug quantity based on the amount of money
seized from Henderson and from a drug location on the day
of his arrest. Id. We declined this suggestion, reasoning that
“while the government introduced this evidence at trial, it
did not present the calculations at sentencing.” Id. Conse-
quently, we left “the initial consideration of these sentencing
issues to the district court on remand.” Id.
For the same reasons, we decline to affirm Mr. Hopper’s
sentence based on relevant conduct calculations that the
Government presented for the first time on appeal. Because
neither party challenged the relevant conduct calculations
below, “the district court, which has sentencing responsibil-
58 No. 18-2576
ity,” id., had no opportunity to consider any arguments re-
garding the proper calculation of Mr. Hopper’s relevant
conduct. The parties must present their drug quantity calcu-
lations to the district court to consider in the first instance on
remand.
Conclusion
For the foregoing reasons, we affirm Mr. Hopper’s con-
viction for conspiracy to distribute methamphetamine and
affirm the district court’s determination that he was subject
to a sentence enhancement for maintaining a residence for
the purpose of distributing methamphetamine. We vacate
his sentence and remand his case to the district court for re-
sentencing based on our conclusion that there was plain er-
ror in the calculation of Mr. Hopper’s relevant conduct.
AFFIRMED IN PART,
VACATED AND REMANDED IN PART