In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-2652 & 09-3011
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
IVAN R EA, a/k/a O SCAR C AMACHO -D IAZ,
a/k/a M ICHOACAN, a/k/a A LEX,
and JOSE L. M EDINA,
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:07-cr-00038—Larry J. McKinney, Judge.
A RGUED M AY 26, 2010—D ECIDED S EPTEMBER 2, 2010
Before R IPPLE, K ANNE, and S YKES, Circuit Judges.
K ANNE, Circuit Judge. This is the consolidated appeal
of drug dealers Ivan Rea and Jose Medina. A jury con-
victed both Defendants and they now appeal various
aspects of their convictions and sentences.
2 Nos. 09-2652 & 09-3011
I. B ACKGROUND
Ivan Rea is also known by a variety of nicknames in-
cluding “Michoacan.” He received forty pounds of meth-
amphetamine every two weeks in Indianapolis, which
he purchased from sources in Denver. He directed others
to help him cut, weigh, package, transport, and distribute
the meth. Rea also fronted the methamphetamine to
others for resale and used his drug runners to collect
the money owed him. Medina was a distributor who
sold methamphetamine for Rea.
On September 24, 2008, a grand jury returned a three-
count indictment charging Rea and Medina with conspir-
acy to distribute in excess of 500 grams of a mixture
containing methamphetamine, in violation of 21 U.S.C.
§ 846; charging Rea with conducting a continuous crim-
inal enterprise (“CCE”), in violation of 21 U.S.C. §§ 848(a)
and (b); and charging Rea with being an illegal alien
in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(5)(A).
Following a joint trial in March 2009, the jury found Rea
and Medina guilty of conspiracy, and found Rea guilty of
engaging in a CCE. In June 2009, the district court sen-
tenced Rea to two concurrent life sentences, one each
for conspiracy and for engaging in a CCE, and entered a
$100 special assessment for each count. In July 2009, the
district court sentenced Medina to 350 months’ imprison-
ment, 5 years’ supervised release, and entered a $100
special assessment.
Nos. 09-2652 & 09-3011 3
II. A NALYSIS
A. Ivan Rea
Rea presents several arguments on appeal. First, Rea
argues that his convictions and sentences for conspiracy
and engaging in a CCE violate the Double Jeopardy
Clause, requiring that one of his convictions be vacated.
Second, Rea argues that the government’s evidence was
insufficient to support a guilty verdict for participating
in a CCE. Third, he argues that the district court abused
its discretion by admitting hearsay testimony that identi-
fied Rea as the source of methamphetamine. Finally, he
argues that the district court committed plain error in
calculating his base offense level for sentencing pur-
poses by adding two levels for possession of a firearm
during the commission of the offense. We take each
argument in turn.
1. Double Jeopardy Violation
Rea argues that the district court’s imposition of two
concurrent life sentences for conspiracy and for
engaging in a CCE violates the Fifth Amendment’s
Double Jeopardy Clause because the convictions and
sentences were based on the same underlying conduct—
an agreement. Because Rea did not raise his double jeop-
ardy defense before the district court, we review the
district court’s judgment for plain error. Fed. R. Crim. P.
52(b); United States v. Crowder, 588 F.3d 929, 938 (7th
Cir. 2009).
4 Nos. 09-2652 & 09-3011
The Double Jeopardy Clause prohibits multiple punish-
ments for the same offense. Missouri v. Hunter, 459 U.S. 359,
365-66 (1983). To determine whether the same act
or conduct constitutes one offense or two, we must deter-
mine “whether each [statutory] provision requires
proof of a fact which the other does not.” Blockburger v.
United States, 284 U.S. 299, 304 (1932). The offenses are
considered to be the same if the first offense is a lesser
included offense of the second. United States v. Loniello,
610 F.3d 488, 491 (7th Cir. 2010) (“If one statute has
an element missing from the second, but all of the
second’s elements are in the first, then the second is a
lesser included offense of the first.”). Where two
charged offenses are determined to be the same, the
Double Jeopardy Clause limits conviction and sentencing
to only one of the charged offenses, unless Congress
intended otherwise. Rutledge v. United States, 517 U.S. 292,
297 (1996); United States v. Pao Xiong, 595 F.3d 697, 698
(7th Cir. 2010).
The Supreme Court in Rutledge v. United States held
that conspiracy to distribute controlled substances is a
lesser included offense of engaging in a CCE. 517 U.S. at
300, 307. The Court noted:
[B]ecause the plain meaning of the phrase “in
concert” signifies mutual agreement in a com-
mon plan or enterprise, we hold that this element
of the CCE offense requires proof of a conspiracy
that would also violate § 846. Because § 846 does
not require proof of any fact that is not also a part
of the CCE offense, a straightforward application
of the Blockburger test leads to the conclusion that
Nos. 09-2652 & 09-3011 5
conspiracy as defined in § 846 does not define a
different offense from the CCE offense defined in
§ 848. Furthermore, since the latter offense is the
more serious of the two, and because only one of
its elements is necessary to prove a § 846 conspir-
acy, it is appropriate to characterize § 846 as a
lesser included offense of § 848.
Id. at 300. In Rutledge, as in the case at hand, the sen-
tences imposed for conspiracy and for conducting a
CCE were concurrent life sentences, and each carried a
special assessment. Id. at 294. Finding that Congress
did not intend punishments for both offenses, even if
only because each conviction carried with it a special
assessment, see id. at 301 (distinguishing concurrent
sentences as multiple punishments when special assess-
ments are imposed for each offense), the Court vacated
one of the underlying convictions and the concurrent
sentence based on it, id. at 307.
Here, Rea argues that under Rutledge the conspiracy
alleged in his indictment is a lesser included offense of
the CCE and that, along with a special assessment for
each, his concurrent sentences thus amount to cumula-
tive punishment not authorized by Congress. Because
the government concedes Rea’s argument, and we
agree, we vacate Rea’s conviction and sentence for con-
spiracy. We do not remand Rea’s case, however, because,
as noted below, we affirm Rea’s CCE conviction and
sentence.
6 Nos. 09-2652 & 09-3011
2. Sufficiency of the Evidence
Rea contends that the evidence against him was insuffi-
cient to support his CCE conviction. Rea faces an uphill
battle in bringing this challenge on appeal. United States
v. Morris, 576 F.3d 661, 665-66 (7th Cir. 2009). On a chal-
lenge to the sufficiency of the evidence, we ordinarily
review the evidence in the light most favorable to the
government, and we will overturn the conviction only
if there is no evidence upon which a rational juror
could have found the defendant guilty. United States v.
Hampton, 585 F.3d 1033, 1040 (7th Cir. 2009). In con-
ducting this analysis, we do not reweigh the evidence
or evaluate the credibility of the witnesses. United States
v. Khattab, 536 F.3d 765, 769 (7th Cir. 2008).
The government argues that Rea faces a heightened
standard today because he waived his appellate chal-
lenge by failing to raise this issue in a Rule 29 motion
for judgment of acquittal at the district court. See Fed. R.
Crim. P. 29; United States v. Hickok, 77 F.3d 992, 1002
(7th Cir. 1996). When a defendant waives his challenge,
we will only reverse his conviction if we find a “manifest
miscarriage of justice” under the plain error standard of
review. United States v. Hensley, 574 F.3d 384, 390 (7th Cir.
2009). “Manifest miscarriage of justice is perhaps the
most demanding standard of appellate review.” United
States v. Turner, 551 F.3d 657, 662 (7th Cir. 2008) (quoting
United States v. Taylor, 226 F.3d 593, 597-98 (7th Cir. 2000)).
In other words, “reversal is warranted only if the record
is devoid of evidence pointing to guilt, or if the evidence
on a key element was so tenuous that a conviction
Nos. 09-2652 & 09-3011 7
would be shocking.” Hensley, 574 F.3d at 390-91 (quoting
United States v. Irby, 558 F.3d 651, 653 (7th Cir. 2009))
(internal quotation marks omitted).
At the close of trial testimony, Medina’s counsel made
a verbal motion for judgment of acquittal. This motion
was followed by Rea’s counsel saying, “We do not
believe on behalf of Mr. Rea we have a good-faith basis
to make a recommendation with respect to 29B. How-
ever, we would like to make a similar presentation with
respect to evidence.” (Tr. at 734.) Rea argues that his
counsel’s subsequent remarks in effect adopted Medina’s
motion.
Rea is incorrect in several respects. We begin by stating
the obvious—Rea’s counsel specifically stated there was
no basis to make a Rule 29 motion. Now, however, Rea
attempts to pin his sufficiency of the evidence argument
to his counsel’s comment about making a presentation
“with respect to evidence.” But as the trial transcript
makes abundantly clear, Rea’s counsel’s reference to
“evidence” referred to Rea’s decision whether or not to
testify, not to the sufficiency of the evidence argument.
The district court subsequently addressed Rea’s decision
during colloquy and Rea ultimately announced his deci-
sion not to testify. (Tr. at 735-36.) To construe Rea’s coun-
sel’s comments as somehow preserving a sufficiency of
the evidence argument for appeal is inaccurate at best
and an attempt to mislead this court at worst. We also
find no reason why Rea should benefit from Medina’s
counsel’s Rule 29 motion—especially in light of Rea’s
admission, through his attorney, that he did not have
8 Nos. 09-2652 & 09-3011
a good-faith basis for bringing a Rule 29 motion. We
therefore find that Rea waived his sufficiency of the
evidence challenge to his conviction.
Even had Rea not waived this argument, we would still
affirm his conviction because the evidence was sufficient
to sustain a verdict against Rea for engaging in a CCE.
See, e.g., United States v. Farris, 532 F.3d 615, 619 (7th
Cir. 2008).
To carry its burden that Rea engaged in a CCE under
21 U.S.C. § 848, the government had to prove beyond
a reasonable doubt that Rea “organized, managed, or
supervised at least five or more people in committing
a series of underlying drug offenses.” United States v.
Johnson, 584 F.3d 731, 735 (7th Cir. 2009). “[T]he govern-
ment need not show that the five individuals acted
in concert with each other, that the defendant exercised
the same kind of control over each of the five, or even
that the defendant had personal contact with each of
[them].” United States v. Rogers, 89 F.3d 1326, 1334 (7th Cir.
1996) (quoting United States v. Moya-Gomez, 860 F.2d 706,
746 (7th Cir. 1988)) (internal quotation marks omitted)
(second alteration in original). All that is required of the
government is to establish that “the defendant exerted
some type of influence over five other individuals in
the course of the criminal enterprise.” Id. at 1334-35.
Although the government need not prove that the
defendant managed five people simultaneously, we
have previously held that “[t]he dealer’s need to replace
his aide . . . would not authorize a CCE prosecution on
the theory that the small-timer had one servant in
Nos. 09-2652 & 09-3011 9
January, a second in February, a third in March, and so
on.” United States v. Bond, 847 F.2d 1233, 1237 (7th Cir.
1988). Under such a structure, “[t]he organization
would never be larger than two.” Id.
Rea’s sole argument on appeal is that the govern-
ment failed to establish by sufficient evidence that he
organized, supervised, or managed at least five other
individuals in his meth operation. Rea contends that he
initially had only one underling, Pablo Chavez, whom he
later replaced with two others, Jose Nunez and Edgar
Badillo-Rangel. Rea claims that all of the other players
with whom he dealt were not under his control. Instead,
he alleges that they were independent wholesale pur-
chasers with their own customer bases and that a mere
buyer-seller arrangement existed between them and
himself.
The government maintains that the evidence at trial
was sufficient to establish that Rea directed the activities
of Chavez, Nunez, Badillo-Rangel, Sarai Solano, Jose
Medina, William Dunlop, and at least two or three
other drug runners. We agree that the government pre-
sented sufficient evidence at trial, primarily in the form
of witness testimony, that would enable a reasonable
jury to conclude that Rea organized, managed, or super-
vised at least five individuals.
Rea directed his employees to unload, cut, cook, package,
and deliver methamphetamine for him. Rea also used
his drug runners to collect money that was owed him
for meth that he had fronted his distributors. Beginning
in October 2005, and up to the time of his arrest in mid-
10 Nos. 09-2652 & 09-3011
2006, Chavez delivered meth and collected money for
Rea. Prior to Chavez’s arrest, however, Rea also hired
Nunez and Badillo-Rangel. Eden Soto, who frequently
purchased and redistributed meth from Rea, testified
that Rea would dispatch three or four drug runners to
deliver the drugs and collect fronted money. Rea also
supervised and directed Solano, Nunez’s girlfriend.
Solano worked as a waitress at Rea’s restaurant, but
she would also go on runs with Nunez; she was also re-
sponsible for obtaining the materials used to cut,
package, and conceal the odor of the meth.
Rea argues that his relationship with Chavez morphed
into that of buyer-seller at some point prior to Chavez’s
arrest, and that he merely “replaced” Chavez with
Nunez and Badillo-Rangel. The government, however,
presented more than sufficient evidence to establish
that Rea simultaneously directed multiple drug runners,
and that Nunez in fact worked for Rea prior to the pur-
ported change in relationship between Rea and Chavez.
In addition to the evidence supporting the fact that Rea
directed Chavez, Nunez, Badillo-Rangel, and Solano,
among several other drug runners, the government also
presented evidence that Rea directed Medina and
Dunlop. Rea fronted the meth to Medina, and Medina
would then re-sell the drugs and pay Rea’s runners
when they came to collect. Dunlop was a regular
customer of Medina’s and would often buy from him at
Medina’s tire shop. However, when Medina failed to
meet his financial obligation on the meth that Rea had
fronted him, Rea directed Dunlop to renovate the tire
Nos. 09-2652 & 09-3011 11
shop and Rea took it over. Rea then instructed Dunlop
that he would buy direct from him and Nunez. Although
Rea argues that Medina and Dunlop were not under
his control, a reasonable jury could certainly conclude
based on this evidence that Rea exercised some type of
influence and control, either direct or indirect, over them.
It is clear that Rea was no small-time drug dealer;
rather, Rea ran an extensive drug organization, wherein he
directed at least five or more people and trafficked
high quantities of methamphetamine. Accordingly, we
conclude that the evidence presented against Rea was
sufficient to justify his CCE conviction.
3. Hearsay Testimony
Rea also argues that his convictions should be reversed
and remanded for a new trial because the district court
allowed hearsay testimony from witnesses who
identified him as a source for meth.
Rea must shoulder a heavy burden on appeal when
challenging admissions of evidence at trial. See United
States v. Taylor, 604 F.3d 1011, 1014 (7th Cir. 2010). We
review a district court’s evidentiary rulings, such as the
admission of out-of-court statements, for an abuse of
discretion. United States v. Jones, 600 F.3d 847, 853 (7th Cir.
2010).
Rea first contends that several statements made by
Seferino Rodriguez and Eden Soto as witnesses at trial
were inadmissible hearsay because they did not fall
within the exception to the hearsay rule for the declara-
12 Nos. 09-2652 & 09-3011
tions of co-conspirators. These statements included
(1) Edgar Boyzo-Bernal’s statement to Rodriguez identi-
fying Rea as his source; (2) Luis Briseno’s statement to
Rodriguez identifying Rea as his source; (3) Boyzo-
Bernal’s statement to Soto identifying Rea as his source;
(4) Briseno’s statement to Soto identifying Rea as his
source; and (5) Cholo’s1 statements to Soto that he
owed Rea money for meth and that Rea would be a
“good connect” for meth.
Hearsay is “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.” Fed.
R. Evid. 801(c). Hearsay is inadmissible unless an excep-
tion applies. Fed. R. Evid. 802. Rule 801(d)(2)(E) of the
Federal Rules of Evidence, however, excludes from
the definition of hearsay statements “offered against a
party” that are “statement[s] by a co-conspirator of a
party during the course and in furtherance of the con-
spiracy.” For co-conspirator statements to be admissible,
“the government must prove by a preponderance of
the evidence that (1) a conspiracy existed; (2) the
defendant and the declarant were members of the con-
spiracy; and (3) the statement was made during the
course and in furtherance of the conspiracy.” United
States v. Harris, 585 F.3d 394, 398 (7th Cir. 2009) (quoting
United States v. Schalk, 515 F.3d 768, 775 (7th Cir. 2008)).
1
“Cholo” is the name for a friend of Eden Soto who taught
Soto how to deal meth and who was present during a meeting
between Soto and Rea.
Nos. 09-2652 & 09-3011 13
“We review the district court’s findings with regard to
these elements for clear error.” United States v. Skidmore,
254 F.3d 635, 638 (7th Cir. 2001).
The fact that there was a conspiracy is not in dispute.
Rather, the thrust of Rea’s argument is that these state-
ments were either not made by a co-conspirator or not
made in furtherance of the conspiracy. Although
Rea argues that some of the statements were made by
individuals who were not part of the conspiracy, a prose-
cutor need not charge a conspiracy to take advantage
of Rule 801(d)(2)(E). United States v. Moon, 512 F.3d 359,
363 (7th Cir. 2008). Statements that further the con-
spiracy may take a variety of forms, “including com-
ments designed to assist in recruiting potential members,
to inform other members about the progress of the con-
spiracy, to control damage to or detection of the con-
spiracy, to hide the criminal objectives of the conspiracy,
or to instill confidence and prevent the desertion of
other members.” Skidmore, 254 F.3d at 638 (quoting
United States v. Johnson, 200 F.3d 529, 532 (7th Cir. 2000)).
Rea’s attempt to label all five challenged out-of-court
statements as impermissible hearsay is too broad and
unpersuasive. As previously discussed, Chavez, Nunez,
Badillo-Rangel, and Solano, among others, all worked
directly for Rea and assisted him in preparing and de-
livering meth to his distributors. Rea used Edgar Boyzo-
Bernal, Luis Briseno, Eden Soto, Jose Medina, and William
Dunlop as his distributors. Seferino Rodriguez pur-
chased significant quantities of meth from Boyzo-
Bernal (also known as “Gavacho” to Rodriguez), Luis
14 Nos. 09-2652 & 09-3011
Briseno, and Chavez. Rodriguez testified that at different
times Boyzo-Bernal and Briseno identified Rea as their
source. Soto testified that Rea and Cholo met at Soto’s
apartment and Cholo told Soto that he owed Rea
money and that “Michoacan” would be a “good connect”
for Soto. Soto met with Rea two days later at Rea’s restau-
rant where Rea agreed to supply Soto with meth. Soto
also provided significant testimony, including testimony
regarding telephone conversations intercepted by the
DEA, discussion of Rea’s runners and distributors, and
his dealings with Rea. In particular, Soto testified that
Badillo-Rangel, Nunez, and Chavez were runners for
Rea; Boyzo-Bernal and Briseno distributed for Rea at
the same time Soto did, and each identified Rea as their
source; and at various times Soto received one pound
of meth per week from Rea.
We find that the statements Rea challenges either
were generally part of the ordinary “information flow” by
and among conspirators or served to inform members
about the current status of the conspiracy. See United
States v. Hunt, 272 F.3d 488, 495 (7th Cir. 2001). Although
Rea attempts to distinguish between statements based
on the context in which each was made—which varied
from transactional in nature to more generalized state-
ments—we conclude that the government clearly
proved by a preponderance of the evidence that the
statements were made by co-conspirators in furtherance
of the conspiracy. See Johnson, 200 F.3d at 533 (stating
that while we evaluate the context of the statement
with regard to whether the statement advanced the
conspiracy, “the statement need not have been made
Nos. 09-2652 & 09-3011 15
exclusively, or even primarily, to further the conspiracy,”
and that we need only find “some reasonable basis for
concluding that the statement in question furthered the
conspiracy in some respect.” (quoting United States v.
Powers, 75 F.3d 335, 340 (7th Cir. 1996)) (internal quotation
marks omitted)). Because it is reasonable to conclude
that the co-conspirator statements identifying Rea as the
source of meth were well within the wide range of state-
ments admissible under Rule 801(d)(2)(E), the district
court did not err by admitting them.
Drug Enforcement Agency (DEA) Agent Davis
testified at trial about his conversation with Pablo
Chavez following Chavez’s arrest, at which time Chavez
identified his source for meth as “Michoacan.” Rea
also contends that Agent Davis’s statements were inad-
missible hearsay and that their admission violated the
Confrontation Clause.
The government argues that because the statement was
offered only to show that Agent Davis performed a thor-
ough investigation (because Rea claimed Davis’s failed
attempt to perform a controlled purchase from him
resulted in a lack of hard evidence against him) and that
the statement referred to “Michoacan,” and not Rea by
name or photograph, the statement was not offered to
prove that Rea was in fact Chavez’s source.
While we are tempted to delve into the details of Rea’s
challenge, we find it unnecessary and therefore decline
to do so. The government presented a mountain of evi-
dence, including multiple witnesses testifying that they
engaged directly with Rea in dealing meth, recorded
16 Nos. 09-2652 & 09-3011
conversations of Rea dealing meth, and numerous
other statements by co-conspirators. There is sub-
stantial additional evidence demonstrating that Rea was
a supplier for Chavez and that Chavez was a drug
runner for Rea. The district court might have prevented
Agent Davis’s statement from being an issue on appeal
by giving a limiting instruction to the jury; however, any
error in the admission of this testimony was harmless
under the circumstances. Cf. United States v. Prieto, 549
F.3d 513, 523 (7th Cir. 2008).
In summary, we conclude that the district court did not
abuse its discretion by admitting the statements made
by Rea’s co-conspirators, and that any error related to
Agent Davis’s testimony was harmless.
4. Sentencing
Rea’s final argument on appeal is that the district court
erred in calculating his offense level by imposing a two-
level enhancement for possession of guns during the
commission of the offense. Rea, however, did not object
to the calculation in the pre-sentence investigation
report (PSR), and he failed to challenge the calculation
before the district court. We therefore review the district
court’s imposition of Rea’s sentencing enhancement for
plain error, and we will not remand unless the error
affected his substantial rights. United States v. Avila, 557
F.3d 809, 822 (7th Cir. 2009).
Under § 2D1.1(b)(1) of the Sentencing Guidelines, a two-
level enhancement is applied to a defendant’s base
offense level if the defendant’s drug offense involved
Nos. 09-2652 & 09-3011 17
the possession of a firearm. See, e.g., United States v. Gonza-
lez, 608 F.3d 1001, 1006 (7th Cir. 2010). The govern-
ment must first prove by a preponderance of the
evidence that the defendant possessed the firearm. United
States v. Are, 590 F.3d 499, 526 (7th Cir. 2009). “The defen-
dant need not have actual possession of the weapon;
constructive possession is sufficient.” Id. To prove the
firearm was possessed in connection with a drug
offense, it is enough to show that the gun was in “close
proximity” to the drugs in question. Id. (quoting United
States v. Souffront, 338 F.3d 809, 833 (7th Cir. 2003)). This
includes proximity to drug paraphernalia, such as a
scale. United States v. Cashman, 216 F.3d 582, 589 (7th Cir.
2000). We have also approved an enhancement under
§ 2D1.1 “where the weapon was not found in the
same place as illegal drugs.” Are, 590 F.3d at 527.
If the government carries its burden, then the defendant
must prove that it was “clearly improbable” that a con-
nection existed between the firearm and the drug offense.
Id. at 526; see Application Note 3 to § 2D1.1 (“The ad-
justment should be applied if the weapon was present,
unless it is clearly improbable that the weapon was con-
nected with the offense.”).
Pursuant to a search warrant for Rea’s residence in
February 2007, authorities found a loaded AK-47 assault
rifle in the hall closet, a loaded .380 caliber Smith &
Wesson handgun in the west bedroom, and a .38 caliber
Taurus revolver in the southwest bedroom. Authorities
recovered $1,768 in cash in the living room. In the bath-
room by the hall closet, authorities found a scale of the
type commonly used to weigh controlled substances.
18 Nos. 09-2652 & 09-3011
Rea does not deny that he possessed the guns. Rather,
he argues that it was “clearly improbable” that he pos-
sessed the guns in connection with the conspiracy or
the CCE. Rea claims that no meth was found at the loca-
tion, the meth was prepared for distribution at a dif-
ferent location, the money could have been proceeds
from either his restaurant or tire shop business, and the
scale could have been used for purposes other than to
weigh meth. Rea’s argument defies reason and flies in
the face of ordinary sensibilities.
We conclude that the government carried its initial
burden by proving by a preponderance of the evidence
that Rea possessed the firearms and that there was a
sufficient connection between the guns and his drug
convictions. It takes no more than common sense to
understand that such a connection existed. Although
Rea attempts to propose alternative theories as to why
the guns, cash, and scale were all present in his home, it
is illuminating that he never actually attempted to
explain why he possessed an AK-47, or the actual source
of the cash, or the specific purpose for the scale. Certainly
Rea cannot seriously argue that the AK-47 assault rifle
found in the hall closet has any unrelated and inno-
cent purpose. See Application Note 3 to § 2D1.1
(noting that “the enhancement would not be applied if
the defendant, arrested at his residence, had an
unloaded hunting rifle in the closet”). Rea also concedes
that he was a meth dealer and that he was involved in
the drug conspiracy.
Because the government demonstrated that the guns
were found in close proximity to drug paraphernalia
Nos. 09-2652 & 09-3011 19
and that Rea dealt in large quantities of meth on a
frequent basis, the burden properly shifted to Rea to
prove that it was “clearly improbable” that he possessed
the firearm in connection with the drug offense. Rea
offered no evidence to establish that it was “clearly im-
probable” that he possessed the firearm in connection
with the CCE offense. Therefore, we find that the
district court did not plainly err by imposing the firearm
sentencing enhancement.
B. Jose Medina
Medina makes two arguments on appeal. He argues
that the government presented insufficient evidence to
convict him of conspiracy and that the district court
committed plain error when it sentenced him by incor-
rectly calculating his criminal history score. We discuss
each argument in turn.
1. Sufficiency of the Evidence
At the close of evidence, Medina’s counsel moved under
Rule 29 for a judgment of acquittal and requested the
district court to incorporate his final arguments as the
basis for the motion. On appeal, Medina argues that the
government failed to present sufficient evidence of his
involvement in the conspiracy. Medina’s theory is that
he merely had a buyer-seller relationship with Rea.
When conducting a review of the sufficiency of the
evidence, we view the evidence presented at trial and
20 Nos. 09-2652 & 09-3011
draw all reasonable inferences from that evidence in the
light most favorable to the government. United States v.
Gorman, No. 09-3010, 2010 WL 2925447, at *3 (7th Cir.
July 28, 2010). We will uphold the jury’s verdict so long
as “any rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt.”
Id. (internal quotation marks omitted). Because we owe
great deference to the jury, United States v. Melendez, 401
F.3d 851, 854 (7th Cir. 2005), Medina’s burden is “nearly
insurmountable,” United States v. Warren, 593 F.3d 540,
546 (7th Cir. 2010).
To prove a conspiracy to distribute methamphetamine
under 21 U.S.C. § 846, the government was required
to prove beyond a reasonable doubt that Medina know-
ingly and intentionally joined an agreement with at
least one other person to commit an unlawful act—here,
the distribution of methamphetamine. United States v.
Dean, 574 F.3d 836, 842 (7th Cir. 2009).
There is a distinction, however, between a mere buyer-
seller relationship and a defendant’s participation in a
conspiracy. See United States v. Lechuga, 994 F.2d 346,
349 (7th Cir. 1993) (en banc) (explaining the rationale
for the “own-consumption” exception). In a buyer-seller
relationship, “the sale of drugs, without more, does not
constitute a conspiracy because the sale itself is a sub-
stantive crime.” Avila, 557 F.3d at 815. But “[a]ll that is
necessary to establish a drug distribution conspiracy is
an understanding related to the subsequent distribution
of narcotics.” Id. at 816. In order to carry its burden,
“[t]he government need only show an agreement that
Nos. 09-2652 & 09-3011 21
goes beyond the individual sale between buyer and
seller.” Id.; see also United States v. Johnson, 592 F.3d 749, 755
(7th Cir. 2010) (“[T]he government must offer evidence
establishing an agreement to distribute drugs that is
distinct from evidence of the agreement to complete the
underlying drug deals”) (emphasis added).
We have noted that “[t]he agreement need not be
formal, and the government may establish that agree-
ment, as it may other elements of the charge, through
circumstantial evidence.” United States v. Gilmer, 534 F.3d
696, 701 (7th Cir. 2008) (quoting United States v. Taylor, 116
F.3d 269, 271 (7th Cir. 1997)). Accordingly, “a jury can
infer an agreement from the parties’ course of dealing.”
United States v. Johnson, 437 F.3d 665, 675 (7th Cir. 2006).
For example, we have held that a conspiracy exists
when the defendant and a co-conspirator were on the
“same side of the transaction.” Id.
Other evidence the government may present to prove
a conspiracy to distribute drugs includes “sales of large
amounts of drugs, prolonged cooperation, a level of
mutual trust between the parties, standardized dealings,
and sales on a consignment or ‘fronted’ basis.” Avila,
557 F.3d at 816. Because some of these factors
individually may create an inference of either a buyer-
seller relationship or a conspiracy to distribute drugs, we
have clarified that the following examples weigh more
heavily in favor of finding a conspiracy:
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
22 Nos. 09-2652 & 09-3011
other on the conduct of the other’s business, or
an agreement to warn of future threats to each
other’s business stemming from competitors or
law-enforcement authorities.
Johnson, 592 F.3d at 755-56 (footnote omitted).
We find Medina’s insufficient evidence claim unpersua-
sive. Rea delivered two pounds of meth to Medina
per week. Sarai Solano identified Medina as one of Rea’s
meth distributors, and she said that Medina visited
Rea’s restaurant twice per week from October 2005
until December 2005. Solano also testified that she rou-
tinely overheard conversations between Rea and
Medina in which Rea agreed to front meth to Medina,
and that Rea had reached out to Medina in order to
gain access to Medina’s clientele. Solano further testified
that she and Nunez began transporting two pounds of
Rea’s methamphetamine per week to Medina at
Medina’s tire shop beginning in December 2005; she
accompanied Rea and Nunez when they visited Medina’s
tire shop where they attempted to collect money for meth
that Rea had fronted Medina; she overheard repeated
arguments between Nunez and Medina about Medina’s
failure to pay Rea; she would often go with Nunez to
the tire shop in an effort to collect money owed by
Medina to Rea; and she understood that Rea took over
Medina’s tire shop because of the money Medina
owed him for the fronted meth.
Medina argues that Solano’s testimony only implies
that a buyer-seller relationship existed. He contends
that no testimony was presented that specifically
Nos. 09-2652 & 09-3011 23
identified how much meth was fronted or the frequency of
such transactions. We disagree.
The jury obviously chose to believe Solano, and “it
is not for us to second guess” the jury’s credibility deter-
mination on a challenge to the sufficiency of the evidence.
United States v. Smith, 34 F.3d 514, 521 (7th Cir. 1994).
Further, Medina conceded that Rea supplied large
amounts of meth to him, and it is clear from the
evidence that Rea gave Medina meth in a standardized
amount and on a regular basis. Rea provided meth in
significant quantities so that he could indirectly dis-
tribute to Medina’s clientele. The government provided
evidence that Medina worked with Rea for a prolonged
period—from October 2005 to February 2007. Solano’s
testimony referring to overhearing multiple conversa-
tions regarding fronting demonstrated that there were
a number of “fronting” occasions. This is supported by
the ongoing debt issues between Medina and Rea and
Rea’s eventual takeover of Medina’s tire shop. Based on
this accumulated and mutually reinforcing evidence,
we easily conclude that any reasonable juror could find
that the relationship between Rea and Medina ex-
ceeded that of a buyer-seller relationship.
Because of this conclusion we need not address the
evidence concerning Medina’s other dealing relationships.
2. Sentencing
Medina also argues that the district court erred by
including an additional four points in his criminal
24 Nos. 09-2652 & 09-3011
history score when it calculated his guidelines sentence.
Because Medina failed to object to the criminal history
calculation before the district court, we review for plain
error. United States v. Jumah, 599 F.3d 799, 811 (7th Cir.
2010). “Under plain-error review, the defendant must
show that (1) there was error, (2) it was plain, (3) it affected
his substantial rights and (4) the court should exercise
its discretion to correct the error because it seriously
affected the fairness, integrity or public reputation of
the judicial proceedings.” Id. (citing United States v.
Olano, 507 U.S. 725, 732-35 (1993)).
The PSR set Medina’s total offense level at 38 and his
criminal history category at IV. Based on an advisory
guidelines range of 324 to 405 months’ imprisonment,
the district court sentenced Medina to 350 months’ impris-
onment.
Medina’s criminal history category calculation included
a total of nine criminal history points, four of which
Medina contests. The government concedes that two of
the points were in error.2 Medina’s arguments regarding
the other two challenged points are patently without
merit, and we decline to use more ink addressing
2
The government concedes that Medina should have received
two instead of three criminal history points based upon the
PSR’s allegations that Medina committed conspiracy while
serving a probationary sentence and less than two years after
his release from custody. The government also concedes that
Medina should have received two instead of three criminal
history points for his identity theft conviction.
Nos. 09-2652 & 09-3011 25
them here. Although we conclude that Medina should
have been assessed a total of seven instead of nine
criminal history points, he still falls within the same
criminal history category used by the district court
when it calculated his sentence. The calculation errors
by the district court therefore could not have affected
Medina’s substantial rights.
III. C ONCLUSION
For the foregoing reasons, we V ACATE Rea’s conspiracy
conviction and sentence, and we A FFIRM Rea’s CCE
conviction and sentence. We also A FFIRM Medina’s con-
spiracy conviction and sentence.
9-2-10