In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3425
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
K EVYN T AYLOR,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 08 CR 30061—J. Phil Gilbert, Judge.
A RGUED N OVEMBER 4, 2010—D ECIDED M ARCH 29, 2011
Before B AUER, M ANION, and H AMILTON, Circuit Judges.
M ANION, Circuit Judge. Kevyn Taylor was convicted
by a jury on six counts related to his participation in a
crack dealing operation. These included charges that he
possessed, distributed, and conspired to distribute crack
cocaine, as well as related firearms charges. He appeals
his conviction for distribution of crack cocaine, arguing
that there was insufficient evidence for a jury to find
beyond a reasonable doubt that he aided and abetted a
2 No. 09-3425
crack deal in October 2005. He also appeals the portion
of his sentence related to the drug convictions, arguing
that the district court over-calculated the relevant
amount of drugs and erred in enhancing his sentence
for obstruction of justice based on his trial testimony.
We affirm the judgment and the sentence.
I.
In 2005, the Bureau of Alcohol, Tobacco, Firearms, and
Explosives began an investigation into drug trafficking
activity by Byron Blake and his associates in East St.
Louis, Illinois. The investigation was code-named “Opera-
tion No Escape” in reference to Club Escape, a nightclub
owned by Blake and the home base for the enterprise.
Beginning in September of that year, confidential infor-
mants made drug purchases first from Ryan Ivory and
eventually from Blake himself. Later, in the Spring of
2006, the ATF tapped the phones of Blake and Taylor and
conducted surveillance of Blake and his associates. The
investigation culminated in the execution of several
search warrants, including one at 114 Blazier Drive in
Belleville, where Blake and Taylor were known to have
spent significant time.
In March 2009, Taylor was indicted on six counts
arising from Operation No Escape. Relevant on appeal are
Count 1—conspiracy to distribute over 50 grams of
crack cocaine—and Count 2—distributing more than
50 grams of crack on October 20, 2005, both in violation of
No. 09-3425 3
21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii).1 At trial, the
government sought to prove Count 2 by showing
that Taylor aided and abetted the recorded controlled
buy that the government’s confidential informant,
Michael Woods, made from Blake on October 20. Woods
testified that he bought drugs from Blake on three occa-
sions in October 2005. First, during the week of October 10,
Woods accompanied Ivory to purchase crack from
Blake, but stayed in the car while Ivory met Blake. Second,
on October 15, Blake arrived at Ivory’s house in a truck
driven by Taylor. While Woods waited, Ivory ap-
proached the vehicle. Blake handed four-and-a-half
ounces of crack to Taylor, who handed the drugs to Ivory.
Finally, on October 20, Woods purchased crack directly
from Blake while wired with audio- and video-recording
equipment. Again at Ivory’s house, Woods stood waiting
outside his car until Blake and Taylor arrived in a
black Ford Explorer that Taylor had rented several days
before. This time, Blake exited the truck and got into the
passenger side of Woods’s car, where the deal took place.
Ryan Ivory also testified at trial. He described the
events of October 20 similarly to Woods and testified that
Taylor drove the car he had observed “during that time
1
Count 3 charged possession with intent to distribute on
June 24, 2006 in violation of 21 U.S.C. §§ 841(a)(1) and
842(b)(1)(C); Count 4 charged possession of a firearm in fur-
therance of a drug trafficking crime in violation of 18 U.S.C.
§ 924(c)(1)(A); Count 5 charged that Taylor was a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
Taylor does not appeal his conviction on these three charges.
4 No. 09-3425
period,” but did not specifically identify Taylor as
being present on that day, nor mention the transaction
five days before. He also testified that Taylor would
often accompany Blake on deals and sometimes collect
money for him, but the only specific time periods he
mentioned were after the October 20 controlled buy.
To prove the conspiracy to distribute charges of Count 1,
the government pointed to the evidence of Taylor’s partici-
pation in the October 20 deal, and also introduced
selected audio recordings of phone calls between Blake
and Taylor that, according to the testimony of the case
agent, concerned the preparation and distribution of
crack cocaine. In one call, Taylor reported back to Blake
that one of his purchasers claimed that there was a prob-
lem with his “shake” and was unhappy because “he lost
about 18 out of his two and a quaker”; according to the
case agent this meant that the purchaser claimed to
have lost 18 grams out of 2 1/4 ounces (63 grams) of
powder cocaine when he tried to “cook” the powder
to convert it to crack, potentially the result of the
“shake”—the very powdery cocaine at the bottom of
a bag—being cut with baking powder. Ivory also
identified some of the recorded discussions as
involving crack production.
Taylor testified in his own defense. He denied ever
having met Woods and denied that he had ever sold or
used cocaine or crack. He did, however, admit to
dealing marijuana, and attempted to explain away the
incriminating phone conversations with Blake as
relating solely to the production and sale of marijuana.
No. 09-3425 5
He claimed that Blake would receive the marijuana in
bricks about the size of a hockey puck and use a
special machine to moisten the marijuana. The govern-
ment called the case agent back to the stand, and he
rebutted Taylor’s testimony, stating that he had never
heard of applying baking soda to marijuana and that
other aspects of the recorded calls were inconsistent
with marijuana dealing.
The jury convicted Taylor on all counts. For Count 1, the
jury was asked to make special findings concerning the
quantity of the drugs involved. The verdict sheet asked
whether the offense involved more than 50 grams or, if
less than 50 grams, more than 5 grams. Inexplicably, the
jury answered “yes” to both questions.2
The presentence investigation report calculated that
Taylor was responsible for 396.7 grams of powder cocaine,
837 grams of crack cocaine, and 227 kilograms of mari-
juana—a total marijuana equivalency of 17,046 kilograms
under the sentencing guidelines. In response to an ob-
jection by the government, the PSR was amended to
include a two-level enhancement for obstruction of
justice, for a total offense level of 36. With a criminal
history category of I, this resulted in a guidelines range
of 188 to 235 months for Counts 1 and 2.
Regarding his relevant conduct, Taylor made a few
objections to the probation officer’s characterization of
the evidence and, much more significantly, argued that
2
Strangely, no one appears to have sought to clarify what
the jury intended in its special verdict form.
6 No. 09-3425
the court should take into account the disparity in the
guidelines’ treatment of powder and crack cocaine, as
permitted by Kimbrough, and reduce the total marijuana
equivalency considerably, to 473.74 kilograms. He also
objected to the obstruction of justice enhancement
for perjury, arguing that such enhancements “put[] a
damper on anyone who wants to testify and who might
testify different from what the government says.” Taken
together, his objections would have reduced the base
offense level to 26, with a guideline range of 63 to 78
months’ imprisonment. The court adopted the PSR’s
recommendations in all respects. Regarding the disparity
between crack and powder cocaine, the court declined
to disregard the guidelines, stating that it would follow
the current guidelines ratios until amended. It also
found that Taylor committed perjury in his testimony
by going beyond a general denial of his involvement
and denying specific details of his involvement with
Blake, Ivory, and others. The court then gave concur-
rent below-guidelines sentences of 180 months on
Counts 1, 2, 3, and 5, plus the mandatory minimum of a
consecutive 60 months for his possession of a firearm in
furtherance of a drug trafficking crime. Taylor appeals
his conviction on Count 2 and his sentence on Counts 1
and 2.
II.
On appeal, Taylor argues that there was insufficient
evidence for the jury to find that he aided and abetted the
October 20 crack deal. Regarding his sentence, he makes
No. 09-3425 7
two arguments. First, he argues that at sentencing the
district court incorrectly considered as relevant conduct
an amount of drugs that exceeded the jury’s special
verdict. Second, he argues that the district court did
not make sufficient findings to support its application of
a two-level enhancement for obstruction of justice.
We review each issue in turn.
A. Sufficiency of the Evidence
Taylor argues that there was insufficient evidence
from which the jury could find beyond a reasonable
doubt that he aided and abetted Blake in the October 20,
2005, drug deal. In this, Taylor faces a nearly insurmount-
able hurdle: to prevail, he must show that “after
viewing the evidence in the light most favorable to the
prosecution, no rational trier of fact could have found
the essential elements of the offense beyond a rea-
sonable doubt.” Unites States v. Spells, 537 F.3d 743, 746-47
(7th Cir. 2008). Further, in reviewing the sufficiency of
the evidence in a criminal conviction, we do not
reweigh the evidence or second-guess the jury’s credi-
bility determinations. Id.
To establish that Taylor aided and abetted Blake, the
government needed to prove that Taylor associated
himself with the criminal activity and that he voluntarily
participated in it. United States v. Heath, 188 F.3d 916,
921 (7th Cir. 1999); United States v. Sewell, 159 F.3d 275,
278 (7th Cir. 1998). Association means that Taylor shared
in Blake’s criminal intent; participation means that
Taylor “affirmatively acted to make the venture succeed.”
8 No. 09-3425
Heath, 188 F.3d at 921. Taylor’s participation in the
October 20 drug sale is demonstrated in the record: not
only did he drive Blake to and from Ivory’s house,
but he also rented the vehicle used. Both of these are af-
firmative, voluntary acts that contributed to the success of
the drug deal. What Taylor contests is whether the gov-
ernment proved that he associated himself with the
deal: he argues that there was no evidence of anything
other than his presence at the scene of the drug deal, and
that mere presence is insufficient evidence to support a
conviction for aiding and abetting. While he does not
appeal his conviction for conspiracy to distribute crack,
he argues that all of the evidence of his involvement in
the conspiracy related to a period of time months after
the October 20 transaction and thus does not support
a reasonable inference that he had the necessary intent
to aid Blake at the time of the deal.
Taylor’s premise is correct—there is nothing illegal
about renting a car or using that car to give someone a
ride. And the mere fact that Taylor’s actions aided the
venture is not enough to support a conviction without
evidence that Taylor knew of the purpose of the
venture and intended to abet the drug deal. But Taylor
understates the evidence against him. The government
introduced enough evidence for the jury to find that
Taylor was not merely present. Most significantly,
Woods testified that just five days before the recorded
controlled buy, Taylor had driven Blake on another
controlled buy. At that first buy, moreover, Woods stated
that Taylor had actually handled the crack, passing it
from Blake to Ivory. This evidence alone refutes Taylor’s
No. 09-3425 9
mere presence theory: Taylor’s direct participation with
Blake in a crack deal five days prior, in a virtually
identical situation, permits the jury to infer that he
was not innocently driving Blake to and from Ivory’s
house, but instead that Taylor rented and drove the
Ford Explorer intending to assist Blake in distributing
crack. Accordingly, Taylor’s conviction for distributing
crack on October 20 stands.
B. Sentencing Challenges
Taylor also challenges two aspects of his sentence.
First, Taylor argues that, in light of the jury’s con-
tradictory findings concerning the quantity of drugs, the
district court erred in finding that he was responsible
for more than 50 grams of crack. Although his argument
is difficult to follow, Taylor appears to contend that
by considering a quantity of drugs higher than that
found by the jury, the district court violated at least the
principles underlying Apprendi v. New Jersey, 530 U.S.
466 (2000). The government contends that Taylor
waived this argument by not raising it at any point in
the proceedings below.
Construing waiver principles liberally in Taylor’s
favor, it is possible that the failure to raise the argument
below was an oversight and not an obvious tactical deci-
sion, and thus merely a forfeiture that we review for
plain error. See United States v. Jaimes-Jaimes, 406 F.3d 845,
848-49 (7th Cir. 2005). But the district court did not err
at all, as a cursory glance at the statutory sentencing
scheme at the time shows. If the jury concluded that
10 No. 09-3425
Taylor was responsible for 50 or more grams of crack,
the statutory range would have been 10 years’ to life
imprisonment. 21 U.S.C. § 841(b)(1)(A)(iii). On the other
hand, if it concluded that Taylor was responsible for
more than 5 grams but less than 50, the range would
have been from 5 to 40 years’ imprisonment. Id.
§ 841(b)(1)(B)(iii). In fact, even if the jury had found that
Taylor was responsible for less than 5 grams, the
statutory maximum would have been 240 months. Id.
§ 841(b)(1)(C). Apprendi prohibits a sentence beyond the
maximum allowed by the facts found by the jury. But
Taylor’s reliance is misplaced: his sentence on the drug
counts was 180 months, and thus permitted by the jury
verdict of guilty regardless of the quantity of drugs
involved. Indeed, we have specifically held that the
special verdict of a jury concerning the amount of drugs
is irrelevant in such situations, because Apprendi
does not affect a sentence below the applicable statutory
maximum specified in 21 U.S.C. § 841(b)(1)(C). United
States v. Hernandez, 330 F.3d 964, 980 (7th Cir. 2003).
Second, Taylor argues that the district court erred in
applying a two-level enhancement for an obstruction
of justice. When reviewing an obstruction of justice en-
hancement, we review the underlying factual findings,
like all such findings, for clear error, “and we review
de novo whether those findings adequately support the
enhancement.” United States v. Vallar, 2011 WL 488877,
at *11 (7th Cir., Feb. 14, 2011) (quoting United States v.
Anderson, 580 F.3d 639, 648 (7th Cir. 2009)). Such an en-
hancement is appropriate where a defendant “willfully
obstructed or impeded or attempted to obstruct or
No. 09-3425 11
impede, the administration of justice,” U.S.S.G. § 3C1.1,
and perjury is a settled example of conduct that may
warrant an enhancement. Vallar, at *11. A defendant
commits perjury “if, while under oath, he gives false
testimony concerning a material matter with the willful
intent to provide false testimony, rather than as a result
of confusion, mistake, or faulty memory.” United States v.
Dunnigan, 507 U.S. 87, 94 (1993). When a defendant
objects to a sentencing enhancement arising from his
testimony, “a district court must review the evidence
and make independent findings necessary to establish a
willful impediment to or obstruction of justice, or an
attempt to do the same, under the perjury definition.”
Id. at 95.
In this case, the district court found that Taylor’s testi-
mony went beyond a “general denial of his involvement
in the drug activity” and that he committed perjury by
making “specific denials regarding his involvement . . .
with Byron Blake and testimony of Ryan Ivory and others.”
Taylor argues that this finding is insufficient under
Dunnigan to establish that he committed perjury. It is
true that the district court did not address each element
of the perjury definition in isolation, but Dunnigan
does not require this: the district court’s determination
is sufficient if “the court makes a finding of an obstruc-
tion of, or impediment to, justice that encompasses all of
the factual predicates for a finding of perjury.” 507 U.S. at
95. Here, the district court’s straightforward finding of
perjury satisfies the definition of perjury. There is no
doubt that the court found that Taylor’s testimony was
false. And the materiality and willfulness of the false
12 No. 09-3425
statements are established with the court’s finding that
Taylor’s testimony went well beyond a simple denial of
guilt, contradicting specific details of the testimony of
Ivory and Woods and providing an elaborately detailed
explanation of why the recorded phone calls involved
marijuana, rather than crack. The district court’s factual
findings encompass all the elements of perjury and there-
fore adequately support an enhancement for obstruction
of justice.
III.
There was sufficient evidence from which a jury could
conclude beyond a reasonable doubt that Taylor knew
that he was aiding Blake in distributing crack on
October 20, 2005. Therefore, we A FFIRM the judgment of
the district court. The jury’s contradictory findings on the
special verdict form regarding the amount of drugs
involved are irrelevant because the ultimate sentence
was below the mandatory minimum for a conviction
for distributing any amount of crack. Further, the
district court made sufficient factual findings to sup-
port a two-level enhancement for obstruction of justice.
Therefore, we A FFIRM the sentence of the district court.
3-29-11