In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2503
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
W ILLIE E ARL JOHNSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:05-cr-00980-18—Blanche M. Manning, Judge.
A RGUED F EBRUARY 16, 2011—D ECIDED JUNE 28, 2011
Before P OSNER, FLAUM, and SYKES, Circuit Judges.
F LAUM, Circuit Judge. This panel vacated Willie Earl
Johnson’s conviction for conspiring to distribute drugs and
remanded to the district court to resentence him on his two
remaining convictions. See United States v. Johnson, 592 F.3d
749 (7th Cir. 2010). After resentencing, Johnson appeals
again, this time arguing that the district court committed
procedural errors at resentencing and erred in reaching its
relevant conduct finding. With some reluctance, we affirm
the relevant conduct finding. But we remand because the
2 No. 10-2503
district court did not respond to Johnson’s repeated
requests for a reduced crack-to-powder ratio.
I. Background
Johnson and eight other defendants were indicted on
charges related to selling crack cocaine and heroin in and
around Aurora, Illinois, from approximately 2002 until
2005. Johnson was charged with conspiring to distribute
and to possess with intent to distribute controlled sub-
stances in violation of 21 U.S.C. §§ 841(a)(1) and 846
(Count One), possessing with intent to distribute
a controlled substance, in violation of 21 U.S.C. § 841(a)(1)
(Count Eleven), and utilizing a telephone to facilitate a
felony drug crime, in violation of 21 U.S.C. § 843(b) (Count
Twelve). Seven defendants pled guilty, while Johnson and
his co-defendant Ismael Garza went to trial.
A jury found Johnson guilty on all three counts
and concluded in a special verdict that he was accountable
for between five and fifty grams of crack. At his
first sentencing hearing, the district court attributed
31.5 grams of crack to him and sentenced him to
72 months’ imprisonment on Counts One and Eleven, and
48 months’ imprisonment on Count Twelve, to
run concurrently.
On appeal, we vacated Johnson’s conviction on Count
One due to insufficient evidence, but affirmed his remain-
ing convictions on Counts Eleven and Twelve. Johnson, 592
F.3d at 759. Accordingly, we remanded for resentencing on
Counts Eleven and Twelve because the jury’s special
No. 10-2503 3
verdict assigning a quantity of five to fifty grams of crack
was vacated with the conspiracy count. Id.
On remand, at Johnson’s second sentencing hearing, the
parties disputed whether phone calls between Johnson and
Craig Venson, the kingpin of drug conspiracy, supported
a relevant conduct finding under United States Sentencing
Guidelines (“U.S.S.G.”) § 1B1.3 based on drug transactions
discussed in the calls, and, if so, the quantities and types of
drugs for which Johnson was responsible. Johnson also
requested a 1:1 crack-to-powder ratio, instead of 100:1.
The district court found by a preponderance of the
evidence that Johnson was accountable for 23 grams
of crack and calculated a guidelines range of 92 to 115
months. After considering the factors in § 3553(a), the
district court sentenced him to 72 months’ imprisonment
on Count Eleven and 48 months’ imprisonment on Count
Twelve, to be served concurrently.
II. Analysis
A. The Crack/Powder Disparity at Sentencing
Johnson argues that the district court committed a
procedural error at resentencing by not expressly respond-
ing to his repeated requests for a 1:1 crack-to-powder ratio.
We review de novo whether the district court followed
proper sentencing procedures. United States v. Coopman, 602
F.3d 814, 817 (7th Cir. 2010).
We agree with Johnson that the district court erred. A
sentencing court need not respond expressly to every
4 No. 10-2503
argument a defendant makes, but it must address “ ’all of
a defendant’s principal arguments that are not so weak as
to not merit discussion.’ ” United States v. Arberry, 612 F.3d
898, 899 (7th Cir. 2010) (quoting United States v. Villegas-
Miranda, 579 F.3d 798, 801 (7th Cir. 2009)). At resentencing,
the district court briefly discussed some of the factors in
§ 3553(a). But it never responded to Johnson’s repeated
requests for a reduced ratio. Johnson specifically refer-
enced the district court’s authority “to reject and
vary categorically from the crack-cocaine Guidelines based
on a policy disagreement with those Guidelines,” Spears v.
United States, 555 U.S. 261, 129 S.Ct. 840, 844 (2009), listed
policy grounds that have motivated other sentencing
courts to apply a reduced crack-to-powder ratio, and asked
multiple times for a reduced ratio. His argument for a
reduced ratio was one of his primary contentions at
resentencing and was certainly not so weak as to not merit
discussion. See id. at 843-44; Kimbrough v. United States, 552
U.S. 85, 91, 110 (2007); Arberry, 612 F.3d at 899-901. In
fact, numerous other judges in the Northern District
of Illinois have applied lower ratios. See, e.g., United States
v. Edwards, No. 04-cr-1090-5, slip op. at 6, 2009 WL 424464,
at *3 (N.D. Ill. Feb. 17, 2009) (Gottschall, J.) (concluding
“that a 10:1 ratio is all that can possibly be justified”
in light of “evidence that the harms produced by powder
and crack are essentially the same (with the unquantifiable
possibility that crack may be more addictive)”); United
States v. Rodriguez, No. 08-cr-509-1, slip op. at 4-5, 2009 WL
1811001, at *2 (N.D. Ill. June 23, 2009) (Darrah, J.) (applying
a 20:1 ratio).
No. 10-2503 5
Our holding in United States v. Arberry, 612 F.3d 898 (7th
Cir. 2010), is directly on point. In that case, we vacated a
defendant’s sentence and remanded for resentencing
because the district court did not respond to the defen-
dant’s argument for a 1:1 ratio, which was one of his
principal arguments at sentencing. Id. at 900-01.
We disagree with the government’s contention that
Arberry is meaningfully distinct because the defendant in
that case received a within-guideline sentence, albeit on the
low end of the applicable guideline range, and Johnson
received a below-guideline sentence. Id. at 899. Arberry
applies because the district court there, as here, did not
respond to a criminal defendant’s principal, plausible
argument for a reduced crack-to-powder ratio. The govern-
ment points out that we wrote in United States v. Poetz, 582
F.3d 835 (7th Cir. 2009), that the “requirement that the
district court specifically address the defendant’s principal,
potentially meritorious sentencing arguments applies with
less force” where “the judge received voluminous evidence
and listened carefully to [the defendant’s] arguments . . .
and in the end imposed a short prison sentence signifi-
cantly below the applicable guidelines range.” Id. at 837.
Arberry’s force may be weakened, but it still applies.
We also reject the government’s argument that the
district court implicitly addressed Johnson’s request for a
lower ratio. See, e.g., United States v. Carrillo-Esparza,
590 F.3d 538, 540 (7th Cir. 2010); Poetz, 582 F.3d at 837-
40. The government directs us to Poetz, which we
find distinct because the record in that case demonstrated
that the district court considered the defendant’s argu-
6 No. 10-2503
ments about her and her family’s medical problems and
the im pact of incarceration as opposed to
home confinement on her family, even though it did not
expressly address each argument on the record. 582 F.3d at
837-40. Specifically, we explained that “Poetz’s health
problems took center stage” during sentencing, and “the
judge imposed a sentence substantially below the applica-
ble guidelines range largely because of her medical condi-
tion.” Id. at 838. We also found that the district court
implicitly expressed that it believed imprisonment, as
opposed to home confinement, was necessary based on a
portion of the record where “[t]he judge explained that
despite Poetz’s medical issues, a period of incarceration
was ‘fundamentally required’ to promote respect for the
law, provide for deterrence, and hold Poetz accountable for
her breach of the trust placed in stewards of public funds.”
Id. We concluded that “ ’anyone acquainted with the facts
would have known without being told why the judge had
not accepted the argument.’ ” Id. (quoting United States v.
Cunningham, 429 F.3d 673, 679 (7th Cir. 2005)). Finally, we
explained that Poetz’s argument about the effect of incar-
ceration on her family lacked legal support and, regardless,
we found that the district court implicitly considered her
argument based on the fact that the judge had voluminous
evidence before him substantiating the argument and
“[his] sentencing remarks [we]re peppered with references
to [Poetz’s] family.” Id. at 839.
Unlike in Poetz, the record provides no indication that the
district court implicitly considered Johnson’s argument for
a reduced ratio. Although Johnson received a below-
guideline sentence, we have no basis to conclude that his
No. 10-2503 7
sentence had anything to do with the crack/powder
disparity. To the contrary, it appears that the district court
calculated Johnson’s guideline range based on a 100:1 ratio
and showed no receptiveness to his argument for a re-
duced ratio. We have no grounds to conclude that the
district court applied a reduced ratio, as opposed to setting
a below-guideline sentence based on a 100:1 ratio, or that
the district court’s decision to impose a below-guideline
sentence was in any way related to the crack/powder
disparity. We cannot assume that the district court implic-
itly considered Johnson’s argument for a reduced ratio
merely because it imposed a below-guideline sentence.
Rather, we assume only that if the district court had
applied a reduced ratio or decided to impose a below-
guideline sentence based on the crack/powder disparity, it
would have expressly or implicitly indicated as much on
the record.
Accordingly, we vacate Johnson’s sentence and remand
to give the district court an opportunity to consider and
address his arguments for a reduced crack-to-powder ratio.
The district court need not conduct a complete sentencing
hearing, although, as we explain below, we invite it to do
so.
We reject Johnson’s request for a broader remedy.
Relying on Spears v. United States, 555 U.S. 261, 129
S.Ct. 840 (2009), he asks us to categorically prohibit
the district courts in the Northern District of Illinois from
using the 100:1 ratio based on policy considerations
indicating the disparity’s unfairness. But Spears does
not authorize us to grant such relief. The Court in Spears
wrote merely that “district courts are entitled to reject and
8 No. 10-2503
vary categorically from the crack-cocaine Guidelines based
on a policy disagreement with those Guidelines.” Id. at 843-
44 (emphasis added); see also United States v. Corner, 598
F.3d 411, 414-15 (7th Cir. 2010). That authority resides in
district courts, not courts of appeals. See Spears, 129 S.Ct. at
843-44; Kimbrough, 552 U.S. at 91, 110; see also Corner, 598
F.3d at 415 (“We understand Kimbrough and Spears to mean
that district judges are at liberty to reject any Guideline on
policy grounds—though they must act reasonably when
using that power.”). The courts of appeals review sentences
for procedural errors and substantive reasonableness, see,
e.g., Gall v. United States, 552 U.S. 38, 51 (2007); United States
v. West, 628 F.3d 425, 431 (7th Cir. 2010), but we cannot
categorically prohibit all sentencing courts from applying
a 100:1 ratio.
We thus reject Johnson’s final argument related to the
crack/powder disparity, that his sentence is unreasonable
based on the fact that the district court did not apply
a reduced ratio. As explained above, the district court had
discretion to apply a 100:1 ratio and to impose a below-
guideline sentence. We find no abuse of discretion.
B. Relevant Conduct
In Johnson’s first appeal, we vacated his conspiracy
conviction but found that the intercepted phone calls
on July 2, 2004, supported his conviction for possessing
crack with intent to distribute, in violation of 21
U.S.C. § 841(a)(1). Johnson, 592 F.3d at 757-59. Based on
those calls, the district court determined at re-
sentencing that Johnson possessed with intent to distribute
No. 10-2503 9
3.5 grams of crack on July 2, and ultimately attributed 23
grams of crack to him in setting his sentence based on the
intercepted calls between Johnson and Venson that evi-
denced crack transactions between the two.
“A court may increase a defendant’s sentence for un-
charged and unconvicted relevant conduct provided that
the conduct constitutes part of the ‘same course of conduct
or common scheme or plan as the offense of conviction.’ ”
United States v. Stephenson, 557 F.3d 449, 456 (7th Cir. 2009)
(quoting U.S.S.G. § 1B1.3(a)(2)); see also United States v.
Singleton, 548 F.3d 589, 591-92 (7th Cir. 2008). “Conduct
that qualifies as relevant is factored into the Guidelines’
sentencing calculations as if the defendant had been
convicted of that conduct, even though the defendant was
neither charged nor convicted of the additional crime or
crimes.” United States v. White, 519 F.3d 342, 347 (7th Cir.
2008). The government bears the burden of establishing
relevant conduct by a preponderance of the evidence. Id. at
347; United States v. Acosta, 85 F.3d 275, 279 (7th Cir. 1996).
As long as the district court based its conclusion on reliable
information, we review its determination that relevant
conduct occurred and its calculation of the drug amount
attributable to the defendant for clear error. See White, 519
F.3d at 348; Acosta, 85 F.3d at 279. We reverse “only if, after
reviewing the entire record, we are left with the firm and
definite conviction that a mistake has been made.” United
States v. Cross, 430 F.3d 406, 410 (7th Cir. 2005) (internal
quotation marks and citation omitted).
The district court relied on intercepted phone calls
between Johnson and Venson on July 1, 2, and 6, and
10 No. 10-2503
August 14, 20, and 31, among other evidence, to hold
Johnson accountable for 23 grams of crack in setting
his sentence. It concluded that each call evidenced occa-
sions on which Johnson purchased drugs and either resold
them or intended to, and thus that each constituted
relevant conduct under U.S.S.G. § 1B1.3.
Johnson contends that the district court committed four
errors in reaching its drug quantity finding: (1) it clearly
erred by finding that he possessed and sold or intended to
sell the crack discussed in the intercepted calls, and that
the code words “pack,” “basketball,” and “quarter pounder
with cheese” referred to 1 gram, 3.5 grams, and 7 grams of
crack, respectively; (2) it improperly based its relevant
conduct finding on testimony from unreliable witnesses;
(3) it did not explicitly find that his unconvicted conduct
was sufficiently related to the convicted offense to consti-
tute relevant conduct; and (4) it should not have consid-
ered FBI Special Agent Thomas Wilson’s testimony at
resentencing. While acknowledging that this is a close case,
we conclude that the district court did not clearly err in
attributing 23 grams of crack to Johnson, and we reject his
remaining arguments.
1. The District Court’s Relevant Conduct Finding
First, the district court did not clearly err in con-
cluding that Johnson possessed and sold or intended to sell
the crack discussed in the intercepted calls on July 1, 2, and
6, and August 14, 20 and 31. Johnson concedes that there is
sufficient evidence for the district court to have found that
he possessed with intent to distribute the 3.5 grams of
No. 10-2503 11
crack discussed in the July 2 calls, which formed the basis
of his conviction. There is also record evidence indicating
that he met Venson on August 14 shortly after requesting
crack from him on an intercepted call, and that he intended
to resell the drugs shortly after Venson delivered them.
Johnson correctly points out that there is less evidence that
he possessed and distributed or intended to distribute the
drugs he ordered on the other calls. But after reviewing
the record, we are not “left with the firm and definite
conviction that a mistake has been made.” Cross, 430 F.3d
at 410 (internal quotation marks and citation omitted).
We similarly find no clear error in the district court’s
decision that a “pack” referred to 1 gram of crack, a
“basketball” 3.5 grams of crack, and a “quarter pounder
with cheese” 7 grams of crack. While the intercepted calls
between Johnson and Venson do not indicate the quantities
of drugs to which the code words they used refer, other
record evidence, including testimony from Tosumbua
Parker, one of Johnson’s co-defendants, and a concession
by Johnson’s trial counsel, supports the district court’s
conclusion.
Despite our conclusion that there is enough evidence to
affirm the district court’s relevant conduct finding, how-
ever, Johnson correctly points out that we must reverse if
the evidence was not sufficiently reliable. See United States
v. Wilson, 502 F.3d 718, 721-22 (7th Cir. 2007); Acosta, 85
F.3d at 281-82. He specifically contends that Parker, Agent
Michael Culloton, and Agent Wilson provided unreliable
testimony. While they could have provided stronger
testimony, after reviewing the record, we find sufficient
12 No. 10-2503
indicia of reliability that their relevant testimony was likely
accurate.
2. Explicit Findings
We also disagree with Johnson’s argument that the
district court erred by not explicitly finding that
the transactions on July 1 and 6, and August 14, 20, and 31
were sufficiently related to the offense of conviction, which
occurred on July 2, to constitute relevant conduct. See
U.S.S.G. § 1B1.3. See generally United States v. Arroyo, 406
F.3d 881, 889 (7th Cir. 2005) (“When a district court aggre-
gates drug quantities arising from uncharged or unconvict-
ed relevant conduct for purposes of calculating a defen-
dant’s base offense level, we have required the court to
explicitly state and support, either at the sentencing
hearing or (preferably) in a written statement of reasons, its
finding that the unconvicted activities bore the necessary
relation to the convicted offense.” (internal quotation
marks and citations omitted)); United States v. Winbush, 580
F.3d 503, 513-14 (7th Cir. 2009). First, although the district
court did not expressly use the phrases “same course of
conduct” or “common scheme,” which appear in U.S.S.G.
§ 1B1.3, the record demonstrates that it made the necessary
findings. See Wilson, 502 F.3d at 723 (upholding a finding
under U.S.S.G. § 1B1.3 where, although the court did not
specifically use the phrases in the sentencing guidelines, it
was clear from the record that the court made the requisite
findings); see also United States v. Williams, 272 F.3d 845, 852
(7th Cir. 2001); Acosta, 85 F.3d at 280. Regardless, Johnson
concedes in his reply brief, and we agree, that “[i]f
No. 10-2503 13
the Government had introduced sufficient evidence
to prove by a preponderance of the evidence that Johnson
possessed and distributed (or intended to distribute) the
drugs involved in calls [on days other than July 2], then
those transactions would be relevant because they were
temporally related and involved transactions with the
same group of sellers.” Thus, since we conclude that the
government did introduce sufficient evidence, even if the
district court erred, the error was harmless. See F ED. R.
C RIM. P. 52(a); Arroyo, 406 F.3d at 890 (no plain error where
the district court assumed without specifically finding that
the defendant’s cocaine activity was sufficiently related to
his heroin conviction because “the record could support
the conclusion that the two offenses were part of the same
course of conduct”).
3. Agent Wilson’s Testimony at Resentencing
Finally, we find no merit to Johnson’s claim that the
district court erred by considering Agent Wilson’s testi-
mony at resentencing. The district court initially sustained
Johnson’s objection to Agent Wilson testifying, finding his
testimony tentative and imprecise and concluding that the
government had not shown enough to present him as a
witness. But after the government presented a Report to
Congress discussing the prices of crack based on data from
twenty American cities and relied on it to make arguments
about the price of crack in Aurora, the government asked
that Agent Wilson be allowed to testify about drug prices,
since his experience included investigations in Aurora, the
14 No. 10-2503
Chicago area, and Washington, D.C. The district court
ultimately permitted Agent Wilson to testify, and he
proceeded to discuss crack prices, use and distribution
quantities of crack, and various code words drug dealers
use. Johnson claims that the district court erred by permit-
ting Agent Wilson to testify, and references the fact that the
district court did not specify whether Agent Wilson was
testifying as an expert.
First, Johnson’s argument is waived because he provides
no authority indicating that the district court erred by
permitting Johnson to testify. See United States v. Useni, 516
F.3d 634, 658 (7th Cir. 2008) (failure to cite relevant author-
ity constitutes waiver). But even if not waived, his argu-
ment is meritless.
The Federal Rules of Evidence do not apply in sentenc-
ing hearings and the district court was entitled to rely
on [a witness]’s testimony even if it may not have
qualified as expert testimony under Federal Rule of
Evidence 702. The Guidelines (and the Due Process
Clause) allow sentencing courts to rely on information
that ‘has sufficient indicia of reliability to support its
probable accuracy.’
United States v. Hunter, 145 F.3d 946, 952 (7th Cir.
1998) (quoting U.S.S.G. § 6A1.3(a)); see also United States v.
Schroeder, 536 F.3d 746, 752 (7th Cir. 2008). As explained
above, Agent Wilson’s testimony was sufficiently reliable
to permit its consideration at sentencing. The district court
did not err by considering it.
No. 10-2503 15
III. Conclusion
For the foregoing reasons, we V ACATE Johnson’s sen-
tence and R EMAND for the district court to consider
his argument for a reduced crack-to-powder ratio. We
A FFIRM the district court’s decision to attribute 23 grams
of crack to Johnson. But we note that the evidence appears
to have permitted a lower drug quantity finding. Although
our standard of review on appeal prevents us from direct-
ing the district court to re-open fact finding on this
issue, the interests of justice may warrant reconsideration
of Johnson’s relevant conduct, and we invite the district
court to do so.
6-28-11