In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 12-3349 & 13-1524
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JEREMY COOPER and STEVEN MCDOWELL,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Western Division.
Nos. 10 cr 50078-1, 10 cr 50078-4 — Frederick J. Kapala, Judge.
____________________
ARGUED APRIL 22, 2014 — DECIDED SEPTEMBER 12, 2014
____________________
Before POSNER, WILLIAMS, and TINDER, Circuit Judges.
WILLIAMS, Circuit Judge. Jeremy Cooper and Steven
McDowell were convicted on charges related to a heroin dis-
tribution conspiracy. They appeal, arguing first that there
was insufficient evidence to support their conspiracy convic-
tion. But a jury could reasonably conclude that they were co-
conspirators given the evidence that McDowell and Cooper
coordinated to obtain and sell drugs. Because there is suffi-
cient evidence to support his conspiracy conviction, the dis-
2 Nos. 12-3349 & 13-1524
trict court correctly held McDowell responsible for his co-
conspirators’ possession of firearms in furtherance of the
conspiracy. And the district court did not clearly err in find-
ing McDowell and Cooper responsible for more than one but
less than three kilograms of heroin based on Harris’s admis-
sion and the other reliable evidence, or in increasing
McDowell’s offense level for being a leader of the conspiracy
given the evidence that the conspiracy involved at least five
individuals and he organized and exerted control over them.
Therefore, we affirm Cooper’s and McDowell’s convictions
and sentences.
I. BACKGROUND
In January 2011, Steven McDowell (“McDowell”), Jeremy
Cooper, Norman Breedlove, Murray Harris, and Robert
Presley were charged with conspiring to possess with intent
to distribute and to distribute one kilogram or more of hero-
in in Rockford, Illinois. McDowell was also charged with six
counts of distributing heroin, in violation of 21 U.S.C. §
841(a)(1). In addition to the conspiracy charge, Cooper was
charged with four counts of distributing heroin, one count of
possessing a firearm in furtherance of a drug trafficking
crime in violation of 18 U.S.C. § 924(c)(1)(A), and one count
of being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g).
Steven McDowell’s mother, Donia McDowell (“Donia”),
and her boyfriend, Vaughn Johnson, testified at trial. But
their trial testimony, in which they denied having much
knowledge about the defendants’ alleged drug activities,
was much less illuminating than their grand jury statements.
The government impeached them with their previous state-
ments and introduced redacted versions of the grand jury
Nos. 12-3349 & 13-1524 3
testimony into the record as substantive evidence. Donia tes-
tified in her statement to the grand jury that she saw Cooper,
Presley, and another individual cut and package drugs in-
side her apartment on Longwood Street (an apartment that
McDowell, whose name was also on the lease, allegedly
helped her rent). She also overheard her son Steven discuss
purchasing drugs from Chicago twice a week with Cooper,
Harris, and Presley, and she estimated that they bought
about $1500 worth of drugs per trip. Donia testified that
McDowell financed the heroin buys while Cooper, Presley,
and Harris sold the drugs. According to Donia’s and John-
son’s grand jury testimony, this drug activity continued
through the summer, with McDowell, Cooper, Harris, and
Presley using Donia’s apartment to mix and package the
heroin, and selling it from the apartment and its parking lot.
Donia also testified that Cooper and Presley recruited other
men to help sell the drugs, and that she told her son that
Harris had to move his operations elsewhere when guns be-
gan showing up at her apartment. Johnson testified that
Harris, Cooper, and Presley then asked to sell their drugs
out of his apartment, a request he declined.
Other individuals testified about the drug activity at
Longwood. Law enforcement investigators and their in-
formants made controlled purchases of heroin from Cooper
at the Longwood apartment twice in November 2010.
Charles Dixon, who lived across the street, testified that he
received drugs from the apartment on occasion and saw
McDowell, Cooper, and Presley there “all the time.” Detra
White visited the Longwood apartment “practically every
day” and testified that Cooper and Presley tried to persuade
her to buy heroin in addition to her regular purchases of
crack cocaine. Rodney Love, Johnson’s friend and a frequent
4 Nos. 12-3349 & 13-1524
visitor to Longwood, told the jury that after he was released
from jail in November 2010, he saw Cooper and Presley
package heroin in the Longwood apartment and sell it in the
surrounding area. He testified that Melvin Jordan operated
as their tester, trying the drugs to ensure quality. After the
government refreshed his memory with his grand jury
statement, Love testified that McDowell began selling heroin
on a small scale a year earlier, but by November 2010, he had
“got[ten] big and had people working for him.”
Frank Freeman, who rented an apartment on Chestnut
Street to McDowell and Presley, testified in his grand jury
statement that those defendants used the apartment to sell
drugs. When investigators searched the Chestnut apartment
in October 2010, Cooper was inside, along with a gun, cell
phones, several packets of heroin, and packaging materials.
Outside the apartment, in a car rented to McDowell, they
found a traffic citation issued to Cooper and money transfer
receipts bearing McDowell’s name.
Rockford Police Detective Gabe Wassner’s trial testimony
established that he made several controlled buys from sev-
eral of the men charged in the conspiracy. In August 2010,
Detective Wassner bought fifteen bags of heroin from Breed-
love. That purchase led Detective Wassner to McDowell,
who sold Wassner’s informant twenty-one bags of heroin
and told him to have Wassner come directly to McDowell
when Wassner needed more heroin. The informant testified
that McDowell also told him that, if McDowell’s runners
were ever unable to provide him heroin, he should call one
of five other individuals involved in selling heroin. Detective
Wassner subsequently purchased heroin from McDowell
and Harris—McDowell’s brother—making two purchases in
Nos. 12-3349 & 13-1524 5
October, two in November, and one in December. For each
of these purchases, he negotiated the price with McDowell
and received the drugs from Harris, who was often driven to
the pickup spot by McDowell or someone driving McDow-
ell’s car. McDowell and Presley were arrested after
Wassner’s December drug buy, and a bag of heroin was
found close to their car.
At trial, Breedlove also told the jury that, beginning in
June, McDowell began selling him $500 worth of heroin for
$350 twice a week beginning in June. But in mid-July,
McDowell said he was stepping away from selling drugs
and that Breedlove should buy from Harris in the future.
From then on, Breedlove got most of his drugs from the
Longwood apartment, in the same multi-colored packaging
and at the same discounted price. He frequently saw indi-
viduals preparing the drugs under the supervision of Harris,
Presley, and Cooper. During some of his visits to Longwood,
Cooper or Presley retrieved Breedlove’s drugs at Harris’s
direction, but usually Harris handled Breedlove’s drug
transactions. And on the occasions when Breedlove was not
satisfied with the product, McDowell got involved, promis-
ing to “fix the problem” by ensuring Breedlove and his
complaining customers got better drugs. In late October, af-
ter Breedlove had received another bad batch of drugs from
Harris, McDowell told Breedlove he was stepping back in to
handle the drug sales and was on his way to buy some
drugs. McDowell later sold drugs to Breedlove and gave
him a free pack to make up for the bad drugs Breedlove had
received from Harris.
On December 1, 2010, there was a shootout at the Long-
wood apartment after White gave a bag of firearms to Pres-
6 Nos. 12-3349 & 13-1524
ley and Cooper in exchange for crack cocaine and cash. As it
turned out, the guns likely belonged to White’s son, Fred,
who tried to get them back, but when Cooper refused, they
drew their weapons and gunshots rang out. Donia, Johnson,
and Love all saw both Presley and Cooper with guns before
the pair fled the scene in Cooper’s rental car. Nine shell cas-
ings were recovered and matched to a handgun found in
Cooper’s car when he and Presley were arrested the next
day after selling heroin to a police informant. Investigators
also recovered a large amount of cash, bags of heroin, anoth-
er handgun, an ammunition clip, and a video showing
Cooper handling piles of money and making references to
drug trafficking from Cooper’s hotel room. In Presley’s
room, they found scales, grinders, sifters, bottles of Dormin,
and other drug paraphernalia.
Cooper’s charge for possessing a firearm in furtherance
of a drug trafficking offense was dismissed at the close of the
government’s case, but the jury found Cooper and McDow-
ell guilty on each of the other counts and found that the con-
spiracy involved more than one kilogram of heroin during
their participation in it. Their co-conspirators, Breedlove and
Harris, pled guilty to the conspiracy charges against them
and admitted that the conspiracy involved more than one
but less than three kilograms of heroin.
At Cooper’s sentencing hearing, the government pro-
posed that the conspiracy and Cooper were responsible for
1,048 grams of heroin each month from April to December
2010, for a total of more than five kilograms and an offense
level of 34. But the district court rejected the government’s
estimate and found Cooper responsible for more than one
but less than three kilograms of heroin, with a correspond-
Nos. 12-3349 & 13-1524 7
ing base offense level of 32. With an adjusted offense level of
34 and a criminal history level of V, Cooper’s advisory
guidelines range was 235-293 months’ imprisonment for the
conspiracy charge and the court sentenced him to 270
months. (The other charges yielded shorter sentences to be
served concurrently).
The trial judge rejected McDowell’s argument at sentenc-
ing that he should not be held responsible for the drugs
Presley and Cooper distributed and found that McDowell’s
offense conduct involved more than one but less than three
kilograms of heroin. The court also applied a four-level en-
hancement to McDowell’s sentence for leading a criminal
activity involving at least five participants. After concluding
that McDowell knew that Presley and Cooper possessed
guns to further the conspiracy, the court also applied a two-
level enhancement for possession by a co-conspirator of a
dangerous weapon in furtherance of the conspiracy.
McDowell was sentenced to 315 months on the conspiracy
charge and 240 months on the other counts, to run concur-
rently. Cooper and McDowell appeal their conspiracy con-
victions and sentences.
II. ANALYSIS
Cooper and McDowell both argue that there is insuffi-
cient evidence to support their conspiracy convictions or to
find them responsible for more than one kilogram of heroin.
McDowell also argues that the district court erred by en-
hancing his sentence for possessing a firearm and for being a
leader of the conspiracy. We take these arguments in turn.
8 Nos. 12-3349 & 13-1524
A. Sufficient Evidence to Support Conspiracy Convic-
tions
Cooper and McDowell’s task of overturning their con-
spiracy convictions is a daunting one, as it requires them to
show that no rational jury could have concluded that a con-
spiracy existed and that they were members. See United
States v. Folami, 236 F.3d 860, 863 (7th Cir. 2001); see also Unit-
ed States v. Johnson, 729 F.3d 710, 714 (7th Cir. 2013) (“We will
overturn a conviction based on insufficient evidence only if
the record is devoid of evidence from which a reasonable
jury could find guilt beyond a reasonable doubt.” (internal
quotations omitted)). Viewing the evidence in the light most
favorable to the government, as we must, Folami, 236 F.3d at
863, there is ample evidence to support a finding that
Cooper and McDowell conspired with others to possess and
distribute at least one kilogram of heroin.
To convict on the conspiracy charge, the government had
to 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.” United States v. Johnson,
592 F.3d 749, 754–55 (7th Cir. 2010). The record must evi-
dence an agreement to distribute, which can be established
through the parties’ relationships and conduct. Id. at 756.
Relevant evidence includes proof that they “embraced the
[conspiracy’s] criminal objective,” maintained “co-operative
relationships,” and “had some appreciable ability to guide
the destiny of the [drugs].” United States v. James, 540 F.3d
702, 707 (7th Cir. 2008) (internal citations and quotations
omitted). There is no real dispute on the facts before us that
a conspiracy existed. The issue is whether the evidence is
Nos. 12-3349 & 13-1524 9
sufficient to show that Cooper and McDowell were partici-
pants.
Cooper argues that he merely associated with conspira-
tors. He is right that mere presence at the scene of a drug
deal does not a co-conspirator make, see United States v. Tay-
lor, 600 F.3d 863, 868 (7th Cir. 2010), and if the evidence only
showed that he was in the Chestnut Street apartment when
drugs and packaging paraphernalia were recovered and oc-
casionally happened to be in the Longwood apartment, we
might have a different case. But, unfortunately for Cooper,
the evidence of his entanglement with the conspiracy is
much more damaging, and supports a finding that he coor-
dinated with the other alleged co-conspirators to sell drugs.
We begin with the testimony of McDowell’s mother
Donia, who made statements in her testimony before the
grand jury that implicated McDowell, Cooper, Harris, and
Presley in drug-trafficking activities. At trial, however,
Donia claimed that, while she remembered testifying before
the grand jury, she did not remember making the incriminat-
ing statements and did not know about the group’s alleged
illicit activities. Once she denied those statements, her grand
jury testimony was admitted at trial. Federal Rule of Evi-
dence 801(d)(1)(A) permits the court to admit a prior incon-
sistent statement given under oath for the truth of the matter
asserted in the statement when the declarant testifies at trial
and is subject to cross-examination regarding the prior
statement. See Fed. R. Evid. 801(d)(1)(A) (declaring that a tes-
tifying declarant’s prior inconsistent statement is not hearsay
when that statement was given under penalty of perjury);
United States v. DiCaro, 772 F.2d 1314, 1321 (7th Cir. 1985)
(“Since prior inconsistent statements that come within this
10 Nos. 12-3349 & 13-1524
Rule are defined as not being hearsay, they may be admitted
as substantive evidence for the truth of the matter asserted,
and not merely for impeachment purposes.”). Donia, the de-
clarant, denied any knowledge of the facts at issue and
claimed she could not recall her prior statements to the
grand jury. She therefore made statements during her testi-
mony at trial that were inconsistent with her admissions be-
fore the grand jury. See United States v. Williams, 737 F.2d
594, 608 (7th Cir. 1984) (“[W]e do not read the word ‘incon-
sistent’ in Rule 801(d)(1)(A) to include only statements dia-
metrically opposed or logically incompatible. … [I]f a wit-
ness has testified to certain facts before a grand jury and for-
gets them at trial, [her] grand jury statement falls squarely
within [the rule].” (quotations and internal alterations omit-
ted)). And defense counsel was free to cross-examine her
about the grand jury statements. See DiCaro, 772 F.2d at 1322
(finding that a witness’s “professed amnesia concerning the
subject matter of [her] grand jury testimony … does not
alone render [her] not subject to cross-examination under the
Rule”). Given those circumstances, there was no problem
with the court’s admission of Donia’s grand jury statement
as substantive evidence at trial. The rule is designed for situ-
ations like the one the prosecutors faced in this case. See Fed.
R. Evid. 801(d)(1)(A) advisory committee note (recognizing
that the rule protects a party from “the ‘turncoat’ witness
who changes his story on the stand and deprives the party
calling him of evidence essential to his case” (quotations
omitted)).
With that established, we return to the specific evidence
showing Cooper’s involvement with the drug distribution
scheme. In the portion of her grand jury statement that was
admitted at trial, Donia stated that she heard Cooper,
Nos. 12-3349 & 13-1524 11
McDowell, Presley, and Harris talk about buying drugs
twice a week from Chicago, and estimated that they brought
$1300 to $1500 worth of drugs after each trip for sale on the
streets of Rockford. She described Cooper’s coordination
with Presley, whom the record suggests is his father.
Throughout the summer, Donia saw Presley and Cooper mix
and package heroin in her apartment and sell it from her
parking lot in a car rented by McDowell. Her testimony was
confirmed by White, a regular customer of Cooper’s who
told the jury that Cooper and Presley tried to persuade her
to buy heroin in addition to her daily cocaine purchases.
Dixon, Johnson, and Love also verified Donia’s account with
their testimony that they witnessed Cooper prepare and sell
drugs with Presley and Harris throughout the summer. And
they did not work alone. According to Donia, Cooper and
Presley enlisted several young people to help with the drug
sales.
Additional evidence connected Cooper and Presley’s
drug activities to those of Harris. Breedlove’s testimony
suggested that Harris controlled the Longwood drug opera-
tion and Cooper and Presley worked for him. Although he
usually worked directly with Harris to secure his drugs,
Breedlove testified that sometimes Cooper got involved in
his transactions at Harris’s direction. He offered the jury an
illustration, describing a time when Harris gave Cooper the
key to retrieve Breedlove’s drugs. He also spoke of an occa-
sion when Cooper, in Harris’s absence, took Breedlove’s
money but did not want to return it when Breedlove tired of
waiting for the drugs. But when Breedlove called Harris,
Cooper promptly returned his money. Breedlove also con-
firmed that young people were working under Harris,
Cooper, and Presley’s supervision to prepare heroin in the
12 Nos. 12-3349 & 13-1524
Longwood apartment. This evidence would allow a rational
jury to find him guilty of conspiring to possess and distrib-
ute heroin.
McDowell’s argument fares no better. He took the stand
and admitted to conspiring with his brother Harris to dis-
tribute sixty grams of heroin but denied joining the larger
conspiracy with Cooper and Presley. McDowell argues there
is no evidence of coordination or of a mutually beneficial re-
lationship between him, Cooper, and Presley, and claims
that the evidence only demonstrates that he associated with
them or, at most, had a buyer-seller relationship with them,
which is insufficient to prove conspiracy. See Taylor, 600 F.3d
at 868 (“[M]ere association with conspirators, knowledge of
a conspiracy and presence during conspiratorial discussions
is not sufficient to convict a person of conspiracy.” (internal
quotations and citations omitted)); Johnson, 592 F.3d at 754
(conspiracy to distribute requires proof of more than a buy-
er-seller relationship).
We disagree and find sufficient evidence on the record to
establish that McDowell conspired with Harris, Cooper, and
Presley to buy and sell heroin. Donia testified, in the excerpt
of her grand jury statement admitted at trial, that McDowell,
Harris, Cooper, and Presley all sold drugs together, that she
heard McDowell discuss the conspiracy’s drug operations
with them, and that she knew McDowell financed their drug
buys twice a week. Add Breedlove’s testimony that the bags
of heroin he received from Harris, Cooper, and Presley out
of McDowell’s mother’s apartment were similar to the drug
packages he had previously received from McDowell him-
self and that McDowell was able to take control whenever
there was a problem with the drugs Breedlove bought from
Nos. 12-3349 & 13-1524 13
Longwood, and a reasonable jury could conclude that
McDowell participated in the heroin distribution conspiracy
with Harris, Cooper, and Presley.
The jury’s finding is also supported by the evidence that
McDowell rented the apartment on Chestnut Street with
Presley, which was the same apartment where Cooper was
found with drugs and drug paraphernalia with a car rented
by McDowell and used by Cooper parked outside. That
McDowell may not have touched the drugs on a daily basis
does not save him. See United States v. Spagnola, 632 F.3d 981,
986–87 (7th Cir. 2011) (recognizing that the government does
not have to prove defendant knew every other conspirator
or was involved in every aspect of the crime). Given the evi-
dence presented, we will not overturn the jury’s reasonable
finding that McDowell knew of and intentionally joined the
conspiracy to possess and distribute one kilogram of heroin.
B. Drug Quantity Finding Was Reasonable
Cooper next argues that the court erred in finding that
the conspiracy distributed more than one but less than three
kilograms of heroin during his association with it. McDowell
asks us to vacate the court’s finding that the same drug
quantity was attributable to him given his position that there
was insufficient evidence to connect him to the conspiracy,
but incorporates Cooper’s argument in case we view the ev-
idence differently. Since we disagree and find that the evi-
dence supports his conspiracy conviction, we confine our
discussion to whether the preponderance of the evidence
supported the finding that the conspiracy was responsible
for distributing one to three kilograms of heroin while
Cooper and McDowell were involved with it.
14 Nos. 12-3349 & 13-1524
Based in part on Donia’s grand jury statement that she
became aware that the co-conspirators were distributing
drugs as early as April 2010 and Freeman’s grand jury testi-
mony that Presley brought fifty to sixty grams of pure hero-
in from Chicago to Rockford twice a week, the government
argued at sentencing that the conspiracy produced over a
kilogram of diluted, street-level heroin every month from
April to November, for a total of at least five kilograms.
Cooper challenged the government’s calculation, and argued
that the court was bound by the stipulation during Breed-
love’s and Harris’s sentencing hearings that the conspiracy
involved more than one but less than three kilograms of
heroin. Noting that the government did not provide ade-
quate evidence to support its calculation, the trial court de-
clined to accept it and agreed with Cooper and McDowell
that they were responsible for the same drug quantity that
was attributed to their co-conspirator Harris, which was
more than one but less than three kilograms of heroin. 1
But Cooper and McDowell now argue on appeal that the
court’s drug quantity finding, which they urged below, was
in error. They assert that the evidence did not support a
finding that they were responsible for even one kilogram of
heroin. We generally review a district court’s drug quantity
finding for clear error, and will reverse only if a review of
the record leaves us with a “firm and definite conviction that
a mistake has been made.” See United States v. Adams, 746
F.3d 734, 739–40 (7th Cir. 2014). But in arguing for a drug
1Both Harris and Breedlove pled guilty and stipulated that the conspira-
cy distributed one to three kilograms of heroin, and Harris was sen-
tenced based on that stipulated drug quantity. Breedlove’s sentencing
was delayed pending his related appeal.
Nos. 12-3349 & 13-1524 15
quantity finding of one to three kilograms, Cooper and
McDowell forfeited the argument that the evidence only
supported a finding of less than one kilogram of heroin, and
therefore also forfeited the application of clear error review.
However, we still review this claim for clear error since the
government did not argue forfeiture in its appellate brief
and instead responded to Cooper’s argument. See United
States v. Prado, 743 F.3d 248, 251 (7th Cir. 2014) (“[W]here the
government fails to assert that an argument was forfeited
and fails to identify the standard of review appropriate for
such a forfeiture, the issue is treated as if the objection were
raised below and the standard of review appropriate to such
an issue controls.”).
The district court did not clearly err in holding Cooper
and McDowell accountable for more than one but less than
three kilograms of heroin. Breedlove and Harris admitted
that the conspiracy distributed that amount of heroin, and
the district court reasonably relied on those admissions in
attributing that drug quantity to the conspiracy. See United
States v. Medina, 728 F.3d 701, 705 (7th Cir. 2013) (recognizing
that the court only has to find that it was more likely than
not that defendants possessed the amount of drugs in ques-
tion). And we have previously held that where the district
court attributes one drug quantity to some conspirators, it
may not attribute a different drug quantity to other conspira-
tors on an identical record. United States v. Taylor, 600 F.3d
863, 871–72 (7th Cir. 2010). So the court was bound by its ac-
ceptance of Breedlove’s and Harris’s stipulations that the
conspiracy distributed one to three kilograms of heroin, un-
less there was evidence justifying holding Cooper and
McDowell accountable for a different quantity. See United
States v. Block, 705 F.3d 755, 761–62 (7th Cir. 2013) (suggest-
16 Nos. 12-3349 & 13-1524
ing that the district court can “consider new evidence in sen-
tencing a defendant after making an earlier drug quantity
determination for his co-conspirator”).
Cooper and McDowell argue that Taylor did not prevent
the court from deviating from their co-conspirators’ stipulat-
ed drug quantity because their factual records were different
and the court had “new evidence” that the stipulations were
based on the government’s flawed calculation. But they fail
to point to any material difference between their factual rec-
ords and Harris’s that would justify holding them responsi-
ble for a lesser drug quantity. Cooper argues, without cita-
tion, that the evidence showed that he was involved in the
conspiracy for a shorter time than Harris. But we strain to
find support for that assertion in the record. To the contrary,
the evidence supports a finding that Cooper and Harris were
both involved throughout the entire charged conspiracy—
from the time Donia became aware they were selling drugs
from her house in April until Cooper and others were arrest-
ed in December. Cooper and McDowell’s argument that the
government’s drug calculation constituted new evidence
similarly fails. The government’s calculation, however
flawed, was not evidence. It was an argument—one in fact
that the district court rejected—and the argument did noth-
ing to change the factual record before the court. Cooper and
McDowell therefore fail to provide a basis to justify attrib-
uting a different drug quantity amount to their conspiracy
convictions than the one to three kilograms that was found
in Harris’s case.
Their only surviving argument, then, is that there was in-
sufficient evidence altogether to support the court’s finding
that the conspiracy involved more than one but less than
Nos. 12-3349 & 13-1524 17
three kilograms of heroin. They assert that based on the evi-
dence at trial, no rational jury could find that the conspiracy
involved even one kilogram of heroin. But the trial judge,
who is responsible for determining the appropriate drug
quantity finding, is not limited to the evidence introduced at
trial and only has to find that the preponderance of reliable
evidence supports the drug quantity finding. See United
States v. Longstreet, 567 F.3d 911, 923–24 (7th Cir. 2009). The
collection of evidence bearing indicia of reliability, including
Breedlove’s and Harris’s admissions and Donia’s, Free-
man’s, and others’ testimonies establishing the extent and
duration of the conspiracy, supported a finding that the con-
spiracy involved at least one kilogram of heroin. See United
States v. Araujo, 622 F.3d 854, 863–64 (7th Cir. 2010) (affirm-
ing that trial judges may estimate the relevant drug quantity
based on sufficiently reliable evidence regarding the size of
the conspiracy’s drug sales, frequency of the dealing, and
duration of the criminal enterprise). The drug quantity find-
ing was not clearly erroneous.
C. No Error in McDowell’s Sentence
McDowell challenges two elements of his sentence: the
two-level enhancement for possessing a firearm and the
four-level enhancement for being a leader of a conspiracy
involving five or more participants. The United States Sen-
tencing Guidelines provide for a two-point increase to a de-
fendant’s sentence “if a dangerous weapon (including a fire-
arm) was possessed.” U.S.S.G. § 2D1.1(b). This enhancement
applies if the defendant “actually or constructively pos-
sessed a gun, or if coconspirators possessed firearms in fur-
therance of jointly undertaken criminal activity so long as
their possession was reasonably foreseeable to the defend-
18 Nos. 12-3349 & 13-1524
ant.” United States v. Harris, 230 F.3d 1054, 1057 (7th Cir.
2000) (internal citations omitted). McDowell admits that
Presley and Cooper possessed guns in furtherance of the
conspiracy and concedes that the enhancement applies if his
conspiracy conviction stands. Since we uphold his conspira-
cy conviction, we will not disturb the district court’s applica-
tion of the possession enhancement.
McDowell also objected to the four-level enhancement
for being a leader of a criminal organization involving five
or more participants, pursuant to U.S.S.G. § 3B1.1(a). He in-
stead argued that § 3B1.1(c)’s two-level enhancement should
apply. But after finding that McDowell exercised decision-
making authority over the drug operation, gave instructions
to other participants, and resolved consumer disputes, the
district court concluded that McDowell led a criminal activi-
ty of five or more participants and applied the enhancement.
On appeal, McDowell contests the finding that he was a
leader or organizer of the criminal organization and the find-
ing that the scheme involved five or more participants. But,
before the district court, his counsel conceded that he was a
leader or organizer and proceeded solely on a theory that the
preponderance of the evidence did not support finding that
the criminal enterprise involved at least five participants.
During McDowell’s sentencing hearing, the trial judge and
McDowell’s counsel engaged in the following exchange:
[Court]: … Mr. Phillips, you concede that the
defendant was a leader or organizer of a crimi-
nal enterprise under Section 3D1.1(c).
…
[Counsel]: … Yes, I did, Judge.
Nos. 12-3349 & 13-1524 19
[Court]: … And the reason I assume that
you’re contesting that he’s not a leader or or-
ganizer under (a) is just the number of the co-
conspirators.
[Counsel]: That is correct, Judge.
[Court]: That’s the only difference between (a)
and (c).
[Counsel]: That’s correct.
We are therefore faced with another instance of McDowell
making an argument before this court that he forfeited be-
low, which would normally preclude clear error review. But
this is déjà vu, because once again the government failed to
argue forfeiture, and so we will again proceed as though
McDowell preserved his argument below. See Prado, 743 F.3d
at 251. We review the district court’s determination of
McDowell’s role in the criminal organization and the num-
ber of participants for clear error. See Longstreet, 567 F.3d at
925.
U.S.S.G. § 3B1.1 directs the district court to increase a de-
fendant’s offense level “[i]f the defendant was an organizer
or leader of a criminal activity that involved five or more
participants … .” Even though the criminal activity must in-
volve at least five participants, the defendant only has to
“have had some real and direct influence, aimed at further-
ing the criminal activity” over one of them. United States v.
Mustread, 42 F.3d 1097, 1103 (7th Cir. 1994); see § 3B1.1 cmt.
n.2. In determining whether the defendant held a leadership
or organizational role, the district court should consider,
among other things, “the exercise of decision making author-
ity, the nature of participation in the commission of the of-
20 Nos. 12-3349 & 13-1524
fense, … the degree of participation in planning or organiz-
ing the offense, … and the degree of control and authority
exercised over others.” § 3B1.1 cmt. n.4; United States v. Rob-
ertson, 662 F.3d 871, 877 (7th Cir. 2011). “The central concern
of § 3B1.1 is the defendant’s relative responsibility for the
commission of the offense.” United States v. Vazquez, 673 F.3d
680, 685 (7th Cir. 2012) (quoting United States v. Mendoza, 576
F.3d 711, 717 (7th Cir. 2009) (internal quotations marks omit-
ted).
Witnesses testified that McDowell was the drug organi-
zation’s leader and that, in addition to securing the apart-
ments where the drugs were sold, he financed the drug buys
and sent Presley to Chicago to get the raw heroin for sale in
Rockford. He therefore organized the offense and “influ-
ence[d] the criminal activity by coordinating its members.”
See United States v. Are, 590 F.3d 499, 521 (7th Cir. 2009). His
mother’s testimony that she went to McDowell after the
shootout to have him tell Harris and others selling drugs
from her apartment that they had to leave sheds further light
on the influence he held over the individuals involved in the
criminal enterprise. Breedlove’s testimony also showed that
McDowell exercised decision-making authority, at least over
Harris. Not only was McDowell able to dictate a discounted
price for Breedlove’s purchases from Harris, but he had the
power to step in and command lower prices or complimen-
tary drugs whenever there was a problem with Harris’s
product. McDowell argues the evidence mentioned above
did not support the court’s finding because the other factors
listed in the Guidelines were absent, but “no single § 3B1.1
factor is essential in determining whether the adjustment
applies, and a court need not assign equal weight to each
factor.” Robertson, 662 F.3d at 877.
Nos. 12-3349 & 13-1524 21
McDowell also argues that the trial court erred because it
did not make a specific finding about whom McDowell con-
trolled; it did not state, as we did above, that it was Harris
whom McDowell controlled. But we cannot fault the district
court for not doing so because, again, McDowell conceded
that he was a leader and the main issue before the district
court was how many participants the organization involved.
Nevertheless, we reiterate that although naming the con-
trolled individual assists in our review, the district court is
not required to explicitly name the participant the defendant
controlled so long as it is clear from its findings and the evi-
dence that the defendant actually did manage or supervise a
participant. United States v. Mansoori, 304 F.3d 635, 669 (7th
Cir. 2002). The court’s conclusion that McDowell “instructed
other participants” and “resolved disputes over the quality
of the heroin” is supported by the record and makes clear
that the court found that McDowell managed or supervised
Harris, and we find no error with its failure to specifically
name Harris.
The district court likewise did not clearly err in finding
that the trafficking organization involved at least five indi-
viduals. McDowell argues that Breedlove was not a partici-
pant in the drug scheme, but that argument is ineffective be-
cause the district court found that the criminal organization
involved at least five participants even if we remove Breed-
love from its count, and we agree that there were more than
five participants without including him. Harris, Presley, and
Cooper were all convicted as participants in the conspiracy.
And witnesses testified that numerous other individuals as-
sisted with mixing and packaging the drugs in the Long-
wood apartment and several others acted as “runners” for
McDowell, distributing his drugs to individual consumers.
22 Nos. 12-3349 & 13-1524
Those individuals are properly considered participants in
the organization. See § 3B1.1 cmt. n.1 (“A ‘participant’ is a
person who is criminally responsible for the commission of
the offense, but need not have been convicted.”); United
States v. Zuno, 731 F.3d 718, 723 (“What matters is that the
person knowingly aided some part of the criminal enter-
prise.” (quoting United States v. Blaylock, 413 F.3d 616, 618
(7th Cir. 2005))). The district court did not clearly err in find-
ing that McDowell was a leader of at least one participant in
a criminal organization involving five or more participants,
and so did not clearly err in applying the four-level en-
hancement.
III. CONCLUSION
The convictions and sentences of Jeremy Cooper and Ste-
ven McDowell are AFFIRMED.