In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2423
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ABOSEDE ABDULAHI,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03-CR-708—Ronald A. Guzman, Judge.
____________
ARGUED FEBRUARY 29, 2008—DECIDED APRIL 23, 2008
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Before POSNER, ROVNER, and EVANS, Circuit Judges.
EVANS, Circuit Judge. Abosede Abdulahi pleaded guilty
(without a plea agreement) to a charge of conspiracy to
possess with intent to distribute a controlled substance. See
21 U.S.C. §§ 846, 841(a)(1). Although drug quantity is not
an element of the charged crime, the indictment alleged
that Abdulahi’s offense involved “in excess of 100 grams
of mixtures containing heroin.” When Abdulahi learned
that the government intended to seek a sentence based
on 17 kilograms of heroin, she moved to withdraw her
guilty plea, but the district court denied her motion. At
sentencing, the court used a drug quantity of 17 kilograms
2 No. 06-2423
to calculate Abdulahi’s range of 188 to 235 months under
the sentencing guidelines. A sentence of 188 months was
imposed. On appeal, Abdulahi has forsworn her desire to
withdraw her guilty plea. Instead, she challenges her
sentence as unconstitutional and unreasonable because
it was based on an amount of heroin much greater than
that alluded to in the indictment. We have rejected chal-
lenges like Abdulahi’s before, and we do so again here.
Before her troubles with law enforcement, Abdulahi
apparently controlled a significant portion of the Chicago-
area heroin market. Alas, things started to go sour when
a confidential informant gave the DEA the name of a
heroin dealer a few links down the chain from Abdulahi.
After his arrest, the dealer pointed the finger at another
dealer who, in turn, pointed his finger at Abdulahi, telling
agents that she was the ringleader. Agents subse-
quently arrested Abdulahi and searched the apartment
that she and her associates were using as a base for their
operation. They found assorted drug paraphernalia,
$14,500 in cash, 583 grams of heroin, and a ledger that
recorded drug sales to more than a dozen different buy-
ers.1 For her part, Abdulahi claimed that she was not
the leader of a heroin ring. She said she fled her native
Nigeria for the United States when she discovered that
her husband was a major drug dealer there. Abdulahi
claimed that she only got involved in drug dealing here
1
Lest the term “ledger” suggest the sort of fancy hardbound
books used by green-visored accountants in the old days,
we note that the “ledger” in question here was nothing more
than a 70-sheet, wide-ruled, spiral-bound notebook, the type
elementary school students stock up on each fall at back-to-
school sales.
No. 06-2423 3
because her associates in the drug ring threatened that
if she did not assist them, they would harm her children
who remained in Nigeria.
Abdulahi’s indictment alleged that her crime involved
“in excess of 100 grams of mixtures containing heroin.”
Although other members of the drug ring cooperated
with the government, Abdulahi refused, claiming that
she feared for the safety of her family in Nigeria if her
husband found out that she was cooperating. She chose
not to go to trial, however, and, as we said, pleaded
guilty to the charge against her without a plea agreement.
At her change of plea hearing, the district judge engaged
in the colloquy required by Federal Rule of Criminal
Procedure 11. Relevant to our purposes, he made sure
that Abdulahi was aware of the maximum sentence that
could be imposed—40 years. See Fed. R. Crim. P.
11(b)(1)(H); 21 U.S.C. § 841(b)(1)(A). The judge ex-
plained that, while the statutory minimum was 5 years,
he would not determine the guidelines range until
later, and Abdulahi told the judge that her lawyer had
talked to her about the guidelines. The government
stated the factual basis for the plea, pinning responsibility
on Abdulahi for 988 grams of heroin, and Abdulahi
admitted that the facts presented were true.
After Abdulahi pleaded guilty, a probation officer
prepared a presentence report that reflected the gov-
ernment’s intent to seek a sentence based on 17 kilograms
of heroin. That figure was computed from entries in the
ledger that was found when Abdulahi’s apartment was
searched. After she learned that the government intended
to seek a sentence based on such a high drug quantity,
Abdulahi sought to withdraw her guilty plea. But after
a thorough hearing, at which Abdulahi was represented
4 No. 06-2423
by new counsel, her request was denied. We need not
consider the arguments that the district judge rejected
because, on appeal, Abdulahi has renounced her attempt to
withdraw the plea.
At sentencing, Abdulahi argued against the drug quan-
tity and against an enhancement for being a manager of
an enterprise. See U.S.S.G. § 3B1.1. The government pre-
sented the testimony of another member of the drug
ring, plea agreements of two other members, and an FBI
analysis of the drug ledger. Fingerprints, a palm print, and
handwriting analysis linked the ledger to Abdulahi.
Abdulahi argued that the other members of the heroin
ring were not credible and that the analysis of the drug
ledger was not reliable, but the district judge disagreed.
Crediting the testimony and plea agreements, he found that
Abdulahi was a manager of the drug ring and that she was
responsible for more than 17 kilograms of heroin. This
yielded a base offense level of 36, U.S.S.G. § 2D1.1(c)(2), to
which 3 points were added for being a manager, id.
§ 3B1.1(b), and 3 points were subtracted for her acceptance
of responsibility, id. § 3E1.1. Combined with Abdulahi’s
lack of any criminal history, the district court calculated a
guidelines range of 188 to 235 months and imposed the
lowest within-guidelines sentence of 188 months.
On appeal, Abdulahi argues that the district court
should not have sentenced her based on such a high drug
quantity because, she insists, the amount specified in the
indictment constrains the district court at sentencing. In a
general sense, this proposition is correct, but it does not
help Abdulahi. After Apprendi v. New Jersey, 530 U.S. 466
(2000), any fact that increases the statutory maximum
sentence must be proven to a jury beyond a reasonable
doubt or admitted by the defendant. Id. at 490; United States
No. 06-2423 5
v. Brough, 243 F.3d 1078, 1079 (7th Cir. 2001). But when a
judge imposes a sentence below the statutory maximum,
he may do so based on facts found by a preponderance
of the evidence. Id. at 1079-80. As we have repeatedly
explained, Apprendi has no application to cases like this
one where the sentence is below the statutory maximum.
See United States v. Hernandez, 330 F.3d 964, 980-81 & n.11
(7th Cir. 2003) (collecting cases).
In addition to vainly invoking Apprendi, Abdulahi points
to two other sources, the Fifth Amendment’s Due Process
and Indictment Clauses, for her argument that the drug
quantity at sentencing should have been capped by the
amount specified in the indictment. But her argument
cannot succeed unless drug quantity is an element of the
charged offense, and it is not. United States v. Henry,
408 F.3d 930, 934 (7th Cir. 2005). An indictment must
fairly inform a defendant of the charge against her,
United States v. Resendiz-Ponce, 127 S. Ct. 782, 788 (2007),
and under the Due Process Clause she cannot be con-
victed of an offense “without notice and a meaningful
opportunity to defend,” Jackson v. Virginia, 443 U.S. 307,
314 (1979). But these requirements apply to conviction
and not to sentencing. Neither would be offended by
the use of a drug quantity at sentencing that is incon-
sistent with that specified in the indictment (assuming
that the sentence is below the statutory maximum, of
course). Drug quantity is a sentencing factor, and be-
cause it is not necessary to establish a violation of the
statute in question, the indictment need not even include
it. See United States v. Peters, 435 F.3d 746, 752 (7th Cir.
2006).
Even if a drug quantity specified in the indictment
did constrain the guidelines calculations at sentencing,
6 No. 06-2423
Abdulahi’s sentence would not be problematic. She cannot
seriously argue that the quantity used here, 17 kilograms,
is somehow inconsistent with the indictment’s reference
to “in excess of 100 grams.” Section 841(b)(1)(A) sets the
statutory penalty range for 100 grams or more at 5 to 40
years, and section 841(b)(1)(B) sets the penalty range for
1 kilogram or more at 10 years to life. Abdulahi would
have us read the latter as putting an upper limit on the
former by reading an allegation of 100 grams or more as
necessarily not including any quantity above 1 kilogram,
but there is no basis for such a reading. The two provi-
sions are clearly meant to overlap: just because the gov-
ernment could have sought a conviction based on a higher
drug quantity does not mean that it was required to do so.
Next, Abdulahi argues that her sentence is unreason-
able because in great part it is based on uncharged allega-
tions. This is another argument that could not succeed
even if drug quantity were an element of the offense
because—it hardly needs repeating—17 kilograms is “in
excess of 100 grams.” We only vacate sentences based
on uncharged allegations in tail-wagging-the-dog situa-
tions where a sentence is based on “relevant conduct” that
we do not consider to be truly relevant. See, e.g., United
States v. McGowan, 478 F.3d 800, 802-03 (7th Cir. 2007). But
no such conduct is at issue here. Abdulahi pleaded guilty
to conspiring to possess with intent to distribute heroin,
and she was sentenced properly based on the amount
of heroin attributable to the conspiracy. U.S.S.G. § 1B1.3
cmt. 2 (defendant accountable for “all reasonably fore-
seeable quantities of contraband that were within the
scope of the criminal activity that he jointly undertook”).
Finally, Abdulahi contends that the evidence sup-
porting the drug quantity finding was not reliable enough.
No. 06-2423 7
We review factual findings at sentencing for clear error,
United States v. Stitman, 472 F.3d 983, 986 (7th Cir. 2007),
and we see none here. Evidentiary standards are relaxed
at sentencing; a sentencing court may consider informa-
tion that has “sufficient indicia of reliability to support
its probable accuracy.” U.S.S.G. § 6A1.3(a); United States
v. Johnson, 489 F.3d 794, 796-97 (7th Cir. 2007). Abdulahi
is correct that a witness testifying on how the govern-
ment deciphered the drug ledger could have laid a better
foundation for the district court’s drug quantity finding,
but that does not mean the foundation actually laid was
insufficient. The FBI agent’s report about the ledger
explained in adequate detail how he arrived at the 17
kilograms figure, and the district court did not clearly
err by relying on it. Statements by other members of the
drug ring may have been partly motivated by a desire
to place responsibility on Abdulahi, but we have repeat-
edly held that a district court is not required to dis-
believe such evidence. See, e.g., Johnson, 489 F.3d at 797.
The court here did not err when it relied on such state-
ments.
Accordingly, we AFFIRM the judgment of the district
court.
USCA-02-C-0072—4-23-08