In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1532
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
T HADDEUS A. S PEED,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 2:08-cr-20066-MPM-DGB—Michael P. McCuskey, Chief Judge.
A RGUED M AY 9, 2011—D ECIDED S EPTEMBER 6, 2011
Before EASTERBROOK, Chief Judge, and W OOD and
WILLIAMS, Circuit Judges.
W OOD , Circuit Judge. Thaddeus Speed was caught
participating in a number of drug transactions in-
volving the sale of a total of 74.2 grams of crack cocaine.
This led to his conviction on three felony charges: con-
spiracy to distribute more than 50 grams of cocaine
base, distribution of more than 50 grams of cocaine base,
and possession of more than five grams of cocaine
2 No. 10-1532
base with intent to distribute. See 21 U.S.C. §§ 841(a)(1),
846. Because he had two prior state felony drug convic-
tions, he received a mandatory sentence of life impris-
onment without the possibility of parole. He now
appeals, claiming that his convictions were supported
by insufficient evidence. He also urges that we should
find that the Fair Sentencing Act of 2010, passed after
his sentencing, applies retroactively, and thus permit
him to be re-sentenced under that law’s more lenient
standards. Finally, he argues that his mandatory life
imprisonment sentence violates the Fifth and Eighth
Amendments to the Constitution. He has not, however,
demonstrated that no jury could have found him guilty,
and so his first argument cannot succeed. His latter
two arguments, while preserved for further review, are
both foreclosed by established law in this circuit. We
therefore affirm.
I
Special Agent Gary Tison was an undercover agent
working for the Kankakee Area Metropolitan Enforce-
ment Group (KAMEG), a multijurisdictional drug en-
forcement task force. On August 20, 2008, Agent Tison
arranged to buy crack cocaine from Anthony Cunning-
ham, Jr. Cunningham testified that his supplier was
Speed; Speed fronted Cunningham the drugs and
allowed Cunningham to pay him back after the sale. The
sale to Tison went off without a hitch: Tison bought
4.5 grams of crack cocaine for $400, and Cunningham
dutifully paid Speed his share. Before parting, Tison
No. 10-1532 3
and Cunningham spoke about the possibility of Tison’s
supplying Cunningham with marijuana.
A few weeks later, on September 12, Tison arranged
another buy. Speed again fronted Cunningham the drugs
and this time drove Cunningham to the agreed-upon
meeting place, a Kankakee gas station. Cunningham
got into Tison’s car to carry out the deal, but he
expressed worries about police activity near the gas
station. At Cunningham’s direction, Tison followed the
car Speed was driving to a nearby street. There Tison
bought 8.8 grams of crack for $600. The two then set up
a third deal for 63 grams of crack, and Tison informed
Cunningham that he had found a marijuana supplier.
Cunningham got back into Speed’s car and paid him
for the crack.
On September 23, Tison met Cunningham to buy the
63-odd grams of crack. Speed fronted Cunningham
the crack and again accompanied Cunningham to the
familiar gas station. Cunningham got into Tison’s car
and exchanged 60.9 grams of crack cocaine for $2,250.
They then discussed a future marijuana-for-crack ex-
change. Cunningham met back with Speed and promptly
paid him for the crack.
On October 10, Tison and Cunningham arranged yet
another deal. The plan was that Tison would sell
Cunningham ten pounds of marijuana for $7,000 and
trade an additional two pounds of marijuana for 40 grams
of crack cocaine. KAMEG Special Agent Clayt Wolfe
accompanied Tison as the purported marijuana sup-
plier. The four met this time in a shopping mall parking
4 No. 10-1532
lot. In contrast to the previous transactions, Speed
played a more active role during this episode. Though
Tison had not formally met Speed, he recognized him
as the driver in the two September transactions. The deal
did not go smoothly. An argument erupted about the
exchange procedure: Wolfe wanted to see the money
first, while Cunningham demanded to see the product.
Speed interjected to smooth things over. The bickering
continued, however, and Wolfe expressed his intention
to leave. Tison then suggested that Wolfe and Speed
talk alone and settle the deal.
Speed and Wolfe stepped aside and began debating
whether money or product should be shown first. Unfor-
tunately for Speed, his words were being recorded
secretly, and so the more he spoke, the deeper he dug
himself into a hole. In order to demonstrate his trustwor-
thiness to Wolfe, he explained that Tison had bought
drugs from him “all the time.” He mentioned that Tison
bought 63 grams from him recently. Speed then went on
to say that he “was the man, [he was] the one who
want[ed]” the marijuana. The two then rejoined the
group and reached an agreement: Speed and Cunning-
ham would leave and return with the money. A little
later, Cunningham came back alone and reported that
Speed decided against the deal—he would give no money
until he saw the goods.
The foursome tried again on November 13 at a Kankakee
hotel. This time, the conversation (again recorded) was
fairly disjointed. Speed started the bidding at three
pounds of marijuana for 60 grams of cocaine. Without
No. 10-1532 5
addressing the offer, Wolfe then asked how much crack
Speed could deliver. Speed boasted that he could
produce “[w]hatever much you trying to get,” and stated
that his price was $1,800 for 63 grams. After more dis-
cussion, the stalemate that had stalled the earlier negotia-
tions ended: Wolfe and Tison took Cunningham to
their car to inspect the marijuana. They settled on
Wolfe’s selling seven pounds of marijuana for $4,400 and
trading three pounds for 63 grams of crack. To Tison’s
and Wolfe’s frustration, Speed and Cunningham had not
brought enough money. Speed still wanted to make
the crack-for-marijuana swap, but his time had run out.
Wolfe signaled to the other officers and Speed and
Cunningham were arrested. When arrested, Speed was
carrying a bag containing 16.4 grams of cocaine base.
The grand jury indicted Speed on three counts: Count 1
charged him with conspiracy to distribute more than
50 grams of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A)(iii) and 846, based on all of
the drug transactions from August 20 to November 13;
Count 2 charged him with distribution of more than
50 grams of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(A)(iii), for the September 23
sale of 60.9 grams of cocaine; and Count 3 charged him
with possession with intent to distribute of more than
five grams of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(B)(iii), based on the 16.4 grams
of cocaine base he possessed on November 13.
At trial, Cunningham, Tison, and Wolfe testified con-
sistently with the facts we have laid out. Speed had a dif-
6 No. 10-1532
ferent story to tell. He contended that he had no involve-
ment in the August and September transactions. Con-
tradicting Cunningham’s testimony, Speed denied pro-
viding Cunningham with the crack for those sales. More-
over, contrary to both Cunningham’s and Tison’s testi-
mony, he denied driving Cunningham on September 12.
As for September 23, Speed said he arrived at the gas
station only to buy cigarettes and soda pop. In an
odd attempt to deflect the drug charges, Speed testified
that on November 13 he intended to rob Wolfe and Tison,
not to deal drugs. This testimony conflicted with his
post-arrest interview, in which he stated that he
intended to dupe Wolfe and Tison by trading them a
measly 12 grams of crack—and not 63 grams—for the
three pounds of marijuana.
The jury was unpersuaded by Speed’s testimony and
convicted him on all counts. Because Speed’s sales in-
volved a total of over 50 grams of crack cocaine and he
had two prior state felony drug convictions, the version
of 21 U.S.C. § 841(b)(1)(A)(iii) in effect at the time of
his sentencing mandated that he receive a life sentence
on Counts 1 and 2. The district court sentenced him
to three concurrent terms of life imprisonment. This
included a life term for Count 3 for which this sen-
tence was not required. This appeal followed.
II
A
We first consider Speed’s argument that the evidence
is insufficient to support his conspiracy and distribution
No. 10-1532 7
convictions on Counts 1 and 2. In making this argument,
Speed faces a daunting standard of review: We review
challenges to the sufficiency of the evidence de novo,
“consider[ing] the evidence in light most favorable to
the government, drawing all reasonable inferences in
its favor.” United States v. Aldridge, 642 F.3d 537, 544
(7th Cir. 2011). “As long as a rational trier of fact could
have returned a guilty verdict, the verdict will be af-
firmed.” Id.
To prove a conspiracy to distribute charge, the govern-
ment must show that there was an agreement between
two or more persons to distribute cocaine, and that
the defendant knowingly and intentionally entered into
this agreement. United States v. Suggs, 374 F.3d 508, 518
(7th Cir. 2004). The agreement must go beyond the sale
of drugs between the putative co-conspirators; not
every sale of drugs is itself a conspiracy to distribute.
As we said in United States v. Lechuga, 994 F.2d 346 (7th
Cir. 1993) (en banc), “[w]hat is necessary and sufficient
[to prove conspiracy] is proof of an agreement to
commit a crime other than the crime that consists of
the sale itself.” Id. at 347. The government must demon-
strate an understanding—explicit or implicit—among
co-conspirators to work together to distribute drugs
to third parties. Suggs, 374 F.3d at 518. To prove a dis-
tribution charge, the government needs to show that
the defendant knowingly and intentionally distributed
crack cocaine, with the knowledge that he was distrib-
uting a controlled substance. United States v. Hatchett, 245
F.3d 625, 631 (7th Cir. 2001). Speed argues that there was
not enough evidence to demonstrate he was involved in
8 No. 10-1532
the transactions between Cunningham and Tison on
August 20, September 12, and September 23. On that
premise, he reasons that the government can show
neither that Speed and Cunningham had an agreement
as required for the conspiracy count, nor that Speed
distributed any crack as required for the distribution count.
Speed notes that the government relied heavily on two
pieces of evidence: first, Cunningham’s testimony that
Speed was involved in the transactions, and second,
Speed’s own statements recorded during the October 10
transaction. Cunningham testified that he and Speed
had a standing arrangement: Cunningham would
receive crack from Speed on credit immediately before
a sale, make the sale, and then pay Speed back
immediately afterwards. Speed, he said, trusted
Cunningham to pay him back because of their ongoing
relationship. Furthermore, Cunningham testified that
Speed accompanied him to meet Tison for the sales on
September 12 and 23. The government contends that
the jury could have inferred from Cunningham’s
testimony that the two had an agreement to distribute
crack and that Speed was an active participant in the
distribution.
Still worse for Speed were his own statements. At
the October 10 meeting, when Speed and Wolfe were
negotiating the trade of marijuana for crack and cash,
Speed tried to persuade Wolfe to complete the deal by
appealing to the fact that Tison had recently bought
crack from Speed. Speed said, “Your man, your man,
your man, he’s come and buy stuff from me. He come by
No. 10-1532 9
all the time, all the tee- or whatever from me. . . . Last
time, he just came and bought a sixty-three.” The gov-
ernment contends that this statement is an admission
by Speed that he was directing Cunningham’s sales of
crack to Tison. Moreover, it refers particularly to the
September 23 transaction where Tison bought 60.9 grams
of crack cocaine from Cunningham (and Speed).
Speed’s only response is that all of this evidence
was unreliable, because it was uncorroborated and
Cunningham was lying to get a lighter sentence. His
own statements on October 10, he adds, were mere
puffery. In contrast, Speed notes that on November 13
he stated that he had no middlemen in his drug deals.
Finally, Speed argues that even if Cunningham’s testi-
mony were taken to be true, that would establish
nothing more than a buyer-seller relationship, not a
conspiracy to distribute crack cocaine.
Speed’s criticism of Cunningham’s testimony falls flat,
as “[w]e will not upset the jury’s credibility determina-
tion unless . . . it was ‘physically impossible for the
witness to observe that which he claims occurred, or
impossible under the laws of nature for the occurrence
to have taken place at all.’ ” United States v. Johnson, 437
F.3d 665, 675 (7th Cir. 2006) (internal citations omitted).
In fact, Cunningham’s testimony was perfectly plausible.
Tison corroborated that Speed drove Cunningham on
September 12, even though Speed vehemently denies
having done so. Moreover, Speed himself recognizes that
his own statements were contradictory. (We have no
need to review them one by one; it was the jury’s task to
10 No. 10-1532
decide which to credit and which to reject, and its verdict
reveals its conclusions.) Faced with the choice between
Cunningham’s and Speed’s versions, we think a rea-
sonable jury could have believed Cunningham.
Finally, we consider Speed’s argument that this all
shows nothing more than the existence of a buyer-
seller relationship. This argument, we note, affects only
Count 1. Speed argues that Cunningham’s testimony
established only that Speed sold Cunningham crack
cocaine, not that they agreed to distribute to anyone
else. But this sells Cunningham’s testimony short.
Cunningham testified that he and Speed had a routine
practice before a sale: Speed would front Cunningham
drugs, Cunningham would sell them, and without fail
Cunningham would pay Speed back immediately after.
Speed would sometimes even drive Cunningham to the
sale, as he did on September 12 and 23. The fact that
Speed himself stated that Tison bought drugs from him,
through Cunningham, also shows this to be more than
a simple buyer-seller relationship between Speed and
Cunningham. The jury was entitled to conclude that the
two were working together to make sales to a broader
clientele: Speed’s job was to provide the crack and, often,
the transportation, while Cunningham’s job was to pass
the product along to the customer and receive the pay-
ment. Drawing all the inferences in the government’s
favor, as we must, we conclude that the evidence
permitted the jury to find that Speed and Cunningham
knowingly and intentionally agreed to work together
to distribute crack cocaine to Tison. Thus, we find the
evidence sufficient on both of the counts he challenges.
No. 10-1532 11
B
Speed also attacks his sentence on several grounds.
On March 3, 2010, he was sentenced to mandatory life
imprisonment without the possibility of parole based on
the penalties set forth in 21 U.S.C. § 841(b)(1)(A)(iii) and
the jury’s findings that he conspired to distribute and
distributed more than 50 grams of cocaine base. Because
Speed had two prior state felony drug convictions, the
statute in effect at the time he committed his crimes
mandated that he receive a life sentence. On August 3,
2010, while Speed’s appeal was pending, Congress
passed the Fair Sentencing Act of 2010 (FSA), Pub.L. No.
111-220, 124 Stat. 2372, amending § 841. With the
passage of the FSA, Congress raised the amount that
triggers the mandatory life sentence from 50 grams to
280 grams. The amounts involved in Speed’s two
offenses were 74.2 grams (conspiracy) and 60.9 grams
(distribution), and so under the FSA, Speed would escape
this harsh sentence. Indeed, under the FSA, Speed would
be subject to only a 10-year mandatory sentence. The
difference is indeed stark, and so it is understandable
that Speed argues that the FSA should apply to his
case. He also argues that his sentence was imposed in
violation of the Fifth and Eighth Amendments to the
Constitution. We consider these arguments in turn.
First, Speed argues that Congress intended for the FSA
to apply retroactively to all cases that were not fully
resolved as of the effective date of the Act. All we can
do, however, is acknowledge that Speed has properly
preserved this argument for possible further review
12 No. 10-1532
in the Supreme Court. We definitively rejected this
position in our recent decisions in United States v. Bell,
624 F.3d 803 (7th Cir. 2010), and United States v. Fisher,
635 F.3d 336 (7th Cir. 2011). Our rationale was that the
general federal saving statute, 1 U.S.C. § 109, applies to
the FSA and prevents it from operating retroactively.
Bell, 624 F.3d at 815; Fisher, 635 F.3d at 338.
Speed’s constitutional arguments, though skillfully
presented, fare no better. Speed first contends that his
mandatory life sentence violates the Equal Protection
Clause of the Fourteenth Amendment, as reflected in
the Fifth Amendment. San Francisco Arts & Athletics, Inc.
v. U.S. Olympic Comm., 483 U.S. 522, 542 n.21 (1987)
(noting that the Fifth Amendment has an equal
protection component precisely the same as the equal
protection of the Fourteenth Amendment). Speed
makes the incontestable point that refusing to apply
the FSA to defendants sentenced shortly before the
passage of the FSA results in radically different sen-
tences between them and those who are entitled to
have the FSA apply to them. He contends that this is
an utterly arbitrary outcome—so bad as to violate the
Fifth Amendment.
Because no fundamental right or suspect classification
is at issue, we review his claim under the ratio-
nal-basis standard of review. Smith v. City of Chicago, 457
F.3d 643, 650 (7th Cir. 2006). Under this standard, he
must show that there is no “rational relationship between
the disparity of treatment and some legitimate govern-
mental purpose.” United States v. Nagel, 559 F.3d 756,
No. 10-1532 13
760 (7th Cir. 2009). But the disparate treatment to which
Speed points is plainly rational, as “discrepancies
among persons who committed similar crimes are ines-
capable whenever Congress raises or lowers the penalties
for an offense.” United States v. Goncalves, 642 F.3d 245, 253
(1st Cir. 2011). Someone, in the end, will always be left
behind to live with the earlier, harsher penalty, when-
ever Congress chooses to amend a sentencing stat-
ute. Whatever arbitrariness there may be is therefore
unavoidable.
Finally, Speed argues that the imposition of a manda-
tory life sentence for his crime constitutes “cruel and
unusual punishment” in violation of the Eighth Amend-
ment. U.S. C ONST. amend. VIII. The Supreme Court has
written that “[t]he [Eighth] Amendment embodies ‘broad
and idealistic concepts of dignity, civilized standards,
humanity, and decency’ ” and thus penalties must be
gauged in light of “ ‘the evolving standards of decency
that mark the progress of a maturing society.’ ” Estelle
v. Gamble, 429 U.S. 97, 102 (1976) (internal citations omit-
ted). We have previously held that the mandatory life
sentence imposed under 21 U.S.C. § 841(b) does not run
afoul of the Eighth Amendment. E.g., United States v.
Strahan, 565 F.3d 1047, 1052-53 (7th Cir. 2009). Speed
pleads that the enactment of the FSA shows that
society’s “standards of decency” have evolved such that
his mandatory life sentence for such a small amount of
crack (less than a five-pound bag of flour), imposed
under the old statutory scheme, is now cruel and un-
usual. Such a conclusion, however, is foreclosed by the
Supreme Court’s decisions in this area. In Ewing v. Cali-
14 No. 10-1532
fornia, 538 U.S. 11, 25 (2003), the Court upheld
California’s three-strikes law, and similar statutory
regimes continue to abound today. See, e.g., C AL. P ENAL
C ODE § 667; IND. C ODE § 35-50-2-8.5; W IS. S TAT. § 939.62
(all displaying three-strikes regimes that include of-
fenses involving drugs). Congress’s amendment to the
statutory penalties does not transform the preexisting
penalty scheme into a cruel and unusual one. (Such
a finding might have the undesirable effect of deterring
Congress from enacting laws similar to the FSA if and
when it concludes that an existing penalty is too severe.)
We conclude that Speed’s mandatory life sentence
based on the quantity of drugs for which he was respon-
sible and his recidivism is not grossly disproportionate
and thus does not run afoul of the Eighth Amendment.
* * *
We therefore A FFIRM the judgment of the district court.
9-6-11