In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-1613, 10-1616 & 10-1757
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JOSE A LVARADO-T IZOC,
A NTONIO D URAN, and
N OE D URAN,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:08-cr-00124—Virginia M. Kendall, Judge.
A RGUED M ARCH 31, 2011—D ECIDED S EPTEMBER 7, 2011
Before C UDAHY, P OSNER, and M ANION, Circuit Judges.
P OSNER, Circuit Judge. The defendants pleaded guilty
to conspiracy to distribute more than 400 grams of sub-
stances containing a detectable amount of fentanyl
and more than a kilogram of substances containing a
detectable amount of heroin. Alvarado-Tizoc was sen-
tenced to 200 months in prison, Antonio Duran to 170
2 Nos. 10-1613, 10-1616 & 10-1757
months, and Noe Duran to 121 months. The appeals
challenge these sentences.
Fentanyl is a very potent synthetic narcotic, used law-
fully as a painkiller and unlawfully as a substitute for
heroin. See “Fentanyl,” 1 Encyclopedia of Substance Abuse
Prevention, Treatment & Recovery 400-02 (Gary L. Fisher &
Nancy Roget eds. 2009). Because of its potency it must
be greatly diluted before being consumed; otherwise it
will kill. Peter Slevin & Kari Lydersen, “Heroin Users
Warned about Deadly Additive,” Washington Post, June 4,
2006, www.washingtonpost.com/wp-dyn/content/article/
2006/06/03/AR2006060300602.html (visited Aug. 3, 2011,
as were all the online materials cited in this opinion).
Deaths from overdoses of fentanyl by heroin addicts
soared in 2006. See id.; Donna Leinwand, “Heroin Mix
Tied to Dozens of Deaths,” USA Today, May 5, 2006,
ww w.usatoday.com/news/health/2006-05-04-heroin-
mix_x.htm (quoting the executive director of the New
Jersey Poison Information and Education System as
saying that “our addicts are dropping like flies” from
overdoses of fentanyl). Addicts’ demand for fentanyl
apparently had been augmented by a shortage of high-
quality heroin, but it has fallen since 2006, probably
because the deaths caused by overdosing on fentanyl
induced more intensive efforts by law enforcers to
disrupt the supply of the drug. Katherine Hempstead
& Emel O. Yildirim, “Supply-Side Response to
Declining Heroin Purity: The Fentanyl Overdose
Episode of 2006” 1-11 (Working Paper Oct. 2009),
www.economics.rutgers.edu/dmdocuments/ EmelYildirim.
Nos. 10-1613, 10-1616 & 10-1757 3
pdf); cf. U.S. Dept. of Justice National Drug Threat Intelli-
gence Center, “National Drug Assessment 2010,” Feb.
2010, pp. 30-32, 42 n. 22, www.justice.gov/ndic/pubs38/
38661/38661p.pdf. The shortage of high-quality heroin
may also have abated, though this is conjecture.
The defendants were wholesalers of heroin and fentanyl
for illicit use. Their customers, the retail dealers, diluted
the fentanyl (which already had been diluted to some
extent) that they bought from the defendants in order
to make it safer to consume. The dilution produced mix-
tures that contained less than 1 percent fentanyl,
and the retailers sold these mixtures (doses) to their
customers. The quantity (as measured by weight) of the
greatly diluted fentanyl sold by the retailers was 11 to 16
times the quantity of fentanyl that the defendants had
sold them. For sentencing purposes the weight of an
illegal drug includes the weight of a mixture con-
taining a controlled substance. U.S.S.G. § 2D1.1(c) n. A
and Application Note 1; United States v. Sowemimo, 335
F.3d 567, 574 (7th Cir. 2003); cf. 21 U.S.C. § 841(b). Hence
for sentencing purposes the retailers were selling
much more fentanyl than their suppliers, who are the
defendants in this case.
Nevertheless the judge attributed the entire amount
of the retail sales to the defendants on the ground
that their wholesaling was a “jointly undertaken
criminal activity” (jointly with the retail sales). “[I]n the
case of a jointly undertaken criminal activity (a criminal
plan, scheme, endeavor, or enterprise undertaken by
the defendant[s] in concert with others, whether or not
4 Nos. 10-1613, 10-1616 & 10-1757
charged as a conspiracy), [the defendants’ sentences]
shall be determined on the basis of . . . all reasonably fore-
seeable acts and omissions of others in furtherance
of the jointly undertaken criminal activity.” U.S.S.G.
§ 1B1.3(a)(1)(B); see also U.S.S.G. § 1B1.3 Application
Note 2; United States v. Salem, 597 F.3d 877, 886 (7th Cir.
2010); United States v. Soto-Piedra, 525 F.3d 527, 531-32 (7th
Cir. 2008). Even though the defendants didn’t make
any retail sales, they could foresee that the retail
quantity would be greater than the wholesale quantity
because of the need for additional dilution by retailers.
Having determined the quantity for which the defen-
dants were responsible, the judge used the drug-equiva-
lency tables in the Sentencing Guidelines to generate a
base offense level by equating each gram of fentanyl—
which is to say each gram of the doses containing fentanyl
that were sold at retail, because of her finding that
the wholesalers and retailers had been engaged in a
jointly undertaken activity—to 2.5 grams of heroin.
See U.S.S.G. § 2D1.1 Application Note 10(E). (We are
simplifying. The table actually equates a quantity of each
type of drug to a quantity of marijuana. A quantity of
fentanyl is deemed to be 2.5 times the quantity of mari-
juana that heroin is deemed to be. Hence for sen-
tencing purposes 1 gram of fentanyl equals 2.5 grams
of heroin.) These calculations, plus other adjustments
unnecessary to discuss, generated what the judge
believed to be the correct Guidelines ranges for the de-
fendants, and she imposed sentences within those ranges.
Fentanyl is so similar to heroin that the defendants
argue with some force that they didn’t realize they were
Nos. 10-1613, 10-1616 & 10-1757 5
buying fentanyl, as distinct from superstrong heroin. (They
knew they were buying something superstrong because
they knew it had to be greatly diluted to avoid killing
consumers.) But for sentencing purposes the only knowl-
edge required is knowledge that the substance that
the defendants are selling (or conspiring to sell) is a
controlled substance. U.S.S.G. § 1B1.3 Application Note
2(B)(a)(1); United States v. Martinez, 301 F.3d 860, 864 (7th
Cir. 2002); United States v. Lezine, 166 F.3d 895, 906 (7th Cir.
1999); United States v. Alvarez-Coria, 447 F.3d 1340, 1344
(11th Cir. 2006) (per curiam); United States v. Fragoso, 978
F.2d 896, 902 (5th Cir. 1992). They don’t have to know
which controlled substance it is. This is a sensible
rule; it encourages drug traffickers to determine the dan-
gerousness of the drugs they sell and take steps to
reduce the danger. And there is no novelty in punishing
people more severely because of consequences, even if
their intent was no more evil than that of criminals
who failed to produce such consequences: otherwise
murderers and attempted murderers would be pun-
ished with equal severity. The attempted murderer is
the beneficiary of what philosophers call “moral luck”—
he benefits from the chance fact that despite his efforts
he failed to achieve his evil design.
The only vulnerable point in the sentencing of two of
these defendants (Noe Duran challenges his sentence on
an unrelated ground, which we discuss at the end of the
opinion) was the judge’s finding that the jointly under-
taken criminal activity included the retail sale of the
fentanyl. There was insufficient evidence that the
retailers to whom the defendants sold heroin and
6 Nos. 10-1613, 10-1616 & 10-1757
fentanyl were, so far as their relation to the defendants
was concerned, anything more than buyers. The govern-
ment points out that the defendants “specifically sought
out, and received, information about [the retailers’] heroin
business . . . and thus purposefully kept apprised of
their operation. For instance, they asked specific ques-
tions about how much money [one of the retailers] made
from the heroin he obtained from them” and informed
them that “the ‘new heroin’ [which was actually
fentanyl] could be diluted even further.” All this just
shows a wholesaler’s natural motivation to gauge
demand for his product and if possible increase that
demand and so be able to raise his price. The govern-
ment also notes that the defendants were “exclusive
supplier[s]” of the retailers and therefore had a “vested
interest in the success and profitability” of the opera-
tion. But exclusive dealing is common and every whole-
saler has a vested interest in the success of his retailers.
And finally the fact that the buyers diluted the fentanyl
they received (and that this was foreseeable to the de-
fendants) no more proved a conspiracy than the fact
that a seller of chocolate syrup to a soda fountain
knows that the syrup will be mixed with milk or soda to
make chocolate milk shakes or chocolate sodas rather
than being sold in its original, undiluted form makes
the seller a conspirator in the retail sale of adulterated
chocolate drinks.
A seller is not a party to a conspiracy with a mere
buyer from him. E.g., United States v. Vallar, 635 F.3d 271,
286-87 (7th Cir. 2011); United States v. Colon, 549 F.3d
565, 567-71 (7th Cir. 2008). And while the applicable
Nos. 10-1613, 10-1616 & 10-1757 7
Sentencing Guideline as we know uses the term “jointly
undertaken activity” rather than “conspiracy,” and indeed
provides that the jointly undertaken activity need not
be “charged as a conspiracy,” the case law generally treats
the terms “jointly undertaken activity” and “conspiracy”
as interchangeable. See, e.g., Gray-Bey v. United States,
156 F.3d 733, 740-42 (7th Cir. 1998); United States v.
McDuffy, 90 F.3d 233, 235-36 (7th Cir. 1996). The concept
of conspiracy is frequently employed in criminal cases
without a conspiracy actually being charged, as when
proof of a conspiracy is used to render a statement by a co-
conspirator admissible against the defendant; and so
it is with the Guidelines’ equivalent, a “jointly under-
taken activity.”
Some cases point out that “jointly undertaken activ-
ity” should not be equated to “conspiracy” because a
defendant could have joined a conspiracy without
having joined in or agreed to all the activities under-
taken by it. United States v. Soto-Piedra, supra, 525
F.3d at 531-32, and cases cited there; U.S.S.G. § 1B1.3 Ap-
plication Note 2. But there is no actual conflict; the cases
we cited earlier (Gray-Bey and McDuffy) impose a sen-
tencing enhancement on a conspirator for a jointly under-
taken activity only if the activity was reasonably fore-
seeable to him, for foreseeing or being charged with
foreseeing an activity makes him a joint participant with
the other conspirators. United States v. Hernandez-Santiago,
92 F.3d 97, 100 (2d Cir. 1996). But this qualification on
equating conspiracy to jointly undertaken activity cannot
help the government; if there was no conspiracy between
the defendants and the retailers, a fortiori the former were
8 Nos. 10-1613, 10-1616 & 10-1757
not engaged in a jointly undertaken activity with the latter.
To say otherwise would make sellers liable for their buy-
ers’ activities as if they were co-conspirators, when they
were not.
So: a jointly undertaken activity was not proved in this
case. But a point of more general significance for cases
involving fentanyl and other superstrong narcotics is
that attributing the amount of the diluted retail product
to the seller (whether the seller is a retailer, or a whole-
saler conspiring with a retailer) in computing the Guide-
lines sentence involves double counting. The quantity of
the diluted retail product, if attributed to a wholesaler
defendant, will already account, in part anyway, for the
fact that fentanyl is more potent than heroin; if the
same weight of fentanyl and heroin bought by a retailer
makes 50 retail doses of fentanyl versus 5 of heroin, the
seller of fentanyl will be “credited” with 10 times the
quantity as the seller of heroin. To multiply 10 by 2.5 is
to double count— more precisely to 2.5-count. And double
or other multiple counting—at least when the judge is
unconscious of doing it—is improper even when whole-
salers and retailers are co-conspirators, which, to repeat,
they were not shown to be in this case.
It is understandable that the Guidelines should treat the
sale of fentanyl more harshly than the sale of heroin.
Fentanyl is more dangerous because it’s stronger—gram
for gram, it is 50 times as potent as heroin. National
Institute on Drug Abuse, “Heroin: Abuse and Addic-
tion” 7 (2005), http://drugabuse.gov/PDF/RRHeroin.pdf.
It therefore requires more dilution to be safe, and so
Nos. 10-1613, 10-1616 & 10-1757 9
creates a greater risk of fatal overdoses because of
failures, common in the illegal drug trade, of warning
and of sufficient dilution. And since, because of its po-
tency, a given quantity produces more doses, and hence
greater consumption per unit of quantity, than the
same quantity of a weaker drug, see Hempstead
& Yildirim, supra, at 11; U.S.S.G. § 2D1.1 Application
Note 9, a wholesaler of fentanyl will reach more con-
sumers than a wholesaler of the same quantity of heroin.
The 2.5-to-1 ratio is a crude attempt to equalize a
fentanyl trafficker to a heroin trafficker who sells a
greater quantity but does not reach as many consumers.
H.R. Rep. No. 99-845, 99th Cong., 2d Sess. 12 (1986).
Thus, irrespective of the fact that the quantities sold
by the retailers could not be attributed to the defendants
on the theory that they were conspiring with the
retailers (rather than merely supplying them), the fact
that by selling fentanyl instead of heroin the defendants
were responsible for a larger number of doses sold to
the ultimate consumers was a basis for a higher sen-
tence—but a basis already partly reflected in the drug-
equivalency tables in the Guidelines.
Application Note 9 to U.S.S.G. § 2D1.1 states that “since
controlled substances are often diluted and combined
with other substances as they pass down the chain of
distribution, the fact that a defendant is in possession
of unusually pure narcotics may indicate a prominent
role in the criminal enterprise and proximity to the
source of the drugs.” How high a seller is in the chain
of distribution cannot be determined solely by the
10 Nos. 10-1613, 10-1616 & 10-1757
relative potency of two drugs, but a judge, exercising
the discretion granted by the Booker doctrine to vary
from the Guidelines, could use the relative number of
doses produced by a particular quantity of drugs as
a sentencing factor. Mathematical accuracy is not achiev-
able and so is not required. Even at the wholesale
level, drugs—heroin as well as fentanyl—are diluted by
the addition of inactive ingredients. The amount of
dilution in this case varied both between and within
the two drugs, both of which the defendants sold. But
an approximate ratio is sufficient for sentencing
purposes; and once that ratio is estimated, to then
apply the 2.5:1 ratio would overstate the gravity of the
fentanyl offense relative to the heroin offense.
The drug-equivalency tables are widely criticized on a
variety of grounds—including by the Sentencing Com-
mission itself. See U.S. Sentencing Commission, “Fifteen
Years of Guidelines Sentencing: An Assessment of
How Well the Federal Criminal Justice System is
Achieving the Goals of Sentencing Reform” 50 (Nov. 2004),
www.ussc.gov/Research/Research_Projects/Miscellaneous/
15_Year_Study/15_year_study_Full.pdf. The House Report
that we cited earlier acknowledges that the drug equiv-
alencies in the tables are minimums: “the Committee
has not generally related [the quantities in the drug-
equivalency tables] to the number of doses of the drug
that might be present in a given sample. The quantity
is based on the minimum quantity that might be con-
trolled or directed by a trafficker in a high place in the
processing and distribution chain” (emphasis added).
Nos. 10-1613, 10-1616 & 10-1757 11
Application Note 9 provides a more flexible approach to
determining the relative gravity of crimes involving drugs
of differing potency than the drug-equivalency tables do.
Not being a slave to the Guidelines (thanks to the
Booker doctrine), a judge could give a fentanyl wholesaler
an additional sentence enhancement because of the
greater risk of overdoses that fentanyl creates compared
to heroin. What would be improper would be for the
judge, having determined that a defendant’s fentanyl
produced 10 (or some other number) times as many
retail doses as the equivalent weight of heroin, to
multiply 10 by 2.5 and thus treat the defendants as if
they had sold not 10 times as much drug (from a
consumer standpoint) as the same weight in heroin, but
25 times as much.
Adjusting for potency makes more sense than
adjusting for weight. Emphasis on the weight of a de-
fendant’s drugs (in this case the weight of the dilute
drugs sold by customers of defendants), whether or not
they are diluted, has the perverse effect of giving drug
dealers an incentive to possess and sell drugs of high
purity or potency and makes the length of sentences
depend perversely on the weight of the inactive ingredi-
ents in the drugs. Jonathan P. Caulkins et al., “Mandatory
Minimum Drug Sentencee: Throwing Away the Key or
the Taxpayers’ Money?” 22 (RAND Corp. Drug Policy
Research Center 1997).
In short, the judge in this case should have calculated
the Guideline ranges on the basis of just the defendants’
sales and then have adjusted their sentences to reflect
12 Nos. 10-1613, 10-1616 & 10-1757
considerations not taken into account by the 2.5:1
ratio, such as the many more retail doses that a given
quantity of fentanyl produces than the same quantity of
heroin. We do not know whether she would have ended
up giving the same sentences, and so we must vacate
the sentences of Alvarado-Tizoc and Antonio Duran and
remand for resentencing.
Alvarado-Tizoc asks us also to instruct the district
judge to sentence him under a provision of the Sen-
tencing Guidelines that (authorized by the Sentencing
Reform Act) allows the judge to sentence a defendant
below the statutory minimum if, before sentencing, “the
defendant has truthfully provided to the Government
all information and evidence the defendant has con-
cerning the offense or offenses that were part of the
same course of conduct or of a common scheme or
plan.” U.S.S.G. § 5C1.2(a)(5); see 18 U.S.C. § 3553(f)(5).
The burden of proof is on the defendant. United States
v. Galbraith, 200 F.3d 1006, 1016 (7th Cir. 2000). The judge
was entitled to find that it had not been carried.
The government presented evidence that the de-
fendant had concealed the extent of his illegal drug
activities. He was unable to counter the evidence with
anything stronger than his denials. The government’s
evidence was not strong, but it didn’t have to be, as
there was nothing on the other side but the defendant’s
say-so, to which the judge was entitled to give little
weight. The defendant complains about the judge’s
having remarked that the defendant “lost his safety
valve . . . because the Government doesn’t believe him.”
Nos. 10-1613, 10-1616 & 10-1757 13
But what the judge was driving at was that because the
government refused to accept the defendant’s assertion
that he had provided it with all the information that
he possessed concerning the offenses in which he was
involved, and because the government backed up its
refusal with evidence, the defendant had been unable
to carry his burden of proof. So the judge committed
no error in rejecting safety-valve relief, and so this will
not be an issue for consideration in resentencing this de-
fendant.
Noe Duran’s claim, which is unrelated to the claims
presented by the other two defendants, is that in sen-
tencing him the judge failed to take account of his dimin-
ished mental capacity, which should have made him
eligible for a sentencing discount. U.S.S.G. § 5K2.13. He
argues that he began using drugs at a young age, that
he was kicked out of a number of high schools, and
that his father (defendant Antonio Duran) was a drug
dealer. But he didn’t argue diminished mental capacity
to the sentencing judge; he asked only for leniency
because of his difficult upbringing. The judge con-
sidered and rejected the argument, which was any-
way very weak; it amounts to saying that a criminal
who begins using drugs when young and whose father
is a drug dealer deserves leniency (a family discount, as
it were). The judge noted the gravity of Noe Duran’s
crime, which involved smuggling extremely dan-
gerous drugs into Chicago in body cavities (not his
own), and gave him a sentence that we cannot say was
unreasonable.
14 Nos. 10-1613, 10-1616 & 10-1757
The judgment in Noe Duran’s case is affirmed; the
judgments in the other two appeals are vacated with
directions to resentence those defendants.
9-7-11