In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-2872 & 10-3079
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R AY L ONGSTREET and M ICHAEL E RVIN ,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 471—Matthew F. Kennelly, Judge.
A RGUED JUNE 6, 2011—D ECIDED JANUARY 20, 2012
Before K ANNE, E VANS , and S YKES, Circuit Judges.
S YKES, Circuit Judge. This successive appeal requires us
to consider the resentencing of Ray Longstreet and
Michael Ervin, members of a Chicago operation that
trafficked heavily in various controlled substances in
Circuit Judge Terence T. Evans died on August 10, 2011, and
did not participate in the decision of this case, which is being
resolved by a quorum of the panel under 28 U.S.C. § 46(d).
2 Nos. 10-2872 & 10-3079
the early 2000s. In our earlier opinion, we affirmed
Longstreet’s conviction but ordered a limited remand
asking whether the district court wanted to resentence
him in light of the Supreme Court’s decision in
Kimbrough v. United States, 552 U.S. 85 (2007). United
States v. Longstreet, 567 F.3d 911 (7th Cir. 2009). Ervin
pleaded guilty and appealed only his sentence; we
ordered a limited remand in his case as well. Id. The
district court advised us that it would like to recon-
sider the sentences, so we vacated the sentences and
remanded for resentencing. United States v. Longstreet,
359 F. App’x 673 (7th Cir. 2010).
On remand the district court lowered Longstreet’s
sentence from 456 to 360 months and lowered Ervin’s
sentence from 300 to 240 months. Both men again ap-
peal. Because the district court did not err in cal-
culating the drug quantity attributable to Longstreet,
we affirm his sentence. Ervin’s appeal presents no
nonfrivolous issues, so we grant his counsel’s Anders
motion to withdraw and dismiss Ervin’s appeal.
I. Background
A full recitation of the facts is found in our previous
opinion and will not be repeated here. A jury convicted
Longstreet, the chief of a Chicago drug-trafficking opera-
tion, of, among other things, conspiracy to possess
with intent to distribute controlled substances, including
cocaine, crack, heroin, and marijuana. Ervin, Longstreet’s
right-hand man, pleaded guilty to the conspiracy
charge and two related offenses. Longstreet and Ervin
Nos. 10-2872 & 10-3079 3
were sentenced to 456 and 300 months in prison, respec-
tively, based on crack-cocaine quantities. Both men ap-
pealed.
Shortly thereafter, the Supreme Court decided
Kimbrough, which permits district courts to deviate
from the sentencing guidelines’ crack-to-powder ratio.
Accordingly, we affirmed Longstreet’s conviction but
ordered a limited remand to allow the district court to
consider whether to resentence Longstreet and Ervin in
light of Kimbrough. See Longstreet, 567 F.3d at 926-27. The
court answered affirmatively, so we vacated the sen-
tences and remanded for resentencing. See Longstreet, 359
F. App’x 673.
At resentencing the central issue for Longstreet was
the amount of crack attributable to him. The district
court relied on the testimony of Anthony Sutton, one of
Longstreet’s coconspirators. Sutton testified at trial that
he sold an average of 1.5 ounces of crack per day,
seven days a week, on a particular corner in Chicago. The
sales began in either the summer of 2002 or the summer
of 2003 until Sutton’s arrest in May 2005. Sutton paid
“rent” for his corner to Kenneth Wallace, an associate
of Longstreet, until July 2004, at which point he paid
Longstreet’s brother and later Ervin.
But Sutton also testified that he did not think his rent
to Wallace was going to Longstreet. As a result
Longstreet argued that he was not responsible for
Sutton’s sales prior to July 2004. Although the district
judge deemed the evidence sufficient to attribute all of
Sutton’s sales to Longstreet, he noted that Longstreet’s
4 Nos. 10-2872 & 10-3079
version of the facts would still yield a guidelines range
of 360 months to life. For that reason the judge accepted
Longstreet’s argument.
Longstreet also disputed the amount of drugs Sutton
sold during this period. First, Longstreet argued that
Sutton’s testimony was generally unreliable because he
waffled about which year he started selling on the cor-
ner. Second, Longstreet argued that because Sutton
failed to specify over what time period he sold
an average of 1.5 ounces of crack per day, it would be
unreliable to use that amount. The judge found Sutton’s
testimony reliable and applied the 1.5-ounces-per-
day average to the entire time Sutton sold drugs on the
corner. The judge acknowledged that Sutton’s average
could have included a higher per-day sales rate prior
to July 2004. But the judge ultimately concluded that
any artificial inflation would be cancelled out by the
decision to credit Longstreet’s argument that the addi-
tional drugs Sutton sold between 2003 and 2004 should
not be attributed to him.
The court therefore held Longstreet responsible for
12 kilograms of crack; that is, ten months times 1.5 ounces
per day. With additions not relevant here, Longstreet’s
advisory guidelines range was 360 months to life. The
court imposed a sentence of 360 months.
Ervin, meanwhile, qualified as a career offender, which
resulted in a guidelines range (without drug quantities)
of 262 to 327 months. With drug quantities Ervin’s
range likely would have been 360 months to life. But the
judge aimed to achieve rough proportionality between
Nos. 10-2872 & 10-3079 5
Ervin’s sentence and those of his coconspirators, so he
made findings to support the lower range and then sen-
tenced Ervin to 240 months.
II. Analysis
A. Longstreet
At sentencing the government must prove the quantity
of drugs attributable to a defendant by a preponderance
of the evidence. United States v. Krasinski, 545 F.3d 546,
551 (7th Cir. 2008). In addition, the district court must
base its sentence on information with “sufficient indicia
of reliability to support its probable accuracy.” United
States v. Bautista, 532 F.3d 667, 672 (7th Cir. 2008) (quota-
tion marks omitted). We review the court’s factual
findings regarding drug quantity only for clear error. Id.
Because “drug dealers ordinarily do not use invoices
and bills of lading, . . . sentencing courts may make rea-
sonable estimates as to drug quantities.” United States v.
Rodriguez, 67 F.3d 1312, 1325 (7th Cir. 1995). But an esti-
mate not based on reliable information must be over-
turned, even if it is “conservative to the point of generos-
ity.” United States v. Howard, 80 F.3d 1194, 1205 (7th Cir.
1996). Determining witness credibility is especially
within the province of the district court and “can virtually
never be clear error.” United States v. Clark, 538 F.3d
803, 813 (7th Cir. 2008) (quotation marks omitted).
Longstreet first attacks Sutton’s testimony as generally
unreliable because he wavered about whether he began
selling crack on the corner in 2002 or 2003. The district
6 Nos. 10-2872 & 10-3079
court, having heard the testimony at trial, found Sutton
generally reliable. We see no reason to second-guess
that determination. See id. Moreover, once the court
decided to attribute to Longstreet only Sutton’s sales
between July 2004 and May 2005, whether Sutton sold
drugs prior to July 2004 became irrelevant, at least for
purposes of the mathematical calculation.
Longstreet next challenges Sutton’s daily sales average
as unreliable. Basically, Longstreet contends that Sutton’s
sales rate from July 2004 to May 2005 might have been
different than the one from his entire time on the corner,
which Sutton testified was 1.5 ounces of crack per day.
Longstreet therefore argues that the district court com-
mitted clear error by using an unreliable estimate.
Of course, Longstreet is technically correct. For
example, and simplifying the dates slightly, Sutton
might have sold 2 ounces per day from September 2003
to July 2004 and 1 ounce per day from July 2004 to
May 2005. This still produces an average of 1.5 ounces
per day over the twenty-month period, despite a
lower average over the period the court attributed to
Longstreet. But a much more plausible interpretation
of Sutton’s testimony is that he sold roughly 1.5 ounces
every day with slight variations that become irrelevant
once a large number of days is considered. Longstreet
offers only speculation that Sutton’s sales were unevenly
distributed.
Longstreet relies heavily on United States v. Lawrence,
915 F.2d 402 (8th Cir. 1990). There, the defendant ad-
mitted selling 16 ounces of cocaine during an eight-year
Nos. 10-2872 & 10-3079 7
period, but the drug conspiracy at issue covered only
four of those years. Id. at 408. To estimate the amount
of cocaine to be included, the district court assumed the
16 ounces were evenly distributed and simply halved
the total amount to arrive at 8 ounces. Id. The Eighth
Circuit reversed, finding no evidence that the sales
were evenly distributed throughout the eight-year
period, or even that the defendant sold any drugs
during the relevant four years. Id. at 409.
By contrast, here, Sutton’s average is itself evidence
of how the sales were distributed; namely, 1.5 ounces
per day. If Sutton had testified that he sold 36 kilo-
grams over three years, we could not assume that he
sold 10 kilograms in a given ten-month period. The
total quantity and the total time period do not,
without more, indicate the distribution. But that’s not
what happened. Sutton testified that he sold an average
of 1.5 ounces per day over two or three years. This
evidence does not raise the problem at issue in Law-
rence. Sutton’s testimony about a daily amount in-
dicates that the sales were relatively evenly distributed,
allowing the district court to extrapolate the per-day
amount to a larger period of time. Accordingly, the
court’s drug calculations were supported by reliable
evidence.
B. Ervin
Ervin’s appellate counsel filed an Anders brief re-
questing permission to withdraw because the appeal
8 Nos. 10-2872 & 10-3079
presents no nonfrivolous issues; Ervin did not respond.
See Anders v. California, 386 U.S. 738 (1967). Because Ervin
did not challenge his guilty plea in the first appeal, our
review is limited to the resentencing. See United States
v. Parker, 101 F.3d 527, 528 (7th Cir. 1996). Ervin’s coun-
sel identifies two potential issues: whether the guide-
lines range was correctly calculated and whether the
sentence is reasonable.
Ervin’s guidelines range was undoubtedly appropriate
because he admittedly qualified as a career offender.
Ervin’s sentence, which was below the guidelines range,
is therefore presumptively reasonable. See United States
v. Curb, 626 F.3d 921, 927 (7th Cir. 2010). In addition, the
district court thoroughly explained its reasoning, citing
both the relevant factors under 18 U.S.C. § 3553(a) and
the need for proportionality. We therefore agree with
Ervin’s counsel that the appeal presents no nonfrivolous
issues.
For the foregoing reasons, we A FFIRM Longstreet’s
sentence. We also G RANT Ervin’s counsel’s motion to
withdraw and D ISMISS Ervin’s appeal.
1-20-12