United States v. Maurice Vaughn

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 12-1835 & 12-1947

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

M AURICE D. V AUGHN and

M AURICE C. L OCKHART,

Defendants-Appellants.

Appeals from the United States District Court

for the Western District of Wisconsin.

No. 11 CR 90—William M. Conley, Chief Judge.

A RGUED A PRIL 12, 2013—D ECIDED JULY 3, 2013

Before B AUER, P OSNER, and F LAUM, Circuit Judges.

F LAUM, Circuit Judge. In August 2010, Maurice Vaughn

and Maurice Lockhart were indicted for conspiring to

distribute more than 100 grams of heroin in violation of

21 U.S.C. §§ 841(a) and 846. Lockhart worked for Vaughn

as one of Vaughn’s two heroin distributors in Beloit,

Wisconsin and sold small bags of heroin to buyers

who arranged purchases through Vaughn. Before trial,

2 Nos. 12-1835 & 12-1947

Lockhart moved to dismiss the indictment and re-

quested a bill of particulars. The district court denied

his motions. Maintaining their innocence, the de-

fendants proceeded to trial on January 23, 2012, and a

jury convicted them of the crimes charged, largely on

the basis of circumstantial evidence. The district court

then sentenced Vaughn to 240 months in prison and

sentenced Lockhart to 72 months in prison. Both defen-

dants appeal. Lockhart contends that the district court

erred in denying his motion to dismiss the indictment

and his motion for a bill of particulars. Separately,

Vaughn argues that there was insufficient evidence

presented at trial to support the jury’s verdict and that

the district court erred in imposing his 240-month sen-

tence. For the reasons set forth below, we affirm.

I. Background

A. Factual Background

For three months during the summer of 2010, Vaughn

served as the leader of a heroin distribution conspiracy

in Beloit, Wisconsin. Several tips from heroin users led

police to one of Vaughn’s distributors who, after being

arrested with seventy small bags of heroin on his person,

signed a plea agreement and agreed to testify against

Vaughn and Lockhart.

1. Maurice Vaughn

Beloit police began investigating Vaughn for drug

trafficking in 2007. In June of that year, when Vaughn

Nos. 12-1835 & 12-1947 3

was on federal supervised release for a cocaine distribu-

tion conviction, a confidential informant attempted to

purchase two grams of heroin from Vaughn as part of a

controlled buy. The informant wore a wire, got into

Vaughn’s car, and handed over $250 for the arranged

purchase. Before exchanging the drugs, however,

Vaughn checked the informant for a wire. When he

located the recording device on the informant’s body,

Vaughn ripped it off, kicked the informant out of the

car, and tossed the money out of his car window as he

drove away.

During the same period of time in 2007, Vaughn was

also distributing heroin to Jesse Green. Green told investi-

gators that from the beginning of 2007 to September 2007,

he bought between three and five grams of heroin

from Vaughn each day for his own use and for sale.

In late 2007 or early 2008, Patrick Riley began using

heroin he obtained from Vaughn, whom Riley had met

when the two worked together for the same employer.

Riley estimated that from 2008 through mid-2010, he

received gram quantities of uncut heroin from Vaughn.

Generally, Riley would purchase the heroin from

Vaughn directly, but once Vaughn began using Carlos

Ford as a distributor in 2010, Ford would make

deliveries to Riley only after Riley had first contacted

Vaughn to arrange a purchase.

2. The Distributors

Ford worked as a distributor for Vaughn from

December 2009 through March 2010. Each day, Vaughn

4 Nos. 12-1835 & 12-1947

would supply Ford with heroin to sell in exchange for

personal-use quantities or cash. For a short time in the

spring of 2010, Ford and Vaughn had a falling out in

response to customer complaints about the purity of

the product, but after their dispute, they quickly

resumed their supplier/distributor relationship. At that

point, however, Vaughn assumed more control over

Ford’s heroin sales. Rather than going directly to Ford,

as they had in the past, the customers were required to

contact Vaughn first and Vaughn would direct them on

where and when to meet Ford. Following a customer

request, Vaughn would contact Ford by cell phone and

tell him where to meet the buyer.

Ford testified that each morning during the summer

of 2010, he picked up approximately fifty to seventy

small bags containing pre-weighed heroin (also referred

to as bindles or “dime bags”) from Vaughn along with

the cell phone that enabled Vaughn to contact Ford

and give him directions after a call from a customer.

Upon the completion of his daily shift, Vaughn in-

structed Ford to drop off money from the day’s sales

and any remaining heroin to Vaughn or to Lockhart.

During that summer, Lockhart served in the same role

as Ford and distributed heroin in front of his house

in Beloit.

Vaughn’s customers knew that he ran a two-shift ar-

rangement. If they wanted heroin during the day, Vaughn

directed them to meet with Ford for delivery. If

customers ordered heroin in the afternoon or evening,

Vaughn would instruct them to meet with Lockhart.

Nos. 12-1835 & 12-1947 5

Prior to his dealings with Vaughn, Ford did not know

Lockhart. And although Ford had been obtaining heroin

from Vaughn and selling it as early as December 2009,

Lockhart did not become involved until the spring of

2010, the point at which Vaughn began exercising

more direct control over the distribution.

3. Ford’s Arrest and the Subsequent Indictments

On August 11, 2010, an officer conducted a traffic stop

after observing Ford driving erratically in Beloit. During

the course of that stop, officers searched Ford’s person and

located a key chain containing two bags of heroin. Im-

mediately following his arrest, officers observed Ford

moving around in the back seat of the squad car as if he

were attempting to conceal an item behind him.

Shortly thereafter, a strip search at the jail revealed

seventy bindles containing a total of 11.621 grams of

heroin between Ford’s buttocks. Ford later testified that

the seventy bags of heroin in his possession at the time

of his arrest was the daily supply he had just picked up

from Vaughn. After weighing the contents of the bags,

Detective Andre Sayles estimated that each package

contained 0.13 gram of heroin.

Six days after Ford’s arrest, a grand jury in the Western

District of Wisconsin returned a one-count indictment

against Vaughn and Lockhart for conspiring with each

other, Ford, and others to distribute 100 grams or more

of heroin from May 2010 to August 10, 2010 in violation

of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. Officers

arrested Lockhart on August 29, 2011 and Vaughn

6 Nos. 12-1835 & 12-1947

on October 10, 2011 without recovering any physical

evidence. Both defendants pleaded not guilty to the

charged offense.

B. Procedural Background

Before trial, Lockhart moved to dismiss the indictment

as impermissibly vague, urging the district court to

adopt civil pleading standards in ruling on his motion.

Lockhart also requested a bill of particulars. The district

court denied both motions and the case proceeded to trial.

1. Trial Testimony

During the trial, several witnesses testified to their

interactions with and knowledge of Vaughn and

Lockhart, corroborating Ford’s description of the heroin

distribution arrangement. The defendants’ customers

also testified to the amount of heroin they obtained

from Lockhart and Ford.

a. Casie Kast

Casie Kast, Ford’s girlfriend, testified that during the

summer of 2010, she would drive Ford to a house in

Beloit where Ford would pick up the day’s supply of

heroin from Vaughn. Kast saw the daily supply of heroin

and, as a heroin user herself, had used some of the heroin

each day. Kast also confirmed that Ford would receive

cell phone calls from Vaughn, instructing Ford on when

and where to meet customers that had arranged a pur-

Nos. 12-1835 & 12-1947 7

chase. At the end of Ford’s shift on approximately fifteen

to twenty occasions, Kast explained that she drove Ford

to Lockhart’s house on Dewey Street so that he could

drop off the money from the heroin sales and pass the

cell phone along to either Vaughn or Lockhart.

b. Ashley Titus, Darrell Jackson, and Andre Simms

Ashley Titus and Darrell Jackson also testified at trial.

Both admitted to using heroin in the summer of 2010 and

explained that they would contact an intermediary,

Andre Simms, for the purchase of heroin. In their

presence, Simms would make a phone call, and Titus

and Jackson would then drive Simms to either of two

typical locations where the person on the phone had

directed him. Titus and Jackson would watch as Simms

met with one of two distributors, who Titus and Jackson

identified as Ford and Lockhart.

Simms confirmed Titus’s and Jackson’s testimony

about the heroin deals he middled involving purchases

from Ford and Lockhart. Simms also corroborated Ford’s

account of the manner in which heroin purchases from

Ford changed during the summer of 2010, requiring

Simms to call Vaughn to set up a purchase. When

Simms called Vaughn, he would tell Vaughn that he

wanted to purchase heroin, and Vaughn would then

instruct Simms to meet with either Ford or Lockhart at

a specified location.

8 Nos. 12-1835 & 12-1947

c. Lawrence McShan

Like Simms, Lawrence McShan served as an intermedi-

ary for heroin users in order to support his own heroin

habit. McShan testified that in the summer of 2010, he

would pick up heroin from Ford or Lockhart after

calling a designated number to arrange a purchase. The

person McShan called would direct him to meet with

Ford during the morning hours and to meet with

Lockhart during the evening hours. On one occasion when

McShan met with Ford, McShan did not have enough

money to cover his purchase. McShan recalled that

Ford told him, “You can’t be short man. You gonna have

to talk to Reese about this.” McShan testified that he

knew “Reese” to be Maurice Vaughn.

d. Crystal Freeman

Crystal Freeman, who used McShan as an intermediary,

identified both Lockhart and Ford as heroin distributors.

She explained that she had watched McShan meet with

Lockhart in front of his home on numerous occasions,

and although she did not know his name, she recog-

nized Lockhart from prior contact she had with him

at her former place of employment in Beloit. Freeman

testified that on other occasions, McShan would call

someone on his cell phone before going to meet Ford. She

estimated that McShan met with Ford to purchase

heroin for her approximately thirty to forty times during

the summer of 2010, and testified that she observed

McShan meet with Lockhart to get heroin “every day” that

summer. Finally, Freeman confirmed the different shifts

Nos. 12-1835 & 12-1947 9

during which Ford and Lockhart sold the drugs: Ford

sold during the morning, and Lockhart sold in the after-

noon and evening.

e. Seized Heroin

During the trial, the government showed each of the

customer witnesses the bags of heroin seized from Ford

at the time of his arrest in August 2010. Kast, Jackson,

Simms, and Freeman identified those bags as representa-

tive of the bags they had seen used when purchasing

heroin through either Ford or Lockhart. Customers who

bought multiple times in a single day and who there-

fore ended up buying from both Ford and Lockhart

testified that the packaging in which they received the

heroin was the same in the morning and the evening.

The witnesses also testified to the number of bags and

the frequency with which they purchased heroin from Ford

and Lockhart during the summer of 2010. The govern-

ment used the samples seized from Ford as a reference

for the average weight of each bag. Detective Sayles, who

had seized the seventy bags of heroin from Ford after

his arrest, testified to his estimate that each small

package contained an average of 0.13 gram of heroin.

2. Jury Verdict

When the government rested its case, both defendants

moved to dismiss, alleging a failure to prove their in-

volvement in the charged conspiracy beyond a rea-

10 Nos. 12-1835 & 12-1947

sonable doubt. The court denied the motions and after

the conclusion of the trial, the jury found both defendants

guilty and made a special finding that the conspiracy

involved 100 grams or more of heroin. Neither defendant

submitted a post-verdict motion or a request for a

new trial.

3. Sentencing

The probation office filed Vaughn’s Presentence In-

vestigation Report (“PSR”) on March 5, 2012. The PSR

noted that the crime lab had determined that the

heroin seized from Ford actually weighed a total of 11.621

grams, resulting in an average weight per bag of 0.166

gram. Vaughn did not object to this calculation.

The PSR also outlined the frequency and bindle

number estimates attributed to each witness who

admitted to purchasing heroin from Ford and Lockhart.

The PSR multiplied the estimated number of bags ob-

tained by each witness by the 0.13 gram weight estimate

to which Detective Sayles testified at trial unless the

particular witness’s testimony differed from the typical

bag. The calculation, when added to the relevant-conduct

weight estimates for Vaughn, resulted in a total drug

weight of 1,568.65 grams of heroin.

The probation officer’s calculation of the relevant drug

quantities together with a two-level enhancement for

Vaughn’s role in the conspiracy as a leader or organizer

resulted in a 235- to 293-month range for sentencing.

Lockhart’s guidelines range for sentencing was 108 to

Nos. 12-1835 & 12-1947 11

135 months, based in part on his much less substantial

criminal history. On March 29, 2012, the district court

sentenced Vaughn to 240 months’ imprisonment and

on April 12, 2012, the court sentenced Lockhart to

72 months’ imprisonment. Both defendants appealed.

III. Discussion

On appeal, Lockhart contends that the indictment

charging the heroin distribution conspiracy in this case

provided insufficient factual allegations to support the

charge. He maintains that the district court erred in

denying his motion to dismiss the indictment and his

motion for a bill of particulars. Separately, Vaughn chal-

lenges his conviction, arguing that there was insufficient

evidence offered at trial to support the jury’s verdict.

Vaughn also disputes his guidelines calculation for sen-

tencing and contends that the court erred in computing

the relevant drug weight, calculating his criminal

history score, and applying a two-level enhancement

for his role as a leader or organizer of the conspiracy.

Finally, Vaughn argues that the sentence imposed by

the district court is substantively unreasonable.

A. The District Court Properly Denied Lockhart’s

Motion to Dismiss the Indictment.

Pursuant to a defendant’s right to be informed of the

charges against him and his right to be free from convic-

tion without notice and without having meaningful

opportunity to defend, Federal Rule of Criminal Pro-

12 Nos. 12-1835 & 12-1947

cedure 7(c)(1) provides that an “indictment or informa-

tion must [include] a plain, concise, and definite written

statement of the essential facts constituting the offense

charged.” Fed. R. Crim. P. 7(c)(1). In line with this di-

rective, we have held that an indictment is legally suffi-

cient if it (1) states all the elements of the crime charged,

(2) adequately informs the defendant of the nature of

the charges against him, and (3) allows the defendant to

assert the judgment as a bar to future prosecutions of

the same offense. United States v. Smith, 230 F.3d 300, 305

(7th Cir. 2000). We have further explained that an in-

dictment “that ‘tracks’ the words of a statute to state

the elements of the crime is generally acceptable, and

while there must be enough factual particulars so the

defendant is aware of the specific conduct at issue, the

presence or absence of any particular fact is not

dispositive.” United States v. White, 610 F.3d 956, 958-59

(7th Cir. 2010); see also United States v. Resendiz-Ponce,

549 U.S. 102, 109 (2007) (explaining that an indictment

“parroting the language of a federal criminal statute” is

sufficient so long as the crime is not one that must be

charged with greater specificity).

To successfully challenge the sufficiency of an indict-

ment, a defendant must demonstrate that the indictment

did not satisfy one or more of the required elements and

that he suffered prejudice from the alleged deficiency.

United States v. Dooley, 578 F.3d 582, 589-90 (7th Cir. 2009).

“The test for validity is not whether the indictment

could have been framed in a more satisfactory manner,

but whether it conforms to minimal constitutional stan-

dards.” United States v. Hausman, 345 F.3d 952, 955 (7th

Nos. 12-1835 & 12-1947 13

Cir. 2003) (internal quotation marks omitted). We review

de novo a defendant’s challenge to the sufficiency of

an indictment. Smith, 230 F.3d at 305.

On August 17, 2010, a grand jury in the Western District

of Wisconsin issued an indictment charging Vaughn and

Lockhart as follows:

From in or about May 2010 until on or about August

10, 2010, in the Western District of Wisconsin, the

defendants, Maurice D. Vaughn and Maurice C.

Lockhart, knowingly and intentionally conspired and

agreed with each other and with Carlos Ford, named

as a co-conspirator but not a defendant herein, and

with other persons known and unknown to the grand

jury, to distribute heroin, a Schedule I controlled

substance, with this offense involving 100 grams or

more of a mixture or substance containing heroin, in

violation of Title 21, United States Code, Section

841(a)(1). (All in violation of Title 21, United States

Code, Section 846).

Dkt. 1. This court has consistently held that an indictment

charging an offense under 21 U.S.C. §§ 841(a) and 846,

which are the statutes the defendants were charged

with violating in this case, fulfills the requirements of

Rule 7(c)(1) and of the constitution “if it sets forth the

existence of a drug conspiracy, the operative time of the

conspiracy, and the statute violated.” United States v.

Singleton, 588 F.3d 497, 499-500 (7th Cir. 2009). The indict-

ment here contains each of the required elements and was

sufficient to notify Lockhart of what the government

intended to prove. Although it does not allege facts

14 Nos. 12-1835 & 12-1947

addressing any particular drug transactions, our cases

do not require such specificity.1

To avoid our established precedent on this issue, which

plainly supports the sufficiency of the indictment in

this case, Lockhart urges this court to adopt the civil

pleading standards articulated by the Supreme Court in

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and

Ashcroft v. Iqbal, 556 U.S. 662 (2009), to assess the suffi-

ciency of a criminal indictment. No court has taken this

approach, and we decline Lockhart’s invitation to do so

here. Importantly, the Supreme Court’s decisions in

Twombly and Iqbal ushered in a requirement that civil

pleadings demonstrate some merit or plausibility in

complaint allegations to protect defendants from having

to undergo costly discovery unless a substantial case is

brought against them. See Limestone Dev. Corp. v. Village

of Lemont, Ill., 520 F.3d 797, 802-03 (7th Cir. 2008). We do

not believe that the concerns guiding the Court’s

approach in the civil context apply with equal force in

the case of a criminal indictment, and if a defendant

has serious apprehension about his ability to prepare a

defense in light of the charges against him, he can seek

a bill of particulars. Here, the criminal indictment meets

1

The indictment at issue in Singleton, a case in which we

affirmed the district court’s denial of the defendant’s motion

to dismiss the indictment, conforms to a nearly identical

structure as and presents substantially similar language to the

indictment charging the defendants in this case. See United

States v. Singleton, No. 07-CR-524-3, 2008 WL 4853419, at *1

(N.D. Ill. Nov. 3, 2008).

Nos. 12-1835 & 12-1947 15

the requirements outlined by the Supreme Court in

Resendiz-Ponce, and we decline to stray from that

approach without a change in course undertaken by the

Court itself. See Agostini v. Felton, 521 U.S. 203, 237

(1997) (directing courts of appeals to leave to the

Supreme Court “the prerogative of overruling its own

decisions”).

B. The District Court Did Not Abuse its Discretion in

Denying Lockhart’s Motion for a Bill of Particulars.

Lockhart next argues that the district court erred in

denying his motion for a bill of particulars—a written

statement providing the defendant with detailed infor-

mation concerning the charges against him. We review

the district court’s decision to deny such a motion under

a deferential standard and will reverse only upon a

showing that the court abused its discretion and that

the defendant suffered prejudice as a result. United

States v. Blanchard, 542 F.3d 1133, 1140 (7th Cir. 2008).

This court’s bill-of-particulars analysis is similar to

its constitutional sufficiency-of-the-indictment analysis;

“in both cases, the key question is whether the defendant

was sufficiently apprised of the charges against him in

order to enable adequate trial preparation.” Id. Indeed,

we have previously explained that a bill of particulars

is “unnecessary where the indictment sets forth the

elements of the charged offenses and provides sufficient

notice of the charges to enable the defendant to prepare

his defense.” United States v. Hernandez, 330 F.3d 964, 975

(7th Cir. 2003); see also United States v. Kendall, 665 F.2d

16 Nos. 12-1835 & 12-1947

126, 135 (7th Cir. 1981) (“[A] defendant is not entitled

to know all the evidence the government intends to

produce, but only the theory of the government’s case.”

(internal quotation marks omitted)). And as discussed

above, an indictment that includes each of the elements

of the charged offense, the time and place of the

accused’s allegedly criminal conduct, and a citation to the

applicable statute or statutes is sufficient to meet that

standard. United States v. Fassnacht, 332 F.3d 440, 446

(7th Cir. 2003).

Lockhart moved for a bill of particulars pursuant to

Federal Rule of Criminal Procedure 7(f) at the time he

sought dismissal of the indictment. In that motion, he

asked that the government:

1. Identify all acts (including time, date, place and

persons present) committed by Mr. Lockhart

which support the charged conspiracy.

2. Identify all acts (including time, date, place and

persons present) committed by Mr. Lockhart’s co-

defendants which the government believes sup-

ported, aided or abetted in his illegal activity, or

are otherwise attributable to Mr. Lockhart.

3. Identify the dates or approximate dates when

Mr. Lockhart is alleged to have joined the con-

spiracy and dates he left the conspiracy.

4. Identify what Mr. Lockhart agreed to do as a

member of the conspiracy.

Dkt. 24 at 2. In his brief in support of his motion in the

district court, Lockhart argued that the bill of particulars

Nos. 12-1835 & 12-1947 17

would help him better understand his role in the

charged offense. He explained that the government found

no heroin in his possession at any time and never at-

tempted to purchase heroin from him through the use of

a confidential informant.

In support of his argument that the district court erred

in denying his request for a bill of particulars, Lockhart

cites a District of D.C. case in which the court deter-

mined that the less stringent pleading requirements for a

narcotics conspiracy charged under § 846 increase the

need for a bill of particulars in such a case. See United

States v. Ramirez, 54 F. Supp. 2d 25, 30 (D.D.C. 1999). The

court in Ramirez reasoned that because a charged defen-

dant has very little information about the actual events

supporting the charge, he should be given additional

information to allow him to prepare adequately for trial.

Id. Of course, we recognize the importance of ensuring

that a defendant has sufficient information about his

charges to allow him to prepare an adequate defense, but

we have also explained that a bill of particulars is unneces-

sary if the information the defendant seeks is readily

available through alternate means such as discovery.

Blanchard, 542 F.3d at 1140; see also United States v. Redd,

167 F. App’x 565, 568 (7th Cir. 2006) (holding that a de-

fendant was not entitled to a bill of particulars where

the indictment charging a violation of § 841(a) included

an allegation of conspiracy, the time period in which

the conspiracy operated, and the statute violated and

where the defendant had access to more detailed infor-

mation through discovery).

18 Nos. 12-1835 & 12-1947

Here, before Lockhart moved for a bill of particulars

in the district court, the government produced over

350 pages of discovery, including investigative and sur-

veillance reports and numerous reports of interviews

with witnesses who were involved in transactions with

the conspirators. We agree with the district court that a

350-page production detailing witness statements and

other surveillance activities is adequate to satisfy the

need for a bill of particulars without being so voluminous

that it places an unreasonable burden on the defendant.

But even if the information relevant to Lockhart’s defense

was not available to him through discovery, Lockhart

did not attempt to show that the denial of the bill of

particulars resulted in actual prejudice, which is an

element we require for reversal. See Hernandez, 330 F.3d

at 975. Having found no error in the district court’s res-

olution of Lockhart’s pretrial motions, we affirm his

conviction in this case.

C. Vaughn’s Conviction is Supported by Sufficient

Evidence in the Record.

We turn now to Lockhart’s co-defendant. In appealing

his conviction, Vaughn contends that the government

failed to prove the existence of a conspiracy beyond a

reasonable doubt. He argues that the government, at

best, demonstrated merely a buyer-seller relationship

between Vaughn, Lockhart, and Ford. Ordinarily, a

conviction may be reversed on appeal only where the

record, viewed in the light most favorable to the govern-

ment, is “devoid of evidence from which a reasonable

Nos. 12-1835 & 12-1947 19

jury could find guilt beyond a reasonable doubt.” United

States v. Durham, 645 F.3d 883, 892 (7th Cir. 2011).

But where, as here, a defendant does not move for a

judgment of acquittal in the district court, “the even more

stringent plain-error standard applies.” Id. “Under this

most demanding standard,” a defendant will “prevail

only if he can show that, absent reversal, a manifest

miscarriage of justice will result.” United States v. Beaver,

515 F.3d 730, 741-42 (7th Cir. 2008) (internal quotation

marks omitted).

1. Requirements for Proof of a Conspiracy

To convict a defendant on a conspiracy charge, the

government must prove that (1) two or more people agreed

to commit an unlawful act, and (2) the defendant know-

ingly and intentionally joined in the agreement. United

States v. Rollins, 544 F.3d 820, 835 (7th Cir. 2008). Specifi-

cally, a drug-distribution conspiracy charged under

21 U.S.C. §846 “requires proof that the defendant know-

ingly agreed—either implicitly or explicitly—with someone

else to distribute drugs.” United States v. Johnson, 592

F.3d 749, 754 (7th Cir. 2010). This court has repeatedly

explained that a conspiracy does not exist where a

drug purchaser resells to his own customers drugs he

obtained from a supplier. Id.; United States v. Colon,

549 F.3d 565, 567 (7th Cir. 2008). Instead, a conspiracy

“requires evidence that the buyer and seller entered into

an agreement to commit a crime other than the crime

that consists of the sale itself.” Johnson, 592 F.3d at 754

(internal quotation marks omitted).

20 Nos. 12-1835 & 12-1947

Because certain characteristics inherent in a buyer-

seller relationship may also suggest the existence of a

conspiracy, we have recognized that it is difficult to

determine what evidence is sufficient to establish an

agreement to distribute drugs. Id. For example, the sale

of large quantities of drugs, standardized transactions,

and a sustained relationship between the parties may

demonstrate either a buyer-seller relationship or a con-

spiracy to distribute. Id. at 754-55. Consequently, we

require the government to “offer evidence establishing

an agreement to distribute drugs that is distinct from

evidence of the agreement to complete the underlying

drug deals.” Id. at 755. For example, the government may

prove the conspiratorial agreement through evidence of

sales on credit or consignment, an agreement to seek out

additional customers, commission payments, one party

providing advice for the other’s business, or an agreement

to warn of potential threats to each other’s business. United

States v. Villasenor, 664 F.3d 673, 680 (7th Cir. 2011); see also

Colon, 549 F.3d at 568-70. To be sure, “not all credit sales

can support an inference that there was an agreement

to distribute.” United States v. Vallar, 635 F.3d 271, 287

(7th Cir. 2011) (internal quotation marks omitted). But

when a credit sale is combined “with certain character-

istics inherent in an ongoing wholesale buyer-seller

relationship—i.e., large quantities of drugs, repeat pur-

chases or some other enduring arrangement—the credit

sale becomes sufficient evidence to distinguish a con-

spiracy from a nonconspiratorial buyer-seller relation-

ship.” Id.

Nos. 12-1835 & 12-1947 21

2. Evidence of an Agreement to Distribute

Here, when considered in the light most favorable to

the government, the evidence in the record demonstrates

that the government successfully distinguished Vaughn’s

conspiratorial relationship with his co-defendants from

a nonconspiratorial buyer-seller affiliation. Ford testified

at trial that he picked up between fifty and seventy pre-

packaged bags of heroin and a cell phone from Vaughn

each day during the summer of 2010 and that he sold

those bags to customers who called Vaughn to set up

deals. At the end of his shift, Ford would turn over the

money from the sales and any leftover heroin to either

Lockhart or Vaughn, and Lockhart would sell heroin

in the afternoon. In exchange for selling the heroin, Ford

testified that he received either heroin for his personal

use, cash, or both. During his testimony, Ford also ex-

plained that Vaughn wanted to exercise control over

his heroin sales because of earlier complaints about the

quality of the product. Other witnesses corroborated

Ford’s description of the two-shift arrangement and

Vaughn’s command over the drug sales, including Ford’s

girlfriend, who often drove Ford to pick up the heroin

and to drop off the proceeds and the cell phone at Lock-

hart’s house.

Vaughn seemingly recognizes that Ford’s testimony

implicates him in a conspiracy, but contends that Ford

was not a credible witness and that his testimony was

influenced by a desire to reduce his own sentence.

He suggests that the jury could not have given any

credit to Ford’s testimony or to that of his girlfriend, which

22 Nos. 12-1835 & 12-1947

he argues was tainted by her desire to have Ford serve

a shorter sentence. But in determining whether the evi-

dence in the record supports the jury’s verdict, this

court’s task is not to “weigh the evidence” or “to second-

guess the trier of fact.” United States v. Smith, 576 F.3d 681,

686 (7th Cir. 2009) (internal quotation marks omitted).

While jurors have an “opportunity to observe the verbal

and nonverbal behavior of the witnesses,” this court

may look only to the cold appellate record. Id. at 687.

We have therefore adopted a clearly erroneous standard

with respect to credibility determinations; a jury’s con-

clusions on credibility will be set aside “only if [it] has

chosen to credit exceedingly improbable testimony,”

meaning that the testimony is “internally inconsistent” or

“implausible on its face.” Id. (internal quotation marks

omitted).

True, Ford is a convicted felon and heroin user who

agreed to testified against Vaughn as a part of his plea

agreement. Kast, his girlfriend, was granted immunity.

And several of the witnesses who corroborated the struc-

ture of the transactions testified under the impression

that they would not be prosecuted for their testimony.

But each witness faced cross-examination concerning

their own charges, prior convictions, plea agreements,

immunity, and bias, giving the jury an opportunity to

assess each witness’s testimony in light of those facts.

Notwithstanding this cross-examination and the de-

fense’s arguments in closing relating to the witness’s

motives, the jury apparently accepted the testimony as

credible, a determination we do not find to be clearly

Nos. 12-1835 & 12-1947 23

erroneous. Ford’s testimony unquestionably supports

the finding of an agreement to distribute heroin and is

neither internally inconsistent nor facially implausible.

Accordingly, we conclude that there was sufficient evi-

dence in the record to support Vaughn’s conviction

for conspiracy to distribute heroin.

D. The District Court Properly Calculated Vaughn’s

Guidelines Range for Sentencing.

For the first time on appeal, Vaughn challenges three

aspects of his sentencing guidelines determination. First,

he argues that the district court made incorrect findings

as to the drug amounts that were part of the same

course of conduct as the charged offense. Second, he

contends that the district court miscalculated his

criminal history. And finally, he asserts that the district

court improperly applied a two-level enhancement for

acting as a leader or organizer in the conspiracy. We

review a district court’s application of the sentencing

guidelines de novo and its factual findings for clear error.

United States v. Turner, 400 F.3d 491, 500 (7th Cir. 2005).

When no objection to the guidelines calculation is made

at trial, however, we review the calculation for plain

error. United States v. Jumah, 599 F.3d 799, 811 (7th Cir.

2010). Here, because we find no error affecting Vaughn’s

substantial rights in the district court’s determination

of the appropriate guidelines range for sentencing,

we affirm the sentence imposed. See id.

24 Nos. 12-1835 & 12-1947

1. Drug Weight Calculation

During Vaughn’s sentencing hearing, the district court

adopted the probation officer’s guidelines calculation in

the PSR and explicitly stated that the calculation “takes

into consideration the defendant’s relevant conduct

according to Section 1B1.3.” Vaughn argues that in calcu-

lating the relevant drug weight applicable to his base

offense level, the district court erred by considering drug

transactions that were not a part of the conspiracy and

that were too far removed from the conspiracy to be

considered relevant conduct. Moreover, Vaughn con-

tends that the district court double counted a portion

of the relevant drug weight by attributing to two indi-

viduals heroin that the individuals shared.

a. Relevant Conduct

Section 1B1.3 of the guidelines instructs district courts

to compute sentences based on quantities of distributed

drugs that were not accounted for in the actual conviction

but that were “part of the same course of conduct or

common scheme or plan” as the convicted offense. United

States v. Arroyo, 406 F.3d 881, 888 (7th Cir. 2005) (quoting

U.S.S.G. § 1B1.3(a)(2)). This “relevant conduct” rule

allows district courts to consider additional quantities of

drugs not specified in the conviction on the condition

that “the unconvicted activities bore the necessary rela-

tion to the convicted offense.” United States v. Bacallao, 149

F.3d 717, 719 (7th Cir. 1998) (internal quotation marks

omitted). According to the guidelines, two or more of-

fenses are part of a common scheme or plan if they are

Nos. 12-1835 & 12-1947 25

“substantially connected to each other by at least one

common factor, such as common victims, common ac-

complices, common purpose, or similar modus ope-

randi.” U.S.S.G. § 1B1.3 cmt. n.9. Offenses that do not meet

the requirements of a common scheme or plan may

nonetheless qualify as part of the same course of

conduct if they are “sufficiently connected or related to

each other as to warrant the conclusion that they are

part of a single episode, spree, or ongoing series of of-

fenses.” Id. When a court relies solely on the PSR to make

its relevant conduct finding, the PSR must explain how

the earlier distribution activities were a part of the same

course of conduct or common scheme as the offense

of conviction. United States v. Sumner, 265 F.3d 532, 539-40

(7th Cir. 2001).

On the basis of statements made by individuals who

had purchased heroin from Vaughn, the probation

officer included in Vaughn’s drug weight calculation

amounts of heroin that he sold before the conspiracy

began, dating back to beginning of 2007. The relevant pre-

conspiracy amounts are reflected in the top portion of

the following chart:

Drug Amounts Attributable to Vaughn

as Stated in the PSR

Pre-Conspiracy Relevant Conduct Amounts

Errin Meding (Dec. 23, 2009) 11.1 grams of heroin

Valerie Crenshaw (Dec. 16, 2009) 0.5 gram of heroin

26 Nos. 12-1835 & 12-1947

Andre Shelley (Dec. 2009 through April 22, 3 grams of heroin

2010)

Pat Riley (Late 2007/Early 2008 through 215 grams of heroin

Mid-2010)

Jesse Green (Beginning of 2007 through 729 grams of heroin

Sept. 2007)

Amounts Included in the Conviction

Pat Riley (included in the conspiracy) 53 grams of heroin

Crystal Freeman (included in the 31.85 grams of heroin

conspiracy)

Andre Simms (included in the conspiracy) 23.4 grams of heroin

Carlos Ford (included in the conspiracy)2 455 grams of heroin

Darrell Jackson (included in the conspiracy) 46.8 grams of heroin

Total Amount Attributable to Vaughn 1,568.65 grams of heroin

2

Because the drug amounts attributed to Ford are included in

the total calculation, the amounts the other purchasers

received from Ford were not included in the drug weight

calculation. Instead, only the heroin the purchasers obtained

through Lockhart was considered in the overall calculation. It

appears from the PSR that some of the 53 grams Pat Riley

purchased during the course of the conspiracy may have been

purchased from Ford, but Vaughn did not raise an objection

to this particular calculation in either the district court or

on appeal.

Nos. 12-1835 & 12-1947 27

Dkt. 40 at 14. In addition to listing the estimated purchase

amounts, the PSR included a short summary of the state-

ments from each individual who admitted to purchasing

heroin from either Vaughn or Lockhart, including state-

ments from Jesse Green who bought heroin from Vaughn

in 2007, three years before the initiation of the charged

conspiracy. Vaughn argues that the district court erred

in relying on these statements when it accepted the

PSR’s relevant conduct finding because the statements

were not admitted at trial and the individuals were not

subject to cross-examination.

That the PSR relied on statements not offered during

Vaughn’s sentencing hearing or during his trial is of no

consequence. See United States v. Wilson, 502 F.3d 718, 722

(7th Cir. 2007). “Reliable drug quantity evidence need

not come directly from sworn witnesses” as Vaughn

suggests. Id. The evidence may also come from the PSR

so long as the report itself is based on reliable witness

statements. Id. And Vaughn offers no support for his

assertion that Green’s statement to law enforcement

was “presumptively unreliable as it was given with govern-

ment involvement, it described events from three years

prior and Vaughn never had an opportunity to test it via

cross-examination or otherwise.” 3 Appellant Br. at 34.

However, we must proceed with caution when

assessing the nature of relevant conduct occurring long

3

Vaughn also argued that “the trial court did not make

findings of the trustworthiness of Meding, Crenshaw or

Shelly’s statements.” Appellant Br. at 35.

28 Nos. 12-1835 & 12-1947

before a charged conspiracy. See, e.g., United States v.

McGowan, 478 F.3d 800, 802 (7th Cir. 2007); United State v.

Bullock, 454 F.3d 637, 642 (7th Cir. 2006). We have previ-

ously noted that long gaps of time between a conspiracy

and other drug sales can “cast doubt on the relevance of the

earlier conduct.” McGowan, 478 F.3d at 802. But amounts

from earlier drug sales may still be included in

a defendant’s overall drug weight for sentencing if the

government makes a sufficient showing on the other

course-of-conduct factors. See id.

Indeed, Vaughn’s sales to Green, which added 729

grams of heroin to his overall drug weight calculation

(moving his base offense level from 30 to 32), occurred

between January 2007 and September 2007, nearly three

years prior to the formation of the charged conspiracy.

But unlike a case in which a defendant engaged in no

apparent drug activity between a charged offense and an

uncharged drug offense two years earlier, see, e.g.,

Bullock, 454 F.3d at 642, the evidence summarized in

Vaughn’s PSR places Vaughn repeatedly selling gram

quantities of heroin to at least one individual in Beloit

from the beginning of 2007 until the end of the con-

spiracy in 2010 with little, if any, interruption. When a

substantial period of time exists between drug offenses

without any intervening activity, it is possible to

conclude that the defendant put his criminal activity on

hold during that period of time. But where a defendant

sells drugs, albeit to different purchasers, for an ex-

tended period of time with little or no break leading up

to the charged offense, it is much more likely that the

Nos. 12-1835 & 12-1947 29

sales are part of the same common scheme or plan as the

offense of conviction. Thus, while Vaughn’s sales to

Green in 2007 were nearly three years removed from the

charged conspiracy, the sales came on the heels of

Vaughn’s distribution to Riley in late 2007 or early 2008,

which continued into the time of the conspiracy. In light

of the statements supporting the continuity of Vaughn’s

heroin distribution in the PSR, we conclude that the

district court did not plainly err when it accepted the

probation officer’s relevant conduct determination. See

United States v. Acosta, 85 F.3d 275, 280 (7th Cir. 1996)

(“[W]here it is clear from the record that the district

court considered and adopted the facts recited in the

presentence report, as well as the government’s rea-

soning concerning the significance of those facts in estab-

lishing the defendant’s responsibility for uncharged

conduct, we have upheld the court’s decision to treat the

uncharged activities as relevant conduct despite the lack

of an express finding that the activities were part of ‘the

same course of conduct’ or ‘common scheme or plan’ as

the convicted offense.”).

b. Double Counting

In challenging the district court’s drug weight calcula-

tion, Vaughn also argues that the district court double

counted the heroin attributed to Vaughn through sales

to Jackson and Simms. The relevant testimony at trial

indicated that Jackson and Titus would contact Simms,

an intermediary, for the purchase of heroin. Simms

would make a phone call in their presence and the three

30 Nos. 12-1835 & 12-1947

would then travel to a specified location to pick up the

heroin. Jackson testified that during the summer of 2010,

he obtained heroin from Lockhart, through Simms, thirty

to sixty times. In exchange for the money Jackson and

Titus gave Simms for the purchases, Simms would obtain

twelve bags of heroin. Simms would then keep one or

two of the bags as payment, and Jackson and Titus

would divide the remaining bags for their own personal

use. Although Simms testified that he orchestrated at

least one heroin purchase for Aaron Thompson on July 14,

2010 and stated that he received heroin twice a day for

approximately a month supplied by either Ford or Lock-

hart, he did not indicate the specific quantity of heroin

he received from Lockhart each day or whether the

quantity reflected the heroin he received in exchange

for brokering the purchases for Jackson and Titus. More-

over, Thompson’s statements to authorities revealed

only that Simms middled deals between Thompson and

Ford, not between Thompson and Lockhart.

Based on this information, the PSR calculated the

amounts attributable to Vaughn through Jackson and

Simms as follows:

• Jackson: “(Approximately 30 occasions x 12 bags x

0.13 gram of heroin = 46.8 grams of heroin

received from Lockhart). On a number of occa-

sions Jackson purchased heroin from Simms who

received it from Carlos Ford. (This amount is not

included in the calculations to avoid double

counting as it is included in Ford’s drug calcula-

tions.)” Dkt. 40 at 12.

Nos. 12-1835 & 12-1947 31

• Simms: “The drug quantities he received from Ford

are included in Ford’s drug amounts and are

not included in the calculations to avoid double

counting. Simms received approximately a total of

23.4 grams directly from Lockhart. (30 days x 6 bags

x .13 gram of heroin = 23.4 grams of heroin).” Dkt. 40

at 9.

The PSR did not include the heroin Titus divided with

Jackson, apparently because every bag of heroin the

pair obtained through Simms was included in Jackson’s

calculation.4

Although we believe that the PSR properly calculated

Jackson’s drug quantities, even if those quantities in-

cluded the heroin Jackson ultimately divided with Titus

or gave to Simms as payment, it is less clear where the

probation officer found support for the additional 23.4 grams

of heroin that the PSR attributed to Simms as purchases

from Lockhart. The PSR indicates that Simms testified he

received heroin twice a day for approximately a month

from either “Ford or . . . Lockhart,” but the PSR does not

state how much heroin Simms received each day or

whether the heroin he received from Lockhart is the same

as the “one or two bags of heroin” Simms would keep after

brokering a deal for Jackson and Titus. This detail is

4

Vaughn argues that the PSR did not make clear the fact that

Jackson’s totals included the bags he shared with Titus. But

while the PSR did not include an explicit statement regarding

the breakdown, the overall calculation did not include any

amounts for Titus.

32 Nos. 12-1835 & 12-1947

important because although Jackson testified that Simms

would keep one or two of the twelve bags he received

from Lockhart, Jackson’s drug weight calculation in-

cluded all twelve bags.

But ultimately, the inclusion of the amounts attributed

to Simms in the PSR, if an error, was harmless. The drug

quantity the district court used to formulate Vaughn’s

base offense level, which amounted to 1,568.65 grams of

heroin, far exceeds the one kilogram of heroin required

to reach the base offense level of 32, even when the 23.4

grams of heroin attributed to Simms in the PSR are sub-

tracted from that calculation. We therefore find no plain

error in the court’s calculation of Vaughn’s base offense

level because of the inclusion of the heroin attributed

to Simms.

c. Average Weight

In one last attempt to dispute the district court’s cal-

culation of the relevant drug weight, Vaughn contends

that the court improperly relied on the 0.13 gram-per-

bindle calculation completed by the detective who

seized the seventy bags of heroin from Ford on the day

of his arrest. Vaughn suggests that a more appro-

priate estimate, as Lockhart put forth in his sentencing

memorandum, would have been a measure of 0.09 grams

per bindle. Prior to his sentencing, Lockhart submitted a

report prepared by a chemistry student obtaining a PhD

at UW-Madison who had visually compared packages of

a similar substance and speculated that it would have

Nos. 12-1835 & 12-1947 33

been possible for the packages to contain 0.09 gram of

heroin, which would change the total weight figures.

In contrast to the PhD student, the testifying detective

physically weighed the bindles of heroin he seized from

Ford. He weighed all of the bindles together and then

weighed one of the empty bags. The detective multiplied

the weight of the single, empty bag by seventy and then

subtracted that number from the overall weight of the bags

and the heroin combined to arrive at an average weight

of 0.13 gram of heroin per bindle. Moreover, the PSR

noted that the crime lab had actually determined the

weight of the heroin in the seventy bags seized from Ford

to be 11.621 grams, yielding an average weight of 0.166

gram per bag, but it ultimately used the detective’s more

conservative estimate to calculate the relevant drug weight.

The district court accepted the PSR’s calculation of the

average weight per bindle during Vaughn’s sentencing

hearing on March 29, 2012, before Lockhart submitted

the report offering the alternative 0.09 gram figure.5 Because

the 0.13 gram per bindle calculation is supported by

reliable information in the PSR, we find no error in

the district court’s acceptance of that estimate. And

having determined that the district court committed no

prejudicial error in identifying the relevant drug quantities

or approving the average drug weight, we affirm the

calculation of Vaughn’s base offense level for sentencing.

5

Lockhart submitted the report to the district court on

April 12, 2012.

34 Nos. 12-1835 & 12-1947

2. Criminal History Calculation

Vaughn turns next to the district court’s calculation of

his relevant criminal history. He contends that but for the

court’s consideration of the heroin sales to Green in 2007

as relevant conduct, the district court could not have

included a 1998 conviction for unlawful possession of a

controlled substance and a two-point increase for com-

mitting the instant offense while under supervised re-

lease. U.S.S.G. § 4A1.2(e)(1) (specifying that “[a]ny prior

sentence of imprisonment exceeding one year and one

month that was imposed within fifteen years of the de-

fendant’s commencement of the instant offense” and “any

other prior sentence that was imposed within ten years

of the defendant’s commencement of the instant offense”

should be counted when computing the defendant’s

criminal history); U.S.S.G. § 4A1.1(d) (directing the addi-

tion of two points “if the defendant committed the

instant offense while under . . . supervised release”); see

also U.S.S.G. § 4A1.2 comment n.8 (defining the “com-

mencement of the instant offense,” as including any

relevant conduct considered under § 1B1.3). Having

already determined that the district court committed no

plain error by including the 2007 drug sales as relevant

conduct, we agree with the district court’s calculation

of Vaughn’s criminal history points. The prior conviction

at issue was imposed by an Illinois court within ten

years of the 2007 conduct, and Vaughn was on supervised

release until August 1, 2008 for a more recent offense.

Nos. 12-1835 & 12-1947 35

3. Application of the Leader/Organizer Enhancement

Vaughn’s final argument with respect to the district

court’s calculation of his guidelines range pertains to the

court’s application of a two-level leader or organizer

enhancement. Section 3B1.1(c) of the sentencing guide-

lines provides that a defendant’s offense level should be

increased by two levels “[i]f the defendant was an orga-

nizer, leader, manager, or supervisor in any criminal

activity.” U.S.S.G. § 3B1.1(c). Vaughn contends that

in his case, the application of the enhancement was im-

proper because the facts presented at trial demonstrated

no more than a buyer-seller relationship or alternatively,

because he played the lesser role of bringing the parties

together. Vaughn argues, as he did in challenging his

conviction, that the record is devoid of any evidence

corroborating Ford’s and Kast’s testimony placing

Vaughn in the leadership role.

In determining whether a defendant acted as an organ-

izer, leader, manager, or supervisor, we have held that

courts may consider the factors outlined in Application

Note 4 to § 3B1.1(c), including the degree of control and

authority the defendant exercised over others. See United

States v. Weaver, No. 12-3324, 2013 WL 2402851, *3 (7th

Cir. June 3, 2013) (allowing but not requiring courts to

reference the factors in Application Note 4 to the extent

they “help to straighforwardly identify whether a defen-

dant helps manage or supervise a criminal scheme” (inter-

36 Nos. 12-1835 & 12-1947

nal quotation marks omitted)).6 There may be cases in

which a court need not consider those factors in order to

conclude that the defendant was a leader or manager,

but here, the factor addressing control and authority is

instructive. See id. The evidence at trial showed that Vaughn

supplied Ford with heroin to sell each day during the

conspiracy and exercised direct, ongoing control over

Ford’s sales by requiring customers to contact him before

purchasing from Ford. Only when Vaughn called Ford on

the cell phone Vaughn provided would Ford be informed

of when and where to meet a purchaser to distribute the

pre-packaged, sealed bags of heroin. At the end of each

shift, Ford testified that he returned the cell phone and the

proceeds to either Vaughn or Lockhart so that Lockhart

could continue selling into the afternoon and evening.

This arrangement is distinct from one in which a

supplier merely fronts drugs to distributors; Vaughn told

Ford what to do and determined whether he had done

it. See United States v. Figueroa, 682 F.3d 694, 697 (7th Cir.

2012). And although Vaughn again urges this court to

discredit Ford’s and his girlfriend’s testimony, we refuse

to re-weigh the evidence presented to the jury or indep-

endently assess each witness’s credibility. The jury

accepted Ford’s testimony, which clearly established

Vaughn’s supervisory role, and the district court appro-

6

In Weaver, we explained that “[a]lthough Note 4 offered

these factors to distinguish between organizer/leaders and

managers/supervisors, we have, in the past, consulted these

factors to decide whether Guideline 3B1.1 applies in the first

place.” Weaver, 2013 WL 2402851 at *3 (emphasis in original).

Nos. 12-1835 & 12-1947 37

priately applied the two-level enhancement. Together

with Vaughn’s base offense level and his criminal

history, the district court properly determined Vaughn’s

guidelines range for sentencing to be 235 to 293 months.

E. Vaughn’s Within-Guidelines Sentence is Substan-

tively Reasonable.

After hearing argument from the parties and con-

sidering the relevant sentencing documents, the district

court imposed a sentence of 240 months’ imprisonment.

Although sentences within or below a correctly-calculated

guidelines range are presumed reasonable, United

States v. Poetz, 582 F.3d 835, 837 (7th Cir. 2009), Vaughn

contends that the district court committed procedural

error by not properly considering the factors outlined in

18 U.S.C. § 3553(a) and that it ultimately imposed a sub-

stantively unreasonable sentence. This court reviews

de novo whether the sentencing court committed a pro-

cedural error, but considers the substantive reason-

ableness of the sentence for an abuse of discretion in

light of the factors in § 3553(a). United States v. Annoreno,

713 F.3d 352, 357 (7th Cir. 2013).

A sentencing court is not required to comprehensively

discuss each of the factors listed in 18 U.S.C. § 3553(a) and

explicitly formulate a conclusion with respect to each

one. United States v. Vizcarra, 668 F.3d 516, 527 (7th Cir.

2012). Instead, “sentencing judges must only demonstrate

meaningful consideration of [the] § 3553(a) factors.” United

States v. Paige, 611 F.3d 397, 398 (7th Cir. 2010). And “we

regularly affirm sentences where the district judge does

38 Nos. 12-1835 & 12-1947

not explicitly mention each argument raised by the de-

fendant.” Id.

Before imposing Vaughn’s sentence, the district court

addressed the seriousness of the offense and Vaughn’s

history and characteristics. The judge explained that

Vaughn’s relevant conduct involved a conservative esti-

mate of 1.57 kilograms of heroin, an extremely addictive

substance, and noted that Vaughn’s previous terms

of imprisonment had not deterred him from com-

mitting additional crimes. Although Vaughn had been

laid off from his job at a GM parts distributor in the fall

of 2008, the judge explained that his drug activity could

not be traced back to that event because Vaughn began

selling heroin while he was still employed. Given the

nature of the offense and Vaughn’s personal history and

characteristics, the judge determined that a custodial

sentence of twenty years would be reasonable and no

greater than necessary to satisfy the statutory purposes of

sentencing.

With respect to the court’s consideration of the § 3553(a)

factors, Vaughn essentially argues that the district court

gave insufficient weight to facts that may have coun-

seled in favor of a lower sentence, such as his desire to

act as a father to his step daughters and biological son.

This court has explained, however, that “it is perfectly

acceptable for courts to assign varying weights to the

factors as they deem appropriate in the context of each

case.” United States v. Busara, 551 F.3d 669, 674 (7th Cir.

2008). Because the district court adequately considered

the statutory sentencing factors and provided a compre-

Nos. 12-1835 & 12-1947 39

hensive explanation for the sentence imposed, it com-

mitted no procedural error. See United States v. Ashqar,

582 F.3d 819, 826-27 (7th Cir. 2009).

In addition to contesting the procedural aspects of

his sentencing, Vaughn argues that his sentence is sub-

stantively unreasonable in light of the lesser, seventy-two-

month sentence Lockhart received for his role in the

conspiracy. True, § 3553(a)(6) requires judges to consider

the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found

guilty of similar conduct. 18 U.S.C. § 3553(a)(6). But the fact

that the district court imposed a lesser sentence on

Vaughn’s co-defendant does not mean that Vaughn’s

sentence is therefore unreasonable. United States v. Hill,

683 F.3d 867, 871 (7th Cir. 2012). Vaughn’s criminal

history points put him in criminal history category V,

whereas Lockhart fell within category II. Moreover, Lock-

hart’s need for rehabilitation and deterrence was much

less pronounced than Vaughn’s. And although Vaughn

suggests that he played a lesser role in the conspiracy,

the court properly imposed a two-level enhancement

for his role as a leader, an enhancement that was not

applicable to Lockhart. These distinctions resulted in

considerably different guidelines ranges, and the sen-

tencing disparity between them was warranted. Accord-

ingly, we conclude that Vaughn has not overcome the

presumption of reasonableness attached to his within-

guidelines sentence.

40 Nos. 12-1835 & 12-1947

III. Conclusion

For these reasons, we A FFIRM Lockhart’s conviction,

A FFIRM Vaughn’s conviction, and A FFIRM Vaughn’s 240-

month sentence.

7-3-13