The opinion
In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1057
United States of America,
Plaintiff-Appellee,
v.
Asher Adkins,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:93-CR-27--William C. Lee, Chief Judge.
Argued November 28, 2000--Decided December 13, 2001
Before Fairchild, Diane P. Wood and Evans,
Circuit Judges.
Diane P. Wood, Circuit Judge. In 1993,
Asher Adkins was convicted of five counts
of distribution of methamphetamine, two
counts of conspiracy to distribute
methamphetamine, and two counts of using
or carrying a handgun during a drug
trafficking offense. He disappeared
before the last day of his trial and was
convicted in absentia. He remained a
fugitive until 1999, when he was caught,
returned to Indiana, and sentenced by the
trial court. Adkins now appeals various
aspects of his conviction and sentence.
I
In 1989, Adkins and Marvin Miller began
making regular trips to California to
purchase large quantities of
methamphetamine. According to the trial
testimony, Adkins, sometimes with Miller
and sometimes alone, made at least 10 and
perhaps as many as 40 trips between 1989
and 1993; on each trip, they brought back
between 1 and 1 pounds of
methamphetamine. Adkins sold the drugs
from these trips, in bulk, to Dan Tyner
and Scott Hummel, who then further
distributed the drugs. Several witnesses
testified that Adkins and Miller
regularly carried handguns on their trips
to California, and that Adkins and Miller
had told them they carried the guns to
protect themselves and the drugs because
the trips were "risky business." Hummel
also testified that on at least one
occasion, just after Adkins had given him
a pound of methamphetamine, Adkins pulled
a gun out from under his truck seat and
showed it to Hummel.
After the first delivery, Adkins and
Miller realized that they could increase
their profits by taking some of the
methamphetamine out of the packages they
sold to Hummel and Tyner and replacing it
with filler. Adkins and Miller sold the
drugs they removed to smaller-scale
dealers. Using drugs from this source and
possibly from other sources, Adkins began
a smaller-scale distribution business, in
which he distributed quantities of
between ounce and 4 ounces of
methamphetamine to at least three street-
level dealers on an almost daily basis.
Adkins used Lori Tuttle as a go-between
for many of these transactions: he
supplied her with a pager and told his
buyers that they should contact her if he
was not available. She actually made many
of the sales for him. Tuttle, who was
Adkins’s co-defendant at trial, also kept
a ledger detailing the sales she made to
the street dealers and the amount of
money the dealers owed Adkins.
Based on this evidence, the jury
convicted Adkins of two counts of
conspiracy to distribute methamphetamine
in violation of 21 U.S.C. sec. 846, five
counts of distribution of methamphetamine
in violation of 21 U.S.C. sec. 841(a)(1),
and two counts of using or carrying a
handgun during a drug trafficking offense
in violation of 18 U.S.C. sec. 924(c). As
noted above, Adkins disappeared before
the last day of trial, so the jury
convicted him in absentia. Nearly six
years later, after he was caught and
returned to Indiana, the district court
sentenced Adkins to concurrent 27-year
sentences on each of the seven drug
counts and consecutive sentences of 20
years and five years on the two gun
counts. In this appeal, Adkins raises
various challenges to the convictions on
the conspiracy and gun counts. He also
argues that he is entitled to a new trial
because his trial counsel was
ineffective. Finally, he argues that the
sentences the district court imposed on
the drug counts were unconstitutional in
light of the Supreme Court’s recent
holding in Apprendi v. New Jersey, 530
U.S. 466 (2000). Only the last of
Adkins’s contentions has merit.
II
Adkins raises two challenges to his
conspiracy convictions. First, he argues
that he was guilty of at most one
conspiracy, not two, and thus the
conspiracy charges were multiplicitous.
In the alternative, Adkins argues that
the evidence presented at trial was
insufficient to convict him of either
conspiracy the government alleged.
Because Adkins did not object to the
multiple conspiracy counts in the
district court, our review of his
contention that the counts were
multiplicitous is for plain error only.
United States v. Briscoe, 896 F.2d 1476,
1522 (7th Cir. 1990). In reviewing the
sufficiency of the evidence on each
conspiracy count, we take the evidence
presented at trial and all reasonable
inferences that can be drawn from it in
the light most favorable to the
government, and we will reverse the
convictions only if no reasonable jury
could have found each element of the
conspiracies beyond a reasonable doubt.
United States v. Swan, 250 F.3d 495, 500
(7th Cir. 2001).
Although Adkins denies that there was
sufficient evidence to convict him of a
conspiracy at all, he argues that if
there was a conspiracy, there was only
one large conspiracy, not the two
separate conspiracies charged in the
indictment. The critical question in
determining whether an indictment
charging two conspiracies is
multiplicitous "is whether a conspiracy
has been subdivided arbitrarily,
resulting in multiple [counts] for a
single illegal agreement." United States
v. Morrison, 946 F.2d 484, 493-94 (7th
Cir. 1991). In considering whether there
are two agreements or only a single,
arbitrarily divided agreement, we
consider "such factors as whether the
conspiracies involve the same time
period, alleged co-conspirators and
places, overt acts, and whether the two
conspiracies depend upon each other for
success." United States v. Powell, 894
F.2d 895, 898 (7th Cir. 1990). In
undertaking this analysis, we are mindful
of "the rock and the hard place between
which we place the government if we are
overly exacting in [our] analysis: on the
one hand, . . . the government may not
charge multiplicitous conspiracies; on
the other, we have not infrequently
discouraged the government from indicting
too many defendants under the skimpy
guise of a single overarching
conspiracy." Morrison, 946 F.2d at 494.
In arguing that there was only one
conspiracy in this case, Adkins points
out that both he and Miller were involved
in all the conduct charged by the
government, that only one type of drug
was involved in the case, that all the
drugs involved came from the same source,
and that the time frame the government
charged for the first conspiracy, July to
August of 1992, was completely within the
time frame of the second conspiracy,
which was from the summer of 1989 until
April 1993. Therefore, Adkins argues, the
majority of the factors discussed in
Powell weigh in favor of a finding that
there was at most a single conspiracy.
However, there was another way to look
at the case. As the government saw it,
Adkins, Miller, Tyner, and Hummel were
involved in one conspiracy to import
large quantities of meth from California.
That conspiracy lasted for several years,
and Adkins’s involvement was limited to
bringing the bulk drugs back and selling
them to Tyner and Hummel. Adkins
exercised no control over the drugs after
Tyner and Hummel took possession of them.
The second conspiracy was Adkins’s
smaller-scale operation in the summer of
1992. That conspiracy involved Adkins,
Tuttle, Miller, and Adkins’s other
street-level dealers. Adkins’s role in
that conspiracy was to supply the street-
level dealers with small quantities of
drugs. As evidence that the two
conspiracies were separate, the
government notes that Tuttle and the
street-level dealers, other than Miller,
had no knowledge of the large-quantity
conspiracy and did not know Tyner and
Hummel. Tyner and Hummel similarly were
not involved in the small-quantity
operation. Moreover, the small-quantity
operation began as a way to dispose of
the drugs that Adkins and Miller were
stealing from the large-quantity
conspiracy, and so the two operations
were not only separate, but had
conflicting interests.
This was enough, in our view, to permit
the government to charge separate
conspiracies. There was little
overlapbetween the conspirators in each
conspiracy. The large-quantity conspiracy
went on for much longer than the small-
quantity conspiracy did. The overt acts
that made up each conspiracy were
entirely distinct, and the conspiracies
were carried out in different places: the
large-quantity conspiracy involved trips
back and forth to California and
transactions in Hummel’s and Tyner’s
houses, while the small-quantity sales
were made in the parking lots of various
Indiana establishments. Finally, although
the conspiracies depended on each other
for success in the sense that Adkins was
the primary supplier of drugs for both
conspiracies, the conspiracies were not
economically interdependent, and Adkins
could have discontinued one and continued
the other at any time. For these reasons,
the government’s decision to treat the
two conspiracies separately cannot be
considered arbitrary, and the two
conspiracy counts were not
multiplicitous.
We therefore turn to Adkins’s contention
that the evidence of each conspiracy was
insufficient to sustain his convictions.
"A conspiracy conviction requires a
showing that a conspiracy existed (two or
more persons joined together for the
purpose of committing a criminal act) and
that the charged party knew of and
intended to join the agreement." United
States v. Cavender, 228 F.3d 792, 800
(7th Cir. 2000). A mere buyer-seller
relationship is not enough to sustain a
conspiracy conviction; rather, there must
be some evidence of jointly undertaken
activity. See, e.g., United States v.
Blankenship, 970 F.2d 283, 285-86 (7th
Cir. 1992). In the drug context, evidence
of "large quantities of drugs, prolonged
cooperation between the parties,
standardized dealings, and sales on a
credit" can be sufficient to show that a
conspiracy existed, United States v.
Berry, 133 F.3d 1020, 1023 (7th Cir.
1998), as can evidence that one of the
alleged conspirators bought or sold drugs
as an agent of another conspirator,
rather than as an independent market
participant, United States v. Garcia, 89
F.3d 362, 365 (7th Cir. 1996).
There was ample evidence on which the
jury could have relied in convicting
Adkins of both conspiracies. As to the
large-quantity conspiracy, there was
evidence that Miller and Adkins traveled
together to and from California to
purchase drugs for the conspiracy on
numerous occasions. The fact that the
drugs Adkins supplied to Hummel and Tyner
were in such large quantities and were
often sold partially on credit suggested
that Adkins not only knew that Hummel and
Tyner would resell the drugs, but also
depended on the resales in order to get
paid. The participants in the conspiracy
cooperated with each other over a period
of several years, and their dealings were
standardized: Miller and Adkins made
regular trips to California and brought
Hummel and Tyner 1 to 1 pounds of meth
each time. Additionally, there was
evidence that Adkins and Miller set
Hummel and Tyner up in the
methamphetamine business: Adkins was the
one who first approached Tyner and asked
him if he wanted to start selling meth,
and Miller taught Hummel and Tyner how to
"cut" the meth to prepare it for resale.
This evidence was more than sufficient to
sustain the conviction for the large-
quantity conspiracy.
As to the small-quantity conspiracy,
there was substantial evidence that
Adkins used Tuttle as his agent or go-
between to pass drugs to the street-level
dealers. Adkins set Tuttle up with a
pager and instructed his buyers to
contact Tuttle when Adkins was
unavailable. Tuttle made many of the
sales for Adkins and kept a ledger of
accounts for him; Adkins apparently paid
Tuttle a commission of $100 per ounce she
sold. Although it is possible that Adkins
had a mere buyer-seller relationship with
the street-level dealers, viewing the
evidence in the light most favorable to
the government, it is clear that Adkins
and Tuttle, at the least, were involved
in a conspiracy rather than a mere-buyer-
seller arrangement. Therefore, Adkins’s
challenge to his conspiracy convictions
fails.
III
The next argument Adkins raises relates
to his convictions for using or carrying
a handgun during the commission of a drug
trafficking offense. Those convictions,
he urges, must be reversed in light of
the Supreme Court’s decision in Bailey v.
United States, 516 U.S. 137 (1995). The
statute under which Adkins was convicted,
18 U.S.C. sec. 924(c), penalizes
defendants who "use" or "carry" a firearm
during the commission of a drug
trafficking offense. The term "use,"
Bailey established authoritatively, means
active use, not passive availability.
This circuit, and hence the district
courts in this circuit, did not interpret
the statute that way at the time of
Adkins’s trial, and thus the instruction
given in his case was wrong. The question
now is whether that amounts to a ground
for reversing Adkins’s convictions on the
two gun charges, Counts 3 and 4.
We have been over this ground many times
before. Suffice it to say that a
conviction under sec. 924(c) can be
upheld on plain error review (which
applies to Adkins, as he did not object
to the instruction at trial) even if the
instructions on "use" were incorrect in
light of Bailey, if the record makes it
plain that the defendant also "carried"
the weapon during and in relation to the
commission of the drug offense. The Court
has adopted a relatively broad definition
of the term "carry," holding that a
defendant is guilty of "carrying" a
firearm during a drug transaction if he
carried the firearm either on his person
or in a vehicle which he accompanies,
including carrying the gun in the glove
compartment or in a locked trunk.
Muscarello v. United States, 524 U.S.
125, 126-27 (1998).
We agree with the government that all
the evidence on which the jury could have
based the sec. 924(c) convictions
demonstrates that Adkins "carried" a
firearm during a drug offense under the
Muscarello definition. The first of the
sec. 924(c) counts charged that Adkins
used or carried a handgun in connection
with a drug trafficking conspiracy
between 1989 and 1993. In its
instructions to the jury, the district
court was clear that this charge related
to the large-scale conspiracy and that
the jury could convict on this count only
if it found that the conspiracy existed
and that either Adkins or Miller used or
carried a handgun in furtherance of the
conspiracy. The government introduced
testimony from several witnesses who
stated that Adkins and Miller regularly
carried handguns on their trips to
California with the drug money and from
California with the drugs. One witness
testified that she had seen Adkins
wearing a gun holster as he was leaving a
hotel in California to exchange money for
drugs, and other witnesses testified that
Adkins told them he carried a gun on the
trips to protect himself, the money, and
the drugs, because the enterprise was
"risky business." Therefore, there was
abundant evidence that Adkins "carried" a
handgun on the California trips as that
term was defined in Muscarello.
On the other hand, Adkins argues that
some evidence introduced at trial
established mere possession of a firearm,
which is not sufficient to sustain his
conviction after Bailey. It is true that
the government offered evidence that
Adkins received a firearm permit in 1991
and that a 1993 search of Adkins’s home
turned up a substantial amount of ammuni
tion. However, this evidence was, at
most, circumstantial evidence that Adkins
possessed a firearm at some point around
the same time as the drug conspiracy.
Even under the pre-Bailey definition of
"use," which allowed a conviction upon
proof that the defendant possessed or had
control of a firearm during the
commission of a drug offense, this
evidence would not have been sufficient
to convict Adkins. The district court’s
instruction recognized this limitation on
the concept of use by requiring the jury
to find that the firearm was in the
defendant’s possession or control "at the
time the drug trafficking crime was
committed." We assume that the jury
correctly followed this instruction.
United States v. Wilson, 237 F.3d 827,
835 (7th Cir. 2001). Therefore, the jury
could not have based Adkins’s conviction
solely on evidence that he had a gun
permit and that he possessed ammunition
when his house was searched in 1993.
The only other evidence that Adkins
argues might have led the jury to convict
him based on mere possession of a firearm
is Hummel’s testimony that on one
occasion when he went to Adkins’s house
to purchase drugs, he saw several long-
barreled guns standing in a corner of the
house. But the jury could not properly
have based its conviction on this
testimony either. The indictment on this
count charged Adkins with using or
carrying a "handgun" in connection with
the conspiracy, not with using or
carrying any other type of gun. The
indictment was incorporated into the jury
instructions and the jury was given a
copy of it, and again, we assume that the
jury correctly followed its instructions
and based its conviction on evidence that
Adkins used or carried a handgun, not
some other type of weapon. Because all of
the evidence on which the jury could have
based its conviction on this count
qualifies as evidence that Adkins
"carried" a handgun as that term was
defined in Muscarello, we affirm the
conviction on this count.
The conviction on the second sec. 924(c)
count also withstands Adkins’s challenge.
That count charged Adkins with using or
carrying a firearm in connection with a
sale of methamphetamine to Hummel in
February 1992. Hummel testified that on
one occasion in February 1992, he met
Adkins in a parking lot and got into
Adkins’s truck. Adkins gave Hummel a
pound of methamphetamine. Shortly
thereafter, Adkins pulled a .38-caliber
handgun out from under the front seat of
the truck and showed it to Hummel. After
a few minutes, Adkins replaced the gun.
This was the only testimony that related
to Adkins’s February 1992 sale of drugs
to Hummel, and it established that Adkins
carried a handgun during the sale within
the Muscarello definition. A properly
charged jury would certainly have
convicted Adkins on both of the gun
counts, so the error in the jury charges
did not affect Adkins’s substantial
rights or call into question the fairness
or integrity of the proceedings against
him.
IV
Adkins next contends that his trial
counsel, who represented both Adkins and
Tuttle at their joint trial, was rendered
ineffective by a conflict of interest
between his two clients. In particular,
Adkins argues that the joint
representation prevented him from
testifying in his own defense. We find,
however, that Adkins affirmatively waived
his right to conflict-free counsel during
an extensive colloquy with the district
court.
The Sixth Amendment entitles a criminal
defendant to representation by conflict-
free counsel. Cuyler v. Sullivan, 446
U.S. 335, 345 (1980). Nevertheless, a
defendant may waive his right to
conflict-free counsel, and, having made a
knowing and intelligent waiver, may not
later attack his conviction based on an
asserted conflict. United States v.
Lowry, 971 F.2d 55, 60 (7th Cir. 1992). A
waiver is "knowing and intelligent" if it
is "made with sufficient awareness of the
relevant circumstances and likely
consequences." Id. The key question is
whether the defendant knew enough to
"make the choice an informed one--a
rational reconciliation of risks and
gains that are in the main understood."
Id. at 61.
Here, the trial court engaged in an
extensive colloquy with Adkins at his
arraignment about his decision to waive
his right to conflict-free counsel.
During the colloquy, which takes up nine
transcript pages, the court explained the
right to conflict-free counsel to Adkins
in detail and warned him that the court
could not necessarily anticipate every
possible conflict that could arise. The
court then went into a detailed list of
possible conflicts and asked Adkins if he
waived each one. In particular, the court
asked Adkins: "Dual representation may
adversely affect the decision whether you
or your co-defendant or both should
testify. Do you understand that?" To
which Adkins replied: "Yes, sir." After
the extensive colloquy, the trial court
had Adkins sign a written waiver form.
The defense contends that, despite all
of this, Adkins’s waiver was not "knowing
and intelligent," because the trial court
did not ask Adkins’s lawyer about
potential conflicts before he permitted
Adkins to waive his right to separate
counsel. On this point, although the
court did not ask Adkins’s lawyer any
questions on the record, the court did
ask Adkins whether his lawyer had
discussed the possibility of conflict
with Adkins, and Adkins replied that he
had. Although the trial court certainly
could have questioned the lawyer as well
as Adkins, we have never suggested that
the court was required to do so. We do
not "require a judge to follow a script
in eliciting waivers of this sort."
United States v. Roth, 860 F.2d 1383,
1387 (7th Cir. 1988). The trial judge’s
extensive colloquy with Adkins was more
than sufficient to ensure that Adkins
made a "rational reconciliation of risks
and gains that [were] in the main
understood." Id.
V
Finally, Adkins argues that the
sentences the district court imposed on
his drug convictions were
unconstitutional in light of the Supreme
Court’s recent decision in Apprendi v.
New Jersey, 530 U.S. 466 (2000).
Apprendi, as readers of the Federal
Reporter know only too well by this time,
held that factual findings (other than a
prior conviction) that raise a
defendant’s sentence above the statutory
maximum for the crime of conviction "must
be charged in an indictment, submitted to
a jury, and proven beyond a reasonable
doubt." 530 U.S. at 476; Jones v. United
States, 526 U.S. 227, 243 n.6 (1999). For
the drug crimes described in 21 U.S.C.
sec.sec. 841 and 846, before a defendant
can be sentenced to a term of
imprisonment above the default statutory
maximum provided in sec. 841(b)(1)(C) or
(D), Apprendi requires that a drug type
and amount sufficient to trigger the
higher statutory maximums of sec.
841(b)(1)(A) or (B) should be specified
in the indictment and must be found by
the trier of fact using the reasonable
doubt standard. See, e.g., United States
v. Bjorkman, 270 F.3d 482, 492 (7th Cir.
2001); United States v. Nance, 236 F.3d
820 (7th Cir. 2000).
Adkins’s Apprendi claim requires close
attention, because his sentence of 27
years on each drug count exceeds the
default statutory maximum sentence of 20
years contained in 21 U.S.C. sec.
841(b)(1)(C). Before his sentence could
fall between 20 and 40 years under the
statute that was in force at the time of
his offense, he had to be convicted of
distributing or conspiring to distribute
at least "10 grams or more of
methamphetamine . . . or 100 grams or
more of a mixture or substance containing
a detectable amount of methamphetamine .
. . ." 21 U.S.C. sec. 841(b)(1)(B)(viii)
(1993). (Under the current version of
sec. 841(b)(1)(B)(viii), 5 grams of
methamphetamine or 50 grams of a mixture
containing a detectable amount of the
drug is sufficient to trigger a statutory
maximum sentence of 40 years.) Count 2 of
the indictment, which was for the large-
scale conspiracy, specified that over 1
kilogram of a mixture containing a
detectable amount of methamphetamine was
involved, while Counts 5 and 8 (two of
the distribution counts) specified that
over 100 grams of a mixture containing a
detectable amount of methamphetamine was
distributed. With respect to these
counts, the indictment was thus
sufficient under Apprendi. It did not
specify any particular amount of drugs
involved in either the small-scale
conspiracy (Count 1) or the other three
distribution counts (Counts 6, 7, and 9).
Each of these said only that a "mixture"
was involved. Furthermore, the district
court instructed the jury (in accordance
with the now-superseded practice that
prevailed at the time) that it could find
Adkins guilty on each drug count if it
found that he distributed or conspired to
distribute a detectable amount of
methamphetamine; the jury was not
required to find any particular amount
beyond a reasonable doubt. In light of
Apprendi, as the government concedes,
this was inadequate to allow the district
court to impose sentences exceeding 20
years.
Nonetheless, these errors do not
necessarily entitle Adkins to any relief.
While a few circuits have found that the
failure to charge drug quantity in the
indictment deprives the district court of
jurisdiction and requires automatic
reversal, see United States v. Cotton,
261 F.3d 397, 407 (4th Cir. 2001); United
States v. Gonzalez, 259 F.3d 355, 361
(5th Cir. 2001), it is now well
established in this circuit that Apprendi
errors in both the indictment and the
charge to the jury are subject to
harmless error analysis. See Bjorkman,
270 F.3d at 492; United States v.
Martinez, 258 F.3d 582, 586 (7th Cir.
2001); Nance, 236 F.3d at 825. Adkins did
not raise this issue at his sentencing
hearing in January 2000, despite the fact
that Apprendi was clearly on the horizon
by that time, see Nance, 236 F.3d at 823-
24, and so, as in Bjorkman, Martinez, and
Nance, our review of his challenge is for
plain error only. Under that standard of
review, even though it is now clear in
light of Apprendi that the district court
erred, that the error is plain, and that
the error, which added seven years to
Adkins’s sentences, affected a
substantial right, we will reverse the
sentences only if the error also
"seriously affect[ed] the fairness,
integrity, or public reputation of
judicial proceedings." Johnson v. United
States, 520 U.S. 461, 467 (1997). If it
is clear beyond a reasonable doubt that a
properly-instructed jury would have found
Adkins guilty of distributing or
conspiring to distribute over 100 grams
of a methamphetamine mixture on each
count, then we cannot say that the
Apprendi error was so serious that it
requires us to set aside the judgment.
See Bjorkman, 270 F.3d at 492; Nance, 236
F.3d at 826.
We have no hesitation in finding that it
is clear beyond a reasonable doubt that a
properly-instructed jury would have found
that the conspiracies Adkins was involved
in each involved well over 100 grams
(about 3.5 ounces) of a mixture
containing detectable amounts of
methamphetamine. The first conspiracy
involved sales in quantities of 1 to 1
pounds at a time (i.e. from about 454
grams to about 680 grams). Even if the
jury believed the witness who testified
to the least number of trips to
California, there were at least ten
trips. Therefore, that conspiracy
involved at a minimum 10 pounds, or 4.5
kilograms, of methamphetamine. The second
conspiracy involved almost daily sales of
between and 4 ounces (i.e. about 14
grams to 114 grams) at a time. The ledger
that Tuttle kept, which was before the
jury, recorded 17 separate transactions
involving a total of 28.5 ounces; two of
the transactions recorded involved 4
ounces each, which would in themselves
have been more than the amount needed to
meet the sec. 841(b)(1)(B)(viii)
threshold. There was also testimony of
many additional sales that were not in
the ledger. Based on this evidence, it is
clear that the Apprendi errors on the
conspiracy counts did not seriously
affect the fairness or integrity of the
proceedings against Adkins.
The sentences on Counts 5 and 8, which
are the two that charged distribution of
more than 100 grams of a mixture
containing detectable amounts of
methamphetamine, also survive plain error
review. Although the trial judge
instructed the jury that the government
did not have to prove the amounts in the
indictment, the reference to the amount
would have indicated to the jury that
these counts involved the large-quantity
deals, not the small-quantity deals. The
evidence on these counts to which the
government pointed in its closing
argument also involved large-quantity
transactions, and all the testimony at
trial indicated that these transactions
involved 1 to 1 pounds of
methamphetamine per trip. Count 5
referred to a transaction in 1989, at a
time when Adkins was running only the
large-quantity deals, and Count 8
referred to a specific 1 -pound
transaction in September 1992 to which
Hummel testified in detail. The only
testimony relating to these transactions
established that Adkins and Miller went
to California and returned with bulk-
distribution quantities of
methamphetamine. It is impossible to
think that the jury could have believed
Miller and the other witnesses’ testimony
about the nature and purpose of these
trips without believing that each trip
involved well over 100 grams (again, only
about 3.5 ounces) of methamphetamine.
The other three distribution counts (6,
7, and 9), in contrast, are more
troublesome. The indictment on these
counts does not specify any particular
amount, and the evidence to which the
government pointed on each count involved
transactions that were part of the small-
quantity conspiracy. The sales that
Adkins and Tuttle made in furtherance of
the small-quantity conspiracy ranged from
ounce to 4 ounces of methamphetamine at
a time. Taking the smaller amount to be
cautious, this is about 14 grams, well
below the 100-gram threshold. We note as
well that even though Count 9 specifies a
transaction on or about August 6, and
Tuttle’s ledger shows a 4-ounce sale on
that date, that evidence in itself does
not necessarily show that the jury based
its conviction on that alleged sale,
rather than on one of the many smaller
transactions that occurred around that
date. The other two counts just point to
distributions in November 1992, and the
trial evidence was that Adkins made
numerous sales that month, most of
relatively small amounts.
Because we cannot be certain that a
properly-instructed jury would have found
beyond a reasonable doubt that Adkins
distributed at least 100 grams of
methamphetamine mixture in connection
with these counts, we must vacate his
sentences on Counts 6, 7, and 9. Our
practice under the circumstances is to
remand these counts to the district
court, which must adjust Adkins’s
sentence to a term no greater than the
statutory maximum. See United States v.
Noble, 246 F.3d 946, 956 (7th Cir. 2001);
United States v. Westmoreland, 240 F.3d
618, 635 (7th Cir. 2001). See also
U.S.S.G. sec. 5G1.1(a) ("Where the
statutorily authorized maximum sentence
is less than the minimum of the
applicable guideline range, the
statutorily authorized maximum sentence
shall be the guideline sentence.").
The conviction on all counts is Affirmed.
Adkins’s sentences on Counts 1, 2, 3, 4,
5, and 8 are Affirmed, and his sentences
on Counts 6, 7, and 9 are Vacated and
Remanded to the district court with
instructions to enter sentences no
greater than 20 years on these counts.