United States v. Kenneth Block

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240,

11-1509, 11-1680, 11-2630

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

K ENNETH L. B LOCK, et al.,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Western Division.

No. 09 cr 50041—Frederick J. Kapala, Judge.

A RGUED F EBRUARY 16, 2012—D ECIDED F EBRUARY 1, 2013

Before P OSNER, R IPPLE, and W ILLIAMS, Circuit Judges.

W ILLIAMS, Circuit Judge. This consolidated criminal

appeal involves eight defendants who participated in a

large heroin distribution conspiracy that operated out

of Rockford, Illinois. Each pled guilty to one count of

conspiracy to possess with intent to distribute more

than one kilogram of heroin and more than fifty grams

of cocaine base. The principal argument on appeal is that

2 Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240,

11-1509, 11-1680, 11-2630

the district court failed to make a conservative drug

quantity calculation for sentencing purposes. But for the

reasons explained further below, we find the district

court did not err and carefully examined the evidence

from a variety of sources before determining that the

conspiracy distributed 700 grams of heroin per week.

Defendants Nathaniel Clay and Robert Cobb mount

other separate objections to their sentences. Clay essen-

tially argues that the district court failed to consider the

sentencing disparities between drug runners, like him-

self, who were prosecuted in federal court and those

prosecuted in state court. Cobb claims that the district

court failed to address each of the factors under 18

U.S.C. § 3553(a) at his sentencing. Neither of these argu-

ments have any merit and so we affirm their sentences.

Defendant Samuel Peeples’s sentence, however, is more

troubling. He received a two-level enhancement under

§ 2D1.1(b)(1) for the possession of firearms by his co-

conspirators. Though we have said before that drugs

and firearms often go hand in hand, the enhancement

Peeples received for his co-conspirators’ firearm posses-

sion is not supported by the record. Therefore, we

vacate his sentence and remand for resentencing.

I. BACKGROUND

In the summer of 2007, Hollis Daniels and others began

operating a drug trafficking organization (hereinafter

“DTO”) in Rockford, Illinois that sold primarily heroin

and some crack cocaine. Daniels, the DTO’s leader, was

Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240, 3

11-1509, 11-1680, 11-2630

incarcerated at various times throughout 2008, but that

did not hurt his drug sales. He set up a drug telephone

hotline for customers to call and place their orders

from 8:00 a.m. to 11:00 p.m. daily. To meet this level of

demand, the DTO employed a group of so-called “care-

takers.” The caretakers included defendants Kenneth

Block, Kenneth Townsend, Robert Cobb, and John Knox.

They were responsible for running the daily operations

of the DTO, including purchasing raw heroin from sup-

pliers in Chicago and Rockford, “stretching” the heroin

by diluting it with an over-the-counter sleep aid, and

recruiting and managing the drug runners (i.e., street-

level distributors). After the raw heroin was diluted

according to Daniels’s special formula, the run-

ners—including defendants Nathaniel Clay and Samuel

Smith—were supplied with a packet known as a “jab,”

containing 25 smaller baggies for resale. Each individual

baggie contained approximately .10 grams of heroin and

was sold to customers for $10. After collecting $250 for

selling the entire jab, the runner was supposed to keep

$50 and give the remaining $200 to the organization.

Sometime in September or October 2008, Samuel Peeples

approached Daniels and asked for a job. Peeples started

out as a driver for several of the caretakers for a couple

of weeks, but quit after police arrested Clay while he

was getting into Peeples’s car. Peeples returned to

Chicago, but he did not stay away from the DTO for

long. In December 2008, Peeples returned to Rockford

and resumed working for Daniels as the head of the

runners until his arrest in March 2009. The DTO con-

4 Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240,

11-1509, 11-1680, 11-2630

tinued to operate until Daniels was finally arrested

in September 2009.

A federal grand jury indicted fifteen individuals in-

volved in the DTO on charges of conspiring with each

other to possess with intent to distribute heroin and

crack cocaine. The eight here on appeal each pled guilty.

Daniels’s sentencing hearing occurred first and set the

stage for the other defendants’ later hearings.

Representing himself pro se, with only the aid of

standby counsel, Daniels contested the PSR’s drug

quantity calculation and the two-level enhancement

under U.S.S.G. § 2D1.1(b)(1) for possession of a firearm

in connection with a drug offense. The district court

heard testimony from various witnesses, including ATF

Special Agent Daniel Ivancich, who interviewed Daniels

after his arrest on September 9, 2009. Ivancich explained

that Daniels told agents that the DTO had been “going

through a hundred grams of raw heroin a week” and

stretching it out to sell 700 grams of heroin mix per

week for the past year (i.e., since 2008). Daniels testified

on his own behalf and admitted that he may have told

agents that he could stretch the 100 grams of raw heroin

by diluting it seven times to produce 700 grams of

heroin mix, yet denied having told them that he had

been doing this “for the past year.” But the district court

heard other evidence that corroborated Agent Ivancich’s

testimony, and concluded that the DTO distributed

700 grams of heroin per week, or 72.8 kilograms of

heroin over the course of the two-year conspiracy. The

Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240, 5

11-1509, 11-1680, 11-2630

court also found that Daniels possessed a firearm as part

of the conspiracy after hearing additional testimony

from Agent Ivancich and others, and ultimately sen-

tenced him to 520 months’ imprisonment.

Each of the other remaining defendants were repre-

sented by counsel at their respective sentencing hearings

and argued that the DTO distributed a much smaller

quantity of drugs. But the district court rejected these

arguments, crediting Agent Ivancich’s testimony about

Daniels’s drug quantity admission as the best evidence

before the court. The court also applied the two-level

sentencing enhancement for possession of a firearm

to defendants Block, Townsend, Knox, Clay, and Peeples

after finding that the possession of firearms by other

members of the conspiracy was reasonably foreseeable

and done in furtherance of the conspiracy. Each of the

defendants filed timely appeals, which we consolidated.

II. ANALYSIS

We review a district court’s applications of the Sen-

tencing Guidelines de novo and its findings of fact under-

lying the application of the Guidelines for clear error.

United States v. Johnson, 227 F.3d 807, 812 (7th Cir. 2000).

The majority of the defendants only challenge the

district court’s finding that the conspiracy sold 700

6 Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240,

11-1509, 11-1680, 11-2630

grams of heroin per week.1 So we begin with the joint

issue regarding drug quantity, and then move on to the

separate arguments made by Clay, Cobb, and Peeples.

A. Drug Quantity Calculation Did Not Constitute

Clear Error

A district court’s calculation of the quantity of drugs

attributable to a defendant is a finding of fact reviewed

for clear error. United States v. Morales, 655 F.3d 608, 635

(7th Cir. 2011). Such findings of fact are given great

deference and overturned only if we are “left with the

definite and firm conviction that a mistake has been

committed.” Johnson, 227 F.3d at 813 (citation omitted).

District courts are entitled to estimate drug quantity

from testimony about the amount of drugs dealt over

a specified period of time, but ultimately it is the weight

of the consumable mixture (or substance containing

the illegal drug), rather than the weight of the illegal

drug itself that counts for sentencing purposes. U.S.S.G.

§ 2D1.1, Application Note 1 (2009); United States v.

1

We note at the outset that Knox’s and Peeples’s appeals on

this ground must be dismissed as waived. They both pled

guilty and agreed in their plea agreements not to challenge

the government’s drug quantity determination. See United

States v. Staples, 202 F.3d 992, 995 (7th Cir. 2000). The govern-

ment contends that Smith has also waived any appeal of

this issue, but we disagree because his plea agreement

reserved the right to challenge the drug quantity amount.

Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240, 7

11-1509, 11-1680, 11-2630

Stewart, 361 F.3d 373, 377 (7th Cir. 2004). We will not

find clear error in a case “where two permissible views

of the evidence exist.” United States v. Marty, 450 F.3d

687, 690 (7th Cir. 2006). This is one of those cases.

To establish the quantity of drugs attributable to the

DTO’s members, the government relied on three main

pieces of evidence at the sentencing hearings. First, Agent

Ivancich explained that Daniels told agents that the

DTO used “a hundred grams of raw heroin” and mixed

“seven additional times” with sleeping pills and other

products to ultimately sell 700 grams of diluted heroin

per week. Daniels maintained that he never admitted

to selling this quantity of drugs since 2008, but also sug-

gested that the court should discount his previous state-

ment to the agents because he “had no intentions on

cooperating with them” and was simply telling them

what they wanted to hear. The district court did not

misunderstand Daniels’s testimony as the defendants

suggest; it simply did not believe him and for good

reason. If anything, it seems more likely that Daniels

would have sought to minimize his conduct—not deliber-

ately inflate the quantity of drugs being purchased and

resold every year—in an effort to be released from

custody as soon as possible. See United States v. Contreras,

249 F.3d. 595, 602 (7th Cir. 2001) (finding “[n]o one

was more qualified than [the defendant] himself to put

a number on the amounts of cocaine he was purchasing

and re-selling, and [the agent] was simply recounting

what [the defendant] told him in this regard”); United

States v. Corral, 324 F.3d 866, 871-72 (7th Cir. 2003) (col-

8 Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240,

11-1509, 11-1680, 11-2630

lecting cases). In any event, the district court had to

make a credibility determination and we are not in a

position to second-guess such a determination on ap-

peal. Johnson, 227 F.3d at 813; United States v. Etchin,

614 F.3d 726, 738 (7th Cir. 2010) (noting that when a

sentencing challenge is based on a credibility determina-

tion, our review is “especially deferential to the district

judge’s assessment of the testimony”).

But there is more. Tashayla Paige, Daniels’s girlfriend,

stated in a proffer that DTO members purchased between

50 and 100 grams of raw heroin twice per week. And the

government also offered grand jury testimony from a

caretaker named Jamel Gregory, who stated that he made

trips to Chicago twice a week to obtain 200 grams of raw

heroin. This additional evidence suggests that the DTO

may have obtained as much as 200 to 400 grams of

raw heroin per week to cut and dilute—making the 100

gram estimate the district court attributed to the defen-

dants appear conservative.

Nevertheless, the defendants contend that the district

court failed to make a cautious estimate of drug quantity

because defendant Clay proposed at sentencing that the

DTO did not sell anywhere close to 700 grams of heroin

mix per week, but rather sold approximately 250 grams.

But the district court noted that Clay’s suggested calcula-

tion began with the flawed premise that there were

only three runners working for the conspiracy at one

time, whereas Agent Ivancich credibly testified that

there were often between four and six. Moreover, Clay’s

Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240, 9

11-1509, 11-1680, 11-2630

estimate was derived in part from other co-conspirators

whose statements sometimes conflicted and all of

whom had much more limited roles in the conspiracy

than Daniels. In reality, the trial court tried its best to

evaluate a mountain of conflicting evidence from several

different sources. As we have often observed, drug quan-

tity calculations are an art, not a science.2 See United

States v. Jarrett, 133 F.3d 519, 530 (7th Cir. 1998) (noting

that we afford trial courts “some room for speculation

and reasonable estimation” so long as “percentages and

quantities were not pulled out of thin air” (citation omit-

ted)). And even if we were to consider the defen-

dants’ view of the evidence as a “reasonable alternative”

in this case, an alternative view of evidence does not

constitute clear error. See Marty, 450 F.3d at 690; Anderson

2

The defendants argue that the court’s drug quantity determi-

nation would have given the DTO an extraordinary amount

of revenue. If the conspiracy sold 700 grams per week, it would

have grossed $70,000 per week in revenue ([700 grams÷2.5 grams

per jab]×25 baggies per jab×$10 sale per baggie). Defendants

contend that the very idea of a DTO of this size and scope

earning to the tune of over $7 million in just over two years

is “economically implausible.” Maybe. But these sums do not

include the DTO’s business expenses and some of its profits

could have easily been secreted away. See United States v.

Hernandez, 544 F.3d 743, 750 (7th Cir. 2008) (“We have long

recognized that the drug quantity calculation is necessarily

imprecise because ‘drug dealers ordinarily do not use

invoices and bills of lading.’ ” (quoting United States v.

Rodriguez, 67 F.3d 1312, 1325 (7th Cir. 1995)).

10 Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240,

11-1509, 11-1680, 11-2630

v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985). The

defendants further argue that once the district court

determined at Daniels’s sentencing that the organization

distributed 700 grams of heroin per week, it erred by

attributing that amount to each of the other members of

the conspiracy. We disagree.

The confusion appears to have started at Block’s sen-

tencing when the parties attempted to lower Block’s base

offense level by stipulation. In response, the district court

referred to the drug quantity established at Daniels’s

hearing and stated: “It is my understanding that we’re

talking about the same conspiracy and that I cannot [under

United States v. Taylor, 600 F.3d 863 (7th Cir. 2010)]

change amounts from one defendant to another. . . . The

stipulation asks me to ignore facts and engage in a

fiction [regarding drug quantity], and I can’t do that.” The

district court was not bound by the parties’ attempt to

lower the base offense level for Block in his plea agree-

ment. See United States v. Barnes, 602 F.3d 790, 796 (7th Cir.

2010); U.S.S.G. § 6B1.4(d). The commentary to U.S.S.G.

§ 6B1.4(d) makes clear:

[T]he court is not obliged to accept the stipulation

of the parties. Even though stipulations are expected

to be accurate and complete, the court cannot rely

exclusively upon stipulations in ascertaining the

factors relevant to the determination of sentence.

Rather, in determining the factual basis for the

sentence, the court will consider the stipulation,

together with the results of the presentence investi-

gation, and any other relevant information.

Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240, 11

11-1509, 11-1680, 11-2630

Indeed, Block does not argue on appeal that the par-

ties’ offense level stipulation in the plea agreement

was binding.

The district court’s statement could suggest that the

judge thought Taylor bars any reconsideration of drug

quantities for defendants subsequently charged in a

conspiracy. We do not read Taylor quite so broadly. In

Taylor, the district court sentenced four co-defendants

who pled guilty on the basis of a five to fifteen

kilogram drug quantity stipulated in their plea agree-

ments. But when two other co-defendants proceeded to

trial and were convicted, the trial court found that they

should be sentenced according to a forty kilogram drug

quantity. 600 F.3d 863. The problem in that case was the

district court’s failure to explain the discrepancy in the

amount of drugs attributable to the various defendants

given an identical factual record. We never held that trial

courts cannot consider new evidence in sentencing a

defendant after making an earlier drug quantity determi-

nation for his co-conspirator. See Barnes, 602 F.3d at 796-97

(explaining that district courts have “the authority to

disregard the factual stipulations in the plea agreements

for cooperating defendants if [they feel] that they were not

supported by the evidence”).

This is not a situation where the defendants who

were sentenced after Daniels claimed to have had only

a minor role in the conspiracy. Instead, they contend

that the district court incorrectly calculated the amount

of heroin attributed to the entire conspiracy. But the

12 Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240,

11-1509, 11-1680, 11-2630

court listened at great length to all of the additional

evidence each defendant presented to contest the

quantity of heroin sold by the conspiracy. For instance,

Clay argued that several lab reports from the seizures of

heroin sold by the DTO showed a wide range in drug

purity, which suggested that the DTO did not con-

sistently dilute all of its heroin by “cutting it” seven

times. But the district court did not disregard this

evidence without justification. It simply found it unper-

suasive given other conflicting testimony and declined

to depart from the previously determined drug quantity

amount. Applying its drug quantity calculation consis-

tently among the various defendants was therefore

not clearly erroneous.

B. No Error in Refusing to Consider Sentencing

Disparities with State Court Defendants

Defendant Clay argues that the district court failed to

consider the sentencing disparities between himself and

other runners who were prosecuted in state court. Ac-

cording to Clay, the runners sentenced in state court

only received sentences between five and seven years,

whereas he was sentenced to 320 months’ imprisonment.

The record shows that the district court addressed

Clay’s claim of unwarranted sentencing disparities and

rightly rejected it. None of the state court defendants

were convicted of conspiracy, and the state court

appears to have had limited evidence at its disposal in

arriving at the runners’ sentences. But more im-

Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240, 13

11-1509, 11-1680, 11-2630

portantly, the government is correct that federal

courts need not consider disparities with state court

sentences. We explained in United States v. Schulte that

“[t]he Guidelines have no effect on a state legislature’s

freedom to impose criminal punishments that differ

from the federal government’s sanctions for the same

conduct. . . . A disparity is not ‘unjustified’ simply because

the federal and relevant state governments impose dif-

ferent punishments on similar conduct.” 144 F.3d

1107, 1110-11 (7th Cir. 1998). So this argument fails too.

C. Cobb’s Request for Downward Variance Was

Adequately Addressed

The next matter is Cobb’s claim that the district court

failed to adequately address each of the sentencing

factors under 18 U.S.C. § 3553(a). He maintains that

the district court specifically failed to consider his

personal history and cooperation with law enforcement.

This argument does not warrant much discussion.

The district court sentenced Cobb to 245 months’ impris-

onment, toward the low end of the applicable Guide-

line range. A sentence within a properly calculated

Guideline range is, for purposes of appellate review,

presumptively reasonable. United States v. Robinson, 435

F.3d 699, 701 (7th Cir. 2006). The district court must give

meaningful consideration to the sentencing factors set

out in § 3553(a) and explain its sentencing decision, but

a district court must only “say enough to allow

meaningful appellate review.” United States v. Lua-

14 Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240,

11-1509, 11-1680, 11-2630

Guizar, 656 F.3d 563, 566 (7th Cir. 2011). In other words,

the court “need not mention every single factor, so long

as we have confidence that the sentencing process was

fair.” Id. (citation omitted). The record here demon-

strates that the district court more than satisfied this

task. The court carefully analyzed Cobb’s arguments for

a reduced sentence over six transcript pages before ex-

plicitly stating that it had considered each of Cobb’s

arguments and still declined to reduce his sentence. Cobb

may have found this exchange with the court unsatisfac-

tory, but the district court committed no error. See

United States v. Garcia-Oliveros, 639 F.3d 380, 381 (7th

Cir. 2011) (“[A] sentencing court is not required to

explain its view on every argument in mitigation or

aggravation.” (citing United States v. Miranda, 505 F.3d

785, 792 (7th Cir. 2007); United States v. Acosta, 474 F.3d

999, 1003 (7th Cir. 2007))).

D. Calculation of Peeples’s Firearms Enhancement

Was Flawed

The last matter to settle is defendant Peeples’s chal-

lenge to his sentence. As explained above, Peeples was

involved in the DTO for approximately fourteen weeks

out of the twenty-seven month conspiracy. On appeal, he

objects to the district court’s application of a two-level

sentencing enhancement under U.S.S.G. § 2D1.1(b)(1) for

the possession of firearms by his co-conspirators. We

review the district court’s factual findings supporting

the enhancement for clear error. United States v. Strode,

Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240, 15

11-1509, 11-1680, 11-2630

552 F.3d 630, 635 (7th Cir. 2009). It is the government’s

burden to “establish the appropriateness of the enhance-

ment by a preponderance of the evidence.” Vold, 66 F.3d

at 920. Though it is a close call, we cannot conclude that

the two-level enhancement of Peeples’s offense level

was supported by this record.

Section 2D1.1(b)(1) provides for a two-level enhance-

ment “if a dangerous weapon (including a firearm) was

possessed.” U.S.S.G. § 2D1.1(b)(1). We have repeatedly

observed that the enhancement is not only applicable

for the defendant who actually possesses a gun in the

course of a drug offense, but “section 1B1.3(a)(1)(B)

makes clear that defendants can also be on the hook for

firearms possessed by their coconspirators so long as

such possession was reasonably foreseeable.” United

States v. Luster, 480 F.3d 551, 558 (7th Cir. 2008) and

cases cited therein; see also United States v. Harris, 230

F.3d 1054, 1057 (7th Cir. 2000). The district court must

therefore make two separate findings: (1) “that someone

in the conspiracy actually possessed a firearm in fur-

therance of the conspiracy”; and (2) “that the co-con-

spirator’s firearm possession was reasonably foreseeable

to the defendant.” Luster, 480 F.3d at 558 (citations omit-

ted). If the government meets its burden of showing

gun possession by a co-conspirator, then “the bur-

den shifts to the defendant to show that it was clearly

improbable that the gun was connected to the offense.”

United States v. Olson, 450 F.3d 655, 684 (7th Cir. 2006)

(citing United States v. Berthiaume, 233 F.3d 1000, 1004 (7th

Cir. 2000)).

16 Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240,

11-1509, 11-1680, 11-2630

Based on the record before it, the district court did

not err in concluding that certain DTO members

possessed firearms. At sentencing, Peeples argued that

the use of firearms was not part of any jointly

undertaken criminal activity, but evidence showed

that several members of the DTO—including Daniels,

Townsend, Knox, and Paige—not only possessed

firearms, but did so as part of their conspiracy. The

district court specifically pointed to the fact that

Daniels told federal agents he would give guns to any

member of the DTO who wanted them for protection.

Moreover, Paige said that Daniels and other DTO

members used guns as a “means of protection” for

the organization.

The more difficult question is whether Peeples should

have reasonably foreseen his co-conspirators’ gun pos-

session as a member of this conspiracy. In tackling

this question, the district court first referenced prior

cases from our circuit holding that courts are permitted

to consider the practical reality of the drug trafficking

industry in determining whether the possession of

firearms by other members of a conspiracy is rea-

sonably foreseeable to a particular defendant. See

United States v. Berchiolly, 67 F.3d 634, 640 (7th Cir. 1995)

(noting that “the drug industry is by nature dangerous

and violent”); United States v. Vaughn, 585 F.3d 1024,

1029 (7th Cir. 2009) (recognizing that “guns are tools of

the drug trade”). The district court acknowledged, how-

ever, that common sense assumptions about the drug

trade only go so far and cannot alone satisfy the

Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240, 17

11-1509, 11-1680, 11-2630

foreseeability requirement. See Vold, 66 F.3d at 921 (“We

have never held . . . that the mere risk involved in a

drug manufacturing conspiracy establishes the rea-

sonable foreseeability of a concealed firearm under

Guideline § 2D1.1(b)(1) absent other evidence.”). The

government also concedes that the use of firearms was

not reasonably foreseeable to every runner in the DTO

and it did not seek the firearm enhancement for Smith

given the lack of evidence supporting the enhancement.

But in attempting to fill the gap between what is

known about the drug industry generally and the par-

ticular circumstances of this case, the district court errone-

ously relied on several irrelevant facts. For example, the

court highlighted the fact that Daniels told agents he

purchased guns for other members of the conspiracy

to use, but there is no evidence that Peeples ever

heard Daniels make a statement even close to this ef-

fect. This case is somewhat similar to United States v.

Vold in this regard. In that case, the government tried

to prove that a co-defendant’s gun possession was rea-

sonably foreseeable based on certain statements he

made to a third party about his willingness to engage in

a shoot-out with police, but there was no evidence that

the defendant ever heard his co-defendant make

those statements. See 66 F.3d at 921.

The district court also looked at the fact that Peeples

admitted to seeing a rifle at Daniels’s home during the

time he was a member of the conspiracy. But seeing a

gun at someone’s home is different than seeing a gun at

18 Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240,

11-1509, 11-1680, 11-2630

a drug stash house. And the government cannot point

to any evidence of Peeples seeing drugs at Daniels’s

home while he was a member of the conspiracy. There

is also no evidence in this record to suggest that

Daniels’s home was the base of the DTO’s drug distribu-

tion activity. This situation is therefore critically dif-

ferent from other textbook cases we have dealt with in

the past where a co-conspirator clearly possessed a

firearm at the same location where the defendant saw

drugs being stored or distributed. See, e.g., Luster, 480

F.3d at 558; United States v. Artley, 489 F.3d 813, 823 n.5

(7th Cir. 2007); United States v. Banks, 987 F.2d 463, 468 (7th

Cir. 1993) (collecting cases).

The district court also stated that Peeples knew that

Clay possessed a firearm. But Peeples pointed out in his

sentencing memorandum that Clay was arrested while

getting into Peeples’s car due to allegations from Clay’s

girlfriend that he threatened her with a gun. That was

the only reference to Clay’s firearm possession in the

record, and it does not establish the reasonable

foreseeability of Clay or others using a firearm in their

drug business. The court finally stated that Peeples

had firsthand knowledge that guns and drugs go hand

in hand because of his use of a firearm in connection

with a previous conviction from 2003. But Peeples’s past

dealings with guns in 2003 does not establish the

foreseeability of his co-conspirators’ conduct in 2008.

See United States v. Noe, 411 F.3d 878, 889 (8th Cir. 2005)

(refusing to take into account guns recovered from defen-

dant’s residence in 1999 when conspiracy at issue did not

Nos. 10-3447, 10-3469, 10-3714, 11-1090, 11-1240, 19

11-1509, 11-1680, 11-2630

begin until 2000). We conclude that the district court

committed clear error when it enhanced Peeples’s sen-

tence for possession of a firearm.

III. CONCLUSION

For the reasons set forth above, we V ACATE

Peeples’s sentence and R EMAND to the district court

for resentencing. The sentences of all other defendants

are A FFIRMED.

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