Appeal from the United States District Court for the Southern District of Illinois. No. 08 CR 30061-J. Phil Gilbert, Judge.
The opinion of the court was delivered by: Manion, Circuit Judge.
Before BAUER, MANION, and HAMILTON, Circuit Judges.
Kevyn Taylor was convicted by a jury on six counts related to his participation in a crack dealing operation. These included charges that he possessed, distributed, and conspired to distribute crack cocaine, as well as related firearms charges. He appeals his conviction for distribution of crack cocaine, arguing that there was insufficient evidence for a jury to find beyond a reasonable doubt that he aided and abetted a crack deal in October 2005. He also appeals the portion of his sentence related to the drug convictions, arguing that the district court over-calculated the relevant amount of drugs and erred in enhancing his sentence for obstruction of justice based on his trial testimony. We affirm the judgment and the sentence.
I. In 2005, the Bureau of Alcohol, Tobacco, Firearms, and Explosives began an investigation into drug trafficking activity by Byron Blake and his associates in East St. Louis, Illinois. The investigation was code-named "Operation No Escape" in reference to Club Escape, a nightclub owned by Blake and the home base for the enterprise. Beginning in September of that year, confidential informants made drug purchases first from Ryan Ivory and eventually from Blake himself. Later, in the Spring of 2006, the ATF tapped the phones of Blake and Taylor and conducted surveillance of Blake and his associates. The investigation culminated in the execution of several search warrants, including one at 114 Blazier Drive in Belleville, where Blake and Taylor were known to have spent significant time.
In March 2009, Taylor was indicted on six counts arising from Operation No Escape. Relevant on appeal are Count 1-conspiracy to distribute over 50 grams of crack cocaine-and Count 2-distributing more than 50 grams of crack on October 20, 2005, both in violation of *fn1 government sought to prove Count 2 by showing that Taylor aided and abetted the recorded controlled buy that the government's confidential informant, Michael Woods, made from Blake on October 20. Woods testified that he bought drugs from Blake on three occasions in October 2005. First, during the week of October 10, Woods accompanied Ivory to purchase crack from Blake, but stayed in the car while Ivory met Blake. Second, on October 15, Blake arrived at Ivory's house in a truck driven by Taylor. While Woods waited, Ivory approached the vehicle. Blake handed four-and-a-half ounces of crack to Taylor, who handed the drugs to Ivory. Finally, on October 20, Woods purchased crack directly from Blake while wired with audio- and video-recording equipment. Again at Ivory's house, Woods stood waiting outside his car until Blake and Taylor arrived in a black Ford Explorer that Taylor had rented several days before. This time, Blake exited the truck and got into the passenger side of Woods's car, where the deal took place.
Ryan Ivory also testified at trial. He described the events of October 20 similarly to Woods and testified that Taylor drove the car he had observed "during that time 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii). At trial, the period," but did not specifically identify Taylor as being present on that day, nor mention the transaction five days before. He also testified that Taylor would often accompany Blake on deals and sometimes collect money for him, but the only specific time periods he mentioned were after the October 20 controlled buy.
To prove the conspiracy to distribute charges of Count 1, the government pointed to the evidence of Taylor's participation in the October 20 deal, and also introduced selected audio recordings of phone calls between Blake and Taylor that, according to the testimony of the case agent, concerned the preparation and distribution of crack cocaine. In one call, Taylor reported back to Blake that one of his purchasers claimed that there was a problem with his "shake" and was unhappy because "he lost about 18 out of his two and a quaker"; according to the case agent this meant that the purchaser claimed to have lost 18 grams out of 2 1/4 ounces (63 grams) of powder cocaine when he tried to "cook" the powder to convert it to crack, potentially the result of the "shake"-the very powdery cocaine at the bottom of a bag-being cut with baking powder. Ivory also identified some of the recorded discussions as involving crack production.
Taylor testified in his own defense. He denied ever having met Woods and denied that he had ever sold or used cocaine or crack. He did, however, admit to dealing marijuana, and attempted to explain away the incriminating phone conversations with Blake as relating solely to the production and sale of marijuana.
He claimed that Blake would receive the marijuana in bricks about the size of a hockey puck and use a special machine to moisten the marijuana. The government called the case agent back to the stand, and he rebutted Taylor's testimony, stating that he had never heard of applying baking soda to marijuana and that other aspects of the recorded calls were inconsistent with marijuana dealing.
The jury convicted Taylor on all counts. For Count 1, the jury was asked to make special findings concerning the quantity of the drugs involved. The verdict sheet asked whether the offense involved more than 50 grams or, if less than 50 grams, more than 5 grams. Inexplicably, the jury answered "yes" to both questions.*fn2
The presentence investigation report calculated that Taylor was responsible for 396.7 grams of powder cocaine, 837 grams of crack cocaine, and 227 kilograms of marijuana-a total marijuana equivalency of 17,046 kilograms under the sentencing guidelines. In response to an objection by the government, the PSR was amended to include a two-level enhancement for obstruction of justice, for a total offense level of 36. With a criminal history category of I, this resulted in a guidelines range of 188 to 235 months for Counts 1 and 2.
Regarding his relevant conduct, Taylor made a few objections to the probation officer's characterization of the evidence and, much more significantly, argued that the court should take into account the disparity in the guidelines' treatment of powder and crack cocaine, as permitted by Kimbrough, and reduce the total marijuana equivalency considerably, to 473.74 kilograms. He also objected to the obstruction of justice enhancement for perjury, arguing that such enhancements "put a damper on anyone who wants to testify and who might testify different from what the government says." Taken together, his objections would have reduced the base offense level to 26, with a guideline range of 63 to 78 months' imprisonment. The court adopted the PSR's recommendations in all respects. Regarding the disparity between crack and powder cocaine, the court declined to disregard the guidelines, stating that it would follow the current guidelines ratios until amended. It also found that Taylor committed perjury in his testimony by going beyond a general denial of his involvement and denying specific details of his involvement with Blake, Ivory, and others. The court then gave concurrent below-guidelines sentences of 180 months on Counts 1, 2, 3, and 5, plus the mandatory minimum of a consecutive 60 months for his possession of a firearm in furtherance of a drug trafficking crime. Taylor appeals his conviction on Count 2 and his sentence on Counts 1 and 2.
II. On appeal, Taylor argues that there was insufficient evidence for the jury to find that he aided and abetted the October 20 crack deal. Regarding his sentence, he makes two arguments. First, he argues that at sentencing the district court incorrectly considered as relevant conduct an amount of drugs that exceeded the jury's special verdict. Second, he argues that the district court did not make sufficient findings to ...