Appeal from the United States District Court for the Central District of Illinois. No. 2:08-cr-20066-MPM-DGB-Michael P. McCuskey, Chief Judge.
The opinion of the court was delivered by: Wood, Circuit Judge.
Before EASTERBROOK, Chief Judge, andWOOD and WILLIAMS, Circuit Judges.
Thaddeus Speed was caught participating in a number of drug transactions involving the sale of a total of 74.2 grams of crack cocaine. This led to his conviction on three felony charges: conspiracy to distribute more than 50 grams of cocaine base, distribution of more than 50 grams of cocaine base, and possession of more than five grams of cocaine base with intent to distribute. See 21 U.S.C. §§ 841(a)(1), 846. Because he had two prior state felony drug convictions, he received a mandatory sentence of life imprisonment without the possibility of parole. He now appeals, claiming that his convictions were supported by insufficient evidence. He also urges that we should find that the Fair Sentencing Act of 2010, passed after his sentencing, applies retroactively, and thus permit him to be re-sentenced under that law's more lenient standards. Finally, he argues that his mandatory life imprisonment sentence violates the Fifth and Eighth Amendments to the Constitution. He has not, however, demonstrated that no jury could have found him guilty, and so his first argument cannot succeed. His latter two arguments, while preserved for further review, are both foreclosed by established law in this circuit. We therefore affirm.
Special Agent Gary Tison was an undercover agent working for the Kankakee Area Metropolitan Enforcement Group (KAMEG), a multijurisdictional drug enforcement task force. On August 20, 2008, Agent Tison arranged to buy crack cocaine from Anthony Cunningham, Jr. Cunningham testified that his supplier was Speed; Speed fronted Cunningham the drugs and allowed Cunningham to pay him back after the sale. The sale to Tison went off without a hitch: Tison bought 4.5 grams of crack cocaine for $400, and Cunningham dutifully paid Speed his share. Before parting, Tison and Cunningham spoke about the possibility of Tison's supplying Cunningham with marijuana.
A few weeks later, on September 12, Tison arranged another buy. Speed again fronted Cunningham the drugs and this time drove Cunningham to the agreed-upon meeting place, a Kankakee gas station. Cunningham got into Tison's car to carry out the deal, but he expressed worries about police activity near the gas station. At Cunningham's direction, Tison followed the car Speed was driving to a nearby street. There Tison bought 8.8 grams of crack for $600. The two then set up a third deal for 63 grams of crack, and Tison informed Cunningham that he had found a marijuana supplier. Cunningham got back into Speed's car and paid him for the crack.
On September 23, Tison met Cunningham to buy the 63-odd grams of crack. Speed fronted Cunningham the crack and again accompanied Cunningham to the familiar gas station. Cunningham got into Tison's car and exchanged 60.9 grams of crack cocaine for $2,250. They then discussed a future marijuana-for-crack exchange. Cunningham met back with Speed and promptly paid him for the crack.
On October 10, Tison and Cunningham arranged yet another deal. The plan was that Tison would sell Cunningham ten pounds of marijuana for $7,000 and trade an additional two pounds of marijuana for 40 grams of crack cocaine. KAMEG Special Agent Clayt Wolfe accompanied Tison as the purported marijuana supplier. The four met this time in a shopping mall parking lot. In contrast to the previous transactions, Speed played a more active role during this episode. Though Tison had not formally met Speed, he recognized him as the driver in the two September transactions. The deal did not go smoothly. An argument erupted about the exchange procedure: Wolfe wanted to see the money first, while Cunningham demanded to see the product. Speed interjected to smooth things over. The bickering continued, however, and Wolfe expressed his intention to leave. Tison then suggested that Wolfe and Speed talk alone and settle the deal.
Speed and Wolfe stepped aside and began debating whether money or product should be shown first. Unfortunately for Speed, his words were being recorded secretly, and so the more he spoke, the deeper he dug himself into a hole. In order to demonstrate his trustworthiness to Wolfe, he explained that Tison had bought drugs from him "all the time." He mentioned that Tison bought 63 grams from him recently. Speed then went on to say that he "was the man, [he was] the one who want[ed]" the marijuana. The two then rejoined the group and reached an agreement: Speed and Cunningham would leave and return with the money. A little later, Cunningham came back alone and reported that Speed decided against the deal-he would give no money until he saw the goods.
The foursome tried again on November 13 at a Kankakee hotel. This time, the conversation (again recorded) was fairly disjointed. Speed started the bidding at three pounds of marijuana for 60 grams of cocaine. Without addressing the offer, Wolfe then asked how much crack Speed could deliver. Speed boasted that he could produce "[w]hatever much you trying to get," and stated that his price was $1,800 for 63 grams. After more discussion, the stalemate that had stalled the earlier negotiations ended: Wolfe and Tison took Cunningham to their car to inspect the marijuana. They settled on Wolfe's selling seven pounds of marijuana for $4,400 and trading three pounds for 63 grams of crack. To Tison's and Wolfe's frustration, Speed and Cunningham had not brought enough money. Speed still wanted to make the crack-for-marijuana swap, but his time had run out. Wolfe signaled to the other officers and Speed and Cunningham were arrested. When arrested, Speed was carrying a bag containing 16.4 grams of cocaine base.
The grand jury indicted Speed on three counts: Count 1 charged him with conspiracy to distribute more than 50 grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii) and 846, based on all of the drug transactions from August 20 to November 13; Count 2 charged him with distribution of more than 50 grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii), for the September 23 sale of 60.9 grams of cocaine; and Count 3 charged him with possession with intent to distribute of more than five grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii), based on the 16.4 grams of cocaine base he possessed on November 13.
At trial, Cunningham, Tison, and Wolfe testified consistently with the facts we have laid out. Speed had a different story to tell. He contended that he had no involve-ment in the August and September transactions. Contradicting Cunningham's testimony, Speed denied providing Cunningham with the crack for those sales. More-over, contrary to both Cunningham's and Tison's testimony, he denied driving Cunningham on September 12. As for September 23, Speed said he arrived at the gas station only to buy cigarettes and soda pop. In an odd attempt to deflect the drug charges, Speed testified that on November 13 he intended to rob Wolfe and Tison, not to deal drugs. This testimony conflicted with his post-arrest interview, in which he stated that he intended to dupe Wolfe and Tison by trading them a measly 12 grams of crack-and not 63 grams-for the three pounds of marijuana.
The jury was unpersuaded by Speed's testimony and convicted him on all counts. Because Speed's sales involved a total of over 50 grams of crack cocaine and he had two prior state felony drug convictions, the version of 21 U.S.C. § 841(b)(1)(A)(iii) in effect at the time of his sentencing mandated that he receive a life sentence on Counts 1 and 2. The district court sentenced him to three concurrent terms of life ...