Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:07-CR-91--Robert L. Miller, Jr., Judge.
The opinion of the court was delivered by: Wood, Circuit Judge.
ARGUED SEPTEMBER 26, 2011--
Before CUDAHY, POSNER, and WOOD, Circuit Judges.
Kimani Lanier Fleming was found guilty by a jury of several serious drug and firearm charges, for which he received a mandatory life sentence. Fleming's counsel appealed his conviction on evidenti- ary grounds, and this court affirmed. Fleming then filed a petition under 18 U.S.C. § 2255 asserting that his counsel had been constitutionally ineffective. In re- sponse to Fleming's petition, the government admitted that it had failed to file its notice of enhanced penalty within the permitted time. This prompted the district court to set aside Fleming's mandatory life sentence and to hold a hearing on the other issues raised in his § 2255 petition. Ultimately, the court resentenced him to a term of 480 months' imprisonment. Fleming has appealed again, challenging both his conviction for possession of cocaine base with intent to distribute and his revised sentence. He has no certificate of appealability, how- ever, permitting his appeal on the conviction, and we decline to grant one. The only issue properly before us is whether it was appropriate for the district court to include routine drug purchases as relevant conduct when it computed the revised sentencing guideline range. Finding no clear error in that decision, we affirm Fleming's revised sentence.
Fleming (also known as "K" and Kamari Merryweather) began selling significant quantities of crack cocaine out of three properties in Elkhart, Indiana, in 2006. In July 2007, federal agents began collecting evidence about Fleming's drug dealing operation. Using in- formants, the agents set up four controlled buys from Fleming in August 2007; each one took place at a house located at 403 9th Street, in Elkhart. The ruse succeeded:
Fleming sold 6.68, 13.84, 31.27, and 30.88 grams of crack cocaine over the course of the four transactions. Next, the agents obtained a search warrant for the 9th Street property. Once there, they found firearms, powder cocaine, marijuana, and materials used to cook and package crack cocaine.
At trial, several witnesses testified that Fleming sold crack cocaine to them during 2006 and 2007. In addition, Jason Lucas testified that he distributed Fleming's crack cocaine. He recounted that he traveled with Fleming from Elkhart to Detroit, Michigan, about every eight days during the months of December 2006 to April 2007. Fleming typically purchased four to nine ounces of powder cocaine per trip. Lucas and Fleming would then cook the powder into crack after they returned to Detroit. When one ounce of powder cocaine is cooked, according to the South Bend Police, it yields a little over one ounce of crack.
The jury convicted Fleming on December 13, 2007, on all seven counts. Relevant to this appeal, he was con- victed on Count 1, possession with intent to distribute more than 50 grams of crack in violation of 21 U.S.C. § 841(a)(1). Fleming was sentenced on February 26, 2008, to life imprisonment for Count 1, with varying sen- tences for the other convictions. The district court gave Fleming a mandatory life sentence for Count 1 because of Fleming's prior criminal convictions.
Fleming appealed his convictions on evidentiary grounds, but this court affirmed. United States v. Fleming, 290 F. App'x 946, 948 (7th Cir. 2008). Following his unsuc- cessful direct appeal, Fleming filed a petition (and, later, an amended petition) under 28 U.S.C. § 2255 asserting that he had received ineffective assistance of counsel at trial. Among other things, he argued that his counsel failed properly to challenge the government's late notice of sentence enhancement and that counsel should have challenged his possession conviction because none of the controlled buys individually involved 50 or more grams of crack cocaine. The government admitted in its response to Fleming's petition that its written notice of sentence enhancement was filed three days late. The government was required under 21 U.S.C. § 851 to give Fleming this notice before trial or the entry of a plea. The jury trial began on December 11, 2007, but the gov- ernment did not file its written notice until Decem- ber 14, 2007.
The district court denied some of Fleming's requests summarily, and it held an evidentiary hearing to consider others. During the hearing, it explored some of Fleming's ineffective assistance assertions; in the end, it concluded that Fleming was entitled to be resen- tenced without the mandatory life sentence in light of the government's late § 851 notice. Relevant to this appeal, the district court denied Fleming's attempt also to challenge his possession conviction, because it deemed aggregation of drug quantities permissible under Seventh Circuit precedent. It resentenced Fleming to concurrent terms of 420 months for the conviction for possession with intent to distribute 50 grams or more and the three convictions for distribution of more than five grams of crack, 240 months for the crack dis- tribution conviction, 120 months for one firearm con- viction, and a consecutive 60-month sentence for the other firearm conviction, making a total of 480 months. This appeal followed.
Fleming, urging again that the government never proved that he distributed more than 50 grams at one time, first would like to challenge the sufficiency of the evidence to convict him on Count 1 for possession with intent to distribute. As we noted, federal agents coordinated four controlled buys of crack from Flem- ing. When aggregated, the quantities of crack exceed 50 grams, but no individual transaction reached that threshold. The initial jury instructions stated only that the jury should conclude that Fleming violated 21 U.S.C. § 841 (a)(1) if it found that he possessed more than 50 grams. When the jury sent out a question asking whether the 50-gram level could be reached by ag- gregating the individual amounts, the court answered in the affirmative.
At the resentencing hearing that followed Fleming's petition under § 2255, he urged the district court to follow United States v. Sandlin, 291 F.3d 875, 879 (6th Cir. 2002), which prohibits such aggregation. The district court, however, rejected this argument because it inter- preted this court's decision in ...