Submitted July 17, 2014.
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:02-CR-00044 -- James T. Moody, Judge.
For United States of America, Plaintiff - Appellee: John M. Maciejczyk, Attorney, Office of The United States Attorney, South Bend, IN.
William J. Davison, Defendant - Appellant, Pro se, Sandstone, MN.
Before POSNER, KANNE, and TINDER, Circuit Judges.
Posner, Circuit Judge.
The defendant, a member of the " Concord Affiliated" street gang in Gary, Indiana, was convicted in 2003 of two counts of having distributed at least 50 grams of crack cocaine. 21 U.S.C. § 841(a)(1). In October 2003, the district judge, determining that the defendant had foreseen the gang's sale of " way in excess of" 1.5 kilograms of crack--at that time the threshold quantity for the highest base offense level (38) for a federal drug offense--sentenced him to 360 months in prison. Actually the jury had acquitted him of conspiracy. But at the sentencing hearing, the judge, as he was authorized to do, see United States v. Watts, 519 U.S. 148, 149, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (per curiam), determined by a preponderance of the evidence that the defendant had been a member of the conspiracy. The judge reasoned from this determination that the sales of crack by the other members, to the extent that those sales had been reasonably foreseeable to the defendant, constituted " relevant conduct" engaged in by him and were therefore the correct basis for calculating his guidelines sentencing range. The quantity of those foreseeable sales made his base offense level 38. His total
offense level was 40, for which the guidelines sentencing range is 292 to 365 months, so the 360-month sentence was within that range. (The government's brief incorrectly states that the defendant was sentenced to life imprisonment.) He appealed, and we affirmed his sentence in United States v. Davison, 166 F.App'x 246, 249 (7th Cir. 2005).
After an initial failure to obtain a sentencing reduction, see United States v. Davis, 682 F.3d 596, 619-20 (7th Cir. 2012), the defendant moved for a sentencing reduction under 18 U.S.C. § 3582(c)(2) on the basis of the Sentencing Commission's having retroactively lowered the base offense level for offenses involving crack. U.S.S.G. App. C, Amendment 750 (2011); United States v. Dixon, 687 F.3d 356, 358 (7th Cir. 2012). He conceded responsibility for the sale of 4.5 kilograms of crack but argued that he was not responsible for 8.4 kilograms, the new floor created by the Sentencing Commission's retroactive change in the amount of crack required to make a defendant's maximum base offense level 38. The district judge denied the motion, ruling that the defendant had been responsible for the sale of at least 16.9 kilograms of crack. That was the entire amount that the conspiracy of which the defendant was a member had been found to have sold, and we had upheld that finding in United States v. Hall, 600 F.3d 872, 876 (7th Cir. 2010), a case that involved a motion for a reduction in sentence by two of the current defendant's co-conspirators.
Both the district judge in denying the defendant's motion for a reduction in the length of his sentence, and the government in defending that denial in this court, appear, however, to have misunderstood " relevant conduct," the basis on which the judge had computed a base offense level of 38 for the defendant and sentenced him to 360 months in prison. Relevant conduct is conduct by the defendant that even if not charged is to be used to determine his base offense level, U.S.S.G. § 1B1.3 and Application Note 1. It consists, " in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy)," of " all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction ... ." § 1B1.3(a)(1)(B). Application Note 1 explains that the " principles and limits of sentencing accountability under this guideline are not always the same as the principles and limits of criminal liability. Under subsections (a)(1) and (a)(2), the focus is on the specific acts and omissions for which the defendant is to be held accountable in determining the applicable guideline range, rather than on whether the defendant is criminally liable for an offense as a principal, accomplice, or conspirator " (emphasis added).
The focus in other words is on acts, reasonably foreseeable to the defendant even though committed by others, that furthered a criminal activity that he had agreed to undertake jointly with those others. United States v. Soto-Piedra, 525 F.3d 527, 531-33 (7th Cir. 2008); United States v. McDuffy, 90 F.3d 233, 236 (7th Cir. 1996); United States v. Edwards, 945 F.2d 1387, 1395 (7th Cir. 1991); United States v. Spotted Elk, 548 F.3d 641, 673-74 (8th Cir. 2008); U.S.S.G. § 1B1.3, Application Note 2, Illustrations (c)(1), (6), (7). So whether the defendant in this case is liable for the sale of illegal drugs by other members of the conspiracy that he had ...