April 4, 2019
from the United States District Court for the Southern
District of Illinois. No. 4:17-cr-40034-JPG-1 - J. Phil
Ripple, Hamilton, and St. Eve, Circuit Judges.
Ripple, Circuit Judge
2017, a federal grand jury indicted Rex Hopper on one count
of conspiracy to distribute methamphetamine, in violation of
21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846 and 18
U.S.C. § 2. Mr. Hopper was part of a community of
methamphetamine users and sellers in southern Illinois.
Several of these individuals signed proffer letters with the
Government, agreeing to provide testimony against Mr. Hopper
in exchange for leniency. Most of these witnesses
subsequently entered plea agreements. Mr. Hopper, however, pleaded not
guilty to the single count in the indictment and proceeded to
trial before a jury in late February 2018.
the course of three days, the Government presented the
testimony of approximately twenty witnesses against Mr.
Hopper. The district court denied Mr. Hopper's motion for
disclosure of the proffer letters given to these witnesses.
Following deliberations, the jury found Mr. Hopper guilty of
conspiracy to distribute methamphetamine, as charged in the
indictment, and returned a special verdict form finding that
the conspiracy involved an amount of 50 grams or more.
on interviews with other participants in the conspiracy, the
probation office determined that Mr. Hopper's relevant
conduct involved 1.968 kilograms of ice methamphetamine. This
drug amount corresponded to a base offense level of 36. At
sentencing, the district court determined that Mr. Hopper was
subject to a two-level sentence enhancement for maintaining a
residence for the purpose of distributing methamphetamine.
Based on a total offense level of 38 and a criminal history
category of I, the court calculated a guidelines imprisonment
range of 235 to 293 months. The district court sentenced Mr.
Hopper at the bottom of the guidelines range to 235
months' imprisonment, followed by four years of
Hopper now challenges both his conviction and his sentence.
First, we conclude that the Government presented sufficient
evidence to prove that Mr. Hopper engaged in a conspiracy to
distribute methamphetamine in southern Illinois, and that
there was no material variance between the conspiracy charged
in the indictment and the Government's proof at trial.
Second, the district court did not err when it denied Mr.
Hopper's motion for disclosure of the cooperating
witnesses' proffer letters. Third, the district court
properly concluded that Mr. Hopper was subject to a two-level
sentence enhancement for maintaining his Creal Springs
residence for the purpose of distributing methamphetamine.
However, we conclude that the district court plainly erred
when it calculated Mr. Hopper's relevant conduct and
corresponding guidelines range. In context, it is clear that,
in their separate interviews, Lucas Holland and Randall Riley
were describing the same transactions. By including the
amounts described by both Holland and Riley in the
calculation of Mr. Hopper's relevant conduct, the
presentence report ("PSR"), adopted by the district
court, erroneously double-counted those drug quantities.
foregoing reasons, we affirm Mr. Hopper's conviction for
conspiracy to distribute methamphetamine. We also affirm the
district court's determination that he was subject to a
sentence enhancement for maintaining a drug premises. Because
the court plainly erred in calculating his relevant conduct,
however, we vacate Mr. Hopper's sentence and remand his
case to the district court for resentencing.
April 2017, law enforcement officers executed a search
warrant at Mr. Hopper's residence. They sought to recover
items involved in a burglary. Officers observed drug
paraphernalia and methamphetamine in plain view. Accordingly,
the officers obtained and executed a second search warrant
for the residence. Upon finding additional drug paraphernalia
and methamphetamine in his home, officers took Mr. Hopper
into custody. A federal grand jury later returned an
indictment charging Mr. Hopper with one count of conspiracy
to distribute methamphetamine, in violation of 18 U.S.C.
§§ 841(a)(1), 841(b)(1)(B), and 846 and 18 U.S.C.
§ 2, in the Southern District of Illinois.
Hopper was part of a community of methamphetamine users and
sellers in southern Illinois. Around the time of his
indictment, the Government also charged other members of this
group with conspiracy to distribute methamphetamine. Several
of these individuals received proffer letters from the
Government and subsequently agreed to provide testimony
against Mr. Hopper in exchange for leniency. Most of these
witnesses later entered plea agreements. Mr. Hopper, however,
pleaded not guilty to the single count in the indictment and
proceeded to trial before a jury in late February 2018.
the trial began, counsel for Mr. Hopper renewed a previous
motion for disclosure of the proffer letters given to the
witnesses who would testify against Mr. Hopper. Referencing
our decision in United States v. Weidenburner, 550
Fed.Appx. 298 (7th Cir. 2013) (unpublished), counsel
recognized that "[t]he Seventh Circuit has ruled
that" proffer letters "are not materials that have
to be provided." Nevertheless, counsel wanted "the
record to be clear" that he thought he "ought to be
provided a copy" of the proffer letters.
for Mr. Hopper explained that the proffer letter "is an
agreement that sets forth the ground rules" for what
testimony "may or may not lead to a plea
agreement." He submitted that "this is a very
important aspect of the defense" because "no plea
agreements are offered until you proffer." In other words, the
proffer letters are "part of the process by which men
and women ultimately find their way on to the stand to give
testimony against a defendant." As a result, counsel asserted,
"if the jurors don't have some understanding of
this process," the defense would be "really
hampered in terms of our constitutional right[s] to put on a
defense and ... to confront the witnesses through cross
examination that are here to accuse Rex Hopper of various
on our decision in Weidenburner, the Government
responded that "the Seventh Circuit is clear that the
proffer letters don't come in," nor does "any
information about the proffer/' "because it is a
preliminary step in the plea agreement, and then the plea
agreement supersedes all that."Turning to defense counsel, the
court stated, "I think it is pretty clear that, you
know, you are not going to get the
Government further noted its objection to defense counsel
asking any questions about the process of entering a plea
agreement. The court asked defense counsel what kind of
questions he intended to ask the cooperating witnesses.
Counsel explained that he wanted the jury to know that before
entering a plea agreement, a witness had to meet with federal
agents and "understood that agents would decide and the
prosecutors would decide whether you told the truth, and if
they didn't think you told the truth that a plea
agreement would not be tendered." Counsel acknowledged
that he planned to review the terms of the plea agreements
with each witness, but argued that the jury would be
"missing a big part of this process" without the
proffer letters. Based on our decision in
Weidenburner, the Government reiterated that the
plea agreement "supersede the proffer letter" and
is "the document which the defendant is entitled to and
entitled to question witnesses about." The court denied the
motion for disclosure of the proffer letters and ruled that
counsel could ask the witnesses "whether they've
entered into a proffer agreement, but going into the terms of
it that are super[s]eded by the plea agreement, I'm not
going to let you do."
Hopper proceeded to trial before a jury on February 26, 2018.
Over the course of three days, the Government presented the
testimony of approximately twenty witnesses against Mr.
Hopper. Set forth below is a summary of the witnesses and
testimony relevant to this appeal.
Williams testified that he met Mr. Hopper sometime in 2015
when they were "messing with drugs." He obtained ice
methamphetamine from Mr. Hopper "[o]ff and on" for
about one year. On these occasions, he received about
one to two ounces of methamphetamine at a cost of $900 to
$1200 per ounce. Williams stated that sometimes, he bought
the drugs outright, while other times Mr. Hopper provided the
drugs to him "on credit," or on a
"front." He explained that, in this fronting
arrangement, Mr. Hopper provided Williams a quantity of
drugs, some of which Williams sold to others in order to pay
Mr. Hopper back. He further testified that Mr. Hopper called
Williams occasionally and asked him to visit the homes of
customers who owed Mr. Hopper money and bring them to Mr.
Hopper's house to settle the debt. He explained that he
helped Mr. Hopper collect money from his customers because
Williams "was selling drugs for him" and "to
help him out in his drug business."
Peyton testified that she met Mr. Hopper in 2016 when she was
dating William, also known as "Andy," Karnes. With
Karnes, she had visited Mr. Hopper's residence in Creal
Springs, where Mr. Hopper provided ice methamphetamine to
Karnes. She stated that during the summer of 2016, Mr. Hopper
provided Karnes three to five "8-balls," or 3.5
gram quantities of ice methamphetamine, several times a
Karnes obtained the methamphetamine from Mr. Hopper
"[o]n a front," in which he would sell drugs to
others in order to pay Mr. Hopper back for the drugs he had
obtained previously. Peyton further testified that sometimes,
Mr. Hopper came to her home to drop off methamphetamine for
Karnes. On other occasions, he sent Williams to deliver the
Weir, also known as "Boog," testified that he and
Mr. Hopper reconnected around April or May 2015. At some
point, he, Mr. Hopper, Lucas Holland, and Randall Riley began
an arrangement in which the four of them pooled their money
together to purchase methamphetamine from a source in Cape
Girardeau, Missouri. Sometimes, Weir gave Mr. Hopper his
money, and Mr. Hopper drove to Murphysboro, where he gave
Weir's and his money to Riley to purchase the drugs.
Other times, Mr. Hopper gave Weir his money, and Weir
delivered the money to Riley. Still other times, Weir and Mr.
Hopper visited Riley together. After Riley obtained the drugs
from Cape Girardeau, the group divided the methamphetamine
into equal, one-ounce shares. Weir stated that he paid about
$800 to $900 per ounce of methamphetamine. This arrangement
lasted about a month, during which the group obtained
methamphetamine two to three times per week.
March 2016, police arrested Riley. Weir and Mr. Hopper then
arranged to pool their money with Holland to purchase
methamphetamine. Holland took their money and ran, and they
never got their drugs. Additionally, Weir acknowledged that
he had personally observed Mr. Hopper distribute
methamphetamine to other individuals.
Holland testified that, at the beginning of 2016, he had been
living at Riley's house for about four or five months.
Holland confirmed the details of the pooling arrangement he
engaged in with Mr. Hopper, Riley, and Weir to purchase
methamphetamine from a source in Cape Girardeau. He
reiterated that Mr. Hopper or Weir, or sometimes the two
together, came to Riley's house to deliver their money.
Holland and Riley then drove to Cape Girardeau to obtain the
methamphetamine. When Holland and Riley returned to Illinois,
the group of four split up the drugs. According to Holland,
this arrangement lasted from about December 2015 to February
testified that, on one occasion, he traveled to Cape
Girardeau with Riley, Mr. Hopper, and Erin Wright, Mr.
Hopper's girlfriend, for a drug deal that Mr. Hopper had
arranged. The group pooled their money, and Mr. Hopper gave
it to an individual in Cape Girardeau. In addition, Holland
confirmed that a few days after police arrested Riley, Mr.
Hopper and Weir gave him money to purchase drugs. He
acknowledged that he "ran off with
Holland also testified that he had observed Mr. Hopper sell
methamphetamine to individuals, including Kevin Shuman, at
his home in Creal Springs.
Riley testified that he met Mr. Hopper around the end of 2015
or early 2016 through a mutual acquaintance when Mr. Hopper
was seeking methamphetamine. Riley confirmed that eventually,
he, Mr. Hopper, Holland, and Weir began a pooling arrangement
in which they combined their money to purchase
methamphetamine from a source in Cape Girardeau. According to
Riley, the group bought four ounces of methamphetamine every
day and split the drugs between the four of them. Either Mr.
Hopper, Weir, or both came to Riley's home with $2, 200
for Mr. Hopper and Weir's shares. Riley and Holland drove
to Missouri to obtain the drugs. When they returned, they met
either at Riley's home or at Mr. Hopper's residence
in Creal Springs to divide up the drugs.
confirmed that on one occasion, his source was unavailable,
so Mr. Hopper arranged a transaction with his own source. He,
Riley, Holland, and Wright drove to Cape Girardeau, where Mr.
Hopper gave the source the money they had pooled together.
Gordon testified that he met Mr. Hopper through Weir.
According to Gordon, he sold methamphetamine to Mr. Hopper
"more than ten times." On such occasions, he provided Mr.
Hopper methamphetamine in amounts ranging from one to
fourteen grams. He also stated that "on numerous
occasions/' he drove Mr. Hopper around the southern
Illinois area to deliver drugs to his
Gordon described one occasion in which he, Mr. Hopper, and
Weir pooled their money together. Weir drove to Cape
Girardeau to obtain the methamphetamine, which they divided
among the three of them when he returned to Illinois.
Boulton testified that in March 2016, she and her children
were living at Riley's home with Riley, her boyfriend, as
well as Holland and his girlfriend. She stated that she
personally observed Mr. Hopper obtain methamphetamine from
Riley at Riley's residence about four or five times. On
such occasions, Mr. Hopper paid Riley for the methamphetamine
and Riley gave Boulton the money to count. She counted about
$1, 000 to $1, 200 per ounce of methamphetamine. Boulton also
overheard discussions between Riley and Mr. Hopper about
pooling their money together and making trips to Cape
Girardeau to obtain methamphetamine.
Wright testified that she met Mr. Hopper in September 2015
and moved in with him at his home in Creal Springs soon
after. She confirmed that Mr. Hopper and Weir went to
Riley's house to get drugs. Usually, Mr. Hopper returned
with an ounce of methamphetamine. She stated that Mr. Hopper
had scales at his Creal Springs home, which he used to weigh
drugs. She further testified that, sometimes, Riley and
Holland came to the Creal Springs home to do business with
Mr. Hopper. She described one occasion on which she and Mr.
Hopper went to Kansas City, Missouri, where Mr. Hopper and an
individual named Jason Clapp obtained methamphetamine. Wright
stated that there were also a few times when Clapp came to
the Creal Springs residence to provide Mr. Hopper with
Craig testified that he knew Mr. Hopper through Weir. He
bought methamphetamine from Mr. Hopper about ten or fifteen
times. On such occasions, he obtained methamphetamine in
quantities up to eight ounces. When Craig obtained the
methamphetamine for himself, Mr. Hopper would not charge him.
When Craig purchased the methamphetamine to deliver to
others, he paid Mr. Hopper in cash. Craig stated that on one
occasion, after Mr. Hopper and Weir pooled their money
together, Craig drove with Weir to Charleston, Missouri, to
purchase methamphetamine. They returned to Mr. Hopper's
home, where Mr. Hopper and Weir divided the drugs. Craig also
confirmed that he had seen Mr. Hopper sell methamphetamine at
his home to Kevin Page and to Andy Karnes on multiple
Shuman testified that he had known Mr. Hopper for years. He
moved in with Mr. Hopper at his Creal Springs home and lived
there in December 2015 and January 2016. Initially, he
obtained "small amounts" of methamphetamine,
ranging from "seven grams to an 8-ball," from Mr.
Shuman bought the drugs "on a front," explaining
that he sold drugs in order to repay Mr. Hopper for
previously purchased quantities of
methamphetamine. He recalled two occasions on which he
drove Mr. Hopper to Jackson, Missouri, to obtain
methamphetamine. When they returned home, Mr. Hopper gave
Shuman drugs in return for driving.
brief term in jail in early 2016, Shuman returned, and the
quantities he bought from Mr. Hopper increased from grams to
ounces of methamphetamine. The two had an arrangement in
which Mr. Hopper placed methamphetamine for Shuman in the
garage. Shuman, who was no longer living with Mr. Hopper,
retrieved the drugs from the garage and left in their place
the money he owed Mr. Hopper for previously fronted
methamphetamine. Shuman further testified that he drove Mr.
Hopper around southern Illinois to deliver methamphetamine to
close of the Government's case in chief, counsel for Mr.
Hopper moved for a judgment of acquittal under Federal Rule
of Criminal Procedure 29, which the court denied. Mr. Hopper
elected not to testify, and the defense rested its case.
Following jury instructions and closing arguments, the jury
retired to deliberate. Approximately an hour later, the court
received a note from the jury stating, "Pages 17 21
are confusing us as to the definition of
'conspiracy.'" Page 17 of the jury instructions stated
A conspiracy is an express or implied agreement between two
or more persons to commit a crime. A conspiracy may be proven
even if its goal was not accomplished.
In deciding whether the charged conspiracy existed, you may
consider all of the circumstances, including the words and
acts of each of the alleged participants.
of the jury instructions stated that:
A conspiracy requires more than just a buyer-seller
relationship between the defendant and another person. In
addition, a buyer and seller of a mixture and substance
containing methamphetamine do not enter into a conspiracy to
distribute a mixture and substance containing methamphetamine
simply because the buyer resells the  mixture and substance
containing methamphetamine to others, even if the seller
knows that the buyer intends to resell the  mixture and
substance containing methamphetamine.
To establish that a seller knowingly became a member of a
conspiracy with a buyer to distribute a mixture and substance
containing methamphetamine, the government must prove that
the buyer and seller had the joint criminal objective of
distributing a mixture and substance containing
methamphetamine to others. I)
conferring with the parties, the court responded to the jury,
"All instructions should be read together. I cannot give
you any more instruction other than what you have been
given." Following further deliberations, the
jury reached a verdict, finding Mr. Hopper guilty of
conspiracy to distribute methamphetamine, as charged in the
indictment. The jury returned a special verdict form finding
that the conspiracy involved an amount of 50 grams or more.
to Mr. Hopper's sentencing, the probation office prepared
a PSR. To determine the scope of his relevant conduct, the
probation office interviewed several witnesses with knowledge
of the conspiracy. Based on these interviews, the initial PSR
determined that Mr. Hopper had a base offense level of 36,
which corresponds to offenses involving "at least 1.5
kilograms but less than 4.5 kilograms of
Specifically, according to the PSR, the conspiracy involved
1.968 kilograms of ice methamphetamine.
calculate Mr. Hopper's relevant conduct, the PSR totaled
the drug amounts described in four separate interviews with
other participants in the conspiracy. In particular:
On August 24, 2016, Lucas Holland participated in an
interview with investigating agents. Holland divulged that he
received four ounces of ice every day for a month from
Randall Riley; of the four ounces, he would give the
defendant one ounce on each occasion. (30 ounces = 850
On February 14, 2017, Randall Riley was interviewed by
investigating agents. Riley stated that from January through
March, he sold one ounce of ice every day to the defendant
for $1, 100. (28 days [February] x 28.35 grams = 793
On May 4, 2017, Erin Wright participated in an interview with
agents. ... Wright stated she traveled with Hopper on ten
occasions to pick up ice from Gary Mims in Cape Girardeau.
She stated on average, they would obtain an ounce of ice per
visit (10 ounces or 283.5 grams of ice). 
On July 19, 2017, Erin Wright was interviewed] by
investigating agents. According to Wright, the defendant
purchased ice from Robert Weir from October or November 2015
until Weir was arrested in March 2016. Wright estimated that
the defendant would purchase 3.5 grams to 28 grams per week,
conservatively. (12 weeks [December-February] x 3.5 grams =
explained that Mr. Hopper's "relevant conduct is
outlined in bold above and involves the amounts obtained by
the defendant, which he then distributed to
others."Further, the PSR noted that "[t]he
amount of ice that the defendant distributed was not counted
to avoid double counting." Adding the drug amounts described
above, the PSR totaled Mr. Hopper's relevant conduct to
be 1.968 kilograms of ice methamphetamine.
initial PSR awarded Mr. Hopper a two-level sentence reduction
for acceptance of responsibility. Based on a total offense
level of 34 and a criminal history category of I, the PSR
calculated a guidelines imprisonment range of 151 to 188
months. Mr. Hopper filed an objection to the initial PSR,
challenging the sentence reduction for acceptance of
responsibility. He asserted that he had "neither
denied, nor admitted, any ... involvement" in the
conspiracy. He also stated that he "understood]
that this objection [would] doom any opportunity he might
have at the two-level [acceptance of responsibility]
reduction." He submitted that, as a result, his
total offense level was 36 and the proper guidelines range
was 188 to 235 months' imprisonment.
the probation office filed a revised PSR, which removed the
acceptance of responsibility reduction. Based on a total
offense level of 36 and a criminal history category of I, the
revised PSR calculated a guidelines imprisonment range of 188
to 235 months. The Government filed an objection to the
revised PSR, contending that Mr. Hopper was subject to a
two-level sentence enhancement for maintaining a residence
for the purpose of distributing methamphetamine. See
XJ.S.S.G. § 2D1.1(b)(12).
the probation office filed a second revised PSR, adopting the
Government's recommendation that Mr. Hopper was subject
to the two-level sentence enhancement for maintaining a drug
premises. Based on a total offense level of 38 and a criminal
history category of I, the second revised PSR calculated a
guidelines imprisonment range of 235 to 293 months. Mr.
Hopper filed an objection to the second revised PSR,
challenging the application of the drug premises enhancement.
He maintained that, consistent with the first revised PSR,
his total offense level was 36 and his guidelines
imprisonment range was 188 to 235 months.
district court conducted a hearing to impose its sentence. At
the outset, the court asked whether there were any objections
to the PSR other than Mr. Hopper's challenge to the
application of the drug premises enhancement. Both sets of
counsel stated that there were not. The court then turned to
the sentence enhancement.
Government introduced additional testimony from Wright, Mr.
Hopper's former girlfriend. She testified that she had
lived with Mr. Hopper at his Creal Springs home from about
October 2015 until May 2017. She acknowledged that, during
this time, she saw methamphetamine at the residence. She
elaborated that "[i]t was always there" and that
she saw drugs in the home "[p]retty much every
Wright testified that after Mr. Hopper obtained
methamphetamine from others, he brought it back to the Creal
Springs house. She further stated that she saw Mr. Hopper
distribute methamphetamine from the residence. She said that
this occurred "[t]hroughout the week" and that
"each week there was some sort of activity going
on" involving methamphetamine. Wright acknowledged that Mr. Hopper
collected money from individuals who bought methamphetamine
at his home. She testified that he had drug scales at the
house, which he used "[t]o weigh out the
product." She estimated that, while she lived with
him, Mr. Hopper distributed methamphetamine from his
residence approximately "[w]eekly." She added, however,
that toward the end of their time living together, Mr.
Hopper's drug selling diminished and he was "just
court inquired what Mr. Hopper did for a living. Wright
explained that Mr. Hopper had received a monetary settlement
after working in the coal mines. Subsequently, he had a
"side business" buying and selling cars, and he
dealt drugs. Wright acknowledged that Mr. Hopper did
not "officially work."
on the testimony introduced at trial and at sentencing, the
court concluded that Mr. Hopper stored methamphetamine at and
distributed it from the Creal Springs residence. Given
Wright's testimony that this occurred weekly over an
extended period of time, the court determined that the
distribution was "more than just incidental or
collateral." Accordingly, the court overruled Mr.
Hopper's objection and concluded that he was subject to
the two-level enhancement for maintaining a residence for the
purpose of distributing methamphetamine.
that there were no other objections, the court adopted the
findings of the PSR as the findings of the court. This
included the finding that the conspiracy involved between 1.5
and 4.5 kilograms of ice methamphetamine, specifically 1.968
kilograms, which corresponded to a base offense level of 36.
Given its conclusion regarding the two-level drug premises
enhancement, the court determined that Mr. Hopper had a total
offense level of 38. With a criminal history category of I,
the court concluded that his corresponding guidelines
imprisonment range was 235 to 293 months.
party objected to the court's guideline range findings.
The Government recommended a sentence near or at the top of
the guidelines range, while counsel for Mr. Hopper
recommended a sentence of 188 months. Based on the
information in the PSR, the factors set forth in 18 U.S.C.
§ 3553(a), and the arguments of Mr. Hopper's
counsel, the court sentenced Mr. Hopper at the bottom of the
guidelines range to 235 months' imprisonment, followed by
four years of supervised release. At the conclusion of the
hearing, the court asked defense counsel, "Are there any
other arguments I have not considered?" Counsel for Mr. Hopper
responded that there were not. Following the entry of final
judgment, Mr. Hopper filed a timely notice of appeal.
Hopper raises four arguments on appeal. First, he asserts
that the evidence presented at trial was insufficient to
support his conviction for conspiracy to distribute
methamphetamine and that, even if the Government established
the existence of multiple, smaller conspiracies, there was a
fatal variance between the single, overarching conspiracy
alleged in the indictment and the Government's proof at
trial. Second, he contends that the district court erred when
it denied his motion for disclosure of the cooperating
witnesses' proffer letters. Third, he challenges the
district court's application of a two-level sentence
enhancement for maintaining a drug premises. Finally, he
submits that the district court erred in calculating his
guidelines range because, in determining Mr. Hopper's
relevant conduct, it double-counted the drug transactions
described by Holland and Riley.
begin with Mr. Hopper's attack on the sufficiency of the
evidence. United States v. Douglas, 874 F.2d 1145,
1150 (7th Cir. 1989), abrogated on other grounds by
United States v. Durrive, 902 F.2d 1221 (7th Cir.
contends that there was insufficient evidence to support his
conviction for conspiracy to distribute methamphetamine
because the Government proved only a series of buyer-seller
relationships. He preserved this argument by moving for a
judgment of acquittal at the close of all evidence, so we
review his claim de novo. United States v.
Claybrooks, 729 F.3d 699, 704 (7th Cir. 2013).
defendant's burden in showing the evidence was
insufficient to support a conviction is indeed a high one.
See United States v. Rollins, 544 F.3d 820, 835 (7th
Cir. 2008). In attempting to describe that burden, we often
have said that the burden is a direct function of the
strength of the Government's case. See United States
v. Garcia, 919 F.3d 489, 496-97 (7th Cir. 2019);
United States v. Jones, 713 F.3d 336, 339 (7th Cir.
2013). Because "[w]e accord great deference to jury
verdicts," United States v. Brown, 726 F.3d
993, 1004-05 (7th Cir. 2013) (internal quotation marks
omitted), "[w]e will overturn a conviction on
sufficiency-of-the-evidence grounds only if no rational jury
could have found the essential elements of the crime beyond a
reasonable doubt," United States v. Johnson,
592 F.3d 749, 754 (7th Cir. 2010). "In making this
determination, we view all evidence and draw all reasonable
inferences in the light most favorable to the
prosecution." Id. See Jackson v. Virginia, 443
U.S. 307, 319 (1979), superseded on other grounds by
statute, Antiterrorism and Effective Death Penalty Act,
Pub. L. No. 104-132, 110 Stat. 1214 (1996) (stating standard
of proof in criminal cases). C.f. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252-53 (1986)
(comparing methodology in adjudicating a motion for judgment
of acquittal in a criminal case with a motion for summary
judgment in a civil case).
convict a defendant of conspiracy, the government must prove
that (1) two or more people agreed to commit an unlawful act,
and (2) the defendant knowingly and intentionally joined in
the agreement." Johnson, 592 F.3d at 754.
"For a drug-distribution conspiracy, the government must
prove that the defendant knowingly agreed -either implicitly
or explicitly-with someone else to distribute drugs."
Claybrooks, 729 F.3d at 704 (internal quotation
cases "have underscored that ordinary drug transactions
do not entail or reflect a conspiracy, for the buyer's
only purpose is to buy and the seller's only purpose is
to sell: the buyer and seller lack a shared criminal
goal." United States v. Neal, 907 F.3d 511, 515
(7th Cir. 2018) (per curiam). In other words, "evidence
of a buyer-seller relationship, standing alone, is
insufficient to support a conspiracy conviction."
United States v. Townsend, 924 F.2d 1385, 1394 (7th
Cir. 1991). Instead, we require "[e]vidence of an
agreement to advance further distribution-beyond the
initial transaction." United States v. Vulgar,
789 F.3d 807, 812 (7th Cir. 2015). "The government may
prove the existence of this agreement through circumstantial
evidence." Claybrooks, 729 F.3d at 704-05.
"nonexhaustive list of characteristics that strongly
distinguish a conspiracy from a buyer-seller
"sales on credit or consignment, an agreement to look
for other customers, a payment of commission on sales, an
indication that one party advised the other on the conduct of
the other's business, or an agreement to warn of future
threats to each other's business stemming from
competitors or law enforcement authorities."
United States v. Pereira, 783 F.3d 700, 704 (7th
Cir. 2015) (quoting Johnson, 592 F.3d at 755-56).
"We employ a totality-of-the-circumstances approach in
these cases/' "'tak[ing] into account all the
evidence surrounding the alleged conspiracy and mak[ing] a
holistic assessment of whether the jury reached a reasonable
verdict.'" Vulgar, 789 F.3d at 813 (quoting
Brown, 726 F.3d at 1002).
case, the Government presented sufficient evidence for a
reasonable jury to conclude that Mr. Hopper entered an
agreement to distribute methamphetamine in southern Illinois.
Our conclusion is supported by evidence that Mr. Hopper sold
methamphetamine on credit, or "fronted" it, to his
co-conspirators and that he engaged in pooling arrangements
with other co-conspirators to purchase large quantities of
methamphetamine for further distribution.
of repeated, "fronted" transactions can be
compelling circumstantial evidence of an agreement to
distribute drugs because it demonstrates that the defendant
"had knowingly thrown his lot in" with other
members of the conspiracy. United States v. Dortch,
5 F.3d 1056, 1070 (7th Cir. 1993) (internal quotation marks
omitted). In a fronting arrangement, "the seller becomes
the buyer's creditor, adding a dimension to the
relationship that goes beyond a spot sale for cash."
United States v. Colon, 549 F.3d 565, 569 (7th Cir.
2008). Such a relationship indicates that the defendant
"had a keen interest" in his co-conspirators'
"success at reselling" the drugs. Dortch,
5 F.3d at 1070. Although "not all credit sales can
support an inference that there was an agreement to
distribute," "when a credit sale is coupled with
certain characteristics inherent in an ongoing wholesale
buyer-seller relationship-i.e., large quantities of drugs,
repeat purchases[, ] or some other enduring arrangement-the
credit sale becomes sufficient evidence to distinguish a
conspiracy from a nonconspiratorial buyer-seller
relationship." Johnson, 592 F.3d at 756 n.5
(internal quotation marks omitted).
Hopper's trial, the Government presented evidence that he
fronted methamphetamine to Williams, Shuman, and Karnes.
Williams testified that he obtained about one to two ounces
of ice methamphetamine from Mr. Hopper "[o]ff and
on" for about one year. He stated that sometimes, he bought the
drugs outright, while other times, Mr. Hopper provided the
drugs to him "on credit," or on a
"front." Williams explained that, in this
fronting arrangement, Mr. Hopper provided him a quantity of
drugs, some of which Williams sold to others in order to pay
Mr. Hopper back for previously fronted drugs. Williams
further testified that occasionally, Mr. Hopper called
Williams and asked him to bring customers who owed Mr. Hopper
money to Mr. Hopper's house to settle their debt.