Sentencing — crack cocaine

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U.S. Court of Appeals for the 7th Circuit

Criminal

Sentencing — crack cocaine

Where the district judge equated joint activity to conspiracy in denying a motion for sentence reduction, the denial must be reversed.

“In effect the judge and the government equated ‘jointly undertaken criminal activity’ to conspiracy, and that is incorrect. ‘Conspiracy liability, as defined in Pinkerton v. United States, 328 U.S. 640, 646–48 (1946), is generally much broader than jointly undertaken criminal activity under § 1B1.3.’ United States v. Soto-Piedra, supra, 525 F.3d at 531. By agreeing with others to sell crack the defendant joined a conspiracy. And he may have agreed to help his co-conspirators achieve a goal of selling an amount of crack that would exceed 8.4 kilograms, and if so the sales of that amount (in excess of the amount he sold personally, which was the basis of his offense of conviction) would be relevant conduct of his because they would be the fruit of a criminal activity that he had jointly undertaken with his co-conspirators. But in determining the defendant’s relevant conduct the district judge did not rely on evidence that the defendant had agreed to help his co-conspirators sell crack; nor does the government in its brief rely on such evidence. The government and the district judge stop with foreseeability, and that’s not enough.”

Reversed and Remanded.

14-1158 U.S. v. Davison

Appeal from the United States District Court for the Northern District of Indiana, Moody, J., Posner, J.