United States of America v. Thomas Jones

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 20‐1405, 20‐1442, 20‐2112, 20‐2304, 20‐2420, 20‐2458,
20‐2462, 20‐2498, 20‐2499, 20‐3266, & 21‐1002
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
T HOMAS J ONES, et al.,
Defendant‐Appellants.
____________________
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:18‐cr‐00116‐JRS‐MJD — James R. Sweeney, II, Judge.
____________________
A RGUED A PRIL 20, 2022 — D ECIDED D ECEMBER 22, 2022
____________________
Before WOOD, H AMILTON, and K IRSCH , Circuit Judges.
HAMILTON , Circuit Judge. Fourteen people were charged
and convicted for a conspiracy to transport illegal drugs from
Georgia for distribution in Kokomo, Indiana. In these consol‐
idated appeals, ten defendants challenge their convictions
and/or sentences on a host of issues: Pierre Riley, Reggie Bal‐
entine, Michael O’Bannon, Michael Jones, Jason Reed, Shaun
Myers, Perry Jones, Thomas Jones, Derrick Owens, and

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2 Nos. 20‐1405, et al.
Antwon Abbott. We affirm all challenged convictions, and we
affirm the sentences of all but one defendant. We vacate the
sentence of Thomas Jones and remand his case for resentenc‐
ing. We begin with an outline of the drug conspiracy and the
procedural history of this case, adding more details later as
needed for specific issues.
I. Factual and Procedural Background
A. The Drug Distribution Conspiracy
In 2016, the Kokomo, Indiana, Drug Task Force was inves‐
tigating Reggie Balentine, Michael O’Bannon, Michael Jones,
and others for illegal drug activity. The investigation ex‐
panded when agents from the federal Drug Enforcement Ad‐
ministration joined in late 2017.
The evidence at trial showed that, from mid‐2016 to May
2018, the targeted defendants and others obtained and distrib‐
uted substantial quantities of methamphetamine, cocaine,
and heroin. Reggie Balentine, who lived in Kokomo, pooled
money from co‐conspirators in Indiana to buy the drugs from
Pierre Riley, their source in Georgia. For most shipments, Bal‐
entine and Riley arranged to have couriers drive or travel by
bus from Indiana to Georgia with cash to buy drugs and
transport them back to Kokomo. Riley or his associates would
meet the couriers, who would exchange the money for drugs
and quickly return to Indiana. When the drugs arrived in Ko‐
komo, Balentine stored them in the homes of his associates
and other locations until the drugs could be sold. Balentine
then distributed the drugs to Michael O’Bannon, Michael
Jones, Shaun Myers, Jason Reed, Derrick Owens, Perry Jones,
and Antwon Abbott.

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Nos. 20‐1405, et al. 3
In April 2018, investigators began closing in on the opera‐
tion. On April 25, 2018, officers intercepted a courier on her
way to Indiana. They seized the methamphetamine and co‐
caine she was transporting, but they did not arrest her at the
time. The drugs seized were only the first of two shipments
from one transaction arranged by Balentine. Because of the
police attention on the first courier, Myers volunteered his
girlfriend to drive to Georgia to pick up the second shipment.
Balentine and Riley agreed. Aware of the conspirators’ at‐
tempt to retrieve the second shipment, officers stopped My‐
ers’ girlfriend after she completed the exchange with Riley on
April 26, 2018. They seized the rest of the drugs.
To protect the drug trafficking operation, Riley and Balen‐
tine plotted to kill a person they suspected was a confidential
informant. They later sought help from O’Bannon, whose
home the suspected informant had allegedly robbed. Riley
and Balentine put up money for the murder and helped
O’Bannon pay his share. O’Bannon was responsible for hiring
out‐of‐state hitmen, and he met them when they arrived in
Kokomo. Officers foiled the plot by stopping O’Bannon as he
drove with the hitmen to the target’s home. Officers later
found several firearms in the hitmen’s hotel room.
On April 26, 2018, the DEA special agent in charge of the
investigation applied for a warrant to search the residences of
several conspirators, including Balentine, Abbott, and O’Ban‐
non. The searches turned up guns and drugs.
B. Pretrial Proceedings
A federal indictment charged fourteen people with con‐
spiracy to distribute controlled substances and individual
counts related to drugs, firearms, murder for hire, and money

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4 Nos. 20‐1405, et al.
laundering. Nine defendants pleaded guilty. Michael Jones,
Myers, Reed, and O’Bannon were tried together before a jury
and convicted on most charges. Abbott’s charges were sev‐
ered, and he was convicted in a separate bench trial. The dis‐
trict court then sentenced the defendants to lengthy terms in
prison.
Ten defendants have appealed, challenging decisions on
pretrial motions to suppress, jury selection, admission of trial
evidence, the sufficiency of evidence, and sentencing. We
have sorted the challenges into five major groups that follow
the sequence of the prosecution. Part II of this opinion ad‐
dresses the pretrial motions to suppress. Part III addresses a
Batson challenge to the government’s use of peremptory
strikes in jury selection. Part IV addresses a challenge to so‐
called dual‐role witness testimony at trial and an instruction
the court gave during that testimony. Part V explains why the
evidence was sufficient to support all convictions at trial. Fi‐
nally, Part VI addresses multiple sentencing issues.
II. Pretrial Motions to Suppress
We begin by reviewing the district court’s denial of two
motions to suppress. The first sought to suppress evidence
obtained through use of court‐approved wiretaps. In the sec‐
ond, Abbott sought to suppress evidence seized in a search of
his residence.
A. Motion to Suppress the Wiretap Evidence
The four defendants in the jury trial, Michael Jones, Reed,
Myers, and O’Bannon, argue that the district court erred by
denying a motion to suppress evidence obtained from use of
a wiretap, supposedly in violation of 18 U.S.C. § 2518. Before
the government can use a wiretap to gather evidence of a

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Nos. 20‐1405, et al. 5
crime, it must apply for court authorization. 18 U.S.C. § 2516;
United States v. Mandell, 833 F.3d 816, 820 (7th Cir. 2016).
Section 2518 governs the standards and procedures for ap‐
proving a wiretap. The government’s application must in‐
clude “a full and complete statement as to whether or not
other investigative procedures have been tried and failed or
why they reasonably appear to be unlikely to succeed if tried
or to be too dangerous.” § 2518(1)(c). To grant the application,
the court must find that “normal investigative procedures
have been tried and have failed or reasonably appear to be
unlikely to succeed if tried or to be too dangerous.”
§ 2518(3)(c). Evidence obtained from a wiretap that fails to
comply with federal law is inadmissible. Mandell, 833 F.3d at
820, citing § 2515.1
In February 2018, investigators sought court approval to
intercept wire and electronic communications from Balen‐
tine’s phones. Attached to the application was an affidavit
from the lead case agent. The district court authorized the in‐
itial wiretap on February 22, 2018. After that authority ex‐
pired, investigators sought approval for another wiretap in
April 2018, which the court also granted.
Several defendants moved to suppress evidence obtained
from the wiretaps. The district court denied the motions, find‐
ing that the government’s affidavits demonstrated what is
1 Defendants also assert that the intercepted conversations and text
messages were obtained in violation of their Fourth Amendment rights,
but, given the more demanding requirements of 18 U.S.C. § 2518, that ar‐
gument adds nothing to their statutory arguments. See United States v.
Giordano, 416 U.S. 505, 526−27 (1974) (grounds for suppression in Wiretap
Act included, but were not limited to, constitutional violations and likely
included a wiretap application that failed to establish probable cause).

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6 Nos. 20‐1405, et al.
sometimes described as the “necessity” for each wiretap. On
appeal, defendants challenge the court’s conclusion that the
“necessity” requirement was satisfied.
To be clear, the wiretap statute does not require literal “ne‐
cessity.” The statute “was not intended to ensure that wire‐
taps are used only as a last resort in an investigation, but ra‐
ther that they are not to be routinely employed as the initial
step in a criminal investigation.” Mandell, 833 F.3d at 821,
quoting United States v. McLee, 436 F.3d 751, 762–63 (7th Cir.
2006). The government’s burden of establishing that normal
methods have not worked or are unlikely to work or would
be too dangerous “is not great,” and we consider its support‐
ing evidence “in a practical and common‐sense fashion.” Id.,
quoting McLee, 436 F.3d at 763.
We review for an abuse of discretion the issuing judge’s
conclusion that the statute has been satisfied. McLee, 436 F.3d
at 763, citing United States v. Zambrana, 841 F.2d 1320, 1329 (7th
Cir. 1988). Defendants contend that the supporting affidavits
for both the February and April wiretap applications failed to
justify use of wiretaps.
1. The February Wiretap Application
Defendants argue that the February application contained
largely conclusory statements with insufficient factual sup‐
port and thus failed to establish that normal investigatory
tools were insufficient. They assert that those traditional
methods were in fact fruitful and permitted investigators to
begin identifying Balentine’s associates as well as some of the
locations where he was storing the controlled substances. We
have cautioned, however, that the success of traditional tech‐
niques does not prevent investigators from otherwise

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Nos. 20‐1405, et al. 7
establishing sufficient grounds for a wiretap. See, e.g., United
States v. Campos, 541 F.3d 735, 748 (7th Cir. 2008) (rejecting ar‐
gument that wiretap was not necessary because normal inves‐
tigative techniques were “working and working well”).
The investigators here had made progress with normal in‐
vestigative techniques, but the February wiretap application
and supporting affidavit established sufficient grounds to use
a wiretap. For example, the affidavit explained that physical
surveillance of Balentine’s home indicated that he conducted
drug trafficking from his home. But without electronic sur‐
veillance, investigators did not know whether Balentine
stored the drugs at his home or whether they were stored else‐
where and brought to Balentine’s home for specific transac‐
tions. Investigators observed people dropping off packages at
Balentine’s home at times that coincided with a confidential
informants’ requests for drugs, which led to their suspicion
that Balentine may not have kept the drugs in his home.
The investigators had also used mobile tracking devices,
but they were not as helpful because Balentine stayed at his
home most of the time and apparently coordinated the drug
distribution network through his phone. A stationary pole
camera outside of his home was helpful but did not show
whether visits were related to drugs.
According to the affidavit, investigators considered other
techniques, such as using an undercover agent and applying
for a search warrant, but these strategies were deemed to be
either unsafe or ineffective. The application further explained
that a wiretap was needed to help investigators determine the
identities and roles of various accomplices to the conspiracy,
the nature and methods of the drug trafficking business, and
where the drugs were stored.

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8 Nos. 20‐1405, et al.
The issuing judge did not abuse her discretion in finding
that the February affidavit was sufficient to justify use of the
wiretap. See, e.g., Campos, 541 F.3d at 747 (§ 2518 was satisfied
where search warrant was not feasible because officers did not
know where drugs were stored, continuation of physical sur‐
veillance would alert suspects to investigation, and use of
confidential informant was dangerous); McLee, 436 F.3d at 763
(affirming wiretap authorization where officers had been un‐
able to identify primary supplier or roles of conspirators in
overall scheme using normal investigatory techniques).
2. The April Wiretap Application
In April, investigators sought authorization for a second
wiretap to permit them to continue intercepting communica‐
tions from one of the phones subject to the February wiretap
and to begin intercepting communications on two more
phones used by Balentine and Michael Jones. Defendants ar‐
gue that the April affidavit failed to demonstrate why, after
the first wiretap expired, normal investigative procedures
were insufficient to further the investigation.
The April application showed that, after investigators ob‐
tained authorization for the February wiretap, they continued
to use traditional investigative techniques. The supporting af‐
fidavit explained that investigators had been using a confi‐
dential informant and that, while the informant had proved
helpful, it had become too dangerous for him to continue as‐
sisting investigators. Despite these risks, investigators at‐
tempted to find a new confidential informant. They recruited
a potential informant, but that person had only secondary
contact with the conspiracy and thus could not be as helpful.

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Nos. 20‐1405, et al. 9
The affidavit also said that officers had arrested Owens’
father and the hitmen in the murder‐for‐hire plot, but that
those individuals had provided no useful information and
“did not further the investigation in any substantial way.”
Finally, the April affidavit described the same inadequa‐
cies of traditional techniques that justified the February wire‐
tap. For example, the April affidavit explained that the inves‐
tigators were still using physical surveillance and that the
wiretap let them confirm that some of the visitors were com‐
ing to Balentine’s house for drug‐related reasons. Yet investi‐
gators were still not able to confirm the true nature of many
visits. The investigators had also obtained approval to place
GPS trackers on the phones of some known members of the
conspiracy, including Riley and Everhart. The tracking al‐
lowed them to identify and then to search Everhart’s resi‐
dence for drugs. But knowing the location of the conspirators,
without knowing what they were doing or why, limited the
value of the GPS tracking. The April affidavit thus showed
that investigators continued to use traditional investigative
techniques but that the techniques were either unsafe or lim‐
ited in their usefulness. The April affidavit also provided suf‐
ficient grounds for the district court to find that the require‐
ments of § 2518 were satisfied. We affirm the district court’s
denial of the motion to suppress evidence obtained from the
use of the wiretaps to intercept communications between the
defendants.
B. Abbott’s Motion to Suppress
On April 26, 2018, the lead DEA agent applied for war‐
rants to search the residences of several members of the drug
conspiracy. The application included a reference to a North
Philips Street address that was designated as the residence of

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10 Nos. 20‐1405, et al.
Antwon Abbott. Officers searched that residence and seized
methamphetamine.
Abbott moved to suppress evidence seized in the search
on the ground that the warrant was not supported by proba‐
ble cause. He also moved for an evidentiary hearing to resolve
a dispute about whether the home searched was his residence
at relevant times. The district court denied both motions, find‐
ing that the search warrant affidavit established probable
cause and that an evidentiary hearing was not required be‐
cause there was no dispute of material fact that would affect
the outcome of his motion.
1. Motion to Suppress
The Fourth Amendment guarantees the right to be free
from unreasonable searches and seizures, and searches based
on warrants require probable cause. To establish probable
cause, a search warrant affidavit must set forth facts “suffi‐
cient to induce a reasonably prudent person to believe that a
search thereof will uncover evidence of a crime.” United
States v. Johnson, 867 F.3d 737, 741 (7th Cir. 2017), quoting
United States v. Gregory, 795 F.3d 735, 741 (7th Cir. 2015). We
give “great deference” to an issuing judge’s probable cause
determination. Id., quoting United States v. Robinson, 724 F.3d
878, 884 (7th Cir. 2013). We review de novo a district court’s
legal conclusions in denying a motion to suppress, and we re‐
view its factual findings for clear error. Id.
Abbott challenges the district court’s probable cause de‐
termination on two grounds. First, he argues that the affidavit
failed to establish that the North Philips Street address was
his residence. Second, he argues that the information in the

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Nos. 20‐1405, et al. 11
affidavit indicating that there may be drugs on the premises
was stale and otherwise insufficient.
The agent’s affidavit offered sufficient facts to infer that
the North Philips Street address was in fact Abbott’s resi‐
dence. The affidavit noted that on March 11, 2018, Abbott told
Balentine to deliver drugs he had purchased to “my crib.” The
affidavit explained that “my crib” was a reference to Abbott’s
residence on North Philips Street. Then, on April 8, 2018, Ab‐
bott gave Balentine the North Philips Street address after Bal‐
entine asked where Abbott was and said that he was in the
area and could stop by.
Officers had also conducted surveillance of the North
Philips Street address for weeks, observing Abbott there on
April 11, 2018. In the week before the warrant application was
submitted, officers also saw Abbott’s car in the driveway. To‐
gether, these facts were sufficient for the district court to find
that the North Philips Street address was probably Abbott’s
residence at the time of the search.
Abbott also argues that the affidavit did not show proba‐
ble cause to believe contraband would be found at his home
on the day of the search because the evidence in the affidavit,
especially the reference to the March 11 drug transaction, was
stale. When making a probable cause determination, a court
must consider the age of the information in the warrant affi‐
davit. United States v. Seiver, 692 F.3d 774, 777 (7th Cir. 2012)
(“‘Staleness’ is highly relevant to the legality of a search for a
perishable or consumable object, like cocaine.…”). But the age
of the information alone does not require a court to deny a
warrant if “other factors indicate that the information is relia‐
ble and that the object of the search will still be on the prem‐
ises.” Edmond v. United States, 899 F.3d 446, 454 (7th Cir. 2018),

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12 Nos. 20‐1405, et al.
quoting United States v. Lamon, 930 F.2d 1183, 1188 (7th Cir.
1991).
For example, when the affidavit describes “ongoing, con‐
tinuous criminal activity, the passage of time becomes less
critical.” Edmond, 899 F.3d at 454, quoting Lamon, 930 F.2d at
1188. We have such ongoing activity here. The affidavit re‐
ferred to intercepted communications between Abbott and
Balentine on April 10, April 11, and April 16 in which Abbott
ordered drugs. That last communication occurred just ten
days before the warrant application.
In addition, courts making probable cause determinations
may rely on an officer’s experience with drug trafficking op‐
erations and her resulting belief that indicia of drug traffick‐
ing will likely be found at a suspect’s home. E.g., United
States v. Zamudio, 909 F.3d 172, 176–77 (7th Cir. 2018) (affirm‐
ing probable cause finding based in part on officer’s sworn
statements that drug traffickers typically store drug parapher‐
nalia, drug money, and records of their dealings at their
homes). In the affidavit here, the lead agent said that in previ‐
ous drug investigations, he had found evidence of drug traf‐
ficking and other contraband when conducting residential
searches. The agent’s experience provided additional support
for the probable cause determination. The district court did
not err in denying the motion to suppress evidence obtained
from officers’ execution of the search warrant.
2. No Evidentiary Hearing
Abbott also argues that the district court should at least
have held an evidentiary hearing to decide whether and when
he actually lived at the North Philips Street address. A de‐
fendant bears the burden of showing the need for an

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Nos. 20‐1405, et al. 13
evidentiary hearing on a motion to suppress. A hearing is re‐
quired only “when a substantial claim is presented and there
are disputed issues of material fact that will affect the out‐
come of the motion.” United States v. Curlin, 638 F.3d 562, 564
(7th Cir. 2011).
Abbott has not offered reason to think that the district
court was misled by information in the agent’s affidavit, nor
has he offered a genuine dispute about where he lived and
when. At oral argument, he claimed that certain details re‐
lated to the March 11 transaction with Balentine were left out
of the affidavit. But the affidavit established probable cause
for the search even without reference to the March 11 transac‐
tion. The district court did not abuse its discretion by denying
Abbott’s motion without an evidentiary hearing.
III. The Batson Challenge
Moving to the trial itself, defendants O’Bannon, Michael
Jones, Reed, and Myers argue that the district court erred by
denying a Batson challenge to the government’s use of per‐
emptory strikes to exclude two African American jurors.
In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme
Court held that the Constitution forbids the government from
exercising a peremptory strike against a juror solely on ac‐
count of the juror’s race. The analysis for such claims of pur‐
poseful discrimination involves three steps. First, the defend‐
ant “must make a prima facie case that the peremptory strike
was racially motivated.” United States v. Lovies, 16 F.4th 493,
499 (7th Cir. 2021). The burden at step one is “low” and re‐
quires “only circumstances raising a suspicion that discrimi‐
nation occurred.” Id., quoting United States v. Cruse, 805 F.3d
795, 807 (7th Cir. 2015). Second, the prosecution must then

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14 Nos. 20‐1405, et al.
provide a non‐discriminatory explanation for its decision to
strike the juror. The persuasiveness of that justification is not
relevant at step two. Id. at 500. Third, the trial court must de‐
termine “whether the opponent of the strike has carried his
burden of proving purposeful discrimination.” Id., quoting
Cruse, 805 F.3d at 807. The key question is “whether a strike
was racially motivated,” and courts must assess “the hon‐
esty—not the accuracy—of a proffered race‐neutral explana‐
tion.” Id., quoting Cruse, 805 F.3d at 808 (emphasis in original).
We review a district court’s Batson findings for clear error
and give deference to its credibility determinations. Lovies, 16
F.4th at 500. We will affirm the district court’s findings “unless
‘we arrive at a definite and firm conviction that a mistake has
been made.’” Id., quoting Cruse, 805 F.3d at 806.
Defendants target step three of the Batson analysis, so we
focus our review there. They argue that the district court
made two distinct errors: (1) at step three, the court did not
consider the rate at which the government struck African
Americans, and (2) the government’s explanations for the
strikes were obviously pretextual.
A. Consideration of Statistical Evidence
First, defendants assert that the district court was required
to consider the government’s “strike rates” at step three of the
Batson analysis and that its failure to do so was reversible er‐
ror. Here, after 29 prospective jurors were excused for hard‐
ship or other cause, 42 jurors remained. Of those remaining,
seven were African American. The government used three of
its six peremptory strikes on the remaining African Ameri‐
cans. This resulted in the exclusion of 43% of eligible African

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Nos. 20‐1405, et al. 15
American venire members compared to just 13% of white ve‐
nire members.
Defendants recognize that “more than ‘bare statistics’ is
required to prove purposeful discrimination.” Mahaffey v. Ra‐
mos, 588 F.3d 1142, 1146 (7th Cir. 2009), quoting Miller‐El v.
Dretke, 545 U.S. 231, 241 (2005). They insist, however, that the
court must at least consider such statistical evidence, which
they assert here “overwhelmingly indicate[d]” discrimina‐
tory intent. They rely on our decision in Harris v. Hardy, 680
F.3d 942 (7th Cir. 2012), and in particular our statement that
the “State’s disproportionate use of its peremptory challenges
to exclude African Americans must be taken into account” and
“given appropriate weight.” Id. at 951, 953 (emphasis added).
We do not read Harris, though, to go so far as to mandate
as a matter of law the reversal of a district court’s Batson de‐
termination solely because it did not address statistical evi‐
dence of discriminatory intent at step three. In Harris, the state
used at least 75% of its preemptory strikes to remove at least
70% of the prospective jurors who were African American.
680 F.3d at 951. The problem was that the state courts did not
even consider that pattern of strikes in assessing the credibil‐
ity of the prosecutor’s explanations at step three. Id. The
courts in Harris instead reviewed each strike in isolation, ig‐
noring the pattern of strikes against African Americans, which
gave rise to an inference of discriminatory intent. Id. at 951–
52. It was not just the failure to give weight to the pattern of
strikes alone, however, that led us to grant habeas relief under
Batson. We said that the implausibility of the state’s proffered
reasons for the strikes was “[e]ven more compelling.” Id. at
953.

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16 Nos. 20‐1405, et al.
It is important for courts to consider all “circumstantial
and direct evidence of intent as may be available,” including
a pattern of peremptory strikes, that may support an inference
of discriminatory intent. Harris, 680 F.3d at 952, quoting Bat‐
son, 476 U.S. at 93. We have not deferred to a district court’s
Batson findings of fact when it “incorrectly recount[ed] much
of the record and fail[ed] to note material portions.” United
States v. Stephens, 514 F.3d 703, 713 (7th Cir. 2008) (reversing
grant of new trial under Batson; district court’s “central error
was its failure to take into account the government’s non‐dis‐
criminatory explanations for its peremptory challenges,”
leading it to ignore strategic race‐neutral reasons for the
strikes).
We are not persuaded that the district court misunder‐
stood or misstated the record. The court noted the strike rates
at step one. The rates were also relevant at step three and
could have lent modest support to defendants’ challenge. But
the fact that the court did not repeat the overall strike rates a
little later at step three does not require reversal of its Batson
determination as a matter of law. The statistical evidence is
equivocal at best, given the small numbers in comparison to
Harris. Only two strikes are disputed. And as we explain next,
the court properly focused on the credibility of the govern‐
ment’s explanations for those strikes.
B. The Government’s Explanations
1. Juror 52
As noted, the government used three of its six peremptory
strikes against African American venire members. Two are
challenged on appeal: Juror 52 and Juror 57. At Batson step
two, the government offered two race‐neutral explanations

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Nos. 20‐1405, et al. 17
for striking Juror 52. First, it expressed concern about his abil‐
ity to stay focused during the trial because he had expressed
concern about losing clients if he were to miss work to serve
on the jury. Second, the government said it doubted that Juror
52 could be neutral after he made an “agenda‐driven com‐
ment” in voir dire. At step three, the court found that the gov‐
ernment’s race‐neutral explanations for striking Juror 52 were
“credible.”
Defendants contend that neither of the stated reasons for
striking Juror 52 is credible. First, they argue that the govern‐
ment’s failure to strike Juror 52 for hardship or cause under‐
mines its argument that prosecutors were concerned he
would be unable to focus on the trial. They also insist that the
government’s concerns over Juror 52’s ability to focus were
based on mere speculation. Second, defendants argue that
neither the court nor the government sufficiently explained
why Juror 52’s comments during voir dire suggested he had
“an agenda.”
Defendants bore the burden at step three of proving that
the government’s justifications for striking Juror 52 were a
pretext, thus permitting an inference of discrimination. The
district court reasonably concluded that they failed to meet
their burden.
The district court accepted the government’s explanation
that it was concerned that Juror 52 would be unable to focus
on the trial given his apprehensions about missing work. Ju‐
ror 52 worked in a client‐focused field, selling musical instru‐
ments, and he expressed concern that serving on the jury
would negatively affect his business. A court could reasona‐
bly find that Juror 52’s apprehension provided a legitimate
justification for exercising a peremptory strike against him.

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18 Nos. 20‐1405, et al.
The government’s failure to challenge Juror 52 for cause
(hardship) does not, on its own, necessarily undermine its re‐
liance on a related argument to justify a peremptory strike.
See Hernandez v. New York, 500 U.S. 352, 362–63 (1991) (“While
the reason offered by the prosecutor for a peremptory strike
need not rise to the level of a challenge for cause, the fact that
it corresponds to a valid for‐cause challenge will demonstrate
its race‐neutral character.”) (internal citation omitted).
Nor did the district court err in rejecting defendants’ at‐
tempt to compare Juror 52 to Juror 59, who was not struck.
One way for defendants to satisfy their burden at Batson step
three is to identify a similarly situated, non‐African American
juror to whom the government’s proffered reason for striking
Juror 52 also applied but who was not struck. Miller‐El, 545
U.S. at 241; Harris, 680 F.3d at 949. Defendants argued that Ju‐
ror 59 also expressed concerns about her work situation. The
district court reasonably rejected the comparison. Juror 59
said she would not be paid after ten days of missing work, but
she expressed no concerns about losing her job. By contrast,
Juror 52 said that he worked in sales, which required building
“rapport,” and he expressed fears that missing work would
cause him to lose clients.
The district court also did not err in accepting as credible
the government’s explanation that it feared Juror 52’s state‐
ments in voir dire reflected possible bias. During jury selec‐
tion, defense counsel asked potential jurors whether they
could commit to the idea that “until the end of the trial, [de‐
fendants] are constantly considered not guilty until the gov‐
ernment proves otherwise.” In response, Juror 52 said,
“you’re saying they’re considered to be not guilty. I would say
they’re not guilty, not considered anything.” Defense counsel

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Nos. 20‐1405, et al. 19
asked Juror 52 to repeat his comment, and Juror 52 said,
“You’re saying as they’re sitting here, they are considered to
be not guilty. Why aren’t they just not guilty?” to which de‐
fense counsel replied, “Correct.”
Before the district court, the government said that Juror
52’s comments were “agenda‐driven,” and it justified striking
him on the grounds that it “wanted to have a fair trial.” We
can understand how the government might reasonably inter‐
pret Juror 52’s question why defendants at trial are merely
“considered” not guilty rather than “just not guilty” as indi‐
cating a potential slant in favor of the defense. The govern‐
ment might have been more explicit in its explanation, but we
have approved reasons given by the government that rest on
“intuitive assumptions.” United States v. Jordan, 223 F.3d 676,
687 (7th Cir. 2000), quoting United States v. Williams, 934 F.2d
847, 850 (7th Cir. 1991). Without other evidence that disputed
or called into question the hardship and potential bias offered
to explain the government’s strike of Juror 52, the district
court did not clearly err in rejecting the defendants’ Batson
challenge to that strike.
2. Juror 57
At Batson step two, the government offered several race‐
neutral reasons for striking Juror 57. Her oldest son was in‐
carcerated at the time, and she believed her youngest son’s
schizophrenia was caused by his drug addiction. The govern‐
ment also noted that the trial would create potential hard‐
ships for Juror 57, who needed flexibility to care for her
youngest son. Juror 57 had explained that her employer al‐
lowed her to leave on short notice to care for her son, but the
government cautioned that providing such latitude “certainly
would be problematic in this environment.”

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20 Nos. 20‐1405, et al.
At step three, the court initially upheld the Batson chal‐
lenge to the strike of Juror 57, admitting that it was a “tougher
call.” The court at first found persuasive defendants’ argu‐
ment that Juror 57’s speculation that drugs caused her young‐
est son’s schizophrenia made her predisposed against the de‐
fense and thus undermined the government’s reliance on that
issue as an explanation for its strike. Upon the government’s
request for reconsideration of that decision, however, the
court changed course and overruled the Batson challenge. The
court found that the government attorneys appeared “earnest
and determined to express a race‐neutral reason.” The court
also observed that no non‐African American jurors were situ‐
ated similarly to Juror 57. The court then also struck Juror 57
sua sponte for hardship based on her need to care for her son.
Defendants do not challenge on appeal the district court’s
decision to remove Juror 57 for cause based on the hardship
she would face in caring for her younger son during trial. We
would find no abuse of discretion in any event, given the le‐
gitimate need to avoid disruptions at trial and to ensure that
all jurors are able to appear each day. That conclusion seems
to render the Batson issue moot with respect to Juror 57. Even
if the Batson challenge were not moot, the district court did
not clearly err in finding credible the government’s reasons
for striking Juror 57.
First, the fact that a juror has a family member in prison
can be a valid, race‐neutral justification for a strike. United
States v. Hendrix, 509 F.3d 362, 370 (7th Cir. 2007); United
States v. Lewis, 117 F.3d 980, 983 (7th Cir. 1997). The court
could reasonably credit the government’s explanation for its
strike: that Juror 57’s son was incarcerated, which might bias
her against the government.

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Nos. 20‐1405, et al. 21
As with Juror 52, defendants offer no similarly situated
non‐African American juror who was not struck. For the first
time on appeal, however, defendants attempt to offer as a
comparator a juror who said in voir dire that she did not cur‐
rently have alternative childcare to take her son to school in
the morning on a “couple days throughout the length of the
trial,” which might cause her to run late on those days. We
agree with the government, however, that those circum‐
stances could be accommodated more easily than Juror 57’s.
Juror 57 said that the difference between being at trial and at
work was that, at work, “they’re aware of my situation with
my son [and] … if I have to leave, they usually make accom‐
modation for that and tell me to leave if there’s an emergency
with him.” Juror 57’s situation reflected a need for flexibility
that would not work well in the environment of a trial, espe‐
cially a long, multi‐defendant trial.
Some prospective jurors overestimate the burdens of serv‐
ing, but others underestimate the burden. They also may not
appreciate how disruptive accommodations might be for eve‐
ryone else involved in the trial. The district court did not err
in finding that explanation from the government credible as
well. Whether the Batson challenge was rendered moot by the
court’s dismissal for cause or was properly denied as without
merit, Juror 57’s dismissal was not a reversible error.
IV. Admission of Case Agent’s Trial Testimony
During the jury trial, a DEA special agent who led the in‐
vestigation offered so‐called “dual‐role” testimony, offering
both expert opinions from his general experience in law en‐
forcement and lay testimony based on the specific insights he
gained investigating this conspiracy. Defendants Myers,

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22 Nos. 20‐1405, et al.
Reed, Michael Jones, and O’Bannon objected at trial and re‐
new their challenge on appeal on two main grounds.
First, defendants argue that the district court abused its
discretion when it permitted the agent’s dual‐role testimony
and did not put in place sufficient procedures to minimize the
dangers of such testimony. Second, they contend that the dis‐
trict court erred when it allowed the agent to interpret whole
telephone conversations rather than limiting the testimony to
interpreting specific “code words” that the jury may not have
understood. We review a district court’s decision to admit or
exclude expert testimony for abuse of discretion. United
States v. Jett, 908 F.3d 252, 265 (7th Cir. 2018).
A. Dual‐Role Testimony
We have permitted dual‐role (both expert and fact) wit‐
ness testimony in cases “where experienced law enforcement
officers were involved in the particular investigation at issue.”
United States v. Parkhurst, 865 F.3d 509, 518 (7th Cir. 2017),
quoting United States v. York, 572 F.3d 415, 425 (7th Cir. 2009).
We have assumed, however, that such dual‐role testimony
can be confusing to jurors. Id.
In Jett, we clarified the procedures that district courts
should consider using to reduce the risks posed by dual‐role
testimony. For example, we explained that when the district
court learns the prosecution will be presenting dual‐role tes‐
timony from a case agent, “it should first encourage the gov‐
ernment to present the expert and lay testimony separately,”
to avoid the confusion that might be created by switching
back and forth. 908 F.3d at 269. When the expert portion of the
testimony begins, the court should allow the government to
establish the agent’s qualifications and then “instruct the jury

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Nos. 20‐1405, et al. 23
that the testimony it is about to hear is the witness’s opinion
based on training and experience, not firsthand knowledge,
and that it is for the jury to determine how much weight, if
any, to give that opinion.” Id. at 269–70.
The goal is to ensure that the jury understands that expert
opinion testimony is different and should be evaluated differ‐
ently than factual testimony. Id. at 270. We also provided an
example of a helpful cautionary jury instruction addressing
this issue. Id., quoting United States v. Garrett, 757 F.3d 560, 570
(7th Cir. 2014).
In this case the district court at times did not follow the
procedures we suggested (but did not mandate) in Jett. In par‐
ticular, the court’s cautionary instruction about the dual‐role
testimony was problematic, as explained next. But defendants
have not persuaded us that they were prejudiced by the
court’s handling of the agent’s testimony. We find no reversi‐
ble error, though district courts should not use the instruction
given in this trial as a model.
1. The Cautionary Instruction
Defendants asked the court to provide a cautionary in‐
struction like that in Jett to address the agent’s dual‐role testi‐
mony and to help the jury distinguish between the different
forms of testimony he would provide. The court offered to
give an instruction that mirrored the language we approved
in Jett:
You’re hearing the testimony of [the case agent],
who will testify to both facts and opinions. Each
of these types of testimony should be given the
proper weight. As to the testimony to facts, con‐
sider the factors discussed earlier in the

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24 Nos. 20‐1405, et al.
preliminary instructions … As to the testimony
on opinion, you do not have to accept the
agent’s opinion. In deciding how much weight
to give it, you should consider the witness’s
qualifications and how he reached his conclu‐
sions, along with the other factors discussed in
these instructions for weighing the credibility of
witnesses.
See Jett, 908 F.3d at 270. Neither the government nor defend‐
ants objected to that language. Because defendants approved,
the government argues that any challenge to the instruction
on appeal is waived.2
If the district court had given the instruction the defend‐
ants approved, we would agree. But the instruction the court
actually gave was not what the parties approved. The actual
instruction was improvised and confusing. Of greatest con‐
cern to us, it included an unexpected summary of the court’s
findings on the factors used to determine the admissibility of
expert testimony under Federal Rule of Evidence 702 and
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
2 The government also argues that any cross‐references in defendants’
briefs to their appendices as support for their challenge to the testimony
are waived and should not be considered. See DeSilva v. DiLeonardi, 181
F.3d 865, 866 (7th Cir. 1999) (refusing to consider arguments that were
adopted by reference but not actually made in appellate briefs because
“adoption by reference amounts to a self‐help increase in the length of the
appellate brief”). The defendants did not, however, include new argu‐
ments in their appendices. Instead, they used the appendices to organize
factual examples that they referenced in their briefs. Given the volume of
material, that was a reasonable way to present the issue and did not give
the defense an unfair advantage. We have considered those examples in
our review of this issue.

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Nos. 20‐1405, et al. 25
(1993), phrased as an endorsement of the testimony. Defend‐
ants’ approval of the proposed instruction did not prevent
them from challenging on appeal the materially different in‐
struction actually given.
In relevant part, emphasis ours, the district court in‐
structed the jury:
Now, you may recall that prior to the break, the
government tendered [the case agent] as an ex‐
pert. And as you may recall from when we dis‐
cussed [the police captain] yesterday, that based
on certain qualifications, to include specialized
knowledge, experience, education and training,
as weʹve just heard about this morning with re‐
spect to [the case agent] and with respect to [the
police captain] yesterday, that they can be ten‐
dered as witnesses if their testimony will be helpful
to the jury to determine a fact at issue, which we
found yesterday with [the police captain], which I
think is the case today with [the case agent] with re‐
spect to code words. We talked about code words.
We’ve heard again this morning on the amount
of data that the agent has considered and his ca‐
reer as well as in this case in particular and the
same with [the police captain]. The testimony will
be the product of reliable principles and methods,
which is basically their experience in this case, and
that they have reliably applied those principles and
methods to the facts in this particular case. So we
think that this ‐‐ the Court thinks that this testimony
will be helpful to you.

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26 Nos. 20‐1405, et al.
We are particularly concerned by the court’s reference to
its findings on the Rule 702 and Daubert factors. The judge
told the jury in so many words that he had determined that
the agent’s testimony would be helpful and that the testimony
was the product of reliable principles and methods.
Under Rule 702 and Daubert, the district court serves as a
“gatekeeper” to prevent unreliable and irrelevant evidence
from reaching the jury, but the district court does not “take
the place of the jury to decide ultimate issues of credibility
and accuracy.” Lapsley v. Xtek, Inc., 689 F.3d 802, 805, 809 (7th
Cir. 2012). “If the proposed expert testimony meets the Daub‐
ert threshold of relevance and reliability, the accuracy of the
actual evidence is to be tested before the jury with the familiar
tools of ‘vigorous cross‐examination, presentation of contrary
evidence, and careful instruction on the burden of proof.’” Id.
at 805, quoting Daubert, 509 U.S. at 596.
We have not been directed to other cases in which a judge
disclosed his or her Rule 702 or Daubert findings to a jury, let
alone given such an endorsement of the witness’s testimony.
The district court’s instruction improperly endorsed the case
agent’s testimony by indicating that the court had already
found his testimony to be reliable, relevant, and helpful. This
type of explicit judicial endorsement of a witness’s testimony
was not appropriate. Such an endorsement can be even riskier
with dual‐role testimony, where there is already a risk that
the jury “might be smitten by an expert’s ‘aura of special reli‐
ability’ and therefore give his factual testimony undue
weight.” York, 572 F.3d at 425, quoting United States v. Brown,
7 F.3d 648, 655 (7th Cir. 1993).
During the trial, however, defendants did not object to the
court’s improvised changes to the agreed instruction.

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Nos. 20‐1405, et al. 27
Accordingly, we could reverse only if the court’s instruction
amounted to plain error. See generally Fed. R. Crim. P. 30(d)
& 52(b); United States v. Olano, 507 U.S. 725 (1993). The instruc‐
tion actually given was an error, and the error was plain. But
defendants have not persuaded us that the error affected their
substantial rights or that we should exercise our discretion to
set aside the results of the trial on this basis. See id. at 732.
As a general rule, district judges should avoid the sort of
endorsement of a witness that occurred here. The substance
of the challenged testimony here, however, simply was not
that important or controversial. If defendants had thought the
unexpected endorsement in the instruction was important,
they had every right and would have had every reason to
raise the issue with the district judge. They could have asked
for an immediate corrective instruction disavowing the ex‐
plicit endorsement of the agent’s opinion testimony. We are
confident that the jury could have understood such a correc‐
tion. Defendants did not do so. Moreover, the evidence
against the defendants was strong, and we are not persuaded
that any specific testimony by the agent was so critical as to
cause us to question the reliability of the jury’s ultimate ver‐
dicts. We decline to reverse on this basis.
2. Structure of the Testimony
In addition to their criticism of the court’s jury instruction,
defendants assert that the government’s questioning of the
case agent did not clearly distinguish the capacity in which he
was testifying. They cite several portions of the trial transcript
where the government did not preface each question with a
specific reference to the agent’s own case investigation or his
general expertise in the field. For example, the government
referred to intercepted communications between O’Bannon

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28 Nos. 20‐1405, et al.
and Balentine and then simply asked the agent: “What did
you understand that to mean?” Similarly, the government
quoted intercepted communications between Balentine and
Myers and then asked: “What did you understand that to be
a reference to?”
Failure to ensure that testimony is structured to provide a
clear distinction between the different capacities in which a
witness is testifying can pose a problem. For example, in York,
we acknowledged that the government had “started off well”
in its examination of the officer by prefacing its questions with
phrases like “based on your experience in crack cocaine inves‐
tigations,” which indicated a focus on the witness’s expert
perspective. 572 F.3d at 426. But “things got murky” when the
government asked questions about the specific investigation
and then immediately inquired into the meaning of general
code words. Id. More concerning was the government’s pref‐
acing of questions: “Based on your experience of crack co‐
caine investigations and this investigation in particular.” Id. (em‐
phasis in original). That lumped the two capacities together.
We held in York that the district court erred in admitting re‐
sponses to a few specific questions in part because the gov‐
ernment’s phrasing of the questions likely confused the jury.
We said it was difficult to discern whether the witness’s inter‐
pretation of “code words” was based on his expertise or his
work on that particular investigation, though we ultimately
found the error harmless. Id. at 429–30.
Here, too, the government did not include a qualifier in
every question to clarify in which capacity the case agent was
testifying. But from our reading of the transcript, we are con‐
fident that the jury could follow the nature of the agent’s tes‐
timony based on the flow of questioning. For example, the

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Nos. 20‐1405, et al. 29
question that immediately preceded the one about O’Bannon
and Balentine’s conversation included a “through this inves‐
tigation” qualifier. The last properly prefaced question before
the one defendants cite regarding the conversation between
Balentine and Myers was more distant, about two pages’
worth of questions. But again, the line of questioning there
was focused on the agent’s work on this particular investiga‐
tion. The jury should have been able to understand the ques‐
tion in context.
The government also tended to structure its questioning
so that it asked several questions at a time about the agent’s
general expertise or his work in this specific investigation ra‐
ther than switching back and forth more frequently. It also
tried to indicate clearly when it was transitioning from one
perspective to another. For instance, the government began its
inquiry about the agent’s general experience with “I would
like to discuss with you your knowledge based upon your
training and experience and what you’ve learned in your ca‐
pacity as a law enforcement officer … not anything specific to
this case, okay?” Then, when it wanted to focus on case‐spe‐
cific questions, it explained, “I would like to, if I may at this
time, now return your attention and your testimony to ques‐
tions based solely on your involvement in this investigation
… and move away from your opinions based upon your ex‐
pertise and training, okay?” These are the sorts of clear signals
that we have deemed helpful in managing dual‐role testi‐
mony.
3. Prejudice
Considering the case agent’s testimony as a whole, we
conclude that the district court did not commit reversible er‐
ror in permitting the dual‐role testimony. The court’s

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30 Nos. 20‐1405, et al.
handling of the testimony was at times confusing, and it did
not implement our suggested precautions as well as possible.
And, as discussed above, we are troubled by the cautionary
jury instruction, which improperly signaled to the jury that
the judge deemed the case agent’s testimony reliable and
helpful. But defendants simply have not shown that any er‐
rors in the presentation of the agent’s dual‐role testimony
were likely to have caused unfair prejudice to them. See York,
572 F.3d at 429–30 (court’s failure to consistently implement
protective procedures for the dual‐role witness testimony was
harmless error given otherwise “overwhelming” evidence of
guilt). Without grounds for thinking that the errors likely af‐
fected the jury’s verdicts, we find no reversible error.
B. Interpretation of Whole Messages
Defendants also maintain that the court abused its discre‐
tion when it permitted the case agent to interpret whole tele‐
phone conversations instead of limiting his testimony to indi‐
vidual words or phrases. In support, they point to questions
like: “Mr. Riley says, ‘We’ll pay for it.’ What did you under‐
stand that to mean?” Defendants acknowledge that we have
often allowed expert witnesses to interpret code words. See,
e.g., United States v. Are, 590 F.3d 499, 512 (7th Cir. 2009); York,
572 F.3d at 423–24. But they assert that the case agent’s testi‐
mony here was a far cry from such accepted testimony be‐
cause he was not interpreting individual words and phrases
but was instead interpreting entire conversations, even when
no interpretation was required.
We agree with the government that the agent’s challenged
interpretations were offered not as expert testimony but as lay
testimony based on his work with this specific investigation.
See United States v. Cheek, 740 F.3d 440, 447 (7th Cir. 2014)

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Nos. 20‐1405, et al. 31
(“When a law enforcement officer testifies about the meaning
of drug code words used by defendants based on personal
knowledge obtained from the investigation of those defend‐
ants, the officer is testifying as a lay witness.”).
Asking a case agent to testify about his “impressions” of
intercepted communications poses an avoidable risk that the
agent will invade the jury’s province. Such testimony on di‐
rect can also prompt argumentative cross‐examination. That’s
a fair response to argumentative direct testimony, but there
are usually better ways to spend a jury’s time.
In a similar case, however, we declined to reverse after an
agent involved in the investigation testified about his “im‐
pressions” of intercepted conversations based on his interpre‐
tation of conspirators’ use of code words. In United States v.
Rollins, 544 F.3d 820 (7th Cir. 2008), the prosecutor had asked,
for example, for the agent’s “impression of what it means for
them to say they are going to go have a drink at 10:30 to 11:00
o’clock?” Id. at 830–31. We held that the testimony was
properly admitted as lay testimony. It was rationally based on
the agent’s “first‐hand perception of the intercepted phone
calls” and assisted the jury in determining whether the ele‐
ments of the charge had been proven. Id. at 831–32. We em‐
phasized that the “impressions” testimony was particularly
useful there because the conspirators did not use typical drug
words but instead made up code words as they went along.
Id. at 832.
Here, the case agent’s testimony did not amount to re‐
versible error solely because it was not limited to the interpre‐
tation of specific code words and phrases. As in Rollins, the
agent testified to his perception of the conversations in a way
that may have been useful to the jury. And, even if some of

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32 Nos. 20‐1405, et al.
the government’s questions risked invading the province of
the jury, defendants have not shown that they were preju‐
diced as a result, such as by offering examples of communica‐
tions that the agent misunderstood. In light of the considera‐
ble evidence in the record of defendants’ guilt, any error aris‐
ing from the case agent’s “impressions” testimony was harm‐
less. See Jett, 908 F.3d at 267 (holding that even if district court
had abused discretion in admitting testimony interpreting de‐
fendants’ text messages, error was harmless where other evi‐
dence was “plenty persuasive” of defendants’ guilt). We find
no reversible error in the admission of the case agent’s testi‐
mony.
V. Sufficiency of the Evidence
Defendants Michael Jones, Reed, and Myers (but not
O’Bannon) contend that the district court should have
granted their motions for judgment of acquittal for insuffi‐
cient evidence. All three contest their convictions on Count 1
for conspiracy to distribute and to possess controlled sub‐
stances with the intent to distribute. 21 U.S.C. §§ 841(a)(1) &
846. Michael Jones also challenges his convictions on Count
14, possession with intent to distribute controlled substances,
21 U.S.C. § 841(a)(1), and Count 20, laundering of monetary
instruments, 18 U.S.C. § 1956(a)(1)(A)(i).
In considering challenges to the sufficiency of the evi‐
dence, we “afford great deference to a jury’s verdict of convic‐
tion” and review the evidence in the light most favorable to
the government. United States v. Godinez, 7 F.4th 628, 638 (7th
Cir. 2021). We will overturn a conviction only when “the rec‐
ord is devoid of evidence from which a reasonable jury could
find guilt beyond a reasonable doubt.” Id., quoting United
States v. Khan, 937 F.3d 1042, 1055 (7th Cir. 2019). While a

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Nos. 20‐1405, et al. 33
defendant faces a significant hurdle in challenging his convic‐
tion, “the height of the hurdle depends directly on the
strength of the government’s evidence,” for we recognize that
“a properly instructed jury may occasionally convict even
when it can be said that no rational trier of fact could find guilt
beyond a reasonable doubt.” United States v. Moreno, 922 F.3d
787, 793 (7th Cir. 2019), quoting United States v. Garcia, 919
F.3d 489, 496–97 (7th Cir. 2019), quoting in turn Jackson v. Vir‐
ginia, 443 U.S. 307, 317 (1979).
A. Count 1 Conspiracy
Count 1 charged defendants with conspiring to possess
with the intent to distribute and to distribute controlled sub‐
stances. To convict a defendant of a drug 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.” United States v. Hi‐
dalgo‐Sanchez, 29 F.4th 915, 924 (7th Cir. 2022), quoting United
States v. Hopper, 934 F.3d 740, 754 (7th Cir. 2019). In a drug‐
distribution conspiracy, like that charged here, there must be
“proof that the defendant knowingly agreed—either implic‐
itly or explicitly—with someone else to distribute drugs.”
United States v. Thomas, 845 F.3d 824, 830 (7th Cir. 2017), quot‐
ing United States v. Johnson, 592 F.3d 749, 754 (7th Cir. 2010).
While there may be an express agreement, the government
most often relies on circumstantial evidence. We consider the
totality of the circumstances to determine whether the evi‐
dence supported the verdict. Id.
A challenge for the prosecution in drug‐distribution con‐
spiracies is that “characteristics inherent in any ongoing
buyer‐seller relationship will also generally suggest the exist‐
ence of a conspiracy.” Johnson, 592 F.3d at 754. For example,

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34 Nos. 20‐1405, et al.
both a typical buyer‐seller relationship and a conspiracy may
involve “sales of large quantities of drugs, repeated and/or
standardized transactions, and a prolonged relationship be‐
tween the parties.” Id. But the existence of a routine buyer‐
seller relationship alone is not sufficient to establish a conspir‐
acy. Moreno, 922 F.3d at 794; see also United States v. Pulgar,
789 F.3d 807, 812 (7th Cir. 2015) (explaining that in drug‐dis‐
tribution conspiracy cases “we will also overturn a conviction
when the plausibility of a mere buyer‐seller arrangement is
the same as the plausibility of a drug‐distribution conspir‐
acy”).
To prove a conspiracy, as opposed to a mere buyer‐seller
relationship, “the government must offer evidence establish‐
ing an agreement to distribute drugs that is distinct from evi‐
dence of the agreement to complete the underlying drug
deals.” United States v. Maldonado, 893 F.3d 480, 484 (7th Cir.
2018), quoting Johnson, 592 F.3d at 755. Circumstances that
may show a conspiracy include “sales on credit, an agreement
to look for customers, commission payments, evidence that
one party provided advice for the other’s business, or an
agreement to warn of future threats to each other’s business
from competitors or law enforcement.” United States v. Vil‐
lasenor, 664 F.3d 673, 680 (7th Cir. 2011); accord, United
States v. Harris, 51 F.4th 705, 715–16 (7th Cir. 2022).
The evidence as to Michael Jones, Reed, and Myers was
sufficient for a reasonable jury to find that they knowingly
agreed to participate in the conspiracy. The jury was properly
instructed on the difference between a conspiracy and a
buyer‐seller relationship, and it found all defendants guilty of
conspiracy.

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Nos. 20‐1405, et al. 35
1. Michael Jones
Michael Jones argues that the evidence was insufficient to
prove his part in the Count 1 conspiracy because he did not
share a common purpose with Balentine. He concedes that he
purchased large quantities of drugs from Balentine, but he in‐
sists that he did not otherwise share a common goal with Bal‐
entine to sell to a particular customer and that his independ‐
ent drug dealing was never traced back to Balentine.
Despite Jones’ attempts to downplay his relationship with
Balentine, the trial evidence was sufficient for the jury to find
that he was a knowing co‐conspirator. First, Jones bought
large amounts of methamphetamine from Balentine on credit.
Those transactions were reflected in a drug debt of about
$16,000 that he owed Balentine in March 2018. A reasonable
jury could infer from the multiple, large‐quantity sales on
credit that Jones was involved in the conspiracy. E.g., Harris,
51 F.4th at 716; Maldonado, 893 F.3d at 485; cf. Villasenor, 664
F.3d at 680 (explaining that credit sales of small quantities for
buyer’s personal consumption would not be sufficient to es‐
tablish conspiracy).
Second, Jones’ and Balentine’s plan to find out whether a
mutual customer was an informant provided strong evidence
that they had shared interests for their drug dealing. Jones
had suspected that the customer was an informant because he
continued to try to buy drugs from him even when Jones
charged a higher price. When Jones expressed his concerns,
Balentine suggested that Jones offer to sell drugs to the cus‐
tomer at a price higher than he would have to pay to get the
same drugs from Balentine. If the customer agreed to pay the
higher price, then they would know that he was an informant.
(Their theory was that only an informant, using cash from the

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36 Nos. 20‐1405, et al.
police, would be willing to pay such a high price for drugs
when he could get them more cheaply from someone else.)
The plan to detect a potential police informant is the type
of coordination to further shared interests that can signal a
conspiratorial relationship. See, e.g., Moreno, 922 F.3d at 795
(affirming conspiracy conviction where defendant sought to
protect co‐conspirators by warning them about potential law
enforcement intervention, telling them to stop using certain
phones, and discussing with co‐conspirators other threats to
their criminal activity); Maldonado, 893 F.3d at 485 (affirming
conspiracy conviction where defendants worked coopera‐
tively, which included negotiating and coordinating deals to‐
gether, checking quality of cocaine together, and teaching
each other how to hide drugs in a car).
Third, intercepted communications between Michael
Jones and Balentine indicated that they purchased drugs to‐
gether. In one call, Balentine told Jones that he had been try‐
ing to get in touch with him because the couriers were leaving
for Georgia, and Balentine wanted to know whether Jones
wanted to put in money. Jones responded that he had some‐
thing for Balentine, and the case agent testified that he under‐
stood that to mean that he had money for Balentine. The trial
evidence supported the verdict finding Michael Jones guilty
beyond a reasonable doubt on Count 1.
2. Jason Reed
Reed challenges his conviction on Count 1 on two
grounds. He first asserts that the testimony of Melissa Baird,
connecting him to Balentine and the conspiracy, was unrelia‐
ble. He argues that her testimony was self‐serving to obtain
leniency and that it lacked sufficient corroboration.

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Nos. 20‐1405, et al. 37
Baird was Reed’s girlfriend at some point during the life
of the conspiracy. She testified that she and Reed traveled
from Kokomo to Terre Haute once or twice a week to deliver
drugs to two of Reed’s customers. She also said that Reed ob‐
tained the methamphetamine he sold from Balentine, and she
knew this because they would go to Balentine’s home to pick
up the drugs.
“[E]valuating the credibility of the witnesses is the jury’s
job.” Cruse, 805 F.3d at 812. Finding a witness incredible as a
matter of law is typically reserved for “extreme situations,”
where, for example, it was “physically impossible for the wit‐
ness to observe what he described” or “impossible under the
laws of nature for those events to have occurred at all.” United
States v. Conley, 875 F.3d 391, 400 (7th Cir. 2017), quoting
United States v. Hayes, 236 F.3d 891, 896 (7th Cir. 2001).
Reed’s appellate attack on Baird’s credibility fails. Her tes‐
timony could be challenged as biased, self‐serving, and/or un‐
reliable, but such challenges to Baird’s credibility of this kind
were for the jury to assess. Reed has not shown that the jury
was required, as a matter of law, to disregard her testimony.
In addition, other evidence supported the conspiracy ver‐
dict against Reed. On at least some occasions, Reed bought
drugs from Balentine on credit. Reed also worked with Balen‐
tine to ensure they were both repaid for drugs they had sold
to others on credit. The plan started when Reed’s customer,
Derrick Owens, was pulled over for a traffic stop and man‐
aged to discard drugs he had purchased from Reed on credit
to avoid their discovery. Owens was thus unable to pay Reed,
who himself had purchased the drugs from Balentine on
credit. Owens agreed to buy methamphetamine from Balen‐
tine directly and to resell it so he could start to pay off his debt

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38 Nos. 20‐1405, et al.
to Reed, and Reed his resulting debt to Balentine. In arranging
this deal, Reed communicated with both Balentine and Ow‐
ens to sort out the details and arrange a meeting. Reed and
Balentine also agreed that neither of them would sell drugs to
Owens, or Michael Reynolds, who was also Reed’s customer,
on credit until they were able to pay off their debts. Evidence
of Reed’s coordination with Balentine and Owens to execute
this plan contributed to the evidence supporting the verdict.
In his second argument, Reed contends that the Owens
transaction did not establish his ongoing involvement in the
conspiracy because there were no future arrangements or
promises that he would profit from that transaction. This ar‐
gument is not persuasive. The coordination between Reed
and Balentine to complete the Owens transaction reflected an
“informed and interested cooperation” that can mark a con‐
spiracy. United States v. Colon, 549 F.3d 565, 568 (7th Cir. 2008),
quoting Direct Sales Co. v. United States, 319 U.S. 703, 713
(1943); see also Maldonado, 893 F.3d at 485 (affirming conspir‐
acy conviction where defendant and co‐conspirator worked
together to negotiate and coordinate drug transaction with
third party and both took a cut from the deal). We affirm
Reed’s conviction on Count 1.
3. Shaun Myers
Like Michael Jones and Reed, Myers challenges his Count
1 conviction on the grounds that he had a simple buyer‐seller
relationship with Balentine and was not engaged in the
broader drug conspiracy. He concedes that he was recorded
talking to Balentine about a shipment of drugs from Georgia,
but he contends he did not have a financial stake in the drugs
and did not plan to receive any of them.

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Nos. 20‐1405, et al. 39
The jury could reasonably find Myers’ contentions im‐
plausible, given the other direct evidence of his stake in the
drug conspiracy and his efforts to further it. Myers was not
just an isolated buyer of drugs from Balentine. The govern‐
ment offered evidence that Myers was fully aware of Balen‐
tine’s plans to buy drugs from Riley in Georgia. Strong evi‐
dence of conspiracy came from Myers’ giving Balentine
$35,000 to help buy drugs from Riley in April 2018. Balentine
also informed Myers when the drugs were intercepted. My‐
ers’ financial contribution to the drug purchase offered
strong, and certainly sufficient, evidence of his participation
in the conspiracy.
In addition, after that first portion of the shipment was in‐
tercepted by police, Myers sent his girlfriend to Georgia to
pick up the second. See Hopper, 934 F.3d at 757 (by “‘put[ting]
their money and transportation resources together for an ex‐
tended period of time,’ the co‐conspirators ‘thereby ha[d] a
stake in each other’s success, and kn[ew] that the others in‐
tended to resell’ the drugs”) (alterations in original), quoting
United States v. Harris, 567 F.3d 846, 851 (7th Cir. 2009); see
also United States v. Lomax, 816 F.3d 468, 475 (7th Cir. 2016).
We affirm Myers’ conviction on Count 1.
B. Michael Jones – Counts 14 and 20
1. Count 14
Michael Jones also argues that we should reverse his con‐
viction on Count 14 for possession with intent to distribute
controlled substances. He presents his argument as one about
the sufficiency of the evidence. But we agree with the govern‐
ment that his argument is better understood as a claim that
the district court erred in admitting witness testimony that

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40 Nos. 20‐1405, et al.
went to an element of the offense. Jones’ argument is compli‐
cated, however, by the fact that he seems at times to assert that
the witness impermissibly testified to his intent to possess the
drugs, while at others he seems to argue that the witness
should not have been allowed to offer his opinion as to
whether Jones or his girlfriend possessed the drugs. The gov‐
ernment also notes that Jones did not clearly object at trial to
the witness’s testimony on the ground that it went to his in‐
tent but objected more generally to “speculation” and irrele‐
vance.
We need not decide whether Michael Jones’ objection at
trial preserved this issue. We are not persuaded there was a
reversible error. Here are the facts: On May 1, 2018, officers
executed a search warrant at Jones’ home, which he shared
with his girlfriend, Rebecca Myers. Officers found several
controlled substances and a digital scale in the master bed‐
room. They also seized firearms and about $9,000 in cash. At
the time of the search, officers arrested Jones on an outstand‐
ing arrest warrant. Based on the contraband, officers also ar‐
rested Myers.
At trial, the government asked the officer who provided
the probable cause affidavit for Myers’ arrest if it was “your
understanding that it was Rebecca Myers and Rebecca Myers
alone that possessed the methamphetamine that morning?”
The officer answered “No.” The government then asked,
“What did you believe?” Jones’ counsel objected, arguing that
the question called for speculation and was not relevant. The
court overruled the objection, explaining that “certainly he
can say what he believed at the time.” The officer testified that
he believed Michael Jones also possessed the methampheta‐
mine.

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Nos. 20‐1405, et al. 41
We do not understand the decision to overrule the defense
objection. In a trial on guilt or innocence, the opinion of an
investigating officer about guilt or innocence is not helpful or
relevant. United States v. Noel, 581 F.3d 490, 496–98 (7th Cir.
2009) (error to admit officer’s opinion that photographs met
legal definition of child pornography, but error was harm‐
less). The issue is whether the government can present admis‐
sible evidence of the underlying facts that convinces the jury
of guilt, beyond a reasonable doubt.
As a general rule, of course, lay or expert opinion testi‐
mony should not be excluded simply “because it embraces an
ultimate issue.” Fed. R. Evid. 704(a). Nevertheless, an expert
in a criminal case cannot testify to “an opinion about whether
the defendant did or did not have a mental state or condition
that constitutes an element of the crime charged.” Fed. R.
Evid. 704(b). An expert may testify, however, “in general
terms about facts or circumstances from which a jury might
infer that the defendant” possessed drugs with intent to dis‐
tribute them. United States v. Winbush, 580 F.3d 503, 512 (7th
Cir. 2009). In considering whether to admit such opinion tes‐
timony, the most important question for a court is whether it
will be “helpful to the trier of fact.” Noel, 581 F.3d at 496.
The officer’s belief as to whether Rebecca Myers alone pos‐
sessed the seized drugs could not have been helpful to the
jury or relevant as a general matter. It went directly to the
question of whether Jones possessed the drugs, an element of
the charge. It was the jury’s job to make its own finding on
that question from the relevant evidence in the record. See
Noel, 581 F.3d at 497 (explaining that a detective’s testimony
about whether photographs the defendant possessed met the
definition of child pornography “was a bare conclusion that

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42 Nos. 20‐1405, et al.
provided nothing but the bottom line,” and even as an expert,
the detective “could not ‘merely tell the jury what result to
reach’”), quoting Fed. R. Evid. 704 advisory committee’s note
to 1972 rule. The officer’s testimony invaded the province of
the jury and amounted to one officer’s opinion about whether
the accused was guilty.
Whether the error was reversible is another matter. With
the issue framed as a challenge to the sufficiency of the evi‐
dence, as opposed to an evidentiary error, we find no reversi‐
ble error. The opinion was admitted and was available to sup‐
port the conviction. More important, the government pre‐
sented other evidence sufficient to support the verdict.
Jones did not physically possess the drugs at the time of
the search. But of course a defendant can be convicted for pos‐
session based on constructive possession of the contraband.
United States v. Perryman, 20 F.4th 1127, 1133 (7th Cir. 2021).
To prove constructive possession, the government must
demonstrate a “connection between the defendant and the il‐
legal drugs” that shows that he had the “power and [the] in‐
tention to exercise dominion and control over the object, ei‐
ther directly or through others.” Id., quoting United States v.
Griffin, 684 F.3d 691, 695 (7th Cir. 2012). When a defendant
does not exclusively control the property where the contra‐
band is found, the government may satisfy its burden by
showing “a ‘substantial connection’ to the location where con‐
traband was seized.” United States v. Morris, 576 F.3d 661, 667
(7th Cir. 2009). A defendant who has joint control over con‐
traband may be found guilty of possessing it. United States v.
Lawrence, 788 F.3d 234, 240–41 (7th Cir. 2015).
The evidence here was certainly sufficient for the jury to
find that Michael Jones possessed the Count 14

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Nos. 20‐1405, et al. 43
methamphetamine, at least constructively and jointly. Offic‐
ers found the drugs in the bedroom of the home that Jones
shared with Myers. Both Myers and Jones sold drugs. See,
e.g., Lawrence, 788 F.3d at 240–42 (upholding drug possession
conviction where drugs were found in a drawer of the bed‐
room that defendant shared with his fiancée and defendant
himself sold drugs). We affirm Michael Jones’ conviction on
Count 14.
2. Count 20
Michael Jones also argues that there was insufficient evi‐
dence to sustain his conviction for money laundering. Count
20 of the indictment charged him with laundering monetary
instruments, 18 U.S.C. § 1956(a)(1)(A)(i), when he bought a
sport utility vehicle in September 2017.
To affirm the conviction for money laundering, “we must
determine that a rational trier of fact could have concluded
from the record that [Jones] knowingly used the proceeds
from a specified unlawful activity in financial transactions
that were intended to promote the continuation of the unlaw‐
ful activity, or were designed to conceal or disguise the pro‐
ceeds of the unlawful activity.” United States v. Arthur, 582
F.3d 713, 718 (7th Cir. 2009).
Jones contends that the record does not support the ver‐
dict because there is no evidence that he used drug proceeds
to purchase the vehicle. He instead argues that Rebecca My‐
ers, whose name was on the title, purchased the vehicle with
her own money. He also argues that even if he did purchase
the vehicle, he could have done so with legal gambling win‐
nings rather than illegal drug proceeds.

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44 Nos. 20‐1405, et al.
As a preliminary matter, the government asserts that Jones
waived the argument he raises now by conceding the point in
his original motion for judgment of acquittal or a new trial. In
that motion, he noted that the “government certainly pro‐
vided circumstantial evidence that when viewed most favor‐
ably to the verdict, proves [Jones] conducted a financial trans‐
action with proceeds that derived from the distribution of
controlled substances.” In his motion for judgment of acquit‐
tal, he instead argued that there was insufficient evidence that
he purchased the vehicle to further or promote his illegal drug
dealing.
A defendant waives an argument when he “intentionally
relinquishes a known right.” United States v. Barnes, 883 F.3d
955, 957 (7th Cir. 2018), quoting United States v. Haddad, 462
F.3d 783, 793 (7th Cir. 2006). Evidence that the decision not to
raise an argument was strategic permits an inference that the
argument was waived. Id. at 957–58 (explaining that defend‐
ant had made strategic choice to focus on criminal history cat‐
egory during sentencing and argued for the exclusion of some
prior offenses while telling the court that the points for other
offenses were appropriate). Here, it is reasonable to infer that
Jones’ concession reflected a strategic decision to challenge
his conviction on a ground he thought would be more suc‐
cessful and that in doing so he waived his argument on ap‐
peal. Id. at 957. The argument was waived.
Even if Jones had not waived this argument, his challenge
would still fail. The evidence was sufficient for the jury to find
he did purchase the vehicle and used drug proceeds to do so.
The salesman spoke only to Jones when negotiating the pur‐
chase of the vehicle, and he paid for it in cash that day. To be
sure, given the practical realities of car buying, a jury might

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Nos. 20‐1405, et al. 45
have believed that Jones was merely negotiating on Rebecca
Myers’ behalf. The salesman testified that it is “not uncom‐
mon” for one person to negotiate the sale for a second person
in whose name the car is registered. But the jury did not have
to accept that benign version. See Colon, 919 F.3d at 516 (jury
can “employ common sense in making reasonable inferences
from circumstantial evidence,” and government’s case “need
not exclude every reasonable hypothesis of innocence so long
as the total evidence permits a conclusion of guilt beyond a
reasonable doubt”), quoting United States v. Starks, 309 F.3d
1017, 1021–22 (7th Cir. 2002). The jury “is free to choose
among various reasonable constructions of the evidence.” Id.,
quoting Starks, 309 F.3d at 1022.
Moreover, the money that Jones claims he made from legal
gambling was earned in April 2018, several months after he
bought the vehicle. Jones also filed no federal tax returns and
received no W‐2 forms from 2015 to 2017, which made it less
likely that he bought the vehicle using legitimate income ob‐
tained through employment. Considered together, ample ev‐
idence supported a finding beyond a reasonable doubt that
Michael Jones was guilty on Count 20 for laundering mone‐
tary instruments.
VI. Sentencing
We turn now to a host of sentencing issues, which together
take up the second half of this opinion. Six defendants argue
that various Sentencing Guideline enhancements were erro‐
neously applied to them. Two defendants argue that the dis‐
trict court erred in its drug quantity calculations. Three con‐
tend that the district court erred by relying upon inaccurate
or unreliable information in calculating their sentences. One
defendant challenges the substantive reasonableness of his

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46 Nos. 20‐1405, et al.
sentence, and another asks us to depart from controlling Su‐
preme Court precedent on considering at sentencing conduct
for which the defendant was tried and acquitted.
A. Aggravating Role Enhancements
Defendants Riley, Balentine, and Michael Jones all argue
that the district court erred in finding that they played aggra‐
vating roles in the conspiracy that justified enhancing their
sentences. Under the Sentencing Guidelines, a defendant’s of‐
fense level is increased by four levels if he is an “organizer or
leader of a criminal activity that involved five or more partic‐
ipants or was otherwise extensive” and by three levels if he
was a “manager or supervisor” of the same. U.S.S.G.
§ 3B1.1(a)–(b).
The Guidelines do not explicitly define the terms “organ‐
izer,” “leader,” “manager,” or “supervisor,” but the accompa‐
nying commentary offers a list of factors that courts can use
to distinguish between the organizer or leader roles and the
manager or supervisor roles. These factors include the exer‐
cise of decision‐making authority, the nature of participation
in the offense, the recruitment of accomplices, a claimed right
to a greater share of the fruits of the crime, the degree of par‐
ticipation in planning or organizing the offense, the nature
and scope of the offense, and the degree of control exercised
over others. § 3B1.1 n.4. Ultimately, in applying the enhance‐
ment, the court must conduct a practical inquiry and make a
“commonsense judgment about the defendant’s relative cul‐
pability given his status in the criminal hierarchy.” United
States v. House, 883 F.3d 720, 724 (7th Cir. 2018), quoting United
States v. Dade, 787 F.3d 1165, 1167 (7th Cir. 2015). The court
may consider the Sentencing Guidelines factors, but none of
those alone is a prerequisite for applying the enhancement. Id.

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Nos. 20‐1405, et al. 47
We review the district court’s findings of fact for clear er‐
ror, and we review de novo whether those facts support the
enhancement. House, 883 F.3d at 723. We will reverse a district
court’s application of an aggravating role enhancement only
if “we are left with a ‘definite and firm conviction that a mis‐
take has been made.’” Id., quoting United States v. Harris, 791
F.3d 772, 780 (7th Cir. 2015).
1. Pierre Riley
Riley pleaded guilty to Count 1 (conspiracy to possess
with intent to distribute and to distribute controlled sub‐
stances), Count 6 (conspiracy to use facilities of interstate
commerce to commit murder for hire), and Count 19 (conspir‐
acy to launder monetary instruments). The district court
found that Riley’s offense level was 46 (which was adjusted
down to the maximum of 43), and that his applicable criminal
history category was IV. In calculating Riley’s offense level,
the district court applied several enhancements, including a
four‐level increase for his role as an organizer or leader in the
Count 1 conspiracy and a two‐level increase for his role as an
organizer or leader in the Count 19 money laundering con‐
spiracy. The district court’s calculations yielded an advisory
guideline range of life imprisonment for Count 1, 120 months
on Count 6, and 240 months on Count 19. The court sentenced
Riley to 490 months in prison on Count 1 and 120 months on
each of Counts 6 and 19, to be served concurrently.
Over Riley’s objections, the district court found by a pre‐
ponderance of the evidence that he acted as an organizer or
leader when he directed the activities of Kristen Kinney, Bri‐
anna Glover, Balentine, and O’Bannon. The court noted that
Riley told Kinney to hold on to drug proceeds, to deposit the
proceeds in accounts that he controlled, to pay bills for him,

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48 Nos. 20‐1405, et al.
to pick him and the drug couriers up from the bus stop, and
to hold onto and deliver methamphetamine to Balentine. The
court also observed that true leaders immunize or insulate
themselves from their subordinates, which it found “certainly
was indicative or indicated in this case by the use of others in
the co‐conspiracy, especially women.” Finally, the court
found that Riley directed O’Bannon and Balentine and played
a “definitive role” in the murder‐for‐hire plot, as Riley gave
the initial order to have the suspected informant killed.
Riley argues first that he was merely the drug source for
the conspiracy and that a supplier for a large‐scale drug oper‐
ation is not always an organizer or leader of the conspiracy.
See Colon, 919 F.3d at 518 (“A defendant who acts as a mere
conduit in an operation—even one that deals in large quanti‐
ties of drugs—should not (without more) receive a leadership
enhancement.”). Here, however, additional facts indicate that
Riley did much more than merely supply drugs, including
planning the murder for hire.
Riley also challenges the district court’s findings that he
directed specific individuals in the conspiracy. For example,
he contends that there was little support for the finding that
he directed Balentine and O’Bannon in the murder‐for‐hire
plot. The presentence report said that Riley told Balentine to
call O’Bannon and to instruct O’Bannon to locate hitmen, and
that O’Bannon complied. Riley argues that any reliance on the
murder‐for‐hire plot to establish his leadership role was an
error because the court did not apply an organizer or leader
enhancement for that count. But as we discuss below, the
murder‐for‐hire plot is relevant conduct for the drug conspir‐
acy. The district court could rely on that evidence to apply the
enhancement for Count 1.

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Nos. 20‐1405, et al. 49
Perhaps Riley’s instructions to O’Bannon might be under‐
stood as isolated requests to an equal rather than as part of
the continual and ongoing supervision often required to es‐
tablish an aggravating role enhancement. See United States v.
Weaver, 716 F.3d 439, 444 (7th Cir. 2013). But the district judge
who presided over the trial and guilty pleas was not limited
to the presentence report. Riley contributed money for the
planned hit, and he decided initially not to include O’Bannon
before changing his mind. Riley also received updates from
Balentine on what was happening on the ground in Kokomo.
This evidence may not have established that Riley was direct‐
ing Balentine, given their comparable involvement in the plot:
Balentine told Riley they needed to move faster and that he
wanted to use out‐of‐state hitmen. But it was nevertheless suf‐
ficient for the court to find that Riley was exercising control or
authority over O’Bannon, who was responsible for trying to
carry out the murder.
As is often the case under the aggravating‐role Guideline,
whether the control Riley exerted over O’Bannon fit better
within the four levels for an organizer or leader or three levels
for a manager or supervisor enhancement could be consid‐
ered a close question, and one where we give considerable
deference to the district court. But here, because Riley’s of‐
fense level was 46, it makes no difference to his ultimate sen‐
tence whether a four‐level or a three‐level enhancement is ap‐
plied. In either case, his offense level will be adjusted down to
the maximum of 43. Because we are confident that the evi‐
dence supported at least the three‐level enhancement, we af‐
firm.
Riley’s role in the murder‐for‐hire plot resembles that of
the defendant in House, where we upheld the application of

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50 Nos. 20‐1405, et al.
the three‐level manager or supervisor enhancement. 883 F.3d
at 724. That defendant was instrumental in designing the loan
fraud scheme, used his business as a front to secure the loans,
and provided the information that co‐conspirators used to ap‐
ply for the loans. Id. Riley’s role here as a coordinator, funder,
and supervisor of the murder plot would similarly support at
least the three‐level enhancement. If the district court had ap‐
plied the three‐level manager or supervisor enhancement in‐
stead of the four‐level organizer or leader enhancement, the
one‐level reduction would not have changed Riley’s guideline
range. It still would have been life in prison for Count 1.
Riley also challenges the district court’s finding that he di‐
rected Kinney. Riley focuses mainly on inconsistencies in Kin‐
ney’s testimony about how often and in what ways he di‐
rected her. He contends these weaknesses undermine the
court’s reliance on her testimony. We find no reversible error.
To be sure, inconsistent evidence in some cases may in fact be
unreliable, and the court must make a searching inquiry into
the accuracy of such evidence. United States v. Galbraith, 200
F.3d 1006, 1012 (7th Cir. 2000). Here, however, the inconsist‐
encies Riley identifies do not undermine the finding about
whether he was directing Kinney. They relate only to how of‐
ten he directed her. As noted above, the leadership enhance‐
ment requires evidence of ongoing supervision. The evidence
supported that here. Kinney testified at trial that she went to
the bank ten to twelve times on Riley’s behalf to convert the
drug money. The fact that Kinney, on a different occasion,
said that she went to the bank more often does not require
reversal of the court’s finding that Riley continually super‐
vised her.

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Nos. 20‐1405, et al. 51
Riley also insists that the apparent obligation Kinney felt
to Riley to follow his instructions and those of Balentine did
not make him an organizer or leader. But Kinney’s personal
relationship with and commitment to Riley also did not pre‐
clude the court’s finding that she acted at his direction.
Finally, Riley argues that there was insufficient evidence
for the court to find that he led or controlled Glover. The court
received evidence that Riley directed Glover to pick up or
drop off drugs on at least two occasions on April 24 and 26.
The limited and short‐term nature of his direction of Glover
might not, by itself, support the organizer or leader enhance‐
ment. See Colon, 919 F.3d at 519 (defendant’s requests that a
courier drive him to a drug sale did not suffice to show he
acted as a manager/supervisor, “much less an organizer or
leader”). The case agent testified that Riley often had Glover
perform other tasks for him, though it is not clear from the
record what those tasks were or if they related to the drug
conspiracy. Perhaps if we considered only Riley’s control over
Glover, the evidence might not be enough to establish the or‐
ganizer or leader enhancement.
But given the evidence that Riley also directed O’Bannon
and Kinney, the district court did not clearly err in applying
the organizer or leader enhancement. And as mentioned
above, even if the four‐level organizer or leader enhancement
did not apply, the three‐level manager or supervisor enhance‐
ment certainly would have, in which case Riley’s guideline
sentence would not have changed. Any error in the district
court’s choice between a three‐ or four‐level role enhancement
would have been harmless. See, e.g., United States v. Prado, 41
F.4th 951, 955 (7th Cir. 2022) (finding any error harmless
where district court’s calculation and defendant’s proposed

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52 Nos. 20‐1405, et al.
calculation resulted in same guideline range); United States v.
Thomas, 897 F.3d 807, 817 (7th Cir. 2018) (same); United
States v. Fletcher, 763 F.3d 711, 718 (7th Cir. 2014) (same).
2. Reggie Balentine
Balentine pleaded guilty to Count 1 (conspiracy to possess
with intent to distribute and to distribute controlled sub‐
stances), Count 4 (distribution of 50 grams or more of meth‐
amphetamine), Count 6 (conspiracy to use facilities of inter‐
state commerce to commit murder for hire), Count 8 (felon in
possession of firearm), Count 10 (attempted possession with
intent to distribute 50 grams or more of methamphetamine),
and Count 18 (actual possession with intent to distribute 50
grams or more of methamphetamine). The district court cal‐
culated his total offense level as 46, which was reduced to the
maximum of 43, and his criminal history category as VI. The
court applied a four‐level enhancement for Balentine’s aggra‐
vated role as an organizer or leader in the Count 1 drug con‐
spiracy. The court calculated Balentine’s guideline range as
life in prison. Balentine was ultimately sentenced to concur‐
rent terms of 504 months in prison on each of Counts 1, 4, 10,
and 18, and 120 months on each of Counts 6 and 8.
In applying the four‐level enhancement, the district court
explained that Balentine was responsible for gathering money
to buy drugs from Riley in Georgia, he directed the activities
of Kristen Kinney, including telling her when to pick up drug
proceeds and drop off methamphetamine to him, and he also
directed the activities of Melissa Baird and Perry Jones, who
similarly delivered drugs and picked up drug proceeds for
him. The court also justified its decision on the ground that
Michael Jones received a three‐level aggravating role

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Nos. 20‐1405, et al. 53
enhancement, and it was clear that Jones’ role was not as crit‐
ical as Balentine’s.
On appeal, Balentine argues that the court should not have
applied any aggravating role enhancement. He asserts that
the conspiracy was made up of individuals with equal roles
and that no single co‐conspirator exercised control or coercive
power over another. In the alternative, Balentine argues that
he qualified at most for the three‐level manager or supervisor
enhancement.
The district court did not clearly err in applying the four‐
level organizer or leader enhancement. As discussed above,
the conspiracy at issue here was not strictly hierarchical. Some
conspirators, such as Riley and Balentine, seem to have oper‐
ated as equals. But there was certainly evidence of a hierarchy,
with some conspirators having more authority and control in
the drug operation than others. For example, Balentine coor‐
dinated with Riley to decide how much methamphetamine
and other drugs to buy and when they should be bought to
ensure a steady supply. Lower‐level members of the conspir‐
acy, like Myers, would contact Balentine for updates on when
the next shipment of drugs would arrive. Balentine was also
responsible for pooling the money from his co‐conspirators in
Indiana to buy the drugs, and he kept track of how much each
person would receive from a new shipment. After officers
seized the load that Melissa Baird was transporting, Balentine
conferred with Myers about raising prices to make up the loss.
Balentine recommended that Myers sell the methampheta‐
mine at $500 per ounce. Balentine also agreed to split up the
second shipment among the various co‐conspirators instead
of keeping it for Riley and himself. He also helped protect the
drug operation by giving advice to his co‐conspirators about

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54 Nos. 20‐1405, et al.
how to deal with customers who were suspected of being in‐
formants and were threats to the operation.
Balentine’s actions resemble those of other defendants for
whom we have upheld the application of the organizer or
leader enhancement. See, e.g., United States v. Grigsby, 692
F.3d 778, 791 (7th Cir. 2012) (upholding application of man‐
ager or supervisor enhancement but noting that defendant
who “initiated the scheme, played a leading role in recruiting
the coconspirators, and supervised the execution” of offense
could also qualify for organizer or leader enhancement).
Balentine’s direction of Perry Jones, Baird, and Kinney in
furtherance of the drug conspiracy reinforced the district
court’s application of the enhancement. On several occasions,
Balentine told Perry Jones to pick up drug proceeds or to de‐
liver drugs to Balentine’s customers, including Michael Jones
and O’Bannon. (As a result, the fact that Perry Jones had his
own customers does not mean that he was not also working
at the direction of Balentine.) Balentine also directed Baird to
sell drugs on his behalf to various buyers after she stopped
working for Reed, who had been arrested and jailed. Baird
also stored drugs for Balentine at her house. According to
Baird, Balentine agreed to give her a loan if she traveled to
Georgia to pick up the drugs, and she complied. Balentine
used Kinney in a similar way, directing her to take cash to the
bank for him and to store drugs at her home.
Accordingly, the district court did not clearly err in apply‐
ing the enhancement. Balentine “used his compatriots to in‐
sulate himself from some of the perils of dealing by directing
them” to engage in those actions and exercised sufficient con‐
trol over them to support the enhancement. United States v.
Noble, 246 F.3d 946, 954 (7th Cir. 2001) (upholding organizer

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Nos. 20‐1405, et al. 55
or leader enhancement where defendant provided drugs for
whole distribution scheme, controlled drug price, directed co‐
conspirators to deliver drugs for him and to store drugs at
their homes, and exercised such control over others that they
agreed to go to jail for him).
3. Michael Jones
The jury convicted Michael Jones on Count 1 (conspiracy
to possess with intent to distribute and to distribute con‐
trolled substances), Count 2 (distribution of 50 grams or more
of methamphetamine), Count 14 (possession with intent to
distribute 5 grams or more of methamphetamine), Count 16
(felon in possession of a firearm), and Count 20 (laundering
of monetary instruments). The district court calculated Mi‐
chael Jones’ offense level to be 47, which was reduced to the
maximum of 43, and it found his criminal history category
was VI. Over Jones’ objection, the court applied a three‐level
enhancement for his role as a manager or supervisor in the
conspiracy. Jones’ final guideline range was life in prison. The
court sentenced him to concurrent terms of 420 months on
Counts 1, 2, and 14, 120 months on Count 16, and 240 months
on Count 20.
The district court acknowledged that Jones’ aggravating
role presented a close question but found by a preponderance
of the evidence that he managed or supervised Thomas Jones
and Rebecca Myers. The court relied upon the circumstances
surrounding the transaction with the suspected informant.
Michael Jones made arrangements for the deal with the sus‐
pected informant, but Thomas Jones actually carried out the
exchange. The court also found that Rebecca Myers worked
under Michael Jones’ direction and delivered drugs at his re‐
quest.

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56 Nos. 20‐1405, et al.
On appeal, Jones asserts that the evidence failed to estab‐
lish that he was a manager or supervisor. Specifically, he con‐
tends there was conflicting testimony as to whether he di‐
rected Thomas Jones. He also argues more generally that
there was no proof he managed Thomas Jones or Rebecca My‐
ers in furtherance of the conspiracy.
The district court did not clearly err in applying the en‐
hancement to Michael Jones. Thomas Jones delivered the
methamphetamine to the suspected informant after Michael
Jones negotiated the terms of the deal. Two associates of Mi‐
chael Jones testified that Thomas Jones was a courier for Mi‐
chael and often present during Michael’s drug dealing. As for
Rebecca Myers, intercepted communications between Balen‐
tine and Michael Jones indicated that, at Jones’ direction, she
hid drugs in a body cavity to keep the police from finding
them. She later recovered the drugs and gave them back to
Michael Jones, presumably so he could sell them. Such evi‐
dence was sufficient to find that Michael Jones acted as a man‐
ager or supervisor, directing both Thomas Jones and Rebecca
Myers in connection with the drug distribution conspiracy.
Moreover, even if the court had erred with this enhance‐
ment, it would have been harmless. See Thomas, 897 F.3d at
817 (explaining that a “guideline error that does not actually
affect the final guideline range calculated” does not affect sub‐
stantial rights in plain‐error analysis). Michael Jones’ total of‐
fense level was 47, but because this was greater than the
guideline maximum of 43, the court treated his offense level
as 43. Even a complete reversal of any role enhancement (ra‐
ther than, say, a reduction to a two‐level increase) would yield
an offense level of 44, which would also be treated as 43. Jones

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Nos. 20‐1405, et al. 57
would face the same guideline range of life in prison. We af‐
firm the court’s application of the enhancement.
B. Firearm Enhancement
Riley, Thomas Jones, and Abbott all argue that the district
court erred in applying the two‐level firearm enhancement to
their sentences. We affirm the application of the firearm en‐
hancement for Riley and Abbott but reverse as to Thomas
Jones.
Under the principal drug Guideline, a two‐level enhance‐
ment applies if “a dangerous weapon (including a firearm)
was possessed.” U.S.S.G. § 2D1.1(b)(1). The enhancement may
apply to a defendant did not personally possess the firearm.
United States v. Ramirez, 783 F.3d 687, 690 (7th Cir. 2015). An‐
other person’s possession can be attributed to a defendant if
it involves “jointly undertaken criminal activity,” so that “all
acts and omissions of others that were—(i) within the scope
of the jointly undertaken criminal activity, (ii) in furtherance
of that criminal activity, and (iii) reasonably foreseeable in
connection with that criminal activity” are offense conduct at‐
tributable to the defendant. U.S.S.G. § 1B1.3(a)(1)(B); see also
Ramirez, 783 F.3d at 690. Before a court can apply the firearm
enhancement to a defendant who did not personally possess
a firearm “or have actual knowledge of a coconspirator’s gun
possession,” it must find by a preponderance of the evidence
“(1) that someone in the conspiracy actually possessed a fire‐
arm in furtherance of the conspiracy, and (2) that the firearm
possession was reasonably foreseeable to the defendant.”
Ramirez, 783 F.3d at 690. We review the district court’s find‐
ings of fact for clear error and will reverse only “if we are left
with a definite and firm conviction that a mistake has been
made.” Id.

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58 Nos. 20‐1405, et al.
1. Pierre Riley
At Riley’s sentencing, the district court applied a two‐level
enhancement to Count 1 based on the multiple firearms pos‐
sessed by his co‐conspirators. Riley objected, arguing that he
knew few of those in the conspiracy and that their possession
of firearms was not readily foreseeable to him. The district
court found otherwise and relied particularly on the foresee‐
ability of firearms in the murder‐for‐hire plot. The court also
found that it should have been foreseeable to Riley that mem‐
bers of a large‐scale drug conspiracy would possess firearms.
As a preliminary matter, Riley argues that the court erred
in relying on the possession of guns in connection with the
murder‐for‐hire plot on the theory that the hitmen were not
part of the broader drug conspiracy. Their possession of fire‐
arms, in his view, thus could not have been in furtherance of
or connected to the drug conspiracy.
We reject Riley’s attempt to separate the murder‐for‐hire
plot from the drug conspiracy it was intended to protect. The
firearm enhancement may apply when the evidence estab‐
lishes “that a gun was possessed during the commission of
the offense or relevant conduct.” United States v. Olson, 450
F.3d 655, 684 (7th Cir. 2006). For jointly undertaken criminal
activity, relevant conduct includes acts and omissions “that
occurred during the commission of the offense of conviction,
in preparation for that offense, or in the course of attempting
to avoid detection or responsibility for that offense.” U.S.S.G.
§ 1B1.3(a)(1)(B).
The murder‐for‐hire plot was both relevant conduct and
in furtherance of the drug conspiracy. Riley and Balentine de‐
cided to have a person killed because they suspected he was

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Nos. 20‐1405, et al. 59
an informant. After an associate warned both Balentine and
Riley not to sell drugs to that person anymore because he
might be an informant, Balentine told Riley they needed to
move faster with their plan. They hatched the murder‐for‐hire
plot to further their drug conspiracy by preventing its detec‐
tion and prosecution.
O’Bannon may have had his own reasons for participating
in the murder‐for‐hire plot, given his suspicions that the tar‐
geted victim had robbed his home. But Riley and Balentine
did not even include O’Bannon in their plan at first. They
brought him in only later, in part because he could find out‐
of‐state hitmen. Ample evidence showed that Riley and Bal‐
entine devised the murder‐for‐hire plot to protect the drug
conspiracy.
The possession of the guns by the hitmen was of course
reasonably foreseeable to Riley. When officers pulled over
O’Bannon, who was driving the hitmen toward the target’s
home, officers found ammunition in the vehicle. That same
day, officers found two handguns in the hitmen’s hotel room.
The simple fact that it was a murder‐for‐hire plot made it fore‐
seeable to Riley that guns or other dangerous weapons would
likely be involved. We affirm the firearm enhancement for Ri‐
ley.
2. Thomas Jones
Thomas Jones, the nephew of Michael Jones, pleaded
guilty to Count 2 for distributing 50 grams or more of meth‐
amphetamine. That conviction was based on his sale of meth‐
amphetamine, on behalf of Michael Jones, to a suspected in‐
formant in January 2018.

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60 Nos. 20‐1405, et al.
The district court calculated Thomas Jones’ offense level
as 30 and his criminal history category as IV. Over his objec‐
tion, the calculation included a two‐level enhancement for
firearms possessed in relation to the offense under
U.S.S.G. § 2D1.1(b)(1). The court determined that Jones’
guideline range was 135 to 168 months in prison. The court
sentenced him to 135 months in prison on Count 2.
Thomas Jones challenges the application of the firearm en‐
hancement on two grounds. First, he contends that the district
court did not properly define the scope of the criminal con‐
duct he jointly undertook. In the alternative, he argues that
the evidence did not support the district court’s finding that
any gun possession was both in furtherance of the criminal
activity and reasonably foreseeable to him.
a. Scope of Criminal Activity
When applying § 1B1.3(a)(1)(B), the district court must
first determine the scope of the criminal activity that the de‐
fendant agreed to undertake jointly. United States v. Salem, 597
F.3d 877, 886 (7th Cir. 2010). The “scope of the jointly under‐
taken criminal activity ‘is not necessarily the same as the
scope of the entire [scheme].’” Id. at 889, quoting § 1B1.3 cmt.
n.3(B). After some initial uncertainty, the district court here
made sufficiently clear that it was focusing on Thomas Jones’
participation in the January 2018 drug transaction charged in
Count 2 involving Thomas Jones, Michael Jones, and the sus‐
pected informant.
b. Actual Possession in Furtherance of the Criminal
Activity
On the merits, Thomas Jones argues that the evidence did
not support the court’s finding that others’ possession of

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Nos. 20‐1405, et al. 61
firearms was in furtherance of that transaction and reasonably
foreseeable to him. The transaction in Count 2 was negotiated
between Michael Jones and the buyer. It was completed when
Thomas Jones delivered drugs to the buyer. The buyer, who
had never before met or spoken to Michael Jones, contacted
Michael on January 25, 2018 via a social media site and asked
to purchase methamphetamine. Jones agreed, and the buyer
drove to Kokomo to pick up the drugs. The buyer brought his
wife, his child, and a few friends with him on the trip. His
wife, who accompanied her husband for “protection,” carried
a concealed gun on her hip.
When the buyer arrived, he and his wife got into Michael
Jones’ vehicle to discuss the terms of the deal. Thomas Jones
was also a passenger in the vehicle. Michael Jones and the
buyer did not discuss anything orally. Instead, they negoti‐
ated by typing and then deleting notes on a cell phone. (The
buyer speculated that they did so because Michael Jones did
not know him and did not know whether he might be wear‐
ing a recording device.) After they agreed on a price, the par‐
ties went their separate ways. The buyer then met up with
Thomas Jones later that evening to carry out the exchange of
money for meth.
On these facts, the district court found that the firearm en‐
hancement applied to Thomas Jones. As mentioned above, to
apply the firearm enhancement for a defendant who did not
personally possess a firearm, like Thomas Jones here, the
court must find by a preponderance of the evidence “(1) that
someone in the conspiracy actually possessed a firearm in fur‐
therance of the conspiracy, and (2) that the firearm possession
was reasonably foreseeable to the defendant.” Ramirez, 783
F.3d at 690. Here, in defining the scope of the joint criminal

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62 Nos. 20‐1405, et al.
activity for Thomas Jones, the court noted that a firearm was
present during the Count 2 transaction. It ruled that the evi‐
dence supported the enhancement because “Mr. Michael
Jones possessed a firearm in furtherance of the joint criminal
act, and/or [the buyer] possessed a firearm in furtherance of
the joint criminal act; and such possession was reasonably
foreseeable by the defendant.”
On this record, application of the firearm enhancement to
Thomas Jones was clearly erroneous. There must be actual
possession of a firearm by a co‐conspirator for the enhance‐
ment to apply on a theory of possession related to jointly un‐
dertaken criminal activity. See United States v. Vold, 66 F.3d
915, 920–21 (7th Cir. 1995) (assumption that co‐conspirator
possessed a firearm on a particular occasion based solely on
evidence from others that he usually had a firearm was erro‐
neous and “unwarranted”); accord, Ramirez, 783 F.3d at 690
(concluding that first step of court’s inquiry was met when
defendant conceded that her co‐conspirators possessed four
firearms in furtherance of the drug enterprise); United States v.
Block, 705 F.3d 755, 763 (7th Cir. 2013). The record here in‐
cludes no evidence that Michael Jones or even the buyer actu‐
ally possessed a firearm in connection with the January 2018
transaction. The evidence does indicate that the buyer’s wife
wore a concealed firearm in the initial meeting, but Thomas
Jones is not accountable for that firearm.
The district court found by a preponderance of the evi‐
dence that Michael Jones actually possessed a firearm during
the January 2018 transaction. It justified its findings, in part,
on testimony from a customer of Michael’s who said that he
was “always” armed. The customer testified that he never saw
Michael Jones without a gun during their drug transactions

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Nos. 20‐1405, et al. 63
and that he never left his home without a gun. But that cus‐
tomer was not a party to the drug transaction in question. The
court also pointed to an incident in April 2018 when Michael
Jones and his girlfriend, Rebecca Myers, were pulled over by
police and police recovered a pistol in the yard near where the
traffic stop occurred. Thomas Jones was not involved in that
incident, and it occurred several months after the events
charged in Count 2. Finally, the court noted that guns were
recovered during a search of Michael Jones’ home. Again
though, that search occurred on May 1, 2018, about four
months after the drug transaction in question. None of that
evidence establishes that Michael Jones actually possessed a
firearm during the January 2018 transaction with the sus‐
pected informant. 3
3 The dissenting opinion cites United States v. Luster, 480 F.3d 551, 558
(7th Cir. 2007), for the proposition that step one is not an “onerous bur‐
den” and can be satisfied by evidence showing that a co‐conspirator ʺreg‐
ularly carried a gun during the course of the conspiracy.” We do not read
Luster to hold that a co‐conspirator’s habit of carrying a gun is enough to
establish that he actually possessed a firearm during the jointly under‐
taken criminal activity. Rather, the relevant language in Luster referred to
the second requirement at step one: that the co‐conspirator’s actual pos‐
session of a firearm be in furtherance of the conspiracy. That, we said, was
not an “onerous burden, as firearms found in close proximity to illegal
drugs create a presumption that they are possessed in connection with the
drug offense.” Id. Evidence in Luster clearly established that Luster’s co‐
conspirators actually possessed firearms during the nine‐month conspir‐
acy to distribute cocaine: one co‐conspirator stored drugs and firearms at
his music studio and the other “regularly carried” a gun during the con‐
spiratorial time period. Id. Here, by contrast, though testimony indicated
that Michael Jones regularly possessed firearms, that testimony did not
establish that he possessed a firearm during the joint criminal activity with
Thomas Jones.

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64 Nos. 20‐1405, et al.
There was similarly no evidence that the buyer possessed
a firearm in connection with the transaction. Instead, the only
person who actually possessed a firearm at the January 2018
meeting was the buyer’s wife. At trial, the buyer testified that
he brought his wife and two friends to Kokomo with him
when he met Jones. He said that he brought them as “secu‐
rity” to “watch [his] back” in case Jones, whom he was meet‐
ing for the first time, robbed him. When they arrived in Ko‐
komo, his two friends stayed at a gas station with his daugh‐
ter while he and his wife went for a ride in Michael Jones’ ve‐
hicle. The buyer testified that his wife was carrying a gun and
that she accompanied him for protection. He also testified that
he told his wife that he was meeting Michael Jones to buy ma‐
rijuana, not methamphetamine.
As discussed above, the district court determined that the
scope of criminal activity for purposes of the Thomas Jones
firearm enhancement was the January 2018 transaction. The
buyer’s wife was a participant in that purchase: though she
was kept in the dark about details, she knew her husband was
buying drugs and she accompanied him for protection. But
she was on the other side of the transaction, which was a first‐
time sale by Michael Jones to the buyer. Michael and Thomas
Jones were not conspiring with the buyer and his wife, so her
possession of a firearm is difficult if not impossible to attribute
to Thomas Jones.
c. Foreseeability
The district court found that it was foreseeable to Thomas
Jones that the buyer’s wife would carry a gun given the “dis‐
trust” among the parties, the “amounts of drugs that were in‐
volved,” and the “precautions that were taken with respect to
the meet[ing].” The court also noted that Thomas Jones lived

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Nos. 20‐1405, et al. 65
on and off with Michael, who had guns in his home, and that
weapons had been involved in Thomas Jones’ own drug deal‐
ing.
It is true that the parties to the January 2018 transaction
distrusted one another. But the fact that Thomas Jones had
never met the buyer or his wife and knew nothing about them
cuts in the other direction: he had no reason to know that ei‐
ther of them would carry a gun to that first meeting, where
Michael and Thomas brought no drugs. Her possession of a
firearm was foreseeable to Thomas Jones only in the sense that
parties to any drug transaction might be armed because, as
the government argued at sentencing, drug dealing is danger‐
ous. The firearm enhancement in § 2D1.1(b)(1) requires more
specific evidence tied to the case. See Block, 705 F.3d at 764
(noting that while district courts may consider the “practical
reality of the drug trafficking industry” in evaluating foresee‐
ability, “common sense assumptions about the drug trade
only go so far and cannot alone satisfy the foreseeability re‐
quirement”); Vold, 66 F.3d at 921 (“We have never held, how‐
ever, that the mere risk involved in a drug manufacturing
conspiracy establishes the reasonable foreseeability of a con‐
cealed firearm under Guideline § 2D1.1(b)(1) absent other ev‐
idence.”).
The alternative conclusion would come close to making
the firearm enhancement a strict liability penalty for everyone
any time one party to a drug transaction possessed even a
concealed firearm, regardless of whether the particular de‐
fendant had any specific reason to expect that a gun would be
present. This would be inconsistent with the purpose of the
firearm enhancement, which is to reflect the increased danger
of violence that exists when drug traffickers possess weapons.

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66 Nos. 20‐1405, et al.
U.S.S.G. § 2D1.1(b)(1) cmt. n. 11(A). The firearm enhancement
should not be applied to treat as equally culpable a person
who brings the firearm to a deal and a counter‐party who is
not armed and is not even aware the other is carrying. In this
case, there was no particular reason for Thomas Jones to fore‐
see that the buyer’s wife was carrying a firearm. The enhance‐
ment could have no deterrent effect. The district court clearly
erred in applying the enhancement to Thomas Jones. We va‐
cate his sentence and remand for resentencing.
3. Antwon Abbott
Abbott was convicted on Count 21 (possession with intent
to distribute five grams or more of methamphetamine). The
district court calculated his total offense level as 30 and his
criminal history category as III. The court applied a two‐level
enhancement, finding that Abbott’s co‐conspirators pos‐
sessed firearms and that their possession was foreseeable to
him. The court concluded that Abbott’s guideline range was
121 to 151 months in prison. He was sentenced to 121 months.
In applying the enhancement, the district court referred to
evidence that Abbott and Balentine were involved in a jointly
undertaken criminal activity, that Balentine possessed fire‐
arms in his home where he stored and dealt drugs, and that
his possession was reasonably foreseeable to Abbott.
Abbott argues on appeal that it was not reasonably fore‐
seeable to him that Balentine possessed firearms. But inter‐
cepted communications between Balentine and Abbott under‐
mine his argument and support the court’s application of the
enhancement. In March 2018, Abbott tried to sell Balentine
two firearms for $600 apiece. Balentine declined to buy the
guns, telling Abbott that he had just purchased another

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Nos. 20‐1405, et al. 67
firearm. Balentine’s admission to Abbott that he already had
a firearm at his home was sufficient to demonstrate reasona‐
ble foreseeability as to Abbott. We affirm the application of the
firearm enhancement to Abbott.
C. Career Offender Enhancement
Owens, Michael Jones, and Balentine all challenge the dis‐
trict court’s findings that they were career offenders under
U.S.S.G. § 4B1.1. The defendants argue that their prior Indiana
state drug convictions do not qualify as predicate “controlled
substance offense[s]” because Indiana law applies to sub‐
stances not covered by the definition of a “controlled sub‐
stance” under the federal Controlled Substances Act.
These defendants recognize that our decision in United
States v. Ruth, 966 F.3d 642 (7th Cir. 2020), rejected an identical
argument. They ask us to reconsider that decision. Ruth held
that the definition of “controlled substance” in the Sentencing
Guidelines is not limited to the definition of “controlled sub‐
stance” in the federal Controlled Substances Act. Id. at 654. In
reaching that conclusion, we acknowledged there was a cir‐
cuit split on that question with several circuits choosing an
approach contrary to our own. Id. at 653. But without a signal
from the Sentencing Commission that it intended to incorpo‐
rate the federal definition into the Guidelines, we declined to
do so ourselves. Id. at 652. Since Ruth, we have rejected re‐
peated arguments that we should abandon it. We do so again
here and affirm application of the career offender enhance‐
ment to these defendants.
D. Livelihood Enhancement
Balentine argues that the district court erred when it ap‐
plied the so‐called livelihood enhancement to him. A

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68 Nos. 20‐1405, et al.
defendant who receives an aggravating role adjustment and
who “committed the offense as part of a pattern of criminal
conduct engaged in as a livelihood” is subject to a further two‐
level increase in his offense level. U.S.S.G. § 2D1.1(b)(16)(E).
The phrase “engaged in as a livelihood” is defined in the com‐
mentary for § 4B1.3. A defendant engages in criminal conduct
“as a livelihood” if “(A) the defendant derived income from
the pattern of criminal conduct that in any twelve‐month pe‐
riod exceeded 2,000 times the then‐existing hourly minimum
wage under federal law; and (B) the totality of circumstances
shows that such criminal conduct was the defendant’s pri‐
mary occupation in that twelve‐month period.” U.S.S.G.
§ 4B1.3 cmt. n.2. Again, we review the district court’s factual
findings on such a guideline issue for clear error. United
States v. Taylor, 45 F.3d 1104, 1106 (7th Cir. 1995).
Over Balentine’s objection, the district court found by a
preponderance of the evidence that he received $90,000 from
his sale of methamphetamine from May 2017 to May 2018.
The $90,000 figure was based on the conservative estimate
that Balentine sold at least 20 kilograms of methamphetamine
in that period and received $4,500 per kilogram, though other
evidence indicated he received as much as $21,000 per kilo‐
gram. The court also found by a preponderance of the evi‐
dence that methamphetamine distribution was Balentine’s
primary occupation during that period.
On appeal, Balentine argues first that the district court
erred in calculating the income he derived from drug traffick‐
ing because the court failed to consider the $81,000 he lost
when the drugs Baird was transporting to Indiana were
seized. If the court had considered that loss, he contends, his

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Nos. 20‐1405, et al. 69
income from drug trafficking would not have satisfied the en‐
hancement’s first prong. 4
The district court did not err in estimating the income Bal‐
entine derived from his criminal activity. As an initial matter,
the government confirmed at sentencing that the drugs seized
by police were not included in the 20‐kilogram figure used to
calculate Balentine’s income over the relevant period. The
court was therefore right to conclude that Balentine’s gross
income from selling methamphetamine was at least $90,000.
Balentine argues that the $81,000 must be deducted from this
figure to arrive at his net income, but this argument overlooks
the fact that Balentine and his co‐conspirators pooled their
money together to purchase the seized drugs. It would not be
proper to attribute the full loss of $81,000 to him even if we
assumed it mattered.
The government satisfies prong one if it can show that the
defendant earned more than 2,000 times the then‐current fed‐
eral minimum hourly wage. In this case, the government
needed to show only that Balentine earned more than $14,500
in a year from drug dealing. Consequently, even if the full
$81,000 loss were credited to Balentine, prong one would be
satisfied if he earned more than $95,500 from dealing drugs.
The court’s estimate of $90,000 was conservative, and the full
$81,000 loss cannot be attributed solely to Balentine. The
4 It is not clear why such a loss from an ongoing criminal sales busi‐
ness should actually matter under the Guidelines, let alone to a judge try‐
ing to implement the broader penological purposes of sentencing set forth
in 18 U.S.C. § 3553(a). Consider, for example, whether a court should be
concerned about the reasons for a loss. Should it matter whether a loss
resulted from law enforcement interdiction or betrayal by a co‐conspira‐
tor? But we need not dwell on the point here.

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70 Nos. 20‐1405, et al.
district court would not have erred on prong one even if Bal‐
entine were entitled to deduct his net loss from the interdic‐
tion.
Balentine next argues that the district court erred in find‐
ing that drug dealing was his primary occupation because it
failed to consider all of his legitimate sources of income. Bal‐
entine has not shown that he maintained any legitimate em‐
ployment. He did not file any federal tax returns, and no W‐
2s were filed on his behalf showing he had legal employment
at the time. Instead, he relies on the $18,000 annually that he
received from his mother’s death settlement. Courts must
consider the totality of the circumstances when determining
whether criminal conduct is the defendant’s primary occupa‐
tion. U.S.S.G. § 4B1.3 cmt. n.2. The district court here did take
into account the $18,000 that Balentine received annually from
the settlement, even though it expressed skepticism about
whether that was an “occupation.” The district court did not
clearly err in finding that the facts justified application of the
livelihood enhancement to Balentine. 5
5 We doubt that receipt of passive income, such as from a structured
settlement of a lawsuit or an annuity, would properly count as “legitimate
employment” for guideline purposes under the definition in § 4B1.3. Nor
is it apparent why a sentencing judge exercising sound discretion under
§ 3553(a) should care about the answer to that question. Countless ques‐
tions can arise under the Guidelines that have little to do with an appro‐
priate sentence. See, e.g., United States v. Marks, 864 F.3d 575, 576–77 (7th
Cir. 2017) (application of career‐offender guideline depended on whether
state court records showed exactly which of several earlier convictions
were covered by a particular earlier state parole revocation, bringing those
convictions within time period considered for criminal history calcula‐
tion); United States v. Iovino, 777 F.3d 578, 581 (2d Cir. 2015) (discussing
precedents on counting victims under fraud Guideline and holding that
where defendant embezzled from condominium association, individual

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Nos. 20‐1405, et al. 71
E. Enhancement for Use of Violence
Michael Jones’ offense level was increased by two levels
because “the defendant used violence, made a credible threat
to use violence, or directed the use of violence.” U.S.S.G.
§ 2D1.1(b)(2). He argues on appeal that the enhancement was
erroneous. Again, we review the district court’s findings of
fact for clear error and will reverse only “if we are left with a
definite and firm conviction that a mistake has been made.”
Ramirez, 783 F.3d at 690.
At sentencing, the district court found by a preponderance
of the evidence that Jones had used violence to collect drug
debts. The court relied mainly on evidence that in the second
half of 2016, Michael Jones kidnapped a woman and held her
hostage in his home because her boyfriend had not paid a
drug debt.
Jones argues that the alleged kidnapping was outside the
scope of the charged conspiracy and thus did not further it.
He argues that the first evidence of his involvement in the
conspiracy was from January 2018, long after the violent inci‐
dent allegedly occurred.
The district court did not clearly err in finding that the
facts supported the enhancement. The indictment alleged and
trial evidence showed that the drug distribution conspiracy
began no later than mid‐2016. The PSR summarized evidence
condominium owners were all victims where their assessments were
raised to cover losses); United States v. Smith, 751 F.3d 107, 120 (3d Cir.
2014) (counting as victims for guideline purposes both banks and individ‐
ual account holders who suffered pecuniary harm). As we said in Marks,
when faced with such arcane questions, a sentencing judge may and often
should ask, “Why should I care?” 864 F.3d at 576.

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72 Nos. 20‐1405, et al.
that Jones was involved before January 2018. In particular, the
PSR referred to instances in December 2016 and August 2017
when Jones possessed drugs, or paraphernalia with drug res‐
idue on it, and money. An incident that occurred in the latter
half of 2016 would have been within the scope of the conspir‐
acy and his involvement in it.
We also have no trouble agreeing with the district court
that kidnapping as leverage to collect a drug debt can be un‐
derstood as a credible threat of violence in furtherance of the
conspiracy, or at least as relevant conduct. Evidence showed
that Michael Jones owed money to Balentine. Late payments
by his customers would prevent him from repaying his debts
to Balentine. We affirm the enhancement for Michael Jones.
F. Drug Quantity Calculations
Michael Jones and Abbott also challenge the district
court’s drug quantity calculations used to set their respective
base offense levels. Drug quantity, of course, is a powerful
driver of guideline calculations for drug offenders.
The government must prove by a preponderance of the
evidence the quantity of drugs attributable to the defendant.
United States v. Freeman, 815 F.3d 347, 353 (7th Cir. 2016). A
defendant in a drug conspiracy is responsible “not only for
drug quantities directly attributable to him but also for
amounts involved in transactions by coconspirators that were
reasonably foreseeable to him.” Id., quoting United States v.
Turner, 604 F.3d 381, 385 (7th Cir. 2010).
Since drug networks and dealers rarely keep transparent
and reliable accounts, determining drug quantities under the
Guidelines is “not an exact science,” and district courts may
make reasonable estimates based on the evidence. United

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Nos. 20‐1405, et al. 73
States v. Austin, 806 F.3d 425, 431 (7th Cir. 2015), quoting
United States v. Sewell, 780 F.3d 839, 849 (7th Cir. 2015). In es‐
timating drug quantity, the district court may use “testimony
about the frequency of dealing and the amount dealt over a
specified period of time.” United States v. Hernandez, 544 F.3d
743, 746 (7th Cir. 2008), quoting Noble, 246 F.3d at 952. That
information must bear “sufficient indicia of reliability to sup‐
port its probable accuracy.” Freeman, 815 F.3d at 354, quoting
United States v. Hankton, 432 F.3d 779, 789 (7th Cir. 2005). We
review a district court’s drug quantity calculation for clear er‐
ror. Id. at 353.
1. Michael Jones
The court found by a preponderance of the evidence that
Jones was accountable for 5,647.6 grams of methampheta‐
mine, 4.73 grams of heroin, and 499 grams of cocaine, yielding
a base offense level of 38. The court’s calculation included
drugs that Jones received while the conspiracy was ongoing
but from individuals unrelated to the conspiracy. The court
concluded that those transactions were also relevant conduct.
The court’s calculation also included drugs that were pur‐
chased and sold as part of the larger Count 1 conspiracy, even
though Michael Jones was not directly involved himself in
those transactions. The court reasoned that because Jones
bought large amounts of drugs from Balentine, he had to
know that the broader conspiracy was moving similarly large
amounts of drugs through other people.
On appeal, Michael Jones argues that he should be respon‐
sible only for the 91 grams of methamphetamine that he sold
to one buyer in January 2018, not the much larger quantities
of drugs that Balentine transported from Georgia or the drugs
Jones received from suppliers not charged in the indictment.

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74 Nos. 20‐1405, et al.
Michael Jones contends that the drugs transported from Geor‐
gia were not reasonably foreseeable to him and that the drugs
he received from people other than those named in the indict‐
ment were not within the scope of relevant conduct.
Drugs obtained from sources outside the conspiracy
should not be included automatically in the relevant conduct
analysis; a closer look is needed. “The mere fact that the de‐
fendant has engaged in other drug transactions is not suffi‐
cient to justify treating those transactions as ‘relevant con‐
duct’ for sentencing purposes.” United States v. Purham, 754
F.3d 411, 415 (7th Cir. 2014), quoting United States v. Crockett,
82 F.3d 722, 730 (7th Cir. 1996). The district court did not err
here, however, when it included the drugs Jones received
from sources outside the charged conspiracy.
When setting a defendant’s base offense level, the district
court considers acts or omissions that were part of the same
course of conduct or common scheme or plan as the offense
of conviction. U.S.S.G. § 1B1.3(a)(2). “Two offenses are part of
the same course of conduct where they are ‘connected or suf‐
ficiently related to each other as to warrant the conclusion that
they are part of a single episode, spree, or ongoing series of
offenses.’” Purham, 754 F.3d at 414, quoting § 1B1.3 cmt.
n.5(B). In determining whether two offenses are sufficiently
related to be considered the same course of conduct, courts
should consider the “degree of similarity of the offenses, the
regularity (repetitions) of the offenses, and the time interval
between the offenses.” U.S.S.G. § 1B1.3 cmt. n.5(B).
The drug transactions at issue here occurred from late
2017 to May 2018 and thus overlapped with the charged con‐
spiracy. Cf. Purham, 754 F.3d at 414 (district court erred in
treating as relevant conduct drug transactions that occurred

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Nos. 20‐1405, et al. 75
two years before the charged conspiracy). Michael Jones reg‐
ularly received methamphetamine from individuals outside
the conspiracy. He received approximately one pound of
methamphetamine from his outside source each week. Fi‐
nally, both the conspiracy and Jones’ transactions with the
outside sources involved methamphetamine eventually sold
in Kokomo, so the offenses were very similar. Cf. United
States v. Soto‐Piedra, 525 F.3d 527, 531–32 (7th Cir. 2008) (sale
of crack cocaine by defendant’s co‐conspirators was not rele‐
vant conduct because defendant never sold crack himself and
there was no evidence he knew that powder cocaine he sold
was being converted to crack then sold by his co‐conspira‐
tors); Purham, 754 F.3d at 415 (sales of cocaine to residents of
same city on two separate occasions years apart did not link
two instances as “relevant conduct”).
The overlap between the drugs in the conspiracy and
those Michael Jones obtained from other sources at the same
time, for distribution in the same city, was sufficient to treat
them as relevant conduct, for we “define relevant conduct
broadly.” United States v. Orozco‐Sanchez, 814 F.3d 844, 850
(7th Cir. 2016). The district court did not err by treating the
drugs Jones purchased from sources outside the charged con‐
spiracy as relevant conduct.
The court also did not err when it included in the Michael
Jones calculation the drugs Balentine transported from Geor‐
gia as part of the Count 1 conspiracy. Those transactions were
foreseeable to Jones, who contributed money to make the pur‐
chase. The district court did not err in its drug quantity cal‐
culation for Michael Jones.

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76 Nos. 20‐1405, et al.
2. Antwon Abbott
The district court attributed 23.2 grams of actual metham‐
phetamine and 127.6 grams of methamphetamine mixture to
Abbott, for a base offense level of 28. At sentencing, Abbott
objected to the 127.6 grams of methamphetamine mixture. Ac‐
cording to wiretap evidence, that was the amount he pur‐
chased from Balentine. The court overruled the objection,
finding that the evidence of drug quantity was sufficiently re‐
liable.
Abbott first argues there was insufficient evidence that he
was purchasing any methamphetamine from Balentine. Dur‐
ing Abbott’s bench trial, the case agent testified that Abbott
texted Balentine, “Need one, cuz.” Based on his knowledge
obtained through the investigation, the agent explained that
Abbott was requesting one ounce of methamphetamine. Ab‐
bott points out that Balentine sold drugs other than metham‐
phetamine. But the agent testified that methamphetamine
was Balentine’s primary product, and other evidence he gath‐
ered over the course of the investigation supported his under‐
standing that Abbott was requesting methamphetamine.
There was no error on this point.
Abbott argues next that a methamphetamine transaction
he had planned with Balentine in March 2018 did not in fact
occur. “[N]egotiated quantities of undelivered drugs can be
included so long as there was true negotiation and not idle
talk.” United States v. Corral, 324 F.3d 866, 871 (7th Cir. 2003).
Abbott’s request was not idle talk. He reached out to Balentine
on the evening of March 15 requesting one ounce of metham‐
phetamine. According to Balentine, Perry Jones tried to con‐
tact Abbott about the deal later that evening. The deal was
cancelled later when Abbott learned that his potential

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Nos. 20‐1405, et al. 77
customer had stopped in Lafayette and would not be able to
meet him to complete the deal. The evidence thus indicated
that Abbott arranged to purchase one ounce of methamphet‐
amine from Balentine. The district court did not clearly err in
including that planned March 2018 transaction in its drug
quantity calculation.
G. Inaccurate or Unreliable Evidence
Reed, O’Bannon, and Perry Jones all challenge their sen‐
tences on the ground that they were based on unreliable tes‐
timony or inaccurate information regarding their prior of‐
fenses. We reject these challenges.
Criminal defendants have a Fifth Amendment right to be
sentenced based on accurate information. United States v.
Tucker, 404 U.S. 443, 448–49 (1972), cited in United States v. Wal‐
ton, 907 F.3d 548, 552 (7th Cir. 2018). To prove a violation of
that right, “a defendant must show both that the information
is false and that the court relied on it.” Walton, 907 F.3d at 552.
1. Jason Reed
Reed was found guilty on Count 1 (conspiracy to possess
with intent to distribute and to distribute controlled sub‐
stances), Count 4 (distribution of controlled substances), and
Count 9 (felon in possession of a firearm). The district court
found that Reed’s offense level was 43 and that his criminal
history category was VI. The district court applied a three‐
level enhancement for his role as a manager or supervisor in
the conspiracy. Reed’s guideline sentence was life in prison.
He was sentenced to concurrent terms of 420 months on
Counts 1 and 4 and 120 months on Count 9.
Reed argues that his sentence should be vacated because
his leadership role enhancement and drug quantity

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78 Nos. 20‐1405, et al.
determination were based on unreliable testimony from
Melissa Baird, his former girlfriend and co‐conspirator. Spe‐
cifically, he asserts that Baird’s testimony that Reed obtained
methamphetamine from Balentine for her benefit was unreli‐
able, given that Baird had a personal relationship with Balen‐
tine. Similarly, he insists that Baird’s testimony that Reed di‐
rected her was not believable since Baird had relationships
with Balentine and Riley that were independent of Reed.
The district court addressed Baird’s credibility. The judge
saw her testify at trial and found her testimony to be credible.
The judge considered Baird’s personal relationship with Bal‐
entine but did not find it undermined her credibility. The
judge also noted that while independent corroboration of
Baird’s testimony was not necessary, some was available in
the form of Reed’s coordination of the drug deal between Bal‐
entine and Owens. The court also overruled Reed’s objection
to the drug quantity and base offense level, again crediting
Baird’s testimony.
The district court’s decision to credit Baird’s testimony
was not clearly erroneous. Reed’s arguments attacking Baird’s
credibility are, to put it mildly, common in drug prosecutions.
His attacks presented issues for the district court to weigh and
decide. Baird’s interest in seeking some favor or leniency in
her own prosecution did not require the district court to dis‐
credit her testimony. United States v. Lockwood, 840 F.3d 896,
901 (7th Cir. 2016) (district court may credit testimony that is
“totally uncorroborated and comes from an admitted liar,
convicted felon, or large scale drug‐dealing, paid government
informant”), quoting United States v. White, 360 F.3d 718, 720
(7th Cir. 2004). Baird’s personal relationship with Balentine
did not require the court to find that Reed could not have

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Nos. 20‐1405, et al. 79
obtained drugs for Baird. Nor did it preclude the court from
finding that Baird was working on Reed’s behalf. We affirm
Reed’s sentence.
2. Michael O’Bannon
The jury found O’Bannon guilty on Count 6 (conspiracy to
use facilities of interstate commerce to commit murder for
hire), Count 11 (possession with intent to distribute between
5 and 50 grams of methamphetamine), and Count 13 (posses‐
sion of a firearm as a previously convicted felon). The district
court found that O’Bannon’s total offense level was 47, which
was adjusted down to the maximum of 43, and that his crim‐
inal history category was IV. His guideline sentence would
have been life, but statutory maximums on the counts of con‐
viction meant that the guideline sentence became the de facto
life sentence of 720 months (consecutive statutory maxi‐
mums). The district court gave O’Bannon a long but below‐
guideline sentence totaling 450 months: concurrent terms of
450 months on Count 11 and 120 months each on Counts 6
and 13.
On appeal, O’Bannon argues that the district court calcu‐
lated his guideline range based on unreliable evidence. At
sentencing, he objected to the district court’s reliance on state‐
ments made by an associate of his. The district court did not
acknowledge the argument and did not make any findings as
to the associate’s reliability. O’Bannon asserts that the district
court’s silence on the point requires us to vacate his sentence.
We agree that the district court’s silence was an error, but a

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80 Nos. 20‐1405, et al.
close look at the overall sentencing decision shows that the
error was harmless.6
To explain, when a defendant is sentenced based on the
drug quantity Guidelines, the court “must find the govern‐
ment’s information sufficiently reliable to determine drug
quantity by a preponderance of the evidence.” United States v.
Helding, 948 F.3d 864, 870 (7th Cir. 2020). The court must also
“take care in determining the accuracy” of evidence that
would substantially increase the drug quantity. Id. A sentenc‐
ing court has discretion to credit statements of confidential in‐
formants about drug quantity, but when a defendant objects
to the evidence as unreliable, the court needs to make a find‐
ing about its reliability. Id. at 866 (vacating sentence and re‐
manding where district court made no finding about reliabil‐
ity of key evidence).
Here, the district court found that O’Bannon was respon‐
sible for a conservative estimate of 48 pounds or 21.77 kilo‐
grams of methamphetamine based on a statement made by
O’Bannon’s associate to the case agent. The associate did not
testify at the trial or sentencing hearing. In his statement, the
associate claimed that for at least two years, he traveled to
Georgia with O’Bannon two to five times a month to conduct
drug business. He said they would pick up two to eight
pounds of methamphetamine on each trip. At another point,
however, the associate said they bought seven to eight
pounds of methamphetamine per trip. O’Bannon alerted the
district court to this inconsistency and other errors in the as‐
sociate’s statement that made the math calculations “fuzzy,”
6 The government did not respond to this argument in its brief, and
we denied its later request to file a supplemental brief.

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Nos. 20‐1405, et al. 81
but the court did not make any findings that explained its re‐
liance on the associate’s statement. 7
That was a procedural error. Both Federal Rule of Crimi‐
nal Procedure 32(i) and U.S.S.G. § 6A1.3 require the court to
make findings on disputed issues. While we have often said
that a district court need not belabor the obvious at sentenc‐
ing, the reliability of secondhand information from an associ‐
ate about the volume of a defendant’s dealings is not obvious.
A sentencing court “may pass over in silence frivolous argu‐
ments for leniency, but where a defendant presents an argu‐
ment that is ‘not so weak as not to merit discussion,’ a court
is required to explain its reason for rejecting that argument.”
United States v. Schroeder, 536 F.3d 746, 755 (7th Cir. 2008),
quoting United States v. Miranda, 505 F.3d 785, 792 (7th Cir.
2007). O’Bannon pointed to inconsistencies suggesting that
the associate’s statement was unreliable. The court should
have explained why it nevertheless found the associate credi‐
ble. Helding, 948 F.3d at 871–72 (vacating sentence where trial
court did not take steps to ensure that out‐of‐court statements
from confidential informants about quantity defendant sold
had “a modicum of reliability”).
In this case, however, we are persuaded that even if the
amounts attributed to O’Bannon by that associate were re‐
moved from the calculation, there would have been no bot‐
tom‐line effect on the guideline recommendation. The judge
made clear that he thought a preponderance of the evidence
7 The associate also claimed that methamphetamine sold for about
$40,000 per kilogram in Kokomo. At the sentencing hearing, however, the
case agent said that estimate was “not accurate whatsoever,” and that
methamphetamine sold for about $10,000 per kilogram.

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82 Nos. 20‐1405, et al.
showed that O’Bannon could properly be found accountable
for the even larger drug quantities attributed to Reggie Balen‐
tine and Perry Jones. If the judge had done so, he would have
used a base offense level of 38 for O’Bannon’s drug count ra‐
ther than the 36 that was actually used. See O’Bannon Sent.
Tr. 118–19, 128, 168.
In other words, despite the erroneous failure to address
the credibility of the associate’s statement, the judge cut
O’Bannon a significant break on drug quantity. Numerous
other enhancements would still have applied regardless of the
base offense level: two levels for possession of firearms, two
levels for using or directing use of violence, two levels for a
pattern of criminal conduct, three levels for being a manager
or supervisor, and two more levels for obstructing justice.
O’Bannon Sent. Tr. 134.
If we were to remand for a finding on the associate’s state‐
ment, and if the district court were to find the statement about
drug quantity not credible, we have no doubt the court would
hold O’Bannon accountable for Balentine’s and Perry Jones’
drug quantities. That would raise his base offense level by two
levels. Under either base offense level, the total guideline cal‐
culation would still be literally off the chart, and the result
would be a total offense level of 43 with a recommendation of
a life sentence. Because no count of conviction authorized a
life sentence, the life recommendation would in turn be con‐
verted to a recommendation of maximum statutory sentences
totaling 720 months. O’Bannon Sent. Tr. 135. The judge varied
downward substantially from the recommendation, provid‐
ing a detailed explanation under 18 U.S.C. § 3553(a) that
showed thoughtful consideration of powerful aggravating

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Nos. 20‐1405, et al. 83
and mitigating circumstances and the individual circum‐
stances of O’Bannon’s life and his crimes.
Because O’Bannon’s guideline range and ultimate sen‐
tence would not change on remand, the district court’s over‐
sight was harmless, so we affirm O’Bannon’s sentence. See
Thomas, 897 F.3d at 817 (two‐level error harmless where final
range would still have been life in prison); Fletcher, 763 F.3d
at 718 (guideline error harmless where either calculation was
higher than statutory maximum, so that final guideline rec‐
ommendation of statutory maximum would stay the same);
United States v. Anderson, 517 F.3d 953, 966 (7th Cir. 2008)
(guideline error harmless where Guidelines would call for
same range upon resentencing).
3. Perry Jones
Perry Jones pleaded guilty to Count 1 (conspiracy to pos‐
sess with intent to distribute and to distribute controlled sub‐
stances), Count 7 (felon in possession of a firearm), and Count
17 (felon in possession of a firearm). The district court found
that his total offense level was 38 and his criminal history cat‐
egory was V, which yielded a guideline range of 360 months
to life. The court sentenced him to concurrent terms of 260
months on Count 1, 60 months on Count 7, and 60 months on
Count 17.
At sentencing, Perry Jones sought a downward departure
or variance on the ground that his criminal history category
overstated the seriousness of his record. Specifically, he ar‐
gued that his 1994 Indiana conviction for dealing cocaine
within 1000 feet of school property, for which he was sen‐
tenced to 25 years in prison, did not deserve three criminal
history points. The only information about the offense

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84 Nos. 20‐1405, et al.
available to the court was that Jones had sold cocaine to an
informant for $40. The Sentencing Guidelines encourage de‐
partures where criminal history calculations over‐ or under‐
represent the seriousness of the defendant’s record and the
likelihood that the defendant will commit other crimes.
U.S.S.G. § 4A1.3(b)(1). Courts have wide discretion in decid‐
ing whether to grant a departure or variance. United States v.
Marin‐Castano, 688 F.3d 899, 905 (7th Cir. 2012). Here, the dis‐
trict court denied Perry Jones’ request for a downward depar‐
ture or variance based on criminal history, though its final
sentence was 100 months below the bottom of the guideline
range.
On appeal, Jones argues that the district court erred by as‐
suming that there were aggravating factors involved in his
1994 offense and giving “specific consideration” to those as‐
sumptions when setting his sentence. We are not persuaded.
In considering Perry Jones’ request for a downward de‐
parture, the district court explained that it did not know what
the rules were under Indiana law, but “it would appear that
… there was a reason for a serious sentence like that.” The
court acknowledged that the low ($40) stakes in the transac‐
tion presented the best argument for a downward departure
but said “there’s just scant little here on the $40 to justify a 25‐
year sentence. I think there’s got to be more.” The court again
expressed its suspicions about the circumstances of the of‐
fense, explaining, “I don’t know what the law is, but a 25‐year
sentence is not insignificant. So I think that there had to be
some serious stuff going on there. It’s within a school. Maybe
that was it.” In response to defense counsel’s assertion that
the court should focus on what was in the record and not
speculate on what may have justified the sentence, the court

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Nos. 20‐1405, et al. 85
explained that it would be improper to look the other way and
say this was a minor offense when “the severity of the sen‐
tence argues otherwise.”
The district court had before it hard evidence showing that
the state court imposed a 25‐year sentence—a long sentence
by any standards. It was not speculative for the court to inter‐
pret that sentence as a reflection of the seriousness of the of‐
fense. Though the low stakes of the transaction weighed in
favor of a downward departure, the district court, with the
limited information it had before it, was not required to find
that the Guidelines overstated the seriousness of Jones’ 1994
conviction.
More generally, as we see the issue, the problem is not that
the district court relied on bad information. The problem is
instead that Jones did not provide enough information to con‐
vince the court to disregard the guideline calculations. Based
on the available information about Jones’ 1994 conviction, the
district court correctly assessed three criminal history points.
Jones offered one additional detail (that the deal was for only
$40 worth of drugs) but nothing more. The judge considered
the point and candidly speculated about possible explana‐
tions for the severe sentence. In the absence of more infor‐
mation about the circumstances of the 1994 case, the judge
simply was not persuaded to depart. Jones has not shown that
the court relied on speculation in setting his (below‐guideline)
sentence.
It is possible that additional information might show that
three criminal history points overstate the seriousness of the
1994 conviction. But the district court’s calculation was cor‐
rect. If Jones had additional information showing that his
criminal history points overstated the seriousness of his 1994

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86 Nos. 20‐1405, et al.
conviction, he had the opportunity to provide it to the court
and should have done so. The court was not required to de‐
part from the Guidelines as written, especially without relia‐
ble information supporting Jones’ argument that those provi‐
sions overstated the seriousness of the conviction.
We recognize that the judge wondered aloud why the 1994
sentence was so serious and speculated about possible expla‐
nations. There is nothing wrong with such questioning and
speculating along the path to a final decision. The judge’s
questions could not be answered by the parties, but that does
not mean the court relied upon false information in deciding
the sentence. Instead, the court followed the Guidelines in the
criminal history calculation for the 1994 conviction. Jones
simply did not provide information to the court requiring it
to vary or depart from that technically correct calculation.
Moreover, considering the court’s broader explanation for
the sentence, the 1994 conviction that is the focus on appeal
played little if any role in the court’s ultimate decision to give
Jones a below‐guideline sentence. When addressing criminal
history, the court focused instead on several undisputed as‐
pects of his record that weighed against a downward depar‐
ture or variance. Jones had been in and out of prison his whole
life. Even after he received a 25‐year sentence when he was
only 18 years old, he continued to engage in crime. The court
also noted that Jones had been released early on parole for the
1994 conviction, but he violated parole and went back to
prison, as he did several other times. The district court did not
err in its treatment of Jones’ criminal history in general or the
1994 conviction in particular.

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Nos. 20‐1405, et al. 87
H. Substantive Reasonableness
At the time of sentencing, Perry Jones was 45 years old. He
reports that he is in poor health and asserts that African Amer‐
ican men his age have an average life expectancy of about sev‐
enteen years. Even the below‐guideline sentence of 260
months may amount to a life sentence for him. Given all this,
Perry Jones argues that his sentence was substantively unrea‐
sonable.
We review the substantive reasonableness of a district
court’s sentencing decisions for abuse of discretion. United
States v. Griffith, 913 F.3d 683, 687 (7th Cir. 2019). “When as‐
sessing the substantive reasonableness of a sentence under
the abuse of discretion standard, we presume that a within‐
guidelines sentence is reasonable.” Id. at 689. It follows that
we also presume that a below‐guidelines sentence is not un‐
reasonably harsh. Id. The defendant “bears the burden of re‐
butting that presumption by demonstrating that the sentence
is unreasonably high in light of the section 3553(a) factors.”
Id.
Jones argues that his “addiction‐related, non‐violent, low‐
level drug distribution[]” convictions mandate a lower sen‐
tence. In other words, he contends that the circumstances of
his criminal history and life in general justify a further re‐
duced sentence.
We have often said that the probability that a defendant
“will not live out his sentence should certainly give pause to
a sentencing court.” United States v. McDonald, 981 F.3d 579,
582 (7th Cir. 2020), quoting United States v. Wurzinger, 467 F.3d
649, 652 (7th Cir. 2006). Such sentences can arise where a de‐
fendant has amassed a long record of repeated criminal

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88 Nos. 20‐1405, et al.
activity, as Perry Jones had. We have affirmed such de facto
life sentences where the sentencing court appreciated the se‐
verity of the sentence, as the court did here. Id.
Different judges might have responded differently to
Jones’ mitigating arguments, but such differences do not
show error. The district court considered these circumstances
in setting this sentence. The court acknowledged that Jones
had faced many challenges in his life and that he had been
introduced to drugs early on, leading to an addiction that he
struggled to overcome. The court acknowledged that Jones’
criminal activity was not necessarily a product of greed or a
desire to create a large‐scale drug operation but was instead
driven by his addiction. The court also considered Jones’ age
when setting his below‐guideline sentence. The court ulti‐
mately concluded, however, that the seriousness of the of‐
fense, including the involvement of guns and the fact that
Jones fled from police on multiple occasions, justified the sen‐
tence imposed.
Jones cites the thorough opinion by the late Judge Wein‐
stein in United States v. Bannister, 786 F. Supp. 2d 617 (E.D.N.Y.
2011), which reviewed broad issues of race, poverty, and his‐
tory shaping the criminal justice system, federal sentencing
law, and individual sentencing decisions. Bannister is an ex‐
ample of the broad discretion district judges regained in the
wake of United States v. Booker, 543 U.S. 220 (2005), as the Sen‐
tencing Guidelines were rendered effectively advisory.
The district court here had the discretion to follow an ap‐
proach like Bannister, but it was not required to do so. The
court in this case weighed the mitigating factors differently
than Jones would have liked. That is not sufficient to rebut the
presumption that his below‐guideline sentence was not

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Nos. 20‐1405, et al. 89
unreasonably severe. See United States v. Trujillo‐Castillon, 692
F.3d 575, 578 (7th Cir. 2012) (district court did not err in eval‐
uating mitigating evidence simply because it assigned such
evidence less weight than defendant would have liked).
Perry Jones also argues that the current conversion ratio
for methamphetamine is “faulty” because it does not comport
with changes in how the drug is manufactured and trafficked.
This challenge amounts to a generalized policy disagreement
with the Guidelines. District courts may depart or vary from
the advice of the Guidelines based on such policy disagree‐
ments, but they are not obliged to do so. United States v. Oberg,
877 F.3d 261, 264 (7th Cir. 2017); United States v. Stephens, 986
F.3d 1004, 1010 (7th Cir. 2021) (“[A] sentencing court may pass
over generalized policy disagreements with the Guidelines.”).
The potentially “problematic” treatment of methampheta‐
mine in the Guidelines is an issue that may be addressed by
Congress or the Sentencing Commission, or by individual
judges. It does not make Perry Jones’ sentence unreasonable.
We affirm his sentence.
I. Acquitted Conduct
Finally, O’Bannon argues that he was unconstitutionally
sentenced based on conduct for which he was acquitted. The
jury acquitted him of the Count 1 conspiracy, but the district
court nevertheless imposed a three‐level enhancement for his
role as a manager or supervisor of that conspiracy after find‐
ing by a preponderance of the evidence that O’Bannon had
actually participated in the conspiracy. As O’Bannon
acknowledges, his argument is foreclosed by binding Su‐
preme Court precedent. United States v. Watts, 519 U.S. 148,
157 (1997) (jury’s verdict of acquittal does not prevent sen‐
tencing court from considering conduct underlying acquitted

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90 Nos. 20‐1405, et al.
charge so long as conduct has been proved by preponderance
of evidence); accord, e.g., United States v. Bridgewater, 950 F.3d
928, 938 (7th Cir. 2020); United States v. Hurn, 496 F.3d 784, 788
(7th Cir. 2007). The district court did not err on this point.
* * *
We AFFIRM the convictions of all the defendants. We also
AFFIRM the sentences for all defendants, except for Thomas
Jones, whose sentence is VACATED and whose case is
REMANDED for resentencing consistent with this opinion.

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Nos. 20-1405, et al. 91
KIRSCH, Circuit Judge, dissenting in part. I agree with the
majority’s resolution of every issue but one. In my view, the
district judge committed no error in applying the firearm en-
hancement to Thomas Jones, and therefore, he is not entitled
to resentencing.
Our review of the district court’s application of a firearm
enhancement is highly deferential. “We review the district
court’s factual findings for clear error and will reverse only if
we are left with a definite and firm conviction that a mistake
has been made.” United States v. Ramirez, 783 F.3d 687, 690 (7th
Cir. 2015). For the enhancement to apply to Thomas Jones, the
district court needed to find by a preponderance of the evi-
dence that: (1) someone in the jointly undertaken criminal ac-
tivity actually possessed a firearm in furtherance of the activ-
ity, and (2) the firearm possession was reasonably foreseeable
to Thomas Jones. See id. The district court found that Thomas
Jones’s uncle and co-conspirator Michael Jones possessed a
firearm in furtherance of the joint criminal act—the January
2018 drug deal—and his possession was reasonably foreseea-
ble to Thomas Jones. Neither finding was erroneous.
A sentencing judge’s factual finding at step one “is not an
onerous burden,” and can be satisfied by evidence that a co-
conspirator “regularly carried a gun during the course of the
conspiracy.” See United States v. Luster, 480 F.3d 551, 558 (7th
Cir. 2007). The district court found that Michael Jones pos-
sessed a gun at the January 2018 transaction based on exactly
this type of evidence. The judge found credible the trial testi-
mony of Michael Bradley, a drug dealer who purchased meth-
amphetamine from Michael Jones on several occasions from
the fall of 2017 to March 2018. Bradley testified that Michael
Jones was “always” armed and never left his home without a

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92 Nos. 20-1405 et al.
gun. Bradley further testified that “[t]here was never a time
that [Michael Jones] didn’t have a gun” during their drug
transactions. According to Bradley, Michael Jones kept a gun
on his person and in his Hummer—the same vehicle in which
Thomas and Michael Jones met with the buyer and his wife
and executed the January 2018 transaction. The judge also re-
lied on corroborating evidence demonstrating that Michael
Jones possessed guns on other occasions. This reliable evi-
dence that Michael Jones always possessed a gun and kept a
gun in his Hummer supported an inference that he possessed
a gun at the January 2018 drug deal.
The majority eschews clear error review to discard the dis-
trict court’s supported factual findings. But nothing in the rec-
ord suggests that the district court made a mistake. The ma-
jority says that the record contains “no evidence that Michael
Jones … actually possessed a firearm in connection with the
January 2018 transaction.” Ante at 62. To reach that conclu-
sion, the majority dismisses Bradley’s testimony because he
“was not a party to the drug transaction in question.” Id. at 63.
But sentencing judges are not required to track down direct
evidence from an eyewitness or an individual actually in-
volved in the particular jointly undertaken activity. Bradley’s
credible testimony supported a finding that Michael Jones
possessed a gun at the January 2018 drug transaction because
he “always” possessed a gun during drug transactions from
the fall of 2017 to March 2018 and kept one in his Hummer.
Nothing in the record suggests that this inference was implau-
sible. See United States v. DeLeon, 603 F.3d 397, 402 (7th Cir.
2010). The majority might view Bradley’s testimony differ-
ently than the district judge, but our “task on appeal is not to
see whether there is any view of the evidence that might un-
dercut the district court’s finding; it is to see whether there is

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Nos. 20-1405 et al. 93
any evidence in the record to support the finding.” United
States v. Wade, 114 F.3d 103, 105 (7th Cir. 1997); see also United
States v. Ford, 22 F.4th 687, 693 (7th Cir. 2022) (clear error does
not permit reversal simply because the facts before the sen-
tencing judge “allowed room for argument”); United States v.
Jarrett, 705 F.2d 198, 208 (7th Cir. 1983) (as the factfinder at
sentencing, the district court is entitled to accord such weight
as it sees fit to witness testimony).
Because the majority holds that the district judge clearly
erred at step one, it does not address whether Michael Jones’s
gun possession was reasonably foreseeable to Thomas Jones.
Clearly, it was. Michael and Thomas Jones lived together and
conspired to sell methamphetamine at the January 2018 trans-
action and on several other occasions. According to Rebecca
Myers, after Thomas Jones got out of prison for another meth
conviction in December 2017, he lived with her and Michael
Jones. As the majority acknowledges, the district court “noted
that Thomas Jones lived on and off with Michael, who had
guns in his home[.]” When agents searched the residence in
May 2018, they recovered four firearms. The district judge
also found that there was evidence that Thomas Jones “was
not a stranger to weapons in his own past drug dealings,”
making it foreseeable that this type of transaction might in-
clude guns. (In February 2016, officers executing a search war-
rant searched Thomas Jones’s safe and found a gun, maga-
zine, and drugs.) There is nothing unusual about guns at drug
transactions, particularly by those who regularly possess
guns in connection to drug dealing. See United States v. Jones,
900 F.3d 440, 449 (7th Cir. 2018) (“Our court has recognized
that, given the dangers of drug trafficking, guns and drugs
often go hand in hand.”). I would affirm the district court’s
unremarkable factual finding that Michael Jones’s gun

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94 Nos. 20-1405 et al.
possession at the January 2018 drug deal was reasonably fore-
seeable to Thomas Jones.
In sum, I respectfully dissent from the majority’s holding
that the district court clearly erred in applying the firearm en-
hancement based on Michael Jones’s possession at the Janu-
ary 2018 transaction. But this holding does not bar application
of the enhancement for a different reason on remand. The first
time around, the district court opted to define the scope of the
joint criminal undertaking as the January 2018 transaction be-
cause “even though [it] could” find that Thomas Jones partic-
ipated in the broader conspiracy, the judge didn’t believe he
needed to make such a finding. It will be up to the district
judge on remand to decide whether to re-evaluate the scope
of Thomas Jones’s participation in jointly undertaken criminal
activity.

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