In the

United States Court of Appeals

For the Seventh Circuit

Nos. 07-3830 and 07-3831

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WALTER J. FOX AND RODNEY SYKES,

Defendants-Appellants.

Appeals from the United States District Court

for the Western District of Wisconsin.

No. 07-CR-101-S—John C. Shabaz, Judge.

ARGUED SEPTEMBER 9, 2008—DECIDED NOVEMBER 14, 2008

Before BAUER, CUDAHY, and WOOD, Circuit Judges.

CUDAHY, Circuit Judge. Rodney Sykes and Walter Fox

pleaded guilty to conspiracy to distribute and to

possess with intent to distribute crack cocaine. Each

disagrees with the application of the Sentencing Guidelines to the facts of his case and contends that his sentence is unreasonable. Sykes argues that the district court

improperly increased his base offense level on the basis

that he was an organizer of the offense, and Fox contends

that the drug quantity for which he was responsible
2 Nos. 07-3830 and 07-3831

This court has jurisdiction over the appeal pursuant to 1

28 U.S.C. §§ 1291, 1294 and 18 U.S.C. § 3742(a).

was miscalculated. We find that Sykes is entitled only to

a limited remand under Kimbrough v. United States, 128

S. Ct. 558, 564, 169 L. Ed. 2d 481 (2007), but that Fox’s

sentence must be vacated and remanded for reconsideration of the applicable drug quantity.1

I. Background

A. Facts

The appellants, Rodney Sykes and Walter Fox, are selfdescribed crack cocaine addicts who bought, sold and used

drugs together. They spent a lot of their time getting high

at Sykes’s house. At some point, Sykes, Fox and their codefendant James Sanderson attracted the attention of

the authorities and became targets of an investigation.

On June 1, 2007, an undercover officer (the UO) made

arrangements to purchase crack cocaine from Sykes. Sykes

met the UO at a designated location and sold her 2.541

grams of crack cocaine for $150. On June 6, the UO made

arrangements to purchase more crack cocaine from

Sykes. While the UO was waiting at the designated location, Sykes called her and asked her to meet him at a gas

station. There, the UO met Sykes and an unknown associate; the associate sold her 4.743 grams of crack cocaine

for $300.

The UO again made arrangements with Sykes to purchase crack cocaine on June 13, 2007. Police officers ob-
Nos. 07-3830 and 07-3831 3

An “eight-ball” is typically one eighth of an ounce of crack 2

cocaine, or 3.5 grams.

served Fox leave Sykes’s residence and travel to the

designated location. Fox sold the UO one “eight-ball” of

2

crack cocaine for $150. The UO asked Fox if he had the

other eight-ball that the UO had requested. Fox did not,

but he agreed to retrieve it. The police officers observed

Fox travel back to Sykes’s house and then return to the

designated location where the UO was waiting. Fox then

provided the UO with the second eight-ball. The combined weight of the two eight-balls was 4.138 grams.

On June 22, the UO once again made arrangements with

Sykes to purchase crack cocaine. This time James Sanderson met the UO at the designated location and sold her

5.886 grams for $450.

Finally, on June 27, investigators executed a search

warrant at Sykes’s residence. They found 40 grams of crack

cocaine and other items indicative of the use and sale of

drugs. Sykes was arrested and gave a statement to the

police.

B. Procedural History

On June 27, 2007, the grand jury returned a six-count

indictment against Sykes, Fox and Sanderson. Count One

charged all three men with conspiracy to distribute and to

possess with intent to distribute five grams or more of

crack cocaine from on or about June 1, 2007 to on or about
4 Nos. 07-3830 and 07-3831

June 22, 2007. Sykes and Fox pleaded guilty to Count One

of the indictment on September 12, 2007 pursuant to

written plea agreements. Sanderson did not plead guilty

at that time; instead, when the present case was appealed,

his case was still active in the district court.

In Sykes’s Presentence Investigation Report (PSR), the

probation officer recommended a two point upward

adjustment to his offense level for his role in the offense

“because [Sykes] instructed Mr. Fox and Mr. Sanderson

on the delivery of cocaine.” Sykes objected to the application of this adjustment and argued that it was

based on an incomplete summary of his post-arrest statement to investigators.

Sykes acknowledged that in his statement he said that

officers would find marijuana and crack cocaine in their

search of his residence, that any drugs located in his

residence belonged to him, that he had been selling drugs

for approximately four or five months, that he sold drugs

to make money to buy more drugs, that he usually obtained an ounce to an ounce and a half of drugs every

two or three days and that he sold the majority of them

but smoked about a quarter to a half ounce per day with

Fox and Sanderson. In support of his objection to the

enhancement for his role in the offense, Sykes submitted

an extended excerpt from the statement, in which he

gave the following answers to questions:

Detective Linsmeier: How often did you have Jamie

[Sanderson] and Walt [Fox] running dope for you?

Sykes: Running dope for me?
Nos. 07-3830 and 07-3831 5

Detective Linsmeier: Yeah, delivering dope for you.

Sykes: Walter don’t deliver no dope for me. Walt

don’t deliver no dope at all. He gets high.

Detective Linsmeier: You’re covering for Walt,

Rodney.

Sykes: No I’m not. If Walt’s delivering dope, he ain’t

delivering it for me. Now Jamie, he may go and drop

something off . . . and they don’t be doing it for me,

they be doing it for themselves.

Detective Linsmeier: So if someone calls you up to

order some dope . . .

Sykes: I go myself.

Detective Linsmeier: Yeah, but what happens if

you’re not able to?

Sykes: Jamie will run it sometimes.

Detective Linsmeier: How often does Jamie run it

for you?

Sykes: Every now and then Jamie would make a run.

Detective Linsmeier: How often? How many times

a week?

Sykes: Maybe three or four times.

Detective Linsmeier: A week?

Sykes: Yeah.

. . .

Detective Linsmeier: Did Walter ever deliver. . .
6 Nos. 07-3830 and 07-3831

Sykes: If Walter ever delivered, he’d run his own shit.

He won’t be running for me.

Detective Chamulak: So if somebody called you and

said “hey, I need something,” and you’d say, “Ok,

I’ll take care of you,” but you didn’t have it, and then

you called somebody else to take care of it?

Sykes: Yeah, I’ll do that.

Detective Linsmeier: So hypothetically someone

called you up and said I want whatever, five 8-balls,

or whatever, if you don’t have it. . .

Sykes: Then I’ll send them to somebody else.

Detective Linsmeier: Who have you sent them to in

the past?

Sykes: [Fox, Sanderson and others.]

. . .

Sykes: Somebody’s calling me, I may call Jamie;

I may call Walt; I may call somebody and say, uh,

somebody want some, you want that? And they be

like, “I’ll go get it.”

Detective Linsmeier: Okay, so where did Jamie or

Walt get the coke from? Did they get it from you or

their own source?

Sykes: They already had it. They probably already

had their own shit.

Detective Linsmeier: From you or from their own

source?

Sykes: From their own source.
Nos. 07-3830 and 07-3831 7

Sykes argued that, when his statement was considered

as a whole, it did not support a finding that Fox and

Sanderson were delivering drugs on his behalf or that

he was a leader or organizer of the activity. He also quoted

an exchange between Fox and the district court

that occurred during Fox’s change of plea hearing:

Court: Mr. Fox, what was your role in the conspiracy?

And were you a member of it?

Fox: Yes, Your Honor. I was a member according

to Count One, and on the 13 [of June, 2007] I did th

deliver . . . to the young lady that showed up at Woodman’s parking lot who was an undercover. . ..

Court: Where did you get that crack? You bought it

or just sold it? Who was your source? How did you

get it? Who gave it to you? How did you get it for

distribution?

Fox: Well, I ended up purchasing the crack cocaine.

At Sykes’s sentencing, the district court found that he

had organized the distribution of crack cocaine and

applied the two-point upward adjustment to his offense

level. The court noted that it “has read [Sykes’s postarrest statement] on several occasions and finds that

you can probably make 15 conclusions out of it, 14 of

which do not benefit the defendant and the Court isn’t

going to take that 15th step.” It pointed to the undisputed

fact that the undercover officer called Sykes to order

crack cocaine and that on at least two occasions the

drugs were delivered by someone other than Sykes. On

the subject of the June 13, 2007 sale, the court said,
8 Nos. 07-3830 and 07-3831

[T]he undercover officer made arrangements to

obtain two 8 ball quantities of crack cocaine from the

defendant. Mr. Sykes did not refer the officer to

Mr. Fox because he was out of cocaine; rather, Fox

delivered the drugs after he was observed by law

enforcement leaving the defendant’s residence.

Sykes must have provided the location and description of the customer to Fox; Sykes did, in order to

complete the sale. When Fox met with the undercover

officer, he did not have the requested amount of drugs.

He was observed by law enforcement driving back to

defendant’s residence, presumably to obtain the

additional quantity, immediately return[ing] to the

location where the undercover officer was waiting

and provid[ing] the additional crack cocaine.

Based on these circumstances, the court concluded that

the government had proven by a preponderance of the

evidence that Sykes had instructed Fox to deliver crack

cocaine at least on June 13, 2007. Later in the hearing, the

court reiterated,

A two-level increase pursuant to Section 3B1.1(c) is

applicable because the defendant organized the distribution of crack cocaine. Mr. Sykes did that. He did that

over a period of time. The evidence clearly shows

the defendant arranged to supply an undercover

officer crack cocaine on June 13, 2007 and then provided the crack to Fox who made the delivery; at least
Nos. 07-3830 and 07-3831 9

The court may have been referring here to a statement Fox 3

made during his debriefing. In Fox’s objections to his PSR, he

characterized that statement as follows: “Mr. Fox provided

detail about [the June 13, 2007 sale] during his debriefing,

explaining to police that he wanted to use Mr. Sykes’ truck and

Sykes would not allow him to do that unless Fox agreed to

do the drop off.” 

that’s what Fox apparently is saying. Defendant also 3

directed Fox and Sanderson to other customers . . . .

The court then calculated Sykes’s guidelines imprisonment range. It found him to be a career offender under

U.S. Sentencing Guidelines Manual [U.S.S.G.] § 4B1.1(a),

but, because his adjusted offense level was higher under

Chapters 2 and 3 of the guidelines, the court applied

this higher offense level. This resulted in an offense level

of 33 and a criminal history category of six, which corresponded to a guidelines imprisonment range of 235 to 293

months. The court imposed a sentence of 250 months,

based in large part on Sykes’s criminal history, which

it referred to as “the horrendous amount of crime that

this defendant has committed.”

In Fox’s PSR, the probation officer said he believed “the

government can prove by a preponderance of the

evidence that [Fox’s] relevant conduct involved 44.138

grams of crack cocaine.” This included both the 4.138

grams from the June 13, 2007 sale and the 40 grams found

in Sykes’s residence on June 22, 2007. The probation

officer’s justification for including the 40 grams from

Sykes’s residence was that “[Fox] was aware Mr. Sykes
10 Nos. 07-3830 and 07-3831

stored drugs at this location because he traveled to the

residence between controlled buys on June 13, 2007.”

Fox objected to the inclusion of the additional 40 grams

on the following bases: (1) the record did not support

the existence of a conspiracy between Fox and Sykes

beyond the one that started and ended on June 13, 2007;

(2) there was no evidence that the 40 grams were possessed

(a) in furtherance of the jointly undertaken criminal

activity and (b) during the commission of the offense of

conviction, as required by U.S.S.G. § 1B1.3(a)(1)(B); and

(3) the record did not support a conclusion that Fox

should have foreseen Sykes’s possession of the 40 grams

on June 27, 2007.

At Fox’s sentencing hearing, after Fox and the government made their arguments on the extent of relevant

conduct, the entirety of the court’s comments were

the following:

The defendant is responsible for the crack cocaine

located at [Sykes’s] residence on the date of the

search warrant. Sykes provided drug customers to the

defendant. Defendant was aware that Sykes stored

drugs in his residence. Defendant was observed

traveling to that residence to obtain additional crack

cocaine on the date he delivered crack cocaine to the

undercover officer.

. . .

[Fox] is, as a member of that conspiracy, responsible

for the crack cocaine located at the residence of the

codefendant Sykes on the day of the search. He was
Nos. 07-3830 and 07-3831 11

provided drug customers. He provided them to the

defendant. He was aware that Sykes was storing

drugs at his residence and was observed traveling to

that residence to obtain additional crack cocaine . . . .

The court then calculated Fox’s guidelines imprisonment range using the 44.138 grams of crack cocaine and the

drug quantity table in U.S.S.G. § 2D1.1(c). This process

resulted in an adjusted offense level of 23, which was

paired to Fox’s criminal history category of one to

produce a range of 46 to 57 months. After considering

Fox’s mitigating personal circumstances, the court

imposed a sentence of 46 months’ imprisonment.

Sykes and Fox both timely appealed. On September 5,

2008, Sykes submitted a letter to this court citing United

States v. Clanton, 538 F.3d 652 (7th Cir. 2008), as supplemental authority on the modified crack penalty in

support of his entitlement to a remand under Kimbrough

v. United States, 128 S. Ct. 558, 169 L. Ed. 2d 481 (2007).

II. Discussion

We review a district court’s determinations of a defendant’s role in the offense under U.S.S.G. § 3B1.1, relevant

conduct under U.S.S.G. § 1B1.3 and drug quantity under

U.S.S.G. § 2D1.1 for clear error. United States v. Artley,

489 F.3d 813, 821 (7th Cir. 2007); United States v. Johnson,

489 F.3d 794, 796 (7th Cir. 2007). We will affirm the

district court’s decision unless, after considering all of

the evidence, we are left with a definite and firm conviction that a mistake has been made. Artley, 489 F.3d at
12 Nos. 07-3830 and 07-3831

Section 3B1.1(c), under which Sykes was sentenced, provides 4

the following:

Based on the defendant’s role in the offense, increase the

offense level as follows:

If the defendant was an organizer, leader, manager, or

supervisor in any criminal activity other than [one

involving five or more participants], increase by

2 levels.

U.S.S.G. § 3B1.1(c). Application Note 2 thereto says,

To qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager, or

supervisor of one or more other participants. An upward

departure may be warranted, however, in the case of a

defendant who did not organize, lead, manage, or

supervise another participant, but who nevertheless exercised management responsibility over the property, assets,

or activities of a criminal organization.

U.S.S.G. § 3B1.1(c) cmt. n.2. And Application Note 4 says,

In distinguishing a leadership and organizational role from

one of mere management or supervision, titles such as

(continued...)

821 (citing, inter alia, United States v. Bennett, 461 F.3d

910, 912 (7th Cir. 2006)).

A. Sykes’s Role in the Offense

Sykes argues that there was not sufficient evidence in

the record to support the district court’s finding that he

was an organizer of the offense under U.S.S.G. § 3B1.1 and

that the evidence cited by the district court was not

reliable. We have summarized the evidence relied on by 4
Nos. 07-3830 and 07-3831 13

(...continued)

“kingpin” or “boss” are not controlling. Factors the court

should consider include the exercise of decision making

authority, the nature of participation in the commission

of the offense, the recruitment of accomplices, the claimed

right to a larger share of the fruits of the crime, the degree

of participation in planning or organizing the offense, the

nature and scope of the illegal activity, and the degree of

control and authority exercised over others. There can, of

course, be more than one person who qualifies as a leader

or organizer of a criminal association or conspiracy. This

adjustment does not apply to a defendant who merely

suggests committing the offense.

U.S.S.G. § 3B1.1(c) cmt. n.4.

the district court. But we may affirm the application of

Section 3B1.1 on those grounds or any others that are

supported by the record. Schuh, 289 F.3d at 973.

The evidence available to the district court included

the statements made to law enforcement by Sykes and

Fox: Sykes’s post-arrest statement, Fox’s statement

during his plea hearing and Fox’s representations to the

court in his objections to his PSR. These statements

were inconsistent on the issue whether Fox and

Sanderson delivered drugs on Sykes’s behalf. The

district court appears to have made credibility findings

with respect to these statements, sifting and winnowing

the true from the questionable. The court found that the

bulk of Sykes’s statement supported application of the

adjustment, and that Fox’s statements provided

additional support in that they showed that Fox made

deliveries for Sykes. A district court’s findings on witness
14 Nos. 07-3830 and 07-3831

In Anderson, the Court explained, “the trial judge may [not] 5

insulate his findings from review by denominating them

credibility determinations, for factors other than demeanor

and inflection go into the decision whether or not to believe

a witness. Documents or objective evidence may contradict

the witness’ story; or the story itself may be so internally

inconsistent or implausible on its face that a reasonable

factfinder would not credit it. Where such factors are present,

the court of appeals may well find clear error even in a

finding purportedly based on a credibility determination.” Id.

at 575.

credibility (even when only implied) are entitled to great,

although not absolute, deference. See Anderson v. City

of Bessemer City, N.C., 470 U.S. 564, 573-75 (1985). Here, 5

despite obvious conflicts in the statements, it was not

clear error for the district court to find that the statements of Sykes and Fox supported the conclusion that

Sykes was providing direction for Fox and Sanderson,

and that conclusion supports the application of the adjustment.

In addition, there was circumstantial evidence relating

to the drug sales on which to rely. On at least two occasions, the UO called Sykes to order crack cocaine, Sykes

agreed to make the sale and Sykes and the UO determined

a time and location for the sale, but someone other than

Sykes showed up to make the exchange. On June 13, 2007,

Fox appeared to make the sale, was apparently unaware

that the deal was for two eight-balls and went back to

Sykes’s residence to pick up the other eight-ball. One

could make inferences from these circumstances that

would not support the application of Section 3B1.1, but
Nos. 07-3830 and 07-3831 15

Moreover, the present case is distinguishable from Schuh 6

because in that case, “there was no evidence that [the defendant]

organized, led, or in any way controlled the [drug dealers]. . . .

[A]cting as a ‘middleman’ by directing customers to dealers

is insufficient for a § 3B1.1 adjustment. . . . [The defendant]

did not supply the cocaine to the dealers or control who sold

it, when they sold it, at what price they sold it, how they

acquired it, how much or to whom they sold, what type they

sold, or how many dealers could sell at [his bar] at any given

time.” 289 F.3d at 973. Here, the district court found that

Sykes was more than just a middleman and that he did exercise control over his codefendants.

one not implausible inference is that Sykes was

directing his acquaintances, and it was not clear error for

the district court to make that inference.

Sykes argues that acting as a middleman or a narcotics

broker is alone insufficient to support an adjustment

under Section 3B1.1, citing United States v. Reneslacis, 349

F.3d 412, 417 (7th Cir. 2003), and United States v. Schuh, 289

F.3d 968, 973 (7th Cir. 2002). Those cases were clarified

in United States v. Howell, 527 F.3d 646, 649 (7th Cir.

2008), when the court said, “while we examine all of the

factors, we emphasize both relative responsibility and

control over other participants, and recognize that middleman status is not necessarily inconsistent with being

a manager or supervisor.”6

There is more evidence here to support an organizer

adjustment than there was in United States v. Mustread,

42 F.3d 1097, 1100-01 (7th Cir. 1994), one of the cases

Sykes cites in support of his argument that he did not

have more control over the offense than did Fox or Sander-
16 Nos. 07-3830 and 07-3831

son. In Mustread, the only evidence that supported the

district court’s application of Section 3B1.1 was the fact

that in one instance, the defendant asked a friend’s drug

“mule” to transport drugs for him. The mule agreed to

do so only after asking permission from his boss (the

defendant’s friend). Id. This court found that evidence to

be insufficient to support a leadership adjustment to

the defendant’s sentence and therefore that the district

court clearly erred in applying Section 3B1.1. Id. at 1104-

05. The court said,

[W]e have recognized that a key inquiry, though not

the only inquiry, is whether the defendant exercised

some control over at least one other participant. That

does not mean that others must have played marionette to the defendant’s puppeteer. For these purposes, to control another the defendant may simply

have organized or in some way directed him. But

however control is defined, Mustread lacked adequate control over any other participant . . . .

Mustread’s actions do not fit the rest of the seven-part

framework, either.

Id. at 1104 (citations omitted).

Sykes cites cases for the proposition that he has a due

process right to be sentenced on the basis of reliable

information, and “the hallmark of reliability is consistency

of facts and details.” United States v. Johnson, 489 F.3d 794,

798 (7th Cir. 2007) (quoting United States v. Zehm, 217 F.3d

506, 514 (7th Cir. 2000); United States v. Galbraith, 200 F.3d

1006, 1012 (7th Cir. 2000)). The mere existence of an

inconsistency, however, especially in the defendant’s
Nos. 07-3830 and 07-3831 17

The relevant conduct section of the Sentencing Guidelines 7

provides as follows:

(a) [Relevant conduct] shall be determined on the basis

of the following:

(continued...)

own statement, cannot fully thwart the court’s reliance

on such a statement. In the present case, Sykes’s admission that Sanderson sometimes delivered for him

was corroborated by the fact that Sanderson was

observed making a sale (the June 22, 2007 sale) that was

originally arranged by Sykes. The district court did not

clearly err in adjusting Sykes’s offense level based on

his supervisory role.

B. Fox’s Relevant Conduct

As noted, the district court found that the 40 grams of

crack cocaine found in Sykes’s residence were part of

Fox’s relevant conduct under U.S.S.G. § 1B1.3(a)(1)(B). It

therefore included that amount in applying the drug

quantity table in Section 2D1.1(c) to determine Fox’s base

offense level. Fox has repeatedly objected to this

inclusion but his objections have thus far fallen on deaf

ears. He now asks us to vacate his sentence, arguing that

the government, the PSR and the district court focused

exclusively on the foreseeability requirement of relevant

conduct, ignoring its other requisites, and that in any

event, the record did not support the inclusion. For

the following reasons, we agree with Fox.7
18 Nos. 07-3830 and 07-3831

(...continued) 7

. . .

(1)(B) in the case of a jointly undertaken criminal activity

(a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or

not charged as a conspiracy), all reasonably foreseeable acts

and omissions of others in furtherance of the jointly undertaken

criminal activity,

that occurred during the commission of the offense of conviction,

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) (emphasis added). And relevant

excerpts from Application Note 2 say,

In the case of a jointly undertaken criminal activity, subsection (a)(1)(B) provides that a defendant is accountable

for the conduct (acts and omissions) of others that was both:

(i) in furtherance of the jointly undertaken criminal

activity; and

(ii) reasonably foreseeable in connection with that

criminal activity.

Because a count may be worded broadly and include the

conduct of many participants over a period of time, the

scope of the criminal activity jointly undertaken by the

defendant (the “jointly undertaken criminal activity”) is not

necessarily the same as the scope of the entire conspiracy, and

hence relevant conduct is not necessarily the same for every

participant. In order to determine the defendant’s accountability for the conduct of others under subsection (a)(1)(B),

the court must first determine the scope of the criminal activity

(continued...)
Nos. 07-3830 and 07-3831 19

(...continued) 7

the particular defendant agreed to jointly undertake (i.e., the

scope of the specific conduct and objectives embraced by the

defendant’s agreement). The conduct of others that was both

in furtherance of, and reasonably foreseeable in connection

with, the criminal activity jointly undertaken by the defendant is relevant conduct under this provision. The conduct

of others that was not in furtherance of the criminal activity

jointly undertaken by the defendant, or was not reasonably

foreseeable in connection with that criminal activity, is not

relevant conduct under this provision.

. . . .

U.S.S.G. § 1B1.3 cmt. n.2 (emphasis added).

One of the provided illustrations demonstrates this point:

Defendants H and I engaged in an ongoing marihuana

importation conspiracy in which Defendant J was hired

only to help off-load a single shipment. Defendants H, I, and

J are included in a single count charging conspiracy to

import marihuana. Defendant J is accountable for the

entire single shipment of marihuana he helped import

under subsection (a)(1)(A) and any acts and omissions in

furtherance of the importation of that shipment that were

reasonably foreseeable (see the discussion in example (a)(1)

above). He is not accountable for prior or subsequent

shipments of marihuana imported by Defendants H or I

because those acts were not in furtherance of his jointly

undertaken criminal activity (the importation of the

single shipment of marihuana).

U.S.S.G. § 1B1.3 cmt. n.2, illus. (c)(3).
20 Nos. 07-3830 and 07-3831

Fox first contends that the district court neglected to first

determine the scope of the criminal activity that he

agreed to jointly undertake, as is preliminarily required.

In response, the government—as it did just recently in

United States v. Soto-Piedra, 525 F.3d 527, 531 (7th Cir.

2008)—suggests that it was not required to demonstrate the

scope of Fox’s jointly undertaken criminal activity because

he pleaded guilty to conspiracy. But, as we noted in SotoPiedra, that proposition is insupportable; Section 1B1.3 was

amended in 1992 specifically to disavow it. Id. “Conspiracy

liability, as defined in Pinkerton v. United States, 328 U.S.

640, 646-48, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946), is generally

much broader than jointly undertaken criminal activity

under § 1B1.3.” Id.

Second, Fox contends that the district court did not

consider whether Sykes’s possession of the 40 grams

was in furtherance of any joint criminal activity involving

Fox and Sykes. The only significant facts in the record

involving the joint criminal activity between the two men

are Fox’s participation in the June 13, 2007 deal and the

agreed fact that Fox was a crack addict who spent time

at Sykes’s residence getting high. It is impossible for us

to tell from this record whether Sykes’s possession of

40 grams of crack cocaine on June 27, 2007 was in furtherance of any joint criminal activity involving him and Fox.

Third, Fox points out that neither the government, nor

the PSR, nor the district court addressed the fact that the

40 grams of crack cocaine was found in Sykes’s residence

on June 27, 2007, five days after the end of the charged

conspiracy between the men. This circumstance is not
Nos. 07-3830 and 07-3831 21

dispositive, but it should be considered in the totality of

the circumstances. For example, there is evidence in the

record that suggests that this particular 40 grams was

probably not possessed by Sykes during the charged

conspiracy: Sykes testified that he typically obtained an

ounce to an ounce and a half every two to three days, and

therefore it is at least possible that the 40 grams he possessed on June 27 was acquired after June 22 (the end of

the charged conspiracy).

The court did consider whether Sykes’s possession

was foreseeable to Fox. But it did not consider that question in the context of a connection with the joint criminal activity between Fox and Sykes. See, e.g., United

States v. Artley, 489 F.3d 813, 822-23 (7th Cir. 2007). The

court stated that “[Fox] was aware that Sykes stored drugs

at his residence.” Without consideration of whether

that awareness arose out of Fox’s joint criminal activity

with Sykes, however, this finding is insufficient, because

reasonable foreseeability requires more than just subjective awareness. United States v. Edwards, 945 F.2d 1387,

1393 (7th Cir. 1991).

In Fox’s case, the district court’s inclusion of the

40 grams of crack cocaine in his drug quantity calculation instead of only the 4.138 grams involved in the

June 13, 2007 transaction resulted in a guidelines range

of imprisonment of 46-57 months instead of 24-30

months, which is a substantial increase. Although a

district court’s findings of relevant conduct are reviewed

only for clear error, even such deference cannot cure an

absence of findings on key elements of the analysis.
22 Nos. 07-3830 and 07-3831

United States v. Schaefer, 291 F.3d 932, 939 (7th Cir. 2002).

For these reasons, we will vacate and remand Fox’s

sentence for reconsideration of his relevant conduct

under Section 1B1.3 and applicable drug quantity under

Section 2D1.1.

C. Reasonableness of Sentences

Sykes and Fox also contend that their sentences were

both procedurally unreasonable (because the district court

erred in applying the Sentencing Guidelines) and substantively unreasonable (because they do not reflect the

18 U.S.C. § 3553(a) factors). These arguments relating to

application of the guidelines have already been addressed,

and the arguments relating to substantive reasonableness are not persuasive because the district court

carefully examined each of their situations and did not

abuse its discretion in selecting their sentences.

D. Kimbrough Remands

The district court sentenced Sykes and Fox on

November 21, 2007 using the 100-to-one powder to

crack cocaine ratio. On December 10, 2007, the Supreme

Court decided Kimbrough v. United States, 128 S. Ct. 558,

564, 169 L. Ed. 2d 481 (2007), in which it held that this

ratio is not dictated by statute, but is merely advisory. In

United States v. Taylor, 520 F.3d 746, 747-48 (7th Cir. 2008),

we held that a limited remand is appropriate in cases

where the defendant did not object to the ratio in the

district court. Additionally, in United States v. Clanton,
Nos. 07-3830 and 07-3831 23

538 F.3d 652, 660 (7th Cir. 2008), we held that a defendant

who was characterized as a career offender but whose

offense level calculated under § 2D1.1 was higher than

that calculated under § 4B1.1(b), was effectively sentenced under the guideline’s crack-to-powder ratio and

was also entitled to a Kimbrough remand.

Sykes did not waive the crack penalty argument

because he did not expressly decline to raise it, and there

is no forfeiture because it was not clear until Clanton

that he was entitled to a Kimbrough remand. Therefore,

his case will be remanded for resentencing in light of

Kimbrough.

III. Conclusion

For the foregoing reasons, we VACATE the sentences

and REMAND Sykes’s case for resentencing in light of

Kimbrough and Fox’s case for resentencing consistent

with this opinion.

11-14-08