In the

United States Court of Appeals

For the Seventh Circuit

Nos. 99-2962, 99-3588 & 99-3781

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LARRY E. STOTT, JR., ROBERT A. GAUGHAN,

also known as BOB, and LONNIE M. FORD,

also known as LONNIE,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 97 CR 168--James T. Moody, Judge.

Argued May 10, 2000--Decided March 26, 2001

 Before EASTERBROOK, RIPPLE and ROVNER, Circuit Judges.

 RIPPLE, Circuit Judge. Larry Stott, Robert

Gaughan and Lonnie Ford were all arrested and

charged with various crimes arising out of an

alleged conspiracy to distribute cocaine and

cocaine base. A jury convicted all three men. All

of the defendants allege errors in the trial that

led to their convictions; Mr. Gaughan and Mr.

Ford also appeal their sentences. For the reasons

set forth in the following opinion, we affirm the

convictions and Mr. Ford’s sentence. However, we

vacate Mr. Gaughan’s sentence and remand for

resentencing.

I

BACKGROUND

A. Facts

 On December 8, 1997, DeShon Anderson and Jerry

Bonner were arrested while in possession of

marijuana, cocaine and cocaine base. Bonner told

Drug Enforcement Administration ("DEA") Agent

Maurice King that he would cooperate with the

DEA. Bonner further informed Agent King that he

had acquired the cocaine and cocaine base from

Robert Gaughan on a consignment basis and was

transporting the drugs to Lonnie Ford in

Indianapolis.
 Bonner then allowed the DEA to record telephone

conversations he had with Mr. Gaughan and Mr.

Ford. In one of these conversations, Bonner

arranged for a sale of cocaine to Mr. Ford on

December 8. When Bonner arrived at the rendezvous

site with Agent King, however, Mr. Ford was not

there. Bonner contacted Mr. Ford, who said that

he had left the site when he spotted law

enforcement officials. Bonner and Mr. Ford set a

new rendezvous point at a service station. Mr.

Ford arrived at that rendezvous with Larry Stott.

Agent King, who was listening to Bonner’s

conversation through a microphone Bonner was

wearing, heard Mr. Ford tell Bonner that one of

the cars at the service station was a police car.

Agent King then advised the other officers that

Mr. Ford was aware of their presence, and the

agents arrested Mr. Ford and Mr. Stott at the

scene. Mr. Ford never took physical possession of

any drugs from Bonner. 

 At the time of the arrest, agents searched Mr.

Ford’s vehicle and found a gun in the back seat

armrest. The gun was not loaded, but a loaded

magazine was found in the front seat armrest.

Agents also uncovered $8,000 during the search.

 After the arrest of Mr. Ford, Bonner continued

to speak to Mr. Gaughan by telephone, and he

arranged to meet Mr. Gaughan on December 15 in

Indiana to pay Mr. Gaughan for cocaine previously

provided to Bonner. Mr. Gaughan, who lived in

Chicago, arrived in the company of Lori

Kulikowski; Bonner arrived with Agent King. At

the meeting, Bonner put a bag, supposedly

containing money Bonner owed Mr. Gaughan, into

Mr. Gaughan’s car. Agents then moved in and

arrested Mr. Gaughan and Kulikowski. A search of

Mr. Gaughan’s car revealed a loaded .38 Smith and

Wesson revolver.

 After the arrest, Mr. Gaughan and Kulikowksi

were transported to the Munster Police

Department. There Mr. Gaughan was interviewed by

Agent King and others. At that time, Gaughan said

that he had sold 20 to 30 kilograms of cocaine to

Bonner in the past. He also gave the agents

information concerning his supply source.

 At some point, the agents discovered that Mr.

Gaughan was a diabetic and suffered from

cardiovascular disease. According to Mr. Gaughan,

he informed officers about his condition and also

told them that he was experiencing cramps,

nauseousness, clamminess and shortness of breath.

Despite this information, the officers refused to

retrieve Mr. Gaughan’s medication from his car or

to contact a physician until he had signed a

waiver of his rights. The officers’ recollection

differed from Mr. Gaughan’s. The officers

testified that, although they knew of Mr.
Gaughan’s conditions, he was asked if he was all

right and if he needed anything; Mr. Gaughan

responded that he did not./1 

B. District Court Proceedings

1.

 Mr. Stott, Mr. Gaughan, Mr. Ford, Anderson,

Bonner and Kulikowski were all indicted on

multiple counts relating to their alleged drug

distribution activities./2 Anderson and Bonner

both pleaded guilty, and Bonner agreed to testify

for the Government against the other defendants.

Mr. Stott, Mr. Gaughan and Mr. Ford elected to

stand trial./3

 At trial, Agent King testified that Mr. Gaughan

made a statement after his arrest in which he

admitted that he had supplied Bonner with cocaine

on 20 to 30 occasions. According to Agent King,

Mr. Gaughan also said that his purpose in meeting

Bonner in Indiana was to receive payment for

cocaine that he had given to Bonner to sell on

consignment./4 

 Bonner testified that he had obtained cocaine

from Mr. Gaughan beginning in the spring of 1997

and that, after a while, Mr. Gaughan began

providing the drugs on a consignment basis.

Bonner would then sell the cocaine to Mr. Ford.

When Mr. Gaughan began consigning drugs to

Bonner, he in turn provided drugs on consignment

to Mr. Ford. Bonner testified that, at first, he

acquired cocaine from Mr. Gaughan in powder form

and resold it to Mr. Ford in that same form.

However, after October 1997, Bonner converted

some cocaine to cocaine base, also known as

crack, before providing it to Mr. Ford.

 At some point during Bonner’s dealings with Mr.

Ford, Mr. Ford introduced Bonner to Mr. Stott.

Mr. Ford told Bonner that Mr. Stott was "his guy"

and would be transporting the cocaine on Mr.

Ford’s behalf. Trial Transcript ("Tr.") at 302.

After Bonner’s initial meeting with Mr. Stott,

Mr. Stott came to Bonner’s house to pick up drugs

and also traveled with Mr. Ford to meet Bonner

for the purpose of purchasing cocaine. 

2. 

 The jury returned different verdicts against

each defendant. Mr. Stott was convicted on Count

IV (interstate travel in aid of an unlawful

activity, December 8, 1997)./5 The jury

convicted Mr. Gaughan on Count I (conspiracy to

possess with intent to distribute), Count III

(possession with intent to distribute cocaine,

December 8, 1997), Count IV and Count VII
(carrying a firearm during and in relation to the

conspiracy to possess with intent to distribute

cocaine, December 15, 1997). Mr. Ford was

convicted on Count II (possession with intent to

distribute more than 50 grams of cocaine base,

December 8, 1997), Count III, Count IV and Count

V (carrying a firearm during and in relation to a

conspiracy to possess with intent to distribute,

December 9, 1997). The district court then

proceeded to sentencing.

 To arrive at the appropriate offense level for

Mr. Gaughan and Mr. Ford, the district court

first determined the amount and kind of drugs

attributable to each defendant. The district

court found that Mr. Gaughan had delivered 30

kilograms of cocaine powder to Bonner. It further

concluded that it was foreseeable to Mr. Gaughan

that at least 1.5 kilograms would have been

converted to crack cocaine. These amounts

resulted in an offense level of 38 and, in

combination with Mr. Gaughan’s criminal history

category, a sentencing range of 235 to 293

months. The district court sentenced Mr. Gaughan

to the minimum for his guideline range, 235

months. 

 The court undertook a similar analysis for Mr.

Ford. The court attributed 1.5 kilograms of crack

to Mr. Ford, mandating a base offense level of

38. It also gave him a two-level supervisory

enhancement. As a Category V offender with a

total offense level of 40, Mr. Ford was eligible

for a sentence of 360 months to life. The

district court sentenced him to 360 months.

 The defendants appealed and now challenge

various aspects of their convictions and

sentences.

II

DISCUSSION

A. Trial Issues

 1. Insufficiency of the evidence

against Mr. Stott

 Mr. Stott was charged with violating the Travel

Act, 18 U.S.C. sec. 1952,/6 both as a principal

and as an aider and abettor. He contends that the

evidence against him was insufficient to support

his conviction. Specifically, Mr. Stott maintains

that Bonner’s testimony was conflicting and

unreliable and, therefore, was not sufficient to

support his conviction. Mr. Stott also claims

that his conviction for violating the Travel Act

is inconsistent with his acquittal on all of the

other counts. We address each argument below.

 With respect to his first argument, Mr. Stott
claims that Bonner’s testimony was often vague

and points out that Bonner never testified at

trial that Mr. Stott was a customer of his. Thus,

Mr. Stott claims, Bonner’s testimony is not

credible and is insufficient to support the

conviction. However, it is not the role of the

appellate court to question the jury’s

credibility determinations. See United States v.

Durham, 211 F.3d 437, 445 (7th Cir. 2000); United

States v. Alcantar, 83 F.3d 185, 189 (7th Cir.

1996) ("Questions of witness credibility are

reserved for the jury, and its assessments will

not be second-guessed by an appellate panel.").

We shall not find a witness’ testimony

insufficient to sustain a conviction because it

might have omitted some details or might be

characterized as vague; we shall reverse a jury

verdict only if the testimony was incredible as a

matter of law. See United States v. Griffin, 194

F.3d 808, 817 (7th Cir. 1999), cert. denied, 529

U.S. 1044 (2000). To meet this standard, "a

defendant must show that testimony was . . .

contrary to the laws of nature or unbelievable on

its face." United States v. Scott, 145 F.3d 878,

883 (7th Cir. 1998). Mr. Stott has not met this

burden with respect to Bonner’s testimony, and,

consequently, we shall not overturn the jury’s

verdict.

 Mr. Stott also urges us to overturn his

conviction because it is inconsistent with his

acquittal on the other counts in the indictment.

However, it is well-established in this circuit

that "[a] conviction by a jury on one count

cannot be reversed simply because it was

inconsistent with the jury’s verdict of acquittal

on another count." United States v. Muthana, 60

F.3d 1217, 1223 (7th Cir. 1995). Consequently,

the inconsistency, without more, does not warrant

overturning Mr. Stott’s conviction. 

 2. Challenges by Mr. Gaughan

(a)

 Mr. Gaughan maintains that his due process

rights were violated when the Government failed

to provide Agent King’s grand jury testimony to

him prior to the suppression hearing on his incustody statements. According to Mr. Gaughan, the

Government had a duty to provide the material

prior to the suppression hearing pursuant to the

rule of Brady v. Maryland, 373 U.S. 83 (1963). We

set forth below the facts relevant to Mr.

Gaughan’s contention.

 After Mr. Gaughan’s arrest, he made a statement

to Agent King in which, according to Agent King,

Mr. Gaughan admitted supplying Bonner with

cocaine on many occasions. Furthermore, Mr.
Gaughan admitted that on the day of his arrest he

had been traveling to Indiana to receive payment

for cocaine he had fronted to Bonner.

 Prior to trial, Mr. Gaughan moved to suppress

this statement on the ground that agents coerced

the statement from him by exploiting his serious

medical condition./7 At the suppression hearing,

Mr. Gaughan introduced testimony from medical

experts explaining that at the time of his arrest

he was taking multiple medications for both

diabetes and cardiovascular disease. Mr. Gaughan

testified that, as the officers approached the

car to arrest him, he stated: "Look, I’m a heart

patient and I’m diabetic. I haven’t had may [sic]

medication this evening yet." Suppression Hearing

Transcript ("Supp. Tr.") at 35. After his arrest,

he repeatedly told officers that he did not feel

well and asked for his medication; the agents,

however, refused to provide him with his

medication until he answered their questions and

made recorded telephone calls to his supplier. 

 The agents present during the interview

contradicted Mr. Gaughan’s version of events.

Specifically, Officer Thomas Stipanich testified

that, during the course of questioning Mr.

Gaughan, he became aware of Mr. Gaughan’s medical

conditions. Then, according to the officer, "[w]e

asked him if he needed any immediate medical

attention. He told us no, that he does take pills

and things like that for him. [He] [d]id not

request any medical assistance at all." Supp. Tr.

at 72. DEA Agent Maurice King also testified at

the suppression hearing. Agent King recalled that

Mr. Gaughan’s medical condition came up and that

"he was offered--he was asked whether he needed

anything. And he basically said no, some water."

Supp. Tr. at 120. Finally, DEA Agent Tom Decanter

testified that he had observed that Mr. Gaughan

looked nervous during his interview. At that

point, Agent Decanter inquired whether Mr.

Gaughan was okay. Mr. Gaughan then informed the

officers of his medical condition. Like the other

officers who testified, Agent Decanter stated

that Mr. Gaughan was asked if he needed anything

and that Mr. Gaughan responded that he did not.

 Including the testimony set forth above,

evidence at the hearing established that, after

Mr. Gaughan’s interview, he was transported to

the Calumet City police station where he was to

be held until his initial appearance the next

morning. After being checked in, Mr. Gaughan

requested medical assistance and was taken to a

local hospital for treatment. Against his

doctors’ recommendation, Mr. Gaughan checked

himself out of the hospital the next morning. 

 Based on the evidence presented at the hearing,
the district court denied the motion to suppress.

The court rejected Mr. Gaughan’s arguments that

the statement was coerced and allowed the

statement to be used at trial. It stated:

 The Defendant did not ask the arresting officers

for his medication or for medical assistance. 

 The Defendant did not tell the arresting

officers that he was not feeling well, suffering

chest pains, feeling faint or suffering from any

other discomfort. 

 The Court further finds that the statements that

this--that the Defendant seeks to suppress were

made knowingly and voluntarily, and not as the

result of coercion, breach of promises or lack of

medical assistance and medication. Therefore, the

Defendant’s Motion to Suppress is denied. 

Supp. Tr. at 151-52. 

 Agent King’s testimony at the suppression

hearing differed in some respects from the

testimony that he had given before the grand

jury. In front of the grand jury, Agent King

apparently stated that, after being transported

from the initial interview site, Mr. Gaughan

asked for his medications, that agents had gone

to Mr. Gaughan’s car to gather the medications

but that only an empty bottle of medication was

found in the car. On cross-examination of Agent

King at Mr. Gaughan’s sentencing hearing, counsel

established that Mr. Gaughan’s request for his

medication must have been made before Mr. Gaughan

was transported because his car was not taken to

Calumet City. See Gaughan Sentencing Transcript

("Gaughan Sent. Tr.") at 20-24. 

 The prosecution did not inform the defense of

Agent King’s grand jury testimony prior to the

suppression hearing; thus, at the suppression

hearing, Mr. Gaughan could not impeach Agent King

with his earlier statements. However, the

statements to the grand jury apparently were

provided to the defense prior to trial, and the

statements were used for impeachment purposes

both at trial and, as noted above, at the

sentencing hearing. After learning of the grand

jury testimony, Mr. Gaughan did not argue that

the disclosure was belated or renew his motion to

suppress.

 On appeal, Mr. Gaughan argues that the rule of

Brady v. Maryland applies to suppression hearings

and, in these circumstances, required the

Government to furnish Agent King’s grand jury

testimony prior to the suppression hearing.

Because Mr. Gaughan did not present this argument

to the district court, our review is only for

plain error. See United States v. Brumley, 217
F.3d 905, 909 (7th Cir. 2000)./8 

 In United States v. Olano, 507 U.S. 725 (1993),

the Supreme Court explained the criteria for

establishing "plain error." First, the error must

be "plain." The court explained that, properly

understood, "’[p]lain’ is synonymous with ’clear’

or, equivalently, ’obvious.’" Id. at 734. It is

inappropriate, therefore, to find plain error

when current law is unsettled. See, e.g., United

States v. Stafford, 136 F.3d 1109, 1114 (7th Cir.

1998); United States v. Klinger, 128 F.3d 705,

712 (9th Cir. 1997); United States v. Brewer, 1

F.3d 1430, 1435 (4th Cir. 1993). Second, the

error must affect "substantial rights." Olano,

507 U.S. at 734. In order to meet this burden,

"[n]ormally, . . . the defendant must make a

specific showing of prejudice . . . ." Id. at

735. Finally, the error must "seriously affect[ ]

the fairness, integrity or public reputation of

judicial proceedings." Id. at 736. According to

the Court, this last requirement will always be

met if "a plain forfeited error . . . cause[d]

the conviction or sentencing of an actually

innocent defendant"; however, it was not willing

to define this last element strictly in terms of

actual innocence. Id. With these standards in

mind, we turn to Mr. Gaughan’s Brady claim.

 In Brady v. Maryland, the Supreme Court held

that "the suppression by the prosecution of

evidence favorable to an accused upon request

violates due process where the evidence is

material either to guilt or to punishment,

irrespective of the good faith or bad faith of

the prosecution." 373 U.S. at 87. Since Brady,

the scope of the prosecutor’s duty to disclose

such information has been more sharply refined in

several important respects: The duty is

applicable regardless of whether there has been a

request by the accused, see United States v.

Agurs, 427 U.S. 97, 107 (1976); the duty

encompasses impeachment evidence as well as

exculpatory evidence, see United States v.

Bagley, 473 U.S. 667, 676 (1985); and the duty

applies to evidence known to police investigators

even if unknown to the prosecutor, see Kyles v.

Whitney, 514 U.S. 419, 438 (1995). See also

Strickler v. Greene, 527 U.S. 263, 280-81 (1999).

However, a Brady violation only occurs if

"material" evidence is withheld, that is "if

there is a reasonable probability that, had the

evidence been disclosed to the defense, the

result of the proceeding would have been

different." Bagley, 473 U.S. at 682. Furthermore,

"[a]s long as ultimate disclosure is made before

it is too late for the defendants to make use of

any benefits of evidence, Due Process is

satisfied." United States v. Ziperstein, 601 F.2d

281, 291 (7th Cir. 1979).
 The Government does not argue that Agent King’s

testimony was not valuable for impeachment.

Instead, it contends that Brady does not require

the disclosure of exculpatory or impeachment

material prior to a suppression hearing. The rule

of Brady, contends the Government, only applies

to evidence that is material to either guilt or

punishment; therefore, disclosure prior to the

suppression hearing was not required. Because the

duty only applies to the guilt or punishment

phase, the Government submits that it fulfilled

its obligations under Brady by providing the

material prior to trial.

 We find it unnecessary to decide whether Brady

applies to suppression motions because it is

clear that the district court did not commit

plain error by not applying Brady here. Although,

as noted above, the rule of Brady has been

refined in several respects, the Supreme Court

has not had the occasion to determine whether

this rule requires disclosure of impeachment

evidence prior to a suppression hearing.

Similarly, we have not had an opportunity to

focus definitively on this issue. Mr. Gaughan

points to United States v. Veras, 51 F.3d 1365

(7th Cir. 1995), as support for his argument that

the issue has been resolved in favor of extending

Brady disclosure requirements to suppression

hearings. In Veras, the defendant had moved for a

new trial based on the government’s failure to

disclose impeachment evidence concerning one of

the government’s primary witnesses; the witness

had testified both at a suppression hearing and

at trial. The district court denied the motion

for a new trial on the ground that the

undisclosed information was not material because

it was inadmissible under Federal Rule of

Evidence 608(b). The district court concluded

that, "[b]ecause the suppressed evidence would

not have affected the outcome of the suppression

hearing or the trial, defendant’s due process

rights were not violated and his motion for a new

trial pursuant to Brady and Giglio [v. United

States, 405 U.S. 150 (1972)] is denied." Id. at

1375. In reviewing the district court’s rationale

for denying the new trial motion, we stated that

"[w]e [found] no fault with the district court’s

holding." Id. 

 Given the context in which this statement arose,

we cannot conclude that it squarely establishes

that Brady applies to suppression hearings. The

issue came to us as part of a new trial motion

that involved both a pretrial suppression hearing

and a trial. The district court did not address

the issues separately. Furthermore, because the

defendant appealed from the denial of the new

trial motion, this court did not have the
occasion or the need to address, as a discreet

issue, Brady’s application to a pretrial

suppression hearing. We consequently cannot

conclude that our holding in Veras makes it

"obvious" that Brady disclosures are required

prior to suppression hearings.

 Furthermore, there is no consensus among the

other circuits as to whether Brady should apply

to suppression hearings. The Ninth Circuit has

held explicitly that it does, at least with

respect to some categories of suppression

hearings. See United States v. Barton, 995 F.2d

931, 935 (9th Cir. 1993) ("[W]e hold that the due

process principles announced in Brady and its

progeny must be applied to a suppression hearing

involving a challenge to the truthfulness of

allegations in an affidavit for a search

warrant."). The Fifth Circuit, too, has applied

Brady disclosure requirements to a motion to

suppress, see Smith v. Black, 904 F.2d 950, 965-

66 (5th Cir. 1990), vacated on other grounds, 503

U.S. 930 (1992); however, the undisclosed

evidence in that case was found to be immaterial,

see id. at 966. The Fourth Circuit has taken an

approach similar to the one we took in Veras,

assuming without deciding that Brady applies to

suppression hearings. See United States v.

Williams, 10 F.3d 1070, 1077 (4th Cir. 1993)

("Even if Brady were applicable in the context of

a pretrial suppression hearing, application of

the law to the facts of the instant case would

not require a different result. . . . In light of

the inconsequential nature of the Brady case to

these proceedings, we assume arguendo but decline

to address definitively on the merits the issue

of whether Brady should call for disclosure of

material evidence at pre-trial suppression

hearings.")./9 The District of Columbia Circuit

however, has expressed its doubts as to whether

Brady applies to suppression hearings. See United

States v. Bowie, 198 F.3d 905 (D.C. Cir. 1999).

Focusing on the same language as the Government,

that circuit stated: "[I]t is hardly clear that

the Brady line of Supreme Court cases applies to

suppression hearings. Suppression hearings do not

determine a defendant’s guilt or punishment, yet

Brady rests on the idea that due process is

violated when the withheld evidence is ’material

either to guilt or to punishment.’" Id. at 912

(quoting Brady, 373 U.S. at 87). 

 In summary, we cannot say that the law is clear

on the question of whether Brady should apply to

suppression hearings. There is no clear statement

on the issue from either the Supreme Court or

this court, and there is no prevailing national

standard. Because the law concerning Brady’s

application to suppression hearings is not

"clear" or "obvious," we cannot find plain error.
Olano, 507 U.S. at 734; see also United States v.

Pandiello, 184 F.3d 682, 688 (7th Cir. 1999);

United States v. Lindsey, 123 F.3d 978, 985 (7th

Cir. 1997); United States v. Mims, 92 F.3d 461,

465 (7th Cir. 1996).

 However, we have, in the present case, an even

more compelling reason to reject Mr. Gaughan’s

Brady claims. To meet the plain error standard,

Mr. Gaughan must establish that the error

"seriously affect[ed] the fairness, integrity or

public reputation of judicial proceedings."

Olano, 507 U.S. at 736. We do not believe that

this criterion has been satisfied. In the present

action, it is undisputed that the Government did

not produce Agent King’s grand jury testimony

prior to the suppression hearing on Mr. Gaughan’s

post-arrest statements, the time in the usual

course of judicial proceedings that the evidence

would have been most useful to Mr. Gaughan.

However, the record shows that the grand jury

testimony was disclosed prior to the admission of

Mr. Gaughan’s statement into evidence at trial

and, therefore, at a time when Mr. Gaughan’s

counsel still had the option of asking the

district court to reconsider its ruling on the

motion to suppress. Indeed, the record not only

establishes that the material was in the hands of

the defense at this time, but also that it was

used by the defense to cross-examine Agent King

and to undermine his credibility. Under these

circumstances, we do not believe that the

Government’s failure to disclose Agent King’s

grand jury testimony prior to the suppression

hearing "seriously affect[ed] the fairness,

integrity or public reputation of [the] judicial

proceedings." Consequently, Mr. Gaughan has not

established that the Government’s failure rose to

the level of "plain error."

(b)

 Mr. Gaughan objects to the district court’s

instruction to the jury regarding the fronting of

cocaine. The instruction read as follows:

The delivery of drugs with an agreement to pay

for them after a subsequent sale is typically

referred to as "fronting." The repeated

"fronting" of cocaine, alone, may be sufficient

to establish a conspiracy.

R.295, Inst. 34A. Mr. Gaughan contends that this

instruction improperly highlights "fronting" as a

method by which conspiracy may be proven. We

review a claim of instructional error for an

abuse of discretion. See United States v. Aldaco,

201 F.3d 979, 989 (7th Cir. 2000); United States

v. Wilson, 159 F.3d 280, 291 (7th Cir. 1998),

cert. denied, 527 U.S. 1024 (1999).
 The district court’s instruction relied upon our

opinion in United States v. Ferguson, 35 F.3d 327

(7th Cir. 1994). In that case, we wrote that

"[t]he repeated ’fronting’ of cocaine, alone, has

been held sufficient to support the jury’s

conclusion that the defendant had knowingly

joined a distribution conspiracy." Id. at 331.

The principle stated in Ferguson continues to be

the law of this circuit. See, e.g., United States

v. Frazier, 213 F.3d 409, 415 (7th Cir. 2000)

("We have held that an ongoing relationship

involving numerous purchases and the fronting of

drugs indicates the existence of a conspiracy."),

cert. denied, 2001 WL 135828 (Feb. 16, 2001).

Thus, the district court’s instruction was a

correct statement of the law. "If the

instructions are adequately supported by the

record and are fair and accurate summaries of the

law, the instructions will not be disturbed on

appeal." United States v. Lanzotti, 205 F.3d 951,

956 (7th Cir.), cert. denied, 120 S. Ct. 2746

(2000); see also Aldaco, 201 F.3d at 989; United

States v. Wimberly, 79 F.3d 673, 676 (7th Cir.

1996). Mr. Gaughan has not argued that the

fronting instruction was inadequately supported

by the record, and we believe that it was a fair

and accurate summary of the law. Accordingly, we

shall not vacate Mr. Gaughan’s conviction on the

ground that this instruction tainted his trial.

 3. Challenges by Mr. Ford

(a)

 Mr. Ford first challenges his convictions for

possession with intent to distribute cocaine or

cocaine base./10 As described above, Bonner had

arranged to meet Mr. Ford on December 8, for the

purpose of conducting a sale of cocaine and

cocaine base. However, before the exchange took

place, Mr. Ford became aware that law enforcement

was present and the officers on the scene

arrested Mr. Ford before he took actual

possession of the drugs. Mr. Ford contends that

this lack of actual possession precludes a

conviction for possession with intent, which

requires a defendant to have either dominion or

control over the drugs at issue. In the district

court, Mr. Ford moved for an acquittal on this

basis. However, the district court rejected Mr.

Ford’s argument and, in a postconviction ruling,

explained that Mr. Ford’s conviction could be

sustained on the ground that he had aided and

abetted Bonner’s possession of the cocaine.

 When considering a criminal defendant’s

challenge to the sufficiency of the evidence

supporting his conviction, we review the evidence

in the light most favorable to the government. We
shall reverse a conviction only if no rational

trier of fact could have found the crime’s

essential elements beyond a reasonable doubt. See

United States v. Jones, 188 F.3d 773, 776 (7th

Cir.), cert. denied, 528 U.S. 1033 (1999); United

States v. Gibbs, 61 F.3d 536, 537 (7th Cir.

1995). However, any questions of law raised by

Mr. Ford’s challenge are reviewed de novo. See

United States v. Hoogenboom, 209 F.3d 665, 669

(7th Cir. 2000); United States v. Irwin, 149 F.3d

565, 569 (7th Cir. 1998). 

 We believe the law and the record support the

district court’s determination that Mr. Ford

aided and abetted Bonner’s possession of cocaine

and cocaine base. The aiding and abetting

statute, 18 U.S.C. sec. 2, states: "Whoever

commits an offense against the United States or

aids, abets, counsels, commands, induces or

procures its commission, is punishable as a

principal." Id. sec. 2(a). To be convicted as an

aider and abettor, it must be shown that Mr. Ford

associated himself with the activity at issue and

that he tried to make the activity succeed. See

United States v. Heath, 188 F.3d 916, 921 (7th

Cir. 1999); United States v. Coleman, 179 F.3d

1056, 1061 (7th Cir.) ("To sustain the conviction

under a theory of aiding and abetting, we must

find that the government proved that Coleman

knowingly participated in the transaction as

something he wished to bring about and that he

sought by his actions to make it succeed.")

(internal quotation marks and citations omitted),

cert. denied, 528 U.S. 957 (1999)./11 

 In denying Mr. Ford’s motion for acquittal or a

new trial, the district court relied on our

decision in United States v. Wesson, 889 F.2d 134

(7th Cir. 1989). In that case, we held:

You may "abet" the crime of possession with

intent to distribute by procuring the customers

and maintaining the market in which the

possession is profitable, even though you do

nothing else to help the possessor get or retain

possession. Middlemen aid and abet the offense of

possession with intent to distribute.

Id. at 135. Mr. Ford contends, however, that he

was not a middleman such as Wesson, but instead

was only a buyer with interests distinct from

those of Bonner. Because his relationship with

Bonner was merely that of a buyer and a seller,

Mr. Ford argues, he cannot be found to have aided

and abetted Bonner’s possession.

 The Government counters that the prior

relationship between Mr. Ford and Bonner makes

Mr. Ford more than a mere buyer. In making its

argument, the Government draws on cases from the

law of conspiracy. The Government argues that

because Bonner routinely fronted drugs to Mr.
Ford, Mr. Ford could be considered part of a

conspiracy with Bonner. As we stated earlier, it

is well-established in this circuit that the

repeated fronting of drugs may demonstrate the

existence of a conspiracy. See Frazier, 213 F.3d

at 415; Ferguson, 35 F.3d at 331; United States

v. Cabello, 16 F.3d 179, 182 (7th Cir. 1994). The

Government contends that because it established

that Bonner routinely fronted drugs to Mr. Ford,

a conspiracy existed between them; thus, it

claims, Mr. Ford may properly be considered to

have aided and abetted Bonner.

 We cannot accept the Government’s arguments for

several reasons. First, the Government’s position

is premised on a conspiracy theory, but Mr. Ford

was not convicted of conspiracy. Second, the

Government’s argument implies that aiding and

abetting is a lesser included offense of

conspiracy, however, in the context of a federal

drug prosecution, it is not. See United States v.

Shabani, 513 U.S. 10, 14-15 (1994). When proof of

one crime requires proof of an element not

necessary to prove a second crime, the first

crime is not a lesser included offense of the

second. See, e.g., Schmuck v. United States, 489

U.S. 705, 716 (1989). In this type of proceeding,

to win a conviction for aiding and abetting the

Government must prove an element not necessary to

prove conspiracy: the existence of an overt act

by the defendant. Compare Lanzotti, 205 F.3d at

956 ("Under federal law, the crime of aiding and

abetting requires knowledge of the illegal

activity that is being aided and abetted, a

desire to help the activity succeed and some act

of helping." (emphasis added)) with United States

v. Hunte, 196 F.3d 687, 691 (7th Cir. 1999)

("[C]onspiracy liability does not require

evidence of an overt act by the defendant.").

Because aiding and abetting is not a lesser

included offense of conspiracy, the Government’s

evidence showing the existence of a conspiracy

does not automatically demonstrate that Mr. Ford

aided and abetted Bonner.

 Nonetheless, we believe that Mr. Ford’s

conviction may be affirmed. Although the

Government improperly focuses on the fact that

the fronting of drugs supports a conspiracy

conviction, we also have held that the fronting

of drugs supports an aiding and abetting

conviction:

Furthermore, sales on credit, in combination with

frequent and repeated transactions, justify an

aider and abettor instruction. See, e.g., United

States v. Blankenship, 970 F.2d 283, 287 (7th

Cir. 1992); United States v. Kasvin, 757 F.2d

887, 891 (7th Cir. 1985). This same evidence

would permit a jury to infer that Rivera did not
have a mere buyer/seller arrangement with

Bradley.

United States v. Rivera, 153 F.3d 809, 814 (7th

Cir. 1998). A person who receives fronted drugs

for resale to others may be considered a

middleman rather than a buyer, and we have held

that "middlemen aid and abet the offense of

possession with intent to distribute." United

States v. McNeese, 901 F.2d 585, 609 (7th Cir.

1990) (quoting Wesson, 889 F.2d at 135),

overruled on other grounds, United States v.

Westmoreland, 240 F.3d 618 (7th Cir. 2001).

Consequently, Mr. Ford’s conviction as an aider

and abettor may be affirmed if there is evidence

indicating that Bonner fronted him cocaine on a

repeated basis.

 The record contains such evidence. Bonner

testified specifically that he fronted drugs to

Mr. Ford. Bonner stated that, when Mr. Gaughan

began fronting drugs to him, he in turn began

fronting drugs to Mr. Ford:

Q. And once you were fronted by Bob [Gaughan],

how would that change your relationship with

Lonnie [Ford]?

A. Well, I would front him too.

Q. What does that mean, front?

A. Front means to--you receive the merchandise

without paying all the money or any of the money.

You pay the money later but you get the

merchandise first.

Tr. at 306-07. From this testimony, a reasonable

jury could conclude that Bonner fronted cocaine

to Mr. Ford. Because, as noted above, the

repeated fronting of drugs supports a conviction

for aiding and abetting the crime of possession

with intent to distribute, we affirm Mr. Ford’s

conviction.

(b)

 Mr. Ford also challenges his conviction for

using or carrying a firearm during and in

relation to a drug trafficking offense. Mr. Ford

does not dispute that the evidence demonstrates

that he brought a gun to his rendezvous with

Bonner and that he intended to give Bonner that

gun. Mr. Ford argues, however, that he brought

the gun to Bonner for Bonner’s personal

protection and, therefore, the gun was unrelated

to his (Mr. Ford’s) participation in the drug

trade. Thus, he claims, the gun was not related

to a drug trafficking offense.

 In addition to the penalties the Government may

seek for drug traffickers, additional penalties

may be sought for
any person who, during and in relation to any

crime of violence or drug trafficking crime . . .

for which the person may be prosecuted in a court

of the United States, uses or carries a firearm,

or who, in furtherance of any such crime,

possesses a firearm[.]

18 U.S.C. sec. 924(c)(1)(A). The term "in

relation to" is "expansive" and means that "the

gun at least must facilitat[e], or ha[ve] the

potential of facilitating, the drug trafficking

offense." Smith v. United States, 508 U.S. 223,

237-38 (1993) (internal quotation marks omitted);

United States v. Haynes, 179 F.3d 1045, 1047 (7th

Cir.) (quoting Smith), cert. denied, 528 U.S. 957

(1999). A conviction under sec. 924(c)(1) is

inappropriate if "the firearm’s presence is

coincidental or entirely unrelated to the crime."

Smith, 508 U.S. at 238 (internal quotation marks

omitted); United States v. Taylor, 31 F.3d 459,

465 (7th Cir. 1994) (quoting Smith). However, "if

the drugs and gun are together in the same place

it is nearly an inescapable conclusion that they

satisfy the in relation to prong of sec.

924(c)(1)." United States v. Pike, 211 F.3d 385,

389 (7th Cir. 2000) (quoting United States v.

Molina, 102 F.3d 928, 932 (7th Cir. 1996)).

 At trial, Bonner testified that he wanted the

gun for personal protection, not necessarily the

protection of his drugs. However, a few weeks

prior to the rendezvous with Mr. Ford, Bonner’s

apartment was robbed, he was beaten, and some

cocaine was taken. This event prompted Bonner to

ask Mr. Ford for a gun. Mr. Ford agreed to

provide Bonner with a gun, and delivery was

intended to take place at the same time Mr. Ford

purchased additional cocaine from Bonner. 

 We believe that, given the circumstances

described above, the jury could conclude

reasonably that Mr. Ford possessed the gun in

relation to a drug trafficking offense. Mr. Ford

knew Bonner only as his supplier. Furthermore, he

knew that Bonner’s desire for the weapon arose

from the fact that drugs were taken from Bonner’s

apartment. In these circumstances, the presence

of the gun could be considered by the jury as not

merely coincidental or unrelated to Mr. Ford’s

drug trafficking. Instead, the jury was entitled

to conclude that Mr. Ford provided the gun to

Bonner, his supplier, for Bonner’s protection as

well as the protection of Bonner’s cocaine, and

that the weapon found in Mr. Ford’s car therefore

was related to his drug trafficking offense. We

therefore affirm Mr. Ford’s conviction on this

count./12
 4. Issues common to Mr. Ford and Mr.

Gaughan

(a)

 Mr. Ford and Mr. Gaughan raise jointly a claim

of instructional error. They argue that the

district court’s jury instruction regarding

vicarious liability for the acts of coconspirators, pursuant to Pinkerton v. United

States, 328 U.S. 640 (1946), was erroneous. The

instruction, they claim, failed to convey to

jurors that they had to find beyond a reasonable

doubt that the substantive offense was committed

by a co-conspirator in furtherance of or as a

natural consequence of the conspiracy. Although

trial counsel objected to the Pinkerton

instruction in the district court, his objections

were only of a general nature, and he did not

raise this particular argument./13 Thus, our

review is only for plain error. See United States

v. Cooke, 110 F.3d 1288, 1293 (7th Cir. 1997)

("Although Cooke objected to instruction 22, he

did so on grounds other than those asserted here.

Accordingly, we review for plain error."); United

States v. Roth, 860 F.2d 1382, 1390 (7th Cir.

1988) ("An objection that does not point out the

problem in the instruction is insufficient

because it does not give fair prospect of timely

correction.").

 The court’s Pinkerton instruction stated:

A conspirator is responsible for offenses

committed by his fellow conspirators if he was a

member of the conspiracy when the offense was

committed and if the offense was committed in

furtherance of the conspiracy. Therefore, if you

find a defendant guilty of the conspiracy as

charged in Count 1 and if you find beyond a

reasonable doubt that while that defendant was a

member of the conspiracy, his fellow conspirators

committed the offenses charged in Counts 2, 3, 4,

and/or 5, then you should find him guilty of

Counts 2, 3, 4, and/or 5.

R.295, Inst. 52. The Government argues that the

instruction closely follows the language of

Seventh Circuit Pattern Jury Instruction 5.09,

that the first sentence of the instruction makes

clear that Pinkerton liability only attaches when

coconspirators act in furtherance of the

conspiracy and that the jury was reminded

repeatedly that its findings must be beyond a

reasonable doubt. Consequently, in the

Government’s view, the instructions, taken as a

whole, adequately informed the jury of the

elements of the Pinkerton doctrine.

 It is true that the first sentence of the

court’s instruction follows Pattern Instruction
5.09 to the letter. However, the second sentence

of the pattern instruction states: "Therefore if

you find a defendant guilty of the conspiracy

charged in Count(s) ___ and if you find beyond a

reasonable doubt that while he/she was a member

of the conspiracy, his/her fellow conspirator(s)

committed the offense(s) in Count(s) ___ in

furtherance of and as a foreseeable consequence

of that conspiracy, then you should find him/her

guilty of Count(s) ___." Seventh Circuit Pattern

Instruction 5.09 (emphasis added). At no other

point in the instructions was the jury informed

that, in order to hold a defendant liable for his

coconspirator’s crimes, the crimes must have been

in furtherance of or a foreseeable consequence of

the conspiracy.

 We are not convinced that the instruction as

given properly informed the jury of the necessary

requirements for applying the Pinkerton doctrine.

We have stated:

For a Pinkerton instruction to be adequate, it

must focus the jury on the coconspirator’s act,

on whether it is a crime, on whether the

coconspirator’s guilt of this crime was proved

beyond a reasonable doubt, and on whether it was

committed in furtherance of the conspiracy in

which the defendant participated. The instruction

must also advise the jury that the government

bears the burden of proving all elements of the

doctrine beyond a reasonable doubt.

United States v. Sandoval-Curiel, 50 F.3d 1389,

1394-95 (7th Cir. 1995) (internal quotation marks

and citations omitted). Here the instruction

neither focused the jury on "whether [the crime]

was committed in furtherance of the conspiracy"

nor instructed the jury that this element must be

found beyond a reasonable doubt. We previously

have rejected Pinkerton instructions on similar

bases. See United States v. Elizondo, 920 F.2d

1308, 1317 (7th Cir. 1990) (finding instructional

error because the Pinkerton instruction "failed

to advise jurors that the government bore the

burden of proving that all elements of the

powerful Pinkerton doctrine must be proven beyond

a reasonable doubt"). Consequently, we cannot

conclude that, under these circumstances,/14

the jury understood all of the elements necessary

to hold a defendant vicariously liable for the

acts of his coconspirators.

 Although here the Pinkerton instruction was

lacking, we believe that the defect cannot be

characterized as plain error. Pinkerton liability

is vicarious liability. However, with respect to

Mr. Gaughan, there was direct evidence to support

his convictions for Count III (possession with

intent to distribute cocaine on December 8, 1997)
as an aider and abetter. See Elizondo, 920 F.2d

at 1317 ("Alternative theories of direct and

vicarious liability raised below exist for

affirming the substantive-count convictions

despite the defective Pinkerton instruction.").

As we explained earlier, the fronting of drugs

can support a conviction for aiding and abetting

possession with intent to distribute narcotics.

Here, Bonner testified that Mr. Gaughan had

fronted Bonner the cocaine that he was carrying

when he was arrested on December 8, 1997.

 There is also direct evidence that Mr. Gaughan

aided and abetted a violation of the Travel Act

as set forth in Count VI (interstate travel in

aid of an unlawful activity involving possession

with intent to distribute cocaine). In order to

aid and abet the Travel Act violation, the

evidence must demonstrate that Mr. Gaughan had

the state of mind required for the Travel Act

offense and took some action intended to make the

endeavor succeed, see id. at 1318; it was not

necessary for the Government to show that Mr.

Gaughan induced or even had knowledge of Bonner’s

interstate travel./15 See United States v.

Abadie, 879 F.2d 1260, 1266 (5th Cir. 1989); see

also United States v. Sigalow, 812 F.2d 783 (2d

Cir. 1987) ("Our holding that an aider and

abettor of a Travel Act violation need not have

assisted in the use of interstate facilities is

consistent with the reasoning of other

circuits."). Mr. Gaughan’s fronting of the drugs

to Bonner meets this criterion. 

 Mr. Ford’s challenge is even less meritorious.

Mr. Ford was not convicted of the conspiracy

charged in Count I. However, the court’s

Pinkerton instruction required the jury to find

that the defendant participated in the conspiracy

before it could hold him vicariously liable for

the actions of the coconspirators. See R.295,

Inst. 52 ("Therefore, if you find a defendant

guilty of conspiracy as charged in Count 1 . . .

then you should find him guilty of Counts 2, 3,

4, and/or 5." (emphasis added)). "Absent evidence

to the contrary, we presume that the jury

understood and followed the district court’s

instructions." United States v. Cornett, 232 F.3d

570, 574 (7th Cir. 2000). Because the jury had no

occasion to apply the Pinkerton instruction to

Mr. Ford, he was not prejudiced by the

instruction. Consequently, we shall not reverse

his conviction on this basis. 

(b)

 Mr. Ford and Mr. Gaughan were convicted of

violating the Travel Act, 18 U.S.C. sec. 1952, on

or about December 8, 1997. The indictment charged

both the principal offense of violating the
Travel Act and aiding and abetting a violation of

the Travel Act. "’To establish a violation [of

the Travel Act], it is sufficient to show

interstate travel or the use of an interstate

facility with intent to promote or carry on an

unlawful activity, and facts constituting the

promotion or carrying on of the unlawful activity.’"

United States v. Auerbach, 913 F.2d 407, 410 (7th

Cir. 1990) (quoting United States v. Craig, 573

F.2d 455, 489 (7th Cir. 1977)).

 Mr. Ford and Mr. Gaughan argue that, because

they did not promote or carry on unlawful

activity, their Travel Act conviction cannot

stand. Mr. Ford and Mr. Gaughan acknowledge that

their arguments on the Travel Act count "are,

essentially, claims of a derivative nature,"

Reply Br. at 9; that is, because they were

improperly convicted on other counts, they were

improperly convicted under the Travel Act.

However, we have affirmed Mr. Ford’s and Mr.

Gaughan’s convictions on the other counts that

provide a basis for the Travel Act violation. Mr.

Ford and Mr. Gaughan do not challenge their

conviction on any other basis; accordingly, we

affirm their Travel Act conviction.

B. Sentencing Issues

 1. Mr. Gaughan

 Mr. Gaughan challenges the amount of crack

attributed to him by the district court. The

district court found that Mr. Gaughan had

delivered 30 kilograms of cocaine to Bonner and

that he should have foreseen that at least 1.5

kilograms of cocaine would have been converted to

crack cocaine. Mr. Gaughan argues that he could

not have foreseen the amount of cocaine that

would have been converted to crack. The district

court’s determination of the amount of cocaine

and crack attributable to Mr. Gaughan is a

factual one that we review for clear error. See

United States v. Roe, 210 F.3d 741, 748 (7th Cir.

2000); United States v. Burns, 128 F.3d 553, 554

(7th Cir. 1997). We shall reverse the district

court’s conclusion only if we are left with the

firm and definite conviction that a mistake has

been made. See United States v. Galbraith, 200

F.3d 1006, 1011 (7th Cir. 2000); United States v.

Taylor, 111 F.3d 56, 58 (7th Cir. 1997).

 Mr. Gaughan was considered a Category I offender

by the district court. On this appeal, he does

not challenge the district court’s factual

finding that 30 kilograms of cocaine may be

attributed to him, and the record amply supports

this finding. At Mr. Gaughan’s sentencing

hearing, Bonner testified specifically that he

made approximately 30 pickups from Mr. Gaughan,
receiving one kilogram of cocaine each time.

According to U.S.S.G. sec. 2D1.1(c), a person

convicted of a crime involving between 15 and 50

kilograms of cocaine has a base offense level of

34. However, the district court also found that

Mr. Gaughan’s crimes involved 1.5 kilograms of

crack, which mandates an offense level of 38. The

court did not enter detailed findings of fact

regarding the percentage of the cocaine converted

to crack, stating simply:

The evidence also indicates that Defendant

Gaughan knew or reasonably should have foreseen

the conversion to crack form, and at a very

minimum one and a half kilograms of crack

cocaine.

Gaughan Sent. Tr. at 67. We must determine

whether the record supports the district court’s

decision to sentence Mr. Gaughan at a base

offense level of 38 rather than 34.

 Mr. Gaughan was convicted of conspiring to

distribute cocaine. It is appropriate for a

district court to attribute to a defendant the

conversion of cocaine into crack by the

defendant’s co-conspirators if that conversion

was foreseeable. See United States v. Shorter, 54

F.3d 1248, 1261 (7th Cir. 1995) ("The evidence

also indicated that Shorter knew of or reasonably

should have foreseen the conversion to crack

form.")./16 The record contains evidence

indicating that Mr. Gaughan was aware that some

cocaine was being converted to crack. Bonner

testified at trial that he spoke to Mr. Gaughan

about problems Mr. Ford was having with the

conversion of cocaine into crack. According to

Bonner, Mr. Gaughan responded that his "other

peoples" were not having problems with the

conversion. Tr. at 311. Later, Bonner was asked,

"Did [Mr. Gaughan] know that some of his crack

cocaine--some of his cocaine was going to be

cooked into crack"; Bonner answered "Yes, he--he

knew that." Tr. at 479. From this testimony, the

district court could properly conclude that Mr.

Gaughan was aware that some cocaine was being

converted to crack./17

 The burden is on the government to establish the

type and amount of drugs attributable to the

defendant by a preponderance of the evidence. See

United States v. Johnson, 200 F.3d 529, 537 (7th

Cir. 2000). It therefore was incumbent upon the

Government to establish a conversion ratio. See

United States v. Hunter, 145 F.3d 946, 952 (7th

Cir. 1998) ("[C]onversion ratios are a finding of

fact that must be determined in each individual

case."); United States v. Chisholm, 73 F.3d 304,

307-08 (11th Cir. 1996) ("[E]vidence of a

conversion ratio must be considered before any
such ratio is applied."). A conversion ratio

includes two components. One is the percentage of

the powder cocaine that Mr. Gaughan could

reasonably foresee would be converted into crack.

The other is evidence of the percentage of weight

lost during the process of converting cocaine

into crack. See Hunter, 145 F.3d at 952; accord

Fox, 189 F.3d at 1120. 

 At times, the Government will be able to provide

evidence indicating that all of the powder

cocaine in a conspiracy was converted to crack

cocaine. See United States v. Taylor, 116 F.3d

269, 273-74 (7th Cir. 1997); United States v.

Misher, 99 F.3d 664, 671 (5th Cir. 1996)

("[T]here is evidence from which the court could

conclude that Cobb eventually converted all of

the powder to crack cocaine."). When the

Government cannot prove that all of the cocaine

was converted to crack, it must at least provide

some evidence of a conversion ratio to support

the district court’s finding. Furthermore, the

district court’s determination must be based on

reliable evidence, as the Guidelines require, and

not on impermissible speculation. See United

States v. Howard, 80 F.3d 1194, 1202 (7th Cir.

1996) ("We must be satisfied, however, that the

calculation is based on reliable evidence;

speculation and unfounded allegations will not

do.").

 The Government, however, points to no evidence

suggesting a conversion ratio. Although the

Government has provided evidence that Mr. Gaughan

could foresee the conversion of some percentage

of the cocaine, it has offered no evidence

showing what percentage he expected would be

converted. It also has not provided testimony

regarding the percentage of cocaine lost in the

conversion to crack, which has been relied upon

in cases such as this one. See, e.g., Hunter, 145

F.3d at 952. We acknowledge that the district

court’s estimate of the conversion ratio was

conservative. However, because the district court

did not discuss the evidence supporting its

determination of the conversion ratio, we cannot

say that its finding was based on reliable

evidence and that it did not "’calculate drug

amounts by guesswork’" in contravention of the

Guidelines’ requirements. United States v. Beler,

20 F.3d 1428, 1433 n.2 (7th Cir. 1994) (quoting

United States v. Paulino, 996 F.2d 1541, 1545 (3d

Cir. 1993)). Consequently, we must remand to the

district court for resentencing. We emphasize

again that we do not disturb the district court’s

finding that Mr. Gaughan is responsible for 30

kilograms of cocaine; we vacate the sentence only

because the Government has not provided reliable

evidence of the conversion ratio foreseeable to

Mr. Gaughan.
 Finally, Mr. Gaughan submits, by motion filed

after oral argument, that the decision of the

Supreme Court of the United States in Apprendi v.

New Jersey, 530 U.S. 466 (2000) makes his

sentence invalid. We cannot accept this argument.

According to 21 U.S.C. sec. 841(b)(1)(C), the

statutory maximum for an offense involving even a

small amount of cocaine is 20 years. See 21

U.S.C. sec. 841 (b)(1)(C). Mr. Gaughan’s sentence

of 235 months is below that statutory maximum and

therefore Apprendi does not apply. 

 2. Mr. Ford

(a)

 The district court applied a two-level

supervisory enhancement to Mr. Ford’s sentence

under the Sentencing Guidelines. The Guidelines

provide for a two-level enhancement "[i]f the

defendant was an organizer, leader, manager, or

supervisor in any criminal activity." U.S.S.G.

sec. 3B1.1(c). "We have . . . affirmed

enhancements under section 3B1.1(c) if the

defendant was a key figure who coordinated and

organized the criminal activity, even if he did

not necessarily control another participant."

United States v. Granado, 72 F.3d 1287, 1290 (7th

Cir. 1995) (internal quotation marks and

citations omitted); see also United States v.

Bell, 28 F.3d 615, 617-18 (7th Cir. 1994)

(listing factors that distinguish "organizers and

leaders" from "rank and file criminals"). The

government must prove by a preponderance of the

evidence that an enhancement is warranted. See

United States v. Cain, 155 F.3d 840, 843 (7th

Cir. 1998); United States v. Watson, 189 F.3d

496, 502 (7th Cir. 1999). The district court’s

decision to enhance a sentence is reviewed for

clear error. See Cain, 155 F.3d at 843.

 In this case, the record supports a finding that

Mr. Ford coordinated Mr. Stott’s activities.

Bonner testified that Mr. Ford introduced Mr.

Stott to him and that Mr. Ford told Bonner that

Mr. Stott would be meeting him to pick up drugs:

Q. And how did you happen to meet Larry [Stott].

What were the circumstances of that meeting, sir?

A. The circumstances of that meeting was he would

probably be meeting to purchase further drugs.

Q. That is Lonnie Ford?

A. Yeah, Lonnie brought him with him.

Q. And he introduced you to Larry?

A. Yes, he did.

Q. What did he tell you about Larry?

A. This was his guy.

Q. What else did he tell you?

A. That he would probably be coming back and
forth to pick up the drugs.

. . . .

Q. Approximately how many times did either Larry

or Lonnie come to your house?

A. About four times.

Q. And each time it was for what purpose, sir?

A. It was to pick up drugs.

Tr. at 301-02.

 Bonner did offer potentially inconsistent

testimony on the subject of whether Mr. Stott was

merely a courier for Mr. Ford or, instead, a

customer in his own right. At trial, Bonner

testified that Mr. Stott was not a customer of

his, leaving an inference that Mr. Stott was Mr.

Ford’s courier. At Mr. Gaughan’s sentencing

hearing, however, when Bonner was asked who his

customers were, he answered "Lonnie Ford, Larry

Stott." Gaughan Sent. Tr. at 29. This, suggests

Mr. Ford, shows that Mr. Stott was a customer in

his own right. We do not necessarily view the

testimony as inconsistent; Mr. Stott could have

both transported cocaine on behalf of Mr. Ford

and purchased cocaine from Bonner for his own

use. Because there is evidence in the record that

Mr. Ford coordinated Mr. Stott’s activities for

some part of the conspiracy, we cannot say the

district court’s decision was clearly erroneous. 

(b)

 Mr. Ford also challenges the district court’s

drug quantity calculation. The district court

attributed to Mr. Ford 1.5 kilograms of crack

cocaine. That amount of crack mandates an offense

level of 38 pursuant to U.S.S.G. sec. 2D1.1(c).

With the supervisory enhancement, Mr. Ford’s

total offense level was 40. The Guidelines

mandate that a category V offender, such as Mr.

Ford, with an offense level of 40 be given a

sentence between 360 months and life

imprisonment; the district court sentenced Mr.

Ford to 360 months and then added a consecutive

60-month sentence for his sec. 924(c)(1)

conviction./18 On appeal, Mr. Ford challenges

only the district court’s drug quantity

calculation. Again, we review for clear error,

and we shall reverse only if we are left with the

firm and definite conviction that a mistake has

been made. See Galbraith, 200 F.3d at 1011.

 The district court did not enter any specific

findings about the cocaine quantity attributable

to Mr. Ford. At Mr. Ford’s sentencing hearing, it

stated:

The Court does find by a preponderance of the

evidence that the cocaine that is attributable to

this Defendant was in fact cocaine base and for
purposes of this particular case, crack cocaine. 

 And that the amount of crack cocaine

attributable and foreseeable to this Defendant

was at least one and a half kilograms and more

likely than not a great deal more. 

 But at least 1.5 kilograms.

Ford Sentencing Transcript ("Ford Sent. Tr.") at

25. The Government makes two arguments to support

its contention that Mr. Ford is responsible for

over 1.5 kilograms of crack. The first is that

Mr. Ford converted to crack much of the cocaine

powder provided to him by Bonner. The second is

that Bonner provided to Mr. Ford cocaine that was

already in crack form. We consider these

contentions in turn.

 First, Bonner offered testimony that supports a

finding that Mr. Ford converted to crack some of

the cocaine that Bonner provided to him. Bonner

testified that in 1997, approximately from April

to October, he provided cocaine to Mr. Ford. In

October, Bonner stated, Mr. Ford complained about

losing too much cocaine during the process of

converting it to crack. From that testimony, it

may be inferred that Mr. Ford converted some

cocaine to crack between April and October.

However, there is no reliable evidence indicating

the amount of cocaine converted to crack by Mr.

Ford. At Mr. Gaughan’s sentencing hearing, Bonner

acknowledged that he never saw Mr. Ford cook

cocaine into crack, that he did not know how Mr.

Ford cooked the cocaine and that he did not know

what amount of cocaine Mr. Ford was converting to

crack. The Government identifies no other

evidence that shows how much of the cocaine Mr.

Ford received from Bonner between April and

October was converted to crack. Although the

evidence indicates that Mr. Ford converted to

crack some of the cocaine he received from

Bonner, the Government was also obligated to

provide evidence of a conversion ratio. See

Hunter, 145 F.3d at 952. The Government’s failure

to provide evidence of a conversion ratio

precludes us from attributing to Mr. Ford any

specific amount of crack he cooked from cocaine

delivered by Bonner between April and October.

 Turning to the Government’s second contention,

Bonner also testified that, after his October

conversation with Mr. Ford, he began to cook

cocaine into crack on his own before delivering

it./19 This testimony provides a more reliable

basis for determining the amount of crack

attributable to Mr. Ford. Bonner testified that,

in October, he delivered to Mr. Ford

approximately 500 grams of cocaine and that

approximately 75% to 80% of that amount--or 375

to 400 grams--was in crack form. Bonner testified
further that in the last meeting he had with Mr.

Ford prior to being arrested, he had with him 250

grams of cocaine, of which "over half"--or more

than 125 grams-- was crack. Gaughan Sent. Tr. at

37./20 Finally, at the time Bonner was

arrested, he had in his possession 403 grams of

crack that he planned to deliver to Mr.

Ford./21 Adding together these amounts, the

total amount of crack attributable to Mr. Ford

from Bonner’s testimony is at least 903 grams.

Thus, there is at least some evidentiary basis

for a finding that Mr. Ford’s criminal activities

involved 903 grams of crack.

 We are concerned that neither the Government nor

the district court identified any other portion

of the record in which specific evidence is

offered to establish the amount of cocaine

attributable to Mr. Ford. The district court may

have engaged in impermissible speculation when it

relied on Bonner’s testimony to attribute to Mr.

Ford 1.5 kilograms of crack. However, for the

reasons set forth below, we are convinced that

any error committed by the district court in Mr.

Ford’s case was harmless.

 According to the Sentencing Guidelines, the

appropriate base offense level for offenses

involving at least 500 grams of crack, but less

than 1.5 kilograms, is 36. Combined with his

supervisory enhancement, this would give Mr. Ford

a total offense level of 38, rather than the

total offense level of 40 determined by the

district court. However, for a category V

offender, the difference between the base offense

levels of 38 and 40 is irrelevant: Both offense

levels warrant a sentence of 360 months to life.

Mr. Ford was sentenced to 360 months, the minimum

for either offense level.

 We believe that the best course on these facts

is to hold that any error by the district court

is harmless. We have stated

that where two Guidelines ranges overlap and the

sentence imposed would have been the same

regardless of which range was applied, the

technical dispute over which range to apply may

be left unresolved. As long as it is reasonable

to conclude that the same sentence would have

been imposed regardless of the outcome of the

dispute over which range to apply, we need not

resolve the dispute.

Frazier, 213 F.3d at 418 (internal citations

omitted); see also United States v. Howard, 179

F.3d 539, 545 (7th Cir. 1999). Here, although the

district court may have used the wrong offense

level, it used the correct sentencing range.

Further, it applied the minimum sentence. Thus,
we have confidence that, had the district court

sentenced Mr. Ford using the correct offense

level, it would have given him the same sentence.

Moreover, because 360 months is the minimum

Guidelines sentence for a category V offender who

commits an offense with a total offense level of

38, Mr. Ford would have nothing to gain by being

resentenced based on an attribution of 903 grams

of crack. Consequently, we affirm his sentence.

(c)

 Finally, Mr. Ford submits, by motion filed after

oral argument, that Apprendi renders his sentence

invalid. As we have pointed out earlier, the

statutory maximum for an offense involving

cocaine is 20 years. That maximum increases to 30

years, however, if the offense is committed by a

person with a prior conviction for a felony drug

offense. Mr. Ford has such a conviction. Thus,

the statutory maximum for his current offense is

30 years, the sentence he actually received.

Accordingly, Apprendi does not apply. 

Conclusion

 For the reasons set forth above, we affirm the

three defendants’ convictions. Mr. Ford’s

sentence is also affirmed. Mr. Gaughan’s sentence

is vacated, and his case is remanded for

resentencing in conformity with this opinion.

AFFIRMED in part, VACATED and REMANDED in part

/1 Agent King’s testimony before the grand jury and

at trial differed on these events. The

discrepancies in his testimony are discussed in

Part II.A.2., infra.

/2 The indictment charged the defendants with the

following crimes:

Count I: (All defendants) Conspiracy to possess

with intent to deliver more than five kilograms

of cocaine, and to possess with intent to

distribute and distribute more than 50 grams of

cocaine base, Summer 1997-December 15, 1997, in

violation of 21 U.S.C. sec.sec. 841(a)(1) and

846, and 18 U.S.C. sec. 2

Count II: (All defendants) Possession with

intent to distribute more than 50 grams of

cocaine base, December 8, 1997, in violation of

21 U.S.C. sec. 841(a)(1) and 18 U.S.C. sec. 2

Count III: (All defendants) Possession with

intent to distribute cocaine, December 8, 1997,
in violation of 21 U.S.C. sec. 841(a)(1) and 18

U.S.C. sec. 2

Count IV: (All defendants) Interstate travel in

aid of unlawful activity involving possession

with intent to distribute cocaine, December 8,

1997, in violation of 18 U.S.C. sec.sec. 1952 and

2

Count V: (Ford, Gaughan, Stott, Kulikowski)

Carrying a firearm during and in relation to a

conspiracy to possess with intent to distribute

cocaine and cocaine base, December 9, 1997, in

violation of 18 U.S.C. sec.sec. 924(c)(1) and 2

Count VI: (Gaughan, Kulikowski) Interstate

travel in aid of an unlawful activity involving

the possession with intent to distribute cocaine,

December 15, 1997, in violation of 18 U.S.C.

sec.sec. 1952 and 2

Count VII: (Gaughan, Kulikowski) Carrying a

firearm during and in relation to a conspiracy to

possess with intent to distribute cocaine,

December 15, 1997, in violation of 18 U.S.C.

sec.sec. 924(c)(1) and 2

/3 The case against Kulikowski also went to trial.

At the close of the Government’s case against

her, she moved for acquittal on all charges, and

the district court granted the motion.

/4 Mr. Gaughan had moved prior to trial to suppress

his statement on the ground that it was the

product of coercion by the interviewing officers

who had refused to provide him necessary medical

attention. After a suppression hearing, however,

the district court denied the motion.

/5 For that conviction, Mr. Stott received a

sentence of 60 months, the statutory maximum for

his offense. 

/6 18 U.S.C. sec. 1952 provides in relevant part:

(a) Whoever travels in interstate or foreign

commerce or uses the mail of any facility in

interstate or foreign commerce, with intent to--

(1) distribute the proceeds of any unlawful

activity; or

(2) commit any crime of violence to further any

unlawful activity; or

(3) otherwise promote, manage, establish, carry

on, or facilitate the promotion, management,

establishment, or carrying on, of any unlawful

activity,
and thereafter performs or attempts to perform--

 (A) an act described in paragraph (1) or (3)

shall be fined under this title, imprisoned not

more than 5 years, or both . . . .

/7 Mr. Gaughan, in his motion to suppress, also

forwarded other grounds to suppress his

statements. These bases, however, were abandoned

during the suppression hearing.

/8 Mr. Gaughan does not take issue with the plain

error standard in his reply brief.

/9 In an unpublished opinion, a panel of the Tenth

Circuit followed the same course. See United

States v. Johnson, No. 96-2008, 1997 WL 381926

(10th Cir. July 7, 1997). In that case, the panel

decided that the evidence was not material,

meaning there could be no Brady violation even if

Brady did apply to suppression hearings. See id.

at *3.

/10 One of these two counts charged possession with

the intent to distribute more than 50 grams of

cocaine base. The other count charged possession

with the intent to distribute cocaine.

/11 The district court gave several instructions

concerning when one defendant may be liable for

the actions of other defendants. Among those

instructions was Court’s Instruction No. 56,

which states: "Any person who knowingly aids,

abets, counsels, commands, induces or procures

the commission of a crime is guilty of that

crime. However, that person must knowingly

associate himself with the criminal venture,

participate in it, and try to make it succeed."

R.295, Inst. 56.

/12 It is important to note that Mr. Ford’s challenge

addresses only the "in relation to" prong of sec.

924(c)(1), not the "uses or carries" prong.

Speaking to the "use" prong, the Supreme Court

has held that the "inert presence" or "storage"

of "a firearm, without more, is not enough to

trigger sec. 924(c)(1)." Bailey v. United States,

516 U.S. 137, 149 (1995). Accordingly, we have

reversed convictions where the record did not

convince us that the defendant used a firearm as

defined in Bailey. See, e.g., United States v.

Stanback, 113 F.3d 651, 654-57 (7th Cir. 1997)

(holding that a gun resting on a table where

drugs were present was not "used"); United States

v. Holmes, 93 F.3d 289, 293-96 (7th Cir. 1996)

(reversing conviction when jury might have relied

on evidence that did not show actual use). Here,

however, Mr. Ford does not challenge the jury’s

finding that he "used" or "carried" the gun, only

that his use was not "in relation to" his drug
crimes.

/13 At trial, counsel for Mr. Gaughan objected to the

propriety of any instruction based on Pinkerton

liability, stating, "And just Pinkerton generally

that shouldn’t apply. We just have a general

objection." Tr. at 715. The district court

overruled that objection. Mr. Gaughan’s counsel

raised a further complaint about having a

Pinkerton instruction, see id. 736-37, but the

district court again stated that it would give

the instruction. At neither time did Mr.

Gaughan’s counsel raise any objection to the form

of the instruction. In this court, Mr. Ford and

Mr. Gaughan do not argue that a Pinkerton

instruction was inappropriate.

/14 We are not willing to state that the instruction

is, as a matter of law, deficient. There may be

circumstances where, in combination with other

instructions, an instruction such as this one may

be adequate. However, such circumstances are not

present here.

/15 There does not seem to be any dispute, however,

that Mr. Gaughan knew that Bonner was

transporting cocaine across state lines using

interstate highways.

/16 Other circuits have agreed that, when a defendant

could foresee the conversion of cocaine to crack,

he properly may be held accountable for the

conversion. See United States v. Fox, 189 F.3d

1115, 1119 (9th Cir. 1999) (collecting cases),

cert. denied, 528 U.S. 1098 (2000).

\17 Mr. Gaughan claims that Bonner later contradicted

himself by testifying that Mr. Gaughan was

unaware that cocaine was being converted to

crack. We cannot accept this interpretation of

the record. Bonner’s later testimony indicates

only that Mr. Gaughan was not aware that it was

Bonner personally who was converting cocaine into

crack:

Q. So, that that person who was supplying you

with the powder didn’t know that you yourself

were making it into crack, right?

A. No.

Q. And is that--you agree with me?

A. Yes.

Q. That the person who was supplying you with

the powder did not know that you were making it

into crack?

A. No, he didn’t know what I was doing.

Tr. at 409-10. Bonner later clarified that Mr.

Gaughan did not know that Bonner personally was

converting cocaine into crack but that Mr.

Gaughan was aware that someone was converting
cocaine into crack:

Q. You were asked the question whether or not

Bob [Gaughan] knew that you were cooking crack

cocaine, and you said you--he didn’t, is that

correct?

A. Correct.

Q. Did he know that some of his crack cocaine--

some of his cocaine was going to be cooked into

crack?

A. Yes, he--he knew that.

Tr. at 479. None of the testimony identified by

Mr. Gaughan contradicts Bonner’s statements that

Mr. Gaughan was aware that some cocaine was being

converted into crack but was unaware that it was

Bonner personally who was undertaking the

conversion.

/18 18 U.S.C. sec. 924(c)(1) requires that all

defendants convicted of using or carrying a gun

in relation to a drug trafficking offense serve a

60-month sentence consecutive to their sentence

for the underlying drug trafficking offense.

/19 Specifically, Bonner offered the following

testimony:

Q. [D]id you take any other action in terms of

this problem with the crack cocaine?

A. Yes, I did.

Q. What did you do?

A. I started cooking it myself.

Q. And once you cooked it, what did you do with

it?

A. Then I would get it to my--Larry.

Q. Before that, you were basically just giving

them powder?

A. Yes.

Q. And now you’re giving them crack cocaine?

A. Yes.

Tr. at 311.

/20 Bonner testified that in the meeting previous to

that one he brought less than 250 grams; however,

he did not state the smallest amount he might

have brought. Bonner also could not state with

any certainty the number of other deliveries he

made to Mr. Ford.

/21 The police officer who arrested Bonner testified

that he found a bag of crack cocaine in Bonner’s

car. The defense stipulated that the amount found

in the bag was 403.7 grams.