In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 18-2576 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

REX A. HOPPER, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the 

Southern District of Illinois. 

No. 4:17-cr-40034-JPG-1 — J. Phil Gilbert, Judge. 

____________________ 

ARGUED APRIL 4, 2019 — DECIDED AUGUST 20, 2019 

____________________ 

Before RIPPLE, HAMILTON, and ST. EVE, Circuit Judges. 

RIPPLE, Circuit Judge. In June 2017, a federal grand jury 

indicted Rex Hopper on one count of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 

841(b)(1)(B), 846 and 18 U.S.C. § 2. Mr. Hopper was part of a 

community of methamphetamine users and sellers in southern Illinois. Several of these individuals signed proffer letters 

with the Government, agreeing to provide testimony against 

Mr. Hopper in exchange for leniency. Most of these witness-
2 No. 18-2576 

es subsequently entered plea agreements.1 Mr. Hopper, 

however, pleaded not guilty to the single count in the indictment and proceeded to trial before a jury in late February 2018. 

Over the course of three days, the Government presented 

the testimony of approximately twenty witnesses against 

Mr. Hopper. The district court denied Mr. Hopper’s motion 

for disclosure of the proffer letters given to these witnesses. 

Following deliberations, the jury found Mr. Hopper guilty of 

conspiracy to distribute methamphetamine, as charged in 

the indictment, and returned a special verdict form finding 

that the conspiracy involved an amount of 50 grams or more. 

Based on interviews with other participants in the conspiracy, the probation office determined that Mr. Hopper’s 

relevant conduct involved 1.968 kilograms of ice methamphetamine. This drug amount corresponded to a base offense level of 36. At sentencing, the district court determined 

that Mr. Hopper was subject to a two-level sentence enhancement for maintaining a residence for the purpose of 

distributing methamphetamine. Based on a total offense level of 38 and a criminal history category of I, the court calculated a guidelines imprisonment range of 235 to 293 months. 

The district court sentenced Mr. Hopper at the bottom of the 

guidelines range to 235 months’ imprisonment, followed by 

four years of supervised release.2 

 

1 One witness entered an “open” guilty plea, for which there was no 

written plea agreement. 

2 The district court had jurisdiction under 18 U.S.C. § 3231. 
No. 18-2576 3

Mr. Hopper now challenges both his conviction and his 

sentence. First, we conclude that the Government presented 

sufficient evidence to prove that Mr. Hopper engaged in a 

conspiracy to distribute methamphetamine in southern Illinois, and that there was no material variance between the 

conspiracy charged in the indictment and the Government’s 

proof at trial. Second, the district court did not err when it 

denied Mr. Hopper’s motion for disclosure of the cooperating witnesses’ proffer letters. Third, the district court properly concluded that Mr. Hopper was subject to a two-level sentence enhancement for maintaining his Creal Springs residence for the purpose of distributing methamphetamine. 

However, we conclude that the district court plainly erred 

when it calculated Mr. Hopper’s relevant conduct and corresponding guidelines range. In context, it is clear that, in their 

separate interviews, Lucas Holland and Randall Riley were 

describing the same transactions. By including the amounts 

described by both Holland and Riley in the calculation of 

Mr. Hopper’s relevant conduct, the presentence report 

(“PSR”), adopted by the district court, erroneously double-counted those drug quantities. 

For the foregoing reasons, we affirm Mr. Hopper’s conviction for conspiracy to distribute methamphetamine. We 

also affirm the district court’s determination that he was 

subject to a sentence enhancement for maintaining a drug 

premises. Because the court plainly erred in calculating his 

relevant conduct, however, we vacate Mr. Hopper’s sentence 

and remand his case to the district court for resentencing.3

 

3 We have jurisdiction over this appeal under 28 U.S.C. § 1291 and 18 

U.S.C. § 3742. 
4 No. 18-2576 

I. 

BACKGROUND 

A. 

In April 2017, law enforcement officers executed a search 

warrant at Mr. Hopper’s residence. They sought to recover 

items involved in a burglary. Officers observed drug paraphernalia and methamphetamine in plain view. Accordingly, the officers obtained and executed a second search warrant for the residence. Upon finding additional drug paraphernalia and methamphetamine in his home, officers took 

Mr. Hopper into custody. A federal grand jury later returned 

an indictment charging Mr. Hopper with one count of conspiracy to distribute methamphetamine, in violation of 18 

U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846 and 18 U.S.C. § 2, in 

the Southern District of Illinois. 

B. 

Mr. Hopper was part of a community of methamphetamine users and sellers in southern Illinois. Around the time 

of his indictment, the Government also charged other members of this group with conspiracy to distribute methamphetamine. Several of these individuals received proffer letters from the Government and subsequently agreed to provide testimony against Mr. Hopper in exchange for leniency. 

Most of these witnesses later entered plea agreements. 

Mr. Hopper, however, pleaded not guilty to the single count 

in the indictment and proceeded to trial before a jury in late 

February 2018. 

Before the trial began, counsel for Mr. Hopper renewed a 

previous motion for disclosure of the proffer letters given to 

the witnesses who would testify against Mr. Hopper. Refer-
No. 18-2576 5

encing our decision in United States v. Weidenburner, 550 

F. App’x 298 (7th Cir. 2013) (unpublished), counsel recognized that “[t]he Seventh Circuit has ruled that” proffer letters “are not materials that have to be provided.”4 Nevertheless, counsel wanted “the record to be clear” that he thought 

he “ought to be provided a copy” of the proffer letters.5

Counsel for Mr. Hopper explained that the proffer letter 

“is an agreement that sets forth the ground rules” for what 

testimony “may or may not lead to a plea agreement.”6 He 

submitted that “this is a very important aspect of the defense” because “no plea agreements are offered until you 

proffer.”7 In other words, the proffer letters are “part of the 

process by which men and women ultimately find their way 

on to the stand to give testimony against a defendant.”8 As a 

result, counsel asserted, “if the[] jurors don’t have some understanding of this process,” the defense would be “really 

hampered in terms of our constitutional right[s] to put on a 

defense and ... to confront the witnesses through cross examination that are here to accuse Rex Hopper of various 

crimes.”9

Relying on our decision in Weidenburner, the Government 

responded that “the Seventh Circuit is clear that the proffer 

 

4 R.118 (Trial Tr. Day 1) at 8. 

5 Id. at 5. 

6 Id. at 6. 

7 Id. 

8 Id. 

9 Id. at 7. 
6 No. 18-2576 

letters don’t come in,” nor does “any information about the 

proffer,” “because it is a preliminary step in the plea agreement, and then the plea agreement supersedes all that.”10

Turning to defense counsel, the court stated, “I think it is 

pretty clear that, you know, you are not going to get the 

documents.”11

The Government further noted its objection to defense 

counsel asking any questions about the process of entering a 

plea agreement. The court asked defense counsel what kind 

of questions he intended to ask the cooperating witnesses. 

Counsel explained that he wanted the jury to know that before entering a plea agreement, a witness had to meet with 

federal agents and “understood that agents would decide 

and the prosecutors would decide whether you told the 

truth, and if they didn’t think you told the truth that a plea 

agreement would not be tendered.”12 Counsel acknowledged that he planned to review the terms of the plea 

agreements with each witness, but argued that the jury 

would be “missing a big part of this process” without the 

proffer letters.13 Based on our decision in Weidenburner, the 

Government reiterated that the plea agreement “supersede[s] the proffer letter” and is “the document which the 

defendant is entitled to and entitled to question witnesses 

about.”14 The court denied the motion for disclosure of the 

 

10 Id. at 8. 

11 Id. 

12 Id. at 10. 

13 Id. at 11. 

14 Id. at 14. 
No. 18-2576 7

proffer letters and ruled that counsel could ask the witnesses 

“whether they’ve entered into a proffer agreement, but going into the terms of it that are super[s]eded by the plea 

agreement, I’m not going to let you do.”15

C. 

Mr. Hopper proceeded to trial before a jury on February 

26, 2018. Over the course of three days, the Government presented the testimony of approximately twenty witnesses 

against Mr. Hopper. Set forth below is a summary of the 

witnesses and testimony relevant to this appeal. 

Dameon Williams testified that he met Mr. Hopper sometime in 2015 when they were “messing with drugs.”16 He obtained ice methamphetamine from Mr. Hopper “[o]ff and 

on” for about one year.17 On these occasions, he received 

about one to two ounces of methamphetamine at a cost of 

$900 to $1200 per ounce. Williams stated that sometimes, he 

bought the drugs outright, while other times Mr. Hopper 

provided the drugs to him “on credit,” or on a “front.”18 He 

explained that, in this fronting arrangement, Mr. Hopper 

provided Williams a quantity of drugs, some of which Williams sold to others in order to pay Mr. Hopper back. He 

further testified that Mr. Hopper called Williams occasionally and asked him to visit the homes of customers who owed 

Mr. Hopper money and bring them to Mr. Hopper’s house 

 

15 Id. at 15–16. 

16 Id. at 59. 

17 Id. 

18 Id. at 61. 
8 No. 18-2576 

to settle the debt. He explained that he helped Mr. Hopper 

collect money from his customers because Williams “was 

selling drugs for him” and “to help him out in his drug 

business.”19

Brooke Peyton testified that she met Mr. Hopper in 2016 

when she was dating William, also known as “Andy,” 

Karnes. With Karnes, she had visited Mr. Hopper’s residence in Creal Springs, where Mr. Hopper provided ice 

methamphetamine to Karnes. She stated that during the 

summer of 2016, Mr. Hopper provided Karnes three to five 

“8-balls,” or 3.5 gram quantities of ice methamphetamine, 

several times a week.20 Karnes obtained the methamphetamine from Mr. Hopper “[o]n a front,” in which he would sell 

drugs to others in order to pay Mr. Hopper back for the 

drugs he had obtained previously.21 Peyton further testified 

that sometimes, Mr. Hopper came to her home to drop off 

methamphetamine for Karnes. On other occasions, he sent 

Williams to deliver the drugs. 

Robert Weir, also known as “Boog,” testified that he and 

Mr. Hopper reconnected around April or May 2015. At some 

point, he, Mr. Hopper, Lucas Holland, and Randall Riley began an arrangement in which the four of them pooled their 

money together to purchase methamphetamine from a 

source in Cape Girardeau, Missouri. Sometimes, Weir gave 

Mr. Hopper his money, and Mr. Hopper drove to Murphysboro, where he gave Weir’s and his money to Riley to pur-

 

19 Id. at 64. 

20 Id. at 89. 

21 Id. at 90. 
No. 18-2576 9

chase the drugs. Other times, Mr. Hopper gave Weir his 

money, and Weir delivered the money to Riley. Still other 

times, Weir and Mr. Hopper visited Riley together. After Riley obtained the drugs from Cape Girardeau, the group divided the methamphetamine into equal, one-ounce shares. 

Weir stated that he paid about $800 to $900 per ounce of 

methamphetamine. This arrangement lasted about a month, 

during which the group obtained methamphetamine two to 

three times per week. 

In March 2016, police arrested Riley. Weir and Mr. Hopper then arranged to pool their money with Holland to purchase methamphetamine. Holland took their money and ran, 

and they never got their drugs. Additionally, Weir acknowledged that he had personally observed Mr. Hopper distribute methamphetamine to other individuals. 

Lucas Holland testified that, at the beginning of 2016, he 

had been living at Riley’s house for about four or five 

months. Holland confirmed the details of the pooling arrangement he engaged in with Mr. Hopper, Riley, and Weir 

to purchase methamphetamine from a source in Cape 

Girardeau. He reiterated that Mr. Hopper or Weir, or sometimes the two together, came to Riley’s house to deliver their 

money. Holland and Riley then drove to Cape Girardeau to 

obtain the methamphetamine. When Holland and Riley returned to Illinois, the group of four split up the drugs. According to Holland, this arrangement lasted from about December 2015 to February 2016. 

Holland testified that, on one occasion, he traveled to 

Cape Girardeau with Riley, Mr. Hopper, and Erin Wright, 

Mr. Hopper’s girlfriend, for a drug deal that Mr. Hopper 

had arranged. The group pooled their money, and Mr. Hop-
10 No. 18-2576 

per gave it to an individual in Cape Girardeau. In addition, 

Holland confirmed that a few days after police arrested Riley, Mr. Hopper and Weir gave him money to purchase 

drugs. He acknowledged that he “ran off with it.”22 Holland 

also testified that he had observed Mr. Hopper sell methamphetamine to individuals, including Kevin Shuman, at his 

home in Creal Springs. 

Randall Riley testified that he met Mr. Hopper around 

the end of 2015 or early 2016 through a mutual acquaintance 

when Mr. Hopper was seeking methamphetamine. Riley 

confirmed that eventually, he, Mr. Hopper, Holland, and 

Weir began a pooling arrangement in which they combined 

their money to purchase methamphetamine from a source in 

Cape Girardeau. According to Riley, the group bought four 

ounces of methamphetamine every day and split the drugs 

between the four of them. Either Mr. Hopper, Weir, or both 

came to Riley’s home with $2,200 for Mr. Hopper and Weir’s 

shares. Riley and Holland drove to Missouri to obtain the 

drugs. When they returned, they met either at Riley’s home 

or at Mr. Hopper’s residence in Creal Springs to divide up 

the drugs. 

Riley confirmed that on one occasion, his source was unavailable, so Mr. Hopper arranged a transaction with his 

own source. He, Riley, Holland, and Wright drove to Cape 

Girardeau, where Mr. Hopper gave the source the money 

they had pooled together. 

Blake Gordon testified that he met Mr. Hopper through 

Weir. According to Gordon, he sold methamphetamine to 

 

22 R.122 (Trial Tr. Day 2) at 54. 
No. 18-2576 11

Mr. Hopper “more than ten times.”23 On such occasions, he 

provided Mr. Hopper methamphetamine in amounts ranging from one to fourteen grams. He also stated that “on numerous occasions,” he drove Mr. Hopper around the southern Illinois area to deliver drugs to his customers.24 Gordon 

described one occasion in which he, Mr. Hopper, and Weir 

pooled their money together. Weir drove to Cape Girardeau 

to obtain the methamphetamine, which they divided among 

the three of them when he returned to Illinois. 

Crystal Boulton testified that in March 2016, she and her 

children were living at Riley’s home with Riley, her boyfriend, as well as Holland and his girlfriend. She stated that 

she personally observed Mr. Hopper obtain methamphetamine from Riley at Riley’s residence about four or five times. 

On such occasions, Mr. Hopper paid Riley for the methamphetamine and Riley gave Boulton the money to count. She 

counted about $1,000 to $1,200 per ounce of methamphetamine. Boulton also overheard discussions between Riley and 

Mr. Hopper about pooling their money together and making 

trips to Cape Girardeau to obtain methamphetamine. 

Erin Wright testified that she met Mr. Hopper in September 2015 and moved in with him at his home in Creal 

Springs soon after. She confirmed that Mr. Hopper and Weir 

went to Riley’s house to get drugs. Usually, Mr. Hopper returned with an ounce of methamphetamine. She stated that 

Mr. Hopper had scales at his Creal Springs home, which he 

used to weigh drugs. She further testified that, sometimes, 

 

23 Id. at 123. 

24 Id. 
12 No. 18-2576 

Riley and Holland came to the Creal Springs home to do 

business with Mr. Hopper. She described one occasion on 

which she and Mr. Hopper went to Kansas City, Missouri, 

where Mr. Hopper and an individual named Jason Clapp 

obtained methamphetamine. Wright stated that there were 

also a few times when Clapp came to the Creal Springs residence to provide Mr. Hopper with methamphetamine. 

William Craig testified that he knew Mr. Hopper through 

Weir. He bought methamphetamine from Mr. Hopper about 

ten or fifteen times. On such occasions, he obtained methamphetamine in quantities up to eight ounces. When Craig 

obtained the methamphetamine for himself, Mr. Hopper 

would not charge him. When Craig purchased the methamphetamine to deliver to others, he paid Mr. Hopper in cash. 

Craig stated that on one occasion, after Mr. Hopper and 

Weir pooled their money together, Craig drove with Weir to 

Charleston, Missouri, to purchase methamphetamine. They 

returned to Mr. Hopper’s home, where Mr. Hopper and 

Weir divided the drugs. Craig also confirmed that he had 

seen Mr. Hopper sell methamphetamine at his home to Kevin Page and to Andy Karnes on multiple occasions. 

Kevin Shuman testified that he had known Mr. Hopper 

for years. He moved in with Mr. Hopper at his Creal Springs 

home and lived there in December 2015 and January 2016. 

Initially, he obtained “small amounts” of methamphetamine, 

ranging from “seven grams to an 8-ball,” from Mr. Hopper.25

Shuman bought the drugs “on a front,” explaining that he 

sold drugs in order to repay Mr. Hopper for previously pur-

 

25 R.123 (Trial Tr. Day 3) at 26. 
No. 18-2576 13

chased quantities of methamphetamine.26 He recalled two 

occasions on which he drove Mr. Hopper to Jackson, Missouri, to obtain methamphetamine. When they returned 

home, Mr. Hopper gave Shuman drugs in return for driving. 

After a brief term in jail in early 2016, Shuman returned, 

and the quantities he bought from Mr. Hopper increased 

from grams to ounces of methamphetamine. The two had an 

arrangement in which Mr. Hopper placed methamphetamine for Shuman in the garage. Shuman, who was no longer 

living with Mr. Hopper, retrieved the drugs from the garage 

and left in their place the money he owed Mr. Hopper for 

previously fronted methamphetamine. Shuman further testified that he drove Mr. Hopper around southern Illinois to 

deliver methamphetamine to his customers. 

D. 

At the close of the Government’s case in chief, counsel for 

Mr. Hopper moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29, which the court denied. 

Mr. Hopper elected not to testify, and the defense rested its 

case. Following jury instructions and closing arguments, the 

jury retired to deliberate. Approximately an hour later, the 

court received a note from the jury stating, “Pages 17 + 21 

are confusing us as to the definition of ‘conspiracy.’”27 Page 

17 of the jury instructions stated that: 

A conspiracy is an express or implied 

agreement between two or more persons to 

 

26 Id. 

27 R.72 at 1 (capitalization omitted). 
14 No. 18-2576 

commit a crime. A conspiracy may be proven 

even if its goal was not accomplished. 

In deciding whether the charged conspiracy 

existed, you may consider all of the circumstances, including the words and acts of each 

of the alleged participants.[28] 

Page 21 of the jury instructions stated that: 

A conspiracy requires more than just a 

buyer-seller relationship between the defendant and another person. In addition, a buyer 

and seller of a mixture and substance containing methamphetamine do not enter into a conspiracy to distribute a mixture and substance 

containing methamphetamine simply because 

the buyer resells the [] mixture and substance 

containing methamphetamine to others, even if 

the seller knows that the buyer intends to resell 

the [] mixture and substance containing methamphetamine. 

To establish that a seller knowingly became 

a member of a conspiracy with a buyer to distribute a mixture and substance containing 

methamphetamine, the government must 

prove that the buyer and seller had the joint 

criminal objective of distributing a mixture and 

 

28 R.74 at 17. 
No. 18-2576 15

substance containing methamphetamine to 

others.[29]

After conferring with the parties, the court responded to 

the jury, “All instructions should be read together. I cannot 

give you any more instruction other than what you have 

been given.”30 Following further deliberations, the jury 

reached a verdict, finding Mr. Hopper guilty of conspiracy 

to distribute methamphetamine, as charged in the indictment. The jury returned a special verdict form finding that 

the conspiracy involved an amount of 50 grams or more. 

E. 

Prior to Mr. Hopper’s sentencing, the probation office 

prepared a PSR. To determine the scope of his relevant conduct, the probation office interviewed several witnesses with 

knowledge of the conspiracy. Based on these interviews, the 

initial PSR determined that Mr. Hopper had a base offense 

level of 36, which corresponds to offenses involving “at least 

1.5 kilograms but less than 4.5 kilograms of ice.”31 Specifically, according to the PSR, the conspiracy involved 1.968 kilograms of ice methamphetamine. 

To calculate Mr. Hopper’s relevant conduct, the PSR totaled the drug amounts described in four separate interviews with other participants in the conspiracy. In particular: 

On August 24, 2016, Lucas Holland participat-

 

29 Id. at 21. 

30 R.72 at 1. 

31 R.81 ¶ 28. 
16 No. 18-2576 

ed in an interview with investigating agents. 

Holland divulged that he received four ounces 

of ice every day for a month from Randall Riley; of the four ounces, he would give the defendant one ounce on each occasion. (30 ounces = 850 grams)[32]

On February 14, 2017, Randall Riley was interviewed by investigating agents. Riley stated 

that from January through March, he sold one 

ounce of ice every day to the defendant for 

$1,100. (28 days [February] x 28.35 grams = 793 

grams) [33]

On May 4, 2017, Erin Wright participated in an 

interview with agents. ... Wright stated she 

traveled with Hopper on ten occasions to pick 

up ice from Gary Mims in Cape Girardeau. She 

stated on average, they would obtain an ounce 

of ice per visit (10 ounces or 283.5 grams of 

ice). [34]

On July 19, 2017, Erin Wright was interview[ed] by investigating agents. According to 

Wright, the defendant purchased ice from 

Robert Weir from October or November 2015 

until Weir was arrested in March 2016. Wright 

estimated that the defendant would purchase 

 

32 Id. ¶ 12. 

33 Id. ¶ 14. 

34 Id. ¶ 19. 
No. 18-2576 17

3.5 grams to 28 grams per week, conservatively. (12 weeks [December—February] x 3.5 

grams = 42 grams)[35]

The PSR explained that Mr. Hopper’s “relevant conduct is 

outlined in bold above and involves the amounts obtained 

by the defendant, which he then distributed to others.”36

Further, the PSR noted that “[t]he amount of ice that the defendant distributed was not counted to avoid double counting.”37 Adding the drug amounts described above, the PSR 

totaled Mr. Hopper’s relevant conduct to be 1.968 kilograms 

of ice methamphetamine. 

The initial PSR awarded Mr. Hopper a two-level sentence 

reduction for acceptance of responsibility. Based on a total 

offense level of 34 and a criminal history category of I, the 

PSR calculated a guidelines imprisonment range of 151 to 

188 months. Mr. Hopper filed an objection to the initial PSR, 

challenging the sentence reduction for acceptance of responsibility.38 He asserted that he had “neither denied, nor admitted, any ... involvement” in the conspiracy.39 He also 

 

35 Id. ¶ 20. 

36 Id. ¶ 21. 

37 Id. 

38 Mr. Hopper’s trial counsel acknowledged that this objection was highly unusual. See R.82 at 1 (“This marks the first instance in Undersigned 

Counsel’s career in which he levels an objection on behalf of a client that 

operates to raise the applicable advisory guidelines range. Thus, it 

should be noted that this objection is filed with Defendant Rex Hopper’s 

consent and at his direction.”). 

39 Id.
18 No. 18-2576 

stated that he “underst[ood] that this objection [would] 

doom any opportunity he might have at the two-level [acceptance of responsibility] reduction.”40 He submitted that, 

as a result, his total offense level was 36 and the proper 

guidelines range was 188 to 235 months’ imprisonment. 

Consequently, the probation office filed a revised PSR, 

which removed the acceptance of responsibility reduction. 

Based on a total offense level of 36 and a criminal history 

category of I, the revised PSR calculated a guidelines imprisonment range of 188 to 235 months. The Government filed 

an objection to the revised PSR, contending that Mr. Hopper 

was subject to a two-level sentence enhancement for maintaining a residence for the purpose of distributing methamphetamine. See U.S.S.G. § 2D1.1(b)(12). 

Accordingly, the probation office filed a second revised 

PSR, adopting the Government’s recommendation that 

Mr. Hopper was subject to the two-level sentence enhancement for maintaining a drug premises. Based on a total offense level of 38 and a criminal history category of I, the second revised PSR calculated a guidelines imprisonment range 

of 235 to 293 months. Mr. Hopper filed an objection to the 

second revised PSR, challenging the application of the drug 

premises enhancement. He maintained that, consistent with 

the first revised PSR, his total offense level was 36 and his 

guidelines imprisonment range was 188 to 235 months. 

The district court conducted a hearing to impose its sentence. At the outset, the court asked whether there were any 

objections to the PSR other than Mr. Hopper’s challenge to 

 

40 Id. 
No. 18-2576 19

the application of the drug premises enhancement. Both sets 

of counsel stated that there were not. The court then turned 

to the sentence enhancement. 

The Government introduced additional testimony from 

Wright, Mr. Hopper’s former girlfriend. She testified that 

she had lived with Mr. Hopper at his Creal Springs home 

from about October 2015 until May 2017. She acknowledged 

that, during this time, she saw methamphetamine at the residence. She elaborated that “[i]t was always there” and that 

she saw drugs in the home “[p]retty much every day.”41

Wright testified that after Mr. Hopper obtained methamphetamine from others, he brought it back to the Creal 

Springs house. She further stated that she saw Mr. Hopper 

distribute methamphetamine from the residence. She said 

that this occurred “[t]hroughout the week” and that “each 

week there was some sort of activity going on” involving 

methamphetamine.42 Wright acknowledged that Mr. Hopper 

collected money from individuals who bought methamphetamine at his home. She testified that he had drug scales at 

the house, which he used “[t]o weigh out the product.”43 She 

estimated that, while she lived with him, Mr. Hopper distributed methamphetamine from his residence approximately “[w]eekly.”44 She added, however, that toward the end of 

 

41 R.125 at 8. 

42 Id. at 9. 

43 Id. 

44 Id. at 10. 
20 No. 18-2576 

their time living together, Mr. Hopper’s drug selling diminished and he was “just using.”45 

The court inquired what Mr. Hopper did for a living. 

Wright explained that Mr. Hopper had received a monetary 

settlement after working in the coal mines. Subsequently, he 

had a “side business” buying and selling cars, and he dealt 

drugs.46 Wright acknowledged that Mr. Hopper did not “officially work.”47

Based on the testimony introduced at trial and at sentencing, the court concluded that Mr. Hopper stored methamphetamine at and distributed it from the Creal Springs residence. Given Wright’s testimony that this occurred weekly 

over an extended period of time, the court determined that 

the distribution was “more than just incidental or collateral.”48 Accordingly, the court overruled Mr. Hopper’s objection and concluded that he was subject to the two-level enhancement for maintaining a residence for the purpose of 

distributing methamphetamine. 

Noting that there were no other objections, the court 

adopted the findings of the PSR as the findings of the court. 

This included the finding that the conspiracy involved between 1.5 and 4.5 kilograms of ice methamphetamine, specifically 1.968 kilograms, which corresponded to a base offense 

level of 36. Given its conclusion regarding the two-level 

 

45 Id. at 24. 

46 Id. at 32. 

47 Id. 

48 Id. at 41. 
No. 18-2576 21

drug premises enhancement, the court determined that 

Mr. Hopper had a total offense level of 38. With a criminal 

history category of I, the court concluded that his corresponding guidelines imprisonment range was 235 to 293 

months. 

Neither party objected to the court’s guideline range 

findings. The Government recommended a sentence near or 

at the top of the guidelines range, while counsel for 

Mr. Hopper recommended a sentence of 188 months. Based 

on the information in the PSR, the factors set forth in 18 

U.S.C. § 3553(a), and the arguments of Mr. Hopper’s counsel, 

the court sentenced Mr. Hopper at the bottom of the guidelines range to 235 months’ imprisonment, followed by four 

years of supervised release. At the conclusion of the hearing, 

the court asked defense counsel, “Are there any other arguments I have not considered?”49 Counsel for Mr. Hopper responded that there were not. Following the entry of final 

judgment, Mr. Hopper filed a timely notice of appeal. 

II. 

DISCUSSION 

Mr. Hopper raises four arguments on appeal. First, he asserts that the evidence presented at trial was insufficient to 

support his conviction for conspiracy to distribute methamphetamine and that, even if the Government established the 

existence of multiple, smaller conspiracies, there was a fatal 

variance between the single, overarching conspiracy alleged 

in the indictment and the Government’s proof at trial. Sec-

 

49 Id. at 59. 
22 No. 18-2576 

ond, he contends that the district court erred when it denied 

his motion for disclosure of the cooperating witnesses’ proffer letters. Third, he challenges the district court’s application of a two-level sentence enhancement for maintaining a 

drug premises. Finally, he submits that the district court 

erred in calculating his guidelines range because, in determining Mr. Hopper’s relevant conduct, it double-counted 

the drug transactions described by Holland and Riley. 

A. 

1. 

We begin with Mr. Hopper’s attack on the sufficiency of 

the evidence. United States v. Douglas, 874 F.2d 1145, 1150 

(7th Cir. 1989), abrogated on other grounds by United States v. 

Durrive, 902 F.2d 1221 (7th Cir. 1990).50 He contends that 

there was insufficient evidence to support his conviction for 

conspiracy to distribute methamphetamine because the 

Government proved only a series of buyer-seller relationships. He preserved this argument by moving for a judgment of acquittal at the close of all evidence, so we review 

 

50 In United States v. Douglas, 874 F.2d 1145 (7th Cir. 1989), abrogated on 

other grounds by United States v. Durrive, 902 F.2d 1221 (7th Cir. 1990), we 

adopted a “policy” of “routinely addressing evidentiary sufficiency in 

criminal cases when a defendant presents the issue on appeal.” Id. at 

1150. We reasoned that “[i]f in fact insufficient evidence is presented at a 

first trial, a retrial, on any basis, ordinarily may be a wasted endeavor.” 

Id. By contrast, if we find “that the evidence is sufficient to sustain a conviction, but reverse based on trial error, a retrial” is proper. Id. Accordingly, to conserve the “scarce and costly resources” of the courts and the 

parties, we address a challenge to the sufficiency of the evidence first. Id. 
No. 18-2576 23

his claim de novo. United States v. Claybrooks, 729 F.3d 699, 

704 (7th Cir. 2013). 

A defendant’s burden in showing the evidence was insufficient to support a conviction is indeed a high one. See 

United States v. Rollins, 544 F.3d 820, 835 (7th Cir. 2008). In 

attempting to describe that burden, we often have said that 

the burden is a direct function of the strength of the Government’s case. See United States v. Garcia, 919 F.3d 489, 496–

97 (7th Cir. 2019); United States v. Jones, 713 F.3d 336, 339 (7th 

Cir. 2013). Because “[w]e accord great deference to jury verdicts,” United States v. Brown, 726 F.3d 993, 1004–05 (7th Cir. 

2013) (internal quotation marks omitted), “[w]e will overturn a conviction on sufficiency-of-the-evidence grounds only if no rational jury could have found the essential elements 

of the crime beyond a reasonable doubt,” United States v. 

Johnson, 592 F.3d 749, 754 (7th Cir. 2010). “In making this determination, we view all evidence and draw all reasonable 

inferences in the light most favorable to the prosecution.” Id. 

See Jackson v. Virginia, 443 U.S. 307, 319 (1979), superseded on 

other grounds by statute, Antiterrorism and Effective Death 

Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (stating standard of proof in criminal cases). Cf. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252–53 (1986) (comparing methodology in adjudicating a motion for judgment of acquittal 

in a criminal case with a motion for summary judgment in a 

civil case). 

“To convict a defendant of conspiracy, the government 

must prove that (1) two or more people agreed to commit an 

unlawful act, and (2) the defendant knowingly and intentionally joined in the agreement.” Johnson, 592 F.3d at 754. 

“For a drug-distribution conspiracy, the government must 
24 No. 18-2576 

prove that the defendant knowingly agreed—either implicitly or explicitly—with someone else to distribute drugs.” 

Claybrooks, 729 F.3d at 704 (internal quotation marks omitted). 

Our cases “have underscored that ordinary drug transactions do not entail or reflect a conspiracy, for the buyer’s only purpose is to buy and the seller’s only purpose is to sell: 

the buyer and seller lack a shared criminal goal.” United 

States v. Neal, 907 F.3d 511, 515 (7th Cir. 2018) (per curiam). 

In other words, “evidence of a buyer-seller relationship, 

standing alone, is insufficient to support a conspiracy conviction.” United States v. Townsend, 924 F.2d 1385, 1394 (7th 

Cir. 1991). Instead, we require “[e]vidence of an agreement 

to advance further distribution—beyond the initial transaction.” United States v. Pulgar, 789 F.3d 807, 812 (7th Cir. 2015). 

“The government may prove the existence of this agreement 

through circumstantial evidence.” Claybrooks, 729 F.3d at 

704–05. 

A “nonexhaustive list of characteristics that strongly distinguish a conspiracy from a buyer-seller relationship” includes: 

“sales on credit or consignment, an agreement 

to look for other customers, a payment of 

commission on sales, an indication that one 

party advised the other on the conduct of the 

other’s business, or an agreement to warn of 

future threats to each other’s business stemming from competitors or law enforcement authorities.” 
No. 18-2576 25

United States v. Pereira, 783 F.3d 700, 704 (7th Cir. 2015) 

(quoting Johnson, 592 F.3d at 755–56). “We employ a totality-of-the-circumstances approach in these cases,” “‘tak[ing] 

into account all the evidence surrounding the alleged conspiracy and mak[ing] a holistic assessment of whether the 

jury reached a reasonable verdict.’” Pulgar, 789 F.3d at 813 

(quoting Brown, 726 F.3d at 1002). 

In this case, the Government presented sufficient evidence for a reasonable jury to conclude that Mr. Hopper entered an agreement to distribute methamphetamine in 

southern Illinois. Our conclusion is supported by evidence 

that Mr. Hopper sold methamphetamine on credit, or 

“fronted” it, to his co-conspirators and that he engaged in 

pooling arrangements with other co-conspirators to purchase large quantities of methamphetamine for further distribution. 

Evidence of repeated, “fronted” transactions can be compelling circumstantial evidence of an agreement to distribute 

drugs because it demonstrates that the defendant “had 

knowingly thrown his lot in” with other members of the 

conspiracy. United States v. Dortch, 5 F.3d 1056, 1070 (7th Cir. 

1993) (internal quotation marks omitted). In a fronting arrangement, “the seller becomes the buyer’s creditor, adding 

a dimension to the relationship that goes beyond a spot sale 

for cash.” United States v. Colon, 549 F.3d 565, 569 (7th Cir. 

2008). Such a relationship indicates that the defendant “had 

a keen interest” in his co-conspirators’ “success at reselling” 

the drugs. Dortch, 5 F.3d at 1070. Although “not all credit 

sales can support an inference that there was an agreement 

to distribute,” “when a credit sale is coupled with certain 

characteristics inherent in an ongoing wholesale buyer-seller 
26 No. 18-2576 

relationship—i.e., large quantities of drugs, repeat purchases[,] or some other enduring arrangement—the credit sale 

becomes sufficient evidence to distinguish a conspiracy from 

a nonconspiratorial buyer-seller relationship.” Johnson, 592 

F.3d at 756 n.5 (internal quotation marks omitted). 

At Mr. Hopper’s trial, the Government presented evidence that he fronted methamphetamine to Williams, Shuman, and Karnes. Williams testified that he obtained about 

one to two ounces of ice methamphetamine from Mr. Hopper “[o]ff and on” for about one year.51 He stated that sometimes, he bought the drugs outright, while other times, 

Mr. Hopper provided the drugs to him “on credit,” or on a 

“front.”52 Williams explained that, in this fronting arrangement, Mr. Hopper provided him a quantity of drugs, some 

of which Williams sold to others in order to pay Mr. Hopper 

back for previously fronted drugs. Williams further testified 

that occasionally, Mr. Hopper called Williams and asked 

him to bring customers who owed Mr. Hopper money to 

Mr. Hopper’s house to settle their debt. Williams explained 

that he helped Mr. Hopper collect money from his customers 

because Williams “was selling drugs for him” and “to help 

him out in his drug business.”53

Shuman also testified that he bought drugs from 

Mr. Hopper “on a front.”54 In early 2016, the quantities he 

 

51 R.118 at 59. 

52 Id. at 61 (internal quotation marks omitted). 

53 Id. at 64. 

54 R.123 at 26. 
No. 18-2576 27

purchased increased from grams to ounces of methamphetamine. The two had an arrangement in which Mr. Hopper 

placed methamphetamine for Shuman in Mr. Hopper’s garage. Shuman retrieved the drugs from the garage and left in 

their place the money he owed Mr. Hopper for previously 

fronted methamphetamine. Shuman further testified that he 

drove Mr. Hopper around southern Illinois to deliver methamphetamine to his customers. He also described two occasions on which he drove Mr. Hopper to Jackson, Missouri, to 

obtain methamphetamine. When they returned home, 

Mr. Hopper gave Shuman drugs in return for driving. 

Similarly, Peyton testified that Karnes, her former boyfriend, obtained methamphetamine from Mr. Hopper “[o]n a 

front,” in which he would sell drugs to others in order to 

pay Mr. Hopper back for the drugs he had previously obtained.55 She stated that during the summer of 2016, 

Mr. Hopper provided Karnes three to five “8-balls,” or 3.5 

gram quantities of ice methamphetamine, several times a 

week.56 She added that on occasion, Mr. Hopper sent Williams to deliver drugs to Karnes. 

These fronting arrangements are “substantial evidence” 

that Mr. Hopper “expected and encouraged” Williams, 

Shuman, and Karnes “to redistribute the drugs he had provided.” United States v. Avila, 557 F.3d 809, 816 (7th Cir. 

2009). Because Mr. Hopper expected to be repaid based on 

sales of previously fronted methamphetamine, “he was dependent upon the further resale of the drugs to make a prof-

 

55 R.118 at 90. 

56 Id. at 89. 
28 No. 18-2576 

it.” Id.; see also United States v. Kozinski, 16 F.3d 795, 808–09 

(7th Cir. 1994) (reasoning that evidence that co-conspirator 

sold cocaine to the defendant “on credit” indicated that he 

“took a stake in her business—he received payment after, 

and as a result of, her resale”). Mr. Hopper also “demonstrated a high level of trust and confidence in” Shuman, Williams, and Karnes, given that he provided them “with large 

quantities of drugs without requiring any payment until the 

drugs were resold.” Avila, 557 F.3d at 816.57

That Mr. Hopper “fronted” methamphetamine to Williams, Shuman, and Karnes repeatedly, in large quantities, 

over an extended period of time makes clear that these activities were more than mere buyer-seller relationships. See 

Brown, 726 F.3d at 1006 (permitting “an inference of conspiracy” based on evidence of “repeated transactions, in wholesale quantities, on credit”). These “factors suggest standardized transactions and lower transaction costs in the business 

as well as a continuing relationship.” Kozinski, 16 F.3d at 809; 

see also Dortch, 5 F.3d at 1070 (reasoning that evidence of 

“multiple transactions over a prolonged period of time” 

suggested “that transaction costs ... were quite low, which 

counsels a finding of conspiracy”). Evidence that Williams 

and Shuman drove Mr. Hopper around southern Illinois to 

deliver drugs to his customers and that Mr. Hopper sent 

Williams to deliver drugs on his own or to pick up customers who owed Mr. Hopper money reinforces that these rela-

 

57 Cf. United States v. Colon, 549 F.3d 565, 569 (7th Cir. 2008) (noting “[t]he 

mutual trust in this case was less than it would have been had [a 

co-conspirator] ‘fronted’ cocaine to the defendant (a factor mentioned in 

almost all the cases) rather than being paid in cash at the time of sale”). 
No. 18-2576 29

tionships were in furtherance of Mr. Hopper’s distribution of 

drugs. Based on this evidence, a jury could rationally conclude that Mr. Hopper conspired to distribute methamphetamine. See Pereira, 783 F.3d at 704–05. 

The Government also presented considerable testimony 

establishing that Mr. Hopper pooled his resources with other 

members of the conspiracy to obtain methamphetamine at a 

reduced cost from out-of-state sources. This is circumstantial 

evidence of an agreement to distribute drugs because, by 

“put[ting] their money and transportation resources together 

for an extended period of time,” the co-conspirators “thereby ha[d] a stake in each other’s success, and kn[ew] that the 

others intended to resell” the drugs. United States v. Harris, 

567 F.3d 846, 851 (7th Cir. 2009) (citation omitted); see also 

United States v. Lomax, 816 F.3d 468, 475 (7th Cir. 2016) (holding that “[a] reasonable jury could have found that the 

shared supplier, funds, and product indicated an agreement” to sell drugs). Based on such evidence, we upheld the 

defendant’s conspiracy conviction in United States v. Haywood, 324 F.3d 514 (7th Cir. 2003), reasoning that: 

[I]n driving to Chicago together, then bringing 

the drugs back ... and splitting them up upon 

their return, Haywood and Jackson had a 

standardized way of doing business; they had 

a continuing relationship, making three trips 

together to Chicago and talking about making 

one to Oklahoma; and they both knew that the 

cocaine would be resold. 

Id. at 517. Similarly, in Harris, we held that there was sufficient evidence of a conspiracy to distribute drugs where the 

defendant “pooled his money with that of ... the other al-
30 No. 18-2576 

leged co-conspirators to buy larger amounts of crack cocaine 

from outside the state for resale.” 567 F.3d at 851. 

In this case, Holland, Riley, and Weir testified that, together with Mr. Hopper, they pooled their money and 

transportation resources over approximately a month-long 

period to purchase methamphetamine from a source in Cape 

Girardeau, Missouri. Mr. Hopper, Weir, or both brought the 

money to Riley’s home, where Holland also lived. Holland 

and Riley drove to Missouri to obtain the drugs. When they 

returned, the group met at either Riley’s home or Mr. Hopper’s home to divide up the drugs. The group pooled their 

money multiple times per week to purchase four ounces of 

methamphetamine at a time, which they divided into equal, 

one-ounce shares upon return to Illinois. 

Evidence that Mr. Hopper pooled funds, shared suppliers, and coordinated transport out of state with Holland, Riley, and Weir, underscored a common goal between them to 

distribute methamphetamine.58 That this pooling arrangement involved multiple transactions per week over an ex-

 

58 United States v. Lomax, 816 F.3d 468, 474 (7th Cir. 2016) (upholding 

conspiracy conviction based on testimony that Lomax and his 

co-conspirator “shared customers, a supplier, and heroin, and pooled 

funds”); United States v. Harris, 567 F.3d 846, 851 (7th Cir. 2009) (reasoning that evidence that the co-conspirators “pooled their money and 

shared rides to buy cheaper crack” from outside the state “mean[t] that 

each could earn more if the others succeeded”); United States v. Haywood, 

324 F.3d 514, 517 (7th Cir. 2003) (affirming conspiracy conviction where 

Haywood and his co-conspirator “pooled their money and shared rides 

to Chicago in order to buy inexpensive crack, meaning that each could 

run a cheaper operation—and earn higher profits—if the other succeeded”). 
No. 18-2576 31

tended period of time reinforces the conclusion that 

Mr. Hopper had entered an agreement to distribute drugs in 

southern Illinois. Thus, the jury had ample evidence, based 

on the “fronted” transactions and the pooling arrangement, 

to convict Mr. Hopper of conspiring to distribute methamphetamine. 

2. 

Mr. Hopper also submits that even if the Government 

presented some evidence of conspiracy, we must vacate his 

conviction “because of the variance between the indictment 

(alleging a single, overarching conspiracy) and the proof at 

trial (showing, at most, smaller sub-conspiracies), which 

prejudiced Mr. Hopper.”59 We conclude that there was no 

fatal variance in this case. 

At the close of all evidence, Mr. Hopper’s trial counsel 

moved for a judgment of acquittal under Federal Rule of 

Criminal Procedure 29. Rule 29 requires the court to “enter a 

judgment of acquittal of any offense for which the evidence 

is insufficient to sustain a conviction.” Mr. Hopper’s counsel 

did not articulate the grounds for his motion and, in denying 

the motion, the district court ruled only that the Government 

had presented sufficient evidence of the charge against 

Mr. Hopper.60 Because Mr. Hopper’s counsel did not raise 

the possibility of a fatal variance in the district court, that 

court did not have the opportunity to address this claim. 

 

59 Appellant’s Br. 17–18. 

60 See R.123 at 55. 
32 No. 18-2576 

Therefore, we review his variance claim for plain error only. 

United States v. Womack, 496 F.3d 791, 794 (7th Cir. 2007).61 

“A variance arises when the facts proved by the government at trial differ from those alleged in the indictment.” 

Avila, 557 F.3d at 815 (quoting United States v. Stigler, 413 

F.3d 588, 592 (7th Cir. 2005)). We treat a conspiracy variance 

claim “as an attack on the sufficiency of the evidence.” United States v. Handlin, 366 F.3d 584, 589 (7th Cir. 2004). Although we treat the question of variance as an attack on the 

sufficiency of the evidence, a party must raise with specificity the issue of variance. A timely objection affords the district court the opportunity to address the issue and undertake curative steps. See United States v Pierson, 925 F.3d 913, 

921–22 (7th Cir. 2019). To prevail on his claim, Mr. Hopper 

must show both that (1) “no rational trier of fact could have 

found that the evidence at trial proved a single conspiracy” 

and (2) “the variance was prejudicial.” United States v. 

DeKelaita, 875 F.3d 855, 858 (7th Cir. 2017). “Even if the evidence arguably established multiple conspiracies, there is no 

material variance from an indictment charging a single conspiracy if a reasonable trier of fact could have found beyond 

a reasonable doubt the existence of the single conspiracy 

charged in the indictment.” United States v. Williams, 272 

F.3d 845, 862 (7th Cir. 2001). 

Mr. Hopper contends that there was a variance between 

the Government’s proof at trial and the conspiracy alleged in 

 

61 Like the defendant in United States v. Womack, 496 F.3d 791, 795 (7th 

Cir. 2007), Mr. Holmes did not ask for a jury instruction on multiple conspiracies. 
No. 18-2576 33

the indictment because the Government “failed to tie together the disparate purposes of Mr. Hopper’s alleged 

co-conspirators” to demonstrate a single conspiracy.62 He 

submits that this variance prejudiced him at trial and at sentencing. 

To evaluate Mr. Hopper’s variance claim, “we turn to the 

indictment first and then to the proof at trial.” Id. at 863. The 

indictment alleged that from about January 2015 through 

May 31, 2017, in Williamson and Franklin Counties, in the 

Southern District of Illinois, “and elsewhere,” Mr. Hopper 

conspired “with other persons known and unknown” to distribute methamphetamine.63 As detailed above, at trial, the 

Government presented substantial evidence that Mr. Hopper entered an agreement to distribute methamphetamine in 

southern Illinois. It is sufficient that the purpose of the conspiracy “was simply to distribute narcotics,” and that “each 

co-conspirator agreed to advance” that goal. United States v. 

Martin, 618 F.3d 705, 736–37 (7th Cir. 2010). Based on the evidence that Mr. Hopper “fronted” methamphetamine to Williams, Shuman, and Karnes for further distribution and that 

he engaged in a pooling arrangement with Holland, Riley, 

and Weir to obtain methamphetamine at a low cost for resale, a rational jury could have found that Mr. Hopper joined 

the single conspiracy alleged in the indictment. Because 

“[t]he key to proving a conspiracy is that the defendant 

joined [an] agreement, not [a] group,” Avila, 557 F.3d at 816, 

any failure to identify the connection between Mr. Hopper’s 

 

62 Appellant’s Br. 34. 

63 R.32 at 1. 
34 No. 18-2576 

co-conspirators did not amount to a material variance. See, 

e.g., Williams, 272 F.3d at 863 (concluding there was no material variance where there was sufficient evidence “for the jury to conclude that a number of people had an agreement to 

distribute drugs in East St. Louis, and that Williams joined 

that agreement”). 

In any event, Mr. Hopper suffered no prejudice as a result of the alleged variance. First, he contends that the variance prejudiced him at trial because his counsel “was unable 

to adequately prepare his defense because the government 

did not define the scope of the alleged conspiracy until closing arguments.”64 But “[i]t is the grand jury’s statement of 

the existence of the conspiracy agreement rather than the 

identity of those who agree which places the defendant on 

notice of the charge he must be prepared to meet.” Townsend, 

924 F.2d at 1389 (internal quotation marks omitted). The 

Government’s evidence at trial demonstrated that Mr. Hopper joined others in an agreement to distribute methamphetamine in southern Illinois. Mr. Hopper had sufficient notice 

of the charged conspiracy and the evidence presented at trial.65 

Next, Mr. Hopper submits that “[t]he indictment and the 

government’s arguments at trial were so broad as to make it 

 

64 Appellant’s Br. 36. 

65 See, e.g., United States v. Hardimon, 329 F. App’x 660, 665 (7th Cir. 2009) 

(unpublished) (determining that there was no variance and explaining 

that “the indictment’s allegation of a conspiracy agreement alone was 

sufficient notice of the charge that Hardimon needed to be prepared to 

meet, and the indictment was not required to name all those who participated in the conspiracy”). 
No. 18-2576 35

impossible for Mr. Hopper to invoke his Fifth Amendment 

right against double jeopardy” in a subsequent prosecution.66 He stresses that the record does not reveal the scope 

of the conspiracy, his role in it, or “with whom the jury convicted him of conspiring.”67 If we uphold his conviction “on 

the basis that some sub-conspiracy existed,” he posits, the 

Government could indict him “for any other act within that 

time frame even though he had already been found guilty by 

the jury on the charged indictment.”68 

We have held that, despite a variance between the indictment and the proof at trial, we had “no difficulty in 

judging the scope of the conviction for double jeopardy purposes” where the indictment alleged a specific crime, “during a finite interval,” “involved a particular perpetrator,” 

and “alleged specific misconduct by the perpetrator.” United 

States v. Ratliff-White, 493 F.3d 812, 822, 824 (7th Cir. 2007) 

(upholding defendant’s mail fraud conviction because defendant was not prejudiced by the variance between the indictment, “which pinpointed a particular step in the payment process” of her alleged fraud, “and the proof at trial, 

which established another”). In the same way, here, the indictment alleged a specific crime (conspiracy to distribute 

methamphetamine), during a finite interval (about January 

2015 through about May 31, 2017), involving a particular 

perpetrator (Mr. Hopper and “other persons known and unknown”), and specific misconduct by the perpetrator (know-

 

66 Appellant’s Br. 38. 

67 Id. 

68 Id. at 38–39. 
36 No. 18-2576 

ingly conspiring to distribute a mixture and substance containing methamphetamine).69 The scope of Mr. Hopper’s 

conviction is sufficiently specific to avoid a future double 

jeopardy problem. 

He further contends that the alleged variance prejudiced 

him at trial because the jury was confused about the instructions regarding the scope of the conspiracy. Evidence of 

multiple conspiracies may pose “a danger of ‘spillover’ prejudice” where multiple defendants are tried together and the 

jury hears incriminating evidence relevant against only 

some, but not all, of the defendants. Townsend, 924 F.2d at 

1411. Because Mr. Hopper was tried alone, however, this 

concern was not implicated. See, e.g., United States v. Curtis, 

37 F.3d 301, 306 (7th Cir. 1994) (holding that “there could be 

no prejudice” where “Curtis was the only person on trial, 

thus eliminating the customary concern with jury confusion 

resulting from the ‘spillover’ effect associated with simultaneously trying multiple defendants with various connections to the purported scheme”). 

Additionally, Mr. Hopper asserts that the variance prejudiced him at sentencing because it “improperly increased the 

quantity of drugs attributed to him.”70 As we have stated, 

however, there was ample evidence to support Mr. Hopper’s 

conspiracy conviction, including but not limited to the pooling arrangement he participated in with Holland, Riley, and 

Weir. Moreover, the PSR calculated Mr. Hopper’s relevant 

conduct based on “the amounts obtained by the defendant, 

 

69 R.32 at 1. 

70 Appellant’s Br. 39. 
No. 18-2576 37

which he then distributed to others.”71 Because the district 

court did not sentence Mr. Hopper based on drug transactions not related to the conspiracy in which he participated, 

see Townsend, 924 F.2d at 1412 (determining there was no 

prejudice where “none of the defendants [could] claim that 

their sentences were increased on the basis of drug transactions that were not attributable to the limited conspiracies in 

which they participated”), or based on drug quantities sold 

by his co-conspirators that were within the scope of the conspiracy, see Avila, 557 F.3d at 819 (concluding there was no 

prejudice where the defendant’s sentence was based on 

drugs he supplied to others, not “the quantities of drugs that 

were seized from the entire drug organization”), he did not 

suffer prejudice at sentencing. 

B. 

1. 

Mr. Hopper next submits that the district court erred 

when it ruled that the Government was not required to disclose the proffer letters of its cooperating witnesses. He asserts that the court erroneously “based its decision solely on 

Brady[72] and Giglio,

[73]

 and thus did not recognize” that Federal Rule of Criminal Procedure 16 “is an independent and 

more expansive basis for disclosure of proffer letters.”74

Mr. Hopper’s trial counsel never filed a request under Rule 

 

71 R.94 ¶ 21. 

72 Brady v. Maryland, 373 U.S. 83 (1963). 

73 Giglio v. United States, 405 U.S. 150 (1972). 

74 Appellant’s Br. 14. 
38 No. 18-2576 

16 for disclosure of the proffer letters. Nor did counsel suggest to the district court, during the hearing on his motion or 

otherwise, that Rule 16 might be a basis for disclosure. That 

counsel moved for disclosure of the proffer letters and argued that the court should disregard our decision in United 

States v. Weidenburner, 550 F. App’x 298 (7th Cir. 2013) (unpublished), was not sufficient to preserve the instant argument under Rule 16.75 Because there is no evidence in the 

record that Mr. Hopper intended to relinquish this argument, however, we conclude that he has forfeited, not 

waived, his request for disclosure under Rule 16. United 

States v. Brodie, 507 F.3d 527, 530 (7th Cir. 2007) (explaining 

that “[f]orfeiture occurs when a defendant negligently fails 

to assert a right in a timely fashion”). 

Rule 16, which governs discovery and inspection, provides in relevant part that: 

Upon a defendant’s request, the government 

must permit the defendant to inspect and to 

 

75 Cf. United States v. McMillian, 786 F.3d 630, 636 (7th Cir. 2015) (defendant forfeited argument that his arrest was unlawful because his motion 

to suppress challenged only the protective sweep of his home, not his 

arrest); United States v. Kelly, 772 F.3d 1072, 1078 (7th Cir. 2014) (defendant forfeited argument that the warrant application failed to establish 

probable cause because his motion to suppress argued only that the warrant lacked sufficient particularity in the description of the place to be 

searched); United States v. Murdock, 491 F.3d 694, 698 (7th Cir. 2007) (defendant forfeited argument that his waiver of his Fifth Amendment 

rights and subsequent confession were involuntary due to the coercive 

conditions of his confinement because, in the district court, he argued 

only that his confession was involuntary because the police did not administer Miranda warnings). 
No. 18-2576 39

copy or photograph books, papers, documents, 

data, photographs, tangible objects, buildings 

or places, or copies or portions of any of these 

items, if the item is within the government’s 

possession, custody, or control and ... the item 

is material to preparing the defense. 

Fed. R. Crim. P. 16(a)(1)(E). 

Relatedly, Rule 12 provides that certain motions, including a request for “discovery under Rule 16,” “must be raised 

by pretrial motion if the basis for the motion is then reasonably available and the motion can be determined without a 

trial on the merits.” Fed. R. Crim. P. 12(b)(3). Under this 

Rule, “[t]he court may ... set a deadline for the parties to 

make pretrial motions,” and if no deadline is set, then “the 

deadline is the start of trial.” Fed. R. Crim. P. 12(c)(1). “If a 

party does not meet the deadline for making a Rule 12(b)(3) 

motion, the motion is untimely.” Fed. R. Crim. P. 12(c)(3). 

“But a court may consider the defense, objection, or request 

if the party shows good cause.” Id.

Rule 12 thus “imposes an antecedent good-cause requirement when a defendant fails to file a timely motion.” 

United States v. McMillian, 786 F.3d 630, 636 (7th Cir. 2015). In 

other words, “if a defendant fails to raise a[n] ... argument 

below—even if he does so under circumstances that suggest 

a forfeiture—we cannot proceed directly to a review of the 

district court’s actions for plain error.” United States v. Kelly, 

772 F.3d 1072, 1079 (7th Cir. 2014). Instead, we first must ask 

whether there was good cause for the failure. United States v. 

Johnson, 415 F.3d 728, 730–31 (7th Cir. 2005). 
40 No. 18-2576 

Mr. Hopper offers no explanation for his trial counsel’s 

failure to request disclosure of the proffer letters under Rule 

16 or to otherwise assert Rule 16 as a basis for disclosure of 

the letters before the district court. Further, his counsel made 

no request for relief based on good cause before the district 

court or in this court. Absent a showing of good cause as required by Rule 12, his claim is not subject to further review. 

United States v. Daniels, 803 F.3d 335, 352 (7th Cir. 2015); 

United States v. Hargrove, 508 F.3d 445, 450 (7th Cir. 2007).76

2. 

Mr. Hopper further contends that “the district court 

erred in presuming that proffer letters are never” required to 

be disclosed under Brady v. Maryland, 373 U.S. 83 (1963), or 

Giglio v. United States, 405 U.S. 150 (1972).77 We review the 

district court’s determination that the proffer letters need not 

be disclosed for an abuse of discretion. United States v. Jumah, 

599 F.3d 799, 807 (7th Cir. 2010). 

At the hearing on Mr. Hopper’s motion, the discussion 

centered on our decision in Weidenburner, where we held 

that proffer letters “are not Giglio material or Jencks Act[78]

statements.” 550 F. App’x at 304. In that case, the defendant 

moved for a new trial based on the Government’s assertion 

 

76 We note in passing that Mr. Hopper’s counsel had the information 

contained in the proffer letters, even though he did not have the letters 

themselves. He also was permitted to cross examine the witness about 

the proffer process. His client therefore suffered no prejudice from the 

absence of the letters. 

77 Appellant’s Br. 16. 

78 18 U.S.C. § 3500. 
No. 18-2576 41

that it could not locate copies of the proffer letters for two 

codefendants who testified against Weidenburner. Id. Neither witness disputed the existence of the proffer letters, and 

Weidenburner received copies of both witnesses’ plea 

agreements. Id. Consequently, we rejected Weidenburner’s 

claim of nondisclosure as frivolous. Id. Acknowledging that 

“Giglio requires disclosure of inducements for a witness[]’s 

testimony,” we reasoned that “the prosecutor fulfilled that 

obligation by producing the plea agreements, which describe[d] the benefits [the witnesses] would receive for cooperating.” Id. Because “[t]he proffer letters were preliminary 

to the resulting plea agreements,” we concluded that “Giglio

was satisfied by disclosure of the plea agreements.” Id. Further, we determined that “the Jencks Act [wa]s irrelevant” 

because “[t]he proffer letters were statements of the prosecutor who wrote them,” not “factual narrative[s] useful for impeachment.” Id. at 305 (internal quotation marks omitted).79

 

79 At least one of our sister circuits also has held that “the government 

satisfied its obligations” by disclosing a cooperating witness’s plea 

agreement to the defense. United States v. Santisteban, 501 F.3d 873, 880 

(8th Cir. 2007). In Santisteban, the defendant alleged that the Government’s non-disclosure of the proffer letters sent to a cooperating witness 

“violated his due process right to receive exculpatory or impeachment 

evidence.” Id. Because “the government had already provided [the witness]’s plea agreement,” the district court “declined to compel the production” of the proffer letters. Id. The Eighth Circuit held that there was 

no due process violation. Id. “Regardless of any preliminary proffer 

agreements,” the court reasoned, “the formal plea agreement governed 

[the witness]’s cooperation, and it provided the jury with a sufficient basis for judging the credibility of [his] testimony at trial.” Id. The court 

concluded that “[t]he terms of the proffer letters were not material to the 

defense.” Id.
42 No. 18-2576 

In this case, the Government disclosed the cooperating 

witnesses’ plea agreements, which superseded the proffer 

letters and outlined the terms of the witnesses’ cooperation. 

The agreements provided a sufficient basis for Mr. Hopper’s 

counsel to impeach the Government’s witnesses and for the 

jury to assess the credibility of those witnesses. Therefore, 

the district court did not abuse its discretion when it denied 

Mr. Hopper’s motion for disclosure of the proffer letters. 

C. 

Next, Mr. Hopper challenges the district court’s finding 

that he was subject to a two-level sentence enhancement 

based on evidence that he maintained his Creal Springs residence for the purpose of distributing methamphetamine. 

Mr. Hopper preserved this challenge by filing an objection to 

the application of the enhancement in the district court. 

Therefore, “we review the district court’s application of the 

U.S. Sentencing Guidelines de novo and its underlying factual 

findings for clear error.” United States v. Flores-Olague, 717 

F.3d 526, 530 (7th Cir. 2013). 

The guidelines provide for a two-level sentence enhancement “[i]f the defendant maintained a premises for the 

purpose of manufacturing or distributing a controlled substance.” U.S.S.G. § 2D1.1(b)(12). This includes “storage of a 

controlled substance for the purpose of distribution.” Id.

cmt. n.17. The application notes clarify that 

“[m]anufacturing or distributing a controlled substance need 

not be the sole purpose for which the premises was maintained, but must be one of the defendant’s primary or principal uses for the premises, rather than one of the defendant’s incidental or collateral uses for the premises.” Id. Because it is undisputed that Mr. Hopper “maintained” the 
No. 18-2576 43

Creal Springs house, which was his home, our review is limited to whether distributing methamphetamine was a “primary or principal” use of the home. 

“[T]o determine whether drug distribution was a primary or incidental use, the district courts are not required to 

apply a simple balancing test that compares the frequency of 

unlawful activity at the residence with the frequency of lawful uses.” United States v. Contreras, 874 F.3d 280, 284 (7th Cir. 

2017) (per curiam). That is because “such a test would immunize every family home that is also used for drug distribution from being deemed an illegally maintained ‘premises,’” since “the amount of lawful activity in a home is all but 

certain to exceed the amount of illegal activity.” Id. Instead, 

“the sentencing court should focus on both the frequency 

and significance of the illicit activities.” Id. “Neither a specific frequency nor a particular significance automatically warrants applying the enhancement.” United States v. Sanchez, 

710 F.3d 724, 731 (7th Cir. 2013), vacated on other grounds, 

Sanchez v. United States, 571 U.S. 801 (2013). “Rather, we consider the two in tandem and determine whether the prohibited purpose can be fairly described as a ‘primary or principal’ use of the premises.” Id. Factors relevant to this analysis 

include “quantities dealt, customer interactions, keeping 

‘tools of the trade’ and business records, and accepting payment.” Contreras, 874 F.3d at 284. 

First, with respect to frequency, Mr. Hopper contends 

that Wright’s “vague and inconsistent testimony” at the sentencing hearing “was not enough” to establish the frequent 

use of his home to distribute drugs.80 He further asserts that 

 

80 Appellant’s Br. 45. 
44 No. 18-2576 

“the district court failed to account for [his] affirmative decision to stop using his home for drug distribution several 

months before the end of the charged conspiracy.”81 We conclude that these contentions are without merit. 

Testimony introduced at Mr. Hopper’s trial and at the 

sentencing hearing highlighted that he distributed methamphetamine from his home on approximately a weekly basis 

for the duration of the conspiracy. Wright testified that she 

had lived with Mr. Hopper at his Creal Springs home from 

about October 2015 until May 2017. During this time, methamphetamine “was always there” and she saw drugs in the 

home “[p]retty much every day.”82 Wright estimated that, 

while she lived with him, Mr. Hopper distributed methamphetamine from his residence approximately “[w]eekly.”83

She added, however, that toward the end of their time living 

together, Mr. Hopper’s drug selling diminished and he was 

“just using.”84 

Similarly, Shuman testified that Mr. Hopper distributed 

methamphetamine to him while Shuman was living at the 

 

81 Id. 

82 R.125 at 8. 

83 Id. at 10. 

84 Id. at 24:8–15 (“Q. Ms. Wright, did you also add that most of the meth 

transactions that you were aware of occurred at Hopper’s brother’s 

house, Mark Hopper? A. I’ve never—I didn’t say that like that. That’s 

been taken out of context. I said that happened there, but everything was 

done in Creal in the very beginning, and then he slacked off, and towards the end of the relationship he was just using, he wasn’t selling 

it.”). 
No. 18-2576 45

Creal Springs home in December 2015 and January 2016. After Shuman returned from jail in early 2016, the two had an 

arrangement in which Mr. Hopper placed methamphetamine for Shuman in the garage. Shuman, who was no longer 

living with Mr. Hopper, retrieved the drugs from the garage 

and left the money he owed Mr. Hopper in their place. Multiple witnesses, including Craig, Holland, and Peyton, also 

testified that they observed Mr. Hopper sell methamphetamine to other individuals at his home. 

This evidence that Mr. Hopper stored drugs at his house 

and regularly distributed methamphetamine to customers 

there for the better part of 2016 confirms that he used the 

house for the purpose of drug distribution with sufficient 

frequency.85 That Mr. Hopper conducted distribution activities with less frequency toward the end of the conspiracy 

does not undermine this conclusion. 

Turning to the significance of the distribution activities, 

Mr. Hopper submits that “[t]he scope of drug activity at [his] 

 

85 See, e.g., United States v. Contreras, 874 F.3d 280, 284 (7th Cir. 2017) 

(concluding that “evidence of eight transactions, most within a 

two-month period, support[ed] the courts’ findings that significant deals 

were occurring frequently enough for the home to be deemed, in essence, a drug den for the purposes of § 2D1.1(b)(12)”); United States v. 

Winfield, 846 F.3d 241, 243 (7th Cir. 2017) (per curiam) (upholding application of enhancement based on evidence that “in the twelve weeks before the raid, [an] informant bought drugs from Winfield at his apartment four times and spotted additional drugs and drug paraphernalia 

during each transaction”); United States v. Flores-Olague, 717 F.3d 526, 533 

(7th Cir. 2013) (holding that enhancement applied based on evidence that 

the defendant “sold and stored drugs at his home” and “did so ‘on a daily basis’ over a three-year period”). 
46 No. 18-2576 

home was not significant enough to warrant the enhancement.”86 Again, the testimony adduced at trial and at sentencing amply demonstrated that Mr. Hopper carried on 

significant aspects of his distribution business from his 

home. 

We have already observed that there was substantial testimony that Mr. Hopper stored and distributed methamphetamine at his house.87 In this respect, Wright testified 

that Mr. Hopper had drug scales at the Creal Springs home, 

which he used “[t]o weigh out the product.”88 Further, we 

consider evidence of financial transactions in the home to be 

significant activity for the purpose of distributing drugs.89

Here, Williams testified that, when customers owed 

Mr. Hopper money, Williams occasionally brought these in-

 

86 Appellant’s Br. 47. 

87 See, e.g., Contreras, 874 F.3d at 284 (upholding application of enhancement based on “evidence that drugs were shipped to and stored at Contreras’s home” and that “Contreras accepted payment for drugs at his 

home”). We have also recognized that keeping “tools of the trade” on the 

premises may indicate “that drug trafficking was the principal use of the 

premises.” United States v. Thomas, 845 F.3d 824, 834 (7th Cir. 2017) (internal quotation marks omitted) (upholding application of enhancement 

where a “search of the home yielded a digital scale, a cutting agent, and 

plastic sandwich baggies with the corners cut out”). 

88 R.125 at 9. 

89 See United States v. Sanchez, 710 F.3d 724, 732 (7th Cir. 2013), vacated on 

other grounds, Sanchez v. United States, 571 U.S. 801 (2013) (noting that “in 

conducting this large drug trade, Sanchez used his residence not only for 

the drop-off, storage, and pick-up of drugs, but also as a secure place to 

settle the financials”), vacated on other grounds, Sanchez v. United States, 

571 U.S. 801 (2013) . 
No. 18-2576 47

dividuals to the house to settle their debt with Mr. Hopper. 

Wright also acknowledged that Mr. Hopper collected money 

from individuals who bought methamphetamine at his 

home. Finally, testimony that the defendant’s “only regular 

and reliable source of income stemmed from proceeds of 

drug trafficking activities” is evidence that the distribution 

of drugs from his home was significant to his livelihood.90

For this reason, it is meaningful that Wright testified that 

Mr. Hopper had received money from a settlement and had 

a “side business” buying and selling cars, but that he did not 

“officially work.”91 

In sum, we conclude that there was evidence of frequent, 

significant drug distribution activities at Mr. Hopper’s 

home. Therefore, the district court properly determined that 

Mr. Hopper was subject to the sentence enhancement for 

maintaining a drug premises. 

D. 

Finally, we turn to Mr. Hopper’s claim that the district 

court erred in determining his guidelines range because it 

adopted an incorrectly calculated relevant conduct finding 

from the PSR. He contends that most of the relevant conduct 

was based on drug amounts identified in interviews the 

 

90 Flores-Olague, 717 F.3d at 533; see also Winfield, 846 F.3d at 243 (noting 

that “Winfield at the time of his arrest was ‘primarily living off proceeds 

from drug sales’”); Sanchez, 710 F.3d at 732 (reasoning that because 

“Sanchez had no legitimate job and no source of income beyond his drug 

sales,” “the illicit transactions occurring at the premises were significant—in quantity, in scope, and in importance to Sanchez’s livelihood”). 

91 R.125 at 32. 
48 No. 18-2576 

probation office conducted with Holland and Riley. According to Mr. Hopper, in their separate interviews, Holland and 

Riley were actually referring to the same transactions. Thus, 

by including the drug amounts described in both Holland 

and Riley’s interviews in the calculation of Mr. Hopper’s relevant conduct, the district court double-counted the same set 

of drugs. 

Mr. Hopper did not challenge the relevant conduct calculation in his objection to the initial PSR, his objection to the 

second revised PSR, or at the sentencing hearing. Therefore, 

we review his claim for plain error only. Fed. R. Crim. P. 

52(b) (“A plain error that affects substantial rights may be 

considered even though it was not brought to the [district] 

court’s attention.”). We have discretion to remedy the forfeited error provided that Mr. Hopper has satisfied the following conditions: (1) there is an error “that has not been intentionally relinquished or abandoned”; (2) the error is 

“plain—that is to say, clear or obvious”; (3) the error “affected the defendant’s substantial rights”; and (4) the error “seriously affects the fairness, integrity or public reputation of 

judicial proceedings.” Molina-Martinez v. United States, 136 

S. Ct. 1338, 1343 (2016) (quoting United States v. Olano, 507 

U.S. 725, 736 (1993), superseded on other grounds by rule, Fed. 

R. Crim. P. 24(c) (1999)); see also United States v. Pierson, 925 

F.3d 913, 919 (7th Cir. 2019). 

The Supreme Court’s recent jurisprudence has clarified 

the application of the third and fourth prongs in the context 

of sentencing errors. To demonstrate that the error affected 

his substantial rights, “in the ordinary case,” the defendant 

must “show a reasonable probability that, but for the error, 

the outcome of the proceeding would have been different.” 
No. 18-2576 49

Molina-Martinez, 136 S. Ct. at 1343 (internal quotation marks 

omitted). According to the Court, “[w]hen a defendant is 

sentenced under an incorrect Guidelines range—whether or 

not the defendant’s ultimate sentence falls within the correct 

range—the error itself can, and most often will, be sufficient 

to show a reasonable probability of a different outcome absent the error.” Id. at 1345. “That probability is all that is 

needed to establish an effect on substantial rights for purposes of obtaining relief under Rule 52(b).” Id. at 1349. Further, “[i]n the ordinary case, ... the failure to correct a plain 

Guidelines error that affects a defendant’s substantial rights 

will seriously affect the fairness, integrity, and public reputation of judicial proceedings.” Rosales-Mireles v. United States, 

138 S. Ct. 1897, 1911 (2018). In other words, “[a] plain Guidelines error that affects a defendant’s substantial rights is precisely the type of error that ordinarily warrants relief under 

Rule 52(b).” Id. at 1907. 

To calculate Mr. Hopper’s relevant conduct, the PSR totaled the drug amounts described in four separate interviews with other participants in the conspiracy.92 In particular: 

On August 24, 2016, Lucas Holland participated in an interview with investigating agents. 

Holland divulged that he received four ounces 

of ice every day for a month from Randall Riley; of the four ounces, he would give the de-

 

92 Though the probation office revised Mr. Hopper’s PSR twice before 

sentencing, the relevant conduct calculations did not change. For purposes of this discussion, we reference the most recent version of the report, the second revised PSR. 
50 No. 18-2576 

fendant one ounce on each occasion. (30 ounces = 850 grams)[93]

On February 14, 2017, Randall Riley was interviewed by investigating agents. Riley stated 

that from January through March, he sold one 

ounce of ice every day to the defendant for 

$1,100. (28 days [February] x 28.35 grams = 793 

grams)[94]

On May 4, 2017, Erin Wright participated in an 

interview with agents. ... Wright stated she 

traveled with Hopper on ten occasions to pick 

up ice from Gary Mims in Cape Girardeau. She 

stated on average, they would obtain an ounce 

of ice per visit (10 ounces or 283.5 grams of 

ice).[95]

On July 19, 2017, Erin Wright was interview[ed] by investigating agents. According to 

Wright, the defendant purchased ice from 

Robert Weir from October or November 2015 

until Weir was arrested in March 2016. Wright 

estimated that the defendant would purchase 

3.5 grams to 28 grams per week, conservatively. (12 weeks [December—February] x 3.5 

grams = 42 grams)[96]

 

93 R.94 ¶ 12. 

94 Id. ¶ 14. 

95 Id. ¶ 19. 

96 Id. ¶ 20. 
No. 18-2576 51

The PSR explained that Mr. Hopper’s “relevant conduct is 

outlined in bold above and involves the amounts obtained 

by the defendant, which he then distributed to others.”97

Further, the PSR noted that “[t]he amount of ice that the defendant distributed was not counted to avoid double counting.”98 As demonstrated by the following chart, adding the 

drug amounts described above, the PSR totaled Mr. Hopper’s relevant conduct to be 1.9685 kilograms of ice methamphetamine. 

Interviewee Drug Amount 

Holland 850 grams 

Riley 793 grams 

Wright 283.5 grams 

Wright 42 grams 

Total 1,968.5 grams 

(1.9685 kilograms) 

We agree with Mr. Hopper that the district court plainly 

erred in adopting the PSR’s relevant conduct calculation. 

First, we conclude that Mr. Hopper did not “intentionally 

relinquish[] or abandon[]” this challenge. Molina-Martinez, 

136 S. Ct. at 1343. Neither party objected to the relevant conduct calculation prior to or during the sentencing hearing. 

At sentencing, the district court adopted the findings of the 

PSR, including the relevant conduct calculation, without fur-

 

97 Id. ¶ 21. 

98 Id. 
52 No. 18-2576 

ther comment. “Given the complexity” of calculating a defendant’s guidelines range, “district courts sometimes make 

mistakes.” Rosales-Mireles, 138 S. Ct. at 1904. Accordingly, 

“when a district court’s sentencing of a defendant within the 

framework of an incorrect Guidelines range goes unnoticed 

by the parties as well,” a defendant is “not entirely without 

recourse.” Id. (internal quotation marks omitted). 

Second, the error here was plain. At trial, Holland, Riley, 

and Weir all testified that, together with Mr. Hopper, they 

pooled their money over approximately a month-long period sometime between late 2015 and early 2016 to purchase 

methamphetamine from a source in Cape Girardeau, Missouri. Mr. Hopper, Weir, or both brought the money to Riley’s home, where Holland also lived. Holland and Riley 

drove to Missouri to obtain the drugs. When they returned, 

the group met at either Riley’s home or Mr. Hopper’s home 

to divide up the drugs. Holland, Riley, and Weir all described how the group pooled their money to purchase four 

ounces of methamphetamine at a time, which they divided 

into equal, one-ounce shares. 

In context of the testimony presented at trial, it is clear 

that Holland and Riley were describing the same pooling 

arrangement during their separate interviews with the probation office. The amounts attributed to Holland and Riley 

in the PSR differ only because Riley’s more specific statements prompted the Government to use a 28-day month instead of a 30-day month to calculate the total amount of 

methamphetamine described. Regardless, the trial testimony 

consistently showed that Mr. Hopper, Holland, Riley, and 

Weir participated in a pooling arrangement and that following each purchase, each member of the group obtained one 
No. 18-2576 53

ounce of methamphetamine. Because Holland and Riley 

were describing the same set of transactions, it was plainly 

erroneous to include the drug amounts described in both interviews in calculating Mr. Hopper’s relevant conduct. 

Third, we hold that this plain error affected Mr. Hopper’s 

substantial rights because it increased his base offense level 

and his corresponding guidelines imprisonment range. Molina-Martinez, 136 S. Ct. at 1346 (“In most cases a defendant 

who has shown that the district court mistakenly deemed 

applicable an incorrect, higher Guidelines range has demonstrated a reasonable probability of a different outcome.”). At 

sentencing, the district court adopted the PSR’s relevant 

conduct calculation of 1.968 grams of ice methamphetamine, 

which resulted in a base offense level of 36. Applying the 

two-level enhancement for maintaining a residence for the 

purpose of distributing methamphetamine, the court calculated a total offense level of 38. With a criminal history category of I, the corresponding guidelines imprisonment range 

was 235 to 293 months. The court sentenced Mr. Hopper to 

235 months’ imprisonment, which is “conspicuous for its position as the lowest sentence within what the [d]istrict 

[c]ourt believed to be the applicable range.” Id. at 1347. 

If we count the drugs described by Holland and Riley only once, Mr. Hopper’s base offense level falls to 34. Assuming for purposes of this calculation that the relevant month 

was 30 days and, consistent with the testimony at trial, that 

Mr. Hopper received one ounce of methamphetamine ice per 

transaction, the resulting drug quantity is 850 grams. Adding these 850 grams to the drug amounts described by 

Wright, the total quantity is only 1,175.5 grams, or 1.1755 

kilograms, as shown in the following chart: 
54 No. 18-2576 

Interviewee Drug Amount 

Holland/Riley 850 grams 

Wright 283.5 grams 

Wright 42 grams 

Total 1,175.5 grams 

(1.1755 kilograms) 

This amount is significantly below the 1.5-kilogram 

threshold that would trigger a base offense level of 36. See

U.S.S.G. § 2D1.1(c)(2). At a base offense level of 34, applying 

the two-level drug premises enhancement, Mr. Hopper’s total offense level would be 36. With a criminal history category of I, the corresponding guidelines imprisonment range 

would be 188 to 235 months. At sentencing, the district court 

“said nothing to suggest that it would have imposed” a sentence of 235 months “regardless of the Guidelines range.” 

Molina-Martinez, 136 S. Ct. at 1348. Consequently, “there is at 

least a reasonable probability that the [d]istrict [c]ourt would 

have imposed a different sentence had it known that” a lower sentence was appropriate. Id.; United States v. Adams, 746 

F.3d 734, 743 (7th Cir. 2014) (“When a district court incorrectly calculates the guideline range, we normally presume 

the improperly calculated guideline range influenced the 

judge’s choice of sentence, unless he says otherwise.”). 

Fourth, we conclude that Mr. Hopper satisfied the last 

prong of the plain-error analysis. “The risk of unnecessary 

deprivation of liberty particularly undermines the fairness, 

integrity, or public reputation of judicial proceedings in the 

context of a plain Guidelines error because of the role the 

district court plays in calculating the range and the relative 
No. 18-2576 55

ease of correcting the error.” Rosales-Mireles, 138 S. Ct. at 

1908. This conclusion is especially forceful where, as here, 

the error “was based on a mistake made in the presentence 

investigation report by the Probation Office, which works on 

behalf of the [d]istrict [c]ourt.” Id. Therefore, we conclude 

that resentencing based on recalculation of Mr. Hopper’s 

relevant conduct is required.99

The Government insists that any error in calculating 

Mr. Hopper’s relevant conduct was harmless because the 

district court actually “severely undercounted” the amount 

of drugs attributable to Mr. Hopper.100 According to the 

Government, the district court should have attributed to 

Mr. Hopper the entire amount purchased by Mr. Hopper, 

Holland, Riley, and Weir each time they pooled their money 

together because “[t]he entire four ounces was foreseeable 

relevant conduct” to Mr. Hopper.101 The Government concedes that it failed to challenge the relevant conduct calcula-

 

99 See, e.g., United States v. Garrett, 528 F.3d 525, 530 (7th Cir. 2008) (holding that plain error in calculating the defendant’s criminal history points, 

which resulted in a higher guidelines range, required resentencing because we had “no reason to believe” that the district court’s error “did 

not affect its selection of the particular sentence”). 

100 Appellee’s Br. 49. 

101 Id. at 50; see U.S.S.G. § 1B1.3(a)(1)(B) (providing that, “in the case of a 

jointly undertaken criminal activity,” a defendant’s base offense level 

shall be determined based on “all acts and omissions of others” that were 

“(i) within the scope” of the conspiracy; “(ii) in furtherance of” the conspiracy; and “(iii) reasonably foreseeable in connection with” the conspiracy). 
56 No. 18-2576 

tion before the district court but explains that “it most likely 

would not have affected the advisory guideline range.”102

We have recognized that “an appellate court can affirm 

the determination of a sentencing range ‘on any ground 

supported by the record even if that ground was not relied 

upon by the district court.’” United States v. Benitez, 92 F.3d 

528, 538 (7th Cir. 1996) (quoting United States v. Rivera, 6 F.3d 

431, 447 (7th Cir. 1993)). But the Government has not offered, 

nor have we located, any authority to suggest that we can 

rely on a relevant conduct calculation not presented to the 

district court to affirm a defendant’s sentence. Indeed, our 

decision in United States v. Henderson, 58 F.3d 1145 (7th Cir. 

1995), suggests quite the opposite. 

In that case, a jury found Henderson guilty of conspiracy 

to distribute cocaine base and distributing cocaine base. Id.

at 1147. At sentencing, the district court attributed to Henderson the 18 grams of cocaine he was convicted of selling. 

Id. at 1151. The court also attributed ten percent of the 

amounts of cocaine described by Henderson’s 

co-conspirator. Id. The court explained that it did not accept 

the full amount claimed by his co-conspirator because of 

“the ‘vagueness and generalized’ nature” of the coconspirator’s testimony “and the lack of money to support 

his contentions that he sold such large amounts of drugs.” 

Id. Henderson challenged the amount of drugs the district 

court attributed to him, arguing that “by accepting only 10% 

of [the co-conspirator’s] testimony, the court did not simply 

act conservatively, but instead indicated its belief that [the 

 

102 Appellee’s Br. 50 n.6. 
No. 18-2576 57

co-conspirator’s] information was not sufficiently reliable to 

support any amounts above the 18 grams.” Id. We agreed 

that the court clearly erred because it “did not have sufficient faith” in the co-conspirator’s testimony “to use it as the 

basis for attributing further amounts to Henderson.” Id. at 

1152. 

The Government submitted, however, that remand was 

not required because other calculations would result in drug 

amounts within the range applied by the district court. Id.

For instance, the Government contended that we could calculate the drug quantity by multiplying the number of used 

plastic baggies by the amount of cocaine typically packaged 

in each baggie. Id. at 1153. Although we were “fairly certain 

that this calculation ... would adequately sustain the court’s 

determination,” we declined to “embrace it ourselves.” Id.

We explained that “[t]he government first presented this calculation on appeal,” such that “the district court, which has 

sentencing responsibility, [] had no opportunity to consider 

it.” Id. The Government also proposed that we could determine the drug quantity based on the amount of money 

seized from Henderson and from a drug location on the day 

of his arrest. Id. We declined this suggestion, reasoning that 

“while the government introduced this evidence at trial, it 

did not present the calculations at sentencing.” Id. Consequently, we left “the initial consideration of these sentencing 

issues to the district court on remand.” Id.

For the same reasons, we decline to affirm Mr. Hopper’s 

sentence based on relevant conduct calculations that the 

Government presented for the first time on appeal. Because 

neither party challenged the relevant conduct calculations 

below, “the district court, which has sentencing responsibil-
58 No. 18-2576 

ity,” id., had no opportunity to consider any arguments regarding the proper calculation of Mr. Hopper’s relevant 

conduct. The parties must present their drug quantity calculations to the district court to consider in the first instance on 

remand. 

Conclusion 

For the foregoing reasons, we affirm Mr. Hopper’s conviction for conspiracy to distribute methamphetamine and 

affirm the district court’s determination that he was subject 

to a sentence enhancement for maintaining a residence for 

the purpose of distributing methamphetamine. We vacate 

his sentence and remand his case to the district court for resentencing based on our conclusion that there was plain error in the calculation of Mr. Hopper’s relevant conduct. 

 AFFIRMED IN PART, 

VACATED AND REMANDED IN PART