# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued April 25, 2018

Decided July 18, 2018

Before

DANIEL A. MANION, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

AMY C. BARRETT, Circuit Judge

No. 17

‐ 2440

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v

.

ANTHONY LOMAX, a.k.a. ANT,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Southern District of Indiana,

Indianapolis Division.

No. 1:12

‐ CR

‐ 00189

‐ 3

Sarah Evans Barker,

J udge

.

O R D E R

Anthony Lomax appeals his sentence for a gun crime and distributing heroin. He

challenges the district court’s conclusions that he is responsible for the total heroin

quantity attributed to a joint drug operation with his two cousins, and that his prior

conviction for attempted murder in Indiana is a “crime of violence” under the

career

‐ offender guideline. We affirm. The judge’s drug

‐ quantity finding is supported by

evidence that Anthony coordinated activities, shared resources, and pooled profits with

his two cousins, who were convicted of conspiring to possess and sell heroin. And

Anthony’s crime

‐ of

‐ violence argument is foreclosed by our recent decisions. NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 17

‐ 2440 Page 2

Background

Anthony and his cousins, Brandon Lomax and Demond Glover, sold heroin in

Indianapolis, often at “Spray ‘Em Auto,” a business Brandon owned. Authorities

investigated them beginning in early 2011 until late 2012, when their drug operations

ceased. Anthony bought heroin from Brandon, and from Glover at least once, and sold

it to his own customers. Brandon and Glover also sold heroin, which they each obtained

from their own single sources; each purchased about 100 to 300 grams about every two

weeks, sometimes more frequently, for a total of 16.8 kilograms.

Anthony, while armed, chauffeured Brandon to heroin sales “multiple” times.

He also agreed to “come through” for Brandon on short notice by repaying Brandon

money he needed for a drug transaction. At least once Anthony sold heroin he obtained

from Glover’s car. One time Brandon was without heroin and referred a customer to

Anthony, who made the sale. Another time, though, Anthony tried to convince one of

Brandon’s customers to buy heroin from him instead of Brandon. When a supplier came

to Spray ‘Em Auto and told Anthony that Brandon owed him for two kilograms of

heroin, Anthony immediately relayed the message to Brandon.

Anthony sold a total of a kilogram of heroin to one customer who purchased up

to ten grams from him as often as three times a week during 2012. To a confidential

informant, Anthony sold about 63 grams of heroin in five controlled buys between

September and November 2012.

A grand jury indicted Anthony, Brandon, and Glover for conspiring to possess

and distribute heroin. 21 U.S.C. § 846. Anthony also was indicted on five counts of

distributing heroin, 21 U.S.C. § 841(a)(1), and one count of possessing a firearm as a

felon, 18 U.S.C. § 922(g)(1). The co

‐ defendants were convicted on all counts after a jury

trial, and Anthony was sentenced to 400 months in prison. All three appealed.

This court vacated Anthony’s conspiracy conviction because he was wrongly

denied a buyer

‐ seller jury instruction. United States v. Lomax

, 816 F.3d 468, 477 (7th Cir.

2016). Although there was “some evidence that Anthony was part of the conspiracy,”

there was also evidence that he simply bought heroin from the conspirators. Id. at 476–

77. This court affirmed the conspiracy convictions of Brandon and Glover. Id. at 479.

On remand the government moved to dismiss the conspiracy charge and to

resentence Anthony on the distribution and gun convictions. Anthony agreed to

dismissal, and the charge was dismissed.No. 17

‐ 2440 Page 3

A probation officer revised Anthony’s presentence report, but nonetheless

recommended finding him responsible for the total heroin attributed to the

conspiracy—16.8 kilograms. The officer also recommended application of the

career

‐ offender guideline, U.S.S.G. § 4B1.1, based on Anthony’s prior felony convictions

that included attempted murder in Indiana, though application of this guideline did not

affect his guidelines range of 360 months to life in prison. Anthony objected to the PSR,

arguing there was insufficient evidence that his drug dealing was part of a common

scheme with the convicted co

‐ conspirators or that the conspiracy’s total drug quantity

was reasonably foreseeable to him.

At resentencing the district judge adopted the revised presentence report and

re

‐ imposed a term of 400 months. The judge found that 16.8 kilograms was an accurate

estimate of the total quantity of heroin distributed by the conspiracy and, if anything, it

understated the amount. The judge further found that this quantity was attributable to

Anthony as relevant conduct under U.S.S.G. § 1B1.3; “from the evidence as a whole,”

the judge concluded that Anthony was a part of Brandon’s “jointly undertaken criminal

activity,” and that the total quantity of heroin trafficked by the joint operation was

reasonably foreseeable to Anthony. The judge incorporated her analysis from the

original sentencing, at which she said Anthony was responsible for 16.8 kilograms of

heroin based on the “interactions between and among” Anthony, Brandon, and Glover.

The judge also found that Indiana attempted murder is a crime of violence for purposes

of the career

‐ offender guideline.

Analysis

A. Relevant

‐ Conduct Finding

Anthony first contests the district judge’s conclusion that he is accountable for

the quantity of heroin attributed to the conspiracy. Uncharged offenses are relevant

conduct if they are part of the same “common scheme or plan” as the offense of

conviction. U.S.S.G. § 1B1.3(a)(2); United States v. Zehm

, 217 F.3d 506, 511 (7th Cir. 2000).

“Offenses are part of a common scheme or plan if they are connected by at least one

common factor,” such as common accomplices, a shared purpose, or a similar modus

operandi. Zehm

, 217 F.3d at 511. In drug distribution cases, the defendant’s relevant

conduct will include drug quantities from transactions carried out by others, if those

transactions were within the scope, and in furtherance, of criminal activity that the

defendant agreed to jointly undertake, and the transactions were reasonably foreseeable

to the defendant. See U.S.S.G. § 1B1.3(a)(1)(B); United States v. Stadfeld

, 689 F.3d 705, 713

(7th Cir. 2012). The district judge’s factual findings in determining the defendant’sNo. 17

‐ 2440 Page 4

relevant conduct are reviewed for clear error. United States v. Patterson

, 872 F.3d 426, 437

(7th Cir. 2017); United States v. Seymour

, 519 F.3d 700, 710–11 (7th Cir. 2008).

Anthony argues that the district judge clearly erred in concluding that his heroin

distributions were part of Brandon and Glover’s criminal scheme, U.S.S.G. § 1B1.3(a)(2),

and that the total quantity of heroin attributed to this scheme was reasonably

foreseeable to him, id. § 1B1.3(a)(1)(B)(iii). He does not contest the accuracy of

16.8 kilograms as the total heroin weight attributable to Brandon and Glover’s

conspiracy. Anthony concedes there is “evidence in support of” the district judge’s

relevant

‐ conduct finding, but argues there is also “substantial evidence” that his

distributions were not part of a common scheme.

His concession that some evidence supports the district court’s relevant

‐ conduct

finding dooms his argument that his offense was separate from the conspiracy. “If two

permissible views exist, the fact

‐ finder’s choice between them cannot be clearly

erroneous.” Stadfeld

, 689 F.3d at 713 (quotations and internal alterations omitted). In

Anthony’s first appeal, this court pointed to evidence that he was part of the conspiracy.

See Lomax

, 816 F.3d at 476 (Anthony sold heroin at Spray ‘Em Auto, like Brandon and

Glover; received customer from Brandon; and acted as Brandon’s armed chauffer for

heroin deals)

. Nonetheless, a finding of fact may be clearly erroneous, even though it is

supported by evidence, if this court “is left with the definite and firm conviction that a

mistake has been committed.” United States v. Ortiz

, 431 F.3d 1035, 1040 (7th Cir. 2005).

However, none of Anthony’s arguments reveals a mistake by the district judge.

We are unpersuaded by Anthony’s argument that the judge was required to

explain how his offense conduct—five heroin distributions—was related to the

conspiracy in timing, regularity, and modus operandi. Anthony likens his case to Ortiz

, where we said a district judge’s “terse” relevant

‐ conduct finding was clearly erroneous

because the judge failed to address differences between the relevant conduct and

offense conduct in temporal proximity, regularity, and modus operandi, 431 F.3d

at 1041–43. But Ortiz is distinguishable because, there, the offense of conviction

involved a drug different from that in the conspiracy, occurred in one location while the

conspiracy spanned several states, and happened after the conspiracy “was exposed.”

Id. at 1041–42

. Here, on the other hand, Anthony was convicted of distributing the only

drug known to be involved in this conspiracy (heroin), in the same location used as the

conspiracy’s headquarters (a conspirator’s auto

‐ body shop), and only at times while the

conspiracy still operated (late

‐ 2012).No. 17

‐ 2440 Page 5

Anthony makes three unpersuasive arguments that his heroin distributions were

not part of his cousins’ scheme. He points out the occasion when he tried to steal

Brandon’s customer and contends that he must have had his own scheme. But taking

resources from each other allows co

‐ conspirators to gain personally, without

eliminating the possibility of a joint venture. Cf. United States v. Adams

, 746 F.3d 734, 741

(7th Cir. 2014) (deciding that drug dealers who competed for commissions could be

found to have sold drugs in furtherance of shared enterprise). Anthony argues that he

must not have been involved in his cousins’ scheme because he personally distributed

much less heroin than they. Selling disparities among dealers, however, is consistent

with those dealers operating within one scheme. See United States v. Miller

, 834 F.3d 737,

742 (7th Cir. 2016). Lastly, Anthony contends that Brandon and Glover were merely his

suppliers because he generally had his own customers. But we rejected this argument in

United States v. Melendez

, 819 F.3d 1006 (7th Cir. 2016), where we clarified that even if a

defendant’s distributions are part of a “separate business,” the defendant is accountable

for all reasonably foreseeable drug transactions made in furtherance of the jointly

undertaken criminal activity. Id. at 1011–12.

At bottom, the district judge’s finding of jointly undertaken criminal activity is

well

‐ supported. Joint criminal activity may be shown where dealers share customers,

swap selling duties, and travel together to sell drugs. See Miller

, 834 F.3d at 742. Here,

Anthony sold heroin to a customer at Brandon’s request and acted as his armed

chauffer for drug deals. Anthony also quickly repaid Brandon a debt, not just to clear

his own books, but specifically so that Brandon could complete a sale. Cf. United States

v. Fouse

, 578 F.3d 643, 654 (7th Cir. 2009) (determining that joint drug enterprise could

be found where defendant sold drugs on credit knowing buyers needed them to be of

sufficient quality for cutting and resale). And Anthony sold heroin from Spray ‘Em

Auto, the drug operation’s home base, owned by Brandon.

Anthony next argues that the judge adopted the drug

‐ quantity recommendation

in the presentence report, 16.8 kilograms, without explaining why this amount ascribed

to the conspiracy was reasonably foreseeable to him. See U.S.S.G. § 1B1.3(a)(1)(B)(iii).

Anthony says the only evidence that he was aware of any amount distributed by

Brandon or Glover is his conversation about Brandon’s two

‐ kilogram heroin debt.

But reasonable foreseeability “does not require that a coconspirator be aware of

the precise quantity involved in each of an ongoing series of illegal transactions.”

United States v. Longstreet

, 567 F.3d 911, 924 (7th Cir. 2009). The essential factor in

deciding whether the total drug quantities were reasonably foreseeable to the defendantNo. 17

‐ 2440 Page 6

is the degree of his or her participation in the joint undertaking. See United States v.

Goodwin

, 496 F.3d 636, 642–43 (7th Cir. 2007); United States v. Edwards

, 945 F.2d 1387,

1393–94 (7th Cir. 1991). Anthony needed a “substantial degree of commitment” before

the entire amount attributed to the joint undertaking can be found reasonably

foreseeable to him. See United States v. Magana

, 118 F.3d 1173, 1206 (7th Cir. 1997);

Edwards

, 945 F.2d at 1393–94.

The judge fulfilled her obligation to “explicitly state and support” her finding

that the entire amount of drugs distributed by the joint scheme was reasonably

foreseeable to Anthony. See Zehm

, 217 F.3d at 511. At resentencing the judge

incorporated her determination from the first sentencing hearing that 16.8 kilograms

was reasonably foreseeable to Anthony based on the “interactions between and among”

him, Brandon, and Glover. At that first hearing, she credited testimony that Anthony

shared resources by selling drugs from Brandon’s business and Glover’s car, pooled

profits with Brandon by repaying a debt so he could complete a heroin sale, and had

coordinated with Brandon by acting as his armed chauffer. This is exactly the degree of

involvement that Application Note 4(C)(vi) to § 1B1.3 describes as sufficient to hold a

drug dealer accountable for the drug quantity attributed to other dealers. If, as here, the

judge has found that the required relationship was present and the record supports this

relevant

‐ conduct finding, this court will not remand for a more detailed finding.

See United States v. Singleton

, 548 F.3d 589, 593 (7th Cir. 2008).

Lastly, Anthony argues that the agreed dismissal of the conspiracy charge

prevented a jury from “acquit[ting] him of the charge,” thereby “prov[ing]” that the

drug quantity attributed to the conspiracy was unforeseeable to him. This argument is

meritless. Relevant conduct includes “all reasonably foreseeable acts and omissions of

others in furtherance of the jointly undertaken criminal activity, whether or not charged

as a conspiracy.” United States v. Acosta

, 534 F.3d 574, 582–83 (7th Cir. 2008) (quotation

and citation omitted); see also U.S.S.G. § 1B1.3 cmt. n.1, cmt. n.3(B). Neither acquittal on

a conspiracy charge, nor a jury’s drug

‐ quantity finding, precludes a sentencing judge

from finding, by the lower, preponderance

‐ of

‐ the

‐ evidence standard, that the

defendant’s offense conduct was part of a joint drug scheme that dealt quantities

reasonably foreseeable to the defendant. See United States v. Austin

, 806 F.3d 425, 433

(7th Cir. 2015); Goodwin

, 496 F.3d at 643. And although there was no retrial, a defendant,

like Anthony, has a “meaningful opportunity” to rebut evidence of his involvement in

an uncharged drug conspiracy if, at sentencing, he is given the chance to testify,

cross

‐ examine the government’s witnesses, and call his own. See Miller

, 834 F.3d

at 743–44. Anthony declined these opportunities.No. 17

‐ 2440 Page 7

In sum, the district judge did not clearly err by holding Anthony accountable for

the quantity of heroin attributed to the uncharged conspiracy.

B. Career

‐ Offender Guideline

Anthony contends that his Indiana attempted murder conviction is not a “crime

of violence” under the career

‐ offender guideline because this conviction does not

require the use, attempt, or threat of physical force. After briefing, we decided Michael

Hill v. United States

, 877 F.3d 717 (7th Cir. 2017), which holds that Illinois attempted

murder is a violent felony under the Armed Career Criminal Act, 18 U.S.C.

§ 924(e)(2)(B), because an attempt to commit a violent felony is itself a violent felony,

877 F.3d at 719. Since the ACCA’s definition of violent felony applies interchangeably

with the Guidelines’ definition of crime of violence, see United States v. Edwards

, 836 F.3d

831, 834 n.2 (7th Cir. 2016); United States v. Taylor

, 630 F.3d 629, 633 n.2 (7th Cir. 2010),

we ordered the parties to brief the effect of Michael Hill in this appeal.

Anthony argues against applying Michael Hill here because, he says, attempted

murder in Illinois “involve[s] the use of force,” whereas attempted murder in Indiana

does not. Contrary to Anthony’s belief, Illinois attempted murder does not categorically

require actual use or threats of physical force; intent to commit violence is enough.

Michael Hill

, 877 F.3d at 718. So, for example, purchasing a weapon to be used to kill

someone or planning an assassination suffices. Id. We said in Hill that “[w]hen the

intent element of the attempt offense includes intent to commit violence against the

person of another,

... it makes sense to say that the attempt crime itself includes

violence as an element.” Id. at 719 (citing Morris v. United States

, 827 F.3d 696, 698–99

(7th Cir. 2016) (Hamilton, J., concurring)). After all, the ACCA does not itself require the

actual use of force; an attempted use also satisfies § 924(e)(2)(B)(i). Michael Hill

, 877 F.3d

at 719. The reasoning of Michael Hill applies equally here because the career

‐ offender

guideline’s definition of crime of violence, like § 924(e)(2)(B)’s definition of violent

felony, treats attempted force and completed force the same, U.S.S.G § 4B1.2(a)(1).

We also conclude that Anthony’s Indiana attempted

‐ murder conviction is a

crime of violence under the reasoning of Antoine Hill v. United States

, 827 F.3d 560

(7th Cir. 2016). There we held that Illinois attempted murder is a crime of violence

under the career

‐ offender guideline because U.S.S.G. § 4B1.2(a)(1) says that a “‘crime of

violence’ include[s] the offenses of aiding and abetting, conspiring, and attempting to

commit such’ crimes.” Id. at 561. The guideline at issue here and in Antoine Hill is the

same, and there is no meaningful distinction, for our purposes, between the IllinoisNo. 17

‐ 2440 Page 8

statutes that punish attempt and murder, see 720 ILCS §§ 5/8

‐ 4(a), 5/9

‐ 1(a)(1), and the

corresponding statutes in Indiana, see Ind. Code §§ 35

‐ 41

‐ 5

‐ 1(a), 35

‐ 42

‐ 1

‐ 1(1).

The judgment of the district court is

AFFIRMED.