In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2262

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MELVIN TAYLOR,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, Fort Wayne Division.

No. 06 CR 00023—Theresa L. Springmann, Judge.

ARGUED JANUARY 12, 2010—DECIDED APRIL 8, 2010

Before POSNER, FLAUM and WILLIAMS, Circuit Judges.

FLAUM, Circuit Judge. On May 24, 2006, defendantappellant, Melvin Taylor, was indicted, along with

Marlyn Barnes, Michael Alexander, Theodis Armstead,

Herbert Hightower, and Vernell Brown, for conspiracy

to possess with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 846. Taylor

was also indicted for carrying a firearm during and

in relation to a drug trafficking crime, in violation of
2 No. 09-2262

18 U.S.C. § 924(c). After proceeding to trial on April 15,

2008, a jury found Taylor guilty of both counts. Several

months later, Taylor filed a motion for a new trial based

on newly discovered evidence. The district court denied

the motion. At Taylor’s sentencing hearing, the district

court found that the conspiracy involved forty kilograms of cocaine, which resulted in a sentence of 188

months on the conspiracy count. Taylor appeals his

conviction, the district court’s denial of his motion for

a new trial, and his sentence. For the reasons set forth

below, we affirm Taylor’s conviction and the district

court’s denial of a new trial. However, because of an

error in the district court’s determination of the amount

of cocaine attributable to the conspiracy, we vacate

the sentence and remand for re-sentencing.

I. Background

A. Facts of the Underlying Conspiracy

This conspiracy involved a fake shipment of drugs

traveling from Texas to Fort Wayne, Indiana. Barnes, the

mastermind of the conspiracy and the person who recruited Taylor, first learned of the fake shipment from

Kurt Hunter. Hunter and Barnes had been providing

each other with drugs on a regular basis for several

months prior to April of 2006. However, Barnes was

unaware that Hunter was working as a confidential

informant for the government. On April 17, 2006, Hunter

and Barnes met to develop a plan to steal a local dealer’s

stash of drugs. At that meeting, Hunter mentioned the

fictional shipment of drugs that became the core of this
No. 09-2262 3

conspiracy. Barnes became interested in stealing this

fictional shipment rather than going forward with

the original plan. On April 23, 2006, Hunter introduced

Barnes and Alexander, Barnes’s brother, to Agent Wayne

Lessner, the undercover agent working with Hunter.

Barnes and Alexander believed that Hunter and Agent

Lessner were couriers for the drug shipment from

Texas. Barnes met with Hunter and Agent Lessner once

more that month to discuss the logistics of the heist.

Agent Lessner recorded both meetings. During the first

meeting with Agent Lessner, Barnes indicated that he

had recruited several people to participate in the heist.

Barnes told Hunter and Agent Lessner that one of the

people he had recruited was a friend named MacMel.

Several witnesses at trial testified that Taylor commonly

went by the nicknames Mac, Mel, and MacMel. During

these two meetings, Hunter and Agent Lessner intentionally never indicated the exact quantity of drugs that

would be involved in the shipment because drug

couriers would not normally know that information.

Although Hunter and Agent Lessner never named an

exact amount of drugs, the audiotapes of the meetings

capture Barnes making various assumptions about the

quantity of drugs involved, ranging from twenty-to-eighty

kilograms. After the second meeting, Hunter and Agent

Lessner stayed in contact with Barnes, updating him on

the progress of the fictional drug shipment. Once it

was determined that the heist would occur on May 5, 2006,

the government, through Agent Lessner and Hunter,

arranged for Barnes and his co-conspirators to stay in

two hotel rooms under video surveillance at the Knights
4 No. 09-2262

Inn in Fort Wayne, Indiana for the nights of May 3

and May 4, 2006.

Between April 17, 2006, when he first learned of the

fictional shipment, and May 3, 2006, when he traveled to

Fort Wayne, Barnes compiled his team to carry out the

heist. At trial, Hightower testified that Barnes recruited

him to the conspiracy in April of 2006. Hightower testified that Barnes told him that the plan was to rob fifty

kilograms of cocaine from a stash house in Fort Wayne

with Taylor and two individuals recruited by Taylor.

Brown and Armstead, two of the other co-conspirators,

testified that Taylor recruited them in April of 2006.

Armstead also testified that prior to going to Fort Wayne,

he understood this to be a “lifetime deal” involving

about forty kilograms of cocaine.

On May 3, 2006, Barnes and Hightower traveled from

Gary, Indiana to Fort Wayne to meet with Agent Lessner.

At trial, there was conflicting testimony about what

happened when they were leaving Gary. Barnes testified

that they went directly to Fort Wayne. Hightower testified

that they stopped at Taylor’s house on their way out

of Gary. According to Hightower, who claims to have

stayed in the car while Barnes went into Taylor’s house,

Taylor came out of the house, got a bag out of his car, and

gave the bag to Barnes. Barnes then gave the bag to

Hightower. Inside the bag, Hightower saw a Keltec automatic rifle and a bulletproof vest. Hightower took an AK47 from the car and put it into the bag.

The next day, Taylor, Brown, and Armstead traveled

from Gary to Fort Wayne. Brown testified that they dis-
No. 09-2262 5

cussed the plan to steal the load of drugs on the drive.

When they arrived in Fort Wayne, they saw Barnes in

his car at an intersection and followed him to the

Knights Inn. After meeting Barnes at the Knights Inn,

Taylor, Brown, and Armstead went to visit Taylor’s uncle

at the nearby Applebee’s. Several hours later, Taylor,

Brown, and Armstead returned to the Knights Inn and

joined a meeting with Agent Lessner, Hightower, Alexander, and Barnes in one of the hotel rooms. The government introduced a videotape of this meeting at trial.

During the meeting, Agent Lessner discussed the logistics

of the shipment and how they would carry out the heist,

but stopped short of mentioning the specific amount of

drugs that would be involved. In response to a question

from Alexander, Agent Lessner did tell the group that

the drugs would be in the fuel tank and described the

fuel tank as the size of the dresser in the room. The

meeting lasted thirty minutes. The videotape shows

Taylor sitting on the bed and participating in the

meeting on three occasions: he commented on the type of

truck that would be involved; he informed Barnes that

Youngstown was in Ohio; and he described a person

who would be involved in the heist and how he would

be armed.

On the morning of May 5, 2006, Agent Lessner called

Barnes to tell him everything was ready. Barnes took the

bag with the bulletproof vests and guns. Barnes and

Hightower rode with Agent Lessner to the storage

facility to pick up the van that they were planning to use

in the heist. Taylor drove behind Agent Lessner’s car

with Armstead and Brown. Once they arrived at the
6 No. 09-2262

storage facility, the group was arrested. The arresting

officers found a .40-caliber handgun and three additional loaded magazines on Taylor.

B. Procedural History

On September 18, 2007, Barnes, Armstead, Brown, and

Taylor proceeded to trial. Alexander and Hightower

pleaded guilty prior to September of 2007. Early in

the September 2007 trial, Armstead, Brown, and Taylor

moved for a mistrial when Barnes agreed to testify on

their behalf. The court granted the mistrial and severed

Barnes’s trial from the other defendants. Barnes proceeded

to trial alone in February of 2008 and was found guilty.

Armstead and Brown then pleaded guilty, and in April of

2008, Taylor proceeded to trial as the only remaining

defendant. Armstead, Brown, and Hightower testified

against Taylor at his trial. Barnes testified on Taylor’s

behalf. Barnes denied ever talking to Taylor about the

heist before May 4, 2006 and claimed it was a coincidence

that they ran into each other in Fort Wayne on May 3,

2006. The jury found Taylor guilty.

In October of 2008, Taylor filed a motion for a new trial

based on a post-sentencing statement of Alexander,

and then filed an amended motion based on a post-sentencing statement of Brown. Alexander claimed that

Taylor did not know about the conspiracy and was only

in Fort Wayne to visit his uncle. Brown claimed that he

pleaded guilty and testified against Taylor out of fear of

a life sentence, but that he and Taylor had never spoken

of the drug heist. The district court denied the motion. In
No. 09-2262 7

rejecting Alexander’s statement, the district court reasoned that all of the information in Alexander’s statement was information known to Taylor prior to trial,

and therefore was not newly discovered evidence. Additionally, the district court found that Alexander’s statement was weak exculpatory evidence because it directly

contradicted Alexander’s plea colloquy. The district court

rejected the motion based on Brown’s affidavit because

it was not reasonably well satisfied that Brown’s trial

testimony was false.

On May 4, 2009, the district court sentenced Taylor to

188 months for the conspiracy charge and sixty months

for the gun charge. Taylor was the last of the co-conspirators to be sentenced. Taylor’s pre-sentence report recommended that the district court find that the conspiracy

involved forty kilograms of cocaine. Taylor objected to

this recommendation and urged the court to find that

the conspiracy involved five-to-fifteen kilograms. Notwithstanding Taylor’s objection, the district court made

the factual finding that the conspiracy involved forty

kilograms of cocaine. The district court had made the

same finding of forty kilograms when sentencing

Barnes, but had previously accepted stipulations that

the conspiracy involved only five-to-fifteen kilograms of

cocaine when sentencing Alexander, Hightower, Brown,

and Armstead. The factual determination that the conspiracy involved forty kilograms resulted in a base

offense level of 34. With a two-point enhancement not

challenged in this appeal, Taylor’s offense level was 36,

which resulted in an advisory guideline range of 188 to

235 months. Had the district court found that the con-
8 No. 09-2262

spiracy involved five-to-fifteen kilograms, the advisory

guideline range would have been 151 to 188 months.

II. Discussion

A. Sufficiency of the Evidence for the Conspiracy Count

Taylor challenges his conviction, claiming that the

government presented insufficient evidence to prove

beyond a reasonable doubt that he conspired with Barnes,

Hightower, Alexander, Armstead, and Brown to possess

with intent to distribute more than five kilograms of

cocaine. When assessing a sufficiency of the evidence

claim, our threshold inquiry is whether, “after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

United States v. Curtis, 324 F.3d 501, 505 (7th Cir. 2003)

(internal citations omitted). We do not re-weigh the

evidence or determine the credibility of witnesses. United

States v. Longstreet, 567 F.3d 911, 918 (7th Cir. 2009). To

convict a defendant of conspiracy to possess with intent

to distribute cocaine under 21 U.S.C. § 846, the government must establish: (1) the existence of an agreement

between two or more persons to possess with intent to

distribute cocaine; (2) that the defendant knew of the

agreement; and (3) the defendant intended to join the

agreement. See United States v. Billops, 43 F.3d 281, 284

(7th Cir. 1994). “[M]ere association with conspirators,

knowledge of a conspiracy and presence during conspiratorial discussions is not sufficient to convict a
No. 09-2262 9

person of conspiracy.” United States v. Useni, 516 F.3d 634,

646 (7th Cir. 2008).

Taylor argues that the government presented such

limited and unreliable evidence that no reasonable juror

could have found him guilty of being involved in the

conspiracy beyond a reasonable doubt. Taylor claims

that he was only in Fort Wayne to visit his uncle, that

he had no knowledge of the plan to steal the drug shipment until the meeting at the Knights Inn on May 4,

2006, and that he was merely present for that meeting

but did not participate. To support his claim of noninvolvement in the conspiracy, Taylor points to his minimal involvement in the meeting at the Knights Inn

and the uncontested fact that he never spoke to the confidential informant. To counter the testimony of Hightower, Armstead, and Brown, all of whom testified that

Taylor participated in planning the heist, Taylor argues

that their testimony was inconsistent and therefore

we should not credit it. The inconsistencies in their testimony generally relate to whether Barnes and Hightower

received guns from Taylor on May 3, 2006. Armstead and

Hightower testified consistently on the main issue, that

Barnes received the guns from Taylor on May 3, 2006,

but deviated on who retrieved the guns and where the

guns were originally located. Barnes completely denied

receiving guns from Taylor.

Although Taylor’s arguments may have been valid

arguments to put before a jury, they are not enough to

support a sufficiency of the evidence challenge on appeal. The government put forth evidence that Taylor
10 No. 09-2262

actively participated in the conspiracy and even recruited

other individuals to the conspiracy. Hightower testified

that he saw Taylor give Barnes guns, that Taylor participated in a conversation about how three people would

use two vests, and that Taylor showed up at the hotel

with a .40-caliber handgun, three magazines and fortysix rounds of ammunition. Brown, who traveled to Fort

Wayne at the urging of Taylor, testified that Taylor

knew about the planned drug heist and traveled to Fort

Wayne to participate. Armstead testified that Taylor

recruited him to the conspiracy and that he knew they

were traveling to Fort Wayne to participate in a drug

heist. The government also presented an audiotape in

which Barnes said that he had recruited an individual

named “MacMel,” a known nickname for Taylor, and

a videotape of Taylor participating in the meeting at

the Knight’s Inn on May 4, 2006. Although Taylor characterizes his participation at that meeting as minimal,

the jurors had an adequate opportunity to assess his

involvement in the meeting for themselves. Furthermore,

Taylor concedes that he responded to questions and

asked questions during the meeting. Taylor essentially

asks us to find that the government’s evidence was not

credible. However, that is not the role of this Court. The

government put forth sufficient evidence of Taylor’s

involvement in the conspiracy. It was the jury’s role to

assess the credibility of that evidence.

B. Motion for a New Trial

Next, Taylor contends that the district court erred by

denying his motion for a new trial based on newly dis-
No. 09-2262 11

covered evidence. The pieces of newly discovered evidence

Taylor refers to are a statement by Alexander, stating

that Taylor was not involved in the conspiracy, and a

statement by Brown, claiming that Taylor did not have

any knowledge of the conspiracy. We review a district

court’s denial of a motion for a new trial using an

abuse of discretion standard. United States v. Lewis, 567

F.3d 322, 328 (7th Cir. 2009). The test we apply when considering new evidence not considered at trial is slightly

different from the test we apply when considering evidence proving that testimony at trial was false. Therefore,

we will take the district court’s consideration of each

statement in turn.

Alexander signed an affidavit exculpating Taylor

after he received the benefit of his plea agreement at sentencing. Alexander claims that Taylor had nothing to

do with the plan to steal the drugs, that Taylor was only

in Fort Wayne to visit his uncle, and that Taylor fell

asleep during the meeting at the Knights Inn. Neither

the government nor Taylor called Alexander as a witness at trial. To determine whether this is new evidence

such that it warrants a new trial, we must consider

whether it: (1) came to Taylor’s knowledge only after

trial; (2) could not have been discovered sooner had

Taylor exercised due diligence; (3) is material and not

merely impeaching and cumulative; and (4) would probably lead to an acquittal in the event of a retrial. See

United States v. Bender, 539 F.3d 449, 455-56 (7th Cir.

2008). Alexander’s statement does not qualify as newly

discovered evidence to warrant a new trial. Taylor was

aware of his own involvement in the conspiracy, or lack
12 No. 09-2262

thereof, from the beginning and could have called Alexander to testify on his behalf at trial. Taylor offers

no reason why he did not call Alexander as a witness. In

the absence of another explanation, we may assume

that Taylor did not call Alexander to testify because

Alexander expressed an unwillingness to testify, or an

unwillingness to testify in a way that would benefit

Taylor. However, that does not make the facts to which

Alexander would have testified newly discovered evidence. Taylor also offers no clear argument demonstrating that this testimony would lead to an acquittal in

the face of the testimony of Armstead and Hightower (we

do not consider Brown’s testimony in this analysis

because he has recanted). Alexander’s testimony would

have corroborated Barnes’s testimony, but the jury chose

to disregard Barnes’s testimony because of its internal

inconsistencies and its inconsistencies with the testimony

of the other witnesses and the physical evidence. Alexander would not have made a much more believable

witness than Barnes. If Alexander testified at a new trial,

his testimony would directly contradict his plea

colloquy, which the government certainly would bring

out on cross-examination. It also would be inconsistent

with the other testimony and the physical evidence.

For these reasons, the district court did not abuse its

discretion in determining that Alexander’s statement

does not meet the requirements to warrant a new trial.

Unlike Alexander, Brown did testify against Taylor at

his trial. Brown’s affidavit now recants that testimony.

Because this new evidence deals with allegedly false

testimony at trial, we must consider whether: (1) we are
No. 09-2262 13

reasonably well satisfied that the testimony given by

Brown at trial was false; (2) the jury might have reached

a different conclusion absent the false testimony or if it

had known Brown’s testimony was false; and (3) Taylor

was taken by surprise when the false testimony was

given, and was unable to meet it or did not know its

falsity until after the trial. See United States v. Bender,

539 F.3d 449, 456 (7th Cir. 2008). Brown’s statement that

Taylor had no knowledge of the plan to steal drugs

does not meet the first prong of the analysis. Brown’s

trial testimony was consistent with the testimony of

two other witnesses, the videotape of the meeting, and the

.40-caliber handgun found on Taylor. His new statement

contradicts all of these corroborated pieces of evidence.

Brown’s statement also does not meet the third prong

of the analysis. If Brown’s trial testimony was false, Taylor

would have known that it was false at the time of trial

because the testimony Brown now recants dealt exclusively with Taylor’s knowledge of and involvement in

the conspiracy. Taylor had ample opportunity to refute

the testimony through cross-examination. For these

reasons, the district court did not abuse its discretion

in determining that Brown’s new statement does not

meet the requirements for newly discovered evidence to

warrant a new trial.

C. Sentencing

Lastly, Taylor argues that the district court erred in its

determination that the amount of cocaine attributable to

the conspiracy was forty kilograms when calculating the
14 No. 09-2262

appropriate sentencing guideline range. We review a

district court’s factual finding regarding drug quantity

for clear error. United States v. Clark, 538 F.3d 803, 812

(7th Cir. 2008). The government has the burden of

proving the quantity of drugs attributable to the defendant.

United States v. Krasinski, 545 F.3d 546, 551 (7th Cir. 2008).

The evidence on which the district court relies must

have “sufficient indicia of reliability to support its

probable accuracy.” United States v. Bautista, 532 F.3d 667,

672 (7th Cir. 2008).

As an initial matter, the government argues that this

sentence is not reviewable because it falls within the

lower guideline range that Taylor advocates should

apply. However, a district court’s decision to sentence

a defendant within the overlap of two guideline ranges

does not automatically insulate a sentence from review.

Emezuo v. United States, 357 F.3d 702, 710-11 (7th Cir. 2004).

Only when it is clear from the sentencing record that

the district court would have applied the same sentence

even if the lower range applied will we decline to

review a sentence. Id. The government points to no statements in the record that indicate that the district court

would have given the same sentence had it started with

the lower range. Therefore, we will proceed to the

review of the district court’s factual determinations in

coming to this sentence for clear error.

To support the district court’s finding that the conspiracy involved forty kilograms of cocaine, the government points to several key pieces of evidence on which

the district court relied. First, Agent Lessner testified
No. 09-2262 15

that he told all the parties in the hotel room meeting,

including Taylor, that the cocaine would be in the fuel

tank of the truck, which he compared to a dresser in the

room roughly large enough to hold forty kilograms. This

testimony was also supported by the videotape of

that meeting. Taylor argues that this is not sufficient

evidence to support the finding of forty kilograms because Agent Lessner only said that the drugs would fit

in the fuel tank, but did not say that the drugs would

fill the fuel tank. The government also points to the

testimony of Armstead and Hightower. Armstead, Taylor’s recruit to the endeavor, testified that he believed

the quantity of drugs involved was forty kilograms when

he agreed to participate. Hightower testified that Barnes

told him that the heist involved fifty kilograms of cocaine.

While this record to support the factual finding that the

conspiracy involved forty kilograms of cocaine is thin, it

would probably be enough to support such a factual

finding. However, this case presents an additional challenge.

This conspiracy involved six co-conspirators. Four of

the co-conspirators pleaded guilty before going to trial.

Barnes and Taylor did not plead guilty. The district court

did not sentence any of the defendants until after the

trials of Barnes and Taylor. Therefore, the district court

had the exact same factual record before it with regard

to the amount of drugs involved in the conspiracy

when sentencing all of the defendants. The plea agreements of the four cooperating co-conspirators stipulated

that the conspiracy involved five-to-fifteen kilograms

of cocaine. Had the district court found that the evidence
16 No. 09-2262

in the record did not support this factual stipulation, it

had the authority to reject the stipulation at sentencing

and make a factual finding consistent with the evidence.

U.S.S.G. § 6B1.4(d). The district court did not do this. The

district court accepted this factual stipulation and sentenced these four co-conspirators on the finding that the

conspiracy involved five-to-fifteen kilograms of cocaine.

Then, at the sentencing hearings for Barnes and Taylor,

the district court found that the conspiracy involved

forty kilograms of cocaine. The district court did not

explain the discrepancy in its factual findings regarding

the drug quantity among the co-defendants. Rather,

at Barnes’s sentencing hearing, the district explicitly

stated that there was no reason to treat Barnes differently

from his co-conspirators with regard to the amount of

drugs involved in the conspiracy, but then proceeded to

find a different quantity of drugs. Taylor’s sentencing

record is silent on the issue of how he should be treated

with regard to drug quantity in relation to his co-defendants. As the court discussed with regard to Barnes in

United States v. Barnes, 09-2052, without a justification

for treating these co-defendants differently when determining the amount of drugs attributable to the conspiracy, it was clear error for the district court to find one

drug quantity for Armstead, Hightower, Brown, and

Alexander, and a different drug quantity for Taylor on

an identical record.

III. Conclusion

For the reasons set forth above, we AFFIRM Taylor’s

conviction and the district court’s denial of the motion
No. 09-2262 17

for a new trial. We VACATE Taylor’s sentence and

REMAND for re-sentencing.

4-8-10