In the

United States Court of Appeals

For the Seventh Circuit

No. 15-2003

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WALTER BLACKMAN,

Defendant-Appellant.

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division.

No. 13-CR-268— Edmond E. Chang, Judge.

ARGUED APRIL 13, 2016 — DECIDED JULY 29, 2016

Before EASTERBROOK,MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Walter Blackman pleaded guilty to

one count of distributing a controlled substance, in violation of

21 U.S.C. §841(a)(1), and the district court ordered him to serve

a prison term of 180 months. In this appeal, he challenges the

district court’s finding that he was responsible for the uncharged distribution of 3,000 grams of crack cocaine to one of

his customers as relevant conduct and its additional finding
2 No. 15-2003

that he possessed a firearm during his narcotics distribution.

We find no error in either determination, nor do we agree with

Blackman’s contention that the district court committed

procedural error by failing to address two of his principal

arguments in mitigation.

I.

Blackman was a ranking official in Chicago’s Black Disciples street gang. Blackman and his crew controlled drug

trafficking in an area of Chicago’s far south side known

colloquially as “the hundreds”—a reference to the fact that the

cross streets in the neighborhood are numbered 100th through

135th streets. Blackman and his associates distributed large

quantities of heroin, powder cocaine, and crack cocaine;

Blackman himself was selling wholesale quantities of those

drugs to multiple customers. Blackman was among 18 people

arrested in April 2013 following a lengthy investigation by the

Federal Bureau ofInvestigation. He was charged in a superseding indictment with 16 counts of distributing various controlled substances (including cocaine, crack cocaine, and

heroin) in 2012 and early 2013, in violation of section 841(a)(1).

He ultimately pleaded guilty to count two of that indictment,

which involved the distribution of 366.2 grams of crack cocaine

to a confidential witness (the “CW”) on July 24, 2012. In a

written plea agreement, the parties agreed, based on the

transactions charged in all 16 counts of the indictment, that

Blackman was responsible for distributing 1,085.9 grams of

crack cocaine, 1,084 grams of powder cocaine, and 389.4 grams

of heroin; but Blackman reserved the right to contest, and the

government reserved the right to establish, his responsibility

for any uncharged drug quantities in excess of these agreed-
No. 15-2003 3

upon amounts—in particular, an additionalthree kilograms of

crack cocaine that the government believed Blackman had

distributed to Jeffrey Brewer.

The government presented Brewer’s testimony at sentencing in support of the additional drug quantity. Brewer was

among the 18 people arrested as a result of the government’s

investigation; he ultimately pleaded guilty to a charge that he

possessed, with the intent to distribute, 28 grams or more of

crack cocaine, in violation of section 841(a)(1). Brewer had

made his living as a street-level dealer in crack cocaine.

Blackman was a long-time supplier of Brewer and had

“blessed” Brewer into the Black Disciples as a gang member

early in 2013. Brewer testified that he had made regular

purchases of crack cocaine from Blackman for resale, with cash

or by front, beginning late in 2008 and continuing through

early 2013. By Brewer’s account, the purchases occurred

multiple times daily from 2008 through 2010; were interrupted

first by a two-to-three month “drought” in 2011 when

Blackman had no supply and later by Brewer’s incarceration

for 100 days; and became intermittent (every two to three

weeks) in 2012 to 2013. Brewer also testified both that he had

frequently seen Blackman with a gun on his person or in his

automobile during thisperiodand thatBlackmanhad supplied

three firearms and ammunition to him in 2011 for use in a drug

turf dispute with a rival gang. Brewer was cross-examined

extensively by Blackman’s counsel, who established, among

other points, that Brewer had been high on marijuana day and

night throughout this period of time, that he was cooperating

with the government in the hope of a lesser sentence, and that

he had given inconsistent statements both as to when he had
4 No. 15-2003

met Blackman and begun acquiring crack cocaine from him

and as to the quantities he had obtained from Blackman. In

particular, Blackman’s counsel emphasized that Brewer, prior

to his testimony, had given significantly lower estimates of

how much crack cocaine he had typically purchased from

Blackman. For example, in connection with his guilty plea,

Brewer had estimated that he purchased one-eighth ounce

quantities from Blackman on a daily to weekly basis in 2009

and quarter-ounce quantities in 2010; but in his testimony at

Blackman’s sentencing, he increased these estimates to halfounce purchases twice daily in 2009 and half-ounce daily

purchases in 2010. 

Following Brewer’s testimony, the parties filed supplemental sentencing memoranda, and the government, at the district

court’s behest, included with its memorandum a summary of

the evidence that corroborated Brewer’s testimony. The

government cited, among other things, phone records that

reflected telephonic contact between Brewer and Blackman

during certain portions of the 4.5-year time period during

which Brewer testified he had been purchasing crack cocaine

from Blackman; recorded phone conversations between the

two men in 2012 and 2013 discussing drugs and guns; and

photographs of various automobiles, weapons, and ammunition that Brewer had linked to Blackman. The government

argued that in light of this and other evidence, Brewer was a

credible witness whose testimony as to his course of dealing

with Blackman was reliable. 

The district court, having considered the parties’ submissions, found that Brewer had purchased a minimum of three

kilograms of crack cocaine from Blackman from 2009 through
No. 15-2003 5

early 2013 and that this quantity should be included in the total

drug quantity for which Blackman should be held to account.

The court noted at the outset that although Blackman had

pleaded guilty to only one count of distribution that involved

a single sale of crack cocaine to the CW in July 2012, Blackman

had also stipulated to the transactions underlying the other 15

counts of the superseding indictment and conceded that these

constituted relevant conduct for sentencing purposes.

Whether as part of a common plan or the same

course of conduct, the offenses were all drug

distribution offenses (sometimes crack, sometimes powder cocaine, and sometimes, as

Blackman told the CW in July 2012, heroin); the

drug deals covered a continuous time period

between January 2012 to March 2013, occurred

with regularity (that is, they were not all

compressed at one end or another of that time

period); and several of the deals occurred either

at or near the 134th Street house where the July

2012 deal happened.

R. 93 at 2. The court went on to find that the drug dealing

between Brewer and Blackman overlapped with and

constituted part of the same common plan or course of dealing

as the transactions to which Blackman had stipulated and

should likewise be treated as relevant conduct. See U.S.S.G.

§ 1B1.3(a)(2). The court found that Brewer was a credible

witness: having observed him testify, it was the court’s view

that Brewer was anything but eager to testify against a Black

Disciples gang leader and that he had done his best to

remember and recount accurately his dealings with Blackman.
6 No. 15-2003

The court acknowledged the prior inconsistent statements

Brewer had made as to when he had met Blackman and how

much crack cocaine he had obtained from Blackman. Some of

these statements could be explained by the motive Brewer had

at the time to minimize his dealings with Blackman and the

scope of his own criminal conduct. And the court was satisfied

that the phone records and other evidence cited by the

government corroborated Brewer’s account in important

respects. The phone records showed that the two men were in

contact with one another as far back as 2009 and that they were

thereafter in frequent contact during certain time periods.

Certain calls between them had been intercepted by

government wiretap between October 2012 and January 2013,

but in view of Brewer’s testimony and the phone records, the

court found that the two had a relationship that substantially

pre-dated those recorded calls. Brewer’s testimony about his

course of dealing with Blackman was consistent generally with

Blackman’s own post-arrest admissions describing the scope

of his narcotics operation, and in certain particulars (including

his description of Blackman’s cars and stash house) had been

independently verified. The court found, ultimately, that

Brewerhad purchased crack cocaine from Blackmanbeginning

no later than 2009 and until early 2013; that, conservatively,

Brewer had purchased at least three kilograms of crack cocaine

from Blackman during that time period; and that those

purchases comprised a common plan or identical course of

conduct with the count of Blackman’s conviction. On the latter

point, the court pointed out that the time period of the BrewerBlackman transactions overlapped with the transactions to

which Blackman had stipulated; that the transactions took
No. 15-2003 7

place either in the same area or near by (not far from the stash

house where the sale to the CW underlying Blackman’s

conviction had occurred, for example), and involved the same

drug as the count of conviction. R. 93 at 3-4. 

The court also found that Blackman had possessed one or

more firearms during the period of his drug trafficking. See

U.S.S.G. § 2D1.1(b)(1). This issue, the court observed, was

much simpler to resolve than the appropriate drug quantity.

The court noted that there were intercepted calls establishing

Blackman’s effort to obtain a firearm from James Jones on

December 7, 2012, and when Blackman’s car was stopped later

that day, a .45-caliber pistol had in fact been discovered

underneath the front passenger seat, where Jones was sitting.

Blackman had also admitted in his post-arrest statement that

he was in possession of five other guns as of the date of that

seizure but had later disposed of them upon realizing that the

government was tracking him. Finally, the court credited

Brewer’s testimony that he had acquired guns from Blackman

in 2011 in connection with a drug turf battle and that Brewer

also had seen Blackman in possession of a firearm in 2012.

R. 93 at 4. 

Each of these findings added two levels to Blackman’s base

offense level and boosted it from 32 to 36. After a three-level

deduction for acceptance of responsibility, his adjusted offense

level was 33, which in conjunction with a criminal history

category of III yielded an advisory sentencing range of 168 to

210 months. Pursuant to 21 U.S.C. § 841(b)(1)(A)(iii), Blackman

was subject to a 10-year minimum term of incarceration. After

reviewing the sentencing factors set forth in 18 U.S.C. § 3553(a),

the district court sentenced Blackman to a term of 180 months. 
8 No. 15-2003

II.

Blackman contends that the district court erred in multiple

respects in determining his sentence. He argues thatneither his

cocaine sales to Brewer nor his possession of one or more

firearms should have been factored into the Guidelines

calculations, as both (in his view) are too far removed from the

conduct underlying his conviction to be considered for

sentencing purposes. He also contends thatBrewer’s testimony

as to his transactions with Blackman and Blackman’s

possession of firearms was too unreliable to support the

district court’s findings on these points. Blackman further

argues that the district court committed procedural error by

failing to address two of his principal arguments in

mitigation—his challenge to the 18:1 crack-to-powder-cocaine

ratio adopted by the Fair Sentencing Act of 2010, 124 Stat. 2372,

and now embodied in the Sentencing Guidelines, and his

contention that the government engaged in sentencing

manipulation. Finally, Blackman briefly contends that his

sentence is incompatible with the Fifth and Sixth Amendments

to the Constitution to the extent that the enhancements to his

sentence were premised on judicial findings based on a mere

preponderance of the evidence. 

A.

Highlighting various differences between his dealings with

Brewer and his course of dealing with the CW, one sale to

whom underlies his count of conviction, Blackman contends

that his crack cocaine sales to Brewer do not qualify as relevant

conduct for sentencing purposes. He points out that whereas

Blackman and Brewer were both Black Disciples, the CW was
No. 15-2003 9

a Gangster Disciple and was unknown to Blackman until they

were introduced by a third party. The CW also purchased

multiple narcotics from Blackman, including heroin, for resale

to out-of-town customers, whereas Brewer purchased crack

cocaine only and for resale within Chicago. Blackman’s sales

to the CW were occasional and tended to be in larger quantities

than his daily and (eventually) bi-weekly sales to Brewer. The

CW paid for his purchases in cash whereas Blackman often

fronted crack cocaine to Brewer.

However, the sale to the CW underlying the count of

conviction, and Blackman’s collective sales to the CW, were

part of a much broader course of drug dealing. Pursuant to

section 1B1.3(a)(2) of the Guidelines, narcotics-related conduct

beyond the scope of a defendant’s conviction qualifies as

relevant for sentencing purposes if, inter alia, it was part of the

same course of conduct as the conviction. E.g., United States v.

Baines, 777 F.3d 959, 963 (7th Cir. 2015); United States v. Howard,

80 F.3d 1194, 1203 (7th Cir. 1996). This is so when there is a

strong relationship between the uncharged conduct and the

offense of conviction, as evidenced by a significant similarity,

regularity and temporal proximity between the two. E.g.,

Baines, 777 F.3d at 963; United States v. Stephenson, 557 F.3d 449,

456 (7th Cir. 2009). Blackman acknowledged that he and his

crew controlled drug distribution in the 100s area of Chicago,

and he appropriately stipulated that the other distributions

charged in the indictment (to the CW and additional

individuals) constituted relevant conduct. So it does not make

sense to isolate either the count of conviction or Blackman’s

distributions to the CW for comparison purposes in assessing

what constitutes relevant conduct: the sale underlying the
10 No. 15-2003

count of conviction was not the sole drug sale that Blackman

made nor was the CW Blackman’s only customer. See United

States v. White, 519 F.3d 342, 348-49 (7th Cir. 2008). 

It is clear from the record that throughout 2012 and until his

arrest in 2013, Blackman was engaged in a course of significant,

continuous drugdealing to multiple customers onthe far south

side of Chicago, and the sales to Brewer fit comfortably within

that course of dealing. Blackman had a much lengthier

relationship with Brewer than he did with the CW (by Brewer’s

account it began in 2008), but it persisted through and

overlapped with the time period established by stipulated

conduct (January 2012 to March 2013). (Blackman’s drug

dealing operation did not snap into existence in early 2012.) As

with the transactions that Blackman conceded were relevant

conduct, the sales to Brewer involved the same distributor of

narcotics, obviously (Blackman), one of the three drugs that

Blackman and his crew distributed to others (crack cocaine),

similar regularity of dealing (on a daily and weekly basis), took

place in the same area (in particular “the hundreds”

neighborhood) of Chicago, and in some instances, at the same

stash house. It was entirely appropriate for the court to treat

the transactions with Brewer as relevant conduct. Cf. Baines,

777 F.3d 964.

The court’s finding that Blackman distributed three

kilograms of crack cocaine to Brewer from 2009 to 2013 was not

clearly erroneous. There was no dispute that Brewer was one

of Blackman’s customers. Intercepted conversations between

Blackman and Brewer in 2012 and 2013 confirm that they had

a drug-trafficking relationship. Brewer gave a detailed

accounting of his purchasing relationship with Blackman and
No. 15-2003 11

made estimates of the frequency of his purchases and amounts

purchased in each year of that relationship. The district court,

in turn, appropriately relied on the low end of Brewer’s

estimates to make a conservative determination of the total

quantity of crack cocaine that Blackman distributed to Brewer

over time. See United States v. Tate, 822 F.3d 370, 373 (7th Cir.

2016) (district court may rely on reasonable estimation to

determine relevant drug quantity); United States v. Claybrooks,

729 F.3d 699, 707 (7th Cir. 2013) (same). Certainly there were 1

inconsistencies between Brewer’s testimony and his various

post-arrest statements. In particular, Brewer on the witness

stand affixed larger numbers to the quantities he had

purchased from Blackman than he had in prior statements. But

these points were fully aired both during cross-examination

and in the briefing that the district court requested. The district

court itself acknowledged and considered the inconsistencies

but found, in view of the totality of the record (including

evidence that confirmed certain aspects ofBrewer’s testimony),

that Brewer was credible. We have no basis to disturb that

finding. See Tate, 822 F.3d 373 (noting deference we owe to

district court’s credibility determinations).

By way of illustration, we note that had the district court relied upon

1

Brewer’s testimony regarding the daily amounts he purchased from

Blackman in 2009 and 2010, for example, it would have quickly arrived at

a total drug quantity of ten kilograms or more of crack cocaine. The court

clearly was looking to the lower estimates that Brewer had ventured in

earlier statements. The district court also excluded altogether the amounts

Brewer testified that he purchased from Blackman in 2008, which

represented an earlier beginning to the relationship than Brewer had

indicated in any of his prior statements.
12 No. 15-2003

B.

Nor did the court err in finding that Blackman possessed a

firearm during his narcotics trafficking activity. There was

ample evidence to support the district court’s finding in this

regard. For example (and our discussion on this point is by no

means exhaustive), Brewer testified that in 2012, Blackman

almost invariably had a firearm when Brewer met with him,

either on his person or in his vehicle. The district court credited

this testimony. The court also found credible Brewer’s

testimony thatBlackmanhad supplied him withthree different

guns in 2011 for use in a dispute with a rival gang over drug

territory. As we have discussed, Blackman’s dealings with

Brewer constitute relevant conduct, and as Blackman himself

concedes, the possession of a gun during narcotics activity that

counts as relevant conduct itself is sufficient to support the

enhancement. E.g., United States v. McCauley, 659 F.3d 645, 652

(7th Cir. 2011). Blackman nonetheless contends that there is no

evidence affirmatively connecting any of the firearms that

Brewer mentioned to his narcotics trafficking. But the

commentary to the Guideline makes clear that a defendant’s

possession of a firearm warrants the enhancement “unless it is

clearly improbable that the weapon was connected with the

offense.” § 2D1.1, comment. (n.11(A)). Blackman has cited

nothing in the record giving us reason to believe that it was

clearly improbable that the firearm or firearms he possessed

were connected to his course of drug dealing. See United States

v. Acosta, 534 F.3d 574, 588 (7th Cir. 2008). Moreover, Brewer

testified that when Blackman carried a gun in his vehicle, he

typically placed it either in the glove compartment or in an

armrest, which happened to be the two places into which he
No. 15-2003 13

also placed the narcotics he was delivering to customers like

Brewer. That alone suggests a connection between the firearms

and his drug dealing. See, e.g., United States v. Rea, 621 F.3d 595,

606 (7th Cir. 2010). As does supplying firearms to a customer

(Brewer) who was defending his drug turf. See United States v.

Block, 705 F.3d 755, 763 (7th Cir. 2013).

C.

Blackman next contends that the district court failed to

address two of his principal arguments in mitigation: the

contention that the government was guilty of sentencing

manipulation by virtue of having its CW purchase, and

continue to purchase, crack cocaine from Blackman so as to

drive up his Guidelines offense level, and his contention that

the district court should reject the 18:1 ratio of powder to crack

cocaine reflected in the guidelines and sentence him below the

advisory range. A sentencing judge is required to address a

defendant’s principal arguments in mitigation so long as they

have a foundation in the facts of the case and are not too weak

to require discussion. E.g., United States v. Rosales, 813 F.3d 634,

637-38 (7th Cir. 2016).

The sentencing manipulation argument was not one the

district court was required to address. This court has declined

to recognize this as a valid sentencing argument. See United

States v. Garcia, 79 F.3d 74, 76 (7th Cir. 1996); see also United

States v. Vallone, 698 F.3d 416, 495 (7th Cir. 2012) (collecting

cases), cert. granted & j. vacated on other grounds sub nom. Dunn

v. United States, 133 S. Ct. 2825 (2013), reinstated as modified,

752 F.3d 690 (7th Cir. 2014), cert. denied, 135 S. Ct. 1167, 1466,

1843, 1857 (2015). 
14 No. 15-2003

Blackman’s contention that the court failed to address his

challenge to the 18:1 crack-to-powder-cocaine ratio turns out

to be mistaken. Although it is true that the court did not

mention the argument at sentencing, it did deal with the

argument expressly in the written Statement of Reasons

attached to the judgment and commitment order.

It is true that there remains criticism over the

crack/powderdisparity. Defense counsel argued

at sentencing that the then-Attorney General

himself had personally advocated for

elimination of the disparity. But that carries no

extra weight in evaluating the 18 U.S.C.

§ 3553(a) factors, no more than if a future

Attorney General, unable to turn a personal

opinion into actual official policy or into actual

statutory law, opined that he or she personally

believed that the current ratio is too lenient on

crack offenders. The fact is that crack, because it

is smoked, does produce a faster high (it is

absorbed into the bloodstream faster) than

snorted powder cocaine, so there remains, for

some drug users, a stronger demand for crack

over powder. That is not to say that even the

current ratio is always fair, but it is not so strong

a mitigation point as to materially influence

Blackman’s sentence.

R. 100 at 4. Strangely, neither party called to our attention this

discussion. We look to a court’s written statement of reasons in

addition to its oral remarks at sentencing in assessing the

sufficiency of its sentencing rationale. See Baines, 777 F.3d at
No. 15-2003 15

966 (citing United States v. Pape, 601 F.3d 743, 747 (7th Cir.

2010), and United States v. Baker, 445 F.3d 987, 991-92 (7th Cir.

2006)); United States v. Ortiz, 431 F.3d 1035, 1042-43 (7th Cir.

2005). The court’s written statement amplifies on its reasons for

imposing the sentence it did and makes clear that the court

considered Blackman’s objection to the crack-to-powder ratio

and rejected the argument on its merits. The court was not

obligated to say more than it did, particularly given the extent

to which the argument, as Blackman’s counsel presented it,

was more of a blanket policy challenge to the ratio than an

exposition on why the ratio worked a particular injustice in

this case. Cf. United States v. Morris, 775 F.3d 882, 886-88 (7th

Cir. 2015) (defendant’s argument focused, inter alia, on fact that

most of crack cocaine attributed to him was counterfeit).

D.

Finally, Blackman argues that his Fifth and Sixth

Amendment were violated because the relevant sentencing

findings were not made by a jury based on proof beyond a

reasonable doubt but rather by a judge based on a simple

preponderance ofthe evidence.Blackmanmakes this argument

simply to preserve it. He acknowledges that the precedents of

both the Supreme Court and this court are squarely against

him on this point. See United States v. O’Brien, 560 U.S. 218, 224,

130 S. Ct. 2169, 2174 (2010); United States v. Watts, 519 U.S. 148,

156-57, 117 S. Ct. 633, 637-38 (1997) (per curiam); United States

v. Bozovich, 782 F.3d 814, 818 (7th Cir. 2015).

III.

The district court did a thorough and conscientious job in

assessing Blackman’s relevant conduct and arriving at an
16 No. 15-2003

appropriate sentence. The court did not clearly err in holding

Blackman responsible for an additional three kilograms of

crack cocaine or for the possession of a firearm during his

relevant conduct. Nor did the court commit any procedural

error in resolving defendant’s arguments in mitigation. The

sentence is AFFIRMED.