### In the



# United States Court of

Appeals For the Seventh Circuit

No. 15-2003

U NITE D S TATE SOF A ME RI CA , Plaintif f-Appellee,

v.

W AL TE R B LACK

M AN , Defendant-Appellant.
Appeal from the United States District Court forthe Norther n District of Illinois, Eastern Division. No. 13-CR-268— Edmond E. Chang, Judge.

A RGUE D A PRIL 13, 2016

— D E CID E D J U LY 29, 2016

Before E ASTE R

B ROOK , M ANI ON

, and ROVN E R

, Circuit Judges.

ROVN E R , Circuit Judge. W

alter 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 dis trict court’s finding that he w as responsible for the un charged di stribution of 3,000 grams o f crack cocaine to one of his customers as relev ant conduct and its additional fi nding2 No. 15-2003
that he possessed a firearm duri ng his narcotics distribution. W e 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 tw o of his principal arguments in mitigation. I. Bla ckman w as 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 distribut ed large quantities of heroin, powder cocaine, and cr ack cocaine; Blackman himself w as selling wholesale quantities of those drugs to multiple customers. Blackman w as among 18 people arrested in April 2013 following a lengthy investigation by the Fe de ra l Bu re au of Investigation. He w as charged in a supers ed

ing indictment with 16 counts of distributing v arious controlled sub st ances (including cocaine, crack cocaine, and heroin) in 2012 and early 2013, in violation of section 841(a)(1). He ultimately pleaded guilty to count tw o of that indictment, which inv olved the distribution of 366.2 grams of crack cocaine to a confidential witness (the “CW”) on July 24, 2012. In a written plea agreeme nt, the parties agreed, based on the transactions charged in all 16 counts of the indictment, that Blackman w as responsible for distributing 1,085.9 grams of crack cocaine, 1,084 grams of powder cocaine, and 389.4 grams of heroin; but Blackman reserv ed the right tocontest, an d the government reserved the right to establish, his re sp onsibility for any uncharge d drug quantities in excess of these agreed-No. 15-2003 3
upon amounts—in particular , an additional three kilograms of crack cocaine that the government believed Blackman had distributed to Jeffrey Brew er
. The government presented Brewer’s testimony at sentencing in support of the additional dru g quantity

. Brewer w as 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 int ent to distribute, 28 grams or more of crack cocaine, in violation of section 841(a) (1 ). Brew er had made his living as a street-lev el dealer in crack cocaine. Blackman w as a long-time su pplier of Brewer and had “blessed” Brew er into the Black Disciples as a gang membe r early in 2013. Brew er testified that he had made re gular 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 tw o-to-three mo nth “drought” in 2011 when Blackman had no su pply and later by Brewer’s incarceration for 10 0 da ys ; and became intermittent (ev ery tw o 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 this pe ri od an d th at Bl ackm an ha d sup plied three firearms and ammunition to him in 2011 for use in a drug turf dispute with a riv al gang. Bre w er w as cross-examined extensively by Blac kman’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 cooperatin g with the government in the hope of a lesser sentence, and that he had given incon si stent statements both as to when he had4 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 low er estimates of how much crack cocaine he had typically purchased from Blackman. For example, in conne ction with his guilty plea, Brew er had estimated that he purchased one-eighth ounce quantities from Blackman on a daily to weekly basis in 2009 and qu ar te r-ounce quantities in 2010; but in his testimony at Blackman’s sentencing, he increase d thes e estimates to halfounce purchases twice daily in 2009 and half-ounce daily purchases in 2010. Following Brew er’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 betw een Brewer and Blackman during certain port ions of the 4.5-year time period during which Brewer testified he had b een purchasing crac k cocaine from Blackman; recorded phone convers ations betw een the tw o men in 2012 and 2013 discu ss ing drugs and guns; and photograph s of v arious automobiles, w eapons, and ammunition that Brew er had linked to Blackman. The government
ar gu ed that in light of this and other evidence, Brewer w as a credible witness whose testimony as to his co ur se of dealing with Blackman was reliable. The district court, having considered the parti es ’ submissions, fou nd that Brewer had purchased a minimum of three kilograms of crack cocaine from Blackman from 2009 throughNo. 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 inv olved

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 relev ant conduct for sentencing p urposes. Whether as part of a common plan or the s ame course of conduct, the offe nses were all drug distribution offense s (sometimes crack, sometim es powder cocaine, and sometimes, as Blackman told the CW in July 2012, heroin); the drug deals covered a continuous time period betw een January 2012 to March 2013, occurred with regularity (that is, the y were not all compres sed 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 betw een Brew er and Blackman overlapped wi th 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 relev ant conduct. See U. S. S.G. § 1B 1.3(a)(2). The court found that Brewer w as a credible witness: having observ ed hi m testify , it w as the court’s view that Brew er w as anythin g but eager to testify again st a Black Disciples gang leader and that he had done his best to remembe r and recount accurately his dealings with Blackman.6 No. 15-2003
The court acknowledged the prior incons is tent statements Brew er 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 w as satisfied tha t the phone records and other evidence cited by the government corroborated Brew er’s account in important respects. The phone records showed that the tw o men were in contact with one another as far back as 2009 and that they were thereafter in fre qu en t contact during certain time periods. Ce rt ain calls betw een them had been intercepted by government wiretap betw een October 2012 and January 2013, but in view of Brew er’s testimony and the phone records, the
co ur t found that the tw o had a relationship that substantially pre-dated those recorded calls. Brewer’s testimony about his
course of dealing with Blackman w as consistent generally with Blackman’s own post-arrest admissions describing the scope of his narcotics operation, and in certain particulars (including his descriptio n of Blackman’s cars and stash house) had b een inde pendently verified. The court found, ultimately , that Br ewer had purchased crack co ca ine from Bl ackm an beginning
no later than 2009 and until early 201 3; that, conserv atively , Brew er had purchased at least three kilograms of crack cocaine from Blackman during tha t time period; and that those purchases comprise d 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 st ipulated; that the transactions tookNo. 15-2003 7 place either in the same area or near by (not far from the stash house wh ere the sale to the CW underlying Blackman’s conviction had occurred, for example), and inv olved the same drug as the count of conviction. R. 93 at 3-4. The cour t al so found that Blackman had possess ed one or
more firearms during the period of his drug trafficking. See U.S.S.G. § 2D1.1(b)( 1). This issue, the court ob se rv ed, w as much simpler to resolve than the appropriate drug quantity

. The court noted that there were intercepted calls establishing Blackm an’s effort to obtain a firearm from James Jones on Decembe r 7, 2012, and when Blackman’s car w as stopped later that day , a .45-caliber pistol had in fact been discovered underneath the front

passenger seat, where Jones w as sitting. Blackm an had also admitted in his post-arrest statement that he w as in possession of five other guns as of the date of that seizure but had later disposed of them upon realizing that the gover nment w as tracking him. Finally , the court credited Brew er’s testimony that he had acquired guns from Blackman in 2011 in connection with a drug turf ba ttl e and that Brewer also had seen Blackman in possession of a firearm in 20 12

. R. 93 at 4. Each of these findings added tw o levels to Blackman’s base offense level and boosted it from 32 to 36. After a three- le v el 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

w as subject to a 10-year minimum term of incarceration. After revi ewing 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 that ne ither his cocaine sales to Brewer nor his possession of one or more firearms should have been factored into the Guidel ines calculations, as both (in his view) are too far removed from the conduct underlying his conviction to be considere d for
sentencing purposes. He al so conten ds th at Brewer’s te stim ony as to his transactions with Blackman and Blackman’s possession of firearms w as too un re liable to support the district court’s findings on these points. Blackman further argues that the district court committed procedural error by failing to address tw o 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 Sente nc ing Guidelines, and his contention that the government engaged in sentencing manipulation. Finally

, Blackman briefly co ntends 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 ju dic ial findings based on a mere preponderance of the evidence. A. Highlighting various differences betw een his dealings with Brew er and his course of dealing with the CW , one sale to whom underlies his count of conviction, Blackman co ntends 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 w asNo. 15-2003 9

a Gangster Disciple and w as unknown to Blackman until they

were introduced by a third party

. The CW also purchased multiple narcotics from Blackman, including heroin, for resale to ou t-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 (ev entually) bi-w eekly sales to Brewer
. The CW paid fo r his purchases in cash whereas Blackman often fronted crack cocaine to Brewer
. However

, the sale to the CW underlying the count of
co nviction, and Blackman’s collective sales to the CW , wer e part of a much broader course of drug dealing. Pursuant to section 1B1.3(a)(2) of the Guidelines, narcotics-related conduct bey ond the scope of a defendant’s conviction qualifie s as relev ant for sentencing purposes if, inter alia, it w as 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). Th is is so when there is a strong relationship bet ween the uncharged conduct and the offense of conviction, as evidenced by a significant similarity , regularity and temporal proximity betw een the tw o. 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 relev ant conduct. So it does not make
sense to is ola te either the count of conviction or Blackman’s distributions to the CW for comparison purposes in assessing what constitutes relev ant conduct: the sale underlying the10 No. 15-2003

count of conviction w as not the sole drug sale that Blackman made nor w as the CW Blackm an’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 w as engaged in a course of significant,
continuous drug de alin g to multiple customers on the far south side of Chicago, and the sales to Brewer fit comfortably within that course of de aling. Blackman had a much lengthier relationship with Brewer than he did with the CW (by Brewer’s
acco unt it began in 2008), but it persisted through and
overlapped with the time period established by stipulated conduct ( January 2012 to March 201 3)

. (Blackman’s drug dealing operation did not snap into existence in early 2012.) As with the tra ns actions that Blackman conceded were relevant conduct, the sales to Brewer inv olved the same distributor of
narc otics, obviously (Blackman), one of the three drugs that Blackman and his crew distribu te d 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 w as entirely appropriate for the cou rt to treat the transactions with Brewer as relev ant conduct. Cf

. Baines , 777 F .3d 964. The court’s finding that Blackma n distributed three kilograms of crack cocaine to Brewer from 2009 to 2013 w as not clearly erroneous. There w as no dispute that Br ewer w as one of Blackman’s customers. Intercepted conversations betw een Blackman and Brewer in 2012 and 2013 confirm that they had

a drug-trafficking relation sh ip. Brewer gave a detailed accounting of his purchasing relationship with Blackman andNo. 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, approp riately relied on the low end of Brewer’s estimates to make a conserv at ive determination of the total quantity of crack cocaine that Blackman distributed to Brewer
over time. Se e Unit ed States v
. T ate, 822 F .3d 370, 373 (7th Cir

. 2016) (d is trict court may rely on reasonable estimation to determine relevant drug quantity ); United States v. Claybr ooks , 729 F .3d 699 , 707 (7th Cir

. 2013) (same). Certainly there were 1 inc onsistencies betw een Brewer’s testimony and his v arious 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-exami nation 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
evid en ce th at confirmed certain as pe ct s of Brewer’s te stim ony) , that Brew er w as credible. W e have no basis to disturb that finding. Se e T

at e, 822 F .3d 373 (noting deference we owe to district court’s credibility determinations).

By way of illustration, we note that had the distr ic t cour t relied upon 1 Brewer’s testimony regarding the daily am ou nts he purchased from Blackman in 2009 an d 2010, for example, it would have quickly arrived at a to tal drug quantity of ten kilograms orm ore of c rack co ca ine. T he court clearly was looking to the lo we r estimates that Brewer had venture d in earlier statements. The district court also excluded altogether the amounts Brewer te stified that he purchased from Blackman in 2008, which repre sented an earlier be ginning 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 w as ample ev idence to support the district court’s finding in this regard. For example (and our discussion on this point is by no means exhaustiv e), Brewer testified that in 2012, Blackman al mo st 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 th at Bl ackm an ha d sup plie d him wi th three different guns in 2011 for use in a disput e wi th a riv al gang over drug territory

. As we have discuss ed , Blackman’s dealings with Brew er co nstitute re lev ant conduct, and as Blackman himse lf 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 affirmativ ely connecting any of the firearm s that Brew er mentioned to his narcotics trafficking. But the commentary to the Guideline makes clear that a defendant’ s possession of a firearm w arrants the enhancement “unless it is clearly improbable that the wea pon w as connected with the offense.” § 2D 1. 1, comment. (n.11(A)). Blackman has cited nothin g in the record giving us reason to be lieve that it w as clearly improbab le 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 Ci r
. 2008). Moreover , Brewer testified that when Blackman carried a gun in his vehicle, he typically plac ed it either in the glove compartment or in an armrest, wh ic h happened to be the tw o places into which heNo. 15-2003 13
al so placed the narcotics he w as delivering to customer s lik e Brew er
. That alone suggests a connection betw een the firearms and his drug dealing. See, e.g. , United States v
. Rea, 621 F .3d 595, 606 (7 th Ci r
. 2010). As does supplying firearm s to a customer (Brew er) who w as 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 w as guilty of sentenc ing manipulation by virtue of having its CW purchase, and continue to purchase, crack cocaine from Bla ckman 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 sentenc ing 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 argume nt w as not one the district court w as required to address. This court has declined to recognize this as a v alid sentencing ar gu ment. See United Sta te s v
. Garcia, 79 F .3d 74, 76 (7th Cir

. 1996); see also United Stat es v
. V

allone, 698 F .3d 416, 495 (7th Cir

. 2012) (collecting cases), cert. granted & j. vacated on other grounds sub n om. Dunn
v
. United States , 133 S. Ct. 2825 (2013), reinstate d as modifi ed, 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 cou rt failed to address his challenge to the 18 :1 crack-to-powder-cocaine ratio turns out to be mistaken. Although it is true tha t 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 andcommitment order

. It is true that there remains criticism over the
cr ack/po wd er di sp arity

. Defense coun sel ar gu ed at sentencing that the then-Attorney General h i m s e l f h a d p e r s o n a l l y a d v o c a t e d f o r elimination of the disparity

. But that carries no extra weight in ev aluating the 18 U.S.C. § 3553(a) factors, no more than if a future Attor ney General, unable to turn a personal opinion into actual offici al policy or into actual statutory law

, opined that he or sh e personally believ ed that the curr ent 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, fo r some drug users, a stronger demand fo r crack
over powder

. That is not to say that ev en the current ratio is alw ays 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. W

e 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 atNo. 15-2003 15
966 (citing United States v
. Pap e, 601 F .3d 743, 747 (7th Cir

. 2010), and United States v
. Baker, 445 F .3d 98 7, 99 1-92 (7th Cir

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

. 20 05 ). The court’s written statement amplifies on its reasons fo r imposing the sentence it did and makes clear that the court considered Blackman’s objection to the crack-to-powder ratio and reje cted the argument on its merits. The court w as not obligated to say more than it did, particularly given the extent to which the argument, as Blackman’s counsel presented it,
w as more of a blanket policy challenge to the ra tio than an
ex position on why the ratio w orked a particular injustice in this case. Cf. United States v
. Morris , 775 F .3d 882, 886-88 (7 th Cir

. 2015) (defendant’s argument focused, inter alia, on fact that most of crack cocaine attributed to him w as counterfeit). D. Finally , Blackman argues that his Fifth and Sixth Am endment were violated because the relev ant sentencing findings were not made by a jury base d on proof bey ond a reasonable doubt but rathe r by a judge based on a simple pr ep on de ranc e of the ev id en ce. Bl a ckman make s thi s a r gu ment simply to preserv e it. He acknowledges that the precedents of both the Supreme Court and this court are squarely aga inst him on this point. See United States v
. O’Brien , 560 U.S. 218, 224, 130 S. Ct. 2169, 2174 (2010); United States v
. W atts , 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 an16 No. 15-2003 appropriate sentence. The court did not clearly err inhol ding Blackman responsible for an additional thr ee kilograms of
cr ac k cocaine or for the possession of a firearm during his relev ant co nduct. Nor did the court commit any procedural
er ror in resolving defendant’s arguments in mitigation. The sentence is AFFIRMED.