In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3425

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KEVYN TAYLOR,

Defendant-Appellant.

Appeal from the United States District Court 

for the Southern District of Illinois.

No. 08 CR 30061—J. Phil Gilbert, Judge.

ARGUED NOVEMBER 4, 2010—DECIDED MARCH 29, 2011

Before BAUER, MANION, and HAMILTON, Circuit Judges.

MANION, Circuit Judge. Kevyn Taylor was convicted

by a jury on six counts related to his participation in a

crack dealing operation. These included charges that he

possessed, distributed, and conspired to distribute crack

cocaine, as well as related firearms charges. He appeals

his conviction for distribution of crack cocaine, arguing

that there was insufficient evidence for a jury to find

beyond a reasonable doubt that he aided and abetted a
2 No. 09-3425

crack deal in October 2005. He also appeals the portion

of his sentence related to the drug convictions, arguing

that the district court over-calculated the relevant

amount of drugs and erred in enhancing his sentence

for obstruction of justice based on his trial testimony.

We affirm the judgment and the sentence.

I.

In 2005, the Bureau of Alcohol, Tobacco, Firearms, and

Explosives began an investigation into drug trafficking

activity by Byron Blake and his associates in East St.

Louis, Illinois. The investigation was code-named “Operation No Escape” in reference to Club Escape, a nightclub

owned by Blake and the home base for the enterprise.

Beginning in September of that year, confidential informants made drug purchases first from Ryan Ivory and

eventually from Blake himself. Later, in the Spring of

2006, the ATF tapped the phones of Blake and Taylor and

conducted surveillance of Blake and his associates. The

investigation culminated in the execution of several

search warrants, including one at 114 Blazier Drive in

Belleville, where Blake and Taylor were known to have

spent significant time.

In March 2009, Taylor was indicted on six counts

arising from Operation No Escape. Relevant on appeal are

Count 1—conspiracy to distribute over 50 grams of

crack cocaine—and Count 2—distributing more than

50 grams of crack on October 20, 2005, both in violation of
No. 09-3425 3

Count 3 charged possession with intent to distribute on 1

June 24, 2006 in violation of 21 U.S.C. §§ 841(a)(1) and

842(b)(1)(C); Count 4 charged possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C.

§ 924(c)(1)(A); Count 5 charged that Taylor was a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

Taylor does not appeal his conviction on these three charges.

21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii). At trial, the 1

government sought to prove Count 2 by showing

that Taylor aided and abetted the recorded controlled

buy that the government’s confidential informant,

Michael Woods, made from Blake on October 20. Woods

testified that he bought drugs from Blake on three occasions in October 2005. First, during the week of October 10,

Woods accompanied Ivory to purchase crack from

Blake, but stayed in the car while Ivory met Blake. Second,

on October 15, Blake arrived at Ivory’s house in a truck

driven by Taylor. While Woods waited, Ivory approached the vehicle. Blake handed four-and-a-half

ounces of crack to Taylor, who handed the drugs to Ivory.

Finally, on October 20, Woods purchased crack directly

from Blake while wired with audio- and video-recording

equipment. Again at Ivory’s house, Woods stood waiting

outside his car until Blake and Taylor arrived in a

black Ford Explorer that Taylor had rented several days

before. This time, Blake exited the truck and got into the

passenger side of Woods’s car, where the deal took place.

Ryan Ivory also testified at trial. He described the

events of October 20 similarly to Woods and testified that

Taylor drove the car he had observed “during that time
4 No. 09-3425

period,” but did not specifically identify Taylor as

being present on that day, nor mention the transaction

five days before. He also testified that Taylor would

often accompany Blake on deals and sometimes collect

money for him, but the only specific time periods he

mentioned were after the October 20 controlled buy.

To prove the conspiracy to distribute charges of Count 1,

the government pointed to the evidence of Taylor’s participation in the October 20 deal, and also introduced

selected audio recordings of phone calls between Blake

and Taylor that, according to the testimony of the case

agent, concerned the preparation and distribution of

crack cocaine. In one call, Taylor reported back to Blake

that one of his purchasers claimed that there was a problem with his “shake” and was unhappy because “he lost

about 18 out of his two and a quaker”; according to the

case agent this meant that the purchaser claimed to

have lost 18 grams out of 2 1/4 ounces (63 grams) of

powder cocaine when he tried to “cook” the powder

to convert it to crack, potentially the result of the

“shake”—the very powdery cocaine at the bottom of

a bag—being cut with baking powder. Ivory also

identified some of the recorded discussions as

involving crack production.

Taylor testified in his own defense. He denied ever

having met Woods and denied that he had ever sold or

used cocaine or crack. He did, however, admit to

dealing marijuana, and attempted to explain away the

incriminating phone conversations with Blake as

relating solely to the production and sale of marijuana.
No. 09-3425 5

Strangely, no one appears to have sought to clarify what 2

the jury intended in its special verdict form.

He claimed that Blake would receive the marijuana in

bricks about the size of a hockey puck and use a

special machine to moisten the marijuana. The government called the case agent back to the stand, and he

rebutted Taylor’s testimony, stating that he had never

heard of applying baking soda to marijuana and that

other aspects of the recorded calls were inconsistent

with marijuana dealing.

The jury convicted Taylor on all counts. For Count 1, the

jury was asked to make special findings concerning the

quantity of the drugs involved. The verdict sheet asked

whether the offense involved more than 50 grams or, if

less than 50 grams, more than 5 grams. Inexplicably, the

jury answered “yes” to both questions.2

The presentence investigation report calculated that

Taylor was responsible for 396.7 grams of powder cocaine,

837 grams of crack cocaine, and 227 kilograms of marijuana—a total marijuana equivalency of 17,046 kilograms

under the sentencing guidelines. In response to an objection by the government, the PSR was amended to

include a two-level enhancement for obstruction of

justice, for a total offense level of 36. With a criminal

history category of I, this resulted in a guidelines range

of 188 to 235 months for Counts 1 and 2.

Regarding his relevant conduct, Taylor made a few

objections to the probation officer’s characterization of

the evidence and, much more significantly, argued that
6 No. 09-3425

the court should take into account the disparity in the

guidelines’ treatment of powder and crack cocaine, as

permitted by Kimbrough, and reduce the total marijuana

equivalency considerably, to 473.74 kilograms. He also

objected to the obstruction of justice enhancement

for perjury, arguing that such enhancements “put[] a

damper on anyone who wants to testify and who might

testify different from what the government says.” Taken

together, his objections would have reduced the base

offense level to 26, with a guideline range of 63 to 78

months’ imprisonment. The court adopted the PSR’s

recommendations in all respects. Regarding the disparity

between crack and powder cocaine, the court declined

to disregard the guidelines, stating that it would follow

the current guidelines ratios until amended. It also

found that Taylor committed perjury in his testimony

by going beyond a general denial of his involvement

and denying specific details of his involvement with

Blake, Ivory, and others. The court then gave concurrent below-guidelines sentences of 180 months on

Counts 1, 2, 3, and 5, plus the mandatory minimum of a

consecutive 60 months for his possession of a firearm in

furtherance of a drug trafficking crime. Taylor appeals

his conviction on Count 2 and his sentence on Counts 1

and 2.

II.

On appeal, Taylor argues that there was insufficient

evidence for the jury to find that he aided and abetted the

October 20 crack deal. Regarding his sentence, he makes
No. 09-3425 7

two arguments. First, he argues that at sentencing the

district court incorrectly considered as relevant conduct

an amount of drugs that exceeded the jury’s special

verdict. Second, he argues that the district court did

not make sufficient findings to support its application of

a two-level enhancement for obstruction of justice.

We review each issue in turn.

A. Sufficiency of the Evidence

Taylor argues that there was insufficient evidence

from which the jury could find beyond a reasonable

doubt that he aided and abetted Blake in the October 20,

2005, drug deal. In this, Taylor faces a nearly insurmountable hurdle: to prevail, he must show that “after

viewing the evidence in the light most favorable to the

prosecution, no rational trier of fact could have found

the essential elements of the offense beyond a reasonable doubt.” Unites States v. Spells, 537 F.3d 743, 746-47

(7th Cir. 2008). Further, in reviewing the sufficiency of

the evidence in a criminal conviction, we do not

reweigh the evidence or second-guess the jury’s credibility determinations. Id.

To establish that Taylor aided and abetted Blake, the

government needed to prove that Taylor associated

himself with the criminal activity and that he voluntarily

participated in it. United States v. Heath, 188 F.3d 916,

921 (7th Cir. 1999); United States v. Sewell, 159 F.3d 275,

278 (7th Cir. 1998). Association means that Taylor shared

in Blake’s criminal intent; participation means that

Taylor “affirmatively acted to make the venture succeed.”
8 No. 09-3425

Heath, 188 F.3d at 921. Taylor’s participation in the

October 20 drug sale is demonstrated in the record: not

only did he drive Blake to and from Ivory’s house,

but he also rented the vehicle used. Both of these are affirmative, voluntary acts that contributed to the success of

the drug deal. What Taylor contests is whether the government proved that he associated himself with the

deal: he argues that there was no evidence of anything

other than his presence at the scene of the drug deal, and

that mere presence is insufficient evidence to support a

conviction for aiding and abetting. While he does not

appeal his conviction for conspiracy to distribute crack,

he argues that all of the evidence of his involvement in

the conspiracy related to a period of time months after

the October 20 transaction and thus does not support

a reasonable inference that he had the necessary intent

to aid Blake at the time of the deal.

Taylor’s premise is correct—there is nothing illegal

about renting a car or using that car to give someone a

ride. And the mere fact that Taylor’s actions aided the

venture is not enough to support a conviction without

evidence that Taylor knew of the purpose of the

venture and intended to abet the drug deal. But Taylor

understates the evidence against him. The government

introduced enough evidence for the jury to find that

Taylor was not merely present. Most significantly,

Woods testified that just five days before the recorded

controlled buy, Taylor had driven Blake on another

controlled buy. At that first buy, moreover, Woods stated

that Taylor had actually handled the crack, passing it

from Blake to Ivory. This evidence alone refutes Taylor’s
No. 09-3425 9

mere presence theory: Taylor’s direct participation with

Blake in a crack deal five days prior, in a virtually

identical situation, permits the jury to infer that he

was not innocently driving Blake to and from Ivory’s

house, but instead that Taylor rented and drove the

Ford Explorer intending to assist Blake in distributing

crack. Accordingly, Taylor’s conviction for distributing

crack on October 20 stands.

B. Sentencing Challenges

Taylor also challenges two aspects of his sentence.

First, Taylor argues that, in light of the jury’s contradictory findings concerning the quantity of drugs, the

district court erred in finding that he was responsible

for more than 50 grams of crack. Although his argument

is difficult to follow, Taylor appears to contend that

by considering a quantity of drugs higher than that

found by the jury, the district court violated at least the

principles underlying Apprendi v. New Jersey, 530 U.S.

466 (2000). The government contends that Taylor

waived this argument by not raising it at any point in

the proceedings below.

Construing waiver principles liberally in Taylor’s

favor, it is possible that the failure to raise the argument

below was an oversight and not an obvious tactical decision, and thus merely a forfeiture that we review for

plain error. See United States v. Jaimes-Jaimes, 406 F.3d 845,

848-49 (7th Cir. 2005). But the district court did not err

at all, as a cursory glance at the statutory sentencing

scheme at the time shows. If the jury concluded that
10 No. 09-3425

Taylor was responsible for 50 or more grams of crack,

the statutory range would have been 10 years’ to life

imprisonment. 21 U.S.C. § 841(b)(1)(A)(iii). On the other

hand, if it concluded that Taylor was responsible for

more than 5 grams but less than 50, the range would

have been from 5 to 40 years’ imprisonment. Id.

§ 841(b)(1)(B)(iii). In fact, even if the jury had found that

Taylor was responsible for less than 5 grams, the

statutory maximum would have been 240 months. Id.

§ 841(b)(1)(C). Apprendi prohibits a sentence beyond the

maximum allowed by the facts found by the jury. But

Taylor’s reliance is misplaced: his sentence on the drug

counts was 180 months, and thus permitted by the jury

verdict of guilty regardless of the quantity of drugs

involved. Indeed, we have specifically held that the

special verdict of a jury concerning the amount of drugs

is irrelevant in such situations, because Apprendi

does not affect a sentence below the applicable statutory

maximum specified in 21 U.S.C. § 841(b)(1)(C). United

States v. Hernandez, 330 F.3d 964, 980 (7th Cir. 2003).

Second, Taylor argues that the district court erred in

applying a two-level enhancement for an obstruction

of justice. When reviewing an obstruction of justice enhancement, we review the underlying factual findings,

like all such findings, for clear error, “and we review

de novo whether those findings adequately support the

enhancement.” United States v. Vallar, 2011 WL 488877,

at *11 (7th Cir., Feb. 14, 2011) (quoting United States v.

Anderson, 580 F.3d 639, 648 (7th Cir. 2009)). Such an enhancement is appropriate where a defendant “willfully

obstructed or impeded or attempted to obstruct or
No. 09-3425 11

impede, the administration of justice,” U.S.S.G. § 3C1.1,

and perjury is a settled example of conduct that may

warrant an enhancement. Vallar, at *11. A defendant

commits perjury “if, while under oath, he gives false

testimony concerning a material matter with the willful

intent to provide false testimony, rather than as a result

of confusion, mistake, or faulty memory.” United States v.

Dunnigan, 507 U.S. 87, 94 (1993). When a defendant

objects to a sentencing enhancement arising from his

testimony, “a district court must review the evidence

and make independent findings necessary to establish a

willful impediment to or obstruction of justice, or an

attempt to do the same, under the perjury definition.”

Id. at 95.

In this case, the district court found that Taylor’s testimony went beyond a “general denial of his involvement

in the drug activity” and that he committed perjury by

making “specific denials regarding his involvement . . .

with Byron Blake and testimony of Ryan Ivory and others.”

Taylor argues that this finding is insufficient under

Dunnigan to establish that he committed perjury. It is

true that the district court did not address each element

of the perjury definition in isolation, but Dunnigan

does not require this: the district court’s determination

is sufficient if “the court makes a finding of an obstruction of, or impediment to, justice that encompasses all of

the factual predicates for a finding of perjury.” 507 U.S. at

95. Here, the district court’s straightforward finding of

perjury satisfies the definition of perjury. There is no

doubt that the court found that Taylor’s testimony was

false. And the materiality and willfulness of the false
12 No. 09-3425

statements are established with the court’s finding that

Taylor’s testimony went well beyond a simple denial of

guilt, contradicting specific details of the testimony of

Ivory and Woods and providing an elaborately detailed

explanation of why the recorded phone calls involved

marijuana, rather than crack. The district court’s factual

findings encompass all the elements of perjury and therefore adequately support an enhancement for obstruction

of justice.

III.

There was sufficient evidence from which a jury could

conclude beyond a reasonable doubt that Taylor knew

that he was aiding Blake in distributing crack on

October 20, 2005. Therefore, we AFFIRM the judgment of

the district court. The jury’s contradictory findings on the

special verdict form regarding the amount of drugs

involved are irrelevant because the ultimate sentence

was below the mandatory minimum for a conviction

for distributing any amount of crack. Further, the

district court made sufficient factual findings to support a two-level enhancement for obstruction of justice.

Therefore, we AFFIRM the sentence of the district court.

3-29-11