In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 05-3303 and 05-3336

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SHERMAN EMERSON AND WILLIAM E. INGRAM,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 04 CR 201—David F. Hamilton, Judge.

____________

ARGUED JANUARY 9, 2007—DECIDED SEPTEMBER 7, 2007

____________

Before BAUER, RIPPLE, and EVANS, Circuit Judges.

BAUER, Circuit Judge. Sherman Emerson and

William E. Ingram were already known to law enforcement

when a confidential informant, Edwin Douglas, contacted

Detective Kenneth Martinez of the Indianapolis Police

Department in November of 2004 about Ingram’s interest in committing “licks” or “drug rips”—robbing drug

dealers of their drugs. At that time, Ingram had prior

convictions for dealing in a sawed-off shotgun, criminal

confinement, receiving stolen property, and intimidation.

He and Emerson also had been charged with murder

arising from an earlier lick. The Indianapolis Police

Department referred the matter to federal authorities,
2 Nos. 05-3303 and 05-3336

who launched a sting operation that nabbed Ingram and

Emerson, as well as four other individuals. Only Ingram

and Emerson proceeded to trial, where a jury convicted

them of conspiracy to possess with intent to distribute

more than five kilograms of cocaine, in violation of

21 U.S.C. § 841(a)(1). The jury also convicted Ingram of

carrying a firearm in furtherance of a drug-trafficking

crime and being a felon in possession of a firearm, in

violation of 18 U.S.C. §§ 924(c) and 922(g), respectively.

Ingram and Emerson appeal their convictions and sentences. We affirm.

I. Background

A. The Sting

Posing as a dealer for a cocaine trafficker, Special

Agent Carlos Canino of the Bureau of Alcohol, Tobacco,

Firearms and Explosives met with Ingram at an Indianapolis hotel on November 19, 2004. The meeting was recorded by video and audio. At the meeting, “Carlos”

represented to Ingram that he was branching out on his

own in the cocaine-trafficking business and that his

boss was sending twenty kilograms of cocaine from

Miami to Indianapolis a few weeks later. Carlos invited

Ingram, Douglas, who had driven Ingram to the hotel, and

others to steal the cocaine: Carlos would receive 10 kilos;

the other 10 kilos would go to Douglas, Ingram, and their

associates.

Ingram is heard on the surveillance tape discussing his

interest in committing the robbery. He also described his

plan for the robbery. Ingram explained to Carlos that he

would put together a crew of six “killers,” who would be

armed and wearing masks. Ingram further stated that

he carried a “9,” or 9 mm pistol, and that he kept 17 shots.

He considered the robbery of 20 kilos of cocaine a “lifetime
Nos. 05-3303 and 05-3336 3

opportunity,” stating that he had been planning such a

robbery for over two years. He even informed Carlos

that he had committed a similar robbery a week earlier.

Before the meeting ended, Ingram agreed to return to the

hotel the following night so that Carlos could meet

Ingram’s associates and they could continue to plan the

lick.

Driven by Douglas, Ingram returned to the hotel the

following night. Also present for the meeting were Carlos,

defendant Emerson, Deandre Douglas (“D. Douglas”), and

Roderick Nelson. Like the meeting the previous night, this

meeting was monitored and videotaped. For the benefit

of everyone present, Ingram described the plan: there

were 20 “birds,” or kilos, of cocaine; there “would be six of

us going in;” and everyone would be masked and armed.

They would put the Mexicans on their backs, tie them up,

and take the 20 birds. Each person who participated

would receive a “bird.” He also said that they knew how

to do robberies because they had done them before.

Emerson asked when the lick would occur and whether

the warehouse in which the cocaine was being stored

would be left open. He also expressed concern that he

could not participate in the lick because he did not have a

“heater,” or gun. When Carlos asked if anyone had any

questions, Emerson responded, “I’m used to it, I ain’t got

no questions.” Carlos also asked Ingram if those present

constituted the team. Ingram replied that there might

be one more and that he had wanted to bring his guys

to the meeting so that they could meet him, Carlos.

As the meeting was ending, Carlos informed everyone

that he was returning to Miami the next day and that he

would be back in Indianapolis two weeks later to await

the shipment of cocaine. Carlos and Ingram then made

arrangements for Carlos to contact Ingram when he

returned to Indianapolis.
4 Nos. 05-3303 and 05-3336

Between November 20 and December 4, 2004, Douglas

recorded conversations between himself, Ingram, and

others, including a conversation that occurred on December 2 between himself, Ingram, and Emerson. During this

conversation, Ingram informed Emerson that the other

participants in the “Carlos robbery” did not want Emerson

involved because of statements purportedly made by

Emerson that he wanted to kill the Mexicans who were

delivering the cocaine. Emerson also had not yet obtained

a gun. Ingram told Emerson that he would not be allowed

to participate in the lick itself but that he, Emerson,

would nonetheless receive some of the cocaine from the

lick.

On December 4, Ingram, Douglas, D. Douglas, Daniel

Cannon, and Nelson met Carlos at the same hotel. Again,

this meeting was monitored and videotaped. The group

plotted their final strategy for the robbery. Carlos informed everyone that his cocaine supplier would contact

him the next morning with the location of the delivery.

He instructed the group that they would follow him to a

storage facility to pick up a vehicle and then follow him to

the delivery site. Carlos said that he had rented a hotel

room at a Lee’s Inn that night and directed everyone to

stay there that night or to arrive there by early morning

so that they would be ready when he received the call

from his supplier. He gave Douglas a key to the hotel

room.

The following morning, Carlos met Ingram, Douglas, D.

Douglas, Mann, Cannon, and Stephan Coleman at the

Lee’s Inn. They told Carlos that they were ready for the

robbery. Carlos led Ingram and the others to a storage

facility, where he separated himself from the others

and gave an arrest signal. At the signal, Ingram and the

others were arrested. Emerson was arrested at his home

later.
Nos. 05-3303 and 05-3336 5

A search was conducted of the van that Mann had driven

with Cannon and Douglas as passengers. The search

uncovered four guns, ski masks, and duct tape. Later,

Ingram and Mann had a conversation while they were

inside a U.S. Marshal Service transport van. Without their

knowledge, the conversation was recorded. During the

conversation, Mann asked Ingram how many heaters were

in the gym bag. Ingram responded, “1, 2, 3, it should have

been 3.” Ingram also said that he had thrown away a

mask and stocking cap once it was apparent that the

police were there. He also spoke of having obtained a gun

from “Dre,” i.e., Mann.

B. District Court Proceedings

At trial, the government’s evidence consisted primarily

of Agent Canino’s testimony and videotapes of the meetings at the hotel. Over the defendants’ objections, the

government also introduced the tape of the December 2

conversation between Douglas, Ingram, and Emerson and

the recording from the U.S. Marshal Service transport van.

Emerson did not testify or introduce any evidence in his

defense. Ingram asserted an entrapment defense, claiming

that Douglas had coerced him to participate in the robbery. The jury rejected Ingram’s defense, finding Ingram

and Emerson guilty on the conspiracy count and Ingram

guilty of carrying a firearm in furtherance of a drugtrafficking crime and being a felon in possession of a

firearm.

At his sentencing, Emerson objected to an upward

adjustment of his offense level for possession of a weapon.

He argued further that his offense level required a downward adjustment because his role was minor or minimal.

Overruling both objections, the district court sentenced

Emerson to 327 months of incarceration. At a separate

hearing, the district court sentenced Ingram, who qualified
6 Nos. 05-3303 and 05-3336

as a career offender, to a total of 660 months of incarceration. Ingram and Emerson filed timely appeals, which

we consolidated.

II. Analysis

Ingram and Emerson raise a number of challenges to

their convictions and sentences. Emerson contends that

the district court erred in denying his motion for judgment

of acquittal, arguing that the government’s evidence was

insufficient as a matter of law to support his conviction

for conspiracy. Both Ingram and Emerson argue that

the district court erred in denying their motion for a

mistrial after the government elicited testimony from

Detective Martinez about their involvement in the

earlier drug lick that resulted in a murder. They argue

that such testimony, coupled with the district court’s

failure to give any curative instruction to the jury, deprived them of their right to a fair trial. Ingram and

Emerson also argue that the district court erred in admitting the December 2, 2004 recording of the conversation

between Douglas, Ingram, and Emerson and the recording

from the U.S. Marshal transport van. Separately, Emerson

challenges his sentence on the grounds that it was

error for the district court to add a two-point enhancement to his offense level for possession of firearms and

to decline to reduce his offense level based on his minor

role in the offense. Ingram challenges the reasonableness

of his sentence. We address each contention in turn.

A. Sufficiency of Evidence Against Emerson

Emerson argues that the district court erred in denying

his motion for judgment of acquittal because the evidence

was insufficient to support his conspiracy conviction. He

argues that the evidence instead showed that the mem-
Nos. 05-3303 and 05-3336 7

bers of the conspiracy rejected him and that he repudiated any further interest in them when confronted by

this rejection. Our review of the district court’s denial of

a motion for judgment of acquittal is de novo. United

States v. Romero, 469 F.3d 1139, 1151 (7th Cir. 2006).

Emerson faces an uphill battle in his challenge to the

sufficiency of the evidence. This is because “[w]e must

determine 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.” Id. (internal

quotations and citations omitted).

Viewing the evidence in this light, Emerson cannot

sustain his burden. To prove a conspiracy under 21 U.S.C.

§ 846, the government must prove “(1) two or more people

agreed to commit an unlawful act[;] and (2) the defendant

knowingly and intentionally joined in the agreement.”

United States v. Johnson, 437 F.3d 665, 675 (7th Cir. 2006)

(quoting United States v. Gardner, 238 F.3d 878, 879 (7th

Cir. 2001)).

The government presented sufficient evidence of Emerson’s involvement in the conspiracy. The videotape of the

meeting on November 20 at the hotel in Indianapolis

showed Emerson asking questions about the plans for the

robbery, e.g., when the lick would take place and whether

the warehouse would be open, and voicing his concerns

about getting a firearm for the robbery. When Carlos asked

if those present in the room constituted the team for the

robbery, Ingram said that there might be one more and

that he had wanted to bring his guys to the meeting to

introduce them to Carlos. He did not exclude Emerson

from the team, nor did Emerson exclude himself. To the

contrary, Emerson said that he did not have any questions about the robbery in response to Carlos’s invitation

for questions. In fact, according to Emerson, he was “used

to it . . . .”
8 Nos. 05-3303 and 05-3336

Even after Emerson was benched by Ingram and not

allowed to participate in the actual robbery because of the

other participants’ concerns that he, Emerson, was trigger

happy, he remained a member of conspiracy: he stood to

receive a portion of the cocaine recovered during the

robbery and did not engage in any overt act to withdraw

from the conspiracy. “[W]ithdrawal requires an affirmative act on the part of the conspirator. He must either

confess to authorities, or communicate to each of his

conspirators that he has abandoned the conspiracy and its

goals. . . . Mere inactivity is not sufficient. . . .” United

States v. Maloney, 71 F.3d 645, 654-55 (7th Cir. 1995)

(internal quotations and citations omitted). There is

no evidence that Emerson confessed to authorities or

communicated to the other members of the robbery team

that he had renounced the goals of the conspiracy. That

the other members of the conspiracy did not want Emerson

to participate in the actual robbery is not sufficient

to constitute withdrawal, particularly where Emerson

was to benefit from the proceeds of the robbery. The

district court did not err in denying Emerson’s motion for

judgment of acquittal.

B. Evidence of Involvement in Previous Drug Lick

As part of his entrapment defense, Ingram claimed that

Detective Martinez had targeted him unfairly and testified

to that effect. Ingram testified that he had known Detective Martinez since 2001 and that Martinez was present

when Ingram was arrested in connection with the present

case. Ingram called Detective Martinez as a witness,

asking him how he first came to know Ingram. During

cross-examination, the government elicited testimony

from Detective Martinez about a murder case arising

from a drug lick in which both Emerson and Ingram

were charged. While not mentioning Emerson and Ingram
Nos. 05-3303 and 05-3336 9

by name, the government’s question referenced “two

individuals who are in this courtroom” as being charged in

connection with that murder case. The charges were

dismissed when a key witness “passed away.” Ingram and

Emerson both objected and moved for a mistrial based

on this testimony. The district court overruled their

objections and denied their motions, ruling that Ingram’s

entrapment defense opened the door to this testimony

because it was relevant to the issue of his predisposition

to commit the crime charged but that such evidence

was not admissible as to Emerson. We review the denial

of a motion for a new trial for an abuse of discretion.

United States v. Holt, 486 F.3d 997, 1001 (7th Cir. 2007).

Pursuant to Federal Rule of Evidence 404(b), “[e]vidence

of other crimes, wrongs, or acts is not admissible to prove

the character of a person to show action in conformity

therewith,” but may be admissible for “other purposes,

such as proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident.” Before such evidence is admitted:

the court must determine whether (1) the evidence is

directed toward establishing a matter in issue other

than the defendant’s propensity to commit the crime

charged, (2) the evidence shows that the other act is

similar enough and close in time to be relevant to the

matter in issue, (3) the evidence is sufficient to support a jury finding that the defendant committed

the similar act, and (4) the probative value of the

evidence is not substantially outweighed by the danger

of unfair prejudice.

United States v. Wilson, 31 F.3d 510, 514-15 (7th Cir.

1994) (citing cases). Rule 404(b) also allows the government to introduce evidence of other bad acts in order to

show predisposition when the defendant raises an entrapment defense. See United States v. Higham, 98 F.3d 285,

292 (7th Cir. 1996).
10 Nos. 05-3303 and 05-3336

By asserting an entrapment defense, Ingram placed at

issue his predisposition to participate in drug licks. See

United States v. Theodosopoulos, 48 F.3d 1438, 1444 (7th

Cir. 1995) (“The lack of predisposition is the principal

element in the entrapment defense.”). In doing so, he

opened the door to evidence of his prior involvement in

drug licks and, specifically, the drug lick that resulted

in a murder. See United States v. Swiatek, 819 F.2d 721,

728 (7th Cir. 1987) (“Evidence of other bad acts is also

admissible to prove predisposition in an entrapment case,

because in such a case the defendant’s predisposition to

commit the charged crime is legitimately at issue.”). He

first raised the issue of the earlier murder case on Detective Martinez’s direct examination, asking Detective

Martinez about when he first came to know Emerson. The

government followed-up that line of questioning on crossexamination, eliciting the revelation that the previous

case was a murder arising from a drug lick. While such

evidence was certainly prejudicial to Ingram and his

entrapment defense, it was not unfairly so. And other

than offering the mere assertion, Ingram has not shown

that the district court abused its discretion in finding

the evidence sufficient to support a jury finding that he

had engaged in the earlier drug lick and murder.

In contrast, evidence of the murder in connection with

the drug lick was not admissible as to Emerson because

he did not raise an entrapment defense, and the government concedes as much. We conclude, however, that the

district court did not abuse its discretion by denying

Emerson’s motion for mistrial because the error was

harmless. “The test for harmless error is whether, in the

mind of the average juror, the prosecution’s case would

have been ‘significantly less persuasive’ had the improper

evidence been excluded.” United States v. Owens, 424 F.3d

649, 656 (7th Cir. 2005) (quoting United States v. Eskridge,

164 F.3d 1042, 1044 (7th Cir. 1998)). Here, as discussed
Nos. 05-3303 and 05-3336 11

above, the record contained ample evidence from which a

rational fact-finder could convict Emerson of conspiracy

beyond a reasonable doubt. Emerson is seen and heard on

videotape participating in the planning of the robbery. The

jury also heard a recording of the telephone conversation between Ingram, Emerson, and Douglas in which

Ingram informed Emerson that he could not participate

in the robbery itself but would nonetheless receive some

of the cocaine. Additionally, in its final instructions to

the jury, the district court cautioned the jury that it

was not to consider evidence of the charges brought and

dismissed against Ingram (in connection with the murder)

against Emerson at all. This instruction cured any prejudice caused by the reference to the “two individuals” in

the courtroom involved in the previous drug lick, as juries

are presumed to follow instructions. United States v.

Jones, 248 F.3d 671, 676 (7th Cir. 2001). We conclude that

a rational jury would have found Emerson guilty absent

the error.

C. Admission of Recordings

Emerson and Ingram challenge the admission of the

audio tape of the December 2, 2004 conversation between

Ingram, Emerson, and Douglas and the recording of

the conversation between Ingram and the other co-conspirators that occurred in the U.S. Marshal transport van. At

trial, the district court overruled their foundation objections—the government’s failure to authenticate the tapes

before offering them into evidence—to the admission of

the tapes. We review the district court’s evidentiary

rulings for an abuse of discretion. United States v. Luster,

480 F.3d 551, 556 (7th Cir. 2007). Because we give great

deference to the trial judge’s evidentiary rulings, we will

not reverse unless the record contains no evidence on

which the trial judge rationally could have based its
12 Nos. 05-3303 and 05-3336

decision. United States v. Gajo, 290 F.3d 922, 926 (7th Cir.

2002).

“Before a tape recording may be properly admitted at

trial, Federal Rule of Evidence 901(a) requires the government to offer ‘evidence sufficient to support a finding

that the [tape] in question is what its proponent claims.’ ”

United States v. Eberhart, 467 F.3d 659, 667 (7th Cir.

2006) (quoting United States v. Westmoreland, 312 F.3d

302, 311 (7th Cir. 2002)). The government satisfies this

requirement by offering clear and convincing evidence

that the proffered tape is a true, accurate, and authentic

recording of the conversation between the parties. Id.

The government may meet this burden by offering evidence

establishing the tape’s chain of custody or the testimony of

an eyewitness that the recording accurately reflects the

conversation that he or she witnessed or evidence establishing the chain of custody. Id.

With respect to the audio tape of the December 2, 2004

conversation, the government offered the testimony of

Detective Martinez. Detective Martinez explained that he

gave Douglas a recording device at 8:24 p.m., prior to a

meeting with Ingram and Emerson. Detective Martinez

testified that he turned on the device before he gave it

to Douglas, who did know how to turn the device on or

off. Douglas returned the device to Detective Martinez at

10:36 p.m. Detective Martinez stated that he listened to

the tape and was familiar with the voices recorded on the

tape: Ingram’s, Emerson’s, and Douglas’s. Detective

Martinez conceded, however, that he did not personally

monitor the communications on the tape as they were

recorded and that he could not verify whether the tape

had been altered or whether the recorder had been turned

off for periods of time while it was in Douglas’s possession.

Pursuant to an order of the district court, the tape was

redacted, resulting in a recording that was shorter than

the time period that had elapsed between when Douglas
Nos. 05-3303 and 05-3336 13

received the device and when he returned it to Detective

Martinez.

It is questionable whether Detective Martinez’s testimony alone was sufficient to establish by clear and convincing evidence the authenticity of the December 2 tape

recording. In the recent decision in United States v.

Eberhart, this Court found problematic the admission of

an audio tape where the evidence of the tape’s authenticity consisted of the testimony of an agent that he had

equipped a confidential informant with a recording

device before the conversation, that he had removed the

recording device after the conversation, and that the

voices on the tape were the defendant’s and confidential

informant’s. 467 F.3d at 668. In that case, the court was

reviewing the admission of the tape under a plain error

standard, concluding that the defendant had failed to

show that the error in admitting the tape was obvious

and that it affected his substantial rights. Id.

In this case, the district court had evidence in the form

of Detective Martinez’s testimony establishing the location of the recording device, that Douglas did not know

how to turn the device on or off, and that the voices on the

tape were those of Ingram, Emerson, and Douglas. In light

of such evidence, we cannot say that the record was devoid

of evidence on which the district court rationally could

have based its decision. Additionally, neither Ingram

nor Emerson has asserted or provided evidence that the

tape was altered or that it is anything other that what

it purports to be. We therefore conclude that, because of

the deference owed to the district court in reviewing its

evidentiary decisions, the district court did not abuse its

discretion in admitting the audio tape of the December 2,

2004 conversation. See United States v. Welch, 945 F.2d

1378, 1383 (7th Cir. 1991) (“[T]he trial court’s ruling on

the admissibility of the tape will not be overturned on
14 Nos. 05-3303 and 05-3336

appeal absent extraordinary circumstances.”) (citations

omitted).

We likewise find that the district court did not abuse

its discretion by admitting the audiotape of the conversation of Ingram and his co-conspirators that occurred in

the U.S. Marshal transport van. Deputy U.S. Marshal

John Pappas testified that after he placed Ingram, Mann,

D. Douglas, Coleman, and Cannon inside the transport

van, he turned on a recording device. The device recorded

the conversations of Ingram and the others, including

Ingram’s comments about the number of guns in the

gym bag and his disposal of a mask and stocking cap.

Deputy Pappas testified that he did not listen to the

conversations as they were recorded. Detective Ron Gray

testified that Deputy Pappas gave him the tape at the

ATF office later that day, he listened to the original

recording and the cassette copy that was made, and there

were no alterations or deletions to the tape. Based on this

testimony, the district court had some evidence to authenticate the recording and therefore did not abuse its discretion in admitting the audiotape.

Moreover, as discussed previously, the evidence against

Ingram and Emerson was overwhelming. To the extent

that any error can be ascribed to the admission of

the audiotapes, the error was harmless. The recordings of

the November 19 and 20 meetings were sufficient to

show the existence of a conspiracy to obtain 20 kilos of

cocaine and Ingram’s and Emerson’s membership in the

conspiracy beyond a reasonable doubt.

D. Emerson’s Sentence

With regard to his sentence, Emerson challenges the

district court’s application of a two-level enhancement for

possession of a weapon and the denial of a downward
Nos. 05-3303 and 05-3336 15

adjustment for his minor role in the offense. Our review of

both challenges is for clear error. See United States v.

Luster, 480 F.3d 551, 557 (7th Cir. 2007) (sentencing

court’s fact-finding on the weapon’s enhancement is

reviewed for clear error); United States v. SandovalVasquez, 435 F.3d 739, 745 (7th Cir. 2006) (sentencing

court’s denial of a minor participant adjustment is reviewed for clear error). We find no clear error with regard

to Emerson’s sentence.

1. Firearm Enhancement

Emerson contends that the district court erred in

applying a weapons enhancement to his offense level

pursuant to § 2D1.1(b)(1), an argument he failed to

raise first in the district court. Our review is therefore

for plain error, but we find no error here.

“Section 1B1.3(a)(1)(B) makes clear that defendants

can also be on the hook for firearms possessed by their coconspirators so long as such possession was reasonably

foreseeable.” United States v. Artley, ___ F.3d ___, 2007 WL

1598108 n.5 (7th Cir. June 5, 2007) (quoting Luster, 480

F.3d at 558). The record was replete with evidence that

firearms were involved in the drug lick. Not only

was Emerson himself heard on tape expressing his concerns about not being able to obtain a gun in time for the

lick, Ingram is heard discussing his 9 mm “heater” and

explaining to those present at the November 20 meeting,

including Emerson, that everyone would be armed during the robbery. Such evidence established that it was

clearly foreseeable to Emerson that his co-conspirators

would have firearms in their possession when committing

the lick. Based on this record, the district court did not

err in applying the two-level firearm enhancement to

Emerson’s sentence.
16 Nos. 05-3303 and 05-3336

2. Role in Offense

The Sentencing Guidelines provide for a two-level

decrease in offense level when the defendant is a “minor

participant” in the offense. Sandoval-Vasquez, 435 F.3d

at 745. The relevant commentary defines “minor participant” as a defendant “who plays a part in committing the

offense that makes him substantially less culpable than

the average participant” and “who is less culpable than

most other participants, but whose role could not be

described as minimal.” Id. A “minimal participant,” a

defendant who is plainly among the least culpable of

those involved, may receive a four-level downward decrease in offense level. U.S.S.G. § 3B1.2 comment (n. 1).

The defendant must show by a preponderance of the

evidence that he is entitled to either adjustment.

In rejecting Emerson’s request for a downward adjustment for his role, the district court explained that while

Emerson did not play a leadership or managerial role

in the planned robbery, the role that he had agreed to

play was neither minor nor minimal: “He agreed to go in

and was prepared to go in with a gun, ready to carry out

the robbery and ready to use the gun, if needed.” The

district court also recognized that Emerson was to receive a portion of the cocaine recovered during the lick

despite not being allowed to participate in the robbery.

He stood to profit from the conspiracy without having to

perform the robbery itself, which does not suggest that

he was less culpable than the others. In any event, while

it is possible that the district court could have found

Emerson to be less culpable than his co-conspirators who

were seized in the storage facility while attempting the

drug lick, the district court did not do so, and Emerson has

not shown that this was clear error.
Nos. 05-3303 and 05-3336 17

E. Ingram’s Sentence

The district court sentenced Ingram to a total of 660

months’ imprisonment: 600 months’ imprisonment on the

conspiracy count to run consecutively with 60 months’

imprisonment on the firearm possession count, plus a

concurrent term of 120 months’ imprisonment on the felon

in possession count. Conceding that his conviction on the

conspiracy count qualified him as a career offender under

U.S.S.G. § 4B1.1, which put him in an advisory guideline range of 360 months to life, he argues that his sentence does not conform to the sentencing factors specified

in 18 U.S.C. § 3553(a). He asserts that his sentence is

greater than necessary to comply with the purposes of

§ 3553(a)(2); that his sentence is disproportionately

severe when compared with the average sentence imposed on career offenders sentenced around the country

in drug-trafficking cases; and that it is more than is

necessary to afford adequate deterrence and to protect

the public from him in the future.

Our review of the sentencing court’s application of the

§ 3553(a) sentencing factors is deferential. United States v.

Jung, 473 F.3d 837, 844 (7th Cir. 2007). “Post-Booker, a

district court must engage in a two-part sentencing

procedure: (1) properly calculate the Guidelines sentence;

and (2) consider the sentencing factors set forth in 18

U.S.C. § 3553(a) to arrive at a reasonable sentence.”

United States v. Holt, 486 F.3d 997, 1004 (7th Cir. 2007).

The district court is not required to make findings as to

each § 3553(a) factor; instead, “[i]t is enough that the

record confirms meaningful consideration of the types of

factors that § 3553(a) identifies.” United States v. Laufle,

433 F.3d 981, 987 (7th Cir. 2006). “[A]ny sentence that

is properly calculated under the Guidelines is entitled to a

rebuttable presumption of reasonableness.” United

States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). See

Rita v. United States, ___ U.S. ___, 127 S. Ct. 2456 (June
18 Nos. 05-3303 and 05-3336

21, 2007) (noting that the presumption of reasonableness applies only on appellate review).

In this case, the record shows that the district court

considered carefully the § 3553(a) factors, cogently explaining its reasoning for the sentence imposed:

“The offense was a conspiracy to possess with intent to

distribute and to distribute 20-kilograms of cocaine, to

distribute that material in the community where it

tears up individual lives, families and neighborhoods . . . .

The conspiracy was to go forward and obtain this material

with guns.” The district court noted that the offense was

not even a typical drug distribution conspiracy: “This was

a conspiracy to engage in conduct that was far more

dangerous to carry out, an armed robbery of victims who

in all likelihood would themselves be armed.” Had the

robbery been what Ingram and his co-conspirators expected, the district court explained, “[c]hances are that

this robbery would have launched further retaliation

and further violence in the community. . . .”

The district court also explained that Ingram was an

organizer and leader of the conspiracy and his long

criminal record showed “violence, abuse, bullying of those

who are weaker and not armed. They show someone

who has no respect for the law, civilization that binds us

together, someone who is constantly making threats.”

Comparing Ingram’s sentence with the sentences of the

other defendants, the district court recognized that

Ingram’s sentence was heavier but justified by his role

as leader and organizer, his more serious criminal history,

and his failure to accept responsibility for his actions,

which four of his co-conspirators did. The district court

further justified the sentence, explaining that the most

important factors in arriving at the sentence were the

need to protect the public from future crimes committed

by Ingram and the need to deter him and others from

future criminal conduct. We are satisfied with the dis-
Nos. 05-3303 and 05-3336 19

trict court’s consideration of the § 3553(a) factors in

imposing Ingram’s sentence and will not disturb its ruling.

III. Conclusion

For the foregoing reasons, Ingram’s and Emerson’s

convictions and sentences are AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-7-07