In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 15-2691

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MELVIN R. THOMAS, also known as

MELVIN R. THOMPSON,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 3:12-cr-00155-wmc-1 — William M. Conley, Chief Judge.

____________________

ARGUED SEPTEMBER 16, 2016 — DECIDED JANUARY 10, 2017

____________________

Before POSNER, RIPPLE, and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge. Melvin Thomas was indicted by a 

grand jury on one count of conspiracy to possess, with intent 

to distribute, a mixture or substance containing heroin, in violation of 21 U.S.C. §§ 841(a)(1), 846; and two counts of possessing, with intent to distribute, a mixture or substance containing heroin, in violation of 21 U.S.C. § 841(a)(1). He 

pleaded not guilty, and the case proceeded to trial. At the end 
2 No. 15-2691

of the Government’s case, Mr. Thomas moved for a judgment 

of acquittal. The district court denied the motion. A jury later 

found Mr. Thomas guilty of the charged offenses, and the 

court subsequently sentenced him to 216 months’ imprisonment. Mr. Thomas timely appealed. He now challenges the 

sufficiency of the evidence to support his conspiracy conviction. He also maintains that the district court erred in imposing a sentencing enhancement for maintaining a drug house.

We conclude that there is sufficient evidence to sustain the 

conspiracy charge and that the evidence supports the district 

court’s imposition of the sentencing enhancement. Accordingly, we affirm the judgment of the district court.

I

BACKGROUND

While investigating a heroin dealer named Domingo 

Blount, Drug Enforcement Agency (“DEA”) agents intercepted, through a court-authorized wiretap, Blount’s incoming and outgoing telephone calls. Among the intercepted calls 

were twenty-nine calls from Blount’s number to Mr. Thomas. 

Discovery of these calls eventually led to the DEA’s investigating Mr. Thomas’s activities. Through subsequent surveillance, the agents in Chicago observed several meetings between Blount and Mr. Thomas. 

On November 9, 2010, the DEA learned that Mr. Thomas 

was traveling back to Wisconsin from Chicago and that he 

was carrying heroin. Madison police officers conducted a traffic stop of the vehicle. Anita Andrews was the driver; 

Mr. Thomas was the passenger. The officers searched the car 

and patted Andrews down, but did not find any contraband 
No. 15-2691 3

and therefore allowed the car to proceed. Andrews later testified that the officers had failed to detect any drugs because 

she had concealed them in her genital area.

On December 10, 2010, officers stopped another vehicle arriving in Madison from Chicago. Porcha Bell was driving; 

Mr. Thomas was the passenger. When questioned, Bell admitted that, at Mr. Thomas’s request, she was concealing twentyfive grams of heroin in her vagina. She said that she had acquiesced to his request because Mr. Thomas had promised to 

buy her children Christmas presents and because she had 

feared that Mr. Thomas would leave her in Chicago if she refused. During this encounter, Mr. Thomas was arrested on a 

Wisconsin probation hold.

Shortly thereafter, agents conducted a consent search at 

Andrews’s home. During the course of that search, the agents 

found a digital scale, a chemical substance used to cut or mix 

drugs,1 and twenty-two sandwich baggies with the corners 

cut out.2 After seizing these items and questioning both Andrews and two other adults then present in the home, the officers left.

Later that morning, agents listened to Mr. Thomas’s postarrest jail calls. Mr. Thomas’s first call was to his mother. In 

this phone call, Mr. Thomas asked his mother to call Andrews 

 1 Officers found Inositol, a substance often used as a cutting agent with 

cocaine and heroin. Appellant’s Br. 6; see R.244 at 185–86.

2 Detective Dorothy Rietzler explained that the cut corners were significant because drug dealers will “put the substance into the corner [of the] 

baggie, subsequently knot it off ... and then that corner is cut [out].” R.248 

at 55. This allows dealers to use one sandwich bag to package two units of 

product.
4 No. 15-2691

and to tell her to get rid of his “stash” and to get the cash out 

of the Cadillac that he had parked at her residence. Based on 

this call, agents seized the automobile. They found approximately $2,460 in the glove box of the car. No drugs were 

found.

Based on this evidence, Mr. Thomas was indicted by a 

grand jury on one count of conspiracy to possess, with intent 

to distribute, a mixture or substance containing heroin; and 

two counts of possessing, with intent to distribute, a mixture 

or substance containing heroin. A three-day jury trial commenced on May 18, 2015.3 Andrews testified for the Government. In addition to the encounters already described, she testified that she had driven Mr. Thomas to Chicago on several 

occasions. After purchasing the heroin, the pair would return 

to Madison and either stop at the home of Mr. Thomas’s 

mother or drive directly to Andrews’s house. Testifying about 

the November 10, 2010 stop, Andrews stated that, during this 

stop, she had concealed heroin in her genital area because 

Mr. Thomas had told her to “[d]o this or I’ll knock you the f--

k out.”4

After the November 10 stop, Andrews’s relationship with 

Mr. Thomas soured. Andrews testified that she rarely saw Mr. 

Thomas after their breakup, although Mr. Thomas still kept 

personal items at her home. At trial, Andrews described Mr. 

Thomas as having “items there, but he was not—he was gone 

 3

The district court’s jurisdiction was predicated on 18 U.S.C. § 3231.

4

R.244 at 168.
No. 15-2691 5

all the time. I barely saw him.”5 When Mr. Thomas later testified, he also described the relationship as rocky.

Two law enforcement officers also testified at trial. A DEA 

agent, Terrence Glynn, discussed the wiretap on Blount’s 

phone and conversations involving Mr. Thomas. Detective 

Dorothy Rietzler of the Madison Police Department testified 

about the December 10, 2010 stop. Mr. Thomas does not dispute this testimony.

At the conclusion of the Government’s case, Mr. Thomas 

moved for a judgment of acquittal. The district court denied 

the motion stating, “I think the circumstantial evidence as 

such is so strong that I’m going to allow the case to proceed, 

although you’ve preserved your record and you can make 

what arguments you wish at the appropriate time in more detail.”6

The defense then called two witnesses: Porcha Bell and 

Mr. Thomas himself. Bell was subpoenaed to appear by both 

the Government and the defense at trial, but did not show 

up.7 However, the district court allowed defense counsel to 

play a recording of her testimony at Mr. Thomas’s state probation revocation proceedings.8 There, Bell recounted her version of the events of December 10, 2010, including that she 

 5

Id. at 169.

6

R.248 at 157.

7

Id. at 135–37.

8

Id. at 218–19.
6 No. 15-2691

had concealed drugs in her genital area at Mr. Thomas’s request.9

Mr. Thomas also took the stand. He offered a different explanation for his contact with Blount and his interaction with 

Bell. According to Mr. Thomas, he was purchasing medicinal 

marijuana, not heroin, from Blount.10 He admitted that he 

communicated with Blount, via text messages and telephone 

calls, but testified that those communications, which included 

references to selling drugs on “corners,” were referring only 

to marijuana and that Andrews did not help him with these 

sales.11 Mr. Thomas also testified that his relationship with 

Andrews was rocky because they were cheating on each 

other.12

Mr. Thomas also offered a wholly different explanation 

for his interaction with Bell on December 10. According to 

Mr. Thomas,

I was at—I had went to a party over in the 

Castille area and later that night my cousin Matt 

and Porcha Bell had showed up at this party. 

Matt had ended up going home with a chick, a 

female that he messing with, so I had ended up 

getting the van from him. And a little later after 

that, I had—I was getting ready to go home and 

Porcha Bell had asked me to drop her off and I 

 9

See R.202 at 7.

10 R.248 at 180–81.

11 Id. at 182, 185.

12 Id. at 168.
No. 15-2691 7

told Porcha Bell that since we both were heading in the same direction, on the east side, I told 

Porcha Bell that I would drop her off on the conditions that she drive to her destination and 

then I would drive home from there, which was 

to my house, Anita—me and Anita’s house. Because I didn’t want to drive because I had like 

four driving traffic tickets that I had owed 

money on.

I asked Porcha Bell did she have a driver’s

license and she told me yeah. So I let her drive. 

On my way home, she got off the beltline on 

Stoughton over on Pflaum Road and she didn’t 

have—she was driving without the headlights 

on, so we ended up getting pulled over for a 

traffic stop.[13]

Mr. Thomas asserted that he was unaware of the drugs in 

Bell’s possession. He “believe[d] that Detective Rietzler coerced her to say that those narcotics belong[ed] to [him] during the traffic stop.”14

The jury later found Mr. Thomas guilty on all counts, and, 

specifically determined that the conspiracy involved 100 

grams or more of heroin.15

 13 Id. at 170–71.

14 Id. at 175.

15 R.249 at 65–66.
8 No. 15-2691

The presentence report (“PSR”) recommended a two-level 

enhancement under U.S.S.G. § 2D1.1(b)(12) for maintaining a 

drug house.16 It further advised that Mr. Thomas qualified as 

a career offender under § 4B1.1(b)(1) because of his four prior 

felony convictions for controlled substance offenses.17

Mr. Thomas did not file written objections to the PSR, but at 

the sentencing hearing his counsel “maintain[ed] 

[Mr. Thomas’s] innocence and object[ed] to the factual portions and the full report.”18

The district court concluded that, because of the four prior 

felony controlled substance offenses, Mr. Thomas was a career offender. This determination resulted in an advisory 

guideline imprisonment range of 360 months to life. The court 

decided to impose a sentence of 216 months’ imprisonment. 

Mr. Thomas timely filed this appeal.19

II

DISCUSSION

A.

Mr. Thomas first submits that the district court erred in 

denying his motion for a judgment of acquittal. He maintains 

that the record contains insufficient evidence to support his 

conspiracy conviction.

 16 R.202 at 14.

17 Id. at 15.

18 R.246 at 3.

19 Our jurisdiction is predicated on 28 U.S.C. § 1291.
No. 15-2691 9

We review de novo the district court’s denial of the motion 

for judgment of acquittal. United States v. Fassnacht, 332 F.3d 

440, 447 (7th Cir. 2003). In reviewing the district court’s decision, we must assess “the evidentiary basis for the jury’s verdict in the light most favorable to the government.” Id. (internal quotation marks omitted). We will uphold the conviction 

if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States 

v. Granados, 142 F.3d 1016, 1019 (7th Cir. 1998) (internal quotation marks omitted) (quoting Jackson v. Virginia, 443 U.S. 

307, 319 (1979)). We will overturn the jury’s verdict only when 

the record is “devoid of evidence from which a reasonable 

jury could find guilt beyond a reasonable doubt.” United 

States v. Campbell, 770 F.3d 556, 568 (7th Cir. 2014). A defendant challenging the sufficiency of the evidence against him 

therefore “faces a formidable burden.” United States v. Goree, 

756 F.3d 522, 525 (7th Cir. 2014) (internal quotation marks 

omitted).

Mr. Thomas contends that the Government “failed to 

prove he had any coconspirators.”20 The Government maintains, however, that Andrews was Mr. Thomas’s coconspirator. Mr. Thomas counters that Andrews’s participation does 

not rise to the level of conspiratorial conduct because: (1) she 

did not knowingly agree with Mr. Thomas; and (2) she did 

not receive any payment or consideration for her role.

To convict a defendant on a conspiracy charge, the Government must prove that “(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. 

 20 Appellant’s Br. 17.
10 No. 15-2691

Vaughn, 722 F.3d 918, 928 (7th Cir. 2013). Specifically, a drugdistribution conspiracy charged under 21 U.S.C. § 846 “requires proof that the defendant knowingly agreed—either implicitly or explicitly—with someone else to distribute drugs.” 

United States v. Johnson, 592 F.3d 749, 754 (7th Cir. 2010). Although an agreement is sometimes express, an assessment of

circumstantial evidence is frequently necessary. United States 

v. Pulgar, 789 F.3d 807, 813 (7th Cir. 2015). “Importantly, there 

is no rigid list or formula to prove a conspiracy in the absence 

of an express agreement.” Id.; United States v. Brown, 726 F.3d 

993, 1002 (7th Cir. 2013) (“[O]ur list of example considerations 

may make it sound as if we are checking off boxes and only 

looking for specified indicia. That is not the case.”). The court 

must undertake a fact-specific inquiry. In short, we employ a 

totality-of-the-circumstances approach and “take into account 

all the evidence surrounding the alleged conspiracy and make 

a holistic assessment of whether the jury reached a reasonable 

verdict.” Brown, 726 F.3d at 1002.

An examination of the record makes clear that the jury was 

entitled to conclude that Andrews was a knowing coconspirator. She drove Mr. Thomas to and from Chicago to buy heroin 

from Blount; by doing so she clearly assisted in accomplishing 

the objective of the conspiracy. She also rented vehicles for the 

trips. Indeed, Andrews testified that she drove Mr. Thomas to 

locations to make drug deliveries.21 On at least one occasion, 

Andrews packaged heroin for Mr. Thomas when he called her 

and said, “Hurry up, I need to you do [sic] something for 

me.”22 Even if Mr. Thomas was angry when this request was 

 21 R.244 at 179–80.

22 Appellant’s Br. 6; R.244 at 178.
No. 15-2691 11

made, that does not overcome the fact that “the jury could 

have easily concluded” that both parties “embraced the conspiracy’s objectives.” United States v. James, 540 F.3d 702, 708 

(7th Cir. 2008).

Mr. Thomas also submits that Andrews cannot be a coconspirator because she did not gain any benefit for her role. But 

“[a] criminal without a profit motive is still a criminal as long 

as all elements of the crime are established.” United States v. 

Hunte, 196 F.3d 687, 691 (7th Cir. 1999). We already have determined that a jury could have concluded reasonably that 

Andrews was a coconspirator; any lack of profit does not alter 

that status.

B.

Mr. Thomas also maintains that the district court erred in 

imposing a sentencing enhancement for maintaining a drug 

house.

We first must address whether Mr. Thomas adequately 

raised the challenge to the PSR’s recommendation that this 

enhancement be imposed. If he did, we will review the district 

court’s application of the sentencing guidelines de novo and its 

factual findings under the clearly erroneous standard. United 

States v. Bennett, 461 F.3d 910, 912 (7th Cir. 2006). If he did not 

object sufficiently, we will review for plain error. United States 

v. Seals, 813 F.3d 1038, 1044–45 (7th Cir. 2016). 

An examination of the record reveals that, at sentencing, 

Mr. Thomas maintained his innocence and objected to the 
12 No. 15-2691

“full report.”23 He made no specific objection with respect to 

this enhancement. He now maintains that this general objection was sufficient to preserve the issue on appeal. The Government counters that the general objection was insufficient 

notice of Mr. Thomas’s specific challenge to the drug house 

enhancement.

The Government is correct. Precedent and strong policy 

reasons support its position.24 “It is now axiomatic that in order ‘[t]o preserve an issue for appellate review, a party must 

make a proper objection at trial that alerts the court and opposing party to the specific grounds for the objection.’” United 

States v. Hardamon, 188 F.3d 843, 848 (7th Cir. 1999) (alteration 

in original) (internal quotation marks omitted) (quoting 

United States v. Linwood, 142 F.3d 418, 422 (7th Cir. 1998)); see 

also United States v. Neal, 578 F.3d 270, 272–73 (5th Cir. 2009). 

Thus, a party may not rest on a general objection to the evidence; “absent a proper, specific and timely objection ... we 

will only review for plain error.” Hardamon, 188 F.3d at 849.

On plain error review, we may reverse the district court’s 

findings only when: “(1) [an] error occurred; (2) the error was 

‘plain’; (3) and the error affected the defendant’s substantial 

rights.” United States v. Corona-Gonzalez, 628 F.3d 336, 340 (7th 

Cir. 2010) (alteration in original) (internal quotation marks 

omitted) (citing United States v. Olano, 507 U.S. 725, 731–36 

 23 R.246 at 3.

24 See, e.g., Puckett v. United States, 556 U.S. 129, 134 (2009) (“This limitation 

on appellate-court authority serves to induce the timely raising of claims 

and objections, which gives the district court the opportunity to consider 

and resolve them. That court is ordinarily in the best position to determine 

the relevant facts and adjudicate the dispute.”).
No. 15-2691 13

(1993)). If these criteria are met, we may exercise our discretion and reverse the judgment if we determine that the error 

“seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 732 (internal 

quotation marks omitted).

We need address only the first prong of this test because 

no error occurred. The Sentencing Guidelines provide for this 

two-level enhancement where “the defendant maintained a 

premises for the purpose of manufacturing or distributing a 

controlled substance.” U.S.S.G. § 2D1.1(b)(12). Application 

Note 17 explains:

Among the factors the court should consider in 

determining whether the defendant “maintained” the premises are (A) whether the defendant held a possessory interest in (e.g., 

owned or rented) the premises and (B) the extent to which the defendant controlled access to, 

or activities at, the premises. 

Manufacturing or distributing a controlled substance need not be the sole purpose for which 

the premises was maintained, but must be one 

of the defendant’s primary or principal uses for 

the premises, rather than one of the defendant’s 

incidental or collateral uses for the premises. In 

making this determination, the court should 

consider how frequently the premises was used 

by the defendant for manufacturing or distributing a controlled substance and how frequently the premises was used by the defendant 

for lawful purposes. 
14 No. 15-2691

U.S.S.G. § 2D1.1 n.17. Mr. Thomas submits that the enhancement is inapplicable to him because he did not have 

a possessory interest over Andrews’s home and because 

housing his drug operation was not the home’s primary 

purpose.

We cannot accept these arguments. The enhancement does 

not require either ownership or a leasehold interest. United 

States v. Flores-Olague, 717 F.3d 526, 532 (7th Cir. 2013).25 An 

ownership interest is but one consideration. As Mr. Thomas 

admits, another consideration is whether “the defendant lives 

in the house.”26 The record certainly supports the district 

court’s finding that he resided with Andrews.27 As 

Mr. Thomas admits, and Andrews’s testimony corroborates,28

he “moved into Andrews’s apartment in Madison, Wisconsin 

about two to three months after their relationship began and 

he lived off and on at this location” until December 2010.29

 25 See also United States v. Carter, 834 F.3d 259, 262–63 (3d Cir. 2016) (“[T]he 

absence of [the defendant’s] name on a deed or lease is insufficient to preclude the enhancement’s application.”); United States v. Jones, 778 F.3d 375, 

385 (1st Cir. 2015) (citing United States v. Renteria-Saldana, 755 F.3d 856, 

859–60 (8th Cir. 2014)).

26 Appellant’s Br. 30 (quoting United States v. Russell, 595 F.3d 633, 645 (6th 

Cir. 2010)).

27 R.246 at 5–6.

28 R.244 at 156 (stating, for example, Mr. Thomas moved in “[v]ery 

quickly”).

29 Appellant’s Br. 4.
No. 15-2691 15

Even though Andrews testified that she “barely saw” 

Mr. Thomas after the November 2010 traffic stop,30 this factor 

alone does not prevent a finding that Mr. Thomas lived in the 

home. It is uncontested that Mr. Thomas kept personal items 

at Andrews’s home at least until the December 2010 search.31

Mr. Thomas’s December 2010 jail call to his mother is, moreover, particularly persuasive on the ultimate issue. In that call, 

Mr. Thomas specifically referred to “stash spots” in Andrews’s home, as well as a car of his parked at Andrews’s residence, which contained a large quantity of cash.32 A reasonable factfinder could easily conclude that Mr. Thomas maintained a connection to the home at the time of these calls. 

There would be no reason otherwise for Mr. Thomas to ask 

his mother to have Andrews check the home for his “stash.”33

Mr. Thomas’s use of the home as part of his scheme was 

part of the home’s “primary purpose.” We reviewed a similar 

issue in United States v. Sanchez, 810 F.3d 494 (7th Cir. 2016). 

In Sanchez, defense counsel similarly argued that the 

 30 R.244 at 169.

31 Appellant’s Br. 6–7; R.244 at 169–70. Mr. Thomas also testified that Bell 

was driving him to “[his] and Anita [Andrews]’s house” when they were 

pulled over, implying that he was still residing at Andrews’s home on December 10, 2010. R.248 at 171.

32 Id. at 187–88, 200. Mr. Thomas admits that this call took place, but disputes whether we can infer that drugs were still at the home, since, when 

the police returned to Andrews’s residence for the second search, they did 

not find heroin. Appellant’s Br. 32. The district court’s determination, 

however, is supported by evidence of the phone call.

33 R.248 at 58–59, 187–88.
16 No. 15-2691

§ 2D1.1(b)(12) enhancement should not apply because the primary purpose of Sanchez’s residence was not drug distribution. Defense counsel emphasized that:

in other cases the “primary purpose” requirement of the guideline was met by additional 

facts, such as when the defendants also “maintained business records, used a child to deliver 

narcotics, settled financial transactions or accepted payment” on the premises. [Defense 

counsel argued that] Sanchez, however, was 

merely providing storage and this was not 

enough to make drug distribution the primary 

purpose of his house. 

Id. at 496. We disagreed and affirmed the district court’s finding that storing drugs was one of the home’s primary purposes. We explained: “a premise can have more than one primary use (drug distribution and residence), and, as long as it 

is more than ‘incidental or collateral,’ drug distribution does 

not have to be the ‘sole purpose.’” Id. at 497.34 We also noted 

that storing additional tools of the drug-trafficking trade can 

 34 See also United States v. Flores-Olague, 717 F.3d 526, 531–32 (7th Cir. 2013) 

(holding the enhancement was applicable when defendant stored cocaine 

on the premises for several years, sold it to at least ten regular customers, 

and had firearms in the home); see also United States v. Bell, 766 F.3d 634, 

638 (6th Cir. 2014) (“Drug storage on the property and transactions on the 

property will usually suffice [to establish primary use.]”); United States v. 

Miller, 698 F.3d 699, 706–07 (8th Cir. 2012) (applying enhancement when 

coconspirator was involved in at least three transactions at the home, used 

her son to deliver drugs to one of the buyers, and collected payment for 

drugs on several occasions).
No. 15-2691 17

be “indicia that drug trafficking was the principal use of the 

premises.” Id. (quoting Flores-Olague, 717 F.3d at 533).

The district court certainly did not commit plain error. 

Mr. Thomas admits that Andrews testified that Mr. Thomas 

“cut[] and packag[ed] heroin in her home,” though she only 

witnessed it on one occasion.35 Andrews also admitted that 

“she packaged heroin for Mr. Thomas one time” in her home 

upon his insistence.36 Even if “no drug sales ever occurred at 

her residence,”37 Andrews also testified to her belief that her 

television console was being used to store drugs.38 Additionally, the December 2010 search of the home yielded a digital 

scale, a cutting agent, and plastic sandwich baggies with the 

corners cut out.39 These tools of the trade are “indicia that 

drug trafficking was the principal use of the premises.” 

Sanchez, 810 F.3d at 497 (internal quotation marks omitted).

The district court’s finding was further supported by another witness’s statements in the PSR. Trina Harr, who lived 

with Mr. Thomas and Andrews for a period of time and was 

present when police searched Andrews’s home,40 stated that 

 35 Appellant’s Br. 4.

36 Id.

37 Id. at 5.

38 Id. at 4.

39 R.248 at 54–56; see supra note 2.

40 It is unclear how long Harr lived with Mr. Thomas and Andrews, however, Mr. Thomas admitted that Harr lived with them around the time of 

his arrest in December 2010. R.248 at 173–74.
18 No. 15-2691

she had observed Mr. Thomas cutting up heroin approximately seven to eight times at Andrews’s home. Although she 

did not testify at trial, Harr told investigators that she had 

seen heroin in the house and that she observed Mr. Thomas 

mixing or cutting the heroin and packaging the heroin into 

sandwich bags for sale at the home. Harr also saw 

Mr. Thomas retrieve a scale from the downstairs closet of the 

home on numerous occasions.41 It therefore was appropriate 

to apply the enhancement.

Conclusion

The district court’s opinion is affirmed. There was sufficient evidence to support a finding that Mr. Thomas conspired with Andrews. The court also did not err in imposing 

a two-level sentencing enhancement for maintaining a drug 

house; the record supports a finding that Mr. Thomas lived in 

Andrews’s home and used that home as part of his distribution process.

AFFIRMED

 41 R.202 at 11.