In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3287

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JEFFERY DEAN,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Indiana, New Albany Division.

No. 4:06-cr-0023-SEB-MGN-14—Sarah Evans Barker, Judge.

ARGUED MAY 27, 2009—DECIDED JULY 31, 2009

Before CUDAHY, RIPPLE and WOOD, Circuit Judges.

RIPPLE, Circuit Judge. After an extensive investigation

of a large drug distribution organization, the Government charged Jeffery Dean and several other individuals

with conspiring to distribute and to possess with intent

to distribute methamphetamine. A jury found Mr. Dean

guilty of the conspiracy, and the district court sentenced

him to 156 months’ imprisonment. Mr. Dean now appeals. He claims that the evidence presented at trial was
2 No. 08-3287

insufficient to support the jury’s verdict, resulting in a fatal

variance between the crime charged and the offense

proved at trial. He also challenges the court’s determination of his base offense level and its application of a twolevel enhancement for obstruction of justice. For the

reasons set forth below, we affirm Mr. Dean’s conviction, vacate his sentence and remand his case for

resentencing in accordance with this opinion.

I

BACKGROUND

A. The Facts Presented at Trial and Mr. Dean’s Conviction

In 2007, a grand jury returned a multi-count indictment against Mr. Dean and several other individuals who

allegedly had participated in a drug distribution organization. In Count I of the indictment, Mr. Dean was

charged with conspiring to possess with intent to distribute and conspiring to distribute methamphetamine.

Mr. Dean pleaded not guilty to the charged conspiracy.

At trial, the Government presented evidence of the

organization and operation of a large conspiracy engaged

in distributing methamphetamine and other drugs in

several states. Special Agent Arnold Fitzgerald, who was

involved in the investigation, testified that the leader of

the conspiracy’s Indiana operations was a man named

Francisco Ortuno-Vasquez. Ortuno-Vasquez received

large quantities of methamphetamine and other drugs

on a weekly basis; he would then deliver the drugs to
No. 08-3287 3

distributors in Indiana and Kentucky. One distributor,

Josefina Reballor, was in frequent contact with OrtunoVasquez and regularly received pound quantities of

methamphetamine from him. R.78 at 154. Reballor lived

with her brother-in-law, Aaron Unger, who delivered

drugs and collected money on Reballor’s behalf. Agent

Fitzgerald testified that another indicted coconspirator,

Todd Sipe, admitted to being present on two or three

occasions when Unger met Mr. Dean to exchange

either methamphetamine or money. According to Agent

Fitzgerald, Sipe also admitted that he had received methamphetamine from Mr. Dean. R.78 at 193-94, 197-98.

Agent Fitzgerald further testified that, during a search

of Unger and Reballor’s residence, law enforcement

officers found an index card in Unger’s room; the card

listed the name “Speedy,” two dates and several numbers.

Agent Fitzgerald explained that the index card was a

ledger used to record a drug debt. According to the

ledger, Speedy had received twelve ounces of methamphetamine and owed Unger $29,850; on September 1, 2006,

Speedy made a payment of $13,000, reducing the amount

owed to $16,850. During the same search of Unger and

Reballor’s residence, investigators found and seized a

phone belonging to Unger. Mr. Dean’s phone number

was stored in the phone’s memory under the name

“Speedy.”

Next, the Government called Unger, who testified about

Mr. Dean’s involvement in the conspiracy. Unger acknowledged that he and Reballor lived in the residence where

the ledger and phone were found. He stated that Reballor
4 No. 08-3287

Later, Special Agent Mark Slaughter testified that he 1

debriefed Unger after his arrest. At the debriefing, Unger

indicated that he began delivering drugs for Reballor in September 2006.

The text messages, which were sent in November 2006, read 2

as follows: “The ex just showed up. We’re going to do

something tomorrow no matter what.” R.78 at 186. “Should be

pretty soon.” Id. “On my way. You good?” Id. “I’m here.” Id.

(continued...)

paid him a thousand dollars a week to deliver drugs and

to collect money on her behalf. Unger identified Mr. Dean

as one of Reballor’s customers and indicated that he

knew Mr. Dean by the name “Speedy.” Unger further

testified that, beginning in the summer of 2006 and

ending in November 2006, he would deliver about 1

twelve ounces of methamphetamine per week to Mr. Dean

at one of two locations. He stated that he would “front” the

drugs to Mr. Dean; in other words, he explained, he would

deliver a quantity of drugs to Mr. Dean, and Mr. Dean

would pay him for those drugs at a later date. Unger

identified the index card found at his residence as a

record of Mr. Dean’s $29,850 drug debt and his partial

payment of that debt on September 1. Unger also

identified the phone seized by law enforcement officers

as his own; he also verified that Mr. Dean’s phone

number was stored in the phone’s memory under the

name “Speedy.” In addition, he stated that text messages

sent from Mr. Dean’s number and stored in his phone’s

memory were references to methamphetamine transactions with Mr. Dean. In response to the Government’s 2
No. 08-3287 5

(...continued) 2

at 187. “What’s up?” Id. “Hello.” Id. “Van wouldn’t start on the

way.” Id. “It was 5.5 short.” Id. “Did you get that?” Id.

At one point, Mr. Dean was asked what he did with the 3

methamphetamine he purchased from Unger, and Mr. Dean

replied “I would deal ‘em.” R.78 at 284. Neither party consid-

(continued...)

estimation that he had delivered thirteen or fourteen

pounds of methamphetamine to Mr. Dean, Unger replied

“probably.” R.78 at 248.

Corporal Brad Jones testified about a conversation he

had with Mr. Dean on November 24, 2006. He stated that,

during that conversation, he had asked Mr. Dean

whether he was involved in the distribution of illegal

drugs. Mr. Dean responded that, at one time, he had been

involved with a large Mexican drug organization. He

also admitted that he owed more than $80,000 to that

organization. On one occasion, Mr. Dean stated, a dealer

carrying ten pounds of methamphetamine had come to

his residence; he had received one pound of methamphetamine from the dealer. Mr. Dean also told Corporal Jones

that, in the weeks preceding their meeting, he had

obtained and sold an ounce of methamphetamine.

After the Government rested its case, Mr. Dean testified

in his own defense. Although he could not remember the

details of the November 24 conversation with Corporal

Jones, and, therefore, could not directly refute Corporal

Jones’ testimony, Mr. Dean did state that he never distributed methamphetamine. He further testified that he 3
6 No. 08-3287

(...continued) 3

ered this inconsistency in testimony as significant enough

to mention, so we will treat this testimony as a misstatement.

According to Mr. Dean, prior to August 2006, he purchased

4

methamphetamine from a man named Billy.

The district court took this motion under advisement and

5

stated that it would rule after closing arguments, but the

appellate record does not contain the court’s ruling.

was highly tolerant of the drug and used over three

grams of methamphetamine per day. He stated that, in

August or September 2006, he began purchasing one-ounce

quantities of methamphetamine from Unger; he denied 4

having received one-pound quantities of methamphetamine.

Crystal Robins, Mr. Dean’s girlfriend, corroborated

Mr. Dean’s testimony: She stated that Mr. Dean was

addicted to methamphetamine and that his addiction was

severe. Robins asserted that Mr. Dean used, but did not

sell, methamphetamine. She admitted, however, that

Mr. Dean could have kept his drug dealing a secret

from her. Robins also testified that, prior to 2004, she

had received methamphetamine from Mr. Dean.

At the conclusion of the evidence, the parties rested their

cases, and Mr. Dean renewed his motion for a directed

verdict. The court instructed the jury that, to find 5

Mr. Dean guilty of the crime charged, it must conclude

beyond a reasonable doubt that “a conspiracy existed to

possess with the intent to distribute and to distribute

methamphetamine,” and that Mr. Dean “knowingly
No. 08-3287 7

became a member of the conspiracy with an intention

to further it.” R.43 at 20. The court further instructed

the jury that, when determining whether a conspiracy

existed, it could consider, among other things, “whether

the parties had a standardized way of doing business

over time” and “whether the sales were on credit or

consignment.” Id. at 25. After deliberation, the jury returned a guilty verdict against Mr. Dean. In a special

finding, the jury found that the weight of the methamphetamine was less than 500 grams.

B. Sentencing Proceedings

At the sentencing hearing, Mr. Dean objected to the

computation of his base offense level in the presentence

report (“PSR”). According to the PSR, Mr. Dean was fully

aware that the conspiracy involved the distribution of

more than 150 kilograms of methamphetamine, an

amount that corresponds to a base offense level of 38. Mr.

Dean noted that the jury found him responsible for no

more than 500 grams of methamphetamine, and he

urged the court to apply a lower base offense level. The

court overruled the objection and allowed the offense

level to stand at 38, concluding that “38 is a reliable

estimate of the amount of methamphetamine that was

being dealt by the members of the conspiracy, including

Unger and Sipe.” R.77 at 38. The court then indicated

that it later would apply a downward adjustment “to

take into account the fact that it was probably not all

foreseeable to Mr. Dean, and in any event, his involvement was less and the jury has concluded that it
8 No. 08-3287

The district court said: 6

I promised that I would take into account the fact that the

jury determined that the government had proven beyond a

reasonable doubt that the conspiracy of which you were

found guilty was no more than 500 grams of methamphetamine. So we started out, the offense level with the full

(continued...)

was less . . . by attributing to him the 500 grams

amount.” Id.

Mr. Dean also objected to the PSR’s recommendation

that a two-level obstruction of justice enhancement be

applied. The court applied the enhancement, concluding

that Mr. Dean unequivocally obstructed justice when

he stated, under oath, that he had never sold methamphetamine. Id. at 28. After applying the two-level obstruction enhancement, the court applied a two-level reduction

based on its conclusion that Mr. Dean was a minor participant in the conspiracy, resulting in an adjusted

offense level of 38. Id. at 67.

Next, the court acknowledged that Mr. Dean’s base

offense level “[took] into account the full scope of . . . the

amount [of drugs] involved in the conspiracy.” Id. at 68. It

further recognized that the jury found Mr. Dean responsible for less than 500 grams of methamphetamine. In

consideration of the jury’s finding, the court applied a fourlevel reduction, thereby “split[ting] the difference” between the base offense level for all the drugs in the conspiracy and the highest offense level that it believed to

be supported by the jury’s verdict. Id. at 68-69. The 6
No. 08-3287 9

(...continued) 6

amount of the conspiracy equating to a 38 offense level.

I’m sorry this is so technical, but the lawyers will understand.

We started out with the offense level of 38 which takes

into account the full scope of the conspiracy drugs and the

amount involved in the conspiracy. But if you look in the

guidelines to find the guideline range that equates to the

500 grams, it’s a level 30. And so in an effort to take into

account those two factors, I’ll split the difference, and

allow a four-level reduction.

Let me make sure you understand. We started with a 38.

The 500 level would equal an offense level of 30. And so I

will cut that in half in terms of the offense level, and allow

a four-level reduction to take into account the jury’s

verdict and the distinction the jury made with respect to the

government’s proof.

I want to repeat here that the Court is not bound by the

jury’s decision, but it seems fair to me. It seems reasonable

to me to make an adjustment in light of their finding.

R.77 at 68-69.

court then applied a one-level reduction in recognition

of the fact that Mr. Dean’s addiction, not greed, was the

driving force behind his participation in the offense. The

court also stated that it accepted the PSR as circulated “[i]n

all the respects that [had] not been addressed and otherwise ruled upon by the court.” Id. at 40. Thus, Mr. Dean’s

adjusted offense level was set at 33, and his criminal

history category was II. The court sentenced Mr. Dean

to 156 months’ imprisonment, a sentence at the lower

end of the recommended sentencing range.
10 No. 08-3287

II

DISCUSSION

Mr. Dean raises three arguments on appeal: First, he

claims that there is an impermissible variance between the

crime charged in the indictment and the evidence presented at trial. Second, he challenges the district court’s

determination of the applicable base offense level. Third,

he asserts that the district court erred when it applied a

two-level enhancement for obstruction of justice. We

shall address each of these arguments in turn.

A.

Mr. Dean submits that there is a fatal variance between

the crime charged in the indictment and the evidence

presented at trial. A variance occurs “when the facts

proved at trial differ from those alleged in the indictment.”

United States v. Longstreet, 567 F.3d 911, 918 (7th Cir.

2009) (citing United States v. Griffin, 493 F.3d 856, 862 (7th

Cir. 2007)). To prevail on his variance claim, Mr. Dean

must show both (1) that the evidence presented at trial did

not support the jury’s finding that he joined the charged

conspiracy and (2) that he was prejudiced by the variance.

See id. Thus, we treat Mr. Dean’s variance claim as a

challenge to the sufficiency of the evidence. See id.; United

States v. Messino, 382 F.3d 704, 709 (7th Cir. 2004). When

reviewing such a challenge, we view the evidence presented at trial and draw all reasonable inferences from

that evidence in the light most favorable to the Government. United States v. Adkins, 274 F.3d 444, 449 (7th Cir.
No. 08-3287 11

2001). We shall “overturn a conviction only if the record

contains no evidence from which a reasonable juror

could have found the defendant guilty.” Longstreet, 567

F.3d at 918.

Applying this standard, we look to the record to determine whether, given the evidence presented at trial, any

reasonable jury could have concluded that the Government had proven each element of the crime charged

beyond a reasonable doubt. United States v. Pritchard, 745

F.2d 1112, 1122 (7th Cir. 1984). To support Mr. Dean’s

conviction for conspiracy under 21 U.S.C. § 846, the

Government was required to show that (1) two or more

individuals agreed to commit an unlawful act—in this case,

distribution of methamphetamine and possession with

intent to distribute it—and (2) Mr. Dean knowingly and

intentionally joined the agreement. See United States v.

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

Mr. Dean does not deny the existence of the conspiracy;

instead, he contends that he merely purchased methamphetamine for his own personal use and, therefore,

never joined the conspiracy. See id. (“Evidence that the

defendant was in a mere buyer-seller relationship with

the alleged coconspirator is insufficient to establish a

conspiracy.” (citation omitted)). He claims that the Government presented no reliable evidence supporting the

conclusion that Unger assisted Mr. Dean with the sale of

methamphetamine or otherwise had any interest in what

Mr. Dean did with his drugs after he received them. To

support this contention, Mr. Dean asks us to ignore

Unger’s testimony and Sipe’s statement to Agent Fitzger-
12 No. 08-3287

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

(“We will not upset the jury’s credibility determination unless

‘exceptional circumstances’ exist; that is, it was ‘physically

impossible for the witness to observe that which he

claims occurred, or impossible under the laws of nature for

the occurrence to have taken place at all.’” (quoting United

States v. Smith, 393 F.3d 717, 719 (7th Cir. 2004))).

ald; he maintains that the jury necessarily rejected this

evidence when it found that Mr. Dean was responsible

for less than 500 grams of methamphetamine. He

further points out that Sipe may have been biased against

him.

By raising these arguments, Mr. Dean invites us to reweigh the evidence and inquire into the jury’s thought

process; this we cannot do. In the absence of truly exceptional circumstances, we shall not second-guess the jury’s

credibility determinations. Mr. Dean has pointed to no 7

exceptional circumstances that would justify disturbing

the jury’s credibility findings. Furthermore, Mr. Dean’s

claim that the jury necessarily discredited Unger’s and

Sipe’s statements is pure speculation. The jury’s conclusion that Mr. Dean was responsible for less than

500 grams of methamphetamine could be the product of

a mistake, compromise or leniency, rather than an indication that the jury disbelieved Unger’s and Sipe’s

statements in their entirety. United States v. Nobles, 69

F.3d 172, 189 (7th Cir. 1995) (rejecting the defendant’s

argument that a split verdict demonstrated that the
No. 08-3287 13

See also United States v. McGee, 189 F.3d 626, 630 (7th Cir. 1999) 8

(“We cannot accept Mr. McGee’s contention that [the witnesses’] testimony is entitled to no weight just because the jury

acquitted Mr. McGee of Count 2. We cannot know, nor is it our

place to speculate, whether the jury decided to acquit Mr.

McGee of Count 2 because it found the witnesses incredible

or for some other reason.”).

See United States v. Adkins, 274 F.3d 444, 450 (7th Cir. 2001) 9

(“The fact that the drugs Adkins supplied to Hummel and Tyner

(continued...)

evidence was insufficient to support his conviction). We 8

shall not inquire into the jury’s thought processes;

instead, we “defer to the jury’s ‘collective judgment’” and

shall not disturb its verdict based on Mr. Dean’s speculative arguments. Id. (quoting United States v. Lakich, 23

F.3d 1203, 1212 (7th Cir. 1994)).

After reviewing the transcript of the trial proceedings

and the evidence presented at trial, we are convinced

that the Government introduced sufficient evidence

from which a reasonable jury could find that Mr. Dean

intentionally joined the charged conspiracy. First, Unger

testified that he routinely fronted methamphetamine to

Mr. Dean. The index card found in Unger’s home, which

recorded Mr. Dean’s methamphetamine purchase and

corresponding indebtedness, supported Unger’s testimony. The evidence that Unger repeatedly provided

Mr. Dean with large quantities of methamphetamine on

credit, if accepted by the jury, could suggest that Unger

both knew that Mr. Dean would resell the methamphetamine and had a financial interest in the resale. For this 9
14 No. 08-3287

(...continued) 9

were in such large quantities and were often sold partially on

credit suggested that Adkins not only knew that Hummel

and Tyner would resell the drugs, but also depended on the

resales in order to get paid.”).

See id. at 450-51 (concluding that the evidence could support 10

the jury’s verdict where the Government introduced, among

other things, evidence of the defendant’s standardized

dealings with coconspirators, the length of the defendant’s

involvement, and the quantities of drugs involved); United

States v. Hach, 162 F.3d 937, 943-44 (7th Cir. 1998) (noting that

the evidence of routine deliveries established a “demonstrated

(continued...)

reason, the evidence of fronting alone may be sufficient

to support Mr. Dean’s conviction. See United States v.

Stott, 245 F.3d 890, 903 (7th Cir. 2001) (recognizing that

“ ‘[t]he repeated ‘fronting’ of [drugs], alone, has been held

sufficient to support the jury’s conclusion that the defendant had knowingly joined a distribution conspiracy.’ ”

(alteration in original) (quoting United States v. Ferguson,

35 F.3d 327, 331 (7th Cir. 1994))).

In addition, the Government introduced evidence that

Mr. Dean purchased large, standardized quantities of

methamphetamine at regular intervals over an extended

period of time. Unger testified that, over the course of

several months, he would deliver twelve ounces of methamphetamine to Mr. Dean on a weekly basis; these deliveries always were made at one of two locations. This evidence lends support to the jury’s finding that Mr. Dean

was a participant in the conspiracy. As Mr. Dean correctly 10
No. 08-3287 15

(...continued) 10

level of mutual trust,” and concluding that the evidence

presented supported the jury’s verdict).

Compare Hach, 162 F.3d at 943 (concluding that the parties’ 11

frequent, repeated transactions, together with the “attendant

established method of payment that include[d] a rudimentary

form of credit,” could support the conspiracy conviction), with

United States v. Colon, 549 F.3d 565, 568 (7th Cir. 2008) (noting

that the evidence that the defendant regularly engaged in

standardized transactions was insufficient to support the

defendant’s conspiracy conviction in the absence of “sales on

credit to the defendant, or other evidence of mutual trust or

dependence”).

notes, standardized transactions do not, by themselves,

transform a customer into a coconspirator. United States

v. Colon, 549 F.3d 565, 567 (7th Cir. 2008). In this case,

however, Mr. Dean’s involvement as a coconspirator is

also supported by the evidence that Sipe saw Mr. Dean

purchase methamphetamine from Unger on two or three

occasions and by Sipe’s admission that he obtained methamphetamine from Mr. Dean. It is also bolstered by

Mr. Dean’s November 24, 2006 discussion with Corporal

Jones, in which Mr. Dean admitted obtaining and selling

an ounce of methamphetamine in the weeks preceding

their meeting. Furthermore, as we mentioned earlier, it

is supported by Unger’s claim that he fronted methamphetamine to Mr. Dean.

11

In sum, we conclude that the evidence is sufficient to

support the jury’s verdict. The Government presented

evidence that Ungerfronted large, standardized quantities
16 No. 08-3287

Because Mr. Dean has failed to demonstrate that a variance 12

occurred in this case, we need not address whether he was

prejudiced by the alleged variance.

of methamphetamine to Mr. Dean on a regular basis, and

it introduced testimony demonstrating that Mr. Dean

redistributed at least some of this methamphetamine to

others. The jury could have concluded, based on this

evidence, that Mr. Dean knowingly and intentionally

joined the conspiracy. Therefore, Mr. Dean cannot show

that the evidence presented at trial did not support

the jury’s finding, and his variance claim must fail.12

B.

We now turn to Mr. Dean’s challenges to the sentence

imposed by the district court. Mr. Dean first contends that

the district court incorrectly calculated his sentencing

range. Second, he submits that the district court erred

in applying a two-level obstruction of justice enhancement. We review the district court’s interpretation of the

Sentencing Guidelines de novo, and we review its

factual findings for clear error. United States v. Mumford,

25 F.3d 461, 465 (7th Cir. 1994) (citing United States v.

Lozoya-Morales, 931 F.2d 1216, 1218 (7th Cir. 1991)).

1.

“A defendant’s base offense level for a narcotics offense

is defined primarily by the amount of drugs attributable to
No. 08-3287 17

[the defendant].” Mumford, 25 F.3d at 465; see U.S.S.G.

§ 2D1.1. The Government bears the burden of proving

the quantity of drugs attributable to the defendant by a

preponderance of the evidence. United States v. Soto-Piedra,

525 F.3d 527, 529 (7th Cir. 2008). In determining a defendant’s base offense level, a court must consider both the

acts giving rise to the conviction and any relevant conduct. Mumford, 25 F.3d at 465. In the case of a jointly

undertaken criminal activity, relevant conduct includes

the foreseeable acts and omissions of other participants

in the criminal enterprise. Soto-Piedra, 525 F.3d at 531

(quoting U.S.S.G. § 1B1.3(a)(1)(B)). However, for sentencing purposes, a defendant convicted of conspiracy is

not automatically liable for the acts of his coconspirators;

a defendant may be held liable only for those acts or

omissions that were both made in furtherance of the

conspiracy and foreseeable to the defendant. Id. at 531-32

(quoting United States v. Edwards, 115 F.3d 1322, 1327 (7th

Cir. 1997)). Therefore, the “[a]ctions of coconspirators

that a particular defendant does not assist or agree to

promote are generally not within the scope of that defendant’s jointly undertaken activity.” Id. at 533 (citing

U.S.S.G. § 1B1.3 cmt. n.2).

Although the district court is not bound by the Guidelines in sentencing a defendant, it is required to calculate,

in the course of arriving at the sentence, the appropriate

guidelines sentencing range. United States v. Laufle, 433

F.3d 981, 985 (7th Cir. 2006). The first step in that calculation is to ascertain the correct base offense level. After

reviewing the sentencing transcript, we must conclude that

the district court never undertook that essential first step
18 No. 08-3287

Earlier in the sentencing hearing, the court noted, and Mr. 13

Dean agreed, that this offense level corresponded to fifteen

kilograms or more of methamphetamine. R.77 at 33; see

U.S.S.G. § 2D1.1(c).

by ascertaining the quantity of methamphetamine reasonably foreseeable to Mr. Dean. The district court set

Mr. Dean’s base offense level at 38, noting that “38 is a

reliable estimate of the amount of methamphetamine

that was being dealt by the members of [the] conspiracy,

including Unger and Sipe.” R.77 at 38. The court did not,

13

however, determine that the entire quantity of methamphetamine distributed by the conspiracy was reasonably

foreseeable to Mr. Dean. In fact, the court found the

opposite to be true: After setting the base offense level

at 38, the court stated that it would

adjust downward from that when [it made] a sentencing decision to take into account the fact that it was

probably not all foreseeable to Mr. Dean, and in any

event, his involvement was less and the jury concluded that it was less . . . by attributing to him the

500 grams amount.

Id. The court later said that it would “split the difference”

by allowing a four-level reduction in the offense level.

Id. at 68-69.

We cannot accept this approach as the equivalent of a

judicial determination of the amount of drugs—and

therefore the appropriate offense level—properly attributable to Mr. Dean. It is clear from the court’s statements

that it had determined that Mr. Dean should not be
No. 08-3287 19

The district court did state that “[i]n all the respects that have 14

not been addressed and otherwise ruled upon by the Court,

I accept the presentence investigation report as drafted and

submitted and circulated by Mr. Schoettmer, and we’ll use

this formulation as my own for making the sentencing

decisions that remain.” R.77 at 40. Although the PSR did

indicate that the entire quantity of methamphetamine distributed by the conspiracy was foreseeable to Mr. Dean, the court

concluded otherwise. After an extensive discussion about the

appropriate base offense level and the scope of the conspiracy,

the court specifically stated that the amount of methamphetamine distributed “was probably not all foreseeable to

Mr. Dean.” Id. at 38. Because this language is at odds with the

finding in the PSR, we do not believe that the court adopted

the PSR’s conclusion with respect to the foreseeability issue.

See United States v. DePriest, 6 F.3d 1201, 1212 (7th Cir. 1993) 15

(“Discerning exactly how much of the total drug quantity

distributed through a conspiracy should have been reasonably

foreseeable to a co-conspirator has often proved difficult.”); see

also, e.g., United States v. Bautista, 532 F.3d 667, 672 (7th Cir. 2008)

(noting that courts may approximate the quantity of the controlled substance “’[w]here there is no drug seizure or the

amount seized does not reflect the scale of the offense’” (alterations in original) (quoting U.S.S.G. § 2D1.1 cmt. n.12)); United

(continued...)

held accountable for the entire amount of drugs in the

conspiracy. Yet, it does not appear that the court 14

ever actually determined the amount that ought to be

attributed to him. We are aware of the difficulties inherent

in ascertaining the amount of drugs attributable to an

individual. Our case law makes clear that this is a task 15
20 No. 08-3287

(...continued) 15

States v. Hollins, 498 F.3d 622, 631-32 (7th Cir. 2007) (discussing

the determination of the quantity of drugs smuggled into the

United States when the drugs were not intercepted on one

occasion); United States v. Durham, 211 F.3d 437, 444 (7th Cir.

2000) (analyzing the calculation of the quantity of drugs based

on the regular receipt of drugs by the defendant’s employee);

United States v. Pigee, 197 F.3d 879, 890 (7th Cir. 1999) (evaluating

whether certain transactions were reasonably foreseeable to

the defendants where the defendants were not present during

those transactions).

In United States v. Fox, 548 F.3d 523, 531-33 (7th Cir. 2008), we 16

vacated and remanded the defendant’s case for resentencing,

noting that, although the district court did consider whether

the coconspirator’s possession of forty grams of crack cocaine

was foreseeable to the defendant, it did not consider “whether

(continued...)

that can be accomplished by reasonable approximation.

United States v. Krasinski, 545 F.3d 546, 552 (7th Cir. 2008);

see also U.S.S.G. § 2D1.1 cmt. n.12. However, our cases

also have said that mere “eyeballing” of the amount is not

sufficient. United States v. Cox, 536 F.3d 723, 729 (7th

Cir. 2008).

The district court did not make an adequate finding of

the quantity of methamphetamine reasonably foreseeable

to Mr. Dean. “Although a district court’s findings of

relevant conduct are reviewed only for clear error, even

such deference cannot cure an absence of findings on

key elements of the analysis.” United States v. Fox, 548

F.3d 523, 532 (7th Cir. 2008) (citations omitted). In a 16
No. 08-3287 21

(...continued) 16

that awareness arose out of [the defendant’s] joint criminal

activity with [the coconspirator].”

conspiracy case, the foreseeability of the quantity of drugs

is a “crucial element in determining the proper base

offense level.” United States v. Goines, 988 F.2d 750, 776-77

(7th Cir. 1993) (vacating and remanding Goines’ sentence

where the district court, “[b]y setting the base offense

level in relation to the amount of cocaine involved in the

conspiracy, . . . failed to make a specific finding of the

quantity reasonably foreseeable to Goines”). We therefore

must vacate Mr. Dean’s sentence and remand this case

to the district court so that it may make a specific

finding as to the quantity of methamphetamine reasonably foreseeable to Mr. Dean and, on the basis of that

finding, impose the correct sentence.

2.

The court need not, however, revisit the obstruction of

justice issue on remand. The district court acted well

within its discretion in applying that enhancement. Contrary to Mr. Dean’s assertions, the district court did not

base its application of the enhancement “on [the] assumption that in finding Mr. Dean guilty of conspiracy, the

jury must have rejected the buyer/seller defense and

found that Mr. Dean had sold methamphetamine.” Appellant’s Br. 43. Instead, the court noted that Mr. Dean unequivocally stated in his sworn testimony that he never

had sold methamphetamine. R.77 at 28. The court charac-
22 No. 08-3287

terized this statement as “an obstruction” and permitted

the enhancement. Id. It is clear from the transcript that

the court specifically found that Mr. Dean had “ ‘willfully

made misrepresentations under oath that were relevant

to the prosecution’ ” with the specific intent of obstructing

justice; this finding was sufficient to support the obstruction enhancement. United States v. Bryant, 557 F.3d 489,

501 (7th Cir. 2009) (quoting United States v. Carroll, 412

F.3d 787, 793 (7th Cir. 2005)); United States v. Bermea-Boone,

563 F.3d 621, 626-27 (7th Cir. 2009) (“It is well-settled

that perjury is an example of conduct that warrants an

enhancement for obstruction of justice.”).

Conclusion

In sum, we hold that the evidence presented at trial was

sufficient to support the jury’s verdict. Furthermore, we

conclude that the district court did not abuse its discretion by applying an obstruction of justice enhancement.

Nevertheless, we must vacate Mr. Dean’s sentence and

remand for further proceedings so that the district court

may determine the quantity of methamphetamine that

was reasonably foreseeable to Mr. Dean.

AFFIRMED in part, VACATED and REMANDED in part

7-31-09