In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 05-2603 & 05-2604

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DOUGLAS L. NITCH and

CURTIS PATTERSON,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Southern District of Illinois.

No. 02-CR-40078-JPG—J. Phil Gilbert, Judge.

____________

ARGUED MAY 5, 2006—DECIDED FEBRUARY 21, 2007

____________

Before KANNE, WOOD, and SYKES, Circuit Judges.

WOOD, Circuit Judge. Douglas Nitch and Curtis Patterson were convicted by a jury of conspiracy to manufacture with intent to distribute 500 grams or more of

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1)

and 846 and 18 U.S.C. § 2. Nitch was sentenced to a term

of 168 months in prison, and Patterson was sentenced to

120 months. Nitch appeals both his conviction and his

sentence, claiming that there was an impermissible

variance between the single conspiracy charged in the

indictment and the multiple conspiracies proven at the

trial, and that his sentence is unreasonable. Patterson

challenges only his conviction, arguing that certain
2 Nos. 05-2603 & 05-2604

physical evidence introduced at trial was the fruit of an

unlawful search and should have been suppressed. For

the reasons explained below, we affirm the convictions of

both men, as well as Nitch’s sentence.

I

This case involves a conspiracy to manufacture and

distribute methamphetamine in the town of McLeansboro,

Illinois. According to the testimony presented at trial, in

1999, while he was still a high school student, Nitch

learned to manufacture methamphetamine. At the time,

he was apparently one of only a few people in the town

with this skill. Over the course of the next year or so,

Nitch “cooked” methamphetamine for various people in

town and instructed several others in the manufacturing

process. As things developed, certain people were responsible for obtaining the raw ingredients necessary to

produce the drug; they gave the ingredients to the cooks

(such as Nitch) in exchange for a share of the finished

product.

In either late 2000 or early 2001, Nitch left town for

Missouri. His departure, however, did not disturb the

methamphetamine business in McLeansboro, which continued without him. Later in 2001, Patterson joined

the McLeansboro meth group. His home became a central

location for the sale and use of the drugs they produced.

In May 2003, a federal grand jury indicted Nitch and 13

others on charges of conspiracy to manufacture methamphetamine and to possess it with intent to distribute. A

fourth (and final) superceding indictment charged Nitch,

Patterson, and two others with involvement in the conspiracy. Prior to trial, Patterson unsuccessfully moved

to suppress methamphetamine and drug paraphernalia

that was seized from a car in which he was a passenger.
Nos. 05-2603 & 05-2604 3

At trial, in addition to the physical evidence against

Patterson, prosecutors presented testimony from nine

members of the conspiracy who earlier had reached plea

agreements with the government. The jury convicted

both men, and both now appeal.

II

A

We begin with Nitch’s challenge to his conviction. Since

Nitch did not raise his variance argument at trial, we

review the jury’s verdict only for plain error. Under this

standard, Nitch must show that “(1) an error has occurred,

(2) it was ‘plain,’ (3) it affected a substantial right of the

defendant, and (4) it seriously affected the fairness,

integrity, or public reputation of the judicial proceedings.” United States v. Duran, 407 F.3d 828, 834 (7th Cir.

2005) (internal quotation marks and citations omitted);

see generally United States v. Olano, 507 U.S. 725, 732-37

(1993) (discussing plain error review in detail).

A conspiracy variance claim is nothing more than “a

challenge to the sufficiency of the evidence supporting

the jury’s finding that each defendant was a member of

the same conspiracy.” United States v. Townsend, 924

F.2d 1385, 1389 (7th Cir. 1991); see also United States v.

Williams, 272 F.3d 845, 862 (7th Cir. 2001) (citing to

Townsend’s explanation of a conspiracy variance claim). As

a result, “[e]ven if the evidence arguably established

multiple conspiracies, there is no material variance from

an indictment charging a single conspiracy if a reasonable

trier of fact could have found beyond a reasonable doubt

the existence of the single conspiracy charged in the

indictment.” Williams, 272 F.3d at 862.

The thrust of Nitch’s argument is there must have

been more than one conspiracy in this case because he left
4 Nos. 05-2603 & 05-2604

McLeansboro before Patterson became involved in drug

activities there. Although Nitch acknowledges that numerous witnesses described their involvement in his methamphetamine operation as well as their work with

Patterson individually, he emphasizes that no witness

testified to seeing the two defendants in the same place

at the same time. Nitch argues that this compels a finding

that there were, at the very least, two separate conspiracies, one involving Patterson and another involving

himself.

The government takes the position that no such conclusion is inevitable. It describes the conspiracy as consisting of “a large number of methamphetamine addicts

in McLeansboro . . . [who] taught each other how to

produce methamphetamine and helped each other get

the supplies needed to make the drug” in order to accomplish the “shared goal” of “produc[ing] a steady supply

of methamphetamine so as to feed their shared addictions.” The government emphasizes that the evidence

showed that Nitch was an early and important part of this

conspiracy. The fact that Nitch and Patterson joined and

participated in the conspiracy at different times, it concludes, is legally irrelevant.

We agree with the government that the evidence supported the jury’s finding of the single conspiracy charged

in the indictment. The testimony of the first government

witness, Christopher Campbell, served to bridge the

temporal and geographical gap between the participation of Nitch and that of Patterson. Campbell testified

that he manufactured methamphetamine with Nitch in

McLeansboro until Nitch left for Missouri. After Nitch’s

departure, Campbell moved to Missouri and lived with

Nitch. Still later, Campbell returned to McLeansboro, met

Patterson, and began supplying him with ingredients to

manufacture the drug. Campbell testified that when he

returned from Missouri, several of the same people who
Nos. 05-2603 & 05-2604 5

were involved with the manufacture and distribution of

methamphetamine when Nitch was in McLeansboro had

continued their activities with Patterson.

“To join a conspiracy . . . is to join an agreement, rather

than a group.” Townsend, 924 F.2d at 1390. Thus, the

government was not required to show that Nitch and

Patterson met with one another or even were acquainted

with each other; rather, the government needed only to

prove that Nitch joined the agreement alleged. Id. at 1389.

Based on our review of the evidence, we have little trouble

concluding that a reasonable juror could have found

beyond a reasonable doubt that there was a single multiyear conspiracy to manufacture methamphetamine in

McLeansboro, in which both Nitch and Patterson participated.

B

Nitch next challenges his sentence, contending that the

district court did not adequately explain its sentencing

decision and, in particular, failed properly to address

the sentencing factors listed in 18 U.S.C. § 3553(a).

At sentencing, Nitch’s counsel urged the court “to

sentence the defendant to the minimum sentence which

it can find,” emphasizing that in the five years since he

committed the crime Nitch had held down a job and

started a family. Nitch’s lawyer did not, however, specifically refer to any of the factors set forth in § 3553(a). The

government argued for a sentence at the top of the advisory Guidelines range, pointing out, among other things,

that Nitch had twice tested positive for marijuana use

while out on bail.

In explaining its decision to sentence Nitch to 168

months, the district court stated only:
6 Nos. 05-2603 & 05-2604

Mr. Nitch, I sentenced you to 14 years. It was not the

top of the guideline, not at the bottom. You messed up

when you were out on bond and that affected you. The

jury found you guilty beyond a reasonable doubt, and

the jury believed, based upon the testimony, that you

were involved in more than you believed you were

involved in. And I know you got started at an early

age, young age in this, and I know you tried to get out,

but the law is the law. And you knew better.

Nitch contends that this explanation of his sentence

was inadequate and renders his sentence unreasonable.

Under the law of this circuit, a sentence that is properly

calculated under the Guidelines is entitled to a rebuttable

presumption of reasonableness. United States v. GamaGonzalez, 469 F.3d 1109, 1110-11 (7th Cir. 2006); United

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

defendant can rebut this presumption only by demonstrating that his or her sentence is unreasonable when

measured against the factors set forth in § 3553(a).”

Mykytiuk, 415 F.3d at 608. A sentencing judge is not

required to “discuss the application of the statutory

factors to the defendant [ ] in checklist fashion,” but rather

must only provide “an adequate statement of the judge’s

reasons, consistent with section 3553(a), for thinking the

sentence that he has selected is indeed appropriate for

the particular defendant.” United States v. Dean, 414

F.3d 725, 729 (7th Cir. 2005).

Although Nitch makes passing reference to several of

the factors listed in § 3553(a), the only argument he

develops is that the district court did not give sufficient

consideration to his “history and characteristics,” in

particular, the fact that he became involved with methamphetamine at a young age and that he left McLeansboro

to escape involvement with methamphetamine. But the

record shows otherwise. It is apparent from the district
Nos. 05-2603 & 05-2604 7

court’s statement that “I know you got started at an

early age, young age in this, and I know you tried to get

out,” that the court did consider Nitch’s history and

characteristics, including his youth. The court obviously

was not persuaded, however, that when weighed against

other evidence—such as Nitch’s continued drug use—this

factor alone merited a lower sentence.

We recognize that the Supreme Court has issued a

writ of certiorari to determine whether presumptions like

the one adopted in Mykytiuk are consistent with United

States v. Booker, 543 U.S. 220 (2005). United States v.

Rita, No. 05-4674, 2006 WL 1144508 (4th Cir. May 1,

2006), cert. granted, 75 U.S.L.W. 3246 (U.S. Nov. 3, 2006)

(No. 06-5754). We have therefore also assessed the reasonableness of Nitch’s sentence without applying any

presumptions. Even from that perspective, we cannot say

that the district court’s choice was unreasonable. As the

district court noted, Nitch continued to use drugs while

he was out on bond, and he was involved in a relatively

large conspiracy. A significant sentence (as 168 months

certainly is) cannot be called unreasonable, even taking

into account Nitch’s age at the time of his criminal activities.

III

Patterson’s conviction was based in part on evidence

that was seized from a car in which he was a passenger.

Patterson moved unsuccessfully to suppress this evidence,

which he claimed was the fruit of an unlawful search—

unlawful because the police officer who made the stop

lacked reasonable suspicion. He now renews his challenge

to the suppression ruling.

On April 5, 2003, a police officer in Morganfield, Kentucky, was flagged down in a Wal-Mart parking lot by a
8 Nos. 05-2603 & 05-2604

store employee. The employee informed the officer that

two individuals had just purchased four boxes of Sudafed,

an over-the-counter nasal decongestant whose active

ingredient, pseudoephedrine, is used to make methamphetamine. After the employee identified the car, which

was still in the lot, the officer stopped the vehicle. A

subsequent search turned up several bags of methamphetamine as well as drug paraphernalia.

After Patterson and the driver of the car were indicted

in Kentucky state court on drug charges, they successfully

moved to suppress the evidence seized from the car as

the fruit of an unlawful search. They were not so lucky

in this federal case. Here, based on the same facts, the

district court refused to suppress, reasoning that Patterson lacked standing to challenge the evidence because

he was only a passenger in the car and therefore lacked

any reasonable expectation of privacy with regards to the

vehicle’s contents. See Rakas v. Illinois, 439 U.S. 128, 134

(1978); United States v. Washburn, 383 F.3d 638, 643 (7th

Cir. 2004). Patterson argues that this was error.

Although Patterson obviously suffered enough injury

in fact from the search to permit him to challenge the

action of the police, see Minnesota v. Carter, 525 U.S. 83,

887-88 (1998); Rakas, 439 U.S. at 140, and his injury is

redressable, we nevertheless find it unnecessary to

consider whether his Fourth Amendment rights were

violated. If there was any error in the admission of this

evidence, it was harmless. The record contains ample

testimonial evidence connecting Patterson to the charged

conspiracy. This evidence alone was sufficient to convict Nitch. We thus have no doubt that the jury would

have reached the same conclusion regarding Patterson’s

participation in the conspiracy even without physical

evidence of his possession of drugs.
Nos. 05-2603 & 05-2604 9

IV

We AFFIRM the judgments of the district court in both

Nitch’s and Patterson’s cases.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-21-07