In the

United States Court of Appeals

For the Seventh Circuit

Nos. 07-2433, 07-2435, 07-3118, 07-3203, 07-3540 & 07-3628

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

STEVEN P. EASTER, JAMAUL R. MCKAY, ANTHONY K.

GLOVER, DARRELL D. DAVIS, BRADFORD V. DODSON, AND

MONTRELL MCSWAIN,

Defendants-Appellants.

 

Appeals from the United States District Court

for the Northern District of Illinois, Western Division.

Nos. 05 CR 50082-2, 05 CR 50082-9, 05 CR 50082-4, 05 CR 50082-1,

05 CR 50082-8 & 05 CR 50082-5—Philip G. Reinhard, Judge.

 

ARGUED NOVEMBER 19, 2008—DECIDED JANUARY 16, 2009

 

Before MANION, KANNE, and EVANS, Circuit Judges.

PER CURIAM. In a bit of police work worthy of a TV

show, federal and local law enforcement officers installed

audio and video recording devices in a house in Rockford,
2 Nos. 07-2433, 07-2435, 07-3118, et al.

Illinois, that the Titanic Stones gang then used to deal

drugs. The police were given this rare opportunity when

the gang’s leader asked a girlfriend to rent a house for him

and she went to the police. Officers monitored and

recorded the dealing in the house for about a month

in 2005 before the dealers discovered the recording

devices. Then the authorities swooped in and arrested the

dealers. The government indicted 14 defendants on 32

counts of drug and gun crimes. Three went to trial and

were found guilty. Of those, two appeal. The other eleven

pleaded guilty, and four of them appeal. Of the six

appellants, only two, Jamaul McKay and Darrell Davis,

present arguments on the merits. Both pleaded guilty and

challenge only their sentences, but neither presents a

meritorious argument, so we affirm in both cases. In each

of the four other appeals, counsel has moved to withdraw

under Anders v. California, 386 U.S. 738 (1967). We grant

those motions and dismiss the four appeals because all of

the potential issues identified by counsel and the appellants would be frivolous. 

I. HISTORY

McKay and Davis both pleaded guilty to conspiring to

possess with intent to distribute heroin and crack, 21 U.S.C.

§§ 846, 841(a)(1), and to possessing a gun in furtherance of

a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A). At

sentencing, McKay did not dispute that the conspiracy

itself involved at least 1 kilogram of heroin and at least 50

grams of crack. Instead, he argued that the portion of the

overall amount attributed to his jointly undertaken crimi-
Nos. 07-2433, 07-2435, 07-3118, et al. 3

nal activity, see U.S.S.G. § 1B1.3(a)(1)(B), was overstated.

McKay conceded that he should be sentenced on the basis

of 960 grams of heroin, but he argued that he should not be

responsible for any crack because he sold only heroin and

could not have foreseen the crack sales by his

coconspirators. The district court disagreed and found

that McKay was responsible for some of the crack sold by

other members of the conspiracy. The court estimated the

amount of crack attributable to McKay at between 45 and

75 grams. The court then used the drug equivalency tables,

U.S.S.G. § 2D1.1, cmt. 10, and converted 960 grams

of heroin to 960 kilograms of marijuana and 45 to 75 grams

of crack to between 900 and 1500 kilograms of marijuana.

A range of 1860 to 2460 kilograms of marijuana yielded a

base offense level of 32, id. § 2D1.1(c)(4), which the court

then reduced by three levels for acceptance of responsibility, id. § 3E1.1. With a total offense level of 29 and a

criminal history category of I, McKay faced a guidelines

imprisonment range of 87 to 108 months. Without explanation, the court held that McKay was subject to a mandatory

minimum sentence of 120 months on the drug count.

Perhaps the court thought that the aggregation of the drug

totals triggered the mandatory minimum. It is also possible

that the court applied the mandatory minimum because

McKay conceded that the conspiracy involved at least one

kilogram of heroin and at least fifty grams of crack, though

he did not concede that those amounts were reasonably

foreseeable to him. In any event, McKay did not object or

seek clarification. The court sentenced him to 120 months

on the conspiracy charge and 60 months on the gun charge,

to run consecutively.
4 Nos. 07-2433, 07-2435, 07-3118, et al.

Davis, who led the conspiracy, received a much stiffer

sentence. The district court found him responsible for

between 10 and 30 kilograms of heroin. This quantity

yielded a base offense level of 36. U.S.S.G. § 2D1.1(c)(2).

The court added 4 levels for Davis’s role in the offense,

U.S.S.G. § 3B1.1(a), added 2 levels for reckless endangerment during flight, id. § 3C1.2, and subtracted 3 levels for

acceptance of responsibility, id. § 3E1.1. The court combined that offense level with Davis’s criminal history

category of VI to compute a guidelines range of 360 months

to life on the conspiracy charge. The court sentenced Davis

to 444 months on the conspiracy charge and 60 months on

the gun charge, to run consecutively.

The finding of reckless endangerment during flight was

based on the testimony at sentencing of the ATF agent who

arrested Davis. The agent said he ordered Davis to stop but

Davis attempted to run into a house. The agent tried to

grab Davis, but Davis pushed him away, pushed away

another agent, and ran. The agent gave chase with his gun

drawn, and during the chase Davis pulled a gun from his

pants. The ATF agent explained:

At this point I see him reaching around with his left

hand behind his back, and I see him drawing the butt

of a gun. At this point I tell him--I said, “Stop. I see the

gun. Drop the gun. Police.” He continues running. At

this point I’ve taken up a stationary position, and I’ve

prepared to fire my weapon. He continues running.

He’s got his arm extended. He’s just about to cant it

back towards me, and as he’s running, he fumbled the

gun, and the gun fell.
Nos. 07-2433, 07-2435, 07-3118, et al. 5

Davis argued that the agent’s testimony did not necessarily

show that he intended to cause harm when he drew the

gun; he could have intended simply to dispose of it. The

district court disagreed, finding reckless endangerment

during flight based on Davis’s violence when he first got

away from the police and the risk he created by drawing

his gun. The court believed that after seeing the gun one of

the officers might have shot Davis, the other officer, or

someone else in the area.

The other four appellants, Steven Easter, Anthony

Glover, Bradford Dodson, and Montrell McSwain, were all

convicted on the same conspiracy charge and one

§ 924(c)(1) count, Easter and Glover after pleading guilty

and Dodson and McSwain after trial. Easter and Glover

were both subject to a ten-year mandatory minimum on the

conspiracy charge. Easter got 192 months and Glover got

156 months. Dodson and McSwain were both subject to

a twenty-year mandatory minimum on the conspiracy

charge. Dodson got 360 months and McSwain got

240 months. All four received a consecutive five-year term

for possessing a gun in furtherance of a drug trafficking

crime.

II. ANALYSIS

A. McKay

On appeal McKay argues that the district court should

not have sentenced him on the basis of any crack. He also

contends that the court mistakenly applied a mandatory

minimum to his sentence on the drug count. As McKay
6 Nos. 07-2433, 07-2435, 07-3118, et al.

views things, the district court applied the mandatory

minimum based on the marijuana equivalents for his

“share” of the heroin and crack. That is, neither 960 grams

of heroin nor 45 grams of crack (the lowest amount the

court attributed to McKay under the guidelines) would

trigger a 10-year minimum, but 1860 kilograms of marijuana, the aggregate of those amounts following the

conversion to marijuana equivalents, would. See 21 U.S.C.

§ 841(b)(1)(A)(i), (iii), (vii). The government makes no

attempt to argue that aggregating quantities of different

types of drugs to reach a statutory minimum would be

proper. Indeed, one circuit has explicitly rejected the

practice. Alaniz v. United States, 351 F.3d 365, 368 (8th Cir.

2003). Instead, the government argues that a stray remark

by the court at sentencing was an explicit finding that

McKay was responsible for at least 50 grams of crack, the

amount that would trigger the mandatory minimum under

§ 841(b)(1)(A)(iii).

The government’s reading of the court’s remark ignores

the language and context of the court’s statement:

I think both sides agree that if he is responsible--if I

find that he’s responsible for the crack cocaine, then

that added to the heroin would clearly be over one

kilo--well it would be clearly over 50 grams of cocaine,

and when you translate that into marijuana and you

translate the heroin into marijuana, you come up with

a total of--if I were to use the heroin, that translates

into 960 kilos of marijuana

The court seemed to refer to 50 grams of crack because, at

the time, 50 grams of crack and 1000 kilograms of mari-
Nos. 07-2433, 07-2435, 07-3118, et al. 7

juana both required a base offense level of 32. U.S.S.G.

§ 2D1.1(c)(4) (2006). The court’s discussion at that point

in the hearing was not about a mandatory minimum; it

was about the base offense level. Whatever the court

meant, though, this statement preceded the court’s

explicit finding that the amount of crack attributable to

McKay as relevant conduct fell somewhere in the range

of 45 to 75 grams. That is, the court expressly held that

the amount could have been less than 50 grams.

But none of this matters because both sides mistakenly

assume that the crack amount attributed to McKay as

relevant conduct under the guidelines was significant for

purposes of applying the statutory minimum. In fact,

statutory minimums do not hinge on the particular defendant’s relevant conduct. In a drug conspiracy, the amount

of drugs attributable to any one codefendant as “relevant

conduct” for guidelines purposes is limited to the reasonably foreseeable transactions in furtherance of that

codefendant’s “jointly undertaken criminal activity,”

U.S.S.G. § 1B1.3(a)(1)(B), but when it comes to the statutory

penalties, every coconspirator is liable for the sometimes

broader set of transactions that were reasonably foreseeable acts in furtherance of the entire conspiracy. See United

States v. Fox, No. 07-3830, __ F.3d ___, 2008 WL 4890006, at

*7 (7th Cir. Nov. 14, 2008); United States v. Soto-Piedra, 525

F.3d 527, 531-32 (7th Cir. 2008); United States v. Mellen, 393

F.3d 175, 183-84 (D.C. Cir. 2004); United States v. Newsome,

322 F.3d 328, 338-40 (4th Cir. 2003). When the defendant

agrees to a jointly undertaken criminal activity that is only

a slice of the whole conspiracy, the foreseeable acts taken
8 Nos. 07-2433, 07-2435, 07-3118, et al.

in furtherance of that slice can be a subset of the foreseeable acts taken in furtherance of the entire conspiracy. E.g.,

U.S.S.G. § 1B1.3, cmt. 2(c)(3).

So the district court’s findings on relevant conduct do not

preclude application of the mandatory minimum, as

McKay argues. To avoid the mandatory minimum, McKay

would have to show that he could not have foreseen that

transactions in furtherance of the conspiracy would involve

at least 1 kilogram of heroin or at least 50 grams of crack.

21 U.S.C. § 841(b)(1)(A)(i), (iii). McKay conceded that the

“overall conspiracy was at least one kilogram of heroin and

at least 50 grams of crack,” and he conceded that 960 grams

of heroin were sold at the drug houses while he was

present. It would be frivolous for McKay to argue that he

could not have foreseen that other conspirators would sell

another 40 grams of heroin on the days that he was not

present. Thus, the district court was bound by the ten-year

mandatory minimum. Because McKay was actually given

the minimum, we need not consider his secondary argument about the amount of crack attributed to him as

relevant conduct underthe guidelines. Even if that amount

should have been lower, the district court would not have

been permitted to impose a sentence below the mandatory

minimum. See United States v. James, 487 F.3d 518, 530 (7th

Cir. 2007); United States v. Duncan, 479 F.3d 924, 930 (7th

Cir. 2007).

B. Davis

Davis’s first argument on appeal is that his offense level

should not have been increased for reckless endangerment
Nos. 07-2433, 07-2435, 07-3118, et al. 9

during flight. The increase is applied where “the defendant

recklessly created a substantial risk of death or serious

bodily injury to another person in the course of fleeing

from a law enforcement officer.” U.S.S.G. § 3C1.2. The

district court explained that when Davis reached for his

gun, no matter what his intent was in doing so, he created

a substantial risk of harm warranting the increase because

he risked causing one of the officers to shoot and possibly

hit another officer, or Davis, or some other person in the

area. Considering the danger to Davis was error, U.S.S.G.

§ 3C1.2, cmt. 4, but the error was harmless because simply

reaching for a loaded gun is enough to create a substantial

risk of serious bodily injury to another person. See United

States v. Robinson, 537 F.3d 798, 802 (7th Cir. 2008) (applying analogous increase under U.S.S.G. § 3A1.2(c)(1));

United States v. Lee, 199 F.3d 16, 20 (1st Cir. 1999) (same);

United States v. Bell, 953 F.2d 6, 10 (1st Cir. 1992) (suggesting that § 3C1.2 would apply if defendant had reached for

loaded gun when confronted by police). And the risk is

even greater where, as here, the person handling the gun

is also running at full speed.

Davis also contests the district court’s finding on drug

quantity. He argues that the evidence before the district

court was enough only to approximate drug quantity for

the short period of time in 2005 when the conspirators were

under surveillance and that the court erred when it used

that quantity to estimate the amounts he sold as far back as

2002 before the government’s investigation began. Davis

concedes, as he must, that the district court was permitted

to make a reasonable estimate of drug quantity. See

U.S.S.G. § 2D1.1, cmt. 12; United States v. Eschman, 227 F.3d
10 Nos. 07-2433, 07-2435, 07-3118, et al.

886, 890-91 (7th Cir. 2000). His argument is that the court’s

estimate did not have a sufficiently reliable basis. See, e.g.,

Eschman, 227 F.3d at 890-91; United States v. Acosta, 85 F.3d

275, 282-83 (7th Cir. 1996). But Davis ignores several pieces

of evidence that supported the court’s extrapolation: one

gang member testified to the operation of the conspiracy

before 2005, evidence recovered from the trash showed that

the gang operated several drug houses, several members of

the gang were arrested between 2002 and 2005 on

drug charges, and several buyers testified that they bought

heroin from the gang in that time period. Based on all

that evidence, which the district court was entitled to

credit, see, e.g., United States v. Abdulahi, 523 F.3d 757, 761

(7th Cir. 2008), the court’s conservative estimate of the

amount of crack sold during the conspiracy was not clear

error, id.

C. Easter, Glover, Dodson, and McSwain

Dodson and McSwain accepted the court’s invitation to

respond to their lawyers’ motions to withdraw, but Easter

and Glover did not. See CIR. R. 51(b). Our review is limited

to the potential issues identified in the supporting briefs of

counsel and in the submissions from Dodson and

McSwain. See United States v. Schuh, 289 F.3d 968, 973-74

(7th Cir. 2002). All of those issues are frivolous and only

one merits discussion. That one issue, pressed by McSwain

in his Rule 51(b) response, is based on the Second Circuit’s

recent interpretation of 18 U.S.C. § 924(c)(1) in United States

v. Whitley, 529 F.3d 150, 158 (2d Cir. 2008). Section 924(c)(1)

provides in relevant part:
Nos. 07-2433, 07-2435, 07-3118, et al. 11

Except to the extent that a greater minimum sentence is

otherwise provided by this subsection or by any other

provision of law, any person who, during and in relation

to any crime of violence or drug trafficking crime

(including a crime of violence or drug trafficking crime

that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or

device) for which the person may be prosecuted in a

court of the United States, uses or carries a firearm, or

who, in furtherance of any such crime, possesses a

firearm, shall, in addition to the punishment provided

for such crime of violence or drug trafficking crime—

(i) be sentenced to a term of imprisonment of not less

than 5 years;

(ii) if the firearm is brandished, be sentenced to a

term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a

term of imprisonment of not less than 10 years.

18 U.S.C. § 924(c)(1)(A) (emphasis added). In Whitley, the

Second Circuit read the italicized language—the “except”

clause—to preclude a sentencing court from imposing an

additional term of imprisonment under § 924(c)(1) if that

term would be shorter than a greater statutory minimum

required by another count of conviction, including the

crime of violence or drug trafficking crime underlying the

§ 924(c)(1) count. Under what the Second Circuit called a

literal reading of the “except” clause, the district court here

was not free to impose a consecutive five-year term on the

§ 924(c)(1) counts because each of the defendants was
12 Nos. 07-2433, 07-2435, 07-3118, et al.

subject to a mandatory term of 10 or 20 years on the

conspiracy count and that mandatory term was “a greater

minimum sentence . . . otherwise provided by . . . any other

provision of law.” Whitley, 529 F.3d at 153.

Three circuits had published opinions parsing the

“except” clause before Whitley, and each opinion rejected

the argument later adopted by the Second Circuit. United

States v. Jolivette, 257 F.3d 581, 587 (6th Cir. 2001); United

States v. Studifin, 240 F.3d 415, 423 (4th Cir. 2001); United

States v. Alaniz, 235 F.3d 386, 389 (8th Cir. 2000); see also

United States v. Collins, 205 Fed. App’x 196, 198 (5th Cir.

2006) (unpublished). According to the Eighth Circuit,

Congress added the “except” clause to subsection (c)(1)(A)

in order to reconcile the penalty ranges of that paragraph

with the greater penalties set out in subsections (c)(1)(B)

and (c)(1)(C). Alaniz, 235 F.3d at 389. That court further

held that the “except” clause refers only to “the firearmrelated conduct proscribed either by § 924(c)(1) or ‘by any

other provision of law’ ” and not to the underlying drug

trafficking crime or crime of violence. Id. The Fourth

Circuit echoed the Eighth Circuit’s position, explaining

that it read the “except” clause “as simply reserving the

possibility that another statute or provision might impose

a greater minimum consecutive sentencing scheme for a

§ 924(c) violation, and not as negating the possibility of

consecutive sentencing.” Studifin, 240 F.3d at 423. After

Whitley, the First Circuit described that decision as “suspect on its face” and cited the contrary precedent with

approval. United States v. Parker, __ F.3d ___, 2008 WL

5006123, at *5-6 (1st Cir. Nov. 26, 2008). In upholding the

consecutive penalty under § 924(c)(1) in its own case, the
Nos. 07-2433, 07-2435, 07-3118, et al. 13

First Circuit distinguished Whitley on a narrow factual

ground and thus stopped short of explicitly rejecting the

Second Circuit’s analysis. Id. at *6. Nevertheless, we read

the First Circuit’s opinion as squarely aligned with the

majority view.

We also embrace the majority position. Although the

issue is one of first impression in this circuit, that does not

automatically lead to the conclusion that it is nonfrivolous

and cannot be resolved in an Anders posture without

briefing. See United States v. Lopez-Flores, 275 F.3d 661, 662-

63 (7th Cir. 2001); see also United States v. Morris, __ F.3d

___, 2008 WL 5101636 (7th Cir. Dec. 5, 2008). As we have

explained, an issue of first impression “may be frivolous

because, for example, of the clarity of statutory language,

or even as a matter of common sense.” Lopez-Flores, 257

F.3d at 663. The construction of 18 U.S.C. § 924(c)(1)(A) is

such an issue.

We interpret a statute by giving it its most natural

reading, see United States v. Ressam, 128 S. Ct. 1858, 1860

(2008), and the most natural reading of the “except” clause

is that a defendant convicted under § 924(c)(1) shall be

sentenced to a term of imprisonment set forth in

§ 924(c)(1)(A) unless subsections (c)(1)(B) or (c)(1)(C), or

another penalty provision elsewhere in the United States

Code, requires a higher minimum sentence for that

§ 924(c)(1) offense. 

The reading in Whitley would be understandable if

§ 924(c) defined a type of sentencing enhancement meant

to require a mandatory minimum sentence when a firearm

is used in furtherance of an underlying crime of violence or
14 Nos. 07-2433, 07-2435, 07-3118, et al.

drug trafficking crime. If § 924(c) were an enhancement, it

might make sense for that requirement to fall away when

the underlying crime, or some other count of conviction,

requires a greater mandatory minimum. 

But § 924(c) does not define an enhancement, it defines

a standalone crime, see Harris v. United States, 536 U.S. 545,

553 (2002), and the penalty imposed under it must be

imposed to run consecutively to any other sentence, 18

U.S.C. § 924(c)(1)(D)(ii); see also United States v. Griffin, 493

F.3d 856, 868 (7th Cir. 2007); United States v. Sutton, 337

F.3d 792, 802 (7th Cir. 2003). A determination of guilt that

yields no sentence is not a judgment of conviction at all.

And a sentence of zero months cannot be served consecutively to another sentence.

We do not agree with the Whitley opinion that we have

changed the meaning of the statute’s text by reading the

“except” clause as limited to penalties for the § 924(c)(1)

itself. See Whitley, 529 F.3d at 153. On the contrary, the

reading found in Whitley is the less-natural one. It is

difficult to understand why the mandatory minimum

penalty that must be imposed for a standalone firearm

offense should hinge on the mandatory minimum penalty

that must be imposed for any other offense of conviction.

In the contest between reading the “except” clause to refer

to penalties for the offense in question or to penalties for

any offense at all, we believe the former is the most natural.

See Parker, 2008 WL 5006123, at *5.

Where, as here, the plain meaning of the statute is

unambiguous, that is the end of the matter. See CSX

Transp., Inc. v. Georgia State Bd. of Equalization, 128 S. Ct.
Nos. 07-2433, 07-2435, 07-3118, et al. 15

467, 474 (2007); United States v. Webber, 536 F.3d 584, 593

(7th Cir. 2008). Nevertheless, it appears to us that the

reading given in Whitley thwarts Congress’s purpose in

enacting § 924(c)(1) and causes illogical results. First, the

Whitley interpretation of § 924(c)(1)(A) nullifies

§ 924(c)(1)(D)(ii), which requires that a sentence for a

§ 924(c)(1) count run consecutive to any other sentence. See

Studifin, 240 F.3d at 423. Second, the purpose of the 1998

amendment of § 924(c)(1) that created the “except” clause

was to undo the Supreme Court’s holding in Bailey v.

United States, 516 U.S. 137 (1995), which contracted

the application of the statute by adopting a narrow

definition for the “use” of a firearm. As the Second Circuit

has acknowledged, Congress obviously wanted to expand

the reach of § 924(c)(1). Whitley, 529 F.3d at 155; see

also Studifin, 240 F.3d at 421. We do not agree with

the Second Circuit, though, that its reading is consistent

with that desire. Under that reading, many defendants

convicted under § 924(c)(1) would receive no punishment

for the conviction. That is no expansion; it is a contraction.

Finally, the Whitley opinion tries to explain away the

biggest anomaly its reading creates by stressing that, even

when its holding precludes any imprisonment for a

violation of § 924(c)(1), the district court is free, consistent

with the sentencing factors of 18 U.S.C. § 3553(a), to

increase the term for the underlying crime of violence or

drug trafficking count by the amount that § 924(c)(1)

would otherwise require. Whitley, 529 F.3d at 155. 

This explanation is unconvincing because, first, it seems

to rest on the sentencing discretion granted to district
16 Nos. 07-2433, 07-2435, 07-3118, et al.

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

though that opinion came seven years after the “except”

clause was added in 1998. More importantly, though, the

Second Circuit’s “fix” would invite district courts to tinker

with the sentence for one count based on dissatisfaction

with the sentence required for another, a practice we have

disapproved of in a similar situation. See United States v.

Roberson, 474 F.3d 432 (7th Cir. 2007) (reversing overall

sentence where judge who deemed the required consecutive sentence for a § 924(c)(1) count too high reduced the

sentence on a separate count). 

In short, the Second Circuit tries to have it both ways. On

one hand, Whitley holds that Congress intended § 924(c)(1)

to require no penalty in certain situations, but, on the other

hand, the opinion explains that judges unhappy with that

intention may mitigate it by going against Congress’s

intent and increasing the sentence for another count. That

makes no sense and would invite district courts judges to

act outside their sentencing discretion.

For all these reasons, it would be frivolous to argue that

a district court is barred from imposing any sentence at all

for a § 924(c)(1) count when some other count of conviction

requires a greater mandatory minimum. Because all the

other issues discussed in the briefs of counsel and in the

submissions from Dodson and McSwain would be similarly frivolous, we grant the motions to withdraw filed by

counsel for Easter, Glover, Dodson, and McSwain and we

dismiss all four appeals.
Nos. 07-2433, 07-2435, 07-3118, et al. 17

III. CONCLUSION

We AFFIRM the convictions and sentences of McKay and

Davis. We GRANT the motions to withdraw filed by counsel

for Easter, Glover, Dodson, and McSwain, and we DISMISS

all four appeals.

1-16-09