In the

United States Court of Appeals

For the Seventh Circuit

Nos. 07-2649 & 07-2930

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

JAMES E. ROLLINS, SR. AND RUDY SLACK,

Defendants-Appellants.

Appeals from the United States District Court 

for the Southern District of Illinois.

No. 05 CR 30133—David R. Herndon, Chief Judge.

 

 ARGUED APRIL 14, 2008—DECIDED SEPTEMBER 15, 2008

 

Before FLAUM, EVANS, and TINDER, Circuit Judges.

TINDER, Circuit Judge. Beginning in August of 2004,

various law enforcement agencies in southern Illinois

combined their efforts to concentrate on the investigation

of drug distribution and drug crimes in the Alton, Illinois,

area. Their endeavors resulted in an eighteen-count,

twelve-defendant federal indictment in the district court.

Most of the defendants entered pleas of guilty, but a
2 Nos. 07-2649 & 07-2930

It is often the situation in drug distribution organizations that 1

a number of the participants are related, and confusion can arise

from the similarity of some of their names. As you will learn,

Appellant James E. Rollins Sr.’s son and namesake, James E.

Rollins Jr. was a participant in this drug organization and a

defendant at trial. Rudy Slack (who also goes by the names

Enoch Rudy Slack, Enoch Smith and Rudy Smith) also had

relatives in this drug business, including his half-brother Donald

Slack. To minimize confusion, Appellant James E. Rollins Sr. will

be referred to as “Rollins Sr.” and his son will be referred to as

“Rollins Jr.” Similarly, Appellant Rudy Slack will be referred to

as “Slack” or “Rudy Slack” and his half-brother will be referred

to as “Donald” or “Donald Slack.” 

“Crack” is the street name for a type of cocaine base which is 2

different from powder cocaine. See United States v. Grayson, No.

07-3867, 2008 WL 2787495, at *1 (7th Cir. Jul. 18, 2008).

handful of them contested the charges at what turned out

to be a thirteen-day jury trial. This appeal is brought by

two of those trial defendants, James E. Rollins Sr. and Rudy

Slack, against whom the jurors returned verdicts of guilty 1

on the charge of conspiracy to distribute cocaine and 50

grams or more of cocaine base, that is, “crack” cocaine.2

Rollins Sr. also was convicted on one count of distributing

500 grams or more of cocaine (Count 5). Slack suffered

additional convictions on one count of distributing cocaine

(Count 6) and one count of distributing 5 grams or more of

crack (Count 7). Rollins Sr. was sentenced to 97 months of

imprisonment; Slack was sentenced to 108 months of

imprisonment. They both challenge their convictions on

appeal and Slack contests his sentence.
Nos. 07-2649 & 07-2930 3

I. Background

In the early stages of this investigation, law enforcement

used an informant to purchase crack cocaine from codefendant Eric Spruill. On November 1, 2004, Spruill went

to Rudy Slack’s apartment in Alton to obtain crack, which

Spruill intended to sell to the informant (of course, without

a clue that she was actually an informant). Spruill, who

later negotiated a guilty plea conditioned on his cooperation as a witness for the government, testified at trial that

on that occasion, he went into the apartment and saw

Donald Slack and Rudy Slack in the kitchen cooking large

quantities of powder cocaine into crack. Spruill was

overcome by the odor and went outside. A short time later

Slack met Spruill outside and sold him 12.2 grams of what

was later tested and found to be crack cocaine. More on the

Slacks later.

The big fish caught by the DEA’s investigative net was

co-defendant Richard Pittman, a powder cocaine and crack

cocaine distributor and also a daily and heavy marijuana

user. Pittman, who was also persuaded to become a

witness for the government, testified at trial that he

attended a family reunion in Alton during the summer of

2002. James Rollins Jr., John Frost, Talia Pittman and Slack

also attended the reunion. Pittman testified that he and codefendant Rollins Jr. started up a cocaine distribution

relationship. Shortly after the family reunion, Rollins Jr.

delivered a kilogram of cocaine to Pittman who then sold

it to others. Rollins Jr. and Pittman continued their powder

cocaine distribution relationship until 2005 (excepting a

brief period of time when Pittman was incarcerated). They
4 Nos. 07-2649 & 07-2930

dealt in one-half and one-quarter kilogram amounts which

Rollins Jr. delivered twice a month to Pittman via John

Frost, who was employed by Rollins Jr.’s trucking company. After approximately one year, in the summer of

2003, James Rollins Sr. began making the cocaine deliveries

to Pittman in the Alton, Illinois, area. Sometimes Pittman

converted the cocaine powder into crack cocaine.

Pittman testified that on March 20, 2005, he went to

Rollins Sr.’s home in St. Louis, Missouri, to purchase

cocaine. During his trip, the two men had phone conversations which were intercepted by law enforcement. Pittman

identified the voices on the calls as his and Rollins Sr.’s.

Once Pittman arrived at Rollins Sr.’s home, Rollins Sr.

measured out 9 ounces (1/4 kilogram) of powder cocaine

and sold it to Pittman for $5,400. Rollins Sr. gave Pittman

powder cocaine only; Pittman would later convert some of

the powder cocaine to crack cocaine. While inside Rollins

Sr.’s home, Pittman saw 18 ounces of powder cocaine and

a set of digital drug scales. 

Pittman testified that in March 2005 he moved to Atlanta

and continued to make arrangements with Rollins Jr. for

cocaine and continued to receive cocaine from Rollins Sr.

According to Pittman, after Bubba “Catfish” Smith’s

funeral on April 15, 2005, he received a duffel bag containing 9 ounces of cocaine from Rollins Sr.

Co-defendant Tamiesha Williams, Pittman’s common

law wife, who like Pittman smoked marijuana daily, just

not as much, also agreed to serve as a witness for the

government. At trial, she testified that Rollins Sr. delivered

powder cocaine to Pittman at her house every two weeks
Nos. 07-2649 & 07-2930 5

or once a month from the end of 2003 to 2005. She also

testified that the cocaine came from Rollins Jr. Williams

stated that on April 16, 2005, Rollins Sr. delivered one-half

kilogram of cocaine to Pittman and dropped his wallet in

the back seat of Pittman’s rental car. Williams called him,

and Rollins Sr. retrieved his wallet. Williams testified that

Pittman continued to deal cocaine with Rollins Sr. in 9 to 18

ounce quantities about three more times after she and

Pittman had moved to Atlanta.

As mentioned, the Slacks were involved in other aspects

of this drug organization. Around June 2000 when Donald

Slack got out of prison, Rudy Slack introduced Donald to

a cocaine supplier in California, and Donald resumed his

cocaine selling business. In 2003, Donald had an accident

which temporarily knocked him out of the cocaine business. To help get him back in the game, Pittman fronted

Donald 4 1/2 ounces of cocaine, which came from Rollins

Jr. This was enough to get Donald back on his feet in the

cocaine business. Donald testified that in 2004 he began to

sell larger amounts (2 to 3 ounces at a time) of powder

cocaine to Rudy. But the Slacks had a falling-out in September 2004 and stopped dealing with each other until

January 2005 when they started up again. According to

Donald’s testimony, from January until September 19, 2005,

when he was arrested, he sold Rudy three to four ounces of

powder cocaine at a time, four or five times per week.

Donald also testified that he was with Rudy on some

occasions when Rudy sold cocaine (that Donald had

provided) to others. Donald also converted large quantities

of powder cocaine to crack. Donald pled guilty to cocaine

distribution charges in a related case. 
6 Nos. 07-2649 & 07-2930

Co-defendant Alan Taylor, one of Rudy Slack’s regular

customers, was introduced to Slack by Christy Woolsey,

who was a cocaine and crack customer of Rudy’s as well.

The government also persuaded Taylor to join its parade of

cooperating witnesses at trial. Taylor testified that Woolsey

told him she got crack from Rudy Slack. Taylor and

Woolsey got crack from the Slacks and would smoke it

together. Taylor began working for Rudy repairing motor

vehicles and was paid with cash and cocaine. Slack also

sold crack and cocaine to Taylor on several occasions. At

trial, Taylor testified that certain intercepted telephone

calls between him and Slack concerned Taylor’s obtaining

powder cocaine from Slack. According to Taylor, he never

bought crack from Slack. Taylor further testified that on

April 28, 2005, he obtained one and one-half grams of

cocaine from Slack in a parking lot of CTW’s in Alton. The

police stopped the truck in which Taylor was a passenger

(Gary Ontis was the driver) shortly after it left the parking

lot and found a small amount of cocaine between the seats.

Slack also supplied Pittman with cocaine and marijuana.

At least once, Pittman contacted Slack looking for crack

and Slack only had marijuana, which Pittman settled for

instead. In addition to illegal drugs, Slack also contacted

Pittman to alert him of police activity when the police were

actively investigating cocaine trafficking near Pittman’s

house. At trial, Pittman testified that he was concerned

about the police because he did not have a driver’s license.

DEA Agent John McGarry led this investigation into

drug trafficking in the Alton area. In the course of the

investigation, undercover purchases (under government
Nos. 07-2649 & 07-2930 7

Confidential informant Robin Hamilton, Pittman’s relative, 3

made closely supervised controlled buys of cocaine from

Pittman on January 14 and 18, and February 1, 2004.

surveillance) of cocaine were also made from Pittman by an

informant. Eventually, the DEA obtained authorization for 3

wire taps for ten phones used by Pittman, the Rollinses,

Spruill and Slack. Agent McGarry was involved in the wire

tap overhears from the beginning, and he listened to the

intercepted calls every day for the duration of the

wiretaps, from February to July 2005. He developed a

familiarity with the persons using the phones and testified

at trial about his impressions of numerous phone calls. 

On September 20, 2005, law enforcement executed a

search warrant at Rollins Sr.’s home in St. Louis and found

drug paraphernalia in his bedroom, including the cutting

agents Dorman and Manitol, a precision mixing kit and

sifter. They also found a Smith & Wesson firearm in his

bedside table along with ammunition. In a kitchen drawer

they found a “digimon” drug scale, latex gloves, plastic

baggies and plastic mixing bowls. Predictably, Rollins Sr.

was arrested. In his post-arrest statement following a

Miranda waiver on September 20, Rollins Sr. advised

investigators, including Agent McGarry, that he was a

party to one of the intercepted calls, that he knew Pittman,

that Pittman had approached him asking him for “some

product,” he collected drug proceeds from Pittman for

about eighteen months, and that he was paid for his

participation in the drug business. 

The jury trial began on January 22, 2007. More than 100

recorded telephone conversations were played during trial.
8 Nos. 07-2649 & 07-2930

Of those, according to Agent McGarry, 43 were alleged

drug-related calls between Pittman and Rollins Sr., and 30

were alleged drug-related calls between Rollins Sr. and

Rollins Jr. Slack was heard on 22 alleged drug-related calls

with various co-conspirators. Agent McGarry testified that

he became “very familiar” with the voices he heard on the

recorded conversations between the members of the

alleged conspiracy. Agent McGarry testified, over objection, as to his impressions about various recorded conversations. (This testimony has become the major issue raised

in this appeal.) He testified that his personal impression

was that Rollins Sr. was supplying Pittman with cocaine

and that Rollins Sr. was getting his cocaine from Rollins Jr.

McGarry also testified that based on his involvement with

the wiretaps, his impression was that John Frost was

assisting with the transport of the cocaine. The agent also

testified as to his impression that in conversations between

Rollins Sr. and Pittman on March 14, 2005, Rollins Sr. had

contacted Pittman to see if he had money available and, in

a phone conversation later that day, Rollins Sr. gave

Pittman his location. Agent McGarry further testified that

his impression was that when Rollins Sr. and Pittman

talked about “big shoes and little shoes” in a recorded

conversation on March 15, 2005, they were talking about 18

ounces and 9 ounces of cocaine. Another example of the

agent’s “impressions” testimony concerned his statement

that in an April 9, 2005, conversation in which Rollins Sr.

and Rollins Jr. referred to “the band” and “the singer,” the

“band” was a reference to Richard Pittman and the height

of the singer, 5’ 6”, was a reference to the $5,600 that was

collected from him. Agent McGarry also testified as to his
Nos. 07-2649 & 07-2930 9

impression that various other phone calls between

Rollins Sr. and Pittman were conversations about drug

transactions. 

Pittman also testified about recorded telephone conversations in which he had participated. He said that on March

14, 2005, during a call between himself and Rollins Sr. the

term “squares” meant money, and “big shoes” and “little

shoes” meant 9 and 4 1/2 ounces of cocaine, respectively.

Pittman testified that in a April 16 recorded conversation

between him and Rollins Jr., “kids” meant marijuana.

Pittman identified recorded conversations with Slack in

which he alleged they discussed marijuana; the government argued that the references were to cocaine instead.

II. Analysis

Both defendants argue that the district court abused its

discretion in allowing the case agent to testify (under the

auspices of Rule 701 of the Federal Rules of Evidence) as to

his impressions of electronically intercepted telephone

conversations. They also assert that the court erred in

denying their motions for a judgment of acquittal based on

insufficient evidence. Rollins Sr. further contends that the

court erred in increasing his offense level for possession of

a dangerous weapon under U.S.S.G. § 2D1.1(b)(1). Slack

claims that the court erred in denying his motion to

dismiss the indictment based on what he asserts is a

Speedy Trial Act violation and he challenges two other

evidentiary decisions. Finally, Slack contends that the court

made several errors in sentencing. Specifically, he argues

that the court erred in determining the amount of cocaine

base for which he was responsible as relevant conduct
10 Nos. 07-2649 & 07-2930

under U.S.S.G. § 1B1.3, in failing to appreciate the advisory

nature of the Sentencing Guidelines, and in imposing an

unreasonable sentence by relying on the Guidelines range

for crack cocaine.

We will address the Speedy Trial Act matter first,

followed by the challenges to the admissibility of certain

testimony. Then we will take up the question of the

sufficiency of the evidence. Finally, we will discuss Slack’s

sentencing arguments.

A. Speedy Trial Act

Slack argues the district court erred in denying his

motion to dismiss based on a violation of the Speedy Trial

Act, 18 U.S.C. § 3161. He focuses on the lack of a contemporaneous ends of justice finding and an allegedly unreasonable delay in arraigning the last co-defendant. The Act

provides that “the trial of a defendant charged in an

information or indictment with the commission of an

offense shall commence within seventy days from the filing

date (and making public) of the information or indictment,

or from the date the defendant has appeared before a

judicial officer of the court in which such charge is pending, whichever date last occurs.” Id. § 3161(c)(1). Certain

periods of delay are excluded from the Speedy Trial

computation, however. Id. § 3161(h). These include “delay

resulting from any pretrial motion, from the filing of the

motion through the conclusion of the hearing on, or other

prompt disposition of, such motion,” id. § 3161(h)(1)(F),

and “[a] reasonable period of delay when the defendant is

joined for trial with a co-defendant as to whom the time for
Nos. 07-2649 & 07-2930 11

trial has not run and no motion for severance has been

granted,” id. § 3161(h)(7). We review the denial of a Speedy

Trial Act motion de novo when calculation of time is at

issue. United States v. Parker, 508 F.3d 434, 438 (7th Cir.

2007).

An excludable delay of one defendant may be excludable

as to all co-defendants, absent severance. United States v.

Dennis, 737 F.2d 617, 620 (7th Cir. 1984). On September 20,

2005, the indictment was filed and Slack made his initial

appearance. The last co-defendant, Shara Smith, made

her initial appearance on March 3, 2006. Thus under

§ 3161(h)(7) the time period between September 20 and

March 3 is excluded from the speedy trial computation,

provided it was reasonable. Slack claims that it was not.

The question of whether a delay was reasonable depends

on the facts of the case. Dennis, 737 F.2d at 621. The delay

until Smith’s appearance was about five and one-half

months, which is not unduly long. Slack argues that he

did not “sandbag” the district court with respect to his

speedy trial challenge and that the failure to oppose the

motions to continue trial or to move for a severance were

due to “circumstances beyond [his] control.” Nonetheless,

Slack did not move for severance.

But we may put the delay in arraigning Smith aside. The

next to the last of the twelve defendants to make an initial

appearance was Rollins Jr., who made his appearance on

October 27, 2005. Slack does not argue that the period from

his appearance on September 20 until Rollins Jr.’s appearance on October 27 was unreasonable. It was relatively

brief and resulted from the fact that Rollins Jr. was only
12 Nos. 07-2649 & 07-2930

arrested—outside of the court’s jurisdiction in distant

California—on October 14, 2005. We have no reason to

conclude that the period from September 20 to October 27

was anything other than a reasonable period of delay. And

in the time between Slack’s appearance and Rollins Jr.’s

appearance, several pre-trial motions had already been

filed, ultimately resulting in excludable delay until March

13, 2006. After that, more pre-trial motions were filed by

co-defendants. The delays resulting from these pretrial

motions, from filing to disposition, were properly excluded

not only as to the defendants who filed them, 18 U.S.C.

§ 3161(h)(1)(F), but also as to Slack who, as we have noted,

did not seek a severance, Dennis, 737 F.2d at 620. And

finally, on August 10, 2006, Slack himself filed a pre-trial

motion, seeking new counsel. A period of time was excluded due to this motion—until September 7, 2006—and

by then, Rollins Jr. had moved for a severance, which

resulted in the exclusion of the time through December 18,

2006. Rollins Jr. subsequently filed more pre-trial motions

and Slack filed additional pre-trial motions, all of which

together resulted in excludable delay up until January 17,

2007. The trial began January 22, 2007.

That leaves Slack to complain about the district court’s

failure to make a contemporaneous “ends of justice” finding

when, on October 25, 2005, it granted Pittman’s motion to

continue trial. As we recognized in United States v. Larson,

417 F.3d 741 (7th Cir. 2005), the district court is not required

to make the ends of justice findings contemporaneously

with its continuance order. Id. at 746. In Larson we indicated

that “the better practice is for the court to make the required findings at least prior to a defendant’s motion to
Nos. 07-2649 & 07-2930 13

dismiss the indictment for a violation of the Act.” Id. That

occurred here. On September 6, 2006, the court issued an

order making the necessary ends of justice findings with

respect to the October 25 continuance. The order noted that

the case was complex with twelve defendants; it involved

wiretap or telephonically intercepted information, which

could make discovery more involved; at the time of

Pittman’s motion, several defendants had yet to be arraigned, and Pittman’s newly appointed counsel needed

time to prepare effectively for trial. The court also found

that under the circumstances a denial of a continuance

likely would result in the miscarriage of justice, even when

weighed against the public interest and the defendants’

interest in a speedy trial, and noting that none of the other

defendants had opposed the continuance. Thus, the court

ruled that the time from October 21, 2005, when Pittman

sought a continuance, until March 13, 2006, the date for

which the trial had been re-set, was excludable time under

the Speedy Trial Act. The court’s findings were made before

Slack filed his January 3, 2007 motion to dismiss based on

an alleged speedy trial violation. We find no violation of the

Act and therefore conclude that the district court did not err

in the denying Slack’s motion to dismiss.

B. Evidentiary Challenges

We review the district court’s evidentiary rulings for an

abuse of discretion. United States v. Swan, 486 F.3d 260, 263

(7th Cir. 2007).
14 Nos. 07-2649 & 07-2930

Rule 701 provides in pertinent part: 4

If the witness is not testifying as an expert, the witness’

testimony in the form of opinions or inferences is

limited to those opinions or inferences which are

(a) rationally based on the perception of the witness,

(b) helpful to a clear understanding of the witness’

testimony or the determination of a fact in issue, and

(c) not based on scientific, technical, or other specialized

knowledge within the scope of Rule 702.

1. Agent McGarry’s “Impressions” Testimony

Both defendants contend that the district court abused its

discretion in allowing Agent McGarry to testify as to his

“impressions” of intercepted telephone conversations as lay

opinions or inferences under Federal Rule of Evidence 701.

4

Agent McGarry was a key government witness, testifying

for two days on direct examination. During his testimony,

the prosecutor asked him for his “impression” as to the

meaning of portions of several dozen recorded conversations. There were also more than a dozen instances in which

the prosecutor, in effect, asked Agent McGarry for his

impression of a recorded conversation without using the

word “impression.” In responding, Agent McGarry gave

his impressions that particular numbers referred to

amounts of or prices for illegal drugs. He testified that

certain words were code words for illegal drugs. And he

interpreted various conversations to show that the alleged

conspirators’ activities were consistent with the charged

conspiracy. For example, the prosecutor asked Agent

McGarry, “Your impression of what it means for them to

say they are going to go have a drink at 10:30 to 11:00
Nos. 07-2649 & 07-2930 15

o’clock?,” and Agent McGarry answered, “my impression

is this call is also based on—we established surveillance at

James Rollins, Senior’s residence, anticipating 10:30 or

11:00 arrival of a truck driven by John Frost.” The agent

then explained that there was no meeting at the appointed

time, law enforcement continued surveillance until the

early morning hours, and then terminated surveillance

because they did not believe the truck would be arriving

after the appointed time.

The government disputes whether either Rollins Sr. or

Slack made a sufficient objection at trial to Agent McGarry’s

“impressions” testimony. Thus, the government contends

that these defendants have forfeited the issue absent a

showing of plain error. We do not have to address the

forfeiture argument in detail. First, the record supports the

view that there was an agreement between all counsel and

the court at the beginning of trial that an objection by one

defendant would be considered an objection for all defendants. The government does not dispute that Rollins Jr.

made a sufficient objection to Agent McGarry’s testimony

to preserve the issue. Thus, Rollins Jr.’s sufficient objection

would be considered effective as to both Rollins Sr. and

Slack. Furthermore, whether reviewed for an abuse of

discretion or under the more stringent plain error standard,

we find no error in the admission of Agent McGarry’s

“impressions” testimony.

In allowing the “impressions” testimony, the district

court explained:

[T]he cases that talk about code words talk about

witnesses who rely on their years of experience as

a law enforcement officer. As we discussed at the
16 Nos. 07-2649 & 07-2930

side bar, the discussion here is about the words that

come about that are unique to the conversations

that have occurred throughout this particular

alleged conspiracy. It is clear and it has been clear

to this Court throughout that these guys are making

this up as they go. Sometimes they make it up in

each unique conversation. The officer or the agent

is testifying based on his having listened to the

conversations and based on his impressions, so it is

clearly 701. It is not 702. . . . [T]he words that are

being used, quite frankly, I have not heard these

words in any other telephone calls that I have

heard. . . . [T]he testimony is not coming in based

on his experience as the law enforcement officer, it

is based on his experience only within this conspiracy. 

(Trial Tr. vol. 21, 78.)

Even the conspirators themselves did not always pick up

right away on the meaning of these peculiarly coded

conversations. During many of the conversations, one of the

speakers would start talking out of the blue about “having

drinks,” the height of a “singer” in a “band,” “work,” “big

shoes and little shoes” and a variety of other things that

would appear at first to be virtually nonsensical. For

example, as Pittman explained in his testimony, during one

conversation he had with Rollins Jr., Pittman initially was

puzzled when Rollins Jr. started talking about running into

“his little cousin.” But as the discussion continued, Pittman

figured out what these confusing comments really meant:

Rollins Jr. was talking about being short of cocaine. And
Nos. 07-2649 & 07-2930 17

there was no pattern or predictability to the terminology. It

was helpful to the jury to have explanations from the

cooperating witnesses. It was also helpful to have explanations from the investigator who became intimately familiar

with the unusual manner of communicating used by these

conspirators. 

We find that the trial judge did not err in concluding that

Agent McGarry’s “impressions” testimony was rationally

based on his first-hand perception of the intercepted phone

calls about which he testified as well as his personal,

extensive experience with this particular drug investigation.

The agent listened to every intercepted conversation from

February through July 2005 on the phones used by Slack,

the Rollinses, Pittman and Frost. Agent McGarry testified

that he became “very familiar” with the voices he heard.

Law enforcement surveillance of the conspirators’ activities

assisted in giving meaning to various words used in the

recorded conversations. The officers’ observations of the

conspirators’ activities often confirmed that their understanding of a recorded conversation was accurate. Agent

McGarry participated in the interviews of witnesses who

were familiar with the defendants and the drug conspiracy

and in obtaining proffers from members of the conspiracy.

These bases for Agent McGarry’s testimony defeat Rollins

Sr.’s claim the government laid an insufficient foundation

for this testimony.

We also find that the “impressions” testimony assisted

the jury in understanding Agent McGarry’s testimony

about the intercepted conversations—what the parties to

the conversations said and what they meant. This testimony
18 Nos. 07-2649 & 07-2930

also assisted the jury in determining several facts in issue,

including whether the defendants knowingly and intentionally participated in the charged conspiracy and their roles

and extent of their involvement in that conspiracy.

The defendants rely on United States v. Grinage, 390 F.3d

746 (2d Cir. 2004), in contending that the “impressions”

testimony was erroneously admitted. We, however, disagree with the Second Circuit’s view of what is and what is

not impermissible lay opinion testimony. In any event,

Grinage seems unlike this case in a critical respect. The

evidence at trial in this case established that certain words

had certain meanings to conversation participants at

different times; the speakers were making it up as they

went along. They did not employ typical drug code words.

That does not appear to have been the situation in Grinage

where the narcotics code words were more readily understandable and not unique to the specific conspiracy, let

alone particular conversation, at issue. See id. at 748 (recounting testimony of DEA agent that participants in

telephone conversation about drug deals did not use code).

Thus, Agent McGarry’s impressions testimony was not

based on any specialized knowledge gained from his law

enforcement training and experience in narcotics trafficking

generally. Rather, his understanding of these conversations

came only as a result of the particular things he perceived

from monitoring intercepted calls, observing drug transactions of these conspirators, and talking with the cooperating

conspirators about this drug operation as the investigation

rolled into the trial preparation phase. He had become

intimately familiar with each voice on the calls, particular

mannerisms of the speakers and the habits of the conspirators. 
Nos. 07-2649 & 07-2930 19

We are guided by our recent decision in United States v.

Oriedo, 498 F.3d 593, (7th Cir. 2007), in which we held that

an agent’s testimony about how drug dealers use baggies to

package drugs was erroneously admitted as lay opinion

testimony. We said that the agent’s testimony “fits squarely

within this court’s precedent defining expert testimony by

officers as to matters within their experience observing

narcotics trafficking practices.” Id. at 603. In reaching this

conclusion, we explained that the agent’s “testimony was

not limited to what he observed in the search or to other

facts derived exclusively from this particular investigation;

instead, he brought the wealth of his experience as a

narcotics officer to bear on those observations and made

connections for the jury based on that specialized knowledge.” Id. (emphasis added); see also United States v.

Miranda, 248 F.3d 434, 441 (5th Cir. 2001) (holding agent’s

testimony about code words used in recorded calls admissible as lay opinion because it was based on the agent’s

“extensive participation in the investigation of this conspiracy, . . . [which] allowed him to form opinions concerning

the meaning of certain code words used in this drug ring

based on his personal perceptions” (emphasis added)).

Here, though, the code words used in the intercepted

conversations were unique to this conspiracy and, at times,

unique to the particular intercepted conversation. As the

district judge observed, the words about which Agent

McGarry testified were not “words in any other telephone

calls that [he] ha[d] heard.” Therefore, the agent’s “impressions” testimony was based on his own personal observations and perceptions derived from this particular case.

Such testimony is admissible as lay opinion testimony. See

Oriedo, 498 F.3d at 603.
20 Nos. 07-2649 & 07-2930

In sum, Agent McGarry’s “impressions” testimony was

not expert testimony. It was not based on scientific, technical or other specialized knowledge within the scope of Rule

702. Instead, his testimony was lay opinion testimony. 

To be sure, the jury was well aware that Agent McGarry

had years of experience as a law enforcement officer. But

we do not think that he was cloaked with an “aura of

expertise” which allowed the jury to be unduly swayed by

his testimony or that his testimony was based on his

specialized knowledge as a DEA agent for several years.

Furthermore, at times, Agent McGarry’s testimony as to the

meaning of certain words used in a conversation was

corroborated by the testimony of another witness such as

Pittman. The defendants argue that Agent McGarry acted

as a summary witness with respect to the intercepted

telephone conversations. The record does not support this

argument. He did not summarize the conversations; he

testified what his impressions or opinions were as to the

meaning of words used in the conversations. Rollins Sr.

argues that the admission of the “impressions” testimony

usurped the jury’s role by providing an overall conclusion

of criminal conduct. But unlike the agent’s testimony in

United States v. Garcia, 413 F.3d 201, 213-14 (2d Cir. 2005),

cited by Rollins Sr., Agent McGarry was not merely telling

the jury what result to reach as to the defendants’ culpability.

While Agent McGarry’s testimony approaches the line

dividing lay opinion testimony from expert opinion testimony, we find no error in the district court’s decision to

allow the “impressions” testimony where, as here, it is

based on the agent’s perceptions derived from the investi-
Nos. 07-2649 & 07-2930 21

gation of this particular conspiracy. The experienced trial

judge did not abuse his discretion in admitting this testimony under Rule 701. Besides, the other evidence of guilt

of these two defendants is so overwhelming that even if the

McGarry “impressions” testimony had crossed the line, it

would have, at worst, amounted to harmless error. 

2. Donald Slack’s Challenged Testimony

Rudy Slack contends the district court erred in denying

his motion to strike Donald Slack’s testimony about Donald’s drug dealing with Rudy before September 2004 and

after December 2004, maintaining that the testimony

involved a different conspiracy than the one charged in the

indictment. Slack describes this as “other crimes evidence”

which was neither inextricably intertwined with the

charged conspiracy nor proper Rule 404(b) evidence. The

government responds that Slack did not preserve the issue

for appeal. 

“In order to preserve a ruling on the admission of evidence for appeal, a party must make ‘a timely objection or

motion to strike [which] appears of record, stating the

specific ground of objection, if the specific ground was not

apparent from the context.’” United States v. Swan, 486 F.3d

260, 263 (7th Cir. 2007) (quoting Fed. R. Evid. 103(a)(1)). If

the ruling is not preserved, then we review for plain error.

Id. at 264. “Under plain error review, an error must be ‘clear

or obvious’ and ‘affect substantial rights’” for reversal of

the evidentiary ruling. Id. Slack moved to strike Donald’s

testimony except for his testimony that he had nothing to

do with Rudy from September 2004 to January 2005. Slack
22 Nos. 07-2649 & 07-2930

asserted: “There was no testimony by the government that

any of the cocaine that Donald Slack was dealing with came

from anybody in this conspiracy. His testimony was that he

was getting his cocaine from other people.” (Trial Tr. 21, 15-

16.) It strikes us that Slack’s motion to strike did not

preserve the issue for appeal—the grounds he asserts on

appeal were neither stated specifically nor apparent from

context. Thus, we review for plain error, which means that

the error must be “clear or obvious” and “affect substantial

rights” for us to reverse the district court’s decision to

admit the evidence. Id.

But whether the decision to admit Donald’s testimony is

reviewed for plain error or under an abuse of discretion

standard makes little difference. We disagree with Slack’s

characterization of the testimony about his drug dealings

with Donald as “other crimes” evidence. The cocaine and

crack cocaine conspiracy was alleged to have taken place

from the summer of 2002 through August 2005. Donald

Slack’s testimony about events prior to September and after

December 2004 fit within that time frame. Slack argues that

the challenged evidence lacked a connection to the conspiracy because Donald testified that his sources and customers

were people not charged in the indictment and there was no

evidence that Donald got cocaine from Pittman or the

Rollinses. But there was evidence that in 2003, Donald had

an accident and was unable to sell cocaine and Pittman

fronted him 4 1/2 ounces of cocaine—enough to get him

back on his feet in the cocaine business. Pittman just

happened to have obtained the cocaine from Rollins Jr. The

evidence at trial also supported a finding that Donald made

at least two more purchases of powder cocaine from
Nos. 07-2649 & 07-2930 23

Pittman. Furthermore, Eric Spruill testified that he saw

Donald and Rudy together on November 1, 2004 cooking

powder cocaine into crack cocaine, some of which was then

sold to Spruill. Whether to believe Donald’s testimony that

he was not involved in any drug dealing with Rudy Slack

in September through December 2004 was for the jury to

decide. They chose to credit Spruill’s testimony. We find no

error in the district court’s decision to admit the challenged

testimony of Donald Slack. 

3. Taylor’s Testimony Regarding Woolsey’s Statements

Rudy Slack argues the district court erred in allowing

Alan Taylor to testify that Christy Woolsey told him she got

crack cocaine from Slack. He submits that Woolsey’s

statements were hearsay and not admissible as co-conspirator statements under Federal Rule of Evidence 801(d)(2)(E).

Under that Rule, statements of a coconspirator made

“during the course and in furtherance of the conspiracy”

are not hearsay and are admissions by a party opponent.

United States v. Hargrove, 508 F.3d 445, 449 (7th Cir. 2007).

Use of such evidence does not violate the defendant’s

Confrontation Clause rights. Id.; Bourjaily v. United States,

483 U.S. 171, 182 (1987). Slack claims that Woolsey was not

a member of the conspiracy. The evidence was more than

sufficient to establish Woolsey’s membership in the conspiracy, however. 

The evidence was that Woolsey and Taylor were friends

who “got high” together. Woolsey usually supplied the

crack that they smoked and she told Taylor that she got it

from a guy named Ru-Ru, who Taylor learned used the
24 Nos. 07-2649 & 07-2930

name “Rudy Smith.” At trial Taylor identified Rudy Slack

as “Rudy Smith.” Woolsey also obtained crack from Donald

Slack. Taylor testified that sometime in 2005 Woolsey

introduced him to Rudy Slack and he went to work as a car

mechanic for Slack, getting paid in cash and powder

cocaine. Taylor also testified that at the end of 2004 or 2005,

Woolsey bought crack cocaine from Slack for her and

Taylor. Although Taylor testified that he never obtained

crack cocaine from Rudy Slack, he did testify that he obtained powder cocaine from him. Thus, we conclude that

the district court did not abuse its discretion in admitting

Taylor’s testimony about Woolsey’s statements that she got

crack cocaine from Slack under Rule 801(d)(2)(E).

C. Sufficiency of the Evidence

Both defendants sought a judgment of acquittal as to

Count 1, which alleged a conspiracy in violation of 21

U.S.C. § 846. Rollins Sr. also sought a judgment of acquittal

as to Count 5, which charged him with knowingly and

intentionally distributing 500 grams or more of a mixture of

substance containing cocaine in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(B). 

A district court’s ruling on a motion for a judgment of

acquittal is reviewed de novo. United States v. Moses, 513

F.3d 727, 733 (7th Cir. 2008). Such a motion should be

granted only if there is insufficient evidence to support a

conviction. Id. A defendant’s burden in showing the

evidence was insufficient to support a conviction is “nearly

insurmountable.” Id. We view the evidence in the light most

favorable to the government and will overturn a conviction
Nos. 07-2649 & 07-2930 25

“only if the record contains no evidence, regardless of how

it is weighed,” from which the jury could have found the

defendant was guilty. Id. (quotation omitted). It is up to the

jury to weigh the evidence and determine the credibility of

the witnesses; we do not second-guess the jury’s assessment

of the evidence. United States v. Graham, 315 F.3d 777, 781

(7th Cir. 2003).

“A conspiracy exists when: (1) two or more people agree

to commit an unlawful act, and (2) the defendant knowingly and intentionally joins in the agreement.” United

States v. Griffin, 493 F.3d 856, 862 (7th Cir. 2007). To prove a

conspiracy under 21 U.S.C. § 846, the government “must

present substantial evidence that the defendant knew of the

illegal objective of the conspiracy and agreed to participate.” United States v. Thornton, 197 F.3d 241, 254 (7th Cir.

1999).

As for Slack, the government presented substantial

evidence to connect him to the conspiracy charged in

Count 1. Co-defendant Spruill testified that Rudy and

Donald were cooking large quantities of powder cocaine

into crack on November 1, 2004. According to Spruill, he

had gone to Rudy’s home to get crack, and he did—12.2

grams. Co-defendant Taylor testified that he worked for

Slack and was paid in cash and cocaine. Taylor testified that

Rudy also sold crack and cocaine to him on several occasions. There was evidence that Slack repeatedly sold crack

to Woolsey. The government offered evidence of phone

calls between Pittman and Slack; while Slack argued the

calls were about marijuana, the government argued that

they were about cocaine. The jury was free to draw its
26 Nos. 07-2649 & 07-2930

own conclusions. In addition, the government introduced

evidence that Slack telephoned Pittman to alert him to

police activity. All of this is substantial evidence that Slack

knew of the conspiracy’s illegal objective and agreed to and

did participate in it.

However, Slack maintains that the jury’s special verdicts

were inconsistent and, thus, showed that they found him

guilty of a conspiracy other than the conspiracy involving

the Rollinses, Pittman and Frost. In the special verdicts as

to the Rollinses and Frost, the jury found that the conspiracy did not involve 5 or more grams of cocaine base.

However, in the special verdict for Slack the jury found

that the conspiracy involved 5 grams or more but less

than 50 grams of cocaine base. Slack argues that if the

jury had found that he joined a conspiracy with the

Rollinses, Pittman, Frost and others as charged in Count 1,

then the special verdict amounts should have been identical. Because they were not, Slack maintains there was a

prejudicial variance in what was charged and what was

proven at trial.

Slack faces a heavy burden in making out his variance

claim. As we have stated:

A variance arises when the facts proved by the

government at trial differ from those alleged in the

indictment. We treat a conspiracy variance claim as

an attack on the sufficiency of the evidence supporting the jury’s finding that each defendant was a

member of the same conspiracy. A defendant

succeeds on a variance claim only by showing that

the evidence at trial was insufficient to support the
Nos. 07-2649 & 07-2930 27

jury’s finding of a single conspiracy and that he was

prejudiced by the variance. 

Griffin, 493 F.3d at 862 (citations omitted). Further, even if

Slack establishes a variance between the indictment and the

proof at trial, that variance is not fatal if the government

proves a subset of the charged conspiracy. United States v.

Payne, 226 F.3d 792, 795 (7th Cir. 2000). 

The indictment charged Slack and eleven co-defendants

with a conspiracy. The jury very well could have found that

the conspiracy the Rollinses and Frost had joined with

respect to crack cocaine was a subset of the conspiracy in

which Slack participated. The fact that Pittman did not

implicate Slack in the conspiracy and testified that the

telephone calls with Slack involved marijuana rather than

cocaine is not controlling. The jury could reasonably find

that Pittman was not being forthcoming about Slack’s

involvement—they were, after all, half-brothers—and that

Pittman was trying to protect Slack just as he was trying to

protect other family members such as his mother. Nor does

the fact that Pittman’s common law wife, Tamiesha Williams, herself an active member of the conspiracy, testified

that she did not know that Slack played any role in the

conspiracy compel a finding that Slack was not connected

to the conspiracy. The law does not require each member of

a conspiracy to know all the other members of the conspiracy. United States v. Dortch, 5 F.3d 1056, 1063-64 (7th Cir.

1993). Furthermore, Williams admitted to having lied and

perjured herself in the past in an effort to protect Pittman’s

family members. As with any witness, the jury was free to

decide whether to credit Williams’s testimony, in whole, in

part, or not at all.
28 Nos. 07-2649 & 07-2930

Moreover, the evidence would support a reasonable

inference that the Slack brothers cooked large quantities of

powder cocaine that they had obtained from the Rollinses,

Pittman and others into crack cocaine. Thus, a reasonable

jury could find that Slack participated in a conspiracy

involving a greater amount of crack cocaine than the subset

conspiracy in which some of the other co-conspirators

participated. We find substantial evidence in the record

supporting the jury’s determination that Slack was guilty of

the conspiracy charged in Count 1. Therefore, the district

court did not err in denying his motion for a judgment of

acquittal. 

As for Rollins Sr., he contends that although there was

testimony that he was involved in telephone conversations

with Pittman, Rollins Jr., and Frost, the words “cocaine”

and “crack cocaine” were not used in any of them. Agent

McGarry’s testimony and Pittman’s testimony allowed the

jury to find that Rollins Sr. and Pittman had various

intercepted telephone conversations about drug transactions, specifically cocaine. Rollins Sr. thinks Agent

McGarry’s “impressions” testimony was inadmissible;

we disagree. He argues that no rational trier of fact could

have believed Pittman, who had much to gain by implicating him and who had been stoned on marijuana much of

the relevant time period. And according to Rollins Sr., no

rational trier of fact could have believed the other government witnesses that directly implicated him in a cocaine

conspiracy, namely, Ms. Williams, Pittman’s common law

wife and an admitted liar and perjurer, and Robin Hamilton, Pittman’s relative, a paid government informant and a

liar as well. While neither Pittman, Williams, nor Hamilton
Nos. 07-2649 & 07-2930 29

would be considered completely honest, a reasonable jury

could have believed their testimony—and this despite the

various reasons to discredit their testimony identified by

Rollins Sr. That dooms Rollins Sr.’s argument that the

district court erred in denying his motion for judgment of

acquittal. See Graham, 315 F.3d at 781 (“[We] cannot secondguess the jury’s determination of which witnesses were

credible and which were not.”).

D. Sentencing Challenges

We review for clear error the district court’s factual

findings at sentencing, United States v. Abdulahi, 523 F.3d

757, 761 (7th Cir. 2008), and application of the United States

Sentencing Guidelines is examined on a de novo basis,

United States v. Samuels, 521 F.3d 804, 815 (7th Cir. 2008).

1. Enhancement for Possession of a Weapon 

Rollins Sr.’s offense level was increased by two levels for

possession of a firearm pursuant to U.S.S.G. § 2D1.1(b)(1).

“[T]he government bears the burden of proving by a

preponderance of the evidence that a firearm was possessed

during the commission of the offense or relevant conduct.”

United States v. Womack, 496 F.3d 791, 797 (7th Cir. 2007)

(quotation omitted). The government need not prove “a

connection between the firearm and the offense, only that

the weapon was possessed during the offense.” United

States v. Yanez, 985 F.2d 371, 378 (7th Cir. 1993). If the

government carries its burden, then the burden shifts to the

defendant to demonstrate that it was “clearly improbable”
30 Nos. 07-2649 & 07-2930

that the firearm was connected to the offense. Womack, 496

F.3d at 798.

The government met its burden. The indictment charged

that the conspiracy continued through in or about August

2005. The government offered evidence that on September

20, 2005, at the time of Rollins Sr.’s arrest, the gun and

ammunition were found in his bedroom, along with drug

paraphernalia, and other evidence of drug trafficking was

found in the kitchen. Rollins Sr. offered no evidence to

show that it was clearly improbable that the firearm was

connected to the conspiracy. He argues that there was no

evidence that he carried the gun, brandished it, or used it in

any other way in furtherance of the conspiracy. But the

government need not prove any of these things. Rollins Sr.

also argues that there was no evidence that the conspiracy

was still ongoing at the time of his arrest. But mere argument of a supposed earlier end to the conspiracy is not

enough. Rollins Sr. points to no evidence to suggest that the

conspiracy had ended before his arrest and the discovery of

the gun. The district court reasonably could infer from the

record including the timing of the discovery of the gun and

its presence together with the evidence of drug paraphernalia and drug trafficking that Rollins Sr. possessed the gun

during the conspiracy. See id. at 798 (concluding no error in

adding the enhancement under § 2D1.1(b)(1) where there

was “evidence that Womack had a gun in his possession at

his home, where he received and sold cocaine, particularly

when the gun was in such close proximity to a significant

stash of money bundled in various denominations”). Thus,

we find no error in the district court’s application of an

enhancement to Rollins Sr.’s offense level for possession of

a firearm under U.S.S.G. § 2D1.1(b)(1).
Nos. 07-2649 & 07-2930 31

2. Amount of Drugs Attributable to Slack

Slack argues that the district court erred in determining

the amount of cocaine base attributable to him as relevant

conduct under U.S.S.G. § 1B1.3. He submits that the court

erred in relying on drug dealing that was separate from the

conspiracy alleged in Count 1. He also claims the court

relied on unreliable hearsay statements contained in the

Presentence Report (PSR) in determining the drug quantity.

As with other factual findings at sentencing, we review a

district court’s findings as to relevant conduct and drug

quantity for clear error. United States v. Artley, 489 F.3d 813,

821 (7th Cir. 2007). Thus, we will affirm the district court

“unless, after considering all of the evidence, we are left

with a definite and firm conviction that a mistake has been

committed.” Id. (quotation omitted). 

The government must prove the amount of drugs attributable to a defendant by a preponderance of the evidence.

Id. And a defendant has a due process right to be sentenced

on the basis of accurate information. Id. However,

“[e]videntiary standards are relaxed at sentencing;

a sentencing court may consider information that has

‘sufficient indicia of reliability to support its probable

accuracy.’” United States v. Abdulahi, 523 F.3d 757, 761 (7th

Cir. 2008) (quoting U.S.S.G. § 6A1.3(a)); see also United States

v. Schroeder, No. 07-3773, 2008 WL 2971805, at *4 (7th Cir.

Aug. 5, 2008) (same in the context of relevant conduct). A

district court may rely on facts asserted in the PSR if the

PSR is based on sufficiently reliable information. Schroeder,

2008 WL 2971805, at *4; Artley, 489 F.3d at 821. The defendant bears the burden of proving that the PSR is inaccurate
32 Nos. 07-2649 & 07-2930

 Slack incorrectly states, citing PSR ¶¶ 21, 22, that the PSR 5

attributed to him 8.7 grams of crack cocaine sold by Donald.

Paragraph 21 of the PSR actually indicates that the confidential

source purchased crack cocaine from Rudy not Donald. 

or unreliable. Id. If he offers no evidence to question the

PSR’s accuracy, the court may rely on the PSR. Id.

Slack first complains that the district court attributed to

him 8.7 grams of crack sold by Donald Slack although his

alleged drug dealing with Donald was separate and distinct

from the charged conspiracy. “Relevant conduct can be

used to enhance a defendant’s sentence if it is part of the

same course of action or common scheme or plan that gave

rise to the defendant’s conviction.” United States v.

McGowan, 478 F.3d 800, 802 (7th Cir. 2007). We already have

considered and rejected Slack’s claim that his dealings with

Donald were not part of the conspiracy for which he was

convicted. Slack’s mere assertion that his drug dealing with

Donald was separate and distinct from the proven conspiracy is insufficient without any supporting evidence to call

into question the PSR’s accuracy. The district court did not 5

err in finding that the 8.7 grams of cocaine base/crack sold

to a confidential source was attributable to Rudy Slack. 

Slack also claims that Ontis’s statement in an interview

with the Alton Police Department that Alan Taylor accompanied him on at least ten occasions during the prior few

months to purchase crack cocaine from Slack (PSR ¶ 18)

contradicted Taylor’s trial testimony. At trial, Taylor

testified that he never purchased crack cocaine from Slack.

We fail to see how Ontis’s statement contradicts testimony
Nos. 07-2649 & 07-2930 33

6

 Spruill also testified that he purchased crack cocaine from

Slack on two occasions in early 2005 and attempted to do so on

a third, but on that occasion Slack had no crack, so Spruill

agreed to buy marijuana from him instead.

that Taylor—not Ontis—never purchased crack from Slack.

Ontis did not state that Taylor purchased crack from Slack.

The district court found the report of Ontis’s statement

consistent with Taylor’s testimony—which the court found

credible based on Taylor’s trial testimony and plea before

the court—and, thus, found the report to have every indicia

of reliability. Slack has not pointed to any evidence to

question the accuracy of ¶ 18 of the PSR, or, for that matter,

¶¶ 25 and 27 as well, which he challenges in a rather

general way only. 

In addition, Slack argues that Spruill’s allegations (PSR

¶ 23) that he obtained 13 grams of crack cocaine from Slack

in 2004 and purchased crack cocaine from him on November 1, 2004, were unreliable. At trial Spruill testified about

one purchase of crack cocaine from Rudy Slack on November 1, 2004, reflected in Count 7. Spruill did not testify at

trial about any other crack cocaine deals with Slack in 2004,

but Spruill’s proffer did refer to other crack cocaine sales in

2004. Spruill’s proffer was not inconsistent with his trial

testimony. Regarding Spruill’s statement that he purchased 6

crack cocaine from Slack on November 1, Spruill testified

that Donald was present at the time of the purchase.

Donald, however, testified that he was not speaking to

Rudy from September 2004 to January 2005 and had no

drug dealings with Spruill. Whether to believe Spruill’s

testimony or Donald’s testimony was a credibility determi-
34 Nos. 07-2649 & 07-2930

nation for the district judge at sentencing. We see no reason

to upset the judge’s decision to believe Spruill. Furthermore, the district court found Spruill’s proffer to be reliable

based on its finding that the proffer was consistent with

Spruill’s trial testimony, his plea before the court and his

Stipulation of Facts that he swore to in his plea. We accordingly find that the district court did not err in determining

the amount of cocaine base attributable to Slack as relevant

conduct for sentencing.

3. Presumption of Reasonableness 

Slack argues that the district court failed to appreciate the

advisory nature of the Sentencing Guidelines and believed

a within-Guidelines sentence was presumptively appropriate. In Rita v. United States, 127 S. Ct. 2456, 2465 (2007), the

Supreme Court held that the presumption of reasonableness

of a within-Guidelines sentence applies only on appellate

review; the sentencing court may not presume that a

within-Guidelines sentence is reasonable. See also United

States v. Schmitt, 495 F.3d 860, 864 (7th Cir. 2007). We review

de novo a claim that the district court failed to appreciate

the advisory nature of the Guidelines. United States v. Carter,

530 F.3d 565, 577 (7th Cir. 2008). 

Slack identifies two sets of comments by the district court

at sentencing which he believes support his view. The court

made the first when considering the nature and circumstances of the offense and the seriousness of the offense—§ 3553(a)(1) factors. The judge referred to the

Sentencing Commission as the policy-makers and said that

courts simply carry out their policy. (Sent. Tr. 48.) The
Nos. 07-2649 & 07-2930 35

second was made in the context of discussing the kinds of

sentences available—another § 3553(a) factor—and in

response to Slack’s request that the court consider the

Sentencing Commission’s proposal to amend the Guidelines

to reduce the offense levels for cocaine base (crack cocaine).

See U.S. Sentencing Commission, Report to the Congress:

Cocaine and Federal Sentencing Policy (May 2007). The judge

said: 

There are quite a few judges now after the Booker

decision who have varied for the reasons that the

Sentencing Commission has posed to Congress, but

I am not one who will vary in advance of Congress

saying that it’s a reason to do so . . . Congress

makes the decision, that policy decision. . . . I don’t

believe that trial judges are in a position to set

policy. 

(Sent. Tr. 51.) We do not infer from either set of comments

that the district judge thought the Guidelines were mandatory rather than advisory.

The cases Slack cites in which the sentencing courts

applied a presumption that a within-Guidelines sentence

was appropriate are inapposite. In United States v. Ross, 501

F.3d 851 (7th Cir. 2007), the judge said that he thought the

sentence to be imposed would do more harm than necessary to deal with the drug problem, id. at 852, but he also

said that he could not sentence Ross below the Guidelines

range and a sentence at the bottom of the range was

the “lowest sentence possible.” Id. at 854. In United States

v. Schmitt, 495 F.3d 860 (7th Cir. 2007), the judge’s remarks

suggested “he felt that there was an outside constraint on

his discretion that he was not free to set aside.” Id. at 865.
36 Nos. 07-2649 & 07-2930

Furthermore, the judge’s stated explanation for the

sentence imposed shows that he appreciated the Guidelines’ advisory nature, with the exception for crack/cocaine

disparity which we address below. The judge considered

and specifically mentioned the § 3553(a) factors already

mentioned as well as others—the seriousness of the offense,

Slack’s history and characteristics, the need to protect the

public from future crimes of Slack, and the need for the

sentence to promote respect for the law and afford adequate

deterrence to criminal conduct. Moreover, the judge

expressly recognized, “I have discretion in this area” and

that he was to impose a sentence sufficient but not greater

than necessary to comply with the basic aims of sentencing.

(Sent. Tr. 52.) He decided, based on his consideration of the

sentencing factors and counsels’ arguments, including the

mitigating factors urged by Slack to impose a withinGuidelines sentence. Thus, we do not find that the district

judge applied a presumption of reasonableness for a withinGuidelines sentence in this case.

4. Cocaine Base Guideline Range

Slack’s final argument concerns the proper sentencing for

crack offenses. Before Kimbrough v. United States, 128 S. Ct.

558 (2007), was decided a district judge in this circuit could

not question the 100-to-1 ratio of crack to powder cocaine in

the Guidelines. United States v. Taylor, 520 F.3d 746, 746-47

(7th Cir. 2008). In Kimbrough, however, the Supreme Court

held that “under Booker, the cocaine Guidelines, like all

other Guidelines, are advisory only, and that the Court of

Appeals erred in holding the crack/powder disparity
Nos. 07-2649 & 07-2930 37

effectively mandatory.” 128 S. Ct. at 564. Now a district

judge may decide that a within-Guidelines sentence for a

crack offense is “greater than necessary,” taking into

consideration the disparity between the Guidelines’

treatment of crack and powder cocaine offenses. Id. Slack

raised a sufficient objection to the crack/powder cocaine

sentencing disparity in the district court. The district

judge’s comments suggest that he thought the disparity was

mandatory. The government agreed at oral argument that

a remand for reconsideration was appropriate. Thus, we

will vacate Slack’s sentence and remand for resentencing in

light of Kimbrough. See United States v. Clanton, Nos. 07-1773,

07-2358, 07-2924, 2008 WL 3482762, at *6-7 (7th Cir. Aug. 14,

2008) (remanding for resentencing where defendant

objected to crack disparity before the district court).

III. Conclusion

For the foregoing reasons, we AFFIRM Rollins Sr.’s and

Slack’s convictions, AFFIRM Rollins Sr.’s sentence and

VACATE and REMAND Slack’s sentence for resentencing in

light of Kimbrough.

9-15-08