In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2891

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES T. KINCANNON,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Southern District of Illinois.

No. 07 CR 30065—Michael J. Reagan, Judge.

 

ARGUED APRIL 10, 2009—DECIDED JUNE 8, 2009

 

Before BAUER, FLAUM, and EVANS, Circuit Judges.

EVANS, Circuit Judge. At 77 years old, James Kincannon

makes for an unlikely methamphetamine dealer. But looks

can be deceiving. Kincannon was convicted of conspiring

to distribute and distributing methamphetamine after two

controlled buys nailed him as a dope dealer. Kincannon

was sentenced to 30 years in prison, and he now challenges

his conviction on the conspiracy count and his sentence.
2 No. 08-2891

Curiously, Kincannon mounts no direct challenge to his

conviction on the distribution charge for which he received

a concurrent 30-year sentence.

Kincannon’s demise began when a junkie, caught with a

small amount of drugs, fingered Kincannon as a dealer and

decided to cooperate with the police. The informant, who

testified at trial, agreed to wear an audio and video wire

while purchasing half an ounce of methamphetamine from

Kincannon. He went to Kincannon’s home for the buy, but,

at that time, Kincannon only had a quarter ounce to sell.

Kincannon asked the informant to stay put while he went

to get more drugs, but didn’t say where he was going.

Police officers (some of whom also testified at trial) then

followed Kincannon to the home of a woman named

Cheryl Dill. The officers watched as Kincannon entered

Dill’s home, stayed briefly, and then left. Kincannon then

returned to his home, where he consummated the drug

deal—half an ounce for $1,100.

Five days later the officers set up a second controlled

buy. Again, Kincannon didn’t have enough to meet the

informant’s half-ounce order, so he asked the informant to

wait while he fetched more drugs. This time, instead of

heading straight to Dill’s house, he stopped off at another

location where he met Scott Thorburg. The officers were

familiar with Thorburg, who had been arrested just eight

months earlier. Kincannon then got into Thorburg’s tow

truck (he owned a tow yard) and Thorburg drove both of

them to Dill’s house. Thorburg waited in the car while

Kincannon went inside to pick up the drugs. Thorburg

then dropped Kincannon off at his car and they parted
No. 08-2891 3

ways. Shortly thereafter, both men were arrested following

traffic stops. On Thorburg officers found two bags of

methamphetamine, and on Kincannon they found an

empty bag with methamphetamine residue, along with

some of the prerecorded bills used in the first controlled

buy. Kincannon was eventually indicted for distributing

methamphetamine and conspiring to distribute methamphetamine with Dill, her supplier, and others “known and

unknown.” 21 U.S.C. §§ 841(a)(1), 846.

Thorburg, who testified at the trial, was no stranger to

the drug trade. Once an engineer for ABC Sports who

traveled across the country to film Monday Night Football,

NASCAR, and PGA tournaments, he fell on hard times

when he started using methamphetamine. As his use

escalated, his life fell further into shambles; he eventually

lost his job, divorced his wife, and took to selling drugs to

support his own habit. In fact, Thorburg had been

Kincannon’s dealer for five or six months, until he got

busted by the police. That arrest scared Thorburg enough

that he quit dealing, but he was addicted to methamphetamine and needed a source for his personal fix. For that, he

turned to Kincannon. At first, Kincannon charged $800 for

half an ounce, but over time, the price rose to $1,000.

Eventually, Thorburg began chauffeuring Kincannon to

Dill’s house. Thorburg testified that he did so on at least six

occasions. Thorburg knew Dill by name, and Kincannon

shared that he suspected Dill got the drugs from a jockey

who lived in Kansas.

Dill also testified at the trial. She explained that she

started selling methamphetamine at the suggestion of her
4 No. 08-2891

ex-boyfriend (and later, supplier), who was a jockey in

Kansas. Her first sale was an eight-ball (3.5 grams) to a

childhood friend. She asked her friend to introduce her to

Kincannon because she needed someone who “got rid of

drugs.” The friend obliged, and Kincannon and Dill

embarked on what turned out to be a short-lived business

relationship. Over a six-week period Kincannon purchased

at least 12 ounces of methamphetamine from Dill—a half

an ounce to an ounce at a time on 15 different occasions.

The terms of the transactions were standardized; Dill

charged $900 for half an ounce and $1,800 for an ounce. She

emphasized that Kincannon was to come to her home

alone, saying “I told him I didn’t want him to bring

anybody to my house, that he was to come alone because

I knew he was doing something illegal and I was afraid

that—I didn’t want to meet his customers and I didn’t

want them to know me.” Dill did see someone in a tow

truck—Thorburg—outside her home a half a dozen or so

times. Kincannon explained that the man was his customer

and left it at that. Thorburg never came inside Dill’s home

and Dill could not even identify his race or age.

At the close of the government’s case (which also happened to be the end of all the evidence since Kincannon

declined to present anything), Kincannon filed a motion for

a judgment of acquittal, which the district court denied.

The government’s closing argument came next, during

which the prosecutor made an analogy to an AcademyAward-winning movie: The Godfather. Recounting a pivotal

scene where the director simultaneously presented assassinations orchestrated by the protagonist, Michael Corleone,

the prosecutor explained that he, like the movie’s director,
No. 08-2891 5

would attempt to seamlessly tell the “story of what happened” in this case. The prosecutor also recounted

Thorburg’s drug-fueled demise, noting that “it illustrates

the power of this stuff and why we’re on a serious purpose

today in considering the charges against Mr. Kincannon.”

Eventually, the jury found Kincannon guilty on both the

distribution and the conspiracy counts and rendered a

special verdict, finding that the conspiracy involved 500

grams or more of methamphetamine.

At sentencing Kincannon made no objections to the

proposed guidelines range of 360 months to life. Instead,

he asked for a below-guidelines sentence, noting that, at 77

years old, a long term of imprisonment amounted to a life

sentence. The district court rejected this request, pointing

to Kincannon’s propensity for criminal activity—he had a

slew of prison convictions, and as the court noted, he had

“done time in the State system, Illinois and Missouri, and

in the Federal System.” A 360-month sentence, the bottom

of the guidelines range, was imposed on both counts of

conviction.

Kincannon first argues on appeal that the district court

erroneously denied his motion for a judgment of acquittal,

claiming there was insufficient evidence to prove that he

and Dill conspired together to distribute drugs. He claims

that they only had a buyer-seller relationship. An agreement to exchange drugs for money (or something else of

value)—the crux of the buyer-seller transaction—is insufficient to prove a conspiracy. United States v. Colon, 549 F.3d

565, 567-68 (7th Cir. 2008). That’s because a conspiracy is

more than an agreement, it’s a knowing and intentional
6 No. 08-2891

agreement between two or more people to fulfill a particular criminal objective. The pact to sell drugs is itself a

substantive crime with no separate criminal aim and,

therefore, alone can add no conspiracy liability to the mix.

United States v. Lechuga, 994 F.2d 346, 349 (7th Cir. 1993) (en

banc) (plurality). Some evidence of an accord to commit

another crime on top of the drug sale is required; in this

case, we ask whether there is some evidence that

Kincannon agreed with someone else to the further distribution of methamphetamine?

Kincannon claims that he had no such agreement with

Dill, and he has a point. Kincannon and Dill had a relatively brief business relationship. Kincannon purchased

drugs from Dill—always in cash, on the barrelhead—over

a six-week period, 15 times total. Dill knew that Kincannon

was reselling the drugs, but that’s not enough to prove a

conspiracy. That knowledge may or may not have made

Dill an aider and abettor to Kincannon’s illicit activities,

but it does not make the two coconspirators because they

had no agreement to resell the methamphetamine to

anyone. See Lechuga, 994 F.2d at 349. What’s more, Dill had

no personal investment in Kincannon’s drug distribution—she had already been paid for the drugs. See United

States v. Rock, 370 F.3d 712, 715 (7th Cir. 2004) (affirming

conviction when defendant expected to be paid from the

resale of the drugs). In fact, she emphasized that she

wanted nothing to do with Kincannon’s business or his

customers. The terms of their sales were standardized—Kincannon paid $900 for a half ounce and $1,800 for

an ounce—but that says nothing about whether Dill agreed

to help Kincannon’s distribution efforts. Regular purchases
No. 08-2891 7

on standard terms cannot transform a customer into a

coconspirator. United States v. Thomas, 150 F.3d 743, 745

(7th Cir. 1998) (crime of conspiracy cannot be equated with

repeated transactions).

So far, this case is on all fours with our recent opinion in

Colon. In Colon, the defendant was convicted of conspiring

with his drug suppliers to possess cocaine with intent to

sell. Colon, like Kincannon, repeatedly purchased drugs for

resale from his suppliers over, at most, a six-week period.

The terms, likewise, were standardized and the dealings

were in cash. In Colon, the government contended that the

prolonged, repeated, and standardized purchases of

distribution quantities of drugs was enough to support

the conviction. We disagreed. When stripped to its bare

bones, the government’s theory there, as it is here, “reduces to an assertion that a wholesale customer of a

conspiracy is a co-conspirator per se,” a position we did

not embrace. Id. at 569.

Sensing the weight of Colon, the government attempts to

distinguish Kincannon’s case. It argues that Kincannon was

more than just a customer, but that he also recruited other

buyers—that is, Thorburg—for Dill, thereby throwing

himself into her drug distribution ring. But this argument

is not born out by the record. Throughout her testimony

Dill identified Thorburg as Kincannon’s customer, not her

own. Likewise, Thorburg testified repeatedly that he

bought drugs from Kincannon, not Dill. Dill never met

Thorburg (she could not even identify his race), let alone

establish the terms of the sales as she would have had to do

with any other buyer. Thorburg confirmed that he never
8 No. 08-2891

went inside Dill’s house. There is nothing in the record that

even hints that Dill sought Kincannon’s help in increasing

her customer base, a particularly telling omission since it

was just such a request to her first customer that led to her

relationship with Kincannon. Dill knew how to network to

get customers, and nothing suggests that she ever asked or

received such help from Kincannon. Thorburg’s purchases

from Kincannon did mean, ultimately, that Dill could sell

more drugs. But that minimal interest is no different for any

seller who off-loads goods to a distributor, and we have

already held that a wholesale customer and his suppliers

are not necessarily in cahoots. Colon, 549 F.3d at 569.

This analysis, however, does not mean that we must

reverse Kincannon’s conviction. The indictment did not

limit the conspiracy to Dill and Kincannon—the grand jury

included “others known and unknown”—and the evidence

does support the existence of a conspiracy between

Kincannon and Thorburg. The fact that the indictment did

not name Thorburg is irrelevant. United States v. Avila, 557

F.3d 809, 816 (7th Cir. 2009) (proving conspiracy does not

require the government to show that the defendant conspired with the individuals named in the indictment);

Lechuga, 994 F.2d at 350, 352. “Others known and unknown” could have certainly included Thorburg, and there

is no requirement that a conspiracy indictment identify

uncharged coconspirators.

At trial, the government honed in on the alleged conspiracy between Dill and Kincannon, and Kincannon takes

issue with the government’s attention on appeal to his

relationship with Thorburg. Kincannon argues that we are
No. 08-2891 9

precluded from considering his dealing with Thorburg, but

cites no authority for this proposition. Cf. Lechuga, 994 F.3d

at 350 (considering defendant’s relationship with unnamed

coconspirator, even though that relationship was not the

focus of the trial or appeal). In any event, Thorburg

testified at length about his relationship with Kincannon,

and our job when evaluating the sufficiency of the evidence

is to focus on the facts put before the jury. We must “view

all the evidence and draw all reasonable inferences in the

light most favorable to the prosecution and uphold the

verdict if any rational trier of fact could have found

the essential elements of the crime beyond a reasonable

doubt.” United States v. Hicks, 368 F.3d 801, 804-05

(7th Cir. 2004) (emphasis added) (quotations and citations

omitted).

Kincannon’s relationship to Thorburg was markedly

different from his relationship with Dill. First, Thorburg

and Kincannon dealt with each other for about a year. For

months Kincannon was purchasing drugs from Thorburg.

After Thorburg’s initial arrest, he turned to Kincannon and

they had, as he testified, “reverse roles.” Kincannon began

supplying Thorburg with drugs even before he met Dill.

There was also a high level of trust between the two, which

became evident once Kincannon started buying drugs from

Dill. United States v. Hach, 162 F.3d 937, 943 (7th Cir. 1998)

(noting that a demonstrated level of mutual trust is circumstantial evidence of a conspiracy). On at least six occasions,

Thorburg drove Kincannon to Dill’s house to pick up drugs.

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

(reasoning that traveling with coconspirator to purchase

drugs supported conspiracy conviction). Kincannon did not
10 No. 08-2891

trust just anybody to accompany him. The confidential

informant, on the two occasions he purchased drugs, was

asked to stay at Kincannon’s home while Kincannon went

to Dill’s to pick up the goods. What’s more, Kincannon

shared with Thorburg details about his business—revealing

Dill’s identity and address and explaining that he suspected

Dill’s supplier was a jockey from Kansas—a step he did not

take with the informant.

Most importantly, there was a quid pro quo between

Kincannon and Thorburg beyond the sale of the drugs.

Avila, 557 F.3d at 816 (“The government need only show an

agreement that goes beyond the individual sale between

buyer and seller.”). Because Thorburg drove to Dill’s

house, Kincannon got extra cover. Thorburg’s car, not his

own, would be seen by any officers who might be keeping

watch over Dill’s home. For taking on this risk, Thorburg

got to purchase his drugs at a discount price. Thorburg

testified that he paid anywhere from $800 to $1,000 for a

half ounce of methamphetamine. Kincannon—who paid

$900 for a half ounce—may have been charging Thorburg

below or at-cost rates. Even at $1,000, Thorburg was paying

$100 less than Kincannon’s other customers, like the

confidential informant. The jury could reasonably infer

from this evidence that Thorburg and Kincannon agreed to

more than just the individual drug purchases, but that they

were cooperating to facilitate Kincannon’s further drug

distribution efforts.

There is one more wrinkle that we must address. The

indictment accused Kincannon, and the jury, through a

special verdict, found that the conspiracy involved 500
No. 08-2891 11

grams or more of methamphetamine. These types of

indictments and special verdicts, of course, are standard

after Apprendi v. New Jersey, 530 U.S. 466 (2000), which

requires the jury to find beyond a reasonable doubt any

fact that raises the defendant’s statutory maximum sentence. A defendant, like Kincannon, who has a prior felony

drug conviction (covered by an information under 21

U.S.C. § 851), faces a mandatory minimum of 10 years in

prison and up to a life sentence if at least 50 grams of a

mixture containing methamphetamine is involved. If there

is 500 grams or more involved, the statutory minimum is

upped to 20 years. 21 U.S.C. § 841(b)(1)(A)(viii);

(b)(1)(B)(viii). At trial, the government argued that the

conspiracy included over 500 grams by aggregating the

total amount of methamphetamine that Kincannon purchased from Dill (340.2 grams) with methamphetamine

found at Dill’s house (186 grams). But a coconspirator is

only liable for transactions that were reasonably foreseeable acts in furtherance of the entire conspiracy, United

States v. Easter, 553 F.3d 519, 523 (7th Cir. 2009), and since

Dill was not part of the conspiracy, the drugs found at her

place are arguably off limits.

But this possible Apprendi error is of little moment. The

amount of methamphetamine involved in the conspiracy

is not an element of the crime, so it has no effect on

Kincannon’s conviction. United States v. Kelly, 519 F.3d 355,

363 (7th Cir. 2008); United States v. Gomez-Rosario, 418 F.3d

90, 104 (1st Cir. 2005). The drug quantity amount is relevant for sentencing, but not all errors require remand since

they are subject to harmless error analysis. Adkins, 274 F.3d

at 454. And so long as the judge imposes a sentence below
12 No. 08-2891

 Interestingly enough, when calculating Kincannon’s guide- 1

lines range, the probation officer included only the drugs that

passed between Kincannon and Thorburg, an amount well

below 500 grams. Neither party objected to the calculations, and

the district court sentenced Kincannon according to the probation officer’s recommendations.

the statutory maximum, he may do so based on facts found

by a preponderance of the evidence. United States v.

Abdulahi, 523 F.3d 757, 760 (7th Cir. 2008) (reiterating that

Apprendi has no application to cases where the sentence is

below the statutory maximum). On this record, it’s clear,

beyond a reasonable doubt, that a properly instructed jury

would have found that Kincannon and Thorburg’s conspiracy involved at least 50 grams of methamphetamine. That

mark is met by just adding up the amount of drugs that

Kincannon purchased when chauffeured by Thorburg.

Thorburg testified that he drove Kincannon at least six

times—a fact corroborated by Dill—and Dill added that

Kincannon purchased either a half an ounce or an ounce on

each trip (6 × .5 ounces = 85 grams). Kincannon was

sentenced to 30 years imprisonment, well below the

statutory maximum for conspiracies involving 50 grams or

more of methamphetamine.1

Kincannon makes one more attack on his conviction. He

argues, for the first time on appeal, that the prosecutor

inflamed the passions of the jury, rendering the trial unfair,

by referring in closing argument to The Godfather and

Thorburg’s precipitous decline once hooked on methamphetamine. Because the argument was forfeited before the

district court, we review it only for plain error, and we
No. 08-2891 13

 In an upset along the lines of the 2009 Kentucky Derby win by 2

Mine That Bird, the 1972 Oscar went to Bob Fosse (for Cabaret)

rather than Coppola.

begin by evaluating whether the comments themselves

were improper. United States v. Bowman, 353 F.3d 546, 550

(7th Cir. 2003). 

The prosecutor’s reference to The Godfather does not

approach impropriety. It would be one thing if the government compared Kincannon to Michael Corleone, an

organized crime kingpin responsible for murders and a

whole host of other criminal activity. See Alvarez v.

McGinnis, 4 F.3d 531, 534 (7th Cir. 1993). Such an analogy

would be utterly unmoored from the record, which is

probably why the government made no such connection.

It was not Corleone’s criminality, but Francis Ford

Coppola’s direction that was at the heart of the prosecutor’s closing remarks. The prosecutor alluded to the pivotal

point in the movie where Corleone attends his godchild’s

christening. Coppola cuts to various scenes of assassinations orchestrated by Corleone as a priest dubbed him the

child’s godfather. The poetic implication is that the murders, like the priest’s liturgy, made Michael the godfather

of the Corleone crime family. As the prosecutor said,

“[n]ow that is how you present events that occur simultaneously in a movie so the viewer can understand it very

easily.” We agree, as did the Academy of Motion Picture

Arts and Sciences, who nominated Coppola for an Oscar

for best director. The prosecutor explained to the jury that 2

he would try to do orally what Coppola did in his
14 No. 08-2891

film—that is, tie together the events that occurred during

the two controlled buys into one seamless story. To do so

as eloquently as Coppola is a tall task, but there is certainly

nothing improper about the attempt.

Likewise, the prosecutor’s comments regarding

Thorburg’s life were not inappropriate. The description of

Thorburg’s drug-induced descent was rooted in his

uncontroverted testimony, and the prosecutor highlighted

it to “illustrate the power of this stuff and why we’re on a

serious purpose today in considering the charges against

Mr. Kincannon.” Impressing upon the jury the seriousness

of the charges and commenting on the gravity of the drug

problem in this country is permissible, Bowman, 353 F.3d at

551; United States v. Zanin, 831 F.2d 740, 743 (7th Cir. 1987),

and the prosecutor did nothing more here.

We can also quickly dismiss Kincannon’s last argument.

He maintains that his within-guidelines sentence is unreasonable since, at 77 years old, 30 years of imprisonment

amounts to a life sentence. During sentencing, Kincannon

made a plea for a below-guidelines sentence based on his

age. The court considered Kincannon’s advanced age but

noted that it had not deterred or slowed his criminal

activity to date. Kincannon was in his fifties when his

criminal record started and days away from his 73rd

birthday when he was last released from prison after being

popped for distributing drugs. Emphasizing the need for

deterrence, the judge explained that Kincannon had “done

time in the State system, Illinois and Missouri, and in the

Federal system,” yet “continued to sell the stuff,” and

sentenced him to the bottom of the guideline range. That
No. 08-2891 15

makes for a presumptively reasonable sentence on appeal.

Rita v. United States, 551 U.S. 338 (2007); United States v.

Shannon, 518 F.3d 494, 496 (7th Cir. 2008). The court

adequately explained the sentence it imposed and addressed Kincannon’s request for lenience. United States v.

Wurzinger, 467 F.3d 649, 654 (7th Cir. 2006) (affirming de

facto life sentence where defendant had an above-average

tendency to crime in his old age). Kincannon presents us

with nothing to disturb the rebuttable presumption of

reasonableness of his within-guidelines sentence.

Accordingly, the judgment of the district court is AFFIRMED.

6-8-09