In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-2423

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ABOSEDE ABDULAHI,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03-CR-708—Ronald A. Guzman, Judge.

____________

ARGUED FEBRUARY 29, 2008—DECIDED APRIL 23, 2008

____________

Before POSNER, ROVNER, and EVANS, Circuit Judges.

EVANS, Circuit Judge. Abosede Abdulahi pleaded guilty

(without a plea agreement) to a charge of conspiracy to

possess with intent to distribute a controlled substance. See

21 U.S.C. §§ 846, 841(a)(1). Although drug quantity is not

an element of the charged crime, the indictment alleged

that Abdulahi’s offense involved “in excess of 100 grams

of mixtures containing heroin.” When Abdulahi learned

that the government intended to seek a sentence based

on 17 kilograms of heroin, she moved to withdraw her

guilty plea, but the district court denied her motion. At

sentencing, the court used a drug quantity of 17 kilograms
2 No. 06-2423

1 Lest the term “ledger” suggest the sort of fancy hardbound

books used by green-visored accountants in the old days,

we note that the “ledger” in question here was nothing more

than a 70-sheet, wide-ruled, spiral-bound notebook, the type

elementary school students stock up on each fall at back-toschool sales.

to calculate Abdulahi’s range of 188 to 235 months under

the sentencing guidelines. A sentence of 188 months was

imposed. On appeal, Abdulahi has forsworn her desire to

withdraw her guilty plea. Instead, she challenges her

sentence as unconstitutional and unreasonable because

it was based on an amount of heroin much greater than

that alluded to in the indictment. We have rejected challenges like Abdulahi’s before, and we do so again here.

Before her troubles with law enforcement, Abdulahi

apparently controlled a significant portion of the Chicagoarea heroin market. Alas, things started to go sour when

a confidential informant gave the DEA the name of a

heroin dealer a few links down the chain from Abdulahi.

After his arrest, the dealer pointed the finger at another

dealer who, in turn, pointed his finger at Abdulahi, telling

agents that she was the ringleader. Agents subsequently arrested Abdulahi and searched the apartment

that she and her associates were using as a base for their

operation. They found assorted drug paraphernalia,

$14,500 in cash, 583 grams of heroin, and a ledger that

recorded drug sales to more than a dozen different buyers.1

 For her part, Abdulahi claimed that she was not

the leader of a heroin ring. She said she fled her native

Nigeria for the United States when she discovered that

her husband was a major drug dealer there. Abdulahi

claimed that she only got involved in drug dealing here
No. 06-2423 3

because her associates in the drug ring threatened that

if she did not assist them, they would harm her children

who remained in Nigeria.

Abdulahi’s indictment alleged that her crime involved

“in excess of 100 grams of mixtures containing heroin.”

Although other members of the drug ring cooperated

with the government, Abdulahi refused, claiming that

she feared for the safety of her family in Nigeria if her

husband found out that she was cooperating. She chose

not to go to trial, however, and, as we said, pleaded

guilty to the charge against her without a plea agreement.

At her change of plea hearing, the district judge engaged

in the colloquy required by Federal Rule of Criminal

Procedure 11. Relevant to our purposes, he made sure

that Abdulahi was aware of the maximum sentence that

could be imposed—40 years. See Fed. R. Crim. P.

11(b)(1)(H); 21 U.S.C. § 841(b)(1)(A). The judge explained that, while the statutory minimum was 5 years,

he would not determine the guidelines range until

later, and Abdulahi told the judge that her lawyer had

talked to her about the guidelines. The government

stated the factual basis for the plea, pinning responsibility

on Abdulahi for 988 grams of heroin, and Abdulahi

admitted that the facts presented were true.

After Abdulahi pleaded guilty, a probation officer

prepared a presentence report that reflected the government’s intent to seek a sentence based on 17 kilograms

of heroin. That figure was computed from entries in the

ledger that was found when Abdulahi’s apartment was

searched. After she learned that the government intended

to seek a sentence based on such a high drug quantity,

Abdulahi sought to withdraw her guilty plea. But after

a thorough hearing, at which Abdulahi was represented
4 No. 06-2423

by new counsel, her request was denied. We need not

consider the arguments that the district judge rejected

because, on appeal, Abdulahi has renounced her attempt to

withdraw the plea.

At sentencing, Abdulahi argued against the drug quantity and against an enhancement for being a manager of

an enterprise. See U.S.S.G. § 3B1.1. The government presented the testimony of another member of the drug

ring, plea agreements of two other members, and an FBI

analysis of the drug ledger. Fingerprints, a palm print, and

handwriting analysis linked the ledger to Abdulahi.

Abdulahi argued that the other members of the heroin

ring were not credible and that the analysis of the drug

ledger was not reliable, but the district judge disagreed.

Crediting the testimony and plea agreements, he found that

Abdulahi was a manager of the drug ring and that she was

responsible for more than 17 kilograms of heroin. This

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

which 3 points were added for being a manager, id.

§ 3B1.1(b), and 3 points were subtracted for her acceptance

of responsibility, id. § 3E1.1. Combined with Abdulahi’s

lack of any criminal history, the district court calculated a

guidelines range of 188 to 235 months and imposed the

lowest within-guidelines sentence of 188 months.

On appeal, Abdulahi argues that the district court

should not have sentenced her based on such a high drug

quantity because, she insists, the amount specified in the

indictment constrains the district court at sentencing. In a

general sense, this proposition is correct, but it does not

help Abdulahi. After Apprendi v. New Jersey, 530 U.S. 466

(2000), any fact that increases the statutory maximum

sentence must be proven to a jury beyond a reasonable

doubt or admitted by the defendant. Id. at 490; United States
No. 06-2423 5

v. Brough, 243 F.3d 1078, 1079 (7th Cir. 2001). But when a

judge imposes a sentence below the statutory maximum,

he may do so based on facts found by a preponderance

of the evidence. Id. at 1079-80. As we have repeatedly

explained, Apprendi has no application to cases like this

one where the sentence is below the statutory maximum.

See United States v. Hernandez, 330 F.3d 964, 980-81 & n.11

(7th Cir. 2003) (collecting cases).

In addition to vainly invoking Apprendi, Abdulahi points

to two other sources, the Fifth Amendment’s Due Process

and Indictment Clauses, for her argument that the drug

quantity at sentencing should have been capped by the

amount specified in the indictment. But her argument

cannot succeed unless drug quantity is an element of the

charged offense, and it is not. United States v. Henry,

408 F.3d 930, 934 (7th Cir. 2005). An indictment must

fairly inform a defendant of the charge against her,

United States v. Resendiz-Ponce, 127 S. Ct. 782, 788 (2007),

and under the Due Process Clause she cannot be convicted of an offense “without notice and a meaningful

opportunity to defend,” Jackson v. Virginia, 443 U.S. 307,

314 (1979). But these requirements apply to conviction

and not to sentencing. Neither would be offended by

the use of a drug quantity at sentencing that is inconsistent with that specified in the indictment (assuming

that the sentence is below the statutory maximum, of

course). Drug quantity is a sentencing factor, and because it is not necessary to establish a violation of the

statute in question, the indictment need not even include

it. See United States v. Peters, 435 F.3d 746, 752 (7th Cir.

2006).

Even if a drug quantity specified in the indictment

did constrain the guidelines calculations at sentencing,
6 No. 06-2423

Abdulahi’s sentence would not be problematic. She cannot

seriously argue that the quantity used here, 17 kilograms,

is somehow inconsistent with the indictment’s reference

to “in excess of 100 grams.” Section 841(b)(1)(A) sets the

statutory penalty range for 100 grams or more at 5 to 40

years, and section 841(b)(1)(B) sets the penalty range for

1 kilogram or more at 10 years to life. Abdulahi would

have us read the latter as putting an upper limit on the

former by reading an allegation of 100 grams or more as

necessarily not including any quantity above 1 kilogram,

but there is no basis for such a reading. The two provisions are clearly meant to overlap: just because the government could have sought a conviction based on a higher

drug quantity does not mean that it was required to do so.

Next, Abdulahi argues that her sentence is unreasonable because in great part it is based on uncharged allegations. This is another argument that could not succeed

even if drug quantity were an element of the offense

because—it hardly needs repeating—17 kilograms is “in

excess of 100 grams.” We only vacate sentences based

on uncharged allegations in tail-wagging-the-dog situations where a sentence is based on “relevant conduct” that

we do not consider to be truly relevant. See, e.g., United

States v. McGowan, 478 F.3d 800, 802-03 (7th Cir. 2007). But

no such conduct is at issue here. Abdulahi pleaded guilty

to conspiring to possess with intent to distribute heroin,

and she was sentenced properly based on the amount

of heroin attributable to the conspiracy. U.S.S.G. § 1B1.3

cmt. 2 (defendant accountable for “all reasonably foreseeable quantities of contraband that were within the

scope of the criminal activity that he jointly undertook”).

Finally, Abdulahi contends that the evidence supporting the drug quantity finding was not reliable enough.
No. 06-2423 7

We review factual findings at sentencing for clear error,

United States v. Stitman, 472 F.3d 983, 986 (7th Cir. 2007),

and we see none here. Evidentiary standards are relaxed

at sentencing; a sentencing court may consider information that has “sufficient indicia of reliability to support

its probable accuracy.” U.S.S.G. § 6A1.3(a); United States

v. Johnson, 489 F.3d 794, 796-97 (7th Cir. 2007). Abdulahi

is correct that a witness testifying on how the government deciphered the drug ledger could have laid a better

foundation for the district court’s drug quantity finding,

but that does not mean the foundation actually laid was

insufficient. The FBI agent’s report about the ledger

explained in adequate detail how he arrived at the 17

kilograms figure, and the district court did not clearly

err by relying on it. Statements by other members of the

drug ring may have been partly motivated by a desire

to place responsibility on Abdulahi, but we have repeatedly held that a district court is not required to disbelieve such evidence. See, e.g., Johnson, 489 F.3d at 797.

The court here did not err when it relied on such statements.

Accordingly, we AFFIRM the judgment of the district

court.

USCA-02-C-0072—4-23-08