In the

United States Court of Appeals
              For the Seventh Circuit

Nos. 07-2649 & 07-2930

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

JAMES E. R OLLINS, S R. AND R UDY S LACK,

                                         Defendants-Appellants.


           Appeals from the United States District Court
               for the Southern District of Illinois.
         No. 05 CR 30133—David R. Herndon, Chief Judge.



     A RGUED A PRIL 14, 2008—D ECIDED S EPTEMBER 15, 2008




  Before F LAUM, E VANS, and T INDER, Circuit Judges.
  T INDER, 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

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,1 against whom the jurors returned verdicts of guilty
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.



1
  It is often the situation in drug distribution organizations that
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.”
2
  “Crack” is the street name for a type of cocaine base which is
different from powder cocaine. See United States v. Grayson, No.
07-3867, 

, at *1 (7th Cir. Jul. 18, 2008).
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 co-
defendant 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 coopera-
tion 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 co-
defendant 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 com-
pany. 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 conversa-
tions 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 contain-
ing 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 busi-
ness. 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 Sep-
tember 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

surveillance) of cocaine were also made from Pittman by an
informant.3 Eventually, the DEA obtained authorization for
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.


3
  Confidential informant Robin Hamilton, Pittman’s relative,
made closely supervised controlled buys of cocaine from
Pittman on January 14 and 18, and February 1, 2004.
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 objec-
tion, as to his impressions about various recorded conver-
sations. (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 conversa-
tions 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 govern-
ment 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 contempo-
raneous ends of justice finding and an allegedly unreason-
able 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 pend-
ing, whichever date last occurs.” 

Certain
periods of delay are excluded from the Speedy Trial
computation, however. 

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,” 

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,” 

We review the denial of a Speedy
Trial Act motion de novo when calculation of time is at
issue. United States v. Parker, 

, 438 (7th Cir.
2007).
  An excludable delay of one defendant may be excludable
as to all co-defendants, absent severance. United States v.
Dennis, 

, 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. 

. 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 appear-
ance 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, 

. And
finally, on August 10, 2006, Slack himself filed a pre-trial
motion, seeking new counsel. A period of time was ex-
cluded 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,

(7th Cir. 2005), the district court is not required
to make the ends of justice findings contemporaneously
with its continuance order. 

In Larson we indicated
that “the better practice is for the court to make the re-
quired 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.” 

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 ar-
raigned, 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, 

, 263
(7th Cir. 2007).
14                                         Nos. 07-2649 & 07-2930

       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 conversa-
tions. 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


4
    Rule 701 provides in pertinent part:
      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.
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 defen-
dants. 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 conspir-
     acy.
(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 explana-
tions 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 under-
standing 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 intention-
ally participated in the charged conspiracy and their roles
and extent of their involvement in that conspiracy.
  The defendants rely on United States v. Grinage, 

(2d Cir. 2004), in contending that the “impressions”
testimony was erroneously admitted. We, however, dis-
agree 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 under-
standable and not unique to the specific conspiracy, let
alone particular conversation, at issue. See 

(re-
counting 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 transac-
tions 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 conspira-
tors.
Nos. 07-2649 & 07-2930                                     19

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

, (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.” 

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 knowl-
edge.” 

see also United States v.
Miranda, 

, 441 (5th Cir. 2001) (holding agent’s
testimony about code words used in recorded calls admissi-
ble as lay opinion because it was based on the agent’s
“extensive participation in the investigation of this conspir-
acy, . . . [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 “impres-
sions” testimony was based on his own personal observa-
tions and perceptions derived from this particular case.
Such testimony is admissible as lay opinion testimony. See

.
20                                  Nos. 07-2649 & 07-2930

  In sum, Agent McGarry’s “impressions” testimony was
not expert testimony. It was not based on scientific, techni-
cal 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, 

, 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’ culpabil-
ity.
  While Agent McGarry’s testimony approaches the line
dividing lay opinion testimony from expert opinion testi-
mony, 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 testi-
mony 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 Don-
ald’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 evi-
dence 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, 

, 263 (7th Cir. 2007) (quoting Fed. R. Evid. 103(a)(1)). If
the ruling is not preserved, then we review for plain error.

“Under plain error review, an error must be ‘clear
or obvious’ and ‘affect substantial rights’” for reversal of
the evidentiary ruling. 

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. 

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 conspir-
acy 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-conspira-
tor 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, 

, 449 (7th Cir. 2007).
Use of such evidence does not violate the defendant’s
Confrontation Clause rights. Id.; Bourjaily v. United States,

, 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 conspir-
acy, 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 ob-
tained 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, 

, 733 (7th Cir. 2008). Such a motion should be
granted only if there is insufficient evidence to support a
conviction. 

burden in showing the
evidence was insufficient to support a conviction is “nearly
insurmountable.” 

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. 

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, 

, 781
(7th Cir. 2003).
   “A conspiracy exists when: (1) two or more people agree
to commit an unlawful act, and (2) the defendant know-
ingly and intentionally joins in the agreement.” United
States v. Griffin, 

, 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 partici-
pate.” United States v. Thornton, 

, 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 occa-
sions. 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 conspir-
acy 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 identi-
cal. 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 support-
     ing 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.

(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, 

, 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 Wil-
liams, 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 conspir-
acy. United States v. Dortch, 

, 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 transac-
tions, 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 implicat-
ing 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 govern-
ment 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 Hamil-
ton, 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 

(“[We] cannot second-
guess 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, 

, 761 (7th Cir. 2008), and application of the United States
Sentencing Guidelines is examined on a de novo basis,
United States v. Samuels, 

, 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, 

, 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, 

, 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. 

.
   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 argu-
ment 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 parapherna-
lia and drug trafficking that Rollins Sr. possessed the gun
during the conspiracy. See 

(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, 

,
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.” 

  The government must prove the amount of drugs attrib-
utable to a defendant by a preponderance of the evidence.

defendant has a due process right to be sentenced
on the basis of accurate information. 

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, 

, 761 (7th
Cir. 2008) (quoting U.S.S.G. § 6A1.3(a)); see also United States
v. Schroeder, No. 07-3773, 

, 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,

, at *4; 

. The defen-
dant bears the burden of proving that the PSR is inaccurate
32                                    Nos. 07-2649 & 07-2930

or unreliable. 

offers no evidence to question the
PSR’s accuracy, the court may rely on the PSR. 

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, 

, 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 conspir-
acy is insufficient without any supporting evidence to call
into question the PSR’s accuracy.5 The district court did not
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 accom-
panied 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


5
   Slack incorrectly states, citing PSR ¶¶ 21, 22, that the PSR
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.
Nos. 07-2649 & 07-2930                                     33

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 Novem-
ber 1, 2004, were unreliable. At trial Spruill testified about
one purchase of crack cocaine from Rudy Slack on Novem-
ber 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. 6 Regarding Spruill’s statement that he purchased
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-



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.
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. Further-
more, 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 accord-
ingly 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 appropri-
ate. In Rita v. United States, 

, 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, 

, 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,

, 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 circum-
stances of the offense and the seriousness of the of-
fense—§ 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 manda-
tory 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, 

(7th Cir. 2007), the judge said that he thought the
sentence to be imposed would do more harm than neces-
sary to deal with the drug problem, 

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.” 

In United States
v. Schmitt, 

(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.” 

36                                   Nos. 07-2649 & 07-2930

  Furthermore, the judge’s stated explanation for the
sentence imposed shows that he appreciated the Guide-
lines’ 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 within-
Guidelines sentence. Thus, we do not find that the district
judge applied a presumption of reasonableness for a within-
Guidelines 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, 

(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, 

, 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 

. 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. 

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, 

, 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 A FFIRM Rollins Sr.’s and
Slack’s convictions, A FFIRM Rollins Sr.’s sentence and
V ACATE and R EMAND Slack’s sentence for resentencing in
light of Kimbrough.




                            9-15-08