                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 03-3004
UNITED STATES OF AMERICA,
                                              Plaintiff-Appellee,
                               v.

COREY A. SMITH,
                                          Defendant-Appellant.
                         ____________
       Appeal from the United States District Court for the
       Northern District of Indiana, Fort Wayne Division.
          No. 1:02-cr-71-02—William C. Lee, Judge.
                         ____________
    ARGUED JULY 7, 2004—DECIDED DECEMBER 27, 2004
                     ____________


  Before CUDAHY, COFFEY, and ROVNER, Circuit Judges.
  ROVNER, Circuit Judge. Corey Smith and two code-
fendants were charged with one count of distributing and
one count of conspiring to distribute crack cocaine. See 21
U.S.C. §§ 841(a)(1), (b)(1)(B), 846. One of the codefen-
dants, Alonzo Grant, made a deal with the government
and testified against the other two. After a jury trial at
which Grant’s testimony played a crucial role, Smith was
convicted of both counts, and the third codefendant, Travis
Black, was acquitted of both counts. Smith initially ar-
gued in his brief that the government failed to disclose all
of the terms of its deal with Grant, and that the non-
disclosure violated his due process rights. See Giglio v.
United States, 405 U.S. 150, 154-55 (1972); Brady v.
2                                               No. 03-3004

Maryland, 373 U.S. 83, 87 (1963). At oral argument,
however, Smith’s counsel withdrew that argument, conclud-
ing that Smith should raise it in a collateral attack and
further develop the record. See 28 U.S.C. § 2255. Smith’s
remaining arguments on appeal are that there was insuffi-
cient evidence to convict him and that he was sentenced in
violation of Blakely v. Washington, 124 S. Ct. 2531 (2004),
and United States v. Booker, 375 F.3d 508 (7th Cir. 2004),
cert. granted, 73 U.S.L.W. 3073, 3074 (U.S. Aug. 2, 2004)
(No. 04-104). We affirm in part and vacate and remand in
part.
  On July 15, 2002, a confidential informant put Detective
Mitch McKinney in touch with Grant so that McKinney
could purchase an ounce of crack. Grant, who was unaware
that McKinney was a police officer, said he had to find a
supplier. The two men agreed to talk later. Grant later
called McKinney and told him to go to Packard Park. When
McKinney arrived, Grant said he needed to borrow
McKinney’s cell phone to call his supplier. According to
Grant’s testimony, he then called Smith and told him to
come to the park. The detective never checked his phone’s
memory or his phone bill to verify whether Grant really
called Smith. A maroon van pulled into the park, and Grant
went alone to the van and briefly conversed with its
occupants out of earshot of McKinney and the surveillance
team. The van then left. Grant returned to McKinney and
told the detective that Smith had only soft cocaine but was
going to cook it into crack. McKinney told Grant to call him
when he had crack to sell. Meanwhile, Detective Miguel
Rivera, a member of a surveillance team that had preceded
McKinney to the park, followed the maroon van long
enough to identify the occupants as Smith and Black.
  Later that day, Grant called McKinney to say that Smith
had a batch of crack ready and that they should all meet
again at Packard Park. Grant testified that he arrived first,
then Black and Smith, and later McKinney. When McKiney
No. 03-3004                                               3

arrived Grant immediately got into his car and displayed
25.47 grams of crack (short of an ounce), which he said that
he had received from Smith inside the van just before
McKinney (or the surveillance team) arrived. McKinney
then gave Grant $1000 in identifiable bills. Grant put the
money in his pocket, returned to the maroon van, and got
inside. The back-up and surveillance team finally arrived
late, and McKinney signaled for an arrest. Grant, Smith,
and Black were all arrested, and the buy money was found
on the floor of the rear passenger seat of the van next
to Grant. When Grant was interviewed shortly after
the arrest, he maintained that he had received the
crack from Smith. He also said that Black was not involved
in the sale.
  Grant, Smith, and Black were all arrested and charged
with distributing and conspiring to distribute crack. Eight
days before trial Grant pleaded guilty and made a deal with
the government in which he agreed to testify at Smith and
Black’s trial. According to Grant’s plea agreement, the
government agreed to drop the conspiracy charge against
him, recommend that he receive a downward adjustment for
acceptance of responsibility, and recommend a sentence at
the low end of the guideline range. Grant also received
other benefits not mentioned in the plea agreement. The
government elected not to seek an enhancement of Grant’s
mandatory minimum sentence from 5 to 10 years based on
Grant’s prior felony drug conviction, see 21 U.S.C. § 851,
and later the government moved for a substantial-assis-
tance downward departure under U.S.S.G. § 5K1.1. Grant
was ultimately sentenced to 57 months. Smith, with no
prior drug convictions, received 115 months.
  On appeal, Smith argues that there was insufficient
evidence to convict him of either charge. Regarding his
distribution charge, he attacks Grant’s credibility but does
not argue that Grant’s testimony, if credible, would be
insufficient evidence. Smith says that his conviction “was
4                                               No. 03-3004

based primarily upon the testimony of . . . Grant, a con-
victed felon and admitted drug dealer, and a person who
later received a downward departure motion for his testi-
mony.” Smith’s conviction depended heavily on Grant’s
credible testimony; Grant was the only witness who could
testify that he called Smith to the park the first time, and
he provided the only testimony about the details of their
first conversation at the park. Furthermore, he provided the
main testimony linking Smith with the ultimate drug
transaction. The only other incriminating evidence against
Smith was an officer’s testimony that while he was being
interrogated Smith announced that he had not sold “crack.”
The interrogating officer said that no one ever told Smith
that the drug sale specifically involved crack. The jury
found Grant credible and accepted his testimony regarding
Smith’s involvement, and we upset credibility determina-
tions made by juries only in “exceptional circumstances,
such as ‘where it was physically impossible for the witness
to observe that which he claims occurred, or impossible
under the laws of nature for the occurrence to have taken
place at all.’ ” United States v. Williams, 216 F.3d 611, 614
(7th Cir. 2000) (citations omitted). Grant’s testimony that
he received the drugs from Smith is not physically impossi-
ble and it provides sufficient evidence to support Smith’s
distribution conviction.
  Regarding Smith’s conviction for conspiracy to distribute
crack, he argues that the government offered insufficient
evidence of a conspiracy because it proved only an ordinary
buyer-seller relationship between him and Grant, not a
joint conspiracy to sell the drugs to McKinney. Smith is
correct that in the case of drug conspiracies, it is not
sufficient for the government to prove that the defendant
was in a mere buyer-seller relationship to the alleged
coconspirator. See United States v. Rock, 370 F.3d 712, 714
(7th Cir. 2004). If the government had proven merely that
Smith sold the drugs to Grant, and that Grant turned
No. 03-3004                                                5

around and sold them to McKinney, there would be insuffi-
cient evidence of a conspiracy. See id. But if Grant’s testi-
mony is to be believed, there is sufficient evidence that he
and Smith worked in concert to sell the drugs to McKinney.
According to Grant, Smith knew that it was McKinney and
not Grant who insisted that the cocaine be cooked into
crack. Additionally, Smith did not make Grant pay for the
drugs but rather waited for Grant to procure the money
from McKinney. The government also points out on appeal
that when McKinney noticed that the ounce was short,
Grant did not take responsibility for it himself, but rather
offered to return to Smith to correct the problem. Finally,
during the first trip to the park, Grant referred to Smith
and Black as “my boys,” suggesting some previous connec-
tion between them. Together, these facts show that Smith
and Grant were on the same side of the transaction, and
thus there was sufficient evidence to establish a conspiracy.
See id.
  Smith also argues on appeal that his sentence violates the
Sixth Amendment because it includes a two-level sentenc-
ing enhancement that was based on facts neither admitted
by Smith nor found by a jury. See Blakely, 124 S. Ct. 2531;
Booker, 375 F.3d 508. Smith testified at trial that he was
not involved in the drug sale and that the reason he went to
the park twice was to plan a basketball game with Grant.
At sentencing the district court imposed an enhancement
for obstruction of justice because it concluded that Smith
committed perjury with his testimony. Under Blakely and
Booker, an increase in the defendant’s sentence may not be
based solely on a judge’s findings of fact, so we vacate the
enhancement and remand for resentencing.
  Thus we AFFIRM the judgment of conviction but VACATE
the sentence and remand for resentencing.
6                                         No. 03-3004

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—12-27-04
