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

No. 04-1989
UNITED STATES OF AMERICA,
                                                Plaintiff-Appellee,
                                 v.
DUANE L. MILLER, JR.,
                                            Defendant-Appellant.

                          ____________
            Appeal from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
       No. IP 03-99-CR-02-H/F—David F. Hamilton, Judge.
                          ____________
   ARGUED FEBRUARY 23, 2005—DECIDED APRIL 20, 2005
                   ____________



 Before CUDAHY, EASTERBROOK, and WILLIAMS, Circuit
Judges.
  CUDAHY, Circuit Judge. After an undercover sting oper-
ation involving numerous purchases of the drug Ecstasy,
the Marion County Sheriff’s Department arrested Duane
Miller and an accomplice during a buy-bust operation.
Miller was indicted for one count of conspiracy to distribute
Ecstasy and two counts of distribution, and was convicted
by a jury of conspiracy and one count of distribution. Miller
appeals his conviction on four grounds, contending that
there is insufficient evidence to support his convictions, that
the district court abused its discretion by not allowing him
2                                                No. 04-1989

to explain his request for new counsel before denying that
request, that the district court’s enhancement for obstruc-
tion of justice violated his Sixth Amendment rights under
United States v. Booker, 125 S.Ct. 738 (2005) and that the
district court erred by not considering him for a reduction
for his minor role in the offense. Though we find that there
was sufficient evidence to support Miller’s convictions and
that the district court did not abuse its discretion in
denying his request for new counsel, we remand to the
district court for a determination whether Miller should
receive a role in the offense reduction.


                             I.
  The facts of this case may be summarized as follows.
After receiving a tip, Marion County Sheriff’s Department
Detective Brian Mahone learned that Patrick Holman was
a “street source” of Ecstasy in Indianapolis, and that he
could be reached at a certain cellular telephone number.
Detective Mahone purchased 10 Ecstasy pills from Holman
on April 28, 2003, and purchased 100 pills on May 1, when
Holman was driven to the buy location by Miller. On May 5,
Detective Mahone called Holman to arrange a third pur-
chase of 1,000 pills for $8.00 per pill; Holman replied that
he would have to check and called Mahone moments later
to tell him that the price would be $8.50 per pill. Holman
then received an incoming call from Miller’s home telephone,
and told Mahone that he would have to take a call from his
“cousin.” When he came back on the line to Detective Mahone,
Holman informed the detective that “he” had set the price
at $8.50. On May 8, Detective Mahone again called Holman to
arrange the buy; Holman told Mahone that his “cousin” had
increased the price to $9.00 per pill. Eventually, the buy was
set for May 9, 2003. Shortly after Detective Mahone and
another undercover detective came to the buy location,
Holman and Miller arrived in separate cars. Holman
No. 04-1989                                                 3

entered Detective Mahone’s car, took the purchase money
and then told the detective to call his “cousin” at Holman’s
cellular number. Detective Mahone did so and handed his
cell phone to Holman who said, “Hey, it’s cool.” After Holman
hung up, Miller left his car and handed Detective Mahone
a bag containing 1,000 Ecstasy pills. Detective Mahone told
Miller that he would put the pills under his car seat; Miller
responded, “You already know, a safety, a safety precau-
tion.” Detective Mahone then told Miller that he enjoyed
“dealing with PJ [Holman]” because he was “on time.”
Detective Mahone continued to purchase Ecstasy from
Holman until Miller and Holman were apprehended in a
buy-bust operation on June 10, 2003.
  In June of 2003, Miller was indicted for one count of con-
spiracy to possess with intent to distribute Ecstasy (Count 1)
and two counts of distribution of Ecstasy (Counts 3 and 4,
for transactions in May of 2003), in violation of 21 U.S.C.
§ 841(a)(1). The district court appointed counsel for Miller,
and his jury trial was scheduled for mid-August, 2003.
Thereafter, Miller requested and was granted three con-
tinuances, postponing his trial until January 12, 2004. On
January 9, 2004, the last business day before trial, Miller
retained his own attorney, who filed a conditional appear-
ance and requested a fourth continuance at 4:07 p.m. On
the morning of trial, the district court held a brief hearing
on the continuance, but spoke only to Miller’s court-ap-
pointed counsel and the attorney he had retained. Miller’s
court-appointed counsel said that Miller had missed an
appointment the previous Friday, and asked the district
court to consider other factors in an ex parte hearing. The
district court then denied Miller’s request, finding that
there had not been a lack of communication between Miller
and his appointed counsel, and that the request was un-
timely. After denying the request, the district court provided
Miller’s court-appointed counsel an opportunity to supple-
ment the record during an ex parte proceeding, in which
4                                                No. 04-1989

that counsel discussed the impact of Miller’s missed
appointment upon his trial preparation. The district court
then asked Miller if he wanted to address the issue, and
Miller stated only that he had missed the appointment to
meet with the attorney he had retained. He cited no reasons
for requesting new counsel and stated that he had commu-
nicated well with his appointed attorney.
   Miller testified at trial and admitted that he had de-
livered a bag to Mahone on May 9, 2003, but claimed to be
unaware that the bag contained Ecstasy. On January 13,
2004, the jury convicted Miller of the conspiracy charge and
of one count of distribution. At sentencing, the district court
held Miller accountable only for the Ecstasy pills distrib-
uted in the May 1, 2003 buy, and not for additional Ecstasy
pills distributed during the course of the conspiracy.
Rejecting Miller’s argument that he should receive a two-
level reduction for his allegedly minor role in the offense,
the district court applied a two-level enhancement for
obstruction of justice, finding by a preponderance of the
evidence that Miller had lied when he claimed not to know
that there were Ecstasy pills in the bag he delivered to
Detective Mahone. Miller was then sentenced to 70 months’
imprisonment on Counts 1 and 4, to run concurrently.


                              II.
  On appeal, Miller contends that there is insufficient
evidence to support his convictions, that the district court
abused its discretion by not allowing him to explain his
request for new counsel before denying that request, that
the district court’s enhancement for obstruction of justice
violates his Sixth Amendment rights since it was based on
facts not found by a jury or admitted to by the defendant
and that the district court erred by not considering him for
a reduction for his minor role in the offense.
No. 04-1989                                               5

                            A.
  We first address Miller’s insufficient evidence claim.
Miller concedes that he drove Holman to one buy and
handed a bag to Detective Mahone at another, and that he
complimented Detective Mahone for taking a “safety pre-
caution” by concealing the bag. At trial, however, Miller
denied that he knew the bag contained a controlled sub-
stance, and asserts on appeal that there is merely a prob-
able inference that he was aware of the bag’s contents, and
not proof beyond a reasonable doubt. Miller also emphasizes
that he never received any of the purchase monies, was
never present when money was discussed or exchanged,
was never named in connection with Holman and that a
search of his apartment revealed no evidence linking him to
the transactions.
   A conspiracy conviction requires a showing that two or
more people joined together for the purpose of committing
a criminal act and that the charged party knew of and in-
tended to join the enterprise. United States v. Atkins, 274
F.3d 444, 450 (7th Cir. 2001). The government may estab-
lish these elements through “circumstantial evidence and
the reasonable inferences therein concerning the parties’
relationships, their overt acts, and their overall conduct.”
United States v. Navarrette, 125 F.3d 559, 562 (7th Cir.
1997). A defendant has joined a conspiracy if “his presence,
along with other evidence indicating that the presence or
act was intended to advance the ends of the conspiracy is
shown.” Id. at 662 (internal quotation marks omitted).
Finally, when attempting to prove a drug conspiracy, the
government cannot merely show that the defendant was a
participant in a buyer-seller relationship, but must “prove
that the defendant conspired to commit some crime beyond
that agreement to sell drugs.” United States v. Rock, 370
F.3d 712, 714 (7th Cir. 2004) (emphasis in original). Be-
cause Miller did not file a motion for judgment of acquittal
under Rule 29 of the Federal Rules of Criminal Procedure,
6                                                No. 04-1989

we review this insufficient evidence claim for plain error,
and consider whether “after viewing the evidence in the
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.” Id. (internal citations omitted).
  Here, the government has met its burden of proof.
Holman’s telephone records establish that Miller was the
person Holman referred to as his “cousin,” who set the prices
for Ecstasy, which Holman quoted to Mahone. Moreover,
Miller admits to engaging in overt acts in furtherance of the
conspiracy, such as driving Holman to the first buy, hand-
ing a bag to Mahone during the second buy and compli-
menting Detective Mahone on his concealment of the bag.
The evidence also indicates that Miller delivered the bag to
Detective Mahone only after Holman told him that it was
“cool,” and that Miller received a compliment on Holman’s
professionalism. These facts establish that Miller and
Holman were not only on the same side of the transaction,
but that Miller participated actively in the Ecstasy sales,
was concerned about payment by third-party purchasers
and maintained control of the transactions by setting prices
and delaying delivery until he was assured that his accom-
plice had been paid. Viewing this evidence in the light most
favorable to the prosecution, a reasonable jury was entitled
to find beyond a reasonable doubt that Miller conspired to
distribute Ecstasy, and so Miller cannot prevail on his
insufficiency of the evidence claim with respect to his
conspiracy conviction.
  There is also sufficient evidence to support Miller’s con-
viction for distribution of Ecstasy. To succeed on this count,
the government had to establish “1) knowing or intentional
possession of the drug, 2) possession with intent to distrib-
ute and 3) knowledge that the drug was a controlled sub-
stance.” United States v. Harris, 325 F.3d 865, 868 (7th Cir.
2003). Miller was convicted of distributing Ecstasy on May
9, 2003, when he delivered the bag of Ecstasy pills to
No. 04-1989                                                 7

Detective Mahone. Based on Miller’s admissions that he
delivered a bag to Detective Mahone, and that he compli-
mented Detective Mahone for taking a “safety precaution,”
as well as other evidence in the record, a reasonable jury
could have found that Miller actually possessed Ecstasy,
and that Miller knew that the bag he delivered to Detective
Mahone contained Ecstasy.


                             B.
  Miller also argues on appeal that the district court abused
its discretion by not allowing him to explain why he sought
a change of counsel before denying his request for new
counsel, thus meriting a new trial. In refusing to grant
Miller a fourth continuance, the district court relied upon
factors enunciated in United States v. Huston, 280 F.3d 1164
(2002). Under Huston, in determining whether a district
court abused its discretion in denying a defendant’s request
for new counsel, we consider the timeliness of the request,
the adequacy of the district court’s inquiry into the requests
and whether the conflict between the defendant and his
counsel was so great that it resulted in a complete lack of
communication and in an inability to present an adequate
defense. Id. at 1167. Miller contends that the Huston
criteria are inapplicable since the district court never
allowed him to explain his reasons for requesting new
counsel. Though Miller was not questioned by the district
court as to his reasons for seeking to change counsel, it did
engage in an colloquy with Miller after it denied the re-
quest. Thus, we find that the Huston criteria appear to be
applicable since Miller had an opportunity to express his
concerns to the district court.
  Miller’s request is clearly deficient on two of the three
Huston criteria. There can be no doubt that his request was
untimely, since Miller’s retained attorney filed a request for
continuance and a conditional appearance at 4:07 p.m. on
8                                                No. 04-1989

the Friday before Miller’s trial was to commence, requiring
that the hearing on this motion be held the morning of the
trial, when jury selection was due to begin. The lateness of
this request is especially significant since Miller had
enjoyed ample time to retain counsel earlier, having already
received three continuances. Thus, Miller’s request came
too late in the game. See Huston, 280 F.3d at 1167 (request
for new counsel on morning of trial untimely). In addition,
Miller did not inform the district court that he had a
difficult relationship with his appointed counsel or that
there was a lack of communication between them, and the
record does not reflect an inability to present an effective
defense.
  As to the remaining Huston factor, the district court’s
inquiry into Miller’s request would have been more appro-
priate if it had solicited Miller’s reasons before rather than
after denying the request. However, we cannot say that this
deficiency gave rise to an abuse of discretion, since Miller
had not indicated that he was dissatisfied with his court-
appointed counsel. See United States v. Seale, 461 F.2d 345,
359 (7th Cir. 1972) (holding that, where the district court
was put on notice that the defendant was dissatisfied with
all counsel but one who was hospitalized, and the defendant
had relieved all other attorneys and decided to represent
himself pro se in the absence of the hospitalized counsel, the
district court was under an obligation to inquire into the
subject, and its failure to do so constituted an abuse of
discretion). In any event, the district court’s decision to
deny the request for new counsel was not a denial of Miller’s
Sixth Amendment right to effective assistance of counsel.
Huston, 280 F.3d at 1166 (citation omitted). There is no
evidence of ineffective representation by court-appointed
counsel. The district court did not abuse its discretion in
denying Miller’s request for new counsel without ascertain-
ing his reasons for this request.
No. 04-1989                                                   9

                              C.
  We next address Miller’s contention that the district court
erred in refusing to reduce his offense level based on his
alleged minor role in the conspiracy.
  Under § 3B1.2 of the U.S. Sentencing Guidelines, a
defendant’s offense level is decreased by two levels if he was
a minor participant in any criminal activity. This issue does
not present a question under United States v. Booker, 125
S.Ct. 738 (2005), since a role in the offense adjustment
would reduce Miller’s sentence, not enhance it. We review
the district court’s decision to deny a defendant a downward
adjustment for a minor role in an offense for clear error.
United States v. Hanhardt, 361 F.3d 382, 394 (7th Cir.
2004).
  Here, the record indicates that the district court erred
when it expressed a belief that Miller was not qualified to
receive the reduction since he was being held accountable
only for the quantity of drugs attributable to his own con-
duct. Thus, in denying Miller’s request, the district court
stated that “there is no basis for a minor role adjustment in
that distribution and delivery. There would be room to
make that argument if I were holding Mr. Miller account-
able for additional quantities of drugs.” (Sent. Tr. 9). But in
United States v. Rodriguez-Cardenas, 362 F.3d 958 (7th Cir.
2004), we held that, under a 2001 amendment to the
sentencing guidelines, it was error for a district court to fail
to consider a defendant for a role in the offense reduction
merely because he was held accountable only for the drugs
he personally handled. Id. at 958. Of course, Miller’s act of
handing over the drugs might have been an adequate
reason to find that he did not have a minor role, but the
trial judge did not expressly rely on this circumstance.
Thus, we must remand this issue to the district court for a
determination whether Miller may receive a reduction for
a minor role in the offense under § 3B1.2 of the U.S.
Sentencing Guidelines.
10                                                     No. 04-1989

                                 D.
  Miller also argued on appeal that his Sixth Amendment
right to a jury determination of facts underlying sentence
enhancements was violated when the judge found by a
preponderance of the evidence that he had testified falsely
at trial, and applied a 2-level enhancement for obstruction
of justice, raising his offense level from 24 to 26. See United
States v. Booker, supra. At trial, Miller testified that he did
not know that the bag he delivered to Detective Mahone
contained Ecstasy. On appeal, Miller concedes that the jury
verdict of conviction contradicts his trial testimony, but
contends that the verdict relates only to the charged
offenses, and cannot be the basis of the obstruction of
justice enhancement. We are already remanding this case
for a determination as to whether Miller qualifies for a
reduction for his alleged minor role in the offense, and
Miller may be resentenced in accordance with Booker at
that time, obviating the need for a limited remand under
United States v. Paladino, No. 03-2296, 2005 WL 435430
(7th Cir. Feb. 25, 2005).1


1
  To indicate our resolution of issues presented on the present
appeal, however, we would note that the district court did not
clearly err in finding that Miller perjured himself by testifying
that he did not know that the bag he delivered to Detective
Mahone contained Ecstasy, since it could have refused to credit
Miller’s testimony in light of his admissions. Moreover, both the
offenses of conspiracy and distribution incorporate a scienter ele-
ment that Miller’s testimony was intended to negate, and the
jury’s verdict directly establishes that it disbelieved his testimony,
since it was required to find scienter in order to convict Miller.
Under Booker, therefore, it could certainly be argued that there
was no constitutional error in applying the enhancement for
obstruction of justice because the jury by its verdict established
that perjury had been committed. Cf. United States v. Parra, No.
03-2056, 2005 WL 703936 (7th Cir. March 29, 2005). In any event,
there was a statutory error since the district court, in applying the
                                                        (continued...)
No. 04-1989                                                       11

                                III.
  In summary, we AFFIRM Miller’s conviction and the
district court’s denial of Miller’s request for a continuance.
We REMAND this case to the district court for resentencing
to allow it to determine whether, under the circumstances
presented and under United States v. Rodriguez-Cardenas,
Miller merits a reduction for an allegedly minor role in the
offense.

A true Copy:
        Teste:
                            ________________________________
                            Clerk of the United States Court of
                              Appeals for the Seventh Circuit




1
   (...continued)
enhancement, erroneously believed that the Guideline was
mandatory, not advisory. Although no objection was raised at
trial, the government has conceded that the application of the
assessment was error, whether constitutional or statutory. (But
the context of the government concession indicated that it applied
to the constitutional question). (Plaintiff ’s Supp. Br. at 5) (“In
light of the decision in Booker, it is clear that the district court’s
belief that it was required to impose the Guidelines sentence was
erroneous and that error was ‘plain’ (in the sense of ‘clear’ or
‘obvious’ ”)) (citation omitted). This concession would have mooted
the first two prongs of the plain error analysis by which we would
have resolved this matter. See United States v. Nance, 236 F.3d
920, 924 (7th Cir. 2000) (citing Johnson v. United States, 520 U.S.
461, 466-67 (1997)).


                      USCA-02-C-0072—4-20-05
