                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 14-1158
UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,

                                 v.

WILLIAM J. DAVISON,
                                               Defendant-Appellant.
                     ____________________

         Appeal from the United States District Court for the
          Northern District of Indiana, Hammond Division.
           No. 2:02-CR-00044 — James T. Moody, Judge.
                     ____________________

      SUBMITTED JULY 17, 2014 — DECIDED JULY 30, 2014
                     ____________________

   Before POSNER, KANNE, and TINDER, Circuit Judges.
    POSNER, Circuit Judge. The defendant, a member of the
“Concord Affiliated” street gang in Gary, Indiana, was con-
victed in 2003 of two counts of having distributed at least 50
grams of crack cocaine. 21 U.S.C. § 841(a)(1). In October
2003, the district judge, determining that the defendant had
foreseen the gang’s sale of “way in excess of” 1.5 kilograms
of crack—at that time the threshold quantity for the highest
base offense level (38) for a federal drug offense—sentenced
2                                                   No. 14-1158


him to 360 months in prison. Actually the jury had acquitted
him of conspiracy. But at the sentencing hearing, the judge,
as he was authorized to do, see United States v. Watts, 519
U.S. 148, 149 (1997) (per curiam), determined by a prepon-
derance of the evidence that the defendant had been a mem-
ber of the conspiracy. The judge reasoned from this determi-
nation that the sales of crack by the other members, to the
extent that those sales had been reasonably foreseeable to the
defendant, constituted “relevant conduct” engaged in by
him and were therefore the correct basis for calculating his
guidelines sentencing range. The quantity of those foreseea-
ble sales made his base offense level 38. His total offense lev-
el was 40, for which the guidelines sentencing range is 292 to
365 months, so the 360-month sentence was within that
range. (The government’s brief incorrectly states that the de-
fendant was sentenced to life imprisonment.) He appealed,
and we affirmed his sentence in United States v. Davison, 166
F. App’x 246, 249 (7th Cir. 2005).
    After an initial failure to obtain a sentencing reduction,
see United States v. Davis, 682 F.3d 596, 619–20 (7th Cir. 2012),
the defendant moved for a sentencing reduction under 18
U.S.C. § 3582(c)(2) on the basis of the Sentencing Commis-
sion’s having retroactively lowered the base offense level for
offenses involving crack. U.S.S.G. App. C, Amendment 750
(2011); United States v. Dixon, 687 F.3d 356, 358 (7th Cir.
2012). He conceded responsibility for the sale of 4.5 kilo-
grams of crack but argued that he was not responsible for 8.4
kilograms, the new floor created by the Sentencing Commis-
sion’s retroactive change in the amount of crack required to
make a defendant’s maximum base offense level 38. The dis-
trict judge denied the motion, ruling that the defendant had
been responsible for the sale of at least 16.9 kilograms of
No. 14-1158                                                   3


crack. That was the entire amount that the conspiracy of
which the defendant was a member had been found to have
sold, and we had upheld that finding in United States v. Hall,
600 F.3d 872, 876 (7th Cir. 2010), a case that involved a mo-
tion for a reduction in sentence by two of the current de-
fendant’s co-conspirators.
    Both the district judge in denying the defendant’s motion
for a reduction in the length of his sentence, and the gov-
ernment in defending that denial in this court, appear, how-
ever, to have misunderstood “relevant conduct,” the basis
on which the judge had computed a base offense level of 38
for the defendant and sentenced him to 360 months in pris-
on. Relevant conduct is conduct by the defendant that even
if not charged is to be used to determine his base offense
level, U.S.S.G. § 1B1.3 and Application Note 1. It consists, “in
the case of a jointly undertaken criminal activity (a criminal
plan, scheme, endeavor, or enterprise undertaken by the de-
fendant in concert with others, whether or not charged as a
conspiracy),” of “all reasonably foreseeable acts and omis-
sions of others in furtherance of the jointly undertaken crim-
inal activity, that occurred during the commission of the of-
fense of conviction … .” § 1B1.3(a)(1)(B). Application Note 1
explains that the “principles and limits of sentencing ac-
countability under this guideline are not always the same as
the principles and limits of criminal liability. Under subsec-
tions (a)(1) and (a)(2), the focus is on the specific acts and
omissions for which the defendant is to be held accountable
in determining the applicable guideline range, rather than
on whether the defendant is criminally liable for an offense
as a principal, accomplice, or conspirator”(emphasis added).
4                                                   No. 14-1158


    The focus in other words is on acts, reasonably foreseea-
ble to the defendant even though committed by others, that
furthered a criminal activity that he had agreed to undertake
jointly with those others. United States v. Soto-Piedra, 525 F.3d
527, 531–33 (7th Cir. 2008); United States v. McDuffy, 90 F.3d
233, 236 (7th Cir. 1996); United States v. Edwards, 945 F.2d
1387, 1395 (7th Cir. 1991); United States v. Spotted Elk, 548
F.3d 641, 673–74 (8th Cir. 2008); U.S.S.G. § 1B1.3, Application
Note 2, Illustrations (c)(1), (6), (7). So whether the defendant
in this case is liable for the sale of illegal drugs by other
members of the conspiracy that he had joined, in an amount
in excess of the limit (8.4 kilograms) for the sentence reduc-
tion that he seeks, depends not only on whether the sale
quantity was foreseeable to him (which the judge found that
it was), but also on whether he joined with those other con-
spirators in a joint undertaking of which the making of those
sales was an objective, or had agreed to join in such an un-
dertaking. And that is a question that neither the district
judge nor the government addressed.
   In effect the judge and the government equated “jointly
undertaken criminal activity” to conspiracy, and that is in-
correct. “Conspiracy liability, as defined in Pinkerton v. Unit-
ed States, 328 U.S. 640, 646–48 (1946), is generally much
broader than jointly undertaken criminal activity under
§ 1B1.3.” United States v. Soto-Piedra, supra, 525 F.3d at 531.
By agreeing with others to sell crack the defendant joined a
conspiracy. And he may have agreed to help his co-
conspirators achieve a goal of selling an amount of crack that
would exceed 8.4 kilograms, and if so the sales of that
amount (in excess of the amount he sold personally, which
was the basis of his offense of conviction) would be relevant
conduct of his because they would be the fruit of a criminal
No. 14-1158                                                    5


activity that he had jointly undertaken with his co-
conspirators. But in determining the defendant’s relevant
conduct the district judge did not rely on evidence that the
defendant had agreed to help his co-conspirators sell crack;
nor does the government in its brief rely on such evidence.
The government and the district judge stop with foreseeabil-
ity, and that’s not enough.
    As noted earlier, the defendant admits responsibility for
selling more than 4.5 kilograms of crack himself. It appears
that his average sales were 3.5 grams a day, which over four
years would amount to 5.1 kilograms—much less than 8.4
kilograms. Suppose he had joined the conspiracy knowing of
its objectives, but his only goal was to have a better shot at
obtaining crack that he could resell. If he neither did nor
agreed to do anything to promote sales by the other gang
members, their sales (which together with his sales exceeded
the 8.4 kilogram limit for a sentence reduction) were not rel-
evant conduct of his, even if foreseeable.
    The record does, however, contain evidence that the de-
fendant had done more than just sell his own crack—maybe
enough more to establish that the entire sales of the conspir-
acy, or at least some amount in excess of 8.4 kilograms, were
relevant conduct of his, in which event he wouldn’t be eligi-
ble for a sentence reduction. The judge remarked that in sen-
tencing the defendant back in 2003 he had “also found [that]
… ‘more likely than not, he [Davison] was a shooter,’ that is,
he had been involved, as either an accomplice or the actual
triggerman, in murders carried out in furtherance of the conspir-
acy” during his three years of membership in the Concord
Affiliated gang (emphasis added). (Only the passage in sin-
gle quotation marks is a quotation from the judge’s remarks
6                                                   No. 14-1158


when he sentenced the defendant in 2003) If those murders
were indeed intended to assist the sales activity of other
gang members, the sales made by those other members
would be illegal activity undertaken by our defendant joint-
ly with those others. But it is uncertain whether that is what
the judge meant. He may just have meant that the murders
were intended to further the defendant’s own sales. It is
noteworthy that nowhere in his opinion denying the sen-
tence reduction does the judge treat the murders as relevant
conduct; rather he treats the gang’s entire sales during the
period of the defendant’s membership as relevant conduct
because reasonably foreseeable to the defendant.
    The possible significance of the murders to the question
of the defendant’s relevant conduct thus remains an unre-
solved issue. It is a factual issue for the district judge to re-
solve in the first instance, as are any other factual issues re-
garding the defendant’s relevant conduct.
   We reverse the judgment and remand the case for recon-
sideration of the defendant’s motion.
                                    REVERSED AND REMANDED.
