                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                         April 25, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                          No. 12-3030
                                                 (D.C. No. 2:10-CR-20129-KHV-7)
WILLIE F. FORD,                                              (D. Kan.)

             Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before O’BRIEN, McKAY, and BALDOCK, Circuit Judges.


      A jury convicted defendant Willie F. Ford of (1) conspiracy to distribute and

possess with intent to distribute more than five kilograms of cocaine and more than

280 grams of cocaine base (crack), in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A)(ii), (b)(1)(A)(iii), and 846 (Count 1); (2) conspiracy to maintain a residence

for the purpose of distributing crack within 1,000 feet of a public secondary school,

in violation of 21 U.S.C. §§ 856(a)(1), 860(a), and 846, and 18 U.S.C. § 2 (Count 4);

*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
(3) distribution of crack within 1,000 feet of a public secondary school, in violation

of 21 U.S.C. §§ 841(a)(1), 860(a), and 18 U.S.C. § 2 (Count 5); and (4) use of a

communication device to facilitate a drug trafficking offense, in violation of

21 U.S.C. § 843(b) and 18 U.S.C. § 2 (Count 12). Ford was sentenced to 420 months

in prison. He appeals his conviction on Count 1 and challenges his sentence. We

exercise jurisdiction under 28 U.S.C. § 1291 and affirm his convictions and sentence.

                                    I.     Background

      The evidence at trial established that Ford and others used three houses in

Kansas City, Kansas, for selling and storing drugs. The main drug house, located at

2632 North 20th Street, known as “the Spot,” sold drugs day and night. Drugs were

also sold from two other houses near the Spot. In addition to the three houses used

for selling drugs, Ford regularly stored drugs intended for sale at the Spot at his

parents’ house nearby. He brought drugs from his parents’ house to the Spot

numerous times at coconspirator Andrew Price’s request.

      Following an extensive investigation of the drug trafficking operation, on

October 13, 2010, law-enforcement officials made coordinated arrests of the

participants and searches of the houses used for selling drugs. As FBI agents entered

the Spot, several coconspirators ran out the back door. Two of them carried firearms

and three carried large amounts of cash. Ford was not among those arrested at the

Spot. A search of the Spot produced video cameras and a monitor, 27.8 grams of

crack, 79.8 grams of marijuana, an electronic scale, packaging materials, and cell


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phones. Searches of the other drug houses also produced large amounts of cocaine

and crack.

      Ford was charged in a superseding indictment with conspiring to distribute and

distributing cocaine and crack between August 29, 2007 and October 13, 2010, and

other charges. He was indicted with seventeen others, and stood trial with

codefendants Marcus L. Quinn and Mark A. Brooks pursuant to a second superseding

indictment. Four other codefendants entered guilty pleas and testified at the trial:

LaVaughn “Jason” Brown, Polly Smith, Adrian Melendez, and Daniel Cardenas

Garcia.

      The testimony of Brown and Smith established that the persons permitted to

sell drugs from the Spot were part of an “inner circle” that included Ford. Although

Antonio Quinn1 was the main person who decided who could sell from the Spot, all

members of the inner circle had some say in the matter. Brown testified that the

inner-circle members were “all the same,” meaning a buyer could get drugs from him

or any of the others. R. Vol. 2 at 864-65. The inner circle contributed to pay the

bills at the Spot. Some members of the conspiracy had regular jobs, but Ford did not.

      Several witnesses placed Ford at the Spot on a regular, if not constant, basis.

One witness testified that she had purchased crack from him more than 25 times.

Several controlled drug buys were completed at the Spot; one of them from Ford.
1
       Three defendants with the surname of “Quinn” were charged in the
superseding indictment. Marcus Quinn stood trial with Ford. All other references
herein to “Quinn” are to Antonio Quinn.


                                          -3-
      The government’s evidence included transcripts of numerous telephone calls

between coconspirators recorded from wire intercepts on Quinn’s telephone. During

calls between Quinn and Ford, the two discussed other conspirators and the drug

business. In particular, they used the conspiracy’s code words, such as “two-door”

and “four-door,” to describe drug quantities. During one call, Ford advised Quinn

that the “kick-in boys [meaning SWAT teams] have been riding,” id. at 1276, and

Quinn asked who was “up there,” to which Ford responded by naming two other

coconspirators, id. Furthermore, other coconspirators referred to Ford in phone calls

discussing the drug trafficking organization.

      Testifying coconspirator Adrian Melendez stated that he supplied cocaine to

Quinn. He had observed Quinn hand to Ford cocaine that he had supplied to Quinn.

Melendez saw Quinn give Ford cocaine “six, seven times.” Id. at 1935. In addition,

coconspirator Daniel Cardenas Garcia testified that Quinn told him that he supplied

Ford cocaine, and that Quinn sometimes delayed paying Garcia because he was

awaiting payment from others, including Ford, before paying Garcia.

      Following a jury trial, Ford was convicted of the counts indicated above. A

Presentence Investigation Report (PSIR) was prepared that established a base offense

level of 38 under U.S.S.G § 2D1.1(c)(1) (2009) for an offense involving

4.5 kilograms or more of crack.2 Two levels were added, pursuant to § 2D1.2(a)(1),

because the drugs were sold from a protected location, and two additional levels were
2
      The 2009 version of the Sentencing Guidelines was applied.


                                         -4-
added, pursuant to § 2D1.1(b)(1), for possession of a firearm, for an adjusted offense

level of 42. Because he was determined to be a career offender, his criminal history

category was VI, resulting in an advisory sentencing range of 360 months to life

imprisonment. Ford objected to the PSIR, challenging the drug quantity attributable

to him and the firearm enhancement. The district court overruled his objections,

adopted the PSIR, and sentenced him to 420 months on each of Counts 1, 4, and 5,

and 96 months on Count 12, all to run concurrently.

      On appeal, Ford argues that the evidence was insufficient to sustain his

conviction for Count One, conspiracy to distribute and possess with intent to

distribute cocaine and crack. He also challenges his sentence, arguing that the drug

amounts attributed to him were higher than justified by the evidence and he should

not have received a two-level enhancement for possessing a firearm.

                                     II.    Analysis

   A. Sufficiency of Evidence on Count One, Conspiracy

      Ford contends that the evidence proved only that he sold drugs from the Spot

and the other houses. He asserts that he had a buyer-seller relationship with Quinn,

but there was no evidence that he conspired with him or anyone else. He points out

that there was only one controlled buy from him. He asserts that he sold his own

drugs, set his own prices, and kept all of the profits. He discounts the telephone calls

as showing only that he and Quinn talked about drugs, and claims that there was no




                                           -5-
evidence to prove that the transactions they discussed occurred. He says that the

telephone calls show only a buyer-seller relationship between him and Quinn.

      “We review sufficiency-of-the-evidence challenges de novo, considering both

direct and circumstantial evidence, and all reasonable inferences therefrom, in the

light most favorable to the government.” United States v. Acosta-Gallardo, 656 F.3d

1109, 1123 (10th Cir.) (brackets and internal quotation marks omitted), cert. denied,

132 S. Ct. 540 (2011). “Under this standard, we will not reverse a conviction unless

no rational trier of fact could have reached the disputed verdict.” United States v.

Pulido-Jacobo, 377 F.3d 1124, 1129 (10th Cir. 2004) (brackets, ellipsis, and internal

quotation marks omitted). This court will not weigh the evidence or disturb the

jury’s credibility determinations. Acosta-Gallardo, 656 F.3d at 1123. “The evidence

is sufficient . . . if a reasonable jury could have found the defendant guilty beyond a

reasonable doubt.” Id.

      “To obtain a conspiracy conviction, the government must prove: (1) an

agreement by two or more persons to violate the law; (2) knowledge of the objectives

of the conspiracy; (3) knowing and voluntary involvement in the conspiracy; and

(4) interdependence among co-conspirators.” United States v. Foy, 641 F.3d 455,

465 (10th Cir.), cert. denied, 132 S. Ct. 467 (2011). “Because secrecy and

concealment are essential features of successful conspiracy, direct evidence of

conspiracy is often hard to come by. Therefore, conspiracy convictions may be based

on circumstantial evidence, and the jury may infer conspiracy from the defendants’


                                          -6-
conduct and other circumstantial evidence indicating coordination and concert of

action.” United States v. Dazey, 403 F.3d 1147, 1159 (10th Cir. 2005) (citation,

brackets, and internal quotation marks omitted).

   1. Agreement

      “To prove an agreement, the government need not offer direct proof of an

express agreement on the part of the defendant. Instead the agreement may be

informal and may be inferred entirely from circumstantial evidence.” Pulido-Jacobo,

377 F.3d at 1129 (internal quotation marks omitted). Moreover, “[a]n agreement

may be inferred from the facts and circumstances of the case, including frequent

contacts among the defendants and from their joint appearances at transactions and

negotiations.” United States v. Sells, 477 F.3d 1226, 1236 (10th Cir. 2007) (internal

quotation marks omitted).

      Here, the jury could reasonably have inferred the existence of an agreement

from the evidence showing that (1) Ford was a member of the inner circle at the Spot;

(2) no one could sell drugs from the Spot who was not approved by the inner circle;

(3) Ford sold drugs from the Spot; (4) those who sold drugs from the Spot, including

Ford, shared the household expenses; (5) Ford knew and used the code words of the

conspiracy, e.g., “two-door” and “four-door;” (6) he participated in monitoring

security at the Spot, e.g. the “kick-in boys” conversation; and (7) a buyer could buy




                                         -7-
from any of the inner circle, e.g., they were “all the same.”3 Cf. United States v.

Cornelius, 696 F.3d 1307, 1319 (10th Cir. 2012) (holding evidence that defendant

was a member of a street gang in which he was a leader “(giving him an insider

presence and heightened decisionmaking power in the gang)” who repeatedly sold

cocaine to other drug distributors was “sufficient to support an inference of both

agreement and interdependency elements of a conspiracy”). Viewing the evidence in

the light most favorable to the government, we conclude that there was sufficient

evidence of an agreement.

    2. Essential Objectives

       “Under this element, the government must prove that the alleged conspirator

had a general awareness of both the scope and the objective of the enterprise.”

Pulido-Jacobo, 377 F.3d at 1130 (internal quotation marks omitted). Ford

acknowledges that he sold illicit drugs from the Spot. This, added to the evidence

that he was generally found there selling drugs, he stored drugs for the drug

trafficking operation at his parents’ house, and his payment to Quinn was sometimes

necessary for Quinn to pay the drug supplier, established that Ford was aware of the

scope and objective of the enterprise.




3
      Ford argues that this remark referred to the quality of the drugs, rather than the
agreement among the coconspirators. But the jury could reasonably interpret the
testimony as referring to an agreement, rather than to drug quality.


                                          -8-
   3. Knowing and Voluntary Involvement

      “The jury may presume that a defendant is a knowing participant in the

conspiracy when he acts in furtherance of the objective of the conspiracy.” United

States v. Johnson, 42 F.3d 1312, 1319 (10th Cir. 1994) (brackets and internal

quotation marks omitted). Again, Ford concedes that he sold drugs, thus

demonstrating that he was a knowing participant. He acted in furtherance of the

objective of the conspiracy by contributing to the expenses of the Spot, storing drugs

at his parents’ house, participating in security measures for the Spot, and pooling

funds with Quinn to pay the drug supplier.

   4. Interdependence

      “Interdependence exists where each co-conspirator’s activities constituted

essential and integral steps toward the realization of a common, illicit goal.”

Foy, 641 F.3d at 465 (brackets and internal quotation marks omitted).

“Circumstantial evidence alone is often sufficient to demonstrate interdependence;

indeed it is often the only evidence available to the government.” United States v.

Caldwell, 589 F.3d 1323, 1329 (10th Cir. 2009). Furthermore, “in the profit-driven

world of illicit drugs, the fact that several individuals are in an economically

symbiotic relationship may demonstrate that transactions among them are in pursuit

of mutual benefit.” Id. at 1332.

      The government sufficiently established interdependence in this case by

showing that (1) several coconspirators agreed on who could sell drugs at the Spot;


                                          -9-
(2) they shared the house’s expenses; (3) they shared information concerning

security, such as monitoring SWAT activity and using code words to conceal

references to drugs; (4) Quinn obtained drugs from Melendez and Garcia, and in turn

supplied them to Ford whose payment was necessary to pay the purchase price; and

(5) Ford stored drugs at his parents’ house that he brought to the Spot when

requested. See, e.g. Cornelius, 696 F.3d at 1319 (holding evidence that defendant

was a member of a street gang in which he was a leader “(giving him an insider

presence and heightened decisionmaking power in the gang)” who repeatedly sold

cocaine to other drug distributors was “sufficient to support an inference of both

agreement and interdependency elements of a conspiracy”); Foy, 641 F.3d at 466

(holding interdependence was shown by evidence that coconspirators “regularly

pooled their money together to purchase multiple-kilogram quantities of cocaine,

treated their debts to their drug supplier as common debts, coordinated the

distribution of large amounts of cocaine, and discussed taking a large amount of

cocaine from their supplier without paying for it”); United States v. Hutchinson,

573 F.3d 1011, 1036 (10th Cir. 2009) (holding evidence was sufficient to show

interdependency between coconspirators where one coconspirator supplied the

dealers in the drug house with drugs when they ran out, which was “plainly integral”

to the operation’s success). Thus, there was sufficient evidence to prove

interdependence, as well as the other elements of a conspiracy, and Ford’s conviction

on Count 1 is affirmed.


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   B. Sentencing Challenges

      Ford makes two challenges to his sentence. First, he contends that the amount

of drugs attributed to him was too high and his sentence should have been based only

on the amount of drugs linked directly to him, rather than the amount linked to the

entire conspiracy. Second, he asserts that the district court erred in applying a

two-level enhancement for possessing a firearm.

      When “reviewing the district court’s application of the sentencing guidelines,

this court reviews legal questions de novo and reviews factual findings for clear

error, giving due deference to the district court’s application of the guidelines to the

facts.” United States v. McKeighan, 685 F.3d 956, 975 (10th Cir.) (internal quotation

marks omitted), cert. denied, 133 S. Ct. 632 (2012). The district court’s findings of

fact are clearly erroneous if they are “without factual support in the record or if the

appellate court, after reviewing all of the evidence, is left with a definite and firm

conviction that a mistake has been made.” Id. (internal quotation marks omitted).

“We review a sentencing court’s determination of drug quantity for clear error.”

Caldwell, 589 F.3d at 1333. “The government must prove drug quantity by a

preponderance of the evidence.” Foy, 641 F.3d at 468.

   1. Drug Quantities Ascribed to Ford for Sentencing Purposes

      “[I]n calculating drug quantity, the district court may consider, ‘in the case of

a jointly undertaken criminal activity, all reasonably foreseeable acts and omissions

of others in furtherance of the jointly undertaken criminal activity.’” Foy, 641 F.3d


                                          - 11 -
at 469 (ellipsis omitted) (quoting U.S.S.G. § 1B1.3(a)(1)(B)). Ford argues that the

drug quantities processed by the conspiracy were not foreseeable to him. The district

court determined that Ford was a “major player” in the drug conspiracy to be “held

accountable for the reasonably foreseeable quantities of drugs trafficked by himself

and his co-participants in furtherance of the jointly undertaken criminal activity[, all

of which] occurred within the scope of his agreement to participate.” R. Vol. 2 at

3025. Based on the evidence discussed above, we agree.

   2. Firearm Enhancement

      Finally, Ford challenges the two-level enhancement for possessing a firearm.

This enhancement was based on the firearms thrown down by two of his fleeing

coconspirators just prior to their arrest. Section 2D1.1(b)(1) of the guidelines

provides for a two-level enhancement “[i]f a dangerous weapon (including a firearm)

was possessed.” “The [enhancement] should be applied if the weapon was present,

unless it is clearly improbable that the weapon was connected with the offense.”

U.S.S.G. § 2D1.1, cmt. n.3. “The enhancement applies when a co-defendant

possessed a firearm, so long as possession was reasonably foreseeable to the

defendant.” Foy, 641 F.3d at 470. The initial burden is on the government to show

possession by a preponderance of the evidence. Id.

      The government’s initial burden is met when it shows that a weapon
      was located near the general location where at least part of a drug
      transaction occurred. If the government meets its initial burden, the
      defendant must demonstrate that it is clearly improbable that the
      weapon was connected with the offense.


                                          - 12 -
Foy, 641 F.3d at 470 (citation and internal quotation marks omitted).

      The government presented evidence that two of Ford’s coconspirators

possessed firearms and threw them down as they fled arresting officers. Thus, the

government met its initial burden. Ford points out that there was no evidence that he

possessed a firearm, but a defendant “may be held accountable at sentencing for [his

coconspirator’s] firearm possession.” Id. Relying on United States v. Moreira,

333 F. App’x 366 (10th Cir. 2009), Ford contends that the government did not show

that it was foreseeable that weapons would be present. His reliance is misplaced.

There, as here, the firearm enhancement was appropriate because one or more

coconspirators possessed the guns; the defendant had proprietary access to the drug

house where the guns were possessed; the defendant participated in a large-scale drug

conspiracy; and large amounts of drugs, drug paraphernalia, and cash were found at

the drug houses or in the possession of coconspirators. See id. at 371-72. We

conclude that Ford failed to show that it was clearly improbable that the weapons

possessed by his coconspirators were connected with the offense, and therefore the

firearm enhancement was appropriate.

                                   III.    Conclusion

      Ford’s convictions and sentence are affirmed.


                                                   Entered for the Court


                                                   Bobby R. Baldock
                                                   Circuit Judge

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