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

No. 01-2864
UNITED STATES OF AMERICA,
                                              Plaintiff-Appellee,
                               v.

COREY A. WILLIAMS,
                                          Defendant-Appellant.
                         ____________
           Appeal from the United States District Court
                for the Southern District of Illinois.
            No. 00-CR-40065—J. Phil Gilbert, Judge.
                         ____________
      ARGUED JUNE 6, 2002—DECIDED AUGUST 6, 2002
                     ____________


 Before EASTERBROOK, MANION, and KANNE, Circuit
Judges.
  KANNE, Circuit Judge. A jury found defendant Corey
Williams guilty of several counts of distribution and pos-
session with the intent to distribute cocaine base (“crack”)
and of one count of conspiracy to distribute and possess
with the intent to distribute more than fifty grams of crack.
Williams appeals, contending that (1) there was insufficient
evidence to support the conspiracy conviction; (2) the dis-
trict court committed reversible error by failing to com-
ply with 21 U.S.C. § 851(b); and (3) the district court erred
in admitting statements from his proffer agreement. We
affirm.
2                                                      No. 01-2864

                            I. History
   Williams began selling crack in Mt. Vernon, Illinois some-
time in 1995 and developed a business relationship with
Monte Lesure. At trial, Lesure explained that for sev-
eral months, he and Williams sold crack out of their cars,
pooled their money to purchase crack, and traveled together
to purchase additional crack when necessary. Lesure testi-
fied that during their business relationship, they sold be-
tween 500 and 1,000 grams of crack and netted approxi-
mately $36,000 in profits. At trial, the government also
produced evidence of several controlled drug purchases
involving Williams, which were recorded via an audio/
video recorder. Additionally, several government witnesses
testified about crack purchases that they made from
Williams over the years.
  During Williams’ case-in-chief, he offered a stipulation
designed to show that he was in prison and not selling
drugs during various periods beginning in 1995. Williams’
stated purpose in offering the stipulation was to discredit
the testimony of several government witnesses who had
testified that they had purchased crack from Williams or
sold crack with Williams. In rebuttal, the government of-
fered portions of Williams’ proffer agreement—that is the
statements Williams made during his unsuccessful plea ne-
gotiations—and the testimony of Agent Randall Nadol-
ski, who was present during those negotiations.1 For ex-


1
    The proffer agreement provided in pertinent part:
      [N]o statements or information provided by your client during
      the “off-the-record” proffer or discussion will be used against
      your client in any criminal case during the government’s case
      in chief. That is, however, the only limitation on the use the
      government may make of your client’s statements.
      [T]he government may use any statements made or other in-
      formation provided by your client to rebut evidence or ar-
                                                   (continued...)
No. 01-2864                                                          3

ample, Williams admitted that beginning in 1989, he pur-
chased crack from several sources, including several gov-
ernment witnesses.
  The jury then convicted Williams of four counts of dis-
tribution and possession with intent to distribute less than
five grams of crack in violation of 21 U.S.C. § 841(a)(1)
and of one count of conspiracy to distribute and posses-
sion with intent to distribute more than fifty grams of crack
in violation of 21 U.S.C. § 846.
  Prior to trial, the government had timely filed an infor-
mation pursuant to 21 U.S.C. § 851(a), declaring that based
upon Williams’ two prior felony drug convictions, the gov-
ernment would seek to enhance his sentence if he was
convicted because Williams was a repeat offender. See
U.S.C. § 841(b)(1)(A). After the jury convicted Williams, a
Presentence Investigation Report (“PSR”) was prepared
and outlined Williams’ two prior felony drug convictions
and the life sentence required by § 841(b)(1)(A). Williams
responded to the PSR by stating that he
      [W]as not informed of the possibilities of the filing of an
      information pursuant to 21 U.S.C. Section 851 to estab-
      lish prior convictions or the possibilit[y] that he could
      face life in prison while represented by [his former
      counsel]. In fact, again, based upon the representa-
      tions of the Defendant, COREY A. WILLIAMS to [his
      present attorney], he was informed by [his former coun-
      sel] that he faced 120 to 150 months in prison as a level
      27, Category VI, for a 500 to 1500 gram range of crack


1
    (...continued)
       guments materially different from any statements made or
       other information provided by your client. . . . In addition, we
       want to emphasize that the above-mentioned examples are
       not totally inclusive of the uses the government may make
       of your client’s “off-the-record” proffer or discussion.
4                                                     No. 01-2864

    cocaine, and was NEVER told by [his former counsel]
    that he could face more time than that.
In other words, Williams complained that his previous
counsel—who withdrew before trial—had never told him
that he faced the possibility of a life sentence. At sen-
tencing, in support of his objection, Williams’ then-present
counsel stated that the objection spoke for itself and
added that if Williams knew he was going to face a life
sentence, he would have pled guilty instead of going to
trial. The district court overruled Williams’ objection, not-
ing that Williams was advised at arraignment of the pos-
sibility of a life sentence.2 The district court then adopted
the PSR and its findings and imposed a life sentence on
the conspiracy count and 360 months of imprisonment
on four distribution counts.3


                          II. Analysis
                  A. Sufficiency of Evidence
  Williams first contends that the evidence was insuffi-
cient to support a finding that he conspired to distrib-
ute more than fifty grams of crack. Normally, we review
whether a jury verdict has evidentiary support in a crim-
inal case by asking if there was sufficient evidence, when
viewed in the light most favorable to the government, to
allow a rational trier of fact to find all of the essential ele-
ments of an offense beyond a reasonable doubt. See United
States v. Carlino, 143 F.3d 340, 343 (7th Cir. 1998). How-
ever, Williams did not preserve normal review of the issue
because, although he moved for a judgment of acquittal at


2
  Before trial, the district court also explicitly told Williams that
he faced the possibility of a life sentence on the conspiracy count.
3
  Williams was also convicted of possession of a firearm by a felon
and sentenced to 120 months of imprisonment. This count is ir-
relevant to his appeal.
No. 01-2864                                                5

the close of the government’s case, he failed to renew his
motion at the close of all of the evidence. Therefore, we re-
view Williams’ claim only for plain error, which in this con-
text is present only if his conviction amounted to a mani-
fest miscarriage of justice. See id. “Manifest miscarriage
of justice is perhaps the most demanding standard of ap-
pellate review. We will reverse only if the record is devoid
of evidence pointing to guilt, or if the evidence on a key
element of the offense was so tenuous that a conviction
would be shocking.” United States v. Taylor, 226 F.3d 593,
597-98 (7th Cir. 2000).
  The government has the task of proving that Williams
was part of a conspiracy. See United States v. Albarran, 233
F.3d 972, 976 (7th Cir. 2000). Determining that a conspir-
acy exists is only the first step in the process, as the
government must also show that the defendant knew of
the illegal objective of the conspiracy and agreed to par-
ticipate in its achievement. See id. Here, Williams’ alleged
co-conspirator, Lesure, testified that he and Williams
pooled their money to buy drugs for resale, traveled to-
gether to obtain drugs for resale, sold drugs together
from Lesure’s or Williams’ automobile or their girlfriends’
apartment, and together made $36,000 in profits. Lesure’s
testimony is more than sufficient to conclude that a con-
spiracy existed between Lesure and Williams to sell crack
and that Williams agreed to join the conspiracy. See id.; see
also United States v. Benjamin, 116 F.3d 1204, 1206 (7th
Cir. 1997) (upholding conspiracy conviction where defen-
dant and co-conspirator traveled together and made drug
sales to third party together).
  Williams contends that the evidence only established a
buyer-seller relationship between Williams and his custom-
ers, not a conspiracy between him and Lesure. Williams
is correct to note that “[a] mere buyer-seller relationship
is not enough to sustain a conspiracy conviction; rather
there must be some evidence of jointly taken activity.”
United States v. Adkins, 274 F.3d 444, 450 (7th Cir. 2001).
6                                                  No. 01-2864

However, as we discussed, Lesure’s testimony establishes
that Lesure and Williams conspired together to sell crack
throughout Mt. Vernon. Therefore, although Williams
may merely have had a buyer-seller relationship with
his customers, it is clear that Williams and Lesure were
involved in a conspiracy rather than a buyer-seller rela-
tionship. Cf. id. at 451. Therefore, Williams’ challenge to his
conspiracy conviction must fail.


          B. Compliance with 21 U.S.C. § 851(b)
  In order to enhance a defendant’s sentence due to prior
convictions, the government must timely file an informa-
tion under 21 U.S.C. § 851(a) describing the bases for the
enhancement. Post-conviction but prior to sentencing,
the district court is then required to ask the defendant
whether he affirms or denies the previous convictions.4 See
21 U.S.C. § 851(b). Williams contends that because the
district court failed to ask him at sentencing whether he
affirmed or denied his previous convictions in accordance
with 21 U.S.C. § 851(b), it was error for the court to sen-
tence him to life due to his previous convictions. The gov-
ernment concedes that the district court failed to comply
with § 851(b) but imposed a life sentence nevertheless. The
government, however, contends that any error by the dis-
trict court was harmless.
  The Fifth Circuit faced a similar situation in United
States v. Fragaso, 978 F.2d 896, 902-03 (5th Cir. 1992),
in which the defendant challenged the district court’s
failure to comply with § 851(b). On appeal, the court ini-
tially noted that the defendant “was well aware of the
likelihood of enhancement from the government’s pretrial



4
   21 U.S.C. § 851(c) provides comprehensive procedures for
challenging prior convictions used for enhancement purposes. See,
e.g., United States v. Garcia, 954 F.2d 273, 277 (5th Cir. 1992).
No. 01-2864                                                 7

information.” Id. at 902. Further, the convictions were
outlined in the defendant’s PSR and the defendant never
challenged the validity of the convictions. See id. The
court then held that the “defendant’s failure to comply
with the procedures of § 851(c) [for challenging prior con-
victions], when coupled with the absence of any sugges-
tion the judge’s omission precluded him from presenting
a specific challenge to a prior conviction, amount[ed] to
harmless error.” Id. (citation and internal quotations
omitted).
   In the present case, as in Fragaso, the record estab-
lishes that the government’s pretrial information informed
Williams of the likelihood of the enhancement and that
the PSR explicitly disclosed the bases for the enhance-
ment. Moreover, Williams did not challenge the prior con-
victions at sentencing even when the government raised
the issue. Further, Williams failed to comply with § 851(c),
which provides the procedures for challenging prior con-
victions used for enhancement purposes. Thus, we must
conclude that Williams had knowledge of the enhance-
ment as well as repeated opportunity to object to the gov-
ernment’s use of his prior convictions in the enhancement.
Therefore, any error resulting from the district court’s fail-
ure to comply with the procedures of § 851(b) was harm-
less error. See id.; see also United States v. Arango-Montoya,
61 F.3d 1331, 1339 (7th Cir. 1995) (applying harmless er-
ror standard to purported § 851(b) violation); United States
v. Hill, 142 F.3d 305, 313 (6th Cir. 1998) (finding harmless
error where “[n]otwithstanding repeated opportunity, de-
fendant did not challenge his prior convictions before dis-
trict court”).


         C. Government’s Use of Williams’ Proffer
 Finally, Williams contends that the district court erred
when it allowed the government to use statements he made
8                                                No. 01-2864

during his proffer in its rebuttal case and at sentencing.
In United States v. Dortch, 5 F.3d 1056, 1066-67 (7th Cir.
1993), the defendant argued that the district court erred
in allowing the government to use his proffer in its rebut-
tal case. On appeal, we set forth the following language
from that proffer agreement:
    [N]o statements or information provided by your client
    during the “off-the-record” proffer or discussion will
    be used against your client in any criminal case dur-
    ing the government’s case in chief. That is, however,
    the only limitation on the use the government may
    make of your client’s statements.
    ....
    [T]he government may use any statements made or
    other information provided by your client to rebut
    evidence or arguments materially different from any
    statements made or other information provided by
    your client. . . . In addition, we want to emphasize
    that the above mentioned examples are not totally
    inclusive of the uses the government may make of
    your client’s “off-the-record” proffer or discussion.
See id. at 1068 n.9. We initially explained that under the
plain language of the proffer agreement, the only limita-
tion on the government’s use of the proffer statements
was that the government could not introduce the state-
ments during its case-in-chief. See id. at 1068. We then
held that a defendant waives any objection to the govern-
ment’s use of proffered statements when the proffer agree-
ment allows such use. See id.; see also United States v.
Cobblah, 118 F.3d 549, 551 (7th Cir. 1997) (“As a contract,
a proffer agreement must be enforced according to its
terms[, and] [i]t is the language of the contract that binds
the parties.”).
  In the present case, the relevant provisions of Williams’
proffer are identical to the proffer at issue in Dortch. Thus,
No. 01-2864                                              9

we have no problem concluding that Williams waived any
objection to the government’s use of that proffer in the
government’s rebuttal and at sentencing because the proffer
agreement permitted such use.


                    III. Conclusion
  For the foregoing reasons, Williams’ convictions and sen-
tences are AFFIRMED.

A true Copy:
      Teste:

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




                   USCA-97-C-006—8-6-02
