                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 11-2547

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

R ONALD L OVE,
                                            Defendant-Appellant.


             Appeal from the United States District Court
      for the Northern District of Indiana, Hammond Division.
           No. 09 CR 202—Joseph S. Van Bokkelen, Judge.



   A RGUED S EPTEMBER 5, 2012—D ECIDED F EBRUARY 7, 2013




 Before P OSNER, K ANNE, and SYKES, Circuit Judges.
  K ANNE, Circuit Judge. A jury convicted Ronald Love
of one count of distributing crack cocaine and one count
of conspiring to distribute crack cocaine. He appealed,
challenging his conviction and sentence on various
grounds. For the reasons that follow, we affirm his con-
viction, vacate his sentence, and remand for resentencing.
2                                              No. 11-2547

                    I. B ACKGROUND
  Viewed in the light most favorable to the government,
see United States v. Johns, 686 F.3d 438, 450 (7th Cir.
2012), the evidence at trial showed as follows:
  Landen Cowart first got in touch with the govern-
ment in February 2009. Cowart, arrested for dealing
Vicodin, was looking for a way out of jail. It is not clear
whether he or the government made the first contact,
but once both sides got together, they came to mutually
beneficial agreement. Cowart agreed to act as a confiden-
tial informant (“CI”). In exchange, Cowart started ac-
cepting government money and his drug case “went
away.” (Trial Tr. at 255.) By April or May 2009, after
spending thirteen months in jail, Cowart was released
back onto the streets. By September 2009, he had
been assigned a target: Ronald Love, alias “Black.”
  Cowart called Love and arranged to buy drugs from
him. On September 9, 2009, an FBI task force, working
with state and local law enforcement, gave Cowart
marked money, wired him for sound and video, and sent
agents to watch over him. Cowart made his way to the
prearranged rendezvous point in Hammond, Indiana,
parked his car, and waited. A white SUV circled the
area. Eventually, the SUV parked behind Cowart’s car.
A man named Shelby Deloney approached and asked
Cowart if he was “with Black.” Cowart indicated that
he was and gave Deloney $550. Deloney gave Cowart a
bag of crack cocaine that Cowart promptly turned over
to the police. Task force agents followed the white SUV
as it left the scene. After following the SUV with
No. 11-2547                                            3

rotating teams on-and-off for roughly thirty blocks, they
pulled the SUV over for blocking an alleyway. An officer
found two men in the car. One of them told the officer
that he was the one who had parked the car, and the
police checked his ID. It was Ronald Love.1 The officer
gave Love a warning and let him go.
  A couple of days later, Cowart’s phone rang in the
middle of the night. It was Love, and he was not happy.
Apparently, someone had robbed one of Love’s crack
houses earlier that night and had taken both money
and drugs. Love thought that Cowart was responsible.
Cowart tried to calm Love down; he told Love he
had nothing to do with the robbery and that he would
try to find out who did it. Love called several more
times that night before he finally left Cowart alone.
  Thinking things had blown over, Cowart soon
arranged another drug buy. Love agreed to meet again on
September 14, 2009. Once again, the FBI task force gave
Cowart buy money ($1,450 this time), wired him, and
sent a surveillance team after him. Cowart parked in
front of a Hammond, Indiana, home, met up with Love,
and went inside.
  Outside the house, the law enforcement surveillance
team watched. They saw the same white SUV from Sep-
tember 9 park at a nearby gas station. Several people got
out and walked toward the house. Then the surveillance


1
  The record does not indicate who the second passenger
was, but it apparently was not Deloney—the second
passenger was Caucasian, and Deloney is African-American.
4                                              No. 11-2547

team saw something unsettling. It was Cowart’s car—or
rather, a car the FBI gave Cowart for the operation—but
Cowart was not inside. Instead, a man later identified
as Robert Acklin was behind the wheel. Acklin moved
the car to the gas station, parked, and walked back over
to the house.
  Back inside the house, Cowart and Love went into
the kitchen, and Cowart gave Love the money. Love
counted out the bills and went into the other room.
When he came back, he had two other men—Robert Acklin
and Shelby Deloney—in tow. Then the beating began.
Cowart hit the floor and curled into a fetal position as
Love interrogated him about the crack house robbery.
The surveilling officers heard the commotion over
Cowart’s hidden microphone and swarmed into the
house with weapons drawn. Inside, they found Love
and Deloney standing over a bruised and bleeding
Cowart. They placed Love and Deloney under ar-
rest. Acklin fled through another door, but the officers
eventually spotted him hiding behind a nearby shed,
chased him down, and arrested him, too.
  On October 9, 2009, a federal grand jury indicted Love
for one count of distributing crack cocaine, see 21 U.S.C.
§ 841(a)(1), and one count of conspiring to distribute
crack cocaine, see 21 U.S.C. § 846. The case was tried
before a jury. Stipulated testimony from a chemist indi-
cated that the substance recovered on September 9 was
cocaine base (i.e., crack cocaine). Cowart testified exten-
sively about his role as a CI. Phone logs, videotapes,
audio recordings, and testimony from law enforce-
No. 11-2547                                                 5

ment officers backed up much of his testimony. Wallace
Muhammed testified that he had loaned the white SUV
to Love, whom he knew as “Black.” And Robert Acklin—
one of Love’s alleged co-conspirators—testified that he
had dealt drugs with Love for several years and agreed
to help him beat Cowart to avenge the crack house rob-
bery. Love did not present witnesses in his defense.
The jury convicted. Love appeals, arguing that (1) the
evidence was insufficient to support his conviction;
(2) the trial court improperly declined to give a “buyer-
seller” jury instruction; (3) the trial court improperly
admitted a hearsay statement; and (4) his sentence
was improperly calculated. We address each challenge
in turn.


                       II. A NALYSIS
A. Sufficiency of the Evidence
  Love first argues that there was not enough evidence
to support his conspiracy conviction. Love “bears a
heavy burden” when walking this road. United States v.
Griffin, 684 F.3d 691, 694 (7th Cir. 2012) (internal quota-
tion marks omitted). To convict Love of conspiracy, the
government had to prove that (1) two or more
people agreed to commit an unlawful act; and (2) Love
knowingly and intentionally joined in the agreement. See
United States v. Avila, 557 F.3d 809, 814 (7th Cir. 2009). The
jury found that the government did so here, and we
afford “great deference” to that finding. Id. at 815. Thus,
we review the evidence in the light most favorable to
the government and ask whether any rational trier of
6                                               No. 11-2547

fact could have found the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 318-19 (1979); United States v. Walker, 673 F.3d 649,
654 (7th Cir. 2012).
  Love argues that the government’s evidence of con-
spiracy was not detailed enough—it proved at most
“an agreement between Love, Acklin and Deloney to
beat up and/or rob Cowart” and not an agreement to
distribute crack. (Appellant’s Br. at 19.) We respectfully
disagree. Cowart arranged the September 9 drug deal
with Love, but Deloney actually carried out the deal, and
before he did so, he sought confirmation that Cowart
was “with Black” (i.e., Love). Furthermore, Acklin
testified that he and Love had been “dealing drugs to-
gether” for several years. (Trial Tr. at 312.) This evidence
easily supports a reasonable inference that Love dealt
drugs with help from Acklin and Deloney. And the
September 14 beating provided further evidence. Acklin
testified that Love called him and said that “the guy
who robbed his crack house had some money, and he
wanted to go out there and get it.” (Id. at 313.) Cowart
similarly testified that Love interrogated him about the
crack house robberies during the beating. Based on this
testimony, a rational jury could find that Love, Acklin,
and Deloney all intentionally conspired together to
defend Love’s drug business. Cf. United States v. Johnson,
592 F.3d 749, 756 (7th Cir. 2010) (“an agreement to warn
of future threats to each other’s business stemming
from competitors or law-enforcement authorities” is
evidence of conspiracy); United States v. Stephenson, 53
F.3d 836, 844 (7th Cir. 1995) (attempt to rob a competitor
No. 11-2547                                                7

gave rise “to a strong inference that the attack was perpe-
trated as a part of King’s overall drug conspiracy”);
United States v. Concepcion, 983 F.2d 369, 392 (2d Cir. 1992)
(defendant’s offer to kill a rival was admissible as
evidence of conspiracy because it showed defendant’s
“concern for the Organization’s retail operations and
the lengths to which [defendant] would go to defend
them”). Accordingly, we think that there was sufficient
evidence to support a conspiracy conviction.


B. Buyer-Seller Instruction
  Love next claims that his conspiracy conviction
cannot stand because the district court refused to give
a “buyer-seller” instruction. Because the district court
declined to give an instruction on a theory of defense, our
review is de novo. United States v. Brack, 188 F.3d 748,
761 (7th Cir. 1999).
  Distributing drugs and conspiring to distribute drugs
are two separate crimes. Compare 21 U.S.C. § 841 (drug
distribution) with 21 U.S.C. § 846 (drug conspiracy).
Drug distribution punishes the sale of drugs in its own
right. United States v. Askew, 403 F.3d 496, 503 (7th Cir.
2005). Conspiracy, on the other hand, “punish[es] criminal
objectives beyond the sale itself—most typically, the
parties’ agreement subsequently to distribute the drugs
exchanged.” Id. Thus, a sale of illegal drugs, without
more, “cannot be the conspiracy, for it has no separate
criminal object. What is required in such a case is an
agreement to commit some other crime beyond the
8                                               No. 11-2547

crime constituted by the sale agreement itself.” United
States v. Thomas, 284 F.3d 746, 752 (7th Cir. 2002)
(internal brackets omitted).
  The difference between these concepts can be hard
to wrap your head around. Accordingly, district courts
should give a “buyer-seller” instruction explaining
the difference where the jury could rationally find, from
the evidence presented, that the defendant merely
bought or sold drugs but did not engage in a conspir-
acy. See United States v. Chavis, 429 F.3d 662, 671-72 (7th
Cir. 2005). In our circuit, a buyer-seller instruction
usually looks like this:
      A conspiracy requires more than just a
    buyer-seller relationship between the defendant
    and another person. In addition, a buyer and
    seller of [name of drug] do not enter into a con-
    spiracy to [distribute [name of drug]; possess
    [name of drug] with intent to distribute] simply
    because the buyer resells the [name of drug] to
    others, even if the seller knows that the buyer
    intends to resell the [name of drug].
      To establish that a [buyer; seller] knowingly
    became a member of a conspiracy with a
    [seller; buyer] to [distribute [name of drug]; pos-
    sess [name of drug] with intent to distribute], the
    government must prove that the buyer and seller
    had the joint criminal objective of distributing
    [name of drug] to others.
7th Cir. Pattern Crim. Jury Inst. 5.10(A) (2012 ed.).
No. 11-2547                                              9

  Love claims that he should have received a buyer-
seller instruction here, but we are not convinced. A trial
judge may reject instructions that would only confuse
the jury. See Guzman v. City of Chicago, 689 F.3d 740, 745
(7th Cir. 2012); United States v. Menting, 166 F.3d 923,
928 (7th Cir. 1999). As a result, we have repeatedly
held that a buyer-seller instruction is unnecessary
where the instruction would contradict the defendant’s
theory of the case. See. e.g., United States v. Eberhart,
434 F.3d 935, 940 (7th Cir. 2006); Chavis, 429 F.3d at 672;
United States v. Fort, 998 F.2d 542, 547 (7th Cir. 1993).
Here, Love’s theory of the case was that (1) he was
not involved in the September 9 drug sale; and (2) the
September 14 beating was just a beating and had
nothing to do with drugs. In other words, Love argued
that he was completely innocent of both the drug charge
and the conspiracy charge. A buyer-seller instruction
would have contradicted this theory. Thus, under our well-
established precedent, he was not entitled to a buyer-
seller instruction.
  Love also argues that the jury might have improperly
found a conspiracy based solely on a buyer-seller rela-
tionship between Love and Acklin. Acklin testified that
he “dealt drugs with” Love and that he and Love “were
involved in dealing drugs together.” (Trial Tr. at 312.)
Love speculates that the jury might have interpreted
these statements to mean that Acklin and Love had a
mere buyer-seller relationship. But Acklin testified that
he dealt drugs together with Love, not that he merely
bought from him or sold to him, and we do not see why
the jury would have thought Acklin meant something
10                                              No. 11-2547

other than what he said. A defendant “is entitled to a
buyer-seller instruction only if the instruction has some
foundation in the evidence,” Askew, 403 F.3d at 503;
mere speculation is not enough. Here, the only evidence
regarding Love’s relationship with Acklin was that the
two dealt drugs together. Accordingly, the district court
properly declined to give a buyer-seller instruction.


C. Admission of Hearsay
  Love next claims that the trial court improperly
admitted evidence that should have been excluded as
hearsay. We review this claim for abuse of discretion.
United States v. Penaloza, 648 F.3d 539, 544 (7th Cir. 2011).
   Fed. R. Evid. 801(c) defines hearsay as a “statement,” and
Fed. R. Evid. 801(a), defines a “statement” as “a person’s
oral assertion, written assertion, or nonverbal conduct, if
the person intended it as an assertion.” As the 1972 advi-
sory committee’s note to Rule 801(a) further clarifies,
the “key to the definition” of an assertion “is that
nothing is an assertion unless intended to be one.” Here,
Cowart testified, over a hearsay objection, that Deloney
asked if he was “with Black” during the September 9 drug
deal. The government argues that this was a question,
not a “statement” or an “assertion” and therefore was
not hearsay. Love, on the other hand, argues that the
question implicitly asserted Deloney’s identity and con-
firmed his role in the deal. Because the phrase communi-
cated this information, Love argues, it should have
been excluded as hearsay.
No. 11-2547                                                   11

  Love’s argument has some force. Questions seek infor-
mation, but they convey information, too. A speaker who
asks, “Son, is it raining outside?” clearly intends to get
information about the weather, but the speaker also
implicitly communicates information—for instance, that
he or she is probably indoors, is interested in the
weather, and has a son. This fact has led some commenta-
tors to argue that “we should view both imperatives
and questions as ‘statements’ for purposes of the
hearsay doctrine” because “both intentionally express
and communicate ideas or information.” 4 Christopher B.
Mueller & Laird C. Kirkpatrick, Federal Evidence § 8:6
(3d ed. 2007).
  Unfortunately for Love, the federal courts do not
take this approach. We held in United States v. Thomas
that questions are not “statements” and therefore are
not hearsay. 453 F.3d 838, 845 (7th Cir. 2006).2 Our sister
circuits agree. See, e.g., United States v. Thomas, 451 F.3d
543, 548 (8th Cir. 2006); Lexington Ins. Co. v. W. Pa. Hosp.,
423 F.3d 318, 330 (3d Cir. 2005); United States v. Wright,
343 F.3d 849, 865 (6th Cir. 2003); United States v. Jackson,
88 F.3d 845, 848 (10th Cir. 1996); United States v.
Lewis, 902 F.2d 1176, 1179 (5th Cir. 1990); United States



2
   The government also cites United States v. Cassano, 372 F.3d
868, 882-83 (7th Cir. 2004), for the same proposition, but the
Supreme Court later vacated that decision on other grounds,
see Cassano v. United States, 543 U.S. 1109, 1109 (2005). Accord-
ingly, Cassano has no precedential force. See Evans v. Circuit
Court of Cook Cnty., 569 F.3d 665, 666-67 (7th Cir. 2009).
12                                              No. 11-2547

v. Oguns, 921 F.2d 442, 449 (2d Cir. 1990). Given this over-
whelming precedent, we think that Love’s question
was not hearsay.
  Love counters with United States v. Summers, 414 F.3d
1287 (10th Cir. 2005), but Summers is not to the contrary.
In Summers, a co-defendant being arrested for bank
robbery exclaimed to police, “How did you guys find us
so fast?” Id. at 1298. The trial court admitted the state-
ment, id., but the Tenth Circuit held that it should
have been excluded, id. at 1300. “It begs credulity,” the
court wrote, “to assume that in [posing] the question
[the declarant] was exclusively interested in modern
methods of law enforcement, including surveillance,
communication, and coordination. Rather, fairly con-
strued the statement intimated both guilt and wonder-
ment at the ability of the police to apprehend the perpetra-
tors of the crime so quickly.” Id. This, the court found,
distinguished the declarant’s question from questions
that are “designed to elicit information and a response,
rather than assert the defendant’s involvement in
criminal activity.” Id. Accordingly, the declarant’s
“intent to make an assertion was apparent and that
his question directed to police officers on the scene con-
stituted hearsay.” Id.
  In other words, Summers reaffirmed that “nothing is
an assertion” for purposes of Rule 801 “unless intended
to be one.” Fed. R. Evid. 801(a) 1972 advisory commit-
tee’s note. We do not think that Deloney’s remark was
intended to be an assertion in this case. Rather, it was, in
the language of Summers, “designed to elicit information
No. 11-2547                                                13

and a response,” 414 F.3d at 1300, about whether Cowart
was in on the deal. Even under Summers, that sort of
question is not hearsay. See id. Accordingly, the district
court did not abuse its discretion by admitting the ques-
tion at trial.


D. Sentencing
  That brings us to Love’s sentencing claims. There are
three of them, and the first is easily addressed. Love
committed his crime before August 3, 2010 and was not
sentenced until after August 3, 2010. Thus, under our
former circuit precedent, see, e.g., United States. v. Fisher,
635 F.3d 336, 338-40 (7th Cir. 2011), he did not benefit
from the Fair Sentencing Act of 2010, 124 Stat. 2372. Since
then, the United States Supreme Court has held that the
Fair Sentencing Act applies to people who committed
crimes before August 3, 2010 and were sentenced after
August 3, 2010. See Dorsey v. United States, 132 S. Ct. 2321,
2331 (2012). Thus, as the government rightly concedes,
Love is entitled to resentencing under the Fair Sen-
tencing Act.
  Love’s second claim is that the district court incor-
rectly calculated the guidelines sentence for his drug
conviction. Having reviewed the record, we think that
Love is right. Calculating a sentence under the Guide-
lines begins with establishing the base offense level. See
United States v. Hill, 683 F.3d 867, 869 (7th Cir. 2012). In
drug cases, the base offense level is determined by
the amount of drugs involved in the transaction. See
14                                              No. 11-2547

U.S.S.G. § 2D1.1(a)(5). The application notes to U.S.S.G.
§ 2D1.1 provide guidance on how to calculate these
amounts. In reverse sting operations like the one at
issue here, the base amount generally includes “the
agreed-upon quantity of the controlled substance.”
Id. at cmt. n.5.3 So, for instance, if the defendant
agreed to buy fifty grams of drugs from a govern-
ment informant, then his base amount would be fifty
grams. “If, however, the defendant establishes that
the defendant did not intend to provide or purchase, or
was not reasonably capable of providing or purchasing,
the agreed-upon quantity of the controlled substance,”
then “the court shall exclude from the offense level deter-
mination the amount of controlled substance that
the defendant establishes that the defendant did not
intend to provide or purchase or was not reasonably
capable of providing or purchasing.” Id. In other words,
the agreed-upon quantities must be the result of “true
negotiation and not idle talk.” United States v. Corral,
324 F.3d 866, 871 (7th Cir. 2003).
  Here, Love offered to sell Cowart 1.5 ounces of crack
cocaine on September 14, 2009, and the probation
officer included those 1.5 ounces into his drug quantity
calculation. It is undisputed, however, that Love never
actually intended to sell drugs that day—he wanted to



3
  At the time Love was sentenced, the relevant language
was contained in application note 12 to U.S.S.G. § 2D1.1. The
relevant language has since been moved to application note 5
of U.S.S.G. § 2D1.1. Its content remains the same.
No. 11-2547                                               15

rob and beat Cowart to avenge the robbery of his crack
house. As a result, Love claims that the district
court should have excluded the fictional 1.5 ounces from
his drug quantity calculation. That, in turn, would
have reduced his total drug quantity from 50.355
grams to 7.83 grams and his base level from twenty-six
to eighteen.
  Normally we review a district court’s drug quantity
calculation for clear error. United States v. Cox, 536 F.3d
723, 728 (7th Cir. 2008). Here, however, Love did not
raise his claim in the district court, so our review is
for plain error. See United States v. Martin, 692 F.3d 760,
766 (7th Cir. 2012). That is usually a high bar to clear, see
United States v. Bell, 624 F.3d 803, 815 (7th Cir. 2010), but
“[w]e have repeatedly held that a sentencing based on
an incorrect Guidelines range constitutes plain error
and warrants a remand for resentencing, unless we
have reason to believe that the error in no way affected
the district court’s selection of a particular sentence,”
Martin, 692 F.3d at 766 (internal brackets and quotation
marks omitted).
  We think that such a plain error occurred here. The
Guidelines provide that a drug quantity should not be
included in a sentencing calculation if “the defendant
did not intend to provide or purchase . . . the
agreed-upon quantity of the controlled substance.”
U.S.S.G. § 2D1.1 cmt. n.5. Here, it is undisputed that
Love never actually intended to provide 1.5 ounces
of drugs to Cowart on September 14. Accordingly, those
1.5 ounces should not have been included in his sen-
16                                           No. 11-2547

tencing calculation. See United States v. Davis, 478 F.3d
266, 272 (5th Cir. 2007) (vacating sentence where
defendant “intended to ‘rip off’ the confidential
informant by selling him 3 ounces of a non-controlled
substance in place of crack cocaine” because this “undis-
puted finding of fact establishes as a matter of law that
[defendant] did not intend to provide the agreed
amount of crack cocaine”) (internal quotation marks
omitted).
   The government responds that Love robbed and beat
Cowart to avenge the robbery of Love’s crack house. “The
fact that Love wanted to recover $1,450,” the govern-
ment reasons, “supports an inference that he had at
least that much value taken from the crack house when
it was robbed and that he intended to place the stolen
money from Cowart back into the drug business.” (Ap-
pellee’s Br. at 30.) But drug quantity findings “must
ultimately be based on reliable information”; “unsup-
ported conjecture” is not enough. United States v.
Henderson, 58 F.3d 1145, 1152 (7th Cir. 1995). Here, we
know that whoever robbed the crack house apparently
stole both cocaine and money. (Trial Tr. at 243.) But
nothing in the record suggests how much cocaine was
taken—much less that it was at least $1,450 worth, as the
government would have us infer. Nor is there any evi-
dence that Love intended to reinvest the stolen money
back into his drug business; the government’s “inference”
in that regard is nothing more than speculation. We
do not think that such speculation justifies increasing
Love’s sentence.
No. 11-2547                                                  17

  Recognizing that this case will be remanded for
resentencing under the Fair Sentencing Act, the govern-
ment offered at oral argument to address these factual
gaps on remand. But we do not think that reexamining
the issue on remand would do any good. As discussed,
the Sentencing Guidelines clearly provide that drug
amounts should not be included if “the defendant
did not intend to provide or purchase . . . the
agreed-upon quantity of the controlled substance.”
U.S.S.G. § 2D1.1 cmt. n.5. It is undisputed that Love
never actually intended to provide 1.5 ounces of drugs
to Cowart on September 14. Whatever evidence
the government came up with on remand, it would
not overcome this undisputed fact.4
  Finally, Love argues that the district court improperly
imposed a two-level sentencing enhancement for being
an organizer, leader, manager, or supervisor of the con-
spiracy. See U.S.S.G. § 3B1.1(c). We review the district
court’s interpretation and application of the Guidelines
de novo and its factual determination of Love’s role in
the offense for clear error. See United States v. Robertson,
662 F.3d 871, 876 (7th Cir. 2011). “[W]e will reverse only
if our review of all the evidence leaves us with the


4
  Nor could the government seek to increase the drug quantity
finding by introducing evidence of drug transactions other
than the ones on September 9 and September 14. If the govern-
ment fails to argue a basis for a sentencing enhancement in
the first instance, it waives it and cannot raise that basis for
the first time on remand. See United States v. Tello, 687 F.3d
785, 798-800 (7th Cir. 2012).
18                                            No. 11-2547

definite and firm conviction that a mistake has been
made.” Id. We have no such conviction here. As the
district judge stated, “evidence at trial established that
Love was the leader of the operation. Deloney sold the
drugs to Cowart at Love’s direction, and Acklin and
Deloney beat Cowart to protect Love’s drug business at
his direction.” (Sentencing Tr. at 121.) As we have
already discussed, that evidence was enough to support
a jury verdict. We think it was enough to support a sen-
tencing enhancement, as well.


                    III. C ONCLUSION
  We A FFIRM Love’s conviction, V ACATE Love’s sen-
tence, and R EMAND for resentencing consistent with
this opinion.




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