United States v. Joshua R. Kilby

Defendant Joshua R. Kilby (“Kilby”) was convicted of conspiracy to distribute and possess with intent to distribute controlled substances in violation of 21 U.S.C. §§ 841 and 846. On appeal, Kilby argues that the evidence was insufficient to sustain his conviction. Kilby also appeals his sentence on three grounds, arguing that the district court erred in: (1) calculating the amount of 5-MEO-DIPT (“Foxy”) attributable to Kilby; (2) deciding the amount of MDMA (“Ecstasy”) attributable to Kilby; and (3) imposing an unreasonable sentence. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291 . We affirm Kilby’s conviction, but vacate his sentence and remand for resen-tencing.

BACKGROUND

Prior to 2002, Kilby and Eric Lucker (“Lucker”) worked together to sell Ecstasy. In 2002, Kilby was convicted of drug trafficking in Washington, and was sentenced to two years in prison, which he began serving in October 2002. Kilby and Lucker started to work together again in the summer of 2002, before Kilby started his prison term. Kilby introduced Lucker to several other people, as part of a plan to manufacture and sell Ecstasy and Foxy. When Kilby went to prison, Lucker agreed to…