United States v. Hawk, Quill R. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 04-4112
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
QUILL R. HAWK,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 04-CR-116-C-01—Barbara B. Crabb, Chief Judge.
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ARGUED JUNE 6, 2005—DECIDED JANUARY 17, 2006
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Before ROVNER, WOOD, and WILLIAMS, Circuit Judges.
WOOD, Circuit Judge. Between the appearance of Blakely
v. Washington, 542 U.S. 296 (2004), in which the Supreme
Court found that Washington state’s sentencing scheme
violated the Sixth Amendment, and that of United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), in which the
Court extended Blakely’s holding to the federal Sentencing
Guidelines, the federal sentencing world was in limbo. No
one knew whether the Court would distinguish the Guide-
lines from the state law it had considered in Blakely, scrap
the Guidelines altogether, or come up with some intermedi-
ate ruling. This case concerns a sentence imposed during
this period of uncertainty. Although the district court was
2 No. 04-4112
remarkably prescient and predicted the outcome of Booker
by treating the Guidelines as merely advisory, it moved a
little too quickly through Quill R. Hawk’s sentencing
hearing. The court accepted the recommendation in Hawk’s
Pre-Sentence Report (PSR) of a 121-month term, but it
failed to make the findings of fact necessary to support that
sentence. This omission prevents us from assessing the
reasonableness of the sentence; we therefore vacate Hawk’s
sentence and remand for resentencing.
I
On September 29, 2004, Hawk pleaded guilty to one count
of distributing cocaine in violation of 21 U.S.C. § 841(a)(1).
As part of his plea agreement, Hawk admitted that “the
United States can prove . . . beyond a reasonable doubt
[that] the total offense conduct involved at least 100 grams
but less than 200 grams of [powder] cocaine.” Based on this
admission, the Probation Office recommended that the
court sentence Hawk to between 30 and 37 months in
prison. The government objected. In its view, the plea
arrangement addressed only what the government could
prove beyond a reasonable doubt and did not consider other
relevant conduct, particularly evidence of crack distribu-
tion. The Probation Office reconsidered its recommendation,
revising its recommendation upward by more than seven
years to between 121 and 151 months in prison.
Hawk was not pleased with the new recommendation. At
his sentencing hearing, his counsel objected to the PSR,
stating, “we [ ] take the utmost exception to the calculations
. . . and we think that the recommendation violates the
Sixth Amendment under Booker [the Seventh Circuit’s
version, see 375 F.3d 508 (7th Cir. 2004)] and Blakely.” The
court asked Hawk whether he had any other objections, and
Hawk said that he did not. Before imposing sentence, the
No. 04-4112 3
court expressed its concern about Hawk’s lengthy criminal
history dating back to the age of 11 and the likelihood that
Hawk would commit future crimes even if sentenced to a
“lengthy prison term.” Turning to actual pronouncement of
Hawk’s sentence, the court stated:
You haven’t stipulated to the facts and enhancements
to the sentencing guidelines that increase your sentence
in relation to the cocaine base that’s attributable to you,
and you haven’t waived your right to a jury determina-
tion of those facts. Therefore, I will not impose a
sentence using the sentencing guidelines. Instead, I will
impose a sentence consistent with provisions set forth
in 18 U.S.C. § 3553(a) using the November 2004 guide-
lines manual as advisory and as a reliable indicator in
determining the appropriate sentence within the
statutory limits of the count of conviction.
Although the district court could not have known it at the
time, its approach to the Sentencing Guidelines— treating
them as advisory, and focusing on the factors in 18 U.S.C.
§ 3553(a)—perfectly foresaw the Supreme Court’s Booker
decision. See Booker, 125 S. Ct. at 766-67. The district court
sentenced Hawk using the revised recommendation in the
PSR to 121 months’ imprisonment. While the court briefly
mentioned some of Hawk’s individual circumstances, it
never adopted the PSR or formally found that Hawk had
distributed an additional four ounces of crack, in addition
to the powder cocaine distribution he had acknowledged. At
the time, neither Hawk nor his counsel objected to this
oversight.
II
On appeal, Hawk claims that he is entitled to resen-
tencing because the district court failed to create a factual
foundation that would support his 121-month sentence. The
4 No. 04-4112
government argues that Hawk has forfeited this argument
by failing to raise it before the district court. Hawk dis-
agrees, arguing that his objection to the revised PSR
recommendation was broad enough to encompass his
present argument on appeal, but we think that the govern-
ment has the better of this exchange. Hawk’s argument in
this court concerns the district court’s handling of the facts,
not the facts themselves. His objection before the district
court, in contrast, focused on the factual underpinnings of
the PSR. He made no objection to the district court’s
decision to skip formal factual findings. In fact, the only
objection Hawk made occurred before the court adopted the
PSR recommendation. For his objection to have been broad
enough to encompass his present argument, we would have
to treat it as an objection to something that had not yet
occurred. Hawk was given an opportunity to object after the
court imposed the 121-month sentence and he failed to do
so.
Hawk has therefore forfeited his argument that the
district court’s findings of fact were inadequate. See United
States v. Staples, 202 F.3d 992, 995 (7th Cir. 2000) (“One
forfeits his rights by failing to assert them in a timely
manner. Where waiver is accomplished by intent, forfeiture
comes about through neglect.”) (internal citation omitted).
Hawk’s forfeiture does not preclude relief, as a waiver
would, but it does mean that we review his new contention
for plain error. See FED. R. CRIM. P. 52(b). Generally,
determining whether such an error exists is a four-step
process: “we must decide (1) whether there was an error at
all, (2) whether it was plain, (3) whether it affected the
defendant’s substantial rights, and (4) whether (if the first
three factors are present) it seriously affected the fairness,
integrity, or public reputation of the judicial proceedings.”
United States v. Nance, 236 F.3d 820, 824 (7th Cir. 2000).
Hawk is correct that the district court erred; it should
have made the necessary factual findings to support the
No. 04-4112 5
advisory Guidelines range it used. Even in the post-Booker
era, the first step in imposing a sentence is properly to
calculate a Guidelines range. See United States v. Rodri-
guez-Alvarez, 425 F.3d 1041, 1046 (7th Cir. 2005); Booker,
125 S. Ct. at 767. “Our cases require that when a dis-
trict judge sets a defendant’s base offense level by aggregat-
ing drug quantities from uncharged or unconvicted conduct,
the judge must explicitly state and support, either at the
sentencing hearing or (preferably) in a written statement of
reasons, its finding that the unconvicted activities bore the
necessary relation to the convicted offense.” United States
v. Patel, 131 F.3d 1195, 1203 (7th Cir. 1997) (internal
quotations omitted). We review findings about relevant
conduct—and particularly calculations about the amount of
drugs involved in an offense— for clear error, even in the
post-Booker era. See United States v. Ortiz, 2005 WL
3358920, at *4 (7th Cir. Dec. 12, 2005). “A finding of fact is
clearly erroneous when ‘although there is evidence to
support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has
been committed.’ ” Id. Without a clear statement of the
rationale for the court’s decision to include the crack as
relevant conduct, we cannot evaluate whether that decision
was proper or constituted clear error.
Under § 1B1.3(a)(2) of the Sentencing Guidelines, a
defendant is not responsible for all drug transactions
revealed by the record, but only for those that are “part
either of the same course of conduct as the charged offense
or of a common scheme or plan including the charged
offense.” United States v. Crockett, 82 F.3d 722, 730 (7th
Cir. 1996). Without findings from the district court, we
cannot say whether Hawk’s purported crack sales met these
criteria. Cf. United States v. George, 403 F.3d 470, 473 (7th
Cir. 2005) (“When the district judge omits findings about
contested amounts of restitution, it may be impossible to
tell whether the legal rules have been applied correctly.”);
6 No. 04-4112
United States v. Cunningham, 429 F.3d 673, 679-80 (7th
Cir. 2005) (requiring the district court to provide analysis
when rejecting a defendant’s § 3553(a) arguments because
“whenever a district judge is required to make a discretion-
ary ruling that is subject to appellate review, we have to
satisfy ourselves, before we can conclude that the judge did
not abuse his discretion, that he exercised his discretion,
that is, that he considered the factors relevant to that
exercise”).
As we noted earlier, even though the Guidelines are
no longer mandatory, sentencing courts still must con-
sider and properly calculate a defendant’s Guidelines
range. See Booker, 125 S. Ct. at 767 (“The district courts,
while not bound to apply the Guidelines, must consult those
Guidelines and take them into account when sentencing.”);
see also United States v. Skoczen, 405 F.3d 537, 549 (7th
Cir. 2005) (“[T]he Guidelines do retain force even though
they are no longer mandatory, and thus errors in their
application remain relevant.”). An incorrect application of
the Guidelines requires resentencing. See United States v.
Scott, 405 F.3d 615, 617 (7th Cir. 2005). Given the uncer-
tain status of the Guidelines at the time of Hawk’s sentenc-
ing, the court’s course of action is understandable. Nonethe-
less, its failure to make these findings was an error and,
given the essential character of these facts, we find that
error plain.
Hawk’s 121-month sentence is not supported by his
own admissions, a jury’s findings, or the court’s own factual
conclusions. Without the additional relevant conduct, Hawk
would have been facing a relatively brief advisory Sentenc-
ing Guidelines range of 30 to 37 months. The 84-month gap
between what the properly supported facts justified and
what Hawk actually received affects his substantial rights
and the fundamental fairness of the proceedings. Accord-
ingly, Hawk has satisfied the final two plain error factors
and must be resentenced.
No. 04-4112 7
III
For these reasons, we VACATE Hawk’s current sentence
and REMAND for resentencing.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-17-06