United States v. Smith, Marvin ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3581
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARVIN SMITH,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 89 CR 175—Charles N. Clevert, Jr., Judge.
____________
ARGUED SEPTEMBER 23, 2005—DECIDED JULY 21, 2006
____________
Before POSNER, RIPPLE and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. In 1990, a jury found Marvin
Smith guilty of one count of conspiracy to distribute in
excess of five kilograms of cocaine, in violation of 21 U.S.C.
§ 846. The court allowed Smith to remain free on bond
pending his sentencing. Smith never appeared for his
sentencing hearing and remained at large for fourteen
years. In 2004, the long arm of the law caught up with
Smith and the district court sentenced him to thirty
years’ imprisonment. Smith appeals his conviction and
sentence. We affirm his conviction but vacate his sen-
tence and remand for resentencing.
2 No. 04-3581
I.
Darryl Carter and Todd Thompson were Milwaukee-based
drug dealers in the late 1980s. In the summer of 1987,
when Thompson needed a new source for cocaine, Carter
took him to Los Angeles to meet Kevin Diggs. Diggs was the
cousin of Carter’s common law wife. Carter knew Diggs
well; he had lived in Los Angeles for many years and had
previously purchased cocaine from Diggs for his personal
use. On that first trip to Los Angeles, Thompson purchased
a half kilogram of cocaine from Diggs for resale in Milwau-
kee. In the months that followed, Carter and Thompson
returned to Los Angeles between four and eight times to
purchase more cocaine. On some of these trips, Thompson
purchased as much as two kilograms of cocaine from Diggs
and one of his associates, Gwain Collins. In late summer
1987, Diggs told Carter and Thompson that they could
obtain cocaine from a man known as “June” in Cleveland.
Carter, Thompson and a third man, Terry Wynn, subse-
quently traveled to Cleveland to meet June. June fronted
three kilograms of cocaine to Thompson and his associates.
In the drug business, “fronting” involves providing drugs at
no cost with the understanding that the purchase price will
be paid later from the proceeds of sales to third parties.
Approximately one week after June fronted three kilo-
grams to Thompson, Diggs came to Milwaukee to collect
money that Thompson owed him from prior deals. Carter
attempted to set up meetings between Thompson and Diggs
but Thompson failed to show up for the meetings. Diggs was
unconcerned about this turn of events until Vince Wynn, an
associate of Carter, told him that June had been seen in
Milwaukee visiting Thompson. Diggs became concerned
that Thompson now had a new source and would not pay
his debt to Diggs. Diggs called Thompson to demand
payment immediately. Diggs then met with Collins, Carter
and Wynn at a Milwaukee hotel to discuss Thompson’s debt
to Diggs. As a result of this discussion, Diggs became very
No. 04-3581 3
angry and said he was going to call his uncle in Detroit for
help in collecting the debt. The uncle, Marvin Smith, the
defendant here, arrived the next morning. Smith was not
actually Diggs’ uncle; Smith and Diggs’ father were close
friends and Diggs had come to refer to Smith as his uncle.
Smith, Carter and Diggs subsequently went to Thompson’s
house to discuss the debt. Following this visit, Carter
delivered approximately $80,000 in cash to Diggs on behalf
of Thompson. Later that fall, Carter delivered another
$80,000 from Thompson to Diggs, in payment of this same
debt.
In February 1988, Wynn brokered two thirty-kilogram
cocaine sales from Diggs to a Milwaukee buyer named
Jerome Mann. The next month, Wynn paged Diggs to set up
another thirty kilogram purchase from Mann. Diggs called
Wynn from Chicago and said he was on his way to Milwau-
kee to pick up the money for this transaction. Wynn
obtained the money from Mann and delivered it to Diggs,
Collins and Carter in Milwaukee. Once the money was paid,
Wynn traveled to Chicago with Diggs, Collins, Carter and
Anthony Heard, where they all checked in to a hotel. After
checking in, Diggs told Wynn the cocaine had been sold to
another party and they would have to travel to Detroit to
pick up the thirty kilograms. The entire entourage drove to
Detroit where, the next day, they visited Smith at his home.
The money for the deal was delivered to Smith and counted
in the presence of Diggs, Collins, Carter, Heard, Wynn and
Smith. The meeting stayed in the mind of at least one of the
participants because Smith was apparently very particular
about the way he wanted the money stacked as it was
counted. After the counting, Diggs and Collins gave Carter
a suitcase filled with thirty-seven kilograms of cocaine. In
addition to the bargained-for thirty kilograms, Diggs was
fronting an extra seven kilograms to Wynn on credit. Carter
and Heard then delivered the thirty kilograms to Mann in
Milwaukee. Telephone records from this time period show
4 No. 04-3581
dozens of calls between the parties from the various hotel
phones, cell phones and Smith’s home phone.
A few weeks later, Diggs called Wynn, ready to complete
another deal. Wynn and Heard drove to Chicago and met
with Mann’s associates to pick up the money for the deal.
The money was counted and delivered to Diggs and Collins.
All the parties involved proceeded to a restaurant where
Diggs delivered a suitcase full of cocaine to Wynn and
Heard. Again a trail of telephone and hotel records showed
connections among Mann, Heard, Collins, Wynn and Smith
during this time period.
In 1989, Wynn was arrested and agreed to cooperate with
authorities in setting up an undercover transaction with
Diggs. At this point, Wynn did not have a current number
for Diggs but was able to obtain Diggs’ pager number from
Collins. After paging Diggs, Wynn had a series of tape-
recorded telephone calls with Diggs, setting up a twenty-
kilogram cocaine sale. Some of the calls were handled for
Diggs by June. Although the location of the transaction
changed many times, Diggs ultimately settled on Chicago.
In August 1989, Diggs and June arranged for two men to
deliver five kilograms of cocaine to Wynn’s hotel room in
Chicago. Authorities seized the cocaine and arrests ensued.
Smith testified at trial on his own behalf. He conceded
that he had traveled to Milwaukee to help Diggs collect a
debt but denied knowing that the debt was related to the
sale of illegal drugs. He also conceded a passing acquain-
tance with some of the persons involved in these transac-
tions but denied that he took part in any drug trafficking.
The jury convicted Smith, the court allowed him to remain
free on bond pending his sentencing and, as we noted
earlier, he disappeared for fourteen years. On his return to
custody, the district court sentenced him to thirty years’
imprisonment. Smith’s sentencing hearing occurred after
this court’s decision in United States v. Booker, 375 F.3d
No. 04-3581 5
508 (7th Cir. 2004) (hereafter Booker I ), but before the
Supreme Court’s final resolution of United States v. Booker,
125 S. Ct. 738 (2005) (hereafter Booker II ). The district
court declined to use the Sentencing Guidelines
in fashioning the sentence, instead turning to the rele-
vant statutes in arriving at the final term of imprisonment.
Smith appeals both his conviction and his sentence.
II.
On appeal, Smith challenges the district court’s limita-
tions on his counsel’s cross-examination of Darryl Carter,
one of the witnesses against him. He contends that the
district court violated his Sixth Amendment right to
confront Carter by allowing the prosecutor to invoke
Carter’s already-waived attorney-client privilege in order to
limit cross-examination. He also argues that the dis-
trict court abused its discretion in allowing the prosecutor
to impeach Smith with the nature of a nearly ten-year old
conviction for possession with intent to deliver controlled
substances. Finally, Smith challenges the district court’s
sentence, which failed to use the Guidelines as advisory and
which exceeded the recommended Guidelines sen-
tence without any justification.
A.
Among the people to testify against Smith was Darryl
Carter, who had struck a very favorable deal with prosecu-
tors in exchange for his testimony. On cross-examination,
Smith’s attorney pointed out that Carter was charged
with distributing 103 grams (less than four ounces) of
cocaine when in fact he admitted to distributing vastly
greater quantities. During the defense counsel’s questioning
of Carter on the extent of his plea deal, the government
objected to questions related to Carter’s conversations
6 No. 04-3581
with Carter’s own lawyer. The court sustained the objec-
tions and restricted the cross-examination:1
Q: So we’ve got 200 pounds of cocaine you
haven’t been charged with, right?
A: Yes.
Q: And how much, sir, based upon your
training and experience is one pound of
coke worth?
A: About $8,000.
Q: And so if you take a hundred pounds
and multiply it times 8,000, you got a
lot of money, don’t you?
A: Yes.2
Q: Never prosecuted for any of that, cor-
rect?
A: Yes.
Q: Not only that, the government went
and knocked off three counts of what
you were charged with, didn’t they?
A: Yes.
Q: And so when all is said and done what
you pled guilty to is something where
you are facing a maximum of 20 years
in prison, right?
A: Yes.
1
The questions here are posed by Smith’s attorney, Dennis
Coffey, to Darryl Carter. Mr. Johnson is Assistant United States
Attorney Mel Johnson.
2
Using this figure of $8,000 per pound, the 200 pounds of cocaine
would have been worth $1.6 million.
No. 04-3581 7
Q: Now, the government told you that if
you cooperated they would give you
what is called a downward departure,
didn’t they?
A: Yes.
Q: And did they tell you what a downward
departure was?
A: Yes.
Q: What is it?
A: It would depart from the guidelines,
what the guidelines recommend for my
sentencing for cooperation.
Q: And as you acknowledge in this Exhibit
No. 1 [the plea agreement] your lawyer
explained to you how the guidelines
operate, didn’t he?
A: Yes.
Q: And in the course of that explanation
he would have told you that if you were
found guilty of just 103 grams of coke .
. . you would be a level 12 offender and
be looking at 10 to 16 months in prison;
didn’t he?
A: No.
Q: Your lawyer never told you that?
A: No.
Q: Well, in this agreement you say he did,
don’t you?
A: What the lawyer told me —
Mr. Johnson: Well, Your Honor, I’ll object on a few
grounds. One is attorney client privi-
8 No. 04-3581
lege. Mr. Carter’s not obligated to tes-
tify about his communications with his
lawyer. And that’s not what the agree-
ment says they discussed. And just
under Rule 403. I mean, Mr. Coffey has
made his point. I don’t see the point of
beating this to death with Mr. Carter’s
plea agreement.
The Court: I’m more concerned about that first
point. And I think in fairness to the
witness you should keep away from
that.
Mr. Coffey: Fine.
Tr. at 129-30. At this point, Coffey asked Carter what the
court told him his sentence would be under the Guidelines
without the benefit of a downward departure. Carter replied
that the court told him his Guidelines sentence would be
seven years but that the court ultimately sentenced him to
four years of probation with the first six months to be
served in a work release program. Smith’s lawyer thus
established that although Carter admitted to dealing more
than 200 pounds of cocaine worth approximately $1.6
million, after his plea deal, he was sentenced to probation
without serving a single day in prison. He also established
that Carter had been a cocaine addict since at least 1986,
and that during the time period covered by his testimony,
he had an “unbearable” addiction to cocaine that caused
him to forget things, fantasize, see things in his dreams,
and left him unable to sleep or eat.
Smith argues that the district court violated his Sixth
Amendment right to confront Carter by allowing the
prosecutor to invoke Carter’s already-waived attorney-client
privilege. Smith contends that the government lacked
standing to raise Carter’s attorney-client privilege. More-
over, Smith argues, Carter had already waived the privilege
No. 04-3581 9
(1) by answering questions about his discussions with his
attorney; (2) by entering into a plea agreement in which he
consented to testify completely and truthfully whenever
asked to do so by the government, with no express exception
for information learned from his attorney; and (3) by
becoming an adverse party to Smith. The government
concedes that the “prosecution generally lacks standing to
assert a claim of privilege belonging to one of its witnesses”
but argues that it had the right to bring the issue to the
court’s attention so that the court could protect the witness
from unnecessary disclosures of privileged information. The
government also argues that the district court properly
exercised its discretion in limiting the cross-examination,
and that Smith was able to adequately expose Carter’s
biases without delving into privileged communications.
We begin with the government’s assertion of Carter’s
attorney-client privilege as an objection to defense question-
ing. Smith is correct that Carter’s attorney-client privilege
belonged solely to Carter and not to the government. See
United States v. Rainone, 32 F.3d 1203, 1206 (7th Cir.
1994), cert. denied, 515 U.S. 1102 (1995) (noting that the
attorney-client privilege of a government witness belongs to
the witness, not the government, and that the privilege is
waivable); United States v. White, 743 F.2d 488, 494 (7th
Cir. 1984) (the government lacks standing to bring an
appeal based on attorney-client privilege of the govern-
ment’s witness; that privilege belongs solely to the witness
who must bring the issue to the trial court himself if he
believed the court was not adequately protecting his
privilege); United States v. Fox, 396 F.3d 1018, 1023 (8th
Cir. 2005), overruled on other grounds by United States v.
Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en banc) (the
attorney-client privilege is personal and cannot be asserted
by anyone other than the client); United States v. Almeida,
341 F.3d 1318, 1321 n.10 (11th Cir. 2003) (the government
ordinarily lacks standing to assert the attorney-client
10 No. 04-3581
privilege for a witness); United States v. Ortega, 150 F.3d
937, 942 (8th Cir. 1998), cert. denied, 525 U.S. 1087 (1999)
(same). Although the government did not act inappropri-
ately in bringing the privilege issue to the court’s attention,
this was not a proper basis for a government objection to
the defense questioning of Carter. White, 743 F.3d at 494
(noting that, although the government lacked standing to
appeal on the basis of a witness’s attorney-client privilege,
we are mindful of the duty of every lawyer to bring to the
attention of the trial court possible ethical problems in the
case). Carter did not assert the privilege himself and
appeared ready to answer the defense questions without
limitation. He had already answered at least one question
regarding what his lawyer had told him. And in response to
the question to which the government objected, Carter
began his answer,“What the lawyer told me—,” an introduc-
tion which certainly indicates a willingness to waive the
privilege. Sarkes Tarzian, Inc. v. U.S. Trust Co. of Florida
Sav. Bank, 397 F.3d 577, 584 (7th Cir. 2005), cert. denied,
126 S. Ct. 398 (2005) (responding fully to questions covered
by the attorney-client privilege is an implicit waiver of that
privilege).
In any case, the salient issue is whether this limitation of
cross-examination violated Smith’s Sixth Amendment right
to confront a witness against him. The Sixth Amendment
right of confrontation requires that a defendant be given an
opportunity for effective cross-examination. Pennsylvania
v. Ritchie, 480 U.S. 39, 51 (1987) (the Confrontation Clause
provides two types of protections for a criminal defendant:
the right physically to face those who testify against him,
and the right to conduct cross-examination); Delaware v.
Van Arsdall, 475 U.S. 673, 678 (1986) (the main and
essential purpose of confrontation is to secure for the
opponent the opportunity of cross-examination). The
“exposure of a witness’ motivation in testifying is a proper
and important function of the constitutionally protected
No. 04-3581 11
right of cross-examination.” Van Arsdall, 475 U.S. at 678-79
(quoting Davis v. Alaska, 415 U.S. 308, 316-17 (1974)). Trial
courts retain wide discretion to impose reasonable limits on
cross-examination, and may impose limits based on con-
cerns about harassment, prejudice, confusion of the issues,
a witness’ safety, or questioning that is repetitive or only
marginally relevant. Van Arsdall, 475 U.S. at 679; Quinn v.
Neal, 998 F.2d 526, 529 (7th Cir. 1993).
In general, we review a trial court’s limitation on the
extent of cross-examination for abuse of discretion. United
States v. Nelson, 39 F.3d 705, 708 (7th Cir. 1994). However,
where limitations directly implicate the Sixth Amendment
right of confrontation, we review the limitation de novo.
Nelson, 39 F.3d at 708. Thus when deciding whether limits
on cross-examination are permissible, we must first distin-
guish between the core values of the Confrontation Clause
and more peripheral concerns which remain within the trial
court’s ambit. Nelson, 39 F.3d at 708; United States v.
Degraffenreid, 339 F.3d 576, 581 (7th Cir. 2003). In this
case, Smith’s counsel established that Carter struck a very
favorable plea deal in exchange for his testimony against
Smith. Counsel was able to elicit that Carter was involved
in more than 200 pounds of cocaine transactions, exposing
him to a prison sentence that could be measured in decades.
Carter admitted that he was ultimately sentenced to
probation with a six-month term in a work release program.
The only limitation the court placed on the cross-examina-
tion was on questions relating to Carter’s discussions with
his lawyer about his plea agreement. Smith’s counsel was
able to elicit the nature and extent of the deal and thus the
scope of the motive to lie through other means. This limit
on cross-examination did not deny Smith the opportunity to
establish that Carter harbored a motive to lie; rather it
simply limited his ability to add extra detail to that motive.
“[O]nce this core function is satisfied by allowing cross-
examination to expose a motive to lie, it is of peripheral
12 No. 04-3581
concern to the Sixth Amendment how much opportunity
defense counsel gets to hammer that point home to the
jury.” Nelson, 39 F.3d at 708. See also United States v.
Sasson, 62 F.3d 874, 882 (7th Cir. 1995), cert. denied, 516
U.S. 1131 (1996). We therefore review the district court’s
limitation on cross-examination for abuse of discretion. The
government objected to the question on multiple grounds
but the district court limited the cross-examination based
solely on the unasserted attorney-client privilege of the
witness. This was error and thus an abuse of discretion.
United States v. Rodriguez-Alvarez, 425 F.3d 1041, 1046
(7th Cir. 2005) (a decision that rests on an error of law is
always an abuse of discretion). Cf. Rainone, 32 F.3d at 1206
(attorney-client privilege might have to yield in a particular
case if the right of confrontation through cross-examination
would be violated by enforcing the privilege).
Harmless error analysis applies to errors arising under
the Sixth Amendment Confrontation Clause. Van Arsdall,
475 U.S. at 684; Nelson, 39 F.3d at 710. “The correct inquiry
is whether, assuming that the damaging potential of the
cross-examination were fully realized, a reviewing court
might nonetheless say that the error was harmless beyond
a reasonable doubt.” Van Arsdall, 475 U.S. at 684; Nelson,
39 F.3d at 710. Whether an error is harmless beyond a
reasonable doubt depends upon factors such as the impor-
tance of the witness’s testimony in the prosecution’s case,
whether the testimony was cumulative, the presence or
absence of corroborating or contradictory evidence and the
overall strength of the prosecution’s case. United States v.
Castelan, 219 F.3d 690, 696 (7th Cir. 2000). See also Van
Arsdall, 475 U.S. at 684 (whether such an error is harmless
depends on a host of factors including the extent of cross-
examination otherwise permitted). Carter’s testimony was
obviously important to the prosecution’s case against Smith.
But as already noted, the limitations here did not reduce
the damaging potential of cross-examination. Indeed,
No. 04-3581 13
Smith’s lawyer questioned Carter thoroughly about every
aspect of his direct testimony and his plea agreement, and
Carter’s motives and biases were fully exposed. The added
detail from his conversations with his attorney would not
have changed the outcome given the strength of the remain-
ing evidence. Thus, the court’s error in sustaining the
government’s privilege objection was harmless.
B.
In anticipation of Smith testifying in his own defense, his
lawyer moved in limine to exclude evidence of a prior
conviction for possession with intent to deliver a con-
trolled substance, an offense for which Smith had been
convicted nearly ten years earlier. Smith’s counsel argued
that, given the age of the conviction and its similarity to the
charged conduct for which Smith was then on trial, the
court should exclude it. When the court indicated its
intent to allow the government to question Smith about this
conviction, counsel asked the court to forbid inquiry into the
nature of the felony conviction, limiting testimony to the
existence of a felony conviction on a particular date. After
asking the parties for precedent in support of such a
restriction, the court ruled that it would allow the govern-
ment to ask Smith whether he had been convicted of a
felony, when he was convicted and what the offense was.
See Campbell v. Greer, 831 F.2d 700 (7th Cir. 1987). In
order to blunt the effect of this information, Smith’s lawyer
asked him about the conviction during direct examination.
See United States v. White, 222 F.3d 363, 370 (7th Cir.
2000) (a defendant may testify to the fact of a prior convic-
tion on direct examination as a matter of trial strategy in
order to lessen the impact of the information on the jury).
Smith testified that he had been convicted in 1979 of
“possession of controlled substance.” Tr. at 10. In response
to his attorney’s questions, he added that the substance in
14 No. 04-3581
question was “diet pills.” He explained that he was travel-
ing to Dallas from Los Angeles and that a friend asked him
to carry some shirts and deliver them to the friend’s brother
in Dallas. When he got to Dallas, a DEA agent asked if he
could search Smith’s bag and he consented. The agent found
the diet pills, which Smith insisted he had not known were
in his bag. As a result, Smith was convicted and served four
and a half months in prison.
On cross-examination, the government asked Smith about
the conviction:
Q: Finally, let me ask you about your
description of this case down in Dallas,
Texas. You said you were tricked by a
friend, is that right?
A: Exactly.
Q: But you were found guilty of the crime,
weren’t you?
A: Oh, yes.
Q: And you earlier testified that you were
convicted for possession of a controlled
substance, correct?
A: Yes.
Q: But that’s not really what you were
convicted of, was it?
A: Yes.
Q: Were you convicted of possession of a
controlled substance with intent to
deliver?
A: Oh, well, if that’s part of the charge
with possession of a controlled sub-
stance and with intent to deliver I
guess that’s part of it.
No. 04-3581 15
Q: That’s what you were convicted of?
A: Yes.
Tr. at 39-40. In closing arguments, the government dis-
cussed Smith’s motive to falsify his testimony. The prosecu-
tor pointed out that Smith had a prior conviction for
possession of controlled substances, “although he didn’t
volunteer at first that it was possession with intent to
deliver. But in any event the fact that he has this prior
conviction can be considered by you as relevant to his
credibility.” Tr. at 645-46. This was the entirety of the
government’s argument about the prior conviction.
On appeal, Smith contends that the district court
abused its discretion in allowing the government to impeach
Smith with the nature of his prior felony conviction. We
review the district court’s decision for abuse of discretion.
United States v. Smith, 131 F.3d 685, 687 (7th Cir. 1997).
Federal Rule of Evidence 609(a)(1) provides that for the
purpose of attacking the credibility of a testifying defen-
dant, evidence that the defendant has been convicted of a
felony shall be admitted “if the court determines that the
probative value of admitting this evidence outweighs its
prejudicial effect to the accused.” The rule also provides
that prior convictions generally are not admissible if more
than ten years have passed since the time of the conviction.
Fed. R. Evid. 609(b). The parties agreed that Smith’s prior
conviction fell within the ten-year period, although just
barely, and the district court found that the probative value
of admitting the conviction outweighed the prejudicial effect
to Smith.
The district court relied on Campbell for the proposition
that the government could impeach Smith with the crime
charged, the date and the disposition. See Campbell, 831
F.2d at 707. Campbell was a civil case but the rule applies
in criminal cases as well. White, 222 F.3d at 370. That
is, the government may identify the particular felony
16 No. 04-3581
charged, the date, and the disposition of a prior conviction
for impeachment purposes. White, 222 F.3d at 370. As we
stated in Campbell, “this is not to say that the opposing
party may harp on the witness’s crime, parade it lovingly
before the jury in all its gruesome details, and thereby shift
the focus of attention from the events at issue in
the present case to the witness’s conviction in a previous
case.” Campbell, 831 F.2d at 707. Where a defendant
attempts to explain away the prior conviction by giving
his or her own version of events, the door has been opened
to impeachment by the prosecution on the details of the
prior conviction. White, 222 F.3d at 370.
There was no harping or parading here. The government
very simply pointed out that Smith did not fully and
accurately reveal the particular felony at issue and that
he tried to explain away his conviction by blaming the crime
on a friend who deceived him. All of this was very appropri-
ate under Campbell and White, especially in light of Smith’s
attempt to explain away the prior conviction. Nor do we
accept Smith’s invitation to reweigh the probative value of
this information against its prejudicial effect. Smith
suggests that because the ten-year-old conviction was
similar to the crime charged and because the prosecution
“subtly misused the nature of the prior conviction,” reversal
is warranted. The prosecution did not misuse the informa-
tion, even subtly, and argued only that the jury could use it
to assess Smith’s credibility. The prosecution did not, as
Smith seems to suggest, argue to the jury that because
Smith committed a similar crime in the past that he was
guilty of this offense. There was no abuse of discretion here.
C.
All that remains is Smith’s sentence. As we noted above,
the district court sentenced Smith during the confusing
period of time after our decision in Booker I but before the
Supreme Court’s decision in Booker II. The district court
No. 04-3581 17
declined to use the U.S. Sentencing Guidelines at all,
instead exercising its discretion to select a sentence within
the statutory range of ten years to life. The court sentenced
Smith to a term of thirty years’ imprisonment. This was
error. Although the Guidelines are no longer mandatory, a
sentencing court must still consult the Guidelines and take
them into account when sentencing. United States v. Baretz,
411 F.3d 867, 873 (7th Cir. 2005). The provision of the
Sentencing Reform Act that mandates resentencing when
the challenged sentence results from an incorrect applica-
tion of the Guidelines remains in effect after the Booker
cases. A complete failure to consider the Guidelines thus
requires resentencing. For that reason, we vacate Smith’s
sentence and remand for resentencing.
III.
For the reasons stated above, we affirm Smith’s con-
viction but vacate his sentence and remand for
resentencing.
AFFIRMED IN PART,
VACATED AND REMANDED IN PART.
18 No. 04-3581
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-21-06