United States v. Robert Harris ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-1192, 08-1543, & 08-1694
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R OBERT M. H ARRIS, D AVID T. M ORROW,
and D AMIAN Y. JAMES,
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Illinois.
No. 07 CR 40006—J. Phil Gilbert, Judge.
A RGUED F EBRUARY 19, 2009—D ECIDED JUNE 2, 2009
Before F LAUM and W ILLIAMS, Circuit Judges, and K APALA ,
District Judge. Œ
W ILLIAMS, Circuit Judge. We consider in this case the
appeals of three defendants convicted of conspiring to
Œ
The Honorable Frederick J. Kapala of the United States
District Court for the Northern District of Illinois, sitting by
designation.
2 Nos. 08-1192, 08-1543, & 08-1694
sell crack cocaine in southern Illinois. Only Damian
James challenges his conviction, and we find there was
no Speedy Trial Act violation in his case because, after
excluding the time attributable to the continuances James
himself requested, his trial commenced in a timely fash-
ion. We also conclude that sufficient evidence supported
his conviction for conspiring to sell crack cocaine as he
pooled his money with others to buy crack that all knew
would be resold, was dependent on others for the crack
that he resold, and tried on more than one occasion to get
another person to join the crew buying crack cocaine from
Memphis.
With respect to the defendants’ sentences, we affirm
James’s sentence because the Supreme Court’s decision
in Kimbrough v. United States, 128 S. Ct. 558 (2007), had no
impact on his sentence. The district court’s decision to
sentence him above a mandatory statutory minimum
that exceeded the guidelines ranges for crack and
powder cocaine offenses was not affected by the
crack/powder disparity. Next, the government agrees that
Robert Harris should receive a remand in light of
Kimbrough, and he receives a full resentencing because
he preserved his argument before the district court.
Finally, we remand David Morrow’s case for resen-
tencing as we cannot be assured that the district court
considered all of the relevant 18 U.S.C. § 3553(a) factors,
including his health problems, when it imposed a 504-
month sentence.
Nos. 08-1192, 08-1543, & 08-1694 3
I. BACKGROUND
David Morrow began selling marijuana in the Mt.
Vernon, Illinois area in 2002 or 2003. After about a year, he
ventured into crack cocaine. He obtained the crack from
sources in Memphis and St. Louis. Robert Harris and
Damian James also dealt crack cocaine in the Mt. Vernon
and nearby areas. To obtain the crack they sold, Morrow,
Harris, James, and others pooled their money together
to purchase it. Morrow and Harris often made the out of
town trips together to purchase the crack, and James
came along on occasion too. These trips occurred fre-
quently—at least once every two weeks for about three
years, if not more. Sometimes after the two bought crack
from the St. Louis source, Morrow and Harris would
head to a local mall to meet up with James.
The men who pooled their money together to buy
crack resold it separately in southern Illinois. This arrange-
ment went on for several years. During that time, James
tried to recruit others to join the team of people pur-
chasing crack from out of state. He tried to convince
another drug dealer to join Morrow, James, and Harris
in purchasing crack from their source, saying he could get
a better price than the one he was getting from his
current supplier. The dealer declined, but James, this
time with Morrow present, asked the dealer to join the
“Memphis crew” again a few weeks later. That attempt
also failed.
Multiple witnesses testified that they bought crack from
Harris or James. One witness testified that on one
occasion when he tried to purchase crack from Harris,
4 Nos. 08-1192, 08-1543, & 08-1694
Harris said he was out and would have to wait until
Morrow and James returned from Memphis so he would
have more crack. Another testified that he started buying
crack from James in 2003 and purchased it about twice
a week for five or six months. He also said James would
give him crack on credit, expecting him to pay James
back after he resold the crack. Another testified that he
once called Morrow to get crack cocaine, and Morrow
said he was out and referred him to Harris instead.
Law enforcement officers arrested James in 2006 after
they responded to a call of shots fired and found a rifle
in his back seat. James was indicted on January 11, 2007
with two counts of distributing crack cocaine. He made
his initial appearance eight days later. A superseding
indictment on March 8, 2007 added Morrow, Harris, and
two others as defendants, charging them all with partici-
pating in a conspiracy to distribute more than 50 grams of
crack cocaine. The indictment also added a felon-in-
possession charge against James and other charges
against the other defendants. Morrow, Harris, and James
took their cases to trial. A jury convicted Morrow of
conspiring to distribute crack cocaine and maintaining a
crack house. He received a sentence of 504 months’ impris-
onment. After a trial separate from Morrow’s, a jury
convicted James of conspiring to distribute crack cocaine,
possession of a firearm by a felon, and distribution of
crack cocaine. That same jury convicted Harris of con-
spiring to distribute crack cocaine. The district court
sentenced James to 295 months’ imprisonment and
Harris to 235 months. All three appeal.
Nos. 08-1192, 08-1543, & 08-1694 5
II. ANALYSIS
A. James’s Appeal
1. There was no Speedy Trial Act violation.
James first argues that the district court should have
granted the motion he made to dismiss his case with
prejudice under the Speedy Trial Act, 18 U.S.C. § 3161. In
federal prosecutions, the Speedy Trial Act provides that
a defendant’s trial must commence within seventy days
of the filing date of the information or indictment, or of
the defendant’s initial appearance, whichever comes later.
18 U.S.C. § 3161(c). James initially appeared on January 19,
2007 and his trial commenced on September 24, 2007, so he
maintains that a Speedy Trial Act violation occurred. We
review James’s challenge de novo. See United States v.
Rollins, 544 F.3d 820, 829 (7th Cir. 2008).
Although James’s trial commenced more than seventy
calendar days after his initial appearance, the Speedy
Trial Act specifically excludes certain periods of delay
from the time within which a trial must begin. 18 U.S.C.
§ 3161(h) (2008). Two of these exceptions are particularly
relevant in our case. First, the Act specifically excludes:
A reasonable period of delay when the defendant
is joined for trial with a codefendant as to whom
the time for trial has not run and no motion for
severance has been granted.
18 U.S.C. § 3161(h)(6); see also Rollins, 544 F.3d at 829 (“An
excludable delay of one defendant may be excludable as
to all defendants, absent severance.”). After James’s
initial appearance, the grand jury returned a superseding
indictment on March 8, 2007 that added additional defen-
6 Nos. 08-1192, 08-1543, & 08-1694
dants and charged them, as well as James, with conspiring
to sell crack cocaine. Codefendant Harris made his initial
appearance on May 1, 2007. Therefore, under § 3161(h)(6),
the time from January 19 to May 1 is excluded from the
speedy trial computation if it was reasonable, and James
makes no argument that the three and one-half month
delay until Harris’s appearance was unreasonable. Cf.
Rollins, 544 F.3d at 829 (stating that five and one-half
month period until codefendant’s initial appearance not
unduly long).
Our decision in United States v. Asubonteng, 895 F.2d
424, 426 (7th Cir. 1990), does not direct otherwise. We did
not exclude time in Asubonteng between the initial and
superseding indictment from the speedy trial computa-
tion, but we did not do so because that case involved
only a single defendant. Here, though, because the super-
seding indictment added additional defendants, the
relevant document that marks the beginning of the
speedy trial calculation is the superseding indictment, not
the initial indictment. See Henderson v. United States, 476
U.S. 321, 323 n.2 (1986); see also United States v. Farmer, 543
F.3d 363, 368 (7th Cir. 2008) (“When more than one defen-
dant is charged in an indictment, the Speedy Trial clock
begins to run on the date of the last co-defendant’s initial
appearance, which is usually arraignment.”). The days
through May 1, 2007 did not count against the seventy-
day limit.
The continuances James himself requested further kept
the speedy trial clock from running. The Speedy Trial Act
also specifically excludes from the time computation:
Nos. 08-1192, 08-1543, & 08-1694 7
Any period of delay resulting from a continuance
granted . . . at the request of the defendant or his
counsel . . . , if the judge granted such continuance
on the basis of his findings that the ends of justice
served by taking such action outweigh the best
interest of the public and the defendant in a
speedy trial.
18 U.S.C. § 3161(h)(3)(7)(A). If the district court is inclined
to grant a continuance under this provision, it must also
set forth “its reasons for finding that the ends of justice
served by the granting of such continuance outweigh the
best interests of the public and the defendant in a
speedy trial.” Id.On April 18, 2007, even before Harris made his initial
appearance, James filed a motion to continue his trial. In
support of the motion, counsel stated that he needed
additional time to review discovery, confer with James
and prepare his defense. The district court granted
James’s motion and continued the trial until July 2, 2007.
Before July 2 arrived, James filed another motion to
continue his trial. The district court granted that motion
as well and continued the trial until August 20.1 The
district court specifically found during each grant that a
failure to grant the motion would likely result in a mis-
1
Neither motion for continuance contained a request for time
to prepare pretrial motions, so we do not expect the
Supreme Court’s recent grant of certiorari in Bloate v. United
States, No. 08-728, 2009 WL 1034612 (U.S. Apr. 20, 2009), to
affect this case.
8 Nos. 08-1192, 08-1543, & 08-1694
carriage of justice and that the ends of justice warranted
the continuances. Therefore, the additional time
resulting from James’s own requests to continue the
trial are excluded. The days after August 20 counted
toward the seventy-day limit, but the trial’s commence-
ment on September 24 meant that it fell within the time
allowed under the Act. No Speedy Trial Act violation
occurred.
2. Sufficient evidence supported James’s conspir-
acy conviction.
James also argues that insufficient evidence supports
his conviction for conspiring to distribute crack cocaine.
When reviewing a challenge to the sufficiency of the
evidence supporting a verdict, we ask whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt. United States v. Seymour, 519 F.3d 700, 714 (7th Cir.
2008). We will overturn the jury’s guilty verdict only if
“ ‘the record contains no evidence, regardless of how it is
weighed,’ ” from which the jury could have found beyond
a reasonable doubt that James was guilty of conspiring
to sell crack cocaine. United States v. James, 540 F.3d 702,
706 (7th Cir. 2008) (quoting United States v. Gougis, 432
F.3d 735, 743-44 (7th Cir. 2005)).
James does not dispute that he was a crack cocaine
dealer. Instead, he maintains that he was not a member of
a conspiracy to sell crack. The essence of a conspiracy is
an agreement between two or more people to engage in
Nos. 08-1192, 08-1543, & 08-1694 9
criminal activity. United States v. Zaragoza, 543 F.3d 943,
947 (7th Cir. 2008). Simple buy-sell transactions are not
enough to constitute the separate criminal object
necessary for a conspiracy conviction, so the fact that
James sold crack is not enough. See id.In this case, sufficient evidence supports the jury’s
conclusion that James conspired with Morrow, Harris, and
others to distribute crack cocaine. The jury could have
concluded that James and the other indicted co-conspira-
tors depended on each other to further their drug-traffick-
ing goals. See James, 540 F.3d at 707. That evidence in-
cluded that members of the conspiracy obtained their
crack cocaine together, from Morrow’s sources in
Memphis and St. Louis. Morrow also referred customers
to Harris when he ran out of crack cocaine. See id. (refer-
ring customers to others’ houses if supply was low sup-
ports conclusion that conspiracy existed).
The jury also heard evidence of James’s participation
in the conspiracy and of how he worked to further the
conspiracy. In United States v. Haywood, 324 F.3d 514,
517 (7th Cir. 2003), we found sufficient evidence supported
a conspiracy conviction where two alleged co-
conspirators “pooled their money and shared rides . . . in
order to buy inexpensive crack, meaning that each could
run a cheaper operation—and earn higher prof-
its—if the other succeeded.” That is true here as well. The
jury heard that James pooled his money with that of
Harris, Morrow, and the other alleged co-conspirators
to buy larger amounts of crack cocaine from outside
the state for resale. As in Haywood, James and the
others pooled their money and shared rides to buy cheaper
10 Nos. 08-1192, 08-1543, & 08-1694
crack, meaning that each could earn more if the others
succeeded.
The out of state purchases happened at least biweekly, if
not more, for several years, with all involved knowing that
the crack cocaine would be resold. Although it is not clear
from the record exactly how long James was involved with
the other defendants, it is clear that it was far from a one-
time occurrence. Notably, he tried to recruit others to join
Morrow, Harris, and the others who were pooling their
money together. A dealer who had been obtaining his
crack from another source testified that James tried to talk
him into going in with Morrow, Harris, and James to
purchase crack in Memphis, saying he could get it for a
better price than the other dealer’s current supplier. James
referred to his group as “the Memphis crew.” Although
the offer was declined, a few weeks later, James, with
Morrow present, again unsuccessfully tried to persuade
the same dealer to join his team. Also, from another
witness’s testimony that Harris’s response to a request to
buy crack cocaine was that he needed to wait for Morrow
and James to return with the drugs, the jury could have
concluded that James at least occasionally went along on
the drug-purchasing trips. The jury therefore had sufficient
evidence to find that James was a member of a conspiracy
to distribute crack cocaine.
James emphasizes a statement in one of our previous
cases that to find a conspiracy, we are “looking for evi-
dence of a prolonged and actively pursued course of
sales coupled with the seller’s knowledge of and a shared
stake in the buyer’s illegal venture.” United States v.
Nos. 08-1192, 08-1543, & 08-1694 11
Contreras, 249 F.3d 595, 599 (7th Cir. 2001) (internal quota-
tion marks and citation omitted). In Contreras, we were
distinguishing a conspiracy from a mere buyer-seller
relationship, the latter meaning a situation where one
person merely buys drugs from another, which is insuffi-
cient to find a conspiracy. See id. at 598-99. As we dis-
cussed, James and his co-conspirators put their money
and transportation resources together for an extended
period of time, thereby having a stake in each other’s
success, see Haywood, 324 F.3d at 517, and knowing that
the others intended to resell the crack cocaine. James
may have had only a buyer-seller relationship with his
customers, but the jury could have found he was
involved in a conspiracy with Morrow, Harris, and the
other indicted co-conspirators rather than a simple buyer-
seller relationship. See United States v. Williams, 298 F.3d
688, 692 (7th Cir. 2002). Sufficient evidence supports
James’s conspiracy conviction.
3. Kimbrough did not affect James’s sentence.
James’s final argument is that we should remand his
case to ensure that the district court understood its
ability to fashion a sentence in light of the Supreme
Court’s decision in Kimbrough v. United States, 128 S. Ct. 558(2007), which the Court decided before James’s sen-
tencing hearing. We decline to do so because any dis-
agreement with the crack cocaine guidelines would not
have impacted James’s sentence.
Had there not been an applicable statutory minimum,
James’s advisory guidelines imprisonment range would
12 Nos. 08-1192, 08-1543, & 08-1694
have been 188 to 235 months. This range was calculated
using guidelines for crack cocaine offenses and was
higher than the range for powder cocaine offenses in-
volving similar quantities. But, because his offense in-
volved more than 50 grams of cocaine base and he had a
prior felony drug conviction, James was subject to a
statutory minimum of 240 months’ imprisonment on his
conspiracy conviction. See 21 U.S.C. §§ 841(b)(1)(A)(iii),
846, 851. After Kimbrough, sentencing courts are still
bound by the minimum sentences set forth in the United
States Code, Kimbrough, 128 S. Ct. at 573, so the district
court had to sentence James to at least 240 months.
During the sentencing hearing, the district court recog-
nized the statutory minimum and then explained why
it decided to sentence James to 295 months’ imprison-
ment, nearly five years above the minimum. This ex-
planation included a discussion of James’s past, which
contained a state-court murder conviction, multiple
problems with the law, and a history of disobeying
court orders. In that light, the district court concluded
that a 295-month sentence was necessary to deter James
from committing future crimes and to protect the public.
Any disagreement the district court might have had with
the crack cocaine guidelines would not have impacted
James’s sentence. The crack and powder guidelines
ranges were both below the statutory minimum. So even
if the district court had been inclined to treat a crack
cocaine offense equivalent to a powder cocaine one, it
would not have made a difference here as the higher 240-
month statutory minimum took precedence and the
Nos. 08-1192, 08-1543, & 08-1694 13
district court explained why it decided to impose a sen-
tence well above that minimum. Cf. United States v.
Padilla, 520 F.3d 766 (7th Cir. 2008) (vacating above-
minimum sentence and remanding where sentencing
took place before Kimbrough and it was unclear whether
court would have sentenced differently in its wake).
Therefore, James is not entitled to the limited remand
under United States v. Taylor, 520 F.3d 746 (7th Cir. 2008),
that he seeks. Finally, we note that James filed a pro se
statement with undeveloped claims. If James wishes to
pursue his ineffective assistance of counsel claim, it
would best be brought in a proceeding under 28 U.S.C.
§ 2255. See United States v. Chavers, 515 F.3d 722, 726
(7th Cir. 2008); United States v. Turcotte, 405 F.3d 515, 537
(7th Cir. 2005).
B. Harris’s case is remanded in light of Kimbrough.
Harris challenges only his sentence. At his sentencing
hearing about a month after Kimbrough, Harris’s counsel
argued that Harris should receive the ten-year
statutory mandatory minimum, or, in light of recent
Supreme Court cases, a sentence more consistent with
that of a powder cocaine offender. By doing so, the gov-
ernment agrees that Harris preserved his Kimbrough
argument for review. During the hearing, Harris’s
counsel also called Harris “a rarity” and pointed out that
he had no criminal history points, had been employed
at the time his case went to trial, and had the support of
his mother and other family members who were present
at the sentencing. His counsel further argued, and the
14 Nos. 08-1192, 08-1543, & 08-1694
government agreed, that he had a lesser role in the
scheme than that of other defendants.
The district court calculated Harris’s advisory guide-
lines range of imprisonment (based on the offense involv-
ing crack cocaine) as 235 to 293 months. It did not
address Harris’s argument that he should receive a
sentence more in line with that of a powder cocaine
offender. The district court ultimately imposed a sen-
tence of 235 months, at the low end of this range, but it
said that it was “truly a waste of time for someone like
[Harris] to be going to prison for as long as [he’s] going to
be in prison.” In light of this statement, the government
agrees a remand is needed to ensure the district court
understood that it could vary from the crack/powder
ratio set forth in the guidelines, and also from the guide-
lines themselves. See Kimbrough, 128 S. Ct. at 575. Although
the government’s brief stated that a limited remand in
accordance with the procedure we announced in United
States v. Taylor, 520 F.3d 746, 748 (7th Cir. 2008), is in order,
Harris is entitled to a full resentencing because he pre-
served his argument by raising it at the initial sentencing
hearing. See United States v. Bryant, 557 F.3d 489, 496 (7th
Cir. 2009) (vacating sentence and remanding for
resentencing where issue preserved at sentencing hearing).
C. Morrow’s case is remanded for resentencing.
Finally, we turn to David Morrow, who like Harris
challenges only his sentence. Morrow maintains that the
district court provided an insufficient explanation for its
decision to sentence him to 504 months’ imprisonment.
Nos. 08-1192, 08-1543, & 08-1694 15
After the prosecutor and defense counsel concluded
their arguments at the sentencing hearing, the district
court said:
the Court’s considered all the information in the
presentence report including guideline computa-
tions and factors set forth in 18 U.S.C. § 3553(a).
Pursuant to the Sentencing Reform Act of 1984, it
is the judgment of this Court that the defendant,
David T. Morrow, is hereby committed for a term
of 504 months on Count I, 240 months on Count 10.
The terms are to run concurrently.
The district court said nothing further during the hearing
about its rationale for imposing a 504-month sentence,
and Morrow maintains that more explanation is needed.
A provision in the United States Code, 18 U.S.C. § 3553(c),
states that “at the time of sentencing,” a sentencing judge
“shall state in open court the reasons for its imposition of
the particular sentence.” The statute also says that if a
sentence is within an advisory guidelines range, “and that
range exceeds 24 months,” the judge shall state as well “the
reason for imposing a sentence at a particular point within
the range.” 18 U.S.C. § 3553(c)(1). The Supreme Court
explained that the requirement in § 3553(c) that a judge
state its reasons for a sentence in court reflects sound
judicial practice, but that the appropriateness of how much
to say “depends upon circumstances.” Rita v. United States,
551 U.S. 338, 356 (2007).
An appellate court’s review of a sentence is for rea-
sonableness, and the more explanation we have, the better
equipped we are to assess whether an imposed sentence
meets that standard. See id. at 356-57. Less explanation is
16 Nos. 08-1192, 08-1543, & 08-1694
typically needed when a district court sentences within an
advisory guidelines range. See id.; United States v. Dean, 414
F.3d 725, 729 (7th Cir. 2005); see also United States v.
Rodriguez-Alvarez, 425 F.3d 1041, 1047 (7th Cir. 2005)
(explaining that § 3553(c) does not require a detailed
recitation of all the § 3553(a) factors when a court sentences
within a guidelines range). Here, the 504-month sentence
was within the guidelines range. But it’s quite the range:
360 months to life. That means that the 504-month sentence
Morrow received was twelve years more than the low end
of his advisory guidelines range. (The 33 to 41 month range
at issue in Rita spanned only 8 months, and the longest span
in a guidelines range where “life” is not an endpoint is 81
months.)
If the oral explanation were the only one the district
court provided, we might have more concern. That is
especially true since neither party requested a sentence
of 504 months (the government had asked for life). How-
ever, the record also contains a Statement of Reasons
that the district court filed four days after judgment. In
it, the court explained as the reason for its sentence: “The
Court sentences the defendant to 504 months. This is
the defendant’s fifth felony conviction with four being
drug cases. The defendant has prior convictions
involving guns. The defendant was a leader in the drug
business.” 2 Although the parties did not direct us to the
2
We note that three of the four drug convictions were for
marijuana possession. The other was a conviction for
(continued...)
Nos. 08-1192, 08-1543, & 08-1694 17
statement, in line with our encouragement that sen-
tencing judges commit difficult sentencing decisions to
paper, we have considered such statements before. See
United States v. Burton, 543 F.3d 950, 953 (7th Cir. 2008). We
consider it here as well, but it does not end our inquiry
into whether the sentencing explanation was sufficient.
We have long recognized that a discourse of every
single § 3553(a) factor is not always necessary or practical,
especially when the sentence is within the guidelines
range. Dean, 414 F.3d at 729. But it is also the case that a
“rote statement that the judge considered all relevant
factors will not always suffice.” United States
v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). In particu-
lar, when a court has “passed over in silence the
principal argument made by the defendant even though
the argument is not so weak as not to merit discussion,”
we do not have the assurance we need to satisfy our-
selves that the defendant’s individual circumstances
have been thoroughly considered. Id. Morrow’s counsel
raised his client’s poor health to the district court at
sentencing and argued that it militated in favor of a
sentence at the low end of the guidelines range. The
Presentence Report spelled out that Morrow had been
diagnosed with diabetes in January 2006, and, only ten
months later, had to have his left leg amputated. In a
separate sentencing recommendation section, the
2
(...continued)
possessing crack cocaine with the intent to sell it for which
Morrow received a two-year sentence.
18 Nos. 08-1192, 08-1543, & 08-1694
Report also said: “Mitigating factors in this case include
health concerns. He has had significant complications as
a result of diabetes, including the amputation of one leg.”
It is true that counsel could have done a better job
highlighting the disease’s complications at the sen-
tencing hearing. Nonetheless, Morrow’s argument based
on his health was not one that was clearly without merit
such that it could be passed over without comment. A
district court, in its discretion, can consider a defendant’s
physical impairments in determining an appropriate
sentence. See United States v. Millet, 510 F.3d 668, 680
(7th Cir. 2007) (stating that although U.S.S.G. § 5H1.4
provides that physical condition is not ordinarily
relevant in the decision to depart downward from the
guidelines unless the impairment is “extraordinary,” a
district court can consider physical impairments when
exercising its discretion in accordance with § 3553(a)); cf.
United States v. Allday, 542 F.3d 571, 573-74 (7th Cir. 2008)
(affirming sentence where court explained its reasons,
took into account the defendant’s health problems, and
concluded that the Bureau of Prisons could adequately
treat the defendant’s health issues, including his sleep
apnea and diabetes).
More to the point, in United States v. Wurzinger, 467
F.3d 649 (7th Cir. 2006), we said in considering a sen-
tencing challenge that the defendant’s “strongest
argument is that his diabetes will kill him before he is
free.” Id. at 651. Like Morrow, the defendant in Wurzinger
was already experiencing complications from his diabe-
tes. Because the district court in Wurzinger explicitly
Nos. 08-1192, 08-1543, & 08-1694 19
recognized the defendant’s illness at sentencing but
pointed to other factors that, despite the illness, warranted
the sentence, we found no error in the sentencing deci-
sion. Id. at 653-54. (We expressed no opinion as to whether
a lower sentence also would have been reasonable.)
Similarly, in United States v. Bullion, 466 F.3d 574 (7th Cir.
2006), we affirmed a sentence where the district court had
weighed the defendant’s insulin-dependent diabetic status
and age against his dangerousness to society. In this case,
though, we cannot assure ourselves that the district court
weighed Morrow’s health complications against other
factors when it imposed the 504-month sentence, as we see
no indication that the district court considered it. We
therefore remand Morrow’s case for resentencing.
As we do so, we note that we asked the government at
oral argument whether, if we rejected Morrow’s argu-
ment that the explanation was insufficient, a remand
under Taylor, 520 F.3d 746, was appropriate for Morrow as
the government had said it was for Harris. The govern-
ment responded that such a remand would not aid Mor-
row because he admitted responsibility for more than 4.5
kilograms of crack cocaine (he admitted to 4.88 kilograms,
to be exact).
In 2008, the United States Sentencing Commission
reduced the base offense levels for many crack cocaine
offenses. See U.S.S.G. § 2D1.1(c); Supp. to App. C, 226-31
(2008) (Amendment 706). The Commission made these
changes retroactive. See U.S.S.G. § 1B1.10(a)(1); see also 18
U.S.C. § 3582(c). However, the new guideline, like the
previous guideline, kept the base offense level at 38 for
20 Nos. 08-1192, 08-1543, & 08-1694
a defendant who is responsible for more than
4.5 kilograms of crack cocaine. See U.S.S.G. § 2D1.1(c).
Therefore, a defendant responsible for more than 4.5
kilograms of crack cocaine cannot benefit from Amend-
ment 706 and will not receive any relief on an 18 U.S.C.
§ 3582(c) motion for a reduction in sentence in light of
that amendment. United States v. Forman, 553 F.3d 585,
590 (7th Cir. 2009).
But there is no 4.5 kilogram limitation on the applica-
bility of Kimbrough at an initial sentencing hearing.
Under the new guidelines, while the base offense level is
38 when the controlling quantity is 4.5 kilograms or more
of crack cocaine, the level is only 30 when the measuring
stick is 4.5 kilograms (or 4.88 kilograms) of powder
cocaine. See U.S.S.G. § 2D1.1(c). Under Kimbrough, a
sentencing judge can take this disparity into account
when deciding what sentence to impose. So the district
court may consider the impact of Kimbrough during Mor-
row’s resentencing as well.
III. CONCLUSION
We AFFIRM the convictions and sentence of appellant
James. Harris’s and Morrow’s cases are REMANDED for
resentencing.
6-2-09