United States v. Anthony Edwards ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1124
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A NTHONY D. E DWARDS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:06 CR 116—Philip P. Simon, Judge.
A RGUED M AY 6, 2009—D ECIDED S EPTEMBER 14, 2009
Before E ASTERBROOK, Chief Judge, and P OSNER and
W OOD , Circuit Judges.
P OSNER, Circuit Judge. The defendant was convicted by
a jury of distributing 5 grams or more of crack and was
sentenced to 108 months in prison. His appeal raises
several issues.
After being arrested and jailed, he was given the
Miranda warnings, and after agreeing to waive his
Miranda rights was questioned for a quarter of an hour
2 No. 08-1124
or so and then returned to his cell. Thirty to forty minutes
after the waiver—which is to say roughly fifteen to twenty-
five minutes after the completion of the questioning—
he was returned to the interview room for further ques-
tioning by another agent. Before beginning, the agent
showed the defendant the waiver form he had signed
before the first round of questioning and asked him
whether he understood his rights, and he replied that he
did. The form made clear that he could stop the question-
ing at any time. But he argues that the admissions he
made during the second round of questioning should not
have been placed in evidence at the trial because the
Miranda warnings had not been recited to him before
the second round began.
The defendant asks us to adopt a doctrine of “stale-
ness” that would require readministering the Miranda
warnings after any break in an interrogation—even, as
in this case, a very short one—if there is any reason to
think that the person questioned may have forgotten
or misunderstood the warnings or thought they had
lapsed or been unable to claim them because of new
pressures brought to bear on him after the break,
though if his statement was coerced this would be
an independent ground for suppression—coerced confes-
sions were inadmissible long before the Miranda case.
The defendant points out that the second interrogation
was conducted by different officers from the first one
and that he made inculpatory statements only at the
second one. And he argues that he was in a frightened,
emotional state throughout the entire period of the inter-
rogations.
No. 08-1124 3
The form that he was read, and signed, included the
statement that “if you decide to answer questions now
without a lawyer present, you will still have the right
to stop answering at any time. You also have the right
to stop answering at any time until you talk to a lawyer.”
So if the defendant had not wanted to be questioned
the second time, he had only to refuse. Of course during
the 30 or 40 minutes that elapsed between his signing
the waiver form and the second interrogation, he might
have forgotten that he had the right to clam up even
though he had answered questions at the first one. But
he might, for that matter, have forgotten that he had that
right if the questioning had lasted for 30 or 40 minutes
after he was informed of his rights. The logic of his argu-
ment is that the Miranda warnings should be repeated
periodically in the course of protracted questioning.
But such reiteration would convey to the defendant a
suggestion that he not waive his Miranda rights; it
would be like saying “Are you really sure you want
the questioning to continue?”
The cases do not require that the warnings be repeated
after an interruption in the questioning, e.g., United
States ex rel. Patton v. Thieret, 791 F.2d 543, 547-48 (7th
Cir. 1986); United States v. Ferrer-Montoya, 483 F.3d
565, 569 (8th Cir. 2007) (per curiam); United States v.
Rodriguez-Preciado, 399 F.3d 1118, 1128-29 (9th Cir. 2005);
see also Wyrick v. Fields, 459 U.S. 42, 48-49 (1982) (per
curiam), even if the interruption is much longer than it
was in this case. See, e.g., United States v. Diaz, 814 F.2d
454, 460 and n. 6 (7th Cir. 1987) (several hours); United
States ex rel. Henne v. Fike, 563 F.2d 809, 813-14 (7th Cir.
4 No. 08-1124
1977) (per curiam) (nine hours); People v. Dela Pena, 72
F.3d 767, 769-70 (9th Cir. 1995) (nearly fifteen hours);
Stumes v. Solem, 752 F.2d 317, 320 (8th Cir. 1985) (nearly
five hours); Jarrell v. Balkcom, 735 F.2d 1242, 1253-54 (11th
Cir. 1984) (three hours). In Thieret the suspect was
placed in a holding cell between the warnings and the
defendant’s waiver of his Miranda rights. In Diaz the
warnings were given at the hotel where the suspect was
arrested and his inculpatory statements came during
the subsequent booking. In Fike the warnings were given
in the evening and the statements the following
morning, and the warnings and the interrogation were by
different officers, as they were in Jarrell and in the present
case. In United States v. Pruden, 398 F.3d 241, 247-48 (3d Cir.
2005), roughly 20 hours and a change of location inter-
vened between warnings and statement and the defendant
was merely reminded before he made the statement that
he had received the warnings the previous afternoon.
The defendant points to a pair of state court cases and
one district court case as contradicting the decisions we
have cited, but the intervals in those cases were much
longer than in the present case. Commonwealth v.
Wideman, 334 A.2d 594, 598-99 (Pa. 1975) (12 hours);
Commonwealth v. Riggins, 304 A.2d 473, 477-78 (Pa. 1973)
(17 hours); United States v. Jones, 147 F. Supp. 2d 752, 761-
62 (E.D. Mich. 2001) (18 hours).
Vagueness is the bane of legal reasoning. This case
presents several examples, beginning with “staleness,” a
word with no proper application to a statement. What is
a “stale statement”? Interrogators might try to negate
the Miranda warnings; had the second interrogator in
No. 08-1124 5
this case told the defendant that he must answer his
questions because a Miranda waiver is forever the
answers could not have been used in evidence. See Hart
v. Attorney General, 323 F.3d 884, 894-95 (11th Cir.
2003); United States v. Beale, 921 F.2d 1412, 1435 (11th
Cir. 1991); United States v. San Juan-Cruz, 314 F.3d 384, 387-
89 (9th Cir. 2002). And likewise if, as in Ex parte J.D.H., 797
So. 2d 1130 (Ala. 2001), so much time had elapsed
between the rounds of questioning—16 days in that
case—that the agent should have realized that the defen-
dant might well have forgotten the warnings, and specifi-
cally the paragraph tucked into the Miranda form that
entitles a suspect to interrupt the questioning at any
time and summon a lawyer. Yet even in J.D.H. the
court emphasized circumstances beyond the long delay
between interrogations in deciding that the inculpatory
statement should have been suppressed.
The practical question is not whether Miranda warnings
given to a defendant became “stale,” or, though the
courts love the phrase, whether the “totality of the cir-
cumstances” indicates that the inculpatory statement
was made knowingly. It is whether the defendant when
he gave the statement didn’t realize he had a right to
remain silent. The Miranda form told him he had that
right, and the presumption should be that he would
remember this even if some time had elapsed between
his receiving the warnings and undergoing the ques-
tioning that elicited the inculpatory statement. The cases
do not speak in terms of a presumption but that is the
practical effect of their reluctance to attach dispositive
weight to a break in questioning, even when the break is
6 No. 08-1124
protracted and other circumstances might have made it
less likely that the defendant would remember that he
could stop the questioning at any time. The presumption
can be rebutted but was not in this case.
The defendant makes the unrelated argument that
evidence of prior criminal activity by him should not
have been admissible at the trial. Rule 404(b) of the evi-
dence rules forbids the use of such evidence to establish
a person’s propensity to commit crimes but permits it
“for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence
of mistake or accident.” The government’s principal
witness was a drug dealer named Beagle who testified
that, working as a government informant, he had
arranged to make a controlled purchase of drugs from
the defendant. There was conflicting testimony about
whether the defendant had drugs with him when
arrested upon arriving at Beagle’s house, where the
purchase was to take place. But Beagle testified in detail
about the procedures used when the defendant had
sold drugs to him on previous occasions—how the sale
would be set up, where it would take place, and so
forth—and that he had followed the same procedures
in the transaction for which the defendant was being
prosecuted, though the defendant was arrested before
the sale took place. The earlier sales were of course crimi-
nal too, but they were not charged in the present case.
The parties duel over whether the evidence of these
sales was nevertheless admissible under the “intricately
related” or “inextricably intertwined” gloss on Rule 404(b),
No. 08-1124 7
despite our criticism of these tongue-twisting formulas
in United States v. Taylor, 522 F.3d 731 (7th Cir. 2008).
The rule lists purposes for which evidence of prior
crimes may be presented, but the list is illustrative
rather than exhaustive because the rule forbids only
the use of prior-crimes evidence to show that since the
defendant committed crimes in the past, probably he
committed the crime of which he is now accused, or that
since he’s a criminal the jury might as well resolve
any doubts about his guilt against him. To satisfy
Rule 404(b), all the government need show is a purpose
other than to establish the defendant’s propensity to
commit crimes. Id. at 735-36. The fact that prior-crimes
evidence is “inextricably intertwined” with or “intricately
related” to (and are these the same tests or different?—who
knows?) the charge in the case at hand is neither here
nor there, if indeed any meaning can be assigned to such
terms.
Some cases restate the test for admissibility as whether
the prior-crimes evidence is needed to “complete the
story” or “tell a complete story” of the crime with which
the defendant is charged, e.g., United States v. Gilmer,
534 F.3d 696, 705 (7th Cir. 2008); United States v. Ramirez,
45 F.3d 1096, 1102 (7th Cir. 1995); United States v.
Quinones, 511 F.3d 289, 309 (2d Cir. 2007), or to fill a
“conceptual void.” E.g., United States v. Gilmer, supra, 534
F.3d at 705; United States v. Wantuch, 525 F.3d 505, 517 (7th
Cir. 2008); United States v. Gougis, 432 F.3d 735, 742 (7th
Cir. 2005). But these formulas, too, lack clarity. We
recall Holmes’s admonition to think things not words, by
which he meant that the words judges use to state
8 No. 08-1124
a legal doctrine should be transparent to the goals or
policies or concerns that animate the doctrine. So in
this case the focus of inquiry should be on whether
the prior-crimes evidence is relevant (other than to show
propensity, which may be relevant to guilt, but is imper-
missible as evidence) to an issue in the case, and,
if so, whether the probative weight of the evidence is
nevertheless substantially outweighed by its prejudicial
effect or by its propensity to confuse or mislead the
jury. Fed. R. Evid. 403; see Old Chief v. United States,
519 U.S. 172, 182 (1997); United States v. Dunkin, 438
F.3d 778, 780 (7th Cir. 2006); Advisory Committee Note
to 1972 Proposed Rules, Rule 404(b).
So did Beagle’s previous drug purchases from the
defendant bolster the government’s case that it had
arrested the defendant in the course of a drug sale?
They did. There was disagreement over whether the
defendant had had drugs in his possession when he
was arrested. The previous purchases substantiated
Beagle’s testimony that he had arranged the meeting
with the defendant to buy drugs from him. His past
transactions with the defendant had followed a familiar
pattern: He would call the defendant to set up the meet-
in g . T h e d e f en d a n t w o u l d u s u a l l y b e l a t e ,
prompting a second phone call by Beagle. The defendant
would park in the alley behind Beagle’s house, and if
Beagle didn’t approach the car immediately upon his
arrival the defendant would drive away and Beagle
would have to call the defendant on the latter’s cell
phone to summon him back. When the defendant
No. 08-1124 9
returned, he would give Beagle the drugs. This scenario
unfolded as usual in the run up to the defendant’s
arrest except for Beagle’s not coming out of his house to
take possession of the drugs; the defendant was
arrested before that final step.
All prior-crimes evidence is prejudicial; otherwise
there would be no need for Rule 404(b). But the judge
did not abuse his discretion in ruling that the admission
of the evidence in this case passed muster, for without
it the jury might have thought that Beagle had fabricated
a planned drug sale in order to curry favor with the
government.
Another unfortunate bit of legal jargon has insinuated
itself into the appeal. The defendant accuses the gov-
ernment of having “vouched for” the truthfulness of two of
its witnesses—Beagle and an officer who testified that
he saw a bag containing an off-white rock-like substance
fly off the defendant’s person during the arrest and that
when the defendant was later removed from the police
car the officer saw additional bags containing a similar-
looking substance lying at the defendant’s feet. The
prosecutor in his closing argument asked the jury rhetori-
cally “what possible reason does he [the officer] have to
risk his career?” by testifying falsely. And he asked Beagle
on direct examination what would happen to his plea
agreement if he didn’t testify truthfully and he replied
that “they could throw it out,” in which event he
would “be looking at more time” in prison.
What “vouching for” means in this context is telling or
hinting to the jury that the prosecutor has reasons un-
10 No. 08-1124
known to it for believing that a government witness is
telling the truth. E.g., United States v. Young, 470 U.S. 1, 18-
19 (1985); United States v. Morris, 498 F.3d 634, 642 (7th
Cir. 2007); United States v. Brown, 508 F.3d 1066, 1075-76
(D.C. Cir. 2007). A number of cases suggest that there is
another form of vouching as well—the prosecutor’s
expressing his personal belief in the witness’s truth-
fulness, thus “plac[ing] the prestige of the government
behind the witness.” E.g., United States v. Anderson, 303
F.3d 847, 855 (7th Cir. 2002). It is unclear how different
that is from the first form of vouching. The jurors know
that the prosecutor wants a conviction; otherwise the
charges would have been dismissed. Unless jurors revere
prosecutors, the only reason for a juror to accept the
prosecutor’s expression of a personal belief in the
witness’s truthfulness is that the juror thinks the belief
is based on something the prosecutor knows and the
jurors do not—there is no improper “vouching” if the
prosecutor merely reminds the jury of evidence
presented at the trial that tends to show that a witness
was telling the truth. Improper vouching is trying to
bolster a witness’s believability with “evidence” that
was not presented and may well not exist.
The question the prosecutor asked Beagle about the
possible consequences of his lying was innocent. It merely
probed Beagle’s understanding of the consequences of
lying on the stand. The prosecutor was not implying that
he had secret information that Beagle would have been
afraid to lie because of the consequences if he did. The
case law allows the government to present evidence that
No. 08-1124 11
plea deals are conditioned on truthful testimony. E.g.,
United States v. Morris, supra, 498 F.3d at 642-43; United
States v. Renteria, 106 F.3d 765, 767 (7th Cir. 1997); United
States v. Hansen, 434 F.3d 92, 101 (1st Cir. 2006). One
case breaks from this pattern, United States v. Brooks,
508 F.3d 1205, 1210 (9th Cir. 2007), but the other cases on
which the defendant relies are distinguishable from
the present one because in them the prosecutor went
beyond just asking the defendant what he thought the
consequences of lying would be. See United States v. Carroll,
26 F.3d 1380, 1389 (6th Cir. 1994); United States v. Kerr,
981 F.2d 1050, 1053 (9th Cir. 1992); United States v. Francis,
170 F.3d 546, 550-51 (6th Cir. 1999).
The prosecutor’s rhetorical question about the agent’s
jeopardizing his career by lying about the drugs he
found in order to frame the defendant presents a more
difficult issue. It could be thought just an appeal to the
jurors’ common sense. Jurors know that a witness takes
an oath to tell the truth, and they doubtless have heard
of the crime of perjury, so they might wonder on their
own what motive a police officer would have for lying
under oath, since it could get him into trouble. But
when the prosecutor explicitly invites such a specula-
tion, jurors may infer that the government fires officers
who lie under oath (even though they are lying to help
the government’s case), or prosecutes them, so that an
officer who lies is indeed jeopardizing his career or his
liberty even if he thinks he is helping the prosecu-
tion—and no evidence to that effect was presented.
We do not want to encourage lawyers to bring in a
parade of witnesses to testify to how often police
12 No. 08-1124
officers lose social or professional standing because of
dishonest testimony. Were such evidence required, testi-
mony that Beagle stood to lose the benefit of his plea
bargain could also be thought impermissible vouching
because no evidence was presented on how frequently
plea bargains are renegotiated or withdrawn after the
government’s informant testifies. An entire category of
argument—that the jury should ask what a witness can
lose by lying, and should believe those witnesses with a
lot to lose and disbelieve those (such as defendants)
who can get off the hook by perjury—might be ruled out.
For there is never evidence about how often these
gains and losses occur and whether this understanding
of human motivation is supported by social-science
research.
Still, there is a difference between the two questions—the
actual to Beagle and the rhetorical to the officer. The
question put to Beagle was merely intended to elicit
the fact that his plea agreement had been conditioned on
his testifying truthfully. Not even a glancing reference
was made to the probability that Beagle would be pun-
ished if he lied; an estimate of that probability was left
to the common sense of the jury. The question about the
officer—a question put not to him but to the jury and
unmistakably rhetorical in character (the jury was not
being invited to answer it)—“what possible reason
does he have to risk his career?”—implied that the prose-
cutor had an undisclosed reason to believe that the con-
sequences if the officer lied would be sufficiently grave
to guarantee that he would testify truthfully.
No. 08-1124 13
Perhaps impelled by cases like United States v. Johnson-
Dix, 54 F.3d 1295, 1304-05 (7th Cir. 1995); United States
v. Badger, 983 F.2d 1443, 1451 (7th Cir. 1993), and United
States v. Boyd, 54 F.3d 868, 871-72 (D.C. Cir. 1995), which
disapprove of comments that make such an insinuation,
the government confesses that the prosecutor’s comment
about the officer’s motives was improper, but points out
that it was harmless. The critical evidence of the defen-
dant’s having drugs with him in his encounter with
Beagle was the latter’s testimony. It is true that Beagle,
huddled in his basement while the defendant was
being arrested, did not see the drugs. But his testimony
that he had arranged to buy drugs from the defendant
was strongly supported not only by his testimony about
his previous dealing with the defendant but also by
records of more than a hundred phone calls from
Beagle’s home telephone to the defendant’s cell phone
and the defendant’s confession at the police station,
which he now denies having made, that it was indeed
a drug deal that the police interrupted.
The last issue concerns the sentence. When arrested,
the defendant had $765 in cash on his person. The
judge inferred that he had received the money in a previ-
ous sale of crack cocaine. On this assumption, the
judge had solid grounds for adding 12.75 grams to the
amount of crack that other evidence (including evidence
of 10 grams in prior sales to Beagle) showed that the
defendant either had sold or had possessed with intent
to sell. The result of the addition (since the supposed
earlier sale was, if it really took place, “relevant conduct”
within the meaning of the sentencing guidelines) was
a higher guidelines sentencing range (108 to 135 months).
14 No. 08-1124
The defendant testified that he had received the money
from the sale of a minivan. But he also testified that the
minivan had no license plates, that title had never been
transferred to him, and that the vehicle had never been
registered in his name; and this made it impossible to
verify his having sold, or for that matter ever owned or
possessed, a minivan. And so the prosecutor asked the
judge to disbelieve the defendant’s story, and the
judge obliged.
That was fine, as far as it went. But the defendant
argues that even if his testimony was false, the prosecu-
tion should have been required to present evidence of
what the true source of the money was. We think that’s
true in this case, though not because it is always
improper to satisfy a burden of proof by discrediting
an opposing party’s evidence. Suppose it were certain
that the $765 was the proceeds of the sale either of a
Luna moth or of a minivan. If the seller testified that it
was a minivan, and his testimony was discredited, the
trier of fact could infer that the object that had been
sold was the moth, for there would be no alternative
hypothesis. United States v. Hyde, 448 F.2d 815, 831-32 (5th
Cir. 1971), discussed a situation in which it was known
that one of two criminal defendants was guilty of a
crime, so proof of one defendant’s guilt exonerated the
other. And Clausen v. M/V New Carissa, 339 F.3d 1049, 1057
(9th Cir. 2003), allowed evidence of “differential diagno-
sis,” a technique for identifying the cause of a medical
problem by eliminating all the alternative possible causes.
The falsity of the defendant’s testimony makes rea-
sonably clear that the $765 was proceeds of an illegal
No. 08-1124 15
transaction of some sort, but does not show that it was
proceeds from selling crack. For all one knows, the defen-
dant sold other illegal drugs (he had been convicted in
the past of possession of marijuana) or other contraband,
such as guns, but did not want to acknowledge other
illegal behavior, which he might have thought would
get him into even worse trouble than he was in.
In this case as generally, the fact that a witness lies about
one thing doesn’t automatically invalidate all his testi-
mony. E.g., United States v. Reed, 297 F.3d 787, 789 (8th Cir.
2002); United States v. Urban, 404 F.3d 754, 782 (3d Cir.
2005); Janigan v. Taylor, 344 F.2d 781, 784 (1st Cir. 1965). The
maxim falsus in uno, falsus in omnibus is no longer
followed, when understood as a rule that a trier of fact
may or must disbelieve the entirety of a witness’s testi-
mony if he disbelieves any part of it. Kadia v. Gonzales,
501 F.3d 817, 821 (7th Cir. 2007); Allen v. Chicago Transit
Authority, 317 F.3d 696, 703 (7th Cir. 2003); Piraino v.
International Orientation Resources, Inc., 137 F.3d 987, 991
n. 2 (7th Cir. 1998); Lambert v. Blackwell, 387 F.3d 210, 256
(3d Cir. 2004); United States v. Weinstein, 452 F.2d 704, 713-
14 (2d Cir. 1971). As we explained in the Kadia case,
“anyone who has ever tried a case or presided as a judge
at a trial knows that witnesses are prone to fudge, to
fumble, to misspeak, to misstate, to exaggerate. If any
such pratfall warranted disbelieving a witness’s entire
testimony, few trials would get all the way to judgment.”
501 F.3d at 821.
Rather, the trier of fact must consider whether, as in
United States v. Connolly, 504 F.3d 206, 215-16 (1st Cir.
16 No. 08-1124
2007), particular falsehoods in a witness’s testimony so
undermine his credibility as to warrant disbelieving
the rest of his testimony—or a critical part, such as, in
the present case, the defendant’s denial that the cash
found on him when he was arrested was the proceeds of
a sale of crack. It thus is only the automatic inference
from disbelief in one part of a witness’s testimony to
disbelief in the rest that the modern cases reject, with the
occasional exception, such as United States v. Jackson, 3
F.3d 506, 510-11 (1st Cir. 1993), which upheld the
district judge’s inferring that cash was proceeds of a sale
of cocaine because he disbelieved evidence that it had a
legal source. But Jackson is inconsistent with United
States v. Sandridge, 385 F.3d 1032, 1037-38 (6th Cir. 2004),
which rejected this form of automatic inference.
The district judge gave no reason for his belief that the
$765 had to be proceeds of selling crack. It’s not as if
$765 were the “list price” of some standard quantity of
crack. There was no evidence of that. Neither, as in
United States v. Sepulveda, 102 F.3d 1313, 1317-19 (1st Cir.
1996), were marked bills from a known drug transaction
found. Nor, as in United States v. Keszthelyi, 308 F.3d 557,
577-78 (6th Cir. 2002), was the amount of money found
so great that, given the defendant’s financial circum-
stances, it could have derived only from selling crack.
There is a further problem. The $765 may have been
money that the defendant had been paid by Beagle for
previous sales, in which event there was double counting,
because the entire estimated quantity of the crack that
he had sold Beagle previously was separately counted
No. 08-1124 17
in figuring his sentence (the 10 grams we mentioned).
The government argues that since Beagle had dealt with
the defendant for only five months, but the defendant
admitted having dealt crack for at least eight months, his
“history of selling crack cocaine includes at least three
months without any sales to Beagle—thus ensuring that
the $765 did not represent the proceeds of crack sales
to Beagle” (emphasis in original). But $765 in cash is
unlikely to have been sitting in the defendant’s pocket
for months on end.
Now that the sentencing guidelines are advisory
rather than mandatory, the judge might have given the
defendant the same sentence irrespective of the source
of the $765. The judge knew that the defendant had
been a dealer for at least eight months, that he had cus-
tomers other than Beagle, and that only the quantities
sold to Beagle had been accounted for. Because “in
arriving at its factual findings, the district court may
rely on any evidence bearing sufficient indicia of reli-
ability,” United States v. James, 487 F.3d 518, 529 (7th Cir.
2007), he could infer that the defendant’s sales to those
customers during that period had amounted to at least
12.75 grams. And when the defendant was arrested, he
had 17 grams with him. Although this was the
quantity Beagle had ordered, it greatly exceeded the
usual quantity he would sell to Beagle. But it shows that
the defendant had access to considerable quantities of
crack, and if anything it is unlikely that he would have
sold a total of only 12.75 grams to multiple customers
over a three-month period.
18 No. 08-1124
So the judge could have assumed that the 12.75 grams
derived from earlier sales of crack, without basing the
assumption on the $765; and even if he had excluded
12.75 grams in calculating the guidelines sentencing
range, he might have decided to sentence the defendant
as severely as he did. So if we were certain or nearly
so that the judge would not have imposed a lower sen-
tence even if he had drawn no inference from the
$765, there would be no point in remanding the case for
a new sentencing hearing. But we lack that confidence.
The judge must have thought the 12.75 grams material;
why else say as he did that he was crediting the
presentence investigation report’s calculation? And he
derived the figure from the $765. Without that quantity
of grams as relevant conduct, the defendant’s sen-
tencing range would have dropped to 87 to 108 months,
though this assumes that the judge in figuring the sen-
tence used the estimate of drug quantity in the presen-
tence investigation report (39.75 grams, which included
the 12.75 grams in question).
Although the judge said that he “could easily and
conservatively estimate that the amount of crack was
between 35 and 50 grams,” the sentence that he im-
posed—a sentence at the very bottom of what he
thought the guidelines sentencing range was—suggests
that he thought the lower end of the 35- to 50-gram
range a better estimate of the quantity of crack sold
by the defendant. His decision to impose the
minimum guidelines sentence suggests a lean toward
lenity, making it difficult to predict the outcome of a
new sentencing hearing. In Gall v. United States, 128 S. Ct.
No. 08-1124 19
586, 597 (2007), the Supreme Court instructed that in
reviewing a sentence the court of appeals “must first
ensure that the district court committed no significant
procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range.” We
cannot be confident that the judge did not commit a
significant error of that kind. We therefore order the
sentence vacated and the case returned to the district
court for a further sentencing hearing. The conviction,
however, is affirmed.
A FFIRMED IN P ART,
V ACATED IN P ART, AND R EMANDED.
9-14-09