United States v. Dwayne Garrett ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-1182
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DWAYNE GARRETT,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 08 CR 401 — James B. Zagel, Judge.
____________________
ARGUED SEPTEMBER 17, 2013 — DECIDED JUNE 26, 2014
____________________
Before WILLIAMS, SYKES, and TINDER, Circuit Judges.
WILLIAMS, Circuit Judge. Dwayne Garrett was found
guilty of possessing with intent to distribute 50 or more
grams of crack cocaine and sentenced to 190 months in pris-
on. He appeals both his conviction and sentence.
We reject Garrett’s argument that the district court erred
in denying his motion to suppress alleged post-arrest state-
ments and information recovered from the search of his cell
phone. He claims that the post-arrest statements were inad-
missible, but phone calls intercepted by law enforcement of-
ficials, eyewitness testimony, and the recovery of a large
amount of money and drugs establish that officers had
2 No. 13-1182
probable cause to arrest him. Garrett also contends that law
enforcement officials did not have his consent to search the
contents of his phone, but the district court reasonably found
that Garrett consented to the phone search and properly de-
nied his motion to suppress.
Garrett’s argument that it was error to allow the investi-
gating agent to testify as an expert in the drug trade also
fails because the judge did not permit the parties to refer to
the officer as an expert before the jury. In addition, he cannot
prevail on his assertion that the court erred by instructing
the jury not to consider Garrett’s potential punishment be-
cause the court did not misstate the law or mislead the jury
in understanding its role. Similarly, his attack on the jury’s
special verdict form also fails because the use of the outdat-
ed form did not prejudice him since he received the benefit
of the Fair Sentencing Act’s reduced penalties at sentencing.
However, we do agree with Garrett’s argument that the
district court erred in calculating the appropriate Guidelines
range for Garrett’s drug offense because the court did not
clearly state the drug quantity that it found attributable to
Garrett or adequately indicate the evidence it found reliable
in determining his relevant conduct.
For these reasons, we affirm Garrett’s conviction, but va-
cate his sentence and remand for resentencing.
I. BACKGROUND
As part of a drug investigation that began in April 2007,
federal law enforcement officials from the Bureau of Alco-
hol, Tobacco, Firearms, and Explosives (“ATF”) tracked the
drug activities of Isaiah Hicks. These activities led them to
the defendant, Dwayne Garrett, who, during an intercepted
phone call on March 2, 2008, ordered a “nine,” meaning nine
ounces of crack cocaine, that was “all the way dry.” Based on
this conversation, the agents expected the exchange to occur
the following day. ATF agents also received a tip that a drug
No. 13-1182 3
transaction involving a purple Chrysler Concorde was going
to take place in the parking lot of a pizza restaurant on Chi-
cago’s South Side.
The next day, in addition to continuing to intercept
phone calls between Garrett and Hicks, ATF agents and of-
ficers from the Cook County Sheriff’s Police Department
(“CCSPD”) staked out the pizza place and surrounding area.
Garrett made another call to Hicks to confirm that he was on
his way to “the restaurant” and “ready for him.” Garrett
pulled into the parking lot of the pizza place with his co-
defendant, Patrick Jones, in Garrett’s purple Chrysler Con-
corde. After a detour and another call to Hicks, Garrett and
Jones returned to the parking lot where ATF Special Agent
Jeffrey Sisto saw another man enter the backseat of the car,
hand a plastic bag to Garrett and Jones, and leave. About
one minute later, Hicks called Garrett to ask if he was
pleased with the drugs and Garrett indicated that he was.
Garrett drove away from the restaurant, eventually
pulled over, and let Jones out. At that point, two CCSPD of-
ficers, who had been following Garrett, approached his car,
searched him, and found about $1,100 in cash and a cell
phone. They also found another phone in the car’s console.
Meanwhile, ATF Special Agents Hamilton Beal and Lee Casa
followed Jones, donning gear marked “police.” Agent Beal
testified that once Jones realized agents were pursuing him,
Jones ran down an alley and threw several plastic baggies
containing a white substance into the backyard of a house.
After catching Jones, the agents recovered three plastic bags
of crack cocaine from the backyard of that house and arrest-
ed both Jones and Garrett. According to Agent Beal, he ad-
vised Garrett of his Miranda rights en route to the Maywood
Sheriff’s Office. Agent Labno indicated that he interviewed
Garrett within two hours of his arrest as well as the follow-
ing day, March 4.
4 No. 13-1182
Garrett was indicted, along with more than two dozen
co-defendants, and charged with possession with intent to
distribute 50 or more grams of crack cocaine and using a cell
phone in furtherance of that crime. In pre-trial proceedings,
the district court found that there was probable cause to ar-
rest Garrett and denied Garrett’s motion to suppress his
post-arrest statements made to law enforcement officials on
March 3. So at trial, Agent Labno testified that Garrett
waived his Miranda rights and admitted that earlier that day
Hicks sold him nine ounces of cocaine packaged in four plas-
tic bags. Agent Beal testified that, based on that information,
he went back to the house where Jones had tossed the bag-
gies and found a fourth plastic bag containing cocaine. The
four baggies contained a total of 241 grams of crack cocaine.
Agent Labno also testified that Garrett consented to a search
of his cell phone, which contained Hicks’s phone number.
Although Garrett claimed he did not give consent, the court
had previously credited Agent Labno’s version of the events,
and the government offered this evidence at trial in support
of its argument that Garrett used a cell phone to buy drugs
from Hicks.
In addition to his lay testimony, the government also
sought to have Agent Labno testify as an expert in the field
of narcotics. Garrett moved to exclude the expert testimony,
but the court denied the motion, finding “nothing about the
nature of [Agent Labno’s] specific testimony in this case that
constitutes opinion evidence that is going to have any bear-
ing on his fact testimony.” The court did, however, caution
the parties not to refer to Agent Labno as an expert in the
presence of the jury, and they complied, only referring to his
expert testimony as “opinion” testimony. The judge also re-
ferred to Agent Labno’s expert testimony as opinion testi-
mony in his instructions to the jury. As a result, Agent Lab-
no was never called an expert in the jury’s presence. During
the expert portion of his testimony, Agent Labno discussed
No. 13-1182 5
general terminology and common practices in the crack co-
caine drug trade.
At the close of trial, the court instructed the jury not to
consider or discuss the sentence that might result from their
verdict. The district judge reiterated that, while it was the
jury’s job to determine whether Garrett was guilty, the ques-
tion of punishment should be left for his consideration alone.
The judge warned the jury not to speculate about the pun-
ishment or allow it to enter into its considerations or discus-
sions at any time.
The jury was given a special verdict form with instruc-
tions to determine, in addition to the question of guilt,
whether Garrett possessed with the intent to distribute a
measurable amount but less than five grams, at least five
grams but less than fifty grams, or fifty or more grams of
crack cocaine. Having heard evidence of the 241 grams of
crack cocaine the agents recovered on March 3, the jury se-
lected the box indicating that it found Garrett possessed and
intended to distribute 50 or more grams of crack cocaine. In
addition to returning a guilty verdict on the possession
charge, the jury found Garrett guilty of using a cell phone to
facilitate the drug deal.
The details of Garrett’s alleged March 4 interview with
Agent Labno became relevant at the time of sentencing. The
government indicated that Garrett fully cooperated with law
enforcement officials during this second interview and, in
addition to giving consent to search his cell phone, added
more details to the confession he made the day before. Spe-
cifically, Agent Labno stated that Garrett admitted that be-
tween the summer of 2007 and March 3, 2008 he bought at
least two kilograms of cocaine from Hicks and sold the
drugs to Jones. The district court credited Agent Labno’s tes-
timony and, although the government did not seek to admit
this evidence at trial, Garrett’s extended drug relationship
6 No. 13-1182
with Hicks became an important factor in determining the
drug quantity attributable to Garrett’s offense.
For the conviction of possession with intent to distribute
crack cocaine, the Presentence Investigation Report (“PSR”)
calculated Garrett’s base offense level at 34 because “the
amount of cocaine base [Garrett was] known to have ob-
tained and possessed for distribution was at least 840 grams,
but less than 2.8 kilograms.” This conclusion rested solely on
Agent Labno’s statement, contested by Garrett, that Garrett
confessed to purchasing at least two kilograms of crack co-
caine from Hicks over the course of their year-long buyer-
seller relationship. The PSR also recommended a two-point
enhancement for obstruction of justice based on its finding
that Garrett gave false testimony regarding his post-arrest
statements during his suppression hearing. With an adjusted
offense level of 36 and a criminal history category of V, the
PSR calculated the advisory Guidelines range as 292-365
months’ imprisonment. The court agreed that the appropri-
ate offense level was 36, but sentenced Garrett under the
Guidelines range appropriate for an offense level of 33 after
reducing Garrett’s offense level by two levels because of “a
certain uncertainty as to the quantity in this case” and one
level from the obstruction of justice enhancement because of
its insignificance within the context of the case. But the court
did not state the exact drug quantity for which it was finding
Garrett responsible. Finally, the court reduced his criminal
history category to Category III, finding that some of Gar-
rett’s previous offenses were unrelated to the instant offense.
Based on these findings, the court calculated the appropriate
Guidelines range as 168-210 months and sentenced Garrett
to 190 months’ imprisonment on the possession conviction.
Garrett now appeals his conviction and sentence.
II. ANALYSIS
Garrett argues that the district court committed various
errors during the course of his trial and sentencing. He asks
No. 13-1182 7
us to find that the district court erred in denying his motion
to suppress his post-arrest statements and information re-
covered from his cell phone, allowing Agent Labno to testify
as an expert in the drug trade, instructing the jury not to
consider his potential sentence in determining guilt, and in
determining the appropriate sentence for his conviction. We
take each of these arguments in turn.
A. No Error in Denying Motion to Suppress Post-
Arrest Statements and Cell Phone Content
It is Garrett’s position that the statements he made to law
enforcement officials on March 3 and March 4 should not
have been admitted at trial. Garrett argues that the March 4
statements were inadmissible because they were made more
than six hours after his arrest but before he was presented to
a magistrate judge. See Fed. R. Crim. Pro. 5(a)(1) (requiring a
defendant to be taken before the appropriate judicial officer
“without unnecessary delay”); Corley v. United States, 556
U.S. 303, 322 (2009) (holding that courts must decide wheth-
er the delay beyond six hours was reasonable before admit-
ting any confession made after that period). But we need not
decide whether Garrett’s March 4 statements were admissi-
ble, since the government did not offer those statements at
trial. 1
Garrett argues that the March 3 statements were inad-
missible because, when the agents arrested him, they lacked
probable cause to believe that he was involved in criminal
activity. Here, we review the district court’s legal conclu-
sions de novo and its findings of fact for clear error. United
States v. Breland, 356 F.3d 787, 791 (7th Cir. 2004). We will not
disturb the district court’s factual findings unless we are
1 We note in passing that Garrett’s March 3 statements were made within
six hours of his arrest, so the failure to present him to a magistrate is not a
basis to exclude those statements. 18 U.S.C. § 3501(c); see Corley, 556 U.S.
at 322.
8 No. 13-1182
“left with a definite and firm conviction that a mistake has
been made.” United States v. Bass, 325 F.3d 847, 850 (7th Cir.
2003) (quoting United States v. Tilmon, 19 F.3d 1221, 1224 (7th
Cir. 1994)).
Garrett is correct that the officers were required to have
probable cause, or a reasonable belief, “in light of the facts
and circumstances within their knowledge at the time of the
arrest, that the suspect had committed or was committing an
offense.” United States v. Biggs, 491 F.3d 616, 620 (7th Cir.
2007). Absent probable cause, the arrest would not have
been warranted, and any resulting statements or evidence
would most likely be the proper subject of a motion to sup-
press. See United States v. Fields, 371 F.3d 910, 914 (7th Cir.
2004).
But we do not agree that the district court erred in find-
ing that probable cause was established by the facts in this
case. At the evidentiary hearing, law enforcement officials
testified regarding their involvement in the wiretap opera-
tion and their observance of Garrett’s illicit activities. The
joint efforts of ATF and CCSPD resulted in the interception
of several phone calls between Hicks and Garrett suggesting
a drug transaction was underway and a tip that a drug
transaction involving Garrett’s purple Chrysler Concorde
would occur at a particular pizza restaurant on March 3. On
March 3, the officers witnessed Garrett and Jones, in Gar-
rett’s purple Concorde, receive a plastic bag from a man who
entered and exited the car in the pizza place’s parking lot.
This transaction occurred minutes after Garrett told Hicks he
was “ready for him,” and was immediately followed by a
phone call by Hicks to ensure that Garrett was satisfied with
the drugs. Surely this was sufficient to raise at least a rea-
sonable suspicion—if not probable cause—that crime was
afoot, which was all that was necessary for the officers to
stop Garrett to investigate. See United States v. Johnson, 383
F.3d 538, 543 (7th Cir. 2004). The discovery of $1,100 in cash
No. 13-1182 9
on Garrett’s person provided further support for probable
cause to arrest. But any remaining doubt as to probable
cause was dispelled once Jones, right after leaving Garrett’s
car, decided to run from the officers and toss several plastic
bags with white substances over a fence. The officers did not
arrest Garrett until they recovered these plastic bags and
saw that they contained a hard, white substance that looked
like, and was later determined to be, crack cocaine. The ini-
tial stop and arrest were lawful, and Garrett was not entitled
to suppress his March 3 post-arrest statements.
Garrett’s claim that the search of his cell phone was un-
constitutional fares no better. Both Agent Labno and Garrett
testified to the events that occurred on March 4 at the sup-
pression hearing. Garrett denied consenting to Agent Lab-
no’s search of his phone, but Agent Labno testified that he
did give consent. Although Agent Labno did not state in his
formal written report that Garrett consented or include any
discussions he had with Garrett regarding his phone, he pre-
sented his notes to the court, which contained various indi-
viduals’ names and phone numbers. The court found that
Agent Labno’s notes “boosted his credibility” and, after
hearing all of the evidence, concluded that Agent Labno’s
testimony was “far more credible” than Garrett’s.
We generally defer to the district court’s credibility de-
terminations at suppression hearings because we recognize
that, “unlike our review of transcripts, the district court had
the opportunity to listen to testimony and observe the de-
meanor of witnesses.” Biggs, 491 F.3d at 621. But this defer-
ence will not insulate the ruling if the district court “credited
exceedingly improbable testimony.” Bass, 325 F.3d at 850.
This is admittedly a very demanding burden. See Biggs, 491
F.3d at 621 (holding that “determinations of witness credibil-
ity can virtually never be clear error”).
Agent Labno’s testimony did not paint an exceedingly
improbable story. There is nothing uncommon about a sus-
10 No. 13-1182
pect offering information implicating other individuals in
criminal activity in the hopes that his cooperation with law
enforcement officials will result in a more favorable prosecu-
tion for him. Agent Labno testified that Garrett consented to
a search of his phone as an act of cooperation. Garrett’s tes-
timony that he was not cooperating does not transform
Agent Labno’s reasonable account into an improbable one. It
simply forced the district court to decide which party’s tes-
timony to credit. Since Agent Labno’s version of events was
not improbable, the district court did not clearly err in cred-
iting Agent Labno’s testimony over Garrett’s and we leave
the district court’s findings undisturbed.
B. No Error in Allowing Agent Labno to Testify as Fact
and Opinion Witness
Garrett next argues that the district court should not have
admitted expert testimony from Agent Labno at trial be-
cause it was irrelevant and improperly bolstered the gov-
ernment’s case. Our review of the district court’s decision to
admit expert testimony is for abuse of discretion. United
States v. Upton, 512 F.3d 394, 401 (7th Cir. 2008).
Garrett’s objection to the testimony on relevance grounds
is without merit. We have consistently upheld prosecutors’
practice of calling expert witnesses to discuss common prac-
tices of the drug trade in cases of drug dealing. See, e.g.,
United States v. Morris, 576 F.3d 661, 673–74 (7th Cir. 2009);
Upton, 512 F.3d at 401 (discussing various cases related to
the drug trade). During his expert testimony, Agent Labno
described the characteristics of crack cocaine, the quantities
of drugs that dealers typically possess for purposes of distri-
bution, common prices for wholesale quantities of crack co-
caine, and the meaning of certain industry code words. The
topics he discussed were relevant to points at issue in Gar-
rett’s trial. In a case, like this one, where the government was
attempting to prove that the intercepted calls between Gar-
rett and Hicks concerned the coordination of a drug deal,
No. 13-1182 11
deciphering code words commonly used in the drug trade
would undoubtedly “help the trier of fact to understand the
evidence or to determine a fact in issue.” Fed. R. Evid. 702.
Information on the quantities, prices, and characteristics of
crack cocaine served the same purpose. Understanding the
drug’s characteristics would help the jury determine wheth-
er the substances presented at trial as belonging to Garrett
were indeed illegal drugs, while testimony regarding the
drug’s wholesale quantities and prices would assist the jury
in deciding whether Garrett’s activities involved the distri-
bution of drugs or simply drug possession.
Whether Agent Labno was the proper person to offer this
expert testimony is a separate question. As we have said,
“Testimony runs the risk of being overly prejudicial when,
as here, the expert witness was a law enforcement officer
who was also involved in the investigation at issue.” Morris,
576 F.3d at 675. Our concern is that “the jury may attach un-
due weight to the officer’s testimony,” United States v. Lip-
scomb, 14 F.3d 1236, 1242 (7th Cir. 1994), and “unduly credit
the witness’s fact testimony given his status as an expert,”
Upton, 512 F.3d at 401 (overruled in part on other, unrelated
grounds). The heightened reliability that jurors often attach
to expert testimony could easily lead a juror to believe that
the officer’s fact testimony must be reliable as well, and
thereby elevate that testimony to a level of credibility that it
would not otherwise enjoy. Avoiding that danger is precise-
ly why “it is a better route not to use an investigating officer
as an expert in the first place.” Id.While we caution against this practice, the district court
did not abuse its discretion in allowing the testimony in this
case. We find most persuasive the fact that the court never
referred to Agent Labno as an expert in the jury’s presence
and did not allow the parties to so refer to him. And the par-
ties only used the term “opinion testimony” in referring to
his experience and testimony regarding terminology and
12 No. 13-1182
practices of the drug trade. The judge also used the term
“opinion” testimony in each instance that he referred to
Agent Labno’s “expert” testimony before the jury. After the
proper foundation had been laid for his “expert” testimony,
the judge told the jury:
[Agent Labno] has already testified as a fact witness,
he is now going to offer opinion evidence …, and I
have permitted him, based on what you’ve just heard,
to offer such opinion evidence. I will instruct you lat-
er on the way you consider opinion testimony, in
general.
And later, at the close of trial, he gave this instruction:
You have heard witnesses give opinions about mat-
ters requiring special knowledge or skill. You should
judge their testimony in the same way that you judge
the testimony of any other witness. The fact that such
a person has given an opinion does not mean you are
required to accept it.
Clearly, Agent Labno was not referred to as an expert be-
fore the jury. Avoiding the use of the term “expert” goes a
long way in reducing the possibility that jurors will attach
“undue weight” to the testifying officer’s fact testimony and
substantially reduces any potential prejudice a defendant
may suffer from admitting fact and expert testimony from
the same officer. See United States v. Cheek, 740 F.3d 440, 447–
50 (7th Cir. 2014) (finding no error in admitting dual testi-
mony where the government “did not explicitly present [the
officer] to the jury as an expert”).
The court also took several other precautions to help the
jury distinguish between the two types of testimony. The
judge did not allow the government to lay the foundation for
Agent Labno’s expert, or opinion, testimony until after his
fact testimony was concluded. Moreover, the fact testimony
and expert testimony were, for the most part, completely
No. 13-1182 13
separate. The government specified when the fact portion of
Agent Labno’s testimony had concluded, and generally
steered clear of questions of fact during his expert testimony.
See Upton, 512 F.3d at 400–402 (finding no abuse of discretion
where a few questions were posed during the officer’s expert
testimony regarding his factual knowledge of the case). The
government’s questions regarding the meaning of code
words Garrett used during his phone calls with Hicks were
properly asked during his opinion testimony, since Agent
Labno’s understanding of these words was based on his ex-
perience in the field and not solely on his personal
knowledge of the case itself. See Cheek, 740 F.3d at 447–48
(explaining that where knowledge about the meaning of
drug code words is based on experience and expertise work-
ing in other drug cases it is expert testimony).
In addition, the court highlighted the distinction between
the fact testimony and opinion testimony in its instructions
to the jury:
You have heard the testimony of ATF Special Agent
Chris Labno, who testified to both facts and opinions.
Each of these types of testimony should be given the
proper weight.
As to the testimony to facts, consider the factors dis-
cussed earlier in these instructions … As to the testi-
mony on opinions, you do not have to accept Agent
Labno’s opinion. In deciding how much weight to
give it, you should consider the witness’s qualifica-
tions and how he reached his conclusions along with
the other factors discussed in these instructions for
weighing the credibility of witnesses.
Even though it is still possible that the in-depth foundational
questions required to qualify Agent Labno could increase, in
a juror’s mind, the reliability of his entire testimony, we find
that the many precautions the district court took to avoid the
14 No. 13-1182
potential pitfalls associated with dual testimony sufficiently
decreased any prejudice to Garrett in this case. See Upton,
512 F.3d at 401–02; United States v. Mansoori, 304 F.3d 635,
654 (7th Cir. 2002); Lipscomb, 14 F.3d at 1242 (recognizing
that the potential for undue prejudice “can be minimized by
cautionary instructions and by carefully constructed exami-
nation”). Therefore, the court did not abuse its discretion by
allowing Agent Labno to testify as both a fact and expert
witness.
C. No Error in Jury Instructions regarding its Duty or
in Special Verdict Form
Garrett next focuses on the court’s jury instructions, ar-
guing that the instruction not to speculate on the punish-
ment that would result from a guilty verdict was misleading.
While we conduct de novo review of questions of law un-
derlying the district court’s jury instructions, “the district
court is afforded substantial discretion with respect to the
precise wording of instructions so long as the final result,
read as a whole, completely and correctly states the law.”
United States v. DiSantis, 565 F.3d 354, 359 (7th Cir. 2009) (ci-
tations omitted). So we will only reverse if the instructions
mislead the jury by failing to correctly and sufficiently in-
form the jury of the applicable law and of its duty to deter-
mine the issues presented in the case. See United States v. Jav-
ell, 695 F.3d 707, 714 (7th Cir. 2012) (citations and quotations
omitted); DiSantis, 565 F.3d at 359 (citing United States v. Ma-
doch, 149 F.3d 596, 599 (7th Cir. 1998)).
Here, the court instructed the jury as follows:
If you find the defendant guilty, it will then be my
duty to decide what punishment should be imposed.
In considering the evidence and arguments that have
been given during the trial, you should not guess or
speculate about the punishment. It should not enter
into your consideration or discussions at any time.
No. 13-1182 15
Garrett argues that this instruction was misleading because
the jury was, in fact, being asked to determine drug quanti-
ties, and its determinations could trigger a mandatory min-
imum punishment. His argument is without merit. We read
the court’s instruction as informing the jury to focus on
questions of guilt and leave the matter of punishment for the
judge to determine. This instruction aligns with the principle
that determining the appropriate sentence upon conviction
is fully within the province of the judge, not the jury, a prin-
ciple supported by our case law. “Juries are not to consider
the consequences of their verdicts.” United States v. Diekhoff,
535 F.3d 611, 621 (7th Cir. 2008) (citing Shannon v. United
States, 512 U.S. 573, 579 (1994)). Indeed, “[t]he jury’s finding
of facts and application of those facts to the law just do not
require it to ponder what the ultimate sentence will be.” Id.Nor does Garrett suggest, in his bare bones argument,
that the government made any statement before the jury that
misrepresented the consequences of returning a guilty ver-
dict. Therefore, the exception to the general rule that the sen-
tence does not concern the jury does not apply here. See id.(noting an exception to the general rule “where there is a
danger that the jury has been misled regarding the conse-
quences of its verdict”). So we find no error in the district
court’s instructions, and decline Garrett’s invitation to re-
verse.
We also find no support for Garrett’s argument that the
district court erred in giving the jury a special verdict form
with outdated drug quantities because the error did not re-
sult in any prejudice against Garrett. Garrett’s offense oc-
curred at a time when conviction for possession with the in-
tent to distribute between five and 50 grams of crack cocaine
carried a mandatory minimum sentence of five years’ im-
prisonment and 50 or more grams of crack cocaine required
ten years’ imprisonment. See 21 U.S.C. §§ 841(b)(1)(A)(iii),
(b)(1)(B)(iii) (2006 ed.). But the Fair Sentencing Act of 2010
16 No. 13-1182
(“FSA” or “Act”) increased the threshold amounts of cocaine
base required to trigger statutory minimum penalties to 28
grams for five years’ imprisonment and 280 grams for ten
years’ imprisonment. See 21 U.S.C. §§ 841(b)(1)(A)(iii),
(b)(1)(B)(iii) (2010). At the time of Garrett’s conviction, courts
of appeals were divided on whether the FSA’s more lenient
penalties applied to defendants whose conduct occurred be-
fore the Act’s passage but who were sentenced after its en-
actment. The Supreme Court clarified in Dorsey v. United
States, 132 S. Ct. 2321, 2331 (2012), that the FSA applied to all
offenders sentenced after its effective date, even if their con-
duct preceded the Act.
The district court did not have the benefit of Dorsey when
it rejected Garrett’s special verdict form that proposed re-
placing the drug quantities that previously triggered manda-
tory minimums (5 and 50 grams) with the FSA’s amended
minimums (28 and 280 grams). Hindsight tells us that Gar-
rett was right to propose a verdict form that reflected the
drug quantities applicable under the FSA, but he did not suf-
fer any harm from the error. At sentencing, the court agreed
that the mandatory minimum was five years based on the
jury’s finding that Garrett was guilty of possessing with the
intent to distribute 50 grams or more of crack cocaine. Since
only 28 grams are required to trigger that five year mini-
mum under the FSA, and the jury found him guilty of at
least 50 grams, Garrett received the benefit of the FSA’s
more lenient penalty provisions and was not prejudiced by
the outdated special verdict form.
D. Sentencing Error in Not Making Explicit Drug
Quantity Finding
We come to a different conclusion regarding the district
court’s process for calculating Garrett’s advisory Guidelines
sentence. Garrett asserts that the district court erred in hold-
ing him responsible for at least 840 grams but less than 2.8
kilograms of cocaine base without first making a drug quan-
No. 13-1182 17
tity finding. We conduct clear error review of the district
court’s factual findings regarding the drug quantity in-
volved in Garrett’s offense. United States v. Krasinski, 545
F.3d 546, 551 (7th Cir. 2008).
As part of Gall’s two-step process, the trial court must
first correctly calculate the defendant’s Guidelines range.
Gall v. United States, 552 U.S. 38, 49 (2007). An essential part
of that calculation is determining the offender’s base offense
level. United States v. Claybrooks, 729 F.3d 699, 706 (7th Cir.
2013). Since for drug crimes, “a defendant’s base offense lev-
el is largely a function of the amount of drugs involved in
his offense,” sentencing courts are required to explicitly state
their drug-quantity findings in arriving at the appropriate
sentence. Id. Otherwise, the reviewing court is left without
any basis to determine whether the sentencing court proper-
ly executed its duty under the first prong of Gall’s two-
pronged mandate.
Our review is stymied because the court did not make a
clear finding as to the quantity of drugs it found attributable
to Garrett. It is undisputed that the evidence at trial con-
cerned approximately 241 grams of cocaine. Adopting this
quantity would have resulted in a base offense level of 30.
But the sentencing court can increase a defendant’s sentence
based on other relevant conduct not proven at trial, such as
the amount of drugs attributable to defendant, so long as
that conduct is proven by a preponderance of the evidence.
See United States v. Johnson, 342 F.3d 731, 734 (7th Cir. 2003).
The court is not limited by the rules of evidence at sentenc-
ing, but the evidence considered in determining the drug
quantity attributable to the defendant must carry indicia of
reliability. United States v. Westmoreland, 240 F.3d 618, 630
(7th Cir. 2001). The PSR, relying on Agent Labno’s statement
that Garrett admitted to purchasing at least two kilograms of
cocaine from Hicks, concluded that Garrett was responsible
for at least 840 grams but less than 2.8 kilograms, resulting in
18 No. 13-1182
a base offense level of 34. The PSR then applied a two-level
enhancement for obstruction of justice for a final offense lev-
el of 36. The court, at sentencing, stated its belief that 36 was
the appropriate offense level. But it never gave any indica-
tion of the drug quantity for which it found Garrett person-
ally responsible.
Had the district court indicated that it found the PSR re-
liable, stated why, and adopted the PSR’s finding that Gar-
rett distributed at least two kilograms of crack cocaine, we
would have a different record before us. “We have long held
that a district court may rely on factual information con-
tained in a PSR so long as it bears sufficient indicia of relia-
bility.” United States v. Davis, 682 F.3d 596, 613 (7th Cir.
2012). The court would have been within its discretion to
conclude that the PSR’s findings, based on Agent Labno’s
testimony that Garrett admitted possessing two kilograms of
cocaine, were more reliable than Garrett’s unsupported
word that he did not. Garrett’s denial alone would not nec-
essarily render the PSR’s factual finding unreliable. See id.(finding that a defendant’s mere denial must be supported
by some evidence to cast doubt on the PSR’s reliability). It
would only require the court to make a credibility determi-
nation. United States v. Contreras, 249 F.3d 595, 602 (7th Cir.
2001) (affirming the finding that the law enforcement of-
ficer’s statement was reliable even in the absence of corrobo-
rating evidence and in the face of defendant’s denial).
At first glance, it appears that the district court did just
that by stating its belief that “the offense level is properly
calculated at 36.” Sen. Tr. 16. But the court never specified
the drug quantity it used to arrive at that conclusion or stat-
ed that it was adopting the PSR’s findings. To the contrary,
the judge expressed concern that the appropriate drug quan-
tity was unclear. Highlighting the lack of “specifics of the
admissions or its context” in Agent Labno’s report, the judge
found “a certain uncertainty as to the quantity in this case.”
No. 13-1182 19
Id. at 41. We cannot conclude that the court adopted the
PSR’s factual findings when it cast such doubt on the relia-
bility of the evidence the PSR used. See Claybrooks, 729 F.3d
at 707 (declining the invitation to find the district court
adopted the PSR when the district court questioned the reli-
ability of the information on which the PSR relied).
It is true that a sentencing court may, based on the pre-
ponderance of the evidence, reasonably estimate the drug
quantity that applies to a defendant’s offense. Krasinski, 545
F.3d at 551–52. But this does not mean that the court should
leave the drug quantity undetermined. United States v. Palm-
er, 248 F.3d 569, 571 (7th Cir. 2001). Instead, the court must
explicitly state its drug quantity finding, id., and provide
“some description of the reliable evidence used to support
the finding and the method used to calculate it,” Claybrooks,
729 F.3d at 707.
The district court erred because it neither explicitly stated
the drug quantity it found attributable to Garrett nor pro-
vided any indication of the evidence it found reliable. If the
court did not find Agent Labno’s testimony reliable, the
government would have been left with a base offense level
of 30 instead of 34. Using the same criminal history category
of III that the district court used but not accounting for the
application of the obstruction of justice enhancement (which
may have been affected by the district court’s drug quantity
finding), this change alone would have been the difference
between a Guidelines range of 188-235 months versus one of
121-151 months’ imprisonment. The government gives us no
reason to believe that the district court would have given
Garrett the same 190-month sentence if it had made a drug
quantity finding, and we do not find the court’s error to be
harmless. See United States v. Abbas, 560 F.3d 660, 667 (7th
Cir. 2009) (finding that proving harmless error requires the
government to show “that the Guidelines error did not affect
the district court’s selection of the sentence imposed”).
20 No. 13-1182
Therefore, we vacate Garrett’s sentence and remand the case
for resentencing.
Garrett correctly asserts that the Supreme Court’s deci-
sion in Alleyne v. United States means that, irrespective of the
drug quantity the court finds attributable to Garrett on re-
mand, the mandatory minimum sentence applicable to his
conviction must be based on the jury’s finding. See 133 S. Ct.
2151, 2163 (2013) (demanding that any fact, other than a pri-
or conviction, that increases the mandatory minimum pun-
ishment for an offense must be submitted to a jury);
Claybrooks, 729 F.3d at 708. After Alleyne, the sentencing
court is no longer in a position to increase the mandatory
minimum applicable to Garrett through its own drug quanti-
ty findings. See Claybrooks, 729 F.3d at 708 (“The district
judge cannot raise the mandatory sentencing floor based on
its own determination that [defendant’s] offense involved
additional amounts of narcotics beyond those determined by
the jury.”). The jury found that Garrett’s offense involved at
least 50 grams of crack cocaine, which normally triggers a
mandatory minimum sentence of five years’ imprisonment.
See 21 U.S.C. § 841(b)(1)(B)(iii) (2010). So even if the court
finds that Garrett was responsible for at least two kilograms
of crack cocaine (which corresponds with a mandatory min-
imum sentence of ten years, see 21 U.S.C. § 841(b)(1)(A)(iii)),
this finding could have no effect on Garrett’s mandatory
minimum sentence. See United States v. Hernandez, 731 F.3d
666, 672 (7th Cir. 2013) (affirming district court’s drug quan-
tity finding because it was not used to increase defendant’s
statutory mandatory minimum); see also Claybrooks, 729 F.3d
at 708.
But that will not limit the court’s sentencing hand as
much as Garrett hopes. Alleyne does not require the fact of a
prior conviction to be found by a jury. 133 S. Ct. at 2160 n. 1;
see United States v. Boyce, 742 F.3d 792, 799 (7th Cir. 2014). So
while Alleyne’s holding shields defendants from being sub-
No. 13-1182 21
ject to heightened mandatory minimum sentences based on
a judge’s drug quantity finding, it does nothing to protect
defendants from an increased mandatory minimum sentence
based on a prior conviction. The statutorily required mini-
mum penalty mandated by section 841(b)(1)(B) increases to
ten years’ imprisonment for defendants previously convict-
ed of a felony drug offense, id., and Garrett was convicted of
a felony drug offense in 1993. He tries to challenge the use of
this conviction as a basis for increasing his mandatory min-
imum under section 841(b)(1)(B) by contesting its validity,
but section 851 bars his attempted collateral attack. See 21
U.S.C. § 851(e) (“No person who stands convicted of an of-
fense under this part may challenge the validity of any prior
conviction alleged under this section which occurred more
than five years before the date of the information alleging
such prior conviction.”). Despite his arguments to the con-
trary, Garrett’s 1993 conviction qualifies as a proper basis to
increase his mandatory minimum sentence to ten years’ im-
prisonment. See § 841(b)(1)(B)(iii).
Garrett is also incorrect if he thinks Alleyne will necessari-
ly save him from receiving the same, or even a higher, sen-
tence upon remand. Though it can have no impact on his
mandatory minimum or maximum sentence, the court’s
drug quantity finding becomes relevant in helping the court
determine Garrett’s Guidelines sentence. See Alleyne, 133 S.
Ct. at 2163 (reiterating that trial courts’ “broad sentencing
discretion” can continue to be “informed by judicial factfind-
ing” without conflicting with the Sixth Amendment); id.(“Our ruling today does not mean that any fact that influ-
ences judicial discretion must be found by a jury”); United
States v. Valdez, 739 F.3d 1052, 1054 (7th Cir. 2014) (finding
that district court’s calculation of “a greater drug quantity
solely for purposes of determining [defendant’s] Guideline
range” did not run afoul of Alleyne). Alleyne, and its prede-
cessor Apprendi v. New Jersey, only limit the judge’s discre-
22 No. 13-1182
tion to the extent that he may not sentence a defendant be-
low the mandatory minimum or beyond the mandatory
maximum established based on the jury’s findings, which in
this case, given Garrett’s prior felony drug conviction, is life
imprisonment. See § 841(b)(1)(B)(iii); see generally 133 S. Ct.
2151; 530 U.S. 466 (2000).
Since we find that the district court did not first ade-
quately calculate the appropriate Guidelines range, we do
not reach Gall’s second step. Our inquiry ends here because
the correct Guidelines sentence “provides the launching
point for our review under Gall’s [second,] substantive rea-
sonableness prong.” Abbas, 560 F.3d at 667. However, we
acknowledge the district court’s broad discretion to deter-
mine a reasonable sentence that may deviate from the ap-
propriately determined advisory Guidelines range upon
consideration of the § 3553(a) factors. Spears v. United States,
555 U.S. 261, 264–65 (2009); United States v. Booker, 543 U.S.
220, 245–46 (2005); United States v. Prado, 743 F.3d 248 (7th
Cir. 2014). The judge’s consideration of these factors may re-
sult in a downward or upward deviation from the Guide-
lines sentence and nothing in our opinion is intended to
suggest that the district court may not settle on the same sen-
tence upon review. But this discretion only kicks in once the
appropriate Guidelines range has been determined. See Unit-
ed States v. Boroczk, 705 F.3d 616, 622 (7th Cir. 2013); United
States v. Avila, 465 F.3d 796, 798–99 (7th Cir. 2006) (recogniz-
ing that the judge may come to the same sentencing conclu-
sion after considering various factors, but remanding for the
court to first determine the correct Guidelines range before
choosing a reasonable sentence).
III. CONCLUSION
We AFFIRM Garrett’s conviction but VACATE his sentence
and REMAND for resentencing consistent with this opinion.