United States v. Parnell Gulley , 722 F.3d 901 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3411
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
P ARNELL G ULLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 08 CR 20057—Michael P. McCuskey, Judge.
A RGUED A PRIL 8, 2013—D ECIDED JUNE 17, 2013
Before E ASTERBROOK, Chief Judge, and B AUER and
S YKES, Circuit Judges.
B AUER, Circuit Judge. Government agents set up
a crack cocaine deal between a confidential inform-
ant (CI), Anthony Heard, and a known crack dealer,
Pierre Blake. On October 21, 2008, Heard drove to the
meeting place wired with a concealed video and audio
recording device. The recorder, for all intents and pur-
poses, captured Parnell Gulley—Blake’s faithful driver—
2 No. 11-3411
getting into Heard’s car and exchanging a bag of crack
cocaine for $200. Gulley was indicted on one count of
knowingly and intentionally distributing 5 or more
grams of a mixture and substance containing crack
cocaine, in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(B).
The case proceeded to trial, which ended in a hung jury.
At the re-trial, Gulley’s counsel argued that Gulley did
not “knowingly or intentionally” deliver a controlled
substance in violation of the relevant statutes; the jury
disagreed and found him guilty.
During the second trial, the government presented
testimonial evidence that Gulley admitted to driving
Blake to a drug deal with Heard that occurred two days
after the charged offense. The government also pre-
sented Gulley’s admission that he knew Blake was a
crack dealer, that he frequently drove Blake around, and
that he had previously made a “delivery” for Blake.
This was in addition to evidence that crack cocaine,
ecstasy, and a firearm were found at Blake’s stash house
on the day he and Blake were arrested. Gulley did not
object to this testimony at trial, but he now contends
the evidence should have been excluded under Federal
Rule of Evidence 404(b).
At Gulley’s sentencing hearing, the district judge sen-
tenced Gulley to 327 months in prison, followed by an
8-year term of supervised release. In imposing his sen-
tence, the district judge explained that our precedent
prohibited retroactive application of the Fair Sentencing
Act of 2010 (FSA); that precedent has since been over-
turned. Gulley argues that he should be resentenced in
No. 11-3411 3
accordance with the FSA while the government
contends that any error regarding his prison term was
harmless. The parties agree that we should vacate the
supervised release term.
For the reasons that follow, we affirm Gulley’s convic-
tion but vacate his sentence and remand for resentencing.
I. BACKGROUND
Heard began working as a CI for the Champaign,
Illinois Police Department in 2008. The department origi-
nally arrested Heard in connection with an investiga-
tion into the sale of crack cocaine in the area, and Heard
agreed to cooperate as a CI in exchange for leniency.
In October 2008, the Champaign Police Department
began an investigation into the crack cocaine dealings of
a man known to Heard as “K.D.”—he was also known
as “Church” and was later identified as Blake. On the
morning of October 21, Heard placed several recorded
calls to Blake’s phone to arrange a controlled buy of
crack cocaine. A time, place, and price were agreed
upon. Two people were on the other end of the phone
calls at various times: Blake and an unknown male
voice, later identified as Gulley, Blake’s driver and as-
sociate. DEA Special Agent Pablo Ramos and
Officer Matthew Henson were present when Heard
made the calls.
Later that day, Heard was wired with a hidden
video and audio recording device to document the
planned transaction. After being equipped with the
4 No. 11-3411
device, Heard drove to the Country Brook Apartments
in Champaign, Illinois, where he parked his car, exited
the vehicle, and casually waited in the parking lot.
Special Agent Ramos and Officer Henson followed
Heard’s car to the meeting place but, once they got close,
kept at bay because other law enforcement person-
nel—DEA Task Force Agent Jack Turner, Officer Jaceson
Yandell, and another officer—were already in the im-
mediate area conducting surveillance.
Gulley, who at the time was still unknown to Heard
and the officers involved, walked out of the complex and
spoke to Heard shortly after Heard arrived. The two
men got into Heard’s car and, according to Heard,
Gulley placed a clear plastic baggy containing crack
cocaine on the armrest. Heard then gave Gulley $200
in cash, the amount the parties had agreed on. The
video recording does not show Gulley’s face inside the
car, the bag of drugs, or the money changing hands, but
the audio recorder captured Gulley’s voice as he
counted the cash. The audio recorder also captured
Heard asking Gulley about purchasing a “six-
trey”—63 grams of crack cocaine or one-sixteenth of a
kilogram—and whether Blake could come outside to
talk. At that time, Gulley got out of the car and went
inside the apartment complex. Blake walked outside
about a minute later with cocaine residue on his hands
and clothing, and he and Heard spoke about future
crack cocaine transactions. Blake said he would charge
$1,500 to $1,600 for a 63-gram deal.
Heard then left the apartment complex and drove to
his agreed-upon meeting location with law enforcement
No. 11-3411 5
personnel. Once there, Heard gave Special Agent Ramos
and Officer Henson the bag he received from Gulley,
which contained 6.8 grams of crack cocaine.
Two days later, on October 23, Heard arranged to
purchase 63 grams of crack cocaine from Blake, a sig-
nificantly larger amount than the first buy. Officers
parked a video-surveillance van near the residence
where Blake stayed with his girlfriend in Champaign,
which was a short distance away from the Country
Brook Apartments. The surveillance captured Gulley
and Blake leaving the residence, getting into a car, and
driving to the Country Brook Apartments at approxi-
mately 2:35 p.m. Gulley was the driver; Blake sat in
the front passenger seat. This information was relayed
to other agents and officers involved in the investiga-
tion who were standing by at other posts. Heard, again
equipped with a video-audio recording device, drove
to the Country Brook Apartments at approximately
the same time as Gulley and Blake.
At the apartment complex, Blake gave Heard a bag
containing 60.7 grams of crack cocaine in exchange for
$1,500. Heard then left the apartment complex and de-
livered the “goodies” to Special Agent Ramos and
Officer Yandell. Surveillance captured Gulley and Blake
returning to the residence Blake shared with his girl-
friend at about that same time.
On October 31, officers secured and executed warrants
to search, first, an apartment in the Country Brook Apart-
ments complex—Blake’s stash house—and, second, the
residence Blake shared with his girlfriend. Crack cocaine,
6 No. 11-3411
ecstasy, and a firearm were found at the stash house;
Gulley, Blake, Blake’s girlfriend, another man, and
$2,467 in cash were found at the residence. Officers
later determined that $1,700 of the cash was money
provided for the controlled buys. Gulley was arrested
and taken to the police station.
Gulley waived his Miranda rights at the station and
told Officer Yandell and Officer Henson that he was
unemployed and on parole. He initially told the officers
that he had no knowledge of or involvement in Blake’s
drug-dealing operation but admitted upon further ques-
tioning that Blake did not have a driver’s license; that
he drove Blake around to deliver cocaine, including
driving Blake to Chicago to pick up 9 ounces of cocaine
a few days before his arrest; that Blake kept cocaine at
an apartment in the Country Brook Apartments; and
that Blake sold cocaine in quantities of more than
3.5 grams. The interview was not recorded.
On November 18, 2008, Gulley was indicted on one
count of knowingly and intentionally distributing 5 or
more grams of a mixture and substance containing
crack cocaine, in violation of 21 U.S.C. §§ 841(a) and
841(b)(1)(B), for his conduct on October 21, 2008.
On January 6, 2009, Gulley agreed to cooperate with
the government in exchange for a grant of direct use
immunity. The agreement required him to provide
“complete and truthful” information regarding his
criminal conduct.
In accordance with the agreement, Gulley spoke, with
his attorney present, to Task Force Agent Turner and
No. 11-3411 7
Officer Yandell on February 2, 2009. Gulley admitted
to driving Blake around and being aware of Blake’s drug-
dealing venture: he explained that Blake received ap-
proximately 63 grams at a time, two to three days a
week, and that Blake described his apartment at the
Country Brook Apartments as his “stash house.” More
significantly, Gulley admitted that, on one occasion,
Blake had given him a “bag” at the apartment complex
and told him to deliver it to someone in the parking lot
in exchange for $200. Gulley stated that he was drunk
at the time and did not know what was in the bag. Addi-
tionally, Gulley admitted to selling cocaine for Blake
“on one occasion,” though he did not articulate a
specific date or time.
The government prosecutor contacted Gulley’s at-
torney on August 13, 2010, to discuss Gulley’s partic-
ipation at Blake’s upcoming trial. Four days later, on
August 17, the government was informed that Gulley
would no longer cooperate—Gulley told his attorney
that the government could dismiss the charge against
him or proceed to trial. Gulley did not testify at Blake’s
trial, and the government considered that a violation
of their agreement. The district court took judicial notice
of the government’s position on October 4, 2010.
Shortly before Gulley’s first trial, the government filed
an exhibit list that included, among other things, a
video recording from the October 21 controlled buy,
surveillance video from October 23, photos taken during
the execution of the October 31 search warrants, and the
Miranda warning form from October 31. In response,
8 No. 11-3411
Gulley’s counsel filed an “Objection to Exhibits and
Instructions” that asked the court to exclude “items of
evidence that pertain to dates other than October 21,
2008,” including “videos and tapes.” Also filed was a
general, catch-all motion in limine—which we discuss
in more detail below—asking the court to exclude
evidence of “bad conduct” that occurred on “dates dif-
ferent than October 21, 2008.” The district court denied
the motion without a hearing, concluding that the
evidence referred to in the motion in limine was
relevant under Federal Rule of Evidence 401 and not
unduly prejudicial under Rule 403.
The case proceeded to trial on October 4, 2010. The
government called five witnesses—Officer Henson;
Officer Yandell; Hope Erwin, a forensic drug chemist;
Task Force Agent Turner; and Heard. Gulley called
none. The district judge declared a mistrial after the
jury said it was “hopelessly deadlocked.”
A second jury trial began on February 7, 2011. The
government called the same five witnesses; Gulley
again called none. The government witnesses testified
regarding many of Gulley’s admissions about his rela-
tionship with Blake, statements discussing crack cocaine
on the October 21 and 23 recordings, the purpose of
conducting surveillance outside the residence Blake
shared with his girlfriend, and drugs and a firearm
being found at the Country Brook Apartments stash
house on October 31. Gulley’s counsel did not object at
trial to any of this information on Rule 403 or 404(b)
grounds.
No. 11-3411 9
The jury found Gulley guilty on the single count charged.
A sentencing hearing was held in October 2011.
The Presentence Investigation Report (PSR) stated
that Gulley was a career offender, see U.S.S.G. § 4B1.1, and
had an offense level of 37 and a criminal history category
of VI. This resulted in a recommended U.S. Sentencing
Guidelines range of 360 months to life imprisonment.
Gulley objected to the PSR and asked the court to
consider the FSA, which would have resulted in an
offense level of 34—and a lower Guidelines range. The
district judge rejected Gulley’s request and accepted
the PSR because our then-precedent was that the FSA
did not apply to criminal conduct occurring before the
FSA came into effect. Ultimately, however, the judge
varied from the Guidelines range and sentenced Gulley
to 327 months’ imprisonment, followed by an 8-year
term of supervised release.
II. DISCUSSION
On appeal, Gulley finds fault with the admission
of certain evidence at trial, as well as the Guidelines
calculation the district judge relied on when sentencing
Gulley. We address each issue in turn.
A. Evidence at Trial
Gulley contends that certain testimony was inadmis-
sible under Federal Rule of Evidence 404(b) and that its
admission denied him a fair trial. A district court’s
10 No. 11-3411
decision as to the admissibility of evidence at trial is
generally reviewed for an abuse of discretion. United
States v. Collins, No. 11-3098, 2013 U.S. App. LEXIS 9721,
at *6 (7th Cir. May 15, 2013). The parties here, however,
disagree as to whether Gulley’s counsel made a proper
objection to preserve the issue for appeal; if not, the
plain error standard applies. See United States v. Wolfe,
701 F.3d 1206, 1211 (7th Cir. 2012).
We have explained that, “[i]n order to preserve a
ruling on the admission of evidence for appeal, a party
must make ‘a timely objection or motion to strike
[which] appears of record, stating the specific ground of
objection, if the specific ground was not apparent from
the context.’ ” United States v. Rollins, 544 F.3d 820, 834
(7th Cir. 2008) (quoting Fed. R. Evid. 103(a)(1)). Gulley
did not object to the testimony on Rule 404(b) grounds
at trial, but before trial, Gulley’s counsel filed a terse
motion in limine with the following language:
The Defendant asks that the Plaintiff be prohibited
from introducing testimony, videos, tapes and ex-
hibits which pertain to dates other than October 21,
2008. The Plaintiff has filed a single charge and it
should not be allowed to attempt to show other bad
conduct to prejudice the Defendant on the Indict-
ment charge.
Gulley contends this was sufficient to preserve the
issue, but the motion was devoid of the specifics neces-
sary to satisfy the requirements of Rule 103. The district
court had no way of identifying exactly what type of
“bad conduct” Gulley was referring to, when and where
it occurred, or on what grounds the motion relied. See
No. 11-3411 11
Rollins, 544 F.3d at 834 (concluding that the admission
of testimony would be reviewed for plain error because
the grounds the defendant asserted on appeal “were
neither stated specifically nor apparent from context”).
We will review the testimony at issue for plain error.
Now to the merits: Federal Rule of Evidence 404(b)
prohibits “[e]vidence of a crime, wrong, or other act . . . to
prove a person’s character in order to show that on
a particular occasion the person acted in accordance
with the character.” Nevertheless, such evidence
may be admissible for another purpose, including to
prove opportunity, knowledge, or identity. Fed. R.
Evid. 404(b)(2). In determining whether evidence was
admissible under Rule 404(b), we consider whether:
(1) the evidence was directed towards establishing a
matter at issue other than the defendant’s propensity to
commit the crime charged; (2) the evidence showed that
the other act was similar enough and close enough in
time to be relevant to the matter at issue; (3) the
evidence was sufficient to support a jury finding that
the defendant committed the act; and (4) the probative
value of the evidence was substantially outweighed
by the danger of unfair prejudice, as required by
Rule 403. United States v. Hicks, 635 F.3d 1063, 1069 (7th
Cir. 2011).
The government called witnesses to testify that Gulley
admitted to occasionally driving Blake around so that
Blake could sell crack cocaine; Gulley was aware and had
knowledge of Blake’s drug-dealing activities; and Gulley
drove Blake to meet with Heard on October 23, 2008, to
complete a crack cocaine deal for which Gulley was not
12 No. 11-3411
charged. The witnesses also testified that crack cocaine,
ecstasy, and a firearm were found during a search of
Blake’s stash house on October 31, the day Gulley and
Blake were arrested. Gulley contends this testimony
was improper because it was not relevant, was only
offered to show Gulley’s “pattern or propensity” to
commit crimes, and was unduly prejudicial. The govern-
ment argues that the information was admissible for
reasons unrelated to Rule 404, as well as under the
Rule 404(b) exceptions. We need not address the gov-
ernment’s other explanations because the evidence was
admissible under the 404(b) exceptions.
As to the first prong: the crime charged (violating
21 U.S.C. §§ 841(a) and 841(b)(1)(B)) required the gov-
ernment to establish that Gulley “knowingly and inten-
tionally” delivered a controlled substance on October 21,
2008. Gulley’s counsel highlighted this requirement
during his opening statement and told the jury,
And that’s what we’re talking about here, is a
person that was in the area at the time in question,
[who] was not distributing cocaine as suggested by
the government in this matter. . . . After you hear all
of the evidence in this case in this matter, you will
not be convinced beyond a reasonable doubt that
there’s been any showing of a knowing and intelli-
gent, voluntary distribution of cocaine by Mr. Gulley
on the date in question.1
1
During opening statements in the first trial, Gulley’s counsel
told the jury, “And the charge, actually, is that he distrib-
(continued...)
No. 11-3411 13
And in his closing argument when discussing the
October 21 video, Gulley’s counsel stated, “If he just is
handing something over without paying attention to it,
that’s not a knowing violation of the law whatsoever.”
The defense did not call any witnesses at trial, nor did
Gulley testify, but it is clear that Gulley’s “defense” went
to his state of mind—i.e., even if Gulley delivered “some-
thing” on October 21, he did not know what it was; and
if that “something” was a controlled substance, Gulley
did not intentionally deliver it.2 The defense was more
than a general denial and a plea of “not guilty.” Cf.
United States v. Miller, 673 F.3d 688, 698 (7th Cir. 2012).
The government was, therefore, entitled to put forth
evidence to rebut the defense, see United States v. Conner,
583 F.3d 1011, 1023 (7th Cir. 2009) (“The government is
not relieved of its burden of proving an element
simply because [the defendant] did not challenge it.
To hold otherwise would be to tie the hands of the gov-
ernment in meeting its burden of proof where no
1
(...continued)
uted—‘knowingly and intelligently’ is the full charge there.
Sometimes people get up and say ‘knowingly,’ but it’s a two-
pronged requirement that the government has on them in
these proceedings.”
2
Gulley’s counsel also argued that Gulley was not the man
on the October 21 video recording or the person in the car
with Heard, but it is unnecessary for us to explain why the
evidence at issue may have been admissible under other
Rule 404(b) exceptions, like identity or opportunity.
14 No. 11-3411
defense was presented on an element, or indeed, an
entire charge.”) (internal citation omitted); see also
United States v. Villegas, 655 F.3d 662, 672 (7th Cir. 2011)
(explaining that the principle of door opening “depends
on the specific situation in which it is used and
thus calls for an exercise of judicial discretion”), and the
testimony at issue went directly to Gulley’s knowledge
on October 21: if Gulley drove around a known drug
dealer, had access to illegal drugs and a firearm, and
witnessed an illegal drug transaction two days after
the charged offense under circumstances similar to the
charged offense, it was more likely that Gulley knew
the clear bag he gave Heard contained crack cocaine. See
Conner, 583 F.3d at 1022 (stating that evidence of the
defendant’s relationship with a known drug dealer
and the defendant’s “extensive history of prior drug ac-
tivities” was admissible under the 404(b) exceptions
because it tended to show that the defendant “was not
simply an innocent bystander” to the drug transaction).
With respect to the second prong, we think the testi-
mony described conduct that was similar enough
and close enough in time to be relevant to the
charged offense. Initially, time proximity is not at issue;
the testimony involved events occurring shortly before
October 21, two days after on October 23, and ten days
after on October 31. Gulley’s main argument is that the
evidence was not “similar enough.” However, the fact
Gulley knew that Blake dealt drugs, including crack
cocaine—the drug he was charged with dealing—and
drove Blake to meet with Heard, the person he
was charged with dealing to, at the same place he
No. 11-3411 15
was charged with dealing, is directly on point with the
charged offense.
Gulley has a stronger argument regarding the ecstasy
and firearm that were found on October 31: ecstasy is
not crack cocaine, and the charged offense did not
include the use of a firearm. Nevertheless, our analysis
of the prong “need not be unduly rigid,” United States v.
Wheeler, 540 F.3d 683, 692 (7th Cir. 2008); our focus is
on “establishing the relevancy of the 404(b) evidence.”
United States v. Foster, 652 F.3d 776, 785-86 (7th Cir.
2011). “Simple differences in the type of conduct or
charge at issue cannot defeat the similarity require-
ment.” United States v. Long, 86 F.3d 81, 84 (7th Cir. 1996).
Here, the evidence was offered to show Gulley’s knowl-
edge of what was in the bag he gave Heard. It goes
without saying that a person with access to ecstasy at a
stash house, especially in the presence of a firearm, is
more likely to know what crack cocaine is than some-
one lacking experience with (or access to) either. We
do not think the simple differences between crack
cocaine and ecstasy undermined the relevance of the
information to the government’s argument; at the end
of the day, both are illegal drugs. Similarly, it is widely
known that guns and drugs go hand in hand. See
United States v. Perez, 581 F.3d 539, 547 (7th Cir. 2009)
(explaining that “weapons are ‘recognized tools of the
drug trade’ and . . . the possession of a gun can advance
the possession and future distribution of narcotics by
protecting the drugs or the drug dealer” (quoting United
v. Duran, 407 F.3d 828, 838 (7th Cir. 2005))); United States
16 No. 11-3411
v. Ramirez, 45 F.3d 1096, 1103 (7th Cir. 1995) (“[W]eapons
are tools of the narcotics trade such that this evidence
is admissible.”). The inference between Gulley having
access to guns and drugs and knowing what was in
the bag does not require an inordinate stretch of the
imagination. And under the facts of this case, we do not
believe the offense charged needed to include “use
of a firearm” to make the firearm evidence “similar
enough” so as to be relevant.
We briefly note Gulley’s barebones assertion that the
items cannot be “sufficiently similar” because he was
not at the stash house when the items were recovered,
but that is a non-starter. The argument is better aimed
at the forth prong. See United States v. Gomez, 712 F.3d
1146, 1154 (7th Cir. 2013) (“Assessing the extent of [the
evidence’s probative value] is a matter for the fourth
prong of the analysis.”).
The third prong is easily satisfied. The government
witnesses’ testimony was consistent: Gulley admitted
that he knew Blake’s “business” and that he drove Blake
around as Blake received, stored, and sold crack cocaine
from a stash house. Surely an individual’s own state-
ments are sufficient to support a jury finding that the
individual participated in the acts at issue. Furthermore,
eyewitness testimony can provide the foundation for
a “reasonable finding by the jury.” United States v.
Howard, 692 F.3d 697, 706 (7th Cir. 2012). All but one of
the witnesses observed the October 23 “deal,” and they
testified to the same facts as those captured on the
video and audio recordings. And finally, Gulley has not
No. 11-3411 17
challenged the execution of the search warrants on
October 31, or the collection of evidence at the stash
house or the residence, which we assume were done
properly. We think the evidence was sufficient to sup-
port a jury finding that the other acts at issue occurred.
Lastly, Gulley contends the evidence was unduly prej-
udicial under the fourth prong of the test, Rule 403. But
we can hardly fault the district judge for not conducting
a more thorough balancing test when the testimony
was never properly objected to. See United States v.
Baker, 655 F.3d 677, 682 (7th Cir. 2011) (“[A] district court
is not under an obligation to make every evidentiary
ruling orally; had [the defendant] wanted an oral ruling,
he should have objected on Rule 403 and Rule 404(b)
grounds.”). The same goes for Gulley’s criticism of the
judge for failing to give a limiting instruction. A limiting
instruction might have been helpful, see United States v.
Moore, 531 F.3d 496, 500 (7th Cir. 2008), but Gulley con-
cedes that he never requested one. See United States v.
White, 698 F.3d 1005, 1018 (7th Cir. 2012) (holding that
evidence admitted under a Rule 404(b) exception was
not unduly prejudicial even though the defendant
never sought, and the district court never tendered, a
specific limiting instruction).
Even so, the court will tolerate a greater risk of prejudice
when the evidence is more probative. United States v.
Miller, 688 F.3d 322, 329 (7th Cir. 2012) (quoting United
States v. Vargas, 552 F.3d 550, 557 (7th Cir. 2008)). In this
case, the evidence was extremely probative as it went
to the core of the issue before the jury—did Gulley know
18 No. 11-3411
what was in that clear plastic bag when he gave it to
Heard for $200? It was not merely tangentially-related
to the charge against Gulley or his defense. Although
the ecstasy and firearm evidence is a closer call, we are
not convinced the probative value was substantially out-
weighed by the danger of unfair prejudice. When
viewed in light of the sliding scale, none of the testi-
mony was so prejudicial that it induced the jury to
decide the case on an improper basis. See United States
v. Earls, 704 F.3d 466, 471 (7th Cir. 2012); United States v.
Albiola, 624 F.3d 431, 440 (7th Cir. 2010).
Gulley has not demonstrated that the district court
erred in the admission of the evidence discussed above,
let alone satisfied the plain error standard. Accordingly,
we conclude that the evidence was properly admitted.
As a final matter, the district court overruled an
objection at trial to Officer Yandell’s testimony that
Gulley admitted he was “on parole” at the time of his
arrest. The government and Gully both agree that the
district court abused its discretion by doing so. But we
will only grant a new trial for a single evidentiary error
if the “error likely had a substantial effect on the
jury’s verdict and the result was inconsistent with sub-
stantial justice.” Jordan v. Binns, 712 F.3d 1123, 1137
(7th Cir. 2013). Here, Gulley’s parole status was only
mentioned by one witness, on one occasion, and neither
party referred to it again throughout the rest of the
trial. Moreover, the details underlying the conviction
and subsequent prison term were never discussed.
We think the minor misstep was harmless beyond a
reasonable doubt.
No. 11-3411 19
B. Sentencing Guidelines Calculation
Gulley contends the district court’s failure to apply
the FSA was an error that requires us to remand for
resentencing. We review the district court’s procedures
in calculating a sentence de novo and its factual findings
for clear error. United States v. Fluker, 698 F.3d 988, 1001
(7th Cir. 2012).
Congress passed the FSA in 2010, which reduced
the sentencing disparity between crack cocaine and
powder cocaine offenders. See Fair Sentencing Act of
2010, Pub. L. No. 11-220, 124 Stat. 2372 (2010). Prior to
the FSA, for a defendant in Gulley’s position—a person
with a prior felony drug conviction who was convicted
of distributing more than 5, but less than 28, grams
of cocaine—the base offense level would have been 37,
with the applicable Guidelines range including a maxi-
mum term of life imprisonment followed by a minimum
of 8 years’ supervised release; as opposed to a base
offense level of 34, with a maximum term of 360 months’
imprisonment, followed by a minimum of 6 years of
supervised release. Compare 21 U.S.C. § 841(b)(1)(B) (2006),
with 21 U.S.C. § 841(b)(1)(C) (2012). When Gulley was
sentenced, our precedent was that the FSA did not
apply retroactively to criminal conduct that occurred
prior to the FSA’s passing. See, e.g., United States v. Camp-
bell, 659 F.3d 607, 609 (7th Cir. 2011), vacated and remanded,
133 S. Ct. 190 (2012). The district court followed that
precedent when calculating Gulley’s Guidelines range.
In Dorsey v. United States, ___ U.S. ___, 132 S. Ct. 2321(2012), however, the Supreme Court held that the
20 No. 11-3411
FSA’s statutory penalties apply to defendants sentenced
after its effective date, August 3, 2010, even if the defen-
dant’s underlying criminal conduct occurred prior.
Gulley’s sentencing hearing was held on October 24,
2011; both parties agree the FSA applied in light of
Dorsey. The issue before us is whether the failure to
apply the FSA was harmless, or in other words, whether
we are convinced the judge would have imposed the
same sentence but for the procedural error. See United
States v. Tovar-Pina, 713 F.3d 1143, Nos. 12-1964, 12-1965 &
12-1966, 2013 U.S. App. LEXIS 8588, at *11-12 (7th
Cir. Apr. 29, 2013).
Gulley was sentenced to 327 months in prison, fol-
lowed by an 8-year term of supervised release. The gov-
ernment concedes that the failure to apply the FSA
might have affected Gulley’s term of supervised re-
lease. We concur and, thus, turn our attention to
whether the error also might have affected Gulley’s
prison term.
In support of its position that the error did not affect
Gulley’s prison term, the government argues that the
district judge actually applied the FSA when it varied
from the applicable Guidelines range at the time by
lowering Gulley’s offense level from 37 to 34, the same
number of levels it would be lowered by the FSA, and
by recalculating the advisory Guidelines range as 262
to 327 months’ imprisonment, also the same as that
applicable under the FSA. We are mindful of this
variance, but it is the government’s burden to prove
the sentencing error was harmless, e.g., United States v.
Suggs, 624 F.3d 370, 376 (7th Cir. 2010), and the sen-
No. 11-3411 21
tencing transcript here is, at best, murky. The district
judge practically invited an appeal of the sentence he
was going to impose before describing the rationale
behind Gulley’s sentence:
And the Seventh Circuit has said, as I made clear,
that the Fair Sentencing Act in the case of United
States v. Fisher, decided this year, and United States v.
Campbell, did not apply to you. You may get relief
from the Supreme Court of the United States, and so
be it. They will make the final decision as to
which circuit is correct. But you are being sentenced
today in the State of Illinois, in the Seventh Circuit,
and I must follow the law of this circuit. So Fair Sen-
tencing doesn’t apply.
And after explaining his rationale, the judge further
stated, “And, very frankly, I hope the Supreme Court
rules in your way. That will be their choice, and we’ll
see what happens.”
Again, we know the judge varied from the
applicable Guidelines range; however, there are at
least two reasons that could support the decision: the
judge’s desire to comply with the spirit of the FSA or,
alternatively, other facts unique to Gulley. The judge did
not explicitly explain the departure, cf. United States v.
Anderson, 517 F.3d 953, 965-66 (7th Cir. 2008) (concluding
that the sentencing error was harmless because the
district judge “clearly stated” he would impose the
same sentence even if his Guidelines calculation was
incorrect), and we are not convinced the judge would
have imposed the same sentence if the FSA had ap-
22 No. 11-3411
plied—he may have, but we cannot be “certain.” See
United States v. Zahursky, 580 F.3d 515, 528 (7th Cir. 2009).
We, therefore, vacate Gulley’s prison and supervised
release terms and remand for resentencing using the
correct Guidelines range.
III. CONCLUSION
For the foregoing reasons, we A FFIRM Gulley’s convic-
tion but V ACATE his sentence and R EMAND for further
proceedings consistent with this opinion.
6-17-13