United States v. Clanton, Nathan J.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1773, 07-2358, 07-2924
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
N ATHAN J. C LANTON, IBN A.
W ILLIAMS, and C ARLTON E MBRY,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Western District of Wisconsin.
Nos. 06 CR 217, 06 CR 214, 07 CR 58—John C. Shabaz, Judge.
____________
A RGUED F EBRUARY 19, 2008—D ECIDED A UGUST 14, 2008
____________
Before M ANION, K ANNE, and T INDER, Circuit Judges.
T INDER, Circuit Judge. This opinion consolidates for
decision three cases argued before this panel on February
19, 2007. All three cases present a similar question—an
appeal of a crack sentencing and an argument about
the crack/powder cocaine sentencing disparity. We will
first address the other, for the most part meritless, issues
raised in the individual cases and then move into the
2 Nos. 07-1773, 07-2358, 07-2924
discussion of the crack sentencing ratio, which impacts all
three cases. For the reasons discussed herein, we vacate
and remand both Williams’s and Embry’s case for
resentencing in light of Kimbrough and affirm Clanton’s.
I. Carlton Embry
On April 18, 2007, Carlton Embry was charged in a one-
count indictment with possession of more than five grams
of cocaine base (crack cocaine) with intent to distribute,
in violation of 21 U.S.C. § 841(a)(1). He pled guilty on
May 25, 2007. On August 2, 2007, he was sentenced to
265 months in prison followed by five years of supervised
release plus a $100 special assessment. Embry now appeals
that sentence. There are essentially four issues on appeal:
(1) that the application of the 100-to-1 cocaine crack/
powder ratio in the sentencing guidelines violates his due
process rights; (2) that Almendarez-Torres was wrongly
decided and that judicial fact finding with respect to
convictions not included in the indictment violates his
Sixth Amendment rights; (3) that the Booker remedial
opinion wrongly permits judicial fact finding in violation
of the Constitution; and (4) that the inclusion of an “al-
leged” gang affiliation in his pre-sentence report (“PSR”)
violates his due process right that the PSR not contain
“materially untrue, inaccurate, or unreliable” information.
We will address the last three arguments in the following
paragraphs and return to the first in the consolidated
discussion further below.
Embry argues that judicial fact finding of convictions
not included in the indictment violates his rights under
Nos. 07-1773, 07-2358, 07-2924 3
the Sixth Amendment. He asserts that Almendarez-Torres
v. United States, 523 U.S. 224, 246-47 (1998), was wrongly
decided and has been eroded in subsequent case law; so
it should be overruled. This argument, of course, must
fail, as we have no authority to overrule a decision by the
Supreme Court of the United States. As we have held in
previous cases, Almendarez-Torres is still good law, and we
will continue to apply it until the Supreme Court instructs
otherwise. See United States v. Johnson, 495 F.3d 536, 543-44
(7th Cir. 2007) (“The governing law of the Supreme Court
unequivocally states that the fact of a prior conviction need
not be found by a jury beyond a reasonable doubt, nor
must it be alleged in the indictment.”).
Embry also contends that the framework established
by United States v. Booker, 543 U.S. 220 (2005), permits
judicial fact finding, violating his constitutional rights. He
argues that under Apprendi v. New Jersey, 530 U.S. 466(2000), and Cunningham v. California, 549 U.S. 270 (2007), he
was denied his Sixth Amendment right to trial by jury
when the court imposed a sentence under the so-called
advisory guidelines. However, contrary to that assertion,
we have already found that “Booker eliminated the con-
stitutional concern by making the guidelines advisory.”
United States v. Martinez, 518 F.3d 505, 510 (7th Cir. 2008).
“Cunningham therefore has no effect on post-Booker federal
practice. District judges remain free, as the remedial
portion of Booker instructs, to make findings of fact that
influence sentences, provided that the sentence is con-
strained by the maximum set by statute for each crime.”
United States v. Roti, 484 F.3d 934, 937 (7th Cir. 2007); see
also United States v. Shannon, 518 F.3d 494, 495-96 (7th Cir.
4 Nos. 07-1773, 07-2358, 07-2924
2008). Embry has offered no new compelling reasons or
arguments; thus we decline to depart from precedent.
See United States v. Savage, 505 F.3d 754, 764 (7th Cir. 2007).
Worthy of slightly more consideration, Embry also
objects to the inclusion of a gang affiliation allegation in
his PSR and requests that it be stricken. The PSR, in ¶ 24,
states that a confidential informant told officers that Embry
wore a gold medallion with a panther on it, signifying
his membership in the Blackstone gang. This is also
included as a gang affiliation in the PSR’s “Identifying
Data” section, labeling Embry as an “alleged Blackstone.”
Embry objected, arguing that this information is mate-
rially untrue; the medallion was not recovered in any
searches, and a panther is not a symbol for the Blackstone
gang.
Embry argues that he has a due process right to a PSR
that does not contain “materially untrue, inaccurate, or
unreliable” information. Embry does have a due process
right not to be sentenced based on a PSR that contains
materially untrue, inaccurate, or unreliable information,
but he does not, as he phrased it, have a due process right
to have a PSR free of those things. If the judge did not
rely on the allegedly inaccurate information, then there
can be no due process violation.
There is no doubt that a criminal defendant has a due
process right to have the court consider only accurate
information when imposing sentence, and that this
right may be violated when the court considers infor-
mation which is inaccurate. To succeed on such a
claim the defendant must demonstrate that the infor-
Nos. 07-1773, 07-2358, 07-2924 5
mation before the court was inaccurate and that the
court relied on it.
United States v. Coonce, 961 F.2d 1268, 1275 (7th Cir. 1992)
(emphasis added) (citing United States v. Tucker, 404 U.S.
443, 447 (1972) and United States v. Musa, 946 F.2d 1297,
1306 (7th Cir. 1991)); see also United States v. Hankton, 432
F.3d 779, 790 (7th Cir. 2005). Here, Embry has not even
argued that the judge considered or relied in any way on
the alleged gang membership in his sentencing. Thus, the
inclusion of the alleged gang affiliation in the PSR does not
violate Embry’s due process rights.
While similar to the due process evaluation, we also
consider separately whether the district court violated the
Federal Rules of Criminal Procedure. Under Federal Rule
of Criminal Procedure 32(i)(3)(B)-(C), a court, at sentenc-
ing, must
for any disputed portion of the presentence report or
other controverted matter—rule on the dispute or
determine that a ruling is unnecessary either because
the matter will not affect sentencing, or because the
court will not consider the matter in sentencing; and
must append a copy of the court’s determinations
under this rule to any copy of the presentence
report made available to the Bureau of Prisons.
It appears that the sentencing judge did not comply with
Rule 32, because the record contains neither a ruling on
the dispute nor a clear statement that the matter would
not affect sentencing. He said:
And finally, we look to the gang member concern.
Defendant asserts that the allegation made by the
6 Nos. 07-1773, 07-2358, 07-2924
confidential informant as it relates to him being a Black
Stone gang member is materially untrue. He requests
that the information be stricken. Under the identifying
data section of the presentence report, the Court
believes that it has been noted that this affiliation is
alleged and the Court will not make that determina-
tion to remove the information from the presentence
report at this time.
While perhaps implying as much, the sentencing judge,
nevertheless, did not outright say that the gang allegation
would not impact the sentence. However, on appeal,
Embry’s claim is not that the gang affiliation did somehow
affect his sentence, but instead that it has the potential to
affect him negatively in prison, depending on what the
Bureau of Prisons (“BOP”) does with the information of
this alleged affiliation.
It is readily arguable that one of the purposes of Rule
32(i)(3) is to ensure that the PSR contains accurate informa-
tion for the BOP. See, e.g., United States v. Pless, 982 F.2d
1118, 1128 (7th Cir. 1992) (“The provision serves two
purposes . . . (2) to provide prison and parole authorities
with a clear record of how such disputes were resolved.”).
But this “purpose” can only be incidental with respect to
the information in the PSR which has no impact on the
sentence itself. Otherwise, instead of indicating that a
matter will not impact sentencing, the sentencing judge
would have to rule on every issue simply because it
might impact BOP decisions. The Advisory Committee
notes to the 2002 Amendments specifically discuss this
concern. Fed. R. Crim. P. 32 advisory committee notes
(2002). An amendment was considered that would have
Nos. 07-1773, 07-2358, 07-2924 7
required the court to rule on any “unresolved objection to
a material matter” regardless of its impact on the sentence
specifically because of the potential post-sentencing
impact. Id. However, the Committee chose not to adopt
this amendment, explaining that “[t]o avoid unduly
burdening the court, the Committee elected not to require
the resolution of objections that go only to service of
sentence.” Id.; see also United States v. Saeteurn, 504 F.3d
1175, 1178-81 (9th Cir. 2007). Thus, the resolution of
questions impacting only post-sentencing decisions, while
often useful and encouraged, is nevertheless not required
under Rule 32. Therefore, the sentencing judge’s failure
to rule on Embry’s alleged gang membership is not a
violation of Rule 32.
The only remaining possible error is a technical violation
of Rule 32. As we mentioned, it is not explicit in the
record that the sentencing judge determined that the gang
information would not affect sentencing, thus rendering a
ruling on the question unnecessary. However, there are
no “magic words,” and since no one disputes that the
alleged affiliation did not impact the sentence, it is not
apparent that there was an error. In other words, con-
sidering no one contends that the gang affiliation did
impact the sentence, perhaps the sentencing judge’s
statement made that sufficiently clear. Furthermore, even
if we were to find the record’s absence of an explicit
indication that the gang affiliation would not impact the
sentence to be error, it would be harmless. See United States
v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005); United
States v. Slaughter, 900 F.2d 1119, 1123 (7th Cir. 1990). There
8 Nos. 07-1773, 07-2358, 07-2924
is no argument that Embry’s sentence was impacted; the
only potential harm is what the BOP might do with the
information. As we already explained, that type of harm
is not overtly protected by the Rule. However, even if we
were to remand, the sentencing judge could simply put
into the record that the alleged gang affiliation was not
considered in the sentencing. Such a result is effectively
no different than the present situation, and would not
provide the remedy—striking the affiliation—that Embry
desires. Moreover, the gang affiliation, as the sentencing
judge emphasized, is noted as “alleged” in the PSR, an
indication on its face which demonstrates to the BOP that
the judge made no ruling as to gang membership. The
alleged harm is also entirely speculative at this point, and
if such concrete harm occurs later, Embry has other
avenues of redress that he can pursue through the BOP.
Thus, while we take this opportunity to remind judges
to be explicitly clear in their rulings with respect to Rule
32, any technical violation of the rule in the instant case
is harmless.
II. Nathan Clanton
Nathan Clanton was charged, in a two-count indictment,
with distributing five grams or more of cocaine base in
violation of 21 U.S.C. § 841(a)(1). He was arraigned on
December 19, 2006, and pled not guilty. On January 30,
2007, he pled guilty to count one pursuant to a written
plea agreement. On April 3, 2007, at the sentencing hear-
ing, the district court sentenced Clanton, following the
applicable guidelines range, to 212 months’ imprisonment,
five years’ supervised release, and a $100 special assess-
Nos. 07-1773, 07-2358, 07-2924 9
ment. The court dismissed count two of the indictment. On
appeal, Clanton makes two arguments: (1) that his sen-
tence is unreasonable and the crack/powder cocaine
disparity reflected in the guidelines does not comport with
the statutory purposes of sentencing; and (2) that his
misdemeanor battery offense, for which he was subject
to over one year in prison under Wisconsin’s habitual
offender statute, should not qualify as a predicate offense
under the career offender provisions of the guidelines.
His ratio argument will be discussed below.
With respect to his second argument, Clanton argues that
he does not qualify as a career offender. He claims that
the court should not have counted the battery as a
felony—instead of looking at the punishment with the
recidivism enhancement, the court should have looked
at the maximum punishment for the base offense. Our
review is only for plain error, since Clanton raises this
issue for the first time here on appeal. Our decision in
United States v. Bissonette, 281 F.3d 645 (7th Cir. 2002), flatly
forecloses Clanton’s argument. Clanton admits as much
and cites Rodriquez, a Ninth Circuit case, in which, at the
time of briefing, the Supreme Court had granted certiorari.
United States v. Rodriquez, 464 F.3d 1072 (9th Cir. 2006),
cert. granted, 128 S. Ct. 33 (2007). The case dealt with the
Armed Career Criminal Act (“ACCA”), under which “a
state drug-trafficking conviction qualifies as ‘a serious
drug offense’ if ‘a maximum term of imprisonment of ten
years or more is prescribed by law’ for the ‘offense.’ ”
United States v. Rodriquez, 128 S. Ct. 1783, 1786 (2008) (citing
18 U.S.C. § 924(e)(2)(A)(ii)). The question before the Court
was whether the “maximum term of imprisonment pre-
scribed by law” is the “5-year ceiling for the first offenses”
10 Nos. 07-1773, 07-2358, 07-2924
or “the 10-year ceiling for second or subsequent offenses.”
Id. at 1787. In May the Court issued its decision, finding
“[i]n sum, a straightforward application of the language
of ACCA leads to the conclusion that the ‘maximum term
of imprisonment prescribed by law’ in this case was
10 years.” Id. at 1788. Given this conclusion, Rodriquez does
not help Clanton, Bissonette unquestionably governs the
case, and we need not address the issue any further.
III. Ibn Williams
Ibn Williams was charged with possession with intent
to distribute more than five grams of cocaine base in
violation of 21 U.S.C. § 841(a)(1). He pled guilty on
March 21, 2007. The PSR calculated 129.76 grams of cocaine
base, putting his offense level at 32. With a two-level
increase for possessing a dangerous weapon and a three-
level decrease for acceptance of responsibility, the total
offense level was 31. His criminal history category was I,
putting the sentence range at 108-135 months. At the
sentencing on May 30, 2007, the judge sentenced Williams
to 108 months in prison, followed by four years of super-
vised release, plus a $100 criminal assessment. On appeal,
Williams argues (1) that the sentence was unreasonable
and the judge should be permitted to reject the 100-to-1
ratio, and (2) that the court used the term “advisory” with
respect to the guidelines but in reality treated them as
mandatory.
Williams claims that the sentencing judge only gave lip
service to the “advisory” nature of the sentencing guide-
lines, violating Booker, 543 U.S. 220 (2005). Williams fails,
Nos. 07-1773, 07-2358, 07-2924 11
however, to produce adequate support for this argument.
The sentencing judge correctly and consistently referred
to the guidelines as advisory. He also went through the
appropriate steps, calculating the guideline range and
then considering individual factors with respect to Wil-
liams. He concluded that the given sentence was “reason-
able and necessary to hold the defendant accountable for
his serious conduct, to serve as a deterrent to him, to
protect the community from further criminality on his
part, and to achieve parity with the sentences of similarly
situated defendants . . . .”
The majority of the examples Williams cites in support
of his position are the judge’s references to the 100-to-1
crack ratio. This, however, is not at all persuasive, since
prior to Kimbrough, under our precedent, that aspect of the
guidelines was effectively mandatory and district court
deviations would have been futile. Therefore, the com-
ments from the sentencing judge were not surprising and
cannot now reasonably be used to argue he did not,
generally speaking, properly treat the guidelines as
advisory. (With respect to any specific failing to treat
the ratio as advisory, our decision, discussed below,
regarding the ratio and Kimbrough adequately take care of
that concern.) Since Williams has failed to point to any-
thing persuasive in the record before us to make his point,
he cannot prevail on this issue.
IV. The 100-to-1 Crack Ratio, Considerations
Post-Kimbrough
The Defendants in these three cases put forth argu-
ments, in various forms, that the application of the 100-to-1
12 Nos. 07-1773, 07-2358, 07-2924
crack ratio in the sentencing guidelines was in some way
improper, unreasonable, and/or unconstitutional. While
these cases were making their ways through the appeals
process, the United States Supreme Court decided
Kimbrough v. United States, 128 S. Ct. 558 (2007). In
Kimbrough the Court held that the 100-to-1 ratio in the
guidelines is not dictated by statute, but rather is
advisory, like the rest of the sentencing guidelines, and the
district court may accordingly depart from § 2D1.1’s 100-
to-1 ratio. Id. at 564; see United States v. Taylor, 520 F.3d 746(7th Cir. 2008). Since our circuit precedent prior to
Kimbrough held that it would be unreasonable for a judge
to depart from the ratio, it is understandable that district
judges did not attempt to do so. With this in mind, we
now must determine what to do with these cases.
We found in Taylor that a limited remand was appropri-
ate in cases where the defendant did not object to the ratio
in the district court, 520 F.3d at 747-48, growing out of a
plain-error standard similar to the one used when the
Booker Court first held that the guidelines were advisory,
see United States v. Paladino, 401 F.3d 471, 481-84 (7th Cir.
2005). We also held, in both the Booker and Kimbrough
contexts, that if the district judge had made clear that she
would sentence the defendant the same regardless, then a
remand would be unnecessary. United States v. White, 519
F.3d 342, 349 & n.6 (7th Cir. 2008); see also Taylor, 520 F.3d
at 746-47. However, the three cases before us now are
distinguishable from Taylor, because Embry, Clanton, and
Williams each objected to the ratio below. Thus, we are not
governed by a plain-error standard of review, and the
limited remand would not apply. We review for abuse
Nos. 07-1773, 07-2358, 07-2924 13
of discretion. Gall v. United States, 128 S. Ct. 586, 597 (2007).
The Court in Gall explained that “[r]egardless of whether
the sentence imposed is inside or outside the Guide-
lines range, the appellate court must review the sentence
under an abuse-of-discretion standard,” first ensuring
there was no procedural error such as “treating the Guide-
lines as mandatory” or “failing to consider § 3553(a)
factors.” Id. Then “[a]ssuming that the district court’s
sentencing decision is procedurally sound, the appellate
court should . . . consider the substantive reasonableness
of the sentence imposed under an abuse-of-discretion
standard.” Id. However, this distinction between abuse-of-
discretion and plain-error review creates no significant
practical impact in this case, since the same issues con-
cerning us in Taylor must be dealt with here, and the
remedy differs only in the form of remand.
In all three cases the defendants argued the unfairness
of the ratio under the 18 U.S.C. § 3553(a) factors in the
district court. The sentencing judge addressed the objec-
tion to the ratio in each case, but it is clear from his com-
ments that he viewed himself duty-bound by Congress and
our precedent to unwaveringly stick with the ratio. Embry
and Clanton were sentenced near the middle of their
guidelines range. Williams was sentenced at the low end
of his range. It is not certain from the records in any of
these cases that the sentencing judge would have given
the same sentences even without the guidelines; thus,
like Taylor, we are not in a position to find that remands
would be unnecessary.
Given the holding in Kimbrough, we find that remand
is readily warranted in Williams’s case to allow the dis-
14 Nos. 07-1773, 07-2358, 07-2924
trict court judge an opportunity to determine whether
or not to sentence differently. We conclude that it was
an abuse of discretion to summarily dismiss the crack
disparity argument by effectively treating the ratio as
mandatory and not to consider its merits under § 3553. See
Gall, 128 S. Ct. at 597. This is similar to our conclusion
in Taylor and similar to post-Kimbrough decisions from
our sister circuits. On remand the district judge can
consider the § 3553(a) arguments now knowing the crack
ratio is advisory. For these reasons, with respect to the
Williams case, we remand for re-sentencing. This does not
end the discussion, however, for defendants Embry and
Clanton.
Clanton and Embry, unlike Kimbrough, Taylor, and
Williams, did not have a guidelines range calculated solely
under § 2D1.1 of the guidelines, which is where the
infamous crack ratio is imbedded; they were career offend-
ers sentenced pursuant to the career offender guideline,
§ 4B1.1. Thus, we must determine to what extent, if any,
the Court’s decision in Kimbrough, which technically
addressed § 2D1.1, affects their sentences. Under § 4B1.1,
the offense level is calculated as it would be if the defen-
dant were not a career offender (for defendants Clanton
and Embry this calculation was made pursuant to § 2D1.1).
Then, the offense level is calculated using the table in
the career offender provision. Section 4B1.1(b) explains
that the higher offense level of the two will apply.
In Embry’s case the offense level under the career
offender guideline table in § 4B1.1(b) was 34, and the
offense level with the reference back to § 2D1.1 was 36.
Nos. 07-1773, 07-2358, 07-2924 15
Since the offense level calculated under § 2D1.1 was higher
than under § 4B1.1(b), Embry’s offense level was 36. Thus
while technically sentenced under § 4B1.1, the calculation
done according to § 2D1.1 ultimately applied. Thus, he
was effectively sentenced under the guideline’s crack ratio.
Remanding his case is appropriate, then, since the
Kimbrough decision has the obvious potential to impact
his sentence.
Clanton’s case, however, is a different matter. His
offense level under § 2D1.1 was 32; under the § 4B1.1(b)
table it was 34. The career offender offense level was
higher, and was therefore the one ultimately used to
calculate his sentence. The career offender guideline in
§ 4B1.1, unlike § 2D1.1’s drug quantity table, does not
include a crack ratio. The guideline references the “offense
statutory maximum,” which in this case refers to the 40
year maximum found in 21 U.S.C. § 841(b)(1)(B)
for possession of 5 grams or more of cocaine base or 500
or more grams of powder cocaine, to establish the
offense levels. Thus any crack disparity is attributable to
the statute not the guidelines. This is the same issue
addressed in our recent case, United States v. Harris, in
which we noted that “[w]hile the sentencing guidelines
may be only advisory for district judges, congressional
legislation is not.” No. 07-2195, 2008 WL 3012362, *12 (7th
Cir., Aug. 6, 2008). We then concluded, following our
sister circuits, that “a sentence entered under the career
offender guideline, § 4B.1.1, raises no Kimbrough problem
because to the extent it treats crack cocaine differently from
powder cocaine, the disparity arises from a statute, not
16 Nos. 07-1773, 07-2358, 07-2924
from the advisory guidelines.” Id. at *13. Clanton’s case
is indistinguishable from Harris. Therefore, we conclude
that Clanton is not entitled to a remand as Kimbrough
does not impact his sentence.
V. Conclusion
With respect to defendants Williams and Embry, we
V ACATE the sentences and R EMAND for resentencing
in light of Kimbrough, giving the district judge an oppor-
tunity to consider and address the crack disparity argued
by the defendants; we A FFIRM the district court’s decisions
on the other appealed issues. With respect to defendant
Clanton, we A FFIRM in the totality.
8-14-08