United States v. Flowers, Gregory

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 13, 2005*
Decided September 13, 2005
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-3723
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Indiana, South Bend
v. Division
GREGORY FLOWERS, No. 3:04-CR-00042(01)RM
Defendant-Appellant.
Robert L. Miller, Jr.,
Chief Judge.
ORDER
Police executing a search warrant found three guns and a small amount of
drugs in Gregory Flowers’ apartment near a playground. The drugs—22 grams of
marijuana and 3.57 grams of crack—were divided into 28 separate packages. A jury
found Flowers guilty on two counts of possessing with intent to distribute the drugs
within 1,000 feet of the playground, 21 U.S.C. §§ 841(a)(1), 860, and one count of
possessing a firearm during and in relation to a drug trafficking crime, 18 U.S.C.
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 04-3723 Page 2
§ 924(c)(1)(A). The district court imposed concurrent 108-month terms on the drug
counts and a consecutive 60-month term on the gun count.
In sentencing Flowers, however, the court miscalculated the drug quantity by
including the weight of the packaging. See U.S.S.G. § 2D1.1, cmt. n.1 (2003). As a
result the court held Flowers responsible for 5.3 grams of crack instead of 3.57, an
increase of 49%, and 28.5 grams of marijuana instead of 22, an increase of 30%.
Nobody noticed the mistake until appeal, but as the government now acknowledges,
the miscalculation caused the court to arrive at an incorrect range of 97 to 121
months instead of the correct range of 63 to78 months for the two drug convictions.
Given the magnitude of the mistake, the government concedes that the
oversight constituted plain error warranting resentencing, and we accept the
concession. Although after United States v. Booker, 125 S. Ct. 738 (2005), the
guidelines are advisory, a sentencing court still must calculate and consider the
advisory range. United States v. Dean, 414 F.3d 725, 727–30 (7th Cir. 2005);
United States v. Baretz, 411 F.3d 867, 877 (7th Cir. 2005). And whether pre- or
post-Booker, basing a sentence on a miscalculated range is an error that affects
substantial rights and may constitute plain error. Baretz, 411 F.3d at 877; United
States v. Hall, 212 F.3d 1016, 1022 (7th Cir. 2000); United States v. Maggi, 44 F.3d
478, 484 (7th Cir. 1995). Accordingly, we VACATE the sentence and REMAND for
resentencing.