Appeal from the United States District Court for the Western District of Wisconsin. No. 99 CR 6--Barbara B. Crabb, Chief Judge.
Before Bauer, Posner, and Williams, Circuit Judges.
The opinion of the court was delivered by: Williams, Circuit Judge
In an earlier appeal, we vacated the defendant's 30-year sentence for possession with intent to distribute cocaine based on the principles of Apprendi v. New Jersey, 530 U.S. 466 (2000). On remand, the district court reduced his sentence on that count, increased his sentence on another count, and ordered the sentences to run consecutively, maintaining his combined sentence at 30 years. The defendant again appeals his sentence. We reject defendant's argument that the district court erred in imposing consecutive sentences but agree that the court erred in calculating a portion of the quantity of cocaine attributed to him, which we conclude was based on insufficiently reliable evidence.
A jury convicted John J. Noble of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a) and conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. During sentencing, the district court based much of its drug quantity findings on trial testimony and attributed another 65 ounces of cocaine to Noble for certain sales identified in the presentencing report (PSR). The 65 ounces identified in the PSR was based on witness Steven Jobe's statement to police that Noble bragged to him about selling cocaine at strip clubs 5 nights a week for over a year. The law enforcement agent's report of Jobe's statement, however, was not before the court at sentencing. The court instead relied on the PSR summary of the agent's report, which omitted any direct reference to Noble's purported admission to Jobe about the frequency of these sales:
Jobe believed that Noble went to the strip clubs at least 5 days a week. Noble claimed to have sold cocaine to the strippers in this fashion for over one year.
Based on these sales and others not at issue in this appeal, and after imposing several sentence enhancements, the district court arrived at a sentencing range under the United States Sentencing Guidelines of 30 years to life. The court sentenced Noble to 30 years' imprisonment for conspiracy to distribute cocaine (count I) and 5 years' imprisonment for possession with intent to distribute cocaine (count II), with the sentences to run concurrently.
The jury had made no finding as to the quantity of drugs, and in a previous appeal, this court held that the sentence on count I violated Apprendi v. New Jersey, 530 U.S. 466 (2000), because it exceeded the default maximum in § 841(b)(1)(C) for conviction without regard to quantity of cocaine: 20 years. See United States v. Noble, 246 F.3d 946 (7th Cir. 2001) (Noble I). On remand, the district court reduced the sentence on count I to 20 years, but increased the sentence on count II to 10 years and ordered that the two sentences run consecutively, bringing the total sentence back to 30 years. Noble now argues: (1) that the district court did not follow the instructions of this court when it increased the sentence on count II to preserve the 30-year combined sentence, thus continuing to violate Apprendi, and (2) that a portion of the drug quantity used in the sentencing calculation has no basis in reliable evidence.
A. Resentencing For Consecutive Sentences
We review de novo the district court's interpretation of the Sentencing Guidelines, United States v. Brumfield, Nos. 01-3752 & 01-4130, 2002 WL 1734026, at *4 (7th Cir. July 29, 2002), as well as its rejection of Noble's argument that the consecutive sentences violate Apprendi. United States v. Spiller, 261 F.3d 683, 691-92 (7th Cir. 2001).
The district court did not err in imposing a combined sentence of 30 years for both counts. Apprendi requires that a jury determine all facts (other than a prior conviction) that would raise a sentence above its statutory maximum. Apprendi, 530 U.S. at 490. Section 5G1.2(d) of the Sentencing Guidelines provides that, if the highest maximum statutory punishment is less than the amount prescribed by the guidelines, then courts should impose consecutive sentences to achieve the guidelines range. Although we have not yet decided whether, after Apprendi, the court is still required to impose consecutive sentences as directed by § 5G1.2(d), we have held that the district court has the discretion to do so:
Although the courts of appeals do not agree whether, in the wake of Apprendi, U.S.S.G. § 5G1.2(d) still compels a judge to use consecutive sentences when necessary to construct a term within the Guideline range . . . every court of appeals believes that consecutive sentences are lawful if the district judge chooses to ...