Appeal from the United States District Court for the Southern District of Illinois. No. 07 CR 30030-Michael J. Reagan, Judge.
The opinion of the court was delivered by: Williams, Circuit Judge.
Before EASTERBROOK, Chief Judge, and WOOD and WILLIAMS, Circuit Judges.
Brandon Singleton was convicted of one count of distributing five or more grams of crack cocaine. On appeal, he contends that the district court erred by holding him responsible for uncharged conduct that was not sufficiently related to the conduct for which he was convicted. Singleton also argues that resentencing is appropriate because of the Supreme Court's decision in Kimbrough v. United States, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), where the court held that a district court judge can take the crack/cocaine powder disparity into consideration in deciding whether to impose a below-guidelines sentence. We reject Singleton's argument that the uncharged conduct was not sufficiently related to his charged offenses, but because we cannot determine whether the district court would have taken the crack/cocaine powder disparity into account at sentencing had it not been constrained by our pre-Kimbrough precedents, we reverse and remand this case for Singleton to be resentenced.
On September 1, 2006, a confidential informant cooperating with law enforcement made a controlled buy of a quarter ounce of crack cocaine from Singleton. The incident occurred behind a housing duplex in Alton, Illinois, and was videotaped. The drugs that the confidential source purchased were analyzed and found to contain 6.6 grams of cocaine base.
On February 23, 2007, Singleton was charged with one count of distributing five grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). On May 21, 2007, Singleton pled guilty to the charge without the benefit of a plea agreement. Prior to sentencing, the Probation Office filed a presentence report ("PSR") that detailed Singleton's relevant conduct. In the PSR, the probation officer explained that in 2000, Singleton started selling crack to Donald McCrady, a childhood friend. Initially, Singleton and McCrady started selling crack cocaine together when they were in their teens, but McCrady was caught and sent to state prison at age eighteen. When McCrady was released in October of 2000, he purchased approximately one to two ounces of crack cocaine per week from Singleton. These purchases took place over the next five weeks until he was caught and went to prison again. For the next six years, when-ever McCrady was not in prison, he purchased one to two ounces per week of crack cocaine from Singleton.
The original presentence report added all of Singleton's drug sales to McCrady using the two ounce per week amount in order to calculate relevant conduct. However, the probation officer did not take McCrady's prison terms into account as times when he would not have been able to purchase drugs from Singleton. Therefore, the probation officer calculated that 12,247 grams of crack cocaine could be attributed to Singleton as relevant conduct for the purpose of sentencing.
Singleton filed a formal objection to the PSR, stating that McCrady was in prison during seventeen to eighteen months of the relevant time period and that the total amount of crack attributed to Singleton should be lowered accordingly. He further argued that McCrady was not a reliable witness and therefore the government could not meet its burden of proving relevant conduct. In response, the probation officer subtracted eighteen months of drug sales out of the total amount and concluded that 8,164 grams of crack cocaine were still attributable to Singleton. There was no resulting effect on the guideline calculation because any drug sales over 1,500 grams results in an offense level of 38.
At the sentencing hearing, McCrady testified that he purchased one to two ounces of crack cocaine from Singleton every week that he was not in prison from 2000 through 2006. Defense counsel cross-examined McCrady about his criminal history, his drug and alcohol abuse, his dyslexia, and his prison time. Singleton argued that McCrady was not reliable or credible and that he should only be sentenced for the 6.6 grams that he pled guilty to distributing.
The government contended that the arguments presented by the defense at the sentencing hearing were materially different from the proffer that Singleton signed, in that Singleton himself had admitted to significantly higher numbers of drug sales, so the government sought permission to enter Singleton's proffer into evidence.
The judge agreed that it was inconsistent for Singleton to argue that he was only responsible for distributing 6.6 grams of crack when he indicated in the proffer that he was responsible for distributing a significantly greater amount. The court admitted the proffer into evidence. Based on Singleton's own statements in the proffer, the government argued that he was responsible for distributing at least 3,326 grams of crack during the relevant time period (2000-2006). The court concluded that Single-ton's drug sales to McCrady constituted relevant conduct and that McCrady's testimony was credible.
The court then summarized the calculations of Singleton's drug transactions and settled on a relevant conduct total of 5,124 grams, resulting in an offense level of 38 which carries an advisory guidelines range of 210-262 months. Singleton was ...