Appeal from the United States District Court for the Central District of Illinois. No. 2:10-cr-20015-MPM-DGB-1--Michael P. McCuskey, Judge.
The opinion of the court was delivered by: Tinder, Circuit Judge.
ARGUED SEPTEMBER 20, 2012--
Before EASTERBROOK, Chief Judge, and MANION and TINDER, Circuit Judges.
William R. Hible appeals his sentence, arguing that he should have been sentenced consistent with the more lenient penalties of the Fair Sentencing Act of 2010 (the Act or FSA), Pub. L. No. 111- 220, 124 Stat. 2372. Although under Dorsey v. United States, ___ U.S. ___, 132 S. Ct. 2321 (2012), the FSA's more lenient penalties apply to pre-Act offenders who were sentenced after the Act took effect, we agree with the government that Hible has waived any right to argue that he should have been sentenced under the FSA.
Hible was charged in a three-count indictment with criminal drug conspiracy involving the distribution of cocaine and crack cocaine from May 2008 through February 2010 and with the distribution of cocaine in October 2009 and distribution of crack cocaine in December 2009 in violation of 21 U.S.C. §§ 841 and 846. In June 2010, the government filed notice pursuant to 21 U.S.C. § 851 that it would seek an enhanced sentence due to Hible's prior felony drug conviction. The law in effect at the time had a mandatory minimum penalty of 10 years' imprisonment and a maximum penalty of life imprisonment for a defendant who distributed 5 grams or more of crack cocaine and had a prior felony drug conviction. See 21 U.S.C. § 841(b)(1)(B)(iii) (2006).
On January 12, 2011, a magistrate judge held a change of plea hearing. The government stated its intent to dismiss Counts 1 and 2 at sentencing, and Hible pleaded guilty to Count 3, charging him with distributing 5 grams or more of crack cocaine. The magistrate judge advised Hible of the potential penalties and asked him if he had any questions about them. Hible asserted that he should be sentenced under the new law, the Fair Sen- tencing Act of 2010. The FSA increased the threshold amount of crack cocaine for certain penalties and as a result lowered the penalty for offenses involving crack. Under the FSA, a defendant who distributed 12.8 grams of crack and had a prior felony drug con- viction faced no mandatory minimum term of imprison- ment and a maximum term of imprisonment of not more than 30 years. See 21 U.S.C. § 841(b)(1)(B)(iii), (C) (2006 & Supp. IV).
The magistrate judge said he did not know the sen- tencing judge's position on the applicability of the FSA to defendants such as Hible who committed an offense prior to the change in the law but who would be sen- tenced afterwards, but advised Hible that he could appeal the decision to sentence him under the "old law," if that was the judge's decision. The prosecutor stated that the Seventh Circuit had rejected Hible's argument that the FSA applies to offense conduct occurring before the law's enactment on August 3, 2010 (presumably referring to United States v. Bell, 624 F.3d 803, 814-15 (7th Cir. 2010), cert. denied, 131 S. Ct. 2121 (2011), and others), but noted that "the defendant will preserve the right to make that argument." Hible agreed to the factual basis for his plea, including that on December 3, 2009, he sold 12.8 grams of crack cocaine to an infor- mant. Hible pled guilty to the charge of distributing 5 grams or more of crack cocaine. The magistrate judge found that there was a factual basis for the plea, that the plea was knowing and voluntary, and that Hible was guilty as charged in Count 3.
A presentence report was prepared prior to sen- tencing. The report calculated Hible's base offense level under the drug quantity guideline, U.S.S.G. § 2D1.1, resulting in a base offense level of 36, based in part on relevant conduct, and after adjustments, a total offense level of 39. The report also calculated Hible's offense level under the career offender guideline, id. § 4B1.1, assuming the FSA did not apply, which resulted in a career offender level of 37 and after adjustments, a total offense level of 34. If the FSA applied, however, the career offender guideline total offense level would have been 31. Hible had nine criminal history points, which would put him in criminal history category IV. But under the career offender guideline, every offender is in category VI. Id. Using the drug quantity guideline, offense level 39 and criminal history category VI, Hible's advisory guide- line range was 360 months to life. Under the career of- fender guideline, offense level 34 and criminal history category VI, the advisory guideline range was 262 to 327 months. The recommended offense level was the higher of the two levels, that is, the one under the drug quantity guideline (39). See U.S.S.G. § 4B1.1(b) ("[I]f the offense level for a career offender from the table in this subsection is greater than the offense level other- wise applicable, the offense level from the table in this subsection shall apply."). Thus, the presentence report recommended a guideline range of 360 months to life.
Prior to sentencing, Hible objected to the paragraphs of the presentence report detailing his relevant conduct, which greatly increased the drug quantity for which Hible could be held accountable. His objections did not mention the FSA. In response to the objections, the gov- ernment said that it "believed . . . a sentence that is suffi- cient but not greater than necessary to achieve the sen- tencing purposes of Section 3553(a) can be found within the advisory career offender range" of 262 to 327 months of imprisonment. Although the government agreed with the presentence report's relevant conduct findings, it said that a ruling on Hible's relevant conduct objec- tions was unnecessary.
At sentencing on July 7, 2011, the district court said that it had reviewed the presentence report and noted there were objections "that boil[ed] down to" what the advisory guideline range should be. The court noted that the presentence report recommended an offense level of 39, criminal history category VI, and an ad- visory guideline range of 360 months to life. The court confirmed that Hible had "no objection to the career offender [guideline], which would put [his] advisory guideline range at 262 to 327" months. The court also confirmed that the government and probation had no objection to using the career offender advisory guide- line range of 262 to 327 months as "our starting point." Then the court asked defense counsel, "So, . . . if I agree that our starting point is the career offender advisory guideline range of 262 to 327[,] . . . would that mean that there would be no objections to the presentence report?" Counsel answered, "That's correct," and the prosecutor and probation officer stated that they had no objection to that "starting point." The court said that "[t]he career offender advisory guideline range would start at offense level 34," after factoring acceptance of responsibility, and both the prosecutor and Hible's counsel agreed. Accordingly, the court found "that the starting point in this case under the advisory guidelines, by agreement of counsel and Probation, is that this is an offense level 34/criminal history category VI and that the advisory guideline range is 262 to 327."
The court reconfirmed with Hible, through counsel and with Hible directly, that he withdrew his objections "with the agreement that the Court start at the offense level 34/criminal history category VI/advisory guideline range 262 to 327, instead of 360 to life." The court found "that all objections have been withdrawn" and "the parties agree that "William Hible is a career of-
fender[,] . . . is a criminal history category VI, and . . . has an advisory guideline range of 262 to 327 months because he is an offense level 34 as adjusted." Then the court adopted the presentence report's findings, as amended by the parties' agreement.
Hible offered mitigation evidence, which included evidence to mitigate his career offender status--testimony that although he was convicted of a crime of violence occurring in 2005, he did not actually commit the crime, but pled guilty for other reasons. The govern- ment requested a within-guideline sentence of 25 years (300 months). Hible's attorney recommended a below- guideline sentence of 15 years (180 months). The district court gave Hible a "final break" and considered him to have a criminal history category IV, which ...