United States v. Bernell Brasher

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 23-1180

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BERNELL BRASHER,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Southern District of Illinois.

No. 4:21-cr-40070 — J. Phil Gilbert, Judge.

____________________

ARGUED JANUARY 22, 2024 — DECIDED JUNE 28, 2024

____________________

Before EASTERBROOK, ST. EVE, and JACKSON-AKIWUMI,

Circuit Judges.

ST. EVE, Circuit Judge. This appeal asks us to hold that some

of Bernell Brasher’s past conduct bore too attenuated a link to

his offense of conviction to qualify as relevant conduct at sen-

tencing. But Brasher never raised that issue below, so we re-

view here for plain error. Finding no such error, we affirm.

2 No. 23-1180

I. Introduction

A. Factual Background

This case started when the Drug Enforcement Administra-

tion (“DEA”) got a lucky break on October 27, 2021. A confi-

dential source gave them a call with good news: a man named

Bacaree Oaks had turned up at the source’s Murphysboro, Il-

linois home that night with a pound of meth for sale. The

source had told Oaks he would find a buyer, but then de-

ployed a “ruse” so that he could call DEA. When law enforce-

ment reached the scene for surveillance, they saw Oaks exit

the source’s home and depart in a vehicle with Bernell

Brasher, the appellant here.

Oaks and Brasher returned to the source’s residence not

long after. Rather than find another buyer immediately, the

source suggested that he would take the meth on credit and

sell it, paying Oaks and Brasher $5,000 afterward. The three

agreed to this deal. But instead of distributing the meth, the

source turned it over to law enforcement. Their laboratories

tested the package, which turned out to comprise 416.7 grams

of 99% pure methamphetamine.

Police later arrested Brasher and Oaks. While police drove

Brasher to jail, he told officers he owed money to his own sup-

plier, in Mexico, for about 100 pounds of meth Brasher had

out on the street. Officers took note, since the meth sold to the

confidential source also came in a pound quantity.

B. Procedural Background

Less than a month later, on November 17, a grand jury in-

dicted both Brasher and Oaks for conspiracy to distribute

methamphetamine under 21 U.S.C. § 841(a). Brasher pleaded

guilty, and then the district court ordered a presentence

No. 23-1180 3

investigation report (“PSR”). The PSR concluded that for sen-

tencing purposes, Brasher’s relevant conduct included four

instances of past drug distribution activity. We take them in

chronological order.

The Birmingham Deal. In February 2018, a different confi-

dential source had flagged Brasher to law enforcement. The

source asked Brasher about sourcing meth for a buyer in Bir-

mingham, Alabama. Brasher told the source he could supply

four to eight ounces of the drug—then, in March, asked the

source to travel with him from St. Louis, Missouri to Birming-

ham to conduct the deal. That trip never happened, so this

conduct added no drug weight to Brasher’s tab.

The Kansas Stop. A few months later, in May 2018, Kansas

Highway Patrol troopers stopped a rental vehicle Brasher was

driving. The car had been rented in the name of LaShae

Broadway, the mother of Brasher’s daughter. The troopers

smelled marijuana and searched the car. Inside, they found

about $34,000 in oddly stored cash: it had been vacuum

sealed, covered in hand sanitizer, and wrapped in plastic. The

troopers released Brasher from the scene. No drug weight

stemmed from this interaction either.

The N.N. Sales. Another confidential source (this one going

by N.N.) told police in January 2020 he had bought a pound

of meth from Brasher a couple of times. That counted for 907.2

grams (2 pounds) of a mixture and substance containing

methamphetamine, which the PSR recommended factoring

into Brasher’s sentence as relevant conduct.

The Crontz Conduct. This last, most important conduct is

named for Brasher’s co-conspirators, Tammy and Jerry

Crontz. On July 15, 2020, a confidential source explained that

4 No. 23-1180

the husband-and-wife pair had been selling ice (i.e. pure,

crystalline) meth in ounce quantities from their home. They

were happy to discuss their supplier with the source: it was

Brasher. Later that month, agents got word that a drug ship-

ment would come to Ava, Illinois, addressed to the Crontzes’

nephew’s home. Just as planned, police saw the nephew pick

up the package and deliver it to the elder Crontzes.

The police then arrested and questioned Tammy Crontz.

She told them she bought meth from a man she called “Boo,”

and then the police took her back to her home to search it. On

the way there, she informed the officers three pounds of meth

had arrived in the mail that same day, representing her largest

ever shipment. Typically, Tammy said, the suppliers would

pick up drug proceeds at her home. In fact, one supplier had

picked up $17,200 just that morning. In the end, police found

882.5 grams (1.95 pounds) of 99% pure ice in her home. Then

both Tammy and her husband talked with agents, telling

them they had received one to two pounds of ice from Brasher

10 to 15 different times. The PSR, taking the low end of both

estimates, later attributed to Brasher 10 pounds (or 4,536

grams) of a mixture containing methamphetamine. Tammy

told police, too, that she had shipped about $15,000 in cash to

Brasher in San Diego.

Agents also intercepted four calls between Tammy and

Brasher. The two discussed the $15,000 shipment—Brasher

did not have it because agents had seized it—as well as a

future shipment of cocaine and ice. Brasher surmised that law

enforcement had seized the package and agreed with Tammy

to talk in person on August 4. Meanwhile in Ava, both agents

and Crontz affiliates asked the Post Office about Brasher’s

drug packages. The package the agents wanted was out for

No. 23-1180 5

delivery. The Crontzes’ son came to the office, too, to ask that

the Post Office allow someone else to pick up one of his

packages—that one turned out to contain 80 grams of cocaine.

Tammy and Brasher met on August 4, though Tammy had

flipped by then to work for the police. They discussed upcom-

ing drug deliveries. The next day, agents picked up another

shipment from San Diego, this one addressed to Jerry Crontz.

Testing revealed it contained 77 grams of cocaine, 1.1 pounds

of marijuana, and 1,575.7 grams of actual methamphetamine.

Tammy talked with agents again on August 13. She ex-

plained that before getting into distribution, she had bought

on a retail basis: “one-ounce quantities of methamphetamine

from Brasher every seven to ten days between December 2019

and April 2020.” The PSR again made a conservative estimate,

holding Brasher responsible for 6 ounces or 170.1 grams of a

mixture and substance containing meth. Things had pro-

gressed from there, with Brasher sending meth directly to

Tammy as well as packages containing meth and marijuana

products to her son’s home.

Based on the N.N. sales, the Oaks deal, and the Crontz con-

duct, the PSR concluded that Brasher’s relevant conduct “in-

volved the possession and distribution of 2,874.9 grams of ac-

tual methamphetamine; 5,613.3 grams of a mixture and sub-

stance containing methamphetamine; 157 grams of cocaine;

and 1.1 pounds of marihuana.” That amounts to a converted

drug weight of 68,756.49 kilograms.

After factoring in the relevant conduct, Brasher had an of-

fense level of 33 with a criminal history category of III, and a

corresponding Guidelines range of 168 to 210 months of im-

prisonment.

6 No. 23-1180

Brasher made three objections to the PSR. None is part of

this appeal. He cited United States v. Carnell, 972 F.3d 932 (7th

Cir. 2020), to ask the district court to treat all the methamphet-

amine officers had recovered as a “mixture and substance

containing methamphetamine,” with its lighter sentencing

consequences. He objected to his criminal history score, as-

serting (wrongly) that he had not been on probation when he

committed his offense. And he objected to the PSR’s identify-

ing him as part of the Crip gang.

At sentencing, the district court first confirmed Brasher

had no other objections that might affect the Guidelines range.

He did not. The court then heard arguments on Brasher’s

three objections, ultimately adopting the PSR’s findings ex-

cept on the gang affiliation issue. Since Brasher had not raised

any question about the relevance of his past conduct, the dis-

trict court did not address this issue. Brasher took responsi-

bility for his crimes during allocution, including those with

the Crontzes, about which he told the court “I’m not going to

make any excuses.”

The district court sentenced Brasher to 200 months’ im-

prisonment, which fell within his Guidelines range.

Brasher appealed.

II. Analysis

When Brasher pleaded guilty to his drug crime with Oaks,

the district court calculated his base offense level by totaling

the drug weight from the above past conduct. This practice

finds its roots in U.S.S.G. § 1B1.3(a)(2). Under that guideline,

other acts “that were part of the same course of conduct or

common scheme or plan as the offense of conviction” enter

the mix for calculating a base offense level. Id. At the same

No. 23-1180 7

time, the mere “fact that a defendant engaged in other un-

charged or acquitted drug transactions” is not enough. United

States v. Rollerson, 7 F.4th 565, 572 (7th Cir. 2021). To bridge

the gap between past conduct and the offense of conviction,

we look for “significant ‘similarity, regularity and temporal

proximity’” between the offense of conviction and the other

conduct. Id. (quoting United States v. McGowan, 478 F.3d 800,

802 (7th Cir. 2007)).

From within that framework, Brasher urges that the court

should have excluded his past conduct—with the Crontzes,

mainly—from the drug weight calculation. Because Brasher

did not raise this issue before the district court, we typically

would ask first whether that inaction represents waiver or for-

feiture. We need not decide that question, though, since any

error was not plain. Neither Brasher’s substantive theory (that

the conduct did not relate closely enough to the offense of

conviction) nor his procedural theory (that the district court

did not explain the connection) survives plain error’s strin-

gent standard of review.

A. Standard of Review

Even though Brasher did not preserve this argument, we

may consider it under the narrow exception expressed in Fed.

R. Crim. P. 52(b): “A plain error that affects substantial rights

may be considered even though it was not brought to the

court’s attention.” The bounded authority Rule 52(b) confers

reflects “the careful balance it strikes between judicial effi-

ciency and the redress of injustice,” which in turn explains the

prohibition on “unwarranted extension” of the Rule. Puckett

v. United States, 556 U.S. 129, 135 (2009) (quoting United States

v. Young, 470 U.S. 1, 15 (1985)).

8 No. 23-1180

To establish plain error, Brasher must “show (1) an error,

(2) that is plain, (3) that affects substantial rights, and (4) that

had a serious effect on the fairness, integrity, or public repu-

tation of judicial proceedings.” United States v. Haas, 37 F.4th

1256, 1264 (7th Cir. 2022) (cleaned up); see also Greer v. United

States, 593 U.S. 503, 507–08 (2021). We can set aside the latter

two elements for today because Brasher alleges an error in cal-

culating his Guidelines range, which ordinarily satisfies both.

See Molina-Martinez v. United States, 578 U.S. 189, 198 (2016)

(“substantial rights” prong); Rosales-Mireles v. United States,

138 S. Ct. 1897, 1908 (2018) (“fairness, integrity, or public rep-

utation” prong). With that in mind, our focus trains first on

whether the district court erred, and second on whether it did

so plainly, in a “‘clear,’ or, equivalently, ‘obvious’” way.

United States v. Sykes, 614 F.3d 303, 312 (7th Cir. 2010) (quoting

United States v. Olano, 507 U.S. 725, 734 (1993)). “We have

never required, however, that the error be obvious to the dis-

trict court, only that the error was obvious under the law.”

United States v. Burns, 843 F.3d 679, 687 (7th Cir. 2016).

Through that lens we assess Brasher’s arguments.

B. Substantive Theory

Brasher argues first that his past conduct was too dissimi-

lar from his offense of conviction—and too long before it—to

factor into his Guidelines calculation. For Brasher, the gap be-

tween these events overwhelms any similarity. The offense of

conviction occurred in late October 2021. Meanwhile, the

Crontz conduct commenced in December 2019 and concluded

in early August 2020. In sum, the last of the Crontz conduct

predated the Oaks deal by almost fifteen months. The N.N.

conduct reaches a bit further back—seven additional months.

No. 23-1180 9

Both timing and similarity factor into our analysis. One

comment to the pertinent guideline, U.S.S.G. § 1B1.3(a)(2),

cmt. 5(B)(i), calls for related offenses that are “substantially

connected to each other by at least one common factor, such

as common victims, common accomplices, common purpose,

or similar modus operandi.” Building on that foundation, we

ask for “a strong relationship” between the two, which the

government can establish with “a significant similarity, regu-

larity, and temporal proximity.” Rollerson, 7 F.4th at 572

(cleaned up). This relationship among similarity, regularity,

and temporal proximity works on a sliding scale. “[W]ithout

temporal proximity, the government needs a stronger show-

ing regarding the other course of conduct factors, such as reg-

ularity or similarity of acts.” United States v. Ortiz, 431 F.3d

1035, 1041 (7th Cir. 2005).

We agree with Brasher that temporal proximity is lacking

here. Indeed, our precedent rules out the contrary conclusion.

In one case, we held an eight-month gap was “enough to cast

doubt on the relevance of the earlier conduct.” McGowan, 478

F.3d at 802. The same goes for ten months. See Ortiz, 431 F.3d

at 1041. Another case even cites out-of-circuit precedent label-

ing a five-month gap “extremely weak” evidence of temporal

proximity. See United States v. Sykes, 7 F.3d 1331, 1337 (7th Cir.

1993) (citing United States v. Mullins, 971 F.2d 1138, 1144 (4th

Cir. 1992)); see also United States v. Hahn, 960 F.2d 903, 911 (9th

Cir. 1992) (six months). Drawing the line in this vicinity re-

flects a consensus, for several circuits have held temporal

proximity absent—and hence more similarity required—

when the gap between two offenses runs past a year. See

United States v. Garcia, 946 F.3d 1191, 1209 (10th Cir. 2020) (col-

lecting cases).

10 No. 23-1180

But that lack of temporal proximity only gets Brasher so

far, setting a higher bar for similarity and/or regularity. Ortiz,

431 F.3d at 1041. Here, we are satisfied that there was suffi-

cient similarity between the offense of conviction and the un-

charged conduct to satisfy the plain error standard. That

standard permits reversal only of “‘clear,’ or, equivalently,

‘obvious’” mistakes. Olano, 507 U.S. at 734. Mistakes resting

on “subtle, arcane, debatable, or factually complicated” dis-

tinctions fall outside that set. United States v. Hopper, 11 F.4th

561, 572 (7th Cir. 2021) (quoting United States v. Caputo, 978

F.2d 972, 975 (7th Cir. 1992)). A truly plain error should run

“contrary to well-settled law.” Id. (quoting United States v.

Salas, 889 F.3d 681, 687 (10th Cir. 2018)).

The district court did not violate well-settled law by in-

cluding this relevant conduct. To the contrary, many cases es-

tablish that where “the uncharged conduct involved the same

principal, the same location, and the same drug” as the of-

fense of conviction, those comparisons “render it similar

enough” to be relevant—even if “the charged and uncharged

offenses involved different participants and different

amounts.” United States v. Singleton, 548 F.3d 589, 592 (7th Cir.

2008); see also United States v. Dixon, 358 F. App’x 745, 748 (7th

Cir. 2010) (citing Singleton on this point); United States v. Ec-

cles, 705 F. App’x 468, 470 (7th Cir. 2017) (same).

Brasher’s past conduct and his offense of conviction share

all these characteristics. The “same principal” conducted all

these deals: Brasher himself. The “same location” features in

the Oaks and Crontz deals: a small area of southern Illinois.

(To put a finer point on it, the deals went down within a

twenty-minute drive of one another. Murphysboro, where the

Oaks deal occurred, sits just two towns over from the

No. 23-1180 11

Crontzes’ Ava abode.) And all the past conduct primarily

dealt with the “same drug” Brasher sold the source: ice meth-

amphetamine.

The similarities here go further, surpassing those in the

Singleton line of cases. Brasher consistently sourced his drugs

from Mexico by way of California. He typically sold in pound

quantities, even telling officers he had 100 pounds out on the

street. And many of the deals involved fronting and middle-

men. Certainly, all three of these additional factors—(1)

pound quantities of (2) California meth (3) fronted to middle-

men—apply to both the Oaks and Crontz deals. With all those

similarities, plus the Singleton line of cases, we cannot see how

“well-settled law” compelled the district court to decide oth-

erwise. Hopper, 11 F.4th at 572. Quite the opposite: together,

the multitude of similarities here make up precisely the kind

of “similar modus operandi” the Guidelines hold out as the key

to a finding of relevance. U.S.S.G. § 1B1.3(a)(2) cmt. 5(B)(i).

Brasher’s response is to assert that many crimes in the

Southern District of Illinois share these traits. He contends it

proves too much to include past conduct on such common-

place facts. Sure enough, we see our share of methampheta-

mine cases stemming from downstate Illinois. See, e.g., United

States v. Wright, 85 F.4th 851, 855 (7th Cir. 2023). And to his

credit, Brasher is correct that much of the nation’s meth sup-

ply originates from Mexico. See Drug Enforcement Admin-

istration, 2017 National Drug Threat Assessment 77 (2017)

(“The [southern border] remains the main entry point for the

majority of methamphetamine entering the United States.”).

But all this is beside the point. The goal of the Guidelines’

limitations on relevant conduct is to parse out which past con-

duct represents “part of the same course of conduct or

12 No. 23-1180

common scheme or plan” as the charged offense. U.S.S.G.

§ 1B1.3(a)(2). What matters is whether the scheme or plan is

common among the defendant’s activities. While some of the

individual similarities between Brasher’s charged and un-

charged conduct might not establish relevance alone, the con-

fluence of several similarities here adds up to a common plan

or scheme and assures us that the district court’s findings at

sentencing are free from plain error.

Brasher flags other differences between the Crontz and

Oaks deals: different accomplices, different modes of trans-

portation, different ways of picking up profits, and sometimes

different substances. These differences reflect only the vast

scope of his enterprise—it encompassed many people and

many modalities. Besides, no two deals are exactly alike. As

in Singleton, finding three key commonalities makes the two

sets of conduct “similar enough.” 548 F.3d at 592. Having

found those commonalities (and more), we need not address

each purported difference.

To the extent Brasher contests the relevance of his sales to

the confidential source N.N., it gains him nothing. Each was a

sale of a pound of Mexican methamphetamine, which is con-

sistent with Brasher’s established pattern. And any error on

the N.N. front was harmless. With the N.N. sales, the district

court held Brasher responsible for 68,756.49 kilograms of con-

verted drug weight. Removing those sales leaves nearly

67,000 kilograms. This lower weight would result in the same

offense level: 36. See U.S.S.G. § 2D1.1. Even if the district court

had plainly erred here, it makes no difference. The same goes

for the previous ounce-quantity sales to Tammy Crontz,

which totaled 170.1 grams (or, converted under the Guide-

lines’ math, 340.2 kilograms). The repeated, pound quantity

No. 23-1180 13

sales to the Crontzes dwarf these other transactions, and they

closely parallel Brasher’s conduct with Oaks.

It was not plain error to consider Brasher’s past conduct as

relevant and sentence him accordingly.

C. Procedural Theory

For his next argument, Brasher contends the district court

left unmet an obligation to explain why the past conduct was

relevant. See United States v. Sumner, 265 F.3d 532, 539 (7th Cir.

2001). Recall that the district court never explained why the

Crontz conduct was relevant. For good reason: Brasher did

not raise the issue. More than that, he disclaimed any intent

to dispute the PSR’s conclusions beyond three narrow

grounds. Now that sentencing is over and the district court

can no longer make a record on this topic, Brasher calls on us

to decide the issue.

A district court “aggregating drug quantities arising from

uncharged or unconvicted relevant conduct for purposes of

calculating a defendant's base offense level” should “explic-

itly state and support, either at the sentencing hearing or

(preferably) in a written statement of reasons, its finding that

the unconvicted activities bore the necessary relation to the

convicted offense.” United States v. Arroyo, 406 F.3d 881, 889

(7th Cir. 2005) (cleaned up).

Still, our law leaves no doubt: even when the district court

skips an explanation, “[w]e may nonetheless affirm without a

recitation of ‘magic words’ that reference § 1B1.3(a)(2) if the

record supports the district court’s conclusion.” United States

v. Westerfield, 714 F.3d 480, 488 (7th Cir. 2013); see also United

States v. Draheim, 958 F.3d 651, 659 (7th Cir. 2020). There is no

error if “the record could support the conclusion that the two

14 No. 23-1180

offenses were part of the same course of conduct.” Arroyo, 406

F.3d at 890. For the reasons above, this record could support

just that conclusion.

* * *

The judgment of the district court is

AFFIRMED.

No. 23-1180 15

JACKSON-AKIWUMI, Circuit Judge, concurring. I join the ma-

jority opinion because it applies our circuit’s current law on

relevant conduct to Bernell Brasher’s case, but I write sepa-

rately to highlight what I view as an unfortunate devolution

in our circuit’s handling of relevant conduct altogether. By

watering down our standard for what district courts must do

to ensure uncharged conduct is sufficiently related to conduct

for which a defendant is convicted, we further increase the

power of the government and the courts to punish individu-

als for conduct for which the government did not attain an

indictment or conviction. Sentencing based on relevant con-

duct is a constitutionally dubious proposition on its own, but

our circuit’s weakened standard only exacerbates the risk of a

constitutional violation. It’s time we correct course.

I

People unfamiliar with federal sentencing law might find

it hard to believe that the law allows sentencing judges to in-

crease a defendant’s sentence based on conduct for which the

defendant was not charged or convicted. Under this regime,

such uncharged, dismissed, or acquitted conduct is called

“relevant conduct,” which the United States Sentencing

Guidelines Manual defines somewhat circularly as “the range

of conduct that is relevant to determining the applicable of-

fense level.” U.S. SENT’G GUIDELINES MANUAL § 1B1.3 cmt.

background (U.S. SENT’G COMM’N 2023). For any given con-

viction, relevant conduct could include (1) acts and omissions

done or willfully caused by the defendant in connection with

the offense of conviction, see USSG §1B1.3(a)(1)(A); (2) acts

and omissions done by others in connection with the offense

of conviction as part of “jointly undertaken criminal activity,”

USSG §1B1.3(a)(1)(B); (3) acts separate from the offense of

16 No. 23-1180

conviction that involved the “same course of conduct” or a

“common scheme or plan” as the offense of conviction, USSG

§1B1.3(a)(2); and/or (4) any harm that results from the acts al-

ready described, see USSG §1B1.3(a)(3).

Jurists and practitioners alike have been unsparing in their

criticism of increasing a sentence based on conduct for which

the defendant has not been convicted. Justice Scalia described

two decades ago how sentencing a defendant for uncharged

conduct could lead to “absurd result[s].” Blakely v. Washing-

ton, 542 U.S. 296, 306 (2004). Justice Kavanaugh, then on the

D.C. Circuit, recognized the regime as a “dubious infringe-

ment of the rights to due process and to a jury trial.” United

States v. Bell, 808 F.3d 926, 928 (D.C. Cir. 2015) (Kavanaugh, J.,

concurring). Federal Defenders have denounced the practice

as a violation of defendants’ Fifth and Sixth Amendment

rights, the cause of unwarranted disparities, and a threat to

respect for the law. See, e.g., Letter from Marjorie Meyers,

Chair, Fed. Def. Sent’g Guidelines Comm., to the Honorable

Patti Saris, Chair, U.S. Sent’g Comm’n., at 29–33 (Aug. 26,

2011); Letter from Michael Caruso, Chair, Fed. Def. Sent’g

Guidelines Comm., to the Honorable Carlton W. Reeves,

Chair, U.S. Sent’g Comm’n., at App’x at 5 n.22 (Oct. 17, 2022).

Even the American Bar Association has rejected the prac-

tice. For 30 years, the organization has retained standards for

sentencing explaining that “[t]he offense of conviction should

be fixed by the charges proven at trial or established as the

factual basis for a plea of guilty or nolo contendere.” See ABA

STANDARDS FOR CRIMINAL JUSTICE SENTENCING § 18-3.6 (3d ed.

1994).

In the early days of the Guidelines, our court was similarly

skeptical of the relevant conduct enhancement. Shortly after

No. 23-1180 17

the Guidelines were promulgated (and still considered man-

datory), we observed that the relevant conduct provision “in-

vite[s] the prosecutor to indict for less serious offenses which

are easy to prove and then expand them in the probation of-

fice.” United States v. Ebbole, 917 F.2d 1495, 1501 (7th Cir. 1990)

(citation omitted). Because of that reality, we “urge[d] prose-

cutors not to indict defendants on relatively minor offenses

and then seek enhanced sentences later” under the relevant

conduct guideline. United States v. Fischer, 905 F.2d 140, 142

(7th Cir. 1990); United States v. Bacallao, 149 F.3d 717, 721 (7th

Cir. 1998). The problem was obvious, so we sought to curb its

excesses.

To guard against abuse of relevant conduct, our court de-

veloped a bright-line rule requiring district courts to “explic-

itly state and support” their finding that the uncharged or un-

convicted conduct bore the necessary relation to the convicted

conduct if they applied the enhancement. United States v. Du-

arte, 950 F.2d 1255, 1263 (7th Cir. 1991), cert. denied, 506 U.S.

859 (1992). Unfortunately, our commitment to that prophylac-

tic was short-lived.

II

In United States v. Duarte, 950 F.2d 1255, 1263 (7th Cir.

1991), we noted that the relevant conduct regime “grants the

government a fearsome tool” by allowing it to increase a

defendant’s sentence based on conduct for which it did not

pursue a charge or conviction. But that tool “has its limits,”

we said. Duarte, 950 F.2d at 1263. One such limit is that the

“district court must first find—by a preponderance of the

evidence—that those activities were ‘part of the same course

of conduct or common scheme or plan’ as the convicted

offense.” Id. To make that finding, we required district courts

18 No. 23-1180

to “explicitly state and support, either at the sentencing

hearing or (preferably) in a written statement of reasons,

[their] finding that the unconvicted activities bore the

necessary relation to the convicted offense.” Id. (citing United

States v. Jewel, 947 F.2d 224, 233–35 (7th Cir. 1991); United

States v. Edwards, 945 F.2d 1387, 1399–1400 (7th Cir. 1991);

United States v. Morrison, 946 F.2d 484, 501–02 (7th Cir. 1991)).

We held that that rule is violated where there is “no instance

in the record where the district court explicitly found” that

the uncharged conduct and the offense conduct were part of

the same course of conduct or common scheme. Id. at 1264.

Duarte’s rule was straightforward and easy to enforce. Our

application of it in United States v. Jackson, 983 F.2d 757 (7th

Cir. 1993), proves the point. In that case, several defendants

were convicted of conspiracy to possess cocaine with the in-

tent to distribute. One defendant pleaded guilty to five kilo-

grams, but the government argued in its presentence report

(“PSR”) and at sentencing that he should be held accountable

for all the cocaine involved in the conspiracy—an additional

45 kilos. Jackson, 983 F.2d at 771. The defendant objected and

requested an evidentiary hearing to determine if the addi-

tional drugs should be attributed to him. Id. The district court

denied his request and sentenced him based on the full 50 ki-

los. Id. When the case came to us, we vacated the district

court’s relevant conduct finding because “the district court

failed to support its findings in the record.” Id. at 772.

We reinforced Duarte’s rule again in United States v.

Sumner, 265 F.3d 532 (7th Cir. 2001). There, the defendant

pleaded guilty to distribution of cocaine. Sumner, 265 F.3d at

535. At sentencing, the government sought the relevant con-

duct enhancement based on the government’s representation

No. 23-1180 19

that Sumner had sold cocaine two years before. Id. at 537.

Sumner did not object to the inclusion of the drugs as relevant

conduct, but he did object to the government’s calculations.

Id. at 534–35. The district court overruled his objection and in-

creased his sentence using the relevant conduct guideline. Id.

at 536. On appeal, Sumner argued that the district court erred

by failing to articulate why the earlier conduct qualified as

“relevant conduct.” Id. at 537. We agreed. Id. at 540. After re-

viewing the transcript and PSR (which the district court had

adopted), we found that there was “no discussion” in the doc-

uments “about the similarity, regularity, or temporal proxim-

ity of the uncharged acts and the offense of conviction” other

than the naked facts. Id. As a result, we held that the district

court’s “failure to explain the connection between the un-

charged conduct and the offense of conviction was erroneous

under well-established law,” and vacated Sumner’s sentence.

Id.

We have applied Duarte’s rule to both overturn and affirm

sentencing decisions. Under Duarte, when district judges

stated their reasons for applying the relevant conduct guide-

line, we routinely affirmed the sentences the judges imposed

without second guessing those reasons. See, e.g., United States

v. Pollard, 965 F.2d 283, 288 (7th Cir. 1992) (affirming because

“the district judge stated his reasons for attributing the mari-

juana plants grown by [a co-defendant] for sentencing pur-

poses”); United States v. Cave, 46 F.3d 1134 n.2 (7th Cir. 1994)

(nonprecedential decision) (affirming because the “district

court made the necessary findings of fact both at the sentenc-

ing hearing and in its written order”); United States v. Staple-

ton, 70 F.3d 117 (7th Cir. 1995) (nonprecedential decision) (af-

firming because the district court “adequately articulated the

20 No. 23-1180

necessary relationship between the offense of conviction and

the other activities”).

The Duarte rule was workable because it struck a balance

between allowing prosecutors the benefit of the relevant con-

duct tool, while also making sure they showed their work.

And the burden on district courts was minimal: All the rule

required of them was to explain how the uncharged conduct

was relevant to the offense of conviction—an explanation the

government should have provided anyway.

Despite Duarte’s careful balance, some panels of this court

began chipping away at its rule. The first chip was carved in

United States v. Thomas, 969 F.2d 352 (7th Cir. 1992). There, the

defendant pleaded guilty to illegal possession of a firearm,

possession of cocaine with intent to distribute, and using and

carrying firearms during and in relation to a drug-trafficking

crime. Id. at 353. With an offense level of 12 and a criminal

history category of IV, the Guidelines mandated a sentencing

range of 21 to 27 months. Id. Thinking this was too low, the

government loaded up Thomas’s PSR with “relevant con-

duct,” and argued that such conduct earned him a Guidelines

range of 92 to 115 months. Id. at 354. The district court sen-

tenced him to 114 months. Id. Its explanation? “I find that . . .

. the statements in [paragraph 26 of the PSR] are relevant con-

duct under the drug charge in this case and that . . . would put

the defendant in the offense level 26.” Id. (citing Tr. at 10–11).

Thomas appealed the district court’s paper-thin rationale,

but he found no relief here. Even though we observed that the

district court “never explicitly found that Thomas’ various

drug sales were part of a ‘common scheme or plan’” and

“fail[ed] to provide an adequate discussion of the issue,” we

nevertheless affirmed because “[t]he district court clearly

No. 23-1180 21

adopted the government’s reasoning as to the amount of co-

caine that should be considered relevant conduct.” Id. at 355.

Thomas thus established an exception to Duarte: If the district

court adopts the relevant conduct alleged in the PSR and the

government’s explanation of it, the court need not make spe-

cific findings on the record.

Thomas wasn’t the only carve-out to the Duarte rule. Soon

came United States v. Acosta, where we affirmed a district

court’s application of the relevant conduct enhancement even

though the district court made only an “implicit determina-

tion” that the uncharged conduct was relevant to the offense

of conviction. 85 F.3d 275, 280 (7th Cir. 1996). We called it im-

plicit because “the judge did not expressly find that [the un-

charged conduct was] part of the same course of conduct”; he

merely “carefully considered whether the information in the

[PSR]” was reliable and adopted its findings. Id. Still, we de-

termined that we could consider in the first instance “whether

the evidence was sufficient to establish that [the uncharged

conduct was] part of ‘the same course of conduct or common

scheme or plan’ as Acosta’s [offense of conviction].” Id. at 281.

Ultimately, we affirmed Acosta’s sentence because our re-

view convinced us that the evidence “provide[d] ample sup-

port for [the district court’s] implicit conclusion.” Id.

Acosta’s expansion of Thomas was at once subtle and sub-

stantial. After Acosta, neither the district court nor the govern-

ment is required to explain how uncharged conduct alleged

in a PSR relates to the defendant’s offense of conviction. After

Acosta, we will affirm a district court’s application of the rele-

vant conduct guideline so long as “it is clear that the district

judge believed the required relationship to be present” and we

can find evidence in the record to support the judge’s implicit

22 No. 23-1180

finding. United States v. Patel, 131 F.3d 1195, 1204 (7th Cir.

1997) (emphasis added). See also United States v. Arroyo, 406

F.3d 881, 890 (7th Cir. 2005) (affirming application of the rele-

vant conduct enhancement despite finding that the district

court “made no explicit findings linking the cocaine evidence

to the offense of conviction” and “[t]he PSR also provides no

support for such a contention”); United States v. Locke, 643 F.3d

235, 244–45 (7th Cir. 2011) (explaining rule and collecting

cases).

Today, the rule in Acosta stands as the predominant rule

in our circuit. That is so even though we have never formally

overruled or abrogated Duarte.

III

This case is an appropriate one to explore our handling of

the relevant conduct guideline because the outcome would be

vastly different if either Duarte or Thomas were still acknowl-

edged as the law of the circuit. Faithful application of either

of those precedents would require that we vacate and remand

Brasher’s case for resentencing.

There is no question here that the district court did not

“explicitly state and support” its finding that the “relevant

conduct” listed in the PSR was sufficiently related to the of-

fense of conviction for purposes of the relevant conduct

guideline. Ante at 13. In fact, the court did not discuss the sim-

ilarities or differences between the “relevant conduct” and of-

fense conduct at all—it merely adopted the PSR and increased

Brasher’s sentence based on the facts contained therein. That

sequence of events would not survive review under Duarte.

Nor would it survive under Thomas. Recall that, under

Thomas, district courts could avoid their obligation to

No. 23-1180 23

“explicitly state and support” their relevant conduct finding

so long as they adopted the facts contained in the PSR and the

government’s theory of how the uncharged conduct relates to

the offense conduct. Here, the government provided no ex-

planation connecting the disparate offenses, so the exception

articulated in Thomas would be inapplicable.

Nonetheless, we affirm because, under Acosta and its

progeny, we are permitted to search the record and make the

connections for the government and the district court. While

I believe that the connections here are not particularly strong,

I recognize that this case comes to us on plain error review

and that we have previously sanctioned relevant conduct

findings for connections even more tenuous than those here.

* * *

In closing, I join the chorus of critics who have explained

that sentencing a defendant based on uncharged conduct is

suspect as both a constitutional and policy matter. The United

States Sentencing Commission has the authority to address

these issues, and it should. Until then, our circuit should en-

sure that our rules and standards are robust enough to pre-

vent constitutional violations wherever possible. The Duarte

rule did that. We should find our way back to it.