United States v. Dwayne Garrett

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 13-1182

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DWAYNE GARRETT,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 08 CR 401 — James B. Zagel, Judge.

____________________

ARGUED SEPTEMBER 17, 2013 — DECIDED JUNE 26, 2014

____________________

Before WILLIAMS, SYKES, and TINDER, Circuit Judges.

WILLIAMS, Circuit Judge. Dwayne Garrett was found

guilty of possessing with intent to distribute 50 or more

grams of crack cocaine and sentenced to 190 months in pris-

on. He appeals both his conviction and sentence.

We reject Garrett’s argument that the district court erred

in denying his motion to suppress alleged post-arrest state-

ments and information recovered from the search of his cell

phone. He claims that the post-arrest statements were inad-

missible, but phone calls intercepted by law enforcement of-

ficials, eyewitness testimony, and the recovery of a large

amount of money and drugs establish that officers had

2 No. 13-1182

probable cause to arrest him. Garrett also contends that law

enforcement officials did not have his consent to search the

contents of his phone, but the district court reasonably found

that Garrett consented to the phone search and properly de-

nied his motion to suppress.

Garrett’s argument that it was error to allow the investi-

gating agent to testify as an expert in the drug trade also

fails because the judge did not permit the parties to refer to

the officer as an expert before the jury. In addition, he cannot

prevail on his assertion that the court erred by instructing

the jury not to consider Garrett’s potential punishment be-

cause the court did not misstate the law or mislead the jury

in understanding its role. Similarly, his attack on the jury’s

special verdict form also fails because the use of the outdat-

ed form did not prejudice him since he received the benefit

of the Fair Sentencing Act’s reduced penalties at sentencing.

However, we do agree with Garrett’s argument that the

district court erred in calculating the appropriate Guidelines

range for Garrett’s drug offense because the court did not

clearly state the drug quantity that it found attributable to

Garrett or adequately indicate the evidence it found reliable

in determining his relevant conduct.

For these reasons, we affirm Garrett’s conviction, but va-

cate his sentence and remand for resentencing.

I. BACKGROUND

As part of a drug investigation that began in April 2007,

federal law enforcement officials from the Bureau of Alco-

hol, Tobacco, Firearms, and Explosives (“ATF”) tracked the

drug activities of Isaiah Hicks. These activities led them to

the defendant, Dwayne Garrett, who, during an intercepted

phone call on March 2, 2008, ordered a “nine,” meaning nine

ounces of crack cocaine, that was “all the way dry.” Based on

this conversation, the agents expected the exchange to occur

the following day. ATF agents also received a tip that a drug

No. 13-1182 3

transaction involving a purple Chrysler Concorde was going

to take place in the parking lot of a pizza restaurant on Chi-

cago’s South Side.

The next day, in addition to continuing to intercept

phone calls between Garrett and Hicks, ATF agents and of-

ficers from the Cook County Sheriff’s Police Department

(“CCSPD”) staked out the pizza place and surrounding area.

Garrett made another call to Hicks to confirm that he was on

his way to “the restaurant” and “ready for him.” Garrett

pulled into the parking lot of the pizza place with his co-

defendant, Patrick Jones, in Garrett’s purple Chrysler Con-

corde. After a detour and another call to Hicks, Garrett and

Jones returned to the parking lot where ATF Special Agent

Jeffrey Sisto saw another man enter the backseat of the car,

hand a plastic bag to Garrett and Jones, and leave. About

one minute later, Hicks called Garrett to ask if he was

pleased with the drugs and Garrett indicated that he was.

Garrett drove away from the restaurant, eventually

pulled over, and let Jones out. At that point, two CCSPD of-

ficers, who had been following Garrett, approached his car,

searched him, and found about $1,100 in cash and a cell

phone. They also found another phone in the car’s console.

Meanwhile, ATF Special Agents Hamilton Beal and Lee Casa

followed Jones, donning gear marked “police.” Agent Beal

testified that once Jones realized agents were pursuing him,

Jones ran down an alley and threw several plastic baggies

containing a white substance into the backyard of a house.

After catching Jones, the agents recovered three plastic bags

of crack cocaine from the backyard of that house and arrest-

ed both Jones and Garrett. According to Agent Beal, he ad-

vised Garrett of his Miranda rights en route to the Maywood

Sheriff’s Office. Agent Labno indicated that he interviewed

Garrett within two hours of his arrest as well as the follow-

ing day, March 4.

4 No. 13-1182

Garrett was indicted, along with more than two dozen

co-defendants, and charged with possession with intent to

distribute 50 or more grams of crack cocaine and using a cell

phone in furtherance of that crime. In pre-trial proceedings,

the district court found that there was probable cause to ar-

rest Garrett and denied Garrett’s motion to suppress his

post-arrest statements made to law enforcement officials on

March 3. So at trial, Agent Labno testified that Garrett

waived his Miranda rights and admitted that earlier that day

Hicks sold him nine ounces of cocaine packaged in four plas-

tic bags. Agent Beal testified that, based on that information,

he went back to the house where Jones had tossed the bag-

gies and found a fourth plastic bag containing cocaine. The

four baggies contained a total of 241 grams of crack cocaine.

Agent Labno also testified that Garrett consented to a search

of his cell phone, which contained Hicks’s phone number.

Although Garrett claimed he did not give consent, the court

had previously credited Agent Labno’s version of the events,

and the government offered this evidence at trial in support

of its argument that Garrett used a cell phone to buy drugs

from Hicks.

In addition to his lay testimony, the government also

sought to have Agent Labno testify as an expert in the field

of narcotics. Garrett moved to exclude the expert testimony,

but the court denied the motion, finding “nothing about the

nature of [Agent Labno’s] specific testimony in this case that

constitutes opinion evidence that is going to have any bear-

ing on his fact testimony.” The court did, however, caution

the parties not to refer to Agent Labno as an expert in the

presence of the jury, and they complied, only referring to his

expert testimony as “opinion” testimony. The judge also re-

ferred to Agent Labno’s expert testimony as opinion testi-

mony in his instructions to the jury. As a result, Agent Lab-

no was never called an expert in the jury’s presence. During

the expert portion of his testimony, Agent Labno discussed

No. 13-1182 5

general terminology and common practices in the crack co-

caine drug trade.

At the close of trial, the court instructed the jury not to

consider or discuss the sentence that might result from their

verdict. The district judge reiterated that, while it was the

jury’s job to determine whether Garrett was guilty, the ques-

tion of punishment should be left for his consideration alone.

The judge warned the jury not to speculate about the pun-

ishment or allow it to enter into its considerations or discus-

sions at any time.

The jury was given a special verdict form with instruc-

tions to determine, in addition to the question of guilt,

whether Garrett possessed with the intent to distribute a

measurable amount but less than five grams, at least five

grams but less than fifty grams, or fifty or more grams of

crack cocaine. Having heard evidence of the 241 grams of

crack cocaine the agents recovered on March 3, the jury se-

lected the box indicating that it found Garrett possessed and

intended to distribute 50 or more grams of crack cocaine. In

addition to returning a guilty verdict on the possession

charge, the jury found Garrett guilty of using a cell phone to

facilitate the drug deal.

The details of Garrett’s alleged March 4 interview with

Agent Labno became relevant at the time of sentencing. The

government indicated that Garrett fully cooperated with law

enforcement officials during this second interview and, in

addition to giving consent to search his cell phone, added

more details to the confession he made the day before. Spe-

cifically, Agent Labno stated that Garrett admitted that be-

tween the summer of 2007 and March 3, 2008 he bought at

least two kilograms of cocaine from Hicks and sold the

drugs to Jones. The district court credited Agent Labno’s tes-

timony and, although the government did not seek to admit

this evidence at trial, Garrett’s extended drug relationship

6 No. 13-1182

with Hicks became an important factor in determining the

drug quantity attributable to Garrett’s offense.

For the conviction of possession with intent to distribute

crack cocaine, the Presentence Investigation Report (“PSR”)

calculated Garrett’s base offense level at 34 because “the

amount of cocaine base [Garrett was] known to have ob-

tained and possessed for distribution was at least 840 grams,

but less than 2.8 kilograms.” This conclusion rested solely on

Agent Labno’s statement, contested by Garrett, that Garrett

confessed to purchasing at least two kilograms of crack co-

caine from Hicks over the course of their year-long buyer-

seller relationship. The PSR also recommended a two-point

enhancement for obstruction of justice based on its finding

that Garrett gave false testimony regarding his post-arrest

statements during his suppression hearing. With an adjusted

offense level of 36 and a criminal history category of V, the

PSR calculated the advisory Guidelines range as 292-365

months’ imprisonment. The court agreed that the appropri-

ate offense level was 36, but sentenced Garrett under the

Guidelines range appropriate for an offense level of 33 after

reducing Garrett’s offense level by two levels because of “a

certain uncertainty as to the quantity in this case” and one

level from the obstruction of justice enhancement because of

its insignificance within the context of the case. But the court

did not state the exact drug quantity for which it was finding

Garrett responsible. Finally, the court reduced his criminal

history category to Category III, finding that some of Gar-

rett’s previous offenses were unrelated to the instant offense.

Based on these findings, the court calculated the appropriate

Guidelines range as 168-210 months and sentenced Garrett

to 190 months’ imprisonment on the possession conviction.

Garrett now appeals his conviction and sentence.

II. ANALYSIS

Garrett argues that the district court committed various

errors during the course of his trial and sentencing. He asks

No. 13-1182 7

us to find that the district court erred in denying his motion

to suppress his post-arrest statements and information re-

covered from his cell phone, allowing Agent Labno to testify

as an expert in the drug trade, instructing the jury not to

consider his potential sentence in determining guilt, and in

determining the appropriate sentence for his conviction. We

take each of these arguments in turn.

A. No Error in Denying Motion to Suppress Post-

Arrest Statements and Cell Phone Content

It is Garrett’s position that the statements he made to law

enforcement officials on March 3 and March 4 should not

have been admitted at trial. Garrett argues that the March 4

statements were inadmissible because they were made more

than six hours after his arrest but before he was presented to

a magistrate judge. See Fed. R. Crim. Pro. 5(a)(1) (requiring a

defendant to be taken before the appropriate judicial officer

“without unnecessary delay”); Corley v. United States, 556

U.S. 303, 322 (2009) (holding that courts must decide wheth-

er the delay beyond six hours was reasonable before admit-

ting any confession made after that period). But we need not

decide whether Garrett’s March 4 statements were admissi-

ble, since the government did not offer those statements at

trial. 1

Garrett argues that the March 3 statements were inad-

missible because, when the agents arrested him, they lacked

probable cause to believe that he was involved in criminal

activity. Here, we review the district court’s legal conclu-

sions de novo and its findings of fact for clear error. United

States v. Breland, 356 F.3d 787, 791 (7th Cir. 2004). We will not

disturb the district court’s factual findings unless we are

1 We note in passing that Garrett’s March 3 statements were made within

six hours of his arrest, so the failure to present him to a magistrate is not a

basis to exclude those statements. 18 U.S.C. § 3501(c); see Corley, 556 U.S.

at 322.

8 No. 13-1182

“left with a definite and firm conviction that a mistake has

been made.” United States v. Bass, 325 F.3d 847, 850 (7th Cir.

2003) (quoting United States v. Tilmon, 19 F.3d 1221, 1224 (7th

Cir. 1994)).

Garrett is correct that the officers were required to have

probable cause, or a reasonable belief, “in light of the facts

and circumstances within their knowledge at the time of the

arrest, that the suspect had committed or was committing an

offense.” United States v. Biggs, 491 F.3d 616, 620 (7th Cir.

2007). Absent probable cause, the arrest would not have

been warranted, and any resulting statements or evidence

would most likely be the proper subject of a motion to sup-

press. See United States v. Fields, 371 F.3d 910, 914 (7th Cir.

2004).

But we do not agree that the district court erred in find-

ing that probable cause was established by the facts in this

case. At the evidentiary hearing, law enforcement officials

testified regarding their involvement in the wiretap opera-

tion and their observance of Garrett’s illicit activities. The

joint efforts of ATF and CCSPD resulted in the interception

of several phone calls between Hicks and Garrett suggesting

a drug transaction was underway and a tip that a drug

transaction involving Garrett’s purple Chrysler Concorde

would occur at a particular pizza restaurant on March 3. On

March 3, the officers witnessed Garrett and Jones, in Gar-

rett’s purple Concorde, receive a plastic bag from a man who

entered and exited the car in the pizza place’s parking lot.

This transaction occurred minutes after Garrett told Hicks he

was “ready for him,” and was immediately followed by a

phone call by Hicks to ensure that Garrett was satisfied with

the drugs. Surely this was sufficient to raise at least a rea-

sonable suspicion—if not probable cause—that crime was

afoot, which was all that was necessary for the officers to

stop Garrett to investigate. See United States v. Johnson, 383

F.3d 538, 543 (7th Cir. 2004). The discovery of $1,100 in cash

No. 13-1182 9

on Garrett’s person provided further support for probable

cause to arrest. But any remaining doubt as to probable

cause was dispelled once Jones, right after leaving Garrett’s

car, decided to run from the officers and toss several plastic

bags with white substances over a fence. The officers did not

arrest Garrett until they recovered these plastic bags and

saw that they contained a hard, white substance that looked

like, and was later determined to be, crack cocaine. The ini-

tial stop and arrest were lawful, and Garrett was not entitled

to suppress his March 3 post-arrest statements.

Garrett’s claim that the search of his cell phone was un-

constitutional fares no better. Both Agent Labno and Garrett

testified to the events that occurred on March 4 at the sup-

pression hearing. Garrett denied consenting to Agent Lab-

no’s search of his phone, but Agent Labno testified that he

did give consent. Although Agent Labno did not state in his

formal written report that Garrett consented or include any

discussions he had with Garrett regarding his phone, he pre-

sented his notes to the court, which contained various indi-

viduals’ names and phone numbers. The court found that

Agent Labno’s notes “boosted his credibility” and, after

hearing all of the evidence, concluded that Agent Labno’s

testimony was “far more credible” than Garrett’s.

We generally defer to the district court’s credibility de-

terminations at suppression hearings because we recognize

that, “unlike our review of transcripts, the district court had

the opportunity to listen to testimony and observe the de-

meanor of witnesses.” Biggs, 491 F.3d at 621. But this defer-

ence will not insulate the ruling if the district court “credited

exceedingly improbable testimony.” Bass, 325 F.3d at 850.

This is admittedly a very demanding burden. See Biggs, 491

F.3d at 621 (holding that “determinations of witness credibil-

ity can virtually never be clear error”).

Agent Labno’s testimony did not paint an exceedingly

improbable story. There is nothing uncommon about a sus-

10 No. 13-1182

pect offering information implicating other individuals in

criminal activity in the hopes that his cooperation with law

enforcement officials will result in a more favorable prosecu-

tion for him. Agent Labno testified that Garrett consented to

a search of his phone as an act of cooperation. Garrett’s tes-

timony that he was not cooperating does not transform

Agent Labno’s reasonable account into an improbable one. It

simply forced the district court to decide which party’s tes-

timony to credit. Since Agent Labno’s version of events was

not improbable, the district court did not clearly err in cred-

iting Agent Labno’s testimony over Garrett’s and we leave

the district court’s findings undisturbed.

B. No Error in Allowing Agent Labno to Testify as Fact

and Opinion Witness

Garrett next argues that the district court should not have

admitted expert testimony from Agent Labno at trial be-

cause it was irrelevant and improperly bolstered the gov-

ernment’s case. Our review of the district court’s decision to

admit expert testimony is for abuse of discretion. United

States v. Upton, 512 F.3d 394, 401 (7th Cir. 2008).

Garrett’s objection to the testimony on relevance grounds

is without merit. We have consistently upheld prosecutors’

practice of calling expert witnesses to discuss common prac-

tices of the drug trade in cases of drug dealing. See, e.g.,

United States v. Morris, 576 F.3d 661, 673–74 (7th Cir. 2009);

Upton, 512 F.3d at 401 (discussing various cases related to

the drug trade). During his expert testimony, Agent Labno

described the characteristics of crack cocaine, the quantities

of drugs that dealers typically possess for purposes of distri-

bution, common prices for wholesale quantities of crack co-

caine, and the meaning of certain industry code words. The

topics he discussed were relevant to points at issue in Gar-

rett’s trial. In a case, like this one, where the government was

attempting to prove that the intercepted calls between Gar-

rett and Hicks concerned the coordination of a drug deal,

No. 13-1182 11

deciphering code words commonly used in the drug trade

would undoubtedly “help the trier of fact to understand the

evidence or to determine a fact in issue.” Fed. R. Evid. 702.

Information on the quantities, prices, and characteristics of

crack cocaine served the same purpose. Understanding the

drug’s characteristics would help the jury determine wheth-

er the substances presented at trial as belonging to Garrett

were indeed illegal drugs, while testimony regarding the

drug’s wholesale quantities and prices would assist the jury

in deciding whether Garrett’s activities involved the distri-

bution of drugs or simply drug possession.

Whether Agent Labno was the proper person to offer this

expert testimony is a separate question. As we have said,

“Testimony runs the risk of being overly prejudicial when,

as here, the expert witness was a law enforcement officer

who was also involved in the investigation at issue.” Morris,

576 F.3d at 675. Our concern is that “the jury may attach un-

due weight to the officer’s testimony,” United States v. Lip-

scomb, 14 F.3d 1236, 1242 (7th Cir. 1994), and “unduly credit

the witness’s fact testimony given his status as an expert,”

Upton, 512 F.3d at 401 (overruled in part on other, unrelated

grounds). The heightened reliability that jurors often attach

to expert testimony could easily lead a juror to believe that

the officer’s fact testimony must be reliable as well, and

thereby elevate that testimony to a level of credibility that it

would not otherwise enjoy. Avoiding that danger is precise-

ly why “it is a better route not to use an investigating officer

as an expert in the first place.” Id.

While we caution against this practice, the district court

did not abuse its discretion in allowing the testimony in this

case. We find most persuasive the fact that the court never

referred to Agent Labno as an expert in the jury’s presence

and did not allow the parties to so refer to him. And the par-

ties only used the term “opinion testimony” in referring to

his experience and testimony regarding terminology and

12 No. 13-1182

practices of the drug trade. The judge also used the term

“opinion” testimony in each instance that he referred to

Agent Labno’s “expert” testimony before the jury. After the

proper foundation had been laid for his “expert” testimony,

the judge told the jury:

[Agent Labno] has already testified as a fact witness,

he is now going to offer opinion evidence …, and I

have permitted him, based on what you’ve just heard,

to offer such opinion evidence. I will instruct you lat-

er on the way you consider opinion testimony, in

general.

And later, at the close of trial, he gave this instruction:

You have heard witnesses give opinions about mat-

ters requiring special knowledge or skill. You should

judge their testimony in the same way that you judge

the testimony of any other witness. The fact that such

a person has given an opinion does not mean you are

required to accept it.

Clearly, Agent Labno was not referred to as an expert be-

fore the jury. Avoiding the use of the term “expert” goes a

long way in reducing the possibility that jurors will attach

“undue weight” to the testifying officer’s fact testimony and

substantially reduces any potential prejudice a defendant

may suffer from admitting fact and expert testimony from

the same officer. See United States v. Cheek, 740 F.3d 440, 447–

50 (7th Cir. 2014) (finding no error in admitting dual testi-

mony where the government “did not explicitly present [the

officer] to the jury as an expert”).

The court also took several other precautions to help the

jury distinguish between the two types of testimony. The

judge did not allow the government to lay the foundation for

Agent Labno’s expert, or opinion, testimony until after his

fact testimony was concluded. Moreover, the fact testimony

and expert testimony were, for the most part, completely

No. 13-1182 13

separate. The government specified when the fact portion of

Agent Labno’s testimony had concluded, and generally

steered clear of questions of fact during his expert testimony.

See Upton, 512 F.3d at 400–402 (finding no abuse of discretion

where a few questions were posed during the officer’s expert

testimony regarding his factual knowledge of the case). The

government’s questions regarding the meaning of code

words Garrett used during his phone calls with Hicks were

properly asked during his opinion testimony, since Agent

Labno’s understanding of these words was based on his ex-

perience in the field and not solely on his personal

knowledge of the case itself. See Cheek, 740 F.3d at 447–48

(explaining that where knowledge about the meaning of

drug code words is based on experience and expertise work-

ing in other drug cases it is expert testimony).

In addition, the court highlighted the distinction between

the fact testimony and opinion testimony in its instructions

to the jury:

You have heard the testimony of ATF Special Agent

Chris Labno, who testified to both facts and opinions.

Each of these types of testimony should be given the

proper weight.

As to the testimony to facts, consider the factors dis-

cussed earlier in these instructions … As to the testi-

mony on opinions, you do not have to accept Agent

Labno’s opinion. In deciding how much weight to

give it, you should consider the witness’s qualifica-

tions and how he reached his conclusions along with

the other factors discussed in these instructions for

weighing the credibility of witnesses.

Even though it is still possible that the in-depth foundational

questions required to qualify Agent Labno could increase, in

a juror’s mind, the reliability of his entire testimony, we find

that the many precautions the district court took to avoid the

14 No. 13-1182

potential pitfalls associated with dual testimony sufficiently

decreased any prejudice to Garrett in this case. See Upton,

512 F.3d at 401–02; United States v. Mansoori, 304 F.3d 635,

654 (7th Cir. 2002); Lipscomb, 14 F.3d at 1242 (recognizing

that the potential for undue prejudice “can be minimized by

cautionary instructions and by carefully constructed exami-

nation”). Therefore, the court did not abuse its discretion by

allowing Agent Labno to testify as both a fact and expert

witness.

C. No Error in Jury Instructions regarding its Duty or

in Special Verdict Form

Garrett next focuses on the court’s jury instructions, ar-

guing that the instruction not to speculate on the punish-

ment that would result from a guilty verdict was misleading.

While we conduct de novo review of questions of law un-

derlying the district court’s jury instructions, “the district

court is afforded substantial discretion with respect to the

precise wording of instructions so long as the final result,

read as a whole, completely and correctly states the law.”

United States v. DiSantis, 565 F.3d 354, 359 (7th Cir. 2009) (ci-

tations omitted). So we will only reverse if the instructions

mislead the jury by failing to correctly and sufficiently in-

form the jury of the applicable law and of its duty to deter-

mine the issues presented in the case. See United States v. Jav-

ell, 695 F.3d 707, 714 (7th Cir. 2012) (citations and quotations

omitted); DiSantis, 565 F.3d at 359 (citing United States v. Ma-

doch, 149 F.3d 596, 599 (7th Cir. 1998)).

Here, the court instructed the jury as follows:

If you find the defendant guilty, it will then be my

duty to decide what punishment should be imposed.

In considering the evidence and arguments that have

been given during the trial, you should not guess or

speculate about the punishment. It should not enter

into your consideration or discussions at any time.

No. 13-1182 15

Garrett argues that this instruction was misleading because

the jury was, in fact, being asked to determine drug quanti-

ties, and its determinations could trigger a mandatory min-

imum punishment. His argument is without merit. We read

the court’s instruction as informing the jury to focus on

questions of guilt and leave the matter of punishment for the

judge to determine. This instruction aligns with the principle

that determining the appropriate sentence upon conviction

is fully within the province of the judge, not the jury, a prin-

ciple supported by our case law. “Juries are not to consider

the consequences of their verdicts.” United States v. Diekhoff,

535 F.3d 611, 621 (7th Cir. 2008) (citing Shannon v. United

States, 512 U.S. 573, 579 (1994)). Indeed, “[t]he jury’s finding

of facts and application of those facts to the law just do not

require it to ponder what the ultimate sentence will be.” Id.

Nor does Garrett suggest, in his bare bones argument,

that the government made any statement before the jury that

misrepresented the consequences of returning a guilty ver-

dict. Therefore, the exception to the general rule that the sen-

tence does not concern the jury does not apply here. See id.

(noting an exception to the general rule “where there is a

danger that the jury has been misled regarding the conse-

quences of its verdict”). So we find no error in the district

court’s instructions, and decline Garrett’s invitation to re-

verse.

We also find no support for Garrett’s argument that the

district court erred in giving the jury a special verdict form

with outdated drug quantities because the error did not re-

sult in any prejudice against Garrett. Garrett’s offense oc-

curred at a time when conviction for possession with the in-

tent to distribute between five and 50 grams of crack cocaine

carried a mandatory minimum sentence of five years’ im-

prisonment and 50 or more grams of crack cocaine required

ten years’ imprisonment. See 21 U.S.C. §§ 841(b)(1)(A)(iii),

(b)(1)(B)(iii) (2006 ed.). But the Fair Sentencing Act of 2010

16 No. 13-1182

(“FSA” or “Act”) increased the threshold amounts of cocaine

base required to trigger statutory minimum penalties to 28

grams for five years’ imprisonment and 280 grams for ten

years’ imprisonment. See 21 U.S.C. §§ 841(b)(1)(A)(iii),

(b)(1)(B)(iii) (2010). At the time of Garrett’s conviction, courts

of appeals were divided on whether the FSA’s more lenient

penalties applied to defendants whose conduct occurred be-

fore the Act’s passage but who were sentenced after its en-

actment. The Supreme Court clarified in Dorsey v. United

States, 132 S. Ct. 2321, 2331 (2012), that the FSA applied to all

offenders sentenced after its effective date, even if their con-

duct preceded the Act.

The district court did not have the benefit of Dorsey when

it rejected Garrett’s special verdict form that proposed re-

placing the drug quantities that previously triggered manda-

tory minimums (5 and 50 grams) with the FSA’s amended

minimums (28 and 280 grams). Hindsight tells us that Gar-

rett was right to propose a verdict form that reflected the

drug quantities applicable under the FSA, but he did not suf-

fer any harm from the error. At sentencing, the court agreed

that the mandatory minimum was five years based on the

jury’s finding that Garrett was guilty of possessing with the

intent to distribute 50 grams or more of crack cocaine. Since

only 28 grams are required to trigger that five year mini-

mum under the FSA, and the jury found him guilty of at

least 50 grams, Garrett received the benefit of the FSA’s

more lenient penalty provisions and was not prejudiced by

the outdated special verdict form.

D. Sentencing Error in Not Making Explicit Drug

Quantity Finding

We come to a different conclusion regarding the district

court’s process for calculating Garrett’s advisory Guidelines

sentence. Garrett asserts that the district court erred in hold-

ing him responsible for at least 840 grams but less than 2.8

kilograms of cocaine base without first making a drug quan-

No. 13-1182 17

tity finding. We conduct clear error review of the district

court’s factual findings regarding the drug quantity in-

volved in Garrett’s offense. United States v. Krasinski, 545

F.3d 546, 551 (7th Cir. 2008).

As part of Gall’s two-step process, the trial court must

first correctly calculate the defendant’s Guidelines range.

Gall v. United States, 552 U.S. 38, 49 (2007). An essential part

of that calculation is determining the offender’s base offense

level. United States v. Claybrooks, 729 F.3d 699, 706 (7th Cir.

2013). Since for drug crimes, “a defendant’s base offense lev-

el is largely a function of the amount of drugs involved in

his offense,” sentencing courts are required to explicitly state

their drug-quantity findings in arriving at the appropriate

sentence. Id. Otherwise, the reviewing court is left without

any basis to determine whether the sentencing court proper-

ly executed its duty under the first prong of Gall’s two-

pronged mandate.

Our review is stymied because the court did not make a

clear finding as to the quantity of drugs it found attributable

to Garrett. It is undisputed that the evidence at trial con-

cerned approximately 241 grams of cocaine. Adopting this

quantity would have resulted in a base offense level of 30.

But the sentencing court can increase a defendant’s sentence

based on other relevant conduct not proven at trial, such as

the amount of drugs attributable to defendant, so long as

that conduct is proven by a preponderance of the evidence.

See United States v. Johnson, 342 F.3d 731, 734 (7th Cir. 2003).

The court is not limited by the rules of evidence at sentenc-

ing, but the evidence considered in determining the drug

quantity attributable to the defendant must carry indicia of

reliability. United States v. Westmoreland, 240 F.3d 618, 630

(7th Cir. 2001). The PSR, relying on Agent Labno’s statement

that Garrett admitted to purchasing at least two kilograms of

cocaine from Hicks, concluded that Garrett was responsible

for at least 840 grams but less than 2.8 kilograms, resulting in

18 No. 13-1182

a base offense level of 34. The PSR then applied a two-level

enhancement for obstruction of justice for a final offense lev-

el of 36. The court, at sentencing, stated its belief that 36 was

the appropriate offense level. But it never gave any indica-

tion of the drug quantity for which it found Garrett person-

ally responsible.

Had the district court indicated that it found the PSR re-

liable, stated why, and adopted the PSR’s finding that Gar-

rett distributed at least two kilograms of crack cocaine, we

would have a different record before us. “We have long held

that a district court may rely on factual information con-

tained in a PSR so long as it bears sufficient indicia of relia-

bility.” United States v. Davis, 682 F.3d 596, 613 (7th Cir.

2012). The court would have been within its discretion to

conclude that the PSR’s findings, based on Agent Labno’s

testimony that Garrett admitted possessing two kilograms of

cocaine, were more reliable than Garrett’s unsupported

word that he did not. Garrett’s denial alone would not nec-

essarily render the PSR’s factual finding unreliable. See id.

(finding that a defendant’s mere denial must be supported

by some evidence to cast doubt on the PSR’s reliability). It

would only require the court to make a credibility determi-

nation. United States v. Contreras, 249 F.3d 595, 602 (7th Cir.

2001) (affirming the finding that the law enforcement of-

ficer’s statement was reliable even in the absence of corrobo-

rating evidence and in the face of defendant’s denial).

At first glance, it appears that the district court did just

that by stating its belief that “the offense level is properly

calculated at 36.” Sen. Tr. 16. But the court never specified

the drug quantity it used to arrive at that conclusion or stat-

ed that it was adopting the PSR’s findings. To the contrary,

the judge expressed concern that the appropriate drug quan-

tity was unclear. Highlighting the lack of “specifics of the

admissions or its context” in Agent Labno’s report, the judge

found “a certain uncertainty as to the quantity in this case.”

No. 13-1182 19

Id. at 41. We cannot conclude that the court adopted the

PSR’s factual findings when it cast such doubt on the relia-

bility of the evidence the PSR used. See Claybrooks, 729 F.3d

at 707 (declining the invitation to find the district court

adopted the PSR when the district court questioned the reli-

ability of the information on which the PSR relied).

It is true that a sentencing court may, based on the pre-

ponderance of the evidence, reasonably estimate the drug

quantity that applies to a defendant’s offense. Krasinski, 545

F.3d at 551–52. But this does not mean that the court should

leave the drug quantity undetermined. United States v. Palm-

er, 248 F.3d 569, 571 (7th Cir. 2001). Instead, the court must

explicitly state its drug quantity finding, id., and provide

“some description of the reliable evidence used to support

the finding and the method used to calculate it,” Claybrooks,

729 F.3d at 707.

The district court erred because it neither explicitly stated

the drug quantity it found attributable to Garrett nor pro-

vided any indication of the evidence it found reliable. If the

court did not find Agent Labno’s testimony reliable, the

government would have been left with a base offense level

of 30 instead of 34. Using the same criminal history category

of III that the district court used but not accounting for the

application of the obstruction of justice enhancement (which

may have been affected by the district court’s drug quantity

finding), this change alone would have been the difference

between a Guidelines range of 188-235 months versus one of

121-151 months’ imprisonment. The government gives us no

reason to believe that the district court would have given

Garrett the same 190-month sentence if it had made a drug

quantity finding, and we do not find the court’s error to be

harmless. See United States v. Abbas, 560 F.3d 660, 667 (7th

Cir. 2009) (finding that proving harmless error requires the

government to show “that the Guidelines error did not affect

the district court’s selection of the sentence imposed”).

20 No. 13-1182

Therefore, we vacate Garrett’s sentence and remand the case

for resentencing.

Garrett correctly asserts that the Supreme Court’s deci-

sion in Alleyne v. United States means that, irrespective of the

drug quantity the court finds attributable to Garrett on re-

mand, the mandatory minimum sentence applicable to his

conviction must be based on the jury’s finding. See 133 S. Ct.

2151, 2163 (2013) (demanding that any fact, other than a pri-

or conviction, that increases the mandatory minimum pun-

ishment for an offense must be submitted to a jury);

Claybrooks, 729 F.3d at 708. After Alleyne, the sentencing

court is no longer in a position to increase the mandatory

minimum applicable to Garrett through its own drug quanti-

ty findings. See Claybrooks, 729 F.3d at 708 (“The district

judge cannot raise the mandatory sentencing floor based on

its own determination that [defendant’s] offense involved

additional amounts of narcotics beyond those determined by

the jury.”). The jury found that Garrett’s offense involved at

least 50 grams of crack cocaine, which normally triggers a

mandatory minimum sentence of five years’ imprisonment.

See 21 U.S.C. § 841(b)(1)(B)(iii) (2010). So even if the court

finds that Garrett was responsible for at least two kilograms

of crack cocaine (which corresponds with a mandatory min-

imum sentence of ten years, see 21 U.S.C. § 841(b)(1)(A)(iii)),

this finding could have no effect on Garrett’s mandatory

minimum sentence. See United States v. Hernandez, 731 F.3d

666, 672 (7th Cir. 2013) (affirming district court’s drug quan-

tity finding because it was not used to increase defendant’s

statutory mandatory minimum); see also Claybrooks, 729 F.3d

at 708.

But that will not limit the court’s sentencing hand as

much as Garrett hopes. Alleyne does not require the fact of a

prior conviction to be found by a jury. 133 S. Ct. at 2160 n. 1;

see United States v. Boyce, 742 F.3d 792, 799 (7th Cir. 2014). So

while Alleyne’s holding shields defendants from being sub-

No. 13-1182 21

ject to heightened mandatory minimum sentences based on

a judge’s drug quantity finding, it does nothing to protect

defendants from an increased mandatory minimum sentence

based on a prior conviction. The statutorily required mini-

mum penalty mandated by section 841(b)(1)(B) increases to

ten years’ imprisonment for defendants previously convict-

ed of a felony drug offense, id., and Garrett was convicted of

a felony drug offense in 1993. He tries to challenge the use of

this conviction as a basis for increasing his mandatory min-

imum under section 841(b)(1)(B) by contesting its validity,

but section 851 bars his attempted collateral attack. See 21

U.S.C. § 851(e) (“No person who stands convicted of an of-

fense under this part may challenge the validity of any prior

conviction alleged under this section which occurred more

than five years before the date of the information alleging

such prior conviction.”). Despite his arguments to the con-

trary, Garrett’s 1993 conviction qualifies as a proper basis to

increase his mandatory minimum sentence to ten years’ im-

prisonment. See § 841(b)(1)(B)(iii).

Garrett is also incorrect if he thinks Alleyne will necessari-

ly save him from receiving the same, or even a higher, sen-

tence upon remand. Though it can have no impact on his

mandatory minimum or maximum sentence, the court’s

drug quantity finding becomes relevant in helping the court

determine Garrett’s Guidelines sentence. See Alleyne, 133 S.

Ct. at 2163 (reiterating that trial courts’ “broad sentencing

discretion” can continue to be “informed by judicial factfind-

ing” without conflicting with the Sixth Amendment); id.

(“Our ruling today does not mean that any fact that influ-

ences judicial discretion must be found by a jury”); United

States v. Valdez, 739 F.3d 1052, 1054 (7th Cir. 2014) (finding

that district court’s calculation of “a greater drug quantity

solely for purposes of determining [defendant’s] Guideline

range” did not run afoul of Alleyne). Alleyne, and its prede-

cessor Apprendi v. New Jersey, only limit the judge’s discre-

22 No. 13-1182

tion to the extent that he may not sentence a defendant be-

low the mandatory minimum or beyond the mandatory

maximum established based on the jury’s findings, which in

this case, given Garrett’s prior felony drug conviction, is life

imprisonment. See § 841(b)(1)(B)(iii); see generally 133 S. Ct.

2151; 530 U.S. 466 (2000).

Since we find that the district court did not first ade-

quately calculate the appropriate Guidelines range, we do

not reach Gall’s second step. Our inquiry ends here because

the correct Guidelines sentence “provides the launching

point for our review under Gall’s [second,] substantive rea-

sonableness prong.” Abbas, 560 F.3d at 667. However, we

acknowledge the district court’s broad discretion to deter-

mine a reasonable sentence that may deviate from the ap-

propriately determined advisory Guidelines range upon

consideration of the § 3553(a) factors. Spears v. United States,

555 U.S. 261, 264–65 (2009); United States v. Booker, 543 U.S.

220, 245–46 (2005); United States v. Prado, 743 F.3d 248 (7th

Cir. 2014). The judge’s consideration of these factors may re-

sult in a downward or upward deviation from the Guide-

lines sentence and nothing in our opinion is intended to

suggest that the district court may not settle on the same sen-

tence upon review. But this discretion only kicks in once the

appropriate Guidelines range has been determined. See Unit-

ed States v. Boroczk, 705 F.3d 616, 622 (7th Cir. 2013); United

States v. Avila, 465 F.3d 796, 798–99 (7th Cir. 2006) (recogniz-

ing that the judge may come to the same sentencing conclu-

sion after considering various factors, but remanding for the

court to first determine the correct Guidelines range before

choosing a reasonable sentence).

III. CONCLUSION

We AFFIRM Garrett’s conviction but VACATE his sentence

and REMAND for resentencing consistent with this opinion.