United States v. Parnell Gulley

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3411

U NITED STATES OF A MERICA,

Plaintiff-Appellee,

v.

P ARNELL G ULLEY,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 08 CR 20057—Michael P. McCuskey, Judge.

A RGUED A PRIL 8, 2013—D ECIDED JUNE 17, 2013

Before E ASTERBROOK, Chief Judge, and B AUER and

S YKES, Circuit Judges.

B AUER, Circuit Judge. Government agents set up

a crack cocaine deal between a confidential inform-

ant (CI), Anthony Heard, and a known crack dealer,

Pierre Blake. On October 21, 2008, Heard drove to the

meeting place wired with a concealed video and audio

recording device. The recorder, for all intents and pur-

poses, captured Parnell Gulley—Blake’s faithful driver—

2 No. 11-3411

getting into Heard’s car and exchanging a bag of crack

cocaine for $200. Gulley was indicted on one count of

knowingly and intentionally distributing 5 or more

grams of a mixture and substance containing crack

cocaine, in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(B).

The case proceeded to trial, which ended in a hung jury.

At the re-trial, Gulley’s counsel argued that Gulley did

not “knowingly or intentionally” deliver a controlled

substance in violation of the relevant statutes; the jury

disagreed and found him guilty.

During the second trial, the government presented

testimonial evidence that Gulley admitted to driving

Blake to a drug deal with Heard that occurred two days

after the charged offense. The government also pre-

sented Gulley’s admission that he knew Blake was a

crack dealer, that he frequently drove Blake around, and

that he had previously made a “delivery” for Blake.

This was in addition to evidence that crack cocaine,

ecstasy, and a firearm were found at Blake’s stash house

on the day he and Blake were arrested. Gulley did not

object to this testimony at trial, but he now contends

the evidence should have been excluded under Federal

Rule of Evidence 404(b).

At Gulley’s sentencing hearing, the district judge sen-

tenced Gulley to 327 months in prison, followed by an

8-year term of supervised release. In imposing his sen-

tence, the district judge explained that our precedent

prohibited retroactive application of the Fair Sentencing

Act of 2010 (FSA); that precedent has since been over-

turned. Gulley argues that he should be resentenced in

No. 11-3411 3

accordance with the FSA while the government

contends that any error regarding his prison term was

harmless. The parties agree that we should vacate the

supervised release term.

For the reasons that follow, we affirm Gulley’s convic-

tion but vacate his sentence and remand for resentencing.

I. BACKGROUND

Heard began working as a CI for the Champaign,

Illinois Police Department in 2008. The department origi-

nally arrested Heard in connection with an investiga-

tion into the sale of crack cocaine in the area, and Heard

agreed to cooperate as a CI in exchange for leniency.

In October 2008, the Champaign Police Department

began an investigation into the crack cocaine dealings of

a man known to Heard as “K.D.”—he was also known

as “Church” and was later identified as Blake. On the

morning of October 21, Heard placed several recorded

calls to Blake’s phone to arrange a controlled buy of

crack cocaine. A time, place, and price were agreed

upon. Two people were on the other end of the phone

calls at various times: Blake and an unknown male

voice, later identified as Gulley, Blake’s driver and as-

sociate. DEA Special Agent Pablo Ramos and

Officer Matthew Henson were present when Heard

made the calls.

Later that day, Heard was wired with a hidden

video and audio recording device to document the

planned transaction. After being equipped with the

4 No. 11-3411

device, Heard drove to the Country Brook Apartments

in Champaign, Illinois, where he parked his car, exited

the vehicle, and casually waited in the parking lot.

Special Agent Ramos and Officer Henson followed

Heard’s car to the meeting place but, once they got close,

kept at bay because other law enforcement person-

nel—DEA Task Force Agent Jack Turner, Officer Jaceson

Yandell, and another officer—were already in the im-

mediate area conducting surveillance.

Gulley, who at the time was still unknown to Heard

and the officers involved, walked out of the complex and

spoke to Heard shortly after Heard arrived. The two

men got into Heard’s car and, according to Heard,

Gulley placed a clear plastic baggy containing crack

cocaine on the armrest. Heard then gave Gulley $200

in cash, the amount the parties had agreed on. The

video recording does not show Gulley’s face inside the

car, the bag of drugs, or the money changing hands, but

the audio recorder captured Gulley’s voice as he

counted the cash. The audio recorder also captured

Heard asking Gulley about purchasing a “six-

trey”—63 grams of crack cocaine or one-sixteenth of a

kilogram—and whether Blake could come outside to

talk. At that time, Gulley got out of the car and went

inside the apartment complex. Blake walked outside

about a minute later with cocaine residue on his hands

and clothing, and he and Heard spoke about future

crack cocaine transactions. Blake said he would charge

$1,500 to $1,600 for a 63-gram deal.

Heard then left the apartment complex and drove to

his agreed-upon meeting location with law enforcement

No. 11-3411 5

personnel. Once there, Heard gave Special Agent Ramos

and Officer Henson the bag he received from Gulley,

which contained 6.8 grams of crack cocaine.

Two days later, on October 23, Heard arranged to

purchase 63 grams of crack cocaine from Blake, a sig-

nificantly larger amount than the first buy. Officers

parked a video-surveillance van near the residence

where Blake stayed with his girlfriend in Champaign,

which was a short distance away from the Country

Brook Apartments. The surveillance captured Gulley

and Blake leaving the residence, getting into a car, and

driving to the Country Brook Apartments at approxi-

mately 2:35 p.m. Gulley was the driver; Blake sat in

the front passenger seat. This information was relayed

to other agents and officers involved in the investiga-

tion who were standing by at other posts. Heard, again

equipped with a video-audio recording device, drove

to the Country Brook Apartments at approximately

the same time as Gulley and Blake.

At the apartment complex, Blake gave Heard a bag

containing 60.7 grams of crack cocaine in exchange for

$1,500. Heard then left the apartment complex and de-

livered the “goodies” to Special Agent Ramos and

Officer Yandell. Surveillance captured Gulley and Blake

returning to the residence Blake shared with his girl-

friend at about that same time.

On October 31, officers secured and executed warrants

to search, first, an apartment in the Country Brook Apart-

ments complex—Blake’s stash house—and, second, the

residence Blake shared with his girlfriend. Crack cocaine,

6 No. 11-3411

ecstasy, and a firearm were found at the stash house;

Gulley, Blake, Blake’s girlfriend, another man, and

$2,467 in cash were found at the residence. Officers

later determined that $1,700 of the cash was money

provided for the controlled buys. Gulley was arrested

and taken to the police station.

Gulley waived his Miranda rights at the station and

told Officer Yandell and Officer Henson that he was

unemployed and on parole. He initially told the officers

that he had no knowledge of or involvement in Blake’s

drug-dealing operation but admitted upon further ques-

tioning that Blake did not have a driver’s license; that

he drove Blake around to deliver cocaine, including

driving Blake to Chicago to pick up 9 ounces of cocaine

a few days before his arrest; that Blake kept cocaine at

an apartment in the Country Brook Apartments; and

that Blake sold cocaine in quantities of more than

3.5 grams. The interview was not recorded.

On November 18, 2008, Gulley was indicted on one

count of knowingly and intentionally distributing 5 or

more grams of a mixture and substance containing

crack cocaine, in violation of 21 U.S.C. §§ 841(a) and

841(b)(1)(B), for his conduct on October 21, 2008.

On January 6, 2009, Gulley agreed to cooperate with

the government in exchange for a grant of direct use

immunity. The agreement required him to provide

“complete and truthful” information regarding his

criminal conduct.

In accordance with the agreement, Gulley spoke, with

his attorney present, to Task Force Agent Turner and

No. 11-3411 7

Officer Yandell on February 2, 2009. Gulley admitted

to driving Blake around and being aware of Blake’s drug-

dealing venture: he explained that Blake received ap-

proximately 63 grams at a time, two to three days a

week, and that Blake described his apartment at the

Country Brook Apartments as his “stash house.” More

significantly, Gulley admitted that, on one occasion,

Blake had given him a “bag” at the apartment complex

and told him to deliver it to someone in the parking lot

in exchange for $200. Gulley stated that he was drunk

at the time and did not know what was in the bag. Addi-

tionally, Gulley admitted to selling cocaine for Blake

“on one occasion,” though he did not articulate a

specific date or time.

The government prosecutor contacted Gulley’s at-

torney on August 13, 2010, to discuss Gulley’s partic-

ipation at Blake’s upcoming trial. Four days later, on

August 17, the government was informed that Gulley

would no longer cooperate—Gulley told his attorney

that the government could dismiss the charge against

him or proceed to trial. Gulley did not testify at Blake’s

trial, and the government considered that a violation

of their agreement. The district court took judicial notice

of the government’s position on October 4, 2010.

Shortly before Gulley’s first trial, the government filed

an exhibit list that included, among other things, a

video recording from the October 21 controlled buy,

surveillance video from October 23, photos taken during

the execution of the October 31 search warrants, and the

Miranda warning form from October 31. In response,

8 No. 11-3411

Gulley’s counsel filed an “Objection to Exhibits and

Instructions” that asked the court to exclude “items of

evidence that pertain to dates other than October 21,

2008,” including “videos and tapes.” Also filed was a

general, catch-all motion in limine—which we discuss

in more detail below—asking the court to exclude

evidence of “bad conduct” that occurred on “dates dif-

ferent than October 21, 2008.” The district court denied

the motion without a hearing, concluding that the

evidence referred to in the motion in limine was

relevant under Federal Rule of Evidence 401 and not

unduly prejudicial under Rule 403.

The case proceeded to trial on October 4, 2010. The

government called five witnesses—Officer Henson;

Officer Yandell; Hope Erwin, a forensic drug chemist;

Task Force Agent Turner; and Heard. Gulley called

none. The district judge declared a mistrial after the

jury said it was “hopelessly deadlocked.”

A second jury trial began on February 7, 2011. The

government called the same five witnesses; Gulley

again called none. The government witnesses testified

regarding many of Gulley’s admissions about his rela-

tionship with Blake, statements discussing crack cocaine

on the October 21 and 23 recordings, the purpose of

conducting surveillance outside the residence Blake

shared with his girlfriend, and drugs and a firearm

being found at the Country Brook Apartments stash

house on October 31. Gulley’s counsel did not object at

trial to any of this information on Rule 403 or 404(b)

grounds.

No. 11-3411 9

The jury found Gulley guilty on the single count charged.

A sentencing hearing was held in October 2011.

The Presentence Investigation Report (PSR) stated

that Gulley was a career offender, see U.S.S.G. § 4B1.1, and

had an offense level of 37 and a criminal history category

of VI. This resulted in a recommended U.S. Sentencing

Guidelines range of 360 months to life imprisonment.

Gulley objected to the PSR and asked the court to

consider the FSA, which would have resulted in an

offense level of 34—and a lower Guidelines range. The

district judge rejected Gulley’s request and accepted

the PSR because our then-precedent was that the FSA

did not apply to criminal conduct occurring before the

FSA came into effect. Ultimately, however, the judge

varied from the Guidelines range and sentenced Gulley

to 327 months’ imprisonment, followed by an 8-year

term of supervised release.

II. DISCUSSION

On appeal, Gulley finds fault with the admission

of certain evidence at trial, as well as the Guidelines

calculation the district judge relied on when sentencing

Gulley. We address each issue in turn.

A. Evidence at Trial

Gulley contends that certain testimony was inadmis-

sible under Federal Rule of Evidence 404(b) and that its

admission denied him a fair trial. A district court’s

10 No. 11-3411

decision as to the admissibility of evidence at trial is

generally reviewed for an abuse of discretion. United

States v. Collins, No. 11-3098, 2013 U.S. App. LEXIS 9721,

at *6 (7th Cir. May 15, 2013). The parties here, however,

disagree as to whether Gulley’s counsel made a proper

objection to preserve the issue for appeal; if not, the

plain error standard applies. See United States v. Wolfe,

701 F.3d 1206, 1211 (7th Cir. 2012).

We have explained that, “[i]n order to preserve a

ruling on the admission of evidence for appeal, a party

must make ‘a timely objection or motion to strike

[which] appears of record, stating the specific ground of

objection, if the specific ground was not apparent from

the context.’ ” United States v. Rollins, 544 F.3d 820, 834

(7th Cir. 2008) (quoting Fed. R. Evid. 103(a)(1)). Gulley

did not object to the testimony on Rule 404(b) grounds

at trial, but before trial, Gulley’s counsel filed a terse

motion in limine with the following language:

The Defendant asks that the Plaintiff be prohibited

from introducing testimony, videos, tapes and ex-

hibits which pertain to dates other than October 21,

2008. The Plaintiff has filed a single charge and it

should not be allowed to attempt to show other bad

conduct to prejudice the Defendant on the Indict-

ment charge.

Gulley contends this was sufficient to preserve the

issue, but the motion was devoid of the specifics neces-

sary to satisfy the requirements of Rule 103. The district

court had no way of identifying exactly what type of

“bad conduct” Gulley was referring to, when and where

it occurred, or on what grounds the motion relied. See

No. 11-3411 11

Rollins, 544 F.3d at 834 (concluding that the admission

of testimony would be reviewed for plain error because

the grounds the defendant asserted on appeal “were

neither stated specifically nor apparent from context”).

We will review the testimony at issue for plain error.

Now to the merits: Federal Rule of Evidence 404(b)

prohibits “[e]vidence of a crime, wrong, or other act . . . to

prove a person’s character in order to show that on

a particular occasion the person acted in accordance

with the character.” Nevertheless, such evidence

may be admissible for another purpose, including to

prove opportunity, knowledge, or identity. Fed. R.

Evid. 404(b)(2). In determining whether evidence was

admissible under Rule 404(b), we consider whether:

(1) the evidence was directed towards establishing a

matter at issue other than the defendant’s propensity to

commit the crime charged; (2) the evidence showed that

the other act was similar enough and close enough in

time to be relevant to the matter at issue; (3) the

evidence was sufficient to support a jury finding that

the defendant committed the act; and (4) the probative

value of the evidence was substantially outweighed

by the danger of unfair prejudice, as required by

Rule 403. United States v. Hicks, 635 F.3d 1063, 1069 (7th

Cir. 2011).

The government called witnesses to testify that Gulley

admitted to occasionally driving Blake around so that

Blake could sell crack cocaine; Gulley was aware and had

knowledge of Blake’s drug-dealing activities; and Gulley

drove Blake to meet with Heard on October 23, 2008, to

complete a crack cocaine deal for which Gulley was not

12 No. 11-3411

charged. The witnesses also testified that crack cocaine,

ecstasy, and a firearm were found during a search of

Blake’s stash house on October 31, the day Gulley and

Blake were arrested. Gulley contends this testimony

was improper because it was not relevant, was only

offered to show Gulley’s “pattern or propensity” to

commit crimes, and was unduly prejudicial. The govern-

ment argues that the information was admissible for

reasons unrelated to Rule 404, as well as under the

Rule 404(b) exceptions. We need not address the gov-

ernment’s other explanations because the evidence was

admissible under the 404(b) exceptions.

As to the first prong: the crime charged (violating

21 U.S.C. §§ 841(a) and 841(b)(1)(B)) required the gov-

ernment to establish that Gulley “knowingly and inten-

tionally” delivered a controlled substance on October 21,

2008. Gulley’s counsel highlighted this requirement

during his opening statement and told the jury,

And that’s what we’re talking about here, is a

person that was in the area at the time in question,

[who] was not distributing cocaine as suggested by

the government in this matter. . . . After you hear all

of the evidence in this case in this matter, you will

not be convinced beyond a reasonable doubt that

there’s been any showing of a knowing and intelli-

gent, voluntary distribution of cocaine by Mr. Gulley

on the date in question.1

1

During opening statements in the first trial, Gulley’s counsel

told the jury, “And the charge, actually, is that he distrib-

(continued...)

No. 11-3411 13

And in his closing argument when discussing the

October 21 video, Gulley’s counsel stated, “If he just is

handing something over without paying attention to it,

that’s not a knowing violation of the law whatsoever.”

The defense did not call any witnesses at trial, nor did

Gulley testify, but it is clear that Gulley’s “defense” went

to his state of mind—i.e., even if Gulley delivered “some-

thing” on October 21, he did not know what it was; and

if that “something” was a controlled substance, Gulley

did not intentionally deliver it.2 The defense was more

than a general denial and a plea of “not guilty.” Cf.

United States v. Miller, 673 F.3d 688, 698 (7th Cir. 2012).

The government was, therefore, entitled to put forth

evidence to rebut the defense, see United States v. Conner,

583 F.3d 1011, 1023 (7th Cir. 2009) (“The government is

not relieved of its burden of proving an element

simply because [the defendant] did not challenge it.

To hold otherwise would be to tie the hands of the gov-

ernment in meeting its burden of proof where no

1

(...continued)

uted—‘knowingly and intelligently’ is the full charge there.

Sometimes people get up and say ‘knowingly,’ but it’s a two-

pronged requirement that the government has on them in

these proceedings.”

2

Gulley’s counsel also argued that Gulley was not the man

on the October 21 video recording or the person in the car

with Heard, but it is unnecessary for us to explain why the

evidence at issue may have been admissible under other

Rule 404(b) exceptions, like identity or opportunity.

14 No. 11-3411

defense was presented on an element, or indeed, an

entire charge.”) (internal citation omitted); see also

United States v. Villegas, 655 F.3d 662, 672 (7th Cir. 2011)

(explaining that the principle of door opening “depends

on the specific situation in which it is used and

thus calls for an exercise of judicial discretion”), and the

testimony at issue went directly to Gulley’s knowledge

on October 21: if Gulley drove around a known drug

dealer, had access to illegal drugs and a firearm, and

witnessed an illegal drug transaction two days after

the charged offense under circumstances similar to the

charged offense, it was more likely that Gulley knew

the clear bag he gave Heard contained crack cocaine. See

Conner, 583 F.3d at 1022 (stating that evidence of the

defendant’s relationship with a known drug dealer

and the defendant’s “extensive history of prior drug ac-

tivities” was admissible under the 404(b) exceptions

because it tended to show that the defendant “was not

simply an innocent bystander” to the drug transaction).

With respect to the second prong, we think the testi-

mony described conduct that was similar enough

and close enough in time to be relevant to the

charged offense. Initially, time proximity is not at issue;

the testimony involved events occurring shortly before

October 21, two days after on October 23, and ten days

after on October 31. Gulley’s main argument is that the

evidence was not “similar enough.” However, the fact

Gulley knew that Blake dealt drugs, including crack

cocaine—the drug he was charged with dealing—and

drove Blake to meet with Heard, the person he

was charged with dealing to, at the same place he

No. 11-3411 15

was charged with dealing, is directly on point with the

charged offense.

Gulley has a stronger argument regarding the ecstasy

and firearm that were found on October 31: ecstasy is

not crack cocaine, and the charged offense did not

include the use of a firearm. Nevertheless, our analysis

of the prong “need not be unduly rigid,” United States v.

Wheeler, 540 F.3d 683, 692 (7th Cir. 2008); our focus is

on “establishing the relevancy of the 404(b) evidence.”

United States v. Foster, 652 F.3d 776, 785-86 (7th Cir.

2011). “Simple differences in the type of conduct or

charge at issue cannot defeat the similarity require-

ment.” United States v. Long, 86 F.3d 81, 84 (7th Cir. 1996).

Here, the evidence was offered to show Gulley’s knowl-

edge of what was in the bag he gave Heard. It goes

without saying that a person with access to ecstasy at a

stash house, especially in the presence of a firearm, is

more likely to know what crack cocaine is than some-

one lacking experience with (or access to) either. We

do not think the simple differences between crack

cocaine and ecstasy undermined the relevance of the

information to the government’s argument; at the end

of the day, both are illegal drugs. Similarly, it is widely

known that guns and drugs go hand in hand. See

United States v. Perez, 581 F.3d 539, 547 (7th Cir. 2009)

(explaining that “weapons are ‘recognized tools of the

drug trade’ and . . . the possession of a gun can advance

the possession and future distribution of narcotics by

protecting the drugs or the drug dealer” (quoting United

v. Duran, 407 F.3d 828, 838 (7th Cir. 2005))); United States

16 No. 11-3411

v. Ramirez, 45 F.3d 1096, 1103 (7th Cir. 1995) (“[W]eapons

are tools of the narcotics trade such that this evidence

is admissible.”). The inference between Gulley having

access to guns and drugs and knowing what was in

the bag does not require an inordinate stretch of the

imagination. And under the facts of this case, we do not

believe the offense charged needed to include “use

of a firearm” to make the firearm evidence “similar

enough” so as to be relevant.

We briefly note Gulley’s barebones assertion that the

items cannot be “sufficiently similar” because he was

not at the stash house when the items were recovered,

but that is a non-starter. The argument is better aimed

at the forth prong. See United States v. Gomez, 712 F.3d

1146, 1154 (7th Cir. 2013) (“Assessing the extent of [the

evidence’s probative value] is a matter for the fourth

prong of the analysis.”).

The third prong is easily satisfied. The government

witnesses’ testimony was consistent: Gulley admitted

that he knew Blake’s “business” and that he drove Blake

around as Blake received, stored, and sold crack cocaine

from a stash house. Surely an individual’s own state-

ments are sufficient to support a jury finding that the

individual participated in the acts at issue. Furthermore,

eyewitness testimony can provide the foundation for

a “reasonable finding by the jury.” United States v.

Howard, 692 F.3d 697, 706 (7th Cir. 2012). All but one of

the witnesses observed the October 23 “deal,” and they

testified to the same facts as those captured on the

video and audio recordings. And finally, Gulley has not

No. 11-3411 17

challenged the execution of the search warrants on

October 31, or the collection of evidence at the stash

house or the residence, which we assume were done

properly. We think the evidence was sufficient to sup-

port a jury finding that the other acts at issue occurred.

Lastly, Gulley contends the evidence was unduly prej-

udicial under the fourth prong of the test, Rule 403. But

we can hardly fault the district judge for not conducting

a more thorough balancing test when the testimony

was never properly objected to. See United States v.

Baker, 655 F.3d 677, 682 (7th Cir. 2011) (“[A] district court

is not under an obligation to make every evidentiary

ruling orally; had [the defendant] wanted an oral ruling,

he should have objected on Rule 403 and Rule 404(b)

grounds.”). The same goes for Gulley’s criticism of the

judge for failing to give a limiting instruction. A limiting

instruction might have been helpful, see United States v.

Moore, 531 F.3d 496, 500 (7th Cir. 2008), but Gulley con-

cedes that he never requested one. See United States v.

White, 698 F.3d 1005, 1018 (7th Cir. 2012) (holding that

evidence admitted under a Rule 404(b) exception was

not unduly prejudicial even though the defendant

never sought, and the district court never tendered, a

specific limiting instruction).

Even so, the court will tolerate a greater risk of prejudice

when the evidence is more probative. United States v.

Miller, 688 F.3d 322, 329 (7th Cir. 2012) (quoting United

States v. Vargas, 552 F.3d 550, 557 (7th Cir. 2008)). In this

case, the evidence was extremely probative as it went

to the core of the issue before the jury—did Gulley know

18 No. 11-3411

what was in that clear plastic bag when he gave it to

Heard for $200? It was not merely tangentially-related

to the charge against Gulley or his defense. Although

the ecstasy and firearm evidence is a closer call, we are

not convinced the probative value was substantially out-

weighed by the danger of unfair prejudice. When

viewed in light of the sliding scale, none of the testi-

mony was so prejudicial that it induced the jury to

decide the case on an improper basis. See United States

v. Earls, 704 F.3d 466, 471 (7th Cir. 2012); United States v.

Albiola, 624 F.3d 431, 440 (7th Cir. 2010).

Gulley has not demonstrated that the district court

erred in the admission of the evidence discussed above,

let alone satisfied the plain error standard. Accordingly,

we conclude that the evidence was properly admitted.

As a final matter, the district court overruled an

objection at trial to Officer Yandell’s testimony that

Gulley admitted he was “on parole” at the time of his

arrest. The government and Gully both agree that the

district court abused its discretion by doing so. But we

will only grant a new trial for a single evidentiary error

if the “error likely had a substantial effect on the

jury’s verdict and the result was inconsistent with sub-

stantial justice.” Jordan v. Binns, 712 F.3d 1123, 1137

(7th Cir. 2013). Here, Gulley’s parole status was only

mentioned by one witness, on one occasion, and neither

party referred to it again throughout the rest of the

trial. Moreover, the details underlying the conviction

and subsequent prison term were never discussed.

We think the minor misstep was harmless beyond a

reasonable doubt.

No. 11-3411 19

B. Sentencing Guidelines Calculation

Gulley contends the district court’s failure to apply

the FSA was an error that requires us to remand for

resentencing. We review the district court’s procedures

in calculating a sentence de novo and its factual findings

for clear error. United States v. Fluker, 698 F.3d 988, 1001

(7th Cir. 2012).

Congress passed the FSA in 2010, which reduced

the sentencing disparity between crack cocaine and

powder cocaine offenders. See Fair Sentencing Act of

2010, Pub. L. No. 11-220, 124 Stat. 2372 (2010). Prior to

the FSA, for a defendant in Gulley’s position—a person

with a prior felony drug conviction who was convicted

of distributing more than 5, but less than 28, grams

of cocaine—the base offense level would have been 37,

with the applicable Guidelines range including a maxi-

mum term of life imprisonment followed by a minimum

of 8 years’ supervised release; as opposed to a base

offense level of 34, with a maximum term of 360 months’

imprisonment, followed by a minimum of 6 years of

supervised release. Compare 21 U.S.C. § 841(b)(1)(B) (2006),

with 21 U.S.C. § 841(b)(1)(C) (2012). When Gulley was

sentenced, our precedent was that the FSA did not

apply retroactively to criminal conduct that occurred

prior to the FSA’s passing. See, e.g., United States v. Camp-

bell, 659 F.3d 607, 609 (7th Cir. 2011), vacated and remanded,

133 S. Ct. 190 (2012). The district court followed that

precedent when calculating Gulley’s Guidelines range.

In Dorsey v. United States, ___ U.S. ___, 132 S. Ct. 2321

(2012), however, the Supreme Court held that the

20 No. 11-3411

FSA’s statutory penalties apply to defendants sentenced

after its effective date, August 3, 2010, even if the defen-

dant’s underlying criminal conduct occurred prior.

Gulley’s sentencing hearing was held on October 24,

2011; both parties agree the FSA applied in light of

Dorsey. The issue before us is whether the failure to

apply the FSA was harmless, or in other words, whether

we are convinced the judge would have imposed the

same sentence but for the procedural error. See United

States v. Tovar-Pina, 713 F.3d 1143, Nos. 12-1964, 12-1965 &

12-1966, 2013 U.S. App. LEXIS 8588, at *11-12 (7th

Cir. Apr. 29, 2013).

Gulley was sentenced to 327 months in prison, fol-

lowed by an 8-year term of supervised release. The gov-

ernment concedes that the failure to apply the FSA

might have affected Gulley’s term of supervised re-

lease. We concur and, thus, turn our attention to

whether the error also might have affected Gulley’s

prison term.

In support of its position that the error did not affect

Gulley’s prison term, the government argues that the

district judge actually applied the FSA when it varied

from the applicable Guidelines range at the time by

lowering Gulley’s offense level from 37 to 34, the same

number of levels it would be lowered by the FSA, and

by recalculating the advisory Guidelines range as 262

to 327 months’ imprisonment, also the same as that

applicable under the FSA. We are mindful of this

variance, but it is the government’s burden to prove

the sentencing error was harmless, e.g., United States v.

Suggs, 624 F.3d 370, 376 (7th Cir. 2010), and the sen-

No. 11-3411 21

tencing transcript here is, at best, murky. The district

judge practically invited an appeal of the sentence he

was going to impose before describing the rationale

behind Gulley’s sentence:

And the Seventh Circuit has said, as I made clear,

that the Fair Sentencing Act in the case of United

States v. Fisher, decided this year, and United States v.

Campbell, did not apply to you. You may get relief

from the Supreme Court of the United States, and so

be it. They will make the final decision as to

which circuit is correct. But you are being sentenced

today in the State of Illinois, in the Seventh Circuit,

and I must follow the law of this circuit. So Fair Sen-

tencing doesn’t apply.

And after explaining his rationale, the judge further

stated, “And, very frankly, I hope the Supreme Court

rules in your way. That will be their choice, and we’ll

see what happens.”

Again, we know the judge varied from the

applicable Guidelines range; however, there are at

least two reasons that could support the decision: the

judge’s desire to comply with the spirit of the FSA or,

alternatively, other facts unique to Gulley. The judge did

not explicitly explain the departure, cf. United States v.

Anderson, 517 F.3d 953, 965-66 (7th Cir. 2008) (concluding

that the sentencing error was harmless because the

district judge “clearly stated” he would impose the

same sentence even if his Guidelines calculation was

incorrect), and we are not convinced the judge would

have imposed the same sentence if the FSA had ap-

22 No. 11-3411

plied—he may have, but we cannot be “certain.” See

United States v. Zahursky, 580 F.3d 515, 528 (7th Cir. 2009).

We, therefore, vacate Gulley’s prison and supervised

release terms and remand for resentencing using the

correct Guidelines range.

III. CONCLUSION

For the foregoing reasons, we A FFIRM Gulley’s convic-

tion but V ACATE his sentence and R EMAND for further

proceedings consistent with this opinion.

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