United States v. Gray, William C.

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 03-3238, 03-3347, 03-3370,

03-3428, 03-3467 & 03-3617

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WILLIAM C. GRAY, FREDERICK H. LENOVER,

TONYA F. WOLFE, OSCAR MCGRAW, WALTER

DUREGGER, JR., and TONY P. MCMILLIN,

Defendants-Appellants.

____________

Appeals from the United States District Court for the

Southern District of Indiana, Terre Haute Division.

No. TH 02-18-CR-M/L—Larry J. McKinney, Chief Judge.

____________

ARGUED FEBRUARY 24, 2005—DECIDED MAY 23, 2005

____________

Before FLAUM, Chief Judge, and MANION and EVANS,

Circuit Judges.

EVANS, Circuit Judge. Before us in this appeal are 6 of 15

defendants, many high-ranking members of the Diablos

Motorcycle Club (DMC), who were charged with and con-

victed of being members of a methamphetamine conspiracy

in the Southern District of Indiana. William Gray, Frederick

2 Nos. 03-3238, et al.

Lenover, Tonya Wolfe, Oscar McGraw, and Tony McMillin

(he was also convicted on several related charges, two involv-

ing firearms) were convicted by a jury; Walter DuRegger

entered a guilty plea to the conspiracy charge. They appeal,

raising a bevy of trial and sentencing issues.

A very brief overview of the evidence, viewed in the light

most favorable to the government, shows that a conspiracy

to distribute methamphetamine1 was formed in 2001 when

1

We are seeing more and more cases involving methampheta-

mine. In a lengthy article (“My Addicted Son”) in the February 6,

2005, edition of the New York Times magazine, the author (David

Sheff) describes, in chilling detail, his only encounter with this

extremely nasty drug:

I snorted the lines through a rolled-up dollar bill. The chem-

ical burned my nasal passages, and my eyes watered. Whether

the drug is sniffed, smoked, swallowed or injected, the body

quickly absorbs methamphetamine. Once it reaches the cir-

culatory system, it’s a near-instant flume ride to the central

nervous system. When it reached mine, I heard cacophonous

music like a calliope and felt as if Roman candles had been

lighted inside my skull. Methamphetamine triggers the brain’s

neurotransmitters, particularly dopamine, which spray like

bullets from a gangster’s tommy gun. The drug destroys the

receptors and as a result may, over time, permanently reduce

dopamine levels, sometimes leading to symptoms normally

associated with Parkinson’s disease like tremors and muscle

twitches. Meth increases the heart rate and blood pressure

and can cause irreversible damage to blood vessels in the brain,

which can lead to strokes. It can also cause arrhythmia and

cardiovascular collapse, possibly leading to death. But I felt

fantastic—supremely confident, euphoric.

After methamphetamine triggers the release of neurotrans-

mitters, it blocks their reuptake back into their storage pouches,

much as cocaine and other stimulants do. Unlike cocaine,

however, meth also blocks the enzymes that help to break

(continued...)

Nos. 03-3238, et al. 3

Sam Hargrove and Gray, who were Californians, met

McGraw at a DMC meeting in Indiana. McGraw asked

Hargrove to supply him with methamphetamine. After the

meeting, Hargrove and Gray returned to California, where

Hargrove contacted a methamphetamine source who fronted

him five pounds of the drug. Hargrove and Gray concealed

the methamphetamine in a trailer hitch and shipped it to

Indiana. At some point, the volume of methamphetamine

increased, sometimes to 20 pounds per shipment, which

required a different (and bigger) hiding place. Hargrove and

Gray turned to concealing the methamphetamine in nerf

bars, which are running boards that attach to pickup

trucks. What ordinarily happened was that codefendant

John Durnin and Gray bought nerf bars, which they took to

Hargrove’s residence. Hargrove obtained the methamphet-

amine and Hargrove, Durnin, and Gray cut it with

dimethylsulfone, creating 20 pounds of product, which they

vacuum-sealed into one-pound packages. These packages

were placed in the nerf bars, which Durnin welded shut.

The nerf bars then were placed into a package for mailing

to either County Line Auto in Center Point, Indiana, or to

an address in Vincennes, Indiana. The shipments were

made by this method approximately twice a month—that is,

until law enforcement agents intercepted a shipment in

May 2002.

After that setback, Hargrove and McGraw met in

Las Vegas, Nevada, to discuss alternate methods for ship-

ment. They decided that Hargrove would conceal the meth-

1

(...continued)

down invasive drugs, so the released chemicals float freely

until they wear off. Methamphetamine remains active for 10

to 12 hours, compared with 45 minutes for cocaine. When the

dawn began to seep through the cracked window blinds, I felt

bleak, depleted and agitated. I went to bed and eventually

slept for a full day, blowing off school.

4 Nos. 03-3238, et al.

amphetamine in air compressors and ship them to Indiana

via heavy freight. They also decided to begin communicat-

ing more by e-mail than by telephone.

In Indiana, once the drugs arrived, Daniel Cheshire recov-

ered the methamphetamine from its hiding place. McGraw,

who directed the operation in Indiana, established the price

for the methamphetamine and directed Cheshire to deliver

specific quantities to specific individuals, who in turn sold

the drugs.

Throughout the conspiracy, the DMC had a chapter in

Terre Haute, Indiana. McGraw was the national president

of the club. Hargrove and Gray joined the San Fernando,

California, chapter in 1993. They became acquainted with

McGraw through the club. McGraw and Lenover, who was

president of the Indiana chapter, sponsored Donald Osborn

for membership in May 2001. McMillin was treasurer of the

Indiana chapter and he, McGraw, and Lenover obtained

money to pay their dues through selling methamphetamine.

As a result of an investigation into these activities, the

defendants before us were indicted of conspiracy to possess

with the intent to distribute and of distribution in excess of

500 grams of methamphetamine, in violation of 21 U.S.C.

§§ 841(a)(1) and 856. McMillin was also charged in a sub-

stantive distribution count and with the possession of a fire-

arm during a drug trafficking offense, in violation of 18 U.S.C.

§ 924(c)(A)(I). DuRegger pled guilty to the conspiracy count

and the others were convicted by a jury of all the charges.

McGraw and Gray were sentenced to life imprisonment,

Lenover to 350 months imprisonment, Wolfe to 324 months,

and McMillin to an aggregate sentence of 295 months.

DuRegger drew a term of 210 months.

The defendants raise a number of issues on appeal. They

contend that the district judge abused his discretion in find-

ing that the affidavit submitted in support of an application

for wire surveillance satisfied the necessity requirement of

Nos. 03-3238, et al. 5

18 U.S.C. § 2518(1)(c) and (3)(c). They also raise a number

of evidentiary errors. They contend the district court abused

its discretion in admitting evidence of membership in the

DMC, in admitting their photographs (and photographs of

their coconspirators) and allowing them to be on continuous

display, in admitting firearms into evidence and permitting

them to be on continuous display, and in admitting copies

of the court order authorizing wire surveillance. They also

contend that the court abused its discretion in prohibiting

them from attempting to impeach Hargrove’s testimony (he

cooperated with the government) with evidence of a perjury

conviction. And they contend that it was error to allow

Special Agent Douglas Freyberger to testify as an expert on

the identification and interpretation of drug code language.

McMillin contends that the fruits of a search warrant

executed at his home on June 26, 2002, should have been

suppressed. Finally, Lenover, Wolfe, McGraw, DuRegger,

and McMillin raise issues relating to their sentences.

We will turn first to the challenge to the affidavit sub-

mitted in support of the application for wire surveillance.

The defendants argue that the evidence obtained from the

surveillance should have been suppressed because the

government failed to establish the “necessity” for the wire

surveillance. We review a challenge to the necessity of wire

surveillance under an abuse of discretion standard, grant-

ing substantial deference to the determination made by the

district court. United States v. Zambrana, 841 F.2d 1320

(7th Cir. 1988).

Under 18 U.S.C. § 2518(1)(c), each application for wire

surveillance must contain a “full and complete statement as

to whether or not other investigative procedures have been

tried and failed or why they reasonably appear to be

unlikely to succeed if tried or to be too dangerous[.]” The

government need demonstrate only one of the three alter-

natives. United States v. Ceballos, 302 F.3d 679 (7th Cir.

2002). The burden of establishing necessity is “not great,”

6 Nos. 03-3238, et al.

and we must review the government’s compliance with the

necessity requirement in a “practical and common-sense

fashion.” Ceballos, 302 F.3d at 683 (quoting United States

v. Zambrana, 841 F.2d 1320, 1329 (7th Cir. 1988)).

The affidavit in this case addressed the necessity require-

ment and the use of alternative law enforcement techniques,

including the use of confidential sources and undercover

agents, grand jury investigations, search warrants, pen reg-

ister and telephone records, and physical surveillance. It

stated that the United States Drug Enforcement

Administration (DEA) tried to use confidential informants,

but they failed to provide the information needed and it

appeared unlikely that they would succeed in the future.

Confidential Informant #1 (CI1) refused to testify because

he was afraid that McGraw would arrange to have him

killed if he did. Further, he could not provide current in-

formation because he was incarcerated in another state.

These facts help establish necessity. See United States v.

Anderson, 542 F.2d 428 (7th Cir. 1976); United States v.

Thompson, 944 F.2d 1331 (7th Cir. 1991). Confidential

Informant #2 (CI2) could not provide information concern-

ing the full scope of McGraw’s drug trafficking because he

could not identify the methamphetamine source, the cour-

iers, or the customers, again facts going to necessity. See

Ceballos. Consistent with United States v. Zambrana, 841

F.2d 1320 (7th Cir. 1988), the affidavit also noted that an

undercover agent was unlikely to be able to infiltrate the

organization because of the insular nature of motorcycle

gangs in general and McGraw’s organization in particular.

As to grand jury testimony, the affidavit indicated that the

dealers would likely invoke their Fifth Amendment rights

if subpoenaed.

The affidavit also stated that the DEA and other law en-

forcement agencies attempted to execute search warrants

but that these also failed to achieve the goals of the inves-

tigation. The DEA had not identified any locations where

Nos. 03-3238, et al. 7

they could search for methamphetamine or money, and it

lacked a source of information about the arrival of metham-

phetamine in Indiana. A search warrant would also alert the

conspirators of the investigation. As in Zambrana, the

inability to conduct searches helps support a finding of nec-

essity. Pen registers merely confirmed a contact between

two telephones and could not identify the persons talking or

the nature of the conversations. See Ceballos. Physical

surveillance was ruled out because Cheshire’s residence,

where the methamphetamine was distributed to the

dealers, was in an isolated location and also was protected

with countersurveillance equipment. The difficulty of sur-

veillance also supports necessity. See United States v.

Farmer, 924 F.2d 647 (7th Cir. 1991). Considering all these

allegations, the affidavit supporting the application was

more than adequate for a finding of necessity for wire

surveillance.

Next, we consider McMillin’s contention that the district

court should have granted his motion to suppress evidence

obtained during a 2002 search of his home. When reviewing

a ruling on a motion to suppress, we review questions of law

de novo and questions of fact for clear error. United States

v. Liss, 103 F.3d 617 (7th Cir. 1997). McMillin argues that

the affidavit in support of the warrant did not contain suf-

ficient evidence—apart from evidence obtained during an

invalid 2001 search—to support a finding of probable cause.

We disagree.

The government acknowledges that if the 2002 affidavit

contained no facts arising after the earlier search, then there

would be no probable cause for the search and no good faith

on which the officers could rely. But the affidavit supporting

the 2002 warrant contains information subsequent to the

2001 search. A search warrant obtained, in part, with

evidence which is tainted can still support a search if the

“untainted information, considered by itself, establishes

probable cause for the warrant to issue.” United States v.

8 Nos. 03-3238, et al.

Oakley, 944 F.2d 384, 386 (7th Cir. 1991). The connection

with the unlawful search must be “so attenuated as to

dissipate the taint.” Murray v. United States, 487 U.S. 533,

537 (1988) (quoting Nardone v. United States, 308 U.S. 338,

341 (1939)). In assessing whether the results of the subse-

quent search must be suppressed, we ordinarily consider

whether the illegally obtained evidence affected the magis-

trate’s decision to issue the warrant and, secondly, whether

the agent’s decision to obtain a warrant was prompted by

knowledge of the results of the earlier illegal search. United

States v. Markling, 7 F.3d 1309 (7th Cir. 1993); see also

United States v. Real Prop. at 15324 County Hwy. E., 332

F.3d 1070 (7th Cir. 2003). In the present case, while

McMillan cites the two-part test, he argues only that “[s]et-

ting aside the information gained from the unconstitutional

entry, the Affidavit failed to contain sufficient credible in-

formation to justify the issuance of the Warrant.” Because

McMillin does not contend that the first search prompted

Agent Freyberger to seek the second warrant, we will consider

only the first prong of the inquiry—whether the illegally

obtained evidence affected the magistrate’s decision. As

always, the determination of probable cause involves a

“practical, common-sense decision whether, given all the

circumstances set forth . . . , there is a fair probability that

contraband or evidence of a crime will be found in a particu-

lar place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).

The government relies on three primary categories of new

information. The first is information obtained from CI1 that

McMillin was a member of the DMC and was involved in

ongoing methamphetamine trafficking for McGraw at his

residence. Secondly, there is the June 2002 intercepted

conversation between McMillin and “Amanda” in which

McMillin attempted to establish a meeting with McGraw to

discuss their drug trafficking activity. The government

acknowledges that the conversation could be subject to

various interpretations but argues that, given the totality

Nos. 03-3238, et al. 9

of circumstances and that drugs were seized after similar

conversations between other conspirators, it—taken with

other facts—offers support for a finding of probable cause.

We agree.

Finally, there is information that McGraw purchased ve-

hicles with drug proceeds and titled them under his busi-

ness name, S&S Engineering. In June 2002, DEA agents

observed a Cadillac registered to S&S Engineering parked

on top of a transport trailer in McMillin’s front yard. Look-

ing at the totality of the circumstances, we find there is

probable cause to support the warrant.

We will now turn to evidentiary issues. We review chal-

lenges to the admission of evidence only for an abuse of

discretion. United States v. Souffront, 338 F.3d 809 (7th Cir.

2003).

Taking the easy issues first, we note that the judge did

not abuse his discretion in admitting photographs of the

defendants and allowing them to be displayed during the

trial. The photos were admittedly used to allow the jury to

remember who the conspirators were, but that, by itself,

does not make them prejudicial. The defendants also say

that the photos were less than flattering. That may be, but

they were not mug shots and did not suggest that the con-

spirators were incarcerated.

Similarly, we see no abuse of discretion in the display

of the firearms seized. We have previously ruled that fire-

arms are often tools of the narcotics trade. United States v.

Alvarez, 860 F.2d 801 (7th Cir. 1988). They were relevant to

the charges. It is true that firearms probably riveted the

jury’s attention, but there is no rule that particularly strong

evidence must be hidden.

The defendants object to admission of membership in the

DMC. We first note that the government consistently re-

ferred to the DMC as a club, not as a gang, thus eliminating

some of the implications which could be drawn about the

10 Nos. 03-3238, et al.

group. Furthermore, the government did not proceed with

a theory that the club itself was distributing drugs. The

danger of a jury finding guilt by association is minimized if

the government does not substitute evidence of gang mem-

bership for proof that the defendants—as individuals—par-

ticipated in the drug distribution network. Here the club

evidence was used to show how some of the members knew

each other and how it came about that shipments were made

from California to Indiana. Given that club membership

played an important role in the distribution network, we see

no abuse of discretion in references to DMC membership. See

United States v. Thomas, 86 F.3d 647 (7th Cir. 1996).

Defendants also object to the admission of district court

orders authorizing wire surveillance. Their objection in this

court is that the evidence is not relevant, it is hearsay, and

that pursuant to Federal Rule of Evidence 403, its probative

value is outweighed by its prejudicial effect. While this claim

may have more substance than their other claims regarding

the admission of evidence, the objection was not preserved

in the trial court. At trial, the defendants had a continuing

objection to testimony about the wiretaps and information

gleaned from the surveillance. Mr. McGraw’s attorney

stated the objection: “I would like to make an objection to

this question and any further questions concerning the

wiretap intercepts on the grounds that the wiretap in this

case was violative of 18 U.S.C. Section 2518 and my client’s

rights under the 4th Amendment of the Constitution . . . .”

When the wiretap orders themselves were introduced,

counsel said, “Same objection made under 18 U.S.C. 2518

and the 4th Amendment.” The objection, as stated, went

only to the propriety of the seizures; it was not that the

orders themselves were prejudicial, irrelevant, or contained

hearsay. In short, the objection did not provide the court

with the nature of the objection “so as to alert [the judge] to

the proper course of action and enable opposing counsel to

take proper corrective measures.” Fed. R. Evid. 103 advi-

Nos. 03-3238, et al. 11

sory committee’s note. Therefore, our review on this issue

is conducted only under the rigorous plain-error standard.

As outlined in United States v. Olano, 507 U.S. 725, 732

(1993), before an appellate court can correct an error not

raised at trial there must be (1) “error,” (2) that is “plain,”

and (3) that “affect[s] substantial rights.” If all three con-

ditions are met, an appellate court may then exercise its

discretion to notice a forfeited error, but only if (4) the error

“seriously affect[s] the fairness, integrity or public reputa-

tion of judicial proceedings.” United States v. Atkinson, 297

U.S. 157, 160 (1936); Olano. The last criterion is often de-

scribed as an error which causes a “miscarriage of justice.”

United States v. Frady, 456 U.S. 152, 163 n.14 (1982); see

also United States v. Lechuga, 994 F.2d 346 (7th Cir. 1993).

Using the plain-error standard, we reject, without com-

ment, the defendants’ hearsay and relevance objections.

However, the objection pursuant to Rule 403 of the Federal

Rules of Evidence requires more attention. The issue is

whether the probative value of the orders “is substantially

outweighed by the danger of unfair prejudice . . . .” The

orders were presented, the government says, to assure the

jury that the wiretaps were legal and to allay any fears

about illegal surveillance.

Even were it necessary to show the jury that the wiretaps

were legal, the admission of the orders is troublesome. The

orders state that there is probable cause to believe that the

conspirators (who are named) “have committed, and are

committing, and will continue to commit violations of of-

fenses involving the receiving, concealment, buying, selling

or otherwise dealing in narcotic or other dangerous drugs . . . .”

The risk of prejudice in revealing that information to the

jury is real. Furthermore, there are other less prejudicial

ways to establish the legality of the wiretaps—a stipulation,

for instance, which would not reveal the exact findings on

which the orders were based (which could have been done

had a clear objection been made to the evidence).

12 Nos. 03-3238, et al.

But all we need decide in this case is whether admission

of the evidence constitutes plain error. Even were we to find

error that is plain, we could not find that the passing

reference to the orders affected either the substantial rights

of the defendants or the fairness or integrity of the judicial

proceedings. There was much more dramatic evidence of the

guilt of the defendants. The admission of the orders is not

so egregious as to affect the fairness of the proceedings. We

reject the contention that the admission of the orders rises

to the level of plain error.

The defendants also claim they should have been allowed

to impeach Hargrove with evidence of his 12-year-old per-

jury conviction. On this issue our review is for an abuse of

discretion.

Federal Rule of Evidence 609(a) provides that evidence of

convictions for crimes punishable by death or imprisonment

for more than one year is admissible if the court determines

“that the probative value . . . outweighs its prejudicial effect

to the accused[.]” Rule 609(b) places a time limit on the

evidence: “Evidence of a conviction under this rule is not

admissible if a period of more than ten years has elapsed

since the date of the conviction . . . unless the court deter-

mines, in the interests of justice, that the probative value

of the conviction supported by specific facts and circum-

stances substantially outweighs its prejudicial effect.”

The defendants argue that the impeachment value of a

perjury conviction can hardly be overstated. That may

sometimes be true. However, the perjury involved in

Hargrove’s case did not involve prior court testimony, but

rather a statement made on an application for a California

driver’s license. Furthermore, the defendants were allowed

to impeach Hargrove with four serious felony convictions,

including convictions for possession of methamphetamine,

for possession of a dangerous weapon, and for committing

an offense while he was on parole. We cannot say that the

Nos. 03-3238, et al. 13

judge abused his discretion by failing to admit the testi-

mony of the stale perjury conviction.

The final trial error which the defendants raise involves

the testimony of Special Agent Douglas Freyberger in his

capacity as an expert on the identification and interpre-

tation of drug code language. The government contends that

the defendants did not object to his qualifications as an

expert, and thus our review on this issue is for plain error.

We are somewhat taken aback by this argument. The

defendants raised an objection as to whether Freyberger

was qualified, pursuant to Rules 702 and 703 of the Federal

Rules of Evidence, to give specific testimony as to “what

words mean in the course of these intercepts . . . .” In

contrast to our discussion regarding the admission of the

wiretap orders, we find the objection here sufficiently clear

to preserve the issue. As we said in United States v. Joseph,

310 F.3d 975, 977 (7th Cir. 2002), in regard to a defendant’s

failure to cite the rule on which the objection was based: “It

is true that defense counsel did not cite Rule 404(b) explic-

itly at the motion-in-limine hearing, but he did say enough

to preserve that ground for appeal. It was clear to everyone

at the hearing that the parties were arguing about Rule

404(b).” See also Fed. R. Evid. 103(a)(1) (to preserve

evidentiary objection for appeal, party must make a “timely

objection or motion to strike . . . stating the specific ground

of objection, if the specific ground was not apparent from

the context”). The objection here was clear. Accordingly, our

review of whether Freyberger was properly qualified as an

expert is de novo and our review of the decision to admit the

testimony is for an abuse of discretion. United States v.

Allen, 269 F.3d 842 (7th Cir. 2001).

Beyond that small victory, however, the defendants fail to

carry the day on this issue. Freyberger was properly

qualified. Under Rule 702, an expert may testify if he has

specialized knowledge and is qualified based on “knowledge,

14 Nos. 03-3238, et al.

skill, experience, training, or education” and his testimony

“will assist the trier of fact to understand the evidence or to

determine a fact in issue.” See Allen, 269 F.3d at 845-46. At

the time of his testimony, Freyberger had been a DEA agent

for 7 years and previously had worked for 5 years as a nar-

cotics canine officer for the United States Customs Service.

He had participated in undercover drug enforcement and had

received special training in conducting wiretap investiga-

tions and had monitored telephone conversations during his

5 years as an agent in Chicago. He had also served as a co-

case agent in two previous wiretap investigations in Evans-

ville, Indiana. We find that this experience, as well as his

specific experience with these defendants, qualified him to

interpret the drug code they used.

We now arrive at the sentencing issues and our proce-

dure, set out in United States v. Paladino, 401 F.3d 471 (7th

Cir. 2005), for implementing the recent decision in Booker

v. United States, 125 S. Ct. 738 (2005), which, as we all know

well by now, made the United States Sentencing Guidelines

advisory. In Paladino we recognized that in some cases it is

possible for us to know—by something a judge said—that he

would have given the same sentence which was imposed

even if he had been prescient enough to know that the

guidelines were advisory. But, we noted, in most cases we

cannot know for sure what the judge would have done. The

cases of McGraw, Lenover, Wolfe, McMillan, and DuRegger

are in the latter category. Gray does not argue that he is

entitled to be resentenced. His life sentence is a result of his

two prior felony drug convictions and the provisions of 21

U.S.C. § 841(b)(1)(A), and not by operation of the sentencing

guidelines.

In sentencing Wolfe, the district judge made comments

which very well might lead us to believe that, in fact,

Wolfe’s sentence could have been less harsh had it not been

for the (then) mandatory guidelines. The judge said:

Nos. 03-3238, et al. 15

This is a harsh sentence. It is a harsh sentence for

several reasons, none of which are mysterious. Congress

says when you involve yourself with this much metham-

phetamine you get ten years to life. The Guidelines

propounded by the Executive Branch of the Government

are very harsh.

But then the judge continued, “[T]hey are harsh for a

reason, and the reason is—that reason you know very well

because you have experienced it, how it [methampheta-

mine] just tears up the family . . . .” Any conclusions we

might draw from that statement are again tempered by the

judge’s further comments about addiction and duress. He

notes that the guidelines “say what they say about depar-

tures and not being available for addiction.” He looks to

another potentially mitigating factor—that is, Wolfe’s

relationship with McGraw, and notes that even a “casual

observer” could see clearly “who was in charge of that rela-

tionship and who caused you to make many of the decisions

that you made.” But he found she did not qualify for a re-

duction in her guideline range for coercion and duress. So,

the judge concluded, “pursuant to the Sentencing Reform

Act of 1984, it is my judgment that you should receive the

minimum under these Guidelines,” which was a whopping

324 months. From this record, it is impossible for us to

know whether the sentence would have been different had

the judge known that the guidelines were advisory and, in

fact, that he could consider factors he was prohibited from

considering under the then-mandatory guidelines.

In sentencing DuRegger, the judge stated that it was his

“responsibility to look at the Guidelines again and see if the

Guidelines take into account the same things I would take

into account if they didn’t exist.” He concluded they did: “I

find in this case that they do take into account exactly what

I would have looked at and what I used to look at before the

Guidelines came into effect.” He noted particularly that

they took into effect the amount of drugs involved, the guns

16 Nos. 03-3238, et al.

involved, and acceptance of responsibility. But later, he

noted that the guidelines had removed some factors from

his consideration: “And one of the things these Guidelines

have done is they have moved from the court’s discretion

and consideration any guidance from what we used to call a

medical model; that is, dealing with addiction as a disease.”

He therefore declined to depart from the guidelines and

said, “[F]ollowing and reading these Guidelines I can’t—I

won’t depart.”

The sentencings of McMillin, Lenover, and McGraw do

not so clearly indicate specific factors which raise the pos-

sibility that the sentences might have been different but for

the guidelines. Nevertheless, in McGraw’s case, the judge

again referred to the “harsh sentences” set out by Congress

and the Sentencing Commission. Similarly, in McMillin’s

case, he again referred to the harsh sentences set out by

Congress and the Sentencing Commission and sentenced

him on the low end of the guideline range. In Lenover’s case,

the judge found again that the guidelines took into account

things he would have considered if the guidelines didn’t exist

and then sentenced Lenover to the middle of the range.

Lenover’s case, particularly, illustrates what we meant in

Paladino when we rejected the notion that if the judge im-

poses a sentence higher than the minimum, he would not

have imposed a “lighter sentence even if he had known the

guidelines were merely advisory.” We said that a “conscien-

tious judge—one who took the guidelines seriously whatever

his private views—would pick a sentence relative to the

guideline range. If he thought the defendant a more serious

offender than an offender at the bottom of the range, he

would give him a higher sentence even if he thought the

entire range too high.” Id.

Because in the cases of these five defendants we cannot

know for sure what the judge would have done had he known

what the Booker decision was going to be, our remedy, as

set out in Paladino, is to ask him. We therefore, pursuant to

Nos. 03-3238, et al. 17

the procedure explained in Paladino, retain jurisdiction of

the appeal and “order a limited remand to permit the sen-

tencing judge to determine whether he would (if required to

resentence) reimpose his original sentence.”

For the foregoing reasons, the judgments of conviction of

all the defendants are AFFIRMED; as to the sentences of

Wolfe, DuRegger, Lenover, McGraw, and McMillin, we direct

a limited remand to the district court as indicated herein

and retain appellate jurisdiction over the case.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—5-23-05