United States v. Hankton, Clarence

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 03-2345 & 03-2915

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CLARENCE HANKTON and

GREGORY DAVIS,1

Defendants-Appellants.

____________

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 01 CR 1—Charles R. Norgle, Sr., Judge.

____________

ARGUED MAY 11, 2005—DECIDED DECEMBER 29, 2005

____________

Before COFFEY, MANION and WILLIAMS, Circuit Judges.

COFFEY, Circuit Judge. In a superseding indictment

dated May 15, 2002, Clarence Hankton, Greg Davis and six

other co-conspirators were charged in the United States

District Court for the Central District of Illinois with

conspiracy to possess with intent to distribute cocaine and

cocaine base, in violation of 21 U.S.C. § 846 and 18 U.S.C.

§ 2. The indictment also alleged that the defendants

participated in various other drug-related crimes arising

out of their membership in, and affiliation with, the

1

In an order dated July 16, 2003, this court consolidated the

appeals in this case for the purposes of briefing and disposition.

2 Nos. 03-2345 & 03-2915

“Mickey Cobras” (“MCs”) street gang, which operated on the

north-side of Chicago, Illinois during the 1980s and 1990s.2

On November 21, 2002, Hankton signed a plea agreement

in which he admitted distributing approximately 156 grams

of cocaine base to a confidential informant, in violation of 21

U.S.C. § 841(a)(1). The following day, Davis also agreed to

plead guilty to possessing, with the intent to distribute,

approximately 250 grams of cocaine, also in violation of 21

U.S.C. § 841(a)(1). Hankton was subsequently sentenced to

a term of 300 months in prison, while Davis was sentenced

to 210 months. On appeal, both men challenge the district

court’s application of the guidelines to their sentences and

claim that they are entitled to be re-sentenced in accor-

dance with the Supreme Court’s decision in United States

v. Booker, 543 U.S. 220 (2005). We uphold the validity of

both Hankton and Davis’ sentence, but remand to the

district court for further consideration as mandated by this

court’s decision in United States v. Paladino, 401 F.3d 471

(7th Cir. 2005).

I. BACKGROUND

During the late 1980s and early 1990s, Clarence Hankton

and Gregory Davis were prominent members of the MCs, a

dangerous and violent street gang that operated primarily

out of housing projects on the north-west side of Chicago.

The gang’s various criminal undertakings were coordinated

2

Hankton and Davis were also charged with the knowing and

intentional use of a communication facility (i.e., a telephone) in

the commission of a felony (distribution of a controlled substance),

and four separate counts of knowing and intentional distribution

of cocaine base, in violation of 21 U.S.C. § 843(b) and 18 U.S.C. §

2. In addition, Hankton was charged with four separate counts of

distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1),

and Davis was charged with possession with intent to distribute

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

Nos. 03-2345 & 03-2915 3

through a hierarchical-type infrastructure and included, but

were not limited to, the possession and distribution of

powder cocaine and cocaine base (better known as crack).3

In October 1999, the Federal Bureau of Investigation

(“FBI”) began investigating the MCs, utilizing confidential

informants,4 FBI surveillance and pen registers to gain

information on the organization.5 Information gathered in

the initial operational phase of the investigation allowed

law enforcement officers to gain a preliminary understand-

ing of the gang’s structure. Specifically, investigators

learned that both Hankton and Davis held leadership roles

in the MCs. Indeed, the evidence obtained by investigators

made clear that Hankton had, over a period of years,

progressed through the hierarchy of the MCs and attained

the position of “King of Kings,” or leader of the MCs on the

entire north side of Chicago. Meanwhile, Davis held the

position of “Sultan Supreme,” a lieutenant and leader of the

3

Cocaine base, better known as “crack” cocaine, is produced by

“cooking” or mixing powder cocaine (cocaine hydrochloride) with

sodium bicarbonate and boiling the mixture until left with a

rocklike formation of pure “crack” cocaine (cocaine minus the

hydrochloride). See United States v. Puckett, 405 F.3d 589, 597 n.8

(7th Cir. 2005); United States v. Edwards, 397 F.3d 570, 574 (7th

Cir. 2005).

4

During the investigation, the FBI temporarily used a member

of the MCs to serve as a cooperating witness. The informant

agreed to wear an undercover recording device while interact-

ing with Hankton.

5

“A pen register is a mechanical device that records the numbers

dialed on a telephone by monitoring the electrical impulses caused

when the dial on the phone is released.” United States v. New York

Tel. Co., 434 U.S. 159, 161 n.1 (1977). A pen register is “usually

installed at a central telephone facility [and] records on a paper

tape all numbers dialed from [the] line” to which it is attached.

United States v. Giordano, 416 U.S. 505, 549 n.1 (1974).

4 Nos. 03-2345 & 03-2915

MCs at a particular locale—in this instance the Lathrop

Homes projects on the north-west side of the city.

Despite success in the early stages of the investigation, in

the Spring of 2000 investigators came upon a situation

where the amount of information they required in order to

sustain the issuance of criminal charges against members

of the gang could no longer be safely obtained through the

investigative techniques they were currently employing (i.e.,

without putting agents in danger).6 That being the case, the

FBI applied for and received a court order authorizing a

wiretap of Hankton’s cellular phone.7 While monitoring the

wiretap, FBI agents recorded a number of inculpatory

conversations between Hankton and his associates during

the months of June, July and August of 2000.8 The recorded

conversations implicated Hankton, Davis and various other

individuals in the trafficking and distribution of drugs, as

well as other types of gang-related criminal activities and

violence. The wiretaps also provided the FBI with further

insight into Hankton and Davis’ respective leadership roles

in the MCs as well as more specific information on the

hierarchal structure of the organization. Armed with this

information, the government obtained arrest warrants for

19 individuals connected with the MCs and, on January 2,

6

For example, the government was unable to “obtain conclusive

information about Hankton and Hankton’s associates . . . without

arousing suspicion.” Additionally, “the use of undercover agents

[was determined to] be impractical and dangerous due to the

‘highly suspicious’ nature of the alleged offenders.”

7

The wiretap was granted pursuant to Title III of the Omnibus

Crime Control and Safe Street Act of 1968, 18 U.S.C. §§ 2518

(1)(b) & (c).

8

The initial intercept ran from June 15 to July 14, 2000, when

the warrant expired. An extension was applied for and granted on

July 20, 2000, and allowed continued surveillance through August

18, 2000.

Nos. 03-2345 & 03-2915 5

2001, Hankton and Davis were apprehended on allegations

of conspiring to possess cocaine and crack with the intent to

distribute, in violation of 21 U.S.C. §§ 841 and 846.

Following the arrests, on July 3, 2001, Hankton and

Davis, along with six9 other individuals, were indicted inter

alia on drug conspiracy and drug possession charges.10 As

discussed infra, Hankton and Davis entered into separate

plea agreements with the government and each of them

admitted facts sufficient to establish criminal liability

beyond a reasonable doubt. In addition, both defendants

and the government agreed to “reserve their respective

right[s] to argue their [respective] position[s]” during post-

conviction proceedings concerning certain factual issues

relating to the sentencing aspect of the proceedings.

A. Hankton’s Sentencing Hearing

In accordance with Rule 11(c)(1)(C) of the Federal Rules

of Criminal Procedure Hankton pled guilty to three counts

9

Among the co-defendants were Woodrow Green, Jammah Olden,

Rasuah Brunner, Ngaya Brunner, Timeka Murdock and Mekeba

Gates, many of whom were also members of the MCs and all

of whom also entered into plea agreements with the government.

10

In a nine count superseding indictment issued on May 15, 2002,

the grand jury charged both Hankton and Davis with “participat-

ing in a conspiracy to possess with intent to distribute and to

distribute in excess of 500 grams of . . . cocaine and in excess of 50

grams of [crack cocaine]” (Count I) and using communication

devices in committing the conspiracy (Count VII) in violation of 21

U.S.C. §§ 841 and 846. Also, Hankton and Davis were each

charged with additional counts; Hankton was charged with

“knowingly and intentionally” distributing over 150 grams of

crack cocaine in violation of 21 U.S.C. § 841(a)(1) (Counts II, III,

IV, and V) and Davis was charged with “knowingly and intention-

ally possessing with intent to distribute . . . approximately 250

grams of cocaine in violation of 21 U.S.C. § 841 (a)(1)” (Count VI).

6 Nos. 03-2345 & 03-2915

of distribution of crack cocaine, in violation of 21 U.S.C.

§ 841(a)(1). As part of the plea agreement, Hankton admit-

ted that on three separate occasions in Cook County,

Illinois, between February and April 2000, he distributed a

total of approximately 156 grams of crack to an individual

who, unbeknownst to him, was a confidential informant

recruited by the FBI.

Hankton’s plea agreement also set forth his disagreement

as to the two enhancements proposed by the government

under the sentencing guidelines: one concerning the drug

quantity involved and another pertaining to Hankton’s

alleged leadership role in the offense. As to the quantity of

drugs Hankton should be held responsible for, it was the

government’s position that, pursuant to U.S.S.G. §

2D1.1(a)(3), Hankton’s base offense level was 34 due to the

aggregate amount of drugs involved in the offenses he

admitted to, i.e., more than 150 grams of crack. Nonethe-

less, the government insisted that “based on [Hankton’s]

offense conduct and relevant conduct” he was actually

responsible for distributing more than 500 grams of crack,

which would result in an offense level of 36. In addition, the

government contended that Hankton’s offense level should

be “increased by 4 levels because the defendant was an

organizer and leader of criminal activity that involved five

or more participants,” pursuant to U.S.S.G. § 3B1.1(a).11

To support the proposed guidelines enhancements, the

government presented evidence detailing Hankton’s role as

a “leader or organizer” within the MCS organization.

Bearing upon this was testimony given by a number of

prosecution witnesses who confirmed Hankton’s involve-

ment in the murder of Annette Williams, a fellow member

11

Subtracting 3 points for Hankton’s acceptance of responsibility,

see U.S.S.G. § 3E1.1, the government recommended that

Hankton’s requisite offense level should be 37 and that, due to the

fact his criminal history category was at level III, the appropri-

ate sentencing range was 262 to 327 months.

Nos. 03-2345 & 03-2915 7

of the MCs, in April of 2004. Chicago Police Detective

Kenneth Charles, one of the officers charged with investi-

gating Williams’ murder and a court recognized expert on

the MCs, related information that he uncovered which led

him to believe that Hankton had ordered the beating that

resulted in Williams’ death. Based on his understanding of

the inner-workings of the MCs, Charles stated that on April

12, 2004, Williams had been issued a severe beating or

“violation” as the MCs called it, for allegedly stealing

approximately $3,000 from the gang. As Charles explained,

Hankton held the position of “don” or foreman of the MCs

at the Cabrini-Green housing project where Williams lived,

and had the authority to order a “violation” of this kind.

What’s more, Detective Charles testified that he personally

witnessed Hankton standing with several other men in the

parking lot of Williams’ building at 1150-60 North Sedgwick

Street, from 8:00-10:00 p.m. the evening of her murder.

To corroborate Detective Charles’ testimony, the govern-

ment introduced sworn statements from two sub rosa

government witnesses, identified in the record only as A

and B.12 In their statements both witnesses identify

Hankton as the “don” or leader of the MCs at Cabrini-

Green. A and B’s statements also unequivocally acknowl-

edge that the order to beat or issue a “violation” to Wil-

liams—which resulted in her death—was issued by

Hankton personally.13 They also related that the “viola

12

The district judge mandated that the names of the witnesses be

kept confidential, due to the fact that they feared retribution from

the gang for their statements. In addition, the judge agreed to

maintain the two witnesses statements under seal on the similar

grounds.

13

The statements did suggest that the original order to issue

Williams a beating may have emanated from, or been approved

by, a higher authority in the gang; however, A and B agree that

(continued...)

8 Nos. 03-2345 & 03-2915

tion” or beating was ordered because Williams had stolen

some money from the gang.

The government next introduced evidence directed

towards establishing that Hankton was responsible for

distributing more than 500 grams of crack cocaine, as

opposed to the 150 grams he admitted to distributing. Agent

Darin, a member of the FBI’s joint gang task force and a

trained drug traffic investigation agent, testified concerning

Hankton’s coordination of the drug trade for the MCs as

well as his role as “King” or leader of the gang throughout

the city in 2000 and 2001. In order to assist the court in

understanding Hankton’s role in the drug trade, Agent

Darin—based on his training and four years of experience

with drug investigations—testified as to his interpretations

of the conversations extracted from the FBI’s wiretap

recordings, which were replete with code language.14

13

(...continued)

the order to beat Williams came to them directly from Hankton.

14

The members of the gang used phrases such as “a 16th” or a

“teenager” to refer to 1/16th of an ounce of crack cocaine, “eight-

ball”, “ball” or “Michael Jordan” to refer to 1/8 of an ounce of crack

cocaine, “quarter”, “quaker” or “quake” to refer to 1/4 of an ounce

of crack cocaine and “onion”, “zone” or “piece” to refer to a whole

ounce of crack cocaine. As this court has previously noted “[i]t is

well known that drug dealers commonly use code language out of

fear that their conversations will be intercepted.” United States v.

Harris, 271 F.3d 690, 702 (7th Cir. 2001). Indeed, as we noted in

United States v. Vega:

Conversations regarding drug transactions are rarely clear.

A fact-finder must always draw inferences from veiled

allusions and code words. In this case the jury was confronted

with conversations which contained “code words” that, when

considered in isolation, might seem unclear, veiled and

almost nonsensical, but when analyzed properly, in the

context of the totality of the evidence, can clearly be seen to

(continued...)

Nos. 03-2345 & 03-2915 9

Specifically, Darin provided background for a number of

controlled drug purchases (from Hankton) conducted by the

FBI15 and described admissions by the co-defendants that

they purchased varying amounts of crack cocaine from

Hankton. In one conversation with a MCs associate, for

example, Hankton is asked whether he “got that butter?”.

Hankton responds that “[i]t’s . . . guaranteed.” Agent Darin

testified that “butter” was a common code word for cocaine

and that the two were actually discussing the future sale of

either crack or powder cocaine. In another conversation,

14

(...continued)

be “code words” for drugs. . . . It is true that, advisedly, no

explicit mention was ever made of cocaine or other drugs in

any of Vega’s conversations with the Zambranas. However, a

case was made, which was more than strong enough to

convince the jury, that Vega used terms like “chickens,”

“roosters” and “it” as code words for drugs. Not only are code

words always used by drug conspirators when they realize, as

they do in today’s drug culture, that their telephone conversa-

tions are frequently intercepted, such term were obviously

used by the conspirators in this case. . . . [W]e have frequently

upheld conspiracy determinations made by judges and juries

which have relied upon inferences that “code words” or

obscure language were meant to refer to drugs.

Harris, 271 F.3d at 702-03 (quoting United States v. Vega, 860

F.2d 779, 798 (7th Cir. 1988), abrogated on other grounds by

United States v. Durrive, 902 F.2d 1221 (7th Cir. 1990)). As

explained infra, the rules of evidence do not apply at sentencing,

thus the judge’s decision to consider the code language testimony

given by Agent Darin was squarely within his discretion. See, e.g.,

United States v. Hardamon, 188 F.3d 843, 849 (7th Cir. 1999).

Also, as the factfinder at sentencing, the judge was free to draw

whatever conclusions he might about the testimony given and

evidence introduced in order to determine an appropriate sen-

tence. See, e.g., United States v. Sutton, 406 F.3d 472, 474 (7th

Cir. 2005).

15

Through the use of the cooperating witness, the FBI was able to

conduct a number of controlled purchases of crack cocaine.

10 Nos. 03-2345 & 03-2915

Darin described a conversation between Hankton and co-

defendant Jammah Olden, where Olden requests that

Hankton supply him with: “About a half.” Darin testified

that, “a half”, as used in that particular context, referred to

one half-ounce of crack cocaine. The government estimated

that, based on Agent Darin’s testimony and the wiretap

evidence alone, Hankton was responsible for distributing

approximately 456 grams of crack cocaine.16

Agent Darin also testified concerning Hankton’s ascension

from the role of “don,” the title he held in the mid-1990s, to

“King,” the title he held from 1999 to 2001. As the “King,”

Hankton was responsible for everything from the direction

of the conversion of powder cocaine into crack to the

organization of the gang’s basketball games. Hankton’s role

as “King” was also supported through Agent Darin’s

description of physical evidence that was confiscated from

Hankton’s residence upon a search warrant—such as letters

calling Hankton the “King”, statues of cobras wearing

crowns and jewelry of crowns—all referring to Hankton’s

leadership position in the gang as the “King of Kings.”

In order to corroborate Agent Darin’s testimony, the

prosecution called one of Hankton’s co-defendants, Jammah

Olden. Also a member of the MCs, Olden recounted that the

main source of revenue for the gang was the sale of illegal

drugs. Olden stated that Hankton regularly supplied him

with crack (not powder cocaine) which he was instructed to

16

The record reflects that most of the large “wholesale” purchases

involved powder, as opposed to crack, cocaine. Nonetheless, as

Agent Darin’s testimony and the phone conversations established,

Hankton dealt primarily in crack and the large “wholesale”

purchases were made with the intent of converting the powder

cocaine into crack.

Nos. 03-2345 & 03-2915 11

sell to others.17 Specifically, Olden testified that beginning

in June of 2000 (until approximately October of 2000)

Hankton had personally supplied him with amounts of

crack cocaine ranging from one-eighth ounce to one-half

ounce every three or four days. As Olden explained,

Hankton would supply him with crack—essentially on

credit—and then collect the proceeds from the sale of the

crack from him at a later time. Olden’s understanding was

that, during that period of time, Hankton was the “King” or

leader of the MCs on the North-Side of Chicago.18 Specifi-

cally highlighting Hankton’s leadership role, Olden went on

to describe an instance where Hankton had ordered Olden

and other members of the MCs not to “run”, but to stand

and fight when they became involved in an altercation with

members of a rival gang, the Gangster Disciples, over drug

peddling territory.

Finally, over objection from defense counsel, the govern-

ment introduced the plea agreements of seven of Hankton’s

co-defendants.19 In the plea agreements, which were signed

and approved by each of the co-defendants and received into

evidence at sentencing, the co-defendants describe receiving

primarily crack cocaine from Hankton. When the amounts

of crack cocaine that the co-defendants admitted Hankton

17

Although there was some ambiguity in Olden’s testimony as

to his interpretation of the terminology used by the MCs to refer

to crack cocaine, he eventually testified that he purchased a “hard

form of cocaine” from Hankton.

18

Olden also explained that in 1997, Hankton held the position of

“Don of Dons” of the Cabrini Green projects on the north side of

the city of Chicago, a position granting Hankton authority

over other gang members. Olden testified that eventually

Hankton became King of the north side of the city.

19

Introduced were the plea agreements of Davis, Woodrow Green,

Jammah Olden, Rasuah Brunner, Ngaya Brunner, Timeka

Murdock and Mekeba Gates.

12 Nos. 03-2345 & 03-2915

distributed to them were tallied, the government estimated

that the amount of crack Hankton distributed (as estab-

lished in the plea agreement documents alone) to be 1166

grams. The government concluded that, because Hankton

had admitted to distributing 156 grams of cocaine and

because the plea agreements attributed at least an addi-

tional 344 grams of crack to him, it was reasonable to

conclude from the evidence presented at sentencing that he

had distributed in excess of 500 grams of cocaine for the

purposes of U.S.S.G § 2D1.1.

At the conclusion of the hearing, the trial judge concluded

that based on the plea agreements and testimony given at

sentencing, Hankton “could have reasonably foreseen that

the amount of [crack cocaine] he was dealing . . . was well

in excess of 500 grams, and could reach even beyond 1.5

kilograms.” Indeed, the District Judge determined that the

recorded “[Title III] calls alone take the amount well beyond

the 500-gram minimum.”20 Moreover, citing the live testi-

mony and the physical evidence confiscated from Hankton’s

residence (such as correspondence identifying Hankton as

“King”), the court found that “[Hankton] [was] one of

several organizers and one of several leaders within [the]

structured criminal organization” and that he exercised

“control” and “power” over other members of the gang and

felt a four level leadership enhancement to Hankton’s

sentence was warranted pursuant to U.S.S.G. § 3B1.1(a) of

the Guidelines.21 The district judge, after hearing and

20

Meaning that, without anything more, evidence of drug

transactions referenced in the telephone recordings that Agent

Darin testified concerning was sufficient to attribute over 500

grams of crack cocaine to Hankton under the sentencing guide-

lines.

21

The court also considered the testimony of Detective Charles

and the statements made by Witnesses A and B in determining

(continued...)

Nos. 03-2345 & 03-2915 13

weighing the totality of the evidence, sentenced Hankton to

300 months imprisonment, which fell in the middle of the

applicable guidelines range of 262 to 327 months.

B. Davis’ Sentencing Hearing

Davis pled guilty to possession with intent to distribute

cocaine and admitted that on June 27, 2000, he obtained

approximately 250 grams of powder cocaine from Hankton,

with the intention of distributing it to others.22 Nonetheless,

the government argued at sentencing that Davis was

responsible for the possession of more than just the 250

grams of powder cocaine that he admitted to in the plea

agreement. Instead, the government argued that, in

addition to possessing powder cocaine, Davis was also

responsible for possessing with the intent to distribute

between 50 and 150 grams of crack cocaine, pursuant to

U.S.S.G. § 2D1.1(a)(4).23 In addition, the government

maintained that Davis’ offense level should also be in-

creased by 3 levels because he qualified under the Guide-

lines as a “manager or supervisor” of a criminal activity

involving more than five participants. See U.S.S.G.

§ 3B1.1(b). Davis disagreed with each of the proposed

21

(...continued)

that Hankton was indeed a leader of the criminal enterprise.

Specifically, the court found that Hankton’s leadership role in

the MCs was evinced by the fact that Hankton had the authority

to “order the beating of Annette Williams, knowing that the

beating could lead to her death.”

22

As part of the plea agreement, the government agreed to

recommend that Davis be granted a 3 level reduction for accep-

tance of responsibility pursuant to U.S.S.G. § 3E1.1.

23

Which would make his base offense level 32. See U.S.S.G.

§ 2D1.1(a)(4).

14 Nos. 03-2345 & 03-2915

enhancements, in the plea agreement, reserved his right to

argue his position at sentencing.

At Davis’ sentencing hearing, the government began by

calling Agent Darin to the stand as the first witness in

support of the contention that Davis’ sentence should be

enhanced for the possession with the intent to distribute 50

to 150 grams of crack cocaine. Darin testified as to a series

of taped wiretap colloquies between Hankton and Davis

about the proper way to “cook” or convert powder cocaine to

crack cocaine.24 For example, during one of the taped

consultations Davis acknowledges that he successfully

cooked at least one ounce of cocaine that day and was

“fittin’ [sic] to do more.” In the same conversation Davis

states that earlier in the day he had procured an additional

“dry nine” or nine ounces of powder cocaine in hopes of

perfecting his crack producing skills. Days later in another

conversation, Hankton asks Davis—who was apparently

having problems cooking up some crack— whether he was

cooking it on a stove or not, and Davis responds: “No. In the

microwave, like I always do.” Still a third drug conversation

portrays Davis mentioning the purchase of approximately

four and a half ounces of cocaine. Furthermore, Agent Darin

also testified as to Davis’ role as a manager/supervisor in

the MCs drug operations. In particular, Darin testified

concerning the contents of an intercepted phone conversa-

tion of July 24, 2000 between Davis and the previously

mentioned co-defendant, Jammah Olden, where the two

argue over what Davis refers to as his “workers.” Evidently

Davis became aware of the fact that Olden was selling

drugs in an area where his “workers” were and became

upset with him, telling the unidentified person (most likely

Olden) on the phone that “y’all better not be [sic] get caught

selling . . . . [t]hey’s [sic] my workers.” Two days later a

telephone call from Davis to Hankton (Jammah Olden is on

24

See supra p. 3 n.3 and accompanying text.

Nos. 03-2345 & 03-2915 15

the tape and can be overheard in the background) illus-

trates Davis’ anger over Olden invading his workers’ drug

spot or “lick” and warns that if his people weren’t allowed

to continue selling drugs in that area he would “fry that

motherf[***]r up.”

Following Agent Darin’s testimony, the government

introduced Davis’ plea agreement as well as the plea

agreements of the other co-defendants. In a number of those

plea agreements, the defendants admit purchasing crack

cocaine from Davis. For example, in her plea agreement,

Ngaya Brunner admits purchasing three “eight-balls” of

crack cocaine from Davis, which translates into approxi-

mately 10 and one-half grams.25 The prosecution concluded

that, when the plea-agreements were considered in relation

to Agent Darin’s testimony that Davis was a seasoned

“cook” of cocaine, the reasonable inference was that Davis

was responsible for possessing with the intent to distribute

50 to 150 grams of cocaine. In addition, it was the govern-

ment’s position that the plea agreements received in

evidence demonstrated Davis’ authority position in the

MCs, citing references to him as “Sultan Supreme” or

lieutenant in the gang and leader of the MCs at the Lathrop

Homes.

At the close of the sentencing hearing, after weighing the

evidence presented, the district court determined by a

preponderance of the evidence that Davis had indeed

possessed with intent to distribute between 50 and 150

grams of crack cocaine and that he was a “manager or

supervisor of a criminal activity,” within the meaning of

§ 3B1.1. The trial judge concluded that Davis’ base offense

level was 32 along with five criminal history points, mean-

ing that the appropriate sentencing range to be applied was

25

According to metric-conversions.org, .375 ounces equates to

approximately 10.63107 grams. http://www. metric-conversions.

org/

16 Nos. 03-2345 & 03-2915

210 to 262 months. The district court sentenced Davis at

the low end of the sentencing range and ordered that he be

imprisoned for 210 months.

II. ANALYSIS

On appeal, both Hankton and Davis argue that their

respective sentences should be vacated as unconstitu-

tional under the Sixth Amendment citing the district

judge’s belief that application of the guidelines was manda-

tory as well as the judge’s subsequent enhancement of their

sentences on facts which were neither proven to a jury

beyond a reasonable doubt nor admitted by the appellants.

United States v. Booker, 125 S.Ct. 738 (2005) and United

States v. Paladino, 401 F.3d 471 (7th Cir. 2005). Both men

also contend that the district court erroneously enhanced

their sentences based on insufficient and unreliable evi-

dence. Specifically, Hankton and Davis claim that the

district court erroneously calculated the quantity of drugs

attributable to them and that evidence (e.g., wiretap

evidence) concerning their respective leadership roles in the

drug offenses was inadmissable and unreliable and should

not have been considered by the sentencing judge. In

addition, Hankton also claims that the district court

erroneously “double counted” by relying on his leadership

role in the offense to enhance his sentence under §§ 3B1.1

and 2D1.1.

A. Validity of Davis and Hankton’s Sentencing Enhance-

ments

We review the district court’s determination of drug

quantity and role in the offense, “in the same manner as

before Booker, for clear error.” United States v. Sutton, 406

F.3d 472, 474 (7th Cir. 2005) (citing United States v. Parra,

402 F.3d 452, 462 (7th Cir. 2005)). Reversal will

Nos. 03-2345 & 03-2915 17

be warranted “ ‘only if, after reviewing the entire evidence,

we are left with the definite and firm conviction that a

mistake has been made.’ ” United States v. Sheikh, 367 F.3d

683, 687 (7th Cir. 2004) (quoting United States v. Frazier,

213 F.3d 409, 417 (7th Cir. 2000)). This is a highly deferen-

tial standard of review and we refuse to “second-guess the

sentencing judge.” United States v. Cleggett, 179 F.3d 1051,

1059 (7th Cir. 1999) (citing United States v. Garcia, 66 F.3d

851, 856 (7th Cir. 1995)).

As this court has stated numerous times “[t]he law is very

clear that a sentencing judge ‘may appropriately conduct an

inquiry broad in scope, largely unlimited either as to the

kind of information he may consider, or the source from

which it may come.’ . . . A corollary to this general principle

is the rule that a sentencing judge ‘may consider relevant

information without regard to the rules of evidence . . .

provided that the information has [a] sufficient indicia of

reliability to support its probable accuracy.’ ” United States

v. Lemmons, 230 F.3d 263, 267 (7th Cir. 2000) (quoting

U.S.S.G. § 6A1.3); see also United States v. Hardamon, 188

F.3d 843, 849 (7th Cir. 1999) (stating that during the

sentencing phase of a criminal proceeding “the rules of

evidence do not apply and the sentencing judge is free to

consider a wide range of evidence including hearsay.”). The

rationale for this is clear:

The sentencing stage of a trial is one of the most

important parts of the criminal process. In order for a

judge to be well advised of the facts surrounding the

defendant’s background, and particularly in view of the

judge’s obligation to the general public, as well as to the

defendant, to be fair, reasonable, and just, it is impera-

tive that he be allowed to draw upon a wealth of infor-

mation concerning the defendant’s background, from his

date of birth up to and including the moment of sen-

tencing. . . . In order to render justice to all the judge

must be able to impress upon a defendant through the

18 Nos. 03-2345 & 03-2915

expansive contents of an all encompassing sentencing

report that we are a country of laws and not men.

Hardamon, 188 F.3d at 849-50 (quoting United States v.

Gerstein, 104 F.3d 973, 978 (7th Cir. 1997)). Indeed, the

federal criminal code makes clear that: “No limitation shall

be placed on the information concerning the background,

character, and conduct of a person convicted of an offense

which a court of the United States may receive and consider

for the purpose of imposing an appropriate sentence.” 18

U.S.C. § 3661. Accordingly, it is well-settled law that

“hearsay is not only an acceptable basis for a sentencing

determination,” United States v. Smith, 3 F.3d 1088, 1100

(7th Cir. 1993), it is often an “integral part of the sentenc-

ing process,” United States v. Badger, 983 F.2d 1443, 1459

(7th Cir. 2004).

Nonetheless, “[a] defendant has the due process right to

be sentenced on the basis of accurate information.” United

States v. Salinas, 62 F.3d 855, 859 (7th Cir. 1995) (citing

United States v. Mustread, 42 F.3d 1097, 1101 (7th Cir.

1994)). Thus, “[s]o long as the information which the

sentencing judge considers has sufficient indicia of reliabil-

ity to support its probable accuracy, the information may

properly be taken into account in passing sentence.” United

States v. Robinson, 164 F.3d 1068, 1070 (7th Cir. 1999)

(quoting United States v. Taylor, 72 F.3d 533, 543 (7th Cir.

1995)). “Only if a defendant ‘shows that the information

before the court was inaccurate, and that the court relied on

it’ can the defendant successfully challenge his sentence.”

United States v. Smith, 3 F.3d 1088, 1099 (quoting United

States v. Johnson, 997 F.2d 248, 254 (7th Cir. June 16,

1993). In determining reliability we consider the totality of

the evidence before the sentencing judge, United States v.

Span, 170 F.3d 798, 803 (7th Cir. 1999), but a sentencing

determination may be premised on any basis supported by

the record. See United States v. Sutton, 406 F.3d 472, 474

(7th Cir. 2005) (citing United States v. Benitez, 92 F.3d 528,

538 (7th Cir. 1996)).

Nos. 03-2345 & 03-2915 19

1. Drug Quantity

Both Hankton and Davis challenge the district court’s

enhancement of their sentences based on drug quantity.

Specifically, Hankton argues that: (a) statements made

by government witnesses at sentencing constituted un-

reliable hearsay and should not have been considered;

and Hankton and Davis argue that (b) the introduction of

plea agreements signed by co-defendants in the case

also qualified as unreliable hearsay evidence and like-

wise should not have been considered. We disagree.

a. The District Court’s Determination of Hankton’s

Drug Quantity

Hankton’s initial argument is that statements made by

Agent Darin concerning various wiretap phone conversa-

tions should not have been relied on by the sentencing

judge in his determination that Hankton was responsible

for the distribution of more than 500 grams of crack under

the guidelines. We disagree and believe this argument

is misplaced.

Hankton has failed to point to anything in the record

which might render Agent Darin’s testimony at sentencing

unreliable, aside from his assertion that portions of his

Darin’s testimony constituted inadmissibly hearsay. How-

ever, as stated above, the rules of evidence do not apply

during sentencing proceedings and “hearsay is not only

an acceptable basis for a sentencing determination,” United

States v. Smith, 3 F.3d at 1100, it is often an “integral part

of the sentencing process.” Badger, 983 F.2d at 1459.

In addition, the district judge specifically found Agent

Darin to be a “credible witness”, a determination which

bolstered the judge’s decision that Darin’s testimony

20 Nos. 03-2345 & 03-2915

concerning the wiretap conversations was reliable. See

United States v. Torres-Ramirez, 213 F.3d 978, 980-81 (7th

Cir. 2000) Under circumstances such as these we are

unwilling to find fault with the sentencing judge’s decision

to credit Darin’s statement in determining the drug quan-

tity attributable to Hankton. Torres-Ramirez, 213 F.3d at

980-81.

Also, the district court did not rely solely on witness

testimony concluding that Hankton was responsible for

distributing more than 500 grams of crack. The government

also introduced the signed plea agreements of other mem-

bers of the MCs in which they admitted that they

had purchased crack cocaine from Hankton. Although the

plea agreements of the co-defendants may have consti-

tuted hearsay, see FED. R. EVID. 801, that evidence was

corroborated by other evidence submitted at sentencing,

and thus could reasonably be considered reliable by the

sentencing judge. See United States v. Martinez, 289 F.3d

1023, 1028-29 (7th Cir. 2002) (holding that reliability

may be established by corroborating evidence). Indeed, the

plea agreements were more than sufficiently corrobo-

rated at Hankton’s sentencing hearing by the credible

testimony of the live witnesses, i.e., Agent Darin and

Detective Charles. As the district court concluded, “given

the entirety of the government’s submission, [Agent Darin’s

testimony] is reliable evidence and should be given substan-

tial weight by the court . . . [i]t is corroborated . . . [i]t all

ties together. It is consistent with what the court has heard

as the various defendants have entered their pleas of

guilty.” We agree with this assessment. See id.

What’s more, the evidence submitted at sentencing was

internally consistent with the totality of the evidence in the

record and various aspects of that evidence corroborated

other aspects. For example, the co-defendants’ plea agree-

ments state that Hankton sold them primarily crack

Nos. 03-2345 & 03-2915 21

cocaine—according to the government’s calculation, 1156

grams total. This evidence corroborates both the wiretap

phone conversations as well as Agent Darin’s testimony

as to the substance of those phone calls in which Hankton

solicited the purchase of large amounts of crack cocaine,

e.g., telling Olden that he could supply him with “a half,” or

a half an ounce of crack. See Salinas, 62 F.3d at 859

(stating that “[e]ach member of a conspiracy is accountable

for the amount of drugs with which he was directly in-

volved, and for amounts involved in transactions that were

reasonably foreseeable.”). As this court held in United

States v. Torres-Ramirez, credible corroborating testimony

is sufficient to provide hearsay evidence, such as the plea

agreements and the statements therein, with an “indicia of

reliability” and satisfies the defendant’s entitlement to have

his sentence determined based on reliable evidence. Id. at

980. Also, the reliability of the plea agreements—as well as

Agent Darin’s testimony for that matter—was bolstered by

the fact that, at sentencing, Hankton took advantage of “a

reasonable opportunity to rebut the hearsay evidence used

against him.” United States v. Barnes, 117 F.3d 328, 338

(7th Cir. 1997) (quoting United States v. Francis, 39 F.3d

803, 810 (7th Cir. 1994)).

Further, even if we were to assume, arguendo, that the

testimony given by Agent Darin as well as the co-defen-

dants’ plea ageements was unreliable, the live testimony of

Jammah Olden, without more, supported—or at the least

lent great credence to—the conclusion that Hankton

distributed in excess of 500 grams of crack cocaine. As

recounted above, Olden testified that for a period of five

months (between June and October of 2000) Hankton

personally supplied him with individual distribution

amounts of crack cocaine—ranging in quantity from one

eighth of an ounce to one ounce—every three to four days.

According to Olden’s testimony, which was unrebutted at

sentencing, it was reasonable for the district court to

22 Nos. 03-2345 & 03-2915

conclude that Hankton personally distributed between 134

and 1071 grams of crack cocaine, to Olden alone, in the

space of just these five months.26 See Salinas, 62 F.3d at

859; see also United States v. Durham, 211 F.3d 437, 444

(7th Cir. 2000) (stating that “estimates of drug quantity are

acceptable if they are based on evidence possessing

a sufficient indicia of reliability and not nebulous eyeball-

ing”).

Thus, because the plea agreements submitted at sen-

tencing were corroborated by the credible testimony given

by Agent Darin, as well as the live testimony of co-defen-

dant Olden—both of which were subject to thorough cross-

examination at sentencing—we hold that the sentencing

judge did not err, much less commit clear error when

considering this most reliable evidence when determining

that Hankton was responsible for distributing in excess of

500 grams of crack cocaine pursuant to U.S.S.G. § 2D1.1.

b. Davis’ Drug Quantity Argument

Davis also argues that the sentencing court erred by

admitting unreliable hearsay evidence when determining

that he possessed with intent to distribute 50 to 150 grams

of cocaine under U.S.S.G. § 2D1.1. However, unlike

Hankton, Davis does not claim that Agent Darin’s testi-

mony was unreliable. Instead, Davis claims only that the

introduction of the co-defendants’ plea agreements consti-

tuted clear error due to the fact that the agreements were

26

Even a conservative estimate of the amount of cocaine Hankton

supplied Olden with amounts to approximately 4.6875 ounces or

134 grams of crack cocaine (which is equal to Hankton supplying

Olden with 1/8 oz. of crack cocaine every four days over a period

of five months). On the high end, Hankton may have supplied

Olden with as much as 1071 grams of crack (which is equal to

1 oz. of crack every four or five days over a period of five months).

Nos. 03-2345 & 03-2915 23

inadmissible hearsay. However, as noted above, the rele-

vant inquiry is not whether the plea agreements submitted

at sentencing constituted hearsay, see Smith, 3 F.3d at

1100, but whether the plea agreements included a “suffi-

cient indicia of reliability to support [their] probable accu-

racy,” Taylor, 72 F.3d at 543, which we conclude that they

did.

The co-defendants’ plea agreements submitted at Davis’

sentencing demonstrated that Davis was in the habit of

distributing crack cocaine. In particular, Ngaya Brunner

admits to purchasing approximately 10 and one-half grams

of crack from Davis. This evidence was fully corroborated by

the testimony of Agent Darin, which the sentencing judge

expressly found to be credible. Specifically, Agent Darin

testified as to the meaning and context of a number of

intercepted phone conversations Davis had with Hankton

and other individuals in which Davis discussed “cooking”

large amounts of powder cocaine in order to produce crack

cocaine. In at least one of those conversations Davis states

that he purchased powder cocaine specifically for the

purpose of further processing it in order to manufacture and

distribute the resulting crack. See supra p. 13. Thus,

because witness testimony—the testimony of a witness,

Agent Darin, whom the district judge had previously

determined to be credible—was introduced to corroborate

information contained in the co-defendant’s plea agree-

ments and thus infused that evidence with an “indicia of

reliability.” See United States v. Martinez, 289 F.3d at 1028-

29; Torres-Ramirez, 213 F.3d at 980. This is not to mention

the fact that Davis was provided with ample opportunity to

rebut the hearsay evidence proffered against him in the

form of the co-defendant plea agreements, either by calling

his own exculpatory witnesses or through his cross exami-

nation of Agent Darin. See Barnes, 117 F.3d at 338. The fact

that Davis called no witnesses at sentencing and failed to

successfully discredit Agent Darin on cross-examination,

24 Nos. 03-2345 & 03-2915

however, evinces nothing more than a shortcoming in the

presentation of his case and falls far short of establishing

error on the part of the trial judge. In other words, Davis

must present this court with more than conclusory allega-

tions that a government witness is unreliable; he must

present evidence which would in some way rebut that

testimony or demonstrate that it is inaccurate and should

not have been relied upon by the sentencing judge. See

United States v. Smith, 3 F.3d 1088, 1099.

Thus, because Agent Darin’s credible testimony corrobo-

rated the information contained in the co-defendants’ plea

agreements, the sentencing court did not err in finding that

evidence reliable in concluding that Davis was responsible

for possessing with the intent to distribute 50 to 150 grams

of crack cocaine.27

27

Davis also challenges the enhancement of his sentence under §

3B1.1(b) for being a “manager or supervisor (but not an organizer

or leader)” in the criminal activity on identical grounds. However,

because we have held that the court’s consideration of the co-

defendant’s plea agreements at sentencing did not constitute clear

error under any circumstances, we need not separately discuss

Davis’ challenge to the enhancements to his sentence under §

3B1.1(b).

Nonetheless, even if we were to hold that the plea agreements

were unreliable and should not have been considered, the en-

hancement was still supported by the record. See Sutton, 406 F.3d

at 474. The record reflects that Davis, during intercepted phone

conversations, repeatedly referred to people on the street selling

drugs as his “workers.” See supra p. 13. Davis also threatened

violence when he learned that Olden’s drug dealers had invaded

his “territory.” This evidence unquestionably evinces a level of

control sufficient to satisfy the “manager or supervisor” enhance-

ment pursuant to § 3B1.1(b). See, e.g., United States v. Morales,

994 F.2d 386, 388 (7th Cir. 1993) (holding that “[i]t is enough that

more than one person was involved in the criminal activity and

(continued...)

Nos. 03-2345 & 03-2915 25

B. Hankton’s Leadership Role in the Offense

Hankton next claims that it was clear error for the

district court to determine that he was an “organizer or

leader of a criminal activity” pursuant to § 3B1.1(a) of the

Guidelines. Specifically, he claims that “notwithstanding

evidence that he held a high rank in the MCs, his role in

that organization did not make him a leader or organizer in

a drug distribution offense.” Hankton stresses that his rank

in the MCs alone did not translate into leadership responsi-

bility, much less control over the gang’s drug distribution

activities. Said differently, Hankton takes issue with the

sentencing judge’s focus on his leadership conduct which he

claims is “unrelated” to the underlying crime of distribution

of a controlled substance. We disagree.

The district court’s “determination concerning a defen-

dant’s role in the offense is a finding of fact, subject to a

clearly erroneous standard of review on appeal,” United

States v. Brown, 900 F.2d 1098, 1101 (7th Cir. 1990), and

this remains the case post-Booker. See Parra, 402 F.3d

at 462. Section 3B1.1 of the sentencing guidelines is ap-

plicable where the “defendant was an organizer or leader of

a criminal activity that involved five or more participants

or was otherwise extensive.” U.S.S.G. § 3B1.1(a). This court

has previously made clear that the “control” exerted by a

defendant may either be direct or indirect in nature. See

United States v. Barnes, 117 F.3d 328, 337 (7th Cir. 1997).

As such, “the defendant must have exercised some degree

of control over others involved in the commission of the

offense or he must have been responsible for organizing

others for the purpose of carrying out the crime.” Id.

(quoting United States v. Carson, 9 F.3d 576, 584 (7th Cir.

27

(...continued)

that the defendant played a leadership as distinct from a

followership role”) (citing United States v. Herrera, 878 F.2d 997

(7th Cir. 1989)).

26 Nos. 03-2345 & 03-2915

1993)); see United States v. Reneslacis, 349 F.3d 412, 417

(7th Cir. 2003). Some of the factors for a sentencing court to

consider when determining whether a defendant held a

leadership role under § 3B1.1 include: “the defendant’s (1)

exercise of decision-making authority; (2) participation in

committing the offense; (3) recruitment of accomplices; (4)

degree of participation in planning or organizing the

criminal activity; (5) degree of control or authority exercised

over others involved in the criminal activity; and (6) the

nature and scope of the illegal activity.” United States v.

Falcon, 347 F.3d 1000, 1004 (7th Cir. 2003) (citing United

States v. Noble, 246 F.3d 946, 953 (7th Cir. 2003)).

At Hankton’s sentencing, the judge enumerated a number

of factors which led him to the conclusion that Hankton was

a “leader or organizer” of a criminal activity—here the

distribution of crack cocaine—within the meaning of §

3B1.1(a). For example, although the judge recognized that

Hankton was not the “sole and only leader of the organiza-

tion,” he did “exercise control . . . . [and] power . . . . [t]he

telephone calls clearly establish that . . . . [t]hey show his

concern for the organization itself, its image.” In addition,

the court referenced evidence presented by the government

which illustrated Hankton’s role in the murder of Annette

Williams, see supra pp. 7-8, when stating that “Hankton

exercised authority over persons, certainly well more than

five or ten.” However, Hankton claims that “rather than

directing its remarks to Mr. Hankton’s conduct as it related

to the actual offence, i.e., drug distribution, the court

dwelled on Mr. Hankton’s gang activities.” This statement

is nothing more than a self-serving red herring.

While it may be true that the sentencing judge primarily

focused on Hankton’s gang activities, there was good reason

for doing so. The evidence presented at sentencing did not

separate Hankton’s activities into two distinct categories of:

(1) gang activities; and (2) drug activities. Indeed, it would

be antithetical to consider these to be mutually exclusive

Nos. 03-2345 & 03-2915 27

endeavors. Instead, all of the evidence presented—as well

as commonsense—suggest that, in fact, Hankton’s gang

activities were intimately, related to and intertwined with,

his drug distribution activities. In fact, both Agent Darin

and Jammah Olden testified that the gang’s sole source of

revenues was from the sale of illegal drugs. Also, informa-

tion from the wiretaps demonstrated that Hankton used his

position in the gang to facilitate his drug transactions,

collect money for himself and protect the gang’s drug

dealing territory. See supra p.7-9. What’s more, Hankton’s

role as leader and organizer is rather persuasively illus-

trated by the fact that he had the power within the MCs

organization to order the brutal beating and murder of one

of the gang’s members, Annette Williams. See id. The fact

that Williams’ murder appeared to involve a dispute over

drug money, as opposed to drugs, would not preclude the

sentencing judge from inferring that the incident was

related to the MCs drug activities or from concluding that

Hankton exerted the same authority over the gang’s drug

activities as he did over ordering beatings or murder. After

all, a sentencing court in making its sentencing determina-

tion must “draw inferences from a variety of data, including

the defendant’s demeanor and information in the

[presentence report], in order to reach [its] conclusion.” See

United States v. Frazier, 213 F.3d 709, 417 (7th Cir. 2000)

(quoting United States v. Fones, 51 F.3d 663, 665 (7th Cir.

1995)).

Thus, because Hankton was a leader of the MCs, and

because the gang was primarily concerned with dealing

illegal drugs, it was entirely reasonable and logical for

the sentencing judge to infer that Hankton’s role as leader

of the gang was related to his distribution of crack cocaine.28

28

Although not dispositive as to his role as a leader in the

organization, Hankton is referred to in the record first as “don”

(continued...)

28 Nos. 03-2345 & 03-2915

C. Hankton’s Double Counting Claim

Hankton also claims that the district court erroneously

double counted when imposing his sentencing enhance-

ments because the court considered his leadership within

the MCs street gang both to enhance his sentence for

finding him responsible for distributing more than 500

grams of cocaine, under § 2D1.1, and for being an organizer

28

(...continued)

(during the late 1990s) and then as “king” (beginning in 1999). See

supra pp. 8-9; see also U.S.S.G. § 3B1.1 n.1 (“In distinguishing a

leadership role from one of mere management or supervision,

titles such as “kingpin” or “boss” are not controlling.). Nonethe-

less, testimony from Chicago Police Detective Charles, as well as

Agent Darin and Jammah Olden illustrated the power over the

drug trade and gang activities that the title afforded Hankton. For

example, Agent Darin testified that as the “king,” Hankton was in

charge of all the activities undertaken by the MCs on the north-

side of the city, including the distribution of illegal narcotics. See

supra p. 9.

Hankton argues that the testimony of Detective Charles and

Agent Darin as to his role in the MCs should not have been

considered because they “were [not] qualified as experts in

anything.” This is misleading, for the district court made an

express finding that Detective Charles was indeed an expert

on the MCs, see supra p. 7, as well as expressly finding him to be a

“credible witness.” Likewise, Agent Darin was also express-

ly found by the judge to be a credible and reliable witness. See

supra p. 19-20. Nevertheless, as we have stated, the rules of

evidence do not apply at sentencing, see Hardamon, 188 F.3d

at 849, and the judge was entitled to consider any relevant

evidence assuming that evidence included a “sufficient indicia

of reliability.” See Robinson, 164 F.3d at 1070. The testimony

given by Detective Charles and Agent Darin was more than

reliable and therefore properly considered by the district court

in sentencing Hankton.

Nos. 03-2345 & 03-2915 29

or leader of a criminal activity, under § 3B1.1. We disagree.

Improper and impermissible double counting only “occurs

when a district court imposes two or more upward adjust-

ments within the guideline range, when both are premised

on the same conduct.” U.S. v. Haines, 32 F.3d 290, 293 (7th

Cir. 1994) (emphasis in original). Put simply, a district

court may not characterize the same conduct in two differ-

ent ways to arrive at two separate sentence enhancements

that result in an upward adjustment of the sentencing

range. See United States v. Schmeilski, 408 F.3d 917, 919

(7th Cir. 2005). Also, “although premising multiple en-

hancements on ‘identical facts’ constitutes impermissible

double counting . . . the presence of some overlap in the

factual basis for two or more upward adjustments does not

automatically qualify as double counting.” Id. (internal

citations omitted); (citing United States v. Parolin, 239 F.3d

922, 929 (7th Cir. 2000). Where different aspects or compo-

nents of the defendant’s behavior are addressed by different

enhancements, improper double counting has not occurred.

See id. We review the district court’s application of the

Sentencing Guidelines de novo. See, e.g., United States v.

Von Loh, 417 F.3d 710, 712 (7th Cir. 2005).

Hankton’s claim of impermissible double counting finds

no support in the record, much less the voluminous amount

of case law on this subject. The disparate nature of behavior

addressed under each enhancement, without more, suggests

that impermissible double counting pursuant to those

particular enhancements would be most unlikely. See

United States v. Schmeilski, 408 F.3d 917, 920 (7th Cir.

2005). In fact, §§ 2D1.1 and 3B1.1(a) are premised on

entirely different conduct; for while an individual may be

found to have distributed a certain quantity of drugs

making him eligible for a sentence enhancement under §

2D1.1, he need not be a “leader or organizer” of a criminal

activity, as described by § 3B1.1, to do so. Nonetheless,

Hankton argues that the sentencing judge’s mention of his

30 Nos. 03-2345 & 03-2915

leadership role in the organization while finding that he

was also eligible for a sentence enhancement for distribut-

ing more than 500 grams of cocaine under § 2D1.1 consti-

tuted impermissible double counting. Nothing could be

further from the truth.

When determining the drug quantity attributable to

Hankton pursuant to § 2D1.1 the judge specifically found

that, considering the admissions of the defendant in the

plea agreement as well as the evidence concerning the

intercepted phone conversations, Hankton was responsible

for distributing “well beyond . . . 500 gram[s]” of crack. It is

true that later in the same monologue the judge mentions

“the position” Hankton occupied to illustrate the point that

the actual amount attributable to him “could reach even

beyond 1.5 kilograms.” It is clear from those statements,

however, that without taking Hankton’s leadership role in

the offense into consideration, the judge determined that

the sentencing enhancement should apply, making any

other drug amounts attributable to Hankton via his leader-

ship role superfluous.29 Said differently, the judge concluded

that Hankton was personally responsible for distributing

“well beyond . . . 500 gram[s]” of crack cocaine, which

justified the enhancement of his sentence under § 2D1.1.

Accordingly, consideration of any additional amounts

attributable to him via his leadership role in the MCs was

superfluous.30

29

However, even if the judge had taken into account Hankton’s

leadership role when determining the quantity of drugs at-

tributing attributable to him, this would not have been improper

because, as explained above, although there may have been some

overlap in the factual predicate for both enhancements, each

enhancement “addressed distinct aspects of the defendant’s

conduct.” Schmeilski, 408 F.3d at 919.

30

Although they very well could have been considered. See

(continued...)

Nos. 03-2345 & 03-2915 31

Thus, since § 2D1.1 and § 3B1.1 address different conduct

and because the trial judge did not rely on Hankton’s

leadership role in the MCs to enhance his sentence pursu-

ant to § 2D1.1, there was no improper double counting and

Hankton’s claim fails in this regard.

D. Paladino Remand

Finally, Hankton and Davis request that we order a

limited remand to determine whether the district court

would have imposed a different sentence had it known that

the Sentencing Guidelines were merely advisory. See United

States v. Paladino, 401 F.3d 471, 481 (7th Cir. 2005).

Because neither Hankton nor Davis raised a Booker issue

before the district court our review is for plain error only.

See id. As this court has held, the pre-Booker mandatory

application of the sentencing guidelines ipso facto consti-

tutes plain error. See United States v. White, 406 F.3d 827,

2005 WL 1023032, at *7 (7th Cir. May 3, 2005); United

States v. Castillo, 406 F.3d 806, 2005 WL 1023029, at *15

(7th Cir. May 3, 2005). However, even where a plain error

is found to exist, a court of appeals may “exercise its

discretion to notice a forfeited error . . . only if . . . the error

seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” United States v. Cotton, 535 U.S.

625, 631 (2002). In other words, we may correct such an

error only if it is “intolerable,” or results in a “miscarriage

of justice.” See Paladino, 401 F.3d at 481. Allowing an

illegal sentence to stand would “constitute a miscarriage of

justice,” see White, 406 F.3d at 835-36.

On the record before us, we cannot ascertain with any

exacting degree of certainty whether the sentencing judge

would have imposed identical sentences for Hankton and

30

(...continued)

Salinas, 62 F.3d at 859.

32 Nos. 03-2345 & 03-2915

Davis had he known that the sentencing guidelines were

not mandatory at the time. Indeed, the district court’s

imposition of a sentence in the middle of the range for

Hankton, see supra p. 13, and at the lower-end of the range

for Davis, see supra p. 16, may be an indication that, having

been vested with greater discretion, the judge may well

have imposed a sentence lighter than that required by the

guidelines. We simply cannot be sure. Accordingly, lest

we allow an illegal sentence to stand, we believe it appropri-

ate to order a limited remand in this case, while retaining

jurisdiction, for proceedings consistent with this court’s

decision in Paladino, 401 F.3d at 483-84.

III. CONCLUSION

Because we are convinced that the district court did not

impermissibly consider unreliable evidence in enhancing

Hankton or Davis’ sentences for drug quantity and their

respective leadership roles in the offense we uphold the

validity of the sentencing enhancements imposed. In

addition, we reject Hankton’s claim that the sentencing

judge’s application of U.S.S.G. §§ 2D1.1 and 3B1.1 to his

sentence constituted improper double counting. We do

however order a LIMITED REMAND of both Hankton and

Davis’ sentences in accordance with the procedure set

forth in United States v. Paladino.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—12-29-05