NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 1, 2013
Decided June 24, 2013
Before
WILLIAM J. BAUER, Circuit Judge
RICHARD A. POSNER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 12‐2919
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 06 cr 138‐2
ISAIAH COLEMAN ,
Defendant‐Appellant. James B. Zagel,
Judge.
ORDER
This is the second time Isaiah Coleman has appealed his sentence. The first time, we
remanded after concluding that the district court had failed to properly calculate a
guidelines imprisonment range by estimating the quantity of drugs Coleman bought from
his supplier. On remand, the district court found Coleman responsible for ten kilograms or
more of cocaine, calculated a range, and imposed a new sentence. But the court’s drug
quantity finding is too vague to permit appellate review, and so we vacate the sentence and
remand for resentencing.
Background
Coleman pleaded guilty to conspiring to distribute controlled substances. See 21
U.S.C. §§ 846, 841(a)(1). Before sentencing, the government told the probation officer
No. 12‐2919 Page 2
preparing Coleman’s presentence report that it believed Coleman was responsible for the
distribution of 29 kilograms of cocaine and 3 kilograms of fentanyl, a dangerous heroin
substitute. See United States v. Alvarado‐Tizoc, 656 F.3d 740, 741–42 (7th Cir. 2011). The
cocaine estimate relied largely on a plea agreement signed by Lutgardo Chavez, Jr.,
Coleman’s supplier, which purported to document a multi‐year course of drug trafficking
between Coleman and Chavez.
The government provided only partial corroboration of Chavez’s account. Coleman
admitted to only one purchase from Chavez, involving slightly less than three kilograms.
The government had intercepted some calls between Chavez and Coleman that roughly
coincided with two of the other deals described by Chavez, although the two appear to have
been careful not to mention drugs over the phone, or to do so in code.
At sentencing, the government declined to call Chavez as a witness, explaining that
Chavez had violated the terms of his plea agreement by withholding information about his
supplier. But the parties stipulated that Chavez’s plea agreement could still be considered
by the court, and the government called several other witnesses, including the DEA agent
who observed Coleman and Chavez meeting in August 2005 and two street‐level dealers
that Coleman sold fentanyl to. These dealers’ accounts were the government’s primary basis
for estimating that Coleman had distributed three kilograms of fentanyl.
Coleman insisted that the government’s drug‐quantity estimate was unreliable, and
that the district court should calculate his offense level based solely on the three kilograms
of cocaine he had admitted to.
Without calculating a guidelines range, the court imposed a sentence of 156 months.
The court, however, criticized the guidelines’ use of drug quantities as a proxy for
culpability and “affirmatively refus[ed] to fix an amount in this case,” opining that there
was “no reliable way to determine what kind of kilos were at stake here.” The court offered
that it did not find it very likely that Coleman had distributed only three kilograms of
cocaine during his interactions with Chavez, concluding that “the proof . . . that this was a
person who dealt with many kilos of illegal drugs over a period of years is strong.” The
prosecutor asked if the court would be willing to calculate a quantity for the purposes of the
statutory minimum, to which the court responded: “I believe the only thing I’m prepared to
say in the course of this offense is that you have a minimum of ten kilograms. That’s the
only thing I’m prepared to say.” The prosecutor asked if the court was including the
fentanyl in that calculation; the court answered that it had not because that was “much
trickier to deal with.”
No. 12‐2919 Page 3
Coleman appealed and the government conceded that the district court had erred by
refusing to calculate a guidelines range. United States v. Coleman, 389 F. App’x 528, 529 (7th
Cir. 2011). We vacated the sentence and remanded for resentencing. Id.
At the resentencing hearing, Coleman filed a brief rehashing his earlier argument
that the government had failed to prove his responsibility for drug quantities in excess of
the admitted three kilograms because, among other reasons, Chavez’s history of dishonesty
rendered his account unreliable. The district judge discussed drug quantity only briefly, but
seemed to stand by his conclusion at the first sentencing that Coleman had distributed at
least ten kilograms of cocaine:
This was a case, as I recall, in which the exact quantity of drugs was very
difficult to determine. In fact, I expressed the view that it can’t be determined.
And I’m instructed that I have to determine it, which means best guesses count,
but I don’t like best guesses.
So instead of guessing, I think I’m going to stick with what I originally said,
which is kilograms or more because I thought that was the absolute minimum
that had been proved. Do I personally think it was more? Probably was. How
much more? Can’t say.
The prosecutor quickly followed up on these remarks: “Your Honor, based on your finding
that it is 10 kilograms or more of cocaine, Mr. Coleman starts at level 32.” See U.S.S.G.
§ 2D1.1(c)(4). The court calculated a guidelines range of 108 to 135 months, based on a total
offense level of 31 (after accounting for adjustments not relevant here). The court sentenced
Coleman to 120 months, explaining that he deserved a 3‐year reduction (from the original
156‐month sentence) because of his exemplary behavior in prison. Although this sentence
corresponded to the statutory minimum for distributing more than five kilograms of
cocaine, the court prepared a statement of reasons indicating that the minimum did not
apply.
Analysis
“Recognizing the importance of drug quantity in sentencing, we require that a
sentencing court make an explicit drug‐quantity finding and explain how it arrived at the
sentence.” United States v. Palmer, 248 F.3d 569, 571 (7th Cir. 2001); see also United States v.
Fudge, 325 F.3d 910, 920 (7th Cir. 2003). While establishing a defendant’s drug quantity can
be an art, rather than an exact science, United States v. Block, 705 F.3d 755, 761 (7th Cir. 2013),
this is not a license to engage in “nebulous eyeballing,” United States v. Krasinski, 545 F.3d
No. 12‐2919 Page 4
546, 552 (7th Cir. 2008); see also United States v. Jarrett, 133 F.3d 519, 530 (7th Cir. 1998). At
argument the government conceded that it does not know how the sentencing judge
reached the ten kilogram estimate. We are also perplexed; the judge provided no
explanation at the resentencing hearing. Instead, even after we remanded this case, the
judge insisted that he would “stick with what I originally said” even though what he
originally said was that there is no reliable way to determine the quantity of drugs for
which Coleman is responsible. Although the judge indicated in his statement of reasons that
he adopted the facts as described in the PSR, see United States v. Are, 590 F.3d 499, 525 (7th
Cir. 2009) (“[W]here the district court adopts the PSR’s findings . . . the court rarely needs to
add details.”); Fudge, 325 F.3d at 920; United States v. Acosta, 85 F.3d 275, 280 (7th Cir. 1996),
nothing in the PSR sheds any light on how the judge came to ten kilograms. Thus, we see no
alternative to remand.
Coleman asks that we remand with instructions to ignore Chavez’s plea agreement,
insisting that it would be clear error for his sentence to reflect Chavez’s account in any way.
The document lacks sufficient indicia of reliability, Coleman insists, because of Chavez’s
past dishonesty and the government’s decision to not call him to testify. This instruction is
unnecessary. In deciding whether to rely on a witness’s estimate of drug quantity “the
hallmark of reliability is consistency with facts and details,” United States v. Zehm, 217 F.3d
506, 514 (7th Cir. 2000), and a district court would not clearly err merely by relying on a
witness who has lied in the past or is biased, even if the witness’s account lacks
corroboration, see United States v. Etchin, 614 F.3d 729, 739 (7th Cir. 2010); United State v.
Johnson, 489 F.3d 794, 798 (7th Cir. 2007); United States v. Denton, 434 F.3d 1104, 1114 (8th
Cir. 2006) (finding issues of witness credibility “virtually unassailable on appeal”). Coleman
does not argue that Chavez’s account is wholly contradicted by other evidence or
nonsensical. See United States v. Westmoreland, 240 F.3d 618, 630 n.1 (7th Cir. 2001); United
States v. Robinson, 164 F.3d 1068, 1070 (7th Cir. 1999). Nor is the fact that Chavez did not
provide in‐court testimony dispositive. See Westmoreland, 240 F.3d at 630 n.1. On remand the
district court is free to rely on Chavez’s account in whole, in part, or not at all, so long as it
provides an explanation for its decision that is not clearly erroneous. If the court applies a
statutory minimum, it should do so unambiguously and must conform with the Supreme
Court’s decision in Alleyne v. United States, No. 11‐9335, 2013 WL 2922116 (June 17, 2013).
See id. at *10(“[T]he core crime and the fact triggering the mandatory minimum sentence
together constitute a new, aggravated crime, each element of which must be submitted to
the jury.”) (overruling Harris v. United States, 536 U.S. 545 (2002)).
Accordingly, we VACATE Coleman’s sentence and REMAND for resentencing.
Circuit Rule 36 shall apply on remand.