In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2468
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ARIO V ICTOR L OMAX,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 419-1—Ronald A. Guzmán, Judge.
S UBMITTED F EBRUARY 25, 2013 —D ECIDED A PRIL 2, 2013
Before P OSNER, W ILLIAMS, and S YKES, Circuit Judges.
P ER C URIAM. Mario Victor Lomax pleaded guilty in
2008 to one count of distributing crack cocaine. See 21
U.S.C. § 841(a)(1). By the time he was sentenced in 2011,
Congress had enacted the Fair Sentencing Act of 2010
After examining the briefs and record, we have concluded
that oral argument is unnecessary. Thus, the appeal is submit-
ted on the briefs and the record. See F ED . R. A PP . P. 34(a)(2)(C).
2 No. 11-2468
(“FSA”), Pub L. No. 111-220, 124 Stat. 2372, which in-
creased the threshold amounts of crack that will trigger
enhanced statutory penalties under § 841(b)(1). (The
parties do not say, and neither does the record disclose,
why this prosecution languished; Lomax pleaded
guilty more than three years after his arrest and was
sentenced nearly three years after that.) Lomax argued
that his sentence should reflect the FSA’s lesser
penalties, and also that the district court should
exclude some of his other drug sales in calculating the
drug quantity for purposes of applying the sentencing
guidelines. See U.S.S.G. § 2D1.1. The court rejected both
arguments, but still imposed a below-guidelines sen-
tence of 188 months.
On appeal Lomax argues, and the government
agrees, that the case should be remanded for resen-
tencing under the FSA, which applies to all crack
offenders sentenced after its enactment. Dorsey v. United
States, 132 S. Ct. 2321, 2326 (2012). The parties and the
district judge all assumed that applying the FSA to
Lomax would lower his guidelines imprisonment
range, but the court understandably declined to apply
the FSA because of contrary circuit precedent later
rejected by Dorsey. See United States v. Fisher, 635 F.3d
336, 340 (7th Cir. 2011). We now know that the court’s
reasoning was mistaken, and on the existing record
we cannot say that the error was harmless.
The record is incomplete, however, and that gap com-
plicates our analysis. The offense of conviction in-
volved slightly more than 50 grams of crack, which
No. 11-2468 3
before the FSA meant a possible sentence of life in
prison. After the FSA, that same amount of crack can
lead to 40 years in prison, though not life. Compare 21
U.S.C. § 841(b)(1)(A)(iii) (2000) with id. § 841(b)(1)(B)(iii)
(2006 & Supp. IV 2010). Yet this difference between
life imprisonment and 40 years assumes that drug
quantity is the only enhancing factor in play, and that
assumption may be wrong. Lomax pled guilty after
the government had filed a recidivism enhance-
ment under 21 U.S.C. § 851, which would increase the
applicable statutory penalties based on his prior convic-
tion for a felony drug offense. Before the FSA’s passage,
a § 851 enhancement would have prompted a statutory
imprisonment range of 20 years to life for a defendant
who distributed 50 or more grams of crack; after the
FSA the same defendant would face a minimum of
10 years instead of 20, but the maximum would remain
life. Compare 21 U.S.C. § 841(b)(1)(A)(iii) (2000) with
id. § 841(b)(1)(B)(iii) (2006 & Supp. IV 2010). At sen-
tencing, the parties, the probation officer, and the
district court said nothing about the recidivism enhance-
ment and took the stance, premised on the drug
quantity alone, that the applicable pre-FSA statutory
sentencing range was 10 years to life. The record doesn’t
disclose the basis for this view: The parties never
executed a plea agreement, and there is no entry on
the docket dismissing the § 851 enhancement. Possibly
it was withdrawn during the plea colloquy (the parties
have not supplied a transcript) or simply forgotten as
the case aged.
Given the incomplete record and the parties’ silence
on the subject, we infer (for this appeal only) that the
4 No. 11-2468
§ 851 enhancement did not apply to Lomax and thus
the FSA capped his potential prison term at 40 years.
The sentence he received is far short of 40 years or life.
But the difference between these maximum sentences
is significant because Lomax is a career offender,
see U.S.S.G. § 4B1.1, and that guideline is tied to the
statutory maximum for the offense of conviction.
The maximum penalty of life imprisonment used in
calculating Lomax’s guidelines range corresponded to
a total offense level of 34 (after a reduction for ac-
ceptance of responsibility). The district court used that
number because it exceeds the total offense level of 33
which otherwise would have applied given the court’s
drug-quantity finding. See U.S.S.G. § 4B1.1(b); United
States v. Williams, 694 F.3d 917, 918 (7th Cir. 2012). In
contrast, a maximum of 40 years yields a total offense
level of 31 under the career-offender guideline (after
a reduction for acceptance of responsibility), and though
the alternative drug-quantity-based calculation of 33
is now higher and will supplant the career offender
offense level, see U.S.S.G. § 4B1.1(b), a total of 33 is still
lower than the 34 used at sentencing. Lomax’s criminal
history is Category VI, so a one-level drop lowers his
guidelines imprisonment range appreciably: Previously
the imprisonment range was 262 to 327 months; now it
is 235 to 293 months. The government does not argue
that the district court would have imposed the same
prison term using the correctly calculated guidelines
range, and thus we must vacate Lomax’s sentence and
remand the case to the district court. See United States
v. Love, 680 F.3d 994, 997-98 (7th Cir. 2012).
No. 11-2468 5
Lomax presses a second argument, which he believes
will lower the guidelines range even more. In calculating
a total offense level of 33 based on the quantity of
drugs rather than the career-offender guideline, the
district court included enough transactions involving
powder or crack cocaine to yield a base offense level of 36.
See U.S.S.G. § 2D1.1(c)(2). Lomax had twice sold more
than 50 grams of crack to an informant in August 2004,
and he pled guilty to one of those distributions. He
also confessed to federal agents that he regularly sold
powder cocaine and crack between late 2003 and the
date of his arrest in the fall of 2004. He explained that
he bought cocaine from a supplier several times each
month, cooked some of it into crack which he sold in
the Chicago area, and sent the rest to a dealer in Spring-
field, Illinois. Lomax estimated for the agents the
amounts of powder and crack cocaine that he dis-
tributed each week, from which the court calculated a
total of 4.5 kilograms of crack and the same amount of
powder. Lomax concedes that the two sales to the in-
formant in August 2004 must count in the drug quantity,
but his other drug transactions, he insists, were not rele-
vant conduct and should have been ignored. He distin-
guishes the count of conviction, which involved a crack
sale in Chicago, from other transactions, some of them
occurring in Springfield or involving different suppliers
or powder cocaine.
These distinctions do not justify overturning the
district court’s assessment of drug quantity. Lomax’s
crack distributions occurred in Chicago, and since the
weight of the crack by itself is enough to sustain a base
6 No. 11-2468
offense level of 36 (the threshold is 2.8 kilograms,
see U.S.S.G. § 2D1.1(c)(2)), we do not need to concern
ourselves with the leftover powder or events in Spring-
field. More importantly, drug quantity includes rel-
evant conduct, see U.S.S.G. § 2D.1.1 cmt. n.5, which
comprises all acts “that were part of the same course
of conduct . . . as the offense of conviction,” in particular
acts that are part of an “ongoing series of offenses.”
See U.S.S.G. § 1B1.3(a)(2) & cmt. n.9(B). By his own ad-
mission, Lomax regularly sold both crack and powder
cocaine in two Illinois localities for the brief, unbroken
period of time between late 2003 and the fall of 2004.
The fact that Lomax had two different suppliers during
this period is irrelevant: The offense of conviction
was part of a “continuous pattern of drug trafficking,”
and thus the sentencing court properly counted
Lomax’s uncharged sales as relevant conduct. United
States v. Stephenson, 557 F.3d 449, 457 (7th Cir. 2009);
see also United States v. Farmer, 543 F.3d 363, 373 (7th Cir.
2008); United States v. White, 519 F.3d 342, 347-49 (7th
Cir. 2008); United States v. Wilson, 502 F.3d 718, 723-24 (7th
Cir. 2007).
Accordingly, we V ACATE Lomax’s sentence and
R EMAND the case to the district court. On remand the
judge must first resolve whether Lomax is subject to
the § 851 enhancement.
4-2-13