In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3680
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
THOMAS J. SUMNER,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 99 CR 40079--J. Phil Gilbert, Judge.
ARGUED APRIL 10, 2001--DECIDED September 7, 2001
Before COFFEY, ROVNER and DIANE P. WOOD,
Circuit Judges.
ROVNER, Circuit Judge. Thomas J. Sumner
pled guilty to three counts of
distributing cocaine, in violation of 21
U.S.C. sec. 841(a)(1). Although Sumner
was charged with distributing a total of
9.4 grams of powder cocaine (which is
equivalent under the Sentencing
Guidelines to 1.88 kilograms of
marijuana), the district court sentenced
him based on an additional distribution
of 57.6 grams (about two ounces) of crack
cocaine, under the relevant conduct
provision of the Guidelines. Two ounces
of crack translate to an astonishing
1,213.72 kilograms of marijuana
equivalent under the Guidelines, and
Sumner’s sentencing range rose from 8-to-
14 months to 121-to-151 months. Because
Sumner is 76 years old, this is a
significant difference. The district
court sentenced Sumner to 132 months of
incarceration. He now challenges his
sentence on the grounds that the
government did not meet its burden of
showing that his distribution of crack
cocaine was sufficiently related to his
offense of conviction, and thus should
not be included as relevant conduct.
Because the district court did not make
adequate findings tying the crack sales
to the offense of conviction, we vacate
and remand for resentencing.
I.
Sumner was arrested in his home after
selling cocaine to a confidential
informant on three separate occasions in
September 1999. In addition to the 9.4
grams of cocaine that Sumner sold to the
informant, the police seized more powder
cocaine and 34.4 grams of marijuana from
Sumner’s residence. After waiving his
Miranda rights, Sumner told an FBI agent
that he had been selling cocaine for some
time. He estimated that he sold an ounce
of cocaine each month between January
1998 and July 1998, and that he sold an
equal amount between April 1999 and
September 1999. Although he later
disputed the dates and amounts of his
admitted crack dealing, the district
court ultimately found that Sumner also
told the agent he sold two ounces of
crack in the winter of 1997. He told the
agent that he voluntarily stopped selling
crack when one of his customers smoked
the substance in his presence and had a
seizure. Because three different drugs
were involved (cocaine, crack cocaine and
marijuana), the district court converted
all of the amounts into marijuana
equivalents. The Guidelines treat crack
much more harshly than powder cocaine or
marijuana, and the effect on Sumner’s
sentencing range was significant.
Sumner pled guilty without a plea
agreement in place. A probation officer
prepared a Presentence Investigation
Report ("PSR"), detailing Sumner’s
admissions to the agent, and calculating
the amount of drugs used for sentencing.
According to the PSR, Sumner began
purchasing quarter ounce quantities of
crack in the winter of 1997. He bought
and sold one-fourth of an ounce of crack
each week for approximately two months.
At some point, he voluntarily ceased
selling crack and decided to sell powder
cocaine instead. He told authorities that
he did not sell marijuana but kept it in
his house for guests. Sumner objected to
the PSR, claiming that he never told the
agent he sold two ounces of crack;
rather, he claimed he bought 7 grams of
crack, sold 4 grams and then returned
the other 2 grams to his supplier after
the seizure incident. He also maintained
that he stopped selling drugs during a
period of time that he was driving a bus
for a living. He contested Paragraphs 14
and 15 of the PSR, which described his
sales of crack and powder cocaine at
various times, contending that the
information was without sufficient
indicia of reliability to support its
probable accuracy. The probation officer
responded that the information was
accurate because it was supplied by
Sumner himself during a voluntary post-
arrest interview. The court ultimately
adopted the probation officer’s position.
Paragraph 24 of the PSR details the
calculation of the amount of drugs
distributed, and Sumner filed the
following objection to Paragraph 24:
The defendant objects to Paragraph 24 of
the presentence report and suggests that
the relevant conduct should be based on
seven grams of crack cocaine, six ounces
of powder cocaine, and 34 grams of
marihuana.
Addendum to Presentence Report, at 3.
Again citing Sumner’s voluntary post-
arrest interview, the probation officer
responded that "[t]he defendant’s
relevant conduct includes 56.7 grams of
crack cocaine, 396.9 grams of powder
cocaine, and 34.3 grams of marihuana."
Id. Although Sumner lodged a number of
other objections to the Presentence
Report, none are relevant to the issues
he now raises on appeal.
At his sentencing hearing, Sumner
represented to the court that, other than
the objections filed by his attorney,
there were no other errors, corrections,
alterations or additions that he wished
to make to the PSR. After the trial judge
remarked that most of Sumner’s objections
were related to statements Sumner
allegedly made to law enforcement,
Sumner’s attorney summarized his
objections to the PSR thusly:
There is no plea agreement. Essentially
correct, Your Honor, in terms of
summarizing what the objections are. The
objections go to the relevant conduct,
the amount of crack cocaine, the amount
of powder cocaine and how that would
affect the sentencing. It would also go
to some extent to the acceptance of
responsibility and would also go toward
in terms of timing whether or not he
committed this offense or certain
relevant conduct while he was on
probation.
Sentencing Tr. at 4. When asked
specifically what Sumner’s position on
relevant conduct was, his attorney
replied,
Your Honor, our position on relevant
conduct is that Mr. Sumner, it’s Mr.
Sumner’s position that the amount of
crack cocaine that’s indicated in the
report that’s been objected to that could
be attributed to him as relevant conduct
ought to be 7 grams, and that the powder
cocaine ought to be 6 ounces.
Sentencing Tr. at 5. In response to the
government’s question about where the
figure of 7 grams of crack came from,
Sumner’s attorney responded, in relevant
part,
Mr. Sumner’s position and testimony would
be that he sold crack cocaine in the
early 90s. He possessed it, had it to
sell. He had 7 grams. 3 and a half grams
on two separate occasions where he
distributed 4 and a half grams and gave 2
and a half grams back to the guy who
fronted him, and that would be the only
point in time he was involved with crack
cocaine.
Sentencing Tr. at 6.
The court then held a hearing at which
both Sumner and the agent who interviewed
him after his arrest testified about his
admissions that day. According to the
agent, Sumner informed him that "in what
he remembered to be possibly the winter
of 1997 he had started to sell crack
cocaine, and after a couple of months, he
felt like he was doing bad things to
people, didn’t want to deal with it
anymore so he switched to powder cocaine
and began to sell it instead." Sentencing
Tr. at 10.
In its findings, the court noted that
the timing and amount of the alleged
relevant conduct were both at issue:
With respect to the issues of the
relevant conduct which kind of interplays
in with the criminal history as to
whether or not this defendant in his
post-arrest statement was dealing crack
cocaine and cocaine in ’97 in which he
would have been on probation, and if the
Court finds that the--that the post-
arrest statement is valid, that the
Criminal History Category of II would be
appropriate. Plus the relevant conduct in
terms of the amount of drugs the
defendant in his post-arrest statement
said that what he was selling and
acquiring during that time period would
be factored into the total relevant
conduct.
Sentencing Tr. at 42. The court noted it
was a classic battle of credibility
between the agent and the defendant, that
the defendant’s testimony contained
internal inconsistencies, and that "it’s
difficult for this Court to believe that
this agent just pulled these numbers out
of and these dates out of thin air."
Sentencing Tr. at 42-43. The court found
that the defendant did tell the agents
the information that they put into their
reports. The court concluded, therefore,
that the amount of drugs for relevant
conduct purposes was 1,213.72 kilograms
of marijuana equivalent as found by the
PSR. The court adopted the PSR in its
entirety with the exception of the PSR’s
recommendation against a reduction for
acceptance of responsibility. The court
sentenced Sumner to 132 months of
incarceration. Sumner appeals.
II.
On appeal, Sumner protests that the
district court did not explain why any of
the crack was included as relevant
conduct. He asserts that the crack
transactions occurred more than two years
prior to the offense of conviction,
lasted for at most two months, and were
voluntarily terminated. Sumner also
complains that there was no evidence
linking the crack transactions to the
offense of conviction by commonality of
supplier or customers. He asks us to
conclude that the crack transactions were
not part of the same course of conduct or
common scheme or plan as the offense of
conviction and are therefore not relevant
conduct. He requests that we vacate his
sentence and remand so that the district
court can recalculate the sentence
without the 56.7 grams of crack. The
government contends that Sumner waived
the issue of whether the crack was part
of the same course of conduct, or in the
very least forfeited that issue. We may
not review a waived issue and we may
review a forfeited issue for plain error
only. The government maintains there was
no error, plain or otherwise, in finding
that the crack transactions were relevant
conduct because the evidence established
that Sumner was continuously involved in
the distribution of drugs from the winter
of 1997 until his arrest in September
1999.
A.
We consider the waiver issue first
because it affects our jurisdiction to
hear the appeal. Waiver is the
intentional relinquishment or abandonment
of a known right. United States v. Olano,
507 U.S. 725, 733 (1993). It differs from
forfeiture, which is simply the failure
to make a timely assertion of a right.
Id. Waiver extinguishes the error and
precludes appellate review. United States
v. Staples, 202 F.3d 992, 995 (7th Cir.
2000). Forfeiture permits plain error
review. Id. A common distinction we draw
between waiver and forfeiture is that
waiver comes about intentionally whereas
forfeiture occurs through neglect. Id.
Before the district court, Sumner argued
that, contrary to the agent’s report of
his confession, his sales of crack
cocaine were in much smaller amounts and
were remote in time from his powder
cocaine dealing. In large part, he
contested the timing of the sales because
the government sought to prove that the
crack sales occurred while Sumner was on
probation for an unrelated offense. His
timing argument was thus focused on which
criminal history category would apply
rather than whether the crack sales were
too remote in time to be relevant. When
the district court disagreed about the
timing and amounts and credited the
agent’s account of the conversation,
Sumner did not further object about the
district court’s failure to find that the
crack transactions were part of the same
course of conduct as the powder cocaine
sales to which he pled guilty. In
reviewing the record, the question of
whether this failure to object to the
district court’s lack of findings was
intentional or negligent is a close call.
The government relies largely on Staples,
where the defendant attempted to appeal
the district court’s assessment of his
criminal history category. 202 F.3d at
995. The defendant was provided in
advance with a copy of the PSR
recommending a criminal history category
of IV. He was given an opportunity to
object to the PSR before and during his
sentencing hearing and did neither.
Instead, his attorney reported to the
court that he had not filed any
objections, and the defendant had
indicated to him that morning that he had
no objections to the PSR. We found that
this sequence of events indicated that
the defendant knew he had a right to
object and affirmatively decided not to.
202 F.3d at 995. This failure to object
under these circumstances indicated
intent, rather than ignorance or neglect,
and we therefore held the defendant
waived his objection to the PSR. Id.
Here, of course, Sumner did object to the
PSR on the grounds that the amount of
crack was over-reported and the
transactions were much more remote in
time than represented. He did not,
however, object to the district court’s
failure to tie the crack transactions to
the offense of conviction once the
district court ruled against him on the
factual disputes.
The government also cited United States
v. Ramsey, 237 F.3d 853 (7th Cir. 2001)
in support of a finding of waiver. There,
the district court enhanced Ramsey’s
sentence under U.S.S.G. 3B1.4 for using a
minor in the commission of the offense of
distributing cocaine. Before the district
court, Ramsey urged the court to adopt a
particular definition of "use" that would
preclude application of 3B1.4 to his sen
tence. The district court disagreed with
his interpretation and applied the
enhancement. On appeal, Ramsey argued
that the term "use" in section 3B1.4 is
ambiguous and the district court should
have applied the rule of lenity. Ramsey
conceded he did not ask the district
court to apply this rule, but maintained
that his failure to raise the issue below
was at most forfeiture and not waiver of
the issue. We disagreed because Ramsey
urged the district court to adopt a
particular definition, but never claimed
the term was ambiguous. 237 F.3d at 862.
We found this was an intentional
relinquishment of a known right that
precluded our review.
Sumner counters with United States v.
Perry, 223 F.3d 431 (7th Cir. 2000),
where we noted that we construe waiver
principles liberally in favor of the
defendant. 223 F.3d at 433. Perry was
charged with being a felon in possession
of a gun. The government sought a four-
level enhancement to his sentence because
he had waved the gun at another person
during an argument, an act that
constituted felony criminal recklessness
in violation of state law. At sentencing,
the defendant argued that there had not
been an altercation, and he had never
waved the gun at anyone. The district
court did not believe Perry’s denial and
applied the enhancement. On appeal, Perry
claimed for the first time that he used
the gun in self-defense, an affirmative
defense under state law that he would
have been required to prove at
sentencing. We noted that we construe
waiver principles liberally in favor of
defendants, and found that because there
was no evidence in the record that Perry
was aware of his right to assert self-
defense and intentionally relinquished
that right, Perry forfeited rather than
waived the issue. We thus applied plain
error review. 223 F.3d at 433.
Another aspect to the waiver analysis on
sentencing is the defendant’s failure to
object to the adequacy of the district
court’s findings once the district court
has ruled on disputed factual issues. We
have held that when a defendant
consistently disputes an issue, and the
district court does not specifically
elicit objections to the adequacy of its
findings, the defendant is not required
to interpose a further objection to the
adequacy of the district court’s findings
after the district court has ruled.
United States v. Freitag, 230 F.3d 1019,
1025 n.7 (7th Cir. 2000). See also United
States v. Patel, 131 F.3d 1195, 1201 (7th
Cir. 1997). In Patel, the defendant filed
written objections to the PSR and
asserted throughout a lengthy sentencing
hearing that he should be held
responsible for less than 50 kilograms of
cocaine, that he did not qualify as a
supervisor or manager, and that he was
entitled to a reduction for acceptance of
responsibility. After the district court
resolved the disputed issues, Patel
failed to further object to the
sufficiency of the court’s findings.
Because Patel consistently asserted his
objections throughout the three-day
sentencing hearing, and because the
district court did not specifically
elicit objections to the sufficiency of
its findings, we found that Patel did not
waive his right to challenge the adequacy
of those findings on appeal. 131 F.3d at
1201.
Reviewing the government’s claim for
waiver in light of this background, we
cannot agree that Sumner has waived his
right to appeal the sufficiency of the
district court’s findings on relevant
conduct. Sumner consistently challenged
the agent’s account of his confession in
two respects. First, he contended that he
admitted selling at most 7 grams of crack
cocaine. Second, and most importantly for
the purposes of determining relevant
conduct, Sumner disputed the agent’s
rendition of the timing of the sales.
According to Sumner, he sold crack in
1992. The agent testified that Sumner
admitted to selling crack in the winter
of 1997. When the district court credited
the agent’s version of the confession,
Sumner did not further challenge whether
a sale in the winter of 1997 was
sufficiently contemporaneous to the
offense of conviction to constitute
relevant conduct.
Whether Sumner’s failure to object
constituted a waiver rather than a
forfeiture is a close call. There are two
ways to read Sumner’s objections to the
PSR and his objections at the sentencing
hearing. First, he may have been
conceding that the sale of crack was
relevant conduct, and was contesting only
the amount of crack at issue. This is the
view the government urges us to adopt.
Second, he may have been contesting
whether the crack sales were relevant at
all given their remoteness in time. Under
this second scenario, he conceded only
the fact that he sold 7 grams of crack in
the early 1990s, without conceding that
these transactions were part of the same
course of conduct as the offense of
conviction. As in Patel, the record does
not reveal that Sumner knowingly waived
his right to challenge the sufficiency of
the district court’s findings on the
relevant conduct issue. Construing waiver
principles liberally in favor of the
defendant as we must under Perry, this
failure was at worst a forfeiture of the
issue, a failure to make a timely
assertion of a right. See also United
States v. McClellan, 165 F.2d 535, 552-53
(7th Cir. 1999), cert. denied, 526 U.S.
1125 (1999) (defendant’s mere failure to
object on a specified ground during
sentencing hearing results in plain error
review).
B.
Because Sumner forfeited the issue, we
review for plain error only. "Plain" in
this context is synonymous with clear or
obvious. At a minimum, this means the
error must be clear under current law.
Olano, 507 U.S at 734. Moreover, the
error must affect substantial rights. In
other words, it must be prejudicial, and
must have affected the outcome of the
district court proceedings. Id. The
defendant bears the burden of persuasion
with respect to prejudice. Id. The law
was clear in this circuit at the time of
Sumner’s sentencing that when a district
court aggregates drug quantities arising
from charged or uncharged relevant
conduct, the court should explicitly
state and support, either at the
sentencing hearing or preferably in a
written statement of its reasons, its
finding that the unconvicted activities
bore the necessary relation to the
convicted offense. United States v.
Bacallao, 149 F.3d 717, 720 (7th Cir.
1998). However, where it is clear that
the district court took into
consideration and adopted the facts
contained in the PSR, as well as the gov
ernment’s reasoning concerning those
facts, we have upheld the court’s
decision to treat the uncharged
activities as relevant conduct, despite
the lack of express findings. Id. But
when a court relies entirely on the PSR
to make its relevant conduct findings,
the PSR must explain how the purported
relevant conduct is part of the same
course of conduct or common scheme or
plan as the offense of conviction.
Bacallao, 149 F.3d at 721.
"Two or more offenses are part of a
common scheme or plan when they are
’substantially connected to each other by
at least one common factor, such as
common victims, common accomplices,
common purpose, or similar modus operandi.’"
United States v. Acosta, 85 F.3d 275, 281
(7th Cir. 1996) (quoting U.S.S.G. sec.
1B1.3(a)(2), Application Note 9). In
assessing whether two or more offenses
are part of the same course of conduct,
the court should consider factors that
point to a strong relationship between
the uncharged conduct and the offense of
conviction, focusing on whether the
government has demonstrated a significant
similarity, regularity, and temporal
proximity between the uncharged acts and
the offense of conviction. Acosta, 85
F.3d at 281. When one of these factors is
weak or absent, a stronger showing of the
others will support a finding of relevant
conduct. Id. We must look, then, at the
PSR and at the sentencing hearing to
determine if the court made the requisite
findings on the record.
At Sumner’s sentencing hearing, the
court resolved several disputed fact
issues against Sumner. The court found
that Sumner sold two ounces or 57.6 grams
of crack, rather than the 7 grams Sumner
claimed. The court also found that he
sold the crack in the winter of 1997
rather than at some time in 1992. The
court adopted the PSR in its entirety
with the exception of a part relating to
acceptance of responsibility, which is
not at issue here. The court made no
express finding on the record that the
sales of crack were part of the same
course of conduct or common scheme or
plan as the sales of powder cocaine to
the confidential informant. There is no
discussion of the factors of similarity,
regularity, or temporal proximity. We
look next at the PSR to determine if
there is adequate support for the
relevant conduct finding there. The PSR,
including the Addendum detailing Sumner’s
objections and the probation officer’s
response to the objections, reveals that
Sumner began selling crack in the winter
of 1997, and that his source was Troy
Ash. PSR at para. 14, Addendum at 2, 5.
The PSR states that Sumner did not like
the effect crack had on his customers so
he voluntarily stopped selling it and
began selling powder cocaine instead. PSR
at para. 14. Troy Ash continued to be his
source for drugs until Ash was arrested
in August 1998. PSR at para. 15. Sumner
sold powder cocaine from January to July
1998. PSR at para. 24. He found a new
source in July 1999 and began once again
buying and selling powder cocaine at that
time. PSR at para.para. 23-24. The PSR
made no finding regarding what Sumner
meant by "winter 1997," which could refer
to January 1997 or December 1997. There
is no discussion in the PSR about the
similarity, regularity, or temporal
proximity of the uncharged acts and the
offense of conviction, other than what we
have cited here.
This failure to explain the connection
between the uncharged conduct and the
offense of conviction was erroneous under
well established law. See Acosta, 85 F.3d
at 280; Bacallao, 149 F.3d at 720-21.
That does not resolve the appeal,
however, because Sumner bears the burden
of showing that the court’s failure to
explain was prejudicial, that it affected
the outcome of the district court
proceedings. According to Sumner, there
was a significant temporal gap between
the uncharged conduct and the offense of
conviction, there was evidence that he
voluntarily ceased the uncharged
activity, the uncharged conduct involved
a different drug than the offense of
conviction, and there was no showing of a
common geographical location, common
customers, common supplier, common
victims, accomplices or modus operandi.
Sumner points out that this uncharged
conduct didn’t just enhance his sentence;
it established the sentence because the
drugs charged in the offense of
conviction amounted to less than 0.2% of
the amount of drugs for which he was held
accountable. The government counters that
there was no gap between the cessation of
crack sales and the commencement of
powder cocaine sales. The government
premises this assertion on an assumption
that the winter 1997 sales occurred in
late 1997 rather than early 1997. But
there are no findings in the record to
support this assumption. Without temporal
proximity, the government must make a
stronger showing of the other factors,
such as regularity and similarity of the
acts. Again, the record is thin. The
difference in Sumner’s sentence was
significant. Without the uncharged
conduct, he faced a sentence of 8 to 14
months’ imprisonment. With the uncharged
conduct, his sentencing range jumped to
121 to 151 months, with the district
court resting on 132 months as the final
sentence. This approaches the scenario we
have cautioned against, where the
uncharged conduct so influences the
sentence that it becomes a case of the
tail wagging the dog. United States v.
Morrison, 207 F.3d 962, 968 (7th Cir.
2000). We believe that Sumner has
adequately demonstrated prejudice.
III.
We are not holding that the district
court may not sentence Sumner for
relevant conduct. To the contrary, we are
merely holding that if the district court
wishes to do so, it must make adequate
findings on the record tying the
uncharged conduct to the offense of
conviction. Because the district court
did not do so here, and because the
defendant has demonstrated that he was
prejudiced by this failure, we vacate and
remand for resentencing consistent with
this opinion.
VACATED AND REMANDED.