In the
United States Court of Appeals
For the Seventh Circuit
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No. 03-2088
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN H. NOBLE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99 CR 6—Barbara B. Crabb, Chief Judge.
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ARGUED MARCH 31, 2004—DECIDED MAY 4, 2004
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Before BAUER, POSNER, and WILLIAMS, Circuit Judges.
BAUER, Circuit Judge. This is the third appeal deal-
ing with John Noble’s sentence. In the first, we vacated
his 30-year sentence for possession of cocaine with intent to
distribute based on the principles of Apprendi v. New
Jersey, 530 U.S. 466 (2000); see also United States v. Noble,
246 F.3d 946 (7th Cir. 2001) (Noble I). On remand, the
district court reduced his sentence on that count but
increased the sentence of another, and ordered them to run
consecutively, which again left Noble with the same 30-year
sentence. On his second appeal, Noble argued that the
imposition of consecutive sentences was an Apprendi
2 No. 03-2088
violation and that there was no reliable evidence supporting
the district court’s decision to attribute an additional 65
ounces of cocaine to Noble’s relevant conduct calculation.
We held that there was no Apprendi violation, but that the
evidence supporting the amount of the cocaine was not
reliable. See United States v. Noble, 299 F.3d 907 (7th Cir.
2002) (Noble II). At the second re-sentencing, the district
court allowed the government to re-call witness Steven Jobe
to testify—in a second attempt to support the inclusion of
the 65 ounces of cocaine in Noble’s relevant conduct calcula-
tion. Still unable to support the 65 additional ounces of
cocaine (equal to 351 kilograms), the government used
Jobe’s testimony to support a new, lower estimate of 300
kilograms (the Jobe Quantity), which was added to Noble’s
relevant conduct calculation. The district court then re-
sentenced Noble to 315 months (26.25 years) in prison.
Noble now appeals this sentence.
DISCUSSION
Noble argues that the district court improperly allowed
the government to introduce new evidence at the second re-
sentencing hearing because that constituted a second
opportunity to carry its burden of proof. We agree with
Noble.
The district court’s decision to allow the government to
present new evidence at the remanded sentencing hearing
presents a question of law, which we generally review de
novo. United States v. Sumner, 325 F.3d 884, 888 (7th Cir.
2003). When a defendant such as Noble is sentenced on the
basis of uncharged drug-related misconduct, the burden is
on the government to prove the amount of drugs involved in
that conduct. E.g., United States v. Acosta, 85 F.3d 275, 279
(7th Cir. 1996). If the government failed to meet its burden,
the government is not permitted on remand to try again
and submit new evidence in a belated effort to carry its
No. 03-2088 3
burden. See United States v. Wyss, 147 F.3d 631, 633 (7th
Cir. 1998) (“[t]he government [i]s entitled to only one
opportunity to present evidence on the issue”); United
States v. Wilson, 131 F.3d 1250, 1253-54 (7th Cir. 1997).
In this case, it was the government’s burden to present
sufficiently reliable evidence to support the Jobe Quantity.
The government knew what it was required to introduce to
meet its burden, and we found that the government failed
to do so. See Noble II, 299 F.3d at 910-11. Nonetheless,
following the second remand, the district court allowed the
government a second opportunity to meet the burden that
it failed to carry at the original sentencing hearing. This the
law does not allow.
We remand for the district court to impose a sentence
that is not based on the additional testimony taken after
Noble II and not based on the evidence we concluded was
unreliable.
REVERSED AND REMANDED WITH DIRECTIONS.
A true Copy:
Teste:
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Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-4-04