In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2186
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ICHAEL G IBBS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 CR 540—Suzanne B. Conlon, Judge.
A RGUED M ARCH 30, 2009—D ECIDED A UGUST 25, 2009
Before K ANNE, W OOD and W ILLIAMS, Circuit Judges.
W OOD , Circuit Judge. On February 22, 2007, Michael
Gibbs made the mistake of selling crack cocaine to a
witness cooperating with the federal government. A
grand jury indicted Gibbs for distributing fifty or more
grams of crack in violation of 21 U.S.C. § 841(a)(1), and
Gibbs pleaded guilty. The district court sentenced Gibbs
to ten years’ imprisonment and ten years of supervised
release. The court also ordered Gibbs, as a condition of
2 No. 08-2186
his supervised release, to repay the $1,400 used by the
Government to buy the drugs. On appeal, Gibbs chal-
lenges only the supervised release term and the repay-
ment condition. He argues that the district court erred
by failing to calculate the advisory Guideline range and
by imposing a repayment obligation without con-
sidering Gibbs’s ability to pay. As we explain below, the
latter argument is premature, but the former argument
has merit. We therefore vacate the supervised release
term of Gibbs’s sentence and remand the case to the
district court.
While the Sentencing Guidelines are advisory, the
Supreme Court has stressed that district courts must treat
the Guidelines as “the starting point and the initial bench-
mark.” Gall v. United States, 128 S. Ct. 586, 597 (2007). A
district court must “begin all sentencing proceedings
by correctly calculating the applicable Guideline range”;
failure to do so is a “significant procedural error.” Id.; see
also United States v. McKinney, 543 F.3d 911, 913 (7th Cir.
2008) (noting that, under Gall, this court must satisfy
itself that the district court correctly calculated the advi-
sory Guideline range). We review the procedures fol-
lowed by the district court de novo. United States v.
Mendoza, 510 F.3d 749, 754 (7th Cir. 2007).
Both parties agree that the correct advisory Guideline
range for Gibbs’s term of supervised release is five
years. To forestall any possible objection, we explain
how we calculated that range. Because Gibbs pleaded
guilty to violating 21 U.S.C. § 841(a)(1), he faces a super-
vised release term subject to a statutory minimum of
No. 08-2186 3
five years and a statutory maximum of life. See § 841(b).
For supervised release, the appropriate Guideline,
U.S.S.G. § 5D1.2(a)(1), suggests a range of three to five
years. When the question on the table relates to the im-
prisonment term, if the statutory minimum is higher
than the Guideline range, the statutory minimum con-
trols. See U.S.S.G. § 5G1.1(b), see, e.g., United States v. Poole,
550 F.3d 676, 678 (7th Cir. 2008). The same principle applies
to supervised release. In keeping with that idea, § 5D1.2(c)
of the Guidelines provides that “[t]he term of supervised
release imposed shall be not less than any statutorily
required term of supervised release.” Thus, the statutory
minimum term of supervised release defines either the
bottom limit of the advisory Guideline range or the entire
range (if it coincides with the top of the Guidelines range).
For Gibbs, because the Guidelines suggested three to five
years but the statute requires five years, the advisory
Guideline range becomes five years, period.
The problem we face is that the district court never
acknowledged that the advisory range was five years.
After imposing the incarceration sentence, it said: “The
supervised release term is five years to life. I am im-
posing a period of 10 years supervised release.” The
court identified the statutory range, but as far as we
can tell it never calculated the advisory Guideline
range. The Government speculates that the district court
knew that the Guideline range was five years, but it
provides no evidence to support this assertion; at oral
argument, the Government could not identify a single
statement by the court reflecting its knowledge that the
advisory range was five years. Nowhere in the record
4 No. 08-2186
does it even establish that the district court adopted
the Guideline range in the presentencing report. Under
the circumstances, we are unable to satisfy ourselves
that the district court correctly calculated the advisory
Guideline range. This procedural error entitles Gibbs to
a redetermination of his supervised release term.
Gibbs also challenges the district court’s order condi-
tioning supervised release on Gibbs’s repayment of
$1,400 to the United States. A district court has the
power to impose as a condition of supervised release “any
other condition it considers appropriate.” 18 U.S.C.
§ 3583(d). We have interpreted this power to authorize a
condition requiring the repayment of buy money. United
States v. Daddato, 996 F.2d 903, 904-05 (7th Cir. 1993). We
acknowledge that other circuits disagree, but we decline
to overrule our long-standing precedent. See United
States v. Cottman, 142 F.3d 160, 169-70 (3d Cir. 1998); United
States v. Gibbens, 25 F.3d 28, 36 n.9 (1st Cir. 1994). Gibbs
asserts that the district court should have considered his
ability to repay when imposing the condition, but we think
that the district court appropriately deferred any such
consideration until Gibbs’s release from prison. Gibbs will
have an opportunity to raise this issue after he serves his
ten-year prison term.
***
We V ACATE the sentence of supervised release and
R EMAND this case for the limited purpose of redeter-
mining the supervised release term.
8-25-09