In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐4160
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
MILES MUSGRAVES,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:13‐cr‐30276 — Michael J. Reagan, Chief Judge.
____________________
ARGUED NOVEMBER 7, 2017 — DECIDED FEBRUARY 26, 2018
____________________
Before EASTERBROOK, ROVNER, and HAMILTON, Circuit
Judges.
HAMILTON, Circuit Judge. This is defendant Miles Mus‐
graves’ second appeal from his 2015 convictions and sen‐
tences on drug and firearm charges. He was first sentenced as
a career offender to 240 months in prison. In Musgraves’ first
appeal, we reversed three of his five convictions and re‐
manded for resentencing. On remand the district court found
by a preponderance of the evidence that Musgraves engaged
2 No. 16‐4160
in some of the acquitted conduct: drug distribution and pos‐
session of a firearm as a felon. The district court also found
that, despite the reversed convictions, Musgraves was still a
career offender. Upon resentencing, the court imposed the
same sentence of 240 months.
In this appeal, Musgraves challenges the district court’s
findings that he committed the acquitted conduct and is a ca‐
reer offender. He also argues that imposing the same sentence
on remand was substantively unreasonable. We affirm. The
district court’s factual findings on the acquitted conduct are
supported by a preponderance of the evidence, which is suf‐
ficient for purposes of guideline sentencing. As for the career
offender enhancement, even if the judge was wrong under the
Guidelines, he made clear that any such error would have
been harmless. Finally, Musgraves’ sentence is not substan‐
tively unreasonable.
I. Factual & Procedural Background
Our opinion in United States v. Musgraves, 831 F.3d 454 (7th
Cir. 2016) (Musgraves I), recounts the facts in detail. We pro‐
vide here only the facts relevant to the issues in this appeal.
We start by describing what happened on November 17, 2013,
the day of the acquitted conduct in dispute. We then summa‐
rize Musgraves’ first appeal and resentencing before moving
on to analyze Musgraves’ arguments.
A. The November 17, 2013 Framing of Jesse Smith
In 2012 and 2013, the police were investigating Musgraves
for dealing drugs out of his home in Alton, Illinois. In July
2013, they had searched Musgraves’ house and arrested him
after discovering ammunition, which as a felon Musgraves
No. 16‐4160 3
was not allowed to possess. See 18 U.S.C. § 922(g)(1). Mus‐
graves quickly agreed to cooperate with police as an inform‐
ant, so he was released from custody for the time being. His
contact at the police department was Detective Kurtis
McCray.
On November 17, 2013, Musgraves contacted McCray to
report criminal activity. McCray was busy and told Mus‐
graves to call 911. Someone—likely Musgraves—called 911
and told the operator that a man parked in front of Mus‐
graves’ house had a gun under the driver’s seat and cocaine
in the visor. When police arrived in front of Musgraves’ house,
they found a man named Jesse Smith passed out inside a car.
They also found crack cocaine in Smith’s pocket and powder
cocaine in the visor. They did not find a gun. McCray sent a
text to Musgraves saying that officers had found the drugs but
no gun. Musgraves insisted that there was a gun, prompting
McCray to obtain a warrant and to search the car a second
time. During that search, officers moved the driver’s seat for‐
ward and found a handgun that had been hidden under the
seat.
McCray recalled that a few days earlier, Musgraves’
brother Romell Stevens had told police about a gun that he
had received in a drug sale and then given to Musgraves.
McCray checked the serial number on the gun found in
Smith’s car and discovered that it matched a gun that a man
named Donald Bock had reported stolen. McCray followed
up by questioning Bock, who admitted that he had traded the
gun to Stevens for drugs and falsely reported the gun stolen.
Based on all of these suspicious circumstances, McCray in‐
ferred that Musgraves had planted the gun and drugs to
frame Smith to win credit for cooperating as an informant.
4 No. 16‐4160
Musgraves was charged with possessing a firearm and dis‐
tributing drugs when he framed Smith on November 17, 2013.
B. The 2015 Convictions and First Appeal
In 2015 a jury convicted Musgraves on five charges: (1) us‐
ing his home for drug‐related purposes; (2) conspiring to dis‐
tribute cocaine; (3) possessing ammunition as a felon; (4) pos‐
sessing a firearm as a felon; and (5) distributing cocaine near
a school. The convictions for possessing a firearm and distrib‐
uting cocaine were both based on the November 17, 2013
framing of Smith. At sentencing, the district court determined
that Musgraves was a career offender and sentenced him to
240 months, which was below the calculated Sentencing
Guideline range.
Musgraves appealed, arguing (along with other points not
relevant here) that there was insufficient evidence to support
three of his convictions. We agreed and reversed the convic‐
tions for the two November 17 offenses and conspiracy to dis‐
tribute cocaine. We vacated Musgraves’ sentences on the re‐
maining convictions and remanded for resentencing.
C. Resentencing
On remand, the district court imposed the same sentence
of 240 months. The court found by a preponderance of the ev‐
idence that Musgraves had in fact distributed cocaine and
possessed a firearm by placing both items in Smith’s car on
November 17, 2013. This acquitted conduct factored into the
district court’s analysis under 18 U.S.C. § 3553(a) and its deci‐
sion to impose the same sentence on Musgraves.
The district court also found that Musgraves was a career
offender. Musgraves objected to the enhancement, pointing
out that it applied to him only if his conviction under 21
No. 16‐4160 5
U.S.C. § 856 for using his home for drug‐related purposes was
a controlled substance offense under the Guidelines. Mus‐
graves argued that it was not, but the district court disagreed.
Nevertheless, the district court calculated the guideline range
both with and without the career offender enhancement and
chose a sentence between those two ranges. The district court
explained that the career offender enhancement did not drive
the sentencing decision and that 240 months was the appro‐
priate sentence under 18 U.S.C. § 3553(a).
II. Analysis
In this appeal, Musgraves challenges his new sentence on
three grounds. First, he argues that the November 17 acquit‐
ted conduct should not affect his sentence because the gov‐
ernment did not prove it by a preponderance of the evidence.
Second, he argues that his conviction for using his home for
drug‐related purposes is not a controlled substance offense
sufficient to apply the career offender enhancement. Finally,
he claims that his second, identical sentence is substantively
unreasonable because he now has three fewer convictions and
his sentence should reflect this change.
A. Acquitted Conduct
The district court did not err by considering the November
17 conduct despite our conclusion in Musgraves’ first appeal
that the evidence did not support the convictions beyond a
reasonable doubt. A “verdict of acquittal does not prevent the
sentencing court from considering conduct underlying the ac‐
quitted charge, so long as that conduct has been proved by a
preponderance of the evidence.” United States v. Watts, 519
U.S. 148, 157 (1997); see also 18 U.S.C. § 3661. That is what
6 No. 16‐4160
happened here. After we reversed three convictions for evi‐
dence insufficient to prove guilt beyond a reasonable doubt,
the district court found by a preponderance of the evidence
that Musgraves committed two of them: distributing cocaine
and possessing a firearm on November 17, 2013.
As Musgraves points out, we said in his first appeal that
“there is no evidence supporting an inference” that Mus‐
graves possessed the gun found in Smith’s car. Musgraves I,
831 F.3d at 467. We also stated that the evidence of the drug
charge was even weaker. Id. at 468. Musgraves uses that lan‐
guage to argue there was insufficient evidence to support the
court’s factual findings at sentencing, too.
Our language was not as precise as it should have been,
but the first appeal does not control the outcome here. In that
appeal, we addressed only whether the government had
proven the framing conduct beyond a reasonable doubt. In
this appeal, the issue is whether the district court committed
clear error when it found by a preponderance of the evidence
that Musgraves engaged in those actions. See United States v.
Ranjel, 872 F.3d 815, 818 (7th Cir. 2017) (“We will not disturb a
sentencing court’s factual findings unless they are clearly er‐
roneous.”). There was sufficient evidence to support these
findings by a preponderance of the evidence.
To start, there was evidence tying Musgraves to the gun
and cocaine. The gun found in Smith’s car matched the one
Stevens testified he had given to Musgraves and four wit‐
nesses identified Musgraves as the source of Stevens’ drug
supply. Whoever called 911 to report Smith knew exactly
where the items were in the car. The evidence pointed toward
Musgraves as the caller. Right before the 911 call, Musgraves
sent a text to McCray, who told him to call 911. The 911 caller
No. 16‐4160 7
referred to “Big Chief,” which was Musgraves’ code name for
McCray. And after McCray told Musgraves that officers did
not find a gun, Musgraves insisted that McCray search again.
Musgraves also had a motive and opportunity to plant the
contraband. In the weeks before November 17, Detective
McCray had been pressuring Musgraves to provide tips as an
informant or face prosecution. Smith testified that he spent
the late hours of the night drunk at Musgraves’ house and
then passed out in his car out front. Smith testified that he had
never seen the gun before, and McCray testified that it would
have been difficult for Smith to stash the gun under the seat
from where Smith had passed out. Musgraves therefore had
reason to frame Smith and an opportunity to do so. We con‐
tinue to view this evidence as insufficient to prove Musgraves
guilty beyond a reasonable doubt, but that question is close
enough that the district court did not clearly err when it found
by a preponderance of the evidence that Musgraves planted a
gun and cocaine in Smith’s car.
B. Career Offender Guideline
Next, Musgraves challenges the finding that he qualified
as a career offender under the Sentencing Guidelines. For the
career offender enhancement to apply, Musgraves must have
two prior convictions that qualify as predicates and one cur‐
rent offense of conviction that qualifies as a crime of violence
or a controlled substance offense. U.S.S.G. § 4B1.1(a). We af‐
firmed in Musgraves’ first appeal that he has two qualifying
prior convictions. Musgraves I, 831 F.3d at 468–69. The ques‐
tion, then, is whether his current conviction under 21 U.S.C.
§ 856 for using his house for drug‐related purposes qualifies
as a controlled substance offense.
8 No. 16‐4160
Controlled substance offenses are crimes that prohibit
“the manufacture, import, export, distribution, or dispensing
of a controlled substance,” but not just personal use of a con‐
trolled substance. U.S.S.G. § 4B1.2(b). Musgraves argues that
we should apply the so‐called “categorical approach” to de‐
cide whether a violation of § 856 qualifies as a controlled sub‐
stance offense. Under the categorical approach, we would
consider only the statutory elements—not Musgraves’ actual
conduct—to determine whether his conviction meets this def‐
inition. See Taylor v. United States, 495 U.S. 575, 602 (1990);
United States v. Sonnenberg, 628 F.3d 361, 363–64 (7th Cir. 2010)
(applying categorical approach to career offender enhance‐
ment). Musgraves points out that statutes prohibiting drug
use are not controlled substance offenses under the guideline
definition. Since § 856 prohibits maintaining a place “for the
purpose of manufacturing, distributing, or using any con‐
trolled substance.” 21 U.S.C. § 856(a)(1) (emphasis added), a
violation of § 856 does not qualify, at least categorically, as a
controlled substance offense. At sentencing, the district court
did not apply the categorical approach. The court instead
found by a preponderance of the evidence that Musgraves
distributed drugs from his house, and so applied the enhance‐
ment.
This question typically arises in the context of prior con‐
victions, which must also be crimes of violence or controlled
substance offenses to qualify as predicates for the career of‐
fender enhancement. Musgraves argues that the categorical
framework controls questions about the current offense of
conviction, too. This appears to be a question of first impres‐
sion in this circuit, though we have taken Musgraves’ ap‐
proach in passing, without comment. See United States v. Pat‐
No. 16‐4160 9
terson, 576 F.3d 431, 439 (7th Cir. 2009) (using categorical ap‐
proach without discussing its applicability to classify instant
offense of conviction under the Guidelines). 1
We need not decide this question. Even if the district court
improperly considered Musgraves’ actual conduct when ap‐
plying the guideline enhancement, the error would have been
harmless. The record shows that any such error “did not affect
the district court’s selection of the sentence imposed.” See
United States v. Abbas, 560 F.3d 660, 667 (7th Cir. 2009), quoting
Williams v. United States, 503 U.S. 193, 203 (1992).
When a district judge states that a guideline enhancement
did not affect the sentence and provides an alternative basis
for the sentence imposed, then any error applying the en‐
hancement may well be harmless. See, e.g., United States v.
Hill, 645 F.3d 900, 912–13 (7th Cir. 2011); Abbas, 560 F.3d at 667.
In this case, the district judge made clear on the record that he
would have exercised his discretion to impose the 240‐month
sentence regardless of whether Musgraves technically quali‐
fied as a career offender under the Guidelines. That is an un‐
derstandable and reasonable approach to many guideline is‐
sues. See United States v. Marks, 864 F.3d 575, 582 (7th Cir.
2017) (encouraging sentencing judges confronting difficult
but technical questions under Guidelines to ask why judge or
1 Our colleagues in other circuits disagree on this issue. Compare United
States v. Stoker, 706 F.3d 643, 649 (5th. Cir. 2013) (applying categorical ap‐
proach to instant offenses of conviction), and United States v. Johnson, 953
F.2d 110, 113 (4th Cir. 1991) (same), with United States v. Williams, 690 F.3d
1056, 1069 (8th Cir. 2012) (allowing conduct‐specific inquiry), and United
States v. Riggans, 254 F.3d 1200, 1204 (10th Cir. 2001) (same).
10 No. 16‐4160
anyone else should care about the answers, and to exercise
discretion under § 3553(a)).
The categorical approach used to classify prior convictions
for purposes of the career criminal Guidelines often invites
this approach. The categorical approach can seem “artificial
and abstract,” for it becomes easy to lose sight of the defend‐
ant’s actual conduct and culpability and to focus instead on
hypothetical possibilities for how the offense of conviction
might have been committed. See, e.g., Sonnenberg, 628 F.3d at
367. Regardless of the proper method for applying the Guide‐
line, under 18 U.S.C. § 3553(a) the district judge was entitled
to consider Musgraves’ actual conduct. See id. at 367–68 (ex‐
plaining that sentencing judge need not apply categorical ap‐
proach in exercising judgment under § 3553(a) but could con‐
sider defendant’s actual conduct). At the resentencing in this
case, the district judge calculated the guideline range with
and without the enhancement, chose a sentence in between
the two ranges, and then stated that he “still would have sen‐
tenced this defendant to the 240 months” without the en‐
hancement. App. at 50. The court added that 240 months was
the proper sentence for Musgraves’ conduct given the circum‐
stances and in light of the § 3553(a) factors, which the judge
discussed in depth. Any guideline error would have been
harmless.
C. Substantive Reasonableness
The final question is whether Musgraves’ sentence is sub‐
stantively unreasonable. He argues that because we reversed
three of his convictions, imposing the same sentence on re‐
mand was unreasonable. Our decision to reverse some of
Musgraves’ convictions changed the advice that the Guide‐
No. 16‐4160 11
lines gave, but it did not make the same sentence presump‐
tively unreasonable. See United States v. McGuire, 835 F.3d 756,
761 (7th Cir. 2016) (Hamilton, J., concurring); Gall v. United
States, 552 U.S. 38, 51–52 (2007) (disfavoring presumptions of
unreasonableness and requiring appellate courts to review
sentences for abuse of discretion). The Guidelines are an ad‐
visory starting point for a judge, but after correctly calculating
a guideline range, the judge has discretion to select an appro‐
priate sentence for the individual defendant and the sur‐
rounding circumstances. Gall, 552 U.S. at 51–52; see also Ab‐
bas, 560 F.3d at 667.
Because we do not reach the merits of the career offender
question, we compare Musgraves’ sentence to the guideline
range both with and without that enhancement. With the ca‐
reer offender enhancement, the Guidelines recommended a
sentence of 262 to 327 months. Without the enhancement, the
Guidelines recommended range was 84 to 105 months. Mus‐
graves received a sentence of 240 months. Even if we assume
that the 240‐month sentence was an upward departure from
the proper guideline range, we “will uphold an above‐guide‐
lines sentence so long as the district court offered an adequate
statement of its reasons, consistent with 18 U.S.C. § 3553(a),
for imposing such a sentence.” United States v. Stinefast, 724
F.3d 925, 932 (7th Cir. 2013), quoting Taylor, 701 F.3d at 1174.
The district court adequately explained its sentencing de‐
cision here. The court reviewed the § 3553(a) factors at length
and explained why the guideline range (without the career
criminal enhancement) did not adequately reflect the serious‐
ness of Musgraves’ conduct. See Taylor, 701 F.3d at 1175 (up‐
holding above‐range sentence when district court explained
12 No. 16‐4160
why Guidelines did not reflect seriousness of offense). Mus‐
graves’ willingness to frame Smith and to expose him to up to
30 years in prison is egregious conduct not reflected in the
guideline calculations. The district court also considered prior
convictions that, due to their age, did not affect Musgraves’
criminal history points. The court found that the prior convic‐
tions showed a pattern of gun possession and drug dealing
that continued to the present case. That pattern, combined
with Musgraves’ lack of verifiable employment history at age
44, caused the court to conclude that Musgraves was likely to
offend again. Finally, the court found that a higher sentence
was warranted because Musgraves had sold drugs in front of
his girlfriend’s children and next to a school. From this, the
court concluded that 240 months was the appropriate sen‐
tence. The decision was not an abuse of discretion, and the
sentence is not unreasonable.
The judgment of the district court is
AFFIRMED.