In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3441
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C ALVIN B ROWN,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 4:09-cr-40072-GPM-1—G. Patrick Murphy, Judge.
A RGUED S EPTEMBER 7, 2011—D ECIDED O CTOBER 18, 2011
Before P OSNER, F LAUM, and H AMILTON, Circuit Judges.
F LAUM, Circuit Judge. Calvin Brown pled guilty to
three drug-related offenses in May 2010 and was sen-
tenced in October 2010. He challenges the district court’s
decision not to apply the Fair Sentencing Act, Pub. L. 111-
220, 124 Stat. 2372 (2010), at his sentencing. He also
argues that the district court erroneously believed that
he was subject to a $300 mandatory minimum fine for
2 No. 10-3441
each count of conviction, though his convictions have
no such mandatory minimum fines.
In light of our holding in United States v. Fisher, 635
F.3d 336 (7th Cir. 2011), we affirm the district court’s
decision not to apply the Fair Sentencing Act at Brown’s
sentencing. We agree, however, that the district court
was not required to impose upon Brown any mandatory
minimum fines. To the extent that the district court
understood the fines he imposed as obligatory, the
mistake of law constitutes clear error. See United States
v. McMath, 559 F.3d 657, 663 n.2 (7th Cir. 2009) (“[A]
mistake of law generally satisfies clear error . . . .”); cf.
United States v. Jaderany, 221 F.3d 989, 994 (7th Cir. 2000)
(“We may reverse a district court’s decision to refuse a
[downward] departure when it makes a mistake of law.”).
We, therefore, vacate Brown’s fines and remand for
reassessment.
I. Background
Brown was indicted on three drug-related charges on
October 6, 2009. Count I charged that he possessed with
intent to distribute five grams or more of crack cocaine
on May 3, 2007, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B); Count II charged that he distributed heroin
on June 2, 2009, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C); and Count III charged that he distributed crack
on June 8, 2009, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C). He pled guilty to all three counts on May 13,
2010.
No. 10-3441 3
Brown was sentenced on October 4, 2010, two months
after Congress enacted the Fair Sentencing Act (“FSA”)
and two months before the amended guidelines went
into effect. Ignoring the FSA, the district court found that
Brown had an offense level of 35 and a criminal history
category of VI. Accordingly, it found that his guideline
range was 292-365 months of imprisonment, ten years
of supervised release, a fine range of $20,000 to $8,000,000,
and a $300 special assessment. It sentenced him to 292
months of imprisonment on each count, to run concur-
rently, followed by eight years of supervised release on
Count I and six years of supervised release on Counts II
and III, also to run concurrently. It then imposed $1,200
in fines, consisting of a $300 mandatory special assess-
ment and a $300 fine on each of Brown’s three counts
of conviction. It explained that it was imposing “a man-
datory minimum fine [of] $300 on each count and
similarly $300 on a special assessment. So you end up
with a $1,200 fine.” Brown timely appeals.
II. Discussion
Brown raises two arguments on appeal. First, he con-
tends that the district court should have applied the FSA
in imposing its sentence. Had it done so, he claims,
his advisory Guidelines range would have dropped from
292-365 months of imprisonment to 210-262 months.
He also argues that the district court mistakenly be-
lieved that each count carried a $300 mandatory mini-
mum fine.
4 No. 10-3441
A. The Fair Sentencing Act is Not Retroactive.
Although Brown’s offenses occurred before Congress
enacted the FSA, he claims that the district court should
have applied the FSA at sentencing because his sen-
tencing occurred after it was enacted. Since he never
asked the district court to sentence him under the FSA,
we review his argument for plain error. United States v.
Garrett, 528 F.3d 525, 527 (7th Cir. 2008) (explaining
that plain error review applies when a defendant negli-
gently fails to raise a sentencing argument before the
district court at the time of sentencing, but attempts to
raise it before the Court of Appeals).
Brown’s argument is foreclosed by our opinion in
United States v. Fisher, 635 F.3d 336, 340 (7th Cir. 2011), in
which we held that the FSA does not apply retroactively
to defendants who committed their offenses before the
FSA was enacted on August 3, 2010, despite the fact
that their sentencing occurred after the FSA’s enactment.
Id. at 338, 340; see also United States v. Holcomb, Nos. 11-
1558, 11-1559, 11-1586, 11-1758, 2011 WL 3795170, at *1
(7th Cir. Aug. 24, 2011) (en banc) (declining to reverse
Fisher).
We deny Brown’s alternative request for a limited
remand to permit the district court to determine whether
it would like to resentence him voluntarily under the
FSA or with sensitivity to the FSA’s reduced distinction
between sentences involving crack and those involving
powder cocaine. The district court correctly declined
to apply the FSA at Brown’s sentencing. We find no
compelling grounds to remand on this issue. Cf. United
No. 10-3441 5
States v. Vance, No. 10-3245, 2011 WL 4436004, at *2-3 (7th
Cir. Sept. 26, 2011) (electing not to revisit this Court’s
holdings in Fisher and Holcomb, as well as finding no
compelling reason to reverse a reasonable sentence im-
posed in accordance with those holdings).
B. Considering the $300 Fines Mandatory Minimums
Was Error.
When explaining its decision to impose a $300 fine
for each of Brown’s three counts of conviction, the district
court explained that there was “a mandatory minimum
fine [of] $300 on each count.” It also explained that the
payment was owed immediately. The parties agree that
Brown’s convictions carried no mandatory minimum
fine amounts. Accordingly, Brown asks for a remand
to correct the mistake.
Because Brown neither objected to nor made an argu-
ment about the fines the district court imposed at the
time, we review their imposition for plain error. See, e.g.,
United States v. Riley, 493 F.3d 803, 810 (7th Cir. 2007)
(applying plain error review to arguments forfeited at
sentencing regarding the imposition of fines).1 Under
1
Brown claims that we should review the district court’s
decision de novo because he had no chance to object to the
ruling until it was already entered. He cites Federal Rule of
Criminal Procedure 51(a), which provides that “[e]xceptions
to rulings or orders of the court are unnecessary.” F ED . R. C RIM .
P. 51(a). An “exception” occurs when a litigant complains
(continued...)
6 No. 10-3441
plain error review, we must determine “(1) that error
occurred; (2) that the error was plain; and (3) that the
error affected the defendant’s substantial rights.” United
States v. Leupke, 495 F.3d 443, 448 (7th Cir. 2007) (internal
quotation marks and citations omitted). If these criteria
are met, we may reverse.
An error is “plain” if it is “clear” or “obvious.” United
States v. Olano, 507 U.S. 725, 734 (1993). Further, de-
fendants bear the burden of demonstrating that their
substantial rights were affected by the error, which gener-
ally requires showing prejudice: the error “must have
affected the outcome of the district court proceedings.”
Olano, 507 U.S. at 734; see also Leupke, 495 F.3d at 450-51.
Finally, the Supreme Court has explained that when a
1
(...continued)
about a judicial decision after it has been made. See United
States v. Bartlett, 567 F.3d 901, 910 (7th Cir. 2009). He further
references Rule 51(b), which provides that “[i]f a party does
not have an opportunity to object to a ruling or order, the
absence of an objection does not later prejudice that party.”
F ED . R. C RIM . P. 51(b). We disagree. Rule 51(a) applies to
issues that were raised before a judicial ruling. See Bartlett, 567
F.3d at 910. We have further explained that Rule 51(b)
requires litigants seeking to preserve issues not raised before a
judicial decision to raise those issues “when the court ruling or
order is made or sought.” F ED . R. C RIM . P. 51(b); see also
Bartlett, 567 F.3d at 910 (“When the judge surprises counsel, it is
far better to air and resolve the matter in the district court than
to bypass available opportunities for correction and save the
issue for appeal.”).
No. 10-3441 7
plain error affects the defendant’s substantial rights, we
should invoke our discretion to remand a case “in those
circumstances in which a miscarriage of justice would
otherwise result,” and it defines “miscarriage of justice”
as an error that “seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings.” Olano,
507 U.S. at 736 (internal quotation marks and citations
omitted); see also United States v. Newman, 965 F.2d 206,
213 (7th Cir. 1992). We find plain error in this case.
Brown was not subject to a mandatory minimum fine,
and the district court erred in stating otherwise.
Brown pled guilty to three counts of violating 21
U.S.C. § 841(a)(1). He was sentenced under 21 U.S.C.
§ 841(b)(1)(B) for Count I and § 841(b)(1)(C) for Counts II
and III. Neither of those statutes nor the general fine
statute, 18 U.S.C. §§ 3571-3574, impose a mandatory
minimum fine.
The Sentencing Guidelines provide that “[t]he court
shall impose a fine in all cases, except where the
defendant establishes that he is unable to pay and is not
likely to become able to pay any fine,” U.S.S.G. § 5E1.2(a),
and further states that, under those circumstances, “the
court may impose a lesser fine or waive the fine,” U.S.S.G.
§ 5E1.2(e). Accordingly, we have explained that “criminal
fines are discretionary, and sentencing courts must con-
sider ability to pay when determining whether to
impose any fine at all.” United States v. Ellis, 522 F.3d
737, 739 (7th Cir. 2008).
Faced with an advisory guideline fine range of $20,000
to $8,000,000, the presentencing report concluded that
8 No. 10-3441
Brown did not “have the ability to pay a fine within the
guideline range nor does he have the ability to pay a
fine immediately.” Further, the district court’s State-
ment of Reasons states the following: “[f]ine waived or
below the guideline range because of inability to pay,” and
also that “[t]he court has departed downward on the
fine due to the defendant’s inability to pay.” We may
consider these comments to interpret the district court’s
oral pronouncements at sentencing. See United States v.
Pape, 601 F.3d 743, 747 (7th Cir. 2010).
On a correct understanding of the law, Brown’s
inability to pay permitted the district court to not impose
a fine at all. Yet, the Statement of Reasons indicates that
the district court erroneously believed that the $300
fines were mandatory minimums. This mistake of law
implicated Brown’s substantial rights because it dictated
the outcome of his sentencing—the district court viewed
itself as obligated to impose the fines. See McMath, 559
F.3d at 663 n.2 (noting that mistakes of law typically
satisfy plain error and merit reversal); United States v.
Flores-Sandoval, 94 F.3d 346, 351 (7th Cir. 1996) (explaining
that, in the context of imposing fines, an error
prejudices the defendant’s substantial rights if it likely
would have affected the amount of the fine). We may
remand to correct this mistake. Cf. United States v. Jumah,
599 F.3d 799, 813 (7th Cir. 2010) (finding that plain
error exists and remand is proper when a sentence is
based on a miscalculation of the guidelines range);
Garrett, 528 F.3d at 529-30 (same); United States v.
Ortiz, 613 F.3d 550, 554 (5th Cir. 2010) (remanding for
resentencing when a district court imposed a sentence
No. 10-3441 9
that it believed was a mandatory minimum, but which
exceeded the actual mandatory minimum for the offense).
III. Conclusion
For the foregoing reasons, we A FFIRM the judgment of
the district court not to apply the Fair Sentencing Act
during Brown’s sentencing, but we V ACATE its imposi-
tion of his fines and R EMAND for reassessment con-
sistent with this opinion.
10-18-11