In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-1947 & 10-3914
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ICHAEL R EDMOND and C HARLES A VERY, JR.,
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Indiana, Evansville Division.
Nos. 08 cr 29-6 & 08 cr 29-12—Richard L. Young, Chief Judge.
A RGUED D ECEMBER 6, 2011—D ECIDED JANUARY 12, 2012
Before P OSNER, F LAUM, and SYKES, Circuit Judges.
F LAUM , Circuit Judge. This is the consolidated appeal
of Charles Avery, Jr. and Michael Redmond. Avery pled
guilty to crack cocaine distribution in violation of 21
U.S.C. § 841(a)(1); he appeals the district court’s denial of
his request to withdraw his guilty plea, the calculation
of the crack cocaine quantity attributed to him, as well
as his sentence. Redmond pled guilty to crack cocaine
distribution conspiracy in violation of 21 U.S.C. § 846
2 Nos. 10-1947 & 10-3914
and appeals only his sentence. For the following reasons
we affirm as to Avery, and issue a limited remand as
to Redmond for the limited purpose of allowing the
district court to reconsider his sentence in light of
United States v. Corner, 598 F.3d 411 (7th Cir. 2010).
I. Background
In 2007, a joint federal, state, and local investigation
uncovered a conspiracy to engage in transporting large
quantities of crack cocaine from Chicago to Evansville,
Indiana for distribution. Members of the conspiracy also
trafficked firearms obtained in Indiana to Chicago.
From February through August 2008, law enforcement
officers conducted controlled purchases and seizures of
crack cocaine from members of the drug trafficking
network, including Avery. The investigation culminated
in a court-authorized wire surveillance of several
cellular telephones used by members of the conspiracy.
Redmond was overheard arranging multiple crack
cocaine transactions. During the course of the investiga-
tion, Avery was identified as a crack cocaine distributor
with ties to members of the conspiracy.
A federal grand jury returned an indictment charging
Redmond, Avery, and seventeen co-defendants in thirty-
five counts, including various crack cocaine and firearms
trafficking related offenses.
Nos. 10-1947 & 10-3914 3
A. Avery
On October 16, 2008, Avery was charged with three
counts in a multi-defendant indictment. Count one al-
leged conspiracy to possess with intent to distribute, and
counts five and seven alleged distribution of a substance
containing a detectable amount of cocaine base on Feb-
ruary 20, 2008 and March 3, 2008 respectively. Avery
was scheduled for trial on Monday July 12, 2010, but on
the morning of the trial, he informed the court that
he wished to plead guilty to counts five and seven of
the indictment.1 That same day the government filed a
motion to dismiss the conspiracy charge. The parties
had previously entered into a trial stipulation that the
February 20, 2008 buy involved .46 grams of cocaine base
substance, and that the March 3, 2008 buy involved
.38 grams of cocaine base substance. The court then held
a change of plea hearing.
At the hearing, Sergeant Matt Schnell of the Vander-
burgh County Sheriff’s Department testified in support
of the distribution charges. First, he testified to his knowl-
edge of the two controlled purchases, the first on Feb-
ruary 20, 2008, and the second on March 3, 2008. Next, he
testified that on March 5, 2008, officers stopped Avery in
a car and seized $880. Of the $880 seized from the car,
$130 were police funds from controlled buys. The officers
also seized a set of digital scales covered in cocaine
1
Avery informed the government of his desire to enter his
plea late on Friday, but without any paperwork, the govern-
ment continued its preparation.
4 Nos. 10-1947 & 10-3914
residue. Finally, Sgt. Schnell testified to various controlled
buys and seizures of crack cocaine from co-defendants
between March and August 2008 over objection. During
the hearing, the government stated that it did not
intend “to hold [Avery] responsible for any conspiracy
weights.” Avery pled guilty, without a plea agreement,
to counts five and seven.
On November 30, 2008, the case reconvened for sen-
tencing and Avery requested to withdraw his guilty plea
based on findings of the presentence investigation
report (“PSR”). He argued first that, contrary to the
PSR’s finding otherwise, he was entitled to a sentence
reduction for acceptance of responsibility. Next, he ob-
jected to the amount of crack cocaine attributed to him.
He also objected to his classification as a career offender.
The PSR found Avery responsible for 6 grams of crack
cocaine, raising his offense level from 14 (less than 1 gram
of crack cocaine) to 18 (6 grams of crack cocaine) pursuant
to the 2010 sentencing guidelines. Avery objected based
on the trial stipulation that less than one gram of
cocaine was involved in the two buys. The government
countered that $750 of the $880 found in Avery’s car
could be attributed to relevant conduct which amounted
to approximately 6 grams of cocaine base. Additionally,
the government argued that the difference in the
cocaine amounts would not matter because the PSR
classified Avery as a career offender which placed him at
Nos. 10-1947 & 10-3914 5
a category VI.2 Given the dispute regarding the cocaine
quantity, the court did not “feel comfortable” proceeding
with the sentencing at the November hearing and contin-
ued the sentencing hearing to December 13, 2008.
When the sentencing hearing resumed, the court
heard testimony from Evansville police detective Mike
Gray who was involved in the investigation concerning
the drug purchases from Avery. Gray testified about
information obtained from an informant, Giles, and the
two buys Avery pled to totaling .84 grams. Apparently,
Avery had reached out to Giles in mid-February 2008,
indicating that he would be taking over sales from
2
Avery is classified as a career offender. Pursuant to Guide-
lines § 4B1.1(b), if the offense level of a career offender from
the table in that subsection is greater than the offense level
otherwise applicable, the higher offense level from the table
will apply. A career offender’s criminal history in every case
under the subsection is category VI.
In this case, the offense level otherwise applicable, depending
on the cocaine quantity, would have been level 14 (less than
1gram), 18 (6 grams), or 30 (51.1 grams). However, the maxi-
mum term of imprisonment for violations of 21 U.S.C.
§ 841(b)(1)(C) (counts 5 and 7) is 20 years per count. The dis-
trict court informed Avery that because of his prior felony
narcotics conviction, the maximum statutory penalty would
increase from 20 years to 30 years. Under the Guidelines, a
maximum sentence of 30 years results in an offense level 34.
Because level 34 is higher than any otherwise applicable
level (14, 18, or 20, respectively), regardless of the amount of
cocaine attributed to Avery, the higher level applies.
6 Nos. 10-1947 & 10-3914
Giles’ previous supplier, Lawrence Brandon. Brandon
had recently been arrested. According to Gray, the infor-
mant regularly purchased crack cocaine from Avery
during an approximately two-week period leading up
to the first controlled buy. The informant would meet
Avery on multiple occasions each day (sometimes up to
five or six times daily) and purchase anywhere from
one gram to 3.5 grams. At the hearing, the officer con-
servatively estimated that prior to the start of the con-
trolled transactions on February 20, the informant
would meet with Avery twice per day, to purchase one
gram each time, to equal approximately 20 grams (1 gram
per buy x 10 days x 2 meetings).3 Gray also testified to
a controlled buy that took place on February 28, 2008
where Avery sold Giles 3.2 grams of a substance that
was fake cocaine. Finally, Gray explained to the court
that on March 5, 2008, two days after the last controlled
buy, Avery was pulled over in his car by police. Officers
found $880, a scale, and a paper with his phone number
written several times. Of the $880 found, $130 was police
buy money. Gray believed that the remaining $750
were proceeds from other drug sales, and conservatively
associated 7.5 grams of crack cocaine with the remaining
cash. Adding these figures together totals 31.54 grams
of crack cocaine. The district court, however, accepted
3
We note that this estimate differs from the amount put forth
in the government’s sentencing memorandum. Using dif-
ferent figures, the sentencing memorandum estimates that
the informant bought about 40 grams from Avery prior to the
controlled buy (4 buys daily, 2 grams per buy, over 5 days).
Nos. 10-1947 & 10-3914 7
the figures presented in the government’s sentencing
memorandum (estimating that Giles purchased 40 grams
of crack cocaine from Avery prior to the controlled buys),
and attributed 51.5 grams of cocaine base to Avery. This
resulted in an offense level 30, but considering Avery’s
status as career offender, the offense level increased to 34.
Avery also objected to the PSR’s conclusion that he is
a career offender. Specifically, Avery argued that his
three armed-robbery convictions, which occurred on
March 10, 11, and 12, 1989, when Avery was 18, should
not be considered separate convictions because they
were charged under one case number, involved the
same victims, and the sentences imposed ran concur-
rently. As the government pointed out, there were in
fact three case numbers and he received separate sen-
tences. The court overruled Avery’s objection, finding
that the offenses should be counted separately pursuant
to the Guidelines.
Ultimately, Avery’s offense level was determined to be
34, criminal history VI, with an advisory sentencing
range of 262 to 327 months. Avery asked the district
court to sentence below the Guidelines range, but did not
seek a variance based upon the disparity between crack
and powder cocaine. He was sentenced to 262 months
for counts 5 and 7 to be served concurrently.
B. Redmond
Redmond pled guilty without a plea agreement to
count one of the indictment, conspiracy to possess with
8 Nos. 10-1947 & 10-3914
intent to distribute in excess of 50 grams of cocaine
base. The district court determined that for Guidelines
purposes, Redmond was accountable for approximately
3 kilograms of crack cocaine, resulting in a Guidelines
offense level 36. That Redmond was a career of-
fender bumped his offense level up to 37. Redmond
received a 3-level reduction for acceptance of responsi-
bility, decreasing his offense level to 34. Prior to the plea
being finalized, Redmond’s attorney indicated that he
would argue against the career offender calculation under
18 U.S.C. § 3553(a). Redmond was classified as a career
offender under § 4B1.1, with a criminal history category
of VI. The resulting advisory Guidelines sentencing
range was determined to be 262 to 327.
After agreeing that Redmond was a career offender,
defense counsel asked the court to deviate downward
pursuant to § 3553(a). Counsel argued that Redmond’s
criminal history was overstated because (1) his most
serious conviction, for robbery, was when he punched
a man and took $40; (2) that his controlled substance
violations were use-related, not sales-related; and (3) that
his longest period of confinement prior to the instant
offense was 16 months. Comparing the sentences of
Redmond’s co-defendants, counsel noted that many
had received lesser sentences of 87 or 144 months. In
light of Redmond’s criminal history, he requested a
sentence of 15 or 16 years.
Ultimately, the court agreed that Redmond’s career
criminal status “may overstate the seriousness of his
arrest history” and indicated that it would “deviate
Nos. 10-1947 & 10-3914 9
down from the guidelines.” Stating that “the defendant,
Mr. Redmond, is technically under the guidelines a
career offender”, the court imposed a sentence of
240 months. When Redmond expressed his surprise and
dismay at this sentence, the court responded that “[t]he
court has deviated from the Guidelines. The Guidelines
were 262 months . . . so the court has already come down
on your sentence.” When Redmond persisted, the court
stated, “Well, I understand all that, and I’ve explained
my reasons for the sentence. I don’t think we need to go
back over it. But the guidelines categorized you as a
career offender . . . . That’s pretty serious. Its hard to
deal with that.”
II. Discussion
Avery presents three issues on appeal, while
Redmond presents just one. Avery first argues that the
district court erred when denying his request to with-
draw his guilty plea. Next, he disputes calculation of
the amount of drugs reasonably foreseeable to him.
Finally, both Avery and Redmond contend that the
district court failed to understand its discretion to
depart downward from the Sentencing Guidelines, and
ask that we remand for resentencing.
A. Avery’s Request to Withdraw His Guilty Plea
The decision to deny Avery’s motion to withdraw his
guilty plea rests within the discretion of the district
court, and is reviewed only for abuse of discretion. United
10 Nos. 10-1947 & 10-3914
States v. Cavender, 228 F.3d 792, 803 (7th Cir. 2000). After
a district court accepts a guilty plea, it may allow a de-
fendant to withdraw that plea before sentencing if
he can show a “fair and just reason for requesting the
withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). This includes
when the plea was not entered into “voluntarily, know-
ingly, and intelligently, with sufficient awareness of
the relevant circumstances and likely consequences.”
Bradshaw v. Stumpf, 545 U.S. 175, 182 (2005) (internal
quotation and citation omitted). There is no absolute
right to withdraw a guilty plea. United States v. Chavers,
515 F.3d 722, 724 (7th Cir. 2008). Because the defendant’s
statements given under oath during the plea colloquy
are presumed to be true, he bears a heavy burden of
persuasion in showing that a “fair and just reason” for
withdrawing the guilty plea exists. Id. Avery argues that
he should have been allowed to withdraw his guilty
plea because he disagreed with three findings of the
district court: (1) the crack cocaine amount attributed
to him for Sentencing Guidelines purposes; (2) his status
as a career offender under the Guidelines; and (3) his
failure to receive an adjustment to his offense level
for acceptance of responsibility. Avery, however, pled
guilty without the benefit of a plea agreement and there-
fore had no guarantees from the government regarding
any of his points of contention.
1. The crack cocaine quantity
Avery pled guilty to two counts of distribution based
on his expectation that he would be sentenced for sales
Nos. 10-1947 & 10-3914 11
totaling less than one gram of crack cocaine. This expecta-
tion was founded on the prosecutor’s trial stipulation
that he did not “intend to hold [Avery] responsible for
any conspiracy weights”, Sgt. Schnell’s testimony as to
the two buys totaling less than one gram, and the
district court’s assurance that testimony elicited as to
the conspiracy was purely for context. When Avery
learned that 6 grams of drugs were attributed to him in
the PSR, he requested to withdraw his plea. He alleges
that “all the information given to him by the govern-
ment and the district court indicated he was pleading to
an amount of drugs less than one gram.” Indeed, when
Avery pled guilty, the government acknowledged the
stipulation regarding the drugs involved in the two
transactions, but reiterated that there were no agree-
ments between the parties as to the ultimate relevant
conduct for sentencing purposes. Though he laments
that there was no “meeting of the minds” for purposes
of his plea, Avery pled guilty without the benefit of a
plea agreement. Moreover, because Avery was sen-
tenced as a career offender, the crack cocaine quantity
was irrelevant. Accordingly, he is not entitled to with-
draw his guilty plea based on the crack cocaine quantity
attributable to him.
The PSR reached 6 grams by adding the quantity of
drugs purchased in the controlled buys to a conservative
estimate of the quantity of drugs attributable to the
$750 found in Avery’s car when it was pulled over by
police. Though the PSR attributed 6 grams to Avery, the
government’s sentencing memorandum argued that
51.5 grams of cocaine base were reasonably foreseeable
12 Nos. 10-1947 & 10-3914
and attributable to Avery. The government calculated
51.5 grams by including two additional quantities: an
estimated quantity of drugs purchased by Giles prior to
the controlled transactions, and a buy in which Avery
sold Giles a sham substance.4 Testimony regarding these
two additional quantities was only heard after Avery’s
plea. The district court ultimately adopted the govern-
ment’s calculation.
It is uncontested that Avery sold less than one
gram (.84g) of crack cocaine to a police informant on
February 20 and March 3, 2008; there was a stipulation
regarding the quantities involved in those two buys.
However, there was not a relevant conduct stipulation
because there was no plea agreement. While Avery
argues that he had no understanding that anything
more than one gram would be attributed to him, the
government and the court discussed the fact that there
was no stipulation as to relevant conduct.
4
As the government argued, during the same course of conduct
and time frame, Avery also sold additional quantities to the
same informant totaling approximately 40 grams of crack
cocaine prior to the first controlled buy on February 20. On
February 28, 2008, the informant arranged another cocaine
base transaction with Avery, wherein Avery sold 3.2 grams
of fake cocaine. Then, on March 5, 2008, Avery was stopped
by police and found in possession of $880, a digital scale
covered in cocaine residue and his handwritten business
cards. Though $130 was police buy money, the government
estimated that the remaining $750 represented the previously
distributed purchase price of approximately 7.5 grams.
Nos. 10-1947 & 10-3914 13
The Court: Because there’s a stipulation as to—my
understanding, there’s a stipulation as to
the weight of the cocaine that you had?
Defendant: Yes, sir.
The Court: Okay. If there wasn’t a stipulation, you
may very well, in considering relevant
conduct, may have been held responsible
for any cocaine in the conspiracy that
may have been foreseeable to you.
Defendant: Yes, sir.
The Court: Do you understand that?
Defendant: Yes, sir.
The Court: But my understanding is there’s a stipula-
tion as to the weight, Mr. Brookman [the
prosecutor]?
Brookman: Judge, there was a trial stipulation filed as
to Count 5 and Count 7 of the weight of the
cocaine, crack cocaine that was involved
in each one of those incidents. There’s no
stipulation, no agreements at all about
relevant conduct. This is a plea without
plea agreement. However, I’ll state for
the record that I don’t believe the defen-
dant—I’m dismissing Count 1, the con-
spiracy, so I don’t intend to hold him re-
sponsible for any conspiracy weights.
The Court: Okay.
14 Nos. 10-1947 & 10-3914
Brookman: But there is no stipulation or any agree-
ment.
Avery was therefore aware that it was not only the
amount of crack cocaine that would be at issue at sen-
tencing, but also the relevant conduct drug weight at-
tributable to the defendant.
Even if Avery was under a reasonable misapprehen-
sion of what quantity would be attributable to him based
on his reliance on the government’s representations,
Avery’s status as a career offender, which raised his
offense level to 34, made the relevant conduct drug
weight irrelevant in determining his Guidelines sen-
tencing range. As a career offender, Avery’s Guidelines
status is not governed by any amount of crack cocaine
attributable to him. Avery’s offense level was increased
because he was a career offender and would remain
unchanged regardless of the amount of crack cocaine
the court found attributable to Avery. In other words,
whether the quantity of crack cocaine was determined
to be one gram, six grams, or fifty grams, the base offense
level would have been the same by virtue of his career
offender status.
Irrespective of whether the crack cocaine amount
would ultimately matter, Avery pled guilty without
the benefit of a plea agreement and was clearly alerted to
the fact that he had no guarantee or assurance as to
what his relevant conduct drug amount would be. “A
mistake about the substantive offense goes to the heart
of the guilty plea; a mistake about the possible sen-
tence—especially when the defendant has been warned
Nos. 10-1947 & 10-3914 15
that the judge will determine the sentence based on
information collected by the Probation Office and at any
sentencing hearing—does not.” United States v. Bowlin,
534 F.3d 654, 660 (7th Cir. 2008). This Circuit has consis-
tently held that “the fact that a defendant under-
estimated his sentence when entering his plea is not a
fair and just reason to permit him to withdraw that
guilty plea.” Id. (citing United States v. Gilliam, 255 F.3d
428, 433-34 (7th Cir. 2001)). Here, Avery understood the
contours of his guilty plea. Though his understanding
of the drug quantity attributable to him was incorrect,
this is not a mistake going to the substantive offense.
Moreover, the dispute regarding drug quantity is of
no moment because that quantity ultimately had no
bearing on his sentence because of his career offender
status. Accordingly, Avery’s objections to the crack
cocaine quantity do not constitute a valid reason to with-
draw his plea.
2. Career Offender Status
Next, Avery argues that his change of plea request
should have been granted because he had a reasonable
expectation of not being classified as a career offender
based on the information filed by the government
pursuant to 21 U.S.C. § 851.5 That information differed
5
The statute, 21 U.S.C. § 851(a)(1) provides that:
No person who stands convicted of an offense under this
part shall be sentenced to increased punishment by
(continued...)
16 Nos. 10-1947 & 10-3914
from the facts relied upon by the district court in deter-
mining his career status; the 851 information filed by
the government identified only one past felony drug
conviction, which would subject Avery to a sentencing
enhancement, whereas the PSR identified Avery as a
career offender based on multiple convictions for armed
robbery.6
It is clear that Avery was advised of the possible sen-
tence enhancement based solely on his prior narcotics
conviction. However, the PSR lists three armed robbery
convictions as the basis for his career criminal status.
Pursuant to the Guidelines, a defendant is a career
offender if (1) the defendant was at least eighteen years
old at the time the defendant committed the instant
offense of conviction; (2) the instant offense of conviction
is a felony that is either a crime of violence or a con-
5
(...continued)
reason of one or more prior convictions, unless before
trial, or before entry of a plea of guilty, the United States
attorney files an information with the court (and serves
a copy of such information on the person or counsel for
the person) stating in writing the previous convictions to
be relied upon.
6
While Avery objects that his three armed-robbery convictions,
which occurred on March 10, 11, and 12, 1989, should not
be considered separate convictions, we disagree. There were
in fact three case numbers assigned to these three offenses,
and Avery received separate sentences for each charge. The
district court concluded that these were three convictions,
and Avery provides no basis for overruling this finding.
Nos. 10-1947 & 10-3914 17
trolled substance offense; and (3) the defendant has at
least two prior felony convictions of either a crime of
violence or a controlled substance offense. U.S.S.G. § 4B1.1
(2010). Based on the 851s filed, Avery had only one prior
felony conviction, which is insufficient to render him
a career offender under the Guidelines. The question,
then, is whether the notice requirement of 21 U.S.C.
§ 851(a)(1) applies to a defendant who receives an in-
creased sentence under the Guidelines by virtue of his
criminal history. It does not.
The notice requirement of 21 U.S.C. § 851(a)(1), does not
apply to charges used to establish career criminal sta-
tus. Instead, the requirement that the government submit
an information under § 851 applies only when enhanced
penalties are imposed under 21 U.S.C. § 841(b). See
United States v. Galati, 230 F.3d 254, 263 (7th Cir.
2000); Damerville v. United States, 197 F.3d 287, 289
(7th Cir. 1999) (per curiam). In Damerville, this court held
that defendants subject to sentencing as career offenders
under § 4B1.1 “are not entitled to the same procedural
protections as defendants subject to the § 841(b) penalty
enhancements (for which § 851 applies).” 197 F.3d at 289;
see also United States v. Jackson, 121 F.3d 316, 319 (7th
Cir. 1997); United States v. Robinson, 14 F.3d 1200, 1206
(7th Cir. 1994). “The filing of an enhancement information
before entry of a guilty plea, while mandated by § 851 to
trigger enhancement under § 841(b), is not a prerequisite
when the government seeks career offender sentences
under the guidelines.” Damerville, 197 F.3d at 289. Thus,
the government was not required to give additional
18 Nos. 10-1947 & 10-3914
notice of other convictions that might trigger the career-
offender designation under § 4B1.1 because Avery was
sentenced under § 4B1.1. See Galati, 230 F.3d at 263. To
the extent that his sentence was enhanced pursuant to
§ 841(b), Avery received proper notice as the govern-
ment filed the required 851s prior to his plea. Moreover,
Avery and his counsel “discussed on numerous occa-
sions” the possibility that Avery would be sentenced as
a career offender and the impact such a determination
would have on his Guidelines range. Accordingly,
Avery’s objections to his career offender status do not
constitute a fair and just reason to allow him to with-
draw his plea.
3. Adjustment for Acceptance of Responsibility
Finally, Avery argues that his failure to plead guilty was
beyond his control because the government pursued a
conspiracy count against him until the day of trial. When
the government withdrew this charge, Avery pled guilty
to two counts of distribution. Avery fails to explain
how the government’s refusal to drop the conspiracy
charge prevented him from pleading guilty to the two
distribution counts. Moreover, Avery acknowledged
that he chose to plead at a late date, resulting in the
government having to fully prepare the matter for trial;
the Sentencing Guidelines lists timeliness as an appro-
priate consideration in determining a defendant’s eligi-
bility for an acceptance of responsibility reduction.
U.S.S.G. § 3E1.1, Application Note 1(h) (2010). It is well
established that the last minute decision to plead guilty
Nos. 10-1947 & 10-3914 19
is a valid basis to deny a reduction for acceptance of
responsibility. United States v. Rosalez-Cortez, 19 F.3d
1210, 1219 (7th Cir. 2010).
Although Avery suggests that he would have pled
guilty sooner had he not faced trial on count one of the
indictment, during plea negotiations Avery rejected plea
offers that gave him the option of pleading guilty to
count 5, with the dismissal of counts 1 and 7. Moreover,
during the final pretrial conference, held on June 28, 2010,
the government informed defense counsel and the
court that it would proceed to trial on counts 5 and 7 only,
and planned to dismiss count 1 as to Avery. Still, Avery
waited until July 12, 2010 to enter his plea.7 Accordingly,
he was not entitled to an adjustment for acceptance
of responsibility.
Avery pled guilty without the benefit of a plea agree-
ment and is entitled to withdraw this plea only for a
“fair and just” reason. Avery presented no legitimate
reason to withdraw his plea; his plea was entered know-
ingly and intelligently. Therefore it was not an abuse
of discretion when the district court denied Avery’s
request to withdraw his guilty plea. We affirm the deci-
sion of the district court.
7
We acknowledge that “late” Friday, July 9, Avery’s
attorney left a voice message for the government indicating
his intention to plead guilty, but without any paperwork,
the government proceeded as if trial would commence
on Monday, July 12.
20 Nos. 10-1947 & 10-3914
B. The Calculation of Drugs Reasonably Foreseeable
to Avery
Avery next argues that the district court erred when
calculating the amount of drugs reasonably foreseeable
to him. The clear error standard of review applies to
factual findings made by the district court for purposes
of determining the applicable advisory guidelines range.
United States v. McLee, 436 F.3d 751, 765 (7th Cir. 2006).
Again, we note that Avery’s offense level was determined
not by the drug weight, but by his career offender sta-
tus. Even so, we affirm the finding of the district court.
The government must prove the quantity of drugs for
sentencing purposes by a preponderance of the evidence.
United States v. Krasinski, 545 F.3d 546 (7th Cir. 2008).
The offense level is calculated by determining the
amount of drugs associated within the same course of
the defendant’s conduct, and not simply the amount
associated with the particular offenses of conviction.
United States v. White, 888 F.2d 490, 500 (7th Cir. 1989). The
rules of evidence do not apply at sentencing, and in
determining relevant conduct, a court may consider a
broad range of information, including uncharged crimes,
crimes where charges have been dismissed, and crimes
for which the defendant has been acquitted. United
States v. Valenti, 121 F.3d 327, 334 (7th Cir. 1997). Drug
quantities may be estimated based upon average sales
over a given time, or by converting money earned in
prior sales into an estimated quantity sold. United States
v. McMillen, 8 F.3d 1246, 1250-51 (7th Cir. 1993); United
States v. Townsend, 73 F.3d 747, 753 (7th Cir. 1996).
Nos. 10-1947 & 10-3914 21
Though Avery argues that the government included
drug quantities attributable to the conspiracy, the
evidence does not support this contention.
The government set forth facts to establish that 51.5
grams of cocaine base were reasonably foreseeable and
attributable to Avery. These facts were supported by
testimony presented to the court. Avery sold less than
one gram (.84g) of crack to a police informant on
February 20 and March 3, 2008. During the same course
of conduct and time frame, but prior to the controlled
transaction, Avery sold additional quantities to the same
informant totaling approximately 40 grams of crack
cocaine. 8 On February 28, 2008, the informant arranged
another cocaine base transaction with Avery, wherein
Avery sold 3.2 grams of cocaine base. Then, on March 5,
2008, Avery was stopped by police and found in posses-
sion of $880 (cash proceeds from previous crack sales),
a digital scale covered in cocaine residue, and his hand-
written business cards. Of the $880 found, $130 was
marked buy money supplied by the government. The
government estimated that the remaining $750 repre-
8
We note that 40 grams is merely an estimate. Testimony from
Detective Gray established that approximately one to two
weeks prior to the first controlled buy on February 20, Giles
made daily purchases from Avery. Giles would purchase
anywhere from one to 3.5 grams of crack cocaine at a time,
sometimes up to five or six times per day. Although the
district court could have used a more conservative number as
an estimate, an estimate attributing 40 grams of crack cocaine
to Avery during this period is supported by the record.
22 Nos. 10-1947 & 10-3914
sented the previously distributed purchase price of approx-
imately 7.5 grams. Adding these totals together equals
51.54 grams; the quantities of crack cocaine distributed
by the members of the conspiracy were not included in
this calculation. The court heard credible testimony
regarding all of these transactions. Based on this
evidence, the district court reasonably concluded that
the readily provable quantity of crack cocaine directly
attributable to Avery for purposes of determining his
advisory Guidelines range was 51.5 grams.
C. The Court’s Understanding of Its Discretion
Redmond argues that the court might not have under-
stood its discretion to sentence outside the Guideline
range, pursuant to United States v. Corner, 598 F.3d 411,
415 (7th Cir. 2010). Avery adopts and incorporates
Redmond’s argument as to his own sentence. Because
Redmond and Avery failed to present these issues at the
time of sentencing, the review is for plain error. United
States v. Morgan, 384 F.3d 439, 442 (7th Cir. 2004).
In United States v. Kimbrough, 552 U.S. 85 (2007), the
Supreme Court restated its holding in United States v.
Booker, 543 U.S. 220 (2005), that “under Booker, the
cocaine Guidelines, like all other Guidelines, are advisory
only” and further explained that “it would not be an
abuse of discretion for a district court to conclude when
sentencing a particular defendant that the crack/cocaine
disparity yields a sentence greater than necessary to
achieve § 3553(a)’s purpose, even in a mine-run case.” 552
U.S. at 110. Later, in United States v. Spears, it again clarified
Nos. 10-1947 & 10-3914 23
“that was indeed the point of Kimbrough: a recognition
of district courts’ authority to vary from the crack-
cocaine Guidelines based on a policy of disagreement
with them, and not simply based on an individualized
determination that they yield an excessive sentence in a
particular case.” 555 U.S. 261, 264 (2009). The Court
explained, “we now clarify that the district courts are
entitled to reject and vary categorically from the crack-
cocaine Guidelines based on a policy disagreement with
those Guidelines.” Id. at 265-66. The Seventh Circuit
has likewise recognized that a district court can vary
categorically from every guideline, including the career
offender guidelines. United States v. Corner, 598 F.3d 411
(7th Cir. 2010) (en banc).
Redmond’s sentence was affected by his classification
as a career offender under § 4B1.1. As a career offender,
he was assigned an offense level of 34, whereas had
he been sentenced to the “offense level otherwise ap-
plicable” his offense level would have been a 33.
Though Redmond considers the district court’s repeated
references to his career offender status as signaling
“an attempt by the court to justify a sentence it felt grudg-
ingly obliged to impose, against its better judgment,” he
acknowledges that the court’s downward departure
(from 262 at the low end of the guidelines to a sentence
of 240) might have been “all the break it was inclined
to give” Redmond. Even so, Redmond argues that we
cannot assume that the district court would have
stopped at 20 years, had it known that § 4B1.1 was non-
binding. Corner, 598 F.3d at 426. As such, Redmond urges
us to remanded his case back to the district court for
clarification.
24 Nos. 10-1947 & 10-3914
Though the court certainly could have varied its
sentence further, Redmond presents little to show that the
district court was constrained in its decision making
process. Moreover, that the court sentenced Redmond
below the advisory career offender range, suggests that
it was not constrained by the guideline calculation.
Even so, the district court did suggest that Redmond’s
status as a career offender was a significant factor in
its sentence, and it is not clear that the court recognized
its complete discretion to deviate from the Guidelines
career-offender calculation. Corner was decided after
Redmond was sentenced, so we return this case to the
district court on a limited remand to allow the court
to indicate whether it might be inclined to impose a
different sentence if it knew the full extent of its discre-
tion. See United States v. Womack, 610 F.3d 427, 434 (7th
Cir. 2010).
Turning to Avery, he likewise argues that the dis-
trict court might not have understood its discretion to
sentence outside the career offender guidelines. Avery,
however, was sentenced almost nine months after our
decision in Corner, and we presume that a district court
understands its authority to depart downward. United
States v. Baretz, 411 F.3d 867, 877 (7th Cir. 2005) (citing
United States v. Larkins, 83 F.3d 162, 168 (7th Cir. 1996)).
The defendant has the burden to demonstrate otherwise.
Id. Avery’s only support to show the district court’s
misunderstanding of its authority is its statement that
“I sentenced you at the low end of the guidelines, but
your prior criminal history here is what’s generating
in part such a high guideline.” While this suggests
Nos. 10-1947 & 10-3914 25
that the district court considered the Guidelines when
formulating Avery’s sentence, the court also informed
Avery that “I consult with the advisory guidelines, and
the guidelines are, indeed, advisory; I may follow them;
I may not.” Avery offers no basis, aside from the fact
that the district court sentenced him within the Guide-
lines, to suggest that the court was unaware of its discre-
tion to depart from the proscribed sentencing range.
Accordingly, we affirm the district court.
III. Conclusion
For the foregoing reasons, we A FFIRM the district court’s
decision refusing Avery’s request to withdraw his guilty
plea, its calculation of the crack cocaine quantity attribut-
able to Avery, and his sentence. As to Redmond, we
order a L IMITED R EMAND consistent with this opinion.
1-12-12