In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-3304
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDWARD GIBBS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Evansville Division.
No. 3:18-cr-00047-RLY-MPB-2 — Richard L. Young, Judge.
____________________
ARGUED OCTOBER 1, 2021 — DECIDED FEBRUARY 22, 2022
____________________
Before EASTERBROOK, MANION, and WOOD, Circuit Judges.
WOOD, Circuit Judge. This appeal concerns the sentence
Edward Gibbs must serve for participating in a conspiracy to
obtain and distribute methamphetamine. Although
sentencing proceedings are more informal than trials, that
does not mean that they are a free-for-all. Federal Rule of
Criminal Procedure 32 provides a detailed map for sentencing
and judgment. Its requirements, we conclude, were not
followed here, and so Gibbs wound up being held responsible
2 No. 20-3304
for far more methamphetamine than the record supported.
We reverse and remand for resentencing.
I
In March 2018, Gibbs was pulled over for a traffic viola-
tion. When the police searched his truck, they discovered
three bags of methamphetamine weighing about 839 grams,
along with more than $10,000 in cash, numerous cell phones,
and drug paraphernalia. They immediately arrested both
Gibbs and his wife Jennifer Gibbs, who was a passenger in the
car.
While in jail, Gibbs contacted a drug supplier named
Hernany Quintana and coordinated two potential drug trans-
actions to raise money for bond. In the first, an acquaintance
named Robert Waters was supposed to obtain two pounds
(.907 kilograms) of methamphetamine from Quintana and sell
it on Gibbs’s behalf. In the second, Gibbs’s son and a man by
the name of Donald Hemmings were supposed to obtain and
sell another .907 kilos from Quintana, again on Gibbs’s in-
structions. Neither of the schemes came to fruition.
Gibbs was initially charged in state court for his meth deal-
ings, but in August 2018, Gibbs, Quintana, Waters, Hem-
mings, Gibbs’s wife, and Gibbs’s son were all indicted on one
count of conspiring to possess methamphetamine with the in-
tent to distribute it, in violation of 21 U.S.C §§ 841(a)(1),
(b)(1)(A), 846. The indictment alleged only that the conspiracy
involved “500 grams or more of a substance” containing
methamphetamine.
After two years in pretrial detention, Gibbs pleaded guilty
to the conspiracy charge. At the guilty plea hearing, the Assis-
tant U.S. Attorney (AUSA) provided a factual basis for the
No. 20-3304 3
indictment. In the course of doing so, the AUSA asserted for
the first time that the conspirators had distributed more than
4.5 kilograms of methamphetamine during the charged pe-
riod. Gibbs refused to agree to that portion of the AUSA’s ac-
count; in his plea, he admitted only his role with respect to the
500-gram quantity alleged in the indictment.
Following the court’s acceptance of the guilty plea, the
U.S. Probation office prepared a Presentence Investigation
Report (PSR). FED. R. CRIM. P. 32(c)(1)(A). The PSR described
Gibbs’s offense conduct, listing the .839 kilograms of meth
seized from his car, the .907-kilogram deal Gibbs tried to
arrange with Waters, and the .907-kilogram deal that Gibbs
tried to arrange for Hemmings and his son. The PSR also
stated, without any explanation, that “at least between
October 1, 2017, and August 28, 2018, Quintana distributed
over 4.5 kilograms of methamphetamine ice” to members of
the charged conspiracy. To state the obvious, those numbers
did not add up: .907 kilograms plus .907 kilograms plus .839
kilograms equals 2.653 kilograms, not 4.5 kilograms.
Based on the assumption that the conspiracy involved 4.5
kilograms or more of methamphetamine, and that the drug
was in the dangerously pure “ice” form, the PSR calculated a
base offense level of 38. U.S.S.G. § 2D1.1(c)(1). After enhance-
ments and reductions not challenged here, the court ulti-
mately arrived at a total offense level of 37. Given Gibbs’s
criminal history category of II, this yielded an advisory guide-
lines range of 235–293 months. If Gibbs had been sentenced
for a conspiracy involving 2.5 kilograms of ice, his unadjusted
offense level would have been 36, U.S.S.G. § 2D1.1(c)(2), his
final level 35, and his guidelines range 188–235 months.
4 No. 20-3304
Gibbs objected to the PSR’s use of the alleged 4.5 kilos in
the computation of his base offense level, but the AUSA did
not respond with any evidence. In the final PSR, the probation
officer provided only a one-sentence response to Gibbs’s
objection: “Information pertaining to the facts of the case was
provided by the government; therefore, there is no response
required by the probation officer.” The only problem was that
there was no such information in the PSR or elsewhere in the
record.
The first time the AUSA attempted to provide a basis for
the assertion that Gibbs had conspired to distribute 4.5 kilo-
grams of meth “ice” (also called crystal meth) was at Gibbs’s
sentencing hearing. There the AUSA blindsided the defense
with new and unsubstantiated allegations. The AUSA told the
district court that Gibbs had admitted to receiving more than
36 pounds (roughly 16 kilos) of meth from Quintana during
an unrecorded proffer session in July 2019. This was the first
time in the two-and-a-half-year history of the case that the
government asserted that Gibbs had confessed. The AUSA
then added that Quintana had also provided a proffer state-
ment, in which “he” stated that over the course of the conspir-
acy “he made at least 15 trips, receiving approximately 3
pounds of crystal methamphetamine for each trip.” Once
again, this was brand new information. It is unclear from the
transcript whether the “he” to which the AUSA referred was
Gibbs or Quintana. Finally, the government alleged that dur-
ing the proffer sessions both Gibbs and Quintana had admit-
ted that Quintana gave Gibbs an additional 20 pounds of
meth that “went bad” in Gibbs’s back yard.
Taken by surprise, Gibbs’s counsel objected. Counsel ex-
plained that he had been present at the July 2019 proffer
No. 20-3304 5
session and that, while the session was not transcribed, he did
not remember Gibbs making the alleged confession. Pressed
by the judge, Gibbs’s counsel insisted that he could not re-
member the alleged statements and assured the court that he
“would remember [his] client admitting to those huge quan-
tities before submitting a sentencing memorandum contra-
dicting that[.]”
Unlike Gibbs’s counsel, the AUSA had not been person-
ally present at Gibbs’s proffer session. She told the court that
in preparation for the case she had spoken to the prosecutor
from whom she had inherited the case, and she had received
notes from a law enforcement officer who was present at
Gibbs’s unrecorded proffer. Neither of those was called to tes-
tify, and the AUSA did not provide the notes she had re-
viewed to the defense or the court.
The district court overruled Gibbs’s objections to the drug
quantity. It offered three reasons for this decision. First, it
accepted the AUSA’s representations as evidence that Gibbs
received 36 pounds of crystal meth for distribution. Second, it
noted that Gibbs’s co-defendants had pleaded guilty to a
conspiracy involving 4.5 kilograms or more of meth. Third,
the judge attributed to Gibbs a statement to the effect that he
had made 15 trips to Kansas and picked up three pounds (1.4
kilograms) of crystal meth each time, when that statement
may have been made by Quintana. The court declined,
however, to take into account the 20 pounds of meth that
Gibbs allegedly had buried in his backyard.
Relying on its finding that Gibbs was involved in a con-
spiracy to distribute more than 4.5 kilograms of drugs, the
district court proceeded to sentence him. As we noted earlier,
his final offense level was 37, and he was in Criminal History
6 No. 20-3304
category II. After taking into account the considerations out-
lined in 18 U.S.C. § 3553(a)—especially the fact that Gibbs was
almost 60 years old—the court sentenced him to prison for
200 months.
II
We review a district court’s factual findings about un-
charged drug quantity for clear error. United States v. Freeman,
815 F.3d 347, 353 (7th Cir. 2016). We take a fresh look at
whether a district court followed proper procedures. United
States v. Pulley, 601 F.3d 660, 664 (7th Cir. 2010).
A
Uncharged drug quantities that “foreseeably fall[] within
the scope of jointly undertaken criminal activity” may be
considered in assessing a defendant’s relevant conduct and
sentence. United States v. Bautista, 532 F.3d 667, 672 (7th Cir.
2008). But criminal defendants have a right to be sentenced on
the basis of accurate information. The government bears the
burden of proving by a preponderance of the evidence that
uncharged drug quantities are attributable to a defendant. See
United States v. Helding, 948 F.3d 864, 870 (7th Cir. 2020);
United States v. Longstreet, 567 F.3d 911, 923–24 (7th Cir. 2009).
While district courts may consider evidence that would not
be admissible at trial, United States v. Clark, 538 F.3d 803, 812
(7th Cir. 2008), that information nonetheless must be well-
supported and reliable, United States v. Johnson, 489 F.3d 794,
797 (7th Cir. 2007). These principles are reflected and
implemented in Federal Rule of Criminal Procedure 32.
Rule 32 establishes a burden-shifting framework for the
development of the factual and legal issues relevant at
sentencing. At the outset, the prosecution has the burden to
No. 20-3304 7
prove any drug quantity associated with uncharged conduct.
United States v. Noble, 367 F.3d 681, 682 (7th Cir. 2004). In
preparation for sentencing, Rule 32 instructs the U.S.
Probation Office to prepare a PSR that calculates the
defendant’s offense level. FED. R. CRIM. P. 32(c), (d)(1)(B); but
see FED. R. CRIM. P. 32(c)(1)(A)(i), (ii) (establishing limited
exceptions not relevant here). A sentencing judge may “rely
on a presentence report if it ‘is well-supported and appears
reliable.’” United States v. Marks, 864 F.3d 575, 580 (7th Cir.
2017). If a PSR meets those criteria, the burden shifts to the
defendant to “com[e] forward with facts demonstrating that
the information in the PSR is inaccurate or unreliable.”
Helding, 948 F.3d at 870.
Rule 32 also establishes a process through which a
criminal defendant may review the PSR and object to any
inaccurate information. FED. R. CRIM. P. 32(e), (f). Generally, a
“‘bare denial’ is not enough” to shift the burden back to the
prosecution to prove that the PSR’s account is accurate. United
States v. Moreno-Padilla, 602 F.3d 802, 809 (7th Cir. 2010).
Before that shift occurs, the defendant must produce evidence
that “creates real doubt” about the allegations in the PSR. Id.
But this all assumes that the PSR has a solid basis. There
are several well-established exceptions that apply when a PSR
lacks key indicia of reliability. If a PSR “asserts ‘nothing but a
naked or unsupported charge,’” then a defendant’s denial is
enough to “cast doubts on its accuracy.” Helding, 948 F.3d at
870 (citing Marks, 864 F.3d at 580). Similarly, if the PSR “omits
crucial information,” then the defendant’s denial alone can
shift the burden of proof back to the prosecution. See id.;
Moreno-Padilla, 602 F.3d at 809. The district court may accept
an undisputed portion of a presentence report as fact. FED. R.
8 No. 20-3304
CRIM. P. 32(i)(3)(A). But if any portion of the PSR is disputed
and relevant to sentencing, the court “must … rule on the
dispute[.]” FED. R. CRIM. P. 32(i)(3)(B); see also Helding, 948
F.3d at 870 (“[W]here a district court relies on evidence that
substantially increases drug quantity, it must take care in
determining the accuracy of that evidence.”)
In this case, the PSR and the district court’s use of it did
not meet Rule 32’s requirements. As we just said, when “con-
tested facts are material to the judge’s sentencing decision,”
the rule requires the judge to make factual findings based on
evidence. United States v. Dean, 414 F.3d 725, 730 (7th Cir.
2005). To make those findings, the judge must determine
whether the facts on which the prosecution relies are true. See
id. at 727. Here, the district court did not have any evidence
backing up the AUSA’s eleventh-hour representations about
what the evidence would show, and so nothing was available
to resolve the dispute about drug quantity.
Without substantiation for the AUSA’s statements, the
government failed to meet its burden to prove the uncharged
conduct by a preponderance of the evidence. Because the PSR
charged Gibbs with an unsupported drug quantity, Gibbs’s
denial was enough to shift the burden of proof back to the
prosecution. See Helding, 948 F.3d at 870. At sentencing, the
AUSA represented that the prosecution could call as a witness
an official who was present for Gibbs’s alleged confession and
who had kept notes supporting the uncharged drug quantity.
But that official was never produced. Thus, in the end the only
thing in the record was counsel’s statement. That falls short of
proof.
The government relies on this court’s decision in United
States v. Agyemang to argue that a sentencing judge is under
No. 20-3304 9
no obligation to “hold an elaborate trial-type proceeding”
before considering evidence of uncharged conduct at
sentencing, even when that evidence is hearsay. 876 F.2d 1264,
1272 (7th Cir. 1989). That much is true. But here, the problem
is not that the district court relied on a witness who recited an
out-of-court statement. It is that there was no such witness
who supported the quantity for which the government was
arguing. This is a far cry from Agyemang, in which the
government produced several witnesses who were all
“vigorously cross-examined” at sentencing by the defendant,
and the court permitted the parties to present dueling experts.
Id. at 1268–69. Moreover, the government has side-stepped
the requirements of Rule 32(i)(2) in its effort to use the AUSA’s
representation that Gibbs confessed during the proffer
session as a substitute for calling the official who was present
at the proffer session and obtaining that person’s testimony.
See FED. R. CRIM. P. 32(i)(2) (establishing procedural
safeguards when a witness testifies at sentencing).
Finally, the government reminds us that we can “affirm on
any ground in the record,” United States v. Harden, 893 F.3d
434, 451 (7th Cir. 2018), and urges us to affirm on the basis that
Gibbs’s co-defendant Hemmings pleaded guilty to being part
of a conspiracy to distribute over 4.5 kilograms of metham-
phetamine. But this is a bridge too far. The record lacks any
evidence to connect the scope of Gibbs’s business with that of
Hemmings. A co-conspirator’s guilty plea, without more, is
not enough to support an uncharged drug quantity.
B
The government finally argues that even if the district
court did not abide by Rule 32’s prescriptions, its error was
harmless. Cf. United States v. Shelton, 905 F.3d 1026, 1031 (7th
10 No. 20-3304
Cir. 2018) (“[E]rrors in calculating the advisory guideline
range are subject to harmless error analysis.”). We do not see
it that way. As we have noted, it was error to accept the
government’s representations as proof and begin with an
adjusted offense level of 37 and a guidelines range of 235 to
293 months. That was the backdrop for the court’s
consideration of the section 3353(a) factors and its choice of a
below-guidelines term of 200 months. If Gibbs’s final offense
level is reduced from 37 to 35 and all else remains equal, the
applicable guidelines range would be 188 to 235 months. The
government argues that because Gibbs’s sentence landed
within that revised range, the court may impose the same
sentence on remand.
That is certainly possible. But this is not a case in which we
are “convinced” that a remand “would result in the same sen-
tence.” United States v. Melvin, 948 F.3d 848, 854 (7th Cir. 2020).
As the Supreme Court recently stressed, “[w]hen a defendant
is sentenced under an incorrect Guidelines range—whether or
not the defendant's ultimate sentence falls within the correct
range—the error itself can, and most often will, be sufficient to
show a reasonable probability of a different outcome absent
the error.” Molina-Martinez v. United States, 578 U.S. 189, 198
(2016) (in a case reviewed for plain error) (emphasis added).
Here, the district court used the sentencing range as an anchor
point, and so the guidelines are the foundation of the sen-
tence. See Peugh v. United States, 569 U.S. 530, 542 (2013) (when
judges start with a sentencing range and “explain the decision
to deviate from it, then the Guidelines are in a real sense the basis
for the sentence.”) (emphasis in original). Moreover, the district
court did not provide any “firm assurances” that it would
have imposed the same sentence with a lower recommended
guidelines range. United States v. Hines-Flagg, 789 F.3d 751,
No. 20-3304 11
757 (7th Cir. 2015). The government has thus failed to carry its
burden to show that the guidelines 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).
III
When the government fails to meet its burden to support
uncharged drug quantities, “the government is not permitted
on remand to try again and submit new evidence in a belated
effort to carry its burden.” Noble, 367 F.3d at 682. The govern-
ment is entitled to only one chance to present this evidence.
In this case, the government did not simply fail to present suf-
ficient evidence; it failed to provide any evidence at all of the
higher drug quantity. Gibbs is entitled to be resentenced us-
ing offense level 35 and Criminal History category II.
The judgment is VACATED and the case REMANDED for re-
sentencing consistent with this opinion.