In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐3341
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
EDWARD DORSEY, SR.,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 14 CR 20026 — Colin S. Bruce, Judge.
____________________
ARGUED MAY 24, 2016 — DECIDED JULY 21, 2016
____________________
Before WOOD, Chief Judge, and EASTERBROOK and KANNE,
Circuit Judges.
KANNE, Circuit Judge. Defendant Edward Dorsey is best
known, in legal circles, as the convicted drug trafficker in
Dorsey v. United States, 132 S. Ct. 2321 (2012), whose sentence
was vacated by the Supreme Court and reduced on remand
to time served and an eight‐year term of supervised release.
Unfortunately, Dorsey returned to criminal activity and two
2 No. 15‐3341
years later, he was charged with three new counts of drug
trafficking, resulting in two proceedings against him.
In the first, the present case, Dorsey pled guilty to the
three new counts of drug trafficking, and the district court
sentenced him to 276 months’ imprisonment and eight years
of supervised release. In the second, his revocation case, he
pled guilty to violating the supervised release imposed after
Dorsey v. United States, and the district court sentenced him
to 51 months’ imprisonment, to run concurrently with the
sentence from the present case. United States v. Dorsey, No.
09‐cr‐20003 (C.D. Ill. J. entered Feb. 20, 2015).
In the present case, Dorsey successfully appealed his 276‐
month sentence, but at resentencing, the district court in‐
creased his sentence to 327 months’ imprisonment. Here, on
his second appeal, Dorsey argues that the district court
should have recused itself and that the district court erred
procedurally by considering his revocation case sentence.
We affirm.
I. BACKGROUND
A. Dorsey v. United States
In August 2008, Dorsey, a convicted drug felon, sold 5.5
grams of crack cocaine. In September 2010, the district court
sentenced him to 10 years’ imprisonment, pursuant to the
mandatory minimum under the 1986 Drug Act, Pub. L. No.
99‐570. In doing so, the court declined to apply the 2010 Fair
Sentencing Act (“FSA”), Pub. L. No. 111‐220, under which
there would be no mandatory minimum sentence for a drug
amount below 28 grams, because Dorsey’s offense predated
the FSA’s effective date of August 3, 2010. This court af‐
firmed the sentence.
No. 15‐3341 3
On June 21, 2012, in Dorsey v. United States, the Supreme
Court vacated and remanded Dorsey’s sentence. 132 S. Ct. at
2336. The Court held that the FSA’s lower mandatory mini‐
mums applied retroactively to the post‐FSA sentencing of
pre‐FSA offenders. Id. at 2335–36.
On remand, the district court reduced Dorsey’s sentence
to time served and an eight‐year term of supervised release,1
which included a standard condition that he “shall not
commit another state, federal, or local crime.” Dorsey was
released from custody on August 10, 2012.
B. New Offense, Revocation of Supervised Release, and First
Sentencing
Within two years, Dorsey returned to crack‐cocaine traf‐
ficking in Illinois. On May 8, 2014, a grand jury charged
Dorsey with three new counts of distribution of crack co‐
caine, pursuant to 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii),
(b)(1)(C). Dorsey pled guilty to all three counts. These charg‐
es constitute the present case, which was assigned to United
States District Judge Colin S. Bruce.
Meanwhile, as a result of the new case against Dorsey,
the probation office filed a petition to revoke Dorsey’s su‐
pervised release from Dorsey v. United States. Dorsey was ar‐
rested on April 29, 2014. Dorsey’s supervised release revoca‐
1 We note a clerical error in the written amended judgment, which states
a six‐year term of supervised release for Dorsey. Instead, the amended
judgment should have stated an eight‐year term of supervised release,
pursuant to 28 U.S.C. § 841(a)(1), (b)(1)(B)(iii). However, the correct
eight‐year term of supervised release was used by the district court in
Dorsey’s revocation case.
4 No. 15‐3341
tion case was ultimately assigned to United States District
Chief Judge James A. Shadid.
On December 15, 2014, Judge Bruce held Dorsey’s first
sentencing hearing in the present case. The court determined
that Dorsey’s guidelines range was 262 to 327 months, based
on an adjusted offense level of 34, a criminal history catego‐
ry of IV, and classification as a career offender. Dorsey ar‐
gued, in mitigation, that he should receive a lower sentence
because “the revocation proceeding of his prior federal su‐
pervised release is still pending … and under the guidelines,
any sentence he receives on that shall be consecutive to this
case.” (Sent. Tr. 21, Dec. 15, 2014.) The court sentenced
Dorsey to a within‐guidelines sentence of 276 months’ im‐
prisonment. The court also imposed an eight‐year term of
supervised release, with the standard conditions and several
special conditions. Judgment was entered against Dorsey on
December 18, 2014. Dorsey filed a timely notice of appeal.
C. Revocation Case Sentencing
On February 19, 2015, two months after Dorsey’s first
sentencing in the present case, Chief Judge Shadid held
Dorsey’s revocation case sentencing hearing. Dorsey began
by pleading guilty to violating the terms of his supervised
release. The court then determined Dorsey’s guidelines
range was 51 to 60 months’ imprisonment, based on the
statutory maximum of 60 months and a criminal history cat‐
egory of VI. The court also noted that the sentencing guide‐
lines recommended that this sentence should be run consec‐
utive to Dorsey’s other sentence of 276 months’ imprison‐
ment. See U.S.S.G. §§ 5G1.3 n.4(C), 7B1.3(f). The government
agreed with the sentencing guidelines and argued for a con‐
No. 15‐3341 5
secutive 51‐month sentence, whereas Dorsey asked for a
concurrent 51‐month sentence.
The district court also asked Dorsey whether he was
challenging his 276‐month sentence on appeal, to which
Dorsey replied:
No. The issue on appeal is waiting to see whether
or not if the appeal is pending if any new legisla‐
tion comes out that benefits him. As I am sure Your
Honor is well aware, he was the successful litigant
in Dorsey v. United States. He has learned that if you
preserve a case for as long as possible, sometimes
good thing[s] can happen to you. As it stands right
now, there is not really a meritorious issue.
(Sent. Tr. 12, Feb. 19, 2015.) Before sentencing Dorsey, the
court made two comments. First, it noted that Dorsey’s 276‐
month sentence was “at the high end” because of his status
as a career offender. (Id. at 16.) Second, the court declared
that, “the fact that it appears that the appeal isn’t likely to
give you the same results as you received before, and proba‐
bly unlikely to get any results, I believe that a concurrent
sentence is the appropriate one.” (Id.) The district court then
imposed a sentence of 51 months’ imprisonment, to run con‐
currently with Dorsey’s other sentence of 276 months’ im‐
prisonment. Judgment was entered against Dorsey on Feb‐
ruary 20, 2015.
D. First Appeal and Resentencing
After receiving a concurrent sentence in his revocation
case, Dorsey pursued the appeal of his first sentence. On ap‐
peal, he challenged only his supervised‐release conditions.
On June 16, 2015, Dorsey and the government filed a joint
motion for summary reversal and remand in light of United
6 No. 15‐3341
States v. Thompson, 777 F.3d 368 (7th Cir. 2015), and its prog‐
eny. On June 26, 2015, this court granted the joint motion,
vacating Dorsey’s first sentence and remanding for resen‐
tencing.
On October 16, 2015, Judge Bruce held Dorsey’s second
sentencing, or resentencing, hearing in the present case.
Consistent with the first sentencing, the court found that
Dorsey had a guidelines range of 262 to 327 months, based
on an adjusted offense level of 34, a criminal history catego‐
ry of IV, and classification as a career offender.
After hearing arguments from both sides regarding the
§ 3553(a) factors, the court “reiterate[d] what [it] said at the
original sentencing.” (Sent. Tr. 31, Oct. 16, 2015.) The district
court also detailed its reasoning for increasing Dorsey’s sen‐
tence by 51 months. The district court explained that at the
first sentencing, it had wanted to impose a 327‐month sen‐
tence, but Dorsey had persuaded the court to impose a 276‐
month sentence because he expected to receive a 51‐month
consecutive sentence in his revocation case. However, Dorsey
received a 51‐month concurrent sentence in his revocation
case, and consequently, the district court increased Dorsey’s
sentence to “correct … a misunderstanding on my part that
the 51 months was definitely going to be consecutive.” (Id. at
36.)
Ultimately, the district court sentenced Dorsey to a with‐
in‐guidelines sentence of 327 months’ imprisonment and
eight years of supervised release. The court imposed the
standard conditions and several special conditions, in ac‐
cordance with Thompson. The district court entered amended
judgment against Dorsey on October 20, 2015. Dorsey’s sec‐
ond appeal now follows.
No. 15‐3341 7
II. ANALYSIS
Dorsey raises two challenges to his resentencing. First, he
argues that the district court judge at his resentencing, Judge
Bruce, should have been disqualified based on his previous
employment as a supervisory Assistant United States Attor‐
ney (“AUSA”) in the United States Attorney’s Office that
prosecuted Dorsey v. United States. Second, Dorsey contends
that his sentence was procedurally unsound because at re‐
sentencing, the district court impermissibly considered his
revocation sentence.
A. Judicial Disqualification
Dorsey argues that Judge Bruce should have recused
himself from his case, pursuant to 28 U.S.C. § 455(b)(3).2
For a claim arising under § 455(b), “if a claim is properly
preserved, our review is de novo.” United States v. Diekemper,
604 F.3d 345, 351 (7th Cir. 2010). For a Ҥ 455(b) claim raised
for the first time on appeal where the appellant did not
move for recusal below,” the standard of review is for plain
error. United States v. Ruzzano, 247 F.3d 688, 695 (7th Cir.
2001), overruled on other grounds by Fowler v. Butts, No. 15‐
1221 (7th Cir. July 20, 2016). To show plain error, a defend‐
ant must demonstrate that a judge’s “participation in the
2 In his opening brief, Dorsey also cited to 28 U.S.C. § 455(a), but he did
not develop any recusal argument under this statutory provision. (Ap‐
pellant Br. 16.) Furthermore, in his reply brief, Dorsey explicitly stated
that he “has not claimed relief under § 455(a),” and that he “is not asking
this [c]ourt to find that the district court should have been recused from
the proceedings in the instant case under § 455(a).” (Appellant Reply Br.
2, 3.) Therefore, Dorsey does not raise a claim under § 455(a).
8 No. 15‐3341
disposition of the case was an obvious or clear error and that
it affected [the defendant’s] substantial rights.” Id.
We pause briefly to clarify some confusion regarding the
standard of review. At first glance, it appears that we have
reviewed recusal arguments under § 455(b) raised for the
first time on appeal “under both the clear and plain error
standards.” United States v. Modjewski, 783 F.3d 645, 650 (7th
Cir. 2015) (collecting cases). This confusion stems from im‐
precision in the language—to establish plain error, a defend‐
ant must show that a judge’s “participation in the disposi‐
tion of the case was an obvious or clear error and it affected
[defendant’s] substantial rights.” Ruzzano, 247 F.3d at 695.
(emphasis added). However, even the cases that purport to
use the clear‐error framework actually apply the plain‐error
standard, e.g., Diekemper, 604 F.3d at 351, or they cite to cases
that apply the plain‐error standard, e.g., United States v.
Smith, 210 F.3d 760, 764 (7th Cir. 2000) (citing Baldwin Hard‐
ware Corp. v. Franksu Enter. Corp., 78 F.3d 550, 557 (Fed. Cir.
1996) (plain error); United States v. Bosch, 951 F.2d 1546, 1548
(9th Cir. 1991) (plain error); Osei‐Afriyie v. Med. Coll. Penn.,
937 F.2d 876, 886 (3d Cir. 1991) (plain error)). Therefore, the
proper standard of review for a § 455(b) challenge raised for
the first time on appeal is plain error.
In this case, Dorsey did not raise the § 455(b)(3) issue be‐
fore the district court, and thus his argument is reviewed for
plain error.
28 U.S.C. § 455(b)(3) provides: “[a judge] shall also dis‐
qualify himself … [w]here he has served in governmental
employment and in such capacity participated as counsel,
adviser or material witness concerning the proceeding or
No. 15‐3341 9
expressed an opinion concerning the merits of the particular
case in controversy[.]”
This court has held that for the purposes of § 455(b)(3),
“[t]he proceeding means the current proceeding.” United States v.
Lara‐Unzueta, 735 F.3d 954, 959 (7th Cir. 2013) (emphasis in
original). Furthermore, this court has held that for “judges
who were formerly AUSAs, § 455(b)(3) requires some level
of actual participation in a case to trigger disqualification.”
Ruzzano, 247 F.3d at 695. “Even an AUSA who occupied a
supervisory position in the U.S. Attorney’s Office during the
prosecution is not later required to recuse herself solely on
that basis.” Id.
In this case, Dorsey’s § 455(b)(3) claim fails because it
was impossible for Judge Bruce to actually participate as an
AUSA in the current proceeding. The current proceeding
against Dorsey began when he was indicted on May 8, 2014.
At the time, Judge Bruce had already ascended to the
bench—he received his commission on October 8, 2013, and
was sworn in on November 4, 2013.
The sole authority relied upon by Dorsey in support of
his § 455(b)(3) claim is United States v. Smith, 775 F.3d 879
(7th Cir. 2015). But Smith does not apply here. In Smith, a
§ 455(b)(3) violation occurred because the sentencing judge
had actually participated as counsel in the very proceeding
in which she imposed the sentence. Id. at 880. In the present
case, as discussed, it was impossible for Judge Bruce to actu‐
ally participate as counsel in the current proceeding because
he was already on the bench. Accordingly, Judge Bruce did
not need to recuse himself from the present case under
§ 455(b)(3).
10 No. 15‐3341
B. Procedural Error
Next, Dorsey argues that the district court erred proce‐
durally at resentencing by increasing his sentence based on
the concurrent nature of his revocation case sentence.
This court reviews a district court’s sentence for proce‐
dural error de novo. United States v. Abebe, 651 F.3d 653, 656
(7th Cir. 2011). Procedurally, we ask district courts to do the
following at sentencing: “(1) calculate the applicable Guide‐
lines range; (2) give the defendant an opportunity to identify
any of the 18 U.S.C. § 3553(a) factors that might warrant a
non‐Guidelines sentence; and (3) state which factors influ‐
enced the final sentence.” Id. (internal quotation marks omit‐
ted).
Dorsey specifically contends that the 18 U.S.C. § 3553(a)
factors “in no way permit another judge’s decision in a sepa‐
rate case to be considered as a factor in imposing [sic] sen‐
tence[.]” (Appellant Br. 14.)
This argument is meritless, flying in the face of clear fed‐
eral statute and Supreme Court case law. 18 U.S.C. § 3661
provides that “[n]o limitation shall be placed on the infor‐
mation concerning the background, character, and conduct
of a person convicted of an offense which a court of the
United States may receive and consider for the purpose of
imposing an appropriate sentence.” This statute simply
“codifies the longstanding principle that sentencing courts
have broad discretion to consider various kinds of infor‐
mation.” United States v. Watts, 519 U.S. 148, 151 (1997) (per
curiam).
Moreover, based on this general principle, the Supreme
Court has explicitly held that when a defendant’s sentence
No. 15‐3341 11
has been set aside on appeal, a resentencing court may con‐
sider, under § 3553(a), postsentencing information relating to
the defendant in increasing or decreasing the defendant’s
sentence. Pepper v. United States, 562 U.S. 476, 487–505; see
also United States v. Barnes, 660 F.3d 1000, 1010 (7th Cir. 2011).
Here, at resentencing, the district court stated which fac‐
tors influenced the final sentence, including an extensive
discussion of its reasons for increasing Dorsey’s sentence by
51 months based on the concurrent nature of Dorsey’s revo‐
cation case sentence. (Sent. Tr. 34–35, Oct. 16, 2015.) The dis‐
trict court explained that at Dorsey’s first sentencing, it had
wanted to impose a 327‐month sentence, but Dorsey had
persuaded the court to impose a 276‐month sentence be‐
cause he expected to receive a 51‐month consecutive sentence
in his revocation case. (Id.) Dorsey, however, received a 51‐
month concurrent sentence in his revocation case. As a result,
at resentencing, the district court increased Dorsey’s sen‐
tence to “correct … a misunderstanding on my part that the
51 months was definitely going to be consecutive.” (Id. at
35.) The district court’s reasoning more than adequately jus‐
tifies Dorsey’s final sentence. Therefore, there was no proce‐
dural error.
III. CONCLUSION
For the foregoing reasons, Dorsey’s sentence is
AFFIRMED.