United States v. Asbury

27 F.4th 576

UNITED STATES of America, Plaintiff-Appellee,

v.Christopher L. ASBURY, Defendant-Appellant.

No. 21-1385

United States Court of Appeals, Seventh Circuit.

Argued January 12, 2022

Decided March 3, 2022

Jeffrey Kienstra, Attorney, Office of the United States Attorney, Peoria, IL, for Plaintiff-Appellee.

Aaron D. Van Oort, Attorney, Faegre Drinker Biddle & Reath LLP, Minneapolis, MN, David Yoshimura, Attorney, Faegre Drinker Biddle & Reath LLP, Des Moines, IA, for Defendant-Appellant.

Before Flaum, Easterbrook, and Wood, Circuit Judges.

Wood, Circuit Judge.

Christopher Asbury found himself in federal court facing criminal charges for distribution of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii). At his trial, the government introduced evidence showing that he had distributed the equivalent of 82.2 grams of pure ("ice") methamphetamine; the jury credited that evidence and convicted him. Asbury does not contest his conviction on appeal. He argues only that the district court erred in calculating his relevant conduct for purposes of the U.S. Sentencing Guidelines, that this error was prejudicial and not cured by the judge's statement that any possible error would not have affected the sentence he chose, and that his sentence in any event is substantively unreasonable. The government has conceded the first of these points, but it urges us to uphold the sentence on grounds of harmless error. The judge's brief statement, however, does not convince us that the guideline error was immaterial. We therefore vacate the sentence and remand this case for resentencing.

I

The underlying details of Asbury's crime are largely irrelevant to the appeal, and so we omit most of them here. Suffice it to say that federal agents had their eyes on Asbury in June 2019, and they used such common methods as a confidential source and recorded phone calls to nab him. In a controlled buy conducted by the source, Asbury showed up with approximately 83 grams of 99% pure methamphetamine. In September of the same year, a federal grand jury returned an indictment charging Asbury with distributing at least 50 grams of the drug. It also alleged that Asbury had a prior conviction for a serious drug offense. Upon his conviction after a jury trial, he faced a statutory sentencing range of 15 years to life.

The Presentence Investigation Report (PSR) that was prepared for the sentencing proceeding began by noting that the total quantity of pure methamphetamine involved in the offense was 82.2 grams (that is, 99% of 83.1). Using the drug conversion tables provided in U.S.S.G. § 2D1.1, cmt. 8(D) (table 2),¹ the PSR calculated a converted drug weight of 1,644 kilograms. But that was nowhere near all. Asserting that it was reflecting reports from others who had furnished information, paragraph 15 of the PSR proposed holding Asbury responsible for a much greater quantity:

According to an interview conducted with a confidential source of information, Asbury distributed approximately 16 ounces of methamphetamine ice in early 2018, approximately 210–250 ounces of methamphetamine ice from early 2018 through July 2018, approximately 30 ounces of methamphetamine ice in late July of 2018, then an additional 72 ounces through late 2018 and 2019, totaling 328 ounces (9,298.8 grams.)

Paragraph 16 added even more: "Additional interviews with Timothy Shannon, Jon Jacobs, and Brandon Hall, show Asbury distributed approximately 230 ounces (6,520.5 grams) from Summer 2017 through February 2019."

The PSR concluded that Asbury was responsible for 15,819.3 grams of a mixture containing methamphetamine, in addition to the 82.2 grams of the pure drug underlying the offense of conviction. The alleged additional conduct added 31,638.6 kilograms of converted weight to the 1,644 kilograms of converted weight for the ice, for a total of 33,282.6 kilograms of converted weight. Asbury filed a timely objection to those calculations; he insisted that he was not responsible for this alleged relevant conduct. But no additional information or support was forthcoming. The author of the PSR replied only that "[t]hese amounts were obtained from investigative reports prepared by law enforcement that this [probation] office deemed credible."

Asbury reiterated his objections to paragraphs 15, 16, and 24 of the PSR at the sentencing hearing, but the judge was not moved. That was so even though, when the judge appropriately asked the Assistant U.S. Attorney whether the prosecution intended to introduce any additional evidence, he was told that it did not. Rather than nail down the factual basis for the additional drug-quantity allegations, the court proceeded immediately to the general question whether the distribution of drugs other than those directly involved in the offense could be considered as relevant conduct. Guideline 1B1.3 answers that question in the affirmative, if the relevant conduct is proved by a preponderance of the evidence.

After a brief comment on relevant conduct, the court said that it was "adopt[ing] the probation officer's position." This had the effect of raising Asbury's offense level from 30 to 36. U.S.S.G. §§ 2D1.1(c)(2), (5). The court then added two levels for perjury, raising the offense level to 38. Asbury had a criminal history of VI, which, along with his offense level, gave him an advisory guideline range of 360 months to life. Had the offense level been 32 (i.e. , the level without the relevant conduct, but with the perjury enhancement), his range would have been 210 to 262 months. Because of Asbury's prior conviction for a serious felony, his statutory minimum sentence was 15 years (180 months), and the maximum was life.

The court prefaced its discussion of the sentencing factors set forth in 18 U.S.C. § 3553(a) with the following statements:

Let me add one more thing. Let me make the record clear about this: Even if I erred in some way in the calculation of the applicable guidelines as far as the criminal history calculation goes, even if I was wrong, the defendant—and removed a number of points—the defendant would still be a criminal history category VI.

Likewise, as far as the offense level, I'm cognizant of the guidelines. And if I made an error in the guideline calculation in terms of offense level, that would not affect my sentence.

I'm basing my sentence on the Section 3553(a) factors and the exercise of my discretion after placing a lot of thought into this sentencing hearing.

After a brief review of the section 3553(a) factors, the court made the following intriguing comment:

[T]here's no doubt in my mind that any sentence I impose within the statutory range or the guideline range—but, more importantly, within the statutory range—would adequately deter Mr. Asbury from committing any further conduct. He's 40 years old at this time. Even if I were to impose the statutory mandatory minimum [of 180 months], he would not be out until he was in his early 50s. Likewise, I am to protect the public from further crimes of the defendant. The defendant will be out of commission for a lengthy period of time.

With that, the court imposed a sentence of 360 months, double the statutory mandatory minimum. It did not explain why, if a 180-month sentence would have sufficed to deter Asbury from further criminal behavior and to protect the public, the other factors were so compelling that the greater sentence was necessary.

II

Although Asbury has raised a number of arguments on appeal, the only one we need to reach is whether the district court's erroneous reliance on the unsupported and disputed allegations in the PSR was harmless. The government has "concede[d] that the drug-quantity finding cannot be sustained." We are not bound to accept such a concession, but in this case we have no trouble doing so. See United States v. Helding , 948 F.3d 864, 869–72 (7th Cir. 2020) (finding error where "no step [was] taken to find some modicum of reliability of the CI information supplied to the probation officer charged with preparing the PSR," and concluding that this error was not harmless); see also United States v. Gibbs , No. 20-3304, 26 F.4th 760, 765 (7th Cir. Feb. 22, 2022) ("The government bears the burden of proving by a preponderance of the evidence that uncharged drug quantities are attributable to a defendant."). We therefore focus on the question whether the court's sentence can be salvaged notwithstanding the error.

Sentencing proceedings in federal district courts proceed in two steps: first, the judge must calculate the correct advisory sentencing range under the Sentencing Guidelines; and second, the judge must consider the factors set out in section 3553(a). Both of these steps are important—indeed, both are compelled by statute. The requirement of beginning with the guidelines appears in 18 U.S.C. § 3553(a)(4) —a part of the Sentencing Reform Act that was left undisturbed by United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). It says that "[t]he court, in determining the particular sentence to be imposed, shall consider ... the kinds of sentence and the sentencing range established for—(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—(i) issued by the Sentencing Commission ...." (Emphasis added.) The requirement to take a broader look at the appropriate sentence is found in 18 U.S.C. § 3553(a), which also uses mandatory language in directing the court to take the listed factors into account.

Under this system, the court must start with the guidelines, but it must then weigh the factors set out in section 3553(a). A district court is entitled to disagree with the sentencing philosophy of the guidelines, see Kimbrough v. United States , 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), and so it may reject the advisory range. When, and to the extent, it does so, however, it must explain the final sentence and indicate which of the permissible...