United States v. Gray, William C. , 410 F.3d 338 ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-3238, 03-3347, 03-3370,
03-3428, 03-3467 & 03-3617
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIAM C. GRAY, FREDERICK H. LENOVER,
TONYA F. WOLFE, OSCAR MCGRAW, WALTER
DUREGGER, JR., and TONY P. MCMILLIN,
Defendants-Appellants.
____________
Appeals from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. TH 02-18-CR-M/L—Larry J. McKinney, Chief Judge.
____________
ARGUED FEBRUARY 24, 2005—DECIDED MAY 23, 2005
____________
Before FLAUM, Chief Judge, and MANION and EVANS,
Circuit Judges.
EVANS, Circuit Judge. Before us in this appeal are 6 of 15
defendants, many high-ranking members of the Diablos
Motorcycle Club (DMC), who were charged with and con-
victed of being members of a methamphetamine conspiracy
in the Southern District of Indiana. William Gray, Frederick
2 Nos. 03-3238, et al.
Lenover, Tonya Wolfe, Oscar McGraw, and Tony McMillin
(he was also convicted on several related charges, two involv-
ing firearms) were convicted by a jury; Walter DuRegger
entered a guilty plea to the conspiracy charge. They appeal,
raising a bevy of trial and sentencing issues.
A very brief overview of the evidence, viewed in the light
most favorable to the government, shows that a conspiracy
to distribute methamphetamine1 was formed in 2001 when
1
We are seeing more and more cases involving methampheta-
mine. In a lengthy article (“My Addicted Son”) in the February 6,
2005, edition of the New York Times magazine, the author (David
Sheff) describes, in chilling detail, his only encounter with this
extremely nasty drug:
I snorted the lines through a rolled-up dollar bill. The chem-
ical burned my nasal passages, and my eyes watered. Whether
the drug is sniffed, smoked, swallowed or injected, the body
quickly absorbs methamphetamine. Once it reaches the cir-
culatory system, it’s a near-instant flume ride to the central
nervous system. When it reached mine, I heard cacophonous
music like a calliope and felt as if Roman candles had been
lighted inside my skull. Methamphetamine triggers the brain’s
neurotransmitters, particularly dopamine, which spray like
bullets from a gangster’s tommy gun. The drug destroys the
receptors and as a result may, over time, permanently reduce
dopamine levels, sometimes leading to symptoms normally
associated with Parkinson’s disease like tremors and muscle
twitches. Meth increases the heart rate and blood pressure
and can cause irreversible damage to blood vessels in the brain,
which can lead to strokes. It can also cause arrhythmia and
cardiovascular collapse, possibly leading to death. But I felt
fantastic—supremely confident, euphoric.
After methamphetamine triggers the release of neurotrans-
mitters, it blocks their reuptake back into their storage pouches,
much as cocaine and other stimulants do. Unlike cocaine,
however, meth also blocks the enzymes that help to break
(continued...)
Nos. 03-3238, et al. 3
Sam Hargrove and Gray, who were Californians, met
McGraw at a DMC meeting in Indiana. McGraw asked
Hargrove to supply him with methamphetamine. After the
meeting, Hargrove and Gray returned to California, where
Hargrove contacted a methamphetamine source who fronted
him five pounds of the drug. Hargrove and Gray concealed
the methamphetamine in a trailer hitch and shipped it to
Indiana. At some point, the volume of methamphetamine
increased, sometimes to 20 pounds per shipment, which
required a different (and bigger) hiding place. Hargrove and
Gray turned to concealing the methamphetamine in nerf
bars, which are running boards that attach to pickup
trucks. What ordinarily happened was that codefendant
John Durnin and Gray bought nerf bars, which they took to
Hargrove’s residence. Hargrove obtained the methamphet-
amine and Hargrove, Durnin, and Gray cut it with
dimethylsulfone, creating 20 pounds of product, which they
vacuum-sealed into one-pound packages. These packages
were placed in the nerf bars, which Durnin welded shut.
The nerf bars then were placed into a package for mailing
to either County Line Auto in Center Point, Indiana, or to
an address in Vincennes, Indiana. The shipments were
made by this method approximately twice a month—that is,
until law enforcement agents intercepted a shipment in
May 2002.
After that setback, Hargrove and McGraw met in
Las Vegas, Nevada, to discuss alternate methods for ship-
ment. They decided that Hargrove would conceal the meth-
1
(...continued)
down invasive drugs, so the released chemicals float freely
until they wear off. Methamphetamine remains active for 10
to 12 hours, compared with 45 minutes for cocaine. When the
dawn began to seep through the cracked window blinds, I felt
bleak, depleted and agitated. I went to bed and eventually
slept for a full day, blowing off school.
4 Nos. 03-3238, et al.
amphetamine in air compressors and ship them to Indiana
via heavy freight. They also decided to begin communicat-
ing more by e-mail than by telephone.
In Indiana, once the drugs arrived, Daniel Cheshire recov-
ered the methamphetamine from its hiding place. McGraw,
who directed the operation in Indiana, established the price
for the methamphetamine and directed Cheshire to deliver
specific quantities to specific individuals, who in turn sold
the drugs.
Throughout the conspiracy, the DMC had a chapter in
Terre Haute, Indiana. McGraw was the national president
of the club. Hargrove and Gray joined the San Fernando,
California, chapter in 1993. They became acquainted with
McGraw through the club. McGraw and Lenover, who was
president of the Indiana chapter, sponsored Donald Osborn
for membership in May 2001. McMillin was treasurer of the
Indiana chapter and he, McGraw, and Lenover obtained
money to pay their dues through selling methamphetamine.
As a result of an investigation into these activities, the
defendants before us were indicted of conspiracy to possess
with the intent to distribute and of distribution in excess of
500 grams of methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1) and 856. McMillin was also charged in a sub-
stantive distribution count and with the possession of a fire-
arm during a drug trafficking offense, in violation of 18 U.S.C.
§ 924(c)(A)(I). DuRegger pled guilty to the conspiracy count
and the others were convicted by a jury of all the charges.
McGraw and Gray were sentenced to life imprisonment,
Lenover to 350 months imprisonment, Wolfe to 324 months,
and McMillin to an aggregate sentence of 295 months.
DuRegger drew a term of 210 months.
The defendants raise a number of issues on appeal. They
contend that the district judge abused his discretion in find-
ing that the affidavit submitted in support of an application
for wire surveillance satisfied the necessity requirement of
Nos. 03-3238, et al. 5
18 U.S.C. § 2518(1)(c) and (3)(c). They also raise a number
of evidentiary errors. They contend the district court abused
its discretion in admitting evidence of membership in the
DMC, in admitting their photographs (and photographs of
their coconspirators) and allowing them to be on continuous
display, in admitting firearms into evidence and permitting
them to be on continuous display, and in admitting copies
of the court order authorizing wire surveillance. They also
contend that the court abused its discretion in prohibiting
them from attempting to impeach Hargrove’s testimony (he
cooperated with the government) with evidence of a perjury
conviction. And they contend that it was error to allow
Special Agent Douglas Freyberger to testify as an expert on
the identification and interpretation of drug code language.
McMillin contends that the fruits of a search warrant
executed at his home on June 26, 2002, should have been
suppressed. Finally, Lenover, Wolfe, McGraw, DuRegger,
and McMillin raise issues relating to their sentences.
We will turn first to the challenge to the affidavit sub-
mitted in support of the application for wire surveillance.
The defendants argue that the evidence obtained from the
surveillance should have been suppressed because the
government failed to establish the “necessity” for the wire
surveillance. We review a challenge to the necessity of wire
surveillance under an abuse of discretion standard, grant-
ing substantial deference to the determination made by the
district court. United States v. Zambrana, 841 F.2d 1320
(7th Cir. 1988).
Under 18 U.S.C. § 2518(1)(c), each application for wire
surveillance must contain a “full and complete statement as
to whether or not other investigative procedures have been
tried and failed or why they reasonably appear to be
unlikely to succeed if tried or to be too dangerous[.]” The
government need demonstrate only one of the three alter-
natives. United States v. Ceballos, 302 F.3d 679 (7th Cir.
2002). The burden of establishing necessity is “not great,”
6 Nos. 03-3238, et al.
and we must review the government’s compliance with the
necessity requirement in a “practical and common-sense
fashion.” Ceballos, 302 F.3d at 683 (quoting United States
v. Zambrana, 841 F.2d 1320, 1329 (7th Cir. 1988)).
The affidavit in this case addressed the necessity require-
ment and the use of alternative law enforcement techniques,
including the use of confidential sources and undercover
agents, grand jury investigations, search warrants, pen reg-
ister and telephone records, and physical surveillance. It
stated that the United States Drug Enforcement
Administration (DEA) tried to use confidential informants,
but they failed to provide the information needed and it
appeared unlikely that they would succeed in the future.
Confidential Informant #1 (CI1) refused to testify because
he was afraid that McGraw would arrange to have him
killed if he did. Further, he could not provide current in-
formation because he was incarcerated in another state.
These facts help establish necessity. See United States v.
Anderson, 542 F.2d 428 (7th Cir. 1976); United States v.
Thompson, 944 F.2d 1331 (7th Cir. 1991). Confidential
Informant #2 (CI2) could not provide information concern-
ing the full scope of McGraw’s drug trafficking because he
could not identify the methamphetamine source, the cour-
iers, or the customers, again facts going to necessity. See
Ceballos. Consistent with United States v. Zambrana, 841
F.2d 1320 (7th Cir. 1988), the affidavit also noted that an
undercover agent was unlikely to be able to infiltrate the
organization because of the insular nature of motorcycle
gangs in general and McGraw’s organization in particular.
As to grand jury testimony, the affidavit indicated that the
dealers would likely invoke their Fifth Amendment rights
if subpoenaed.
The affidavit also stated that the DEA and other law en-
forcement agencies attempted to execute search warrants
but that these also failed to achieve the goals of the inves-
tigation. The DEA had not identified any locations where
Nos. 03-3238, et al. 7
they could search for methamphetamine or money, and it
lacked a source of information about the arrival of metham-
phetamine in Indiana. A search warrant would also alert the
conspirators of the investigation. As in Zambrana, the
inability to conduct searches helps support a finding of nec-
essity. Pen registers merely confirmed a contact between
two telephones and could not identify the persons talking or
the nature of the conversations. See Ceballos. Physical
surveillance was ruled out because Cheshire’s residence,
where the methamphetamine was distributed to the
dealers, was in an isolated location and also was protected
with countersurveillance equipment. The difficulty of sur-
veillance also supports necessity. See United States v.
Farmer, 924 F.2d 647 (7th Cir. 1991). Considering all these
allegations, the affidavit supporting the application was
more than adequate for a finding of necessity for wire
surveillance.
Next, we consider McMillin’s contention that the district
court should have granted his motion to suppress evidence
obtained during a 2002 search of his home. When reviewing
a ruling on a motion to suppress, we review questions of law
de novo and questions of fact for clear error. United States
v. Liss, 103 F.3d 617 (7th Cir. 1997). McMillin argues that
the affidavit in support of the warrant did not contain suf-
ficient evidence—apart from evidence obtained during an
invalid 2001 search—to support a finding of probable cause.
We disagree.
The government acknowledges that if the 2002 affidavit
contained no facts arising after the earlier search, then there
would be no probable cause for the search and no good faith
on which the officers could rely. But the affidavit supporting
the 2002 warrant contains information subsequent to the
2001 search. A search warrant obtained, in part, with
evidence which is tainted can still support a search if the
“untainted information, considered by itself, establishes
probable cause for the warrant to issue.” United States v.
8 Nos. 03-3238, et al.
Oakley, 944 F.2d 384, 386 (7th Cir. 1991). The connection
with the unlawful search must be “so attenuated as to
dissipate the taint.” Murray v. United States, 487 U.S. 533,
537 (1988) (quoting Nardone v. United States, 308 U.S. 338,
341 (1939)). In assessing whether the results of the subse-
quent search must be suppressed, we ordinarily consider
whether the illegally obtained evidence affected the magis-
trate’s decision to issue the warrant and, secondly, whether
the agent’s decision to obtain a warrant was prompted by
knowledge of the results of the earlier illegal search. United
States v. Markling, 7 F.3d 1309 (7th Cir. 1993); see also
United States v. Real Prop. at 15324 County Hwy. E., 332
F.3d 1070 (7th Cir. 2003). In the present case, while
McMillan cites the two-part test, he argues only that “[s]et-
ting aside the information gained from the unconstitutional
entry, the Affidavit failed to contain sufficient credible in-
formation to justify the issuance of the Warrant.” Because
McMillin does not contend that the first search prompted
Agent Freyberger to seek the second warrant, we will consider
only the first prong of the inquiry—whether the illegally
obtained evidence affected the magistrate’s decision. As
always, the determination of probable cause involves a
“practical, common-sense decision whether, given all the
circumstances set forth . . . , there is a fair probability that
contraband or evidence of a crime will be found in a particu-
lar place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).
The government relies on three primary categories of new
information. The first is information obtained from CI1 that
McMillin was a member of the DMC and was involved in
ongoing methamphetamine trafficking for McGraw at his
residence. Secondly, there is the June 2002 intercepted
conversation between McMillin and “Amanda” in which
McMillin attempted to establish a meeting with McGraw to
discuss their drug trafficking activity. The government
acknowledges that the conversation could be subject to
various interpretations but argues that, given the totality
Nos. 03-3238, et al. 9
of circumstances and that drugs were seized after similar
conversations between other conspirators, it—taken with
other facts—offers support for a finding of probable cause.
We agree.
Finally, there is information that McGraw purchased ve-
hicles with drug proceeds and titled them under his busi-
ness name, S&S Engineering. In June 2002, DEA agents
observed a Cadillac registered to S&S Engineering parked
on top of a transport trailer in McMillin’s front yard. Look-
ing at the totality of the circumstances, we find there is
probable cause to support the warrant.
We will now turn to evidentiary issues. We review chal-
lenges to the admission of evidence only for an abuse of
discretion. United States v. Souffront, 338 F.3d 809 (7th Cir.
2003).
Taking the easy issues first, we note that the judge did
not abuse his discretion in admitting photographs of the
defendants and allowing them to be displayed during the
trial. The photos were admittedly used to allow the jury to
remember who the conspirators were, but that, by itself,
does not make them prejudicial. The defendants also say
that the photos were less than flattering. That may be, but
they were not mug shots and did not suggest that the con-
spirators were incarcerated.
Similarly, we see no abuse of discretion in the display
of the firearms seized. We have previously ruled that fire-
arms are often tools of the narcotics trade. United States v.
Alvarez, 860 F.2d 801 (7th Cir. 1988). They were relevant to
the charges. It is true that firearms probably riveted the
jury’s attention, but there is no rule that particularly strong
evidence must be hidden.
The defendants object to admission of membership in the
DMC. We first note that the government consistently re-
ferred to the DMC as a club, not as a gang, thus eliminating
some of the implications which could be drawn about the
10 Nos. 03-3238, et al.
group. Furthermore, the government did not proceed with
a theory that the club itself was distributing drugs. The
danger of a jury finding guilt by association is minimized if
the government does not substitute evidence of gang mem-
bership for proof that the defendants—as individuals—par-
ticipated in the drug distribution network. Here the club
evidence was used to show how some of the members knew
each other and how it came about that shipments were made
from California to Indiana. Given that club membership
played an important role in the distribution network, we see
no abuse of discretion in references to DMC membership. See
United States v. Thomas, 86 F.3d 647 (7th Cir. 1996).
Defendants also object to the admission of district court
orders authorizing wire surveillance. Their objection in this
court is that the evidence is not relevant, it is hearsay, and
that pursuant to Federal Rule of Evidence 403, its probative
value is outweighed by its prejudicial effect. While this claim
may have more substance than their other claims regarding
the admission of evidence, the objection was not preserved
in the trial court. At trial, the defendants had a continuing
objection to testimony about the wiretaps and information
gleaned from the surveillance. Mr. McGraw’s attorney
stated the objection: “I would like to make an objection to
this question and any further questions concerning the
wiretap intercepts on the grounds that the wiretap in this
case was violative of 18 U.S.C. Section 2518 and my client’s
rights under the 4th Amendment of the Constitution . . . .”
When the wiretap orders themselves were introduced,
counsel said, “Same objection made under 18 U.S.C. 2518
and the 4th Amendment.” The objection, as stated, went
only to the propriety of the seizures; it was not that the
orders themselves were prejudicial, irrelevant, or contained
hearsay. In short, the objection did not provide the court
with the nature of the objection “so as to alert [the judge] to
the proper course of action and enable opposing counsel to
take proper corrective measures.” Fed. R. Evid. 103 advi-
Nos. 03-3238, et al. 11
sory committee’s note. Therefore, our review on this issue
is conducted only under the rigorous plain-error standard.
As outlined in United States v. Olano, 507 U.S. 725, 732
(1993), before an appellate court can correct an error not
raised at trial there must be (1) “error,” (2) that is “plain,”
and (3) that “affect[s] substantial rights.” If all three con-
ditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error
“seriously affect[s] the fairness, integrity or public reputa-
tion of judicial proceedings.” United States v. Atkinson, 297
U.S. 157, 160 (1936); Olano. The last criterion is often de-
scribed as an error which causes a “miscarriage of justice.”
United States v. Frady, 456 U.S. 152, 163 n.14 (1982); see
also United States v. Lechuga, 994 F.2d 346 (7th Cir. 1993).
Using the plain-error standard, we reject, without com-
ment, the defendants’ hearsay and relevance objections.
However, the objection pursuant to Rule 403 of the Federal
Rules of Evidence requires more attention. The issue is
whether the probative value of the orders “is substantially
outweighed by the danger of unfair prejudice . . . .” The
orders were presented, the government says, to assure the
jury that the wiretaps were legal and to allay any fears
about illegal surveillance.
Even were it necessary to show the jury that the wiretaps
were legal, the admission of the orders is troublesome. The
orders state that there is probable cause to believe that the
conspirators (who are named) “have committed, and are
committing, and will continue to commit violations of of-
fenses involving the receiving, concealment, buying, selling
or otherwise dealing in narcotic or other dangerous drugs . . . .”
The risk of prejudice in revealing that information to the
jury is real. Furthermore, there are other less prejudicial
ways to establish the legality of the wiretaps—a stipulation,
for instance, which would not reveal the exact findings on
which the orders were based (which could have been done
had a clear objection been made to the evidence).
12 Nos. 03-3238, et al.
But all we need decide in this case is whether admission
of the evidence constitutes plain error. Even were we to find
error that is plain, we could not find that the passing
reference to the orders affected either the substantial rights
of the defendants or the fairness or integrity of the judicial
proceedings. There was much more dramatic evidence of the
guilt of the defendants. The admission of the orders is not
so egregious as to affect the fairness of the proceedings. We
reject the contention that the admission of the orders rises
to the level of plain error.
The defendants also claim they should have been allowed
to impeach Hargrove with evidence of his 12-year-old per-
jury conviction. On this issue our review is for an abuse of
discretion.
Federal Rule of Evidence 609(a) provides that evidence of
convictions for crimes punishable by death or imprisonment
for more than one year is admissible if the court determines
“that the probative value . . . outweighs its prejudicial effect
to the accused[.]” Rule 609(b) places a time limit on the
evidence: “Evidence of a conviction under this rule is not
admissible if a period of more than ten years has elapsed
since the date of the conviction . . . unless the court deter-
mines, in the interests of justice, that the probative value
of the conviction supported by specific facts and circum-
stances substantially outweighs its prejudicial effect.”
The defendants argue that the impeachment value of a
perjury conviction can hardly be overstated. That may
sometimes be true. However, the perjury involved in
Hargrove’s case did not involve prior court testimony, but
rather a statement made on an application for a California
driver’s license. Furthermore, the defendants were allowed
to impeach Hargrove with four serious felony convictions,
including convictions for possession of methamphetamine,
for possession of a dangerous weapon, and for committing
an offense while he was on parole. We cannot say that the
Nos. 03-3238, et al. 13
judge abused his discretion by failing to admit the testi-
mony of the stale perjury conviction.
The final trial error which the defendants raise involves
the testimony of Special Agent Douglas Freyberger in his
capacity as an expert on the identification and interpre-
tation of drug code language. The government contends that
the defendants did not object to his qualifications as an
expert, and thus our review on this issue is for plain error.
We are somewhat taken aback by this argument. The
defendants raised an objection as to whether Freyberger
was qualified, pursuant to Rules 702 and 703 of the Federal
Rules of Evidence, to give specific testimony as to “what
words mean in the course of these intercepts . . . .” In
contrast to our discussion regarding the admission of the
wiretap orders, we find the objection here sufficiently clear
to preserve the issue. As we said in United States v. Joseph,
310 F.3d 975, 977 (7th Cir. 2002), in regard to a defendant’s
failure to cite the rule on which the objection was based: “It
is true that defense counsel did not cite Rule 404(b) explic-
itly at the motion-in-limine hearing, but he did say enough
to preserve that ground for appeal. It was clear to everyone
at the hearing that the parties were arguing about Rule
404(b).” See also Fed. R. Evid. 103(a)(1) (to preserve
evidentiary objection for appeal, party must make a “timely
objection or motion to strike . . . stating the specific ground
of objection, if the specific ground was not apparent from
the context”). The objection here was clear. Accordingly, our
review of whether Freyberger was properly qualified as an
expert is de novo and our review of the decision to admit the
testimony is for an abuse of discretion. United States v.
Allen, 269 F.3d 842 (7th Cir. 2001).
Beyond that small victory, however, the defendants fail to
carry the day on this issue. Freyberger was properly
qualified. Under Rule 702, an expert may testify if he has
specialized knowledge and is qualified based on “knowledge,
14 Nos. 03-3238, et al.
skill, experience, training, or education” and his testimony
“will assist the trier of fact to understand the evidence or to
determine a fact in issue.” See Allen, 269 F.3d at 845-46. At
the time of his testimony, Freyberger had been a DEA agent
for 7 years and previously had worked for 5 years as a nar-
cotics canine officer for the United States Customs Service.
He had participated in undercover drug enforcement and had
received special training in conducting wiretap investiga-
tions and had monitored telephone conversations during his
5 years as an agent in Chicago. He had also served as a co-
case agent in two previous wiretap investigations in Evans-
ville, Indiana. We find that this experience, as well as his
specific experience with these defendants, qualified him to
interpret the drug code they used.
We now arrive at the sentencing issues and our proce-
dure, set out in United States v. Paladino, 401 F.3d 471 (7th
Cir. 2005), for implementing the recent decision in Booker
v. United States, 125 S. Ct. 738 (2005), which, as we all know
well by now, made the United States Sentencing Guidelines
advisory. In Paladino we recognized that in some cases it is
possible for us to know—by something a judge said—that he
would have given the same sentence which was imposed
even if he had been prescient enough to know that the
guidelines were advisory. But, we noted, in most cases we
cannot know for sure what the judge would have done. The
cases of McGraw, Lenover, Wolfe, McMillan, and DuRegger
are in the latter category. Gray does not argue that he is
entitled to be resentenced. His life sentence is a result of his
two prior felony drug convictions and the provisions of 21
U.S.C. § 841(b)(1)(A), and not by operation of the sentencing
guidelines.
In sentencing Wolfe, the district judge made comments
which very well might lead us to believe that, in fact,
Wolfe’s sentence could have been less harsh had it not been
for the (then) mandatory guidelines. The judge said:
Nos. 03-3238, et al. 15
This is a harsh sentence. It is a harsh sentence for
several reasons, none of which are mysterious. Congress
says when you involve yourself with this much metham-
phetamine you get ten years to life. The Guidelines
propounded by the Executive Branch of the Government
are very harsh.
But then the judge continued, “[T]hey are harsh for a
reason, and the reason is—that reason you know very well
because you have experienced it, how it [methampheta-
mine] just tears up the family . . . .” Any conclusions we
might draw from that statement are again tempered by the
judge’s further comments about addiction and duress. He
notes that the guidelines “say what they say about depar-
tures and not being available for addiction.” He looks to
another potentially mitigating factor—that is, Wolfe’s
relationship with McGraw, and notes that even a “casual
observer” could see clearly “who was in charge of that rela-
tionship and who caused you to make many of the decisions
that you made.” But he found she did not qualify for a re-
duction in her guideline range for coercion and duress. So,
the judge concluded, “pursuant to the Sentencing Reform
Act of 1984, it is my judgment that you should receive the
minimum under these Guidelines,” which was a whopping
324 months. From this record, it is impossible for us to
know whether the sentence would have been different had
the judge known that the guidelines were advisory and, in
fact, that he could consider factors he was prohibited from
considering under the then-mandatory guidelines.
In sentencing DuRegger, the judge stated that it was his
“responsibility to look at the Guidelines again and see if the
Guidelines take into account the same things I would take
into account if they didn’t exist.” He concluded they did: “I
find in this case that they do take into account exactly what
I would have looked at and what I used to look at before the
Guidelines came into effect.” He noted particularly that
they took into effect the amount of drugs involved, the guns
16 Nos. 03-3238, et al.
involved, and acceptance of responsibility. But later, he
noted that the guidelines had removed some factors from
his consideration: “And one of the things these Guidelines
have done is they have moved from the court’s discretion
and consideration any guidance from what we used to call a
medical model; that is, dealing with addiction as a disease.”
He therefore declined to depart from the guidelines and
said, “[F]ollowing and reading these Guidelines I can’t—I
won’t depart.”
The sentencings of McMillin, Lenover, and McGraw do
not so clearly indicate specific factors which raise the pos-
sibility that the sentences might have been different but for
the guidelines. Nevertheless, in McGraw’s case, the judge
again referred to the “harsh sentences” set out by Congress
and the Sentencing Commission. Similarly, in McMillin’s
case, he again referred to the harsh sentences set out by
Congress and the Sentencing Commission and sentenced
him on the low end of the guideline range. In Lenover’s case,
the judge found again that the guidelines took into account
things he would have considered if the guidelines didn’t exist
and then sentenced Lenover to the middle of the range.
Lenover’s case, particularly, illustrates what we meant in
Paladino when we rejected the notion that if the judge im-
poses a sentence higher than the minimum, he would not
have imposed a “lighter sentence even if he had known the
guidelines were merely advisory.” We said that a “conscien-
tious judge—one who took the guidelines seriously whatever
his private views—would pick a sentence relative to the
guideline range. If he thought the defendant a more serious
offender than an offender at the bottom of the range, he
would give him a higher sentence even if he thought the
entire range too high.” Id.
Because in the cases of these five defendants we cannot
know for sure what the judge would have done had he known
what the Booker decision was going to be, our remedy, as
set out in Paladino, is to ask him. We therefore, pursuant to
Nos. 03-3238, et al. 17
the procedure explained in Paladino, retain jurisdiction of
the appeal and “order a limited remand to permit the sen-
tencing judge to determine whether he would (if required to
resentence) reimpose his original sentence.”
For the foregoing reasons, the judgments of conviction of
all the defendants are AFFIRMED; as to the sentences of
Wolfe, DuRegger, Lenover, McGraw, and McMillin, we direct
a limited remand to the district court as indicated herein
and retain appellate jurisdiction over the case.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-23-05