United States v. Yahtzee Harris ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 21-1405, 21-1468, & 21-1991
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
YAHTZEE HARRIS, ANTONIO WALTON, and CHARLES GOULD,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Indiana, Hammond Division.
Nos. 2:17CR47-002, -001, -012 — Philip P. Simon, Judge.
____________________
ARGUED FEBRUARY 8, 2022 — DECIDED OCTOBER 14, 2022
____________________
Before SYKES, Chief Judge, and SCUDDER and JACKSON-
AKIWUMI, Circuit Judges.
JACKSON-AKIWUMI, Circuit Judge. This case is about a large
drug conspiracy in Gary, Indiana. A grand jury indicted more
than 20 people associated with the conspiracy. Three of them
are now before us on appeal. Charles Gould and Antonio
Walton contend that the district court erred by holding a trial
during the COVID-19 pandemic. Gould further challenges the
sufficiency of the evidence at trial, while Walton challenges
2 Nos. 21-1405, 21-1468, & 21-1991
his sentence. Yahtzee Harris, who pled guilty and did not par-
ticipate in the trial, contends that his written judgment con-
tradicts the district judge’s oral pronouncement of his sen-
tence.
We affirm in all respects the judgments against each de-
fendant. We take this opportunity, however, to clarify the ef-
fect of Harris’s appeal waiver. The government contends that
Harris’s appeal should be dismissed because he waived his
right to challenge his sentence as part of a plea agreement. But
an argument that a written judgment conflicts with a sentenc-
ing judge’s oral pronouncement is not a challenge to the sen-
tence—rather, it is a request for imposition of the actual sen-
tence the judge intended. United States v. Tancil, 817 F. App’x
234 (7th Cir. 2020). Thus, an appeal waiver will generally not
bar this type of claim.
I
The drug conspiracy in this case involved three drug
houses in Gary, Indiana. At the center of the conspiracy was
Walton. He supplied crack cocaine to three people who ran
drug houses: Ben Hickman, Keana Porter, and Harris. Gould
dealt drugs out of a different drug house, run by Keana Por-
ter, with whom he was in a romantic relationship.
Many of the conspirators pled guilty to drug charges, in-
cluding Harris and the other two defendants who ran the
drug houses. Walton, Gould, and a third defendant named
Telisha French went to trial on charges that they conspired to
distribute both powder and crack cocaine in violation of
21 U.S.C. §§ 841 and 846.
After a six-day trial, a jury found Walton and Gould guilty
of conspiring to distribute more than 280 grams of crack
Nos. 21-1405, 21-1468, & 21-1991 3
cocaine. The jury did not find them culpable, however, for any
quantity of powder cocaine. The jury acquitted French of all
charges.
The district court sentenced Walton to 360 months’ impris-
onment, Gould to 168 months’ imprisonment, and Harris to
228 months’ imprisonment. All three defendants received ad-
ditional terms of five years’ supervised release. All three ap-
pealed, and we consolidated the appeals.
II
Gould’s, Walton’s, and Harris’s appeals raise four distinct
issues. We address each issue in turn.
A. The district court did not plainly err by holding a trial
during the pandemic
Gould and Walton contend that their convictions should
be vacated because the district court violated their rights to
due process by holding a trial in the Northern District of In-
diana’s Hammond courthouse during a pandemic. The dis-
trict court set trial for March 9, 2020, which coincided with the
first major wave of the COVID-19 infections in Indiana. Indi-
ana declared a public health emergency three days before jury
selection, and the World Health Organization declared a pan-
demic on the same day that the jury heard opening argu-
ments. Two days later, the President of the United States de-
clared a national emergency, and the Southern District of In-
diana (the only other judicial district in Indiana) suspended
all trials. 1
1 See S.D. Ind. General Order (Mar. 13, 2020),
https://www.insd.uscourts.gov/sites/insd/files/general-
4 Nos. 21-1405, 21-1468, & 21-1991
Outside the presence of the jury, the court acknowledged
the potential effect of the pandemic on the trial and indicated
its intention to keep the trial “moving forward.” The jury con-
tinued to hear evidence through the following week, while
Indiana shut down bars and restaurants. As the pandemic
progressed, the court emphasized to the parties (again, out-
side the presence of the jury) the need to wrap things up and
“get this thing through the system given what’s going on in
the world right now.” The court also cautioned, however, that
the parties should not rush. The trial ended the next day,
March 17, which is also when the Northern District of Indiana
postponed all future trials. 2 The day after that, all courthouses
in the Northern District were closed to the public. 3
Because defendants did not seek a mistrial or adjournment
before the district court, we review the court’s decision to
hold the trial only for plain error. See United States v. Tanner,
628 F.3d 890, 898 (7th Cir. 2010). To succeed under plain-error
review, the defendants must show that “(1) the error com-
plained of actually occurred; (2) the error was clear or obvi-
ous; (3) the error affected [their] substantial rights (i.e., [they]
probably would not have been convicted absent the error);
and (4) the error seriously impugned the judicial proceeding’s
fairness, integrity, or public reputation.” Id.ordes/Court%20General%20Order%20RE%20COVID-19%20-%203-13-20-
Signed.pdf.
2 See N.D. Ind. General Order No. 2020-05 (Mar. 17, 2020),
https://www.innd.uscourts.gov/sites/innd/files/2020-05.pdf.
3 See N.D. Ind. General Order No. 2020-06 (Mar. 18, 2020),
https://www.innb.uscourts.gov/sites/innb/files/2020-06.pdf.
Nos. 21-1405, 21-1468, & 21-1991 5
The Due Process Clause gives criminal defendants the
right to be tried before an impartial jury—that is, one made
up of jurors who can “lay aside [their] impression[s] or opin-
ion[s] and render a verdict based on the evidence presented
in court.” United States v. McClinton, 135 F.3d 1178, 1186 (7th
Cir. 1998) (quoting Murphy v. Florida, 421 U.S. 794, 800 (1975)).
This right is violated when a jury is not capable or willing to
decide the case solely on the trial evidence. Smith v. Phillips,
455 U.S. 209, 217 (1982). And to protect this right, trial judges
should be “ever watchful” for prejudicial occurrences that
could interfere with jurors’ ability to perform this duty. Id.Due process does not require, however, a new trial every
time a juror has been placed in a potentially compromising
situation. Id.; United States v. Moore, 641 F.3d 812, 829 (7th Cir.
2011). For example, in Chandler v. Florida, 449 U.S. 560 (1981),
the defendants challenged the trial court’s decision to televise
their trial, arguing that the sensational media atmosphere un-
fairly influenced the jurors. But because the defendants did
“not attempt[] to show with any specificity that the presence
of cameras impaired the ability of the jurors to decide the case
on only the evidence before them,” the Court refused to set
aside his conviction. Id. at 581. See also Willard v. Pearson, 823
F.2d 1141, 1146–48 (7th Cir. 1987) (broadcast of a trial and ex-
tensive pretrial media coverage about murder victim’s eccen-
tric lifestyle did not violate due process because defendant
did not establish that media coverage influenced the jury).
Defendants’ arguments here suffer from similar shortcom-
ings. Gould and Walton rely on the timing of various events
as evidence that the pandemic presumptively interfered with
the jury’s deliberations: The district court allowed their trial
to move forward even after the state’s other federal judicial
6 Nos. 21-1405, 21-1468, & 21-1991
district (the Southern District of Indiana) suspended jury tri-
als, and the Northern District of Indiana issued a general or-
der suspending proceedings in all cases except theirs on the
day of closing arguments. Defendants insist that halting pro-
ceedings was the only prudent decision in light of the emerg-
ing pandemic.
The record suggests, however, that the jurors carefully
considered the evidence before rendering a verdict. To be
sure, the pandemic would have been on the jurors’ minds in
the waning days of the trial. But we see no evidence that they
rushed a verdict to go home early. The jury returned a mixed
verdict—acquitting Walton and Gould on some counts and
completely acquitting their codefendant French. And the jury
did not deliver that verdict until around 7:00 p.m., after delib-
erating for six hours and asking the court for clarification
about the court’s instructions on how to calculate drug quan-
tity. Because nothing at the time suggested that the pandemic
stopped the jury from deciding the case “solely on the evi-
dence before it,” McClinton, 135 F.3d at 1186, and nothing sug-
gests as much now, the district court did not plainly err when
it decided to finish the trial.
The court’s decision to finish the trial was also reasonable
under the circumstances. Other courts in this circuit, like the
Northern District of Illinois, likewise hesitated to stop crimi-
nal proceedings at the outbreak of the pandemic because of
speedy trial concerns. 4 Such concerns were especially salient
in this case because Gould and Walton had already been in
4 See N.D. Ill. General Order No. 20-0012 (March 12, 2020),
https://www.ilnd.uscourts.gov/_assets/_news/Coronavirus%2020-0012fi-
nal.pdf.
Nos. 21-1405, 21-1468, & 21-1991 7
pretrial detention for two years and would have been entitled
to release had they won at trial. French—who was acquitted—
was in home detention. Indeed, without an objection from de-
fendants, the court could have reasonably believed that de-
fendants wanted the trial to finish so that they would not lan-
guish in pretrial detention for the remainder of an indefinite
pandemic.
Although some district courts shut down earlier in March
2020, the Northern District of Indiana was not an outlier
within this circuit. For instance, the Northern District of Illi-
nois did not suspend criminal proceedings until March 16,
only one day before the Northern District of Indiana did, and
the Western District of Wisconsin did not suspend trials until
after Gould’s and Walton’s convictions. 5 As various courts
scrambled to respond to the pandemic, they balanced in dif-
ferent ways the need to prevent the spread of COVID-19
against the need for continued and efficient adjudication of
criminal trials. The court here reasonably struck that balance
when it decided that it was best to finish a trial that was nearly
complete.
Defendants alternatively argue that the district court de-
prived them of their constitutional right to present a complete
defense. They point to the district court’s comments on the
second-to-last day of trial that “we have to get this thing
through the system given what’s going on in the world right
now,” implying that the court pressured them into resting
5 See N.D. Ill. Amended General Order 20-0012 (March 16, 2020),
https://www.ilnd.uscourts.gov/_assets/_news/Amended%20Gen-
eral%20Order%2020-0012.pdf; W.D. Wis. Admin. Order 362 (March 18,
2020), https://www.wiwd.uscourts.gov/sites/default/files/Admin_Or-
der_362.pdf.
8 Nos. 21-1405, 21-1468, & 21-1991
early. But they do not point to any witnesses they wanted to
call or explain what additional evidence they would have pre-
sented if given extra time. And although the court encouraged
efficiency, it also admonished the parties to finish the trial
“[w]ithout rushing, just try to be efficient.” We are not per-
suaded that this comment had any prejudicial effect.
B. The record contains sufficient evidence to support
Charles Gould’s conspiracy conviction
Charles Gould challenges the jury’s verdict convicting
him of conspiracy to distribute crack cocaine. The govern-
ment’s case against him focused on the drug operation in Por-
ter’s house. Gould conceded to buying drugs from Porter, but
he argued at trial that he was merely a buyer of drugs for his
own personal business and not a co-conspirator.
1. Background
The government introduced evidence that Porter’s house
was used as a stash house for the conspiracy. She would re-
ceive crack cocaine from Walton and repackage it in individ-
ual baggies for resale. She would then hand bundles of bag-
gies through her bedroom window to individual dealers, in-
cluding Gould, who would sell them next door in an aban-
doned “trap house.”
Porter testified that she did not make the dealers pay for
the drugs up front. Dealers would take the drugs, sell them to
end users at the trap house, and then bring the proceeds back
to Porter. Porter kept track of the sales in a ledger, but she
explained that at least some dealers, including Gould, would
also sometimes buy drugs directly from Walton. She further
testified that she would ultimately send any money she gath-
ered back to Walton, and that Gould and another dealer
Nos. 21-1405, 21-1468, & 21-1991 9
named Courtney Crouch acted as couriers, ferrying drugs
and cash between Walton and her. Finally, she testified that
Gould left a gun for her to keep in her bedroom.
When asked about the extent of Gould’s participation,
Porter testified that Gould would sell drugs and bring her the
proceeds “every day.” But on cross examination, the defense
pointed out that Gould was mentioned only a handful of
times in Porter’s ledger. Porter responded that Gould
“maybe” showed up more often in her older ledgers, but she
no longer had those. On redirect, she stated that Gould, and
several other dealers, were underrepresented in the ledger be-
cause they sometimes worked directly with Walton.
The government also introduced text messages that impli-
cated Gould as a member of the conspiracy. On at least two
occasions, Gould texted Porter to ask her to charge walkie-
talkies used by a conspirator who patrolled the area and acted
as security. And on another occasion, he texted Porter to warn
her about police in the area. Gould also texted the other cou-
rier, Crouch, to ask for help searching another dealer. Crouch
testified at trial that he and Gould waited for the dealer and
then searched the dealer’s pockets to see if he was holding any
of Walton’s money.
During closing arguments, Gould did not dispute that he
bought wholesale quantities of crack cocaine from Porter. But
he argued that he did not distribute or sell the drugs for Wal-
ton or Porter as part of their conspiracy. He emphasized an-
other text message that Walton had sent Porter telling her not
to mix Gould’s money with the money from other dealers.
Porter could not explain why Gould’s money had been kept
separate, and Gould argued that Walton would have had no
reason to keep the money separate if Gould was part of the
10 Nos. 21-1405, 21-1468, & 21-1991
same conspiracy. The jury rejected this argument and con-
victed Gould of conspiracy to distribute crack cocaine.
Gould filed a postjudgment motion for acquittal under
Rule 29(c) of the Federal Rules of Criminal Procedure. He re-
iterated the argument he had made to the jury that he should
be acquitted of any conspiracy charges because the govern-
ment had failed to establish that he had more than a buyer-
seller relationship with Porter. The district court denied the
motion, explaining that the record contained evidence that
“Gould wore multiple hats in this conspiracy, including:
dealer, courier, lookout, and enforcer.” A rational jury could
thus find, the court concluded, that Gould had more than a
buyer-seller relationship with the other conspirators.
2. Standard of Review
Gould contends that the district court should have granted
his motion for acquittal. We will reverse a district court’s de-
nial of a Rule 29 motion for judgment of acquittal only if,
viewing all evidence in a light most favorable to the govern-
ment, we conclude that no rational trier of fact could have
found the defendant guilty. See United States v. Jackson, 5 F.4th
676, 682 (7th Cir. 2021) (collecting cases). We defer only to the
jury verdict, however, and do not defer to the district judge’s
ruling. United States v. Garcia, 919 F.3d 489, 496 (7th Cir. 2019).
When reviewing the record and verdict, we afford signifi-
cant deference to the jury’s credibility determinations. “A de-
termination that testimony is incredible is reserved for ex-
treme situations where, for example, ‘it would have been
physically impossible for the witness to observe what he de-
scribed, or it was impossible under the laws of nature for
those events to have occurred at all.’” United States v. Brown,
Nos. 21-1405, 21-1468, & 21-1991 11
973 F.3d 667, 686 (7th Cir. 2020) (quoting United States v. Con-
ley, 875 F.3d 391, 400 (7th Cir. 2017)).
3. Analysis
Gould does not contest that he bought wholesale crack co-
caine from Porter, but he argues that the government did not
present evidence from which a rational jury could find be-
yond a reasonable doubt that he belonged to a conspiracy
with Porter, Walton, or the other defendants. As he points out,
the purchase of wholesale drugs is not enough on its own to
convict a defendant of conspiracy to distribute the drugs.
See United States v. Pulgar, 789 F.3d 807, 812–13 (7th Cir. 2015).
The government must also prove an agreement for the de-
fendant to further distribute the drugs—or otherwise aid the
conspiracy—that is “distinct from evidence of the agreement
to complete the underlying drug deals.” Id. at 812.
Gould argues that we should use what he calls the “John-
son factors” to determine whether he was a member of the
conspiracy or in a buyer-seller relationship. 6 See United States
v. Johnson, 592 F.3d 749, 756 (7th Cir. 2010). But we have re-
peatedly emphasized that “there is no rigid list or formula to
prove a conspiracy in the absence of an express agreement.”
Pulgar, 789 F.3d at 813 (citing United States v. Brown, 726 F.3d
993, 1002 (7th Cir. 2013)). Some cases, like Johnson, may list
6 In Johnson, we said that participation in a conspiracy could be
demonstrated by, among other things: “[1] sales on credit or consignment,
[2] an agreement to look for other customers, [3] a payment of commission
on sales, [4] an indication that one party advised the other on the conduct
of the other’s business, or [5] an agreement to warn of future threats to
each other’s business stemming from competitors or law-enforcement au-
thorities.” Johnson, 592 F.3d at 755–56 (citation omitted).
12 Nos. 21-1405, 21-1468, & 21-1991
“example considerations” that superficially seem like a check-
list of factors. Id. Ultimately, however, we look at the totality
of the circumstances and make a holistic assessment of
whether the jury reached a reasonable verdict. Id.The nonexhaustive factual examples listed in Johnson are
helpful considerations when assessing evidence that Gould
distributed drugs on behalf of the conspiracy, but distribution
is not the only way that someone can contribute to a larger
drug operation. A defendant can also assist a conspiracy by,
for example, acting as a courier, United States v. Vizcarra-
Millan, 15 F.4th 473, 509 (7th Cir. 2021), helping the conspiracy
avoid trouble from competitors or law enforcement, Johnson,
592 F.3d at 756, or by taking other actions to further the
conspiracy, see, e.g., United States v. Hunte, 196 F.3d 687, 691
(7th Cir. 1999) (defendant made hotel reservations for drug
distributors, drove for them, and lied to police about their
activities). Here, the government took a multi-pronged
approach: it sought to establish that Gould not only
distributed drugs on behalf of the conspiracy, but also
participated in other ways such as transporting drugs and
helping with security.
Most of the government’s evidence for Gould’s participa-
tion in the conspiracy comes from Porter’s testimony. Gould
asks us to disregard this testimony as unreliable because Por-
ter had a deal with the government, previously lied to the po-
lice, and gave testimony that he says contradicts her earlier
statements to a detective. But Gould already made these ar-
guments at trial, and the jury—not this court—gets to decide
whether Porter is untrustworthy, or whether her motives
made her testimony not credible. See United States v. Steven-
son, 680 F.3d 854, 857 (7th Cir. 2012).
Nos. 21-1405, 21-1468, & 21-1991 13
Crediting Porter’s testimony, and looking at the totality of
the circumstances, we agree with the government that the
trial record contains sufficient evidence for a rational jury to
find beyond a reasonable doubt that Gould was in a conspir-
acy with Walton and Porter.
For starters, the government put on evidence that Gould
distributed drugs for the conspiracy rather than for his own
independent enterprise. Most significantly, Porter testified
that she fronted drugs to Gould every day, after which he
would sell them at the same trap house used by the conspir-
acy’s other dealers and then return the proceeds to her or Wal-
ton. Repeated, fronted transactions can be compelling evi-
dence of a conspiracy to distribute because it demonstrates
that the defendant has “knowingly thrown his lot in” with the
supplier and has a “keen interest in his co-conspirators’ suc-
cess.” United States v. Hopper, 934 F.3d 740, 755 (7th Cir. 2019)
(quotation omitted).
Gould tries to poke holes in Porter’s testimony by pointing
out that Porter’s ledger documents only a handful of sales to
him, and by highlighting Walton’s text message directing Por-
ter to keep Gould’s money separate. But Porter explained that
the ledger did not include all of Gould’s transactions because
Gould would sometimes deal with Walton directly. Even if
the jury doubted Porter’s testimony that Gould was at the trap
house “every day,” it could still credit Porter’s explanation
that the ledger was incomplete and find that Gould was there
frequently. Likewise, the jury could have inferred that
Gould’s money was kept separate for various reasons. Maybe
Gould was the courier for the money that day and would de-
liver his share himself, or maybe Walton owed Gould money
for other services. The jury was not required to make the
14 Nos. 21-1405, 21-1468, & 21-1991
inferences that Gould wanted: “It is the jury’s job, and not
ours, to gauge the credibility of the witnesses and decide what
inferences to draw from the evidence.” Stevenson, 680 F.3d at
857 (citation omitted).
Even if Gould did not distribute drugs for the conspiracy,
the government presented evidence that he participated in
the conspiracy in other ways. Porter testified that Gould was
one of several couriers who would transport crack cocaine
and money between Walton and Porter, and “courier work
alone may be enough to rule out an alternative buyer-seller
hypothesis.” Vizcarra-Millan, 15 F.4th at 509 (citing United
States v. Salinas, 763 F.3d 869, 877–78 (7th Cir. 2014)). Other
evidence supported an inference that Gould sometimes acted
as an enforcer or helped with security: Crouch testified that
Gould asked him to help search a dealer’s pockets, because
that dealer was suspected of taking money from Walton; text
messages between Gould and Porter showed that he reported
when police were driving through the area; and on at least
two occasions, Gould asked Porter to charge walkie-talkies
used by the trap house’s security guard.
Gould attempts to minimize these actions as isolated inci-
dents in which he acted in his own self-interest. A drug buyer
who tries to protect himself by warning his supplier about in-
coming police or other dangers is not necessarily in a conspir-
acy with the buyer. See, e.g., Johnson, 592 F.3d at 757 (not evi-
dence of conspiracy when buyer called seller to postpone
drug deal because police were nearby). But shaking down
other dealers and proactively aiding in lookout activities for
other drug deals by helping to prepare walkie-talkies are not
the same thing as trying to get the police off one’s own back.
A jury could reasonably infer that Gould took these actions to
Nos. 21-1405, 21-1468, & 21-1991 15
protect the conspiracy, not himself. Taken altogether, Gould’s
actions were sufficient for a reasonable jury to find a conspir-
acy beyond a reasonable doubt.
C. The district court did not reversibly err when sentenc-
ing Antonio Walton
Antonio Walton challenges the district court’s calculation
of the Sentencing Guidelines and what he says is a substan-
tively unreasonable sentence. At Walton’s sentencing hear-
ing, the district court calculated a guidelines range of 360
months to life imprisonment, based in part on its conclusion
that Walton’s prior state convictions made him a career of-
fender under U.S.S.G. § 4B1.1. The court then imposed a
within-guidelines sentence of 360 months.
Walton had asked the court to impose the statutory mini-
mum sentence of 10 years’ imprisonment. He disputed the
government’s characterization that he controlled the opera-
tions at all three drug houses, arguing that two of the drug
houses relied on him merely as a supplier. Walton further ar-
gued that even the bottom of his guidelines range was unrea-
sonably high because, at 44 years old, a 30-year sentence
would be an “effective life sentence.” He compared his guide-
lines range against the average sentence given to other mem-
bers of the conspiracy, which was about 52 months. As miti-
gation evidence, Walton called his wife who testified about
how Walton had helped her recover from a previous abusive
relationship and the active role he played in their family.
The court, however, rejected these arguments. It acknowl-
edged that any guidelines sentence would be lengthy but
thoroughly explained why the sentencing factors under
18 U.S.C. § 3553(a) justified the length. Most significantly, the
16 Nos. 21-1405, 21-1468, & 21-1991
court focused on what it found to be the egregious nature and
circumstances of Walton’s offense: Walton was “at the top of
the pyramid,” supplying a number of other people, including
Harris and Hickman who each had their own network of peo-
ple underneath them; he negatively affected the community
by distributing an “extremely addictive substance” and
bringing guns and other crime to his neighborhood; he “sub-
stantially aggravate[d] the offense” by enlisting family mem-
bers, including his ailing mother; and he took advantage of
drug addicts who were willing to work for drugs, while he
himself had no history of addiction and was motivated solely
by profit. The court further highlighted how multiple prior
prison sentences had not deterred Walton from criminal con-
duct. And in contrast to most defendants the court had sen-
tenced in this and other cases, the court found that Walton’s
childhood had been relatively stable without any characteris-
tics that would mitigate against a lengthy sentence.
In response to Walton’s argument about his codefendants’
sentences, the court explained that it tried to approach multi-
defendant cases in terms of relative culpability. Although
many defendants in this case had received light sentences, the
court found that they played relatively minor roles or were
involved only for a short period of time while addicted to
drugs. Accordingly, the average sentence of conspirators in
this case was not a useful measuring stick. Walton needed to
be sentenced, the court reasoned, relative to his place in the
conspiracy’s hierarchy.
On appeal, Walton first argues that the district court erred
when it concluded that his prior Indiana convictions qualified
as “controlled substance offenses,” thus subjecting him to the
career-offender provision of U.S.S.G. § 4B1.1. But he concedes
Nos. 21-1405, 21-1468, & 21-1991 17
that United States v. Ruth, 966 F.3d 642, 654 (7th Cir. 2020), ap-
plies to his claim. Under Ruth, the district court properly ap-
plied the career offender provision and calculated a guide-
lines range of 360 months to life imprisonment.
Thus, the bulk of Walton’s challenge is to the
reasonableness of his sentence, but here too his argument is
unavailing. We evaluate a sentence’s reasonableness only for
abuse of discretion, recognizing that a within-guidelines
sentence like Walton’s is presumptively reasonable. See
United States v. Castro-Aguirre, 983 F.3d 927, 943 (7th Cir.
2020). And the district court here did not merely rubber stamp
a sentence within the guidelines. The court carefully
considered the applicable factors under 18 U.S.C. § 3553(a)
and explained why the nature of the offense, Walton’s
criminal history, his relative culpability compared to other
defendants, and the general lack of mitigating factors all
warranted a lengthy sentence.
Walton nonetheless contends that the district court cre-
ated an unreasonable disparity when it sentenced him for a
longer prison term than any of his codefendants. He com-
pares himself to Harris and Hickman, two defendants who he
says also ran their own drug operations but received much
lighter sentences. Walton points out that Hickman had the
same career-offender guidelines range as him, but the court
called the range “absurd” as applied to Hickman while none-
theless applying the same “absurd” sentence to Walton. Wal-
ton maintains that, like Hickman, he too was entitled to a
downward departure.
Walton’s disparity argument fails because only “unwar-
ranted sentence disparities” are impermissible. United States v.
Matthews, 701 F.3d 1199, 1204 (7th Cir. 2012) (citing 18 U.S.C.
18 Nos. 21-1405, 21-1468, & 21-1991
§ 3553(a)(6)). And whether Harris or Hickman serve as rea-
sonable comparators to Walton is, at best, debatable. Unlike
Walton, Hickman and Harris each took plea deals—Hickman
even testified at trial. Further, although both Harris and Hick-
man ran branches of the drug conspiracy, the court reasona-
bly concluded that Walton deserved a higher sentence as the
person at the “top of the pyramid” who supplied defendants
like Harris and Hickman.
Hickman may have been subject to the same guidelines
range as Walton, but the district court gave ample explanation
for why a 360-month sentence was “absurd” for Hickman and
not for Walton. Although both defendants had lengthy,
revolving-door style criminal histories, the court found that
Hickman’s mental disabilities contributed to his criminal
history. The court also gave “a lot of consideration” to
Hickman’s cooperation because Hickman potentially
endangered himself by testifying against dangerous
individuals. And whereas Hickman presented mitigating
factors that justified a downward departure, the court noted
a surprising lack of mitigating factors in Walton’s case. The
court further found “substantially aggravat[ing]” Walton’s
practice of enlisting family members and contrasted Walton’s
profit-driven motives against the people he recruited, many
of whom involved themselves in the conspiracy only to fuel
their own drug addictions. In sum, the court reasonably
explained why Walton’s culpability relative to his
codefendants warranted a higher sentence.
Walton’s remaining arguments on appeal all boil down to
policy disagreements with the Sentencing Guidelines, none of
which he raised before the district court. He says that the dis-
trict court should have considered the disparity between the
Nos. 21-1405, 21-1468, & 21-1991 19
guidelines for crack and powder cocaine, and that the guide-
lines exaggerated the seriousness of his nonviolent criminal
history. But even if he had raised these arguments below, a
district court’s failure to sustain this type of policy objection
to the guidelines would not be grounds for reversal. Although
courts have discretion to depart from the guidelines because
of policy disagreements, United States v. Law, 990 F.3d 1058,
1066 (7th Cir. 2021), they are not required to exercise that dis-
cretion. United States v. Rosales, 813 F.3d 634, 637–38 (7th Cir.
2016). “As a general matter, it is not unreasonable for a judge
to agree with the sentencing policy established by Congress
and the Sentencing Commission.” Matthews, 701 F.3d at 1204
(citation omitted).
D. Yahtzee Harris did not waive his appellate argument,
but he fails to identify an impermissible inconsistency
between the oral sentence and written judgment
The final defendant, Yahtzee Harris, challenges what he
says is an inconsistency between the district court’s oral pro-
nouncement of his sentence and its written judgment. Pursu-
ant to a plea agreement, Harris pled guilty to conspiracy to
distribute 280 grams or more of crack cocaine, see 21 U.S.C.
§ 846, and possession of a firearm in furtherance of a drug-
trafficking offense, see 18 U.S.C. § 924. As part of this agree-
ment, Harris also waived his right to appeal or contest his
conviction, sentence, or “the manner in which [his] conviction
or [his] sentence was determined or imposed,” except on
grounds of ineffective assistance of counsel.
During Harris’s sentencing hearing, the district court an-
nounced a sentence of 228 months’ imprisonment, after which
Harris would be “placed on two years of supervision.” The
probation officer then told the court that Harris’s drug
20 Nos. 21-1405, 21-1468, & 21-1991
conviction carried a statutory minimum of five years’ super-
vised release. The district judge explained that he had origi-
nally imposed only two years’ supervision because “I hate
lengthy terms of supervision because I think they’re counter-
productive.” But in light of the probation officer’s clarifica-
tion, the judge said that he would “amend the judgment that
I just announced to five years.” He further explained to Harris
that if Harris did “a good job in the first year” of supervision,
Harris should “petition the Court and I will cut you loose
from supervision because, again, I don’t—no offense to pro-
bation. I think these extended terms of supervision actually
end up being counterproductive to people.”
The court issued its written judgment two days later. The
judgment states that “[u]pon release from imprisonment, the
defendant shall be on supervised release for a term of 5 years
on each count, terms to be served concurrently.” Harris con-
tends that the written judgment is inconsistent with the dis-
trict court’s oral pronouncement because, in his view, the
court orally announced an intention to impose five years’ su-
pervision for only the drug count. He asks us to order the dis-
trict court to amend the written judgment so that his term of
supervision for the gun charge is only two years, consistent
with his understanding.
The government contends that both Harris’s appeal
waiver and the concurrent sentence doctrine bar his appeal.
But for the reasons explained below, we resolve Harris’s ap-
peal on the merits rather than on procedural grounds.
1. Harris’s appeal waiver does not apply to this appeal
The government argues that Harris’s appeal should be
dismissed because he waived his right to appeal his sentence
Nos. 21-1405, 21-1468, & 21-1991 21
or the “manner in which [it] was imposed.” We review the
enforceability of an appeal waiver de novo. United States v.
Johnson, 934 F.3d 716, 719 (7th Cir. 2019).
We have not yet addressed in a precedential opinion
whether an appeal waiver like Harris’s applies to a claim that
a written judgment does not accurately reflect the sentencing
court’s oral pronouncement. But in a recent nonprecedential
decision, we concluded that appeal waivers do not apply to
such claims because defendants like Harris are not challeng-
ing their sentences—they seek the imposition of what they
say is their actual sentences. United States v. Tancil, 817 F.
App’x 234 (7th Cir. 2020).
We agree with Harris that Tancil’s reasoning is sound. Like
this case, Tancil involved a defendant who claimed that the
written judgement did not match the sentencing judge’s un-
ambiguous oral pronouncement of his sentence. The judge
had emphasized that he wanted to give the defendant credit
for time served during the five-plus years the defendant spent
in custody between his plea and the sentencing hearing. But
the written judgment was ambiguous about how the defend-
ant’s sentence should be calculated, and the Bureau of Prisons
did not give the defendant the credit that the judge had in-
tended. The defendant had signed an appeal waiver substan-
tively identical to Harris’s waiver, but we concluded that his
appeal did not fall under the waiver because the defendant
was “not appealing the components of his sentence or the
manner in which his sentence was determined or imposed.
Rather, he merely seeks the imposition of his actual sentence.”
Id. at 236.
The Tancil court’s conclusion naturally flowed from the
rule that a sentencing judge’s unambiguous oral
22 Nos. 21-1405, 21-1468, & 21-1991
pronouncement—not the written judgment—is the defend-
ant’s “actual sentence.” Id. The Due Process and Confronta-
tion Clauses require a defendant’s presence at the imposition
of sentencing. Id. (citing United States v. Agostino, 132 F.3d
1183, 1200 (7th Cir. 1997), and United States v. Medina-Mora,
796 F.3d 698, 700 (7th Cir. 2015)). So in the case of a discrep-
ancy between a written judgment and an unambiguous oral
pronouncement, the oral pronouncement is the real sentence
and a defendant who seeks to impose that sentence is not
“challenging” the district court’s sentence.
We are not persuaded by the government’s request to in-
stead adopt the Fifth Circuit’s contrary view in United States
v. Higgins, 739 F.3d 733 (5th Cir. 2014). The Fifth Circuit rea-
soned that an oral pronouncement and a written judgment are
“both considered the sentence,” and that the common rule
about an oral pronouncement’s precedence is merely a tool to
resolve ambiguities between the “two sentences.” Id. at 739.
But that reasoning conflicts with the general rule that only a
district court’s oral pronouncement is the sentence, and any
conflicting written judgment is a “nullity.” Medina-Mora, 796
F.3d at 700 (collecting cases). Granted, if the oral pronounce-
ment is ambiguous, we may consider the entire record, in-
cluding the written judgment, to resolve the ambiguity and
better understand the oral pronouncement. Id. But the “law is
clear: The only sentence that is legally cognizable is the actual
oral pronouncement in the presence of the defendant.” United
States v. Bergmann, 836 F.2d 1220, 1221 (9th Cir. 1988) (quota-
tions omitted). This principle is further reflected in the Fed-
eral Rules of Criminal Procedure, which specify that a defend-
ant must be present at sentencing. FED. R. CRIM. P. 43(a). Our
unpublished decision in Tancil properly tracks with this un-
derstanding, as does at least one other circuit that has adopted
Nos. 21-1405, 21-1468, & 21-1991 23
Tancil in a published decision. See United States v. Singletary,
984 F.3d 341, 345 (4th Cir. 2021). Higgins, on the other hand, is
an outlier; the government cites no other circuit that has
adopted the Fifth Circuit’s rule, nor have we found any.
We need look no further than Tancil to see the absurd and
unjust results that can happen if a waiver is enforced against
this type of claim. Because of the inartful drafting of the writ-
ten judgment in that case, the Bureau of Prisons would have
enforced a sentence five years longer than the district judge
intended—without any process for the defendant to contest
the written variant at the time of sentencing. At oral argument
in this case, the government suggested that defendants like
Tancil should instead use petitions for writs of mandamus to
avoid their appeal waivers. But the government does not ex-
plain why its interpretation of the appeal waiver would not
also apply to mandamus petitions, nor why such petitions
would be appropriate even though mandamus generally can-
not be used as a substitute for the regular appeal process. See
Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380–81 (2004).
Accordingly, we conclude that the panel in Tancil got it
right, and we join the Fourth Circuit in holding that a defend-
ant’s waiver of his right to challenge his sentence does not bar
him from seeking to have a district court’s oral pronounce-
ment of a sentence imposed when that oral pronouncement
conflicts with the written judgment.
2. We decline to exercise the concurrent sentence doctrine
The government next asks us to rely on the concurrent sen-
tence doctrine, under which we may decline to consider a
challenge to the length of a sentence if the challenged sentence
is shorter than another valid and concurrent sentence. See
24 Nos. 21-1405, 21-1468, & 21-1991
United States v. Brough, 243 F.3d 1078, 1081 (7th Cir. 2001). The
idea behind the doctrine is that review is unnecessary when
the challenged sentence does not affect the total aggregate
punishment. Id.; United States v. Griffin, 652 F.3d 793, 802 n.4
(7th Cir. 2011). The concurrent sentence doctrine applies pri-
marily in habeas cases. E.g., Ruiz v. United States, 990 F.3d
1025, 1033 (7th Cir. 2021). But we have also applied it in some
limited circumstances when a defendant challenges only one
of multiple concurrent prison sentences on direct appeal. E.g.,
Brough, 243 F.3d at 1081; Griffin, 652 F.3d at 802 n.4.
The parties dispute whether the concurrent sentence doc-
trine also applies to concurrent terms of supervision, or in a
case where the written judgment is inconsistent with a judge’s
oral pronouncement. But ultimately, we do not need to decide
whether the concurrent sentence doctrine applies in this con-
text because any application of the doctrine is discretionary.
Ruiz, 990 F.3d at 1033. Harris’s claim fails on the merits, and
we think it prudent to decide his appeal on that simpler basis.
See Estremera v. United States, 724 F.3d 773, 775 (7th Cir. 2013)
(“There is no necessary priority among non-jurisdictional rea-
sons for rejecting a suit or claim.”).
3. Harris’s claim fails on the merits
“We review a claim of an inconsistency between the oral
and written judgments de novo, comparing the sentencing
transcript with the written judgment to determine whether an
error occurred as a matter of law.” United States v. Johnson, 765
F.3d 702, 710 (7th Cir. 2014) (citing United States v. Bonanno,
146 F.3d 502, 511 (7th Cir. 1998)). An unambiguous oral pro-
nouncement always trumps the written judgment. Id. at 711.
But when an orally pronounced sentence is ambiguous, we
can refer to the written judgment to resolve the ambiguity and
Nos. 21-1405, 21-1468, & 21-1991 25
determine the intended sentence. Medina-Mora, 796 F.3d at
700; Bonanno, 146 F.3d at 511. If the written judgment clears
up any ambiguity, we can affirm the sentence as clarified. See
Bonanno, 146 F.3d at 511–12.
Harris’s claim fails because the oral pronouncement does
not contradict the written judgment. At best, the district
court’s oral statements were ambiguous, and the written
judgment merely clarified that ambiguity.
During the sentencing hearing, the district judge initially
said that Harris would “be placed on two years of supervision
upon his release.” The judge did not distinguish between the
individual terms of supervision on each count, most likely be-
cause supervised release terms always run concurrently. See
18 U.S.C. § 3624(e). When the probation officer informed the
judge that Count 1 had a statutory mandatory minimum of
five years’ supervised release, the judge said he would
“amend the judgment that I just announced to five years.”
Our most rational reading of these statements is that the judge
intended to amend the sentence as to both counts: The judge
announced a single term for the concurrent sentences, and
then announced he would amend that term. At best, the
judge’s statements are ambiguous because the court did not
clarify whether it was amending the sentence for both counts.
But even if ambiguous, the written judgment confirms our in-
itial interpretation.
Harris argues that the district judge clearly meant to ex-
tend the supervision period on only Count 1 because (1) the
judge said he “hate[s]” lengthy supervision periods; and (2)
the judge reluctantly increased the length of supervision on
Count 1 only because of the statutory minimum for that
count. But we do not see why the judge’s distaste for lengthy
26 Nos. 21-1405, 21-1468, & 21-1991
supervision bolsters Harris’s case. Knowing that the supervi-
sion for each sentence would be served concurrently, see 18
U.S.C. § 3624(e), the judge reasonably may have kept them the
same for sake of consistency. The judge also encouraged Har-
ris to seek termination of his supervision after one year if he
complied with his conditions during the first year. In other
words, the judge hoped to avoid a lengthy term of supervi-
sion by modifying the sentence shortly after Harris’s release
from prison. In that instance, it would not matter whether his
two terms of supervision matched or whether one was longer
than the other.
We see no need to remand this case for clarification. No
discrepancy exists between the court’s oral pronouncement
and written judgment. And to the extent that the court’s oral
statements are ambiguous when read in isolation, the written
judgment resolves any ambiguity. We affirm the intended
sentence as described in the written judgment.
III
For the reasons stated above, we AFFIRM the judgments
in all three appeals.