In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 02-1411, 02-1607 & 02-3641

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHRISTOPHER B. MESSINO, CHRISTOPHER R.

MESSINO, and CLEMENT A. MESSINO,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 93 CR 294—David H. Coar, Judge.

____________

ARGUED FEBRUARY 23, 2004—DECIDED AUGUST 31, 2004

____________

Before BAUER, EASTERBROOK, andKANNE, Circuit Judges.

BAUER, Circuit Judge. Most of the facts of the trial in this

case are discussed in numerous prior opinions of this court.

United States v. Michelle’s Lounge, 39 F.3d 684 (7th Cir.

1994); United States v. Messino, 55 F.3d 1241 (7th Cir.

1995); United States v. Underwood, 122 F.3d 389 (7th Cir.

1997); United States v. Michelle’s Lounge, 126 F.3d 1006

(7th Cir. 1997); United States v. Messino, 181 F.3d 826 (7th

Cir. 1999). For our present purposes, we can reduce the

discussion to the following:
2 Nos. 02-1411, 02-1607 & 02-3641

1 As all three defendants have the same last name, we use their

familiar names to distinguish among them.

I. Background

From 1980 to 1991, Christopher R. Messino (“Dick”),

Christopher B. Messino (“Chris”), Clement Messino (“Clem”),

and others were embroiled in a wide-ranging conspiracy to

distribute, and possess with intent to distribute, cocaine.1

The rough contours of the conspiracy involved purchasing

kilogram-quantities of cocaine in Florida and transporting

it to Chicago for distribution.

On November 18, 1993, a federal grand jury returned an

indictment made up of 13 counts. At issue in this appeal,

Count One charged Dick, Clem, Chris, Michael Homerding,

Donald Southern, William Underwood, Blaise Messino, Paul

Messino, Thomas Hauck, Gray Chrystall, Daniel Shoemaker,

and Lawrence Thomas with conspiracy to distribute and

possess with intent to distribute cocaine in violation of 21

U.S.C. §§ 841(a)(1) and 846. Counts eight, nine and twelve

charged Chris with distributing cocaine in two separate

transactions, and with engaging in interstate travel in aid

of the distribution conspiracy. Count eleven charged Clem

with money laundering in connection with his purchase of

real estate in Monee, Illinois.

After a convoluted procedural course through the courts,

including three trials, the defendants in this case were convicted on many of the counts in the indictment. They now

appeal various aspects of their convictions and/or sentences.

II. Discussion

A. Christopher R. Messino (“Dick”)

Blakely and Booker explain that “the ‘statutory maximum’

for Apprendi purposes is the maximum sentence a judge
Nos. 02-1411, 02-1607 & 02-3641 3

may impose solely on the basis of the facts reflected in the

jury verdict or admitted by the defendant.” Blakely v.

Washington, 124 S. Ct. 2531, 2537 (2004); United States v.

Booker, 375 F.3d 508, 2004 WL 1535858, at *2 (7th Cir.

July 9, 2004). In this case, the jury found Dick guilty of

conspiring to distribute and possession with the intent to

distribute at least 500 grams but less than five kilograms

of cocaine. At sentencing however, the judge found, by a

preponderance of the evidence, that Dick was responsible

for a conspiracy involving 95 kilograms of cocaine. The

judge also made findings when he imposed enhancements

for obstruction of justice and for being an organizer. That

puts this case squarely in the holdings of Blakely and Booker.

We therefore, vacate Dick’s sentence and remand the case

for resentencing which comports with this opinion.

B. Christopher B. Messino (“Chris”)

Chris makes two arguments in his only brief to this court,

filed on July 9, 2003; both concerning his sentencing

enhancements. In reviewing these claims as presented, we

review the findings of fact for clear error and application of

those facts to the guidelines de novo. United States v. Irby,

240 F.3d 597, 599 (7th Cir. 2001); accord United States v.

Bass, 325 F.3d 847, 850 (7th Cir. 2003) (“This court reviews

de novo whether the district court addressed the proper

factors in imposing an obstruction of justice enhancement,

and reviews for clear error the court’s findings of fact”). We

will find a district court’s findings clearly erroneous if we

are left with the firm and definite conviction that the court

made a mistake. Id.

1. Obstructing or Impeding the Administration of Justice

Chris begins with an argument that the trial court erred

in imposing an obstruction of justice enhancement. The first
4 Nos. 02-1411, 02-1607 & 02-3641

part of the argument centers on the fact that his offending

statements were immaterial to his own sentence and

conviction because they were made during his testimony at

the trial of co-defendants Dick and Clem Messino.

Chris was properly sentenced under the 2000 guidelines.

This court has noted that “[a]n enhancement under § 3C1.1

[Obstructing or Impeding the Administration of Justice]

may be imposed only if the court finds that the defendant

willfully obstructed or impeded the investigation, prosecution, or sentencing by way of conduct related to the defendant’s offense or a closely related offense.” United States v.

King, 338 F.3d 794, 799 (7th Cir. 2003). This language tracks

the guideline itself. U.S.S.G. § 3C1.1. We have construed

“closely related” offenses to include a co-defendant’s trial.

United States v. Gonzalez, 319 F.3d 291, 299 (7th Cir. 2003).

Therefore, it matters not that the offending statements may

have been immaterial to his own guilt or sentencing. So,

this application of the judge’s findings to the guidelines was

proper.

The next question is whether the district court’s findings

of fact were clearly erroneous. In imposing the obstruction

enhancement at Chris’s sentencing, the district court judge

said, “I cannot square [Chris’s] trial testimoney at Dick and

Clem’s trial with either his statements at the plea hearing or

with his statements in the tape recorded conversations or

with the testimony of the other witnesses, many of the other

witnesses in this case.” A review of the record supports this

finding.

After a fairly lengthy argument on this enhancement, the

district court judge found, “I don’t believe that [Chris]

testified truthfully at trial with respect to Clem’s or his

father’s involvement. . . . I think that this defendant has

intentionally and methodically attempted to not [implicate]

them in these matters.” We agree.

The record clearly supports the factual predicate for a

finding of perjury, and therefore, an enhancement under

the guidelines. The enhancement was proper.
Nos. 02-1411, 02-1607 & 02-3641 5

2. Acceptance of Responsibility

Chris’s next argument is based on our reversal of his enhancement for obstruction of justice. He claims that since

the district court erred in imposing the obstruction of justice enhancement, he qualified for a reduction of his sentence for acceptance of responsibility. We review for clear

error. United States v. Partee, 301 F.3d 576, 580 (7th Cir.

2002).

Application note four to section 3E1.1 of the sentencing

guidelines instructs, “[c]onduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant

has not accepted responsibility for his criminal conduct.” As

we discussed above, Chris properly received an enhancement

for obstruction of justice.

Application note one, subsection (h), to section 3E1.1 of the

sentencing guidelines says, “the timeliness of the defendant’s

conduct in manifesting the acceptance of responsibility” is

an appropriate factor in determining whether the defendant

qualifies for the reduction. While it is true that Chris

ultimately pleaded guilty to the charges, he did so only after

he was convicted in a jury trial. That conviction was

reversed “due to an impairment of the defendants’ rights of

peremptory challenges.” Underwood, 122 F.3d at 391. Based

on his obstruction of justice, and his not-so-timely plea of

guilty, we find that the district court did not err in denying

Chris a reduction for acceptance of responsibility.

C. Clement A. Messino (“Clem”)

1. Fatal Variance

Clem’s first argument is that the evidence showed multiple conspiracies as opposed to the one charged in the indictment. Claims of fatal variance, such as this one, are

treated as an attack on the sufficiency of the evidence.
6 Nos. 02-1411, 02-1607 & 02-3641

United States v. Williams, 272 F.3d 845, 863 (7th Cir. 2001).

Even if the evidence at trial shows the existence of multiple

conspiracies, a fatal variance will not be found if a reasonable juror could have found beyond a reasonable doubt that

the defendant was part of the single, charged conspiracy.

Id. We view the evidence in the light most favorable to the

government. Id. Furthermore, reversal is required only if

the defendant can show that the variance worked to

prejudice his defense. Id.

When a defendant joins a conspiracy, he joins an agreement, rather than a group. United States v. Townsend, 924

F.2d 1385, 1390 (7th Cir. 1991). An agreement need not be

explicit; a tacit agreement is sufficient to support a conviction for conspiracy. United States v. Clay, 37 F.3d 338,

341 (7th Cir. 1994). There is no bar to using circumstantial

evidence in proving the conspiracy’s agreement. Id. A

conspiracy may be shown by evidence which shows that the

co-conspirators embraced the criminal objective of the

conspiracy, United States v. Severson, 3 F.3d 1005, 1010

(7th Cir. 1993), that the conspiracy continued towards its

common goal, United States v. Mojica, 185 F.3d 780, 787

(7th Cir. 1999), and that there were cooperative relationships, United States v. Collins, 966 F.2d 1214, 1221-24 (7th

Cir. 1992).

Clem makes too much of the statement, in a previous appeal, that this case presented close questions on whether there

was one conspiracy or multiple conspiracies. Underwood, 122

F.3d at 391. A close call it may be, but properly left to the

jury and the jury ruled against him. Townsend, 924 F.2d at

1389.

Clem and Dick were charged in a cocaine distribution

conspiracy. Clem argues that they had completely separate

cocaine businesses. While it appears that Dick and Clem

had separate groups of customers, they relied on each other in

obtaining the cocaine for their distribution networks. There

were numerous incidents where Clem would run out of
Nos. 02-1411, 02-1607 & 02-3641 7

cocaine and buy ounce amounts from Dick. And, there were

times when Dick would run out of cocaine and he would buy

ounce amounts from Clem. These amounts were generally

stop-gap measures, which prevented their respective

customers from finding another source of drugs. These stopgap amounts allowed the distribution networks to flourish.

Dick and Clem used each other’s houses in Florida—

sometimes as a base of operations and at least once, Dick

picked up drugs from Clem’s condo. The brothers apparently

had free access to each other’s houses. They also referred

customers to each other and referred each other to suppliers. Finally, there were instances when they would split

large amounts of cocaine between themselves.

Chris’s arrest in possession of three kilograms of cocaine

also supports a single conspiracy. Chris flew down to

Florida to pick up cocaine. When he arrived in Florida, he

went to Dick’s condo and told Dick that he was there to pick

up a car for Clem. The evidence shows that Dick knew the

purpose of Chris’s visit. Dick and Underwood drove Chris to

Clem’s Florida condo and helped Chris remove a tarp from

the car. Shortly thereafter, Chris began his drive back to

Chicago; he was arrested and found to be carrying three

kilograms of cocaine.

The charge, conspiracy to distribute cocaine, and the evidence show that there was one overarching conspiracy. It is

of no import that there were also other conspiracies in

action. Townsend, 924 F.2d at 1389. The common goal of

the conspiracy was to distribute cocaine, and that, in this

case, required cooperation between Dick and Clem. As Clem’s

brief notes, “Factors relevant to determining whether a

defendant participated in a conspiracy include whether the

defendant’s acts rendered support to the co-conspirators, . . .

and whether he entered into a cooperative relationship with

the co-conspirators to assist in bringing about the objects of

the conspiracy.” Citing United States v. James, 40 F.3d 850,
8 Nos. 02-1411, 02-1607 & 02-3641

866 (7th Cir. 1994). The facts show that this is exactly what

happened. Without the support of the co-conspirators, Clem

could not have obtained or sold as much cocaine as he did.

Contrary to Clem’s assertions, Clem and Dick were not in

competition—at least not serious competition. If they were

competing, either one could have cut the other off— refuse

to sell them the stop-gap amounts, prevent the use of each

other’s Florida residences, and refuse to refer customers

and suppliers to each other.

Clem also claims that the transactions between himself

and Dick were merely buyer-seller transactions. In United

States v. Duff, 76 F.3d 122 (7th Cir. 1996), we discussed

how to assess whether a relationship is merely buyer and

seller.

Duff frames the issue as “whether the two groups have

agreed to advance a common goal, or whether instead each

has an independent objective that it can achieve on its own, or

at the expense of the other group.” Id. at 126. From the discussion above, it is clear that this was not a simple buyerseller relationship. The brothers’ cooperation advanced the

common goal of cocaine distribution and they could not have

conducted business nearly as well without such cooperation.

Looking at the evidence in the light most favorable to the

government, we have no difficulty in holding that a reasonable juror could have found Clem guilty of the single,

charged conspiracy.

2. Jury Instructions on Multiple Conspiracies

Clem complains of the multiple conspiracy jury instruction

given at his trial. “We review a district court’s decisions with

respect to jury instructions for abuse of discretion, approving on appeal instructions that fairly and accurately

summarize the law and have support in the record.” United

States v. Jefferson, 334 F.3d 670, 672 (7th Cir. 2003) (citation
Nos. 02-1411, 02-1607 & 02-3641 9

and internal quotations omitted). Clem first argues that his

case is distinguishable from the cases which the government relied on in support of the instruction—United States

v. Nava-Salazar, 30 F.3d 788 (7th Cir. 1994), and United

States v. Wilson, 134 F.3d 855 (7th Cir. 1998). Secondly, he

claims that the phrasing of the instruction lessened the

government’s burden of proof from that required by Wilson

and Nava-Salazar.

First, while Nava-Salazar and Wilson are not on all fours

with Clem’s case, they do deal with sub-conspiracies as a

part of a larger, single conspiracy. Both of the cases relied

upon to support the instruction dealt with whether multiple

drug transactions constituted a single conspiracy or a

number of smaller conspiracies. Nava-Salazar, 30 F.3d at

795-97; Wilson, 134 F.3d at 865-66. Clem attempts to

distinguish his case by claiming that the indictment created

an “all or nothing” conspiracy, where the jury had to find

that Dick and Clem were acting in concert as part of a

single conspiracy. The indicted members of the conspiracy

included twelve people. Even if one or more had been

acquitted, it may well have had no effect on the overall

single conspiracy charge as it related to Clem. Moreover, a

prosecutor may prove a conspiracy smaller than the one

alleged. United States v. Payne, 226 F.3d 792, 795 (7th Cir.

2000). The argument made in Clem’s brief, that the jury

instruction given at trial lessened the government’s burden

of proof from that required by Nava-Salazar and Wilson, is

an attack on the given instructions for not being a proper

statement of law. The given jury instruction properly stated

the law and did not lessen the government’s burden of

proof.

The jury instructions from Nava-Salazar and Wilson, and

the instruction given at Clem’s trial were the same in all

material respects. If the jury found that there were multiple

conspiracies, the jury then had to find that the defendant was

part of one of those smaller conspiracies and that the smaller
10 Nos. 02-1411, 02-1607 & 02-3641

conspiracy was included in the overarching conspiracy. The

thrust of Clem’s argument comes from the changing of the

words “may find” from the Nava-Salazar/ Wilson instruction,

to “should find” in his instruction. Either wording is permissive, not mandatory. “Should” may be stronger than “may”

but the difference, in practice, is meaningless.

3. Money Laundering Conviction

Clem attacks his conviction for money laundering under

18 U.S.C. § 1956 in relation to his purchase of approximately

thirteen acres of real estate. The facts underlying this conviction began when Clem entered into a “verbal deal” to

purchase the real estate from John Platek. Over a twelveto fifteen-month period, Clem made a number of cash payments to Platek in amounts of approximately $7,000 each.

Clem received no receipts for these payments. When the

$40,000 constituting the purchase price was paid, Clem

directed his attorney to “close” on the property. Although

Clem was present at the closing, his name appeared nowhere

on the documents involved in the sale. Clem’s attorney was

instructed to prepare a land trust agreement with Kathleen

Lewis, Clem’s girlfriend, and Mary Beth Messino, Clem’s

daughter, as the beneficiaries. Clem told Lewis that he intended to build a house on the property.

The relevant question on appeal is whether any rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. United States v. Reynolds,

64 F.3d 292, 297 (7th Cir. 1995). The money laundering

statute requires the government to prove that the transaction

in question was designed to conceal the nature, location,

source, ownership, or control of the proceeds. 18 U.S.C.

§ 1956(a)(1)(B)(I). This is the only point Clem argues on

appeal.

In United States v. Esterman, 324 F.3d 565, 573 (7th Cir.

2003), we reversed and remanded a defendant’s convictions
Nos. 02-1411, 02-1607 & 02-3641 11

for money laundering. In that case the defendant and a

business partner opened a joint bank account. Id. at 567.

Once the business partner had returned to his native

Russia, the defendant withdrew all of the funds in the account and deposited them into properly identified bank

accounts he controlled. Id. at 567-68. The defendant then

made some retail purchases and gave some money to another individual by writing checks from those accounts or by

withdrawing cash. Id. at 568. We found that these actions

were insufficient to show intent to conceal the source of the

money. Id. at 573. Clem’s case presents more compelling

evidence of intent to conceal.

In Esterman we cited to United States v. Rockelman, 49

F.3d 418 (8th Cir. 1995), with approval. That case is closer

to the facts of this case—close, but not quite. Rockelman

began with the son of the defendant’s girlfriend and the

son’s girlfriend dealing with a realtor. Rockelman, 49 F.3d

at 422. The realtor showed the couple real estate improved

with a cabin and the couple’s $17,000 offer was accepted. Id.

The realtor was told “Uncle” Rockelman, the defendant,

would pay for the property at closing. Id. At the closing,

Rockelman paid $16,756 in cash. Id. The property was titled

in the name of Rockelman’s company—ownership of which

was a matter of public record. Id. The court reversed the

conviction for money laundering saying that upholding it

would turn the money laundering statute into a “money

spending statute.” Id. (quoting United States v. Sanders,

928 F.2d 940, 946 (10th Cir. 1991)). Clem claims that his

case is indistinguishable from Rockelman. We disagree.

Actually, Clem engaged in a strange real estate transaction; it was an oral sale, paid in cash installments without

receipts, where closing did not occur until after the full purchase price had been paid and the land was titled in such a

way that Clem’s name was not associated with the property.

It is also worth noting that the cash transactions were paid

in amounts that avoided the reporting requirements of the
12 Nos. 02-1411, 02-1607 & 02-3641

Internal Revenue Service. Finally, Clem asserts in his brief

that he had no control over the property after closing. Yet,

the record indicates that he intended to build a house on

the property. This is enough under Esterman. Esterman,

324 F.3d at 573 (Stating “unusual secrecy surrounding

transactions, careful structuring of transactions to avoid

attention, folding or otherwise depositing illegal profits into

the bank account or receipts of a legitimate business, use of

third parties to conceal the real owner, or engaging in unusual financial moves culminating in a transaction” is

enough to show intent to conceal). Viewing this evidence in

the light most favorable to the government, we find no error

in Clem’s conviction for money laundering.

4. Sentencing

Clem was indicted and convicted prior to the Supreme

Court’s decision in Apprendi. The indictment did not charge

any specific amount of cocaine nor did the jury make any findings as to amount of drugs. The district court found that

such omissions would not constitute harmless error. After

the court made its own findings as to drug amounts, it

sentenced Clem to the statutory maximum, as defined and

discussed in Apprendi. However, the guidelines mandated

a higher sentence than that allowed by Apprendi because of

the amount of cocaine that the district court found to be

involved in the conspiracy. The judge then imposed partially consecutive sentences on the conspiracy charge and

the money laundering charge to reach the total guideline

sentence.

As Clem’s jury found no specific amount of drugs, but he

was sentenced for over fifty kilograms, his sentence violates

the rule announced in Blakely and Booker. Because we find

that the court erred in sentencing Clem based on its own

factual findings, we vacate the conspiracy sentence and the

consecutive sentence imposed as a result of those findings.
Nos. 02-1411, 02-1607 & 02-3641 13

We likewise vacate the enhancements imposed as a result

of the judge’s findings of fact.

5. Criminal Forfeiture

Clem makes a two-pronged attack on the forfeiture finding. First, he argues that the court used the wrong burden

of proof for the forfeiture proceedings—a preponderance of

the evidence standard as opposed to the beyond-a-reasonable-doubt standard. He supports this argument with

Blakely. The second argument is that the jury was not required to find a nexus between the underlying criminal

activity and the proceeds forfeited. Neither argument requires reversal.

We have previously held that Apprendi has no effect on

criminal forfeiture proceedings because forfeiture provisions

have no statutory maximum. United States v. Vera, 278

F.3d 672, 673 (7th Cir. 2002). Apprendi’s statutory maximum was supplied by the statute of conviction; Blakely’s is

external—the statutory maximum is found not in the

criminal code, but instead, the sentencing guidelines. See

Booker, 2004 WL 1535858, at *1. The criminal forfeiture

provisions do not include a statutory maximum; they are

open-ended in that all property representing proceeds of

illegal activity is subject to forfeiture. Vera, 278 F.3d at 673;

U.S.S.G. § 5E1.4; 21 U.S.C. § 853. Therefore, we conclude

that Blakely, like Apprendi, does not apply to forfeiture

proceedings.

Although couched in terms of a Blakely claim, Clem argues that the jury’s use of the preponderance standard at

the retrial for forfeiture violated his Sixth Amendment rights.

We find that it did not. Libretti states that “the nature of

criminal forfeiture as an aspect of sentencing compels the

conclusion that the right to jury verdict on forfeitability

does not fall within the Sixth Amendment’s constitutional
14 Nos. 02-1411, 02-1607 & 02-3641

protection.” Libretti v. United States, 516 U.S. 29, 49 (1995).

Furthermore, the Supreme Court’s decision in Patterson explains that, “the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements

included in the definition of the offense of which the

defendant is charged.” Patterson v. New York, 432 U.S. 197,

210 (1977). Since forfeiture is not a separate substantive

offense, Libretti, 516 U.S. at 39-40, due process is also not

offended by a preponderance standard.

Clem’s second argument in relation to the forfeiture proceedings is that the court “dispensed with the requirement

that the government show a nexus between property subject

to forfeiture and the facts of the underlying offenses.” Clem

is correct in asserting that there must be a connection

between the forfeited proceeds and the underlying criminal

violations, Libretti, 516 U.S. at 42; 21 U.S.C. § 853, but he

is wrong in asserting that the court dispensed with this

requirement in his case.

Clem’s argument is that the court allowed the prosecution

to inform the new jury that Clem had been convicted of a

drug conspiracy and money laundering. The forfeiture

hearing then proceeded by the government reading portions

of the trial transcript to the jurors. Clem was allowed to

cross-examine the live witness, and he did so. This procedure, Clem says, allowed the jury to find forfeitability

without connecting the money to the conduct that resulted

in conviction. We disagree.

The jury was repeatedly instructed that they were required to find a nexus between the money and the criminal

activity on which the conviction rests. Clem was free to argue, and did, that the money was not connected to the underlying criminal violations. The jury found the property in

question to be forfeitable. We find no error.
Nos. 02-1411, 02-1607 & 02-3641 15

III. Conclusion

To summarize, we vacate Dick’s sentence on the conspiracy to distribute cocaine and money laundering charges and

remand for resentencing. We also vacate the enhancements

applied to his sentence. We affirm Chris’s sentence in its

entirety. As for Clem’s claims, we vacate those parts of his

sentence which relate to drug amounts. We also vacate the

imposition of enhancements for possession of a weapon

during the commission of a drug conspiracy and for being a

leader or an organizer. All other issues Clem raised are

affirmed.

AFFIRMED in part, VACATED and REMANDED in part with

directions.
16 Nos. 02-1411, 02-1607 & 02-3641

EASTERBROOK, Circuit Judge, dissenting in part. I join

the court’s opinion and judgment to the extent that it affirms the convictions. I would affirm the sentences as well,

for the reasons given in United States v. Booker, 375 F.3d

508 (7th Cir. 2004) (dissenting opinion), cert. granted, No.

04-104 (U.S. Aug. 2, 2004). Prudence counsels waiting to

see what the Supreme Court says before resentencing, lest

a re-resentencing lie in store. One question presented in

Booker is what to do next if the statutory provisions requiring

judges to resolve factual disputes that affect federal sentences should be held unconstitutional. Until the Supreme

Court has spoken, not only what to do, but also how to do it,

is uncertain. I trust that we will hold the mandate until

Booker’s final resolution, and that the district judge will sit

tight even if we let the mandate go earlier.

One comment on an issue implied rather than addressed

in my colleagues’ opinion. In supplemental briefs filed after

oral argument, the United States contended that the

defendants had not adequately preserved an argument

based on Blakely v. Washington, 124 S. Ct. 2531 (2004), and

that our review therefore is limited to a search for plain error.

All three members of the panel disagree with that position.

Both Dick Messino and Clem Messino advanced in their

opening briefs arguments based on Apprendi v. New Jersey,

530 U.S. 466 (2000), which led to Blakely and Booker. True,

appellants did not develop these arguments at length in

either the district court or their appellate briefs, but the law

was so firmly against them that elaboration would have

been pointless. When precedent is adverse, a few sentences

flagging the point suffice to preserve an argument for resolution by a higher court. Thus the appropriate question (if

Booker is correct) is whether the error was harmless, and if

I were to indulge the assumption that Booker got it right I

would agree with my colleagues that the error is not

harmless.
Nos. 02-1411, 02-1607 & 02-3641 17

Still, a claim must be advanced, if it is to be preserved,

even when all precedent is contrary. See Bousley v. United

States, 523 U.S. 614, 622-23 (1998); Monsanto Co. v. SprayRite Service Corp., 465 U.S. 752, 761-62 n.7 (1984); Engel v.

Isaac, 456 U.S. 107, 130 n.35 (1982). A point raised belatedly leads to relief only if the standards for plain- error

review are met. We know from United States v. Cotton, 535

U.S. 625, 631-34 (2002), that an Apprendi error does not

justify reversal under the plain-error standard because it

does not seriously affect the fairness, integrity, or public

reputation of judicial proceedings. Although Cotton said

that the evidence in that case was overwhelming (which

may or may not be true of the evidence that led to the

Messinos’ sentences), it did not imply that any sentence

based on a preponderance of the evidence must be vacated,

and I see no good reason why it should. Cf. United States v.

Knights, 534 U.S. 112, 117-18 (2001).

Judges, no less than jurors, resolve factual disputes accurately, and decision under the preponderance standard

(the norm before Booker) is reliable. That’s why the Court

held in Schriro v. Summerlin, 124 S. Ct. 2519 (2004), that

another of Apprendi’s sequels does not apply retroactively

on collateral review. Although the plain-error standard differs formally from the standard for retroactive application,

whether an error gravely undermines the reliability of the

outcome is common to the two inquiries. Given Schriro and

opinions such as United States v. Watts, 519 U.S. 148 (1997),

we cannot say that judicial resolution of factual disputes on

a preponderance is so mistake-prone that reversal is apt

under the plain-error standard. It would be weird to hold

that a sentencing process used since 1987 with the Supreme

Court’s approbation (see, e.g., Edwards v. United States,

523 U.S. 511 (1998)), plus the support of all federal circuits

even after Apprendi, now must be deemed so unreliable

that it undermines the fairness, integrity, and public

reputation of judicial proceedings. Accord, United States v.
18 Nos. 02-1411, 02-1607 & 02-3641

Duncan, 2004 U.S. App. LEXIS 17250 (11th Cir. Aug. 18,

2004) (Guideline sentences based on facts found by judges

ought not be set aside under the plain-error standard).

Challenges raised initially after the district judge has imposed sentence therefore must fail even if the Supreme

Court affirms in Booker; but, when Apprendi-based arguments have been properly preserved, relief is appropriate

because a Booker error is not harmless.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-31-04