Honorable Robert M. Dow, Jr., United States District Judge 

for the Northern District of Illinois, is sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 08-2655 & 08-2661

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BERNARD DOUGLAS,

Defendant-Appellant.

Appeals from the United States District Court

for the Central District of Illinois.

Nos. 04 CR 10074 & 07 CR 10080—Michael M. Mihm, Judge.

ARGUED MAY 4, 2009—DECIDED JUNE 17, 2009

Before KANNE and EVANS, Circuit Judges, and DOW,

District Judge.



KANNE, Circuit Judge. This is a sentencing appeal. On

February 6, 2008, the defendant, Bernard Douglas, pled

guilty to conspiring to distribute more than five kilograms of cocaine and more than fifty grams of crack in
2 Nos. 08-2655 & 08-2661

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Douglas

was serving a three-year term of supervised release for

a prior offense, the terms of which Douglas violated by

his role in the conspiracy. On June 27, 2008, the district

court sentenced Douglas to a total of 258 months in

prison: 240 months for the conspiracy and eighteen

months for the supervised release violation, the two

sentences to be served consecutively. Douglas now challenges both components of his sentence.

We turn first to his sentence on the drug conspiracy

charge. At sentencing, Douglas objected to the offense

level calculation contained within his Presentence Investigation Report. Specifically, Douglas questioned two

upward adjustments recommended in the report: the

first for Douglas’s purported leadership role in the conspiracy, see U.S. Sentencing Guidelines Manual (“U.S.S.G.”)

§ 3B1.1(c); the second for his alleged obstruction of justice,

see id. § 3C1.1. The report recommended an upward

adjustment of two points on each ground, see id.

§§ 3B1.1(c), 3C1.1, for a total adjustment of four points.

After adding these four points to Douglas’s base offense

level of thirty-four, and subtracting three points for

Douglas’s acceptance of responsibility, the report recommended a total offense level of thirty-five.

The court adopted the recommended enhancements

over Douglas’s objection. An offense level of thirty-five,

combined with Douglas’s category V criminal history,

placed his Guidelines sentencing range between 262 and

327 months in prison. The court, however, went below

the Guidelines range to sentence Douglas to the
Nos. 08-2655 & 08-2661 3

statutory minimum of 240 months for his role in the drug

conspiracy.

On appeal, Douglas argues that the district court erred

in applying the leadership and obstruction of justice

enhancements. We need not delve into the details of his

arguments, however, because even assuming that there

were errors, there is nothing we could do to change the

imposed sentence, which the court rendered pursuant to

a statutory minimum. Under these facts, any potential

error was harmless.

Because Douglas had a prior felony drug conviction in

Illinois state court, 240 months was the minimum prison

sentence permitted by statute. See 21 U.S.C. § 841(b)(1)(A)

(“If any person commits such a violation after a prior

conviction for a felony drug offense has become final,

such person shall be sentenced to a term of imprisonment which may not be less than 20 years . . . .”). As we

have stated, “[a]djustments . . . matter to the Guidelines’

sentencing range but do not affect statutory minimum

sentences.” United States v. Rivera, 411 F.3d 864, 866 (7th

Cir. 2005). Thus, even if we were to remand for

resentencing based on an error in calculating the Guidelines range, the statutory minimum would still control,

meaning that Douglas’s new sentence could not possibly

be less than his first. See id.; see also U.S.S.G. § 5G1.1(b)

(“Where a statutorily required minimum sentence is

greater than the maximum of the applicable guideline

range, the statutorily required minimum sentence shall

be the guideline sentence.”).
4 Nos. 08-2655 & 08-2661

Any error, therefore, would be harmless by definition, a

fact that we have recognized repeatedly. See, e.g., Rivera,

411 F.3d at 867 (“Booker does not confer on district judges

any discretion to give sentences below statutory floors.

Any error the district judge may have made in

resolving factual disputes in order to apply the Guidelines was harmless.”); United States v. Giacometti, 28 F.3d

698, 704 (7th Cir. 1994) (“In certain cases we know the

error is harmless: when, for example, the district court . . .

erred on the high side but the sentence could not have

been any lower because of a statutory minimum.”);

United States v. Kozinski, 16 F.3d 795, 812 (7th Cir. 1994)

(finding a sentencing error harmless and refusing to

remand for resentencing when “the district court was

obligated to impose the sentence it did”); see also United

States v. Lee, 399 F.3d 864, 866 (7th Cir. 2005) (“Nothing

in Booker gives a judge any discretion to disregard a

mandatory minimum, so there [is] no need to speculate

about prejudice.”). This outcome renders superfluous

any further analysis of Douglas’s attack on his conspiracy sentence.

We next turn to Douglas’s challenge to his eighteenmonth prison sentence for violating the terms of his

supervised release. This argument borders on frivolity,

and we reject it out of hand. Douglas does not argue

that the district court miscalculated the appropriate

Guidelines range, which was eighteen to twenty-four

months. See U.S.S.G. § 7B1.4. Nor does he suggest that the

two sentences were not to run consecutively. See id.

§ 7B1.3(f). In fact, aside from the heading in his brief, he

does not appear to contest the eighteen-month portion

of his sentence at all.
Nos. 08-2655 & 08-2661 5

For purposes of argument preservation, Douglas also con- 1

tends that his sentence violated the Sixth Amendment, a

claim that he concedes has been resolved by the Supreme

Court. See Almendarez-Torrez v. United States, 523 U.S. 224 (1998).

6-17-09

Instead, he focuses on a comment made in passing by

the district judge after handing down both sentences:

“[The combined sentence of 258 months] is actually less

than the bottom of the guideline range on the original

sentence [of 262 months on the conspiracy charge alone].”

Douglas tries to cloak this statement in procedural robes,

which would trigger de novo review. See United States v.

Mendoza, 510 F.3d 749, 754 (7th Cir. 2007). But the court’s

commentary was more a mathematical truism—akin to

one plus one is less than five—than a rung in the ladder

of sentencing procedure. Simply characterizing the statement one way or another does not change its nature.

In essence, Douglas’s challenge, ostensibly to the

“procedure” used to sentence him for violating the

terms of his supervised release, is an attempt at backdoor

review of the conspiracy sentence. If the district court

had correctly calculated the Guidelines range on the

conspiracy charge, Douglas argues, the aforementioned

statement would have been incorrect. But we have

already discarded Douglas’s challenge to the conspiracy

sentence. Douglas’s nonexistent “challenge” to the

eighteen-month sentence fails.1

Douglas’s sentence is AFFIRMED.