In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1666

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TONY CURRIE,

Defendant-Appellant.

Appeal from the United States District Court for the 

Southern District of Indiana, Indianapolis Division.

No. 1:10-cr-0093-SEB-KPF — Sarah Evans Barker, Judge.

ARGUED OCTOBER 25, 2012 — DECIDED JANUARY 7, 2014

Before FLAUM, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Defendant-Appellant Tony Currie

pleaded guilty to charges that he conspired to distribute 50

grams or more of cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1) and 846, and possessed a firearm following a

felony conviction, in violation of 18 U.S.C. § 922(g)(1). The

district court ordered him to serve a prison term of 121 months,

at the low end of the range advised by the Sentencing Guidelines and just above what the court and the parties believed to
2 No. 12-1666

be the statutory minimum prison term of ten years. Currie

appeals, contending that the district court erroneously denied

his motion to suppress evidence without conducting an

evidentiary hearing and that its choice of sentence was

premised on its mistaken understanding that the new, lower

mandatory minimums specified by the Fair Sentencing Act of

2010 did not apply at Currie’s sentencing. We find no error in

the district court’s decision to deny Currie’s motion to suppress without an evidentiary hearing. As to his sentence, we

order a limited remand for purposes of ascertaining whether

the district court would be inclined to sentence Currie differently knowing that Currie is subject to the lower statutory

minimum term of five years as provided by the FSA

I.

Following his own arrest in February 2010 for possession of

distribution-sized quantities of cocaine and crack cocaine, an

unnamed individual agreed to cooperate with the authorities

and lead them to his supplier, Currie. The confidential source

(“CS”) proceeded to make a series of controlled, recorded

purchases of crack cocaine from Currie. These purchases led to

the issuance of a search warrant for Currie’s residence; the

ensuing search in turn produced evidence of a loaded revolver

in Currie’s home.

The first of the controlled buys took place on March 4, 2010.

After a series of monitored phone calls to arrange the purchase

of 1.5 ounces of crack cocaine from Currie, the CS met Currie

at a residence in Anderson, Indiana. The CS was wired with

equipment which produced a video and audio recording of the

encounter. The CS followed Currie into the kitchen, where
No. 12-1666 3

Currie presented him with a plastic bag containing roughly 91

grams of cocaine base. At Currie’s request, the CS proceeded

to re-cook the cocaine base; Currie then re-weighed the

substance on a digital scale (it now weighed 96 grams) and repackaged it for the CS. The CS paid Currie the agreed-upon

price and left the residence.

The CS subsequently engaged in two more controlled

purchases of crack cocaine from Currie on March 12 and March

18, 2010. These transactions were not recorded on video, but

audio recordings were made in both instances. Moreover, as

withtheMarch4purchase, both transactions were preceded by

recorded telephone calls in which the CS arranged to make the

purchases from Currie.

On May 10, 2010, the government sought and obtained a

search warrant for Currie’s residence in Indianapolis. The

affidavit submitted in support of the warrant request noted

that the government’s CS hadmade three controlled purchases

of cocaine from Currie in March. The affidavit reported the

CS’s prior criminal history, noted that the CS had been

cooperating with the government since February 2010, and

indicated that much of the information supplied by the CS had

been corroborated. The CS’s three transactions with Currie

were then described in detail, along with the fact that the

purchases were both recorded by the CS and preceded by

consensually monitored telephone calls between the CS and

Currie. The agent who prepared the affidavit indicated that he

had reviewed the video recording of the March 4 transaction.

He described the actions depicted on that video and averred,
4 No. 12-1666

based on his training and experience, that the substance that

Currie handed to the CS was, in fact, cocaine base. 

The search warrant was executed on May 11, 2010. Upon

entering the residence, agents found Currie in his bedroom,

attempting to hide a loaded revolver in the closet. Various

indicia of drug trafficking were also found in the residence.

The discovery of the gun led to the inclusion of a felon-inpossession charge along with the five narcotics-related charges

in the indictment that the grand jury returned against Currie

on June 8, 2010. Currie subsequently moved to suppress the

results of the search on multiple grounds. As relevant here, he

contended that the affidavit submitted in support of the

warrant application was insufficient, absent the CS’s own

testimony, to establish the CS’s reliability and thus to establish

probable cause for the search. Currie also contended that the

CS had provided misleading information to law enforcement

officers which had made its way into the affidavit. Pursuant to

Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978), Currie

asked the district court to conduct an evidentiary hearing on

this second contention.

The district court denied the motion to suppress without a

hearing. The court described Currie’s attack on the sufficiency

of the warrant affidavit vis-à-vis the CS’s credibility as “a nonstarter,” given that the CS’s transactions with Currie had been

both monitored and recorded, and the agent who prepared the

affidavit described the steps taken in that regard as well as

what he saw and heard in reviewing the recordings. R. 73 at 7.

Consequently, “[t]here was no reliance placed on the CS’s

independent, unilateral, unsupervised actions or statements,”
No. 12-1666 5

and no need for additional information (or live testimony from

the CS) to document the CS’s reliability and to establish

probable cause for the search warrant. R. 73 at 7. “We find the

Affidavit to be both detailed and thorough, with no critical

omissions or unsubstantiated, unreliable averments.” R. 73 at

8. The court saw no need for an evidentiary hearing on Currie’s

additional claim that the affidavit contained misleading

information. “There is no evidence that [the agent] ‘knowingly,

intentionally, or with a reckless disregard for the truth, made

false statements in the warrant affidavit and that the false

statements were necessary for the judicial officer to conclude

that probable cause existed.’” R. 73 at 9 (quoting United States

v. Norris, 640 F.3d 295, 300–01 (7th Cir. 2011)).

Currie subsequently decided to change his plea while

reserving his right to appeal the adverse ruling on his motion

to suppress. As we indicated at the outset, Currie pleaded

guilty to the narcotics conspiracy and felon-in-possession

charges. Although Currie was sentenced after the enactment of

the Fair Sentencing Act of 2010, 124 Stat. 2372 (the “FSA”), the

parties, the probation officer, and the district court, in accord

with this court’s decision in United States v. Fisher, 635 F.3d 336

(7th Cir.), reh’g en banc denied, 646 F.3d 429 (7th Cir. 2011),

vacated & remanded sub nom. Dorsey v. United States, 132 S. Ct.

2321 (2012), assumed that the more favorable statutory

penalties specified by the FSA did not apply at Currie’s

sentencing because his offenses were complete before the FSA

took effect; therefore they assumed that Currie was subject to

a minimum statutory prison term of ten years. The court

ordered Currie to serve a term of 121 months, a sentence at the

low end of the range advised by the Sentencing Guidelines and
6 No. 12-1666

one month above what the court believed was the statutory

minimum.

II.

Currie’s contention that the affidavit is on its face inadequate is, as the district court observed, going nowhere. The

contents of a warrant affidavit will establish probable cause to

search if, based on the totality of the circumstances, the

affidavit presents evidence supporting a reasonable belief that

the search of the subject premises will produce evidence of a

crime. Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332

(1983). Currie’s attack on the sufficiency of the affidavit focuses

on the credibility of the CS: Currie maintains that the affidavit

does not supply enough information to establish the CS’s

reliability as an informant. See, e.g., United States v. Searcy, 664

F.3d 1119, 1122 (7th Cir. 2011) (outlining factors which inform

assessment of informant’s credibility). But in this case, the key

information set forth in the affidavit had to do with the three

controlled purchases of cocaine from Currie. Those transactions were both monitored and recorded by the authorities, so

the story as to what occurred did not rest on the CS’s account

alone. Indeed, the agent who prepared the affidavit had

reviewed the audiovisual recording of the first of the sales and

described what the recording showed: that Currie handed a

bag of what appeared to be crack cocaine to the CS, had the CS

re-cook it, and then repackaged the cocaine for the CS. That

recording, and the audio recordings of the other two sales,

supplied all the corroboration of the CS that was necessary.

The affidavit was therefore sufficient on its face, and there was

no need for the magistrate judge who issued the search
No. 12-1666 7

warrant to hear testimony from the CS before determining that

probable cause existed to search Currie’s residence.

Nor was it necessary for the court to convene a Franks

hearing based on Currie’s assertion that the warrant affidavit

repeated false or misleading information supplied by the CS.

A court must convene a Franks hearing when the defendant

makes a substantial preliminary showing that authorities

deliberately orrecklessly made material misrepresentations in

the affidavit used to procure the search warrant. 438 U.S. at

155–56, 98 S. Ct. 2676; see also, e.g., United States v. Harris, 464

F.3d 733, 738 (7th Cir. 2006) (defendant is entitled to Franks

hearing when he shows that (1) warrant affidavit contained

materially inaccurate information, (2) authorities knew of or

recklessly disregarded the inaccuracy, and (3) purportedly

inaccurate statement was necessary to the finding of probable

cause). In this case, Currie never identified any particular

aspect of the warrant affidavit that was false or misleading (let

alone deliberately or recklessly so); he instead sought a Franks

hearing based solely on a generalized allegation that the CS

provided misleading information to investigators which made

its way into the affidavit. Indeed, even on appeal, Currie has

failed to identify any averment in the warrant affidavit which

was false or misleading. Under these circumstances, the court

committed no errorin denying the motion to suppress without

an evidentiary hearing. See, e.g., United States v. Johnson, 580

F.3d 666, 671 (7th Cir. 2009) (“Conclusory, self-serving statements are not enough to obtain a Franks hearing.”) (citing

Franks, 438 U.S. at 171, 98 S. Ct. at 2684). 
8 No. 12-1666

We turn to the matter of Currie’s sentence. Currie pleaded

guilty to conspiring to distribute 50 or more grams of crack

cocaine. At the time of his offense, committed in the spring of

2010, that quantity of crack cocaine triggered a statutory

minimum prison term of ten years. By the time Currie was

sentenced in March 2012, the Fair Sentencing Act of 2010 had

lowered the statutory minimumterm applicable to someone in

Currie’s position to five years. However, given our holding in

Fisher, 635 F.3d 339–40, that the new statutory minimums did

not apply to defendants whose offenses predated the Act, the

parties and the court assumed that Currie was still subject to

the ten-year minimum. Several months after Currie was

sentenced to a term of 121 months, the Supreme Court held in

Dorsey that the FSA applies to any defendant sentenced after its

effective date, even if the offense was committed before the

Act’s enactment. Dorsey, 132 S. Ct. 2321. 

We now know that Currie was subject to a statutory

minimum term of five years and not ten years, as the district

court presumed. Although Currie did not preserve an argument below that the lower minimum term specified by the FSA

applied to him, he contends that the court committed plain

errorin deeming him subject to the pre-FSA ten-year minimum

and that he is, consequently, entitled to resentencing. See Fed.

R. Crim. P. 52(b). Given the Supreme Court’s decision in

Dorsey, there is no dispute that the district court committed an

error which is, in retrospect, plain in the sense of being

obvious. See Henderson v. United States, 133 S. Ct. 1121, 1127–28

(2013). The disputed issue is whether Currie was prejudiced by

the error, in the sense that he might have received a lesser

sentence had the court realized he was not subject to the ten-
No. 12-1666 9

year minimum. See United States v. Olano, 507 U.S. 725, 734–35,

113 S. Ct. 1770, 1777–78 (1993); United States v. Paladino, 401

F.3d 471, 483 (7th Cir. 2005). Currie contends that because the

court, in sentencing him to a 121-month term, remarked that it

was bound by the ten-year minimum, there is every reason to

believe that his sentence was the product of the court’s

mistaken belief as to the statutory minimum. The government,

on the other hand, emphasizes the court’s additional remark

that the 121-month term was a fair sentence, an observation

that in its view makes clear the court would have imposed the

same sentence even had it realized that it was not bound by the

statute to impose a minimum term of ten years.

We take our cue in resolving this dispute from Paladino, 401

F.3d at 483–84. In the wake of the Supreme Court’s decision in

United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), which

rendered the Sentencing Guidelines advisory, Paladino established our framework for deciding whether a district court’s

mistake in treating the Guidelines as binding constituted plain

error. Paladino recognized that the answer to that inquiry turns

on prejudice. 401 F.3d at 481–84; see also United States v. Lee, 399

F.3d 864, 866 (7th Cir. 2005) (“In order to show plain error the

defendant must establish, among other things, that the error

‘affected substantial rights’—which is to say that it made the

defendant worse off.”). As a reviewing court, we could say that

the error did not prejudice the defendant if it was clear that the

sentencing judge would have imposed the same sentence

absent the error. Paladino, 401 F.3d at 483. The difficulty, as we

recognized, was in determining what the sentencing judge

would have done had he realized he was not bound by the

Guidelines range. 
10 No. 12-1666

[S]entencing is not either-or; it is the choice of a

point within a range established by Congress, and

normally the range is a broad one. There are exceptions, notably where the choice is between death and

life in prison; then, as in Jones v. United States, 527

U.S. 373, 402–05, 119 S. Ct. 2090 (1999), it may be

feasible for the appellate court to determine that

despite the error the choice would have been the

same. Cf. United States v. Cotton, 535 U.S. 625,

633–34, 122 S. Ct. 1781 (2002). That is not true here;

here, unless any of the judges in the cases before us

had said in sentencing a defendant pre-Booker that

he would have given the same sentence even if the

guidelines were merely advisory (which none of the

judges did say), it is impossible for a reviewing

court to determine—without consulting the sentencing

judge (a pregnant qualification, as we are about to

see)—whether the judge would have done that. 

401 F.3d at 482 (emphasis in original). In some number of

cases, we recognized, it will be possible to predict what the

sentencing judge would have done without having to ask, as

when the judge departed below the Guideline range to impose

a sentence at the statutory minimum, or conversely, when she

imposed a sentence at the statutory maximum and remarked

that he would have sentenced the defendant to a longer term

if she could. Id. at 482–83; see also Lee, 399 F.3d at 866–67. Short

of such clues, “[t]he only practical way (and it happens also to

be the shortest, the easiest, the quickest, and the surest way) to

determine whether the kind of plain error argued in these cases

has actually occurred is to ask the district judge.” Paladino, 401
No. 12-1666 11

F.3d at 483. If the judge indicates that she would not have

sentenced the defendant differently had she realized the

Guidelines were not binding, then we would conclude that the

defendant was not prejudiced by the error and we would

proceed to affirm the sentence so long as it was reasonable. Id.

at 484. If, on the other hand, the district court indicated that it

would be inclined to impose a different sentence, that prejudice would be established, and we would vacate the judgment

and remand for resentencing. Id.

Here the district court was similarly mistaken as to the

limits of its sentencing authority. Rather than being bound by

a ten-year statutory minimum, the court was instead bound by

a significantly lower five-year minimum. In assessing whether

Currie was prejudiced by the error, such that he is entitled to

relief under the plain error doctrine, we apply the Paladino

model. See United States v. Maxwell, 724 F.3d 724, 729 (7th Cir.

2013).

Here, competing inferences can be drawn from the record

as to what the sentencing judge might have done had she

known that she was not bound by the ten-year minimum. This

is the relevant passage from the judge’s remarks at sentencing:

Everybody agrees, Mr. Currie, that 121 months, even

though it’s the low point of the guidelines, and it

pretty much nails the mandatory minimum on the

head, is a long time. So we can’t pull any punches on

that. We know that’s the fact, but it seems to be a

reasonable sentence under the circumstances, not

only because of what the law requires, but given the

nature and circumstances of this offense and your
12 No. 12-1666

prior criminal history, and your problems with

addiction, your willingness to participate in this

cocaine conspiracy, your possession of firearms,

even when you had a prior gun conviction, you had

a firearm again, and so on.

R. 136 at 26–27. The government construes Judge Barker’s

remark that the 121-month sentence “seems to be a reasonable

sentence under the circumstances” as a signal that she would

have imposed the same sentence even had she realized she was

not bound by the ten-year minimum. Currie, on the other

hand, contends that the judge’s view as to the reasonableness

of a 121-month sentence was necessarily premised on her

mistaken belief that ten years was the minimum sentence she

could impose. Having reviewed the sentencing transcript

ourselves, we cannot say with complete confidence that the

court would have imposed the same sentence regardless of the

statutory minimum.

As in Paladino, a limited remand is the most prudent way

to resolve all doubt on this question. As the government

concedes, at no time did the district judge actually say that she

would have imposed the same sentence even were there no

ten-year minimum; nor does her choice of sentence otherwise

make that clear in one of the ways we discussed in Paladino or

Lee. The judge did say that the sentence was “a reasonable

sentence under the circumstances, not only because of what the

law requires,” R. 136 at 26 (emphasis ours), but for the other

reasons she articulated; and perhaps by that she meant to say

it was the sentence she would have chosen regardless of any

minimum. But the statutory minimum was necessarily one of
No. 12-1666 13

the circumstances that the judge had to consider in ascertaining

a reasonable sentence. See, e.g., United States v. Lyons, 733 F.3d

777, 784 (7th Cir. 2013). Statutory minima and maxima have an

obvious anchoring effect on the judge’s determination of a

reasonable sentence in the sense that they demarcate the range

within which the judge may impose a sentence. See United

States v. Aguilar-Huerta, 576 F.3d 365, 366 (7th Cir. 2009)

(describing pre-Guidelines sentencing practice). Peugh v.United

States, 133 S. Ct. 2072, 2082–84 (2013), makes this same point

with respect to the Sentencing Guidelines. The Court in Peugh

held that the Constitution’s ex post facto clause is violated when

a court sentences a defendant using a post-offense version of

the Guidelines that produces a higher sentencing range than

the version in effect at the time of the defendant’s crime. In

rejecting the view of this and other courts that the advisory

nature of the Guidelines obviates any ex post facto problem

(because a judge is free in the exercise of her discretion to

impose a sentence outside of the Guidelines range, see United

States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006)), the Supreme Court emphasized that the Guidelines still supply the

framework for the sentencing decision: the judge must begin

her analysis with the correctly-calculated Guidelines range,

remain cognizant of the Guidelines throughout the process,

and have a justification for both a deviation from the Guidelines range and its extent. 133 S. Ct. at 2083. Thus, even a nonGuidelines sentence is, in the end, a product of the Guidelines.

Id. This is all the more true when it comes to statutory limits.

And absent an express statement like “This is a reasonable

sentence, and I would have imposed it even without the tenyear minimum,” see United States v. Foster, 701 F.3d 1142,
14 No. 12-1666

1157–58 (7th Cir. 2012); United States v. Campbell, 503 F. App’x

472, 473–74 (7th Cir. 2013) (nonprecedential decision), it is

difficult to say whether the court would have arrived at the

same sentence had it realized it was bound by a significantly

lower statutory minimum.

The district judge’s remarks at sentencing give us no

indication that she ever considered the possibility that a lower

statutory minimum might apply to Currie (recall that Currie

did not challenge the applicability of the ten-year minimum

term below), nor do they include an unambiguous statement

to the effect that the judge would have considered the 121-

month sentence it imposed reasonable even if the five-year

minimum specified by the Fair Sentencing Act applied, as we

now know (in hindsight) that it does.

We therefore order a limited remand so that the district

judge may consider, and state on the record, whether she

would have imposed the same sentence on Currie knowing

that he was subject to a five-year rather than a ten-year

statutory minimum term of imprisonment. We shall retain

jurisdiction over this appealpending the district court’s answer

to our inquiry.

AFFIRMED IN PART and REMANDED.