### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 16

‐ 2119

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

ANDRE PATTERSON,

Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division

No. 1:12

‐ cr

‐ 00003

— Sarah Evans Barker

, Judge

.

____________________

A RGUED A PRIL 20, 2017

— D ECIDED S EPTEMBER 18, 2017

____________________

Before M ANION and R OVNER

, Circuit Judges

, and

C OLEMAN

, District Judge

. 

C OLEMAN

, District Judge

. Andre Patterson was indicted in

2012 on a number of charges arising from his role in a con

‐ spiracy to rob a fictitious drug “stash house.” Following

lengthy delays resulting from a determination that Patterson

 Of the Northern District of Illinois, sitting by designation.2 No. 16

‐ 2119

was not competent to proceed and subsequent efforts to re

‐

store Patterson to competency, a jury trial was held in Sep

‐

tember 2015. Out of the five counts involving him, Patterson

was found guilty of conspiracy to possess with intent to dis

‐

tribute five kilograms or more of cocaine in violation of 21

U.S.C. §§ 841(a)(1) and 846 (Count I) and being a felon in

possession of a firearm under 18 U.S.C. § 922(g)(1) (Count

XV). Patterson was subsequently sentenced to the guideline

minimum of 168 months incarceration. Patterson now ap

‐ peals, asserting that the district court erred in denying his

motions to dismiss based on the Speedy Trial Act and his

Sixth Amendment speedy trial rights, that the prosecutor

improperly bolstered witnesses’ credibility during opening

and closing arguments, and that the district court erred in

conducting his sentencing calculation. We affirm Patterson’s

conviction, but vacate his sentencing on Count I and remand

this case for resentencing.

I. BACKGROUND

In 2011, law enforcement authorities learned that a “rob

‐ bery crew” was operating in Bloomington, Indiana. Local

law enforcement, in coordination with the Bureau of Alco

‐

hol, Tobacco, and Firearms, arranged a sting operation to

target that crew through the staged robbery of a nonexistent

drug stash house.

A confidential informant arranged a meeting between an

undercover agent and Dennis English, who had been identi

‐

fied as part of the robbery crew under investigation. The un

‐

dercover agent posed as an individual who transported nar

‐

cotics for drug dealers and who was seeking individuals to

rob the stash house where he picked up drug shipments.

English agreed to perform the robbery, but explained that heNo. 16

‐ 2119 3

would need time to gather equipment and other partici

‐

pants.

On November 15, 2011, the undercover agent met with

the informant, English, and Andre Patterson in a hotel room

at the Bloomington, Indiana Quality Inn. The agent ex

‐ plained to English and Patterson that once a month, he

would pick up a shipment of drugs and drive it to Chicago.

He told Patterson that the first time he had done this he had

picked up “six bricks” of cocaine. 1 Patterson asked the un

‐

dercover agent what he had picked up last time, and he an

‐

swered that he had picked up ten bricks of cocaine.

Later in the conversation, the agent went on to state that

“last month I picked up ten and

... there ʹ s at least twenty on

that table. Like when I get my ten, there ʹ s at least that much

there too. I aint never been

– I don ʹ t know if they got more

shit in the back or not or what

... 

### . ”

Patterson responded that “That cash is in the back

... . I

want that cash. I don ʹ t even want the dope. I want that fuck

‐ ing cash.” The agent replied that he did not think there was

any cash there, but Patterson insisted that there was cash

hidden in the house that he had never visited. Patterson con

‐

tinued to repeatedly assert his belief that they would recover

large amounts of cash, notwithstanding the agent’s attempts

to discourage that belief. At one point, Patterson noted that

he wasn’t “really big on drugs anyway” but was “all about

that cash.”

1 It appears to be undisputed that “brick” and “key” are slang for a kilo

‐

gram of narcotics.4 No. 16

‐ 2119

English hypothesized that there might be cash in the

house that was delivered by a separate courier. When the in

‐

formant said that this sounded like wishful thinking, English

asked the agent and the informant to hypothesize how much

money the drug dealers would have to have in order to have

“twenty keys,” a rented house, and four people being paid

to do their “dirty work” at the house. English brought up the

twenty kilogram figure again while talking about the indi

‐

vidual in the back room, predicting that “[h]e ʹ s shooting

through the wall. It ʹ s twenty bricks. It ʹ s his ass if he shows

up empty handed, bro. He ʹ s got something stupid, bro. I

wouldn ʹ t even have one key and only have a 9.” 2

English subsequently met with the informant, the under

‐

cover agent, and other coconspirators on several occasions in

November and early December. On the date of the robbery,

English informed the agent that Patterson would be carrying

English’s .22 pistol for the robbery and that English would be

carrying Patterson’s 9mm pistol. The robbery participants

met at a parking lot and traveled to a storage facility in

Bloomington, where police stopped the car Patterson was in

and took him into custody. In the car, police found a loaded

9mm handgun with Patterson’s fingerprints on it.

A criminal complaint was filed against Patterson on De

‐

cember 16, 2011. An indictment was subsequently filed on

January 11, 2012. The trial date for the case was originally set

for February 27, 2012, but was subsequently continued to

April 30, 2012 on Patterson’s motion. On February 24, 2012,

Patterson filed a motion for a psychiatric examination to de

‐

termine his competency to stand trial and at the time of the

2 In context, it is clear that “9” is a reference to a 9 millimeter handgun.No. 16

‐ 2119 5

offence, which the Court granted on March 19. Based on

other motions filed by Patterson’s codefendants, the trial

date was rescheduled to July 23, 2012. On April 30, 2012, the

Court received Patterson’s psychiatric evaluation, which di

‐ agnosed Patterson with a delusional disorder and deter

‐

mined that he was not competent to proceed to trial. On May

4, 2012, the parties filed a joint motion for Patterson to un

‐ dergo a mental evaluation at the Bureau of Prisons, which

was granted on May 25th.

On June 19, Patterson was transferred to the Chicago

Metropolitan Correctional Center (MCC) for a second psy

‐

chiatric evaluation. That evaluation, which was received by

the Court on September 5th, confirmed the conclusions of

the earlier report. Accordingly, on September 14, 2012 the

Court held that Patterson was incompetent to stand trial and

remanded him to federal custody for hospitalization and

treatment. Patterson was initially transferred to a state facili

‐

ty in Henderson, Kentucky, from where he was to be trans

‐

ferred to FMC Butner to undergo psychiatric treatment. Pat

‐

terson, however, was not transferred from the state facility to

FMC Butner until March 21, 2013. Once Patterson arrived at

FMC Butner, he was subject to an initial evaluation period

that lasted until July 18, 2013. On August 9, 2013, Patterson’s

forensic evaluation was received by the Court. The evalua

‐

tion diagnosed Patterson with a delusional disorder and an

opioid use disorder and recommended treatment with psy

‐ chotropic medications. Because Patterson refused to volun

‐ tarily accept treatment, the evaluation also requested that the

court grant permission to involuntarily medicate Patterson.

The court accordingly held a Sell hearing in October 2013.

At that hearing, Patterson orally asserted that his due pro

‐6 No. 16

‐ 2119

cess rights had been violated by, among other things, the de

‐ lays in bringing his case to trial. Following the hearing, the

district court ordered that Patterson be involuntarily medi

‐

cated. Patterson appealed that ruling, and the court’s order

was stayed pending the resolution of the appeal.

During the pendency of that appeal, Patterson filed a

November 14, 2013, motion to dismiss under the Sixth

Amendment and the Speedy Trial Act based on the duration

of Patterson’s competency evaluation, the delays in trans

‐ porting Patterson to FMC Butner, and FMC Butner’s delay

between authoring its report on July 19, 2013 and subse

‐ quently signing it on August 9, 2013. The Court, however,

found that none of the periods in question were chargeable

under the Speedy Trial Act and that Patterson had not estab

‐

lished a violation of his Sixth Amendment right to a speedy

trial.

During the pendency of Patterson’s appeal his mental

health improved, and his appeal was therefore remanded so

that he could receive an additional evaluation from FMC

Butner. That evaluation was drafted on October 9, 2014,

signed November 6, 2014, and received by the trial court on

November 26, 2014. The report concluded that Patterson was

competent to stand trial. Patterson subsequently filed multi

‐ ple motions to continue, which resulted in the trial date be

‐ ing extended from January 20, 2015 until September 1, 2015.

Prior to trial, Patterson filed a supplemental motion to dis

‐

miss premised on the delay between the drafting of his 2014

forensic evaluation report and his own motion for a continu

‐

ance after the Court had set the case for trial. The trial court,

however, held that many of these delays were not chargeable

under the Speedy Trial Act and that Patterson therefore wasNo. 16

‐ 2119 7

still well within the Act’s 70

‐ day threshold. The trial court

also held that the delays that Patterson identified did not al

‐

ter that court’s prior Sixth Amendment analysis.

Patterson’s trial began on September 1, 2015. During its

opening statement, the prosecution repeatedly characterized

the investigation that resulted in Patterson’s arrest as “good”

or “excellent” police work. The prosecution also opined on it

being “really difficult” to be a police officer, although that

comment was part of a larger argument focusing on the pre

‐

ventative nature of the investigation in this case.

The prosecution returned to this line of argument again

in its closing rebuttal, repeatedly characterizing evidence as

having been recovered through the “good work of police”

and describing the agents who testified at trial as “good law

enforcement agents.”

On September 2, 2015 the jury returned its verdict, find

‐ ing Patterson guilty of conspiracy to possess with intent to

distribute five or more kilograms of cocaine (Count I) and of

being a felon in possession of a firearm (Count XV).

At sentencing, the Court calculated that Patterson had a

base offense level of 32 pursuant to USSG § 2D1.1(c)(4),

which provides for a base offense level of 32 when a drug

crime involves between 15 kilograms and 50 kilograms of

cocaine. Given Patterson’s criminal history category of IV, the

court calculated his guidelines range to be 168 months to 210

months of incarceration. The court ultimately sentenced Pat

‐

terson to the guidelines minimum sentence of 168 months

incarceration on Count 1, to run concurrently with a 120

month sentence on Count 15.8 No. 16

‐ 2119

Patterson subsequently filed the present appeal challeng

‐ ing the district court’s denials of his motions to dismiss, al

‐ leged prosecutorial misconduct at trial, and the district

court’s calculation of his base offense level for sentencing

purposes.

II. DISCUSSION

A. The Speedy Trial Act

On appeal, Patterson argues that the district court erred

in denying his motions to dismiss based on the Speedy Trial

Act. Review of a district court’s denial of a motion to dismiss

under the Speedy Trial Act is de novo.

The Speedy Trial Act mandates that criminal trials com

‐

mence within 70 days of the issuance of an indictment or a

defendant’s first appearance before a judicial officer, which

‐

ever occurs later. 18 U.S.C. § 3161(c)(1). If the defendant is

not brought to trial within 70 days, the defendant may move

to dismiss the indictment or information. 18 U.S.C.

§ 3162(a)(2). The Act, however, excludes certain periods of

time from the 70

‐ day clock in order to provide the flexibility

to accommodate necessary pretrial proceedings that result in

justifiable delays. See 18 U.S.C. § 3161(h)(1)–(8). In a case

with multiple defendants, any excludable delay attributable

to one defendant is excludable as to his co

‐ defendants. Unit

‐

ed States v. Mustread

, 42 F.3d 1097, 1106 (7th Cir. 1994).

Patterson first argues that the district court erred by ex

‐ cluding sixteen of the twenty

‐ six days between May 24,

2012—when he was ordered to be committed to a Bureau of

Prisons (BOP) facility for a competency evaluation—and his

ultimate arrival at the Chicago MCC on June 19, 2012. Patter

‐

son contends that this extended delay in his transportationNo. 16

‐ 2119 9

was presumptively unreasonable and not excludable pursu

‐

ant to 18 U.S.C. § 3161 (h)(1)(F).

Patterson’s argument, however, overlooks the fact that

the period in question had already been excluded by court

order. On April 17, 2012, Patterson’s codefendant filed a mo

‐

tion to continue the trial date, in response to which Patterson

filed a “notice of no objection.” On April 19, 2012, the Court

granted that motion and set the trial for July 23, 2012. The

Court specifically held that, in order to permit the defend

‐

ants reasonable time to effectively prepare for trial, “the pe

‐

riod of delay from the date of this Order through and includ

‐ ing July 23 ,2012 shall be excluded in computing the time

within which the trial of this action must commence.” Pat

‐

terson does not challenge the district court’s determination

that the ends of justice warranted this delay, and therefore

effectively concedes that the period between May 24 and

June 19 was excludable in its entirety pursuant to 18 U.S.C.

§ 3161 (h)(3)(7)(A). Mustread

, 42 F.3d at 1106.

Patterson next asserts that the sizeable delay between

September 14, 2012—when Patterson was remanded to fed

‐

eral custody for treatment—and March 21, 2013—when Pat

‐

terson arrived at FMC Butner—is chargeable to the govern

‐

ment. This argument again rests on section 3161(h)(1)(F),

which provides that delays resulting from transportation are

only excluded for the first ten days, after which point the

time for transportation is presumed to be unreasonable.

Patterson’s argument, however, overlooks 18 U.S.C.

§ 3161(h)(4), which excuses “any period of delay resulting

from the fact that the defendant is mentally incompetent or

physically unable to stand trial.” Here, it is undisputed that

Patterson was incompetent for the entire period between the10 No. 16

‐ 2119

court order directing that he be transported to FMC Butner

and his arrival at FMC Butner. Moreover, the trial court’s or

‐

ders continuing the trial date throughout that time period all

expressly noted that time was excluded with respect to Pat

‐

terson pursuant to 18 U.S.C. § 3161(h)(4).

Although Patterson argues that delays in transporting a

defendant to a competency examination are governed by 18

U.S.C. § 3161(h)(1)(F) rather than 18 U.S.C. § 3161(h)(1)(A)—

which excludes the time consumed in conducting a compe

‐

tency evaluation—he makes no similar argument with re

‐

spect to the interaction between 18 U.S.C. § 3161(h)(1)(F) and

18 U.S.C. § 3161(h)(4). Cf. United States v. Pendleton

, 665 F.

App’x 836, 839 (11th Cir. 2016) (“[I]f a defendant is mentally

incompetent under § 3161(h)(4), that time is excludable even

if there is also a transportation delay that is unreasonably

long and thus not excludable under § 3161(h)(1)(F).”); United

States v. Romero

, 833 F.3d 1151, 1155 (9th Cir. 2016) (holding

that the presumption that delays in transportation in excess

of ten days are unreasonable under section 3161(h)(1)(F)

does not apply when time is already excluded under section

3161(h)(4)). Accordingly, the period between September 14,

2012 and March 21, 2013 was properly excluded pursuant to

18 U.S.C. § 3161(h)(4).

Finally, Patterson asserts that the district court erred in

excluding the 28 days between October 9, 2014 and Novem

‐

ber 6, 2014. Dr. Riley completed her evaluation report of Pat

‐

terson on October 9, 2014, but did not sign the report until

November 6, 2014. Ordinarily, delays “resulting from any

proceeding, including any examinations, to determine the

mental competency or physical capacity of the defendant”

are automatically excluded. 18 U.S.C. § 3161(h)(1)(A). Patter

‐No. 16

‐ 2119 11

son, however, contends that the delay here does not consti

‐

tute a proceeding or examination to determine Patterson’s

competency because Patterson had already been examined,

the report had already been completed, and all that was re

‐ quired was the signature of the author.

Patterson’s argument begs the question, though he does

not raise it, of when the period of excluded time under sec

‐

tion 3161(h)(1)(A) ends. Although this Court has yet to

squarely address this question, those circuits that have con

‐

sidered it have uniformly concluded that the period exclud

‐

ed under section 3161(h)(1)(A) runs, at minimum, from the

filing of the defendant’s motion for a competency evaluation

through the date of the competency hearing. United States v.

Graves

, 722 F.3d 544, 548 (3rd Cir. 2013) (recognizing that the

time excluded under section 3161(h)(1)(A) continues “at

least until a competency hearing is held”); United States v.

Stephens

, 489 F.3d 647, 653 (5th Cir. 2007) (affirming the dis

‐

trict court’s determination that a defendant’s motion for a

competency evaluation “stopped the clock from the date it

was filed” “through the date the court ruled that [the de

‐ fendant] was competent to stand trial”); United States v.

Vasquez

, 918 F.2d 329, 333 (2d Cir. 1990) (“Since the delays

here complained of by [the defendant] arose from proceed

‐ ings to determine his competency and were prior to the con

‐

clusion of the hearing thereon, they must be excluded from

the calculation of the speedy trial clock whether or not they

are reasonable.”). The delay in signing the evaluation here

occurred prior to Patterson’s acceptance of the evaluation re

‐

sults (which eliminated the need for a competency hearing),

and therefore was properly excluded pursuant to 18 U.S.C.

§ 3161(h)(1)(A).12 No. 16

‐ 2119

We hold that all of the periods of time challenged by Pat

‐

terson were properly excluded pursuant to the Speedy Trial

Act, and that the district court therefore did not err in deny

‐ ing Patterson’s motions to dismiss on Speedy Trial Act

grounds.

B. Sixth Amendment Speedy Trial Rights

Patterson also contends that the district court erred in

denying his motions to dismiss because he was deprived of

his Sixth Amendment right to a speedy trial. We review the

district court’s denial of Patterson’s Sixth Amendment

speedy trial claim de novo and review the district court’s fac

‐

tual findings for clear error. United States v. Arceo

, 535 F.3d

679, 684 (7th Cir. 2008).

In order to determine whether a defendant has been de

‐ prived of his speedy trial right, we assess whether the delay

before trial was uncommonly long, whether the government

or the criminal defendant bears more of the blame for that

delay, whether the defendant asserted his right to a speedy

trial in due course, and the extent of prejudice that the de

‐

fendant suffered as a result of the delay. Doggett v. United

States

, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520

(1992).

The first factor, the length of the delay, acts as a trigger

‐ ing mechanism; we only conduct a full analysis of all of the

factors if a presumptively prejudicial amount of time elapsed

in the district court. United States v. Oriedo

, 498 F.3d 593, 597

(7th Cir. 2007). Here, the parties agree that the length of de

‐ lay in this instance is sufficient to trigger examination of the

other three factors.No. 16

‐ 2119 13

The second factor that this court must consider is the rea

‐

son for the delay. Pretrial delays are often inevitable and jus

‐

tifiable, and different weights are therefore given to different

causes of delay. United States v. Hills

, 618 F.3d 619, 629 (7th

Cir. 2010). Deliberate delays are weighted heavily against the

government, while more neutral reasons for delay such as

negligence or overcrowded courts are weighted less heavily

against the government. Barker v. Wingo

, 407 U.S. 514, 531, 92

S.Ct. 2182, 33 L.Ed.2d 101 (1972).

Patterson contends that the delays resulting from his

transportation to his competency evaluation and FMC But

‐

ner are attributable to the government. He also contends that

Butner unnecessarily delayed his treatment by waiting four

months to perform his initial evaluation and by delaying the

signature and submission of multiple reports to the district

court by a month or more.

These delays, however, receive minimal weight because

there is nothing to suggest that they resulted from anything

more than institutional or bureaucratic negligence. See Unit

‐

ed States v. Vasquez

, 918 F.2d 329, 338 (2nd Cir. 1990) (recog

‐ nizing that delays in conducting the defendant’s competency

examination at FMC Butner resulted from “institutional dys

‐

function” rather than deliberate wrongdoing or bad faith).

The district court expressly found as such, and Patterson has

offered neither argument nor evidence capable of establish

‐ ing that the district court’s finding constituted clear error.

The delays, moreover, are partially offset by the almost

two years during which Patterson was challenging his com

‐

petency, was incompetent, or was appealing the district

court’s decision regarding forced medication. See United

States v. Loud Hawk

, 474 U.S. 302, 3016, 106 S.Ct. 648, 8814 No. 16

‐ 2119

L.Ed.2d 640 (1986) (“A defendant who resorts to an interlocu

‐

tory appeal normally should not be able upon return to the

district court to reap the reward of dismissal for failure to

receive a speedy trial.”); Danks v. Davis

, 355 F.3d 1005, 1009

(7th Cir. 2004) (recognizing that delay due to a defendant’s

incompetence cannot be attributed to the state). Relatively

equal portions of the lengthy delay in this case are attributa

‐

ble—albeit minimally—to each side. Accordingly, the rea

‐

sons for the delays in this case weigh in neither party’s favor.

The third factor that this Court must consider is whether

Patterson asserted his right to a speedy trial in due course.

Patterson filed his first motion to dismiss asserting his

speedy trial rights on November 14, 2013, after his Sell hear

‐ ing and after the majority of the delays that Patterson con

‐

tends violated his speedy trial rights had occurred. Patter

‐

son’s second, supplemental motion to dismiss was filed on

July 31, 2015, well after all of the delays at issue here had oc

‐

curred. Even if this Court were to take Patterson’s statement

at his Sell hearing to be an assertion of his speedy trial rights,

that statement also came after most of the complained of de

‐ lays had already occurred. Accordingly, Patterson’s belated

assertions of his speedy trial right does not weigh strongly in

his favor. United States v. White

, 443 F.3d 582, 591 (7th Cir.

2006).

Finally, we consider whether Patterson has been preju

‐

diced as a result of the delays in this case. Prejudice to the

defendant is assessed in light of the interests which the

speedy trial right was designed to protect, including pre

‐ venting oppressive pretrial incarceration, minimizing the

anxiety and concern of the accused, and limiting the possi

‐ bility that the defense will be impaired by the delay. Baker

,No. 16

‐ 2119 15

407 U.S. at 532. Of these factors, the last is given the most

weight. Id.

Patterson contends that he was prejudiced because the

delay in this case diminished the ability of the law enforce

‐

ment witnesses to recall the events in question. Patterson of

‐

fers no specific evidence of such prejudice, but instead relies

on the generalized presumption of evidentiary prejudice that

results from such lengthy pretrial delays. See generally Dog

‐

gett v. United States

, 505 U.S. 647, 657, 112 S.Ct. 2686, 120

L.Ed.2d 520 (1992). Presumed evidentiary prejudice, howev

‐

er, is entitled to lesser weight than prejudice supported by

tangible impairments to the defense. United States v. Saenz

,

623 F.3d 461, 465 (7th Cir. 2010). This is especially the case

here, given that the most compelling evidence against Pat

‐

terson was physical evidence, including the recording of the

hotel room conversation and the firearm with Patterson’s

fingerprints on it.

Similarly, Patterson only argues that his extended deten

‐

tion caused generalized anxiety and concern resulting from

his lengthy pretrial incarceration and his detention outside

Indiana, which separated him from his family. These con

‐

cerns, although legitimate, do not tip the scale in Patterson’s

favor. See United States v. Ward

, 211 F.3d 356, 361 (7th Cir.

2000) (recognizing that general allegations of anxiety and

concern were insufficient to support finding a Sixth

Amendment violation).

Although the pretrial delay in this case was lengthy, it

was primarily caused by factors outside the government’s

control. The delay in this case, moreover, was not substan

‐ tially prejudicial to Patterson given the nature of the evi

‐

dence against him. Finally, Patterson failed to object to these16 No. 16

‐ 2119

delays until after they had predominantly been resolved.

Weighing the four factors, we therefore hold that Patterson’s

Sixth Amendment right to a speedy trial was not violated.

C. Prosecutorial Misconduct

Patterson next contends that his conviction should be re

‐

versed because of prosecutorial misconduct during opening

and closing arguments. Ordinarily, when reviewing a claim

of prosecutorial misconduct we first determine whether the

prosecutor’s conduct was improper and, if it was, evaluate

the conduct in light of the entire record in order to determine

whether it deprived the defendant of a fair trial. United States

v. Flournoy

, 842 F.3d 524, 528 (7th Cir. 2016).

Here, however, Patterson concedes that he did not object

to the prosecutor’s statements and that his claim of prosecu

‐

torial misconduct is therefore only reviewed for plain error.

In order to establish plain error, a defendant must show the

existence of (1) an error, (2) that was plain, clear, or obvious,

(3) that affected the defendant’s substantial rights such that

he probably would not have otherwise been convicted; and

(4) that seriously affected the fairness, integrity, or public

reputation of the judicial proceedings. United States v. Tucker

,

714 F.3d 1006, 1011 (7th Cir. 2013).

Patterson contends that the prosecution, through its

opening statement and closing rebuttal, improperly vouched

for the credibility of the witnesses. A prosecutor improperly

vouches for the credibility of a witness when she expresses a

personal belief about the truthfulness of the witness or when

she implies that facts not before the jury lend that witness

credibility. Flournoy

, 842 F.3d at 529.No. 16

‐ 2119 17

In each of the cases in which this court has found im

‐

proper vouching, there has been a “direct and cognizable

link” between the prosecutor’s comments and a witness’s

credibility. United States v. Elem

, 269 F.3d 877, 883 (7th Cir.

2001). The cases that Patterson relies on all involve such a

link. See, e.g., United States v. Aguilar

, 645 F.3d 319, 324 (5th

Cir. 2011) (concluding that a statement suggesting that law

enforcement officers were subjected to unfair treatment

when they “come into the courtroom and [are] called a liar”

constituted prosecutorial misconduct); United States v. Spain

536 F.2d 170, 176 (7th Cir. 1976) (holding that a statement

that “[a]gents of the federal government do not make those

kind (sic) of cases unless, in fact, there is evidence” was

grossly improper).

The statements in question here, however, do not reflect

on the credibility of an individual witness or a class of wit

‐

nesses but instead on the execution of the investigation as a

whole. Indeed, Patterson himself argues that these state

‐

ments were improper because they attempted to legitimize

the investigative methods used in this case.

Commentary on the quality of an investigation, however,

is a proper ground for argument because the rigor of an in

‐ vestigation is reflected by the evidence and therefore is a

proper subject for the jury to consider. See United States v.

Hiett

, 581 F.2d 1199, 1204 (5th Cir. 1978) (“[W]hether the

agents did a good or bad job was a proper subject for argu

‐ ment.”). Just as Patterson was free to challenge the govern

‐

ment’s investigative methods, which he did, the government

was free to respond by characterizing its investigation as

“good police work.” Patterson has accordingly failed to es

‐

tablish the existence of a legal error, let alone plain error.18 No. 16

‐ 2119

D. Drug Quantity Calculation at Sentencing

Finally, Patterson contends that the district court erred at

sentencing when it calculated his base offense level based on

a determination that Patterson reasonably foresaw that the

stash house robbery would yield fifteen to fifty kilograms of

cocaine.

A district court’s calculation of drug quantity is a factual

determination and is therefore reviewed for clear error. Unit

‐

ed States v. Clark

, 538 F.3d 803, 812 (7th Cir. 2008). It is the

government’s responsibility at sentencing to prove the quan

‐ tity of drugs attributable to a defendant by a preponderance

of the evidence. 3 United States v. Krasinski

, 545 F.3d 546, 551

(7th Cir. 2008). Because Patterson did not object to the drug

amount calculation in the district court, we review this issue

for plain error. Under this standard, we will correct only par

‐ ticularly egregious errors that seriously affect the fairness,

integrity, or public reputation of the judicial proceeding.

United States v. Middlebrook

, 553 F.3d 572, 577 (7th Cir. 2009).

The only evidence directly establishing how much co

‐

caine Patterson might have anticipated would be at the stash

house is the recording of the November 15, 2011, meeting at

the Quality Inn. In that meeting the undercover agent initial

‐ ly stated that on his first trip he had picked up six kilograms

of cocaine. Patterson then asked the undercover agent how

many “bricks” he had picked up last time, and was told that

the agent had picked up ten kilograms of cocaine. The un

‐

3 We are always mindful that, because the stash house in this case is a

fiction created by the government, the quantity of drugs is also a fiction

born from the imagination of the prosecutor and law enforcement

agents.No. 16

‐ 2119 19

dercover agent subsequently expanded on that statement,

adding that when he had picked up his ten there had been

another ten kilograms of cocaine on the table. English subse

‐ quently brought up this new twenty kilogram figure while

hypothesizing about whether cash might be recovered or

what kinds of security to expect. Patterson, however, never

acknowledged any of the figures that the undercover agent

provided or that English repeated, although his comments

made clear his intent to obtain a portion of the cocaine re

‐

covered as his compensation for the robbery.

As we have previously held, because of the importance of

the drug quantity to calculating the sentence in a narcotics

case, district courts must make an explicit finding as to the

drug quantity and offense level supporting the sentence.

United States v. Wagner

, 996 F.2d 906, 913 (7th Cir. 1993). In

making such a determination, the sentencing court is re

‐ quired to “state reasons why each individual defendant was

aware of or reasonably foresaw the particular amount of

drugs for which he will be held accountable, with reference

to supportive evidence.” United States v. Goines, 988 F.2d 750,

775 (7th Cir. 1993).

Here, the sentencing court did not make an express find

‐ ing of drug quantity or explain the reasoning behind that

quantity at the sentencing hearing. Instead, the court ap

‐

pears to have adopted the calculation set forth in the Presen

‐

tence Investigation Report (PSR). See United States v. Ali

, 619

F.3d 713, 719 (7th Cir. 2010) (recognizing that district courts

are entitled to rely on undisputed portions of a PSR as find

‐ ings of fact at sentencing). The PSR, however, altogether fails

to set forth a specific drug quantity attributable to Patterson

or to explain the factual basis for that quantity. Instead, it20 No. 16

‐ 2119

concludes, without analysis or discussion, that Patterson has

a base offense level of 32, based on an offense involving at

least 15 kilograms but less than 50 kilograms of cocaine. The

district court’s reliance on the PSR was accordingly incapable

of fulfilling the Court’s obligation to make a specific finding

as to drug quantity. Cf. United States v. Leichtnam

, 948 F.2d

370, 382 (7th Cir. 1991) (recognizing that a PSR that did not

contain a conclusion as to the drug quantity attributable to

the defendant was incapable of sufficiently explaining the

defendant’s sentence).

The district court’s failure to make or adopt an explicit

factual finding as to the amount of drugs attributable to Pat

‐

terson prior to sentencing constitutes plain error that calls

into question the fairness and integrity of Patterson’s sen

‐

tence. United States v. Hawk

, 434 F.3d 959, 963 (7th Cir. 2006).

This is especially the case here because, based on our review,

there is reason to question whether the drug quantity that

the district court appears to have relied on was reasonably

attributable to Patterson. 4 Without a specific finding as to the

drug quantity, however, we cannot fairly assess the district

court’s conclusion on that issue or subject it to meaningful

appellate review.

Patterson’s sentence on Count I accordingly must be va

‐

cated, and this case remanded so that Patterson may be re

‐

4 It appears that Patterson was sentenced based on the highest and most

optimistic of the three drug quantities that the undercover agent set

forth. There is some ambiguity, however, as to which of the drug quanti

‐

ties Patterson reasonably anticipated recovering during the planned rob

‐ bery, especially in light of Patterson’s mental health at the time of the

offense.No. 16

‐ 2119 21

sentenced. United States v. Leichtnam

, 948 F.2d 370, 382 (7th

Cir. 1991).

III. CONCLUSION

For the foregoing reasons, we AFFIRM Patterson’s con

‐

viction but VACATE the sentence on Count One and

REMAND this case for resentencing.