In the

United States Court of Appeals

For the Seventh Circuit

Nos. 07-4067 & 07-4085

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

NEASHON WASHINGTON and ADREIN BENNETT,

Defendants-Appellants.

Appeals from the United States District Court 

for the Central District of Illinois.

No. 06-10033—Michael M. Mihm, Judge.

ARGUED DECEMBER 3, 2008—DECIDED MARCH 13, 2009

Before EASTERBROOK, Chief Judge, and MANION and

WOOD, Circuit Judges.

WOOD, Circuit Judge. Neashon Washington and Adrein

Bennett were two members of a drug distribution gang

that called itself the “Bigelow boys.” The Boys operated

in the general area of Peoria, Illinois, using a house at

1811 Bigelow Street. The police began focusing on Washington and Bennett in mid-2005, with the help of a confi-
2 Nos. 07-4067 & 07-4085

dential informant. Undercover work and controlled sales

followed. Eventually, Washington, Bennett, and three

other men were charged with conspiracy to distribute

crack cocaine and a number of substantive distribution

offenses, in violation of 21 U.S.C. §§ 841(a)(1) and 846.

After a jury found Bennett and Washington guilty of all

charges against them, the district court sentenced Bennett

to a term of 240 months’ imprisonment, with 10 years of

supervised release on the conspiracy count and 6 years

on all other counts, and it sentenced Washington to a

term of 140 months’ imprisonment, with varying terms of

supervised release for different counts.

Both have appealed. Bennett argues that the district

court made two errors in sentencing him: first, he asserts

that it was inconsistent with Apprendi v. New Jersey, 530

U.S. 466 (2000), for the judge to use 21 U.S.C. § 841(b)(1)(A)

as the basis for a statutory minimum sentence of 20 years,

despite the jury’s failure to find that he had dealt in the

necessary quantity of drugs to trigger subpart (A)’s

maximum sentence; and second, he argues that the

judge should not have applied the two-level enhancement for use of a gun in relation to a drug trafficking

crime, under U.S. Sentencing Guideline § 2D1.1(b)(1), in

computing his offense level. Washington argues only

that the district court erred in entering judgment and

sentencing him for distribution of cocaine base (crack),

when the jury found him guilty only of distributing the

powder form of cocaine. The district court has since

corrected the judgment so that it now reads “distribution

of cocaine.” As the error did not otherwise affect Washington’s sentence, the district court’s action suffices to
Nos. 07-4067 & 07-4085 3

moot Washington’s appeal. We therefore confine our

remarks here to Bennett’s case.

I

Because Bennett’s arguments focus exclusively on his

sentence, we can dispense with a detailed account of the

operation of the drug conspiracy. The jury was presented

with evidence from a cooperating member of the conspiracy, who told them about what was sold (usually

crack), how much was sold, what prices were charged, and

how the drugs were weighed, packaged, and delivered.

When the time came to instruct the jury, one instruction

went as follows:

If you find the defendant, Adrein Bennett, guilty of

conspiracy as charged in Count 1 of the Indictment,

next you must find beyond a reasonable doubt the

quantity of drugs involved. Indicate your findings as

to the quantity of drugs below and have each juror

sign this form.

We, the jury, find that the amount of controlled

substances involved in the conspiracy and reasonably

foreseeable to Adrein Bennett was:

_____ less than 5 grams

_____5 grams or more, but less than 50 grams

_____50 grams or more

With respect to Count 2 (which charged Bennett and

Washington with distribution of crack), the jury was

asked to decide only whether Bennett was guilty of
4 Nos. 07-4067 & 07-4085

It is possible that the jury’s failure to agree on a quantity was 1

in part attributable to the way this instruction, and the corresponding verdict form, were worded. If, for example, six jurors

thought that 48 grams of crack was involved and six thought the

quantity was 55 grams, then none of the boxes on the form

provided would have applied. It would be preferable, it seems

to us, to give the jury an open-ended form, saying something

like “we find unanimously that the defendant distributed

at least ___ grams of crack and ___ grams of powder cocaine.”

The blanks would be filled in with the minimum quantities

on which the jurors all agreed. This would give the trial court

the information it needed to apply the statutory thresholds,

(continued...)

distributing “cocaine.” For Counts 3 through 17, the jury

was asked to make a finding of guilty or not guilty, and

then to indicate whether the drug distributed was “cocaine base, but not cocaine base (crack)” or “cocaine base

(crack).” It was not asked to find quantity for Counts 2

through 17.

At one point during its deliberations, the jury sent a

note indicating that it was having trouble agreeing on

the quantity of cocaine involved in any of the counts. After

a discussion, the prosecutor and defense counsel agreed

that the court should just await the jury’s verdict and

decide then what to do if anything was missing. The

jury eventually returned its verdict and found Bennett

guilty of the conspiracy charged in Count 1, but it left

the form addressing drug quantity blank. It also agreed

that the substance involved in Counts 3 through 17 was

crack cocaine, but again it did not specify any quantity.1
Nos. 07-4067 & 07-4085 5

(...continued) 1

such as the 5 gram or 50 gram level in crack cases, or the

500 gram and 5 kilogram level in powder cocaine cases.

The court accepted the verdict and ordered a presentence

report (“PSR”). The probation officer concluded that

Bennett’s relevant conduct involved at least 150 grams

but less than 500 grams of crack cocaine, based on the

evidence received at trial. The PSR also recommended

a four-level enhancement for Bennett’s leadership role in

the offense and a two-level enhancement for having a

firearm present at the Bigelow house. This led to a base

offense level of 38 under the Sentencing Guidelines and

an advisory sentencing range of 262 to 327 months. The

PSR took the position that, under 21 U.S.C. § 841(b)(1)(A),

the statutory minimum sentence applicable to Bennett

was 240 months, because Bennett had a prior felony

drug conviction.

In its sentencing memorandum, the government acknowledged that the jury had not made a finding of drug

quantity. It argued, however, that the court had the

authority to find quantity as long as the court refrained

from imposing a sentence longer than the 30-year maximum authorized by § 841(b)(1)(C), and that the evidence supported a finding that the conspirators had

dealt in more than 50 grams of crack. It relied in part on

Harris v. United States, 536 U.S. 545 (2002), which holds

that the Apprendi line of cases does not apply to statutory

minima. Bennett objected to the court’s authority to

make a finding relating to the statutory minimum, given
6 Nos. 07-4067 & 07-4085

the jury’s failure to make any finding on quantity. He

also objected to the leadership and gun enhancements.

The court found that there was “a fairly rich body of

evidence” showing that extensive drug activity was

going on at the Bigelow house and that it was appropriate to attribute this activity to Bennett.

Disagreeing with the probation officer, the court found

that Bennett was responsible only for 50 to 150 grams

of crack. It also found that both the leadership and the

gun enhancements were proper, leading to a final total

offense level of 36 (rather than the 38 that the PSR had

recommended). It also concluded that the mandatory

minimum applicable to Bennett was the 20-year term

specified in 21 U.S.C. § 841(b)(1)(A), which applies when

the drug quantity is 50 grams or more, notwithstanding

the jury’s failure to make any quantity finding. Bennett

objected, arguing that any finding regarding the mandatory minimum had to be made by the jury. The district

court decided, however, that as long as the maximum

term was not extended, it was entitled to make findings

relating to the minimum. Although Bennett’s advisory

guideline range would have been 210 to 262 months

without taking the mandatory minimum into account, the

court’s decision to apply that minimum made the range

240 to 262 months for Count 1 (and 210 to 262 months

for the remaining counts). The court then sentenced

Bennett to 240 months on all counts, with his sentences

to run concurrently.
Nos. 07-4067 & 07-4085 7

II

A

Bennett’s primary argument for setting aside his sentence is that the district court acted inconsistently with

Apprendi when it found the facts that supported his

mandatory minimum sentence. Apprendi held that a jury

must find beyond a reasonable doubt “any fact [other

than a prior conviction] that increases the penalty for a

crime beyond the prescribed statutory maximum.”

Apprendi, 530 U.S. at 490. Although Apprendi arose in the

context of New Jersey’s sentencing regime, it is by now

well established that the rule it announced applies to

federal sentencing as well. See United States v. Booker,

543 U.S. 220, 233, 245 (2005) (Apprendi rule applies to

federal sentencing, but it does not apply to an advisory

sentencing guideline system, as opposed to statutory

maxima). This does not, however, transform drug type

and quantity into “elements” of the offense. Instead, as

we have held repeatedly, drug type and quantity are

sentencing factors that must be found by the jury, insofar

as they establish the maximum possible sentence. See,

e.g., United States v. Kelly, 519 F.3d 355, 363 (7th Cir.

2008); United States v. Martinez, 301 F.3d 860, 865 (7th

Cir. 2002); United States v. Bjorkman, 270 F.3d 482, 491-92

(7th Cir. 2001).

Although some thought that the Apprendi rule logically

should apply to minimum sentences established by

statute, the Supreme Court has not been persuaded to

follow that path. Instead, in Harris v. United States, supra,

the Court concluded that there is no requirement for the
8 Nos. 07-4067 & 07-4085

jury to find beyond a reasonable doubt the facts that

trigger a statutory minimum sentence. 536 U.S. at 557.

Although that would seem to preclude Bennett’s argument, insofar as it is based on the Apprendi line of cases,

the Second Circuit did not see matters that way in its

decision in United States v. Gonzalez, 420 F.3d 111 (2d Cir.

2005). This court, however, expressly refused to follow

Gonzalez and a similar decision from the Ninth Circuit,

United States v. Velasco-Heredia, 319 F.3d 1080 (9th Cir.

2003), in United States v. Clark, 538 F.3d 803, 812 (7th Cir.

2008). Although we could dismiss Bennett’s argument

summarily, in light of Clark, respect for the views of our

sister circuits and Bennett’s reliance on those cases persuade us to take another look at these issues.

In Gonzalez, the Second Circuit held that a criminal

defendant cannot be sentenced unless “a jury found or

Gonzalez himself admitted the specified drug quantity

element.” 420 F.3d at 125. The court reasoned that

21 U.S.C. § 841(a)(1), which makes it unlawful to traffic in

drugs, and 21 U.S.C. § 841(b)(1), which sets forth the

sentencing ranges for drug offenses, operate independently of one another, and that after Apprendi, the court

must treat both as establishing elements of the offense.

(This court, as Kelly illustrates, does not interpret

Apprendi that way.) The Gonzalez court then examined

§ 841(b)(1) more carefully. As it noted, for a person with

a prior drug felony, like Gonzalez (or like Bennett), who

trafficks in an unquantified amount of crack, the

relevant sentencing provision is § 841(b)(1)(C); that subsection does not specify any minimum sentence, but it

prescribes a maximum sentence of 30 years. If that same
Nos. 07-4067 & 07-4085 9

recidivist trafficked in five grams or more of cocaine

base, § 841(b)(1)(B) imposes a minimum sentence of

10 years and a maximum of life in prison. Finally, if the

quantity of cocaine base is 50 grams or more and the

person has a prior drug conviction, § 841(b)(1)(A) establishes a statutory minimum sentence of 20 years and a

maximum of life. Gonzalez held that “[n]othing in the

structure of the statute suggests that these corresponding minimums and maximums, or any of the

others prescribed in the statute, can be delinked to

permit mixing and matching across subsections to create

hybrid sentencing ranges not specified by Congress.”

420 F.3d at 121 (citing Velasco-Heredia, 319 F.3d at 1086).

As we noted earlier, this court expressed disagreement

with the holding of Gonzalez in United States v. Clark. We

did not specify whether our disagreement flowed from

Gonzalez’s characterization of the sentencing rules as

“elements” of a crime rather than “sentencing factors,” or

if we understood the Second Circuit’s comments about

the structure of the statute to be an alternative basis for

its ruling independent of its interpretation of Apprendi’s

requirements. No one that we can find, including

Bennett’s counsel in the district court, Bennett’s counsel

before this court, and the district court, has considered

the question whether, as a straightforward matter

of statutory interpretation, it is permissible to apply a

statutory maximum sentence from one subsection of

§ 841(b)(1), and then to select the statutory minimum

sentence from a different subsection of § 841(b)(1). Instead,

along the same lines the Second Circuit chose, counsel

has argued only that it would be inconsistent with
10 Nos. 07-4067 & 07-4085

Apprendi to use the 30-year statutory maximum for

Bennett that is found in § 841(b)(1)(C) (which applies to

him because the jury did not specify any quantity of

drugs), while at the same time using the 20-year statutory

minimum found in § 841(b)(1)(A) (based on the court’s

finding that the offense involved more than 50 grams of

cocaine base).

We are not inclined to revisit our decision in Clark,

which adhered to our position that § 841(b)(1) identifies

sentencing factors, not elements of the offense. We have

no power to change the rule in Harris, under which

Apprendi does not apply to facts establishing a statutory

minimum. Because these were the only arguments presented on Bennett’s behalf, we consider the pure

statutory question forfeited in this particular case. We

add, however, that we see nothing in Harris that cabins

Congress’s authority to link together a particular

statutory minimum with a statutory maximum determined by a jury. Thus, if the statute said something like

“the sentencing court must apply both the statutory

maximum and the statutory minimum that corresponds

to the drug quantity found by the jury,” then the mix-andmatch approach that the district court took here would

be out of the question. The open question is thus a pure

one of statutory interpretation: what, in the final analysis,

has Congress done in § 841(b)(1)? Has it enacted, in

substance, the hypothetical statute we just described, or

is the government correct in arguing that the minimum

sentences prescribed by the statute may be based on

findings by the judge, as long as the final sentence

respects the maximum authorized by the jury? To our
Nos. 07-4067 & 07-4085 11

knowledge, no court has squarely confronted that issue,

and, because it has not been properly raised in this case,

we decide this case on the basis that the parties have

chosen. There is no Apprendi problem with Bennett’s

sentence, and we thus move on to his other argument.

B

As we noted earlier, when the district court computed

Bennett’s offense level under the Sentencing Guidelines,

it added two levels under § 2D1.1(b)(1), which requires

that enhancement for a drug offender “[i]f a dangerous

weapon (including a firearm) was possessed” in connection with the offense. Application Note 3 to the guideline goes on to say that “[t]he adjustment should be

applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the

offense.” Id. cmt (n.3). On the other hand, the note also

says that “the enhancement would not be applied if the

defendant, arrested at his residence, had an unloaded

hunting rifle in the closet.” Id.

Bennett argues that there was insufficient evidence to

support a conclusion that the drugs were sold or

prepared for sale at the Bigelow house. Without such

evidence, he continues, there is no way to link the guns

found in the house to his drug distribution activity.

Although the government might have argued that the

importance of this enhancement drops out of the case if

we affirm the statutory minimum sentence (as we have

done), it did not. Erring on the side of caution, therefore,

we consider Bennett’s argument on the merits. In
12 Nos. 07-4067 & 07-4085

opposing his position, the government points to the

following evidence:

• Cooperating witness Douglas Sherman’s testimony

that a house on Bigelow Street was a “gathering

place,” along with the fact that there were six men

in the Bigelow house when the police searched it

• Sherman’s testimony that he purchased cocaine at

a house on Bigelow Street

• Jennifer Delaney’s testimony that she purchased

cocaine at a house on Bigelow Street

• The discovery by the police of two semi-automatic

handguns at 1811 Bigelow Street

• The discovery by the police of a plate with Bennett’s

fingerprint and .5 grams of cocaine on it, also at

1811 Bigelow Street

• Sherman’s testimony that Bennett used a plate of that

type to prepare cocaine for distribution and his

opinion that the plate was not consistent with personal use

• Sherman’s testimony that Bennett did not use cocaine

Bennett points to a number of cases in which the

quantity of drugs discovered in proximity to the guns

was substantially greater than the .5 grams the police

found in his case. E.g., United States v. Turner, 93 F.3d

276, 289 (7th Cir. 1996) (handgun found in same room as

29 grams of methamphetamine, 5 pounds of a methamphetamine precursor, and other paraphernalia); United
Nos. 07-4067 & 07-4085 13

States v. Ewing, 979 F.2d 1234, 1238 (7th Cir. 1992) (unloaded gun found in lockbox with 20 grams of cocaine,

among other things). But the government did not have

to prove the association solely by looking to the amount

of drugs in close proximity to the gun. The question is

whether it was clearly improbable that these guns were

connected with Bennett’s drug-dealing activities. The

district court thought not, and we cannot say that it

clearly erred in coming to that conclusion.

III

Finally, it appears that the same error was made with

respect to Count 2 in Bennett’s case as was made in Washington’s—that is, the judgment read “distribution of

cocaine base (crack)” instead of “distribution of cocaine.”

Bennett has not raised this issue on appeal, but this error

strikes us as plain and in need of correction. We therefore

AFFIRM the sentence, but we REMAND for the limited

purpose of correcting the judgment on Count 2 to read

“distribution of cocaine.”

3-13-09