In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2186

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL GIBBS,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 07 CR 540—Suzanne B. Conlon, Judge.

ARGUED MARCH 30, 2009—DECIDED AUGUST 25, 2009

Before KANNE, WOOD and WILLIAMS, Circuit Judges.

WOOD, Circuit Judge. On February 22, 2007, Michael

Gibbs made the mistake of selling crack cocaine to a

witness cooperating with the federal government. A

grand jury indicted Gibbs for distributing fifty or more

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

Gibbs pleaded guilty. The district court sentenced Gibbs

to ten years’ imprisonment and ten years of supervised

release. The court also ordered Gibbs, as a condition of
2 No. 08-2186

his supervised release, to repay the $1,400 used by the

Government to buy the drugs. On appeal, Gibbs challenges only the supervised release term and the repayment condition. He argues that the district court erred

by failing to calculate the advisory Guideline range and

by imposing a repayment obligation without considering Gibbs’s ability to pay. As we explain below, the

latter argument is premature, but the former argument

has merit. We therefore vacate the supervised release

term of Gibbs’s sentence and remand the case to the

district court.

While the Sentencing Guidelines are advisory, the

Supreme Court has stressed that district courts must treat

the Guidelines as “the starting point and the initial benchmark.” Gall v. United States, 128 S. Ct. 586, 597 (2007). A

district court must “begin all sentencing proceedings

by correctly calculating the applicable Guideline range”;

failure to do so is a “significant procedural error.” Id.; see

also United States v. McKinney, 543 F.3d 911, 913 (7th Cir.

2008) (noting that, under Gall, this court must satisfy

itself that the district court correctly calculated the advisory Guideline range). We review the procedures followed by the district court de novo. United States v.

Mendoza, 510 F.3d 749, 754 (7th Cir. 2007).

Both parties agree that the correct advisory Guideline

range for Gibbs’s term of supervised release is five

years. To forestall any possible objection, we explain

how we calculated that range. Because Gibbs pleaded

guilty to violating 21 U.S.C. § 841(a)(1), he faces a supervised release term subject to a statutory minimum of
No. 08-2186 3

five years and a statutory maximum of life. See § 841(b).

For supervised release, the appropriate Guideline,

U.S.S.G. § 5D1.2(a)(1), suggests a range of three to five

years. When the question on the table relates to the imprisonment term, if the statutory minimum is higher

than the Guideline range, the statutory minimum controls. See U.S.S.G. § 5G1.1(b), see, e.g., United States v. Poole,

550 F.3d 676, 678 (7th Cir. 2008). The same principle applies

to supervised release. In keeping with that idea, § 5D1.2(c)

of the Guidelines provides that “[t]he term of supervised

release imposed shall be not less than any statutorily

required term of supervised release.” Thus, the statutory

minimum term of supervised release defines either the

bottom limit of the advisory Guideline range or the entire

range (if it coincides with the top of the Guidelines range).

For Gibbs, because the Guidelines suggested three to five

years but the statute requires five years, the advisory

Guideline range becomes five years, period.

The problem we face is that the district court never

acknowledged that the advisory range was five years.

After imposing the incarceration sentence, it said: “The

supervised release term is five years to life. I am imposing a period of 10 years supervised release.” The

court identified the statutory range, but as far as we

can tell it never calculated the advisory Guideline

range. The Government speculates that the district court

knew that the Guideline range was five years, but it

provides no evidence to support this assertion; at oral

argument, the Government could not identify a single

statement by the court reflecting its knowledge that the

advisory range was five years. Nowhere in the record
4 No. 08-2186

does it even establish that the district court adopted

the Guideline range in the presentencing report. Under

the circumstances, we are unable to satisfy ourselves

that the district court correctly calculated the advisory

Guideline range. This procedural error entitles Gibbs to

a redetermination of his supervised release term.

Gibbs also challenges the district court’s order conditioning supervised release on Gibbs’s repayment of

$1,400 to the United States. A district court has the

power to impose as a condition of supervised release “any

other condition it considers appropriate.” 18 U.S.C.

§ 3583(d). We have interpreted this power to authorize a

condition requiring the repayment of buy money. United

States v. Daddato, 996 F.2d 903, 904-05 (7th Cir. 1993). We

acknowledge that other circuits disagree, but we decline

to overrule our long-standing precedent. See United

States v. Cottman, 142 F.3d 160, 169-70 (3d Cir. 1998); United

States v. Gibbens, 25 F.3d 28, 36 n.9 (1st Cir. 1994). Gibbs

asserts that the district court should have considered his

ability to repay when imposing the condition, but we think

that the district court appropriately deferred any such

consideration until Gibbs’s release from prison. Gibbs will

have an opportunity to raise this issue after he serves his

ten-year prison term.

* * * 

We VACATE the sentence of supervised release and

REMAND this case for the limited purpose of redetermining the supervised release term.

8-25-09