In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-2088

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHN H. NOBLE,

Defendant-Appellant.

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Appeal from the United States District Court

for the Western District of Wisconsin.

No. 99 CR 6—Barbara B. Crabb, Chief Judge.

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ARGUED MARCH 31, 2004—DECIDED MAY 4, 2004

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Before BAUER, POSNER, and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge. This is the third appeal dealing with John Noble’s sentence. In the first, we vacated

his 30-year sentence for possession of cocaine with intent to

distribute based on the principles of Apprendi v. New

Jersey, 530 U.S. 466 (2000); see also United States v. Noble,

246 F.3d 946 (7th Cir. 2001) (Noble I). On remand, the

district court reduced his sentence on that count but

increased the sentence of another, and ordered them to run

consecutively, which again left Noble with the same 30-year

sentence. On his second appeal, Noble argued that the

imposition of consecutive sentences was an Apprendi
2 No. 03-2088

violation and that there was no reliable evidence supporting

the district court’s decision to attribute an additional 65

ounces of cocaine to Noble’s relevant conduct calculation.

We held that there was no Apprendi violation, but that the

evidence supporting the amount of the cocaine was not

reliable. See United States v. Noble, 299 F.3d 907 (7th Cir.

2002) (Noble II). At the second re-sentencing, the district

court allowed the government to re-call witness Steven Jobe

to testify—in a second attempt to support the inclusion of

the 65 ounces of cocaine in Noble’s relevant conduct calculation. Still unable to support the 65 additional ounces of

cocaine (equal to 351 kilograms), the government used

Jobe’s testimony to support a new, lower estimate of 300

kilograms (the Jobe Quantity), which was added to Noble’s

relevant conduct calculation. The district court then resentenced Noble to 315 months (26.25 years) in prison.

Noble now appeals this sentence.

DISCUSSION

Noble argues that the district court improperly allowed

the government to introduce new evidence at the second resentencing hearing because that constituted a second

opportunity to carry its burden of proof. We agree with

Noble. 

The district court’s decision to allow the government to

present new evidence at the remanded sentencing hearing

presents a question of law, which we generally review de

novo. United States v. Sumner, 325 F.3d 884, 888 (7th Cir.

2003). When a defendant such as Noble is sentenced on the

basis of uncharged drug-related misconduct, the burden is

on the government to prove the amount of drugs involved in

that conduct. E.g., United States v. Acosta, 85 F.3d 275, 279

(7th Cir. 1996). If the government failed to meet its burden,

the government is not permitted on remand to try again

and submit new evidence in a belated effort to carry its
No. 03-2088 3

burden. See United States v. Wyss, 147 F.3d 631, 633 (7th

Cir. 1998) (“[t]he government [i]s entitled to only one

opportunity to present evidence on the issue”); United

States v. Wilson, 131 F.3d 1250, 1253-54 (7th Cir. 1997). 

In this case, it was the government’s burden to present

sufficiently reliable evidence to support the Jobe Quantity.

The government knew what it was required to introduce to

meet its burden, and we found that the government failed

to do so. See Noble II, 299 F.3d at 910-11. Nonetheless,

following the second remand, the district court allowed the

government a second opportunity to meet the burden that

it failed to carry at the original sentencing hearing. This the

law does not allow.

We remand for the district court to impose a sentence

that is not based on the additional testimony taken after

Noble II and not based on the evidence we concluded was

unreliable.

REVERSED AND REMANDED WITH DIRECTIONS.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-4-04