In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1085

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHAZZIE T. ISOM,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 09-20012-001—Michael P. McCuskey, Chief Judge.

ARGUED DECEMBER 14, 2010—DECIDED MARCH 14, 2011

Before POSNER, RIPPLE, and ROVNER, Circuit Judges. 

ROVNER, Circuit Judge. After a jury trial, Chazzie Isom

was convicted of three counts of distributing cocaine

base. See 21 U.S.C. § 841(a)(1), (b)(1)(A). The sales

totaled about 70 grams, but the district court attributed

to him as relevant conduct a much larger amount—

roughly 600 grams—and sentenced him to 262 months’

imprisonment. On appeal Isom primarily challenges

this relevant conduct finding, arguing that he should
2 No. 10-1085

“Eight-ball” is a street term for one-eighth of an ounce. 1

See United States v. Plummer, 581 F.3d 484, 486 (7th Cir. 2009),

cert. denied, 130 S. Ct. 1105 (2010).

not be accountable for drug transactions involving two

coconspirators. Because the district court properly calculated the drug quantity using reliable information,

we affirm.

I.

At trial, an undercover special agent with the Illinois

State Police described three controlled buys of crack

cocaine from Isom; each purchase was the basis for a

separate count. Regarding the first purchase, the agent

testified that he called Isom in December 2008 and arranged to buy two “eight-balls” (about 3.5 grams of crack 1

cocaine each) in a parking lot. The agent went to the

lot, parked next to a red van, and climbed in. He

bought about 6 grams of crack from a woman in the

van, Nancy Rose. Rose too testified at trial, corroborated

the agent’s account, and stated that she was at the

parking lot at Isom’s instruction. She also stated that

she used crack twice a day, and that Isom gave her

drugs in exchange for letting him sell drugs from her

home and occasionally delivering for him.

The second purchase occurred five days later. The

agent recounted that he called Isom and arranged to

buy more crack in another parking lot; Isom arrived in

the same red van, entered the agent’s car, and handed
No. 10-1085 3

the agent a Doritos bag containing 5.5 grams of crack

cocaine.

The third purchase occurred in January 2009. According

to the agent, after a series of phone calls, Isom agreed

to sell him an ounce of crack cocaine. Isom met the agent

at a Wendy’s parking lot, entered the agent’s car, took

the agent’s money, and then told the agent that he

could find the drugs in a trash can in the Wendy’s

restroom. There, the agent found 61.3 grams of crack

cocaine, and Isom was arrested later that day.

In the presentence report, the probation officer held

Isom accountable not only for the 72.8 grams (6 + 5.5 + 61.3)

he sold to the agent, but also for 537.28 grams he

allegedly distributed to coconspirators Karen Coffey

and Nancy Rose. Isom’s dealings with Coffey constituted

the lion’s share of this quantity. The probation officer

estimated Isom’s distribution to Coffey at 467.28 grams,

based on statements she gave to law enforcement that

from August 2007 to spring 2008 she delivered drugs

for Isom 5 days a week, up to 20 times a day, and that

nearly every delivery involved crack cocaine worth $50.

Based on this statement, the probation officer calculated that on 132 occasions Isom distributed 3.54

grams (132 x 3.54 = 467.28). The probation officer attributed to Isom an additional 70 grams based on statements Rose made to law enforcement that—in addition

to the amounts she distributed for Isom—he typically

gave her $50 to $75 worth of crack cocaine per day over

21⁄2 months. Based on these sums, the probation officer

estimated that Isom gave Rose one gram a day for

70 days—totaling 70 grams.
4 No. 10-1085

The presentence report’s reference to 80.2 grams is a mystery, 2

and the parties offer no explanation for its source. The crimes

of conviction accounted for 72.8 grams, and Isom contends

that he was properly held accountable for an additional 9 grams

(3.4 + 5.6). 

Isom was also held accountable for an additional 9 grams

stemming from two uncharged, controlled sales: one

that Isom made to the undercover agent in early December for 3.4 grams of crack; and one that Coffey made to

the agent for 5.6 grams while the agent was trying to

arrange to buy drugs from Isom. Isom did not (nor does

he now) contest that these 9 grams were properly included as relevant conduct.

Isom curtly disagreed with the presentence report’s

inclusion of the 537.28 grams distributed to Rose and

Coffey as relevant conduct; he asserted without elaboration that this relevant conduct was based on unreliable

hearsay. But the probation officer did not address this

disagreement because, the officer wrote, “it did not rise

to the level of a formal objection.” He noted, though,

that Isom’s concession of being responsible for 80.22

rather than 72.8 grams reflected Isom’s acknowledgment that the report contains “some accurate information.”

At the sentencing hearing, the agent who bought drugs

from Isom testified in support of the probation officer’s

drug-quantity calculation. The agent verified that Coffey

was an associate of Isom’s: the agent had called Isom’s

phone and spoken to Isom’s girlfriend, who arranged

for the agent to buy drugs from Coffey. The agent
No. 10-1085 5

added that Coffey later acknowledged delivering drugs

for Isom and identified both Rose and Isom’s girlfriend

as persons she knew who were also selling drugs on

Isom’s behalf. The agent likewise verified that Nancy

Rose told officers who interviewed her that Isom was

selling drugs from her home and that he gave her

crack. The agent also testified that Rose identified Coffey

as a regular customer of Isom’s.

The district court adopted the probation officer’s recommendation, and included 619.08 grams (72.8 + 9 + 537.28)

as relevant conduct. The court found the agent credible

and noted that the drug-quantity calculation was conservative given the broad scope of the uncharged conspiracy. The court calculated Isom’s base offense level

at 34, see U.S.S.G. § 2D1.1(c)(3), added 3 points for a

managerial role in the offense, see id. § 3B1.1(b), and

assigned a criminal history category of III, to arrive at

a guidelines range of 262 to 327 months. The court sentenced Isom to 262 months’ imprisonment, remarking

that the sentence was reasonable and necessary to

punish Isom for his crime and deter him and his

coconspirators from engaging in future criminal activity.

II.

Now represented on appeal by different counsel, Isom

makes two arguments for resentencing. First, he asserts

that the district court overstated his relevant conduct

and, as a result, imposed too severe of a sentence. He

also argues that his counsel was ineffective at sentencing for failing to raise the sentencing disparity
6 No. 10-1085

Isom overstates the increase in the guidelines range. He 3

asserts that the inclusion of the relevant conduct increased his

range from 168-210 months to 262-327 months. But Isom’s

calculations overlook the 20-year mandatory minimum that

applies because of his prior conviction for a felony drug offense.

See 21 U.S.C. § 841(b)(1)(A). If a statutory minimum sentence

is greater than the maximum of the applicable guideline

range, then that statutory minimum sentence becomes the

bottom of the guideline range. See U.S.S.G. § 5G1.1(b);

United States v. Gibbs, 578 F.3d 694, 695 (7th Cir. 2009).

between crack and powder under Kimbrough v. United

States, 552 U.S. 85 (2007).

Isom argues that the district court erroneously

increased his base offense level when it earmarked 537.28

grams of drugs as relevant conduct. The relevant

conduct beyond the 80 grams that he conceded he sold

increased his sentencing exposure from a mandatory

minimum of 240 months to an advisory guideline range

of 262 to 327 months. See 21 U.S.C. § 841(b)(1)(A); U.S.S.G. 3

§ 2D1.1(c)(3).

Isom contends that the district court should have presumed that Rose’s and Coffey’s statements—which led to

his being held accountable for 537.28 grams—were unreliable hearsay because the two were non-testifying

coconspirators. He cites United States v. Jones, 371 F.3d

363, 369 (7th Cir. 2004), and United States v. Santiago, 495

F.3d 820, 825 (7th Cir. 2007), to argue that a sentencing

court must presume a coconspirator’s statement unreliable if that statement: (1) was given with government
No. 10-1085 7

involvement; (2) described past events; and (3) has not

been subjected to adversarial testing. He notes that, for

her involvement, Rose received 48 months’ probation

in state court.

But Isom misapprehends this court’s interpretation of

the presumption. Jones recognized this presumption

when admitting a coconspirator’s statement at trial, not

sentencing. 371 F.3d at 369; see United States v. House, 551

F.3d 694, 699 n.2 (7th Cir. 2008). A district court in determining a sentence is not bound by the same evidentiary

standards that apply in a criminal trial. See FED. R. EVID.

1101(d)(3); United States v. Johnson, 489 F.3d 794, 796 (7th

Cir. 2007). The presumption of unreliability for nontestifying coconspirators is premised on the defendant’s

right at trial to confront his accusers, see, e.g., Lilly v.

Virginia, 527 U.S. 116, 137 (1999) (plurality opinion); United

States v. Ochoa, 229 F.3d 631, 637 (7th Cir. 2000), but the

Confrontation Clause does not apply at sentencing,

Williams v. New York, 337 U.S. 241, 250-51 (1949); United

States v. Betts, 576 F.3d 738, 744 (7th Cir.), cert. denied, 130

S. Ct. 1027 (2009); United States v. Roche, 415 F.3d 614, 618

(7th Cir. 2005). With regard to sentencing, this court has

declined to attach any presumption of unreliability to

coconspirators’ statements. See House, 551 F.3d at 699 n.2;

United States v. Artley, 489 F.3d 813, 821 (7th Cir. 2007);

Johnson, 489 F.3d at 797; see also United States v. Moncivais,

492 F.3d 652, 659-60 (6th Cir. 2007). As this court has

repeatedly observed, a sentencing judge is free to credit

testimony that is “totally uncorroborated,” “comes from

an admitted liar, convicted felon, . . . large scale drugdealing, paid government informant,” or “self-interested
8 No. 10-1085

co-conspirator[].” Johnson, 489 F.3d at 797 (internal quotation and citation omitted).

Isom’s reliance on Santiago is similarly misplaced. In

that case, which involved videotaped confessions of two

men that were used to substantiate the defendant’s role

in a kidnapping and murder, this court bypassed

any discussion of the presumption. The opinion quoted

the elements of the presumption and noted the district

court’s awareness of them, yet affirmed the defendant’s

sentence without deciding the reliability of the recorded

confessions. Santiago, 495 F.3d at 824-25; see United States

v. Busara, 551 F.3d 669, 672-73 (7th Cir. 2008).

As the government points out, Isom invokes this presumption to avoid the consequences of trial counsel’s

insufficient objection to the presentence report. The

probation officer determined that trial counsel had not

raised a formal objection through a written submission

stating only that he objected to “all relevant conduct, as

relevant conduct is based on unreliable hearsay.” Nor

did Isom raise much of an objection at the sentencing

hearing, merely alluding to the fact that one of the

coconspirators was not charged with a federal crime.

Isom had to produce more than a bare denial to adequately object, which he did not. See United States v.

Turner, 604 F.3d 381, 385 (7th Cir. 2010). Absent an objection, the district court was entitled to rely on the

presentence report—even if it rested on hearsay. See FED.

R. CRIM. P. 32(i)(3); United States v. Aviles-Solarzano,

623 F.3d 470, 475 (7th Cir. 2010); United States v.

Charlesworth, 217 F.3d 1155, 1160 (9th Cir. 2000).
No. 10-1085 9

In any event, the key at both trial and sentencing to

admitting statements from non-testifying coconspirators

is reliability. At trial, the government can overcome the presumption against self-serving statements

from non-testifying coconspirators by showing that the

statements are reliable, or have “particularized guarantees of trustworthiness.” Lee v. Illinois, 476 U.S. 530, 543

(1986); see Varela v. United States, 481 F.3d 932, 935 (7th

Cir. 2007). At sentencing, courts may rely on presentence

reports containing even double-hearsay, i.e., statements

by coconspirators to investigators, so long as those statements are reliable. See Artley, 489 F.3d at 821; United

States v. Westmoreland, 240 F.3d 618, 629-30 (7th Cir. 2001);

see also United States v. Jones, 195 F.3d 379, 382 (8th Cir.

1999); United States v. Randall, 171 F.3d 195, 211-12 (4th Cir.

1999); United States v. Query, 928 F.2d 383, 384-85 (11th

Cir. 1991).

Here, the government established that both Rose’s and

Coffey’s accounts as recounted in the presentence

report were reliable. Reliability can be established by

internal consistency, corroborating evidence, and providing missing facts and details. See United States v. Mays,

593 F.3d 603, 608 (7th Cir.), cert. denied, 130 S. Ct. 3340

(2010); United States v. Hankton, 432 F.3d 779, 791 (7th Cir.

2005); United States v. Thomas, 280 F.3d 1149, 1154 (7th

Cir. 2002); United States v. Galbraith, 200 F.3d 1006, 1013

(7th Cir. 2000). Rose’s testimony at trial was consistent

with what she told the officers as recounted in the

presentence report. Moreover, the agent testified that

when Rose was interviewed, Rose stated that Coffey

was “a regular customer of Isom’s who would come to
10 No. 10-1085

her residence frequently to purchase crack cocaine,” and

that “after [Rose] kicked Isom out of her residence, Isom

began selling crack cocaine from Coffey’s apartment.”

Regarding Coffey, the agent testified that she was an

associate of Isom’s. When the agent could not reach

Isom for a crack-cocaine delivery, Coffey subbed in

and sold the agent cocaine. If Isom wanted to impeach

this testimony, Isom could have done so, but he elected

not to. See United States v. Schaefer, 291 F.3d 932, 943 (7th

Cir. 2002). The court’s reliance on those accounts, corroborated and reinforced by the agent’s testimony, was

not clearly erroneous.

We turn now to Isom’s argument that his trial counsel

was ineffective for failing to raise the Kimbrough issue.

In his brief to this court, Isom’s appellate lawyer

argued that trial counsel had no strategic reason for

remaining silent on the Kimbrough issue, and thus was

deficient in not raising the claim. We likewise are hardpressed to discern any strategic justification for trial

counsel’s silence. When the district judge asked counsel

whether he had anything further on the drug-quantity

issue, counsel stressed that in his 30 years’ experience

he learned it was best to keep his “mouth shut.” We will

not justify as “strategic” a decision to stay silent if we

cannot discern any way in which silence would have

improved the client’s position. See Girts v. Yanai, 501

F.3d 743, 757-58 (6th Cir. 2007); Miller v. Martin, 481

F.3d 468, 473 (7th Cir. 2007).

Before oral argument, however, Isom’s appellate

counsel notified this court that he was withdrawing the
No. 10-1085 11

ineffective-assistance argument “with no waiver to the

argument being asserted in a subsequent proceeding

under 28 U.S.C. § 2255.” Counsel confirmed that statement at oral argument. This was a wise move since

ineffective-assistance claims typically require a more

developed record than exists on direct appeal. See

Massaro v. United States, 538 U.S. 500, 505 (2003); United

States v. Schuh, 289 F.3d 968, 976 (7th Cir. 2002). And on

the off chance that Isom might have a valid postconviction claim that trial counsel was ineffective for failing

to raise a Kimbrough argument, it would be premature

for us to discuss that question. At oral argument we

also asked appellate counsel if he wished us to address

the forfeited Kimbrough claim as a matter of plain error

in lieu of his ineffective-assistance claim, which we

have power to do, see United States v. Olano, 507 U.S. 725,

733-34 (1993); Silber v. United States, 370 U.S. 717, 717-18

(1962). But counsel declined our invitation.

Conclusion

Because the district court’s relevant-conduct determination rested on reliable evidence, we AFFIRM.

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