In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3527

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

COREY D. WINTERS,

Defendant-Appellant.

Appeal from the United States District Court 

for the Eastern District of Wisconsin.

No. 09 CR 254—Charles N. Clevert, Jr., Chief Judge.

ARGUED APRIL 20, 2012—DECIDED AUGUST 29, 2012

Before MANION, ROVNER, and WILLIAMS, Circuit Judges.

MANION, Circuit Judge. Corey Winters pleaded guilty

to conspiracy to possess with the intent to distribute

large quantities of drugs. The plea agreement provided

that the government would recommend a base offense

level of 32. But at sentencing the government concurred

in the Presentence Investigation Report’s (“PSR”) conclusion that Winters was a career offender, which

raised Winters’s offense level to 37. The district court
2 No. 11-3527

adopted the PSR, set Winters’s offense level at 37, and

sentenced him to 165 months’ imprisonment, well below

the recommended Guidelines. Winters appeals, arguing

that the government violated the plea agreement by not

recommending to the district court a base offense level

of 32. The Supreme Court’s decision in Sykes v. United

States, 131 S.Ct. 2267 (2011), overrode that recommendation. We affirm the district court’s sentence.

I.

Corey Winters was part of a large drug conspiracy

in Wisconsin. He eventually pleaded guilty, pursuant to

a plea agreement, to one count of conspiracy to possess

with the intent to distribute 5 kilograms or more of

cocaine, 50 grams or more of cocaine base, and marijuana,

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

Among other things, the plea agreement provided:

“The parties acknowledge and understand that the government will recommend to the sentencing court that

the applicable base offense level for the offense charged

in count one is 32 under Sentencing Guidelines Manual

§ 2D1.1(c)(4).”

The PSR prepared by the United States Probation

Office, however, determined that Winters was a career

offender under U.S.S.G. § 4B1.1(b). The PSR thus set

Winters’s offense level at 37 based on the career

offender provisions of the Sentencing Guidelines. U.S.S.G.

§ 4B1.1(b).

Winters objected to the PSR’s determination that he

was a career offender, arguing that his prior convictions
No. 11-3527 3

for fleeing were not crimes of violence and thus did

not qualify him as a career offender for purposes of

the Sentencing Guidelines. In making this argument,

Winters acknowledged that whether these convictions

potentially qualified for purposes of the career offender

status was then under review by the Supreme Court in

United States v. Sykes, 598 F.3d 334 (7th Cir. 2010), cert.

granted 131 S.Ct. 63 (2010). Winters requested and

received several continuances of his sentencing hearing

while Sykes remained pending.

In June of 2011, the Supreme Court held in Sykes v.

United States that felony vehicle flight was a crime of

violence for purposes of the career offender provisions.

Sykes v. United States, 131 S.Ct. 2267, 2277 (2011). The

Probation Office issued an updated PSR, which again

concluded that Winters was a career offender based on

his prior convictions. Sentencing proceeded on November 1, 2011.

At sentencing, the district court asked the government whether it had any objections to the PSR and the

government responded: “No Judge, no objections to the

facts nor the guideline calculation. With one exception

which I believe, in any event, will be taken care of by

the career offender status.” The district court judge then

turned to Winters’s counsel who stated:

Unfortunately, Mr. Winters is a career offender so a

lot of the enhancements that we would object to

really don’t make a difference because he falls under

the career offender category[.] . . . [T]hat isn’t going

to make any difference in the overall range
4 No. 11-3527

Mr. Winters falls in because of the career offender

status in light of U.S. v. Sykes.

The district court then inquired whether Winters was

withdrawing his objection to the career offender status

in light of Sykes, but his counsel preserved the objection

without further argument. The court then overruled

Winters’s objection and held that he was a career

offender, and adopted the PSR’s calculation of a

final offense level of 37. With Winters’s criminal history

category of VI, the Guideline range was 262 to

327 months. The government recommended a sentence

of 170 months pursuant to a motion for substantial assistance. Winters, while acknowledging his career offender

status, stressed that the guidelines were advisory and

asked for a 72-month sentence. The district court sentenced him to 165 months’ imprisonment. Winters

appeals, arguing solely that the government breached

its plea agreement by not arguing for an offense level of 32.

II.

At the sentencing hearing before the district court,

Winters did not argue that the government had breached

the plea agreement. Accordingly, this court’s review is

for plain error. United States v. Brodie, 507 F.3d 527, 530

(7th Cir. 2007). For there to be plain error, there must be

error, the error must be clear or obvious, and the error

must affect the defendant’s substantial rights. United

States v. States, 652 F.3d 734, 740 (7th Cir. 2011). Only

then does this court have the discretion to remedy that

error—a discretion which ought to be exercised only if
No. 11-3527 5

The government argues that it did not breach the plea

1

agreement because that agreement only required it to argue

for a base offense level of 32. According to the government, the

career offender provisions do not set the base offense level, but

rather establish an adjusted offense level. Conversely, Winters

(continued...)

the error seriously affects the integrity of the judicial

proceedings. Id.

Winters cannot establish plain error because his substantial rights were not affected. Winters’s attorney

acknowledged at the sentencing hearing that Winters

was a career offender and on appeal Winters does not

argue that he is not a career offender as defined by the

Guidelines. Rather, Winters asserts that even though he

is a career offender, the district court was not required

to sentence him as such because the Guidelines are

merely advisory.

“Although a judge is no longer required to give a guidelines sentence, he is required to make a correct determination of the guidelines sentencing range as the first

step in deciding what sentence to impose.” United States

v. Vrdolyak, 593 F.3d 676, 678 (7th Cir. 2010). Thus, in

determining Winters’s sentence, the district court was

required to first properly ascertain his Guideline sentencing range. And a proper calculation of Winters’s

Guideline range included the offense level of 37 based

on his undisputed status as a career offender. Accordingly, even if the government had argued that Winters’s offense level should be 32, the district court is not

1
6 No. 11-3527

(...continued) 1

maintains that the career offender provisions, when

applicable, establish a new base offense level and thus by

agreeing with the career offender offense level of 37, the

government violated the plea agreement. We need not

resolve this dispute, however, because, as explained above,

any breach of the plea agreement would be harmless.

8-29-12

bound by the plea agreement. United States v. Mankiewicz,

122 F.3d 399, 403 n.1 (7th Cir. 1997). It is also highly

unlikely the judge would have ignored the law and

accepted that argument. Rather, in light of the

undisputed facts, the district court would have set Winters’s offense level at 37 based on his status as a career

offender and sentenced him exactly as it did. Given

the sentencing range of 262 to 327 months’ imprisonment

and the government’s request of 170 months’ imprisonment, the imposed sentence of 165 months was certainly

fair and appropriate, and to some extent favorable

to Winters. We AFFIRM.