In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3441

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CALVIN BROWN,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 4:09-cr-40072-GPM-1—G. Patrick Murphy, Judge.

ARGUED SEPTEMBER 7, 2011—DECIDED OCTOBER 18, 2011

Before POSNER, FLAUM, and HAMILTON, Circuit Judges.

FLAUM, Circuit Judge. Calvin Brown pled guilty to

three drug-related offenses in May 2010 and was sentenced in October 2010. He challenges the district court’s

decision not to apply the Fair Sentencing Act, Pub. L. 111-

220, 124 Stat. 2372 (2010), at his sentencing. He also

argues that the district court erroneously believed that

he was subject to a $300 mandatory minimum fine for
2 No. 10-3441

each count of conviction, though his convictions have

no such mandatory minimum fines.

In light of our holding in United States v. Fisher, 635

F.3d 336 (7th Cir. 2011), we affirm the district court’s

decision not to apply the Fair Sentencing Act at Brown’s

sentencing. We agree, however, that the district court

was not required to impose upon Brown any mandatory

minimum fines. To the extent that the district court

understood the fines he imposed as obligatory, the

mistake of law constitutes clear error. See United States

v. McMath, 559 F.3d 657, 663 n.2 (7th Cir. 2009) (“[A]

mistake of law generally satisfies clear error . . . .”); cf.

United States v. Jaderany, 221 F.3d 989, 994 (7th Cir. 2000)

(“We may reverse a district court’s decision to refuse a

[downward] departure when it makes a mistake of law.”).

We, therefore, vacate Brown’s fines and remand for

reassessment.

I. Background

Brown was indicted on three drug-related charges on

October 6, 2009. Count I charged that he possessed with

intent to distribute five grams or more of crack cocaine

on May 3, 2007, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(B); Count II charged that he distributed heroin

on June 2, 2009, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(C); and Count III charged that he distributed crack

on June 8, 2009, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(C). He pled guilty to all three counts on May 13,

2010.
No. 10-3441 3

Brown was sentenced on October 4, 2010, two months

after Congress enacted the Fair Sentencing Act (“FSA”)

and two months before the amended guidelines went

into effect. Ignoring the FSA, the district court found that

Brown had an offense level of 35 and a criminal history

category of VI. Accordingly, it found that his guideline

range was 292-365 months of imprisonment, ten years

of supervised release, a fine range of $20,000 to $8,000,000,

and a $300 special assessment. It sentenced him to 292

months of imprisonment on each count, to run concurrently, followed by eight years of supervised release on

Count I and six years of supervised release on Counts II

and III, also to run concurrently. It then imposed $1,200

in fines, consisting of a $300 mandatory special assessment and a $300 fine on each of Brown’s three counts

of conviction. It explained that it was imposing “a mandatory minimum fine [of] $300 on each count and

similarly $300 on a special assessment. So you end up

with a $1,200 fine.” Brown timely appeals.

II. Discussion

Brown raises two arguments on appeal. First, he contends that the district court should have applied the FSA

in imposing its sentence. Had it done so, he claims,

his advisory Guidelines range would have dropped from

292-365 months of imprisonment to 210-262 months.

He also argues that the district court mistakenly believed that each count carried a $300 mandatory minimum fine.
4 No. 10-3441

A. The Fair Sentencing Act is Not Retroactive.

Although Brown’s offenses occurred before Congress

enacted the FSA, he claims that the district court should

have applied the FSA at sentencing because his sentencing occurred after it was enacted. Since he never

asked the district court to sentence him under the FSA,

we review his argument for plain error. United States v.

Garrett, 528 F.3d 525, 527 (7th Cir. 2008) (explaining

that plain error review applies when a defendant negligently fails to raise a sentencing argument before the

district court at the time of sentencing, but attempts to

raise it before the Court of Appeals).

Brown’s argument is foreclosed by our opinion in

United States v. Fisher, 635 F.3d 336, 340 (7th Cir. 2011), in

which we held that the FSA does not apply retroactively

to defendants who committed their offenses before the

FSA was enacted on August 3, 2010, despite the fact

that their sentencing occurred after the FSA’s enactment.

Id. at 338, 340; see also United States v. Holcomb, Nos. 11-

1558, 11-1559, 11-1586, 11-1758, 2011 WL 3795170, at *1

(7th Cir. Aug. 24, 2011) (en banc) (declining to reverse

Fisher).

We deny Brown’s alternative request for a limited

remand to permit the district court to determine whether

it would like to resentence him voluntarily under the

FSA or with sensitivity to the FSA’s reduced distinction

between sentences involving crack and those involving

powder cocaine. The district court correctly declined

to apply the FSA at Brown’s sentencing. We find no

compelling grounds to remand on this issue. Cf. United
No. 10-3441 5

Brown claims that we should review the district court’s 1

decision de novo because he had no chance to object to the

ruling until it was already entered. He cites Federal Rule of

Criminal Procedure 51(a), which provides that “[e]xceptions

to rulings or orders of the court are unnecessary.” FED. R. CRIM.

P. 51(a). An “exception” occurs when a litigant complains

(continued...)

States v. Vance, No. 10-3245, 2011 WL 4436004, at *2-3 (7th

Cir. Sept. 26, 2011) (electing not to revisit this Court’s

holdings in Fisher and Holcomb, as well as finding no

compelling reason to reverse a reasonable sentence imposed in accordance with those holdings).

B. Considering the $300 Fines Mandatory Minimums

Was Error.

When explaining its decision to impose a $300 fine

for each of Brown’s three counts of conviction, the district

court explained that there was “a mandatory minimum

fine [of] $300 on each count.” It also explained that the

payment was owed immediately. The parties agree that

Brown’s convictions carried no mandatory minimum

fine amounts. Accordingly, Brown asks for a remand

to correct the mistake.

Because Brown neither objected to nor made an argument about the fines the district court imposed at the

time, we review their imposition for plain error. See, e.g.,

United States v. Riley, 493 F.3d 803, 810 (7th Cir. 2007)

(applying plain error review to arguments forfeited at

sentencing regarding the imposition of fines). Under 1
6 No. 10-3441

(...continued) 1

about a judicial decision after it has been made. See United

States v. Bartlett, 567 F.3d 901, 910 (7th Cir. 2009). He further

references Rule 51(b), which provides that “[i]f a party does

not have an opportunity to object to a ruling or order, the

absence of an objection does not later prejudice that party.”

FED. R. CRIM. P. 51(b). We disagree. Rule 51(a) applies to

issues that were raised before a judicial ruling. See Bartlett, 567

F.3d at 910. We have further explained that Rule 51(b)

requires litigants seeking to preserve issues not raised before a

judicial decision to raise those issues “when the court ruling or

order is made or sought.” FED. R. CRIM. P. 51(b); see also

Bartlett, 567 F.3d at 910 (“When the judge surprises counsel, it is

far better to air and resolve the matter in the district court than

to bypass available opportunities for correction and save the

issue for appeal.”).

plain error review, we must determine “(1) that error

occurred; (2) that the error was plain; and (3) that the

error affected the defendant’s substantial rights.” United

States v. Leupke, 495 F.3d 443, 448 (7th Cir. 2007) (internal

quotation marks and citations omitted). If these criteria

are met, we may reverse.

An error is “plain” if it is “clear” or “obvious.” United

States v. Olano, 507 U.S. 725, 734 (1993). Further, defendants bear the burden of demonstrating that their

substantial rights were affected by the error, which generally requires showing prejudice: the error “must have

affected the outcome of the district court proceedings.”

Olano, 507 U.S. at 734; see also Leupke, 495 F.3d at 450-51.

Finally, the Supreme Court has explained that when a
No. 10-3441 7

plain error affects the defendant’s substantial rights, we

should invoke our discretion to remand a case “in those

circumstances in which a miscarriage of justice would

otherwise result,” and it defines “miscarriage of justice”

as an error that “seriously affect[s] the fairness, integrity

or public reputation of judicial proceedings.” Olano,

507 U.S. at 736 (internal quotation marks and citations

omitted); see also United States v. Newman, 965 F.2d 206,

213 (7th Cir. 1992). We find plain error in this case.

Brown was not subject to a mandatory minimum fine,

and the district court erred in stating otherwise.

Brown pled guilty to three counts of violating 21

U.S.C. § 841(a)(1). He was sentenced under 21 U.S.C.

§ 841(b)(1)(B) for Count I and § 841(b)(1)(C) for Counts II

and III. Neither of those statutes nor the general fine

statute, 18 U.S.C. §§ 3571-3574, impose a mandatory

minimum fine.

The Sentencing Guidelines provide that “[t]he court

shall impose a fine in all cases, except where the

defendant establishes that he is unable to pay and is not

likely to become able to pay any fine,” U.S.S.G. § 5E1.2(a),

and further states that, under those circumstances, “the

court may impose a lesser fine or waive the fine,” U.S.S.G.

§ 5E1.2(e). Accordingly, we have explained that “criminal

fines are discretionary, and sentencing courts must consider ability to pay when determining whether to

impose any fine at all.” United States v. Ellis, 522 F.3d

737, 739 (7th Cir. 2008).

Faced with an advisory guideline fine range of $20,000

to $8,000,000, the presentencing report concluded that
8 No. 10-3441

Brown did not “have the ability to pay a fine within the

guideline range nor does he have the ability to pay a

fine immediately.” Further, the district court’s Statement of Reasons states the following: “[f]ine waived or

below the guideline range because of inability to pay,” and

also that “[t]he court has departed downward on the

fine due to the defendant’s inability to pay.” We may

consider these comments to interpret the district court’s

oral pronouncements at sentencing. See United States v.

Pape, 601 F.3d 743, 747 (7th Cir. 2010).

On a correct understanding of the law, Brown’s

inability to pay permitted the district court to not impose

a fine at all. Yet, the Statement of Reasons indicates that

the district court erroneously believed that the $300

fines were mandatory minimums. This mistake of law

implicated Brown’s substantial rights because it dictated

the outcome of his sentencing—the district court viewed

itself as obligated to impose the fines. See McMath, 559

F.3d at 663 n.2 (noting that mistakes of law typically

satisfy plain error and merit reversal); United States v.

Flores-Sandoval, 94 F.3d 346, 351 (7th Cir. 1996) (explaining

that, in the context of imposing fines, an error

prejudices the defendant’s substantial rights if it likely

would have affected the amount of the fine). We may

remand to correct this mistake. Cf. United States v. Jumah,

599 F.3d 799, 813 (7th Cir. 2010) (finding that plain

error exists and remand is proper when a sentence is

based on a miscalculation of the guidelines range);

Garrett, 528 F.3d at 529-30 (same); United States v.

Ortiz, 613 F.3d 550, 554 (5th Cir. 2010) (remanding for

resentencing when a district court imposed a sentence
No. 10-3441 9

that it believed was a mandatory minimum, but which

exceeded the actual mandatory minimum for the offense).

III. Conclusion

For the foregoing reasons, we AFFIRM the judgment of

the district court not to apply the Fair Sentencing Act

during Brown’s sentencing, but we VACATE its imposition of his fines and REMAND for reassessment consistent with this opinion.

10-18-11