United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued September 19, 2011

Decided July 19, 2012

Before

 

FRANK H. EASTERBROOK, Chief Judge

MICHAEL S. KANNE, Circuit Judge

 ANN CLAIRE WILLIAMS, Circuit Judge

No. 11-1352

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LATOYA MCDANIEL,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 4:10-CR-40032

J. Phil Gilbert,

Judge. 

O R D E R

Latoya McDaniel pled guilty to one charge of conspiring to distribute five grams or more

of crack cocaine. She appeals the 120-month sentence she received and argues that the district court

erred when it included purported personal use amounts in its drug quantity calculation. But any

crack cocaine she received for her role as a runner and then consumed for her personal use was

necessarily intertwined with the success of the conspiracy, and the district court did not err when

it included those amounts. Next, McDaniel’s Fifth and Sixth Amendment rights were not violated

by the imposition of a mandatory minimum based on the quantity of drugs found by the judge at

sentencing rather than on the amount charged in the indictment. McDaniel receives resentencing for

another reason, however. The Supreme Court recently held that the Fair Sentencing Act’s lower

mandatory minimums apply to persons like McDaniel whose offense conduct occurred before the

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 11-1352 Page 2

Act but who were sentenced after it. Because she was sentenced under the pre-Act minimums, we

vacate McDaniel’s sentence and remand for resentencing.

I. BACKGROUND

Latoya McDaniel was a runner in a crack cocaine distribution conspiracy. She was also a

crack cocaine user. As payment for her role as a runner in the conspiracy, she received money and

sometimes crack cocaine.

On June 8, 2010, a federal grand jury in Benton, Illinois returned a one-count indictment

against McDaniel charging her with conspiring to knowingly and intentionally distribute and possess

with intent to distribute five grams or more of crack cocaine. The indictment alleged that the

conspiracy took place from approximately May 2007 through October 2009. The government did

not file a 21 U.S.C. § 851 notice of intention to seek increased punishment by reason of prior

conviction. On November 4, 2010, McDaniel entered an open plea of guilty and stated that she

planned to dispute the drug quantity determination at the sentencing hearing. The judge informed

her at the change of plea hearing that the statutory sentencing range would be five to forty years or

zero to twenty years, depending on the applicability of the Fair Sentencing Act. 

The Presentence Report concluded that McDaniel’s relevant conduct included 266.7 grams

of crack cocaine and that this amount triggered a ten-year statutory minimum under 21 U.S.C. §§

841(b)(1)(A) and 846. McDaniel objected, contending that the relevant conduct calculation should

not include the crack cocaine that she personally used. She also maintained that a five-year statutory

minimum should apply to her rather than a ten-year minimum because the indictment only charged

her with conspiring to distribute five or more grams of crack cocaine. At the sentencing hearing, the

district court adopted the PSR’s relevant conduct determination of 266.7 grams of crack cocaine.

The resulting advisory guideline range was 78 to 97 months. After concluding that the applicable

statutory mandatory minimum sentence was ten years, the district court imposed that term. She

appeals her 120-month sentence. 

II. ANALYSIS

A. Inclusion of Personal Use Amounts

The first question on appeal is whether the district court erred when it included in the drug

quantity determination amounts of crack cocaine that McDaniel asserts were for her personal use.

We review the district court’s drug quantity calculation for clear error. United States v. Wilson, 481

F.3d 475, 483 (7th Cir. 2007). 

To qualify as relevant conduct under the federal sentencing guidelines, an act must be “part

of the same course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G.

§ 1B1.3(a)(2); see United States v. Snook, 60 F.3d 394, 395-96 (7th Cir. 1995). Relevant conduct

includes acts and omissions “that occurred during the commission of the offense of conviction, in
No. 11-1352 Page 3

preparation for that offense, or in the course of attempting to avoid detection or responsibility for

that offense.” U.S.S.G. § 1B1.3(a)(1). 

The PSR based its calculation of 266.7 grams on several pieces of information. These

included conspiracy member Kenya Ganer’s report that McDaniel was a runner who purchased at

least two grams of crack cocaine from him every week for 18-24 months, which amounted to

approximately 144 grams. McDaniel also admitted that she obtained approximately 118 grams from

various persons involved in the conspiracy. 

McDaniel’s objection to drug quantity determination in the PSR and at sentencing did not

indicate any specific amounts which she contended should not be included. Instead, she objected to

the inclusion of all the drug amounts as personal use quantities. In any event, the district court did

not err when it included the personal use amounts in the drug quantity determination. McDaniel’s

conviction was for conspiracy, and our decision in Precin v. United States, 23 F.3d 1215 (7th Cir.

1994), is instructive. There the defendant claimed that some of the 500 grams of cocaine for which

he had been found responsible were for his personal use and had no effect on the conspiracy. Like

McDaniel, the defendant in Precin obtained the personal use quantities in return for his role in the

conspiracy. We said that regardless of whether the conspiracy paid the defendant in cash or in free

drugs, distribution was still the role of the venture, and any cocaine that he received for his personal

use “was necessarily intertwined with the success of the distribution.” Id. at 1219.

Similarly, in Snook, we upheld the inclusion of amounts purportedly purchased for personal

use from the defendant’s supplier in a cocaine conspiracy. We emphasized that the defendant pled

guilty to conspiracy with intent to distribute and stated that the amount he “personally consumed

directly affected the conspiracy–the more [the defendant] used, the more he had to bank-roll his

habit.” 60 F.3d at 396. 

A charge of possession rather than conspiracy would be different. We explained the

distinction in United States v. Wyss, 147 F.3d 631, 632 (7th Cir. 1998), a case where the defendant

had been convicted of possession with intent to distribute. We concluded it was improper for the

district court to include amounts corresponding to the defendant’s possession of cocaine for personal

use when it sentenced him for possession with the intent to distribute. We said:

The case would be different . . . if the charge were conspiracy rather than possession .

. . . Suppose that X sells Y a kilogram of cocaine in circumstances that make Y a

conspirator with X and not merely a buyer from him. The amount of drugs involved in

the conspiracy is unaffected by the use that Y makes of the drugs. It makes no difference

whether he sells the entire amount and buys drugs for his personal consumption on the

open market with the proceeds or keeps a portion of the drugs to consume personally as

compensation for his participation in the conspiracy. 

Id. at 632. Here, the district court did not err when it included the crack cocaine that McDaniel

received in return for being a runner in the conspiracy. When McDaniel received crack cocaine from

her sources, she would redistribute some of the crack cocaine and use some for her personal use. As

in Precin, the crack cocaine she received for her personal use was intertwined with the success of

the conspiracy. The fact that her suppliers did not control how much of the cocaine would be used
No. 11-1352 Page 4

by McDaniel personally “does not break the link between the personal-use cocaine and the

conspiracy.” Snook, 60 F.3d at 396. Under our precedent, there was no error in the drug quantity

determination. 

B. Mandatory Minimum Sentence

McDaniel also challenges whether the ten-year statutory minimum she received violates her

rights under the Fifth and Sixth Amendments. She argues that because the indictment charged her

with possessing “five grams or more” of crack cocaine, she should only be subject to the statutory

mandatory minimum that corresponds to five grams of crack cocaine.

As McDaniel recognizes, however, the precedent is against her. In Apprendi v. New Jersey,

530 U.S. 466, 490 (2000), the Supreme Court held that “[o]ther than the fact of a prior conviction,

any fact that increases the penalty of a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.” In Harris v. United States, 536 U.S.

545, 568 (2002), the Supreme Court declined to extend Apprendi to statutory mandatory minimums,

reasoning that a minimum does not expose defendants to greater potential for punishment. A judge

can therefore make a factual finding at sentencing by the preponderance of the evidence standard

that increases the penalty beyond the minimum. McMillan v. Pennsylvania, 477 U.S. 79, 91 (1986).

We have noted the difficulty in reconciling McMillan with Apprendi but have recognized our

obligation to follow Supreme Court precedent unless the Court explicitly overrules a case. United

States v. Krieger, 628 F.3d 857, 869 (7th Cir. 2010).

Here, under the statute in effect at the time of the offense conduct, at least 50 grams of crack

cocaine triggered a mandatory minimum sentence of ten years’ imprisonment. See 21 U.S.C. §

841(b)(1)(A)(iii) (2009). (Five grams of crack cocaine would have yielded a five-year mandatory

minimum. 21 U.S.C. § 841(b)(1)(B)(iii) (2009)). The finding at sentencing of 266.7 grams therefore

triggered a ten-year mandatory minimum under the statute in effect at the time of her conduct.

Although McDaniel maintains this drug quantity determination should have been found by a jury

or admitted by her, the Supreme Court has held otherwise, and there was no constitutional violation.

See Harris, 536 U.S. at 558 (“Judicial factfinding in the course of selecting a sentence within the

authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of

the Fifth and Sixth Amendments.”).

C. Fair Sentencing Act

The Supreme Court’s recent decision in Dorsey v. United States, 132 S. Ct. 2321 (2012),

however, entitles McDaniel to resentencing. McDaniel was sentenced after the Fair Sentencing Act

became law for offense conduct that occurred before it. McDaniel entered her plea of guilty in

November 2010. At the change of plea hearing, the prosecutor informed the court that the

government did not yet have a relevant conduct estimate. The prosecutor also stated that McDaniel

would be sentenced under the new advisory guidelines for crack cocaine offenses. But because her

conduct took place before the Fair Sentencing Act’s passage, the government expressed its belief

that if McDaniel possessed more than five grams of crack cocaine, her statutory range would be five

to forty years. The district court informed McDaniel that her sentencing range based on the statute
No. 11-1352 Page 5

in effect at the time she committed her offense was five to forty years’ imprisonment. But, the court

told her, if the Fair Sentencing Act applied, her sentencing range would be zero to twenty years. 

At sentencing, the district court determined that 266.7 grams of crack cocaine combined with

McDaniel’s criminal history initially yielded an advisory guidelines range of 78 to 97 months. But,

the court continued, her guidelines range was effectively 120 months because it found 120 months

to be the statutory mandatory minimum. Under the pre-FSA version of the statute, 50 grams or more

of crack cocaine triggered a 10-year mandatory minimum. See 21 U.S.C. § 841(b)(1)(A)(iii) (2009).

(The 266.7-gram quantity was apparently much higher than even the government had contemplated

at the change of plea hearing; McDaniel does not contend her plea was involuntary because she was

not informed then of a potential ten-year mandatory minimum sentence.) 

The district court then heard presentations from both sides. McDaniel’s counsel related, as

the PSR had reported, the difficult circumstances of McDaniel’s life. Her mother was a crack addict

who abused and mistreated her. After she was taken from her mother, another family member

sexually abused her for a number of years. McDaniel became addicted to crack cocaine as a teenager

and became pregnant with the first of five children when she was fifteen. She recognized her

addiction at the sentencing hearing and said she sought to change her life. The district court

recognized McDaniel’s difficult circumstances, expressed the opinion that some incarceration was

necessary, and imposed a sentence of ten years, the term it had concluded was the minimum

sentence authorized by statute. 

While this appeal was pending, the Supreme Court held in Dorsey that the Fair Sentencing

Act governs in all sentencing proceedings from its effective date forward, even if the offense

conduct took place before the Act’s effective date. The Fair Sentencing Act therefore applies to

McDaniel. Under the Fair Sentencing Act, when as here no section 851 notice has been filed, a

quantity of 280 grams of crack cocaine is necessary to trigger the ten-year mandatory minimum. See

21 U.S.C. § 841(b)(1)(A)(iii) (2011). McDaniel’s 266.7 grams, however, yields a lower mandatory

minimum of five years’ imprisonment. See 21 U.S.C. § 841(b)(1)(B)(iii) (2011). 

The issue of the Fair Sentencing Act’s application was raised at McDaniel’s change of plea

hearing, although for reasons that are unclear it was not explicitly raised again at her sentencing.

McDaniel also did not raise the issue in her briefing on appeal, but at the time of briefing our

circuit’s law was settled that the Fair Sentencing Act did not apply to her. Even under plain error

review, McDaniel receives resentencing. The error is plain now in light of Dorsey. See United States

v. Moody, 664 F.3d 164, 166 (7th Cir. 2011); cf. United States v. Henderson, 646 F.3d 223 (5th Cir.

2011), cert. granted (U.S. June 25, 2012) (No. 11-9307). And although the sentencing transcript

reflects that the district court believed some imprisonment was in order for McDaniel, it may well

have imposed a lower sentence if it had known the mandatory minimum was lower. We therefore

vacate McDaniel’s sentence and remand for resentencing. See United States v. McLee, 436 F.3d 751,

766 (7th Cir. 2006) (ordering a limited remand in light of Booker even though defendant did not

specifically request resentencing); see also United States v. Murphy, 406 F.3d 857, 862 (7th Cir.

2005).
No. 11-1352 Page 6

III. CONCLUSION

We VACATE McDaniel’s sentence and REMAND for resentencing consistent with Dorsey and

the Fair Sentencing Act.