In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2574

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WILLIAM R. HIBLE,

also known as BILLY HIBLE,

Defendant-Appellant.

Appeal from the United States District Court 

for the Central District of Illinois.

No. 2:10-cr-20015-MPM-DGB-1—Michael P. McCuskey, Judge.

ARGUED SEPTEMBER 20, 2012—DECIDED NOVEMBER 8, 2012

Before EASTERBROOK, Chief Judge, and MANION and

TINDER, Circuit Judges.

TINDER, Circuit Judge. William R. Hible appeals his

sentence, arguing that he should have been sentenced

consistent with the more lenient penalties of the Fair

Sentencing Act of 2010 (the Act or FSA), Pub. L. No. 111-

220, 124 Stat. 2372. Although under Dorsey v. United

States, ___ U.S. ___, 132 S. Ct. 2321 (2012), the FSA’s more
2 No. 11-2574

lenient penalties apply to pre-Act offenders who were

sentenced after the Act took effect, we agree with the

government that Hible has waived any right to argue

that he should have been sentenced under the FSA.

I

Hible was charged in a three-count indictment with

criminal drug conspiracy involving the distribution of

cocaine and crack cocaine from May 2008 through

February 2010 and with the distribution of cocaine

in October 2009 and distribution of crack cocaine in

December 2009 in violation of 21 U.S.C. §§ 841 and 846.

In June 2010, the government filed notice pursuant to

21 U.S.C. § 851 that it would seek an enhanced sentence

due to Hible’s prior felony drug conviction. The law in

effect at the time had a mandatory minimum penalty

of 10 years’ imprisonment and a maximum penalty of

life imprisonment for a defendant who distributed

5 grams or more of crack cocaine and had a prior felony

drug conviction. See 21 U.S.C. § 841(b)(1)(B)(iii) (2006).

On January 12, 2011, a magistrate judge held a change

of plea hearing. The government stated its intent to

dismiss Counts 1 and 2 at sentencing, and Hible pleaded

guilty to Count 3, charging him with distributing 5 grams

or more of crack cocaine. The magistrate judge advised

Hible of the potential penalties and asked him if he

had any questions about them. Hible asserted that he

should be sentenced under the new law, the Fair Sentencing Act of 2010. The FSA increased the threshold

amount of crack cocaine for certain penalties and as
No. 11-2574 3

a result lowered the penalty for offenses involving

crack. Under the FSA, a defendant who distributed

12.8 grams of crack and had a prior felony drug conviction faced no mandatory minimum term of imprisonment and a maximum term of imprisonment of not

more than 30 years. See 21 U.S.C. § 841(b)(1)(B)(iii), (C)

(2006 & Supp. IV).

The magistrate judge said he did not know the sentencing judge’s position on the applicability of the FSA

to defendants such as Hible who committed an offense

prior to the change in the law but who would be sentenced afterwards, but advised Hible that he could

appeal the decision to sentence him under the “old law,”

if that was the judge’s decision. The prosecutor stated

that the Seventh Circuit had rejected Hible’s argument

that the FSA applies to offense conduct occurring before

the law’s enactment on August 3, 2010 (presumably

referring to United States v. Bell, 624 F.3d 803, 814-15

(7th Cir. 2010), cert. denied, 131 S. Ct. 2121 (2011), and

others), but noted that “the defendant will preserve the

right to make that argument.” Hible agreed to the

factual basis for his plea, including that on December 3,

2009, he sold 12.8 grams of crack cocaine to an informant. Hible pled guilty to the charge of distributing

5 grams or more of crack cocaine. The magistrate judge

found that there was a factual basis for the plea, that

the plea was knowing and voluntary, and that Hible

was guilty as charged in Count 3.

A presentence report was prepared prior to sentencing. The report calculated Hible’s base offense level
4 No. 11-2574

under the drug quantity guideline, U.S.S.G. § 2D1.1,

resulting in a base offense level of 36, based in part on

relevant conduct, and after adjustments, a total offense

level of 39. The report also calculated Hible’s offense level

under the career offender guideline, id. § 4B1.1, assuming

the FSA did not apply, which resulted in a career offender

level of 37 and after adjustments, a total offense level of

34. If the FSA applied, however, the career offender

guideline total offense level would have been 31. Hible

had nine criminal history points, which would put him

in criminal history category IV. But under the career

offender guideline, every offender is in category VI. Id.

Using the drug quantity guideline, offense level 39 and

criminal history category VI, Hible’s advisory guideline range was 360 months to life. Under the career offender guideline, offense level 34 and criminal history

category VI, the advisory guideline range was 262 to

327 months. The recommended offense level was the

higher of the two levels, that is, the one under the drug

quantity guideline (39). See U.S.S.G. § 4B1.1(b) (“[I]f the

offense level for a career offender from the table in

this subsection is greater than the offense level otherwise applicable, the offense level from the table in this

subsection shall apply.”). Thus, the presentence report

recommended a guideline range of 360 months to life.

Prior to sentencing, Hible objected to the paragraphs

of the presentence report detailing his relevant conduct,

which greatly increased the drug quantity for which

Hible could be held accountable. His objections did not

mention the FSA. In response to the objections, the government said that it “believed . . . a sentence that is suffi-
No. 11-2574 5

cient but not greater than necessary to achieve the sentencing purposes of Section 3553(a) can be found within

the advisory career offender range” of 262 to 327 months

of imprisonment. Although the government agreed with

the presentence report’s relevant conduct findings, it

said that a ruling on Hible’s relevant conduct objections was unnecessary.

At sentencing on July 7, 2011, the district court said

that it had reviewed the presentence report and noted

there were objections “that boil[ed] down to” what the

advisory guideline range should be. The court noted

that the presentence report recommended an offense

level of 39, criminal history category VI, and an advisory guideline range of 360 months to life. The court

confirmed that Hible had “no objection to the career

offender [guideline], which would put [his] advisory

guideline range at 262 to 327” months. The court also

confirmed that the government and probation had no

objection to using the career offender advisory guideline range of 262 to 327 months as “our starting point.”

Then the court asked defense counsel, “So, . . . if I agree

that our starting point is the career offender advisory

guideline range of 262 to 327[,] . . . would that mean

that there would be no objections to the presentence

report?” Counsel answered, “That’s correct,” and the

prosecutor and probation officer stated that they had no

objection to that “starting point.” The court said that

“[t]he career offender advisory guideline range would

start at offense level 34,” after factoring acceptance

of responsibility, and both the prosecutor and Hible’s

counsel agreed. Accordingly, the court found “that the
6 No. 11-2574

starting point in this case under the advisory guidelines,

by agreement of counsel and Probation, is that this is

an offense level 34/criminal history category VI and

that the advisory guideline range is 262 to 327.”

The court reconfirmed with Hible, through counsel

and with Hible directly, that he withdrew his objections

“with the agreement that the Court start at the offense

level 34/criminal history category VI/advisory guideline

range 262 to 327, instead of 360 to life.” The court

found “that all objections have been withdrawn” and

“the parties agree that “William Hible is a career offender[,] . . . is a criminal history category VI, and . . . has

an advisory guideline range of 262 to 327 months because he is an offense level 34 as adjusted.” Then the

court adopted the presentence report’s findings, as

amended by the parties’ agreement.

Hible offered mitigation evidence, which included

evidence to mitigate his career offender status—testimony

that although he was convicted of a crime of violence

occurring in 2005, he did not actually commit the

crime, but pled guilty for other reasons. The government requested a within-guideline sentence of 25 years

(300 months). Hible’s attorney recommended a belowguideline sentence of 15 years (180 months). The district

court gave Hible a “final break” and considered him

to have a criminal history category IV, which provided

an advisory guideline range of 210 to 262 months. The

court determined that “the appropriate and reasonable”

sentence was 240 months.
No. 11-2574 7

II

Hible appeals his sentence, arguing that the district

court should have sentenced him consistent with the

more lenient penalties under the FSA. The government

argues that Hible has waived his right to appeal this

issue. Hible responds that he preserved the issue for

review by objecting, at his plea hearing, to being sentenced under the old law and asserting that he should

be sentenced under the FSA. He does not, however,

argue that he asserted any right to be sentenced under

the FSA at his sentencing. We agree with the government that Hible has waived the right to argue that he

should have been sentenced under the FSA.

“[W]aiver occurs when a defendant intentionally relinquishes or abandons a known right.” United States v.

Gaona, ___ F.3d ___, No. 12-2039, 2012 WL 4747196, at *3

(7th Cir. Oct. 5, 2012) (internal quotation marks omitted). We will find waiver when a defendant “[f]or

strategic reasons . . . elect[s] to pursue one argument

while foregoing another.” United States v. Farmer, 543

F.3d 363, 371 (7th Cir. 2008); see also United States v. JaimesJaimes, 406 F.3d 845, 848 (7th Cir. 2005) (“[W]hen the

defendant selects [from among arguments] as a matter

of strategy, he also waives those arguments he decided

not to present.” (citation omitted)). Waiver precludes

appellate review. United States v. Doyle, 693 F.3d 769, 771

(7th Cir. 2012).

Hible knew of the FSA; at his plea hearing, he asked to

be sentenced under it. Yet at his sentencing, he did not

assert a right to be sentenced under the FSA. Instead, he
8 No. 11-2574

affirmatively withdrew all objections to the presentence

report and agreed that in sentencing (he had not objected

that the presentence report did not utilize the FSA in

projecting his sentence), the district court should use as a

“starting point” an offense level of 34, criminal history

category VI, and the career offender advisory guideline

range of 262 to 327 months. That this was a conscious,

strategic decision is inescapable.

By agreeing to the career offender guideline range,

Hible avoided a hearing on relevant conduct and the

potentially higher offense level calculated under the drug

quantity guideline based on that relevant conduct. He

also argued for mitigation of his career offender status.

Hible had little to gain in arguing for application of the

FSA with no mandatory minimum and a maximum

sentence of 30 years when he faced an advisory guideline range of 360 months to life and his counsel recommended a 15-year sentence. Hible’s strategic decision

paid off: the district court applied the career offender

guideline with its lower offense level and considered

Hible to have a criminal history category of IV.

Hible argues that he preserved the issue by raising it

at his change of plea hearing. As the prosecutor noted at

the plea hearing, Hible would “preserve the right to

make” the argument to be sentenced under the FSA. But

Hible never made the argument at sentencing. Instead,

he chose to agree with the government that he was a

career offender and that the “starting point” was offense

level 34, criminal history category VI, and the career

offender guideline range of 262 to 327 months. This
No. 11-2574 9

amounts to waiver. See United States v. Harris, 230 F.3d

1054, 1059 (7th Cir. 2000) (holding that defendant

waived any right to a downward departure under the

safety-valve provision where the issue was raised in

the plea agreement, but the presentence report did not

mention the safety-valve provision, and when questioned

by the district court, both the defendant and his counsel

stated they had no objections to the presentence report

other than another, different objection). As noted, the

district court gave Hible a “final break” and sentenced

him as if he was in criminal history category IV to

240 months.

III

We AFFIRM Hible’s sentence and the district court’s

judgment.

11-8-12