In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-2655

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KARL BULLOCK,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 CR 895—Samuel Der-Yeghiayan, Judge.

____________

ARGUED MAY 31, 2006—DECIDED JULY 18, 2006

____________

Before KANNE, EVANS, and SYKES, Circuit Judges.

EVANS, Circuit Judge. After receiving what can best

be described as a whopper of a sentence—1,200 months in

a federal prison—Karl Bullock filed this appeal claiming

it was unreasonable. Today, we resolve his appeal.

Bullock pleaded guilty to five counts of distributing

heroin. Each count carried a maximum penalty of 20 years.

21 U.S.C. § 841(b)(1)(C). The district court imposed the

maximum sentence for each of the counts, stringing them

together for a total sentence of 100 years. One hundred

years is a long time—one year longer, in fact, than the

standard lyrical shorthand for an unimaginably long
2 No. 05-2655

1 See, e.g., Bruce Springsteen, “Johnny 99” (“Well the evidence is

clear, gonna let the sentence, son, fit the crime / Prison for 98 and

a year and we’ll call it even, Johnny 99.”); Bob Dylan, “Percy’s

Song” (“It may be true he’s got a sentence to serve / But ninetynine years, he just don’t deserve.”); Johnny Cash, “Cocaine Blues”

(“The judge he smiled as he picked up his pen / Ninety-nine years

in the Folsom pen / Ninety-nine years underneath that ground / I

can’t forget the day I shot that bad bitch down.”); Ed Bruce,

“Ninety-Seven More To Go” (“Ninety-nine years go so slow / When

you still got ninety-seven more to go.”); Bill Anderson, “NinetyNine” (“The picture’s still in front of my eyes, the echo in my ears

/ When the jury said he’s guilty and the judge said ninety-nine

years.”); Chloe Bain, “Ninety-Nine Years” (“The sentence was

sharp, folks, it cut like a knife / For ninety-nine years, folks, is

almost for life.”); Guy Mitchell, “Ninety-Nine Years” (“Ninety-nine

years in the penitentiary, baby, baby, wait for me, around twentyfifty-five we’ll get together dead or alive.”).

sentence.1 Our task, under United States v. Booker, 543 U.S.

220, 261 (2005), is to determine whether the sentence is

nevertheless reasonable.

Bullock’s arrest came at the tail end of an investigation into drug sales by members of the Gangster Disciples

at the Rockwell Gardens housing project in Chicago,

particularly the building at 340 S. Western Avenue. As a

result of that investigation, more than two dozen people

were indicted in the case of United States v. Epps, 02 CR

895 (N.D. Ill.). Bullock would have been indicted along with

them, the government tells us, but he was arrested after

most of the other defendants had already pleaded guilty.

From the statements of some of those defendants, which are

included in Bullock’s presentence report, we learn that the

Rockwell Gardens operation got off the ground in July 1999

when Richard Epps, a Gangster Disciple “Overseer,” was

released from prison. Given responsibility by his gang

superiors for drug sales out of the 340 Building, Epps

organized a thriving crack-cocaine marketplace. His
No. 05-2655 3

2 Specifically, the eight avenues between Pulaski and Cicero just

north of the Eisenhower expressway: Karlov, Keeler, Kildare,

Kostner, Kilbourn, Kolmar, Kenton, and Kilpatrick.

workers typically dealt around half a kilogram of crack per

week, and sometimes that much in a single day.

Bullock, too, was an Overseer in the Gangster Disciples,

but he wasn’t directly involved in this crack-dealing

scheme. His main territory was a couple of miles to the

west, in the neighborhood known as “K-Town” (where all

the street names begin with “K”2

), and his primary product

line was heroin, not crack. But he knew a business opportunity when he saw it, and he noticed that the demand for

heroin at Rockwell Gardens was going unmet. So in the

summer of 2000, Bullock obtained permission from Epps to

deal heroin out of the 340 Building, in exchange for a small

licencing fee of around $600 per week. Over the next 8

weeks, with the help of at least four fellow gang members,

Bullock sold somewhere around eight kilograms of heroin

from this new location.

The material accompanying the presentence report is

primarily devoted to the extended details of this crack/

heroin conspiracy; only a small fraction of its nearly 200

pages touch on Bullock’s own involvement. The PSR also

briefly mentions a series of five transactions in the summer

of 2002 in which Bullock sold a total of 110 grams of heroin

to a government informant in his home base of K-Town.

These, then, were the six counts on which Bullock was

indicted: one count of conspiring to distribute crack and

heroin, and five counts of distributing heroin.

As we said, Bullock pleaded guilty to the five heroindistribution counts. Although there was no formal plea

agreement, the government agreed that it would move at

sentencing to dismiss the conspiracy count. The government

reserved the right to argue, however, that the entire
4 No. 05-2655

340 Building conspiracy was relevant conduct for purposes of calculating Bullock’s advisory sentencing guideline

range. See U.S.S.G. § 1B1.3(a)(2). Although Bullock denied

that the conspiracy was relevant conduct, the presentence

report agreed with the government that the heroin sold in

the course of the conspiracy should be included in the

guideline analysis. But the PSR also concluded that there

was no evidence that Bullock was directly involved in the

sale of crack and so omitted those drug quantities from its

calculation.

Despite the PSR’s recommendation, the district court

adopted the government’s view that the entire conspiracy

was relevant conduct and so held Bullock responsible not

only for the 110 grams of heroin which he admitted having sold, but also the approximately 8 kilograms of heroin

and the more than 1.5 kilograms of crack sold from the 340

Building during the 8 weeks of Bullock’s involvement there.

This made an enormous difference in the guideline calculation: 110 grams of heroin corresponds to a base offense level

of 26; add 8 kilograms of heroin and you’re at level 34;

include more than 1.5 kilograms of crack and you get to

level 38. See § 2D1.1(c). The court added another 2 points

based on evidence that Bullock routinely carried a gun

while dealing, § 2D1.1(b), and another 3 points for his being

a manager or supervisor in criminal activity involving five

or more participants, § 3B1.1(b). The court considered

granting a 2-point reduction for acceptance of responsibility,

§ 3E1.1(1), but decided not to when Bullock refused to

acknowledge his involvement in the 340 Building conspiracy.

That left the offense level at 43. The court calculated

a criminal history category of IV, but at level 43 the

criminal history category doesn’t matter—the guidelines

recommend life across the board. Recognizing the severity

of that sentence, the government suggested the court

exercise its post-Booker discretion to impose a lower
No. 05-2655 5

3 One, however, did receive a life sentence.

sentence, something on the order of 30 years. But the

district judge was not feeling lenient. Stating that he had

considered the various sentencing factors given at 18 U.S.C.

§ 3553(a), he summarized his position: “After considering

all the evidence in this case, drug distribution tears into the

very fabric of society and results in the death of individuals

and destruction of families; and you, Mr. Bullock, have

significantly contributed to that.” The 1,200-month sentence

followed this observation.

Bullock argues that his 100-year sentence is unreasonable. (He also argues that it violates the Eighth Amendment, but we always avoid addressing a constitutional

question if we can. See Rehman v. Gonzales, 441 F.3d 506,

508-09 (7th Cir. 2006).) We have said that a sentence within

the properly calculated guideline range is presumptively

reasonable but that because the guidelines are now

trumped by the factors listed in § 3553(a), a defendant

can overcome the presumption by showing that his sentence

is unreasonable when measured against those factors. See

United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.

2005). Bullock makes passing reference to many of those

factors but relies primarily on § 3553(a)(6), which directs

the court to consider “the need to avoid unwarranted

sentence disparities among defendants with similar records

who have been found guilty of similar conduct.” He points

out that among the defendants who pleaded guilty in the

related case of United States v. Epps, none received a

sentence longer than 20 years, and of the three who went to

trial and lost, one was given 300 months and one got

480 months.3

 In comparison, Bullock argues, his sentence

of 1200 months is clearly unreasonable.

The government rightly observes that comparison with

codefendants is not usually enough to establish a sentenc-
6 No. 05-2655

ing disparity for purposes of § 3553(a)(6). As we said in

United States v. Boscarino, 437 F.3d 634, 638 (7th Cir.

2006), “the kind of ‘disparity’ with which § 3553(a)(6) is

concerned is an unjustified difference across judges (or

districts) rather than among defendants to a single case.”

To some extent, however, this proves Bullock’s point: the

defendants in Epps were party to a different case and were

sentenced by a different judge, leaving open the possibility

that Bullock’s sentence was unduly affected by the vagaries

of judicial assignment. And although Bullock hasn’t explicitly compared his sentence with those received by comparably situated defendants nationwide, see United States v.

Newsom, 428 F.3d 685, 689 (7th Cir. 2005), our own experience confirms that in the federal courts, where defendants

actually spend some 86 percent of their time behind bars, a

sentence of 100 years is quite unusual.

Our doubts about the reasonableness of Bullock’s sentence are reinforced when we consider how the court arrived

at his sentencing range: by including as relevant conduct

both the heroin and the cocaine sold out of the 340 Building

in the summer of 2000. In order to qualify as relevant

conduct, drug sales other than the offense of conviction

must be found to be “part of the same course of conduct or

common scheme or plan as the offense of conviction.” See

§ 1B1.3(a)(2); United States v. Johnson, 324 F.3d 875, 878-

79 (7th Cir. 2003). Although § 1B1.3 cmt. n.9 provides broad

definitions of “same course of conduct” and “common scheme

or plan,” we have emphasized that in order to fall within

either definition, it is not enough that both offenses involve

the sale of drugs. See United States v. Crockett, 82 F.3d 722,

730 (7th Cir. 1996) (“The mere fact that the defendant has

engaged in other drug transactions is not sufficient to

justify treating those transactions as ‘relevant conduct’ for

sentencing purposes.”); United States v. Duarte, 950 F.2d

1255, (vacating sentence based on aggregating uncharged

drug quantities where “[t]here is little, if anything, to
No. 05-2655 7

suggest a temporal, geographical or any other relationship”

with the offense of conviction).

In this case, Bullock pleaded guilty to five counts of

selling heroin. Those sales took place in K-Town in the

summer of 2002, two miles away from the 340 Building and

two years after Bullock’s alleged involvement with

the conspiracy there. Although the PSR treats Bullock’s

earlier heroin sales as part of the same course of conduct or

common scheme or plan as the later controlled purchases,

the connection is not self-evident. We have been wary of

treating as relevant conduct drug sales that took place that

far back in time. See United States v. Palmer, 248 F.3d 569,

571 (7th Cir. 2001) (per curiam) (vacating sentence based in

part on uncharged drug sales that were “remote in

time—over 2 years old—to the sales . . . that form the basis

for the counts of conviction”); United States v. Ruiz,

178 F.3d 877, 882 (7th Cir. 1999) (“Where the gap in time

[between drug transactions] is as long as the two years in

this case, ‘we must be cautious and exacting in permitting

such relatively stale dealings to be included in the same

course of conduct as the offense of conviction.’ ”) (quoting

United States v. Cedano-Rojas, 999 F.2d 1175, 1180

(7th Cir. 1993)); Johnson, 324 F.3d at 879. (“While lapse of

time between the two offenses is not in itself dispositive of

the question of relevance, it does suggest the separate

character of the two episodes.”) (citation omitted). It may

yet be possible to justify treating the earlier heroin sales as

relevant conduct chargeable to Bullock, but the reason

needs to be set out explicitly, not simply assumed. See

United States v. Sumner, 265 F.3d 532, 539-40 (7th Cir.

2001) (“[W]hen a court relies entirely on the PSR to make

its relevant conduct finding, the PSR must explain how

the purported relevant conduct is part of the same course of

conduct or common scheme or plan as the offense of conviction.”); Crockett, 82 F.3d at 730 (“To ensure that only

relevant conduct is included in calculating the sentence, the
8 No. 05-2655

government must carefully present the justification for the

inclusion of any uncharged acts and the court must, in turn,

set out its reasoning as clearly as possible.”).

As for the crack component of the 340 Building conspiracy, it appears even more tenuously related to Bullock’s

offense of conviction. As justification for treating the

crack sales as relevant conduct, the government offered and

the court accepted the theory that Bullock’s heroin sales out

of the 340 Building benefitted from the security and other

organizational infrastructure that was already in place

there, thanks to the efforts of Richard Epps and his colleagues. But at most, this makes Epps’s crack trade relevant conduct with respect to Bullock’s heroin sales from the

340 Building. It doesn’t make it relevant to Bullock’s actual

offense of conviction—selling heroin five times in K-Town in

2002. That is, it’s relevant only by association with other

relevant conduct, through a kind of criminal transitivity.

That’s not good enough—the connection to the offense of

conviction has to be direct. See United States v. Pinnock,

47 F.3d 434, 439 (D.C. Cir. 1995) (“[T]he government must

demonstrate a connection between count three [offered as

relevant conduct] and the offense of conviction, not between

count three and the other offenses offered as relevant

conduct.”) (emphasis in original). We doubt that any such

connection can be shown with respect to the more than

1.5 kilograms of crack the court used in calculating Bullock’s guideline range.

At the most, Bullock is responsible for somewhere in the

vicinity of 8 kilograms of heroin (and we emphasize, it

remains for the district court to support such a finding on

the basis of the record), which would give him a base

offense level of 34 and a maximum enhanced offense level

of 39. With a criminal history category of IV, his recommended sentencing range would then be 360 months to life.

We also note that Bullock was denied acceptance-of-responsibility points because he refused to admit involvement with
No. 05-2655 9

Epps’s conspiracy. But if that conspiracy is not in fact

relevant conduct, Bullock’s refusal to admit involvement in

it cannot be considered falsely denying or frivolously

contesting relevant conduct. See U.S.S.G. § 3E1.1 cmt.

n.1(a). He would therefore be entitled to at least a 2-point

reduction, bringing his recommended range down to 292 to

365 months.

These questions concerning relevant conduct need to be

resolved in the district court, and the court must then

decide how to exercise its discretion under Booker relative

to a properly calculated guideline range. As we said

in United States v. Robinson, 435 F.3d 699, 701 (7th Cir.

2006), “[w]hen a judge does not properly calculate a guidelines sentence, our review for reasonableness is forestalled.”

For these reasons, we VACATE Bullock’s sentence and

REMAND for resentencing. Because we also conclude that it

would be best to have a new judge take a fresh look at the

case, Circuit Rule 36 shall apply on remand.
10 No. 05-2655

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-18-06