United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued January 24, 2007

Decided March 20, 2007

Before

Hon. KENNETH F. RIPPLE, Circuit Judge

Hon. ILANA DIAMOND ROVNER, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 06-2631

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALTO DILWORTH,

Defendant-Appellant.

Appeal from the United States 

District Court for the Western District 

of Wisconsin.

No. 05 CR 180

Barbara B. Crabb,

Chief Judge.

O R D E R

Alto Dilworth pleaded guilty to knowingly possessing crack cocaine with

intent to distribute. At sentencing, the district court held him responsible for

distributing the equivalent of 300 kilograms of marijuana and possessing a gun in

connection with the offense, and sentenced him at the low end of the advisory

sentencing guidelines range. Mr. Dilworth challenges the sentence, arguing that

the presentence report (“PSR”) relied too heavily on the guidelines to calculate his

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with 

Fed. R. App. P. 32.1
No. 06-2631 Page 2

sentence, and that the sentence is unreasonable because the district court did not

properly exercise its discretion in its sentencing determination. We affirm.

Mr. Dilworth was stopped by Madison, Wisconsin police twice in March 2005

for suspected drug activity. He was first stopped by officers conducting a residence

surveillance for suspected drug trafficking and was warned to stay away from the

area. Later that month, a police officer stopped him after watching him make a

suspected drug transaction. Mr. Dilworth was carrying four small packets of

heroin, totaling 2.3 grams, which he planned to sell. He was arrested but not

booked or charged. He refused to be an informant for police. 

Several months later, in December 2005, Mr. Dilworth was arrested again. A

government informant, Jaeson Shepard, told police that he and his girlfriend, Erin

Van Epps, had been purchasing heroin from Mr. Dilworth since late 2004. Agents

recorded a phone call in which Mr. Dilworth agreed to meet Shepard and to provide

an “eightball” (1/8 ounce) of the “same thing” (heroin) Shepard had previously

bought. Sent. Tr. at 16-17. With Shepard’s assistance, agents staked out a

Walgreen’s parking lot, where they arrested Mr. Dilworth when he met Shepard to

sell the drugs. In Mr. Dilworth’s car, police found five bags of crack cocaine,

weighing 2.35 grams, and three bags and three gem packs of heroin, totaling 10.74

grams, hidden in a fuse box in the engine compartment, as well as a loaded

handgun concealed in a plastic container in the trunk. 

Mr. Dilworth pleaded guilty to one count of knowingly possessing crack

cocaine with intent to distribute under 18 U.S.C. § 841(a)(1). As a result of the plea

agreement, the Government dropped a second count of the indictment charging Mr.

Dilworth with possessing heroin with intent to distribute, and agreed to recommend

that he receive a three-point reduction in his offense level for acceptance of

responsibility. 

The probation officer calculated a “conservative estimate” drug equivalency

(converted from sales of heroin), based on Shepard’s statements and statements by

a confidential informant. Shepard had told officers that he had been buying from

Mr. Dilworth since late 2004 or early 2005 and had bought 1/8 ounce of heroin from

Mr. Dilworth two or three times a week since then. He also said that he had bought

eight ounces of heroin from Mr. Dilworth 10-15 times and ten ounces on five or six

occasions. The informant said that “JB,” whom officers identified as Mr. Dilworth,

brought in 200-500 grams of heroin per week from Chicago. The probation officer

calculated the drug equivalency at 459 kilograms of marijuana, which corresponded

to a base offense level of 28, see U.S.S.G. § 2D1.1(c)(6). Because Mr. Dilworth had a

handgun in the trunk of his car at the time of his arrest, the probation officer

recommended a two-level increase in Mr. Dilworth’s base offense level. After a

three-point adjustment for acceptance of responsibility, his offense level was 27,
No. 06-2631 Page 3

which, when combined with his criminal history category of I, yielded a guidelines

range of 70-87 months. 

Before sentencing, Mr. Dilworth filed objections to the presentence report. 

He objected to the PSR “as a whole” for “treating the guidelines as presumptive, and

in effect mandatory.” Def.’s Obj. and Suggested Corrections to PSR 4-6. He also

generally objected to the drug quantities, saying that he did not meet Shepard and

Van Epps until July 2005, so he could not have sold to them before then. He

objected to the two-point increase in his offense level for having a gun in connection

with the offense, given the distance between the gun in the trunk and the drugs

under the hood. Finally, he urged that a sentence of 12-18 months’ imprisonment,

apparently calculated on the basis of the drug amount he was carrying when

arrested, was sufficient to punish him and protect the public because of his

advancing age (35 at sentencing), steady work history, and his being “essentially a

first offender.” Id. at 6-10.

At the sentencing hearing, Mr. Dilworth disputed the drug quantities and

any increase in offense level because of the gun in the trunk. The Government

presented testimony from Van Epps confirming that she and Shepard had bought

heroin from Mr. Dilworth several times a week since early 2005, probably March or

April, and agreeing with the quantities Shepard told police they had purchased. 

Detective Linsmeier testified that the recorded phone conversation between

Shepard and Mr. Dilworth suggested that the two had a previous relationship

involving drug sales. Two people then testified that Mr. Dilworth did not meet

Shepard and Van Epps until July of 2005, but Mr. Dilworth did not contest the

frequency or sizes of the drug transactions he had with Shepard. Thus, the

Government argued that, even if Mr. Dilworth had met them in July, he could be

held responsible for two sales of 1/8 ounce per week, as well as the larger sales,

from then until he was arrested in December, which would subject him to a base

offense level of 26--the same as if Mr. Dilworth had met them in March or April of

2005. Mr. Dilworth’s counsel asked for leniency, because Mr. Dilworth had been

self-employed until his maintenance tools were stolen in late 2004, and he was not

able to find another job. 

The district court found that Van Epps’ testimony was plausible, especially

because it was corroborated by the statements of Shepard and the recorded

conversation between Mr. Dilworth and Shepard that led to Mr. Dilworth’s

December arrest. The court calculated the drug amount for sentencing as “well past

250 grams,” and in fact “well over 300 grams” of heroin. Sent. Tr. at 75. This

amount was equivalent to at least 300 kilograms of marijuana--lower than that

recommended in the PSR--yielding a base offense level of 26, see U.S.S.G.

§ 2D1.1(c)(7). The court then accepted the PSR’s recommendation of a two-point

increase for possession of the gun in relation to the offense, and, though finding it a
No. 06-2631 Page 4

“close call,” also subtracted the recommended three points for acceptance of

responsibility. Sent. Tr. at 65, 85. Mr. Dilworth’s resulting offense level was 25,

with a criminal history category of I, yielding an advisory range of 57-71 months’

imprisonment. The court acknowledged Mr. Dilworth’s lack of criminal record, his

upbringing, steady work history, and his recent difficulty in obtaining work, but

found it a “big problem” that Mr. Dilworth refused to help police and kept dealing

drugs after his first arrest. Sent. Tr. at 83-86. The court determined that a 57-

month sentence best reflected the serious nature of the crime and protected the

public. 

On appeal, Mr. Dilworth first argues that the probation office violated the

dictates of United States v. Booker, 543 U.S. 220 (2005), by preparing a PSR focused

only on the sentencing guidelines without incorporating an analysis of the 18 U.S.C.

§ 3553(a) sentencing factors. Mr. Dilworth’s argument is a bit difficult to pin down,

but he seems to suggest that the PSR’s reliance on the guidelines essentially

renders them mandatory rather than advisory.

Mr. Dilworth misunderstands Booker and the function of the PSR. In Booker,

the Supreme Court held that the sentencing guidelines were advisory, rather than

mandatory. Booker, 543 U.S. at 244-47. A sentencing court must now consider the

guidelines’ recommended sentence but must also use its discretion and consider

other factors relevant to fashioning an appropriate sentence, see 18 U.S.C. §

3553(a). United States v. Mykytiuk, 415 F.3d 606, 607-08 (7th Cir. 2005).

Booker thus dealt only with a district court’s sentencing procedure; Rule of

Criminal Procedure 32 governs the PSR, which aids the sentencing court in its

sentencing analysis. The PSR must include: details of the offense, a thorough

personal and criminal history of the defendant, mitigating or aggravating

information that could affect the guidelines sentencing range, and any

circumstances of the defendant’s behavior important to a sentencing or treatment

decision. Fed. R. Crim. P. 32(d). As long as the PSR follows the requirements of

Rule 32, it gives the sentencing court the information it needs to conduct its

§ 3553(a) analysis. Here, the PSR contained the appropriate information. In any

event, we also note that the district court rejected the guidelines calculation

recommended in the PSR (70-87 months) and arrived at an even lower one (57-71

months).

Mr. Dilworth next suggests, without developing the argument, that the

district court incorrectly calculated his guidelines range. First, he implies that the

district court erred in basing its calculations of drug amounts for sentencing on the

unreliable testimony of Van Epps and an unnamed government informant. But the

court acted within its discretion when it credited Van Epps’ testimony on drug

amounts, especially because it found that telephone records and the taped
No. 06-2631 Page 5

telephone conversation between Shepard and Mr. Dilworth corroborated their

relationship. See United States v. White, 360 F.3d 718, 720 (7th Cir. 2004). We do

not second-guess the credibility determinations of the district court, see id., and Mr.

Dilworth has suggested nothing that justifies finding that the district court

committed clear error in crediting Van Epps’ testimony. 

Second, Mr. Dilworth suggests that the district court improperly applied a

two-point increase in his base offense level for use of a firearm in connection with

the crime, because the gun was located at the opposite end of the car far from the

drugs. Mr. Dilworth had to show, however, that it was “clearly improbable” that

the gun found near the drugs was used in relation to his drug offense. United

States v. Grimm, 170 F.3d 760, 767-68 (7th Cir. 1999). We have upheld the

application of § 2D1.1(b)(1) in other situations in which a gun was not immediately

accessible from the location of the drugs, see id. (affirming district court’s finding

that it was not “clearly improbable” gun found in defendant’s car trunk was used in

relation to drug delivery for which car was used six weeks earlier); United States v.

Bjorkman, 270 F.3d 482, 494 (7th Cir. 2001) (upholding increase where guns were

found in gun locker inside drug “stash house”), and the district court was correct to

apply the increase here.

Mr. Dilworth next argues that his sentence is unreasonable, because it is

longer than necessary to meet the sentencing factors of § 3553(a). He seems to

argue that the court disregarded the § 3553(a) factors and relied exclusively on the

sentencing guidelines. However, the court did consider the § 3553(a) sentencing

factors, noting for instance that Mr. Dilworth had no prior criminal history, see §

3553(a)(1), and that it was imposing a 57-month sentence to best reflect the

seriousness of the offense, see § 3553(a)(2)(A), deter Mr. Dilworth from criminal

conduct, see § 3553(a)(2)(B), and protect the public, see § 3553(a)(2)(C). The court

said, “[a]lthough it’s troubling that you were not deterred after your first arrest

when you had the opportunity to cooperate with authorities and rejected this

alternative, I am persuaded that a sentence of imprisonment at the low end of the

guideline range will be sufficient to reflect the serious nature of your criminal

activity and protect the community.” Sent. Tr. at 86. We are therefore satisfied

that the court adequately considered the § 3553(a) sentencing factors.

In a related argument, Mr. Dilworth also contends that the district court

failed to address mitigating factors such as his being “essentially a first offender”

with a steady work history who was unlikely to commit further crimes. Appellant’s

Br. 18-20. The district court, however, found facts that undermined his claims that

he was a first-time offender and unlikely to commit further crimes. The court

noted, for instance, that although Mr. Dilworth had no criminal history, he “had a

chance” to turn his conduct around after he was arrested in March; however, he not

only refused to help police but also continued selling drugs. Sent. Tr. at 84, 86.
No. 06-2631 Page 6

Conclusion

The district court committed no error in the sentencing of the defendant. 

Accordingly, the judgment of the district court is affirmed.

AFFIRMED