In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-3373

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSHUA M. LIDDELL,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 06 CR 40008—J. Phil Gilbert, Judge.

____________

ARGUED MAY 8, 2008—DECIDED SEPTEMBER 10, 2008

____________

Before MANION, EVANS, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Defendant Joshua Liddell

pled guilty to two federal drug charges and was sentenced to 240 months in prison as a career offender. He

claims the district court erred by not grouping these two

charges together when it calculated his sentencing guideline range. Liddell also contends that resentencing is

necessary in light of the Supreme Court’s decision in

Kimbrough v. United States, 128 S. Ct. 558 (2007), and he
2 No. 07-3373

claims that his sentence is unreasonable. We conclude

Kimbrough does not affect Liddell’s sentence on count

one and the district court did not err in issuing this sentence. Pursuant to the parties’ stipulation, we issue a

limited remand on count two in light of Kimbrough.

I. BACKGROUND

This is the second time we have encountered this case.

Because we already discussed the underlying facts in

some detail in our previous opinion, we will only

mention the facts necessary to resolve this appeal. See

United States v. Liddell, 492 F.3d 920 (7th Cir. 2007).

On May 4, 2006, Liddell pled guilty to two counts of

possession with the intent to distribute five grams or

more of a mixture or substance containing cocaine base.

See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B). The charges were

based on incidents occurring on May 9, 2003 (count two)

and November 22, 2005 (count one).

In between these two incidents, Liddell was convicted

in Illinois state court of two other felonies—possession

with intent to distribute cocaine and aggravated domestic

battery—for which he served 60 days’ imprisonment.

For count one of the federal charges (corresponding to

the last drug transaction), the district court had to

decide whether the two prior state convictions qualified

Liddell for sentencing as a career offender. See United

States Sentencing Commission Guidelines Manual

(U.S.S.G.) § 4B1.1 (2006) (to be eligible for career offender

sentencing, a defendant must have “at least two prior
No. 07-3373 3

Although the Supreme Court recently limited what con- 1

stitutes a “crime of violence,” see Begay v. United States, 128 S.

Ct. 1581, 1588 (2008), Liddell does not argue that aggravated

domestic battery is not a crime of violence, so we do not

consider that issue here.

felony convictions of either a crime of violence or a

1

controlled substance offense”). Adopting the probation

office’s recommendation, the court concluded that the

state conviction for cocaine possession was related to the

conduct charged in count one and did not count toward

career offender status. So the court did not apply the

career offender guidelines and sentenced Liddell to the

statutory minimum of 120 months’ imprisonment on

count one, and 105 months’ imprisonment on count two,

with the sentences to run concurrently.

The government appealed the district court’s sentence.

We vacated the sentence and remanded, concluding that

the state cocaine conviction was not related to the

charged conduct and so the court should have applied the

career offender guidelines when sentencing Liddell on

count one. See Liddell, 492 F.3d at 922-24 (citing United

States v. Hernandez, 330 F.3d 964, 987 (7th Cir. 2003)). On

remand, the district court computed the sentencing

guideline range for each count separately (rather than

grouping the two counts and calculating a single range)

and determined that the career offender provisions

yielded a range of 262-327 months’ imprisonment on

count one. The court then sentenced Liddell to a belowguideline term of 240 months’ imprisonment on count one,
4 No. 07-3373

and 87 months’ imprisonment on count two, to run concurrently. Liddell then filed this appeal.

II. ANALYSIS

A. The district court properly declined to group counts

one and two.

Liddell claims the district court should have grouped

counts one and two together before determining whether

he was a career offender. We review the court’s decision

not to group these counts de novo. United States v. Alcala,

352 F.3d 1153, 1156 (7th Cir. 2003); United States v. Sherman,

268 F.3d 539, 545 (7th Cir. 2001). Liddell seems to believe

(but doesn’t explicitly argue) that if the counts are

grouped, his two intervening state convictions would

no longer be “prior felony convictions” because they

would occur after the earlier of the two grouped offenses,

and so Liddell could not be sentenced as a career offender.

We do not agree, however, that grouping the two counts

would change Liddell’s career offender status. Even if the

two counts were grouped, we would use the date of the

later offense in the group in determining whether the

unrelated state felony convictions were “prior” to the

group. See United States v. Belton, 890 F.2d 9, 10 (7th Cir.

1989) (“Nothing in the guidelines’ definition of a career

offender requires . . . that every act constitutive of the

offense underlying his current conviction have been

committed after the prior conviction, and we can think of

no reason for such a requirement.”). We have suggested

that an unrelated felony conviction is “prior” to a conspiracy for purposes of the career offender guidelines
No. 07-3373 5

when the conspiracy begins before the conviction and

continues afterward. Id. at 10-11; see also United States v.

Garecht, 183 F.3d 671, 675 (7th Cir. 1999) (modifying Belton

by holding that a felony conviction that occurs during an

ongoing conspiracy can be a “prior” conviction only if it

is unrelated to the conspiracy).

Similarly, it makes sense that an unrelated felony conviction is prior to a “group” of offenses if the conviction

occurs before at least one of the offenses in the group. To

hold otherwise would lead to a nonsensical result—

Liddell would be better off because he was charged with

two grouped offenses that straddled his unrelated state

felony convictions than if he had been charged on just

count one (which involved the later-occurring offense

in the group). See Belton, 890 F.2d at 10-11 (noting that

“[t]he only practical effect” of a similar argument in the

drug conspiracy context “would be to give the government an incentive to seek conviction for only so much

of the defendant’s participation in the continuing conspiracy as postdated his prior conviction”).

At any rate, we already explained why count one and

count two are unrelated and should not be grouped

together:

Liddell’s state incarceration separated the conduct

charged in Count One from the conduct charged in

both his state conviction and in Count Two, [so] we

find that those earlier offenses are not related to Count

One. . . .

The guidelines explicitly state that district courts

should compute sentencing guideline ranges on a
6 No. 07-3373

count-by-count basis. See U.S.S.G. § 1B1.1(d); see also

United States v. De la Torre, 327 F.3d 605, 609 (7th Cir.

2003). . . . Liddell [should have been] sentenced as a

career offender for [count one] and not [count two]. To

hold otherwise not only would conflict with the

guidelines, but it would strain judicial resources by

forcing the government to bring multiple, separate

indictments against defendants like Liddell to ensure

that such defendants do not get a more lenient sentence simply because all of their offenses are consolidated in a single indictment.

Liddell, 492 F.3d at 924. Although Liddell claims the “law of

the case” doctrine doesn’t preclude us from changing

this decision, he hasn’t provided a good reason for us

to revisit the issue. And the two federal drug charges—

which are based on incidents separated by more than twoand-a-half years—do not involve the same victim or

the same transaction, and do not seem to be otherwise

related. See U.S.S.G. § 3D1.2. Therefore, we conclude

the district court correctly determined that the counts

should not be grouped.

B. The Supreme Court’s decision in Kimbrough v.

United States does not require us to remand for

resentencing.

At oral argument, we asked the parties whether the

Supreme Court’s recent decision in Kimbrough, 128 S.Ct. at

564, had any effect on this case. The parties filed supplemental memoranda addressing this issue. They stipulated

to a limited remand on count two (corresponding to the
No. 07-3373 7

A brief aside on the distinction between powder cocaine, 2

cocaine base, and crack cocaine might be useful. “Powder

cocaine” (cocaine hydrochloride) is a salt that is not easily

smoked because it decomposes before vaporizing. But powder

can be converted into its more smokeable “base” form, known

as “cocaine base” or “freebase cocaine.” Because making

freebase generally requires the use of an explosive solvent (like

ether), many dealers instead use baking soda to make “crack

cocaine,” which is merely the street name for a type of cocaine

base that is less pure but safer and easier to make. See United

States v. Edwards, 397 F.3d 570, 571 (7th Cir. 2005); Andrew C.

Mac Nally, Comment: A Functionalist Approach to the Definition

of “Cocaine Base” in § 841, 74 U. Chi. L. Rev. 711, 713, 716-21

(2007); Jason A. Gillmer, Note: United States v. Clary: Equal

Protection and the Crack Statute, 45 Am. U.L. Rev. 497, 508-10

(1995).

earlier incident) pursuant to the procedure set forth in

United States v. Taylor, 520 F.3d 746, 748-49 (7th Cir. 2008).

However, the government opposed any remand on

count one (corresponding to the later incident).

When Liddell was sentenced, U.S.S.G. § 2D1.1 stated

that individuals who deal in cocaine base (including crack)2

are subject to the same guideline range as those who

deal in 100 times as much powder cocaine. This 100-to-1 (or

“crack/powder”) disparity is also part of the federal

controlled substances statute. 21 U.S.C. § 841(b)(1).

After the Supreme Court decided that the federal sentencing guidelines were merely advisory, see United States

v. Booker, 543 U.S. 220, 264-65 (2005), some district courts

began correcting for the 100-to-1 disparity by sentencing
8 No. 07-3373

Accordingly, Liddell cannot benefit on count one from recent

3

amendments to section 2D1.1 that retroactively reduced offense

levels for certain crack defendants. See Supplement to the 2007

Guidelines Manual 1-4 (2008) (U.S.S.G. § 1B1.10); U.S.S.G.,

Supplement to Appendix C 226-31 (2007) (Amendment 706).

crack defendants below their guideline range. We concluded, however, that district courts could not issue belowguideline sentences merely because they disagreed with

the policy underlying this disparity. See, e.g., United States

v. Miller, 450 F.3d 270, 275-76 (7th Cir. 2006). The Supreme

Court reversed us in Kimbrough, concluding that because

“the cocaine Guidelines, like all other Guidelines, are

advisory only,” district courts may consider the

crack/powder disparity in fashioning an appropriate

sentence that is not “greater than necessary” to serve the

objectives of sentencing. See 128 S. Ct. at 564 (citing 18

U.S.C. § 3553(a)). We subsequently held that a limited

remand and resentencing might be appropriate when a

defendant makes, for the first time on appeal, an argument based on Kimbrough. See Taylor, 520 F.3d at 746-47

(citing United States v. Paladino, 401 F.3d 471, 481-84 (7th

Cir. 2005)).

Here, Liddell was not sentenced on count one based on

U.S.S.G. § 2D1.1 and its 100-to-1 disparity. Instead, he 3

was sentenced based on career offender guideline

U.S.S.G. § 4B1.1, which calculates offense levels based on

the statutory maximum sentence for the underlying

offense. See United States v. Harris, No. 07-2195, 2008 WL

3012362, at *12 (7th Cir. Aug. 6, 2008). To illustrate, section
No. 07-3373 9

4B1.1 assigns a base offense level of 37 for the crime that

Liddell was convicted of—dealing five grams or more

of cocaine base—because that offense carries a statutory

maximum of life imprisonment (due to his previous

conviction for a felony drug offense). See 21 U.S.C.

§ 841(b)(1)(B). If Liddell had instead peddled five grams

or more of powder cocaine, section 4B1.1 would have

assigned a base offense level of 34. See id. § 841(b)(1)(C)

(statutory maximum of 30 years for defendants with a

prior felony drug conviction). After accounting for the

three-level acceptance of responsibility reduction, Liddell

faced a career offender guideline range of 262-327 months

for his crack conviction; he would have faced a career

offender range of 188-235 months had he instead been

convicted of dealing an equivalent amount of powder

cocaine.

So the differential treatment of crack and powder

cocaine certainly affected the guideline range that Liddell

faced on count one. But the problem for Liddell is that

this disparity did not stem from the guideline itself

but from the statutory maximum that the guideline

referenced. Harris, 2008 WL 3012362, at *12 (“To the extent

that a sentencing disparity might occur under § 4B1.1

based upon the type of cocaine involved, it does not result

from the now-advisory drug quantity table, but is the

product of a discrepancy created by statute.”). And “[w]hile

the sentencing guidelines may be only advisory for

district judges, congressional legislation is not.” Id. So “a

sentence entered under the career offender guideline,

§ 4B1.1, raises no Kimbrough problem because to the

extent it treats crack cocaine differently from powder
10 No. 07-3373

cocaine, the disparity arises from a statute, not from the

advisory guidelines.” Id. at *13; see also United States v.

Harper, No. 06-2064, 2008 WL 2420867, at *4 (7th Cir.

June 17, 2008) (unpublished) (“Kimbrough and the revised

sentencing guidelines had no effect on [the defendant’s]

career offender status.”). We reaffirm that Kimbrough,

which only interpreted the “cocaine guidelines,” did not

change the way courts calculate career offender guideline ranges.

Liddell, however, also makes a more nuanced argument based on Kimbrough: while a district court cannot

consider the crack/powder disparity in calculating the

career offender guideline range, it can consider the disparity as a reason for issuing a below-guideline sentence. Because Liddell did not raise this argument in the

district court, our review is for plain error. That requires

us to determine whether (1) there was error (2) that was

plain and (3) that “affect[s] substantial rights.” We must

also consider whether to correct the error because it

(4) “seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.” See United States v.

Hatten-Lubick, 525 F.3d 575, 582 (7th Cir. 2008) (quoting

United States v. Olano, 507 U.S. 725, 732 (1993) (internal

quotation marks omitted)).

We first examine whether there was an “error” here.

Whether a court can consider the crack/powder disparity

as a reason for issuing a sentence below the career offender

guidelines is not a trivial question. To begin, the Sentencing Commission has chosen career offender guideline

ranges based on 28 U.S.C. § 994(h), which provides that
No. 07-3373 11

“[t]he [Sentencing] Commission shall assure that the

guidelines specify a sentence to a term of imprisonment

at or near the maximum term authorized” for an offense

committed by a career offender. See U.S.S.G. § 4B1.1

(background) (noting that this guideline implements

Congress’s directive under section 994(h)). So for a crack

cocaine offense, section 994(h) directs the Sentencing Commission to peg the career offender guidelines at or near the maximum terms of imprisonment in

the federal controlled substances statute, which still

retains a crack/powder disparity. See 21 U.S.C. § 841(b)(1).

This link between the guidelines and the controlled

substances statute might seem to suggest that a court is

limited in its ability to issue below-guideline sentences

to career offenders based solely on the court’s belief that

the crack/powder disparity is unwarranted. Cf. United

States v. Glover, 479 F.3d 511, 522 (7th Cir. 2007) (“[T]he

career offender rules pose legal rather than factual issues

for a sentencing judge, which removes the rules from the

reach of Apprendi [v. New Jersey, 530 U.S. 466 (2000)] and

Booker altogether.”); United States v. Woodard, 408 F.3d 396,

399 (7th Cir. 2005) (“Booker does not affect § 994(h), which

calls for career offenders to be sentenced at or near the

statutory maximum.”).

But other statutory provisions suggest that the Sentencing Commission has some discretion in formulating

guidelines under section 994(h). See 28 U.S.C. § 994(a)-(f)

(providing Commission with its general guideline promulgation authority); id. § 994(o), (p) (providing amendment

authority to the Commission). Indeed, the Commission

has relied on these provisions to “modify” section 994(h)’s
12 No. 07-3373

directive and stay true to a different congressional mandate—avoiding “unwarranted sentencing disparities

among defendants with similar records who have been

found guilty of similar criminal conduct . . . . ” See U.S.S.G.

§ 4B1.1(background) (quoting 28 U.S.C. § 991(b)(1)(B)

(internal quotation marks omitted)); see also id. (“The

Commission’s refinement of this definition [in section

994(h)] over time is consistent with Congress’s choice of

a directive to the Commission rather than a mandatory

minimum sentencing statute.” (citing S. Rep. No. 225,

98th Cong., 1st Sess. 175 (1983)). So the tether that section 994(h) creates between the career offender guidelines and statutory maximums is not as tight as it might

seem at first glance.

Moreover, section 994(h) only addresses what the

Sentencing Commission must do; it doesn’t require sentencing courts to impose sentences “at or near” the statutory

maximums. Kimbrough itself suggested that section 994(h)’s

directive targeted the Commission, not the sentencing

courts, when it referred to section 994(h) as an example

of Congress “direct[ing] sentencing practices in express

terms” when it wants to do so. Kimbrough, 128 S. Ct. at 571

(“For example, Congress has specifically required the

Sentencing Commission to set Guidelines sentences for

serious recidivist offenders ‘at or near’ the statutory

maximum. 28 U.S.C. § 994(h).” (emphasis added)). As

the Second Circuit recently held post-Kimbrough:

Section 994(h) . . . by its terms, is a direction to the

Sentencing Commission, not to the courts, and it

finds no express analog in Title 18 or Title 21.
No. 07-3373 13

While 21 U.S.C. § 841(b) expressly establishes the

minimum and maximum prison terms that the

court is allowed to impose for violations of

§ 841(a), there is no statutory provision instructing

the court to sentence a career offender at or near

the statutory maximum. And while the sentencing

statute expressly directs the district court to

“consider” the “sentencing range established

for . . . the applicable category of defendant as set

forth in the guidelines,” 18 U.S.C. § 3553(a)(4)(A),

it does not instruct the court to impose such a

sentence.

United States v. Sanchez, 517 F.3d 651, 663 (2d Cir. 2008); see

id. at 665 (section 994(h) would not prohibit a district

court from issuing a below-guideline sentence for a

crack defendant); see also United States v. Martin, 520 F.3d

87, 96 (1st Cir. 2008) (rejecting the government’s argument, based on section 994(h), that the district court erred

by awarding a below-guideline sentence to a crack career

offender); id. (“The Supreme Court’s recent decision in

Kimbrough opened the door for a sentencing court to

deviate from the guidelines in an individual case even

though that deviation seemingly contravenes a broad

policy pronouncement of the Sentencing Commission.”

(citation omitted)). Additionally, in another post-Kimbrough

case, the government emphasized that a district court

can sentence below the career offender guidelines if the

court disagrees with the policy underlying the

crack/powder disparity. See Gov. Supp. Memo. at 12-17,

United States v. Harris, No. 07-2195 (7th Cir. May 6, 2008).
14 No. 07-3373

Most importantly, since Booker, the Supreme Court has

consistently reaffirmed that all of the sentencing guidelines are advisory. See, e.g., Kimbrough, 128 S. Ct. at 564

(“[T]he cocaine Guidelines, like all other Guidelines, are

advisory only . . . ”); id. at 577 (Scalia, J., concurring)

(“[T]he district court is free to make its own reasonable

application of the § 3553(a) factors, and to reject (after due

consideration) the advice of the Guidelines.”); Gall v.

United States, 128 S. Ct. 586, 594 (2007) (“[T]he Guidelines are now advisory . . . .”); Rita v. United States, 127

S. Ct. 2456, 2474 (2007) (Stevens, J., concurring) (“I trust

that those judges who had treated the Guidelines as

virtually mandatory during the post-Booker interregnum

will now recognize that the Guidelines are truly advisory.”). We have clearly held that this includes the career

offender guidelines. See Harris, 2008 WL 3012362, at *12

(“[O]ur discussion should not be read to suggest that

§ 4B1.1 is any less advisory for a district judge than the

other sentencing guidelines.”). And we have already

indicated post-Kimbrough that courts can consider the

crack/powder disparity when resentencing defendants

who are career offenders. See Harper, 2008 WL 2420867, at

*4 (rejecting the government’s argument that a remand

in light of Kimbrough was unnecessary because the

district court had “imposed a below-guidelines sentence

that happens to fall within the guidelines range he

would have received as a career offender”).

However, none of this helps this particular defendant

because any error here wasn’t “plain.” See Olano, 507 U.S.

at 734 (plain is synonymous with “clear” or “obvious”).

Kimbrough itself didn’t deal with the career offender
No. 07-3373 15

context and as evident from the discussion above, it was

not clear before this decision that Kimbrough’s rationale

extends to that context. It would be inappropriate to

find plain error given that the law has been unsettled, see

United States v. Stott, 245 F.3d 890, 900 (7th Cir. 2001), and

so we find that any error here was not plain. Neither

Kimbrough nor any extension of it requires us to remand

this case for resentencing on count one.

C. The district court’s sentence was reasonable.

Liddell also claims that his sentence of 240 months’

imprisonment is unreasonable, even though it was 22

months below the career offender guideline range of 262-

327 months. He reasons that because his prison term

doubled upon resentencing, the district court put too

much emphasis on the new guideline range in arriving

at the new sentence.

When calculating a sentence, a district court first calculates the proper range under the sentencing guidelines.

It then considers that guideline range in addition to any

of the other relevant sentencing factors under 18 U.S.C.

§ 3553(a) before arriving at the appropriate sentence.

See United States v. Dean, 414 F.3d 725, 728-30 (7th Cir.

2005). As we discussed above, the court properly determined that Liddell was a career offender and correctly

arrived at a sentencing range of 262-327 months. So the

sole question for us to decide is whether the below-guideline sentence that Liddell received was reasonable.

A sentence within a properly calculated guideline

range is presumptively reasonable, so it follows that a
16 No. 07-3373

below-guideline sentence is also presumptively reasonable against an attack by a defendant claiming that

the sentence is too high. See Rita, 127 S. Ct. at 2462-63;

United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).

Liddell has not come close to rebutting that presumption

here. See United States v. George, 403 F.3d 470, 473 (7th Cir.

2005) (“It is hard to conceive of below-range sentences

that would be unreasonably high.”). Although Liddell’s

240 month sentence is double what it was previously, the

fact remains that on both occasions the district court

sentenced him leniently—first at the mandatory statutory

minimum and then well below the applicable guideline

range. And as the government notes, there is little evidence that the court put too much weight on the guidelines given that Liddell received a below-guideline sentence. Perhaps things would have been different if the

court had resentenced Liddell near the top of the new

guideline range, but that is a matter for another day and

another case.

III. CONCLUSION

We AFFIRM the district court’s judgment on count one.

We issue a LIMITED REMAND on count two for proceedings consistent with our opinion in Taylor, 520 F.3d

at 748-49.

9-10-08