In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 07-2505, 07-2506, 07-2507 and 07-3313

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DOUGLAS FARMER, JAMES ELLIS,

JOSIAH COMPTON, and GERALD

HOWLIET,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Southern District of Illinois.

No. 04 CR 30139—G. Patrick Murphy, Judge.

____________

ARGUED JUNE 6, 2008—DECIDED SEPTEMBER 9, 2008

____________

Before BAUER, RIPPLE and MANION, Circuit Judges.

BAUER, Circuit Judge. This is a consolidated appeal from

the convictions of four out of fourteen defendants for

various offenses stemming from a drug distribution ring

in the East St. Louis, Illinois area.

The government began investigating Defendants-Appellants Douglas Farmer, James Ellis, Josiah Compton, and
2 Nos. 07-2505, 07-2506, 07-2507 and 07-3313

Gerald Howliet in 2003 after learning of their involvement

in the distribution of crack, powder cocaine, and marijuana. The investigation included the review of police

reports, telephone records, and pen registers, as well as

law enforcement surveillance, wire communications

interception, and intelligence provided by confidential

informants. Through the execution of search warrants,

agents eventually seized more than 11.6 kilograms of

powder cocaine, 536 grams of crack cocaine, 6.1 grams of

heroin, 14.8 kilograms of marijuana, $120,640.00 in U.S.

currency, and numerous firearms. A jury convicted

Defendants-Appellants on various drug-related charges,

which they now appeal. We address each DefendantAppellant’s respective arguments in turn.

I. Douglas Farmer

On November 18, 2004, Farmer was indicted for conspiracy to distribute and possess with the intent to distribute

cocaine, cocaine base, and marijuana, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(A), 846, and 18 U.S.C. § 2;

thirteen others were named in the indictment on conspiracy and/or various other drug-related offenses. The

last defendant was arraigned on January 13, 2005.

On December 1, 2004, one of the co-defendants filed a

motion to suppress. While that was pending, another

motion was filed, then another, then another; in fact, a

series of overlapping motions continued pending throughout the duration of the case.

On February 22, 2007, Farmer filed a motion to dismiss

the indictment, alleging a violation of the Speedy Trial Act,
Nos. 07-2505, 07-2506, 07-2507 and 07-3313 3

18 U.S.C. § 3161 et seq. Farmer acknowledged that

“excludable days of delay ha[d] occurred,” but argued that

“the delay that has been experienced herein exceeds any

permissible exception visualized by the Speedy Trial Act.”

The district court denied Farmer’s motion, finding that

seventy days of non-excludable time had not passed

between the last co-defendant’s arraignment and Farmer’s

trial because of the filing of several motions by Farmer

and his co-defendants. Farmer re-asserts the same argument on appeal, and like the district court, we reject it.

We review the district court’s denial of Farmer’s Speedy

Trial motion de novo. See United States v. Parker, 508 F.3d

434, 438 (7th Cir. 2007) (citing United States v. Baskin-Bey, 45

F.3d 200, 203 (7th Cir. 1995)). The Speedy Trial Act provides that no more than seventy days may elapse between

a defendant’s initial appearance in court and the commencement of trial. 18 U.S.C. § 3161(c)(1); Parker, 508

F.3d at 438. When more than one defendant is charged

in an indictment, the Speedy Trial clock begins to run

on the date of the last co-defendant’s initial appearance,

which is usually arraignment. Parker, 508 F.3d at 439;

United States v. Garrett, 45 F.3d 1135, 1138 (7th Cir. 1995). In

calculating the Speedy Trial clock, the Act specifically

excludes “delay resulting from any pretrial motion, from

the filing of the motion through the conclusion of the

hearing on, or other prompt disposition of, such motion.”

18 U.S.C. § 3161(h)(1)(F). Furthermore, the Act excludes

any reasonable time lapse occurring “when the defendant

is joined for trial with a codefendant as to whom the

time for trial has not run and no motion for severance

has been granted.” 18 U.S.C. § 3161(h)(7); see Henderson v.
4 Nos. 07-2505, 07-2506, 07-2507 and 07-3313

The pre-trial motions filed by Farmer alone that contributed 1

to the delay included motions for reconsideration of bond, to

continue, to change counsel, to suppress evidence, and to

disqualify the first assigned district court judge. Had the

(continued...)

United States, 476 U.S. 321, 323 n.2 (1986) (noting that in

multi-defendant cases, the seventy-day clock does not

begin until the last co-defendant has been arraigned).

The excludable delay of Farmer’s co-defendants is

ascribed to him, since Farmer was not severed, nor did he

seek severance, from those co-defendants for trial. See

United States v. Baker, 40 F.3d 154, 159 (7th Cir. 1994). As

Farmer acknowledges, overlapping motions filed by

himself and his co-defendants remained before the

district court throughout the time between his last codefendant’s arraignment on January 13, 2005, and the

start of his trial on March 6, 2007. Farmer properly concedes that seventy days of non-excludable time did not

lapse. So despite over two years passing between Farmer’s

indictment and the commencement of his trial, no

Speedy Trial Act violation occurred. (In fact, although no

mention was made of it in this appeal, on February 21,

2005, Farmer filed a Waiver of Speedy Trial.) We disagree

with Farmer that such a delay “makes a mockery of [the

Act’s] statutory protection”; to the contrary, we find the

delay necessary to ensure that the defendants’s pre-trial

motions were adequately considered as to minimize the

effect of any infringement on their rights resulting from

an improper indictment, illegally seized evidence, or any

other impropriety. Accordingly, we affirm Farmer’s 1
Nos. 07-2505, 07-2506, 07-2507 and 07-3313 5

(...continued) 1

court not thoroughly addressed these motions, Farmer would

likely have a substantively different (and possibly more successful) argument on appeal.

conviction.

II. James Ellis

Ellis was convicted of conspiracy to distribute and to

possess with the intent to distribute cocaine, cocaine base,

and marijuana, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A), 846, and 18 U.S.C. § 2. At trial, the government

played recorded telephone calls obtained through courtauthorized wire taps. The government introduced these

tapes through Drug Enforcement Agency (DEA) Special

Agent Michael Rehg. Agent Rehg testified as a fact witness

regarding the investigation’s progress and events, and as

an expert witness to assist the jury in understanding the

coded drug language contained in the recorded conversations.

Agent Rehg testified that he had been a DEA agent

for eight years, and was a Deputy U.S. Marshal for

nine years before that (three years of which he was assigned to the DEA). He further testified that he was the

lead case agent in this case and that he had overseen

the process of obtaining the court-authorized wire taps.

Agent Rehg also stated that he had participated in hundreds of drug cases, he had listened to thousands of calls

in this case, and his experience gave him knowledge of

the meanings of certain coded drug language.
6 Nos. 07-2505, 07-2506, 07-2507 and 07-3313

Ellis repeatedly objected to Agent Rehg’s testimony,

claiming that Agent Rehg was not a qualified expert and

that he was unfairly prejudiced by the district court’s

decision to allow Agent Rehg to testify both as a fact and

expert witness. The district court allowed Agent Rehg to

testify in both capacities, but gave the jury cautionary

instructions regarding expert testimony.

The jury found Ellis guilty of the conspiracy charged, and

the United States Probation Department prepared a PreSentence Report (PSR). The PSR determined that Ellis had

a total offense level of thirty-eight and a criminal history

category of IV, resulting in an advisory Guidelines range

of 324 to 405 months’ imprisonment. This calculation

included a two-level offense increase based on Ellis’s

possession of a firearm during the commission of the

offense, pursuant to U.S.S.G. § 2D1.1(b)(1). The evidence

of Ellis’s possession of a firearm came from the proffer of

a co-conspirator, Elvin Pawnell, who stated that he had

been with Ellis and Farmer on fifteen to twenty occasions

in 2005 when they were providing him with cocaine.

Pawnell said that Ellis carried a .45-caliber handgun

during these meetings; once, Ellis showed him the gun,

and on other occasions, Pawnell saw the gun in Ellis’s

waistband.

Ellis filed written objections to the two-level increase

pursuant to U.S.S.G. § 2D1.1(b)(1), arguing that his possession of a firearm had not been proven beyond a reasonable

doubt, in violation of Blakely v. Washington, 542 U.S. 296

(2004). The district court rejected Ellis’s argument and

applied the two-level enhancement. The district court
Nos. 07-2505, 07-2506, 07-2507 and 07-3313 7

subsequently sentenced Ellis to 288 months’ imprisonment,

which was below his advisory Guidelines range.

On appeal, Ellis contends that the district court erred in

allowing Agent Rehg to testify as both a fact and expert

witness. Specifically, Ellis claims that the district court

failed to properly apply Federal Rule of Evidence 702

because it did not conduct a hearing to consider Agent

Rehg’s qualifications. Ellis further argues that allowing

Agent Rehg to testify in both capacities unfairly prejudiced him. In addition, Ellis argues that the district

court improperly applied the two-level enhancement.

We review the district court’s decision to admit expert

testimony for an abuse of discretion. United States v.

Goodwin, 496 F.3d 636, 641 (7th Cir. 2007) (citing United

States v. Ceballos, 302 F.3d 679, 686 (7th Cir. 2002)). Although Ellis appeals under Rule 702, neither Ellis nor the

government specifically requested that the district court

evaluate Agent Rehg’s qualifications as an expert under

Rule 702. See United States v. Moore, 521 F.3d 681, 685 (7th

Cir. 2008) (noting that when neither party specifically

asks the district court to engage in the analysis under

Rule 702, the district court is not required to do so and

does not err in admitting the testimony). Thus, the district

court did not err by not inquiring further into Agent Rehg’s

qualifications.

Regardless, Agent Rehg was undoubtedly qualified. We

have held that narcotics code words are an appropriate

subject for expert testimony, and that law enforcement

officers who have training and experience in drug-related

transactions and crimes are qualified to testify as an
8 Nos. 07-2505, 07-2506, 07-2507 and 07-3313

expert concerning the practices of people engaged in that

type of conduct. Goodwin, 496 F.3d at 641 n.2; United States

v. Hughes, 970 F.2d 227, 236 (7th Cir. 1992); see also United

States v. Mansoori, 304 F.3d 635, 654 (7th Cir. 2002). Agent

Rehg’s experience included eight years as a DEA agent

and nine years as a Deputy U.S. Marshal. He further

testified that he had participated in hundreds of drugrelated cases prior to being the lead case agent in this

case, that he had listened to thousands of calls involved

in this case, and that the use of the narcotics code language

was consistent with his understanding of the terms’

meanings. Accordingly, the district court did not abuse

its discretion in allowing Agent Rehg to testify as an

expert on narcotics code words.

So we turn to Ellis’s argument that the district court

erred in allowing Agent Rehg to testify in dual capacities.

Testimony in the dual roles of both a fact witness and an

expert witness can be confusing to a jury, but it is permissible provided that the district court takes precautions to

minimize potential prejudice. Goodwin, 496 F.3d at 641.

“The potential for prejudice in this circumstance can be

addressed by means of appropriate cautionary instructions and by examination of the witness that is structured

in such a way as to make clear when the witness is testifying to facts and when he is offering his opinion as an

expert.” Goodwin, 496 F.3d at 641-42 (quoting Mansoori,

304 F.3d at 654).

At trial, the government played several recorded phone

conversations for the jury. After some of the calls, the

prosecutor asked Agent Rehg to give his opinion about the
Nos. 07-2505, 07-2506, 07-2507 and 07-3313 9

We note, however, that the government did not preface each 2

question that elicited Agent Rehg’s expert opinion in this

way. Had they done so, the framework of Agent Rehg’s examination would have undoubtedly made clear to the jury the

capacity of his testimony.

meaning of various terms used in the calls. Agent Rehg

also testified about facts he had obtained through the

investigation that were related to the subjects discussed in

the recorded calls. While this framework did little to

separate out Agent Rehg’s fact testimony from his expert

testimony, the district court did take other precautions to

minimize any potential prejudice. The district court

required the government to establish the proper foundation for Agent Rehg’s knowledge of the coded drug

language prior to him testifying to those meanings. The

government also prefaced Agent Rehg’s expert testimony

by asking him the coded language’s meaning “based on

[his] expertise.” Furthermore, the district court gave 2

the appropriate cautionary instruction regarding expert

testimony, instructing the jury that it could judge that

testimony the same way it judges fact witnesses’ testimony,

and could “[g]ive the testimony whatever weight you

think it deserves. . . .” The district court also allowed Ellis’s

attorney to extensively cross-examine Agent Rehg

about the coded drug terms used in the calls, his familiarity with other drug terms, and the factual aspects of his

direct testimony. Ellis’s attorney critically questioned

Agent Rehg about his expert opinion on the coded language, noting that according to him, “shoes,” “block,” and

“chicken” were just a few of many commonly used words
10 Nos. 07-2505, 07-2506, 07-2507 and 07-3313

that he claimed meant cocaine. This thorough crossexamination highlighted the parts of Agent Rehg’s testimony that were garnered from his expert opinion, which

further clarified the testimonial capacities for the jury. In

light of these safeguards, any risk that the jury could

have confused Agent Rehg’s direct observations with his

expert knowledge of the code words was adequately

alleviated. See United States v. Parra, 402 F.3d 752, 759-

60 (7th Cir. 2005).

Ellis also argues that the two-level enhancement was

improper because: (1) the statements by Pawnell lacked

sufficient indicia of reliability and should not have been

admitted; and (2) the government failed to show by a

preponderance of the evidence that Ellis possessed a

firearm during the conspiracy. The government asserts

that Ellis has waived these arguments, and we agree.

Waiver is the intentional relinquishment of a known

right, while forfeiture is the failure to timely assert a right.

United States v. Olano, 507 U.S. 725, 733 (1993); United States

v. Jaimes-Jaimes, 406 F.3d 845, 847 (7th Cir. 2005). Forfeiture

warrants review for plain error only, but waiver precludes

any appellate review. Jaimes-Jaimes, 406 F.3d at 847. The

paramount feature of waiver is a knowing and intentional decision not to assert the right. Jaimes-Jaimes, 406

F.3d at 848. For strategic reasons, a criminal defendant

may elect to pursue one argument while foregoing another. Id. In that situation, the defendant waives the

arguments he decided not to present. Id. (citing United

States v. Cooper, 243 F.3d 411, 416 (7th Cir. 2001)).
Nos. 07-2505, 07-2506, 07-2507 and 07-3313 11

At the district court, Ellis filed a five-page written

objection to the PSR, which included an objection to the

enhancement for possessing a firearm. Ellis chose to limit

his argument to whether the enhancement violated Blakely

v. Washington, because the possession was not proven at

trial beyond a reasonable doubt. He never challenged the

reliability of Pawnell’s proffer before now, nor did Ellis

ever elect to argue, until now, that the government failed

to establish his possession of a firearm during the conspiracy by a preponderance of the evidence standard. To

the contrary, Ellis implicitly asserted that the preponderance of the evidence standard deprived him of his right to

a fair trial. See generally Blakely, 542 U.S. at 332-33. In any

event, we find no plain error in the district court’s determination that Pawnell’s proffer was reliable and that it

alone was sufficient to establish by a preponderance of

the evidence that Ellis possessed a firearm in furtherance

of the conspiracy. Accordingly, we affirm Ellis’s conviction and sentence.

III. Josiah Compton

Compton was convicted of possession with intent to

distribute cocaine and crack cocaine, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(B), and (b)(1)(C), and being a

felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g). Compton’s PSR determined that he had an

offense level of forty and a criminal history category of VI,

resulting in an advisory Guidelines range of 360 months to

life imprisonment. The PSR counted uncharged drug

amounts in determining Compton’s relevant conduct to
12 Nos. 07-2505, 07-2506, 07-2507 and 07-3313

reach the offense level of forty. To support the inclusion of

the uncharged drug amounts as relevant conduct, the

Probation Department relied on statements from three

individuals and a confidential source, all of whom had

purchased drugs from Compton, as well as statements

from Compton’s own proffer to the government. The

criminal history calculation counted several prior convictions that dated from 1989 to 1999, which totaled thirteen

criminal history points.

Compton objected to the calculations in the PSR, arguing

that the information regarding the uncharged drug

amounts was unreliable and that facts from his proffer

could not be used to calculate his relevant conduct. He

also asserted that the district court incorrectly included

prior convictions that resulted in three points being added

to his base offense level. The district court rejected these

arguments, and subsequently sentenced him to 360

months’ imprisonment.

On appeal, Compton makes four arguments: (1) that the

district court erred in considering the uncharged drug

quantity based on the various cooperators statements

because those drugs were not part of the same course of

conduct charged; (2) that the district court erred by using

Compton’s proffer against him at sentencing; (3) that the

district court miscalculated his criminal history score by

including some of his prior convictions; and (4) that he

is entitled to resentencing in light of Kimbrough v. United

States, ___ U.S. ___, 128 S.Ct. 558 (2007).

The government contends that Compton has waived

his first argument regarding the use of uncharged drug
Nos. 07-2505, 07-2506, 07-2507 and 07-3313 13

amounts in his sentencing calculation by failing to raise the

argument below. In the district court, Compton challenged

the reliability of the six sources of information as to his

relevant conduct; he did not allege that the events to

which those individuals implicated Compton were not

part of the same course of conduct as the charged crimes,

but the record does not reveal a knowing and intentional

decision to forego any “same course of conduct” argument.

See United States v. McClellan, 165 F.3d 535, 552-53 (7th Cir.

1999); United States v. Patel, 131 F.3d 1195, 2001 (7th Cir.

1997). Construing waiver principles liberally in favor of

Compton, we find Compton merely forfeited the argument by failing to timely assert it. Jaimes-Jaimes, 406 F.3d

at 848-49; United States v. Sumner, 265 F.3d 532, 539 (7th

Cir. 2001) (citing McClellan, 165 F.3d at 552-53). Accordingly, we review for plain error. Jaimes-Jaimes, 406 F.3d

at 848-49.

We find no error in the district court’s inclusion of the

various statements or calculation of uncharged drug

quantities evidenced by the cooperators’ statements that

increased Compton’s relevant conduct determination. See

United States v. Artley, 489 F.3d 813, 822-23 (7th Cir. 2007).

Giving broad discretion to the district court’s explicit

determination that the statements were reliable, we

credit the district court’s factual determinations regarding Compton’s relevant conduct. See United States v.

Wilson, 502 F.3d 718, 721 (7th Cir. 2007). Although the

district court failed “to explicitly state and support its

finding that uncharged drug quantities are sufficiently

related to the offense of conviction[,] . . . [that] does not

mean it failed to make the necessary finding.” Id. at 723
14 Nos. 07-2505, 07-2506, 07-2507 and 07-3313

(citing United States v. Arroyo, 406 F.3d 881, 889 (7th Cir.

2005)). “Relevant conduct can be used to enhance a defendant’s sentence if it is part of the same course of action

or common scheme or plan that gave rise to [his] conviction” and is established by a preponderance of the evidence. United States v. McGowan, 478 F.3d 800, 802 (7th

Cir. 2007) (citing United States v. Johnson, 342 F.3d 731, 733

(7th Cir. 2003)). We consider significant similarity, regularity, and temporal proximity of the uncharged conduct

with the convicted offense, as well as common victims,

accomplices, purpose, or modus operandi. See McGowan, 478

F.3d at 802; United States v. Ortiz, 431 F.3d 1035, 1040 (7th

Cir. 2005); see also U.S.S.G. § 1B1.3(a)(2), app. n.9. Where

the defendant’s convicted offense was merely the latest

drug sale in an unbroken series of deals regularly made,

that is sufficient to find the defendant’s prior drug transactions were part of the same course of conduct as the

offense of conviction. Wilson, 502 F.3d at 724.

In this case, Compton was steadily involved in dealing

crack and powder cocaine in the same area from 1998

until his arrest in 2004. The government’s sources confirmed this, documenting regular drug transactions

between the sources and Compton from 2000 until 2004,

totaling thirty-three ounces of crack cocaine. While the

record lacks substantial evidence of Compton’s particular

drug transactions from 1998 until March 2000, amounts

for this period were not included in the relevant

conduct calculation. But there was sufficient testimony

to establish that the course of illegal conduct began back

then for purposes of determining when the offense that

led to the conviction began. For example, one of the gov-
Nos. 07-2505, 07-2506, 07-2507 and 07-3313 15

ernment’s sources testified that Compton was one of the

largest crack cocaine dealers in the Newport, Illinois area

in 2000, so Compton probably established himself as such

through regular drug transactions prior to 2000. Another

source explained that he began buying cocaine from

Compton in late 1999. Compton’s PSR stated that he

began receiving cocaine from one Marvin Williams in

1998, a fact to which Compton did not object. Based on

this evidence, we find that Compton was engaged in

continuous drug dealing, selling large quantities of

powder and crack cocaine to regular customers at regular

intervals in the same vicinity from 1998 until his arrest

in 2004. Accordingly, we find no clear error in the district

court’s crediting the cooperators’ statements for

Compton’s relevant conduct calculation.

So we turn to Compton’s second argument on appeal—that the district court improperly relied upon

information obtained from Compton’s proffer to

increase his base offense level. Compton complains that

the government violated the terms of the proffer agreement by including 197 kilograms of cocaine in his

relevant conduct calculation recommended by the PSR.

Because the facts pertaining to the alleged breach are

undisputed, we review the question of whether the government breached the proffer agreement de novo. See

United States v. Schilling, 142 F.3d 388, 394 (7th Cir. 1998).

We also review the district court’s application of the

Sentencing Guidelines de novo since Compton preserved

the argument below. United States v. Samuels, 521 F.3d 804,

815 (7th Cir. 2008).
16 Nos. 07-2505, 07-2506, 07-2507 and 07-3313

A proffer agreement is a binding contract, enforced

according to its terms. See United States v. Cobblah, 118 F.3d

549, 551 (7th Cir. 1997). However, proffer agreements that

are a part of ongoing criminal proceedings are “ ‘unique

contracts and the ordinary contract principles are supplemented with a concern that the bargaining process not

violate the defendant’s rights to fundamental fairness

under the Due Process Clause.’ ” United States v. $87,118.00

in United States Currency, 95 F.3d 511, 516-17 (7th Cir. 1999)

(quoting United States v. Rourke, 74 F.3d 802, 805 (7th Cir.

1996)). We hold the government to “the literal terms” of the

agreement, as well as the “most meticulous standards of

both promise and performance” to insure the integrity

of the bargaining process involved in proffers. See

Schilling, 142 F.3d at 395 (internal quotations and citations omitted).

The fifth substantive paragraph of the proffer agreement

provided that the government would not use any statements or other information provided by Compton

against him in its case in chief, but that the government

would “be free to provide any such information to any

United States District Court in the event that [Compton]

either pleads guilty or is found guilty later at trial [as is

required to comply with Rule 32 of the Federal Rules of

Criminal Procedure for sentencing decisions].” Yet the

sixth substantive paragraph states:

[N]o self-incriminating information given by

[Compton] will be used to enhance the Offense Level

against [Compton] except as provided in [Section 1B1.8

of the Sentencing Guidelines]. The government may,
Nos. 07-2505, 07-2506, 07-2507 and 07-3313 17

however, use any statements made or other information provided by [Compton] to rebut evidence or

arguments at sentencing materially different from

any statements made or other information provided

by [Compton] during the “off-the record” proffer or

discussion.

The Probation Department, a division of the government

bound by the terms of the proffer agreement, see United

States v. Lezine, 166 F.3d 895, 904 (7th Cir. 1999) (noting

that probation officers are an extension of the government and officers of the court), recommended in the PSR

that 197 kilograms of cocaine be used to increase his

offense level as relevant conduct. The 197 kilograms of

cocaine was evidenced solely by Compton’s proffer, and

the district court adopted the PSR’s recommendation.

The government asserts that it properly provided this

information to the district court under paragraph five of

the agreement. Indeed, the agreement allowed the government to “provide” the information to the court for

sentencing purposes, but it was prohibited from “using”

the information to enhance Compton’s offense level under

paragraph six. Under the proffer agreement, the government could provide Compton’s proffer statements to

the district court, but it could not per se recommend

that the court increase Compton’s offense level based on

that information. To do so constituted a “use” prohibited

by paragraph six. By their very nature, paragraphs five

and six of the agreement are almost irreconcilable; short

of attaching the defendant’s proffer statements to materials provided to the court for sentencing purposes, any

other mention of information obtained from the proffer
18 Nos. 07-2505, 07-2506, 07-2507 and 07-3313

will likely violate the agreement. Be that as it may, under

the circumstances of this case, the government violated

the terms of the proffer agreement by submitting to the

district court protected statements made by Compton.

The government also claims it properly used Compton’s

proffer to rebut his assertion that the government’s

sources were unreliable for purposes of calculating other

relevant conduct drug quantities. This argument puts the

cart before the horse, however, since Compton’s objection

to the reliability of the government’s sources came after

the PSR containing the information from Compton’s

proffer.

Compton was sentenced to 360 months’ imprisonment.

This sentence was at the bottom of his Guidelines range

of 360 months to life imprisonment, calculated by including the 197 kilograms of cocaine as relevant conduct. Had

the district court not considered the 197 kilograms of

cocaine as relevant conduct, the Guidelines range would

have been 324-405 months. Although the Guidelines are

advisory, a district court must accurately calculate and

consult the defendant’s Guidelines range. United States v.

Thomas, 520 F.3d 729, 736 (7th Cir. 2008). A sentencing

based on an incorrect Guidelines range constitutes plain

error and warrants a remand for resentencing, unless

we have reason to believe that the error in no way

affected the district court’s selection of a particular sentence. United States v. Garrett, 528 F.3d 525, 527 (7th Cir.

2008); United States v. Wallace, 32 F.3d 1171, 1174 (7th Cir.

1994). The fact that Compton’s sentence of 360 months

is within his correct Guidelines range of 324-405 months

is of no consequence. See Wallace, 32 F.3d at 1174 (“Al-
Nos. 07-2505, 07-2506, 07-2507 and 07-3313 19

Compton also filed a supplemental brief, arguing that he was 3

entitled to resentencing in light of Kimbrough v. United States, ___

U.S. ___, 128 S.Ct. 558, 564 (2007), and United States v. Taylor,

520 F.3d 746, 748 (7th Cir. 2008). We need not address this

argument since Compton is already entitled to be resentenced

due to the government’s breach of the proffer agreement and

we trust that the district court will adequately consider the

appropriate impact of Kimbrough and Taylor on Compton’s

sentence.

though the sentencing that the district court selected in

this case is within the correct as well as the incorrect

Guidelines range, we must remand unless we have

reason to believe that the error did not affect the district

court’s selection of a particular sentence.”). We have no

reason to believe that the district court would not have

selected an even lower sentence if given the opportunity

to do so, thus, we must remand. See Wallace, 32 F.3d at

1174-75. Accordingly, Compton is entitled to be resentenced.

Despite Compton’s entitlement to resentencing, we

address his last argument to assist the district court upon

resentencing. Compton argues that the district court erred

3

in calculating his criminal history category by including

prior convictions dating from 1989 to 1999. We review

the district court’s fact-finding for clear error. United

States v. Robinson, 435 F.3d 699, 701 (7th Cir. 2006). The

government again argues that Compton has waived this

argument since, at the district court, he elected to only

challenge three points—two for committing the offenses

of conviction while under a criminal justice sentence

and one for a prior conviction from 1998. While we agree
20 Nos. 07-2505, 07-2506, 07-2507 and 07-3313

that Compton did not previously argue that some of his

prior convictions are too old to count, we do not find the

arguments strategically intertwined in a way that

suggests knowing and intentional waiver. See JaimesJaimes, 406 F.3d at 848. Accordingly, we give Compton the

benefit of the doubt, and review the district court’s factfinding regarding when the offense of conviction began

for plain/clear error. Id. at 848-49 (“Waiver principles

should be construed liberally in favor of the defendant.”)

(citations omitted).

We need not dissect Compton’s criminal history, however, since his arguments operate under the mistaken

assumption that the offense of conviction began in 2004,

not in 1998, as the district court correctly found. Because

we have already determined that the offense of conviction

was properly determined to have begun in 1998 and

continued until Compton’s arrest in 2004, all prior convictions challenged are proper under U.S.S.G. §§ 4A1.1(b)

(calculating criminal history points) and 4A1.2(e)(2)

(include prior sentences of imprisonment within ten

years of the commencement of the instant offense). Additionally, the district court properly relied on information

obtained from Compton’s proffer to determine that the

instant offense began in 1998; U.S.S.G. § 1B1.8(b)(2) provides that proffers are not off-limits when used for information “concerning the existence of prior convictions

and sentences in determining § 4A1.1 (Criminal History

Category) and § 4B1.1 (Career Offender).” We find no

error in the district court’s calculation of Compton’s

criminal history category.
Nos. 07-2505, 07-2506, 07-2507 and 07-3313 21

The affidavit explained that both of the sources had success- 4

fully completed multiple controlled purchases for the DEA

(which field tested positive for cocaine) and that information

provided by one of them had led to an arrest and a drug

and currency seizure.

IV. Gerald Howliet

Howliet was convicted of possession with intent

to distribute cocaine base and heroin, in violation of

21 U.S.C. §§ 841(a)(1), (b)(1)(A), and (b)(1)(C), and being

a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g). Evidence against Howliet was obtained

during the execution of a search warrant at Howliet’s

residence in Cahokia, Illinois. A magistrate judge issued

the search warrant based on an affidavit signed by DEA

Agent Larry Fox, which included the following information: Agent Fox had reason to suspect, based on information provided by two reliable confidential sources, that

Howliet’s cousin, Charles, sold the informants crack

cocaine that he obtained from Howliet. At the direction 4

of law enforcement, both of the confidential sources

purchased an ounce of crack cocaine from Charles, during

which all conversations were recorded and Charles was

driving a vehicle known to be used by Howliet. After these

controlled purchases and again at the direction of law

enforcement, one of the confidential sources ordered an

eighth of a kilogram of crack from Charles, who told the

source that it would take some time for him to obtain the

drugs and that he would call the source when he was

ready to complete the sale. Law enforcement maintained

surveillance of Charles, who then went to Howliet’s
22 Nos. 07-2505, 07-2506, 07-2507 and 07-3313

residence. Upon leaving Howliet’s house, Charles drove

to his apartment. The confidential source then called

Charles to check the status of his drug order, who told

the source he needed a few more minutes. Less than an

hour later, Charles met the confidential source at a

nearby restaurant, where they completed the crack

cocaine transaction. During the exchange, Charles told

the confidential source not to worry about a portion of the

crack being a different color, explaining that it had just

been prepared. Upon law enforcement’s observation of

the crack cocaine provided by Charles, the agents noted

that approximately one half ounce of the crack was a

different color and was packaged separately in a bag with

condensation inside it. In light of this information, Agent

Fox believed that Charles did not have the full amount

of crack ordered by the confidential source, so he went

to Howliet’s residence to obtain additional cocaine, and

then went to his apartment to “cook” the powder cocaine

into crack cocaine. The DEA field tested the substance

provided by Charles, which tested positive for cocaine.

Before the district court, Howliet argued that the evidence obtained from the search should be suppressed

because the search warrant lacked probable cause. On

appeal, Howliet makes this same argument, and also

asserts that the good faith exception to the exclusionary

rule should not apply because Agent Fox could not have

reasonably believed that probable cause existed.

We review a district court’s findings of historical fact

for clear error and its legal conclusions de novo. United

States v. Garcia, 528 F.3d 481, 485 (7th Cir. 2008) (citing
Nos. 07-2505, 07-2506, 07-2507 and 07-3313 23

United States v. McIntire, 516 F.3d 576, 578 (7th Cir. 2008)).

On the issue of whether the facts add up to probable

cause, we give great deference to the judge who initially

issued the warrant, but we give no weight to the district

court judge’s decision. Id. We will defer to the determination of the warrant-issuing judge that probable cause

existed so long as “there is substantial evidence in the

record supporting the judge’s decision.” United States v.

Koerth, 312 F.3d 862, 865 (7th Cir. 2002).

“Probable cause is established when, based on the

totality of the circumstances, the affidavit sets forth

sufficient evidence to induce a reasonably prudent person

to believe that a search will uncover evidence of a crime.”

Garcia, 528 F.3d at 485-86 (citing Illinois v. Gates, 462 U.S.

213, 238 (1983); United States v. Jones, 208 F.3d 603, 608 (7th

Cir. 2000)). It requires only a probability, not absolute

certainty, that evidence of a crime may be found. United

States v. Sidwell, 440 F.3d 865, 869 (7th Cir. 2006). When

the affidavit includes information supplied by an informant, we consider: “(1) the extent to which the police

have corroborated the informant’s statements; (2) the

degree to which the informant has acquired knowledge

of the events through firsthand observation; (3) the

amount of detail provided; and (4) the interval between

the date of the events and police officer’s application for

the search warrant.” Garcia, 528 F.3d at 486 (citing Koerth,

312 F.3d at 866).

We agree that a reasonable judge could find that the

affidavit here set forth sufficient facts to establish

probable cause. The affidavit explained that Agent Fox
24 Nos. 07-2505, 07-2506, 07-2507 and 07-3313

had worked with both confidential informants before, and

had determined them to be reliable sources through

numerous controlled purchases as well as an arrest and

seizure of cocaine and drug money. It also stated that

the DEA had field tested suspected drugs from the informants’ controlled purchases and they tested positive

for the presence of cocaine. Both informants had direct

contact with Charles during which Charles sold them

crack cocaine, and the transactions were monitored and

recorded by law enforcement. The affidavit detailed the

DEA’s surveillance of the informants’ interactions with

Charles, which verified the information they obtained

from the informants, in particular, that Charles needed

time to obtain the cocaine requested by the informant, and

that during that time he went to Howliet’s house. The

informants had already told the agents that Charles got

his supply from Howliet, thus Charles’s procession to

Howliet’s house after the informant requested a large

quantity of cocaine corroborated that statement. Shortly

after leaving Howliet’s house, Charles met with the

informant with freshly cooked crack cocaine. The warrant

was issued on the same day as the events described in

the affidavit. Thus, based on the facts presented to the

warrant-issuing judge, there was substantial evidence

to suspect that Charles had obtained cocaine from

Howliet’s house. Accordingly, the warrant was supported by probable cause.

Because the warrant was supported by probable cause,

we need not address the good faith exception under

United States v. Leon, 468 U.S. 897 (1984). The district court
Nos. 07-2505, 07-2506, 07-2507 and 07-3313 25

did not err in admitting evidence seized from Howliet’s

residence, and his conviction is affirmed.

V. Conclusion

For the foregoing reasons, we find no error in the convictions and sentences of Farmer, Ellis, or Howliet and

therefore affirm all of their convictions and sentences. As

for Compton, we affirm his conviction but vacate his

sentence and remand for resentencing in light of the

improper use of his proffer statements in the PSR, resulting

in an incorrect Guidelines range. The district court is

advised not to consider the 197 kilograms of cocaine

discovered solely from Compton’s proffer statements as

relevant conduct; it may still consider various other

relevant conduct, as described in greater detail but not

accounted for in the PSR’s recommendation. We also

advise the district court to consider Kimbrough and its

progeny upon resentencing Compton.

9-9-08