In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-4112

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

QUILL R. HAWK,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 04-CR-116-C-01—Barbara B. Crabb, Chief Judge.

____________

ARGUED JUNE 6, 2005—DECIDED JANUARY 17, 2006

____________

Before ROVNER, WOOD, and WILLIAMS, Circuit Judges.

WOOD, Circuit Judge. Between the appearance of Blakely

v. Washington, 542 U.S. 296 (2004), in which the Supreme

Court found that Washington state’s sentencing scheme

violated the Sixth Amendment, and that of United States v.

Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), in which the

Court extended Blakely’s holding to the federal Sentencing

Guidelines, the federal sentencing world was in limbo. No

one knew whether the Court would distinguish the Guidelines from the state law it had considered in Blakely, scrap

the Guidelines altogether, or come up with some intermediate ruling. This case concerns a sentence imposed during

this period of uncertainty. Although the district court was
2 No. 04-4112

remarkably prescient and predicted the outcome of Booker

by treating the Guidelines as merely advisory, it moved a

little too quickly through Quill R. Hawk’s sentencing

hearing. The court accepted the recommendation in Hawk’s

Pre-Sentence Report (PSR) of a 121-month term, but it

failed to make the findings of fact necessary to support that

sentence. This omission prevents us from assessing the

reasonableness of the sentence; we therefore vacate Hawk’s

sentence and remand for resentencing.

I

On September 29, 2004, Hawk pleaded guilty to one count

of distributing cocaine in violation of 21 U.S.C. § 841(a)(1).

As part of his plea agreement, Hawk admitted that “the

United States can prove . . . beyond a reasonable doubt

[that] the total offense conduct involved at least 100 grams

but less than 200 grams of [powder] cocaine.” Based on this

admission, the Probation Office recommended that the

court sentence Hawk to between 30 and 37 months in

prison. The government objected. In its view, the plea

arrangement addressed only what the government could

prove beyond a reasonable doubt and did not consider other

relevant conduct, particularly evidence of crack distribution. The Probation Office reconsidered its recommendation,

revising its recommendation upward by more than seven

years to between 121 and 151 months in prison.

Hawk was not pleased with the new recommendation. At

his sentencing hearing, his counsel objected to the PSR,

stating, “we [ ] take the utmost exception to the calculations

. . . and we think that the recommendation violates the

Sixth Amendment under Booker [the Seventh Circuit’s

version, see 375 F.3d 508 (7th Cir. 2004)] and Blakely.” The

court asked Hawk whether he had any other objections, and

Hawk said that he did not. Before imposing sentence, the
No. 04-4112 3

court expressed its concern about Hawk’s lengthy criminal

history dating back to the age of 11 and the likelihood that

Hawk would commit future crimes even if sentenced to a

“lengthy prison term.” Turning to actual pronouncement of

Hawk’s sentence, the court stated:

You haven’t stipulated to the facts and enhancements

to the sentencing guidelines that increase your sentence

in relation to the cocaine base that’s attributable to you,

and you haven’t waived your right to a jury determination of those facts. Therefore, I will not impose a

sentence using the sentencing guidelines. Instead, I will

impose a sentence consistent with provisions set forth

in 18 U.S.C. § 3553(a) using the November 2004 guidelines manual as advisory and as a reliable indicator in

determining the appropriate sentence within the

statutory limits of the count of conviction.

Although the district court could not have known it at the

time, its approach to the Sentencing Guidelines— treating

them as advisory, and focusing on the factors in 18 U.S.C.

§ 3553(a)—perfectly foresaw the Supreme Court’s Booker

decision. See Booker, 125 S. Ct. at 766-67. The district court

sentenced Hawk using the revised recommendation in the

PSR to 121 months’ imprisonment. While the court briefly

mentioned some of Hawk’s individual circumstances, it

never adopted the PSR or formally found that Hawk had

distributed an additional four ounces of crack, in addition

to the powder cocaine distribution he had acknowledged. At

the time, neither Hawk nor his counsel objected to this

oversight.

II

On appeal, Hawk claims that he is entitled to resentencing because the district court failed to create a factual

foundation that would support his 121-month sentence. The
4 No. 04-4112

government argues that Hawk has forfeited this argument

by failing to raise it before the district court. Hawk disagrees, arguing that his objection to the revised PSR

recommendation was broad enough to encompass his

present argument on appeal, but we think that the government has the better of this exchange. Hawk’s argument in

this court concerns the district court’s handling of the facts,

not the facts themselves. His objection before the district

court, in contrast, focused on the factual underpinnings of

the PSR. He made no objection to the district court’s

decision to skip formal factual findings. In fact, the only

objection Hawk made occurred before the court adopted the

PSR recommendation. For his objection to have been broad

enough to encompass his present argument, we would have

to treat it as an objection to something that had not yet

occurred. Hawk was given an opportunity to object after the

court imposed the 121-month sentence and he failed to do

so.

Hawk has therefore forfeited his argument that the

district court’s findings of fact were inadequate. See United

States v. Staples, 202 F.3d 992, 995 (7th Cir. 2000) (“One

forfeits his rights by failing to assert them in a timely

manner. Where waiver is accomplished by intent, forfeiture

comes about through neglect.”) (internal citation omitted).

Hawk’s forfeiture does not preclude relief, as a waiver

would, but it does mean that we review his new contention

for plain error. See FED. R. CRIM. P. 52(b). Generally,

determining whether such an error exists is a four-step

process: “we must decide (1) whether there was an error at

all, (2) whether it was plain, (3) whether it affected the

defendant’s substantial rights, and (4) whether (if the first

three factors are present) it seriously affected the fairness,

integrity, or public reputation of the judicial proceedings.”

United States v. Nance, 236 F.3d 820, 824 (7th Cir. 2000).

Hawk is correct that the district court erred; it should

have made the necessary factual findings to support the
No. 04-4112 5

advisory Guidelines range it used. Even in the post-Booker

era, the first step in imposing a sentence is properly to

calculate a Guidelines range. See United States v. Rodriguez-Alvarez, 425 F.3d 1041, 1046 (7th Cir. 2005); Booker,

125 S. Ct. at 767. “Our cases require that when a district judge sets a defendant’s base offense level by aggregating drug quantities from uncharged or unconvicted conduct,

the judge must explicitly state and support, either at the

sentencing hearing or (preferably) in a written statement of

reasons, its finding that the unconvicted activities bore the

necessary relation to the convicted offense.” United States

v. Patel, 131 F.3d 1195, 1203 (7th Cir. 1997) (internal

quotations omitted). We review findings about relevant

conduct—and particularly calculations about the amount of

drugs involved in an offense— for clear error, even in the

post-Booker era. See United States v. Ortiz, 2005 WL

3358920, at *4 (7th Cir. Dec. 12, 2005). “A finding of fact is

clearly erroneous when ‘although there is evidence to

support it, the reviewing court on the entire evidence is left

with the definite and firm conviction that a mistake has

been committed.’ ” Id. Without a clear statement of the

rationale for the court’s decision to include the crack as

relevant conduct, we cannot evaluate whether that decision

was proper or constituted clear error.

Under § 1B1.3(a)(2) of the Sentencing Guidelines, a

defendant is not responsible for all drug transactions

revealed by the record, but only for those that are “part

either of the same course of conduct as the charged offense

or of a common scheme or plan including the charged

offense.” United States v. Crockett, 82 F.3d 722, 730 (7th

Cir. 1996). Without findings from the district court, we

cannot say whether Hawk’s purported crack sales met these

criteria. Cf. United States v. George, 403 F.3d 470, 473 (7th

Cir. 2005) (“When the district judge omits findings about

contested amounts of restitution, it may be impossible to

tell whether the legal rules have been applied correctly.”);
6 No. 04-4112

United States v. Cunningham, 429 F.3d 673, 679-80 (7th

Cir. 2005) (requiring the district court to provide analysis

when rejecting a defendant’s § 3553(a) arguments because

“whenever a district judge is required to make a discretionary ruling that is subject to appellate review, we have to

satisfy ourselves, before we can conclude that the judge did

not abuse his discretion, that he exercised his discretion,

that is, that he considered the factors relevant to that

exercise”).

As we noted earlier, even though the Guidelines are

no longer mandatory, sentencing courts still must consider and properly calculate a defendant’s Guidelines

range. See Booker, 125 S. Ct. at 767 (“The district courts,

while not bound to apply the Guidelines, must consult those

Guidelines and take them into account when sentencing.”);

see also United States v. Skoczen, 405 F.3d 537, 549 (7th

Cir. 2005) (“[T]he Guidelines do retain force even though

they are no longer mandatory, and thus errors in their

application remain relevant.”). An incorrect application of

the Guidelines requires resentencing. See United States v.

Scott, 405 F.3d 615, 617 (7th Cir. 2005). Given the uncertain status of the Guidelines at the time of Hawk’s sentencing, the court’s course of action is understandable. Nonetheless, its failure to make these findings was an error and,

given the essential character of these facts, we find that

error plain.

Hawk’s 121-month sentence is not supported by his

own admissions, a jury’s findings, or the court’s own factual

conclusions. Without the additional relevant conduct, Hawk

would have been facing a relatively brief advisory Sentencing Guidelines range of 30 to 37 months. The 84-month gap

between what the properly supported facts justified and

what Hawk actually received affects his substantial rights

and the fundamental fairness of the proceedings. Accordingly, Hawk has satisfied the final two plain error factors

and must be resentenced.
No. 04-4112 7

III

For these reasons, we VACATE Hawk’s current sentence

and REMAND for resentencing.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-17-06