In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 18-1375 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

JESSE PENNINGTON, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the 

Western District of Wisconsin. 

No. 17-CR-00017-2 — James D. Peterson, Chief Judge. 

____________________ 

ARGUED OCTOBER 3, 2018 — DECIDED NOVEMBER 5, 2018 

____________________ 

Before MANION, HAMILTON, and BRENNAN, Circuit Judges. 

HAMILTON, Circuit Judge. Jesse Pennington pleaded guilty 

to distributing a Schedule I controlled substance in violation 

of 21 U.S.C. § 841(a)(1). The district court sentenced her to one 

year and one day in prison, within the Sentencing Guidelines 

range of ten to sixteen months in prison. Pennington does not 

argue that her sentence was substantively unreasonable, but 

she argues that the district court made procedural errors in 

sentencing her. She first argues that the district court should 
2 No. 18-1375 

not have compared her to one of her co-defendants when determining her sentence because the two were not similarly situated. Next, she argues that the court violated her due process 

rights by twice relying on inaccurate information at sentencing. 

We affirm. The district court’s comparison of Pennington 

to her co-defendant was not a procedural error. The comparison was reasonable and did not exclude consideration of 

other factors that 18 U.S.C. § 3553(a) requires courts to consider. We also find that the court did not violate Pennington’s 

due process rights by relying on inaccurate information. Although the judge made a factual error in explaining the sentence orally, he corrected the error in the written explanation, 

indicating that the error did not affect the ultimate sentence. 

I. Factual and Procedural Background 

In the autumn of 2015, law enforcement in Madison, Wisconsin, began investigating a ring distributing methylenedioxymethamphetamine, more commonly known as MDMA or 

Ecstasy, and other controlled substances. An undercover officer bought Ecstasy from Pennington twice in late 2015. The 

officer also met with Pennington on two other occasions 

around that time intending to purchase Ecstasy, but the officer never completed those sales. In September 2016, the officer again twice bought Ecstasy from Pennington. And in October 2016, the officer tried to purchase crack cocaine from 

Pennington, but she lacked direct access to that drug. 

A grand jury indicted Pennington and three others, including JonPaul Dotson, on a total of eleven counts of distributing Ecstasy and crack cocaine. The indictment charged Pennington in two of the counts. She pleaded guilty to one. 
No. 18-1375 3

At the sentencing hearing, the government requested a 

prison sentence within the undisputed guideline range of ten 

to sixteen months. Pennington’s involvement in the drug ring 

was at “the bottom rung of the ladder,” the government 

acknowledged, and the court also already had sentenced Pennington’s three co-defendants: two of them to four years in 

prison, and Dotson to about seven months of time served in 

pretrial detention. The judge noted that Dotson was “probably ... the smallest” rung of the ladder, a characterization that 

the government agreed with because Dotson “did one distribution [of crack cocaine] on one occasion.” Pennington argued for probation rather than prison. Arguing that Pennington “needs help, not punishment,” her lawyer emphasized 

Pennington’s traumatic life experiences, her need to care for 

her children, and her cooperation with law enforcement. 

The judge sentenced Pennington to one year and one day. 

(The “and one day” meant that she would be eligible to earn 

a 15% good-time credit. See 18 U.S.C. § 3624(b).) The judge 

stated that “the biggest driver” of the sentence was the seriousness of the crime and the need to avoid “unwarranted disparities between similarity-situated defendants.” Pennington 

was more culpable than Dotson, the judge found, because 

Dotson “was involved in essentially one transaction.” The 

judge explained: 

You were involved in a pattern of drug dealing 

that began as early as October 2014 and went 

through October [’16] There might be a gap in 

there where there aren’t continuous transactions, but there was a sustained period of time 

of almost two years ... that begins in the fall of 

October ’14 and continues to October ’16. Even 
4 No. 18-1375 

if it wasn’t thoroughly continuous, it was a long 

period of drug dealing. 

The record shows, however, that Pennington’s involvement 

with the drug operation actually began in 2015, not 2014. 

The judge deemed it unfair to give Pennington a sentence 

of probation when “even Mr. Dotson ... ended up serving a 

term of incarceration” (i.e., pretrial detention). He also mentioned Pennington’s “very difficult upbringing,” but he 

added that Pennington is not “necessarily a very good historian of her own past.” The judge observed that Pennington 

deserved a sentence at the low end of the guideline range because she had accepted responsibility for her actions and cooperated with the authorities. In his written statement of reasons, the judge reiterated much of his explanation, with one 

important change: he corrected his oral error and wrote accurately that Pennington’s “drug dealing activities began as 

early as fall 2015 and continued in the fall of 2016.” 

II. Analysis

On appeal, Pennington argues that the court committed 

procedural errors by failing to consider properly all of the 18 

U.S.C. § 3553(a) factors and relying on inaccurate information 

to determine her sentence. She contends that the district court 

erroneously focused almost exclusively on her culpability relative to JonPaul Dotson, who she argues was not similarly situated. She further argues that the judge procedurally erred by 

relying on inaccurate information because she is not a “poor 

historian” of her traumatic past and because she did not sell 

drugs for the “sustained period of time” of two years. 
No. 18-1375 5

A. Standard of Review 

The government argues that Pennington forfeited these arguments by not raising them in the district court. Pennington 

points out correctly that Federal Rule of Criminal Procedure 

51(a) provides that a party need not state an “exception” to a 

ruling the court has already made. See, e.g., United States 

v. Bartlett, 567 F.3d 901, 910 (7th Cir. 2009) (“the rules do not 

require a litigant to complain about a judicial choice after it 

has been made”). Pennington’s arguments on appeal challenge the district court’s explanation of its sentencing decision. If she had made them in the district court, they would 

have been the kind of post-decision exceptions that Rule 51(a) 

provides a party need not raise to preserve her appellate 

rights. See United States v. Cunningham, 429 F.3d 673, 679–80 

(7th Cir. 2005). Either party, however, could have avoided this 

appeal by speaking up. See United States v. Donelli, 747 F.3d 

936, 941 (7th Cir. 2014); Cunningham, 429 F.3d at 679–80. 

Both of Pennington’s claims—that the district court failed 

to consider the § 3553(a) factors properly and that it relied on 

inaccurate information—assert procedural errors. See Gall v. 

United States, 552 U.S. 38, 51 (2007). In the absence of forfeiture, we review the sentencing court’s procedure de novo. 

United States v. Pulley, 601 F.3d 660, 664 (7th Cir. 2010), citing 

United States v. Smith, 562 F.3d 866, 872 (7th Cir. 2009). We review underlying factual findings for clear error. Id., citing 

United States v. Heckel, 570 F.3d 791, 793 (7th Cir. 2009). 

B. Section 3553(a) Factors 

Pennington argues that the sentencing court erred by failing to give meaningful consideration to the § 3553(a) factors 
6 No. 18-1375 

that must be considered in federal sentencing.1 She first argues that § 3553(a)(6), which instructs courts to avoid 

 

1 Section 3553(a) provides as follows: 

Factors to be considered in imposing a sentence.—The court 

shall impose a sentence sufficient, but not greater than necessary, 

to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be 

imposed, shall consider— 

(1) the nature and circumstances of the offense and the history 

and characteristics of the defendant; 

(2) the need for the sentence imposed— 

(A) to reflect the seriousness of the offense, to promote respect 

for the law, and to provide just punishment for the offense; 

(B) to afford adequate deterrence to criminal conduct; 

(C) to protect the public from further crimes of the defendant; 

and 

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in 

the most effective manner; 

(3) the kinds of sentences available; 

(4) the kinds of sentence and the sentencing range established 

for— 

(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines— 

(i) issued by the Sentencing Commission pursuant to section 

994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of 

whether such amendments have yet to be incorporated by the 

Sentencing Commission into amendments issued under section 

994(p) of title 28); and 
No. 18-1375 7

sentencing disparities among defendants with similar records 

and criminal conduct, does not justify comparing co-defendants in the same case. She also argues that the district court 

focused on comparing her to Dotson to the exclusion of all the 

other § 3553(a) factors. We disagree. 

As an initial matter, Pennington is incorrect in saying that 

the “unwarranted disparities” factor in § 3553(a)(6) applies 

 

(ii) that, except as provided in section 3742(g), are in effect on 

the date the defendant is sentenced; or 

(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the 

Sentencing Commission pursuant to section 994(a)(3) of title 28, 

United States Code, taking into account any amendments made 

to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); 

(5) any pertinent policy statement— 

(A) issued by the Sentencing Commission pursuant to section 

994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by 

the Sentencing Commission into amendments issued under section 994(p) of title 28); and 

(B) that, except as provided in section 3742(g), is in effect on 

the date the defendant is sentenced. 

(6) the need to avoid unwarranted sentence disparities among 

defendants with similar records who have been found guilty of 

similar conduct; and 

(7) the need to provide restitution to any victims of the offense. 
8 No. 18-1375 

only to defendants across districts and not to co-defendants 

in the same case. See United States v. Solomon, 892 F.3d 273, 278 

(7th Cir. 2018), citing Gall, 552 U.S. at 55–56. And although a 

sentencing judge must consider each factor, she need not give 

them all the same weight. The judge is afforded great discretion in weighing the different factors. See Gall, 552 U.S. at 52–

56. Here, the judge mentioned Pennington’s history and characteristics but ultimately found that the seriousness of the 

crime and the need to avoid sentencing disparities justified a 

sentence higher than the probation Pennington requested. 

The judge also credited Pennington’s cooperation with law 

enforcement, relying on this fact in issuing a sentence toward 

the bottom of the Guidelines range. Because the judge adequately considered the § 3553(a) factors, there was no procedural error on this score. 

Pennington also argues that the court violated her right to 

an “individualized” sentence by linking her sentence to Dotson’s. See Gall, 552 U.S. at 50. But Dotson’s seven-month sentence was not random or happenstance. The judge found that 

seven months was “reasonable and no greater than necessary.” See § 3553(a). Because Pennington was more culpable 

than Dotson—and because the other § 3553(a) factors did not 

require a below-guideline sentence—the court arrived at a 

sentence for her that it similarly found reasonable and no 

greater than necessary. 

C. Accuracy of Information at Sentencing 

A defendant has a due process right to be sentenced based 

on accurate information. United States v. Tucker, 404 U.S. 443, 

447 (1972); U.S. ex rel. Welch v. Lane, 738 F.2d 863, 864–65 (7th 

Cir. 1984). To succeed on this attack on her sentence, Pennington must show that inaccurate information was before the 
No. 18-1375 9

court and that the court relied upon it. United States v. Oliver, 

873 F.3d 601, 608–09 (7th Cir. 2017), citing Lechner v. Frank, 341 

F.3d 635, 639 (7th Cir. 2003). Pennington argues that the district court violated this principle twice—first when the judge 

said that she was not “necessarily a very good historian of her 

own past,” and again when he said that she had sold drugs 

for two years instead of one. Again, we disagree. 

It is difficult to construe the judge’s passing comment that 

Pennington is a poor historian of her past as a factual finding. 

Even if it were, “we defer to a district court’s determination of 

witness credibility, which can virtually never be clear error.” 

Pulley, 601 F.3d at 664, citing United States v. Acosta, 534 F.3d 

574, 584 (7th Cir. 2008); see generally Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985). We need not repeat Pennington’s various inconsistencies and memory lapses that supported the judge’s comment. The judge’s comment was not 

clearly erroneous.

The closest question in this appeal stems from a factual 

mistake in the court’s sentencing explanation. The judge said 

that Pennington had been involved in selling drugs for two 

years beginning in 2014 rather than only in the autumns of 

2015 and 2016. Such factual errors in a judge’s explanation of 

a sentence can easily require a remand for re-sentencing based 

on accurate information if there are indications that the inaccurate information mattered in the sentencing decision. E.g., 

United States v. Miller, 900 F.3d 509, 513–14 (2018) (finding 

plain error and remanding where district judge stated wrong 

number of defendant’s prior felony convictions, both orally 

and in written explanation); United States v. Corona-Gonzalez, 

628 F.3d 336, 342–43 (7th Cir. 2010) (finding plain error and 

remanding where presentence report said erroneously that 
10 No. 18-1375 

defendant had previously been deported and had returned to 

United States to distribute methamphetamine, and court emphasized those points in explaining sentence); Welch, 738 F.2d 

at 865–66 (affirming writ of habeas corpus where sentencing 

judge incorrectly thought defendant had prior conviction for 

armed robbery instead of robbery). 

In this case, however, we are satisfied that this error was 

corrected in the court’s written explanation of reasons, indicating that the difference between the accurate and inaccurate 

information did not actually affect the sentence. When oral 

and written pronouncements of a sentence conflict, the oral 

controls so long as it was unambiguous. United States v. 

Daddino, 5 F.3d 262, 266 (7th Cir. 1993), quoting United States 

v. Makres, 851 F.2d 1016, 1019 (7th Cir. 1988).2

While that is the rule for a pronouncement of a sentence 

itself, we have not applied the same strict rule to a judge’s explanation of a sentence. In fact, we have held the opposite. 

United States v. Pankow, 884 F.3d 785, 791 (7th Cir. 2018) (“In 

addition to the court’s remarks at sentencing, we also look to 

the written statement of reasons to evaluate the sufficiency of 

the sentencing rationale.”), citing United States v. Blackman, 

830 F.3d 721, 728 (7th Cir. 2016) (collecting cases). The judge’s 

written explanation corrected his oral misstatement of the 

facts without changing the sentence itself. That correction distinguishes this case from United States v. Miller, where we remanded a sentence where the judge had misstated the 

 2 The court’s oral statement about the duration of Pennington’s drugdealing was inaccurate, not ambiguous. But whether the court relied on 

the inaccuracy requires close attention. We may consider the written explanation without violating this rule. 
No. 18-1375 11

defendant’s criminal history a total of four times, including 

both oral and written explanations. 900 F.3d at 513–15. We 

conclude from the written correction that, in the end, whether 

Pennington sold Ecstasy for one year or two years did not affect her sentence. More material was that she engaged in more 

drug dealing than Dotson—a fact that is true regardless of the 

court’s initial oral misstatement. 

Pennington’s sentence is 

AFFIRMED.