In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3399

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BRANDON L. SINGLETON,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 07 CR 30030—Michael J. Reagan, Judge.

ARGUED APRIL 16, 2008—DECIDED NOVEMBER 24, 2008

Before EASTERBROOK,Chief Judge, andWOOD and WILLIAMS,

Circuit Judges.

WILLIAMS, Circuit Judge. Brandon Singleton was convicted of one count of distributing five or more grams

of crack cocaine. On appeal, he contends that the district

court erred by holding him responsible for uncharged

conduct that was not sufficiently related to the conduct

for which he was convicted. Singleton also argues that

resentencing is appropriate because of the Supreme
2 No. 07-3399

Court’s decision in Kimbrough v. United States, 128 S. Ct.

558, 169 L.Ed.2d 481 (2007), where the court held that a

district court judge can take the crack/cocaine powder

disparity into consideration in deciding whether to

impose a below-guidelines sentence. We reject Singleton’s

argument that the uncharged conduct was not sufficiently related to his charged offenses, but because we

cannot determine whether the district court would have

taken the crack/cocaine powder disparity into account

at sentencing had it not been constrained by our

pre-Kimbrough precedents, we reverse and remand this

case for Singleton to be resentenced.

I. BACKGROUND

On September 1, 2006, a confidential informant cooperating with law enforcement made a controlled buy of a

quarter ounce of crack cocaine from Singleton. The incident

occurred behind a housing duplex in Alton, Illinois, and

was videotaped. The drugs that the confidential source

purchased were analyzed and found to contain

6.6 grams of cocaine base.

On February 23, 2007, Singleton was charged with one

count of distributing five grams or more of crack cocaine

in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). On

May 21, 2007, Singleton pled guilty to the charge

without the benefit of a plea agreement. Prior to sentencing, the Probation Office filed a presentence report

(“PSR”) that detailed Singleton’s relevant conduct. In the

PSR, the probation officer explained that in 2000, Singleton

started selling crack to Donald McCrady, a childhood
No. 07-3399 3

friend. Initially, Singleton and McCrady started selling

crack cocaine together when they were in their teens, but

McCrady was caught and sent to state prison at age

eighteen. When McCrady was released in October of

2000, he purchased approximately one to two ounces of

crack cocaine per week from Singleton. These purchases

took place over the next five weeks until he was caught

and went to prison again. For the next six years, whenever McCrady was not in prison, he purchased one to

two ounces per week of crack cocaine from Singleton.

The original presentence report added all of Singleton’s

drug sales to McCrady using the two ounce per week

amount in order to calculate relevant conduct. However,

the probation officer did not take McCrady’s prison

terms into account as times when he would not have

been able to purchase drugs from Singleton. Therefore,

the probation officer calculated that 12,247 grams of

crack cocaine could be attributed to Singleton as

relevant conduct for the purpose of sentencing.

Singleton filed a formal objection to the PSR, stating

that McCrady was in prison during seventeen to

eighteen months of the relevant time period and that the

total amount of crack attributed to Singleton should be

lowered accordingly. He further argued that McCrady

was not a reliable witness and therefore the government could not meet its burden of proving relevant

conduct. In response, the probation officer subtracted

eighteen months of drug sales out of the total amount and

concluded that 8,164 grams of crack cocaine were still

attributable to Singleton. There was no resulting effect
4 No. 07-3399

on the guideline calculation because any drug sales

over 1,500 grams results in an offense level of 38.

At the sentencing hearing, McCrady testified that he

purchased one to two ounces of crack cocaine from Singleton every week that he was not in prison from 2000

through 2006. Defense counsel cross-examined McCrady

about his criminal history, his drug and alcohol abuse, his

dyslexia, and his prison time. Singleton argued that

McCrady was not reliable or credible and that he

should only be sentenced for the 6.6 grams that he pled

guilty to distributing.

The government contended that the arguments

presented by the defense at the sentencing hearing were

materially different from the proffer that Singleton

signed, in that Singleton himself had admitted to significantly higher numbers of drug sales, so the government

sought permission to enter Singleton’s proffer into evidence.

The judge agreed that it was inconsistent for Singleton

to argue that he was only responsible for distributing

6.6 grams of crack when he indicated in the proffer that

he was responsible for distributing a significantly greater

amount. The court admitted the proffer into evidence.

Based on Singleton’s own statements in the proffer,

the government argued that he was responsible for distributing at least 3,326 grams of crack during the relevant

time period (2000-2006). The court concluded that Singleton’s drug sales to McCrady constituted relevant

conduct and that McCrady’s testimony was credible.
No. 07-3399 5

The court then summarized the calculations of Singleton’s drug transactions and settled on a relevant conduct

total of 5,124 grams, resulting in an offense level of 38

which carries an advisory guidelines range of 210-262

months. Singleton was sentenced at the low end of

the guidelines, 210 months, and he appeals.

II. ANALYSIS

A. The district court did not err in its relevant conduct

calculation.

We review the district court’s drug quantity findings

at sentencing for clear error. United States v. Smith, 308

F.3d 726, 745 (7th Cir. 2002). We will not overturn the

factual findings of the district court unless we are ”left

with the definite and firm conviction that a mistake

has been made” by the district court. United States v.

Bennett, 461 F.3d 910, 912 (7th Cir. 2006).

1. Relevant conduct and credibility determinations

The United States Sentencing Guidelines (“U.S.S.G.”)

§ 1B1.3 provides that relevant conduct includes all

acts and omissions committed by the defendant, that were

part of the same course of conduct or common scheme

or plan as the offense of conviction. Here, the government argues that Singleton’s sales to McCrady constitute

a pattern of continuous drug trafficking that is part of

the same course of conduct as the charged offense. Single-
6 No. 07-3399

ton maintains, however, that the government introduced

no evidence linking the September 1, 2006 sale to the

confidential informant (for which he was charged) to

the McCrady sales. He argues that the government,

therefore, failed to show a connection that would justify

holding Singleton responsible for this uncharged conduct.

See United States v. Ruiz, 178 F.3d 877, 882 (7th Cir. 1999)

(finding that the charged offenses did not amount to

relevant conduct because the participants were different and there was a two-year gap in the activity).

The government can prove relevant conduct by showing

that offenses are part of the same course of conduct if

they are “part of a single episode, spree or ongoing series

of offenses.” United States v. Ortiz, 431 F.3d 1035, 1040

(7th Cir. 2005). In assessing whether offenses are part of

the same course of conduct, the court looks at whether

there is a strong relationship between the uncharged

conduct and the convicted offense, a relationship that

the government can demonstrate by showing “a

significant similarity, regularity, and temporal proximity.” Id. (internal citations omitted).

Here, there is sufficient evidence that Singleton

regularly engaged in drug sales. We define regularity as

“repeated acts or events that take place at fixed and

certain intervals or in accordance with the same consistent or periodical rule or practice.” United States v. Sykes,

7 F.3d 1331, 1337 (7th Cir. 1993) (internal quotation marks

omitted). McCrady testified that he purchased crack

cocaine from Singleton over different time periods from

February 2000 until July 2006 (or May 2006 according to
No. 07-3399 7

Singleton), and the offense for which Singleton was

charged took place two to four months after his last

documented sale to McCrady. See United States v. Zehm,

217 F.3d 506, 512 (7th Cir. 2000) (stating that “[drug]

purchases predating convicted sales may be considered

relevant conduct”).

Although there is a gap between Singleton’s last sale

to McCrady and his sale to the confidential informant,

this does not mean, as a matter of law, that temporal

proximity is missing. Cf. Oritz, 431 F.3d at 1041 (finding

no temporal proximity where there was, at a minimum,

a ten-month gap between the drug transactions); see

also United States v. Mullins, 971 F.2d 1138, 1144 (4th Cir.

1992) (temporal proximity “extremely weak” where

uncharged conduct occurred six months prior to offense

of conviction); United States v. Hahn, 960 F.2d 903, 911

(9th Cir. 1992) (evidence of specific similarity and regularity important where period of five months separated

drug transactions). The record indicates that the gap

between the two sales is not because the parties were

discontinuing their routine of regular drug sales, but

rather because McCrady was indicted in May 2006 and

imprisoned in July 2006. Although it is not clear when

Singleton engaged in his last drug transaction with

McCrady (either May or July 2006), McCrady’s imprisonment put an end to the pattern of drug dealing between

the parties and makes the two to four month gap between

the charged and uncharged conduct less problematic. See

United States v. Cedano-Rojas, 999 F.2d 1175, 1180 (7th Cir.

1993) (finding that “[a] respite is unlikely to be fatal in the

finding of a course of conduct if the interruption was not
8 No. 07-3399

the choice of the players. In such circumstances, the

lapse does not indicate that the course was abandoned

but only that, in spite of the efforts of the participants,

the venture was inadvertently put on hold.”).

Moreover, there is sufficient similarity between the

charged and uncharged offenses to shore up any weaknesses in the government’s case regarding temporal

proximity. Despite the fact that the charged and uncharged

offenses involved different participants and different

amounts, the uncharged conduct involved the same

principal, the same location, and the same drug—facts

that render it similar enough to the offense of conviction

to show that Singleton was engaging in an ongoing

pattern of conduct. See United States v. White, 519 F.3d

342, 348 (7th Cir. 2008) (upholding relevant conduct

finding where the common denominators in the transactions are the defendant and “his unbroken series of sales

to lower level drug sellers in Decatur”); see also United

States v. Wilson, 502 F.3d 718, 724 (7th Cir. 2007) (upholding relevant conduct finding on the grounds that

the defendant regularly dealt in large quantities of

cocaine during this period, even though he obtained the

cocaine from different sources); United States v. Morris,

76 F.3d 171, 175 (7th Cir. 1996) (finding similarity even

though the parties involved in the transactions were not

identified because all of the other relevant factors—

location, the defendant’s involvement, drug pricing, etc.—

were the same); United States v. Gooden, 892 F.2d

725, 729 (8th Cir. 1989) (finding that the defendant

took part in “drug transactions of a similar character,

conducted in the same geographical area within [six to
No. 07-3399 9

eight] months of the offense of conviction . . .

demonstrat[ing] a pattern of continuous drug activity”).

Singleton was a supplier of crack cocaine and had

engaged in consistent crack sales over a period of six

years in Alton, Illinois, and the uncharged offenses were

part of an ongoing series of offenses that justified their

inclusion in the related conduct drug calculation.

Singleton also argues that the district court failed to

make the required factual findings for determining relevant conduct and that this amounted to clear, reversible

error. Singleton maintains that although the district

court claimed that it was adopting the findings of the

PSR, the PSR never adequately discussed whether the

sales to McCrady were part of the same course of

conduct as the charged offenses. When “a district court

aggregates drug quantities arising from charged or uncharged relevant conduct, the court should explicitly

state and support, either at the sentencing hearing or

preferably in a written statement of its reasons, its

finding that the unconvicted activities bore the necessary relation to the convicted offense.” United States v.

Sumner, 265 F.3d 532, 539 (7th Cir. 2001).

Here, the district court did not independently consider

the factors of temporal proximity, similarity, regularity, or

common plan/scheme, but the district court’s consideration of McCrady’s testimony and the PSR are sufficient to show that it made the relevant factual findings.

The district court determined that McCrady was credible,

then detailed the history of drug sales between McCrady

and Singleton, and finally, summarized the amounts (one

to two ounces per week) that Singleton sold to McCrady
10 No. 07-3399

from 2000 to 2006 and concluded that Singleton was

responsible for 5,124 grams of crack cocaine. See United

States v. Williams, 272 F.3d 845, 852 (7th Cir. 2001) (“Where

it is clear that the district judge believed the required

relationship to be present and the judge’s implicit

finding is supported by the record, we have been

reluctant to remand simply because the judge failed to

invoke the ‘magic words’ of section 1B1.3(a)(2).”).

Singleton argues that the district court erred by relying

on McCrady’s testimony in determining relevant conduct

because McCrady is a convicted felon and he has also

engaged in drinking and marijuana use. We are “reluctant

to disturb credibility determinations absent a compelling reason.” United States v. Noble, 246 F.3d 946, 951

(7th Cir. 2001). Here, no compelling reason exists. While

McCrady’s felon status is one factor that the district

court can consider in weighing the evidence, it is also

within the district court’s discretion to give some weight

to his testimony, notwithstanding his status. United

States v. Johnson, 489 F.3d 794, 797 (7th Cir. 2007) (the

district court can credit testimony that is “totally uncorroborated and comes from an admitted liar, convicted felon,

large scale drug-dealing, paid government informant”)

(internal citation omitted). Here, the district court acknowledged that McCrady was a career felon, but noted that

his testimony was unrebutted, he testified convincingly,

and he did not appear to be coy or deceptive. See

Cedano-Rojas, 999 F.2d at 1180. (“So long as the information which the sentencing judge considers has sufficient indicia of reliability to support its probable accuracy, the information may properly be taken into
No. 07-3399 11

account in passing sentence.”). Furthermore, McCrady

and Singleton grew up together, sold crack together on

occasion, and had a buyer-seller relationship that spanned

a six-year period. We find that the district court did not

clearly err by finding McCrady to be a credible witness.

2. Use of Singleton’s proffer was proper.

After oral argument in this case, we decided United

States v. Farmer, 543 F.3d 363, 374 (7th Cir. 2008), which

found that the government violated the terms of a defendant’s proffer agreement by improperly using information given by the defendant in his proffer against him.

Here, the district court admitted Singleton’s proffer

because it found he took a position at sentencing inconsistent with his proffer statements. The sixth paragraph

of the proffer agreement bars the government from using

any incriminating information provided by Singleton, but

allows use of the proffer if Singleton made materially

inconsistent statements. The proffer agreement included

the following clause:

Sixth, pursuant to Section 1B1.8 of the Sentencing

Guidelines, no self-incriminating information given

by your client will be used to enhance the Offense

Level against your client except as provided in that

Section. The government, may, however, use any

statements made or other information provided by

your client to rebut evidence or arguments at sentencing materially different from any statements

made or other information provided by your client

during the “off-the-record” proffer or discussion.
12 No. 07-3399

Singleton maintains the district court clearly erred by

using the proffer to determine the relevant conduct for

sentencing purposes, which he claims violates the terms

of the proffer agreement. Singleton contends that he

never admitted in his proffer that his prior drug transactions were relevant to the charged offense conduct. The

government argues it offered the proffer only to show

Singleton’s position taken at sentencing—that he only

was responsible for the 6.6 grams of crack cocaine he

was charged with—was inconsistent with his proffered

statement that he sold more than six grams of crack

cocaine in the past.

Farmer cautions against the use of proffers for sentencing purposes. Id. However, Farmer is distinguishable

from this case in that the defendant’s proffer in Farmer

was the sole evidence of the amount of cocaine used

to increase his offense level. Id. Here, the district court

relied on McCrady’s testimony and the PSR to determine

the amount of crack cocaine attributable to Singleton.

The PSR here, unlike the PSR in Farmer, was not based

on Singleton’s proffer. We need not remand because

the district court based the drug quantity determination

on McCrady’s testimony and not any information given

by Singleton in his proffer.

Therefore, we find that the district court did not err

by including Singleton’s drug sales to McCrady in the

relevant conduct calculation. We further conclude that

admitting Singleton’s proffer was not a reversible error

because the court based Singleton’s sentence on McCrady’s

testimony.
No. 07-3399 13

B. A limited remand is appropriate in light of

Kimbrough.

Singleton was sentenced prior to the Supreme Court’s

decision in Kimbrough, which allows a district court

judge to take the crack/cocaine powder disparity into

consideration in deciding whether to impose a belowguidelines sentence. Singleton did not argue in the proceedings below that applying the 100:1 ratio would yield

an unreasonable sentence, and we cannot determine

whether the district court would have taken the ratio

into account had it not been constrained by our

pre-Kimbrough precedents. See United States v. Taylor,

520 F.3d 746, 748-49 (7th Cir. 2008). Accordingly, we issue

a limited remand to allow the district court to inform us

whether it wishes to resentence Singleton in light of

Kimbrough. See id.

III. CONCLUSION

We issue a LIMITED REMAND for proceedings consistent with our opinion in Taylor, 520 F.3d at 748-49.

11-24-08