In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 05-2532, 05-2571 & 05-2853

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Cross-Appellant,

v.

AUZIO HEWLETT,

Defendant-Appellant,

Cross-Appellee,

and

ALFRED GARY,

Defendant-Appellant.

____________

Appeals from the United States District Court

for the Eastern District of Wisconsin.

No. 03-CR-23—Charles N. Clevert, Jr., Judge.

____________

ARGUED JUNE 8, 2006—DECIDED JULY 10, 2006

____________

Before EASTERBROOK, ROVNER, and EVANS, Circuit

Judges.

EVANS, Circuit Judge. Auzio Hewlett and Alfred Gary

were convicted, following a jury trial, of conspiracy to

distribute and to possess with intent to distribute 50 grams

or more of crack cocaine and 5 kilograms or more of cocaine,

in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846, and
2 Nos. 05-2532, 05-2571 & 05-2853

18 U.S.C. § 2. Hewlett was sentenced to 240 months

imprisonment and Gary received a life sentence. Both have

appealed their convictions and the government has crossappealed, claiming that Hewlett’s sentence is unreasonable—that is, unreasonably short.

Hewlett and Gary were in the drug business together

from the mid-1990s until the spring of 2003, when they

were arrested—in possession of several kilograms of cocaine

and marijuana—in Missouri on their way back to Wisconsin

from Texas.

Their drug operation was originally centered in Racine,

Wisconsin, selling crack cocaine with a man named

Deontrae Mayfield. For some time during 1996 or 1997,

Hewlett was a student at the University of WisconsinParkside, near Racine. His roommate at Parkside later

stored large quantities of cocaine, marijuana, and money for

Hewlett and Gary.

In 1997, Hewlett and Gary took Mayfield to Janesville, a

one-hour drive west from Racine. Mayfield realized that the

crack market was much better in Janesville than

Racine: the profits were higher and the streets were

safer because of the absence of gang activity. They expanded the operation to Janesville. In fact, Mayfield moved

to Janesville in 1997 to continue sales. In Janesville, the

three often used juvenile girls to conduct their business,

surmising that the girls would face less severe punishment

if caught. Rather than sharing the profits of the drug sales

with the girls, Mayfield and Hewlett would buy things for

them—clothing, food from McDonald’s. This stingy treatment of their employees apparently didn’t engender an

abundance of loyalty to the Gary/Hewlett operation as some

of the girls became government witnesses against them.

In 1999, Hewlett was arrested in Janesville when one of

the girls, April Peterson, drove—in a borrowed car—to his

motel to drop off money and pick up more crack. There were

police in the parking lot, but she nevertheless went to
Nos. 05-2532, 05-2571 & 05-2853 3

Hewlett’s room. When she left with drugs, she apparently

panicked at the presence of the police. She drove next door

to a gas station, abandoned the car, called a friend to come

and get her, and threw the drugs in a garbage can, all of

which led to the arrests of Hewlett and others. Both before

and after Hewlett’s arrest, he and Gary continued to sell

crack in Racine.

In 2003, Hewlett and Gary made two trips to Texas.

Along on the second trip were Cassandra Maiden and

Wythena Facen. On Interstate 44 south of St. Louis,

Hewlett, who was driving, made a quick lane change that

caused the SUV to veer onto the shoulder of the road. This

maneuver caught the attention of a police officer in a

marked squad car. As the squad approached their vehicle,

Hewlett instructed Facen and Maiden to say they were

traveling from Oklahoma. Facen was in the front passenger

seat, Maiden was in the backseat, and Gary was lying in the

cargo area of the SUV hiding under blankets. When the

police reached the SUV, Hewlett presented a fraudulent

Ohio driver’s license. He acknowledged that the vehicle was

a rental and, despite the fact that Gary was in the back

under blankets, said the paperwork was in the cargo area.

When the officers looked in the cargo area, they found Gary,

who also produced a fraudulent Ohio driver’s license.

Because of these and other suspicious aspects to the stop,

the officers brought in a narcotics-sniffing dog. Not surprisingly, Fido sniffed and indicated that drugs were present.

The officers cut open an old, solid-sounding spare tire and

found over three kilograms of cocaine and 17 packages of

marijuana. That was the end of the Hewlett-Gary drug

business.

In this appeal, Hewlett and Gary first argue that there

was an impermissible variance between the single conspiracy charged in the indictment and the proof at trial. They

contend that rather than one overarching conspiracy, there

are actually three smaller conspiracies: a Janesville
4 Nos. 05-2532, 05-2571 & 05-2853

conspiracy, a Racine conspiracy, and a Missouri “incident.”

We disagree, but even were we to agree, the claim would

fail.

A claim of a fatal variance is treated as an attack on the

sufficiency of the evidence. United States v. Handlin, 366

F.3d 584 (7th Cir. 2004). Even if the evidence at trial

reveals the existence of multiple conspiracies, a variance is

not fatal if a reasonable juror could have found beyond a

reasonable doubt that the defendants were part of the

single, charged conspiracy. Id. We view the evidence in the

light most favorable to the government. Id. Furthermore,

the defendants must show that the variance prejudiced

them. United States v. Messino, 382 F.3d 704 (7th Cir.

2004).

It is clear that for years Hewlett and Gary were involved together in the sale of drugs. It is of no consequence

that they sold their wares in two locations and drove drugs

though a third. Neither of the men claims—or could

claim—that he was merely a buyer in a buyer-seller

relationship with the other. Furthermore, neither could

claim that he was involved in one smaller conspiracy but

not another small conspiracy. Each was involved in this

business from beginning to end in Racine, Janesville, and,

for that matter, in Missouri. The evidence here allowed a

reasonable jury to find that Hewlett and Gary were part of

a single conspiracy.

But above all, there is no way to show that either was

prejudiced by being charged in one, rather than three

conspiracies. Neither could claim, for instance, that while

he might have sold drugs in Racine, he had nothing to do

with the Janesville operation. They were both involved

in all aspects of this business. Neither defendant could

receive a lesser sentence if he were convicted of two or three

smaller conspiracies, rather than the larger one. There

simply is no prejudice.
Nos. 05-2532, 05-2571 & 05-2853 5

Hewlett and Gary also contend that the district judge

committed reversible error in how he responded to a

question the jury asked during its deliberations. The

question was, “Can we find one defendant guilty and one

not guilty?” The judge proposed to answer the question by

saying:

Your instructions require that you consider each defendant’s innocence or guilt separately. This answer is part

of the written instructions that have been provided to

you. Also keep in mind that you must follow all of the

instructions that you have been given by the court.

Counsel for Gary objected to the word “innocence,”

pointing out that the duty of the jury is not to determine

innocence, but rather a lack of guilt. Counsel suggested that

a simple “yes” would be a sufficient answer to the question.

As if to illustrate the be-careful-what-you-wish-for

principle, the judge responded:

Yeah. It probably would be appropriate to just refer to

“guilt,” but I put “innocence” in there for your benefit,

and since you don’t want it it’s out. . . . It’s out. Enough

said. . . . It’s out.

He continued, “I will refer to guilt only.” And “You said

that’s what you wanted, that’s what you’ll get.” Later he

said, “ ‘Innocence’ is equivalent to ‘not guilty,’ but you did

not want ‘innocence.’ ”

The answer which was given to the jury was:

Your instructions require that you consider each defendant’s guilt separately. This answer is part of the

written instructions that have been provided to you.

Also keep in mind that you must follow all of the

instructions that you have been given by the court.

Very shortly, because he observed a typographical error in

the instruction, the judge asked the bailiff to retrieve that
6 Nos. 05-2532, 05-2571 & 05-2853

answer, and he listened to further argument regarding the

response. The rewritten response, which was then sent to

the jury, said:

Your instructions require that you determine whether

each defendant is guilty or not guilty. This should be

done separately.

Defendants argue that all of this could well confuse the jury

and constitutes reversible error.

We review a decision to answer a question from the jury

as well as the language used in the response for an abuse of

discretion. United States v. Young, 316 F.3d 649 (7th Cir.

2002). We examine a supplemental instruction by determining whether the instruction as a whole fairly and adequately treats the issue, whether the instruction is a correct

statement of the law, and whether the court answered the

question specifically. Id.

Was there a better way to handle this situation? The

answer is yes—which, by the way—probably was, as well,

the better answer to the jury’s question. But we do not

demand the best answer. Here, the instructions as a whole,

which the jury was referred to and which they had in the

jury room, were a correct statement of the law. The second

answer to the jury’s question was unassailable. As to the

first answer, we are not convinced, in this context, that a

reference to considering each defendant’s guilt separately is

reversible error. At the same time, for future reference,

after our preference for a simple, “yes,” we recommend the

second answer, not the first.

Defendants also raise an issue, to preserve it, based on

Almendarez-Torres v. United States, 523 U.S. 224 (1998).

We duly note that the issue has been properly raised.

We now arrive at the cross-appeal of the government, in

which the contention is that the 20-year sentence imposed

on Hewlett was unreasonable. Hewlett faced a statutory

mandatory minimum sentence of 20 years and a maximum
Nos. 05-2532, 05-2571 & 05-2853 7

of life. Applying the guidelines, his sentence would have

been life. The judge, however, concluded that the statutory

minimum was a sufficient sentence.

The government’s objection to the sentence is that the

sentence below the guideline range was unreasonable. See

United States v. Booker, 543 U.S. 220 (2005). We disagree.

First of all, the government did not recommend the

maximum—a life sentence. It cited Hewlett’s intelligence

and potential to give back to the community and recommended a sentence of 30 years. The judge agreed that there

was reason to cut Hewlett a break; he simply gave him a

larger break than the government asked for—again, be

careful what you ask for. The judge cited as reasons

Hewlett’s “redeeming qualities,” his “family history,” and

his age. Saying that the mandatory minimum term of

20 years “exacts a very substantial measure of punishment”

and “sends a chilling message to anyone interested in

dealing drugs.” It may be a close question, but we cannot

find that the sentence imposed on Hewlett was unreasonable.

Accordingly, the judgments of the district court are

AFFIRMED.

EASTERBROOK, Circuit Judge, concurring. I join the

court’s opinion and offer a few additional observations about

the cross-appeal.

The prosecutor’s brief chides the district court for departing too many levels without an explanation linked to the

structure of the Guidelines. United States v. Booker, 543

U.S. 220 (2005), rendered the departure apparatus and
8 Nos. 05-2532, 05-2571 & 05-2853

terminology archaic. See United States v. Johnson, 427 F.3d

423, 426 (7th Cir. 2005). A sentence within the Guideline

range is presumptively reasonable, but other sentences may

be reasonable too, and appellate review is deferential.

Reasonableness is a range, not a point. See United States v.

Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). The

prosecutor recommended what would have been a 9-level

downward departure in pre-Booker terminology; the district

judge could determine, without abusing his discretion, that

a further 4-level reduction was reasonable. But was it a

lawful reduction?

The United States did not file an information under 21

U.S.C. §851 specifying all of Hewlett’s prior convictions,

which would have made a life sentence mandatory. (The

prosecutor’s brief concedes that this was an oversight rather

than a deliberate choice.) Even after that gaffe the United

States could have relied on the fact that Hewlett is a career

offender—that’s why his criminal history category is VI and

the Guidelines call for life imprisonment, neither more nor

less. Life also is the statutory maximum.

Congress has directed that career offenders be sentenced

at or near the statutory maximum for a serious drug offense

or crime of violence. 28 U.S.C. §994(h). Like other rules of

law that prescribe appropriate sentences, this survives

Booker. See United States v. Woodard, 408 F.3d 396 (7th

Cir. 2005). It survives because Booker concerns who finds

facts (and under what burden of persuasion) but not what

consequences the law attaches to facts that have been

authoritatively determined. (For other illustrations of

Booker’s irrelevance to legal rules, see, e.g., United States v.

Miller, No. 05-2978 (7th Cir. June 7, 2006) (ratio of crack to

powder cocaine); United States v. Duncan, 413 F.3d 680, 683

(7th Cir. 2005) (recidivist sentences); United States v.

Rivera, 411 F.3d 864, 866-67 (7th Cir. 2005) (mandatory

minimum sentences); United States v. Lee, 399 F.3d 864,

866 (7th Cir. 2005); McReynolds v. United States, 397 F.3d
Nos. 05-2532, 05-2571 & 05-2853 9

479, 481 (7th Cir. 2005).) Hewlett’s current conviction is for

a serious drug offense, so he should have been sentenced to

life in prison or something “near” it.

A sentence of 20 years, the mandatory minimum, is not by

any stretch of the imagination “at or near” life in prison.

Yet the United States did not rely on §994(h) in the district

court or mention it here. Likewise the United States has

forfeited the benefit of United States v. Boscarino, 437 F.3d

634, 638 (7th Cir. 2006), which shows that the district judge

erred by using concern about “sentence disparity” as

justification for a below-Guideline prison term.

When the United States proposes a sentence well below

the Guideline range it is poorly situated to complain when

the district judge is slightly more lenient. Discounted to

present value, the deterrent force of a 20-year sentence

is only a little less than that of 30 years (for years 21 to

30 are so far in the future that they have little effect on

today’s behavior). The main difference between 20- and 30-

year sentences lies in the longer term’s power to protect the

public by incapacitation. Yet when recommending 30 years,

as opposed to life, the United States espoused the view that

because Hewlett is intelligent he will abandon his criminal

career. That strikes me as topsy-turvy—a high IQ makes a

person more dangerous (if only because a clever criminal is

less likely to be caught and convicted), and to date Hewlett

has employed his talents as a criminal entrepreneur and

predator. Criminal propensity falls with age, but even at 47

(which Hewlett will be after serving the district court’s

sentence, if he behaves himself in prison and receives the

15% discount) the mastermind of a criminal syndicate

remains dangerous. Leaders of organized crime often stay

at their posts well after becoming eligible for Social Security

benefits. Still, if the prosecutor is right, incapacitation is

unnecessary.

Where this 20-year sentence falls short is on general

deterrence and desert, which underlie §851 and §994(h).
10 Nos. 05-2532, 05-2571 & 05-2853

Perhaps that’s why the Solicitor General authorized this

appeal despite the prosecutor’s optimistic estimate of

Hewlett’s likely conduct following his release. But arguments based on these statutes have been forfeited.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-10-06