United States of America v. LORENZO TAYLOR and JEROME G. HUGHES

*After examining the briefs and the records, we have concluded that oral argument is
unnecessary. Thus, the appeals are submitted on the briefs and the records. See FED. R. A PP.
P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 4, 2008 *
Decided December 9, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
WILLIAM J. BAUER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
Nos. 07‐3636 & 07‐3752
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
LORENZO TAYLOR and
JEROME G. HUGHES,
Defendants‐Appellants.
Appeals from the United States District
Court for the Western District of
Wisconsin.
No. 07‐CR‐33‐S
John C. Shabaz,
Judge.
O R D E R
Lorenzo Taylor pleaded guilty to conspiring to distribute crack cocaine. See 21
U.S.C. §§ 846, 841(a)(1). Jerome Hughes, his codefendant, pleaded guilty to distributing
crack. See id. § 841(a)(1). Taylor was sentenced to 204 months’ imprisonment, and Hughes,
to life.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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Nos. 07‐3636 & 07‐3752 Page 2
Taylor sold crack for Hughes and distributed between 150 and 500 grams. At
sentencing, months before the Supreme Court decided Kimbrough v. United States, 128 S. Ct.
558 (2007), the district court calculated a total offense level of 31 and a criminal history
category of VI, yielding an advisory imprisonment range of 188 to 235 months. Taylor
requested a below‐range sentence on the ground that the 100:1 crack‐to‐powder ration then
incorporated into U.S.S.G. § 2D1.1 was unwarranted, and he specifically noted that the
Supreme Court would soon hear oral argument in Kimbrough. The district court responded
that the guidelines ratio was “constitutional” and so there was “no reason not to follow the
law.” Taylor’s argument preserved the Kimbrough claim, and since the district court did not
recognize its discretion to disregard the crack‐to‐powder ratio in the guidelines, Taylor
must be resentenced. See United States v. Clanton, 538 F.3d 652, 659 (7th Cir. 2008); United
States v. Romero, 528 F.3d 980, 981 (7th Cir. 2008); United States v. Bush, 523 F.3d 727, 730 (7th
Cir. 2008). On remand the district court will be free to entertain, in addition to Taylor’s
Kimbrough argument, any other basis for a below‐range sentence.
Hughes, with 35 criminal history points, qualified as a career offender under the
guidelines. For a career offender the sentencing court makes two independent calculations.
See Clanton, 538 F.3d at 660. First, the court must determine the offense level under U.S.S.G.
§ 4B1.1, the career‐offender guideline. Hughes already had a prior felony drug conviction
and faced a maximum sentence of life, see 21 U.S.C. § 841(b)(1)(B)(viii), and thus the parties
agree that his offense level as a career offender was 37. See U.S.S.G. § 4B1.1(b)(A); United
States v. Harris, 536 F.3d 798, 806 (7th Cir. 2008). Second, the sentencing court must calculate
the offense level using Chapters Two and Three. See Clanton, 538 F.3d at 660. Hughes
distributed between 1.5 and 4.5 kilograms of crack, which, under the pertinent Chapter Two
offense guideline, triggered a base offense level of 36. See U.S.S.G. § 2D1.1(c)(2) (2007). To
this the court should have added six levels, for a total offense level of 42, after assessing a
two‐level upward adjustment for obstruction of justice, see id. § 3C1.1, and a four‐level
increase for leading or organizing the criminal activity, see id. § 3B1.1(a). The district court,
after declining to give Hughes a discount for acceptance of responsibility, see id. § 3E1.1,
should have taken the higher of these offense levels – 42 – and applied it to Hughes’s
Category VI criminal history for a guideline imprisonment range of 360 months to life. See
id. § 4B1.1(b), Clanton, 538 F.3d at 660. The district court, though, apparently conflated these
separate inquires and, without comment from the prosecutor, the probation officer, or
defense counsel, misapplied the six‐level increase for obstruction and leadership to the
career‐offender offense level. See United States v. Ward, 144 F.3d 1024, 1036 (7th Cir. 1998).
That total of 43 yielded a guidelines imprisonment range of life, and citing Hughes’s
lengthy criminal history, his prior acts of violence, and the need to protect the community,
the court imposed a life sentence. The court recognized its error, however, and before
entering the written judgment the court issued a Statement of Reasons observing that it

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Nos. 07‐3636 & 07‐3752 Page 3
would have imposed the same sentence of life had it correctly calculated the range at 360
months to life.
On appeal Hughes requests a remand for resentencing based on the district court’s
mistaken calculation of his guidelines range. The government concedes that the mistake
was obvious, and though the district court observed that Hughes had accumulated more
criminal history points than anyone else the court had sentenced, the government
acknowledges that the court’s attempt to remedy its error was inadequate even under a
plain‐error standard. See United States v. Garrett, 528 F.3d 525, 529‐530 (7th Cir. 2008); United
States v. Jaimes‐Jaimes, 406 F.3d 845, 847‐49 (7th Cir. 2005). The government thus concedes
that a remand is appropriate, and we accept the concession. See, e.g., United States v. Smith,
332 F.3d 455, 460 (7th Cir. 2003).
We therefore VACATE Taylor’s and Hughes’s sentences and REMAND for
resentencing.

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