United States of America v. Sylvester Purham

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3424
U NITED STATES OF A MERICA ,
Plaintiff-Appellee,
v.
SYLVESTER P URHAM,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 3:12-cr-30019 — Sue E. Myerscough, Judge.
____________________
SUBMITTED J UNE 2, 2015 — D ECIDED A UGUST 5, 2015
____________________
Before KANNE , R OVNER , Circuit Judges and D OW , District
Judge.

 After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and
record. See Fed. R. App. P. 34(a)(2)(C).
 Of the Northern District of Illinois, sitting by designation.

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2 No. 14-3424
KANNE , Circuit Judge. Sylvester Purham appeals his sen-
tence for conspiracy to distribute 280 grams or more of crack
cocaine. He raises three challenges to his sentence. First, he
argues that the district court exceeded the scope of our re-
mand order when it recalculated his base offense level. Sec-
ond, he argues that his prison sentence of 324 months is un-
reasonable. And third, he argues that the district court erred
in imposing two special conditions of supervised release: (1)
prohibiting him from associating with any member of any
street gang and wearing or carrying on his person any sign,
symbol, or paraphernalia associated with gang activity; and
(2) requiring him to perform 20 hours of community service
per week at the direction of the Probation Office if he is un-
employed for a period of 60 days.
I. BACKGROUND
On June 4, 2012, Purham pled guilty to conspiracy to dis-
tribute 280 grams or more of crack cocaine. 21 U.S.C. §§ 841,
846. During the plea hearing, Purham agreed that “the
weight of the drug involved in the conspiracy was 280 grams
or more.” He further agreed that he faced a 20-year manda-
tory minimum sentence. After the hearing, Purham devel-
oped second thoughts. He says he learned—for the first
time—that he could not argue a different drug-quantity
amount at sentencing. He discussed this inability to chal-
lenge the drug amount with his attorney and the probation
officer. He then sent multiple letters to the district court at-
tempting to withdraw his guilty plea. The district court held
a hearing, and then denied Purham’s request.
The court sentenced Purham to imprisonment for 360
months, supervised release for 10 years, and a $100 special
assessment. Purham appealed that sentence. We affirmed in

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No. 14-3424 3
part and reversed in part. See generally United States v.
Purham, 754 F.3d 411 (7th Cir. 2014) (reversing the district
court’s imposition of a sentencing enhancement and re-
manded for resentencing). Specifically, we held that the dis-
trict court clearly erred in counting Purham’s 2008 drug
transactions as “relevant conduct” under
U.S.S.G. § 1B1.3(a)(2). Purham, 754 F.3d at 414-16 (“The 2008
conduct was not part of the same course of conduct as the
2010 drug conspiracy to which Purham pled guilty. … Nei-
ther was the 2008 conduct part of a ‘common scheme or plan’
that included the convicted offenses.”). Because we were
unwilling to completely shut the door on this enhancement,
we issued guidance for resentencing “[T]he government may
well have the necessary evidence at its disposal to establish a
link between Purham’s 2008 drug transportation and the lat-
er distribution activity. The government is free to present
this evidence at resentencing, if it does in fact possess it.” Id.
at 415.
The government declined our invitation. So consistently
with our decision, the district court did not count Purham’s
2008 drug activity as relevant conduct under § 1B1.3(a)(2). In
recalculating the period of incarceration, the court started
with a base offense level of 32 for at least 280 grams but less
than 840 grams of crack cocaine. The court then added some
levels and subtracted some levels. It added: two levels be-
cause Purham had a coconspirator purchase a firearm for
him, § 2D1.1(b)(1); two levels because members of the con-
spiracy made threats against two cooperating witness-
es, § 2D.2(b)(2); two levels because he employed multiple
residences for the sole purpose of distributing crack co-
caine, § 2D1.1(b)(12); and four levels because Purham acted
as the manager of the conspiracy, § 3B1.1(a). It then subtract-

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4 No. 14-3424
ed two levels due to the “Drugs Minus Two” amendment,1
which lowered his base offense level for 280 grams of crack
cocaine. Purham’s criminal history score of 15 points placed
him in Category VI. Based on his total offense level of 42,
Purham’s guidelines range was set at 360 months to life in
prison.
The district court then noted the sentencing disparity be-
tween crack cocaine and powder cocaine. This disparity, the
court observed, “fosters disrespect for and mistrust in the
criminal system because of its disproportionate impact on
African-American defendants.” (Sent. Tr. 29.) Trying to rem-
edy this problem, while at the same time accounting for the
seriousness of the offense, the district court sentenced
Purham to imprisonment for 324 months (a 36-month dis-
count from his previous sentence), supervised release for 120
months, and a $100 special assessment.
The district court also imposed special conditions of su-
pervised release, two of which Purham challenges on appeal.
One condition concerns gang association and the other con-
dition concerns community service. Regarding gang associa-
tion, the district court ordered Purham to “not associate with
any member of any street gang.” The court’s order contin-
ued: “You shall not wear or carry on your person colors or
any sign, symbol, or paraphernalia associated with gang ac-
tivity. Only gang tattoos received prior to incarceration are
not considered a violation of this condition.” The govern-
ment quickly sought clarification:
[Government]: Your Honor said he should not pos-
sess or wear any gang colors. You don’t mean obvi-
1 The formal name for this amendment is Amendment 782.

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No. 14-3424 5
ously that he can’t wear red if that’s associated; they
have to be intended to be a gang color as opposed
to just that color?
The Court: Yes.
[Government]: Just to make the record clear on
that.
The Court: Yes. Any questions?
[Defense Attorney]: No, Your Honor.
(Sent. Tr. 40.)
Regarding community service, the district court ordered:
“If you’re unemployed after the first 60 days of supervision,
or if unemployed for 60 days after termination or layoff from
employment, you shall perform at least 20 hours of commu-
nity service work per week at the direction of Probation until
gainfully employed.” (Sent. Tr. 37.) On October 31, 2014, the
same day of the resentencing, Purham filed a notice of ap-
peal.
II. A NALYSIS
We review a district court’s determination of the scope of
remand de novo. United States v. Husband, 312 F.3d 247, 251
(7th Cir. 2002). The reasonableness of a sentence is reviewed
for an abuse of discretion. United States v. Turner, 569 F.3d
637, 640 (7th Cir. 2009). Factual findings are reviewed for
clear error. United States v. Walsh, 723 F.3d 802, 807 (7th Cir.
2013).
Our analysis begins with whether the district court acted
within the scope of our remand order.

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6 No. 14-3424
A. The Remand Order
According to Purham, the district court “ignore[d]” the
“limited nature” of our remand order when it made a fresh,
drug-quantity determination at resentencing. (Appellant’s
Br. 22-23.) The district court did no such thing. After ruling
that it would not consider as relevant conduct the 1.8 kilo-
grams of crack cocaine that it erroneously considered at the
original sentencing, the district needed to recalculate the
drug-quantity amount to determine Purham’s base offense
level under § 2D1.1(c). It chose the obvious number—280
grams—which is the amount Purham pled guilty to conspir-
ing to distribute.2 “If this Court remands to correct a dis-
crete, particular error that can be corrected … without … a
redetermination of other issues, the district court is limited to
correcting that error.” United States v. Barnes, 660 F.3d 1000,
1006 (7th Cir. 2011) (emphasis added) (internal quotations
and citations omitted). Because exclusion of the 1.8 kilo-
grams of crack cocaine as relevant conduct compelled a fresh
look at Purham’s drug-quantity amount, the district court
could not resentence Purham without a redetermination of
this other, critical issue. It follows that the district court did
not exceed our remand order. Purham’s arguments to the
contrary are without merit.
2 In agreeing that he conspired to distribute 280 grams or more of crack
cocaine, Purham relieved the government of its burden of proof at sen-
tencing. Cf. United States v. Redmond, 667 F.3d 863, 875 (7th Cir. 2012)
(“The government must prove the quantity of drugs for sentencing pur-
poses by a preponderance of the evidence.”).

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No. 14-3424 7
B. The Reasonableness of the Sentence
Purham next challenges the reasonableness of his sen-
tence. He finds fault in the district court’s calculation of the
base offense level and in its application of the sentencing fac-
tors found in 18 U.S.C. § 3553(a). He also characterizes a
prison term of 324 months as greater than necessary to meet
the goals of § 3553(a). We disagree.
A below-guidelines sentence is “presumptively reasona-
ble against an attack by a defendant claiming that the sen-
tence is too high.” United States v. Liddell, 543 F.3d 877, 885
(7th Cir. 2008). Indeed, “[i]t is hard to conceive of below-
range sentences that would be unreasonably high.” United
States v. George, 403 F.3d 470, 473 (7th Cir. 2005).
After calculating a guidelines range of 360 months to life,
the district court granted a downward variance to remedy
the crack/powder disparity in the guidelines. After account-
ing for the mandatory minimum sentence and the serious-
ness of the offense, the district court then sentenced Purham
to 324 months—still well below the initial guidelines range
of 360 months to life. Purham advances no basis to rebut the
presumption that this below-range sentence is reasonable.
We already disposed of Purham’s argument regarding
the power of the court to recalculate his drug-quantity
amount. Purham cannot seriously question that he conspired
to distribute 280 grams; he pled guilty to that amount. As for
his claim that the district court misapplied the § 3553(a) fac-
tors, the record belies it:
Mr. Purham, your PSR indicates you’ve made self-
destructive choices from an early age. Not only
have you been convicted of other drug trafficking

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8 No. 14-3424
offenses in the past, you orchestrated the drug traf-
ficking conspiracy for which you’re being sen-
tenced today while you were imprisoned by the
State of Illinois.
You’ve threatened witnesses against you with vio-
lence and the conduct is unacceptable and you
must be punished for it.
What is more, dealing drugs is illegal and carries
with it the overhanging threat of violence and so-
cial decay. That threat is evident by the way you’ve
conducted yourself. Your long history of drug of-
fenses shows that you’ve made a habit of disre-
garding the law. And justice requires that your sen-
tence reflect those social ills and serve as a deter-
rent to others.
(Sent. Tr. 27.)
Following its discussion of the crack/powder disparity,
the district court noted Purham’s redeeming qualities.
“[Y]ou have performed well in Bureau of Prisons. You’ve
gone to the Challenge Program, the GED course work, par-
enting class. You’ve held positions in the food service and
you’ve had no disciplinary infractions.” (Sent. Tr. 29.)
The district court’s thoughtful and thorough explanation
of its sentence is tailored to Purham and is wholly consistent
with the § 3553(a) factors. The sentence is anything but un-
reasonable.
C. The Conditions of Supervised Release
We now turn to Purham’s final issue on appeal—whether
the district court erred in imposing the gang-association and
community-service conditions of supervised release. The
government argues that Purham waived any challenge to

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No. 14-3424 9
these conditions by not objecting to them in his first appeal.
We disagree. After his first appeal, we decided United States
v. Thompson, 777 F.3d 368 (7th Cir. 2015). That case vacated a
number of conditions of supervised release after finding
them to be fatally vague. Id. Two such conditions are present
in substantially similar form here. We will not apply waiver
under these circumstances. Cf. United States v. Adkins, 743
F.3d 176, 193 (7th Cir. 2014) (“[D]espite a waiver of appellate
review, the Due Process Clause permits review when a spe-
cial condition is so vague that no reasonable person could
know what conduct is permitted and what is prohibited.”).
Further, immediately after the district court imposed its
sentence on remand, Purham stated, “I would like to ap-
peal.” (Sent. Tr. 39.) Although Purham did not object to a spe-
cific condition of supervised release at the time of sentencing,
we construe this statement as a general objection to his entire
sentence, which includes the court’s conditions of supervised
release. Accordingly, we review the court’s conditions for an
abuse of discretion. United States v. Baker, 755 F.3d 515, 523
(7th Cir. 2014) (citing United States v. Neal, 662 F.3d 936, 938
(7th Cir. 2011)).
Purham argues that the gang-association and communi-
ty-service conditions must be vacated because the district
court did not explain how the conditions comport with the
sentencing factors listed in § 3553(a). He also argues that the
conditions are vague and overbroad, and therefore must be
vacated. In advancing these arguments, Purham relies al-
most exclusively on United States v. Siegel, 753 F.3d 705 (7th
Cir. 2014) and Thompson, supra. Before addressing the sub-
stance of these conditions, we highlight the district court’s

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10 No. 14-3424
reasoning in issuing them. Its approach in this regard pro-
vides a model for other courts to follow.
Regarding the challenged community-service condition,
we believe the district court linked the disputed requirement
to a job-training requirement. We therefore read the condi-
tions—and the reasons supporting them—in tandem.
You shall participate in a program of job training or
employment counseling as directed by Probation.
I’m imposing that because of the sparse history of
legal employment. The employment record and the
felony conviction you’ll have when you’re released,
in addition to past felony convictions, are [going to]
make it difficult for you to secure employment
when you complete your term. So I believe job
training and employment counseling will help you
find a job.
If you’re unemployed after the first 60 days of su-
pervision, or if unemployed for 60 days after ter-
mination or layoff from employment, you shall per-
form at least 20 hours of community service work
per week at the direction of Probation until gainful-
ly employed. Again, I’m once again imposing this
because I hope it will help you obtain gainful em-
ployment. And it will give you some work skills
and help you make contacts with the community to
find a job.
(Sent. Tr. 36-37.)
These reasons are consistent with the sentencing factors
of § 3553(a), including providing Purham with educational
or vocational training and addressing his history and charac-
teristics. 18 U.S.C. § 3553(a)(1), (a)(2)(D). The law does not
require a district court to apply the § 3553(a) factors in

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No. 14-3424 11
checklist form. United States v. Jones, 774 F.3d 399, 404 (7th
Cir. 2014). Further, in United States v. Bryant, 754 F.3d 443,
444-45 (7th Cir. 2014), we clarified our holding in Siegel. We
stated that “a district judge is required to give a reason, con-
sistent with the sentencing factors in section 3553(a), for eve-
ry discretionary part of the sentence[,]” including special
conditions of supervised release. Bryant, 754 F.3d at 444-45
(emphasis added). “[A] reason,” we emphasize, is not a
laundry list. And “consistent with” does not require mathe-
matical precision. The district court met its statutory re-
quirement under § 3553(a).
The district court’s explanation for its condition regard-
ing gang association also passes muster:
You shall not associate with any member of any
street gang. You shall not wear or carry on your
person colors or any sign, symbol, or paraphernalia
associated with gang activity. Only gang tattoos re-
ceived prior to incarceration are not considered a
violation of this condition.
And I’m imposing that because you were a member
of the Black P Stone street gang. Cutting ties with
the group would be a major step toward marking
yourself a law-abiding member of society when
you’re released.
(Sent. Tr. 38.)
As before, these reasons are consistent with the sentenc-
ing factors of § 3553(a). The district court addressed the his-
tory and characteristics of Purham. 18 U.S.C. § 3553(a)(1). In
denying him the ability to associate with members of street
gangs, the district court promoted respect for the rule of law.
Id. at § 3553(a)(2)(A). The district court also sought to deter

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12 No. 14-3424
Purham from committing future crimes, thereby protecting
the public from further crimes. Id. at § 3553(a)(2)(B)-(C). We
commend the district court for its deliberate approach to is-
suing conditions of supervised release.
Nevertheless, we must vacate the conditions under
Thompson.3 Regarding the community-service condition, the
district court in Thompson imposed the same condition. 777
F.3d at 381. We vacated it for a couple of reasons. First, the
district court set “no limit on the amount of community ser-
vice that the defendant could be ordered to do.” Id. And sec-
ond, the district court did not mention the application note
to U.S.S.G. § 5F1.3, which proscribes community service in
excess of 400 hours. Because these deficiencies are also pre-
sent here, our case law demands the condition be vacated.
The same is true for the gang-association condition. In
Thompson, the district court forbade the defendant from “as-
sociat[ing] with any person convicted of a felony, unless
granted permission to do so by the probation officer.”
Thompson, 777 F.3d at 377. We found the condition “fatally
vague,” noting that because it failed to include a scienter re-
quirement it “appear[ed] to impose strict liability.” Id. We
also questioned the clarity of the term association—“Is a sin-
gle meeting enough, or is the word intended to denote
friendship, acquaintanceship, or frequent meetings?” Id.
Here, the district court’s condition prohibits street-gang
association rather than felony association, but that is a dis-
tinction without a difference. Although the district court re-
quired an intent element for wearing gang-related colors
(i.e., Purham must intend to wear them as a representation
3 The government concedes as much in its brief.

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No. 14-3424 13
of a gang in order to offend the condition), it offered no such
requirement for the association component of the condition.
We remain unsure, then, whether an accidental or chance
meeting with a street-gang member would violate this con-
dition. Clarification must be provided to determine what
“association” means. Accordingly, under Thompson, this
condition must also be vacated.
Purham’s sentence requires a limited remand for recon-
sideration of the above terms of supervised release. United
States v. Sewell, 780 F.3d 839, 852 (7th Cir. 2015); see also Siegel,
753 F.3d at 717 (“So the prison sentences … stand, but the
cases must be remanded for reconsideration of the condi-
tions of supervised release”).
III. CONCLUSION
We AFFIRM in part and VACATE in part. We AFFIRM
the district court’s term of imprisonment. It is substantively
reasonable, and the district court did not exceed the scope of
our remand in imposing it. We VACATE, however, the
community-service and gang-association conditions of su-
pervised release discussed above. The sentence is
AFFIRMED in every other respect. The case is REMANDED
to the district court for limited proceedings consistent with
this opinion.
AFFIRMED in part, VACATED in part.

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