                             In the

United States Court of Appeals
               For the Seventh Circuit

No. 11-1208

U NITED S TATES OF A MERICA,
                                                  Plaintiff-Appellee,
                                 v.

R AYMOND M. M ARTIN ,
                                              Defendant-Appellant.


             Appeal from the United States District Court
                for the Southern District of Illinois.
             No. 09-CR-40037-JPG—J. Phil Gilbert, Judge.



      A RGUED D ECEMBER 2, 2011—D ECIDED A UGUST 28, 2012




    Before
         R IPPLE and R OVNER,               Circuit    Judges,   and
F EINERMAN, District Judge.
  R OVNER, Circuit Judge. Raymond M. Martin was the
Sheriff of Gallatin County, Illinois, from 1990 until his
conviction on fifteen counts including marijuana dis-
tribution, possession of a firearm during a drug traf-



  The Honorable Gary S. Feinerman of the Northern District
of Illinois, is sitting by designation.
2                                              No. 11-1208

ficking crime, conspiracy to distribute marijuana, witness
tampering, conspiracy to tamper with witnesses, and
attempted structuring of financial transactions. The
evidence at trial demonstrated that Martin solicited
Jeremy Potts to sell marijuana supplied by Martin, with
Martin taking a cut of the profits from that sale. Martin
obtained the marijuana from other persons and also
obtained marijuana from the Gallatin County evidence
storage facilities. When Potts sought to end the rela-
tionship and discontinue selling the marijuana, Martin
threatened him using his county-issued service weapon.
The government obtained audio and video recordings
of three deliveries of marijuana by Martin to Potts, and
Martin was in uniform, in his patrol vehicle, and in pos-
session of his service revolver for those deliveries.
Martin was then arrested and charged with three counts
of marijuana distribution and two counts of carrying
a firearm in relation to a drug trafficking crime.
While incarcerated at the jail, Martin separately solicited
two inmates to kill Potts and another witness, and
Martin took steps to obtain payments for the murders
and to provide directions to the homes of those in-
tended victims. Those actions formed the basis for the
convictions for witness tampering and illegal structuring
of financial transactions to avoid Currency Transaction
Reports.
  Martin raises only two challenges on appeal. First, he
argues that the presence of a non-juror in the jury room
for a short period of time deprived him of his right to
an impartial jury. Second, he asserts that the district
court committed plain error in relying on an incorrect
Guidelines calculation in sentencing him.
No. 11-1208                                               3

  The jury issue arises from a rather bizarre sequence
of events on the second day of trial. The first day had been
devoted entirely to jury selection and opening state-
ments. The morning of the second day, one of the jurors—
who hailed from Christopher, Illinois—was late for jury
duty. A court security officer waiting for the late juror
saw a woman, whom we will call CM, drive up, and
asked CM if she was coming from Christopher. When
CM replied in the affirmative, the security officer
escorted her to the jury room, believing that CM was
the late juror from Christopher. No one apparently
asked CM if she was a juror. CM was in the jury room
for no more than 5 minutes when the jurors lined up
to proceed into the courtroom. CM then informed
a security officer that she did not think she was sup-
posed to be there.
   When only 13 of the 14 jurors filed into the courtroom,
it became apparent to the district court judge that there
was a problem. The judge was informed that a non-juror
had been mistakenly taken to the jury room, and the
court began an investigation into the matter.
  In response to questioning by the court marshal, CM
had indicated that she had no connection to the case, and
that she lived in Junction, Illinois. That was a cause
of concern to the court and the parties, because it
appeared to conflict with the statement that she was
from Christopher, Illinois. In addition, she had been in
the courtroom taking notes the previous day as an ob-
server, and had a pad and pencil on this day as well.
With the agreement of the parties, the judge decided to
4                                              No. 11-1208

question each juror individually to determine whether
CM had communicated with them in any way in the
jury room, and to question CM. The prosecutor and
defense attorney elected to be present for the ques-
tioning of CM but not for the individual jurors.
  Without exception, each juror testified that CM did not
speak to anyone in the jury room. The consistent testi-
mony was that she entered the jury room and, after
using the restroom, went to a seat at the far end of the
jury table and sat quietly there. Martin seizes upon the
initial remarks of one juror that it was “a little scary”
when she entered. That person acknowledged, however,
that he did not talk to her or see anyone else talk to her,
and when the judge queried as to whether CM realized
that she was in the wrong place when the jurors
walked out, that juror acknowledged “I guess so.” Another
juror concurred with that assessment, stating “[y]ou
could tell she was feeling the same way. That she wasn’t—
had been sent to the wrong place.”
  The sole communication that CM had with a juror
consisted of a brief interaction in the hallway as CM
was being escorted from the jury room and the late
juror was coming to the jury room. That late juror, seeing
CM, asked CM if she was a late juror too and CM
replied “No.” There was no other testimony of any other
communication between CM and any juror.
  The judge, with the government and defense attor-
neys present, then questioned CM. She testified that
she did not speak with anyone in the jury room and even
asked whether there were security cameras that could
No. 11-1208                                                  5

confirm her testimony (there were not.) The court
then explored her connection to the case, asking why
she had stated that she was not connected with the
trial. The court determined that CM was not herself
connected to the case, but that her husband was an
unindicted coconspirator. She also clarified that the
court security officer had asked her whether she had
come from Christopher, not whether she was from
there, and she responded affirmatively because that is
where she had come from that day. Finally, CM testified
that she initially thought that the security officer was
taking her to a holding room as part of the court security
for visitors to the courtroom. Once she realized that she
did not belong there, she informed the court security
officer of that fact.
  After hearing the testimony from the jurors and CM,
the court notified the parties that it intended to pro-
ceed with the trial. Defense counsel did not object to
that determination. Martin now complains on appeal
that the brief encounter of the jurors with CM deprived
him of his right to an impartial jury.
  Because Martin did not raise any such objection at
trial, we review for plain error. United States v. Ambrose,
668 F.3d 943, 963 (7th Cir. 2012); United States v. Thibodeaux,
758 F.2d 199, 202 (7th Cir. 1985). Accordingly, we
will reverse only if we find an error that is plain, that
affects the defendant’s substantial rights, and that
seriously affects the fairness, integrity or public reputa-
tion of judicial proceedings, effectuating a miscarriage
of justice. Id.; United States v. Olano, 507 U.S. 725, 732-34
6                                                No. 11-1208

(1993). Martin first argues that the court failed to
remedy actual jury bias, asserting that such an error is a
structural error that is automatically reversible. See
United States v. Warner, 498 F.3d 666, 679 (7th Cir.
2007)(discussing structural errors not subject to harmless
error analysis); United States v. Harbin, 250 F.3d 532, 542-43
(7th Cir. 2001). The basis for this argument is the state-
ment by one juror that it was “a little scary” when CM
entered the jury room instead of the actual 14th juror.
Martin argues that because the trial involved allegations
of witness tampering, it was reasonable to assume that
the juror could make the connection between witness
tampering and potential jury tampering, and that the
juror was therefore prejudiced by that encounter.
Martin reads far too much into the relatively innocuous
statement that it was “a little scary” when CM came
into the room. She had been escorted there by the
court security officer who believed her to be the 14th
juror, and the juror who made the statement knew that
she was not a juror. In that context the juror described
the situation as “a little scary.” That same juror
appeared to agree with the judge’s statement that CM
then realized that she did not belong there. No follow-up
statements by the juror indicated any concerns once
CM separated herself from the jurors. Moreover, the
court repeated to many of the jurors that CM’s presence
there was the fault of the court security officer, not
CM. Although the court allowed CM to remain in the
courtroom as a spectator afterward to take notes, there
is no reason to believe that her presence would cause
concern among the jurors. In fact, CM’s continued
No. 11-1208                                              7

presence in the courtroom would indicate to the jury
that the court at least did not perceive her to present a
threat. There is simply no evidence of actual bias here.
  We are left then with Martin’s more general claim of
improper jury tampering. We have repeatedly held that
alleged errors related to improper communication with
jurors do not constitute structural errors subject to auto-
matic reversal, but rather are the type of trial errors
subject to the harmless error standard. Warner, 498 F.3d
at 679; Whitehead v. Cowan, 263 F.3d 708, 722 (7th Cir.
2001); see also Olano, 507 U.S. at 737-38. Because
Martin failed to object, as pointed out earlier he must
meet the plain error standard.
  Martin’s argument in this area relates to the court’s
handling of the allegedly improper contact with the
jurors. Martin argues that the court applied the incorrect
legal standard under Remmer v. United States, 347 U.S.
227, 229 (1954), in that it presumed that the contact was
not prejudicial, and that the court improperly focused
only on the facts of the contact and failed to inquire
as to the effect of that contact on the jurors.
  In Remmer, the Supreme Court held that “[i]n a
criminal case, any private communication, contact, or
tampering directly or indirectly, with a juror during a
trial about the matter pending before the jury is, for
obvious reasons, deemed presumptively prejudicial, if
not made in pursuance of known rules of the court and
the instructions and directions of the court made during
the trial, with full knowledge of the parties.” Id. at 229.
That presumption of prejudice may be rebutted if the
8                                                No. 11-1208

government demonstrates that the contact was harm-
less. Id. The Court further held that in cases of such
tampering, the trial court should conduct a hearing to
determine the circumstances, the impact upon the juror,
and whether or not it was prejudicial. Id. at 229-30.
  District courts nevertheless retain some flexibility
in determining the type of inquiry appropriate in a case
alleging such improper communications. Warner, 498
F.3d at 680. Where a comment heard by a juror was
ambiguous or innocuous, no Remmer hearing may be
necessary. Id.; Whitehead, 263 F.3d at 725-6. For instance, in
Whitehead, the defendant complained of an outburst
overheard by the jury during the trial. The judge,
counsel, and court reporter had retired to chambers,
but the jury remained present in the courtroom when
the mother of the victim rose and began shouting at
the defendant asking him why he killed her daughter.
Id. at 723. We noted in Whitehead that the mother did
not attempt to persuade the jury, nor did she provide
the jury with any extraneous information about the
facts of the case. Id. at 724. Because only an innocuous
comment was involved, we held that no Remmer hearing
was necessary. Id. at 724-25. Nor was the off-the-record
nature of the communication dispositive. Id. at 725. Al-
though the absence of the judge at the time meant
the judge could not observe the impact of the outburst
on the jury, Whitehead held that the content and duration
of the outburst was such that it was not reasonable
to imagine that it would affect the jury’s deliberation.
Id. Mere speculation concerning prejudice to the de-
fendant was insufficient to warrant reversal. Id. at 726.
No. 11-1208                                               9

  Similarly, in Brown v. Finnan, 598 F.3d 416, 419 (7th Cir.
2010), the jury potentially could have overheard an in-
court statement by the victim’s mother to the effect
that “the situation [was] racist.” We noted in that case
that the meaning of the statement was equivocal
because the victim and the accused were of the same
race, and that it was unclear how the jury could
perceive the comment in a manner injurious to the de-
fendant. Id. at 422. Because the comment was not one
that would reasonably affect a reasonable juror’s delib-
eration as to guilt or innocence, we held that no Remmer
hearing was necessary. Id. at 423. We noted that a com-
munication must be read in its context, and that no
Remmer hearing is needed when the challenged com-
munication is both ambiguous and innocuous. Id.; see
also United States v. Li Xin Wu, 668 F.3d 882, 887 (7th
Cir. 2011); Thibodeaux, 758 F.2d at 202.
  Those cases stand in contrast to the facts presented in
Remmer, in which a person had informed a juror that
he could profit by returning a verdict favorable to the
petitioner. 347 U.S. at 228. The situation in Remmer pre-
sented an unauthorized invasion of the jury, jeop-
ardizing the integrity of the jury proceedings. The White-
head and Brown cases, on the other hand, involved com-
munications that did not threaten such an adverse
impact on the jury proceedings; the communications
did not provide any new information about the case to
the jurors, nor did the nature of the communica-
tions create any likelihood that it would affect the delib-
erations.
10                                            No. 11-1208

  There is even less evidence of any potential impact on
the jury in the present case than was evident in
Whitehead and Brown. The only jury “contact” here
was CM’s mere presence in the jury room while the
jury was waiting to be called into the courtroom for the
morning session. Because the improper contact with the
jurors occurred outside the presence of the judge and
counsel, the judge properly chose to question each of
the jurors as well as CM to ascertain the nature of
the contact and whether any inappropriate communica-
tions had taken place. The uncontradicted testimony
was that no communication was made of any kind, with
the exception of the one-word response to a question by
a late juror as to whether she was a late juror as well.
There is no evidence at all of any “communication,
contact or tampering . . . about the matter pending
before the jury.” See Remmer, 347 U.S. at 229. Martin
cannot contest that conclusion. Accordingly, Martin
cannot succeed on his claim that the court should have
taken the next step to determine whether the govern-
ment had overcome the presumption that the communica-
tion was prejudicial; there was in fact no communication
at all here, and therefore nothing that could have been
prejudicial. Even if mere presence was deemed to be a
communication of sorts under these facts, there was no
need for a further inquiry because it was an ambiguous
and innocuous communication if any, which we have
repeatedly held merits no further inquiry. Brown, 598
F.3d at 423. In Olano, the Supreme Court rejected an
argument that the mere presence of an alternate juror
in deliberations presented a sufficient risk of a chilling
No. 11-1208                                                11

effect to justify a presumption of prejudice. 507 U.S. at 740-
41. We have a less significant inappropriate presence in
the jury room here as the presence was fleeting and
did not occur at a time during which the jurors were
discussing the case. There was absolutely no indication
that the incident had any lasting impact on the jury.
Therefore, the district court did not err in its inquiry
into the potential jury tampering and in its determina-
tion that no improper communication or influence
had occurred. The district court’s decision to proceed
with the trial was proper given the undisputed facts
concerning the contact with the jurors.
   The sentence, however, is more problematic, and re-
quires a remand for resentencing. The government con-
cedes that the court was operating under a misunder-
standing regarding the Guidelines range for Counts 4
and 5, involving violations of 18 U.S.C. § 924(c) for
carrying a firearm in connection with a drug trafficking
crime. The Presentence Investigation Report (“PSR”) stated
that the Guidelines range for Count 4 was 5 years to
life, and the range for Count 5 was 25 years to life, and
Martin did not object to those calculations. The district
court then adopted the PSR findings and sentenced
Martin to life on both counts. The PSR range, however,
was incorrect. Pursuant to U.S.S.G. § 2K2.4(b), for a
conviction under § 924(c) the guideline sentence is the
minimum term of imprisonment required by statute.
See United States v. Lucas, 670 F.3d 784, 788 n.3 (7th
Cir. 2012). The minimum term of imprisonment for
Count 4 was 5 years and for Count 5 was 25 years. Ac-
cordingly, the Guidelines range for Counts 4 and 5 was
12                                              No. 11-1208

5 years and 25 years respectively, not 5 years to life and
25 years to life.
  Because Martin failed to object to the calculation at the
time of sentencing, we review only for plain error. As
stated earlier, under the plain error standard, we
reverse only if we find an error that is plain, that affects
the defendant’s substantial rights, and that seriously
affects the fairness, integrity or public reputation of
judicial proceedings. Ambrose, 668 F.3d at 963; Olano, 507
U.S. at 732-34. We have repeatedly held that “[a] sen-
tencing based on an incorrect Guidelines range con-
stitutes plain error and warrants a remand for
resentencing, unless we have reason to believe that the
error in no way affected the district court’s selection of
a particular sentence.” United States v. Farmer, 543
F.3d 363, 375 (7th Cir. 2008); United States v. Garrett,
528 F.3d 525, 527 (7th Cir. 2008); United States v.
Pineda-Buenaventura, 622 F.3d 761, 767 (7th Cir. 2010).
   Here, we have no reason to believe that the error had
no impact on the sentence. The court explicitly tied the
sentence to the Guidelines range, making it clear that
it was imposing a sentence at the high end of the Guide-
lines range when it gave the consecutive life sentences.
Therefore, we cannot assume that the court would have
imposed the same sentence had it understood that the
consecutive Guidelines range extended to 30 years
rather than life. Although the court clearly wanted to
impose a significant sentence, there is no way to know
whether that would have been 30 years, a lower or higher
number of years, or life. Therefore, we must remand for
No. 11-1208                                             13

the court to determine the sentence in light of the
proper Guidelines recommendation.
  The conviction is A FFIRMED and the sentence is V A-
CATED . The case is R EMANDED for resentencing in consider-
ation of the proper Guidelines range.




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