                             In the

United States Court of Appeals
               For the Seventh Circuit

No. 07-2488

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

                                 v.

B ADAYAH B RAZELTON,
                                              Defendant-Appellant.




             Appeal from the United States District Court
      for the Northern District of Indiana, South Bend Division.
       No. 06-CR-00144(01)—Robert L. Miller, Jr., Chief Judge.



     A RGUED O CTOBER 15, 2008—D ECIDED M ARCH 3, 2009




  Before E ASTERBROOK, Chief Judge, and C OFFEY and W OOD ,
Circuit Judges.
  C OFFEY, Circuit Judge. Police arrested Badayah Brazelton
as he exited his home after a witness identified him as the
assailant in a shooting. Following his arrest as a suspect,
police obtained a search warrant to Brazelton’s home and
discovered guns, crack, marijuana, and other drug para-
2                                               No. 07-2488

phernalia. Brazelton was never charged with the shooting,
but based on the items found in his house during the
search, Brazelton was tried and convicted before a jury on
two counts of gun crimes, 18 U.S.C. § 924(c), (g), and three
counts of drug crimes, 21 U.S.C. § 841(a)(1). The court
sentenced him to a total of 425 months of imprisonment.
Appellant Brazelton argues that his conviction should be
set aside, arguing that one of the jurors seated was related
to the victim in the shooting that led to Brazelton’s arrest
and the search of his home. He makes this argument even
though the victim did not testify and his name was not
mentioned again after it was mentioned at voir dire. More
importantly, though, Brazelton waived the issue raised for
argument at trial even though he was aware of the juror's
relationship at voir dire, and told the judge during the
juror selection process that he did not want the juror to be
struck for cause. Brazelton also claims, and the govern-
ment concedes, that he should be resentenced in light of
Kimbrough v. United States, 128 S. Ct. 558 (2007) because the
district court followed the then-governing case law reject-
ing Brazelton’s argument that the court had discretion to
impose a below-guidelines sentence based on a disagree-
ment with the crack-powder ratio. We agree and remand
for resentencing and we affirm Brazelton’s conviction.


                       Background
  The events leading to Brazelton’s conviction began when
Officer Tim Richardson of the Michigan City, Indiana,
police department was dispatched to the scene of a shoot-
ing where an eyewitness informed the officer that
No. 07-2488                                                3

Brazelton was the shooter. The police found Brazelton at
his home, arrested him and, after obtaining a search
warrant for the house, conducted a search of his house and
discovered drug paraphernalia, and about 230 grams of
marijuana, some 190 grams of crack, and about 95 grams of
cocaine, ammunition, and a gun.
   Brazelton was indicted on charges of possession of a
firearm by a felon, 18 U.S.C. § 924(g), possession of a
firearm in furtherance of a drug trafficking crime, 18 U.S.C.
§ 924(c), as well as three counts of possession of drugs with
intent to distribute, 21 U.S.C. § 841(a)(1), one each for
cocaine, crack, and marijuana. During voir dire, the court
advised the jury of a list of several people that might
conceivably be called as witnesses without stating their
connection to the case and asked if the jurors knew any of
them. The list included Brandon Byrd, the victim of the
shooting that led to the defendant’s arrest. Juror Number
Four said that Byrd was a second cousin and that he saw
Byrd infrequently, but that if Byrd did testify, he would
not give his testimony any more or less weight than any
other witness. The prosecutor expressed concern about
Juror Number Four’s impartiality because Byrd himself
might testify or a witness might discuss Byrd’s shooting.
The prosecutor suggested asking Juror Number Four, “If
you learned that Mr. Byrd were the victim of a crime
connected with this case, would that influence your
decision?” At the time, Brazelton’s counsel stated that he
did not object to the question, but told the judge he did not
see any reason to ask it, and the judge acquiesced and did
not ask it. The judge heard arguments on challenges for
cause to two jurors, but Brazelton’s counsel never chal-
4                                                No. 07-2488

lenged Juror Number Four for cause. Before moving on
from the cause challenges, the court gave Brazelton a
second chance to object to Juror Number Four, which he
expressly declined:
    THE COURT: Does the Defense have a position to take
    on either those cause challenges or—you’re not making
    a cause challenge on [Juror Number Four] or are you?
    You had talked about it. I just want to verify that you
    are not.
    MR. BARRET: No, Your Honor.
Both sides exercised peremptory strikes but left Juror
Number Four on the jury panel.
  The jury convicted Brazelton on all five counts. At
sentencing, the trial judge grouped the drug offenses and
felon-in-possession of a weapon offense together. U.S.S.G.
§ 3D1.2(d). Because Brazelton’s criminal activity involved
the crack, powder cocaine and marijuana, the court used
the drug equivalency tables, U.S.S.G. § 2D1.1 cmt. 10, when
determining that Brazelton was responsible for the equiva-
lent of 3839.71 kilograms of marijuana. This corresponded
to a base offense level of 34, and the court increased it by
two levels for obstruction of justice. U.S.S.G. § 2D1.1(a)(3).
Combined with a criminal history score of 5, this yielded a
guidelines range of 292 to 365 months for the drug and
felon-in-possession counts. For possession of a firearm in
furtherance of a drug trafficking crime, the court deter-
mined the guidelines sentence to be the mandatory mini-
mum of 60 months. U.S.S.G. § 2K2.4(b); 18 U.S.C.
§ 924(c)(1)(A)(I).
No. 07-2488                                                 5

  Brazelton objected to the 100-1 ratio between crack and
powder cocaine that was a part of the drug equivalency
tables at the time of sentencing, but the court rejected the
objection based on the governing law at the time of sen-
tencing. After considering the statutory factors under 18
U.S.C. § 3553(a), the trial court imposed the greatest period
of confinement that was within the guidelines range for the
grouped offenses, 365 months, as well as the mandatory-
minimum sentence for the other firearm count, and
ordered them to run consecutively. (Even though the court
in its written sentencing memorandum made an error
(immaterial) when it referred to 365 months as the mid-
point of the advisory range—when it was the top of the
range—that error is harmless since “[a] sentence pro-
nounced in a defendant's presence prevails over a written
sentence when the two conflict.” United States v. McHugh,
528 F.3d 538, 539 (7th Cir. 2008).)


                          Analysis
A. Juror Number Four
  On appeal, defendant-appellant Brazelton argues that
because the juror designated as juror number four served
on the jury, Brazelton was denied his constitutional right
to an impartial jury. Brazelton asserts that we should
review for an abuse of discretion on the part of the district
judge for failing to remove the juror for cause, but the case
Brazelton cites in support of this proposition is distinguish-
able because in that case the party raised the objection in
the district court. Salvato v. Illinois Dept. of Human Rights,
155 F.3d 922, 927 (7th Cir. 1998) (“the plaintiffs’ lawyer
6                                                 No. 07-2488

moved to strike Abramson for cause”). As the government
argues, Brazelton waived his objection to Juror Number
Four when he expressly declined the court’s specific
invitation to challenge the juror for cause at trial. A more
obvious intentional relinquishment of a known right, see
United States v. Olano, 507 U.S. 725, 733 (1993), is hard to
imagine.
  The defendant-appellant attempts to sidestep and cast
aside his waiver by contending that his is a claim of
“implied bias,” which, he insists, cannot be waived. The
concept of implied bias is well-established in the law.
Under the doctrine, a court must excuse a juror for cause if
the juror is related to one of the principals in the case, see,
e.g., United States v. Annigoni, 96 F.3d 1132, 1138 (9th
Cir. 1996). Such a juror may well be objective in fact,
but the relationship is so close that the law errs on the
side of caution.
  In United States v. Haynes, 398 F.2d 980, 984 (2d Cir. 1968),
the Second Circuit traced the implied bias doctrine back to
Chief Justice John Marshall who wrote that:
    Why is it that the most distant relative of a party
    cannot serve upon his jury? Certainly the single
    circumstance of relationship, taken in itself, uncon-
    nected with its consequences, would furnish no objec-
    tion. The real reason of the rule is, that the law suspects
    the relative of partiality; suspects his mind to be under
    a bias, which will prevent his fairly hearing and fairly
    deciding on the testimony which may be offered to
    him. The end to be obtained is an impartial jury; to
    secure this end, a man is prohibited from serving on it
No. 07-2488                                                 7

    whose connection with a party is such as to induce a
    suspicion of partiality.
United States v. Burr, 25 F.Cas. 49 (No. 1492g)(C.C.D. Va.
1807). This opinion, quoted with approval by this court in
United States v. Polichemi, 219 F.3d 698, 704 (7th Cir. 2000),
indicates that any degree of kinship with a principal in a
case would preclude service on a jury for that case.
  Brazelton asks us to presume bias because Juror
Number Four’s second cousin was the victim of the
shooting that resulted in the investigation that led to the
drug and gun charges against Brazelton. We can assume
that Byrd, the victim of the original (but uncharged) crime,
could not himself sit on Brazelton’s jury because his vote
on the charged crimes might possibly be influenced by a
desire to extract punishment for the uncharged crime.
Based on his history with Brazelton, Byrd could not sit
even if he swore to be impartial because “the law errs on
the side of caution.” Polichemi, 219 F.3d at 704. For the
same reasons, extending the disqualification to the victim’s
second cousin might seem prudent. Cf. Conaway v. Polk,
453 F.3d 567, 573-74 (4th Cir. 2006). On the other hand,
though, the record contains no foundation whatsoever that
Juror Number Four even knew that Brazelton was once
suspected of shooting Byrd, his second cousin nor was an
offer of proof ever made to the court. Nor was anything
said during the trial that would have given Juror Number
Four this information as Byrd’s name was not even men-
tioned after voir dire, and the mention in voir dire gave no
indication of how Byrd was involved in the case. But
silence of the record on these points is relevant only to a
8                                                 No. 07-2488

claim of actual bias, in which a defendant must prove that
the alleged bias actually affected the juror’s vote. Smith v.
Phillips, 455 U.S. 209, 216-17 (1982). To show implied bias,
the defendant need not demonstrate or establish that the
relationship actually affected the juror’s judgment; the
effect is presumed “regardless of actual partiality.” United
States v. Wood, 299 U.S. 123, 134 (1936). So the question
comes down to whether the relationship is close enough to
assume bias.
  We need not answer that question, since Brazelton’s
contention that implied bias cannot be waived, is wrong.
The Supreme Court has referred to the trial court’s “duty”
to select an impartial jury, Frazier v. United States, 335 U.S.
497, 511 (1948), and the Second Circuit has written that
“the presiding trial judge has the authority and responsibil-
ity, either upon counsel’s motion or sua sponte, to dismiss
prospective jurors for cause,” United States v. Torres, 128
F.3d 38, 43 (2d Cir. 1997) (emphasis added). In a recent
case the Sixth Circuit held that even if defense counsel’s
decision to keep a biased juror on the panel could be
classified as acting strategically, that strategy was im-
proper, ill-advised, and unreasonable and the presence of
a biased juror on the panel required reversal. Franklin v.
Anderson, 434 F.3d 412, 428 (6th Cir. 2006); see also Miller v.
Webb, 385 F.3d 666, 676 (6th Cir. 2004). The Second Circuit
has not gone so far, suggesting only that there can be no
waiver where the juror’s bias or alleged bias is revealed at
voir dire and the district court erroneously rejects a
challenge for cause. United States v. Nelson, 277 F.3d 164,
204-06 (2d Cir. 2002); see also Ross v. Oklahoma, 487 U.S. 81,
No. 07-2488                                                 9

316 (1988) (“Had [the biased juror] sat on the jury that
ultimately sentenced petitioner to death, and had the
petitioner properly preserved his right to challenge the
trial court’s failure to remove [the juror] for cause, the
sentence would have to be overturned.”).
  In this circuit, there is no ambiguity on the question
whether the right to an impartial jury can be waived. We
have held that “[t]he Sixth Amendment right to an impar-
tial jury, like any constitutional right, may be waived.”
United States v. Zarnes, 33 F.3d 1454, 1472 (7th Cir. 1994);
accord United States v. Joshi, 896 F.2d 1303, 1307 (11th Cir.
1990). Brazelton’s on-the-record decision to pass up not
one, but two opportunities to ask that Juror Number Four
be struck for cause was a waiver. If a defendant is allowed
to twice forego for-cause challenges to a biased juror and
then allowed to have the conviction reversed on appeal
because of that juror’s service, that would be equivalent to
allowing the defendant to “plant an error and grow a
risk-free trial.” United States v. Boyd, 86 F.3d 719, 722-23
(7th Cir. 1996).


B. Sentencing
  Brazelton’s second argument, that his sentence should be
remanded in light of Kimbrough v. United States, 128 S. Ct.
558 (2007), fares much better. At the time of sentencing,
our case law precluded district courts from imposing a
sentence based on the court’s disagreement with the crack-
powder ratio, see United States v. Jointer, 457 F.3d 682,
686-88 (7th Cir. 2006), thus the trial judge properly rejected
10                                                No. 07-2488

Brazelton’s argument to do just that. After Kimbrough,
even in a “mine-run case,” district courts may impose
lower sentences based on a determination that the ratio
produces a sentence greater than necessary for a particular
defendant. Kimbrough, 128 S. Ct. at 575. And this new
discretion applies in cases like Brazelton’s that involve the
equivalency tables because the tables embodied the 100-to-
1 ratio. See United States v. Williams, 276 Fed. App’x 491,
493 (7th Cir. 2008). Brazelton raised the issue in the district
court and the district court gave no explanation or reason-
ing as to whether it would have imposed the same sentence
if it had the discretion to consider the disparity. Brazelton
is entitled to a remand for resentencing. See United States
v. Padilla, 520 F.3d 766, 774 (7th Cir. 2008).


                         Conclusion
  We A FFIRM Brazelton’s conviction and R EMAND for
resentencing in light of Kimbrough.




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