                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-3571
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

JAMES E. JACKSON,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
          No. 01-CR-634—Charles R. Norgle, Sr., Judge.
                          ____________
    ARGUED DECEMBER 9, 2004—DECIDED JUNE 9, 2005
                  ____________




  Before FLAUM, Chief Judge, and BAUER and WILLIAMS,
Circuit Judges.
  WILLIAMS, Circuit Judge. James Jackson pled guilty to
conspiracy to distribute and possess with intent to distrib-
ute cocaine, and he was sentenced to 121 months’ custody.
Jackson now appeals and brings statutory and constitu-
tional challenges to his sentence. We find that the district
court incorrectly calculated Jackson’s sentence by failing to
cap his offense level at 30, as required by U.S.S.G.
§ 2D1.1(a)(3) (2002), and we remand this case back to the
district court for resentencing. In light of this remand, we
2                                               No. 03-3571

need not address Jackson’s arguments under United States
v. Booker, 125 S. Ct. 738 (2005).


                   I. BACKGROUND
  On August 9, 2001, a grand jury in the Northern District
of Illinois returned a two-count indictment against Jackson
and several other co-conspirators. Count One of the in-
dictment charged Jackson with conspiracy to distribute and
possess with intent to distribute cocaine, in violation of 21
U.S.C. § 846. Count Two charged Jackson with possession
with intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a)(1).
  When the grand jury indicted Jackson, the district court
allowed him to remain free on an unsecured bond pending
trial. On November 9, 2001, the government filed a Motion
to Revoke Defendant’s Bond. In this motion, the government
alleged that Jackson had threatened one of the government’s
confidential informants, Rendon Hudson. Specifically, the
government argued that the confidential informant heard
“on the street” that Jackson had put a contract on his life
for $200,000. In addition, the government alleged that
Jackson came to Hudson’s house and made a statement to
Hudson’s father and brother that Hudson would experience
some type of violent revenge. During this supposed confron-
tation between Jackson and Hudson’s relatives, Hudson
himself came home. When Hudson told Jackson to leave,
Jackson allegedly said something to the effect of, “You
gonna get yours.” The district court held a hearing on this
matter, and found that Jackson had indeed threatened
Hudson. The district court then revoked Jackson’s bond.
  At sentencing on September 17, 2003, the district judge
found that Jackson should receive an adjustment under
U.S.S.G. § 3B1.2(b) for being a minor participant in the of-
fense. However, based on the recommendation of Jackson’s
probation officer, the district court found that Jackson’s
No. 03-3571                                                 3

base sentencing offense level was 32. From the base offense
level of 32, the district court then gave Jackson a two-point
enhancement for obstruction of justice. The government
called witnesses, and the district court made the finding
that Jackson obstructed justice by threatening Hudson, the
government’s confidential informant.
  Jackson also argued that he qualified for the safety valve
reduction. U.S.S.G. § 5C1.2 (2002). The district court denied
Jackson’s motion to apply the safety valve. However,
because the district court found that Jackson was a minor
participant, it granted him a two-point reduction. The
district court concluded that Jackson’s final offense level
was 32. With a criminal history category of I, Jackson’s
guideline sentencing range was 121 to 151 months. The
district court sentenced Jackson to a 121-month term of im-
prisonment, a five-year term of supervised release, and a
$100 special assessment. Jackson submitted a timely
appeal.


                      II. ANALYSIS
A. The District Court’s Application of U.S.S.G.
   §§ 2D1.1(a)(3) and 3B1.2(b)
  We review the sentencing court’s legal interpretation of the
sentencing guidelines de novo. United States v. Johnson,
324 F.3d 875, 877 (7th Cir. 2003). Jackson argues that
based upon U.S.S.G. § 2D1.1(a)(3) of the November 2002
Sentencing Guidelines, the district court should have set his
base level at 30, not 32. The government concedes that the
district court should have applied the cap of 30 and then
subtracted the mitigating role adjustment under section
3B1.2. We agree. Section 2D1.1 of the 2002 Sentencing
Guidelines states that if the defendant receives an adjust-
ment under section 3B1.2 for a mitigating role, the base
4                                                    No. 03-3571

offense level shall not be more than 30.1 The district court
failed to cap Jackson’s base offense level at 30 in this case
and instead set Jackson’s base level at 32.
  The 2002 sentencing guidelines also direct that the
district court apply any mitigating role adjustment from the
capped base offense level of 30. U.S.S.G. § 3B1.2 cmt. 6
(2002);2 see also United States v. Santos, 357 F.3d 136, 140
n.2 (1st Cir. 2004). This court, prior to this case, has not
commented on the application of mitigating role adjustments
to the capped offense level within the 2002 Sentencing
Guidelines. Accordingly, based on the plain language of the
2002 commentary to section 3B1.2, we find that the district
court erroneously applied the Guidelines. We therefore
vacate Jackson’s sentence and remand for resentencing. The
Guidelines provide that the district court should have
begun with a base level of 30 and then subtracted any
negative adjustments, such as a mitigating role. Of course,
in accord with United States v. Booker, 125 S. Ct. 738, 757
(2005), on remand the district court is to treat the Guidelines
as advisory rather than mandatory. Because the Guidelines
are now advisory, the district court must consider the cor-
rect guideline range when determining a new sentence, but
may “tailor the sentence in light of other statutory concerns
as well.” Id.


1
  U.S.S.G. § 2D1.1(a) (2002) (amended 2004) is entitled “Base
Offense Level (Apply the greatest).” Section 2D1.1(a)(3) instructs
that the base offense level shall be “the offense level specified in
the Drug Quantity Table set forth in subsection (c), except that if
the defendant receives an adjustment under § 3B1.2 (Mitigating
Role), the base offense level under this subsection shall be not
more than level 30.”
2
  U.S.S.G. § 3B1.2 cmt. 6 (2002) states: “In a case in which the
court applied § 2D1.1 and the defendant’s base offense level under
that guideline was reduced by operation of the maximum base
offense level in § 2D1.1(a)(3), the court also shall apply the
appropriate adjustment under this guideline.”
No. 03-3571                                                 5

B. Jackson’s Booker-Related Arguments
  Jackson also argues that his Sixth Amendment right to a
jury’s determination of facts underlying his sentence en-
hancement was violated when the district judge found by a
preponderance of the evidence that Jackson obstructed
justice by intimidating the government’s confidential in-
formant. See Booker, 125 S. Ct. at 756. We are already re-
manding this case based on the district court’s Guidelines
calculation error, and Jackson must be resentenced in ac-
cordance with Booker at that time, obviating the need for us
to consider the propriety of a limited remand under United
States v. Paladino, 401 F.3d 471, 484 (7th Cir. 2005).
  Jackson further argues that the district court’s finding
that he was not eligible for a safety valve reduction likewise
violated his Sixth Amendment rights under Booker. Again,
because we are already remanding this case based on the
district court’s Guidelines calculation error, we need not
address this argument at this time. Based on the district
court’s Guidelines calculations error, Jackson must be
resentenced in accordance with Booker.


                   III. CONCLUSION
   In summary, we VACATE Jackson’s sentence based on the
district court’s Guidelines calculation error and remand for
resentencing. When the district court resentences Jackson,
it is to apply the Guidelines in an advisory manner, in ac-
cordance with Booker.
6                                        No. 03-3571

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—6-9-05
