                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1




                United States Court of Appeals
                                 For the Seventh Circuit
                                 Chicago, Illinois 60604

                               Submitted October 23, 2017*
                                Decided October 24, 2017

                                          Before

                           FRANK H. EASTERBROOK, Circuit Judge

                           MICHAEL S. KANNE, Circuit Judge

                           DAVID F. HAMILTON, Circuit Judge

No. 16-2511

UNITED STATES OF AMERICA,                        Appeal from the United States District
     Plaintiff-Appellee,                         Court for the Southern District of Indiana,
                                                 Indianapolis Division.
       v.
                                                 No. 1:05CR00194-001
FREDERICK T. GARNER,
     Defendant-Appellant.                        Larry J. McKinney,
                                                 Judge.



                                        ORDER

       Frederick Garner was convicted of distributing cocaine and other drug offenses,
see 21 U.S.C. §§ 841(a)(1), 846, and possessing a firearm in furtherance of those crimes,
see 18 U.S.C. § 924(c)(1)(A). For reasons not relevant here (explained in Garner v.
United States, 808 F.3d 716 (7th Cir. 2015)), Garner has been sentenced for this conviction

       *We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 16-2511                                                                            Page 2

three times already. This appeal concerns his second resentencing, at which the district
judge imposed a 151-month prison sentence for the drug crimes and a consecutive 60-
month prison term for his § 924(c) conviction. The district judge, in accordance with our
decision in United States v. Roberson, 474 F.3d 432, 436–37 (7th Cir. 2007), decided on the
151-month term independently from the mandatory 60-month term under § 924(c).

       After Garner’s third resentencing, the Supreme Court clarified that a district
court may consider the mandatory consecutive term under § 924(c) when deciding what
sentence to impose for the underlying crime. Dean v. United States, 137 S. Ct. 1170 (2017).
Because this holding supersedes Roberson, the parties agree that Garner must be
resentenced so that the district court can fashion an overall prison sentence that
accounts for both convictions.

       Before ordering a remand under Dean, however, we must ask whether the record
suggests that the district judge might have chosen a different sentence knowing he had
the discretion to offset the term of imprisonment for the predicate crimes against the
consecutive term mandated by § 924(c). See United States v. Wheeler, 857 F.3d 742, 745
(7th Cir. 2017). But if our holding in Roberson did not cause the judge to impose a longer
total prison sentence than he otherwise would have, there is no need to remand. We
decided Wheeler after the parties filed their briefs, so neither addresses this question.

        In Wheeler, it was “inconceivable” that the judge, who imposed a prison sentence
for the predicate crime that was far above the guidelines range, would have reduced the
sentence but for Roberson. 857 F.3d at 745. In this case, by contrast, it is possible that the
district judge believed he had to choose the sentence for the predicate drug crimes
without reference to the sentence under § 924(c). The judge noted Garner’s good
behavior in prison and said that “there is every bit of a chance that you’re done with the
criminal law.” The judge then imposed concurrent sentences at the lowest end of the
guidelines range, 151 months, and stated: “[T]hen you will get the 60 months beyond
that and that will be the total of your sentence.” The judge’s remarks and his selection
of concurrent prison sentences at the bottom end of the guidelines range imply that he
might have imposed a lower overall sentence had he known he could consider the
convictions holistically.

       The case must be remanded for resentencing pursuant to Dean.

                                                             VACATED and REMANDED.
