                              UNPUBLISHED ORDER
                           Not to be cited per Circuit Rule 53



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

                              Argued March 30, 2006
                               Decided June 6, 2006


                                        Before

                          Hon. JOEL M. FLAUM, Chief Judge

                          Hon. DANIEL A. MANION, Circuit Judge

                          Hon. ANN CLAIRE WILLIAMS, Circuit Judge


Nos. 05-2190 & 05-2418


UNITED STATES OF AMERICA,                        Appeals from the United
              Plaintiff-Appellee,                States District Court for the
                                                 Western District of Wisconsin.
      v.
                                                 No. 04-CR-107-S
BRYAN K. SAM, SR. and
JENNIFER L. LAMORIE,                             John C. Shabaz,
           Defendants-Appellants.                Judge.



                                     ORDER

       Defendant Bryan Sam, Sr. was charged with conspiring to distribute and possess
cocaine powder and cocaine base. He pleaded guilty to certain charges and was
sentenced to 210 months’ imprisonment and five years of supervised release, which
included the condition that Sam “participate in substance abuse treatment and testing
as directed by the supervising United States probation officer.”
      Defendant Jennifer Lamorie, Sam’s girlfriend, was charged in a single count
with distributing approximately 1/10th of a gram of cocaine base to a confidential
Nos. 05-2190 & 05-2418                                                             Page 2


police source. Lamorie’s presentencing report (PSR), however, attributed her with
relevant conduct pertaining to the distribution of 84 grams of cocaine. Specifically,
based upon information obtained from several sources, the PSR identified Lamorie as
having been extensively involved with Sam’s cocaine operation. Her participation
included traveling on at least six trips with Sam to Minnesota to obtain cocaine,
transporting large amounts of cash for Sam, and frequently answering the door to
cocaine customers and handing them cocaine. In addition, Sam’s sister testified that
Lamorie observed Sam cooking the cocaine in their apartment.
      Lamorie pleaded guilty to the charged conduct, but objected to the large ratio
(approximately 800-to-1) between the amount of cocaine listed as “relevant conduct”
(84 grams) and amount charged (.106 grams). The district court nonetheless
considered the relevant conduct and sentenced Lamorie to 108 months’ imprisonment.
Sam and Lamorie now appeal their sentences.
       The disposition of Sam’s appeal is straightforward. 18 U.S.C. § 3583(d) requires
that the district court determine the number of drug tests to which a defendant must
submit while on supervised release. This responsibility remains with the district court
and it cannot be delegated. See United States v. Melendez-Santana, 353 F.3d 93, 102-
103 (7th Cir. 1998). The government concedes that the district court’s delegation to the
probation officer on this issue was improper. We therefore remand to the district court
the limited issue of determining how many drug tests Sam must take while on
supervised release.
       Lamorie contends that the district court erred in relying upon the relevant
conduct amount of 84 grams for sentencing purposes. Lamorie’s counsel assured us at
oral argument that Lamorie is not challenging the district court’s underlying factual
determination that she was involved with the distribution of at least this amount of
cocaine. Instead, Lamorie’s sole argument is that the approximate 800-to-1 ratio of
unconvicted relevant conduct to convicted conduct is per se unreasonable.
       Lamorie principally relies on our decision in United States v. Spiller to support
her argument that a sentence based upon an 800-to-1 ratio is unreasonable. See
United States v. Spiller, 261 F.3d 683, 691 (7th Cir. 2001). Spiller provides little direct
support for Lamorie. In Spiller, we upheld a sentence that was based on a 5000-to-1
ratio of relevant to charged conduct, which was a significantly greater disparity than
the one Lamorie complains of here. See id. Nonetheless, the concerns that Lamorie
raises, and which we discussed in Spiller, have troubled us before, and we have
repeatedly admonished prosecutors “not to indict defendants on relatively minor
offenses and then seek enhanced sentences later by asserting that the defendant has
committed other more serious crimes for which, for whatever reason, the defendant
was not prosecuted and has not been convicted.” United States v. Fischer, 905 F.2d
140, 142 (7th Cir.1990) (per curiam); see also United States v. Morrison, 207 F.3d 962,
968 (7th Cir. 2000); United States v. Bacallao, 149 F.3d 717, 721 (7th Cir. 1998); United
Nos. 05-2190 & 05-2418                                                                     Page 3


States v. Duarte, 950 F.2d 1255, 1263 (7th Cir. 1991). Indeed, we have expressed long-
standing concern over the so-called “aggregation rule,” which “grants the government
a fearsome tool in drug cases” by permitting prosecutors to charge a defendant with
only minor-quantity drug crimes, which may be easily proven, but then seek to
enhance the sentence dramatically through relevant conduct, which requires only proof
by a preponderance of the evidence at sentencing. Duarte, 950 F.2d at 1263.

       Despite our concerns with this dubious prosecutorial practice, we have not yet
stricken a sentence solely on the basis that the ratio of relevant conduct-based drug
amounts is excessively high in comparison to the charged amount. Instead, we have
found violations of the aggregation rule only when the government has failed to
establish that the relevant conduct was part of the same course of conduct or common
scheme or plan as the convicted offense. See, e.g., Bacallao, 149 F.3d at 721; Duarte,
950 F.2d at 1263-64. But here Lamorie does not challenge the sufficiency of the district
court’s factual findings, and this may be because there is compelling evidence in the
record that Lamorie was indeed extensively involved in Sam’s cocaine operation. In
addition, the government contends (and Lamorie does not argue otherwise) that the
additional information pertaining to Lamorie’s involvement in the distribution of
greater quantities of drugs did not develop until an unspecified period “late” in the
case.1

       In any event, the circumstances of this case do not suggest that the government
was engaging in the type of conduct here that has concerned us in prior cases, i.e.,
bootstrapping a high sentence via uncharged conduct that was either unrelated to the
convicted conduct or based upon a thin reed of evidence that could barely withstand a
preponderance of the evidence standard, much less beyond a reasonable doubt. Cf.
Bacallao, 149 F.3d at 721; Duarte, 950 F.2d at 1263-64. And although there may come
a time when a sentence is deemed unreasonable in the post-Booker sentencing regime
based solely on a high ratio of relevant to charged conduct, we decline to find that this
case meets that threshold.
       Accordingly, we VACATE the judgment of the district court with respect to Sam
on the limited basis articulated in this order and remand to the district court for
further proceedings consistent with this order, and we AFFIRM the judgment of the
district court with respect to Lamorie.




       1
          The government, however, does not explain why a superceding indictment was not issued,
which might have been the better course, although, as the government noted at oral argument, it may
also have exposed Lamorie to an even higher sentence based on a higher base offense level.
