                               In the

    United States Court of Appeals
                 For the Seventh Circuit
No. 12-1666

UNITED STATES OF AMERICA,
                                                  Plaintiff-Appellee,

                                 v.


TONY CURRIE,
                                              Defendant-Appellant.

        Appeal from the United States District Court for the
         Southern District of Indiana, Indianapolis Division.
       No. 1:10-cr-0093-SEB-KPF — Sarah Evans Barker, Judge.


   ARGUED OCTOBER 25, 2012 — DECIDED JANUARY 7, 2014


   Before FLAUM, MANION, and ROVNER, Circuit Judges.
    ROVNER, Circuit Judge. Defendant-Appellant Tony Currie
pleaded guilty to charges that he conspired to distribute 50
grams or more of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and 846, and possessed a firearm following a
felony conviction, in violation of 18 U.S.C. § 922(g)(1). The
district court ordered him to serve a prison term of 121 months,
at the low end of the range advised by the Sentencing Guide-
lines and just above what the court and the parties believed to
2                                                   No. 12-1666

be the statutory minimum prison term of ten years. Currie
appeals, contending that the district court erroneously denied
his motion to suppress evidence without conducting an
evidentiary hearing and that its choice of sentence was
premised on its mistaken understanding that the new, lower
mandatory minimums specified by the Fair Sentencing Act of
2010 did not apply at Currie’s sentencing. We find no error in
the district court’s decision to deny Currie’s motion to sup-
press without an evidentiary hearing. As to his sentence, we
order a limited remand for purposes of ascertaining whether
the district court would be inclined to sentence Currie differ-
ently knowing that Currie is subject to the lower statutory
minimum term of five years as provided by the FSA
                               I.
    Following his own arrest in February 2010 for possession of
distribution-sized quantities of cocaine and crack cocaine, an
unnamed individual agreed to cooperate with the authorities
and lead them to his supplier, Currie. The confidential source
(“CS”) proceeded to make a series of controlled, recorded
purchases of crack cocaine from Currie. These purchases led to
the issuance of a search warrant for Currie’s residence; the
ensuing search in turn produced evidence of a loaded revolver
in Currie’s home.
    The first of the controlled buys took place on March 4, 2010.
After a series of monitored phone calls to arrange the purchase
of 1.5 ounces of crack cocaine from Currie, the CS met Currie
at a residence in Anderson, Indiana. The CS was wired with
equipment which produced a video and audio recording of the
encounter. The CS followed Currie into the kitchen, where
No. 12-1666                                                 3

Currie presented him with a plastic bag containing roughly 91
grams of cocaine base. At Currie’s request, the CS proceeded
to re-cook the cocaine base; Currie then re-weighed the
substance on a digital scale (it now weighed 96 grams) and re-
packaged it for the CS. The CS paid Currie the agreed-upon
price and left the residence.
    The CS subsequently engaged in two more controlled
purchases of crack cocaine from Currie on March 12 and March
18, 2010. These transactions were not recorded on video, but
audio recordings were made in both instances. Moreover, as
with the March 4 purchase, both transactions were preceded by
recorded telephone calls in which the CS arranged to make the
purchases from Currie.
    On May 10, 2010, the government sought and obtained a
search warrant for Currie’s residence in Indianapolis. The
affidavit submitted in support of the warrant request noted
that the government’s CS had made three controlled purchases
of cocaine from Currie in March. The affidavit reported the
CS’s prior criminal history, noted that the CS had been
cooperating with the government since February 2010, and
indicated that much of the information supplied by the CS had
been corroborated. The CS’s three transactions with Currie
were then described in detail, along with the fact that the
purchases were both recorded by the CS and preceded by
consensually monitored telephone calls between the CS and
Currie. The agent who prepared the affidavit indicated that he
had reviewed the video recording of the March 4 transaction.
He described the actions depicted on that video and averred,
4                                                    No. 12-1666

based on his training and experience, that the substance that
Currie handed to the CS was, in fact, cocaine base.
    The search warrant was executed on May 11, 2010. Upon
entering the residence, agents found Currie in his bedroom,
attempting to hide a loaded revolver in the closet. Various
indicia of drug trafficking were also found in the residence.
    The discovery of the gun led to the inclusion of a felon-in-
possession charge along with the five narcotics-related charges
in the indictment that the grand jury returned against Currie
on June 8, 2010. Currie subsequently moved to suppress the
results of the search on multiple grounds. As relevant here, he
contended that the affidavit submitted in support of the
warrant application was insufficient, absent the CS’s own
testimony, to establish the CS’s reliability and thus to establish
probable cause for the search. Currie also contended that the
CS had provided misleading information to law enforcement
officers which had made its way into the affidavit. Pursuant to
Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978), Currie
asked the district court to conduct an evidentiary hearing on
this second contention.
    The district court denied the motion to suppress without a
hearing. The court described Currie’s attack on the sufficiency
of the warrant affidavit vis-à-vis the CS’s credibility as “a non-
starter,” given that the CS’s transactions with Currie had been
both monitored and recorded, and the agent who prepared the
affidavit described the steps taken in that regard as well as
what he saw and heard in reviewing the recordings. R. 73 at 7.
Consequently, “[t]here was no reliance placed on the CS’s
independent, unilateral, unsupervised actions or statements,”
No. 12-1666                                                      5

and no need for additional information (or live testimony from
the CS) to document the CS’s reliability and to establish
probable cause for the search warrant. R. 73 at 7. “We find the
Affidavit to be both detailed and thorough, with no critical
omissions or unsubstantiated, unreliable averments.” R. 73 at
8. The court saw no need for an evidentiary hearing on Currie’s
additional claim that the affidavit contained misleading
information. “There is no evidence that [the agent] ‘knowingly,
intentionally, or with a reckless disregard for the truth, made
false statements in the warrant affidavit and that the false
statements were necessary for the judicial officer to conclude
that probable cause existed.’” R. 73 at 9 (quoting United States
v. Norris, 640 F.3d 295, 300–01 (7th Cir. 2011)).
    Currie subsequently decided to change his plea while
reserving his right to appeal the adverse ruling on his motion
to suppress. As we indicated at the outset, Currie pleaded
guilty to the narcotics conspiracy and felon-in-possession
charges. Although Currie was sentenced after the enactment of
the Fair Sentencing Act of 2010, 124 Stat. 2372 (the “FSA”), the
parties, the probation officer, and the district court, in accord
with this court’s decision in United States v. Fisher, 635 F.3d 336
(7th Cir.), reh’g en banc denied, 646 F.3d 429 (7th Cir. 2011),
vacated & remanded sub nom. Dorsey v. United States, 132 S. Ct.
2321 (2012), assumed that the more favorable statutory
penalties specified by the FSA did not apply at Currie’s
sentencing because his offenses were complete before the FSA
took effect; therefore they assumed that Currie was subject to
a minimum statutory prison term of ten years. The court
ordered Currie to serve a term of 121 months, a sentence at the
low end of the range advised by the Sentencing Guidelines and
6                                                     No. 12-1666

one month above what the court believed was the statutory
minimum.
                                II.
    Currie’s contention that the affidavit is on its face inade-
quate is, as the district court observed, going nowhere. The
contents of a warrant affidavit will establish probable cause to
search if, based on the totality of the circumstances, the
affidavit presents evidence supporting a reasonable belief that
the search of the subject premises will produce evidence of a
crime. Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332
(1983). Currie’s attack on the sufficiency of the affidavit focuses
on the credibility of the CS: Currie maintains that the affidavit
does not supply enough information to establish the CS’s
reliability as an informant. See, e.g., United States v. Searcy, 664
F.3d 1119, 1122 (7th Cir. 2011) (outlining factors which inform
assessment of informant’s credibility). But in this case, the key
information set forth in the affidavit had to do with the three
controlled purchases of cocaine from Currie. Those transac-
tions were both monitored and recorded by the authorities, so
the story as to what occurred did not rest on the CS’s account
alone. Indeed, the agent who prepared the affidavit had
reviewed the audiovisual recording of the first of the sales and
described what the recording showed: that Currie handed a
bag of what appeared to be crack cocaine to the CS, had the CS
re-cook it, and then repackaged the cocaine for the CS. That
recording, and the audio recordings of the other two sales,
supplied all the corroboration of the CS that was necessary.
The affidavit was therefore sufficient on its face, and there was
no need for the magistrate judge who issued the search
No. 12-1666                                                       7

warrant to hear testimony from the CS before determining that
probable cause existed to search Currie’s residence.
    Nor was it necessary for the court to convene a Franks
hearing based on Currie’s assertion that the warrant affidavit
repeated false or misleading information supplied by the CS.
A court must convene a Franks hearing when the defendant
makes a substantial preliminary showing that authorities
deliberately or recklessly made material misrepresentations in
the affidavit used to procure the search warrant. 438 U.S. at
155–56, 98 S. Ct. 2676; see also, e.g., United States v. Harris, 464
F.3d 733, 738 (7th Cir. 2006) (defendant is entitled to Franks
hearing when he shows that (1) warrant affidavit contained
materially inaccurate information, (2) authorities knew of or
recklessly disregarded the inaccuracy, and (3) purportedly
inaccurate statement was necessary to the finding of probable
cause). In this case, Currie never identified any particular
aspect of the warrant affidavit that was false or misleading (let
alone deliberately or recklessly so); he instead sought a Franks
hearing based solely on a generalized allegation that the CS
provided misleading information to investigators which made
its way into the affidavit. Indeed, even on appeal, Currie has
failed to identify any averment in the warrant affidavit which
was false or misleading. Under these circumstances, the court
committed no error in denying the motion to suppress without
an evidentiary hearing. See, e.g., United States v. Johnson, 580
F.3d 666, 671 (7th Cir. 2009) (“Conclusory, self-serving state-
ments are not enough to obtain a Franks hearing.”) (citing
Franks, 438 U.S. at 171, 98 S. Ct. at 2684).
8                                                   No. 12-1666

    We turn to the matter of Currie’s sentence. Currie pleaded
guilty to conspiring to distribute 50 or more grams of crack
cocaine. At the time of his offense, committed in the spring of
2010, that quantity of crack cocaine triggered a statutory
minimum prison term of ten years. By the time Currie was
sentenced in March 2012, the Fair Sentencing Act of 2010 had
lowered the statutory minimum term applicable to someone in
Currie’s position to five years. However, given our holding in
Fisher, 635 F.3d 339–40, that the new statutory minimums did
not apply to defendants whose offenses predated the Act, the
parties and the court assumed that Currie was still subject to
the ten-year minimum. Several months after Currie was
sentenced to a term of 121 months, the Supreme Court held in
Dorsey that the FSA applies to any defendant sentenced after its
effective date, even if the offense was committed before the
Act’s enactment. Dorsey, 132 S. Ct. 2321.
   We now know that Currie was subject to a statutory
minimum term of five years and not ten years, as the district
court presumed. Although Currie did not preserve an argu-
ment below that the lower minimum term specified by the FSA
applied to him, he contends that the court committed plain
error in deeming him subject to the pre-FSA ten-year minimum
and that he is, consequently, entitled to resentencing. See Fed.
R. Crim. P. 52(b). Given the Supreme Court’s decision in
Dorsey, there is no dispute that the district court committed an
error which is, in retrospect, plain in the sense of being
obvious. See Henderson v. United States, 133 S. Ct. 1121, 1127–28
(2013). The disputed issue is whether Currie was prejudiced by
the error, in the sense that he might have received a lesser
sentence had the court realized he was not subject to the ten-
No. 12-1666                                                       9

year minimum. See United States v. Olano, 507 U.S. 725, 734–35,
113 S. Ct. 1770, 1777–78 (1993); United States v. Paladino, 401
F.3d 471, 483 (7th Cir. 2005). Currie contends that because the
court, in sentencing him to a 121-month term, remarked that it
was bound by the ten-year minimum, there is every reason to
believe that his sentence was the product of the court’s
mistaken belief as to the statutory minimum. The government,
on the other hand, emphasizes the court’s additional remark
that the 121-month term was a fair sentence, an observation
that in its view makes clear the court would have imposed the
same sentence even had it realized that it was not bound by the
statute to impose a minimum term of ten years.
    We take our cue in resolving this dispute from Paladino, 401
F.3d at 483–84. In the wake of the Supreme Court’s decision in
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), which
rendered the Sentencing Guidelines advisory, Paladino estab-
lished our framework for deciding whether a district court’s
mistake in treating the Guidelines as binding constituted plain
error. Paladino recognized that the answer to that inquiry turns
on prejudice. 401 F.3d at 481–84; see also United States v. Lee, 399
F.3d 864, 866 (7th Cir. 2005) (“In order to show plain error the
defendant must establish, among other things, that the error
‘affected substantial rights’—which is to say that it made the
defendant worse off.”). As a reviewing court, we could say that
the error did not prejudice the defendant if it was clear that the
sentencing judge would have imposed the same sentence
absent the error. Paladino, 401 F.3d at 483. The difficulty, as we
recognized, was in determining what the sentencing judge
would have done had he realized he was not bound by the
Guidelines range.
10                                                    No. 12-1666

     [S]entencing is not either-or; it is the choice of a
     point within a range established by Congress, and
     normally the range is a broad one. There are excep-
     tions, notably where the choice is between death and
     life in prison; then, as in Jones v. United States, 527
     U.S. 373, 402–05, 119 S. Ct. 2090 (1999), it may be
     feasible for the appellate court to determine that
     despite the error the choice would have been the
     same. Cf. United States v. Cotton, 535 U.S. 625,
     633–34, 122 S. Ct. 1781 (2002). That is not true here;
     here, unless any of the judges in the cases before us
     had said in sentencing a defendant pre-Booker that
     he would have given the same sentence even if the
     guidelines were merely advisory (which none of the
     judges did say), it is impossible for a reviewing
     court to determine—without consulting the sentencing
     judge (a pregnant qualification, as we are about to
     see)—whether the judge would have done that.
401 F.3d at 482 (emphasis in original). In some number of
cases, we recognized, it will be possible to predict what the
sentencing judge would have done without having to ask, as
when the judge departed below the Guideline range to impose
a sentence at the statutory minimum, or conversely, when she
imposed a sentence at the statutory maximum and remarked
that he would have sentenced the defendant to a longer term
if she could. Id. at 482–83; see also Lee, 399 F.3d at 866–67. Short
of such clues, “[t]he only practical way (and it happens also to
be the shortest, the easiest, the quickest, and the surest way) to
determine whether the kind of plain error argued in these cases
has actually occurred is to ask the district judge.” Paladino, 401
No. 12-1666                                                     11

F.3d at 483. If the judge indicates that she would not have
sentenced the defendant differently had she realized the
Guidelines were not binding, then we would conclude that the
defendant was not prejudiced by the error and we would
proceed to affirm the sentence so long as it was reasonable. Id.
at 484. If, on the other hand, the district court indicated that it
would be inclined to impose a different sentence, that preju-
dice would be established, and we would vacate the judgment
and remand for resentencing. Id.
    Here the district court was similarly mistaken as to the
limits of its sentencing authority. Rather than being bound by
a ten-year statutory minimum, the court was instead bound by
a significantly lower five-year minimum. In assessing whether
Currie was prejudiced by the error, such that he is entitled to
relief under the plain error doctrine, we apply the Paladino
model. See United States v. Maxwell, 724 F.3d 724, 729 (7th Cir.
2013).
     Here, competing inferences can be drawn from the record
as to what the sentencing judge might have done had she
known that she was not bound by the ten-year minimum. This
is the relevant passage from the judge’s remarks at sentencing:
     Everybody agrees, Mr. Currie, that 121 months, even
     though it’s the low point of the guidelines, and it
     pretty much nails the mandatory minimum on the
     head, is a long time. So we can’t pull any punches on
     that. We know that’s the fact, but it seems to be a
     reasonable sentence under the circumstances, not
     only because of what the law requires, but given the
     nature and circumstances of this offense and your
12                                                  No. 12-1666

     prior criminal history, and your problems with
     addiction, your willingness to participate in this
     cocaine conspiracy, your possession of firearms,
     even when you had a prior gun conviction, you had
     a firearm again, and so on.
R. 136 at 26–27. The government construes Judge Barker’s
remark that the 121-month sentence “seems to be a reasonable
sentence under the circumstances” as a signal that she would
have imposed the same sentence even had she realized she was
not bound by the ten-year minimum. Currie, on the other
hand, contends that the judge’s view as to the reasonableness
of a 121-month sentence was necessarily premised on her
mistaken belief that ten years was the minimum sentence she
could impose. Having reviewed the sentencing transcript
ourselves, we cannot say with complete confidence that the
court would have imposed the same sentence regardless of the
statutory minimum.
    As in Paladino, a limited remand is the most prudent way
to resolve all doubt on this question. As the government
concedes, at no time did the district judge actually say that she
would have imposed the same sentence even were there no
ten-year minimum; nor does her choice of sentence otherwise
make that clear in one of the ways we discussed in Paladino or
Lee. The judge did say that the sentence was “a reasonable
sentence under the circumstances, not only because of what the
law requires,” R. 136 at 26 (emphasis ours), but for the other
reasons she articulated; and perhaps by that she meant to say
it was the sentence she would have chosen regardless of any
minimum. But the statutory minimum was necessarily one of
No. 12-1666                                                    13

the circumstances that the judge had to consider in ascertaining
a reasonable sentence. See, e.g., United States v. Lyons, 733 F.3d
777, 784 (7th Cir. 2013). Statutory minima and maxima have an
obvious anchoring effect on the judge’s determination of a
reasonable sentence in the sense that they demarcate the range
within which the judge may impose a sentence. See United
States v. Aguilar-Huerta, 576 F.3d 365, 366 (7th Cir. 2009)
(describing pre-Guidelines sentencing practice). Peugh v. United
States, 133 S. Ct. 2072, 2082–84 (2013), makes this same point
with respect to the Sentencing Guidelines. The Court in Peugh
held that the Constitution’s ex post facto clause is violated when
a court sentences a defendant using a post-offense version of
the Guidelines that produces a higher sentencing range than
the version in effect at the time of the defendant’s crime. In
rejecting the view of this and other courts that the advisory
nature of the Guidelines obviates any ex post facto problem
(because a judge is free in the exercise of her discretion to
impose a sentence outside of the Guidelines range, see United
States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006)), the Su-
preme Court emphasized that the Guidelines still supply the
framework for the sentencing decision: the judge must begin
her analysis with the correctly-calculated Guidelines range,
remain cognizant of the Guidelines throughout the process,
and have a justification for both a deviation from the Guide-
lines range and its extent. 133 S. Ct. at 2083. Thus, even a non-
Guidelines sentence is, in the end, a product of the Guidelines.
Id. This is all the more true when it comes to statutory limits.
And absent an express statement like “This is a reasonable
sentence, and I would have imposed it even without the ten-
year minimum,” see United States v. Foster, 701 F.3d 1142,
14                                                  No. 12-1666

1157–58 (7th Cir. 2012); United States v. Campbell, 503 F. App’x
472, 473–74 (7th Cir. 2013) (nonprecedential decision), it is
difficult to say whether the court would have arrived at the
same sentence had it realized it was bound by a significantly
lower statutory minimum.
    The district judge’s remarks at sentencing give us no
indication that she ever considered the possibility that a lower
statutory minimum might apply to Currie (recall that Currie
did not challenge the applicability of the ten-year minimum
term below), nor do they include an unambiguous statement
to the effect that the judge would have considered the 121-
month sentence it imposed reasonable even if the five-year
minimum specified by the Fair Sentencing Act applied, as we
now know (in hindsight) that it does.
    We therefore order a limited remand so that the district
judge may consider, and state on the record, whether she
would have imposed the same sentence on Currie knowing
that he was subject to a five-year rather than a ten-year
statutory minimum term of imprisonment. We shall retain
jurisdiction over this appeal pending the district court’s answer
to our inquiry.
                     AFFIRMED IN PART and REMANDED.
