In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2945

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

REGINALD PALMER,

Defendant-Appellant.



Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:99-30228-01-GPM--G. Patrick Murphy, Chief Judge.


Argued March 7, 2001--Decided March 27, 2001/*



  Before DIANE P. WOOD, EVANS, and WILLIAMS, Circuit
Judges.

  Per Curiam. Reginald Palmer was convicted on
three counts of distributing crack within 1,000
feet of a playground. He appeals, challenging
only the very lengthy prison sentence--475
months--he received.

  In May and June 1998, Palmer sold small amounts
(.9 grams, and 1.9 grams twice) of crack to
Keenan Deal who was--much to Palmer’s later
surprise--cooperating with authorities. The sales
occurred within 1,000 feet of Virginia Park, an
East St. Louis, Illinois, playground. A
superseding indictment charged Palmer with three
counts of distributing crack, 21 U.S.C. sec.
841(a)(1), and three parallel counts of doing the
deals within 1,000 feet of a playground, id. sec.
860(a). Palmer entered guilty pleas to all six
counts without a plea agreement, but because the
distribution counts were lesser-included offenses
of the more serious "playground" counts, see
Williams v. United States, 150 F.3d 639 (7th Cir.
1998), the district court entered judgment only
on the latter.
  In preparing the presentence investigation
report (PSR), the probation officer calculated
Palmer’s relevant conduct using information from
Deal and from federal agents who interviewed
several sources, including Palmer’s former
neighbor, Robert Branscomb, and Warren Griffin,
a "governor" of the Gangster Disciples gang. The
probation officer concluded that Palmer’s
relevant conduct totaled 353 grams/1 of crack:
98 grams from Deal, 14 grams from Branscomb, and
241 grams from Griffin. Palmer objected but, for
the most part, provided only conclusory responses
denying certain transactions or objecting to
particular witness statements. He did, however,
specifically object to any drugs involving
Griffin, arguing that those activities were
unreliable and too remote in time to be included
in his relevant conduct under the sentencing
guidelines.

  At the sentencing hearing, Deal described five
previous occasions when he bought 1.7 grams of
crack from Palmer. He also testified about
several more ounces of crack he saw Palmer
carrying during those transactions. Branscomb
testified that Palmer sold crack outside
Branscomb’s home "about every day during the year
of 1998 and 1999." Finally, the government called
a deputy U.S. marshal who had previously
interviewed Griffin about his contacts with
Palmer during 1996. Griffin, according to the
marshal, had "taught [Palmer] the drug trade."
Griffin allegedly told the marshal he received
two ounces of crack from Palmer and had seen him
in possession of seven or eight ounces of crack
that Palmer and a friend had cooked from powder.

  Palmer offered no direct evidence to support
his objections to the PSR. He did, however, argue
that a substantial portion of the relevant
conduct amount, particularly the quantity
attributable to him by reason of Griffin’s
statements, was based on hearsay and should not
be included in the final calculation. Palmer
suggested that the total amount of crack was only
135 grams, not 353.2, although it is unclear how
he arrived at this calculation. The district
judge determined:

There is a substantial, rational basis for
attributing more than 150 grams to the defendant.
Now, the Government has an exact 353.2 grams. I
am not prepared to say that they are exactly
correct, but I am prepared to say that there is
substantially more than 150 grams that must be
attributed to the defendant under the evidence
that is before me.

  We review for clear error the district court’s
calculation of the drug quantity attributed to
Palmer as relevant conduct. United States v.
Huerta, 239 F.3d 865, 875 (7th Cir. 2001). In
doing so, we refrain from second-guessing the
district judge, United States v. McEntire, 153
F.3d 424, 431 (7th Cir. 1998), and must affirm
unless we are left with a "definite and firm
conviction that a mistake has been committed,"
Huerta, 239 F.3d at 875 (internal quotations and
citation omitted).

  Palmer first argues that the district court
failed to make a specific finding of drug
quantity; the judge’s determination of "more than
150 grams" is legally insufficient, Palmer
suggests. The government argues that Palmer
forfeited this argument, and others, by failing
to properly object at sentencing, and accordingly
our review should only be for plain error. See
Fed. R. Crim. P. 52(b); United States v. Krankel,
164 F.3d 1046, 1055 n.3 (7th Cir. 1998). We
reject this argument and find the defendant’s
objections adequate to trigger clear error,
rather than plain error, review.

  Recognizing the importance of drug quantity in
sentencing, we require that a sentencing court
make an explicit drug-quantity finding and
explain how it arrived at the sentence. McEntire,
153 F.3d at 435. The district court here
specified only "more than 150 grams," but a more
exact sum was not necessary given that anything
between 150 and 500 grams would have resulted in
the same sentencing range. But is the "more than
150 grams" finding supportable?

  This case presents a situation we have been
encountering with increased regularity. A
defendant pleads guilty to dealing in small
amounts of crack--here, Palmer sold only a total
of 4.7 grams to Deal in the three transactions
specifically charged in the indictment--but then
the presentence report lists huge amounts of
crack as "relevant conduct," which dramatically
ratchet up the resting point on the sentencing
guideline grid. We conclude here that the 98
grams attributed to Palmer through Deal and the
14 grams attributed to him through Branscomb,
though dwarfing the amounts involved in the
actual sales, are supportable based on our review
of this record. But we have serious misgivings
about the huge amount, 241 grams, piled on Palmer
through a U.S. marshal’s recitation of a
statement given to him by Griffin, who did not
personally testify (he took the Fifth) at the
sentencing hearing. Our doubts about Griffin’s
evidence, inaccurately presented to us by the
government as Griffin’s "testimony," gives us
great pause even if only a portion of it is
needed to move Palmer over 150 grams. First, the
matters related by Griffin are remote in time--
over 2 years old--to the sales to Deal that form
the basis for the counts of conviction. Second,
the district court did not make any specific
findings as to Griffin’s reliability, which
probably is understandable given the fact that
the way his "evidence" was presented affords no
basis for determining that what he told the
marshal was true or accurate.

  Accordingly, given our serious concerns about
the Griffin evidence, we determine that a finding
of "more than 150 grams" on the basis of this
record is clearly erroneous. The record, however,
does support, for relevant conduct purposes, a
sentence within the range of 50 to 150 grams of
crack. Accordingly, the sentence is VACATED and the
case REMANDED to the district court for
resentencing. At resentencing, no further
proceedings will be necessary, other than an
adjustment of the sentence, if the district court
elects to sentence Palmer on the basis of 50 to
150 grams. To go beyond that level, more
proceedings regarding Griffin and a better record
on the reliability of the information he offered
will be required.



/* This appeal was originally resolved in an
unpublished order of March 27, 2001.
Subsequently, we granted a request to convert the
order to a published opinion.

/1 We have rounded the amounts off.
