                            UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




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

                                Argued April 3, 2006
                               Decided April 14, 2006

                                       Before

                   Hon. FRANK H. EASTERBROOK, Circuit Judge

                   Hon. ILANA DIAMOND ROVNER, Circuit Judge

                   Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 05-4217

UNITED STATES OF AMERICA,                     Appeal from the United States District
    Plaintiff-Appellee,                       Court for the Northern District of
                                              Indiana, Hammond Division.
      v.
                                              No. 03 CR 25
CLIFTON DUNN,
     Defendant-Appellant.                     Rudy Lozano,
                                              Judge.


                                     ORDER


        The Government filed a nine-count indictment against defendant-appellant
Clifton Dunn and two co-defendants on March 5, 2003, alleging violations on Dunn’s
part of 21 U.S.C. § 841(a)(1) (distribution of controlled substances), 18 U.S.C. §
922(g)(1) (felon in possession of firearm), and 18 U.S.C. § 1512(b)(1) (obstruction of
justice). Dunn appeals on the basis of five alleged errors in his sentencing for
distribution of crack cocaine. For the reasons discussed below, we affirm the judgment
of the district court.
No. 05-4217                                                                      Page 2



                                 I. BACKGROUND
       Clifton Dunn was a long-term distributor of narcotics until his indictment in
2003. Prior to his indictment, the Government had arranged several purchases of
crack cocaine from Dunn through a confidential informant. Federal agents had also
conducted a warranted search of Dunn’s apartment and recovered a .40 caliber
handgun and a shotgun.
      Initially, Dunn entered a plea of not guilty and both sides prepared for trial.
After a jury had been selected and both sides had made opening statements, Dunn
decided to change his plea to guilty. He pled guilty to Counts 1, 2, 3, and 5 of the
Indictment, the drug distribution and firearms charges. At his sentencing hearing,
Dunn’s former associate in his cocaine dealings, Antuan Townsend, testified. The
Government also introduced the grand jury testimony of David Payton, an informant
who was Dunn’s former cocaine customer. Payton testified before the grand jury that
Dunn had discovered the identity of the Government’s confidential informant and had
requested Payton’s assistance in luring the confidential informant to a location where
he would be murdered. Payton also identified the guns that Dunn possessed.
      On the basis of Dunn’s guilty plea and the evidence introduced at his sentencing
hearing, Judge Lozano concluded that Dunn’s total offense level under the United
States Sentencing Guidelines was 42 and that he fell in criminal history category IV.
His advisory Guidelines range was thus 360 months to life. Judge Lozano sentenced
him to concurrent terms of 360 months for Counts 1, 2, and 3, as well as a concurrent
term of 120 months for Count 5, on October 26, 2005. The court also ordered eight
years of supervised release upon Dunn’s release from imprisonment.


                                   II. ANALYSIS
A.    Type and Quantity
       We reject Dunn’s challenges to the district court’s findings that the substance
in question was crack cocaine and that he was responsible for distributing more than
500 grams. Dunn’s only argument is that Judge Lozano erred in crediting the
testimony of Townsend in making these findings, as evidenced by alleged
inconsistencies in Townsend’s testimony. We review the district court’s factual
conclusions as to drug type and quantity for clear error. See United States v. Delatorre,
406 F.3d 863, 866 (7th Cir. 2005) (“Drug quantity and whether uncharged offenses are
relevant conduct are questions of fact, which before Booker we reviewed for clear error,
and still do”) (internal citations omitted); United States v. Parker, 245 F.3d 974, 977
(7th Cir. 2001) (“We review the district court's drug type determination for clear
error”).
No. 05-4217                                                                       Page 3

       As Dunn’s counsel conceded at oral argument, he faces a “huge hurdle” in
demonstrating that this court should reverse the district court’s credibility findings.
See United States v. Blalock, 321 F.3d 686, 689 (7th Cir. 2003) (“we defer to the district
court’s determination of witness credibility, which can virtually never be clear error”)
(quoting United States v. Noble, 246 F.3d 946, 953 (7th Cir. 2001)). Here, Dunn fails
to surmount this hurdle as he only alleges minor inconsistencies in Townsend’s
testimony that do not undermine the district court’s findings as to drug type and
quantity. In concluding that the drug involved was crack cocaine, the district court
relied on multiple witnesses with personal knowledge, including Dunn’s partner and
one of his customers. The court also explained at least three different methods by
which it could logically conclude, based on the available evidence, that Dunn was
responsible for more than 500 grams of crack cocaine. Thus, Dunn’s type and quantity
arguments fail.


B.    Obstruction of Justice Enhancement
       We also affirm the imposition of a two-level enhancement for obstruction of
justice. See U.S.S.G. § 3C1.1. The obstruction of justice enhancement was based
primarily on Payton’s grand jury testimony, which implicated Dunn in a plot to murder
a confidential informant. This court has observed that “a sentencing judge may
appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind
of information he may consider, or the source from which it may come . . . [and] without
regard to the rules of evidence.” United States v. Hankton, 432 F.3d 779, 789 (7th Cir.
2005) (quoting United States v. Lemmons, 230 F.3d 263, 270 (7th Cir. 2000) (quoting
U.S.S.G. § 6A1.3)) (internal quotation marks omitted). The information the district
court considers, however, must have “sufficient indicia of reliability to support its
probable accuracy.” See United States v. Cleggett, 179 F.3d 1051, 1054 (7th Cir. 1999).

       Here, the district court relied exclusively upon transcript excerpts from Payton’s
grand jury testimony, and Payton did not testify at Dunn’s sentencing hearing. We
have previously questioned the use of testimony which has “not been subjected to
adversarial testing” in making sentencing determinations. See United States v. Jones,
371 F.3d 363, 369 (7th Cir. 2004). However, in this case Payton’s testimony was
corroborated by the discovery of the guns Dunn intended to use to murder the
confidential informant as well as the existence and identity of the confidential
informant. The evidence thus had sufficient indicia of reliability. Although live
testimony from a witness like Payton might be preferable, given these facts, we do not
find clear error in the district court’s decision to apply an enhancement for obstruction
of justice.
No. 05-4217                                                                       Page 4

C.    Acceptance of Responsibility
      Dunn’s argument that the district court erred in denying him a two-level
adjustment for acceptance of responsibility is rejected. The Sentencing Guidelines
allow for a discretionary adjustment “[i]f the defendant clearly demonstrates
acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a). Our inquiry is
limited to the question of whether the district court committed clear error in declining
to reduce Dunn’s offense level for acceptance of responsibility. United States v.
Gilbertson, 435 F.3d 790, 798 (7th Cir. 2006) (“An acceptance of responsibility
determination is a factual finding that we review for clear error”).
       The first obstacle barring a finding of clear error is our precedent dictating that
“[a] defendant whose sentence was properly enhanced for obstruction of justice is
presumed not to have accepted responsibility.” United States v. Davis, No. 05-2489, ---
F.3d ----, 2006 WL 799184 at *5 (7th Cir. Mar. 30, 2006) (citing United States v. Partee,
301 F.3d 576, 580-81 (7th Cir. 2002)). As discussed above, the district court did not err
in concluding that Dunn’s sentence should be enhanced for obstruction of justice. The
second obstacle is that we have refused to find clear error for such a denial when the
defendant allowed the case to proceed to jury selection before pleading guilty. See
United States v. Galbraith, 200 F.3d 1006, 1016 (7th Cir. 2000); see also United States
v. Ewing, 129 F.3d 430, 436 (7th Cir. 1997) (affirming denial of acceptance of
responsibility where defendant did not enter a guilty plea until the last business day
before the trial was to begin). The reason for these holdings is that the purposes of
Section 3E1.1(a) are to “spare the prosecution the risk and expense of trial” and to
reward “genuine contrition (which implies a reduced risk of recidivism).” United States
v. Woodard, 408 F.3d 396, 397 (7th Cir. 2005). Dunn allowed the case to proceed
significantly farther than the defendants in Galbraith and Ewing—before he changed
his plea, the jury was selected and sworn, and both sides had made opening
arguments. The cost of these proceedings was not insubstantial. Thus, Dunn cannot
demonstrate that the district court committed clear error in denying him a reduction
in his offense level for acceptance of responsibility.


D.    Ex Post Facto Clause
       Finally, Dunn argues that his sentencing violated the ex post facto clause of the
United States Constitution because, after the Supreme Court’s decision in United
States v. Booker, 543 U.S. 220 (2005), he was exposed to a higher sentence than was
available at the time he committed his crime. “The ex post facto clause prohibits the
retrospective application of criminal laws that materially disadvantage a
defendant.” Flores-Leon v. I.N.S., 272 F.3d 433, 440 (7th Cir. 2001) (emphasis added);
U.S. CONST. art. I, § 9, cl. 3. Though the ex post facto clause is typically applied to
statutes, it is also applicable to certain judicial decisions. See Bouie v. City of
Columbia, 378 U.S. 347, 353-54 (1964).
No. 05-4217                                                                      Page 5

        Dunn does not have standing to raise this issue. “[A]t an irreducible minimum,
Art. III requires the party who invokes the court’s authority to show that he personally
has suffered actual or threatened injury as a result of the putatively illegal conduct
. . . and that the injury can be traced to the challenged action and is likely to be
redressed by a favorable decision.” Valley Forge Christian College v. Americans United
for Separation of Church and State, 454 U.S. 464, 472 (1982) (internal citations and
quotation marks omitted); cf. United States v. Turechek, 138 F.3d 1226, 1229 (8th Cir.
1998) (defendant lacked standing to challenge the constitutionality of Sentencing
Guidelines provision that was not used to calculate his sentence); United States v.
Zavala-Serra, 853 F.2d 1512, 1516-17 (9th Cir. 1988) (defendant had no standing to
challenge five-year mandatory minimum provision in 21 U.S.C. § 841(b)(1)(B) where
he had received a ten year sentence). It is undisputed that Dunn’s sentence fell within
the Guidelines (at the bottom of the range, in fact). By making the Guidelines advisory,
Booker allows a sentencing judge to impose a sentence that is lower or higher than the
Guidelines range. Had the district court chosen to impose a sentence that was higher
than the Guidelines range, Dunn would have standing to raise a claim that he had
been subjected to an unconstitutional sentence. But here, it would have been
impossible for the district court to impose a higher sentence because the top of the
Guidelines range was life imprisonment.
       Regardless, as acknowledged by Dunn, his argument that his sentencing
violated the ex post facto clause of the United States Constitution has already been
rejected by this court, as well as four other circuits. See United States v. Jamison, 416
F.3d 538, 539 (7th Cir. 2005) (rejecting “an ex post facto claim based on the remedial
holding in Booker.”); United States v. Dupas, 419 F.3d 916, 919-21 (9th Cir.2005);
United States v. Lata, 415 F.3d 107, 110-11 (1st Cir.2005); United States v. Scroggins,
411 F.3d 572, 576 (5th Cir. 2005); United States v. Duncan, 400 F.3d 1297, 1308 (11th
Cir.2005). The rationale of our holding in Jamison was that the defendant had fair
warning of the maximum sentence for his crime by virtue of the sentencing statute.
See Jamison, 416 F.3d at 539. Dunn presents no reasons to disturb our holding in
Jamison, and he cites no precedent supporting his theory. Thus, his ex post facto
clause argument is rejected.


                                 III. CONCLUSION
      For the foregoing reasons, the judgment of the district court is AFFIRMED.
