                          NONPRECEDENTIAL DISPOSITION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 August 21, 2012
                               Decided September 25, 2013

                                          Before

                            WILLIAM J. BAUER, Circuit Judge

                            MICHAEL S. KANNE, Circuit Judge

                            ANN CLAIRE WILLIAMS, Circuit Judge



No. 10-3051
                                                   Appeal from the United States District
UNITED STATES OF AMERICA,                          Court for the Northern District of
              Plaintiff-Appellee,                  Illinois, Eastern Division.

       v.                                          No. 07 CR 352

CHARLES NEWCOMB,                                   Robert W. Gettleman,
            Defendant-Appellant.                   Judge.




                                         ORDER

    Charles Newcomb pled guilty to one count of distributing a controlled substance in
violation of 21 U.S.C. § 841 (Count One) and one count of theft of government property in
violation of 18 U.S.C. § 641 (Count Two). At his sentencing hearing on August 19, 2010, the
district court found Newcomb responsible for 51.9 grams of crack cocaine. The court also
concluded that Newcomb was a career offender under U.S.S.G. § 4B1.1. The resulting
criminal history of VI yielded an advisory guideline range of 262 to 327 months’
imprisonment. Newcomb argued that the Fair Sentencing Act, signed into law two weeks
No. 10-3051                                                                            Page 2

before his sentencing, applied to him. The district court disagreed. Without the Fair
Sentencing Act, the statutory maximum penalty for Count One was 240 months and for
Count Two was 120 months. 21 U.S.C. § 841(b)(1)(C)(2009). Because the statutory maximum
sentence of 240 months was less than the low end of the otherwise-applicable guideline
range, the statutory maximum sentence of 240 months became the guideline range. U.S.S.G.
§ 5G1.1(a) (2009). At the conclusion of the sentencing hearing, the district court sentenced
Newcomb to 240 months’ imprisonment on Count One and 120 months’ imprisonment on
Count Two, to run concurrently.

    Newcomb appealed, arguing that the district court erred by declining to apply the Fair
Sentencing Act of 2010, which became law two weeks before Newcomb was sentenced.
Because of our case law at the time holding that the Fair Sentencing Act did not apply to
persons like Newcomb whose conduct preceded the statute but who were sentenced after
its enactment, see United States v. Fisher, 635 F.3d 336 (7th Cir. 2011), we affirmed
Newcomb’s sentence. United States v. Newcomb, No. 10-3051 (7th Cir. June 9, 2011)
(unpublished). Newcomb filed a petition for a writ of certiorari with the United States
Supreme Court. The Supreme Court granted Newcomb’s petition and remanded to our
court for further consideration in light of its decision in Dorsey v. United States, 132 S. Ct.
2321 (2012), that the Fair Sentencing Act applies to a defendant sentenced after that
statute’s enactment even if the defendant’s conduct preceded it.

     Both parties have filed position statements in light of Dorsey. They agree that under
Dorsey, Newcomb should have been sentenced under the Fair Sentencing Act. But while
Newcomb maintains his case must be remanded to determine if the district court would
still have found a 240-month sentence reasonable after Dorsey, the government contends
any error was harmless.

    We will remand cases after Dorsey when we are not convinced that a defendant’s
sentence would have been the same had the district court applied the Fair Sentencing Act.
United States v. Jones, 696 F.3d 695, 702 (7th Cir. 2012). On the other hand, when a district
court makes it clear that it would have imposed the same sentence regardless of the Fair
Sentencing Act’s application, the Dorsey error is harmless. United States v. Foster, 701 F.3d
1142, 1157-58 (7th Cir. 2012). The Fair Sentencing Act amended 21 U.S.C. § 841(b)(1) to
provide, as relevant here, that 280 grams of cocaine base triggers a ten-year mandatory
minimum sentence and that 28 grams of cocaine base triggers a five-year mandatory
minimum. As a result, instead of facing a ten-year mandatory minimum sentence,
Newcomb should have faced a five-year mandatory minimum sentence. Notably, however,
his maximum sentence of 240 months remained the same under the Fair Sentencing Act,
and his guideline range of 240 months remained the same as well. See U.S.S.G. § 4B1.1(b).
No. 10-3051                                                                            Page 3

     Although the district court did not explicitly state that it would have imposed the same
sentence if the Fair Sentencing Act applied to Newcomb, it is clear from the sentencing
hearing that it would have. Noting the 240-month statutory maximum sentence, the district
court stated at the sentencing hearing, “When I first looked at the presentence report, I’ll
tell you right now, [the probation officer] was recommending a 360-month sentence for you
based on the guidelines and everything else. And very frankly, I was inclined to impose
that sentence on you. And I am glad that I don’t have to.” The district court discussed
Newcomb’s multiple prior drug convictions and multiple instances of flight from law
enforcement, including his flight in this case that injured an innocent woman. Noting that
the guideline range but for the statutory maximum was 262 to 327 months, the court stated
that Newcomb “could be looking at even much longer than [the 240 months] the
government is recommending.” The court ultimately imposed a 240-month sentence and
explained, “I think that recommendation [240 months] makes sense to me in this case. I
think it’s in line with the type of sentence that would be imposed for people who find
themselves in your situation and with your history and the nature of the crime itself, which
is a repetitive crime. It’s something that’s happened throughout your life, and that you
didn’t learn the lesson. You knew, you knew your background as much as anybody else
when you did the deal that brings you here today.” The district court also stated that it
“could not give [Newcomb] the kind of break you might like me to give you . . . based on
the totality of the facts of this case.” The district court stated that the 240-month sentence,
although imposed with a heavy heart, was “a just and proper sentence for all the reasons,
not just from the guidelines, because this is really a below-guidelines range, the maximum
statutory guideline range, but to reflect the seriousness of this offense and to take into
account your own background and the deterrent effect.”

     The transcript of the sentencing hearing makes clear that the statutory mandatory
minimum had no effect on Newcomb’s sentence. The district court’s explanation for the
sentence it chose makes clear that the district court would not have chosen a lesser sentence
had it known that Newcomb faced only a five-year mandatory minimum, and we also find
it notable that the Fair Sentencing Act had no effect on Newcomb’s guideline range. In this
case, we have no doubt that the sentence would have been the same had the district court
known that the Fair Sentencing Act applied to Newcomb, and so we find the error
harmless. See United States v. Hill, 645 F.3d 900, 912 (7th Cir. 2011) (“When we are
convinced that the sentence would have been the same absent the error, we deem the error
harmless.”); see also Foster, 701 F.3d at 1157-58 (finding Dorsey error harmless where it was
clear district court would have imposed same sentence had it applied the Fair Sentencing
Act).

   The judgment of the district court is AFFIRMED.
