                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 11-3527

U NITED S TATES OF A MERICA,
                                                 Plaintiff-Appellee,
                                v.

C OREY D. W INTERS,
                                             Defendant-Appellant.


           Appeal from the United States District Court
               for the Eastern District of Wisconsin.
        No. 09 CR 254—Charles N. Clevert, Jr., Chief Judge.



     A RGUED A PRIL 20, 2012—D ECIDED A UGUST 29, 2012




 Before M ANION, R OVNER, and W ILLIAMS, Circuit Judges.
  M ANION, Circuit Judge. Corey Winters pleaded guilty
to conspiracy to possess with the intent to distribute
large quantities of drugs. The plea agreement provided
that the government would recommend a base offense
level of 32. But at sentencing the government concurred
in the Presentence Investigation Report’s (“PSR”) con-
clusion that Winters was a career offender, which
raised Winters’s offense level to 37. The district court
2                                               No. 11-3527

adopted the PSR, set Winters’s offense level at 37, and
sentenced him to 165 months’ imprisonment, well below
the recommended Guidelines. Winters appeals, arguing
that the government violated the plea agreement by not
recommending to the district court a base offense level
of 32. The Supreme Court’s decision in Sykes v. United
States, 131 S.Ct. 2267 (2011), overrode that recommenda-
tion. We affirm the district court’s sentence.


                             I.
  Corey Winters was part of a large drug conspiracy
in Wisconsin. He eventually pleaded guilty, pursuant to
a plea agreement, to one count of conspiracy to possess
with the intent to distribute 5 kilograms or more of
cocaine, 50 grams or more of cocaine base, and marijuana,
in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A).
Among other things, the plea agreement provided:
“The parties acknowledge and understand that the gov-
ernment will recommend to the sentencing court that
the applicable base offense level for the offense charged
in count one is 32 under Sentencing Guidelines Manual
§ 2D1.1(c)(4).”
  The PSR prepared by the United States Probation
Office, however, determined that Winters was a career
offender under U.S.S.G. § 4B1.1(b). The PSR thus set
Winters’s offense level at 37 based on the career
offender provisions of the Sentencing Guidelines. U.S.S.G.
§ 4B1.1(b).
 Winters objected to the PSR’s determination that he
was a career offender, arguing that his prior convictions
No. 11-3527                                              3

for fleeing were not crimes of violence and thus did
not qualify him as a career offender for purposes of
the Sentencing Guidelines. In making this argument,
Winters acknowledged that whether these convictions
potentially qualified for purposes of the career offender
status was then under review by the Supreme Court in
United States v. Sykes, 598 F.3d 334 (7th Cir. 2010), cert.
granted 131 S.Ct. 63 (2010). Winters requested and
received several continuances of his sentencing hearing
while Sykes remained pending.
  In June of 2011, the Supreme Court held in Sykes v.
United States that felony vehicle flight was a crime of
violence for purposes of the career offender provisions.
Sykes v. United States, 131 S.Ct. 2267, 2277 (2011). The
Probation Office issued an updated PSR, which again
concluded that Winters was a career offender based on
his prior convictions. Sentencing proceeded on Novem-
ber 1, 2011.
  At sentencing, the district court asked the govern-
ment whether it had any objections to the PSR and the
government responded: “No Judge, no objections to the
facts nor the guideline calculation. With one exception
which I believe, in any event, will be taken care of by
the career offender status.” The district court judge then
turned to Winters’s counsel who stated:
   Unfortunately, Mr. Winters is a career offender so a
   lot of the enhancements that we would object to
   really don’t make a difference because he falls under
   the career offender category[.] . . . [T]hat isn’t going
   to make any difference in the overall range
4                                               No. 11-3527

    Mr. Winters falls in because of the career offender
    status in light of U.S. v. Sykes.
   The district court then inquired whether Winters was
withdrawing his objection to the career offender status
in light of Sykes, but his counsel preserved the objection
without further argument. The court then overruled
Winters’s objection and held that he was a career
offender, and adopted the PSR’s calculation of a
final offense level of 37. With Winters’s criminal history
category of VI, the Guideline range was 262 to
327 months. The government recommended a sentence
of 170 months pursuant to a motion for substantial assis-
tance. Winters, while acknowledging his career offender
status, stressed that the guidelines were advisory and
asked for a 72-month sentence. The district court sen-
tenced him to 165 months’ imprisonment. Winters
appeals, arguing solely that the government breached
its plea agreement by not arguing for an offense level of 32.


                             II.
  At the sentencing hearing before the district court,
Winters did not argue that the government had breached
the plea agreement. Accordingly, this court’s review is
for plain error. United States v. Brodie, 507 F.3d 527, 530
(7th Cir. 2007). For there to be plain error, there must be
error, the error must be clear or obvious, and the error
must affect the defendant’s substantial rights. United
States v. States, 652 F.3d 734, 740 (7th Cir. 2011). Only
then does this court have the discretion to remedy that
error—a discretion which ought to be exercised only if
No. 11-3527                                                     5

the error seriously affects the integrity of the judicial
proceedings. Id.
  Winters cannot establish plain error because his sub-
stantial rights were not affected. Winters’s attorney
acknowledged at the sentencing hearing that Winters
was a career offender and on appeal Winters does not
argue that he is not a career offender as defined by the
Guidelines. Rather, Winters asserts that even though he
is a career offender, the district court was not required
to sentence him as such because the Guidelines are
merely advisory.
  “Although a judge is no longer required to give a guide-
lines sentence, he is required to make a correct deter-
mination of the guidelines sentencing range as the first
step in deciding what sentence to impose.” United States
v. Vrdolyak, 593 F.3d 676, 678 (7th Cir. 2010). Thus, in
determining Winters’s sentence, the district court was
required to first properly ascertain his Guideline sen-
tencing range. And a proper calculation of Winters’s
Guideline range included the offense level of 37 based
on his undisputed status as a career offender. Ac-
cordingly, even if the government had argued that Win-
ters’s offense level should be 32,1 the district court is not



1
  The government argues that it did not breach the plea
agreement because that agreement only required it to argue
for a base offense level of 32. According to the government, the
career offender provisions do not set the base offense level, but
rather establish an adjusted offense level. Conversely, Winters
                                                    (continued...)
6                                              No. 11-3527

bound by the plea agreement. United States v. Mankiewicz,
122 F.3d 399, 403 n.1 (7th Cir. 1997). It is also highly
unlikely the judge would have ignored the law and
accepted that argument. Rather, in light of the
undisputed facts, the district court would have set Win-
ters’s offense level at 37 based on his status as a career
offender and sentenced him exactly as it did. Given
the sentencing range of 262 to 327 months’ imprisonment
and the government’s request of 170 months’ imprison-
ment, the imposed sentence of 165 months was certainly
fair and appropriate, and to some extent favorable
to Winters. We A FFIRM .




1
  (...continued)
maintains that the career offender provisions, when
applicable, establish a new base offense level and thus by
agreeing with the career offender offense level of 37, the
government violated the plea agreement. We need not
resolve this dispute, however, because, as explained above,
any breach of the plea agreement would be harmless.



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