                            In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 03-1470
UNITED STATES OF AMERICA,
                                              Plaintiff-Appellee,
                                v.

DAMON CLEMONS,
                                          Defendant-Appellant.
                         ____________
            Appeal from the United States District Court
      for the Northern District of Indiana, Hammond Division.
            No. 2:01-CR-00137—James T. Moody, Judge.
                         ____________
     ARGUED SEPTEMBER 12, 2003—NOVEMBER 19, 2003
                    ____________


  Before BAUER, KANNE, and EVANS, Circuit Judges.
  EVANS, Circuit Judge. Two issues are presented in this
appeal challenging the sentence Damon Clemons received
earlier this year after pleading guilty to an indictment
charging him with possessing crack cocaine with intent
to distribute. Although Clemons loses on one of his issues,
he wins on the other, and so we return the case to the
district court for resentencing.
  Clemons was arrested, after a traffic stop, in May
2001. In the car and on his person, police recovered 3.37
grams of crack. Clemons agreed to “cooperate” with law
enforcement officers. He gave a statement (the crucial
point of this appeal) shortly after the arrest saying that he
2                                               No. 03-1470

was selling $100 to $200 worth of crack “off and on for
approximately a year.”
  Clemons never entered into a formal “cooperation”
agreement with the government, and apparently what-
ever “help” he gave proved to be of little value. Eventually
his sentencing day arrived, and a critical issue became
the amount of crack attributable to him as relevant con-
duct under the guidelines. During a discussion between
Clemons’ lawyer and a government attorney after the
preparation of an initial presentence report (which is not
part of the record), both sides agreed that between 5 and
20 grams was the appropriate range. But a second pre-
sentence report, the “official” one in the record, pegged the
range at between 50 and 150 grams, reasoning that a
gram of crack sells for $100 and that selling crack at that
price “off and on for approximately a year” equals 52 grams
sold.
  On appeal, Clemons first argues that his post-arrest
statement was protected under §1B1.8 of the guidelines
and that it could not, therefore, be used against him at
sentencing. Section 1B1.8 provides that “where a defen-
dant agrees to cooperate with the government by provid-
ing information concerning unlawful activities of others,
and the government agrees that self-incriminating infor-
mation so provided will not be used against the defen-
dant, then such information shall not be used in determin-
ing the applicable guideline range.”
  The government, oddly, agreed at sentencing that
§1B1.8 applied, but the savvy district judge wisely rejected
the claim. Clemons’ statement, made to police after his ar-
rest and before “even the glimmerings of plea negotiations,”
United States v. Rutledge, 900 F.2d 1127, 1132 (7th Cir.
1990), was not the sort of utterance protected by §1B1.8.
Much more, in terms of formality, is necessary to trig-
ger the limitations on using statements of “cooperation”
No. 03-1470                                                3

that §1B1.8 affords. So the statement was properly consid-
ered, but was it given too much weight?
  We apply a deferential “clear error” standard when
reviewing a district court’s calculation of the amount of
drugs attributable to a defendant as relevant conduct un-
der the guidelines. United States v. Acosta, 85 F.3d 275
(7th Cir. 1996). And upon review of the record, we con-
clude that a clear error was committed.
  Other than the 3.37 grams seized at the time of his
arrest, no other “evidence” of drug dealing is in the rec-
ord apart from the critical statement we have already
quoted. And Clemons’ limiting “off and on” description of
his prior dealing is too vague upon which to rest a find-
ing that he sold between 50 to 150 grams. If he was “off”
much or most of the time, that range is too high a point
to use as the basis for his sentence. So the case must
be returned to the district court for a do-over. At the
resentencing, the district court can either find that 5 to 20
grams is the appropriate range or conduct a full-scale
hearing to see if the range should be moved up a few
notches.
  Accordingly, Clemons’ sentence is VACATED and the
case REMANDED to the district court for further proceed-
ings consistent with this opinion.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit



                   USCA-02-C-0072—11-19-03
