                         NONPRECEDENTIAL DISPOSITION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

                                   Argued September 19, 2011
                                     Decided July 19, 2012

                                              Before


                              FRANK H. EASTERBROOK, Chief Judge

                              MICHAEL S. KANNE, Circuit Judge

                              ANN CLAIRE WILLIAMS, Circuit Judge



No. 11-1352

UNITED STATES OF AMERICA,                              Appeal from the United States District Court
     Plaintiff-Appellee,                               for the Southern District of Illinois.

       v.                                              No. 4:10-CR-40032

LATOYA MCDANIEL,                                       J. Phil Gilbert,
    Defendant-Appellant.                               Judge.


                                            ORDER

        Latoya McDaniel pled guilty to one charge of conspiring to distribute five grams or more
of crack cocaine. She appeals the 120-month sentence she received and argues that the district court
erred when it included purported personal use amounts in its drug quantity calculation. But any
crack cocaine she received for her role as a runner and then consumed for her personal use was
necessarily intertwined with the success of the conspiracy, and the district court did not err when
it included those amounts. Next, McDaniel’s Fifth and Sixth Amendment rights were not violated
by the imposition of a mandatory minimum based on the quantity of drugs found by the judge at
sentencing rather than on the amount charged in the indictment. McDaniel receives resentencing for
another reason, however. The Supreme Court recently held that the Fair Sentencing Act’s lower
mandatory minimums apply to persons like McDaniel whose offense conduct occurred before the
No. 11-1352                                                                                   Page 2


Act but who were sentenced after it. Because she was sentenced under the pre-Act minimums, we
vacate McDaniel’s sentence and remand for resentencing.


                                        I. BACKGROUND
       Latoya McDaniel was a runner in a crack cocaine distribution conspiracy. She was also a
crack cocaine user. As payment for her role as a runner in the conspiracy, she received money and
sometimes crack cocaine.
         On June 8, 2010, a federal grand jury in Benton, Illinois returned a one-count indictment
against McDaniel charging her with conspiring to knowingly and intentionally distribute and possess
with intent to distribute five grams or more of crack cocaine. The indictment alleged that the
conspiracy took place from approximately May 2007 through October 2009. The government did
not file a 21 U.S.C. § 851 notice of intention to seek increased punishment by reason of prior
conviction. On November 4, 2010, McDaniel entered an open plea of guilty and stated that she
planned to dispute the drug quantity determination at the sentencing hearing. The judge informed
her at the change of plea hearing that the statutory sentencing range would be five to forty years or
zero to twenty years, depending on the applicability of the Fair Sentencing Act.
         The Presentence Report concluded that McDaniel’s relevant conduct included 266.7 grams
of crack cocaine and that this amount triggered a ten-year statutory minimum under 21 U.S.C. §§
841(b)(1)(A) and 846. McDaniel objected, contending that the relevant conduct calculation should
not include the crack cocaine that she personally used. She also maintained that a five-year statutory
minimum should apply to her rather than a ten-year minimum because the indictment only charged
her with conspiring to distribute five or more grams of crack cocaine. At the sentencing hearing, the
district court adopted the PSR’s relevant conduct determination of 266.7 grams of crack cocaine.
The resulting advisory guideline range was 78 to 97 months. After concluding that the applicable
statutory mandatory minimum sentence was ten years, the district court imposed that term. She
appeals her 120-month sentence.


                                          II. ANALYSIS
       A. Inclusion of Personal Use Amounts
       The first question on appeal is whether the district court erred when it included in the drug
quantity determination amounts of crack cocaine that McDaniel asserts were for her personal use.
We review the district court’s drug quantity calculation for clear error. United States v. Wilson, 481
F.3d 475, 483 (7th Cir. 2007).
        To qualify as relevant conduct under the federal sentencing guidelines, an act must be “part
of the same course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G.
§ 1B1.3(a)(2); see United States v. Snook, 60 F.3d 394, 395-96 (7th Cir. 1995). Relevant conduct
includes acts and omissions “that occurred during the commission of the offense of conviction, in
No. 11-1352                                                                                     Page 3


preparation for that offense, or in the course of attempting to avoid detection or responsibility for
that offense.” U.S.S.G. § 1B1.3(a)(1).
        The PSR based its calculation of 266.7 grams on several pieces of information. These
included conspiracy member Kenya Ganer’s report that McDaniel was a runner who purchased at
least two grams of crack cocaine from him every week for 18-24 months, which amounted to
approximately 144 grams. McDaniel also admitted that she obtained approximately 118 grams from
various persons involved in the conspiracy.
        McDaniel’s objection to drug quantity determination in the PSR and at sentencing did not
indicate any specific amounts which she contended should not be included. Instead, she objected to
the inclusion of all the drug amounts as personal use quantities. In any event, the district court did
not err when it included the personal use amounts in the drug quantity determination. McDaniel’s
conviction was for conspiracy, and our decision in Precin v. United States, 23 F.3d 1215 (7th Cir.
1994), is instructive. There the defendant claimed that some of the 500 grams of cocaine for which
he had been found responsible were for his personal use and had no effect on the conspiracy. Like
McDaniel, the defendant in Precin obtained the personal use quantities in return for his role in the
conspiracy. We said that regardless of whether the conspiracy paid the defendant in cash or in free
drugs, distribution was still the role of the venture, and any cocaine that he received for his personal
use “was necessarily intertwined with the success of the distribution.” Id. at 1219.
        Similarly, in Snook, we upheld the inclusion of amounts purportedly purchased for personal
use from the defendant’s supplier in a cocaine conspiracy. We emphasized that the defendant pled
guilty to conspiracy with intent to distribute and stated that the amount he “personally consumed
directly affected the conspiracy–the more [the defendant] used, the more he had to bank-roll his
habit.” 60 F.3d at 396.
         A charge of possession rather than conspiracy would be different. We explained the
distinction in United States v. Wyss, 147 F.3d 631, 632 (7th Cir. 1998), a case where the defendant
had been convicted of possession with intent to distribute. We concluded it was improper for the
district court to include amounts corresponding to the defendant’s possession of cocaine for personal
use when it sentenced him for possession with the intent to distribute. We said:
       The case would be different . . . if the charge were conspiracy rather than possession .
       . . . Suppose that X sells Y a kilogram of cocaine in circumstances that make Y a
       conspirator with X and not merely a buyer from him. The amount of drugs involved in
       the conspiracy is unaffected by the use that Y makes of the drugs. It makes no difference
       whether he sells the entire amount and buys drugs for his personal consumption on the
       open market with the proceeds or keeps a portion of the drugs to consume personally as
       compensation for his participation in the conspiracy.
Id. at 632. Here, the district court did not err when it included the crack cocaine that McDaniel
received in return for being a runner in the conspiracy. When McDaniel received crack cocaine from
her sources, she would redistribute some of the crack cocaine and use some for her personal use. As
in Precin, the crack cocaine she received for her personal use was intertwined with the success of
the conspiracy. The fact that her suppliers did not control how much of the cocaine would be used
No. 11-1352                                                                                     Page 4


by McDaniel personally “does not break the link between the personal-use cocaine and the
conspiracy.” Snook, 60 F.3d at 396. Under our precedent, there was no error in the drug quantity
determination.
       B.      Mandatory Minimum Sentence
        McDaniel also challenges whether the ten-year statutory minimum she received violates her
rights under the Fifth and Sixth Amendments. She argues that because the indictment charged her
with possessing “five grams or more” of crack cocaine, she should only be subject to the statutory
mandatory minimum that corresponds to five grams of crack cocaine.
        As McDaniel recognizes, however, the precedent is against her. In Apprendi v. New Jersey,
530 U.S. 466, 490 (2000), the Supreme Court held that “[o]ther than the fact of a prior conviction,
any fact that increases the penalty of a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” In Harris v. United States, 536 U.S.
545, 568 (2002), the Supreme Court declined to extend Apprendi to statutory mandatory minimums,
reasoning that a minimum does not expose defendants to greater potential for punishment. A judge
can therefore make a factual finding at sentencing by the preponderance of the evidence standard
that increases the penalty beyond the minimum. McMillan v. Pennsylvania, 477 U.S. 79, 91 (1986).
We have noted the difficulty in reconciling McMillan with Apprendi but have recognized our
obligation to follow Supreme Court precedent unless the Court explicitly overrules a case. United
States v. Krieger, 628 F.3d 857, 869 (7th Cir. 2010).
        Here, under the statute in effect at the time of the offense conduct, at least 50 grams of crack
cocaine triggered a mandatory minimum sentence of ten years’ imprisonment. See 21 U.S.C. §
841(b)(1)(A)(iii) (2009). (Five grams of crack cocaine would have yielded a five-year mandatory
minimum. 21 U.S.C. § 841(b)(1)(B)(iii) (2009)). The finding at sentencing of 266.7 grams therefore
triggered a ten-year mandatory minimum under the statute in effect at the time of her conduct.
Although McDaniel maintains this drug quantity determination should have been found by a jury
or admitted by her, the Supreme Court has held otherwise, and there was no constitutional violation.
See Harris, 536 U.S. at 558 (“Judicial factfinding in the course of selecting a sentence within the
authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of
the Fifth and Sixth Amendments.”).
       C.      Fair Sentencing Act
         The Supreme Court’s recent decision in Dorsey v. United States, 132 S. Ct. 2321 (2012),
however, entitles McDaniel to resentencing. McDaniel was sentenced after the Fair Sentencing Act
became law for offense conduct that occurred before it. McDaniel entered her plea of guilty in
November 2010. At the change of plea hearing, the prosecutor informed the court that the
government did not yet have a relevant conduct estimate. The prosecutor also stated that McDaniel
would be sentenced under the new advisory guidelines for crack cocaine offenses. But because her
conduct took place before the Fair Sentencing Act’s passage, the government expressed its belief
that if McDaniel possessed more than five grams of crack cocaine, her statutory range would be five
to forty years. The district court informed McDaniel that her sentencing range based on the statute
No. 11-1352                                                                                   Page 5


in effect at the time she committed her offense was five to forty years’ imprisonment. But, the court
told her, if the Fair Sentencing Act applied, her sentencing range would be zero to twenty years.
        At sentencing, the district court determined that 266.7 grams of crack cocaine combined with
McDaniel’s criminal history initially yielded an advisory guidelines range of 78 to 97 months. But,
the court continued, her guidelines range was effectively 120 months because it found 120 months
to be the statutory mandatory minimum. Under the pre-FSA version of the statute, 50 grams or more
of crack cocaine triggered a 10-year mandatory minimum. See 21 U.S.C. § 841(b)(1)(A)(iii) (2009).
(The 266.7-gram quantity was apparently much higher than even the government had contemplated
at the change of plea hearing; McDaniel does not contend her plea was involuntary because she was
not informed then of a potential ten-year mandatory minimum sentence.)
        The district court then heard presentations from both sides. McDaniel’s counsel related, as
the PSR had reported, the difficult circumstances of McDaniel’s life. Her mother was a crack addict
who abused and mistreated her. After she was taken from her mother, another family member
sexually abused her for a number of years. McDaniel became addicted to crack cocaine as a teenager
and became pregnant with the first of five children when she was fifteen. She recognized her
addiction at the sentencing hearing and said she sought to change her life. The district court
recognized McDaniel’s difficult circumstances, expressed the opinion that some incarceration was
necessary, and imposed a sentence of ten years, the term it had concluded was the minimum
sentence authorized by statute.
       While this appeal was pending, the Supreme Court held in Dorsey that the Fair Sentencing
Act governs in all sentencing proceedings from its effective date forward, even if the offense
conduct took place before the Act’s effective date. The Fair Sentencing Act therefore applies to
McDaniel. Under the Fair Sentencing Act, when as here no section 851 notice has been filed, a
quantity of 280 grams of crack cocaine is necessary to trigger the ten-year mandatory minimum. See
21 U.S.C. § 841(b)(1)(A)(iii) (2011). McDaniel’s 266.7 grams, however, yields a lower mandatory
minimum of five years’ imprisonment. See 21 U.S.C. § 841(b)(1)(B)(iii) (2011).
        The issue of the Fair Sentencing Act’s application was raised at McDaniel’s change of plea
hearing, although for reasons that are unclear it was not explicitly raised again at her sentencing.
McDaniel also did not raise the issue in her briefing on appeal, but at the time of briefing our
circuit’s law was settled that the Fair Sentencing Act did not apply to her. Even under plain error
review, McDaniel receives resentencing. The error is plain now in light of Dorsey. See United States
v. Moody, 664 F.3d 164, 166 (7th Cir. 2011); cf. United States v. Henderson, 646 F.3d 223 (5th Cir.
2011), cert. granted (U.S. June 25, 2012) (No. 11-9307). And although the sentencing transcript
reflects that the district court believed some imprisonment was in order for McDaniel, it may well
have imposed a lower sentence if it had known the mandatory minimum was lower. We therefore
vacate McDaniel’s sentence and remand for resentencing. See United States v. McLee, 436 F.3d 751,
766 (7th Cir. 2006) (ordering a limited remand in light of Booker even though defendant did not
specifically request resentencing); see also United States v. Murphy, 406 F.3d 857, 862 (7th Cir.
2005).
No. 11-1352                                                                          Page 6


                                    III. CONCLUSION
        We VACATE McDaniel’s sentence and REMAND for resentencing consistent with Dorsey and
the Fair Sentencing Act.
