                           In the

United States Court of Appeals
             For the Seventh Circuit

Nos. 07-4067 & 07-4085

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


N EASHON W ASHINGTON and A DREIN B ENNETT,

                                         Defendants-Appellants.


          Appeals from the United States District Court
               for the Central District of Illinois.
           No. 06-10033—Michael M. Mihm, Judge.


    A RGUED D ECEMBER 3, 2008—D ECIDED M ARCH 13, 2009




 Before E ASTERBROOK, Chief Judge, and M ANION and
W OOD , Circuit Judges.
  W OOD , Circuit Judge. Neashon Washington and Adrein
Bennett were two members of a drug distribution gang
that called itself the “Bigelow boys.” The Boys operated
in the general area of Peoria, Illinois, using a house at
1811 Bigelow Street. The police began focusing on Wash-
ington and Bennett in mid-2005, with the help of a confi-
2                                    Nos. 07-4067 & 07-4085

dential informant. Undercover work and controlled sales
followed. Eventually, Washington, Bennett, and three
other men were charged with conspiracy to distribute
crack cocaine and a number of substantive distribution
offenses, in violation of 21 U.S.C. §§ 841(a)(1) and 846.
After a jury found Bennett and Washington guilty of all
charges against them, the district court sentenced Bennett
to a term of 240 months’ imprisonment, with 10 years of
supervised release on the conspiracy count and 6 years
on all other counts, and it sentenced Washington to a
term of 140 months’ imprisonment, with varying terms of
supervised release for different counts.
  Both have appealed. Bennett argues that the district
court made two errors in sentencing him: first, he asserts
that it was inconsistent with Apprendi v. New Jersey, 530
U.S. 466 (2000), for the judge to use 21 U.S.C. § 841(b)(1)(A)
as the basis for a statutory minimum sentence of 20 years,
despite the jury’s failure to find that he had dealt in the
necessary quantity of drugs to trigger subpart (A)’s
maximum sentence; and second, he argues that the
judge should not have applied the two-level enhance-
ment for use of a gun in relation to a drug trafficking
crime, under U.S. Sentencing Guideline § 2D1.1(b)(1), in
computing his offense level. Washington argues only
that the district court erred in entering judgment and
sentencing him for distribution of cocaine base (crack),
when the jury found him guilty only of distributing the
powder form of cocaine. The district court has since
corrected the judgment so that it now reads “distribution
of cocaine.” As the error did not otherwise affect Wash-
ington’s sentence, the district court’s action suffices to
Nos. 07-4067 & 07-4085                                 3

moot Washington’s appeal. We therefore confine our
remarks here to Bennett’s case.


                           I
  Because Bennett’s arguments focus exclusively on his
sentence, we can dispense with a detailed account of the
operation of the drug conspiracy. The jury was presented
with evidence from a cooperating member of the con-
spiracy, who told them about what was sold (usually
crack), how much was sold, what prices were charged, and
how the drugs were weighed, packaged, and delivered.
When the time came to instruct the jury, one instruction
went as follows:
     If you find the defendant, Adrein Bennett, guilty of
   conspiracy as charged in Count 1 of the Indictment,
   next you must find beyond a reasonable doubt the
   quantity of drugs involved. Indicate your findings as
   to the quantity of drugs below and have each juror
   sign this form.
     We, the jury, find that the amount of controlled
   substances involved in the conspiracy and reasonably
   foreseeable to Adrein Bennett was:
     _____ less than 5 grams
     _____5 grams or more, but less than 50 grams
     _____50 grams or more
With respect to Count 2 (which charged Bennett and
Washington with distribution of crack), the jury was
asked to decide only whether Bennett was guilty of
4                                        Nos. 07-4067 & 07-4085

distributing “cocaine.” For Counts 3 through 17, the jury
was asked to make a finding of guilty or not guilty, and
then to indicate whether the drug distributed was “co-
caine base, but not cocaine base (crack)” or “cocaine base
(crack).” It was not asked to find quantity for Counts 2
through 17.
  At one point during its deliberations, the jury sent a
note indicating that it was having trouble agreeing on
the quantity of cocaine involved in any of the counts. After
a discussion, the prosecutor and defense counsel agreed
that the court should just await the jury’s verdict and
decide then what to do if anything was missing. The
jury eventually returned its verdict and found Bennett
guilty of the conspiracy charged in Count 1, but it left
the form addressing drug quantity blank. It also agreed
that the substance involved in Counts 3 through 17 was
crack cocaine, but again it did not specify any quantity.1



1
   It is possible that the jury’s failure to agree on a quantity was
in part attributable to the way this instruction, and the corre-
sponding verdict form, were worded. If, for example, six jurors
thought that 48 grams of crack was involved and six thought the
quantity was 55 grams, then none of the boxes on the form
provided would have applied. It would be preferable, it seems
to us, to give the jury an open-ended form, saying something
like “we find unanimously that the defendant distributed
at least ___ grams of crack and ___ grams of powder cocaine.”
The blanks would be filled in with the minimum quantities
on which the jurors all agreed. This would give the trial court
the information it needed to apply the statutory thresholds,
                                                       (continued...)
Nos. 07-4067 & 07-4085                                   5

   The court accepted the verdict and ordered a presentence
report (“PSR”). The probation officer concluded that
Bennett’s relevant conduct involved at least 150 grams
but less than 500 grams of crack cocaine, based on the
evidence received at trial. The PSR also recommended
a four-level enhancement for Bennett’s leadership role in
the offense and a two-level enhancement for having a
firearm present at the Bigelow house. This led to a base
offense level of 38 under the Sentencing Guidelines and
an advisory sentencing range of 262 to 327 months. The
PSR took the position that, under 21 U.S.C. § 841(b)(1)(A),
the statutory minimum sentence applicable to Bennett
was 240 months, because Bennett had a prior felony
drug conviction.
  In its sentencing memorandum, the government ac-
knowledged that the jury had not made a finding of drug
quantity. It argued, however, that the court had the
authority to find quantity as long as the court refrained
from imposing a sentence longer than the 30-year maxi-
mum authorized by § 841(b)(1)(C), and that the evi-
dence supported a finding that the conspirators had
dealt in more than 50 grams of crack. It relied in part on
Harris v. United States, 536 U.S. 545 (2002), which holds
that the Apprendi line of cases does not apply to statutory
minima. Bennett objected to the court’s authority to
make a finding relating to the statutory minimum, given


1
  (...continued)
such as the 5 gram or 50 gram level in crack cases, or the
500 gram and 5 kilogram level in powder cocaine cases.
6                                 Nos. 07-4067 & 07-4085

the jury’s failure to make any finding on quantity. He
also objected to the leadership and gun enhancements.
The court found that there was “a fairly rich body of
evidence” showing that extensive drug activity was
going on at the Bigelow house and that it was appro-
priate to attribute this activity to Bennett.
  Disagreeing with the probation officer, the court found
that Bennett was responsible only for 50 to 150 grams
of crack. It also found that both the leadership and the
gun enhancements were proper, leading to a final total
offense level of 36 (rather than the 38 that the PSR had
recommended). It also concluded that the mandatory
minimum applicable to Bennett was the 20-year term
specified in 21 U.S.C. § 841(b)(1)(A), which applies when
the drug quantity is 50 grams or more, notwithstanding
the jury’s failure to make any quantity finding. Bennett
objected, arguing that any finding regarding the manda-
tory minimum had to be made by the jury. The district
court decided, however, that as long as the maximum
term was not extended, it was entitled to make findings
relating to the minimum. Although Bennett’s advisory
guideline range would have been 210 to 262 months
without taking the mandatory minimum into account, the
court’s decision to apply that minimum made the range
240 to 262 months for Count 1 (and 210 to 262 months
for the remaining counts). The court then sentenced
Bennett to 240 months on all counts, with his sentences
to run concurrently.
Nos. 07-4067 & 07-4085                                     7

                             II
                             A
  Bennett’s primary argument for setting aside his sen-
tence is that the district court acted inconsistently with
Apprendi when it found the facts that supported his
mandatory minimum sentence. Apprendi held that a jury
must find beyond a reasonable doubt “any fact [other
than a prior conviction] that increases the penalty for a
crime beyond the prescribed statutory maximum.”
Apprendi, 530 U.S. at 490. Although Apprendi arose in the
context of New Jersey’s sentencing regime, it is by now
well established that the rule it announced applies to
federal sentencing as well. See United States v. Booker,
543 U.S. 220, 233, 245 (2005) (Apprendi rule applies to
federal sentencing, but it does not apply to an advisory
sentencing guideline system, as opposed to statutory
maxima). This does not, however, transform drug type
and quantity into “elements” of the offense. Instead, as
we have held repeatedly, drug type and quantity are
sentencing factors that must be found by the jury, insofar
as they establish the maximum possible sentence. See,
e.g., United States v. Kelly, 519 F.3d 355, 363 (7th Cir.
2008); United States v. Martinez, 301 F.3d 860, 865 (7th
Cir. 2002); United States v. Bjorkman, 270 F.3d 482, 491-92
(7th Cir. 2001).
  Although some thought that the Apprendi rule logically
should apply to minimum sentences established by
statute, the Supreme Court has not been persuaded to
follow that path. Instead, in Harris v. United States, supra,
the Court concluded that there is no requirement for the
8                                   Nos. 07-4067 & 07-4085

jury to find beyond a reasonable doubt the facts that
trigger a statutory minimum sentence. 536 U.S. at 557.
Although that would seem to preclude Bennett’s argu-
ment, insofar as it is based on the Apprendi line of cases,
the Second Circuit did not see matters that way in its
decision in United States v. Gonzalez, 420 F.3d 111 (2d Cir.
2005). This court, however, expressly refused to follow
Gonzalez and a similar decision from the Ninth Circuit,
United States v. Velasco-Heredia, 319 F.3d 1080 (9th Cir.
2003), in United States v. Clark, 538 F.3d 803, 812 (7th Cir.
2008). Although we could dismiss Bennett’s argument
summarily, in light of Clark, respect for the views of our
sister circuits and Bennett’s reliance on those cases per-
suade us to take another look at these issues.
  In Gonzalez, the Second Circuit held that a criminal
defendant cannot be sentenced unless “a jury found or
Gonzalez himself admitted the specified drug quantity
element.” 420 F.3d at 125. The court reasoned that
21 U.S.C. § 841(a)(1), which makes it unlawful to traffic in
drugs, and 21 U.S.C. § 841(b)(1), which sets forth the
sentencing ranges for drug offenses, operate independ-
ently of one another, and that after Apprendi, the court
must treat both as establishing elements of the offense.
(This court, as Kelly illustrates, does not interpret
Apprendi that way.) The Gonzalez court then examined
§ 841(b)(1) more carefully. As it noted, for a person with
a prior drug felony, like Gonzalez (or like Bennett), who
trafficks in an unquantified amount of crack, the
relevant sentencing provision is § 841(b)(1)(C); that sub-
section does not specify any minimum sentence, but it
prescribes a maximum sentence of 30 years. If that same
Nos. 07-4067 & 07-4085                                     9

recidivist trafficked in five grams or more of cocaine
base, § 841(b)(1)(B) imposes a minimum sentence of
10 years and a maximum of life in prison. Finally, if the
quantity of cocaine base is 50 grams or more and the
person has a prior drug conviction, § 841(b)(1)(A) estab-
lishes a statutory minimum sentence of 20 years and a
maximum of life. Gonzalez held that “[n]othing in the
structure of the statute suggests that these cor-
responding minimums and maximums, or any of the
others prescribed in the statute, can be delinked to
permit mixing and matching across subsections to create
hybrid sentencing ranges not specified by Congress.”
420 F.3d at 121 (citing Velasco-Heredia, 319 F.3d at 1086).
   As we noted earlier, this court expressed disagreement
with the holding of Gonzalez in United States v. Clark. We
did not specify whether our disagreement flowed from
Gonzalez’s characterization of the sentencing rules as
“elements” of a crime rather than “sentencing factors,” or
if we understood the Second Circuit’s comments about
the structure of the statute to be an alternative basis for
its ruling independent of its interpretation of Apprendi’s
requirements. No one that we can find, including
Bennett’s counsel in the district court, Bennett’s counsel
before this court, and the district court, has considered
the question whether, as a straightforward matter
of statutory interpretation, it is permissible to apply a
statutory maximum sentence from one subsection of
§ 841(b)(1), and then to select the statutory minimum
sentence from a different subsection of § 841(b)(1). Instead,
along the same lines the Second Circuit chose, counsel
has argued only that it would be inconsistent with
10                                  Nos. 07-4067 & 07-4085

Apprendi to use the 30-year statutory maximum for
Bennett that is found in § 841(b)(1)(C) (which applies to
him because the jury did not specify any quantity of
drugs), while at the same time using the 20-year statutory
minimum found in § 841(b)(1)(A) (based on the court’s
finding that the offense involved more than 50 grams of
cocaine base).
  We are not inclined to revisit our decision in Clark,
which adhered to our position that § 841(b)(1) identifies
sentencing factors, not elements of the offense. We have
no power to change the rule in Harris, under which
Apprendi does not apply to facts establishing a statutory
minimum. Because these were the only arguments pre-
sented on Bennett’s behalf, we consider the pure
statutory question forfeited in this particular case. We
add, however, that we see nothing in Harris that cabins
Congress’s authority to link together a particular
statutory minimum with a statutory maximum deter-
mined by a jury. Thus, if the statute said something like
“the sentencing court must apply both the statutory
maximum and the statutory minimum that corresponds
to the drug quantity found by the jury,” then the mix-and-
match approach that the district court took here would
be out of the question. The open question is thus a pure
one of statutory interpretation: what, in the final analysis,
has Congress done in § 841(b)(1)? Has it enacted, in
substance, the hypothetical statute we just described, or
is the government correct in arguing that the minimum
sentences prescribed by the statute may be based on
findings by the judge, as long as the final sentence
respects the maximum authorized by the jury? To our
Nos. 07-4067 & 07-4085                                   11

knowledge, no court has squarely confronted that issue,
and, because it has not been properly raised in this case,
we decide this case on the basis that the parties have
chosen. There is no Apprendi problem with Bennett’s
sentence, and we thus move on to his other argument.


                             B
   As we noted earlier, when the district court computed
Bennett’s offense level under the Sentencing Guidelines,
it added two levels under § 2D1.1(b)(1), which requires
that enhancement for a drug offender “[i]f a dangerous
weapon (including a firearm) was possessed” in con-
nection with the offense. Application Note 3 to the guide-
line goes on to say that “[t]he adjustment should be
applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the
offense.” Id. cmt (n.3). On the other hand, the note also
says that “the enhancement would not be applied if the
defendant, arrested at his residence, had an unloaded
hunting rifle in the closet.” Id.
  Bennett argues that there was insufficient evidence to
support a conclusion that the drugs were sold or
prepared for sale at the Bigelow house. Without such
evidence, he continues, there is no way to link the guns
found in the house to his drug distribution activity.
Although the government might have argued that the
importance of this enhancement drops out of the case if
we affirm the statutory minimum sentence (as we have
done), it did not. Erring on the side of caution, therefore,
we consider Bennett’s argument on the merits. In
12                                  Nos. 07-4067 & 07-4085

opposing his position, the government points to the
following evidence:
     • Cooperating witness Douglas Sherman’s testimony
       that a house on Bigelow Street was a “gathering
       place,” along with the fact that there were six men
       in the Bigelow house when the police searched it
     • Sherman’s testimony that he purchased cocaine at
       a house on Bigelow Street
     • Jennifer Delaney’s testimony that she purchased
       cocaine at a house on Bigelow Street
     • The discovery by the police of two semi-automatic
       handguns at 1811 Bigelow Street
     • The discovery by the police of a plate with Bennett’s
       fingerprint and .5 grams of cocaine on it, also at
       1811 Bigelow Street
     • Sherman’s testimony that Bennett used a plate of that
       type to prepare cocaine for distribution and his
       opinion that the plate was not consistent with per-
       sonal use
     • Sherman’s testimony that Bennett did not use co-
       caine
  Bennett points to a number of cases in which the
quantity of drugs discovered in proximity to the guns
was substantially greater than the .5 grams the police
found in his case. E.g., United States v. Turner, 93 F.3d
276, 289 (7th Cir. 1996) (handgun found in same room as
29 grams of methamphetamine, 5 pounds of a metham-
phetamine precursor, and other paraphernalia); United
Nos. 07-4067 & 07-4085                                  13

States v. Ewing, 979 F.2d 1234, 1238 (7th Cir. 1992) (un-
loaded gun found in lockbox with 20 grams of cocaine,
among other things). But the government did not have
to prove the association solely by looking to the amount
of drugs in close proximity to the gun. The question is
whether it was clearly improbable that these guns were
connected with Bennett’s drug-dealing activities. The
district court thought not, and we cannot say that it
clearly erred in coming to that conclusion.


                            III
  Finally, it appears that the same error was made with
respect to Count 2 in Bennett’s case as was made in Wash-
ington’s—that is, the judgment read “distribution of
cocaine base (crack)” instead of “distribution of cocaine.”
Bennett has not raised this issue on appeal, but this error
strikes us as plain and in need of correction. We therefore
A FFIRM the sentence, but we REMAND for the limited
purpose of correcting the judgment on Count 2 to read
“distribution of cocaine.”




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