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

Nos. 03-4123 & 04-2358
UNITED STATES OF AMERICA,
                                             Plaintiff-Appellee,
                               v.

BYRON V. SUTTON,
                                         Defendant-Appellant.

                        ____________
         Appeals from the United States District Court for
         the Northern District of Illinois, Eastern Division.
    Nos. 02 CR 1131 & 03 CR 496-1—Elaine E. Bucklo, Judge.
                        ____________
      ARGUED APRIL 4, 2005—DECIDED APRIL 28, 2005
                      ____________




  Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
  ROVNER, Circuit Judge. Byron Sutton appeals concurrent
135-month sentences imposed on his guilty pleas to separ-
ate indictments charging him with two counts of distribut-
ing over 50 grams of crack, 21 U.S.C. § 841(a)(1) (appeal no.
03-4123), and one count of conspiring to distribute crack, id.
§§ 846, 841(a)(1) (appeal no. 04-2358). Sutton argues that the
district court erred by relying on one of two contradictory
statements given at his change of plea hearing regarding
the weight of the drugs. He further argues, based on United
States v. Booker, 125 S.Ct. 738 (2005), that the district court
2                                    Nos. 03-4123 & 04-2358

violated the Sixth Amendment because his sentences were
increased on the basis of facts that were neither admitted
nor proved to a jury beyond a reasonable doubt. Finally,
Sutton argues there is a conflict that requires correcting
between the oral pronouncement of sentence and the
written judgment.


                              I.
  Sutton pleaded guilty without a plea agreement. At the
change of plea hearing, the government proffered that as
part of a conspiracy Sutton twice sold 103 grams of crack to
an undercover agent, first in October 2002 and then again
the following month. When the district court asked Sutton
to verify the accuracy of this factual basis, he at first agreed
that he sold “103 grams” of crack in October 2002 but
moments later characterized the quantity as “three ounces”
(roughly 85 grams). Then while discussing the November
2002 transaction Sutton admitted the quantity of crack was
“more than 50” grams but denied it was 103 grams.
  The probation officer accepted the government’s represen-
tation that both transactions involved 103 grams, and thus
recommended a base offense level of 34 because the total
was more than 150 grams but less than 500. See U.S.S.G.
§ 2D1.1(c)(4). The probation officer also recommended a
two-level reduction under U.S.S.G. § 3E1.1 for acceptance
of responsibility.
   Before sentencing, Sutton’s lawyer objected to the omis-
sion of a third point for acceptance of responsibility, see
U.S.S.G. § 3E1.1(b)(2), but did not challenge the drug quan-
tity. Neither did counsel object to the drug amount at the
sentencing hearing, but Sutton did. When given the chance
to allocute, he advised the court that all along he had been
telling counsel that the drug amount for the October 2002
transaction was overstated: “You cannot get that much drug
amount with three ounces . . . . Therefore, they overstated
Nos. 03-4123 & 04-2358                                       3

[the] drug amount to put me at level 34.” The district judge
reviewed the plea transcript and concluded that Sutton in
fact had admitted that the October 2002 transaction
involved 103 grams of crack. The court did not explain why
it disregarded Sutton’s inconsistent references to “three
ounces” during the same colloquy. The court also found that
Sutton had admitted during the plea colloquy that the
November 2002 transaction involved more than 50 grams.
The total, reasoned the court, thus exceeded 150 grams just
based on Sutton’s “own words.” After then giving Sutton the
third acceptance point and calculating the range to be 135
to 168 months, the court imposed the low end, just 15
months above the ten-year minimum mandatory sentence.
See 21 U.S.C. § 841(a)(1), (b)(1)(A). The court also ordered
that Sutton repay the $2,500 buy money.


                             II.
  Sutton gave different answers at his plea colloquy when
asked to verify the prosecutor’s representation about the
quantity of crack involved in the October sale. He thus con-
tends it was error for the district court to rely on the higher
of the two amounts at sentencing without explaining its
choice.
  Drug quantity is a factual finding that we review in the
same manner as before Booker, for clear error. United States
v. Parra, ___F.3d ___, 2005 WL 703936, at *8 (7th Cir. Mar.
29, 2005). Under this standard sentencing judges can use a
wide range of information in determining drug quantity,
provided the information is reliable. United States v.
Westmoreland, 240 F.3d 618, 630 (7th Cir. 2001). If facts in-
cluded in the presentence report bear sufficient indicia of
reliability, the report itself can serve as a proper eviden-
tiary foundation for the quantity calculation. United States
v. Burke, 148 F.3d 832, 835 (7th Cir. 1998).
4                                   Nos. 03-4123 & 04-2358

   Whether or not Sutton’s two estimates of the October 2002
drug quantity can be reconciled, the district court did not
commit clear error in choosing 103 grams as the drug
amount because an adequate evidentiary basis supports its
finding. Sutton wants us to focus on his statements at the
plea colloquy, but what controls the analysis is the “entire
evidence” before the district court. United States v. Span,
170 F.3d 798, 803 (7th Cir. 1999). A guideline adjustment
can be sustained on any basis supported by the record, even
evidence not relied on by the sentencing judge. United States
v. Benitez, 92 F.3d 528, 538 (7th Cir. 1996). Although Sutton
did not fully endorse the government’s factual basis, his
assent to the government’s calculation was not essential.
United States v. Berthiaume, 233 F.3d 1000, 1002-03 (7th
Cir. 2000). If Sutton’s judicial admission was all the
sentencing court had to go on, then the ambiguity between
“103 grams” and “three ounces” might have significance.
Instead, however, the prosecutor informed the probation
officer that the crack from the October transaction was
taken to a lab for analysis and had a gross weight of 103
grams. The prosecutor further advised that the crack from
the November transaction had a gross weight of 153 grams
when analyzed. The probation officer verified the prosecu-
tor’s account by interviewing the investigating DEA agent.
Nowhere does Sutton say why the lab weights aren’t ample
evidence that the total quantity was at least 150 grams, so
his inconsistent statements at the plea colloquy are incon-
sequential. Thus the district court did not clearly err in
basing the upward adjustment on its determination that
Sutton distributed more than 150 grams of crack.
  Still, says Sutton, his disagreement with the government’s
proffer during the plea colloquy means that the quantity
calculation rests on facts that were neither admitted nor
found by a jury beyond a reasonable doubt. He concedes
that this constitutional argument under Booker was not
raised in the district court and thus is reviewable only for
Nos. 03-4123 & 04-2358                                      5

plain error. Under this standard, there must be an error
and it must be plain. United States v. Paladino, 401 F.3d
471, 481 (7th Cir. 2005). In addition, the error must affect
the defendant’s “substantial rights” and “seriously affect the
fairness, integrity, or public reputation of judicial pro-
ceedings.” Johnson v. United States, 520 U.S. 461, 466-67
(1997); see United States v. Esterman, 324 F.3d 565, 569-73
(7th Cir. 2003).
  Any fact other than a prior conviction that increases the
maximum penalty established by a jury verdict or a guilty
plea must be admitted by the defendant or proved to a jury
beyond a reasonable doubt. Booker, 125 S.Ct. at 756. Here,
the judge rather than a jury calculated the drug weight, and
given Sutton’s inconsistent statements at the plea colloquy,
did so on less than proof beyond a reasonable doubt. See
United States v. Fernandez, 205 F.3d 1020, 1027 (7th Cir.
2000) (vacating guilty plea in part because defendant
changed his responses to whether he committed certain acts
and the ambiguity was never clarified); but cf. United States
v. Warneke, 310 F.3d 542, 550 (7th Cir. 2003) (explaining
that an admission is “even better than a jury’s finding
beyond a reasonable doubt” because an admission “removes
all contest from the case.”). Accordingly, there was constitu-
tional error that, after Booker, is plain. See Paladino, 401
F.3d at 481. But we cannot determine whether Sutton’s
substantial rights were affected without consulting the sen-
tencing judge to determine whether she would have given
the same sentence had she known the guidelines were not
mandatory. Id. at 482. Sutton’s sentencing transcript does
not suggest that, given extra leeway in sentencing, the
district court would have imposed the same sentence. See
United States v. Lee, 399 F.3d 864, 866 (7th Cir. 2005).
Therefore a limited remand under the scheme set forth in
Paladino is appropriate.
  Finally, Sutton argues that there is a conflict between the
oral pronouncement of his sentence and the written judg-
ment. At sentencing the government requested that as a
6                                   Nos. 03-4123 & 04-2358

condition of his supervised release, Sutton be ordered to
reimburse the $2,500 investigators paid him for the crack.
The district court responded: “All right. I will, yes, I will
include that.” Sutton takes no issue with the court’s ruling
but instead argues that the written judgment improperly
categorizes the $2,500 as restitution. In a section titled
“Criminal Monetary Penalties,” the written judgment
includes three columns with preprinted headings: one for
“Assessment,” under which is typed $200; a second for “Fine,”
under which is typed “waived”; and a third for “Restitution,”
under which nothing is typed. Next to the “Restitution”
column the court added a fourth column by typing the
heading “Buy money” and then typing “$2,500.00” under-
neath. Elsewhere in the judgment the court also stated
explicitly that the $2,500 was to be repaid as a condition of
supervised release. We agree with the government that
Sutton simply misreads the judgment; in fact it is entirely
consistent with the court’s oral pronouncement.


                            III.
  Sutton’s arguments about drug quantity and repayment
of the buy money are without merit, but we order a LIMITED
REMAND in accordance with Paladino and will retain
jurisdiction pending the conclusion of further proceedings
in the district court.
Nos. 03-4123 & 04-2358                                 7

A true Copy:
      Teste:

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




                 USCA-02-C-0072—4-28-05
