In the

United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 07-3373

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

JOSHUA M. L IDDELL,
                                            Defendant-Appellant.
                        ____________
           Appeal from the United States District Court
              for the Southern District of Illinois.
            No. 06 CR 40008—J. Phil Gilbert, Judge.
                        ____________

     A RGUED M AY 8, 2008—D ECIDED S EPTEMBER 10, 2008
                        ____________



 Before M ANION, E VANS, and W ILLIAMS, Circuit Judges.
  W ILLIAMS, Circuit Judge. Defendant Joshua Liddell
pled guilty to two federal drug charges and was sen-
tenced to 240 months in prison as a career offender. He
claims the district court erred by not grouping these two
charges together when it calculated his sentencing guide-
line range. Liddell also contends that resentencing is
necessary in light of the Supreme Court’s decision in
Kimbrough v. United States, 

(2007), and he
2                                               No. 07-3373

claims that his sentence is unreasonable. We conclude
Kimbrough does not affect Liddell’s sentence on count
one and the district court did not err in issuing this sen-
tence. Pursuant to the parties’ stipulation, we issue a
limited remand on count two in light of Kimbrough.


                   I. BACKGROUND
  This is the second time we have encountered this case.
Because we already discussed the underlying facts in
some detail in our previous opinion, we will only
mention the facts necessary to resolve this appeal. See
United States v. Liddell, 

(7th Cir. 2007).
  On May 4, 2006, Liddell pled guilty to two counts of
possession with the intent to distribute five grams or
more of a mixture or substance containing cocaine base.
See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B). The charges were
based on incidents occurring on May 9, 2003 (count two)
and November 22, 2005 (count one).
  In between these two incidents, Liddell was convicted
in Illinois state court of two other felonies—possession
with intent to distribute cocaine and aggravated domestic
battery—for which he served 60 days’ imprisonment.
For count one of the federal charges (corresponding to
the last drug transaction), the district court had to
decide whether the two prior state convictions qualified
Liddell for sentencing as a career offender. See United
States Sentencing Commission Guidelines Manual
(U.S.S.G.) § 4B1.1 (2006) (to be eligible for career offender
sentencing, a defendant must have “at least two prior
No. 07-3373                                                     3

felony convictions of either a crime of violence 1 or a
controlled substance offense”). Adopting the probation
office’s recommendation, the court concluded that the
state conviction for cocaine possession was related to the
conduct charged in count one and did not count toward
career offender status. So the court did not apply the
career offender guidelines and sentenced Liddell to the
statutory minimum of 120 months’ imprisonment on
count one, and 105 months’ imprisonment on count two,
with the sentences to run concurrently.
  The government appealed the district court’s sentence.
We vacated the sentence and remanded, concluding that
the state cocaine conviction was not related to the
charged conduct and so the court should have applied the
career offender guidelines when sentencing Liddell on
count one. See 

(citing United
States v. Hernandez, 

, 987 (7th Cir. 2003)). On
remand, the district court computed the sentencing
guideline range for each count separately (rather than
grouping the two counts and calculating a single range)
and determined that the career offender provisions
yielded a range of 262-327 months’ imprisonment on
count one. The court then sentenced Liddell to a below-
guideline term of 240 months’ imprisonment on count one,



1
   Although the Supreme Court recently limited what con-
stitutes a “crime of violence,” see Begay v. United States, 128 S.
Ct. 1581, 1588 (2008), Liddell does not argue that aggravated
domestic battery is not a crime of violence, so we do not
consider that issue here.
4                                                No. 07-3373

and 87 months’ imprisonment on count two, to run con-
currently. Liddell then filed this appeal.


                      II. ANALYSIS
    A. The district court properly declined to group counts
       one and two.
  Liddell claims the district court should have grouped
counts one and two together before determining whether
he was a career offender. We review the court’s decision
not to group these counts de novo. United States v. Alcala,

, 1156 (7th Cir. 2003); United States v. Sherman,

, 545 (7th Cir. 2001). Liddell seems to believe
(but doesn’t explicitly argue) that if the counts are
grouped, his two intervening state convictions would
no longer be “prior felony convictions” because they
would occur after the earlier of the two grouped offenses,
and so Liddell could not be sentenced as a career offender.
We do not agree, however, that grouping the two counts
would change Liddell’s career offender status. Even if the
two counts were grouped, we would use the date of the
later offense in the group in determining whether the
unrelated state felony convictions were “prior” to the
group. See United States v. Belton, 

, 10 (7th Cir.
1989) (“Nothing in the guidelines’ definition of a career
offender requires . . . that every act constitutive of the
offense underlying his current conviction have been
committed after the prior conviction, and we can think of
no reason for such a requirement.”). We have suggested
that an unrelated felony conviction is “prior” to a con-
spiracy for purposes of the career offender guidelines
No. 07-3373                                                5

when the conspiracy begins before the conviction and
continues afterward. 

see also United States v.
Garecht, 

, 675 (7th Cir. 1999) (modifying Belton
by holding that a felony conviction that occurs during an
ongoing conspiracy can be a “prior” conviction only if it
is unrelated to the conspiracy).
  Similarly, it makes sense that an unrelated felony con-
viction is prior to a “group” of offenses if the conviction
occurs before at least one of the offenses in the group. To
hold otherwise would lead to a nonsensical result—
Liddell would be better off because he was charged with
two grouped offenses that straddled his unrelated state
felony convictions than if he had been charged on just
count one (which involved the later-occurring offense
in the group). See 

(noting that
“[t]he only practical effect” of a similar argument in the
drug conspiracy context “would be to give the govern-
ment an incentive to seek conviction for only so much
of the defendant’s participation in the continuing conspir-
acy as postdated his prior conviction”).
  At any rate, we already explained why count one and
count two are unrelated and should not be grouped
together:
    Liddell’s state incarceration separated the conduct
    charged in Count One from the conduct charged in
    both his state conviction and in Count Two, [so] we
    find that those earlier offenses are not related to Count
    One. . . .
    The guidelines explicitly state that district courts
    should compute sentencing guideline ranges on a
6                                                No. 07-3373

     count-by-count basis. See U.S.S.G. § 1B1.1(d); see also
     United States v. De la Torre, 

, 609 (7th Cir.
     2003). . . . Liddell [should have been] sentenced as a
     career offender for [count one] and not [count two]. To
     hold otherwise not only would conflict with the
     guidelines, but it would strain judicial resources by
     forcing the government to bring multiple, separate
     indictments against defendants like Liddell to ensure
     that such defendants do not get a more lenient sen-
     tence simply because all of their offenses are con-
     solidated in a single indictment.

. Although Liddell claims the “law of
the case” doctrine doesn’t preclude us from changing
this decision, he hasn’t provided a good reason for us
to revisit the issue. And the two federal drug charges—
which are based on incidents separated by more than two-
and-a-half years—do not involve the same victim or
the same transaction, and do not seem to be otherwise
related. See U.S.S.G. § 3D1.2. Therefore, we conclude
the district court correctly determined that the counts
should not be grouped.


    B. The Supreme Court’s decision in Kimbrough v.
       United States does not require us to remand for
       resentencing.
  At oral argument, we asked the parties whether the
Supreme Court’s recent decision in 

, had any effect on this case. The parties filed supple-
mental memoranda addressing this issue. They stipulated
to a limited remand on count two (corresponding to the
No. 07-3373                                                    7

earlier incident) pursuant to the procedure set forth in
United States v. Taylor, 

, 748-49 (7th Cir. 2008).
However, the government opposed any remand on
count one (corresponding to the later incident).
  When Liddell was sentenced, U.S.S.G. § 2D1.1 stated
that individuals who deal in cocaine base (including crack)2
are subject to the same guideline range as those who
deal in 100 times as much powder cocaine. This 100-to-1 (or
“crack/powder”) disparity is also part of the federal
controlled substances statute. 21 U.S.C. § 841(b)(1).
  After the Supreme Court decided that the federal sen-
tencing guidelines were merely advisory, see United States
v. Booker, 

, 264-65 (2005), some district courts
began correcting for the 100-to-1 disparity by sentencing


2
   A brief aside on the distinction between powder cocaine,
cocaine base, and crack cocaine might be useful. “Powder
cocaine” (cocaine hydrochloride) is a salt that is not easily
smoked because it decomposes before vaporizing. But powder
can be converted into its more smokeable “base” form, known
as “cocaine base” or “freebase cocaine.” Because making
freebase generally requires the use of an explosive solvent (like
ether), many dealers instead use baking soda to make “crack
cocaine,” which is merely the street name for a type of cocaine
base that is less pure but safer and easier to make. See United
States v. Edwards, 

, 571 (7th Cir. 2005); Andrew C.
Mac Nally, Comment: A Functionalist Approach to the Definition
of “Cocaine Base” in § 841, 74 U. Chi. L. Rev. 711, 713, 716-21
(2007); Jason A. Gillmer, Note: United States v. Clary: Equal
Protection and the Crack Statute, 45 Am. U.L. Rev. 497, 508-10
(1995).
8                                                 No. 07-3373

crack defendants below their guideline range. We con-
cluded, however, that district courts could not issue below-
guideline sentences merely because they disagreed with
the policy underlying this disparity. See, e.g., United States
v. Miller, 

, 275-76 (7th Cir. 2006). The Supreme
Court reversed us in Kimbrough, concluding that because
“the cocaine Guidelines, like all other Guidelines, are
advisory only,” district courts may consider the
crack/powder disparity in fashioning an appropriate
sentence that is not “greater than necessary” to serve the
objectives of sentencing. 

(citing 18
U.S.C. § 3553(a)). We subsequently held that a limited
remand and resentencing might be appropriate when a
defendant makes, for the first time on appeal, an argu-
ment based on Kimbrough. See 

(citing United States v. Paladino, 

, 481-84 (7th
Cir. 2005)).
  Here, Liddell was not sentenced on count one based on
U.S.S.G. § 2D1.1 and its 100-to-1 disparity.3 Instead, he
was sentenced based on career offender guideline
U.S.S.G. § 4B1.1, which calculates offense levels based on
the statutory maximum sentence for the underlying
offense. See United States v. Harris, No. 07-2195, 

, at *12 (7th Cir. Aug. 6, 2008). To illustrate, section



3
  Accordingly, Liddell cannot benefit on count one from recent
amendments to section 2D1.1 that retroactively reduced offense
levels for certain crack defendants. See Supplement to the 2007
Guidelines Manual 1-4 (2008) (U.S.S.G. § 1B1.10); U.S.S.G.,
Supplement to Appendix C 226-31 (2007) (Amendment 706).
No. 07-3373                                                9

4B1.1 assigns a base offense level of 37 for the crime that
Liddell was convicted of—dealing five grams or more
of cocaine base—because that offense carries a statutory
maximum of life imprisonment (due to his previous
conviction for a felony drug offense). See 21 U.S.C.
§ 841(b)(1)(B). If Liddell had instead peddled five grams
or more of powder cocaine, section 4B1.1 would have
assigned a base offense level of 34. See 

(statutory maximum of 30 years for defendants with a
prior felony drug conviction). After accounting for the
three-level acceptance of responsibility reduction, Liddell
faced a career offender guideline range of 262-327 months
for his crack conviction; he would have faced a career
offender range of 188-235 months had he instead been
convicted of dealing an equivalent amount of powder
cocaine.
  So the differential treatment of crack and powder
cocaine certainly affected the guideline range that Liddell
faced on count one. But the problem for Liddell is that
this disparity did not stem from the guideline itself
but from the statutory maximum that the guideline
referenced. Harris, 

, at *12 (“To the extent
that a sentencing disparity might occur under § 4B1.1
based upon the type of cocaine involved, it does not result
from the now-advisory drug quantity table, but is the
product of a discrepancy created by statute.”). And “[w]hile
the sentencing guidelines may be only advisory for
district judges, congressional legislation is not.” 

sentence entered under the career offender guideline,
§ 4B1.1, raises no Kimbrough problem because to the
extent it treats crack cocaine differently from powder
10                                              No. 07-3373

cocaine, the disparity arises from a statute, not from the
advisory guidelines.” 

see also United States v.
Harper, No. 06-2064, 

, at *4 (7th Cir.
June 17, 2008) (unpublished) (“Kimbrough and the revised
sentencing guidelines had no effect on [the defendant’s]
career offender status.”). We reaffirm that Kimbrough,
which only interpreted the “cocaine guidelines,” did not
change the way courts calculate career offender guide-
line ranges.
  Liddell, however, also makes a more nuanced argu-
ment based on Kimbrough: while a district court cannot
consider the crack/powder disparity in calculating the
career offender guideline range, it can consider the dis-
parity as a reason for issuing a below-guideline sen-
tence. Because Liddell did not raise this argument in the
district court, our review is for plain error. That requires
us to determine whether (1) there was error (2) that was
plain and (3) that “affect[s] substantial rights.” We must
also consider whether to correct the error because it
(4) “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” See United States v.
Hatten-Lubick, 

, 582 (7th Cir. 2008) (quoting
United States v. Olano, 

, 732 (1993) (internal
quotation marks omitted)).
  We first examine whether there was an “error” here.
Whether a court can consider the crack/powder disparity
as a reason for issuing a sentence below the career offender
guidelines is not a trivial question. To begin, the Sen-
tencing Commission has chosen career offender guideline
ranges based on 28 U.S.C. § 994(h), which provides that
No. 07-3373                                               11

“[t]he [Sentencing] Commission shall assure that the
guidelines specify a sentence to a term of imprisonment
at or near the maximum term authorized” for an offense
committed by a career offender. See U.S.S.G. § 4B1.1
(background) (noting that this guideline implements
Congress’s directive under section 994(h)). So for a crack
cocaine offense, section 994(h) directs the Sen-
tencing Commission to peg the career offender guide-
lines at or near the maximum terms of imprisonment in
the federal controlled substances statute, which still
retains a crack/powder disparity. See 21 U.S.C. § 841(b)(1).
This link between the guidelines and the controlled
substances statute might seem to suggest that a court is
limited in its ability to issue below-guideline sentences
to career offenders based solely on the court’s belief that
the crack/powder disparity is unwarranted. Cf. United
States v. Glover, 

, 522 (7th Cir. 2007) (“[T]he
career offender rules pose legal rather than factual issues
for a sentencing judge, which removes the rules from the
reach of Apprendi [v. New Jersey, 

(2000)] and
Booker altogether.”); United States v. Woodard, 

,
399 (7th Cir. 2005) (“Booker does not affect § 994(h), which
calls for career offenders to be sentenced at or near the
statutory maximum.”).
  But other statutory provisions suggest that the Sen-
tencing Commission has some discretion in formulating
guidelines under section 994(h). See 28 U.S.C. § 994(a)-(f)
(providing Commission with its general guideline promul-
gation authority); 

(p) (providing amendment
authority to the Commission). Indeed, the Commission
has relied on these provisions to “modify” section 994(h)’s
12                                                  No. 07-3373

directive and stay true to a different congressional man-
date—avoiding “unwarranted sentencing disparities
among defendants with similar records who have been
found guilty of similar criminal conduct . . . . ” See U.S.S.G.
§ 4B1.1(background) (quoting 28 U.S.C. § 991(b)(1)(B)
(internal quotation marks omitted)); see also 

refinement of this definition [in section
994(h)] over time is consistent with Congress’s choice of
a directive to the Commission rather than a mandatory
minimum sentencing statute.” (citing S. Rep. No. 225,
98th Cong., 1st Sess. 175 (1983)). So the tether that sec-
tion 994(h) creates between the career offender guide-
lines and statutory maximums is not as tight as it might
seem at first glance.
  Moreover, section 994(h) only addresses what the
Sentencing Commission must do; it doesn’t require sen-
tencing courts to impose sentences “at or near” the statutory
maximums. Kimbrough itself suggested that section 994(h)’s
directive targeted the Commission, not the sentencing
courts, when it referred to section 994(h) as an example
of Congress “direct[ing] sentencing practices in express
terms” when it wants to do so. 

(“For example, Congress has specifically required the
Sentencing Commission to set Guidelines sentences for
serious recidivist offenders ‘at or near’ the statutory
maximum. 28 U.S.C. § 994(h).” (emphasis added)). As
the Second Circuit recently held post-Kimbrough:
     Section 994(h) . . . by its terms, is a direction to the
     Sentencing Commission, not to the courts, and it
     finds no express analog in Title 18 or Title 21.
No. 07-3373                                                 13

    While 21 U.S.C. § 841(b) expressly establishes the
    minimum and maximum prison terms that the
    court is allowed to impose for violations of
    § 841(a), there is no statutory provision instructing
    the court to sentence a career offender at or near
    the statutory maximum. And while the sentencing
    statute expressly directs the district court to
    “consider” the “sentencing range established
    for . . . the applicable category of defendant as set
    forth in the guidelines,” 18 U.S.C. § 3553(a)(4)(A),
    it does not instruct the court to impose such a
    sentence.
United States v. Sanchez, 

, 663 (2d Cir. 2008); see

(section 994(h) would not prohibit a district
court from issuing a below-guideline sentence for a
crack defendant); see also United States v. Martin, 

, 96 (1st Cir. 2008) (rejecting the government’s argu-
ment, based on section 994(h), that the district court erred
by awarding a below-guideline sentence to a crack career
offender); 

Court’s recent decision in
Kimbrough opened the door for a sentencing court to
deviate from the guidelines in an individual case even
though that deviation seemingly contravenes a broad
policy pronouncement of the Sentencing Commission.”
(citation omitted)). Additionally, in another post-Kimbrough
case, the government emphasized that a district court
can sentence below the career offender guidelines if the
court disagrees with the policy underlying the
crack/powder disparity. See Gov. Supp. Memo. at 12-17,
United States v. Harris, No. 07-2195 (7th Cir. May 6, 2008).
14                                               No. 07-3373

  Most importantly, since Booker, the Supreme Court has
consistently reaffirmed that all of the sentencing guide-
lines are advisory. See, e.g., 

(“[T]he cocaine Guidelines, like all other Guidelines, are
advisory only . . . ”); 

(Scalia, J., concurring)
(“[T]he district court is free to make its own reasonable
application of the § 3553(a) factors, and to reject (after due
consideration) the advice of the Guidelines.”); Gall v.
United States, 

, 594 (2007) (“[T]he Guide-
lines are now advisory . . . .”); Rita v. United States, 

, 2474 (2007) (Stevens, J., concurring) (“I trust
that those judges who had treated the Guidelines as
virtually mandatory during the post-Booker interregnum
will now recognize that the Guidelines are truly advi-
sory.”). We have clearly held that this includes the career
offender guidelines. See Harris, 

, at *12
(“[O]ur discussion should not be read to suggest that
§ 4B1.1 is any less advisory for a district judge than the
other sentencing guidelines.”). And we have already
indicated post-Kimbrough that courts can consider the
crack/powder disparity when resentencing defendants
who are career offenders. See Harper, 

, at
*4 (rejecting the government’s argument that a remand
in light of Kimbrough was unnecessary because the
district court had “imposed a below-guidelines sentence
that happens to fall within the guidelines range he
would have received as a career offender”).
  However, none of this helps this particular defendant
because any error here wasn’t “plain.” See 

(plain is synonymous with “clear” or “obvious”).
Kimbrough itself didn’t deal with the career offender
No. 07-3373                                                15

context and as evident from the discussion above, it was
not clear before this decision that Kimbrough’s rationale
extends to that context. It would be inappropriate to
find plain error given that the law has been unsettled, see
United States v. Stott, 

, 900 (7th Cir. 2001), and
so we find that any error here was not plain. Neither
Kimbrough nor any extension of it requires us to remand
this case for resentencing on count one.


  C.    The district court’s sentence was reasonable.
  Liddell also claims that his sentence of 240 months’
imprisonment is unreasonable, even though it was 22
months below the career offender guideline range of 262-
327 months. He reasons that because his prison term
doubled upon resentencing, the district court put too
much emphasis on the new guideline range in arriving
at the new sentence.
   When calculating a sentence, a district court first calcu-
lates the proper range under the sentencing guidelines.
It then considers that guideline range in addition to any
of the other relevant sentencing factors under 18 U.S.C.
§ 3553(a) before arriving at the appropriate sentence.
See United States v. Dean, 

, 728-30 (7th Cir.
2005). As we discussed above, the court properly deter-
mined that Liddell was a career offender and correctly
arrived at a sentencing range of 262-327 months. So the
sole question for us to decide is whether the below-guide-
line sentence that Liddell received was reasonable.
  A sentence within a properly calculated guideline
range is presumptively reasonable, so it follows that a
16                                               No. 07-3373

below-guideline sentence is also presumptively rea-
sonable against an attack by a defendant claiming that
the sentence is too high. See 

;
United States v. Mykytiuk, 

, 608 (7th Cir. 2005).
Liddell has not come close to rebutting that presumption
here. See United States v. George, 

, 473 (7th Cir.
2005) (“It is hard to conceive of below-range sentences
that would be unreasonably high.”). Although Liddell’s
240 month sentence is double what it was previously, the
fact remains that on both occasions the district court
sentenced him leniently—first at the mandatory statutory
minimum and then well below the applicable guideline
range. And as the government notes, there is little evi-
dence that the court put too much weight on the guide-
lines given that Liddell received a below-guideline sen-
tence. Perhaps things would have been different if the
court had resentenced Liddell near the top of the new
guideline range, but that is a matter for another day and
another case.


                    III. CONCLUSION
  We A FFIRM the district court’s judgment on count one.
We issue a L IMITED R EMAND on count two for pro-
ceedings consistent with our opinion in 

.




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