In the

United States Court of Appeals
              For the Seventh Circuit

No. 07-3399

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

B RANDON L. S INGLETON,
                                            Defendant-Appellant.


           Appeal from the United States District Court
                for the Southern District of Illinois.
           No. 07 CR 30030—Michael J. Reagan, Judge.


    A RGUED A PRIL 16, 2008—D ECIDED N OVEMBER 24, 2008




  Before EASTERBROOK, Chief Judge, and W OOD and W ILLIAMS,
Circuit Judges.
  W ILLIAMS, Circuit Judge. Brandon Singleton was con-
victed of one count of distributing five or more grams
of crack cocaine. On appeal, he contends that the district
court erred by holding him responsible for uncharged
conduct that was not sufficiently related to the conduct
for which he was convicted. Singleton also argues that
resentencing is appropriate because of the Supreme
2                                               No. 07-3399

Court’s decision in Kimbrough v. United States, 

, 

(2007), where the court held that a
district court judge can take the crack/cocaine powder
disparity into consideration in deciding whether to
impose a below-guidelines sentence. We reject Singleton’s
argument that the uncharged conduct was not suf-
ficiently related to his charged offenses, but because we
cannot determine whether the district court would have
taken the crack/cocaine powder disparity into account
at sentencing had it not been constrained by our
pre-Kimbrough precedents, we reverse and remand this
case for Singleton to be resentenced.


                   I. BACKGROUND
  On September 1, 2006, a confidential informant cooperat-
ing with law enforcement made a controlled buy of a
quarter ounce of crack cocaine from Singleton. The incident
occurred behind a housing duplex in Alton, Illinois, and
was videotaped. The drugs that the confidential source
purchased were analyzed and found to contain
6.6 grams of cocaine base.
  On February 23, 2007, Singleton was charged with one
count of distributing five grams or more of crack cocaine
in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). On
May 21, 2007, Singleton pled guilty to the charge
without the benefit of a plea agreement. Prior to sen-
tencing, the Probation Office filed a presentence report
(“PSR”) that detailed Singleton’s relevant conduct. In the
PSR, the probation officer explained that in 2000, Singleton
started selling crack to Donald McCrady, a childhood
No. 07-3399                                             3

friend. Initially, Singleton and McCrady started selling
crack cocaine together when they were in their teens, but
McCrady was caught and sent to state prison at age
eighteen. When McCrady was released in October of
2000, he purchased approximately one to two ounces of
crack cocaine per week from Singleton. These purchases
took place over the next five weeks until he was caught
and went to prison again. For the next six years, when-
ever McCrady was not in prison, he purchased one to
two ounces per week of crack cocaine from Singleton.
  The original presentence report added all of Singleton’s
drug sales to McCrady using the two ounce per week
amount in order to calculate relevant conduct. However,
the probation officer did not take McCrady’s prison
terms into account as times when he would not have
been able to purchase drugs from Singleton. Therefore,
the probation officer calculated that 12,247 grams of
crack cocaine could be attributed to Singleton as
relevant conduct for the purpose of sentencing.
  Singleton filed a formal objection to the PSR, stating
that McCrady was in prison during seventeen to
eighteen months of the relevant time period and that the
total amount of crack attributed to Singleton should be
lowered accordingly. He further argued that McCrady
was not a reliable witness and therefore the govern-
ment could not meet its burden of proving relevant
conduct. In response, the probation officer subtracted
eighteen months of drug sales out of the total amount and
concluded that 8,164 grams of crack cocaine were still
attributable to Singleton. There was no resulting effect
4                                              No. 07-3399

on the guideline calculation because any drug sales
over 1,500 grams results in an offense level of 38.
  At the sentencing hearing, McCrady testified that he
purchased one to two ounces of crack cocaine from Single-
ton every week that he was not in prison from 2000
through 2006. Defense counsel cross-examined McCrady
about his criminal history, his drug and alcohol abuse, his
dyslexia, and his prison time. Singleton argued that
McCrady was not reliable or credible and that he
should only be sentenced for the 6.6 grams that he pled
guilty to distributing.
  The government contended that the arguments
presented by the defense at the sentencing hearing were
materially different from the proffer that Singleton
signed, in that Singleton himself had admitted to signifi-
cantly higher numbers of drug sales, so the government
sought permission to enter Singleton’s proffer into evi-
dence.
  The judge agreed that it was inconsistent for Singleton
to argue that he was only responsible for distributing
6.6 grams of crack when he indicated in the proffer that
he was responsible for distributing a significantly greater
amount. The court admitted the proffer into evidence.
Based on Singleton’s own statements in the proffer,
the government argued that he was responsible for dis-
tributing at least 3,326 grams of crack during the relevant
time period (2000-2006). The court concluded that Single-
ton’s drug sales to McCrady constituted relevant
conduct and that McCrady’s testimony was credible.
No. 07-3399                                             5

  The court then summarized the calculations of Single-
ton’s drug transactions and settled on a relevant conduct
total of 5,124 grams, resulting in an offense level of 38
which carries an advisory guidelines range of 210-262
months. Singleton was sentenced at the low end of
the guidelines, 210 months, and he appeals.


                     II. ANALYSIS
 A. The district court did not err in its relevant conduct
    calculation.
  We review the district court’s drug quantity findings
at sentencing for clear error. United States v. Smith, 

, 745 (7th Cir. 2002). We will not overturn the
factual findings of the district court unless we are ”left
with the definite and firm conviction that a mistake
has been made” by the district court. United States v.
Bennett, 

, 912 (7th Cir. 2006).


     1.   Relevant conduct and credibility determina-
          tions
  The United States Sentencing Guidelines (“U.S.S.G.”)
§ 1B1.3 provides that relevant conduct includes all
acts and omissions committed by the defendant, that were
part of the same course of conduct or common scheme
or plan as the offense of conviction. Here, the govern-
ment argues that Singleton’s sales to McCrady constitute
a pattern of continuous drug trafficking that is part of
the same course of conduct as the charged offense. Single-
6                                                  No. 07-3399

ton maintains, however, that the government introduced
no evidence linking the September 1, 2006 sale to the
confidential informant (for which he was charged) to
the McCrady sales. He argues that the government,
therefore, failed to show a connection that would justify
holding Singleton responsible for this uncharged conduct.
See United States v. Ruiz, 

, 882 (7th Cir. 1999)
(finding that the charged offenses did not amount to
relevant conduct because the participants were dif-
ferent and there was a two-year gap in the activity).
  The government can prove relevant conduct by showing
that offenses are part of the same course of conduct if
they are “part of a single episode, spree or ongoing series
of offenses.” United States v. Ortiz, 

, 1040
(7th Cir. 2005). In assessing whether offenses are part of
the same course of conduct, the court looks at whether
there is a strong relationship between the uncharged
conduct and the convicted offense, a relationship that
the government can demonstrate by showing “a
significant similarity, regularity, and temporal proxim-
ity.” 

omitted).
  Here, there is sufficient evidence that Singleton
regularly engaged in drug sales. We define regularity as
“repeated acts or events that take place at fixed and
certain intervals or in accordance with the same con-
sistent or periodical rule or practice.” United States v. Sykes,

, 1337 (7th Cir. 1993) (internal quotation marks
omitted). McCrady testified that he purchased crack
cocaine from Singleton over different time periods from
February 2000 until July 2006 (or May 2006 according to
No. 07-3399                                                  7

Singleton), and the offense for which Singleton was
charged took place two to four months after his last
documented sale to McCrady. See United States v. Zehm,

, 512 (7th Cir. 2000) (stating that “[drug]
purchases predating convicted sales may be considered
relevant conduct”).
  Although there is a gap between Singleton’s last sale
to McCrady and his sale to the confidential informant,
this does not mean, as a matter of law, that temporal
proximity is missing. Cf. 

(finding
no temporal proximity where there was, at a minimum,
a ten-month gap between the drug transactions); see
also United States v. Mullins, 

, 1144 (4th Cir.
1992) (temporal proximity “extremely weak” where
uncharged conduct occurred six months prior to offense
of conviction); United States v. Hahn, 

, 911
(9th Cir. 1992) (evidence of specific similarity and regular-
ity important where period of five months separated
drug transactions). The record indicates that the gap
between the two sales is not because the parties were
discontinuing their routine of regular drug sales, but
rather because McCrady was indicted in May 2006 and
imprisoned in July 2006. Although it is not clear when
Singleton engaged in his last drug transaction with
McCrady (either May or July 2006), McCrady’s imprison-
ment put an end to the pattern of drug dealing between
the parties and makes the two to four month gap between
the charged and uncharged conduct less problematic. See
United States v. Cedano-Rojas, 

, 1180 (7th Cir.
1993) (finding that “[a] respite is unlikely to be fatal in the
finding of a course of conduct if the interruption was not
8                                              No. 07-3399

the choice of the players. In such circumstances, the
lapse does not indicate that the course was abandoned
but only that, in spite of the efforts of the participants,
the venture was inadvertently put on hold.”).
  Moreover, there is sufficient similarity between the
charged and uncharged offenses to shore up any weak-
nesses in the government’s case regarding temporal
proximity. Despite the fact that the charged and uncharged
offenses involved different participants and different
amounts, the uncharged conduct involved the same
principal, the same location, and the same drug—facts
that render it similar enough to the offense of conviction
to show that Singleton was engaging in an ongoing
pattern of conduct. See United States v. White, 

, 348 (7th Cir. 2008) (upholding relevant conduct
finding where the common denominators in the transac-
tions are the defendant and “his unbroken series of sales
to lower level drug sellers in Decatur”); see also United
States v. Wilson, 

, 724 (7th Cir. 2007) (up-
holding relevant conduct finding on the grounds that
the defendant regularly dealt in large quantities of
cocaine during this period, even though he obtained the
cocaine from different sources); United States v. Morris,

, 175 (7th Cir. 1996) (finding similarity even
though the parties involved in the transactions were not
identified because all of the other relevant factors—
location, the defendant’s involvement, drug pricing, etc.—
were the same); United States v. Gooden, 

, 729 (8th Cir. 1989) (finding that the defendant
took part in “drug transactions of a similar character,
conducted in the same geographical area within [six to
No. 07-3399                                                9

eight] months of the offense of conviction . . .
demonstrat[ing] a pattern of continuous drug activity”).
Singleton was a supplier of crack cocaine and had
engaged in consistent crack sales over a period of six
years in Alton, Illinois, and the uncharged offenses were
part of an ongoing series of offenses that justified their
inclusion in the related conduct drug calculation.
  Singleton also argues that the district court failed to
make the required factual findings for determining rele-
vant conduct and that this amounted to clear, reversible
error. Singleton maintains that although the district
court claimed that it was adopting the findings of the
PSR, the PSR never adequately discussed whether the
sales to McCrady were part of the same course of
conduct as the charged offenses. When “a district court
aggregates drug quantities arising from charged or un-
charged relevant conduct, the court should explicitly
state and support, either at the sentencing hearing or
preferably in a written statement of its reasons, its
finding that the unconvicted activities bore the neces-
sary relation to the convicted offense.” United States v.
Sumner, 

, 539 (7th Cir. 2001).
  Here, the district court did not independently consider
the factors of temporal proximity, similarity, regularity, or
common plan/scheme, but the district court’s con-
sideration of McCrady’s testimony and the PSR are suffi-
cient to show that it made the relevant factual findings.
The district court determined that McCrady was credible,
then detailed the history of drug sales between McCrady
and Singleton, and finally, summarized the amounts (one
to two ounces per week) that Singleton sold to McCrady
10                                               No. 07-3399

from 2000 to 2006 and concluded that Singleton was
responsible for 5,124 grams of crack cocaine. See United
States v. Williams, 

, 852 (7th Cir. 2001) (“Where
it is clear that the district judge believed the required
relationship to be present and the judge’s implicit
finding is supported by the record, we have been
reluctant to remand simply because the judge failed to
invoke the ‘magic words’ of section 1B1.3(a)(2).”).
  Singleton argues that the district court erred by relying
on McCrady’s testimony in determining relevant conduct
because McCrady is a convicted felon and he has also
engaged in drinking and marijuana use. We are “reluctant
to disturb credibility determinations absent a com-
pelling reason.” United States v. Noble, 

, 951
(7th Cir. 2001). Here, no compelling reason exists. While
McCrady’s felon status is one factor that the district
court can consider in weighing the evidence, it is also
within the district court’s discretion to give some weight
to his testimony, notwithstanding his status. United
States v. Johnson, 

, 797 (7th Cir. 2007) (the
district court can credit testimony that is “totally uncorrob-
orated and comes from an admitted liar, convicted felon,
large scale drug-dealing, paid government informant”)
(internal citation omitted). Here, the district court acknowl-
edged that McCrady was a career felon, but noted that
his testimony was unrebutted, he testified convincingly,
and he did not appear to be coy or deceptive. See

. (“So long as the informa-
tion which the sentencing judge considers has suf-
ficient indicia of reliability to support its probable accu-
racy, the information may properly be taken into
No. 07-3399                                            11

account in passing sentence.”). Furthermore, McCrady
and Singleton grew up together, sold crack together on
occasion, and had a buyer-seller relationship that spanned
a six-year period. We find that the district court did not
clearly err by finding McCrady to be a credible witness.


 2.      Use of Singleton’s proffer was proper.
  After oral argument in this case, we decided United
States v. Farmer, 

, 374 (7th Cir. 2008), which
found that the government violated the terms of a defen-
dant’s proffer agreement by improperly using informa-
tion given by the defendant in his proffer against him.
Here, the district court admitted Singleton’s proffer
because it found he took a position at sentencing incon-
sistent with his proffer statements. The sixth paragraph
of the proffer agreement bars the government from using
any incriminating information provided by Singleton, but
allows use of the proffer if Singleton made materially
inconsistent statements. The proffer agreement included
the following clause:
      Sixth, pursuant to Section 1B1.8 of the Sentencing
      Guidelines, no self-incriminating information given
      by your client will be used to enhance the Offense
      Level against your client except as provided in that
      Section. The government, may, however, use any
      statements made or other information provided by
      your client to rebut evidence or arguments at sen-
      tencing materially different from any statements
      made or other information provided by your client
      during the “off-the-record” proffer or discussion.
12                                             No. 07-3399

    Singleton maintains the district court clearly erred by
using the proffer to determine the relevant conduct for
sentencing purposes, which he claims violates the terms
of the proffer agreement. Singleton contends that he
never admitted in his proffer that his prior drug transac-
tions were relevant to the charged offense conduct. The
government argues it offered the proffer only to show
Singleton’s position taken at sentencing—that he only
was responsible for the 6.6 grams of crack cocaine he
was charged with—was inconsistent with his proffered
statement that he sold more than six grams of crack
cocaine in the past.
  Farmer cautions against the use of proffers for sen-
tencing purposes. 

is distinguishable
from this case in that the defendant’s proffer in Farmer
was the sole evidence of the amount of cocaine used
to increase his offense level. 

district court
relied on McCrady’s testimony and the PSR to determine
the amount of crack cocaine attributable to Singleton.
The PSR here, unlike the PSR in Farmer, was not based
on Singleton’s proffer. We need not remand because
the district court based the drug quantity determination
on McCrady’s testimony and not any information given
by Singleton in his proffer.
  Therefore, we find that the district court did not err
by including Singleton’s drug sales to McCrady in the
relevant conduct calculation. We further conclude that
admitting Singleton’s proffer was not a reversible error
because the court based Singleton’s sentence on McCrady’s
testimony.
No. 07-3399                                             13

 B. A limited remand is appropriate in light of
    Kimbrough.
  Singleton was sentenced prior to the Supreme Court’s
decision in Kimbrough, which allows a district court
judge to take the crack/cocaine powder disparity into
consideration in deciding whether to impose a below-
guidelines sentence. Singleton did not argue in the pro-
ceedings below that applying the 100:1 ratio would yield
an unreasonable sentence, and we cannot determine
whether the district court would have taken the ratio
into account had it not been constrained by our
pre-Kimbrough precedents. See United States v. Taylor,

, 748-49 (7th Cir. 2008). Accordingly, we issue
a limited remand to allow the district court to inform us
whether it wishes to resentence Singleton in light of
Kimbrough. See 

  We issue a L IMITED R EMAND for proceedings con-
sistent with our opinion in 

.




                          11-24-08