00-3680 U.S. v. Sumner

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“According to Sumner, there was a significant temporal gap between the uncharged conduct and the offense of conviction, there was evidence that he voluntarily ceased the uncharged activity, the uncharged conduct involved a different drug than the offense of conviction, and there was no showing of a common geographical location, common customers, common supplier, common victims, accomplices or modus operandi. Sumner points out that this uncharged conduct didn’t just enhance his sentence; it established the sentence because the drugs charged in the offense of conviction amounted to less than 0.2% of the amount of drugs for which he was held accountable. The government counters that there was no gap between the cessation of crack sales and the commencement of powder cocaine sales. The government premises this assertion on an assumption that the winter 1997 sales occurred in late 1997 rather than early 1997. But there are no findings in the record to support this assumption. Without temporal proximity, the government must make a stronger showing of the other factors, such as regularity and similarity of the acts. Again, the record is thin. The difference in Sumner’s sentence was significant. Without the uncharged conduct, he faced a sentence of 8 to 14 months’ imprisonment. With the uncharged conduct, his sentencing range jumped to 121 to 151 months, with the district court resting on 132 months as the final sentence. This approaches the scenario we have cautioned against, where the uncharged conduct so influences the sentence that it becomes a case of the tail wagging the dog. United States v. Morrison, 207 F.3d 962, 968 (7th Cir. 2000). We believe that Sumner has adequately demonstrated prejudice.”

Vacated and remanded.

Appeal from the United States District Court for the Southern District of Illinois, Gilbert, J. Rovner, J.