In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 23-1180
UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,
                                 v.

BERNELL BRASHER,
                                               Defendant-Appellant.
                     ____________________

         Appeal from the United States District Court for the
                    Southern District of Illinois.
            No. 4:21-cr-40070 — J. Phil Gilbert, Judge.
                     ____________________

     ARGUED JANUARY 22, 2024 — DECIDED JUNE 28, 2024
                ____________________

   Before EASTERBROOK, ST. EVE, and JACKSON-AKIWUMI,
Circuit Judges.
    ST. EVE, Circuit Judge. This appeal asks us to hold that some
of Bernell Brasher’s past conduct bore too attenuated a link to
his offense of conviction to qualify as relevant conduct at sen-
tencing. But Brasher never raised that issue below, so we re-
view here for plain error. Finding no such error, we affirm.
2                                                 No. 23-1180

                       I. Introduction
A. Factual Background
    This case started when the Drug Enforcement Administra-
tion (“DEA”) got a lucky break on October 27, 2021. A confi-
dential source gave them a call with good news: a man named
Bacaree Oaks had turned up at the source’s Murphysboro, Il-
linois home that night with a pound of meth for sale. The
source had told Oaks he would find a buyer, but then de-
ployed a “ruse” so that he could call DEA. When law enforce-
ment reached the scene for surveillance, they saw Oaks exit
the source’s home and depart in a vehicle with Bernell
Brasher, the appellant here.
    Oaks and Brasher returned to the source’s residence not
long after. Rather than find another buyer immediately, the
source suggested that he would take the meth on credit and
sell it, paying Oaks and Brasher $5,000 afterward. The three
agreed to this deal. But instead of distributing the meth, the
source turned it over to law enforcement. Their laboratories
tested the package, which turned out to comprise 416.7 grams
of 99% pure methamphetamine.
    Police later arrested Brasher and Oaks. While police drove
Brasher to jail, he told officers he owed money to his own sup-
plier, in Mexico, for about 100 pounds of meth Brasher had
out on the street. Officers took note, since the meth sold to the
confidential source also came in a pound quantity.
B. Procedural Background
   Less than a month later, on November 17, a grand jury in-
dicted both Brasher and Oaks for conspiracy to distribute
methamphetamine under 

(a). Brasher pleaded
guilty, and then the district court ordered a presentence
No. 23-1180                                                 3

investigation report (“PSR”). The PSR concluded that for sen-
tencing purposes, Brasher’s relevant conduct included four
instances of past drug distribution activity. We take them in
chronological order.
   The Birmingham Deal. In February 2018, a different confi-
dential source had flagged Brasher to law enforcement. The
source asked Brasher about sourcing meth for a buyer in Bir-
mingham, Alabama. Brasher told the source he could supply
four to eight ounces of the drug—then, in March, asked the
source to travel with him from St. Louis, Missouri to Birming-
ham to conduct the deal. That trip never happened, so this
conduct added no drug weight to Brasher’s tab.
   The Kansas Stop. A few months later, in May 2018, Kansas
Highway Patrol troopers stopped a rental vehicle Brasher was
driving. The car had been rented in the name of LaShae
Broadway, the mother of Brasher’s daughter. The troopers
smelled marijuana and searched the car. Inside, they found
about $34,000 in oddly stored cash: it had been vacuum
sealed, covered in hand sanitizer, and wrapped in plastic. The
troopers released Brasher from the scene. No drug weight
stemmed from this interaction either.
    The N.N. Sales. Another confidential source (this one going
by N.N.) told police in January 2020 he had bought a pound
of meth from Brasher a couple of times. That counted for 907.2
grams (2 pounds) of a mixture and substance containing
methamphetamine, which the PSR recommended factoring
into Brasher’s sentence as relevant conduct.
   The Crontz Conduct. This last, most important conduct is
named for Brasher’s co-conspirators, Tammy and Jerry
Crontz. On July 15, 2020, a confidential source explained that
4                                                 No. 23-1180

the husband-and-wife pair had been selling ice (i.e. pure,
crystalline) meth in ounce quantities from their home. They
were happy to discuss their supplier with the source: it was
Brasher. Later that month, agents got word that a drug ship-
ment would come to Ava, Illinois, addressed to the Crontzes’
nephew’s home. Just as planned, police saw the nephew pick
up the package and deliver it to the elder Crontzes.
    The police then arrested and questioned Tammy Crontz.
She told them she bought meth from a man she called “Boo,”
and then the police took her back to her home to search it. On
the way there, she informed the officers three pounds of meth
had arrived in the mail that same day, representing her largest
ever shipment. Typically, Tammy said, the suppliers would
pick up drug proceeds at her home. In fact, one supplier had
picked up $17,200 just that morning. In the end, police found
882.5 grams (1.95 pounds) of 99% pure ice in her home. Then
both Tammy and her husband talked with agents, telling
them they had received one to two pounds of ice from Brasher
10 to 15 different times. The PSR, taking the low end of both
estimates, later attributed to Brasher 10 pounds (or 4,536
grams) of a mixture containing methamphetamine. Tammy
told police, too, that she had shipped about $15,000 in cash to
Brasher in San Diego.
    Agents also intercepted four calls between Tammy and
Brasher. The two discussed the $15,000 shipment—Brasher
did not have it because agents had seized it—as well as a
future shipment of cocaine and ice. Brasher surmised that law
enforcement had seized the package and agreed with Tammy
to talk in person on August 4. Meanwhile in Ava, both agents
and Crontz affiliates asked the Post Office about Brasher’s
drug packages. The package the agents wanted was out for
No. 23-1180                                                   5

delivery. The Crontzes’ son came to the office, too, to ask that
the Post Office allow someone else to pick up one of his
packages—that one turned out to contain 80 grams of cocaine.
   Tammy and Brasher met on August 4, though Tammy had
flipped by then to work for the police. They discussed upcom-
ing drug deliveries. The next day, agents picked up another
shipment from San Diego, this one addressed to Jerry Crontz.
Testing revealed it contained 77 grams of cocaine, 1.1 pounds
of marijuana, and 1,575.7 grams of actual methamphetamine.
   Tammy talked with agents again on August 13. She ex-
plained that before getting into distribution, she had bought
on a retail basis: “one-ounce quantities of methamphetamine
from Brasher every seven to ten days between December 2019
and April 2020.” The PSR again made a conservative estimate,
holding Brasher responsible for 6 ounces or 170.1 grams of a
mixture and substance containing meth. Things had pro-
gressed from there, with Brasher sending meth directly to
Tammy as well as packages containing meth and marijuana
products to her son’s home.
   Based on the N.N. sales, the Oaks deal, and the Crontz con-
duct, the PSR concluded that Brasher’s relevant conduct “in-
volved the possession and distribution of 2,874.9 grams of ac-
tual methamphetamine; 5,613.3 grams of a mixture and sub-
stance containing methamphetamine; 157 grams of cocaine;
and 1.1 pounds of marihuana.” That amounts to a converted
drug weight of 68,756.49 kilograms.
   After factoring in the relevant conduct, Brasher had an of-
fense level of 33 with a criminal history category of III, and a
corresponding Guidelines range of 168 to 210 months of im-
prisonment.
6                                                    No. 23-1180

    Brasher made three objections to the PSR. None is part of
this appeal. He cited United States v. Carnell, 

 (7th
Cir. 2020), to ask the district court to treat all the methamphet-
amine officers had recovered as a “mixture and substance
containing methamphetamine,” with its lighter sentencing
consequences. He objected to his criminal history score, as-
serting (wrongly) that he had not been on probation when he
committed his offense. And he objected to the PSR’s identify-
ing him as part of the Crip gang.
    At sentencing, the district court first confirmed Brasher
had no other objections that might affect the Guidelines range.
He did not. The court then heard arguments on Brasher’s
three objections, ultimately adopting the PSR’s findings ex-
cept on the gang affiliation issue. Since Brasher had not raised
any question about the relevance of his past conduct, the dis-
trict court did not address this issue. Brasher took responsi-
bility for his crimes during allocution, including those with
the Crontzes, about which he told the court “I’m not going to
make any excuses.”
    The district court sentenced Brasher to 200 months’ im-
prisonment, which fell within his Guidelines range.
    Brasher appealed.
                          II. Analysis
   When Brasher pleaded guilty to his drug crime with Oaks,
the district court calculated his base offense level by totaling
the drug weight from the above past conduct. This practice
finds its roots in U.S.S.G. § 1B1.3(a)(2). Under that guideline,
other acts “that were part of the same course of conduct or
common scheme or plan as the offense of conviction” enter
the mix for calculating a base offense level. Id. At the same
No. 23-1180                                                    7

time, the mere “fact that a defendant engaged in other un-
charged or acquitted drug transactions” is not enough. United
States v. Rollerson, 

 (7th Cir. 2021). To bridge
the gap between past conduct and the offense of conviction,
we look for “significant ‘similarity, regularity and temporal
proximity’” between the offense of conviction and the other
conduct. 

 (quoting United States v. McGowan, 

 (7th Cir. 2007)).
    From within that framework, Brasher urges that the court
should have excluded his past conduct—with the Crontzes,
mainly—from the drug weight calculation. Because Brasher
did not raise this issue before the district court, we typically
would ask first whether that inaction represents waiver or for-
feiture. We need not decide that question, though, since any
error was not plain. Neither Brasher’s substantive theory (that
the conduct did not relate closely enough to the offense of
conviction) nor his procedural theory (that the district court
did not explain the connection) survives plain error’s strin-
gent standard of review.
A. Standard of Review
    Even though Brasher did not preserve this argument, we
may consider it under the narrow exception expressed in Fed.
R. Crim. P. 52(b): “A plain error that affects substantial rights
may be considered even though it was not brought to the
court’s attention.” The bounded authority Rule 52(b) confers
reflects “the careful balance it strikes between judicial effi-
ciency and the redress of injustice,” which in turn explains the
prohibition on “unwarranted extension” of the Rule. Puckett
v. United States, 

 (2009) (quoting United States
v. Young, 

 (1985)).
8                                                     No. 23-1180

    To establish plain error, Brasher must “show (1) an error,
(2) that is plain, (3) that affects substantial rights, and (4) that
had a serious effect on the fairness, integrity, or public repu-
tation of judicial proceedings.” United States v. Haas, 

 (7th Cir. 2022) (cleaned up); see also Greer v. United
States, 

, 507–08 (2021). We can set aside the latter
two elements for today because Brasher alleges an error in cal-
culating his Guidelines range, which ordinarily satisfies both.
See Molina-Martinez v. United States, 

 (2016)
(“substantial rights” prong); Rosales-Mireles v. United States,

 (2018) (“fairness, integrity, or public rep-
utation” prong). With that in mind, our focus trains first on
whether the district court erred, and second on whether it did
so plainly, in a “‘clear,’ or, equivalently, ‘obvious’” way.
United States v. Sykes, 

 (7th Cir. 2010) (quoting
United States v. Olano, 

 (1993)). “We have
never required, however, that the error be obvious to the dis-
trict court, only that the error was obvious under the law.”
United States v. Burns, 

 (7th Cir. 2016).
    Through that lens we assess Brasher’s arguments.
B. Substantive Theory
    Brasher argues first that his past conduct was too dissimi-
lar from his offense of conviction—and too long before it—to
factor into his Guidelines calculation. For Brasher, the gap be-
tween these events overwhelms any similarity. The offense of
conviction occurred in late October 2021. Meanwhile, the
Crontz conduct commenced in December 2019 and concluded
in early August 2020. In sum, the last of the Crontz conduct
predated the Oaks deal by almost fifteen months. The N.N.
conduct reaches a bit further back—seven additional months.
No. 23-1180                                                      9

    Both timing and similarity factor into our analysis. One
comment to the pertinent guideline, U.S.S.G. § 1B1.3(a)(2),
cmt. 5(B)(i), calls for related offenses that are “substantially
connected to each other by at least one common factor, such
as common victims, common accomplices, common purpose,
or similar modus operandi.” Building on that foundation, we
ask for “a strong relationship” between the two, which the
government can establish with “a significant similarity, regu-
larity, and temporal proximity.” Rollerson, 

(cleaned up). This relationship among similarity, regularity,
and temporal proximity works on a sliding scale. “[W]ithout
temporal proximity, the government needs a stronger show-
ing regarding the other course of conduct factors, such as reg-
ularity or similarity of acts.” United States v. Ortiz, 

 (7th Cir. 2005).
    We agree with Brasher that temporal proximity is lacking
here. Indeed, our precedent rules out the contrary conclusion.
In one case, we held an eight-month gap was “enough to cast
doubt on the relevance of the earlier conduct.” McGowan, 

. The same goes for ten months. See Ortiz, 

. Another case even cites out-of-circuit precedent label-
ing a five-month gap “extremely weak” evidence of temporal
proximity. See United States v. Sykes, 

 (7th Cir.
1993) (citing United States v. Mullins, 

 (4th
Cir. 1992)); see also United States v. Hahn, 

 (9th
Cir. 1992) (six months). Drawing the line in this vicinity re-
flects a consensus, for several circuits have held temporal
proximity absent—and hence more similarity required—
when the gap between two offenses runs past a year. See
United States v. Garcia, 

 (10th Cir. 2020) (col-
lecting cases).
10                                                   No. 23-1180

    But that lack of temporal proximity only gets Brasher so
far, setting a higher bar for similarity and/or regularity. Ortiz,

. Here, we are satisfied that there was suffi-
cient similarity between the offense of conviction and the un-
charged conduct to satisfy the plain error standard. That
standard permits reversal only of “‘clear,’ or, equivalently,
‘obvious’” mistakes. Olano, 

. Mistakes resting
on “subtle, arcane, debatable, or factually complicated” dis-
tinctions fall outside that set. United States v. Hopper, 

 (7th Cir. 2021) (quoting United States v. Caputo, 

 (7th Cir. 1992)). A truly plain error should run
“contrary to well-settled law.” 

 (quoting United States v.
Salas, 

 (10th Cir. 2018)).
    The district court did not violate well-settled law by in-
cluding this relevant conduct. To the contrary, many cases es-
tablish that where “the uncharged conduct involved the same
principal, the same location, and the same drug” as the of-
fense of conviction, those comparisons “render it similar
enough” to be relevant—even if “the charged and uncharged
offenses involved different participants and different
amounts.” United States v. Singleton, 

 (7th Cir.
2008); see also United States v. Dixon, 

 (7th
Cir. 2010) (citing Singleton on this point); United States v. Ec-
cles, 

 (7th Cir. 2017) (same).
    Brasher’s past conduct and his offense of conviction share
all these characteristics. The “same principal” conducted all
these deals: Brasher himself. The “same location” features in
the Oaks and Crontz deals: a small area of southern Illinois.
(To put a finer point on it, the deals went down within a
twenty-minute drive of one another. Murphysboro, where the
Oaks deal occurred, sits just two towns over from the
No. 23-1180                                                   11

Crontzes’ Ava abode.) And all the past conduct primarily
dealt with the “same drug” Brasher sold the source: ice meth-
amphetamine.
    The similarities here go further, surpassing those in the
Singleton line of cases. Brasher consistently sourced his drugs
from Mexico by way of California. He typically sold in pound
quantities, even telling officers he had 100 pounds out on the
street. And many of the deals involved fronting and middle-
men. Certainly, all three of these additional factors—(1)
pound quantities of (2) California meth (3) fronted to middle-
men—apply to both the Oaks and Crontz deals. With all those
similarities, plus the Singleton line of cases, we cannot see how
“well-settled law” compelled the district court to decide oth-
erwise. Hopper, 

. Quite the opposite: together,
the multitude of similarities here make up precisely the kind
of “similar modus operandi” the Guidelines hold out as the key
to a finding of relevance. U.S.S.G. § 1B1.3(a)(2) cmt. 5(B)(i).
    Brasher’s response is to assert that many crimes in the
Southern District of Illinois share these traits. He contends it
proves too much to include past conduct on such common-
place facts. Sure enough, we see our share of methampheta-
mine cases stemming from downstate Illinois. See, e.g., United
States v. Wright, 

 (7th Cir. 2023). And to his
credit, Brasher is correct that much of the nation’s meth sup-
ply originates from Mexico. See Drug Enforcement Admin-
istration, 2017 National Drug Threat Assessment 77 (2017)
(“The [southern border] remains the main entry point for the
majority of methamphetamine entering the United States.”).
   But all this is beside the point. The goal of the Guidelines’
limitations on relevant conduct is to parse out which past con-
duct represents “part of the same course of conduct or
12                                                   No. 23-1180

common scheme or plan” as the charged offense. U.S.S.G.
§ 1B1.3(a)(2). What matters is whether the scheme or plan is
common among the defendant’s activities. While some of the
individual similarities between Brasher’s charged and un-
charged conduct might not establish relevance alone, the con-
fluence of several similarities here adds up to a common plan
or scheme and assures us that the district court’s findings at
sentencing are free from plain error.
    Brasher flags other differences between the Crontz and
Oaks deals: different accomplices, different modes of trans-
portation, different ways of picking up profits, and sometimes
different substances. These differences reflect only the vast
scope of his enterprise—it encompassed many people and
many modalities. Besides, no two deals are exactly alike. As
in Singleton, finding three key commonalities makes the two
sets of conduct “similar enough.” 

. Having
found those commonalities (and more), we need not address
each purported difference.
    To the extent Brasher contests the relevance of his sales to
the confidential source N.N., it gains him nothing. Each was a
sale of a pound of Mexican methamphetamine, which is con-
sistent with Brasher’s established pattern. And any error on
the N.N. front was harmless. With the N.N. sales, the district
court held Brasher responsible for 68,756.49 kilograms of con-
verted drug weight. Removing those sales leaves nearly
67,000 kilograms. This lower weight would result in the same
offense level: 36. See U.S.S.G. § 2D1.1. Even if the district court
had plainly erred here, it makes no difference. The same goes
for the previous ounce-quantity sales to Tammy Crontz,
which totaled 170.1 grams (or, converted under the Guide-
lines’ math, 340.2 kilograms). The repeated, pound quantity
No. 23-1180                                                    13

sales to the Crontzes dwarf these other transactions, and they
closely parallel Brasher’s conduct with Oaks.
    It was not plain error to consider Brasher’s past conduct as
relevant and sentence him accordingly.
C. Procedural Theory
    For his next argument, Brasher contends the district court
left unmet an obligation to explain why the past conduct was
relevant. See United States v. Sumner, 

 (7th Cir.
2001). Recall that the district court never explained why the
Crontz conduct was relevant. For good reason: Brasher did
not raise the issue. More than that, he disclaimed any intent
to dispute the PSR’s conclusions beyond three narrow
grounds. Now that sentencing is over and the district court
can no longer make a record on this topic, Brasher calls on us
to decide the issue.
    A district court “aggregating drug quantities arising from
uncharged or unconvicted relevant conduct for purposes of
calculating a defendant's base offense level” should “explic-
itly state and support, either at the sentencing hearing or
(preferably) in a written statement of reasons, its finding that
the unconvicted activities bore the necessary relation to the
convicted offense.” United States v. Arroyo, 

(7th Cir. 2005) (cleaned up).
    Still, our law leaves no doubt: even when the district court
skips an explanation, “[w]e may nonetheless affirm without a
recitation of ‘magic words’ that reference § 1B1.3(a)(2) if the
record supports the district court’s conclusion.” United States
v. Westerfield, 

 (7th Cir. 2013); see also United
States v. Draheim, 

, 659 (7th Cir. 2020). There is no
error if “the record could support the conclusion that the two
14                                               No. 23-1180

offenses were part of the same course of conduct.” Arroyo, 

. For the reasons above, this record could support
just that conclusion.
                         *      *      *
     The judgment of the district court is
                                                   AFFIRMED.
No. 23-1180                                                  15

    JACKSON-AKIWUMI, Circuit Judge, concurring. I join the ma-
jority opinion because it applies our circuit’s current law on
relevant conduct to Bernell Brasher’s case, but I write sepa-
rately to highlight what I view as an unfortunate devolution
in our circuit’s handling of relevant conduct altogether. By
watering down our standard for what district courts must do
to ensure uncharged conduct is sufficiently related to conduct
for which a defendant is convicted, we further increase the
power of the government and the courts to punish individu-
als for conduct for which the government did not attain an
indictment or conviction. Sentencing based on relevant con-
duct is a constitutionally dubious proposition on its own, but
our circuit’s weakened standard only exacerbates the risk of a
constitutional violation. It’s time we correct course.
                               I
    People unfamiliar with federal sentencing law might find
it hard to believe that the law allows sentencing judges to in-
crease a defendant’s sentence based on conduct for which the
defendant was not charged or convicted. Under this regime,
such uncharged, dismissed, or acquitted conduct is called
“relevant conduct,” which the United States Sentencing
Guidelines Manual defines somewhat circularly as “the range
of conduct that is relevant to determining the applicable of-
fense level.” U.S. SENT’G GUIDELINES MANUAL § 1B1.3 cmt.
background (U.S. SENT’G COMM’N 2023). For any given con-
viction, relevant conduct could include (1) acts and omissions
done or willfully caused by the defendant in connection with
the offense of conviction, see USSG §1B1.3(a)(1)(A); (2) acts
and omissions done by others in connection with the offense
of conviction as part of “jointly undertaken criminal activity,”
USSG §1B1.3(a)(1)(B); (3) acts separate from the offense of
16                                                   No. 23-1180

conviction that involved the “same course of conduct” or a
“common scheme or plan” as the offense of conviction, USSG
§1B1.3(a)(2); and/or (4) any harm that results from the acts al-
ready described, see USSG §1B1.3(a)(3).
    Jurists and practitioners alike have been unsparing in their
criticism of increasing a sentence based on conduct for which
the defendant has not been convicted. Justice Scalia described
two decades ago how sentencing a defendant for uncharged
conduct could lead to “absurd result[s].” Blakely v. Washing-
ton, 

 (2004). Justice Kavanaugh, then on the
D.C. Circuit, recognized the regime as a “dubious infringe-
ment of the rights to due process and to a jury trial.” United
States v. Bell, 

 (D.C. Cir. 2015) (Kavanaugh, J.,
concurring). Federal Defenders have denounced the practice
as a violation of defendants’ Fifth and Sixth Amendment
rights, the cause of unwarranted disparities, and a threat to
respect for the law. See, e.g., Letter from Marjorie Meyers,
Chair, Fed. Def. Sent’g Guidelines Comm., to the Honorable
Patti Saris, Chair, U.S. Sent’g Comm’n., at 29–33 (Aug. 26,
2011); Letter from Michael Caruso, Chair, Fed. Def. Sent’g
Guidelines Comm., to the Honorable Carlton W. Reeves,
Chair, U.S. Sent’g Comm’n., at App’x at 5 n.22 (Oct. 17, 2022).
    Even the American Bar Association has rejected the prac-
tice. For 30 years, the organization has retained standards for
sentencing explaining that “[t]he offense of conviction should
be fixed by the charges proven at trial or established as the
factual basis for a plea of guilty or nolo contendere.” See ABA
STANDARDS FOR CRIMINAL JUSTICE SENTENCING § 18-3.6 (3d ed.
1994).
   In the early days of the Guidelines, our court was similarly
skeptical of the relevant conduct enhancement. Shortly after
No. 23-1180                                                     17

the Guidelines were promulgated (and still considered man-
datory), we observed that the relevant conduct provision “in-
vite[s] the prosecutor to indict for less serious offenses which
are easy to prove and then expand them in the probation of-
fice.” United States v. Ebbole, 

 (7th Cir. 1990)
(citation omitted). Because of that reality, we “urge[d] prose-
cutors not to indict defendants on relatively minor offenses
and then seek enhanced sentences later” under the relevant
conduct guideline. United States v. Fischer, 

(7th Cir. 1990); United States v. Bacallao, 

 (7th
Cir. 1998). The problem was obvious, so we sought to curb its
excesses.
    To guard against abuse of relevant conduct, our court de-
veloped a bright-line rule requiring district courts to “explic-
itly state and support” their finding that the uncharged or un-
convicted conduct bore the necessary relation to the convicted
conduct if they applied the enhancement. United States v. Du-
arte, 

 (7th Cir. 1991), cert. denied, 

 (1992). Unfortunately, our commitment to that prophylac-
tic was short-lived.
                                II
    In United States v. Duarte, 

 (7th Cir.
1991), we noted that the relevant conduct regime “grants the
government a fearsome tool” by allowing it to increase a
defendant’s sentence based on conduct for which it did not
pursue a charge or conviction. But that tool “has its limits,”
we said. Duarte, 

. One such limit is that the
“district court must first find—by a preponderance of the
evidence—that those activities were ‘part of the same course
of conduct or common scheme or plan’ as the convicted
offense.” 

 To make that finding, we required district courts
18                                                  No. 23-1180

to “explicitly state and support, either at the sentencing
hearing or (preferably) in a written statement of reasons,
[their] finding that the unconvicted activities bore the
necessary relation to the convicted offense.” 

 (citing United
States v. Jewel, 

, 233–35 (7th Cir. 1991); United
States v. Edwards, 

, 1399–1400 (7th Cir. 1991);
United States v. Morrison, 

, 501–02 (7th Cir. 1991)).
We held that that rule is violated where there is “no instance
in the record where the district court explicitly found” that
the uncharged conduct and the offense conduct were part of
the same course of conduct or common scheme. Id. at 1264.
    Duarte’s rule was straightforward and easy to enforce. Our
application of it in United States v. Jackson, 

 (7th
Cir. 1993), proves the point. In that case, several defendants
were convicted of conspiracy to possess cocaine with the in-
tent to distribute. One defendant pleaded guilty to five kilo-
grams, but the government argued in its presentence report
(“PSR”) and at sentencing that he should be held accountable
for all the cocaine involved in the conspiracy—an additional
45 kilos. Jackson, 

. The defendant objected and
requested an evidentiary hearing to determine if the addi-
tional drugs should be attributed to him. 

 The district court
denied his request and sentenced him based on the full 50 ki-
los. 

 When the case came to us, we vacated the district
court’s relevant conduct finding because “the district court
failed to support its findings in the record.” 

.
   We reinforced Duarte’s rule again in United States v.
Sumner, 

 (7th Cir. 2001). There, the defendant
pleaded guilty to distribution of cocaine. Sumner, 

. At sentencing, the government sought the relevant con-
duct enhancement based on the government’s representation
No. 23-1180                                                   19

that Sumner had sold cocaine two years before. 

.
Sumner did not object to the inclusion of the drugs as relevant
conduct, but he did object to the government’s calculations.

 at 534–35. The district court overruled his objection and in-
creased his sentence using the relevant conduct guideline. 

. On appeal, Sumner argued that the district court erred
by failing to articulate why the earlier conduct qualified as
“relevant conduct.” 

. We agreed. 

. After re-
viewing the transcript and PSR (which the district court had
adopted), we found that there was “no discussion” in the doc-
uments “about the similarity, regularity, or temporal proxim-
ity of the uncharged acts and the offense of conviction” other
than the naked facts. 

 As a result, we held that the district
court’s “failure to explain the connection between the un-
charged conduct and the offense of conviction was erroneous
under well-established law,” and vacated Sumner’s sentence.

    We have applied Duarte’s rule to both overturn and affirm
sentencing decisions. Under Duarte, when district judges
stated their reasons for applying the relevant conduct guide-
line, we routinely affirmed the sentences the judges imposed
without second guessing those reasons. See, e.g., United States
v. Pollard, 

 (7th Cir. 1992) (affirming because
“the district judge stated his reasons for attributing the mari-
juana plants grown by [a co-defendant] for sentencing pur-
poses”); United States v. Cave, 

 (7th Cir. 1994)
(nonprecedential decision) (affirming because the “district
court made the necessary findings of fact both at the sentenc-
ing hearing and in its written order”); United States v. Staple-
ton, 

 (7th Cir. 1995) (nonprecedential decision) (af-
firming because the district court “adequately articulated the
20                                                   No. 23-1180

necessary relationship between the offense of conviction and
the other activities”).
   The Duarte rule was workable because it struck a balance
between allowing prosecutors the benefit of the relevant con-
duct tool, while also making sure they showed their work.
And the burden on district courts was minimal: All the rule
required of them was to explain how the uncharged conduct
was relevant to the offense of conviction—an explanation the
government should have provided anyway.
    Despite Duarte’s careful balance, some panels of this court
began chipping away at its rule. The first chip was carved in
United States v. Thomas, 

 (7th Cir. 1992). There, the
defendant pleaded guilty to illegal possession of a firearm,
possession of cocaine with intent to distribute, and using and
carrying firearms during and in relation to a drug-trafficking
crime. 

. With an offense level of 12 and a criminal
history category of IV, the Guidelines mandated a sentencing
range of 21 to 27 months. 

 Thinking this was too low, the
government loaded up Thomas’s PSR with “relevant con-
duct,” and argued that such conduct earned him a Guidelines
range of 92 to 115 months. 

. The district court sen-
tenced him to 114 months. 

 Its explanation? “I find that . . .
. the statements in [paragraph 26 of the PSR] are relevant con-
duct under the drug charge in this case and that . . . would put
the defendant in the offense level 26.” 

 (citing Tr. at 10–11).
    Thomas appealed the district court’s paper-thin rationale,
but he found no relief here. Even though we observed that the
district court “never explicitly found that Thomas’ various
drug sales were part of a ‘common scheme or plan’” and
“fail[ed] to provide an adequate discussion of the issue,” we
nevertheless affirmed because “[t]he district court clearly
No. 23-1180                                                    21

adopted the government’s reasoning as to the amount of co-
caine that should be considered relevant conduct.” 

.
Thomas thus established an exception to Duarte: If the district
court adopts the relevant conduct alleged in the PSR and the
government’s explanation of it, the court need not make spe-
cific findings on the record.
    Thomas wasn’t the only carve-out to the Duarte rule. Soon
came United States v. Acosta, where we affirmed a district
court’s application of the relevant conduct enhancement even
though the district court made only an “implicit determina-
tion” that the uncharged conduct was relevant to the offense
of conviction. 

 (7th Cir. 1996). We called it im-
plicit because “the judge did not expressly find that [the un-
charged conduct was] part of the same course of conduct”; he
merely “carefully considered whether the information in the
[PSR]” was reliable and adopted its findings. 

 Still, we de-
termined that we could consider in the first instance “whether
the evidence was sufficient to establish that [the uncharged
conduct was] part of ‘the same course of conduct or common
scheme or plan’ as Acosta’s [offense of conviction].” 

.
Ultimately, we affirmed Acosta’s sentence because our re-
view convinced us that the evidence “provide[d] ample sup-
port for [the district court’s] implicit conclusion.” 

    Acosta’s expansion of Thomas was at once subtle and sub-
stantial. After Acosta, neither the district court nor the govern-
ment is required to explain how uncharged conduct alleged
in a PSR relates to the defendant’s offense of conviction. After
Acosta, we will affirm a district court’s application of the rele-
vant conduct guideline so long as “it is clear that the district
judge believed the required relationship to be present” and we
can find evidence in the record to support the judge’s implicit
22                                                   No. 23-1180

finding. United States v. Patel, 

 (7th Cir.
1997) (emphasis added). See also United States v. Arroyo, 

 (7th Cir. 2005) (affirming application of the rele-
vant conduct enhancement despite finding that the district
court “made no explicit findings linking the cocaine evidence
to the offense of conviction” and “[t]he PSR also provides no
support for such a contention”); United States v. Locke, 

, 244–45 (7th Cir. 2011) (explaining rule and collecting
cases).
    Today, the rule in Acosta stands as the predominant rule
in our circuit. That is so even though we have never formally
overruled or abrogated Duarte.
                               III
    This case is an appropriate one to explore our handling of
the relevant conduct guideline because the outcome would be
vastly different if either Duarte or Thomas were still acknowl-
edged as the law of the circuit. Faithful application of either
of those precedents would require that we vacate and remand
Brasher’s case for resentencing.
    There is no question here that the district court did not
“explicitly state and support” its finding that the “relevant
conduct” listed in the PSR was sufficiently related to the of-
fense of conviction for purposes of the relevant conduct
guideline. Ante at 13. In fact, the court did not discuss the sim-
ilarities or differences between the “relevant conduct” and of-
fense conduct at all—it merely adopted the PSR and increased
Brasher’s sentence based on the facts contained therein. That
sequence of events would not survive review under Duarte.
   Nor would it survive under Thomas. Recall that, under
Thomas, district courts could avoid their obligation to
No. 23-1180                                                  23

“explicitly state and support” their relevant conduct finding
so long as they adopted the facts contained in the PSR and the
government’s theory of how the uncharged conduct relates to
the offense conduct. Here, the government provided no ex-
planation connecting the disparate offenses, so the exception
articulated in Thomas would be inapplicable.
    Nonetheless, we affirm because, under Acosta and its
progeny, we are permitted to search the record and make the
connections for the government and the district court. While
I believe that the connections here are not particularly strong,
I recognize that this case comes to us on plain error review
and that we have previously sanctioned relevant conduct
findings for connections even more tenuous than those here.
                           *   *   *
   In closing, I join the chorus of critics who have explained
that sentencing a defendant based on uncharged conduct is
suspect as both a constitutional and policy matter. The United
States Sentencing Commission has the authority to address
these issues, and it should. Until then, our circuit should en-
sure that our rules and standards are robust enough to pre-
vent constitutional violations wherever possible. The Duarte
rule did that. We should find our way back to it.