United States v. Jesse Pennington ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1375
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JESSE PENNINGTON,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 17-CR-00017-2 — James D. Peterson, Chief Judge.
____________________
ARGUED OCTOBER 3, 2018 — DECIDED NOVEMBER 5, 2018
____________________
Before MANION, HAMILTON, and BRENNAN, Circuit Judges.
HAMILTON, Circuit Judge. Jesse Pennington pleaded guilty
to distributing a Schedule I controlled substance in violation
of 21 U.S.C. § 841(a)(1). The district court sentenced her to one
year and one day in prison, within the Sentencing Guidelines
range of ten to sixteen months in prison. Pennington does not
argue that her sentence was substantively unreasonable, but
she argues that the district court made procedural errors in
sentencing her. She first argues that the district court should
2 No. 18-1375
not have compared her to one of her co-defendants when de-
termining her sentence because the two were not similarly sit-
uated. Next, she argues that the court violated her due process
rights by twice relying on inaccurate information at sentenc-
ing.
We affirm. The district court’s comparison of Pennington
to her co-defendant was not a procedural error. The compari-
son was reasonable and did not exclude consideration of
other factors that 18 U.S.C. § 3553(a) requires courts to con-
sider. We also find that the court did not violate Pennington’s
due process rights by relying on inaccurate information. Al-
though the judge made a factual error in explaining the sen-
tence orally, he corrected the error in the written explanation,
indicating that the error did not affect the ultimate sentence.
I. Factual and Procedural Background
In the autumn of 2015, law enforcement in Madison, Wis-
consin, began investigating a ring distributing methylenedi-
oxymethamphetamine, more commonly known as MDMA or
Ecstasy, and other controlled substances. An undercover of-
ficer bought Ecstasy from Pennington twice in late 2015. The
officer also met with Pennington on two other occasions
around that time intending to purchase Ecstasy, but the of-
ficer never completed those sales. In September 2016, the of-
ficer again twice bought Ecstasy from Pennington. And in Oc-
tober 2016, the officer tried to purchase crack cocaine from
Pennington, but she lacked direct access to that drug.
A grand jury indicted Pennington and three others, in-
cluding JonPaul Dotson, on a total of eleven counts of distrib-
uting Ecstasy and crack cocaine. The indictment charged Pen-
nington in two of the counts. She pleaded guilty to one.
No. 18-1375 3
At the sentencing hearing, the government requested a
prison sentence within the undisputed guideline range of ten
to sixteen months. Pennington’s involvement in the drug ring
was at “the bottom rung of the ladder,” the government
acknowledged, and the court also already had sentenced Pen-
nington’s three co-defendants: two of them to four years in
prison, and Dotson to about seven months of time served in
pretrial detention. The judge noted that Dotson was “proba-
bly … the smallest” rung of the ladder, a characterization that
the government agreed with because Dotson “did one distri-
bution [of crack cocaine] on one occasion.” Pennington ar-
gued for probation rather than prison. Arguing that Penning-
ton “needs help, not punishment,” her lawyer emphasized
Pennington’s traumatic life experiences, her need to care for
her children, and her cooperation with law enforcement.
The judge sentenced Pennington to one year and one day.
(The “and one day” meant that she would be eligible to earn
a 15% good-time credit. See 18 U.S.C. § 3624(b).) The judge
stated that “the biggest driver” of the sentence was the seri-
ousness of the crime and the need to avoid “unwarranted dis-
parities between similarity-situated defendants.” Pennington
was more culpable than Dotson, the judge found, because
Dotson “was involved in essentially one transaction.” The
judge explained:
You were involved in a pattern of drug dealing
that began as early as October 2014 and went
through October [’16] There might be a gap in
there where there aren’t continuous transac-
tions, but there was a sustained period of time
of almost two years … that begins in the fall of
October ’14 and continues to October ’16. Even
4 No. 18-1375
if it wasn’t thoroughly continuous, it was a long
period of drug dealing.
The record shows, however, that Pennington’s involvement
with the drug operation actually began in 2015, not 2014.
The judge deemed it unfair to give Pennington a sentence
of probation when “even Mr. Dotson … ended up serving a
term of incarceration” (i.e., pretrial detention). He also men-
tioned Pennington’s “very difficult upbringing,” but he
added that Pennington is not “necessarily a very good histo-
rian of her own past.” The judge observed that Pennington
deserved a sentence at the low end of the guideline range be-
cause she had accepted responsibility for her actions and co-
operated with the authorities. In his written statement of rea-
sons, the judge reiterated much of his explanation, with one
important change: he corrected his oral error and wrote accu-
rately that Pennington’s “drug dealing activities began as
early as fall 2015 and continued in the fall of 2016.”
II. Analysis
On appeal, Pennington argues that the court committed
procedural errors by failing to consider properly all of the 18
U.S.C. § 3553(a) factors and relying on inaccurate information
to determine her sentence. She contends that the district court
erroneously focused almost exclusively on her culpability rel-
ative to JonPaul Dotson, who she argues was not similarly sit-
uated. She further argues that the judge procedurally erred by
relying on inaccurate information because she is not a “poor
historian” of her traumatic past and because she did not sell
drugs for the “sustained period of time” of two years.
No. 18-1375 5
A. Standard of Review
The government argues that Pennington forfeited these ar-
guments by not raising them in the district court. Pennington
points out correctly that Federal Rule of Criminal Procedure
51(a) provides that a party need not state an “exception” to a
ruling the court has already made. See, e.g., United States
v. Bartlett, 567 F.3d 901, 910 (7th Cir. 2009) (“the rules do not
require a litigant to complain about a judicial choice after it
has been made”). Pennington’s arguments on appeal chal-
lenge the district court’s explanation of its sentencing deci-
sion. If she had made them in the district court, they would
have been the kind of post-decision exceptions that Rule 51(a)
provides a party need not raise to preserve her appellate
rights. See United States v. Cunningham, 429 F.3d 673, 679–80
(7th Cir. 2005). Either party, however, could have avoided this
appeal by speaking up. See United States v. Donelli, 747 F.3d
936, 941 (7th Cir. 2014); Cunningham, 429 F.3d at 679–80.
Both of Pennington’s claims—that the district court failed
to consider the § 3553(a) factors properly and that it relied on
inaccurate information—assert procedural errors. See Gall v.
United States, 552 U.S. 38, 51 (2007). In the absence of forfei-
ture, we review the sentencing court’s procedure de novo.
United States v. Pulley, 601 F.3d 660, 664 (7th Cir. 2010), citing
United States v. Smith, 562 F.3d 866, 872 (7th Cir. 2009). We re-
view underlying factual findings for clear error. Id., citing
United States v. Heckel, 570 F.3d 791, 793 (7th Cir. 2009).
B. Section 3553(a) Factors
Pennington argues that the sentencing court erred by fail-
ing to give meaningful consideration to the § 3553(a) factors
6 No. 18-1375
that must be considered in federal sentencing.1 She first ar-
gues that § 3553(a)(6), which instructs courts to avoid
1 Section 3553(a) provides as follows:
Factors to be considered in imposing a sentence.—The court
shall impose a sentence sufficient, but not greater than necessary,
to comply with the purposes set forth in paragraph (2) of this sub-
section. The court, in determining the particular sentence to be
imposed, shall consider—
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect
for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant;
and
(D) to provide the defendant with needed educational or vo-
cational training, medical care, or other correctional treatment in
the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established
for—
(A) the applicable category of offense committed by the appli-
cable category of defendant as set forth in the guidelines—
(i) issued by the Sentencing Commission pursuant to section
994(a)(1) of title 28, United States Code, subject to any amend-
ments made to such guidelines by act of Congress (regardless of
whether such amendments have yet to be incorporated by the
Sentencing Commission into amendments issued under section
994(p) of title 28); and
No. 18-1375 7
sentencing disparities among defendants with similar records
and criminal conduct, does not justify comparing co-defend-
ants in the same case. She also argues that the district court
focused on comparing her to Dotson to the exclusion of all the
other § 3553(a) factors. We disagree.
As an initial matter, Pennington is incorrect in saying that
the “unwarranted disparities” factor in § 3553(a)(6) applies
(ii) that, except as provided in section 3742(g), are in effect on
the date the defendant is sentenced; or
(B) in the case of a violation of probation or supervised re-
lease, the applicable guidelines or policy statements issued by the
Sentencing Commission pursuant to section 994(a)(3) of title 28,
United States Code, taking into account any amendments made
to such guidelines or policy statements by act of Congress (re-
gardless of whether such amendments have yet to be incorpo-
rated by the Sentencing Commission into amendments issued un-
der section 994(p) of title 28);
(5) any pertinent policy statement—
(A) issued by the Sentencing Commission pursuant to section
994(a)(2) of title 28, United States Code, subject to any amend-
ments made to such policy statement by act of Congress (regard-
less of whether such amendments have yet to be incorporated by
the Sentencing Commission into amendments issued under sec-
tion 994(p) of title 28); and
(B) that, except as provided in section 3742(g), is in effect on
the date the defendant is sentenced.
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and
(7) the need to provide restitution to any victims of the of-
fense.
8 No. 18-1375
only to defendants across districts and not to co-defendants
in the same case. See United States v. Solomon, 892 F.3d 273, 278
(7th Cir. 2018), citing Gall, 552 U.S. at 55–56. And although a
sentencing judge must consider each factor, she need not give
them all the same weight. The judge is afforded great discre-
tion in weighing the different factors. See Gall, 552 U.S. at 52–
56. Here, the judge mentioned Pennington’s history and char-
acteristics but ultimately found that the seriousness of the
crime and the need to avoid sentencing disparities justified a
sentence higher than the probation Pennington requested.
The judge also credited Pennington’s cooperation with law
enforcement, relying on this fact in issuing a sentence toward
the bottom of the Guidelines range. Because the judge ade-
quately considered the § 3553(a) factors, there was no proce-
dural error on this score.
Pennington also argues that the court violated her right to
an “individualized” sentence by linking her sentence to Dot-
son’s. See Gall, 552 U.S. at 50. But Dotson’s seven-month sen-
tence was not random or happenstance. The judge found that
seven months was “reasonable and no greater than neces-
sary.” See § 3553(a). Because Pennington was more culpable
than Dotson—and because the other § 3553(a) factors did not
require a below-guideline sentence—the court arrived at a
sentence for her that it similarly found reasonable and no
greater than necessary.
C. Accuracy of Information at Sentencing
A defendant has a due process right to be sentenced based
on accurate information. United States v. Tucker, 404 U.S. 443,
447 (1972); U.S. ex rel. Welch v. Lane, 738 F.2d 863, 864–65 (7th
Cir. 1984). To succeed on this attack on her sentence, Penning-
ton must show that inaccurate information was before the
No. 18-1375 9
court and that the court relied upon it. United States v. Oliver,
873 F.3d 601, 608–09 (7th Cir. 2017), citing Lechner v. Frank, 341
F.3d 635, 639 (7th Cir. 2003). Pennington argues that the dis-
trict court violated this principle twice—first when the judge
said that she was not “necessarily a very good historian of her
own past,” and again when he said that she had sold drugs
for two years instead of one. Again, we disagree.
It is difficult to construe the judge’s passing comment that
Pennington is a poor historian of her past as a factual finding.
Even if it were, “we defer to a district court’s determination of
witness credibility, which can virtually never be clear error.”
Pulley, 601 F.3d at 664, citing United States v. Acosta, 534 F.3d
574, 584 (7th Cir. 2008); see generally Anderson v. City of Besse-
mer City, 470 U.S. 564, 575 (1985). We need not repeat Penning-
ton’s various inconsistencies and memory lapses that sup-
ported the judge’s comment. The judge’s comment was not
clearly erroneous.
The closest question in this appeal stems from a factual
mistake in the court’s sentencing explanation. The judge said
that Pennington had been involved in selling drugs for two
years beginning in 2014 rather than only in the autumns of
2015 and 2016. Such factual errors in a judge’s explanation of
a sentence can easily require a remand for re-sentencing based
on accurate information if there are indications that the inac-
curate information mattered in the sentencing decision. E.g.,
United States v. Miller, 900 F.3d 509, 513–14 (2018) (finding
plain error and remanding where district judge stated wrong
number of defendant’s prior felony convictions, both orally
and in written explanation); United States v. Corona-Gonzalez,
628 F.3d 336, 342–43 (7th Cir. 2010) (finding plain error and
remanding where presentence report said erroneously that
10 No. 18-1375
defendant had previously been deported and had returned to
United States to distribute methamphetamine, and court em-
phasized those points in explaining sentence); Welch, 738 F.2d
at 865–66 (affirming writ of habeas corpus where sentencing
judge incorrectly thought defendant had prior conviction for
armed robbery instead of robbery).
In this case, however, we are satisfied that this error was
corrected in the court’s written explanation of reasons, indi-
cating that the difference between the accurate and inaccurate
information did not actually affect the sentence. When oral
and written pronouncements of a sentence conflict, the oral
controls so long as it was unambiguous. United States v.
Daddino, 5 F.3d 262, 266 (7th Cir. 1993), quoting United States
v. Makres, 851 F.2d 1016, 1019 (7th Cir. 1988).2
While that is the rule for a pronouncement of a sentence
itself, we have not applied the same strict rule to a judge’s ex-
planation of a sentence. In fact, we have held the opposite.
United States v. Pankow, 884 F.3d 785, 791 (7th Cir. 2018) (“In
addition to the court’s remarks at sentencing, we also look to
the written statement of reasons to evaluate the sufficiency of
the sentencing rationale.”), citing United States v. Blackman,
830 F.3d 721, 728 (7th Cir. 2016) (collecting cases). The judge’s
written explanation corrected his oral misstatement of the
facts without changing the sentence itself. That correction dis-
tinguishes this case from United States v. Miller, where we re-
manded a sentence where the judge had misstated the
2The court’s oral statement about the duration of Pennington’s drug-
dealing was inaccurate, not ambiguous. But whether the court relied on
the inaccuracy requires close attention. We may consider the written ex-
planation without violating this rule.
No. 18-1375 11
defendant’s criminal history a total of four times, including
both oral and written explanations. 900 F.3d at 513–15. We
conclude from the written correction that, in the end, whether
Pennington sold Ecstasy for one year or two years did not af-
fect her sentence. More material was that she engaged in more
drug dealing than Dotson—a fact that is true regardless of the
court’s initial oral misstatement.
Pennington’s sentence is
AFFIRMED.