United States v. Herron, Willie , 139 F. App'x 750 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 6, 2005
Decided July 20, 2005
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 04-3307
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Western
District of Wisconsin
v.
No. 04 CR 49
WILLIE HERRON,
Defendant-Appellant. John C. Shabaz,
Judge.
ORDER
Willie Herron pleaded guilty to a one-count indictment charging him with
distributing 13.15 grams of crack to an undercover officer in violation of 21 U.S.C.
§ 841(a)(1). The indictment followed Herron’s second arrest in two months for
distributing crack. Prior to sentencing, a probation officer prepared a presentence
report detailing Herron’s sales of a total of 117.62 grams of crack to a confidential
informant and an undercover officer. Given this quantity, the United States
Sentencing Guidelines established a base offense level of 32. U.S.S.G.
§ 2D1.1(c)(4). After a three-level adjustment for acceptance of responsibility, the
No. 04-3307 Page 2
probation officer set Herron’s total offense level at 29. With a criminal history
category of VI, the corresponding guideline range was 151 to 188 months.
After Herron entered his guilty plea on June 10, 2004, but before the
sentencing hearing on August 25, this court decided United States v. Booker, 375
F.3d 508 (7th Cir. 2004). At sentencing the parties debated the effect of that
decision, and the district court concluded that the guidelines could not be
constitutionally applied in a mandatory fashion in Herron’s case. Instead, the court
stated that it would impose “a sentence consistent with the provisions at 18 U.S.C.
§ 3553(a)” and use the guidelines only in an “advisory” fashion.
Following this procedure, the court first identified the presentence report as
a “reliable indicator in determining an appropriate sentence,” and held that the
proposed drug amount and criminal-history score in the report were “reliable,
uncontested, and with a basis in fact.” The court then examined Herron’s lengthy
criminal history, including his six prior felony convictions and three extended terms
of imprisonment. Given this history, and the fact that Herron immediately
returned to dealing drugs after being released on bond, the court concluded that
Herron posed a great risk of recidivism and needed a term of imprisonment
sufficient to insure against future criminal activity. Accordingly, the court
sentenced Herron to 188 months’ imprisonment and 5 years’ supervised release.
The court also recommended that Herron receive drug treatment in prison. Herron
did not object to the district court’s sentencing procedure.
On appeal Herron first argues that his sentence is unreasonable because, he
contends, the district court failed to consider each of the factors listed in 18 U.S.C.
§ 3553(a). Herron’s “proof” of this omission is the court’s failure to specifically
identify and discuss each factor. The problem with Herron’s position is that it has
been squarely foreclosed by United States v. George, 403 F.3d 470 (7th Cir. 2005),
issued after Herron filed his opening brief. In George, this court held that district
courts “need not rehearse on the record all of the considerations that 18 U.S.C.
§ 3553(a) lists; it is enough to calculate the range accurately and explain why (if the
sentence lies outside it) this defendant deserves more or less.” Id. at 472-73.
Herron concedes that the district court accurately calculated his guideline range
and then selected a sentence at the high end of the range. Accordingly, this court
may infer that the district court took the sentencing factors in 18 U.S.C. § 3553(a)
into account in sentencing Herron to a reasonable sentence. See id.; see also United
States v. Mykytiuk, No. 04-1196, slip op. at 3 (7th Cir. July 7, 2005) (holding that
sentence within guideline range is entitled to rebuttable presumption of
reasonableness).
Perhaps recognizing that this argument no longer has merit, Herron’s reply
brief focuses solely on his second argument, that the district court should have
No. 04-3307 Page 3
imposed a shorter sentence because the guidelines punish crack offenses too
severely relative to offenses involving powder cocaine. As support for this
argument, Herron points to United States v. Smith, 359 F. Supp. 2d 771, 777 (E.D.
Wis. 2005), in which the court explained that the sentencing guidelines, which
punish one gram of crack the same as 100 grams of cocaine, “lack[] persuasive
penological or scientific justification.” However, the question in the present case is
not whether a sentencing court may use the differential to impose a shorter
sentence than the one recommended by the guidelines; the question is whether it is
error for a court not to have taken the differential into account sua sponte.
Herron never presented this argument to the district court. He simply
assumes that (1) the court failed to take the argument into account when
sentencing; (2) the only “reasonable” resolution of the question would be to give
Herron a lower sentence; and (3) the court was required to consider the question
sua sponte. As discussed above, the first assumption is foreclosed by George. And
the remaining assumptions are without merit.
Herron has cited no case after Booker in which an appellate court has held
that it is unreasonable not to give a defendant convicted of an offense involving
crack a lower sentence than the one recommended by the guidelines. But see
United States v. Rodriguez, 406 F.3d 1261, 1288 n.11 (11th Cir. 2005) (listing
several district court cases that have used the crack-powder differential to justify
non-guideline sentences). Given the fact that this court has routinely upheld the
differential against constitutional attack, United States v. Westbrook, 125 F.3d 996,
1010 (7th Cir. 1997) (“In light of the fact that every constitutional challenge to the
penalty differential . . . has failed, this argument cannot succeed.”); United States v.
Booker, 73 F.3d 706, 710 (7th Cir. 1996); see also United States v. Edwards, 397
F.3d 570 (7th Cir. 2005) (reaffirming court’s holding in Booker), and, under the pre-
Booker guideline system, rejected wholesale downward departures from the
guideline on this basis, Booker, 73 F.3d at 710 (“[E]very circuit court to address the
issue has concluded a departure . . . on this basis is not warranted.”), it would be
inconsistent to require the district court to give a non-guideline sentence based on
the differential.
Herron also fails to explain why the district court is required to consider the
question sua sponte. Under the pre-Booker mandatory guideline system, a
defendant’s failure to present a motion for downward departure to the district court
waived the argument on appeal. See, e.g., United States v. Covarrubias, 65 F.3d
1362, 1372 (7th Cir. 1995). Given the universe of possible considerations suggested
by the factors listed in 18 U.S.C. § 3553(a), it is unreasonable to expect that a
district court would be able to envision every possible argument for a non-guideline
sentence sua sponte. See United States v. Dean, No. 04-3172, slip op. at 6-8 (7th
Cir. July 7, 2005).
No. 04-3307 Page 4
Accordingly, the judgment of the district court is AFFIRMED.