United States v. Dennis, David A. , 182 F. App'x 537 ( 2006 )


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  •                             UNPUBLISHED ORDER
    Not to be cited per Circuit Rule 53
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Argued October 18, 2005
    Decided May 5, 2006
    Before
    Hon. RICHARD A. POSNER, Circuit Judge
    Hon. MICHAEL S. KANNE, Circuit Judge
    Hon. ANN CLAIRE WILLIAMS, Circuit Judge
    No. 04-4231
    UNITED STATES OF AMERICA,                    Appeal from the United States District
    Plaintiff-Appellee,                      Court for the Western District of Wisconsin
    v.                                     No. 04-CR-113
    DAVID A. DENNIS,                             John C. Shabaz,
    Defendant-Appellant.                     Judge.
    ORDER
    David Dennis was convicted of distributing powder cocaine, in violation of 
    21 U.S.C. § 841
    (a)(1), and was sentenced before the decision in United States v. Booker,
    
    543 U.S. 220
     (2005), to 88 months’ incarceration. Dennis now challenges his
    sentence on appeal, arguing that the district court erroneously applied the
    sentencing guidelines as mandatory despite saying in open court that it was
    treating the guidelines range as advisory. He also contends that the court
    disregarded letters attesting to his character from his fiancé and two oldest
    daughters. For the reasons set forth below, we affirm his sentence.
    No. 04-4231                                                                    Page 2
    I. History
    A long-term federal investigation into narcotics trafficking in and around the
    Lac Courte Oreilles Reservation in Wisconsin revealed that Dennis, at times aided
    by his fiancé, his oldest daughter, and two of his siblings, was distributing
    marijuana and cocaine. Over the course of a year, a confidential informant
    purchased powder cocaine from Dennis or an intermediary on four occasions.
    Dennis was arrested in July 2004, and ultimately pleaded guilty to one count of
    distributing approximately 3½ grams of powder cocaine. He stipulated as part of
    his plea agreement that the government could prove a total drug quantity
    equivalent to 100 kilograms or more of marijuana.
    Dennis was sentenced in December 2004, less than a month before the
    Supreme Court upheld our decision in United States v. Booker, 
    375 F.3d 508
     (7th
    Cir. 2004) aff'd, 
    543 U.S. 220
     (2005). The district court opened the hearing by
    informing Dennis that it had read, in addition to the presentence report and related
    documents, one letter from Dennis and seven letters written by others on his behalf.
    Five of those letters were from Miranda Barber, Dennis’s fiancé and his
    codefendant in the very crime for which he was being sentenced. The two
    remaining letters from persons other than Dennis were written by his two oldest
    daughters, one of whom Dennis had used to help with his drug sales while she was
    still a teenager. All of the letters from Barber and the daughters included pleas for
    leniency on the grounds that Dennis was remorseful and that his six children
    needed their father present in their lives. Neither Dennis nor the government had
    received or read the letters from Barber or the daughters before the sentencing
    hearing. The district court offered to provide copies to Dennis and offered this
    characterization of the letters: “They express their support for you and they do not
    affect the sentencing but they do attempt to convince the Court of the reason as to
    what the sentence should be.” Dennis, though, declined to stop and read the letters,
    and both he and the government agreed to proceed with the sentencing without
    reviewing them. The letters were not otherwise discussed at the hearing or in the
    court’s written statement of reasons for the sentence it imposed.
    The sentencing court, relying on our opinion in Booker, see 
    375 F.3d at 513
    ,
    explained that it was imposing “a sentence consistent with” 
    18 U.S.C. § 3553
    (a) and
    using the probation officer’s guidelines calculations “as advisory and a reliable
    indicator in determining the appropriate sentence within the statutory limit of the
    count of conviction.” Citing Dennis’s use of family intermediaries in his drug deals,
    the quantities of narcotics he distributed, and the need for general and individual
    deterrence, the court sentenced him to 88 months’ incarceration, a term within the
    guidelines range of 78 to 97 months. The court added that it would have chosen the
    same term if applying the guidelines as mandatory.
    No. 04-4231                                                                      Page 3
    II. Analysis
    Dennis primarily argues that the district court committed a Booker violation
    by treating the guidelines as mandatory despite saying that it was doing otherwise.
    The court’s choice of identical discretionary and guideline sentences, Dennis
    contends, shows that in fact the court disregarded the required § 3553(a) analysis in
    favor of a pure guidelines calculation. It would be error for the district court to
    disregard § 3553(a) and rely solely on the guidelines, because the elements of
    § 3553(a) are mandatory factor in post-Booker sentencing. Booker, 125 S.Ct. at
    765-66; United States v. Castro-Juarez, 
    425 F.3d 430
    , 433 (7th Cir. 2005).
    We see no basis in this record from which to conclude that the district court
    treated the guidelines as mandatory. The court’s selection of identical discretionary
    and guidelines sentences does not show that it applied the guidelines as mandatory.
    In fact, we have explained before that the Supreme Court “expected that many
    (perhaps most) sentences would continue to reflect the results obtained through an
    application of the Guidelines.” United States v. Mykytiuk, 
    415 F.3d 606
    , 607 (7th
    Cir. 2005). Indeed, we have affirmed a number of sentences where the district court
    recognized the discretionary nature of the guidelines in imposing sentence but also
    announced that it sentence under the old, mandatory guidelines scheme would have
    been the same. See, e.g., United States v. Lister, 
    432 F.3d 754
    , 762 (7th Cir. 2005);
    United States v. Bryant, 
    420 F.3d 652
    , 654 (7th Cir. 2005); United States v. Paulus,
    
    419 F.3d 693
    , 696, 699-700 (7th Cir. 2005); United States v. Jamison, 
    416 F.3d 538
    ,
    539 (7th Cir. 2005). And since the district court imposed a term within the
    guidelines range, it was not required to articulate how it applied the § 3553(a)
    factors in choosing the sentence. See United States v. Lopez, 
    430 F.3d 854
    , 857 (7th
    Cir. 2005); United States v. Welch, 
    429 F.3d 702
    , 705 (7th Cir. 2005); United States
    v. George, 
    403 F.3d 470
    , 473 (7th Cir. 2005). Dennis insists that the court, in
    selecting a discretionary sentence, “could not possibly have come to the same
    sentencing conclusion” as it did by applying the guidelines. What Dennis really
    means is that his own weighing of § 3553(a) factors would have yielded a lower
    discretionary sentence, but the district court was not required to accept his
    assessment. See United States v. Williams, 
    436 F.3d 767
    , 769 (7th Cir. 2006);
    United States v. Cunningham, 
    429 F.3d 673
    , 679 (7th Cir. 2005); United States v.
    Gipson, 
    425 F.3d 335
    , 337 (7th Cir. 2005)
    As his fallback Dennis also argues that the district court failed to specifically
    consider the letters from his fiancé and daughters under § 3553(a)(1) as relevant
    evidence of the “history and characteristics of the defendant.” He submits that the
    district court’s statement that the letters did not “affect the sentencing” must mean
    that the court declined to, or thought that it could not, take them into consideration.
    No. 04-4231                                                                     Page 4
    However, the record indicates otherwise. The district court did indeed read
    the letters from Dennis’s fiancé and daughters. The court explicitly informed
    Dennis at sentencing that it had read the letters, and said that it “base[d] its
    sentence upon these documents.” The court was not required to give a more
    detailed explanation of the § 3553(a) factors’ impact on its discretion. See George,
    
    403 F.3d at 473
    . Nothing in the record supports Dennis’s contention that the
    sentencing court refused to consider, or believed itself incapable of considering, the
    letters it read.
    III. Conclusion
    For the reasons given, Dennis’s sentence is AFFIRMED.