United States v. Gonzalez, Michael , 237 F. App'x 98 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 18, 2007
Decided June 21, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
Nos. 06-2758 and 06-2896
UNITED STATES OF AMERICA, Appeals from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Eastern Division
v.
No. 05 CR 621
MICHAEL GONZALEZ,
Defendant-Appellant. Joan B. Gottschall,
Judge.
ORDER
Michael Gonzalez appeals his concurrent sentences of 163 months’
imprisonment for selling cocaine and 120 months’ imprisonment for being in
possession of a firearm after being convicted of a felony. He argues that the district
court failed to consider the statutory sentencing factors, see 18 U.S.C. § 3553(a), and
improperly based its sentencing decision only on the guidelines’ recommended
range. Because we are convinced that the district court properly considered the
relevant sentencing factors before she imposed a reasonable sentence, we affirm.
Gonzalez sold cocaine and a gun to a government informant while in the
presence of an undercover ATF officer. He pleaded guilty to selling cocaine, see 21
U.S.C. § 841(a)(1), and possessing a gun while in the status of a felon, see 18 U.S.C.
Nos. 06-2758 and 06-2896 Page 2
§ 922(g)(1). At sentencing, the government and defense counsel sparred at length
over the government’s recommendation that Gonzalez receive an enhancement for
his being in possession of additional guns while committing the crimes, see U.S.S.G.
§ 2K2.1(b)(1)(A), and for the use of a gun in connection with another felony offense,
see U.S.S.G. § 2K2.1(b)(6). In support of the enhancements, the government relied
entirely on Gonzalez’s statements to the confidential informant and the undercover
officer that he had other firearms for sale and used guns to facilitate his drug
dealing. The district judge said that Gonzalez’s statements sounded like “puffery,”
and concluded that the government had not proven by a preponderance of the
evidence that Gonzalez possessed additional guns, nor that he had used a gun while
committing the offenses of conviction, and accordingly did not apply the proposed
enhancements. Nevertheless, because Gonzalez’s felony cocaine conviction involved
a controlled substance and he had a previous conviction for armed robbery as well
as a conviction for the aggravated discharge of a firearm, the district judge
determined that he was a career offender, see U.S.S.G. § 4B1.1(a), a status that
yielded an offense level of 32, see U.S.S.G. § 4B1.1(b)(C). The government
recommended that Gonzalez receive a three-point reduction for acceptance of
responsibility, see U.S.S.G. § 3E1.1, and the district court agreed, adjusting
Gonzalez’s offense level to 29. Gonzalez’s career offender status earned him an
automatic criminal history score of VI, see U.S.S.G. § 4B1.1(b), and thus a
guidelines range of 151 to 188 months’ imprisonment, see U.S.S.G. Ch. 5 Pt. A.
The government argued for a sentence at the high end of that range, listing
each of Gonzalez’s previous criminal convictions, including armed robbery at the
age of 18, unlawful use of a weapon at the age of 22, aggravated discharge of a
firearm at the age of 25, and unlawful use of a weapon at the age of 33. Defense
counsel responded that Gonzalez’s convictions for crimes of violence occurred many
years ago, that his more recent convictions were non-violent, and that the now 37-
year-old committed the crimes of conviction only because he could not find
employment and needed money to raise his daughter. Defense counsel also pointed
out that, prior to his last conviction, Gonzalez had maintained five years of
employment and had paid his taxes.
The district judge began her sentencing analysis by noting that, because of
Gonzalez’s criminal history, she would not impose a sentence at the low end. But
because she was impressed by Gonzalez’s five years of employment, the judge
imposed a sentence of 163 months’ imprisonment for the drug count, “a third up
from the low end” of the range, as well as three years’ supervised release and a $200
special assessment. The judge then imposed the statutory maximum of 120 months’
imprisonment on the felon in possession of a gun count, as well as three years’
supervised release, to run concurrently with the drug sentence.
Nos. 06-2758 and 06-2896 Page 3
On appeal, Gonzalez argues that our presumption of reasonableness for
sentences within the recommended guidelines range unlawfully constrained the
district court’s discretion. He says our presumption led the district judge to
consider only a sentence within that range, resulting in an “inherently
unreasonable” sentence.
While the Supreme Court is expected to decide in the near future whether
the presumption of reasonableness is consistent with United States v. Booker, 543
U.S. 220 (2005), see Rita v. United States, 177 F. App’x. 357 (4th Cir. 2006), cert.
granted, 127 S. Ct. 551 (U.S. 2006), we have repeatedly upheld it. See United States
v. Gama-Gonzalez, 469 F.3d 1109, 1110-11 (7th Cir. 2006); United States v.
Wurzinger, 467 F.3d 649, 651 (7th Cir. 2006); United States v. Hankton, 463 F.3d
626, 630 n.5 (7th Cir. 2006). The presumption expresses “the modest proposition
that district judges generally possess the discretion under § 3553(a) and Booker to
follow the Guidelines, if they so choose, without acting un-reasonably.” Gama-
Gonzalez, 469 F.3d at 1111. Of course, a trial judge may not presume that a
sentence within the guidelines is correct. See United States v. Demaree, 459 F.3d
791, 794-95 (7th Cir. 2006). But so long as the judge adequately explains the
sentence being imposed in light of the § 3553(a) factors, and so long as the sentence
can ultimately be deemed reasonable, we will not disturb it. See United States v.
Wallace, 458 F.3d 606, 609 (7th Cir. 2006).
Here, a sentence within the guidelines range was reasonable, and we know of
nothing to suggest that the district judge believed her discretion was constrained by
our presumption of reasonableness on appellate review. Her opening statement
that “the history in this case is such that I cannot in good conscience impose a low-
end sentence, and the question is where in the range it ought to be,” simply
expressed her belief that a sentence imposed within the guidelines range would be
appropriate given Gonzalez’s extensive criminal history. It is precisely that
judgment that we have repeatedly upheld as reasonable. See Gama-Gonzalez, 469
F.3d at 1110. And the sentence is reasonable without the benefit of our
presumption; Gonzalez committed his crimes of conviction while on parole for a
prior conviction for unlawful use of a gun, and prior to that he had been convicted of
an armed robbery, as well as unlawful use of a gun by a felon, as well as the
aggravated discharge of a firearm. Given a criminal history replete with gun
offenses, his 163-month sentence for selling cocaine and possessing a gun as a felon
was reasonable. See United States v. Garner, 454 F.3d 743, 751 (7th Cir. 2006)
(noting danger posed by felons possessing guns).
Gonzalez’s related argument—that the district court did not adequately
justify the sentence in light of the § 3553(a) factors—is also without merit. “A
presumptively reasonable sentence is not a conclusively reasonable one, for the
Nos. 06-2758 and 06-2896 Page 4
Guidelines may omit some factor to which § 3553(a) or a sound exercise of discretion
gives weight.” Gama-Gonzalez, 469 F.3d at 1111. Section 3553(a) mandates that
the district judge consider, among other factors, the nature and circumstances of
the offense and the history and characteristics of the defendant. See § 3553(a)(1).
But while the district court must address “serious arguments for lower sentences”
based on these factors, it need not address frivolous ones. Id.; cf. United States v.
Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). In other words, we must satisfy
ourselves only that the district court considered arguments that might warrant an
exercise of discretion. See United States v. Roberson, 474 F.3d 432, 436 (7th Cir.
2007).
Although the judge never explicitly referred to § 3553(a) by name, it is clear
that she considered the statutory sentencing factors. The court addressed the only
serious argument advanced by defense counsel based on those factors—that
Gonzalez had proven, through five years of employment, his potential for
rehabilitation—and agreed, saying that his past employment “suggests something”
and reducing his sentence accordingly. And contrary to Gonzalez’s assertion that
the district judge did not consider his criminal history, we disagree for it is most
apparent that she did. Rather than seeing “a trend of decreasing severity,” as
defense counsel suggests, she clearly—and reasonably—noted a lengthy and
troubling history. Finally, although Gonzalez made clear that the judge did not
explicitly address his argument that he was trying to raise money for his daughter
by selling cocaine and a gun, she did not have to. See Gama-Gonzalez, 469 F.3d at
1111. Drug dealers and gun peddlers often say that they committed their crimes in
order to support their family, but this age-old excuse falls far short of being a
mitigating factor. Gonzalez’s crimes put his daughter’s welfare at far greater risk
than if he had gone straight.
AFFIRMED.