United States v. Randy Hubbert ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-3110
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RANDY HUBBERT,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:18-cr-20018-1 — Colin S. Bruce, Judge.
____________________
SUBMITTED DECEMBER 7, 2021 ∗ — DECIDED MAY 31, 2022
____________________
Before ROVNER, ST. EVE, and JACKSON-AKIWUMI, Circuit
Judges.
∗ After this case was scheduled for oral argument, the parties filed a
joint motion to waive argument, which the court granted. The appeal has
therefore been submitted for decision on the briefs and the record. Fed. R.
App. P. 34(f); Cir. R. 34(e).
2 No. 20-3110
ROVNER, Circuit Judge. Randy Hubbert appeals the sen-
tence he received for the distribution of cocaine base. We af-
firm.
I.
Hubbert pleaded guilty to all four counts of an April 2018
indictment charging him with distributing cocaine base,
known colloquially as crack cocaine. See 21 U.S.C. §§ 841(a)(1),
(b)(1)(B), (b)(1)(C). Each count corresponded to a controlled
purchase by a confidential source from Hubbert—and in one
instance, from Hubbert and an associate, Tyrone Bond—that
took place in November 2016 and January 2017. The quanti-
ties purchased ranged from 12.3 to 49.4 grams. An additional
controlled purchase from Bond alone was charged as a fifth
count (naming Bond as the sole defendant) in the same indict-
ment.
For sentencing purposes, the probation officer found that
Hubbert qualified as a career offender pursuant to section
4B1.1(a) of the Sentencing Guidelines. 1 This was based on
Hubbert’s prior convictions in state court for (1) aggravated
1 A defendant qualifies as a career offender if “(1) the defendant was
at least eighteen years old at the time [he] committed the instant offense
of conviction; (2) the instant offense of conviction is a felony that is either
a crime of violence or a controlled substance offense; and (3) the defendant
has at least two prior convictions of either a crime of violence or a con-
trolled substance offense.” U.S.S.G. § 4B1.1(a) (Nov. 2018). “The term ‘con-
trolled substance offense’ means an offense under federal or state law,
punishable by imprisonment for a term exceeding one year, that prohibits
the manufacture, import, export, distribution, or dispensing of a con-
trolled substance (or a counterfeit substance) or the possession of a con-
trolled substance (or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b).
No. 20-3110 3
battery, and (2) possession of a controlled substance (cocaine)
with intent to deliver. Hubbert’s status as a career offender
dictated that he be placed in a criminal history category of VI;
but his 35 criminal history points independently placed him
in the same criminal history category.
Hubbert objected to the career-offender designation, argu-
ing in part that his previous conviction for possession with
intent to deliver was really part and parcel of the same course
of drug dealing that underlay his current conviction, and thus
was not a “prior” offense that would trigger career-offender
status, see U.S.S.G. § 4B1.1(a), but rather constituted relevant
conduct vis-à-vis the federal offenses, see U.S.S.G. § 1B1.3.
(Hubbert did not dispute that his conviction for aggravated
battery constitutes a prior conviction for a crime of violence.)
Hubbert also argued that his criminal history category of VI
overstated the seriousness of his record and asked the court
to vary downward to category IV. See U.S.S.G. § 4A1.3(b).
Hubbert’s prior drug possession offense involved the sale
of two-tenths of a gram of powder cocaine to a confidential
source (someone other than the source who made the pur-
chases charged in the federal prosecution) in Macon County,
Illinois, in October 2011. But Hubbert was not charged with
that offense until 2014, and he did not plead guilty to the of-
fense until November 14, 2016, six days after the first of the
controlled crack cocaine purchases charged in this federal
case took place. During the state proceedings, there was some
discussion of, and inquiry into, whether there would be any
additional charges filed against Hubbert. After posing the
question to local officials and receiving no reply, the state
prosecutor professed ignorance, and although defense coun-
sel and the state judge expressed some concern about the
4 No. 20-3110
prospect of additional charges, the court proceeded to sen-
tencing. 2
The district judge found that Hubbert’s prior conviction in
state court for possession with intent to distribute was
properly treated as a prior conviction for purposes of the ca-
reer-offender designation rather than as relevant conduct (per
Guidelines § 1B1.3) vis-a-vis the current federal drug charges.
Among other points, the judge noted that there was a five-
year gap of time between the 2011 state offense and the con-
trolled buys in 2016-17 underlying the federal charges, and
the two sets of charges also involved different customers,
drug types, and amounts. Moreover, Hubbert had not been
charged with a conspiracy that might have been broad
enough to encompass both sets of charges. Cf. United States v.
Garecht, 183 F.3d 671, 674–75 (7th Cir. 1999) (defendant
charged with multi-year marijuana conspiracy whose
timeframe covered prior cocaine offense as well as instant ma-
rijuana offense). The judge therefore treated Hubbert as a ca-
reer offender. As to Hubbert’s criminal history, the judge
noted that even if the 21 criminal history points correspond-
ing to Hubbert’s prior traffic and other minor offenses were
disregarded, Hubbert would still be left with 14 points and
would still fall into criminal history category VI. With a crim-
inal history category of VI and with an offense level of 31, the
2 When he sentenced Hubbert in the federal proceeding, the district
judge rejected the notion that there had been any impropriety in the deci-
sion to bring federal charges against Hubbert notwithstanding the con-
cerns that defense counsel and the state court judge had expressed when
Hubbert was sentenced on the state charge in November 2016. Hubbert
references these concerns in his appellate brief, but he does not raise them
in support of an independent challenge to his conviction or sentence.
No. 20-3110 5
advisory Guidelines sentencing range was 188 to 235 months.
The government recommended a sentence at the bottom of
that range.
The district judge ordered Hubbert to serve a term of 188
months on each count, to run concurrently with one another.3
Among other factors cited in support of that decision, the
judge noted Hubbert’s “horrible, horrible childhood” (R. 122
at 50), his history of drug use dating to an early age, his ex-
tensive and repeated involvement in criminal activity, and the
likelihood that “unless [Hubbert] wants to radically change
his manner of behavior” (R. 122 at 53), he might re-offend yet
again upon release from the sentence imposed in this case.
II.
On appeal, Hubbert renews his argument that it is error to
treat him as a career offender because, as he sees it, his con-
viction in state court for possession with intent to distribute
cocaine amounts to relevant conduct with respect to his fed-
eral distribution offenses and not a distinct “prior” offense
that qualifies as a predicate for the career-offender designa-
tion. He also argues, secondarily, that his criminal history cat-
egory of VI overstates the seriousness of his prior criminal
conduct and that the district court abused its discretion in not
varying downward to a lower category. Finally, he asserts
that the district court erred in failing to consider whether his
federal sentence should be served concurrently with rather
than consecutive to his sentence on the state possession
charge.
3 The judge indicated that he was primarily relying on the statutory
sentencing factors set forth in 18 U.S.C. § 3553(a) in fashioning an appro-
priate sentence.
6 No. 20-3110
A. Career-offender designation
Whether Hubbert’s conviction in state court for possession
of cocaine with intent to distribute qualifies as a prior, predi-
cate conviction for purposes of the career-offender designa-
tion constitutes a question of law that we review de novo.
United States v. Woods, 556 F.3d 616, 622 (7th Cir. 2009), over-
ruled in part on other grounds by Gall v. United States, 552 U.S.
38, 54–56, 128 S. Ct. 586, 599–600 (2007). We find no error in
the district court’s treatment of the state conviction as a prior
offense rather than as relevant conduct.
As pertinent here, the career offender guideline requires
that a defendant have “at least two prior felony convictions of
either a crime of violence or a controlled substance offense.”
§ 4B1.1(a)(3). There is no dispute that Hubbert’s conviction for
aggravated assault qualifies as a prior conviction for a crime
of violence, nor is there any dispute that the conviction for
possession with the intent to distribute qualifies as a convic-
tion for a controlled substance offense. The only dispute is
over whether the latter conviction should be considered a
“prior” conviction—that is, a conviction for conduct that both
pre-dates and is separate and distinct from the criminal activ-
ity charged in this case.
Whether the state conviction for possession with intent to
distribute qualifies as a prior conviction for purposes of the
career offender enhancement depends on its relationship to
the federal offenses. Section 4A1.2(a) defines a “prior sen-
tence” as “any sentence previously imposed upon adjudica-
tion of guilt … for conduct not part of the instant offense.”
The commentary to the guideline in turn provides that “[c]on-
duct that is part of the instant offense means conduct that is
relevant conduct to the instant offense under the provisions
No. 20-3110 7
of § 1B1.3 (Relevant Conduct.)” § 4A1.2, comment., (n.1). See
United States v. Liddell, 492 F.3d 920, 922 (7th Cir. 2007). For
offenses like narcotics crimes as to which Guidelines section
3D1.2(d) would require grouping of multiple counts of con-
viction, 4 the relevant conduct guideline treats as relevant all
acts that were part of the same course of conduct or a common
scheme or plan as the offense of conviction. § 1B1.3(a)(2) &
comment. (n.5(B)); see United States v. Tankson, 836 F.3d 873,
883-84 (7th Cir. 2016); United States v. Farmer, 543 F.3d 363,
372–73 (7th Cir. 2008). To determine whether the defendants’
prior acts meet that test, a court looks to whether there is a
“strong relationship between the uncharged conduct and the
convicted offense,” taking into account such factors as “simi-
larity, regularity, and temporal proximity.” United States v.
Ortiz, 431 F.3d 1035, 1040 (7th Cir. 2005) (quoting United States
v. Acosta, 85 F.3d 275, 281 (7th Cir. 1996)); see also United States
v. Rollerson, 7 F.4th 565, 572 (7th Cir.), cert. denied, 142 S. Ct.
631 (2021); United States v. Blackman, 830 F.3d 721, 725 (7th Cir.
2016). However, the mere fact that the defendant has commit-
ted the same or similar crime on another occasion is not by
itself sufficient to compel the conclusion that the prior offense
constitutes relevant conduct vis-à-vis the conviction for which
4 Offenses that are closely related are grouped together for sentencing
purposes and essentially treated as a single offense. See U.S.S.G. Ch. 3, Pt.
D, intro. comment. Section 3D1.2 thus provides that “[a]ll counts involv-
ing substantially the same harm shall be grouped together into a single
Group.” As relevant here, the guideline goes on to identify crimes for
which the offense level “is determined largely on the basis of … the quan-
tity of a substance involved” as offenses that involve substantially the
same harm. § 3D1.2(d). Narcotics trafficking crimes fall into this category
of offenses. See § 3D1.2 (citing offenses covered by § 2D1.1 as among of-
fenses to be grouped under section § 3D1.2(d)).
8 No. 20-3110
he is being sentenced. Ortiz, 431 F.3d at 1040; see also United
States v. Clark, 935 F.3d 558, 571 (7th Cir. 2019). Hubbert’s
prior possession offense involved a single transaction in 2011
that involved the sale of powder cocaine. Hubbert argues that
the state offense should be characterized as relevant conduct
rather than a discrete, prior crime. But to a significant extent
his thinking on this point is colored by the fact that the pros-
ecution for the 2011 offense was still pending when the crim-
inal conduct underlying the subsequent federal prosecution
began. In fact, however, there was a significant temporal gap
between the two sets of offenses. Although Hubbert was not
convicted and sentenced for the state possession-with-intent-
to-deliver offense until late in 2016, after the first of the con-
trolled buys underlying this federal case took place, there was
a five-year gap between them, which by itself tilts against a
finding that they were part of the same course of dealing. See
United States v. McGowan, 478 F.3d 800, 802 (7th Cir. 2007);
United States v. Bullock, 454 F.3d 637, 641–42 (7th Cir. 2006);
Ortiz, 431 F.3d at 1041; United States v. Palmer, 248 F.3d 569,
571 (7th Cir. 2001) (per curiam); United States v. Ruiz, 178 F.3d
877, 882 (7th Cir. 1999); cf. United States v. Vaughn, 722 F.3d
918, 932–33 (7th Cir. 2013) (where evidence showed defendant
was engaged in uninterrupted course of drug dealing in years
leading up to charged offense, not plain error to treat sales
that occurred nearly three years prior to charged offense as
relevant conduct). Indeed, Hubbert was incarcerated on a
traffic offense for a period of 18 months in 2013-14, which
(presumably) imposed a hard stop on any ongoing narcotics
trafficking. Although neither the passage of time nor his in-
tervening incarceration (which was obviously not of his own
choosing) necessarily precludes a finding that the prior con-
viction constitutes relevant conduct, see Ruiz, 178 F.3d at 881–
No. 20-3110 9
82, a strong showing of similarity and/or regularity would be
required to connect the 2011 sale to the 2016-17 sales, U.S.S.G.
§ 1B1.3, comment., (n.5(B)(ii)); Ortiz, 431 F.3d at 1041 (collect-
ing cases); see also United States v. Baines, 777 F.3d 959, 963 (7th
Cir. 2015). Here, there are significant differences between the
2011 transaction and the 2016-17 transactions: The former in-
volved the sale of two-tenths of a gram of powder cocaine,
whereas the latter involved the sale of significantly larger,
multi-gram quantities of crack cocaine. There is also evidence
that Hubbert was working in concert with at least one associ-
ate (his co-defendant, Tyrone Bond) in 2016-17. To be sure,
there are several similarities between the two sets of sales:
both took place in Decatur, Illinois, both were made to a con-
fidential source (although the source in 2011 was not the same
one who made the 2016 purchases), and both comprised con-
trolled transactions instigated at the behest of the Decatur Po-
lice Department. And although the 2016-17 sales involved
crack rather than powder cocaine, the confidential source to
whom Hubbert made those sales reported to the Decatur po-
lice that he had previously purchased powder as well as crack
cocaine from Hubbert. But given the lengthy passage of time
and the points of distinction between the two sets of sales, the
evidence does not show that the two sets of sales were part of
a steady, unified, years-long course of drug dealing. See
United States v. Stephenson, 557 F.3d 449, 457 (7th Cir. 2009).5
5 A November 2016 Decatur police officer narrative concerning the in-
vestigation into Hubbert notes that Hubbert “has been responsible for dis-
tributing substantial quantities of cocaine for several years.” R. 64-1 at 1.
The narrative goes on to report a representation by the confidential source
that he had been purchasing powder and crack cocaine from several indi-
viduals, including Hubbert, in the prior “few years.” R. 64-1 at 2. These
statements certainly suggest that the federally-charged sales that took
10 No. 20-3110
The 2011 sale was not part of the same course of conduct as
the 2016-17 conduct charged in this case and does not qualify
as relevant conduct. Hubbert’s conviction for the 2011 offense
was properly treated as a prior conviction for purposes of the
career offender guideline.
B. Hubbert’s criminal history
As we noted previously, Hubbert was assigned a criminal
history category of VI on two independent grounds: (1) he is
a career offender, and (2) he has 35 criminal history points.
Hubbert contends here as he did below that because many of
his criminal history points derive from traffic offenses and
other minor crimes, the criminal history category of VI sub-
stantially overstates the gravity of his criminal past. Our con-
clusion that Hubbert was properly treated as a career offender
based on his prior convictions for possession of cocaine with
the intent to distribute and aggravated assault largely renders
this argument moot, because the Guidelines mandate a crim-
inal history category of VI for any career offender. § 4B1.1(b).
For the sake of completeness, however, we note that, as the
district judge pointed out, even if the points assigned to Hub-
bert’s traffic and other minor offenses are subtracted from the
total, Hubbert would still be left with 14 points, which would
suffice to place him in category VI independently of Hub-
bert’s career-offender status. Hubbert wanted the judge to
vary downward to category IV, see U.S.S.G. § 4A1.3(b)(1)
(granting sentencing judge authority to do so where defend-
ant’s criminal history category overstates the gravity of his
place in 2016 and early 2017 were part of an extended pattern of cocaine
sales. But by themselves they do not serve to connect the 2016-17 sales to
the 2011 transaction underlying the state charge.
No. 20-3110 11
criminal past or the likelihood that he will re-offend); see also
United States v. Corner, 598 F.3d 411 (7th Cir. 2010) (en banc)
(sentencing judge has the authority to disagree with, and vary
from, the career offender guideline), but we see no abuse of
discretion in his decision not to do so. Hubbert has a criminal
history that includes 27 convictions as an adult alone (he is
presently 37 years old), a number of which are fairly serious
(firearm offenses, a drug trafficking offense, aggravated bat-
tery, domestic battery, and aggravated driving under the in-
fluence of alcohol). The district judge considered this issue
conscientiously and explained why he was not convinced he
should vary downward. He acted within his ample discretion
on this point.
C. Failure to specify whether the federal sentence would run
concurrently with or consecutively to any other sentence
The district court did not specify whether Hubbert’s sen-
tence in this case should run concurrently with or consecu-
tively to the state sentence, although under 18 U.S.C. § 3584the judge possessed the discretion to order the federal sen-
tence to run concurrently with any undischarged term im-
posed previously. See also U.S.S.G. § 5G1.3(d). Because this is-
sue was not raised below, our review is only for plain error.
E.g., United States v. Clark, supra, 935 F.3d at 569.
The express presumption under section 3584(a) is that
multiple terms of imprisonment imposed at different times
shall run consecutively to one another unless the court speci-
fies otherwise, so the judge’s silence on this point allowed the
presumption to dictate how the sentences will be served. In
any case, it appears from the record that Hubbert had already
been paroled from state custody by the time of the sentencing
in this case, see R. 60 ¶ 72, so it is not clear how Hubbert was
12 No. 20-3110
prejudiced by the court’s implicit decision that his federal sen-
tence should not run concurrently with his prior state sen-
tence. No plain error occurred in this respect.
III.
For the foregoing reasons, we AFFIRM Hubbert’s sen-
tence.