United States v. Lacy, Milton E. , 165 F. App'x 475 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 18, 2006*
Decided January 19, 2006
Before
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 04-2746
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois
v. No. 3:03-30115-001
MILTON E. LACY, Jeanne E. Scott,
Defendant-Appellant. Judge.
ORDER
Milton Lacy pleaded guilty to possession with intent to distribute at least 5
grams of crack, see 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii), and the district court
sentenced him to 188 months’ imprisonment and five years’ supervised release.
Lacy’s guilty plea was entered pursuant to a written agreement that includes a
limited appeal waiver; Lacy reserved the right to challenge on appeal the
calculation of his imprisonment range under the sentencing guidelines if the district
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 04-2746 Page 2
court did not accept the parties’ stipulation as to Lacy’s expected range, and Lacy
now appeals. His retained counsel filed an opening brief but then withdrew after
the government responded, and Lacy is now proceeding pro se and has filed a
supplemental brief augmenting counsel’s submission. We affirm the district court’s
judgment.
Lacy first argues on appeal that the district court erred in finding that his
total criminal history points placed him in Category IV; the parties originally
stipulated to Category II, but Lacy now argues he should be placed in Category III.
The discrepancy arises from Lacy’s three convictions for driving on a revoked or
suspended license, all of which were incurred in 2002. The court assigned one point
for each conviction. Lacy submits that the offenses are “related” and should have
counted as a single conviction because all three were consolidated for sentencing.
See U.S.S.G. § 4A1.2(a)(2) and cmt. n.3 (2005). The government submits that Lacy
waived this argument by objecting and then withdrawing his objection at
sentencing. See United States v. Sensmeier, 361 F.3d 982, 986 (7th Cir. 2004). We
disagree. There was, we acknowledge, some confusion at sentencing concerning
whether Lacy intended to persist with this objection. But in the end the district
court specifically addressed whether criminal history points should be assessed for
each conviction, and thus we conclude that Lacy did all that was necessary to
satisfy the contemporaneous-objection rule. See United States v. Johnson, 396 F.3d
902, 904 (7th Cir. 2005) (explaining that reason for requiring contemporaneous
objection is satisfied if record demonstrates that judge understood and ruled on
objection); see also United States v. Baretz, 411 F.3d 867, 875 (7th Cir. 2005)
(“Waiver occurs when a defendant intentionally relinquishes a known right.”
(emphasis added)). That said, Lacy’s argument is frivolous. The three driving
offenses were separated by intervening arrests, and thus by definition they are
unrelated and must be counted separately. U.S.S.G. § 4A1.2 cmt. n.3 (2005); United
States v. Morgan, 354 F.3d 621, 623 (7th Cir. 2003); United States v. Bradley, 218
F.3d 670, 673 (7th Cir. 2000).
Lacy also argued at sentencing that, if all of his driving offenses should count
separately, then the district court should grant him a “downward departure” on the
premise that his criminal history category is overstated. See U.S.S.G. § 4A1.3(b).
The court declined to do so, and Lacy characterizes this decision as erroneous. The
government, for its part, contends that we have no jurisdiction to address this claim
of error because the district court was aware of its authority to depart but simply
refused as a matter of discretion. It is true that the government’s characterization
of the scope of our appellate jurisdiction was the rule before the Supreme Court
decided United States v. Booker, 543 U.S. 220 (2005). But as we recently explained,
Booker compels that we review “all sentences for reasonableness in light of the
factors specified” in 18 U.S.C. § 3553(a), and thus “we necessarily must scrutinize,
as part of that review, the district court’s refusal to depart from the advisory
No. 04-2746 Page 3
sentencing range.” United States v. Vaughn, No. 05-1518, 2006 WL 29208, at *5
(7th Cir. Jan. 6, 2006) (citing United States v. Arnaout, Nos. 03-3297 & 03-3412,
2005 WL 3242213, at *7 (7th Cir. Dec. 21, 2005)). Nonetheless, in this instance we
will not review the district court’s refusal to sentence Lacy below the guideline
range because his appeal waiver precludes him from challenging the court’s
decision. Lacy reserved the right to contest the sentencing court’s calculation of the
appropriate range, not to complain if the court sentenced him within a correctly
calculated range. Lacy does not say that he wants his guilty plea set aside; it
follows that he is also bound by his appeal waiver. See United States v. Whitlow,
287 F.3d 638, 640 (7th Cir. 2002) (explaining that waiver of appeal “stands or falls”
with the plea); United States v. Hare, 269 F.3d 859, 860-61 (7th Cir. 2001) (same).
That waiver also answers Lacy’s contention that he must be resentenced
because of the subsequent decision in Booker. An appeal waiver forecloses even
arguments based on favorable changes in the law that occurred after that waiver
was executed unless it includes an explicit “escape hatch,” and we have said this
rule applies equally to Booker claims. E.g., United States v. Lockwood, 416 F.3d
604, 608 (7th Cir. 2005); United States v. Bownes, 405 F.3d 634, 636-37 (7th Cir.
2005). Lacy’s waiver contains no such exception.
AFFIRMED.