United States v. Coleman, Dante N. , 232 F. App'x 594 ( 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NONPRECEDENTIAL DISPOSITION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
Submitted May 3, 2007*
Decided May 11, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 05-4573
UNITED STATES of AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Eastern District of Wisconsin
v. No. 04-CR-278
DANTE N. COLEMAN, Charles N. Clevert, Jr.,
Defendant-Appellant. Judge.
ORDER
In this direct criminal appeal, Dante Coleman argues that we should remand
for resentencing because, he says, the district court made mistakes that will result
in his serving more time in prison and on supervised release than the court
intended. Coleman also argues that his overall prison term, as pronounced, is
unreasonable. The government rejects the latter contention but concedes that
resentencing would be appropriate to remedy “possible errors” by the district court.
*
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. 05-4573 Page 2
Police in Milwaukee, Wisconsin, arrested Coleman in November 2004 after a
car and foot chase. He was carrying a loaded gun and about 23 grams of crack
cocaine. Coleman told the police he planned to sell the crack. At the time, Coleman
was on probation for a 2000 state conviction, and Wisconsin officials revoked his
probation. He then pleaded guilty in federal court to possessing a firearm after a
felony conviction, 18 U.S.C. § 922(g)(1), possessing crack with intent to distribute,
21 U.S.C. § 841(a)(1), and carrying a firearm in relation to a drug trafficking crime,
18 U.S.C. § 924(c)(1).
The probation officer classified Coleman as a career offender, see U.S.S.G.
§ 4B1.1, because of prior felony convictions for fleeing police in a vehicle and
possession with intent to distribute cocaine. Based on that status the probation
officer calculated a guidelines imprisonment range of 322 to 387 months (including
a mandatory minimum of 60 months on the § 924(c)(1) count). At sentencing
Coleman did not object to the career-offender classification but did argue that his
prior convictions were not very serious and thus warranted a sentence below the
guidelines range. He also asked the district court to run his federal sentence
concurrently with the state revocation sentence. The court imposed a total of 322
months’ imprisonment to run “concurrent with the time that you are serving in the
State Court case.” The court also announced that it was imposing concurrent terms
of supervised release totaling five years but changed that to 10 years after the
probation officer interjected—incorrectly, it turns out—that the statutory minimum
on the drug count was 10 years.
On appeal Coleman observes that eight years, not ten, was the minimum
term of supervised release applicable to his drug conviction, see 21 U.S.C.
§ 841(b)(1)(B), and he argues that a remand is necessary so that the district court
can select an appropriate sentence based on a correct understanding of the
available penalty range. The government concurs, as do we. Although the district
court was free to select a term above the minimum, the court’s initial choice of five
years strongly suggests that it would not have imposed a 10-year term had it
received accurate information about the lowest available term.
Coleman also contends that the district court intended to make his federal
sentence fully concurrent with his undischarged state sentence but “mistakenly
made it partially concurrent by failing to reduce Mr. Coleman’s federal sentence by
the amount of time he had already served on his state sentence.” Coleman draws
this conclusion solely from the court’s agreement with trial counsel that a
“concurrent” sentence—not a “fully” concurrent sentence—was appropriate. This
sliver of record support seems to us an insubstantial basis for arguing that the
sentence pronounced was not what the district court intended, but the government
joins Coleman in advocating a remand so that the district court can “clarify its
intent.”
No. 05-4573 Page 3
As far as we can tell from the record before us, the confusion lies with the
parties and not the district court. Section 5G1.3(c) of the guidelines—which,
curiously, neither party cites—allows a district court to achieve a reasonable
punishment by running a new prison sentence “concurrently, partially concurrently,
or consecutively” to an undischarged term of imprisonment. U.S.S.G. § 5G1.3(c); see
United States v. Rivera, 327 F.3d 612, 615 (7th Cir. 2003); United States v. Johnson,
324 F.3d 875, 878 (7th Cir. 2003). When the undischarged sentence is for a
probation revocation (as it is here), the Sentencing Commission recommends that
the district court run the new sentence consecutively to the undischarged sentence,
U.S.S.G. § 5G1.3 cmt. n.3(C), so the sentence here—whatever the district court
intended—is outside the norm. Prior to United States v. Booker, 543 U.S. 220(2005), the district court would not have enjoyed the discretion to “depart” below the
guidelines range and effectively give Coleman “credit” for the discharged portion of
his revocation sentence. See United States v. Johnson, 117 F.3d 1010, 1013 (7th Cir.
1997); cf. U.S.S.G. § 5G1.3(b); United States v. Ross, 219 F.3d 592, 594 (7th Cir.
2000). After Booker, a district court may do exactly that, but since even a partially
concurrent prison term would constitute a sentence below the range, we are
reluctant to give the district court’s reference to “concurrent” the broadest possible
reading instead of the narrowest. United States v. Ngatia, 477 F.3d 496, 501 (7th
Cir. 2007); United States v. Orozco-Vasquez, 469 F.3d 1101, 1107 (7th Cir. 2006);
United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005). Still, since we are
remanding anyway because of the error concerning supervised release, we will
accept the government’s concession and vacate the sentence in its entirety.
Coleman also contends that an overall prison term of 322 months is
unreasonable. We could decline to address this question, given our decision to
remand for resentencing, but we offer some observations now in the interest of
avoiding another appeal after the remand. See, e.g., United States v. Agee, 83 F.3d
882, 888 (7th Cir. 1996).
Coleman argues that his career-offender status overstates the seriousness of
his prior convictions and that the district court should not have deemed a sentence
within the guidelines range to be presumptively reasonable. The latter proposition
is correct: at the district court level, the guidelines merely give the court advice
about the appropriate sentence. See, e.g., United States v. Gama-Gonzalez, 469 F.3d
1109, 111 (7th Cir. 2006); United States v. Demaree, 459 F.3d 791, 794-95 (7th Cir.
2006). But the court never indicated that it viewed the guidelines range as
presumptively reasonable. In imposing a sentence within the guidelines range, the
court considered the factors listed in 18 U.S.C. § 3553(a), including Coleman’s
history of drug crimes and attempts to flee from police. After considering these
factors, the court had discretion to sentence Coleman below the guidelines range if
it believed his criminal history was overstated, but the court was not compelled to
do so. See United States v. Garner, 454 F.3d 743, 751 (7th Cir. 2006). The court
No. 05-4573 Page 4
instead decided that a sentence within the guidelines imprisonment range was
appropriate, which it was entitled to do. See Gama-Gonzalez, 469 F.3d at 111. On
remand, we expect that the Supreme Court’s decision in Rita v. United States, No.
05-0674, 177 F. App’x 357 (4th Cir. May 1, 2006), cert. granted, 127 S.Ct. 551 (U.S.
Nov. 3, 2006) (06-5754), will be available to guide the resentencing proceedings.
Finally, Coleman argues that his sentence is not reasonable because the
district court should not have followed the 100-to-1 sentencing ratio for crack versus
powder cocaine. But as Coleman concedes, this court has repeatedly noted that the
district court is not free to disregard the 100-to-1 sentencing ratio decided upon by
Congress. See, e.g., United States v. Miller, 450 F.3d 270, 275 (7th Cir. 2006).
We VACATE the sentences on all counts, and the case is REMANDED for
resentencing.