United States v. Shelly, Cortland A. ( 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NONPRECEDENTIAL DISPOSITION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 February 22, 2007*
Decided April 25, 2007
Before
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 05-3679
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of
Wisconsin
v.
No. 05 CR 24
CORTLAND A. SHELLY,
Defendant-Appellant. Barbara B. Crabb,
Chief Judge.
ORDER
Cortland Shelly pleaded guilty to possession with the intent to distribute
cocaine base in violation of 21 U.S.C. § 841(a)(1). At sentencing, Shelly made no
objection to the district court’s sentencing guidelines’ calculation. Shelly now
contends that contrary to United States v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005), a
sentence within the applicable guidelines is not automatically reasonable. He also
*
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. 05-3679 Page 2
contends that the 100:1 weight calculation disparity between cocaine base and
powder cocaine in the guidelines is unreasonable. See U.S.S.G. § 2D1.1. We affirm.
In 2005 Shelly arranged to sell powder cocaine and cocaine base to a
confidential informant. But once Shelly met the informant, Drug Enforcement
Agents identified themselves and tried to arrest him. Shelly fled in his car,
knocking one agent off his feet and running over another’s foot in the process.
Shelly stopped the car and attempted to flee on foot. The agents caught him and
recovered 72 grams of crack cocaine, 59.8 grams of powder cocaine, 8 grams of
marijuana and drug paraphernalia from his jacket and car. Shelly subsequently
pleaded guilty to possession with intent to distribute 50 or more grams of cocaine
base, 18 U.S.C. § 841(a)(1).
The district court adopted all of the recommendations in the pre-sentence
report at sentencing. The PSR used the drug equivalency table in the Sentencing
Guidelines, which has a 100:1 crack to cocaine ratio, to conclude that Shelly’s
relevant conduct included 1,452 kilograms of marijuana. As a result, Shelly’s base
offense level was 32. The PSR also recommended a six-level upward adjustment
under U.S.S.G. § 3A1.2(c)(1) because Shelly struck DEA agents when he fled in his
car. Finally, the PSR recommended a three-level decrease under U.S.S.G. § 3E1.1
because Shelly accepted responsibility by pleading guilty. As a result, Shelly’s total
offense level was 35 and his criminal history category was III. The recommended
guideline range for that level and category was 210-262 months’ imprisonment.
At sentencing, Shelly did not object to the PSR’s guidelines calculations nor
did he provide any other argument why the court should impose a sentence below
the guidelines range. Instead, Shelly’s attorney asserted only that “I don’t know
how much sense 210 months’ confinement makes,” and asked the court to impose a
sentence that would still give Shelly “any sense of hope.” Finally, Shelly made no
objection to the harsher consequences the guidelines gave cocaine base. The
government, for its part, asked the court to impose a sentence at the top end of the
guidelines range.
The district court evaluated a number of factors to determine the appropriate
sentence for Shelly, including his upbringing, age, prior convictions, drug addiction,
and flight from law enforcement. First the court noted that although Shelly was
only 22, he already had seven prior convictions. The court also referred to Shelly’s
“very serious substance abuse problem,” for which he refused help, and the fact that
Shelly had injured the DEA agents when he struck them with his car. In doing so,
the court acknowledged that a sentence at the high end of the range would be
appropriate but Shelly’s youth persuaded him that the low end would still “hold
[Shelly] accountable” and “reflect the seriousness” of his conduct. The court then
sentenced Shelly to the low end of the guidelines range, 210 months’ imprisonment.
See 18 U.S.C. § 3553(a)(1), (a)(2).
No. 05-3679 Page 3
On appeal Shelly challenges this court’s holding that sentences correctly
calculated under the guidelines are presumptively reasonable. See Mykytiuk, 415
F.3d at 607-08. Shelly points out that Mykytiuk conflicts with the First, Second,
Third, and Eighth Circuit’s holdings that a sentence within the appropriate
guidelines range is not entitled to a presumption of reasonableness. See United
States v. Fernandez, 443 F.3d 19, 27-28 (2d Cir. 2006); United States v. Jimenez-
Beltre, 440 F.3d 514, 516-19 (1st Cir. 2006); United States v. Cooper, 437 F.3d 324,
331-32 (3d Cir. 2006); United States v. Winters, 416 F.3d 856, 861 (8th Cir. 2005).
Although the Supreme Court recently granted a writ of certiorari in Rita v. United
States, cert. granted, ___ U.S. ___, 127 S.Ct 551, ___ (2006), to consider whether
according a presumption of reasonableness to a within-guidelines sentence is
consistent with United States v. Booker, 543 U.S. 220 (2005), the resolution of that
case would not affect the conclusion that the district court here arrived at a
reasonable sentence after meaningful consideration of the sentencing factors in
§ 3553. See United States v. Gama-Gonzalez, 469 F.3d 1109, 1111 (7th Cir. 2006).
Judge Crabb considered the factors for leniency or harshness under
§ 3553(a)(1)—Shelly’s youth, criminal history, drug addiction—and those factors
reflecting the seriousness of the conduct—Shelly’s flight and the officers’
injuries—as well as a need for deterrence, see § 3553(a)(1) and (2). Because the
district court considered the factors outlined in § 3553(a) and adequately explained
her reasons for imposing a sentence at the low end of the guidelines range, Shelly’s
sentence is reasonable. See United States v. Jung, 473 F.3d 837, 844-45 (7th Cir.
2007).
In a similar vein, Shelly argues that the district court “may” have imposed
the guidelines because she mistakenly believed they were presumptively correct.
This would be wrong, Shelly argues, because it would require him to rebut the
presumption of reasonableness during sentencing and not during appeal. This
court’s recent decision in Gama-Gonzales, directly precludes this argument,
however; it holds that the presumption of reasonableness means only that district
courts may follow the guidelines without acting unreasonably. 469 F.3d at 1111.
And finally, Shelly’s only argument for why his sentence is unreasonable is
the disparity between crack and powder cocaine set forth in the guidelines. He
raises this argument for the first time on appeal and does not argue why the
disparity is unreasonable. In any event this court has repeatedly held that a
sentence based on that disparity is not unreasonable, see e.g., United States v.
Gipson, 425 F.3d 335, 337 (7th Cir. 2005), and judges must abide by the disparity
when calculating the range even if they take issue with it, see United States v.
Wallace, 458 F.3d 606, 611 (7th Cir. 2006); United States v. Miller, 450 F.3d 270,
275 (7th Cir. 2006).
AFFIRMED