United States v. McKinney, Kendel ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-3236
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
K ENDEL W. M C K INNEY,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 4:07-CR-40018-JPG—J. Phil Gilbert, Judge.
____________
A RGUED F EBRUARY 27, 2008—D ECIDED S EPTEMBER 11, 2008
____________
Before E ASTERBROOK, Chief Judge, and P OSNER and
W OOD , Circuit Judges.
W OOD , Circuit Judge. Kendel McKinney is no stranger
to the penal system. He has three drug convictions and
one conviction for aggravated robbery, plus nine pending
charges in state court and twenty-one traffic violations.
Although he was sentenced to eight years in prison on one
of his drug convictions, he served 18 months in a “boot
camp” program before he found himself facing the cur-
2 No. 07-3236
rent federal charges for distribution of crack cocaine. As
the Government tirelessly points out, by the time he
faced sentencing in this case, McKinney had accumulated
twice the number of convictions he needed for career
criminal status—and he did it all by the age of 24.
On April 12, 2007, McKinney pleaded guilty to two
counts of crack distribution in violation of 21 U.S.C.
§§ 841(a)(1) & 841(b)(1)(C). Relying on the rap sheet we
have just summarized, the presentence report (PSR)
concluded that McKinney was a career offender subject
to a sentence enhancement under U.S.S.G. § 4B1.1. Taking
into account a downward adjustment for acceptance of
responsibility, the PSR recommended a Guidelines
range of 188 to 235 months.
At the sentencing hearing, the Government introduced
into evidence a DVD depicting one of the vehicle chases
involving McKinney that had been recorded on the police
car’s video camera. The video shows that when the
officer signaled that McKinney should pull over, McKinney
instead drove through a neighbor’s yard, just missing a
tree stump, zoomed through a residential area, ran a
stop sign, and pulled into his mother’s driveway. He
then fled on foot, with the police in pursuit, while family
members removed items from his car. McKinney did not
have much to say for himself when the district court
invited him to speak: he said only “I never knew it
would come to this.”
In pronouncing its sentence, the district court com-
mented that every single factor mentioned in 18 U.S.C.
§ 3553(a) “calls for a lengthy incarceration to protect the
No. 07-3236 3
public.” The court addressed some of the arguments in
mitigation that McKinney had offered, including his
claim that he has a learning disability, but it found that
this did not excuse McKinney’s behavior. The district
court then invoked its discretion under United States v.
Booker, 543 U.S. 220 (2005), and United States v. Rita, 127
S. Ct. 2456 (2007), and went well beyond the advisory
Guidelines range of 188 to 235 months, choosing instead a
sentence of 293 months. Before this court, McKinney
challenges only his sentence; we affirm.
McKinney recognizes that he must persuade us that
his final sentence was unreasonable. The only reason he
offers in support of such a finding is that the district
court did not provide an adequate justification for how it
arrived at its “upward departure.” The use of pre-Booker,
pre-Rita vocabulary gives away the game: McKinney is
overlooking the discretion that district courts now
possess to choose a sentence outside the applicable Guide-
lines range.
If the Guidelines are properly calculated, this court
reviews a criminal sentence for reasonableness. Rita, 127
S. Ct. at 2459. McKinney raises no specific objection to
the calculation or application of his sentence, only to the
failure of the district court to explain more fully why it
chose 293 months. Although neither Kimbrough v. United
States, 128 S. Ct. 558 (2007), nor Gall v. United States, 128
S. Ct. 586 (2007), had been handed down as of the date
when McKinney filed his opening brief, they provide
the starting point for our resolution of this appeal. In
Kimbrough, the Court held that trial courts were per-
4 No. 07-3236
mitted to deviate from the 100-one ratio between crack and
powder cocaine sentences, 128 S. Ct. at 573-74. This flexi-
bility is of no use to McKinney, however, because the
ratio loses its importance if the defendant is sentenced as
a career offender, as McKinney was. Indeed, counsel
conceded that the crack/powder ratio did not play a role
in McKinney’s sentence for that reason.
Gall has more bearing on McKinney’s case. It said that
“a district judge must give serious consideration to the
extent of any departure from the Guidelines and must
explain his conclusion that an unusually lenient or an
unusually harsh sentence is appropriate in a particular
case with sufficient justifications.” 128 S. Ct. at 594. But the
Court rejected any rigid rule that would require a direct
relation between the degree of variance from the recom-
mended Guideline sentence and the thoroughness of the
judge’s explanation:
In reviewing the reasonableness of a sentence outside
the Guidelines range, appellate courts may therefore
take the degree of variance into account and consider
the extent of a deviation from the Guidelines. We
reject, however, an appellate rule that requires “ex-
traordinary” circumstances to justify a sentence out-
side the Guidelines range. We also reject the use of a
rigid mathematical formula that uses the percentage
of a departure as the standard for determining the
strength of the justifications required for a specific
sentence.
Id. at 594-95.
Taking these two passages from Gall together, we
deduce that we must simply satisfy ourselves that the
No. 07-3236 5
district court (1) calculated the advisory Guidelines range
correctly (something that is not in dispute here), (2) gave
serious consideration to sentences both within and
outside that recommended range, and (3) explained why
it selected “an unusually lenient or unusually harsh
sentence,” if it did so. The Court did not change the
rule that we have followed since Booker, under which
“the fact that the district court did not establish a
precise link between the degree of the departure and the
structure of the Guidelines, as was required pre-Booker, is
not a basis for disturbing the district court’s sentence.”
United States v. Valle, 458 F.3d 652, 658 (7th Cir. 2006); see
also United States v. Castro-Juarez, 425 F.3d 430, 436 (7th Cir.
2005) (“All that is necessary now to sustain a sentence
above the guideline range is an adequate statement of the
judge’s reasons, consistent with section 3553(a), for think-
ing the sentence that he has selected is indeed appropriate
for the particular defendant.”). Rather than speaking of
each marginal month over or under the Guidelines range,
Gall speaks only of “the degree of variance” and “the
extent of a deviation.” We are no longer in a world where
the district courts must justify each marginal month over
the Guidelines; our review for reasonableness goes for-
ward with a greater focus on the final sentence chosen
and the quality of the justification for it.
Seen in this light, the district court’s explanation is
adequate. The court considered both sentences within
the advisory Guidelines range and sentences outside the
range, and it explained why it thought that a significantly
harsher sentence was needed for someone with as deplor-
able a record as McKinney. The district court explained
6 No. 07-3236
that McKinney’s history did not bode well for his future
prospects, and that the public would be safer with him
off the streets. In the end, it concluded that it “[wa]s not
sure that [McKinney was] ever going to be able to adjust
to the rules and laws of society.” The district court then
explicitly found that a within-Guidelines sentence would
not suffice to punish McKinney and deter future crimes.
That was enough under both Gall and Booker.
We find nothing unreasonable in the sentence the dis-
trict court chose for McKinney. As Gall confirmed, we
cannot put a “thumb on the scale favoring a guideline
sentence,” United States v. Sachsenmaier, 491 F.3d 680, 685
(7th Cir. 2007), by requiring that district courts sentencing
above the range give more or better reasons than those
sentencing within the range. The sentence here fits the
crime, and is therefore
A FFIRMED.
9-11-08