United States v. Larry Gooden, Jr. ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3240
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
L ARRY S. G OODEN , JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:07-cr-30015-DRH-1—David R. Herndon, Chief Judge.
A RGUED A PRIL 21, 2009—D ECIDED M AY 7, 2009
A MENDED M AY 20, 2009
Before B AUER, E VANS and W ILLIAMS, Circuit Judges.
P ER C URIAM. Larry Gooden pleaded guilty to con-
spiring to kidnap and using a firearm during a crime of
violence. In a proffer agreement, Gooden admitted to
participating in a six-day crime spree that involved
robbing several people at gunpoint, abducting a victim
and holding him captive in the trunk of his car for
several days, and attempting to rape another victim. A
probation officer calculated the guidelines range to be
2 No. 08-3240
444 to 525 months’ imprisonment, and the district court
sentenced him to 600 months based on the brutality of
his offense and his recidivism. Gooden appeals, arguing
that his sentence is unreasonably high. Because the sen-
tence is reasonable, we affirm.
Gooden and his co-conspirator, Barry Williams, began
their crime spree by robbing a laundromat in Cahokia,
Illinois. Armed with a sawed-off shotgun, they entered
the laundromat and forced a patron at gunpoint into the
bathroom and robbed him. After hitting the victim and
threatening to kill him, they abducted him and stole
his car, forcing him to ride and sleep in the trunk for
four days. They periodically withdrew money from his
bank account using his ATM card, and, at one point,
forced him again at gunpoint to go to a drive-through
teller window at a bank and withdraw $2,000. The
victim was held in the trunk while Gooden and Williams
drove around Missouri and Illinois, and they allowed
him out of the trunk only to eat and to use the bathroom.
On one occasion, after he was allowed out of the trunk,
Gooden told him, “I want to kill you so bad my dick is
hard.” The victim would sometimes use an emergency
latch inside the trunk to look outside for an opportunity
to escape, but feared that if they caught him trying,
Gooden and Williams would kill him. The victim finally
found a fortuitous moment when he recognized his
surroundings and managed to flee on foot to his parents’
home.
Gooden and Williams then drove the victim’s car on-
wards to St. Louis, Missouri, where they held up two
No. 08-3240 3
truck drivers outside a restaurant at gunpoint; in a scuffle
that ensued, the drivers were both injured.
Later that day, Gooden and Williams approached a
woman who was exiting a restaurant in Berkeley,
Missouri, put a sawed-off shotgun to her back, and forced
her into her car. Williams drove, while Gooden followed
in the car they stole from the Cahokian victim. They
drove to the back of a large parking lot where Williams
told Gooden to “watch his back” while he attempted to
rape the woman. The victim struggled with Williams,
who threatened to hit her with the sawed-off shotgun,
which in turn discharged into the dashboard of her car.
Williams then tried to start the car but it would not start,
and the two men dragged the victim out of her car
towards the other car.
A police officer then showed up on the scene, and
Gooden and Williams fled on foot. Gooden soon
returned to the stolen car he had been driving. He sped
off, and the police chased him at speeds over 100 miles
per hour. The chase ended with Gooden crashing the car,
appropriately, near a police station in Sauget, Illinois. The
police arrested Gooden and found evidence from the
crime spree: the sawed-off shotgun; a work shirt (worn
by Gooden) bearing the Cahokian victim’s name em-
broidered on the front; and the wallet of one of the truck-
driver victims.
Gooden entered a proffer agreement and plea agree-
ment and pleaded guilty to conspiracy to commit kid-
napping, 18 U.S.C. § 1201(a)(1) and (c), and possession of
a firearm in furtherance of a crime of violence, 18 U.S.C.
4 No. 08-3240
§ 924(c)(1)(A) and (c)(1)(B)(I). The plea agreement required
that Gooden give complete information about crimes
committed during the crime spree. A probation officer
calculated Gooden’s guidelines range for the kidnapping
count to be 324 to 405 months’ imprisonment and, adding
the firearm count’s required consecutive minimum of
120 months’ imprisonment, a total guidelines range of
444 to 525 months. See U.S.S.G. § 5G1.2.
Gooden asked for a psychological examination to deter-
mine whether he was competent to stand trial. Bureau
of Prisons psychologists diagnosed him with a “Mood
Disorder Not Otherwise Specified,” finding that, although
he did not meet the full criteria for depressive or
bipolar disorder, he exhibited some symptoms of a mood
disorder including mild depression, irritability, “racing
thoughts at times,” and mild sleep disturbances; they
concluded that he did not have a mental defect nor was
he incompetent to stand trial.
About a week before the district judge was to sentence
Gooden, the government sought a finding that Gooden
had breached the plea agreement by failing to pro-
vide complete information about the crimes he had com-
mitted. It turned out that Gooden’s DNA matched evi-
dence found during an investigation of an unsolved
rape of a 16-year-old girl that had occurred during
Gooden’s six-day crime spree, and the victim had identi-
fied Gooden and Williams in a photographic lineup.
Gooden chose not to contest the government’s motion
and entered a guilty plea without a plea agreement.
At the sentencing hearing, Gooden argued that he had
been manipulated by Williams, and that he needed
No. 08-3240 5
mental health care and should receive a reduced sentence
because of diminished capacity. Gooden also argued
that he was no more culpable than Williams, who had
received a within-guidelines sentence of 40 years.
Williams, however, as Gooden acknowledged, entered
his plea agreement before the rape of the 16-year-old
had been discovered; thus the government did not learn
until after his sentencing that Williams had breached
the plea agreement by not disclosing that crime.
The judge rejected Gooden’s argument that he had
diminished capacity, noting that the psychological evalua-
tion concluded that he did not have a mental defect. The
judge also noted that diminished capacity was not
reflected by the nature of Gooden’s threats to his victims,
including his expression of a physical desire to kill his
kidnapping victim. And even if he were to conclude
that Gooden did suffer from diminished capacity, the
judge added, he would not be eligible for a reduction
because the guidelines do not provide for one when
specific deterrence is an overriding concern. See U.S.S.G
§ 5K2.13.
The government, citing the brutality of Gooden’s crimes,
the multiple times that the shotgun was brandished, and
the number of victims of his violence, sought an above-
guidelines sentence of 576 months. The judge, however,
went further and sentenced Gooden to 600 months’
imprisonment, reasoning that the crime spree, involving
armed violence, robbery, abduction, and sexual assault,
called for a longer sentence to protect society from
Gooden. The judge pointed out that a 10-year minimum
6 No. 08-3240
sentence would be imposed for one use of a firearm even
if it were never fired, and Gooden had brandished the
sawed-off shotgun four times, and it had been discharged
once. The judge rejected Gooden’s argument that he
was simply led by others, finding instead that Gooden
was a “full partner in a six-day crime spree.” The judge
also noted Gooden’s extensive criminal history,
including crimes that were not reflected in Gooden’s
criminal history score.
The district judge followed up his exemplary sentencing
discussion with a 22-page sentencing memorandum
that detailed his reasons for imposing the 50-year sen-
tence, and referred to all of the factors in § 3553(a).
On appeal, Gooden argues that his sentence is unrea-
sonable. He maintains that the district judge failed “to
point out how these crimes and the defendant’s role were
not adequately taken into consideration” by the guide-
lines, and that a variance with the guidelines was not
justified with reference to 18 U.S.C. § 3553(a) and the
grounds for increases listed in U.S.S.G. § 5K2.0. He also
argues that his 50-year sentence creates an unwarranted
sentencing disparity with Williams’s 40-year sentence
and thus strays afoul of § 3553(a)(6).
Sentences that are outside the guidelines range are
reasonable if they conform to the sentencing factors in
18 U.S.C. § 3553(a), United States v. Simmons, 485 F.3d 951,
953 (7th Cir. 2007), and a sentencing judge should sup-
port an above-guidelines sentence with “compelling
justifications,” United States v. Gordon, 513 F.3d 659, 666
(7th Cir. 2008). Here, the judge gave extensive justifica-
No. 08-3240 7
tions for imposing a 50-year sentence on Gooden. The
judge noted Gooden’s extensive criminal history, see 18
U.S.C. § 3553(a)(1), specifically pointing out that Gooden
had committed crimes shortly after being released from
prison, and concluded that Gooden was a recalcitrant
“brutal criminal” who was trying to manipulate the
system “by relying on some sort of mental issue,” the
same way he manipulates his victims. The judge also
pointed out the need to protect society from Gooden, see
18 U.S.C. § 3553(a)(2)(C), reasoning that Gooden was an
“extraordinary danger to society” who had shown no
remorse. The judge considered the need for general
deterrence, see 18 U.S.C. § 3553(a)(2)(B), noting the im-
portance of warning “persons like the defendant” that
“they will be removed from society for a very long
period of time if they pursue this kind fo activity.”
Gooden characterizes the district judge’s justifications
for increasing his sentence on the basis of his role in the
offense, see 18 U.S.C. § 3553(a)(1)-(2), as “conclusory.” He
argues that it was Williams, not Gooden, who put the
shotgun to the back of the woman whom he then at-
tempted to rape, and that it is unclear who injured the
truck drivers. We disagree. The judge noted that Gooden
was a full partner in Williams’s crimes, and that the
guidelines range for the firearm charge was the
statutory minimum, and did not take into considera-
tion the multiple times the shotgun was used, the fact
that it was discharged, or the overall violent nature of the
six-day crime spree.
Gooden’s argument that his sentence is unreasonable
in comparison to Williams’s 40-year sentence is similarly
8 No. 08-3240
unpersuasive. See 18 U.S.C. § 3553(a)(6). We do not view
the “discrepancy between sentences of co-defendants as
a basis for challenging a sentence” and will disturb
a sentence only if it creates an unwarranted sentence
disparity between similar defendants nationwide. See
United States v. Omole, 523 F.3d 691, 700 (7th Cir. 2008).
Gooden does not point to any similar sentences in other
cases that would show that his sentence creates an “unjus-
tified difference across judges (or districts).” See United
States v. Boscarino, 437 F.3d 634, 638 (7th Cir. 2006). More-
over, as the government points out, Williams was sen-
tenced (by the same judge) under the terms of a
plea agreement where the government recommended
the low-end of Williams’s 480-months to life-imprison-
ment range. As the judge noted, Williams benefitted from
the fact that his involvement in the rape of the sixteen-
year-old girl was unknown at the time of his sentencing,
and the government was unaware that Williams had
breached the terms of the plea agreement.
Finally, Gooden argues that he was not notified of the
district court’s intention to give an above-guide-
lines sentence, in violation of Federal Rule of Criminal
Procedure 32(h). But Rule 32(h), which was applicable to
departures before United States v. Booker, 543 U.S. 220 (2005),
does not apply to post-Booker variances from the guide-
lines range. Irizarry v. United States, 128 S.Ct. 2198, 2203
(2008).
Accordingly, we A FFIRM Gooden’s sentence.
5-20-09