United States v. Penrod, John , 133 F. App'x 327 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 19, 2005*
Decided May 20, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Nos. 04-1431 & 04-2132
UNITED STATES OF AMERICA, Appeals from the United States
Plaintiff-Appellee, District Court for the Southern
District of Illinois
v.
No. 4:03 CR 40024-008, 006
JOHN S. PENROD and KARLISS
LYTTLE, J. Phil Gilbert,
Defendants-Appellants. Judge.
ORDER
John Penrod and Karliss Lyttle were jointly tried before a jury, and both
were found guilty of conspiring to distribute more than 50 grams of crack, 21 U.S.C.
§ 846. In addition Penrod was convicted of four counts of distributing less than 5
grams of crack, and Lyttle was convicted of two counts of the same, 21 U.S.C.
§ 841(a)(1). Penrod was then sentenced to a total of 384 months’ imprisonment and
Lyttle to 240 months’. In their consolidated appeals, both challenge their sentences
on separate grounds.
*
After an examination of the briefs and records, we have concluded that oral
argument is unnecessary. Thus, these appeals are submitted on the briefs and records.
See Fed. R. App. P. 34(a)(2).
No. 04-1431 & 04-2132 Page 2
We begin with Penrod. The district court found that Penrod’s relevant
conduct involved at least 500 grams but less than 1.5 kilograms of crack cocaine,
establishing a base offense level of 36. The court refused to reduce the offense level
for acceptance of responsibility, and because there was conflicting testimony as to
Penrod’s involvement with a sawed-off shotgun, the court also refused to apply a
two-level upward adjustment under U.S.S.G. § 2D1.1(b)(1) for possession of a
dangerous weapon. However, the court did increase his offense level two points for
obstruction of justice after determining that Penrod “gave material and false
statements under oath that was more than just a mere denial” of culpability. With
a criminal history category of VI, the recommended sentencing range was 360
months’ to life, and because of “the defendant’s extensive criminal history, his lack
of remorse,” and “his participation and involvement in this conspiracy” the court
sentenced Penrod to two years beyond the recommended guideline minimum.
On appeal, Penrod claims that his Sixth Amendment rights were violated
when his sentence was increased on the basis of facts neither admitted nor found by
a jury beyond a reasonable doubt. See United States v. Booker, 125 S.Ct. 738(2005). Although Penrod asserts that his claim was preserved in the district court,
our review of the record reflects that it was not, and we therefore review his
sentence for plain error. See United States v. Paladino, 401 F.3d 471, 481 (7th Cir.
2005). Here the government concedes that a limited remand is warranted to ask
whether the judge would have decreased Penrod’s sentence had he known the
guidelines were merely advisory. Id. at 483-84. We agree and thus, while retaining
jurisdiction, direct a limited remand pursuant to the procedure set forth in
Paladino.
We turn next to Lyttle’s sentence. At his sentencing hearing, the district
judge determined that the offense conduct involved more than 150 but less than
500 grams of crack, yielding a base offense level of 34. Further, the judge
determined that Lyttle possessed a shotgun and increased the offense level by two
in accordance with U.S.S.G. § 2D1.1(b)(1). With a criminal history category of I, the
guideline range was 188 to 235 months. But Lyttle had been convicted of felony
cocaine possession in state court in July 2000, and faced an enhanced mandatory
minimum of 240 months’ imprisonment based on this prior conviction. 21 U.S.C. §§
841(b)(1)(A), 851. The judge then sentenced Lyttle to the mandatory minimum.
On appeal, Lyttle challenges only the enhancement for the prior felony drug
conviction. He appears to argue that his July 2000 state conviction cannot be used
to enhance his sentence because it was a related offense to his 2002 federal drug
conspiracy. Although Lyttle concedes that while his prior conviction is technically
within the plain language of the enhancement statute and that no precedent
supports his position, he asserts that the “spirit” of 21 U.S.C. § 851 prohibits the
No. 04-1431 & 04-2132 Page 3
use of a state conviction to enhance a sentence if that state conviction is related to
the present conviction. But his argument has been previously considered and
rejected. See United States v. Garcia, 32 F.3d 1017, 1019 (7th Cir. 1994) (holding
district court properly enhanced defendant’s federal drug conspiracy sentence based
on related prior state conviction); see also United States v. Williams, 272 F.3d 845,
865 (7th Cir. 2001) (citing Garcia). The purpose of § 851 is to target recidivism.
Garcia, 32 F.3d at 1019-20. Lyttle’s current conspiracy continued after his prior
felony drug conviction became final and this is precisely the activity the
enhancement sought to deter. Lyttle’s sentence is therefore AFFIRMED.