NONPRECEDENTIAL DISPOSITION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
Argued June 15, 2011
Decided August 24, 2011
Before
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 11‐1351
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 3:09CR30149‐001‐DRH
EZELL A. CURRY, David R. Herndon,
Defendant‐Appellant. Chief Judge.
O R D E R
Ezell Curry was arrested for selling crack cocaine and was sentenced to 188 months’
imprisonment. Curry appeals the sentence, arguing that the district court erred by refusing
to disregard the career‐offender guideline. Because the district court recognized its
discretion to deviate from the guidelines and adequately explained why Curry deserved a
sentence within the guidelines, we affirm the judgment.
Between May 26 and June 2, 2009, Ezell Curry completed four sales of crack cocaine
to two different government informants, who recorded the sales using audio equipment. A
grand jury indicted Curry with two counts (for two of the four sales) of distributing crack
cocaine, in violation of
21 U.S.C. § 841(a)(1). Curry was arrested in August 2010, and he
No. 11‐1351 Page 2
pleaded guilty without the benefit of a written plea agreement. In his stipulation of facts
Curry admitted that he distributed 2.5 grams of crack cocaine during the sales.
Curry qualified as a career offender under § 4B1.1(a) based on a prior crime of
violence and a separate controlled‐substance offense. In 1997 an Illinois jury found Curry
guilty of aggravated discharge of a firearm for firing a gun toward someone and aggravated
battery with a firearm for shooting a second person in the leg. While still on parole in 2001,
Curry was arrested and pleaded guilty in Illinois court to possessing with intent to deliver
111 grams of crack cocaine. Curry’s status as a career offender drove the calculation of his
guidelines range. With a prior drug conviction, Curry faced up to 30 years’ imprisonment
for distributing 5 grams of crack cocaine. See
21 U.S.C. § 841(b)(1)(C). This corresponds to a
base offense level of 34, U.S.S.G § 4B1.1(b)(B), which was reduced by 3 for Curry’s
acceptance of responsibility, see § 3E1.1, to reach a total offense level of 31. His offense level
of 31 and criminal history of Category VI, § 4B1.1(b), yielded a guidelines range of 188 to
235 months.
At sentencing the district court adopted the guidelines range in the presentence
investigation report. Curry did not object to any aspect of the calculation. He asserted that
the court should not defer to the career‐offender guideline because, he stated, the
Sentencing Commission did not base the guideline on careful study and empirical research.
Additionally, Curry claimed that the career‐offender guideline was not intended for him, a
non‐violent offender distributing a small amount of drugs. He requested a sentence of 120
months, which he argued was a substantial sentence but not greater than necessary under
the circumstances.
After listening to the parties, the court discussed the applicability of the career‐
offender guideline:
So when you talk about history and characteristics, the career offender
status is one that is not a situation that is about how many drugs Mr. Curry
had on this occasion; itʹs about Mr. Curry’s criminal history. He’s just the kind
of person the career offender status is meant to apply to, and I certainly ‐‐
though I have the discretion to do it, I certainly am not going to take someone
with this kind of criminal history and set aside the criminal history
classification and disregard it, because it’s something that’s clearly earned by
Mr. Curry.
The court went on to detail its reasons for imposing a sentence within the guidelines range.
Looking to the factors under
18 U.S.C. § 3553(a), the court considered the seriousness of
crack cocaine distribution in communities in Southern Illinois. It reflected upon Curry’s
No. 11‐1351 Page 3
criminal history, noting that he was before the court for his fourth felony conviction and
that during a brief period not incarcerated he lost a job for failing a drug test. The court also
considered Curry’s continued attempt to characterize himself as a non‐violent offender and
his refusal to take responsibility for the shootings in 1997, despite having been convicted of
those crimes. The court imposed a sentence of 188 months, at the bottom of the guidelines
range.
On appeal, Curry makes two arguments. First, he contends that the district court
afforded too much deference to the “flawed” career‐offender guideline. The guideline is
flawed, he argues, because it lacks an empirical basis and therefore does not approximate a
sentence that serves the objectives of
18 U.S.C. § 3553(a). Curry acknowledges that a district
court need not reject a guideline based on a lack of empirical support, see United States v.
Huffstatler,
571 F.3d 620, 623 (7th Cir. 2009), but he raises it here to preserve the issue for
later consideration.
This court in an en banc decision has rejected the sort of argument pressed by Curry.
“[J]udges are as free to disagree with [§ 4B1.1] as they are with § 2D1.1(c) (which sets the
crack/powder ratio). No judge is required to sentence at variance with a Guideline, but every
judge is at liberty to do so.” United States v. Corner,
598 F.3d 411, 416 (7th Cir. 2010) (en
banc). The district court here acknowledged its discretion to disregard the career‐offender
guideline and issued a within‐range sentence. The court did not place a thumb on the scale
in favor of the guidelines but rather recognized that “[t]he court is prohibited by law from
presuming the reasonableness of a guideline sentence, and will not do so. The Sentencing
Guidelines are to be considered as advice to this court.” The court’s comments show that it
understood that the career‐offender guideline was advisory.
Second, Curry maintains (as he did before the district court) that the Commission
created the career‐offender guideline to punish repeat drug traffickers and repeat violent
offenders, and argues that he does not fall into either category. But as Curry himself
conceded, he has the required two prior felony convictions of a crime of violence and a
controlled substance offense. U.S.S.G. § 4B1.1(a). Curry asserted at sentencing that he was
not a violent offender, but the district court rejected this statement based on Curry’s
conviction for aggravated assault. The court added that the all‐too‐brief interludes between
each of Curry’s four felony convictions showed Curry’s continued commitment to crime.
The court also agreed with the government that prior attempts to deter Curry had been
unsuccessful, given Curry’s decision to continue to commit crimes even while on parole.
Accordingly, we AFFIRM the judgment of the district court.
