United States v. Renard R. Butler , 777 F.3d 382 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-2770
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RENARD R. BUTLER,
Defendant-Appellant.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:14-cr-00022-RTR-1 — Rudolph T. Randa, Judge.
ARGUED DECEMBER 8, 2014 — DECIDED JANUARY 15, 2015
Before BAUER and HAMILTON, Circuit Judges, and ELLIS,
District Judge.*
BAUER, Circuit Judge. Defendant-Appellant, Renard R.
Butler (“Butler”), was convicted on two counts of violating 18
U.S.C. § 472 and sentenced to 24 months’ imprisonment. On
appeal, he argues that the district court erred in calculating
*
The Honorable Sara Lee Ellis, of the United States District Court for the
Northern District of Illinois, sitting by designation.
2 No. 14-2770
his sentence by improperly assigning two criminal history
points to a prior state conviction for forgery. Butler contends
that the conduct underlying this prior conviction is part of the
instant offense and, as such, should be considered relevant
conduct under U.S.S.G. § 1B1.3 instead. We affirm.
I. BACKGROUND
On August 20, 2012, Butler was detained following a traffic
stop in Milwaukee, Wisconsin, and arrested after the police
detected marijuana. Upon searching Butler, the officers
discovered several counterfeit federal reserve notes of varying
denominations in Butler’s pockets. A subsequent investigation
by the United States Secret Service revealed that Butler and
two others had been manufacturing counterfeit notes earlier
that day in a Milwaukee residence. Agents searched the
residence and found a color printer along with a bag contain-
ing numerous misprints of counterfeit notes. Butler admitted
to agents that he had purchased resume paper earlier that day
to manufacture counterfeit currency and had sold the counter-
feit notes to others. However, he was released from custody
and not charged.
Several months later, in January 2013, Butler became a
suspect in a series of counterfeit transactions involving vehicle
purchases in the Milwaukee area. The first of these transactions
occurred on January 9, 2013, when Butler contacted a vehicle
seller, T.V., who had listed a Cadillac Eldorado for sale online.
At a meeting later that day, Butler passed T.V. an envelope
containing $1,400 in exchange for the car. After the transaction,
T.V. discovered that the money he had received was counter-
feit and contacted the police. When the police showed T.V. a
No. 14-2770 3
photo array of potential suspects, T.V. identified Butler as the
buyer.
The second transaction occurred on January 20, 2013, when
Butler contacted the seller of another vehicle, A.G., who had
listed a Buick Roadmaster for sale online. They arranged a
meeting for later that day, at which Butler passed A.G. an
envelope containing $1,500 in exchange for the vehicle. Similar
to the seller in the first transaction, A.G. discovered later
that the money contained in the envelope was counterfeit
and contacted the police. Upon viewing a photo array of
potential suspects, A.G. identified the buyer as Butler. Police
also recovered Butler’s fingerprints from the envelope.
The third and final transaction occurred on January 23,
2013, when Butler contacted a seller, J.D., who had listed a
Buick Regency for sale online. At a subsequent meeting later
that day, Butler paid J.D. $1,100 in exchange for the vehicle.
Shortly thereafter, J.D. suspected that the money that he had
received was counterfeit and contacted the police. J.D. re-
viewed a photo array of potential suspects and identified
Butler as the person who purchased his vehicle.
Over a year later, in February 2014, a grand jury returned
a four-count indictment charging Butler with various viola-
tions of 18 U.S.C. § 472. At the time of his arraignment, Butler
was serving a 90-day state sentence in Wisconsin for forgery.
This conviction stemmed from an August 2013 arrest in Green
Bay, Wisconsin. According to the complaint in that case, Butler
had started printing counterfeit currency in Green Bay, which
he used to purchase large amounts of marijuana, and then
helped others make and obtain counterfeit currency.
4 No. 14-2770
Upon his release from state custody, Butler appeared before
the district court, pleaded guilty, and was convicted of Counts
One and Three of the federal indictment. Count One, posses-
sion of counterfeit securities of the United States, flowed from
the August 2012 traffic stop in Milwaukee. Count Three,
utterance of counterfeit securities of the United States, flowed
from the transaction with A.G. on January 20, 2013, during
which he passed counterfeit notes in exchange for a vehicle.
In connection with Butler’s sentencing, the presentence
report (“PSR”) assigned Butler nine points as a base offense
level. U.S.S.G. § 2B5.1(a). Due to the amount of counterfeit
currency found on Butler following his August 2012 traffic stop
arrest, as well as the total amount of counterfeit money
exchanged during the three vehicle transactions in January
2013, the PSR held Butler responsible for the possession,
distribution or utterance of $4,186 in counterfeit notes and
assigned a one-level increase based on that total. U.S.S.G.
§ 2B5.1(b)(1)(A) (providing a one-level increase where the face
value of the counterfeit items “exceeded $2,000 but did not
exceed $5,000”). Pursuant to § 2B5.1(b)(2)(A) and (b)(3) of the
Guidelines, Butler received an additional three-level increase
because he assisted in the production of counterfeit notes and
possessed a counterfeiting device. U.S.S.G. § 2B5.1(b)(2)(A)
(providing a two-level increase if a defendant “manufactured
or produced any counterfeit obligation or security of the
United States, or possessed or had custody of or control over
a counterfeiting device or materials used for counterfeiting”);
U.S.S.G. § 2B5.1(b)(3) (providing that “if (b)(2)(A) applies, and
the offense level determined under that subsection is less than
level 15, increase to level 15”). Factoring in a two-level decrease
No. 14-2770 5
for acceptance of responsibility, the PSR assigned Butler a total
offense level of 13 points.
Butler also received eight criminal history points, placing
him in Criminal History Category IV. Included among Butler’s
prior offenses was the state forgery conviction for which Butler
had served a 90-day sentence prior to the instant conviction.
Under the Guidelines, the combination of Butler’s total offense
level of 13 and Category IV produces a range of 24–30 months.
Prior to sentencing, Butler’s counsel submitted a detailed
sentencing memorandum in which he advocated for a sentence
of 30 days’ imprisonment. In addition to providing the court
with information about Butler’s upbringing and personal life,
Butler’s counsel argued that adhering to the Guidelines range
“properly calculated” by the PSR “produces a sentence greater
than necessary to meet the goals of sentencing.” In support
of this position, defense counsel raised several arguments
under § 3553(a). Specifically, he contested the application of
§ 2B5.1(b)(2)(A) and (b)(3), arguing that Butler’s means of
manufacturing counterfeit currency did not rise to the level of
sophistication and planning intended by the Guidelines.
Defense counsel also argued that several of Butler’s criminal
history points were “improperly assigned” and that Butler’s
2013 state conviction for forgery “should be viewed as part of
the instant offense, not as criminal history.” As to the latter
argument, defense counsel contended that the conduct that
gave rise to the state forgery conviction was part and parcel of
the behavior that led to the instant offense. As such, “under
§ 3553(a), the two criminal history points assigned by the
guidelines for the [state] conviction [should be] disregarded.”
Relatedly, he also argued that Butler should receive time
6 No. 14-2770
served credit for the 90 days that he spent in custody for the
state forgery conviction.
At sentencing, neither party raised objections to the factual
statements contained in the PSR. When invited to present
arguments in favor of his sentencing recommendation of 30
days, defense counsel expounded on the arguments set forth
in his sentencing memorandum. Ultimately, the court adopted
the within-Guidelines sentence recommended by the govern-
ment and sentenced Butler to 24 months’ imprisonment. This
appeal followed.
II. ANALYSIS
The threshold issue in Butler’s appeal is whether he fully
waived or merely forfeited his right to appeal his Guidelines
calculation. The government argues that Butler waived any
claim of error in the calculation of his sentence because he did
not affirmatively object to the PSR. Butler concedes that he did
not directly challenge his Guidelines calculation but argues
that he merely forfeited the right to challenge it on appeal
because his failure to affirmatively object to the PSR at sentenc-
ing was due to negligence.
The distinction between waiver and forfeiture carries great
weight. Under Federal Rule of Criminal Procedure 52(b),
courts of appeals have “a limited power to correct errors that
were forfeited because not timely raised in district court.”
United States v. Olano, 507 U.S. 725, 731 (1993).“Mere forfeiture,
as opposed to waiver, does not extinguish an ‘error’ under
Rule 52(b),” but permits review for plain error. Id. at 733.
However, determining whether a defendant has waived or
forfeited his legal rights is not always an easy exercise, as “the
No. 14-2770 7
line between waiver and forfeiture is often blurry.” United
States v. Garcia, 580 F.3d 528, 541 (7th Cir. 2009). To distinguish
between the two, “we examine a party’s state of mind at the
time that an objection could have been raised.” United States v.
Anderson, 604 F.3d 997, 1001 (7th Cir. 2010). Waiver is the
intentional relinquishment of a known right. Olano, 507 U.S. at
733; United States v. Jaimes-Jaimes, 406 F.3d 845, 847 (7th Cir.
2005). By contrast, forfeiture is “the failure to make the timely
assertion of a right.” Olano, 507 U.S. at 733. Forfeiture occurs by
accident or neglect, rather than through the manifestation of an
intentional choice not to assert a right. United States v. Cooper,
243 F.3d 411, 416 (7th Cir. 2001); United States v. Staples, 202
F.3d 992, 995 (7th Cir. 2000).
Waiver principles are construed liberally in favor of the
defendant. Anderson, 604 F.3d at 1002. There is no rigid rule for
finding waiver; rather, we evaluate each omission individually
to determine whether, as a matter of strategy, the defendant
made a calculated choice to stay silent on a particular issue,
thereby waiving his right to challenge that matter on appeal.
Id. at 1001; Jaimes-Jaimes, 406 F.3d at 848 (“There may be sound
strategic reasons why a criminal defendant will elect to pursue
one sentencing argument while also choosing to forego [sic]
another, and when the defendant selects as a matter of strat-
egy, he also waives those arguments he decided not to pres-
ent.”). Thus, while we have found waiver where either a
defendant or his lawyer expressly declined to press a right or
to make an objection to a sentencing enhancement, see Garcia,
580 F.3d at 542; Staples, 202 F.3d at 995; United States v. Redding,
104 F.3d 96, 99 (7th Cir. 1996), “we do not read our cases as
establishing an inflexible rule that every objection not raised at
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a sentencing hearing is waived.” Jaimes-Jaimes, 406 F.3d at 848.
See also Anderson, 604 F.3d at 1001; United States v. Allen, 529
F.3d 390, 395 (7th Cir. 2008). In order to determine whether the
defendant intended to forgo a legal argument, we must draw
inferences from the record and the surrounding circumstances.
See Garcia, 580 F.3d at 542 (holding that this inquiry requires
some “conjecture” and an evaluation of the record as a whole).
Applying these standards, we find that Butler forfeited his
legal right to challenge the district court’s calculation of the
Guidelines. Although neither Butler nor his counsel affirma-
tively objected to the Guidelines calculation, the record
indicates that this omission was due to defense counsel’s
oversight, rather than the result of a deliberate and strategic
choice to pursue one sentencing argument while forgoing
another. Defense counsel clearly objected in both a detailed
sentencing memorandum and his argument at the sentencing
hearing to the inclusion of the state forgery offense within
Butler’s criminal history, and argued that the two points
attributable to that offense should be disregarded by the court.
Undoubtedly, defense counsel should have articulated this
objection as a challenge to the Guidelines calculation, rather
than advancing it to support a downward variance under
§ 3553(a). However, doing so would not have prevented
defense counsel from also presenting a mitigation argument.
Because the government offers no strategic reason for why
Butler would have opted to bypass a direct challenge to the
Guidelines calculation, and we cannot conceive of one, Butler’s
failure to properly raise this objection constitutes forfeiture. See
Jaimes-Jaimes, 406 F.3d at 848.
No. 14-2770 9
Nevertheless, Butler’s appeal fails because he cannot satisfy
the “remarkably demanding” plain error test. Anderson, 604
F.3d at 1002 (quoting United States v. Salazar, 453 F.3d 911, 913
(7th Cir. 2006)). Under plain error review, the defendant has
the burden of showing: (1) an error or defect that (2) is clear or
obvious and (3) affects the defendant’s substantial rights.
Olano, 507 U.S. at 736. Even if the defendant can meet this
burden, this court is not required to order a correction of the
error, but may exercise its discretion to do so if the error
seriously impugns the fairness, integrity or public reputation
of the judicial proceedings. Id. at 736. Under the facts presented
in the instant appeal, Butler cannot show that the district
court’s failure to consider his state conviction for forgery as
relevant conduct under U.S.S.G. § 1B1.3 meets the standard for
plain error.
Section 4A1.2 of the Guidelines provides that “[t]he term
‘prior sentence’ means any sentence previously imposed upon
adjudication of guilt, whether by plea, trial, or plea of nolo
contendere, for conduct not part of the instant offense.” U.S.S.G.
§ 4A1.2. The Application Notes to § 4A1.2 provide that “a
sentence imposed after the defendant’s commencement of the
instant offense, but prior to sentencing on the instant offense,
is a prior sentence if it was for conduct other than conduct that
was part of the instant offense.” U.S.S.G. § 4A1.2 cmt. n.1.
Further, “[c]onduct that is part of the instant offense means
conduct that is relevant conduct to the instant offense under
the provisions of § 1B1.3.” Id. Under § 1B1.3, relevant conduct
includes “all acts and omissions committed … by the
defendant … that occurred during the commission of the
offense of conviction … .” U.S.S.G. § 1B1.3(a)(1)(A). Since
10 No. 14-2770
Butler’s offenses under § 2D5.1 were properly grouped
together pursuant to § 3D1.2(d), relevant conduct also includes
all acts “that were part of the same course of conduct or
common scheme or plan as the offense of conviction.” U.S.S.G.
§ 1B1.3(a)(2).
It is undisputed that Butler’s 90-day sentence for forgery
was imposed after the conduct underlying the instant offense,
but prior to sentencing on the instant offense. Butler maintains,
however, that the offense conduct associated with the forgery
conviction does not fall within the ambit of § 4A1.2 because
that conviction was the last in an unabated series of counter-
feiting offenses that culminated in the instant conviction. We
disagree. While it is “well established that in determining a
defendant’s sentence a court may consider a broad range of
information,” United States v. Valenti, 121 F.3d 327, 334 (7th Cir.
1997), with respect to whether a defendant’s prior conduct
should be considered relevant conduct under § 1B1.3, the court
looks to the “similarity, regularity, and temporal proximity of
the uncharged acts to the offense of conviction.” United States
v. Sykes, 7 F.3d 1331, 1336 (7th Cir. 1993). If one of those three
factors is not present, the court must look for “a stronger
presence of at least one of the other factors.” U.S.S.G. § 1B1.3
cmt. n.9(B). In Butler’s case, the similarities between the instant
offense and the state forgery conviction are minimal. The fact
that both offenses involve counterfeit currency does not,
independently, demonstrate that they are part of the same
course of conduct. The Guidelines compel us to conduct a
more searching inquiry to determine whether there are
distinctive similarities between the offense of conviction and
the prior conduct that indicate that they are not isolated,
No. 14-2770 11
unrelated events that happen only to be similar in kind. Where,
as here, the prior conduct takes place over one hundred miles
away from the conduct underlying the instant offense, is
relatively remote temporally, and involves entirely different
victims, means, and purposes, we cannot say that it is suffi-
ciently connected to the instant offense to qualify as part of the
same course of conduct for the purposes of § 1B1.3.
Furthermore, even assuming, arguendo, that this prior
conduct should have been considered relevant conduct, Butler
cannot show that such an error affected his substantial rights.
Butler argues that he was prejudiced by the district court’s
assignment of two extra points to his criminal history score
because his Criminal History Category increased from III to IV.
While it is true that, had Butler been placed in Category III
instead of IV, his corresponding Guidelines range would have
decreased from 24–30 to 18–24 months, Butler has not
shown—and the record does not compel us to find—that the
district court would have imposed a lower sentence. See Olano,
507 U.S. at 734 (holding that the requirement that a plain error
“affects substantial rights” means that the error must have
affected the outcome of the district court proceedings).
The district court sentenced Butler to 24 months’ imprison-
ment, which corresponds to the low end of the Guidelines
range accepted by the district court at sentencing and the high
end of the Guidelines range proposed by Butler on appeal.
“We have held that ‘where two Guidelines ranges overlap …
the technical dispute over which range to apply may be left
unresolved … [a]s long as it is reasonable to conclude that the
same sentence would have been imposed regardless of the
outcome of the dispute over which range to apply.’” Emezeo v.
12 No. 14-2770
United States, 357 F.3d 703, 711 (7th Cir. 2004) (quoting United
States v. Howard, 179 F.3d 539, 545 (7th Cir. 1999)). Here, it
appears from the record that the district court would have
imposed the same sentence of 24 months, regardless of
whether it was at the top or bottom of the applicable Guide-
lines range. According to the transcript from the sentencing
hearing, the district court determined that 24 months was
an appropriate sentence by considering the offense conduct,
the history and characteristics of the defendant, and related
factors under § 3553(a), in addition to acknowledging that “the
guidelines got it right.” The district court also frequently
referenced Butler’s extensive criminal history, which, even
excluding the forgery offense, indicated to the court a disre-
spect for the law. From all of this, we conclude that the district
court engaged in a “thoughtful and meaningful review of the
facts … in determining an appropriate sentence,” United States
v. Hill, 645 F.3d 900, 912 (7th Cir. 2011), and have no reason to
believe that the court would have imposed a sentence lower
than 24 months if given the opportunity to do so. Accordingly,
even if the district court erred in its calculation of the Guide-
lines, such error does not affect Butler’s substantial rights.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.