United States v. Gregory Terronez ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐3169
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
GREGORY M. TERRONEZ,
Defendant‐Appellant.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 18‐cr‐40005 — James E. Shadid, Judge.
____________________
ARGUED MAY 30, 2019 — DECIDED JUNE 7, 2019
____________________
Before FLAUM, MANION, and BARRETT, Circuit Judges.
FLAUM, Circuit Judge. Gregory Terronez pleaded guilty to
unlawful possession of a firearm by a felon. The district court
announced a within‐Guidelines sentence of 110 months’ im‐
prisonment. On appeal, Terronez argues the court committed
procedural error by not considering his request for a variance
from the Guidelines range given that the base offense level
overrepresented the seriousness of his offense. For the reasons
below, we affirm.
2 No. 18‐3169
I. Background
On November 29, 2017, while police were on vehicle patrol
in Rock Island, Illinois, they maneuvered behind a white
Chevrolet Impala and observed the car accelerate and come
to an abrupt stop. Then, police saw Terronez exit the car and
run through a residential neighborhood. After a foot chase,
Terronez surrendered to the police. He told the officers he ran
because he believed he had an outstanding arrest warrant.
The police recovered a firearm, and Terronez confessed to po‐
lice that he threw the gun while running. A one‐count indict‐
ment charged Terronez with unlawful possession of a firearm
as a felon in violation of 18 U.S.C. § 922(g)(1). On May 16,
2018, Terronez indicated his intent to plead guilty, and on
June 4, the district court accepted the plea.
The United States Probation Office filed a Presentence In‐
vestigation Report (“PSR”) that calculated Terronez’s Sen‐
tencing Guidelines range. Since Terronez had two Illinois
drug trafficking convictions, each of which subjected him to
over a year in prison, his violation of § 922(g) was “subse‐
quent to sustaining at least two felony convictions of … a con‐
trolled substance offense,” and as a result, his base offense
level was 24. U.S.S.G. § 2K2.1(a)(2); see id. § 4B1.2(b) (defining
“controlled substance offense” as a drug trafficking offense
“punishable by imprisonment for a term exceeding one
year”). The PSR also suggested a four‐level enhancement be‐
cause the firearm had an “obliterated serial number,” id.
§ 2K2.1(b)(4)(B), and a three‐level reduction because Terronez
accepted responsibility, id. § 3E1.1. As such, the total offense
level was 25.
No. 18‐3169 3
Terronez’s criminal history category was VI because he re‐
ceived criminal history points for the two prior drug traffick‐
ing convictions, as well as two drug possession convictions,
an aggravated assault conviction, and two driving on a sus‐
pended license convictions. Combining a total offense level of
25 and a criminal history category of VI, while accounting for
§ 922(g)’s ten‐year statutory maximum, the Guidelines rec‐
ommended a 110‐ to 120‐month term of imprisonment. Terro‐
nez did not object to the PSR’s Guidelines calculation, but he
filed a sentencing memorandum seeking a below‐Guidelines
sentence.
On September 26, 2018, the court held a sentencing hear‐
ing. The government asked for a within‐Guidelines sentence,
noting Terronez resumed selling drugs upon release from
prison in May 2017 and had a lengthy criminal history, a his‐
tory of substance abuse, and self‐reported anger issues. It also
highlighted the inherent danger posed by a drug dealer pos‐
sessing a firearm. Terronez requested an 84‐month sentence.
As relevant here, he argued that “all prior controlled sub‐
stance offenses are not equal even though they are treated
equally by the sentencing guidelines.” He emphasized he had
no “record of violence or a record of using firearms,” and his
prior drug offenses were “medium‐level” and “did not con‐
cern any use of a weapon or any violence.” Therefore, he as‐
serted “his history and characteristics show that … [he] is not
a threat with a weapon that perhaps a typical … person with
two prior controlled substances offenses would be.”
The court adopted the PSR Guidelines calculation and in‐
dicated it would base its sentence on the Guidelines recom‐
mendation, the parties’ sentencing memoranda, the parties’
arguments at the hearing, and the 18 U.S.C. § 3553(a) factors.
4 No. 18‐3169
The court then explained its concern that Terronez’s posses‐
sion of a firearm, given his prior drug convictions, was dan‐
gerous: “The mixture of drugs[,] … even the smaller amounts
as your Rock Island cases seem to be, [and] possessing …
guns is a danger to you, others in the drug trade, and … the
public ….” The court also acknowledged, but found unavail‐
ing, Terronez’s argument that he deserved a lower sentence
due to his lack of a violent past:
I recognize that you have a limited history of vi‐
olence … and I’m not even considering whether
you do or not, to tell you the truth. And I realize
that you said to me that you’re not a violent per‐
son, and I don’t have any reason to doubt that
except there is really only one reason to possess
that firearm in the trade of either small drug
dealing or large drug dealing. And that is at
some point you’re going to use it, whether you
believe you’re protecting yourself or whether
you are embroiled in some kind of dispute.
Terronez interrupted, stating “I would never use that fire‐
arm.” The court responded:
There is just no basis for possessing it if you
weren’t going to use it. You are prohibited from
using it for starters. And from my review of
your history, that’s the reasonable inference to
be drawn…. I appreciate the request of 84
months by [defense counsel], and I don’t con‐
sider that to be a request that is out of line …
and that may be justified in some gun cases but
all gun cases aren’t the same.
No. 18‐3169 5
Then, the court issued the sentence:
I think under the circumstances, when all 3553
characteristics are evaluated: the nature and cir‐
cumstances of the offense; the history and char‐
acteristics of you; the need for the sentence to
reflect the seriousness of the offense; promote
respect for the law; provide just punishment; af‐
ford adequate deterrence to criminal conduct,
which applies in your case; and to protect the
public from further crimes, which also apply in
your case; all of them apply to your case; as well
as providing you with educational and voca‐
tional training as recommended, I believe a sen‐
tence of 110 months to the Bureau of Prisons is
the appropriate sentence. So it will be a sentence
of 110 months.
At the conclusion of the hearing, the court asked defense
counsel if it “addressed any and all objections, factors, or oth‐
erwise arguments that you believe should have been made on
Mr. Terronez’s behalf.” Defense counsel said that it “didn’t
hear the Court address the arguments for a variance from the
guideline range that were in the sentencing memo,” including
“that the base‐offense level overstated the seriousness of the
offense because Mr. Terronez’s prior convictions were not vi‐
olent.” In response, the court stated, “Well, I believe that I did
address them but maybe not specifically. I did factor them in
with your arguments and appreciated your arguments and
said that in some circumstances maybe even a variance to 84
6 No. 18‐3169
months might be appropriate but not in this case.”1 This ap‐
peal followed.
II. Discussion
A sentencing court must address a defendant’s nonfrivo‐
lous mitigation arguments. Rita v. United States, 551 U.S. 338,
357 (2007); see United States v. Kappes, 782 F.3d 828, 864 (7th
Cir. 2015). The explanation need not be exhaustive. Kappes,
782 F.3d at 864. Indeed, the court may consider mitigation ar‐
guments “implicitly and imprecisely.” United States v. Davis,
764 F.3d 690, 694 (7th Cir. 2014) (quoting United States v.
Spiller, 732 F.3d 767, 769 (7th Cir. 2013)). In short, an explana‐
tion suffices so long as it makes clear to a reviewing court
“that the sentencing judge [gave] meaningful consideration to
the section 3553(a) factors and the parties’ arguments in de‐
termining how long the defendant’s sentence should be.”
Kappes, 782 F.3d at 864 (quoting United States v. Schmitz, 717
F.3d 536, 541 (7th Cir. 2013)).
Often, the defendant’s mitigation argument “takes the
form of a challenge to the Guidelines themselves.” United
States v. Rosales, 813 F.3d 634, 637 (7th Cir. 2016). Of course,
after United States v. Booker, 543 U.S. 220 (2005), the Guidelines
are advisory. Still, they “reflect a rough approximation of sen‐
tences that might achieve § 3553(a)’s objectives.” Kimbrough v.
United States, 552 U.S. 85, 109 (2007) (quoting Rita, 551 U.S. at
1 The district court also explained why it did not find persuasive Ter‐
ronez’s arguments that he should receive a below‐Guidelines sentence be‐
cause he did not know the serial number was obliterated and the Guide‐
lines double counted his prior felony convictions. Terronez does not ap‐
peal the court’s rejection of those arguments.
No. 18‐3169 7
350). Thus, a district court may “disagree either with a partic‐
ular provision of the Sentencing Guidelines or the sentencing
range that results from application of the Guidelines as a
whole and … impose a non‐Guidelines sentence that, in [its]
judgment, is more consistent with the statutory sentencing
factors set out in 18 U.S.C. § 3553(a).” Rosales, 813 F.3d at 637
(citations omitted); see also United States v. Corner, 598 F.3d 411,
415 (7th Cir. 2010) (en banc) (“[D]istrict judges are at liberty
to reject any Guideline on policy grounds—though they must
act reasonably when using that power.”). A defendant can
seek a downward variance from the Guidelines by arguing,
for example, that the Guidelines do not “reflect § 3553(a) con‐
siderations,” “reflect an unsound judgment,” or “do not …
treat certain defendant characteristics in the proper way.”
Rita, 551 U.S. at 351, 357. While the court “may pass over in
silence a blanket policy challenge” to the Guidelines, it must
address a nonfrivolous “as‐applied challenge.” Rosales, 813
F.3d at 637–38. We review a district court’s sentencing proce‐
dure, including whether the court adequately explained its
sentence and responded to mitigation arguments, de novo.
Kappes, 782 F.3d at 864.
There is no dispute that the PSR properly calculated Ter‐
ronez’s Guidelines range and more specifically, properly ap‐
plied § 2K2.1(a)(2) to determine Terronez’s base offense level
of 24. Terronez committed the instant firearm offense after
sustaining two prior “controlled substance offense” convic‐
tions; as noted above, he has two felony drug trafficking con‐
victions in Illinois, each of which subjected him to a term of
imprisonment greater than one year. Terronez sought a
downward variance, however, arguing that § 2K2.1(a)(2)’s in‐
creased base offense level resulted in a greater‐than‐necessary
sentencing range. He emphasized that his predicate felony
8 No. 18‐3169
controlled substance offenses involved only moderate
amounts of cocaine and did not include any violence, threats
of violence, or the presence of firearms. Additionally, he
stressed he had never been charged with using or possessing
a firearm. He therefore claimed he did not present a threat
with a weapon. In other words, Terronez maintained
§ 2K2.1(a)(2) and the resulting Guidelines range did not treat
his personal characteristics and history fairly, did not reflect
the § 3553(a) factors, and did not result in a sound judgment.
Terronez’s theory relied almost entirely on the court’s rea‐
soning in United States v. Fogle, 694 F. Supp. 2d 1014 (E.D. Wis.
2010). In that case, like here, the defendant violated § 922(g)
and was subject to an increased base offense level under
§ 2K2.1(a) due to a prior felony controlled substance offense
conviction. Id. at 1017. But because the defendant’s predicate
conviction was “a relatively minor offense involving no weap‐
ons or violence,” the court imposed a below‐Guidelines sen‐
tence. Id. The court explained that § 2K2.1(a) “appears to rely
on the theory that the base level should be increased propor‐
tionate to the perceived threat the felon poses with a gun,” but
questioned why a controlled substances offense conviction—
which “need not involve violence, weapons, or any sort of ag‐
gressive behavior”—should “denote a greater threat with a
gun.” Id. Therefore, the court held that where “the offense
level is increased … based on minor, prior drug cases,
§ 2K2.1(a) may overstate the risk that the defendant‐felon
poses with a gun.” Id. at 1018.
On appeal, Terronez insists the court failed to adequately
respond to his concern. He claims that while the “district
court considered the general threat associated with pos‐
sessing a firearm and distributing drugs, … the court did not
No. 18‐3169 9
consider whether the Guidelines’ sentencing range resulted
in a sentence greater than necessary given Terronez’s history
and characteristics.” Rather, according to Terronez, the court
only considered “factors that are present for any defendant
who is convicted of possessing a firearm subsequent to sus‐
taining a conviction for a controlled substance offense.” We
disagree.
The court adequately performed the required “individu‐
alized” inquiry, see United States v. Miranda, 505 F.3d 785, 796
(7th Cir. 2007), and appropriately addressed Terronez’s miti‐
gation argument. In explaining the sentence, the court dis‐
cussed Terronez’s criminal history; specifically, it emphasized
Terronez was recently released from prison after a fourth
drug‐related conviction. The court expressly acknowledged
Terronez’s contention that he should be entitled to a below‐
Guidelines sentence based on his “limited history of violence”
and the fact he “may not be a major drug dealer,” and it
agreed that in some felon‐in‐possession cases, a downward
variance might be justified. Yet the court determined, by ap‐
plying the § 3553(a) factors to Terronez’s unique circum‐
stances, that this is not one of those cases.
While the court could have engaged with Terronez’s pre‐
cise argument in more detail—the court did not reference
Fogle or consider the Sentencing Commission’s motivation for
creating § 2K2.1(a)—a district court need not “delve into the
history of a guideline so that [it] can satisfy [it]self that the
process that produced it was adequate to produce a good
guideline.” United States v. Moreno‐Padilla, 602 F.3d 802, 814
(7th Cir. 2010) (alterations in original) (quoting United States
v. Aguilar‐Huerta, 576 F.3d 365, 368 (7th Cir. 2009)). And by
stating that it was “not even considering whether” Terronez
10 No. 18‐3169
had a “limited history of violence,” the court implicitly re‐
jected the notion that § 2K2.1(a)(2)’s higher base offense level
was improper based on the fact that Terronez did not have a
violent history, instead endorsing the reasoning behind the
Guideline. In other words, the district court did not believe
§ 2K2.1(a) reflects an “unsound judgment,” Rita, 551 U.S. at
357, even when applied to individuals without a violent past.
Rather, the court concluded that the Sentencing Commission
made a prudent policy decision. As the court explained, the
combination of drugs and gun possession is a danger to the
defendant, people in the drug trade, and “most important,”
the public because “there is really only one reason to possess
[a] firearm in the trade of either small drug dealing or large
drug dealing[:] … [T]o use it.”
In sum, especially given that the court imposed a within‐
Guidelines sentence, its explanation as to why it did not be‐
lieve the sentence overstated the seriousness of Terronez’s
felon‐in‐possession conviction is sufficient. See Kappes, 782
F.3d at 864 (“[L]ess explanation [in response to a defendant’s
argument in mitigation] is typically needed when a court sen‐
tences within an advisory guidelines range.” (quoting United
States v. Curby, 595 F.3d 794, 797 (7th Cir. 2010) (per curiam))).
We conclude the court adequately addressed Terronez’s miti‐
gation argument and affirm the 110‐month sentence.
III. Conclusion
For the foregoing reasons, we AFFIRM.