United States v. Stokes, Poncevenus , 208 F. App'x 492 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 14, 2006
Decided December 18, 2006
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
No. 05-2598
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois.
v. No. 04-40056-001-JLF
PONCEVENUS L. STOKES, James L. Foreman,
Defendant-Appellant. Judge.
ORDER
Poncevenus Stokes entered a plea of guilty to being in possession of a firearm
after having been convicted of a felony, see 18 U.S.C. §§ 922(g)(1), 924(a)(2), and to
conspiring to distribute marijuana, see 21 U.S.C. §§ 841(a)(1), (b)(1)(D), 846. At
sentencing, the district court determined that Stokes was subject to an advisory
guidelines range of 70 to 87 months’ imprisonment, and sentenced him to 70
months. Stokes challenges the reasonableness of the sentence. We affirm.
I. Background
Police officers obtained and executed a search warrant for Stokes’s home
after a confidential informant reported that Stokes was dealing drugs; during the
search the officers found a handgun and 3.63 kilograms of marijuana. Stokes was
subsequently charged with possession of a firearm after a felony conviction, see 18
U.S.C. §§ 922(g)(1), 924(a)(2), and conspiring to distribute marijuana, see 21 U.S.C.
No. 05-2598 Page 2
§§ 841(a)(1), (b)(1)(D), 846; he later pleaded guilty to both charges without the
benefit of a plea agreement. The probation officer prepared a presentence
investigation report (“PSR”), and calculated that Stokes was subject to a guidelines
range of 24 to 30 months’ imprisonment. At sentencing the district court initially
adopted the probation officer’s calculation, but after being informed by the
government that the probation officer applied an incorrect base offense level,
withdrew the recommended calculation. Stating that it had “an obligation . . . to
straighten the record out,” the court ordered the probation officer to prepare a
corrected PSR, and continued the hearing in order that the parties might have an
opportunity to review the renewed PSR, and, if necessary, file objections.
The probation officer subsequently submitted a corrected PSR. In it he
applied a base offense level of 20 because Stokes possessed a firearm after having
previously having been convicted of a felony, see U.S.S.G. § 2K2.1(a)(4)(A), added a
four-level upward adjustment, reasoning that Stokes possessed the handgun in
connection with his drug offense, see id. § 2K2.1(b)(5), and applied a three-level
reduction for acceptance of responsibility, see id. § 3E1.1(a)-(b). This resulted in a
total offense level of 21, which combined with Stokes’s Criminal History Category of
V to yield an advisory guidelines range of 70 to 87 months.
At the continued hearing, the court heard arguments from both the
government and defense counsel regarding the appropriate sentence. The
government argued that a sentence within the guidelines range was appropriate,
pointing out that Stokes: (1) had five prior state drug convictions; (2) was on
probation for a previous state drug conviction at the time of his arrest;
(3) attempted to flee when the police searched his home; and (4) stored his drugs
and a handgun in his five-year-old child’s bedroom. Defense counsel asked the
court to sentence Stokes below the guidelines range, arguing that the incorrect
guidelines calculation was brought to the court’s attention at the last minute and
without proper notice. Defense counsel also stated that Stokes would be able to
obtain treatment for his drug dependency more easily on supervised release than in
prison. The court noted its authority to impose a sentence below the range, stated
that it “gave consideration” to the facts as applied to the sentencing guidelines and
18 U.S.C. § 3553, and imposed a sentence of 70 months’ imprisonment at the lower
end of the proper guidelines range.
II. Analysis
On appeal, Stokes argues that the sentence imposed of 70 months is
unreasonable. He asserts that the district court’s initial adoption of the
incorrect guidelines range at the first sentencing hearing, and its repeated
statements that it relied “heavily” on the guidelines range, demonstrated
that it “relied exclusively on the Sentencing Guidelines when imposing the
No. 05-2598 Page 3
sentence.” Stokes further argues that the district court considered only his
criminal history when imposing the sentence, and thus “failed to give
appropriate weight to all of the 18 U.S.C. § 3553(a) factors.”
Stokes’s arguments fail. Stokes concedes that the 70- to 87-month
guidelines range was properly calculated, and because his sentence falls
within that range, we presume that it is reasonable under United States v.
Mykytiuk. 415 F.3d 606, 607-08 (7th Cir. 2005). Stokes cannot rebut this
presumption by merely showing that the district court “relied exclusively” on
the guidelines; rather, he must point to § 3553(a) factors that support a lower
sentence. See id. This he has failed to do. Rather, he argues only that the
rebuttable presumption of reasonableness announced in Mykytiuk conflicts
with United States v. Booker, 543 U.S. 220 (2005), because “it has the effect
of making the Guidelines mandatory, unless the defendant can show that his
sentence should be outside of the Guidelines.” We have repeatedly rejected
this argument, holding that a rebuttable presumption of reasonableness is
consistent with Booker. See, e.g., United States v. Hankton, 463 F.3d 626,
630 n.5 (7th Cir. 2006) (rejecting argument that applying rebuttable
presumption renders guidelines mandatory); United States v. Williams, 436
F.3d 767, 769 (7th Cir. 2006) (recognizing that Mykytiuk avoids conflict with
Booker).
We are mindful that the Supreme Court of the United States recently
granted certiorari on the question of whether Booker allows courts of appeals
to presume that a sentence is reasonable when it falls within a properly
calculated guidelines range. See United States v. Rita, 177 F. App’x 357 (4th
Cir. 2006), cert. granted, 2006 WL 2307774 (U.S. Nov. 03, 2006) (No.
06-5754). Be that as it may, Rita would not affect the outcome of this case.
Even if the Court were to hold that a rebuttable presumption of
reasonableness conflicts with Booker, we would then merely return to a pre-
Mykytiuk inquiry about whether the sentence is reasonable pursuant to the
§ 3553(a) factors, see Booker, 543 U.S. at 261-62, 264; United States v. Dean,
414 F.3d 725, 728-31 (7th Cir. 2005), and Stokes has failed to demonstrate
that his sentence is unreasonable in light of § 3553(a). Contrary to Stokes’s
assertion, the court considered the § 3553(a) factors in addition to his
criminal history. See 18 U.S.C. § 3553(a)(1). For instance, the district court
considered Stokes’s history and mitigating characteristics, see id., such as his
acceptance of responsibility for his crimes, his sincere show of remorse for his
actions, and his stated willingness to correct his mistakes; in fact, the court’s
comments reflected that it was very receptive to Stokes’s apology and
willingness to reform himself. The court also considered a variety of
sentences available, see id. § 3553(a)(3), and also further allowed defense
counsel to explain why he believed that Stokes would benefit more from a
No. 05-2598 Page 4
term of supervised release rather than imprisonment. The court did not
agree, and determined that imprisonment was the best option because it
would provide Stokes the opportunity to receive both treatment for his drug
dependency as well as additional educational opportunities. See id.
§ 3553(a)(4). The court was not required to address all of the factors in a
“checklist fashion,” see Dean, 414 F.3d at 729; United States v. George, 403
F.3d 470, 472-73 (7th Cir. 2005), and it did not ignore any of defense
counsel’s arguments for a lower sentence, see United States v. Cunningham,
429 F.3d 673, 675 (7th Cir. 2005). We reiterate that a sentence of 70 months
that falls within the proper guidelines range is reasonable.
III. Conclusion
We AFFIRM Stokes’s 70-month sentence.