NONPRECEDENTIAL DISPOSITION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 October 4, 2011
Decided November 14, 2011
Before
RICHARD D. CUDAHY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 10‐3512
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 09‐30041‐001
STEVEN JONES, Richard Mills,
Defendant‐Appellant. Judge.
O R D E R
Steven Jones pleaded guilty to possessing cocaine base with the intent to distribute,
see 21 U.S.C. § 841(a)(1), and was sentenced at the bottom of his guidelines range to 262
months’ imprisonment. On appeal he contends that the district court procedurally erred by
(1) not explicitly discussing the factors under 18 U.S.C. § 3553(a); (2) ignoring his arguments
in mitigation about his advancing age and cooperation with the government; and (3)
presuming that a within‐guidelines sentence was reasonable. We affirm the judgment, but
we emphasize that the court’s articulation of the factors under § 3553(a) was just enough to
meet the procedural requirements of sentencing.
No. 10‐3512 Page 2
Jones traveled with a companion—an undercover government informant—from
Quincy, Illinois to St. Louis, Missouri to purchase crack cocaine. Responding to the
informant’s tip, police officers stopped Jones in his vehicle after he crossed the bridge from
Missouri to Illinois, and canines alerted officers to the presence of drugs. The informant
then turned over 10.7 grams of cocaine base to the officers. Jones later admitted to
purchasing crack cocaine from his source in St. Louis. Following his indictment on one
count of drug possession with intent to distribute, Jones moved to suppress evidence from
the traffic stop and interview. The district court denied the motion, adopting the
recommendation of a magistrate judge who found, after an evidentiary hearing, that the
police officers had probable cause to stop Jones’s vehicle. The day before trial, Jones pleaded
guilty. He later filed two pro se motions to withdraw that plea; the court denied those
motions.
The district court adopted the probation officer’s calculated guidelines range of 262
to 327 months’ imprisonment (reflecting a base offense level of 32, a two‐level increase
based on Jones’s career‐offender status, see U.S.S.G. § 4B1.1(a), and a Category VI criminal
history). In doing so, the court noted that the guidelines range is advisory and
acknowledged that it could impose a sentence outside the range. The court denied any
reduction for acceptance of responsibility based on Jones’s waiting until the eve of trial to
plead guilty and later moving to withdraw that plea. Next the court heard the prosecutor’s
argument that Jones should receive a 262‐month sentence because he had cooperated only
partially with the government to help secure convictions against other people. Defense
counsel countered that Jones deserved a below‐guidelines sentence of 240 months based on
his partial cooperation with the government; this cooperation, counsel noted, assisted
authorities in gaining at least six other convictions, though counsel acknowledged that
Jones “grew frustrated with the cooperation process” because the government deemed
some of his information unhelpful and Jones “did start to backpedal on his cooperation.”
Counsel also argued that Jones’s advancing age—51 years—meant he would likely die in
prison if sentenced to 262 months.
The district court adopted the government’s recommendation and sentenced Jones to
262 months. In doing so, the court stated that a defendant’s cooperation “has to be 100
percent” to be considered a mitigating circumstance, and here defense counsel and the
prosecutor had both described Jones’s cooperation as less than 100 percent. After
announcing the sentence, the court twice asked defense counsel whether it had “missed”
anything; counsel replied no. The court then wished Jones “the best of luck,” remarking that
Jones “had quite a record” and “a lot of baggage” as described in the presentence report. In
the written statement of reasons, the court listed “the nature and circumstances of the
offense,” “the history and characteristics of the defendant,” and “protect[ion to] the public
from further crimes of the defendant” under § 3553(a) to explain the sentence. The court
No. 10‐3512 Page 3
also noted Jones’s criminal history and conviction for sexual abuse of a minor and wrote
that Jones’s “history and characteristics suggest that he will have great difficulty becoming a
productive member of society.”
On appeal Jones raises three procedural challenges to the adequacy of the district
court’s explanation at sentencing of the factors under § 3553(a), but the government asserts
that he raises these for the first time on appeal and that they should therefore be reviewed
for plain error instead of de novo. The government characterizes these procedural
challenges as forfeited because the court after pronouncing the sentence twice directly asked
defense counsel whether it had “missed” anything, and both times counsel said no.
We are not persuaded by the government’s position in this case. As the Third and
Fourth Circuits have recently explained, a party preserves procedural challenges to the
district court’s discussion of the § 3553(a) factors so long as the party at some point during
sentencing “draw[s] arguments from § 3553 for a sentence different than the one ultimately
imposed[.]” United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010); see also United States v.
Fumo, 655 F.3d 288, 309 (3d Cir. 2011); United States v. Powell, 650 F.3d 388, 395 (4th Cir.
2011); United States v. Boulware, 604 F.3d 832, 838 (4th Cir. 2010); United States v. Sevilla, 541
F.3d 226, 231 (3d Cir. 2008); United States v. Grier, 475 F.3d 556, 517 & n.11 (3d Cir. 2007) (en
banc). But see, e.g., United States v. Davila‐Gonzalez, 595 F.3d 42, 46–47 (1st Cir. 2010); United
States v. Villafuerte, 502 F.3d 204, 206–09 (2d Cir. 2007); United States v. Lopez‐Florez, 444 F.3d
1218, 1219–21 (10th Cir. 2006). “By drawing arguments from § 3553 for a sentence different
than the one ultimately imposed, an aggrieved party sufficiently alerts the district court of
its responsibility to render an individualized explanation addressing those arguments, and
thus preserves its claim.” Lynn, 592 F.3d at 578. Requiring a party to object to the court’s
§ 3553(a) analysis immediately after the sentencing pronouncement, as the government
urges, would result primarily in unhelpful “formulaic” objections, Lynn, 592 F.3d at 578
(quoting United States v. Castro‐Juarez, 425 F.3d 430, 433–34 (7th Cir. 2005)), and
unreasonably burden defendants, who would be expected to promptly assert procedural
challenges at the same time they were absorbing the impact of the sentencing
pronouncement. In this case, Jones adequately preserved his procedural challenges by
raising arguments during the sentencing hearing—but before the court pronounced the
sentence—about his cooperation and advancing age (characteristics under § 3553(a)(1)) and
requesting a sentence that was lower than the one he ultimately received. See Lynn, 592 F.3d
at 577–79; Sevilla, 541 F.3d at 231.
As for Jones’s procedural challenges, he first argues that the district court erred by
failing to mention explicitly any factors under § 3553(a) before pronouncing the sentence.
He also contends that the court should have discussed his criminal record—a factor under
§ 3553(a)—before sentencing him, rather than presenting it “as justification afterwards.”
No. 10‐3512 Page 4
But the district court was not required to mention explicitly any factors under
§ 3553(a); instead it need only “give an adequate statement of reasons, consistent with
§ 3553(a)” for believing that it was selecting an appropriate sentence. United States v. Baker,
655 F.3d 677, 683 (7th Cir. 2011) (internal quotation omitted) (emphasis added). Here the
court mentioned Jones’s partial cooperation with the government and his extensive criminal
record, and the court’s discussion was adequate (though we would have preferred a more
detailed discussion) because it imposed a within‐guidelines sentence. See United States v.
Harris, 567 F.3d 846, 854 (7th Cir. 2009). It is irrelevant that the court mentioned Jones’s
criminal record just after announcing the sentence; a court must state its reasons “at the time
of sentencing,” 18 U.S.C. § 3553(c), as opposed to during a later proceeding, United States v.
Miqbel, 444 F.3d 1173, 1179–80 (9th Cir. 2006), or solely in a subsequent written statement,
United States v. Molina, 356 F.3d 269, 277 (2d Cir. 2004). Here the court properly stated its
reasons at the time of sentencing because it expressly adopted the presentence report’s
findings and the record as a whole contained mention—though brief—of factors under
§ 3553(a), see United States v. Scott, 631 F.3d 401, 409 (7th Cir. 2011); cf. United States v. Salem,
597 F.3d 877, 887 (7th Cir. 2010). Moreover, the court elaborated upon the sentence in its
written statement of reasons, which we read “as an aid to the interpretation of [the judge’s]
oral statement,” United States v. Pape, 601 F.3d 743, 747 (7th Cir. 2010); that statement
included details of Jones’s criminal history to justify the sentence under § 3553(a).
Next Jones argues that the district court erred by not addressing his arguments in
mitigation that (1) his partial cooperation assisted the government in securing convictions
against several other people and (2) his advanced age—51 years—increased the likelihood
that he would die in prison if sentenced within the guidelines.
Neither argument has merit. A defendant’s claim that substantial assistance to the
government warrants leniency is “routine,” we have observed, and thus a sentencing court
may reject that claim with little or no explanation. See United States v. Gonzalez, 462 F.3d 754,
756 (7th Cir. 2010). And at any rate the district court here did not ignore Jones’s argument
about the scope of his cooperation. After Jones conceded that he “backpedal[ed]” on his
cooperation, the court stated that cooperation “has to be 100 percent,” noted that Jones’s
cooperation was not 100 percent, and accounted for Jones’s partial cooperation by
sentencing him to the bottom of the guidelines range. The court, in exercising its discretion,
was not required to go below the guidelines range to account for that partial cooperation.
See United States v. Arceo, 535 F.3d 679, 688 (7th Cir. 2008). As for Jones’s argument
concerning his advancing age, he never explained why his age justified a below‐guidelines
sentence (for example, by pointing to poor health), and thus the court was not required to
address it. See, e.g., United States v. Nurek, 578 F.3d 618, 626 (7th Cir. 2009); United States v.
Lee, 454 F.3d 836, 839 (8th Cir. 2006).
No. 10‐3512 Page 5
Jones also argues that the district court erred by presuming that a within‐guidelines
sentence was reasonable. Jones locates this presumption in the court’s comments at
sentencing: “What [the prosecutor] has done in the final analysis is say on behalf of the
government, you’ve got a bottom line of 262” and “[H]ere we are faced with a minimum of
262 months in the guidelines range.” He also proposes that this sentencing judge has
applied this same presumption in three other cases pending on appeal before us at the time
he filed his brief—United States v. Call, No. 11‐1543, United States v. Akins, No. 11‐1303, and
United States v. Pennington, No. 11‐1257.
A sentencing judge may not presume the reasonableness of a within‐guidelines
sentence, Gall v. United States, 552 U.S. 38, 50–51 (2007), but here the district court made no
such presumption. The court properly exercised its discretion at sentencing because it
explicitly stated that the guidelines are advisory, commented about the propriety of a 262‐
month sentence in the context of noting Jones’s less‐than‐100 percent cooperation with the
government, and adopted the prosecutor’s sentencing recommendation. And Jones’s
assessment of a pattern in the court’s sentencing errors is unpersuasive because we recently
affirmed the judgments in United States v. Call, No. 11‐1543, 2011 WL 3678141, at *3–4 (7th
Cir. Aug. 23, 2011) (nonprecedential) and United States v. Akins, No. 11‐1303, 2011 WL
3841087, at *3 (7th Cir. Aug. 31, 2011) (nonprecedential). (We have not yet ruled in United
States v. Pennington, No. 11‐1257.)
AFFIRMED.
