United States v. Springen, Randall E. , 165 F. App'x 483 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
February 3, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
UNITED STATES OF AMERICA, ] Appeal from the United
Plaintiff-Appellee, ] States District Court for
] the Western District of
No. 04-2062 v. ] Wisconsin.
]
RANDALL E SPRINGEN, ] No. 03 CR 135
Defendant-Appellant. ]
] Barbara B. Crabb,
] Chief Judge.
ORDER
Defendant-appellant Randall Springen pled guilty to distributing cocaine.
Based on its determination that Springen was responsible for the distribution of
seven kilograms of cocaine, the district court calculated a sentencing range of 151 to
188 months and sentenced Springen to 160 months’ imprisonment.
In response to the parties’ agreed motion, we ordered a limited remand under
the terms set forth in United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), for a
determination whether the district court would have imposed the same sentence
had it understood that the guidelines were advisory. After considering
correspondence from both parties, the sentencing transcript, and the presentence
report, the district court indicated that it would have imposed the same sentence
under an advisory guidelines system. We invited the parties to file arguments
concerning the reasonableness of the sentences, and both parties have responded.
No. 04-2062 Page 2
Springen argues both in his opening brief on appeal and in response to the
district court’s order on remand that the district court’s calculation of the drug
quantity amount using a preponderance of the evidence standard was plain error.
In particular, he argues that the plain error exists because the quantity evidence
was contested, the proof was not overwhelming, and that this type of error affects
the fairness and integrity of the judicial proceedings. Springen contends that he
should be sentenced based only on the quantity of drugs to which he pled guilty.
The calculation of drug quantity is a factual finding that we review for clear
error, the same standard of review as before the Supreme Court’s decision in United
States v. Booker, 543 U.S. 220 (2005). United States v. Sutton, 406 F.3d 472, 474
(7th Cir. 2005); United States v. Parra, 402 F.3d 752, 762 (7th Cir. 2005). Under
this standard sentencing judges can use a wide range of information in determining
drug quantity, as long as the information is reliable. United States v. Westmoreland,
240 F.3d 618, 630 (7th Cir. 2001). At sentencing, the district court explained that it
calculated Springen was responsible for distributing seven kilograms of cocaine
based on witness testimony that Springen distributed a quarter kilo a week for
seven months. The district court then properly determined that Springen’s
resulting sentencing range was 151-188 months.
Springen’s sentence therefore is within the properly calculated range and
entitled to a rebuttable presumption of reasonableness. United States v. Mykytiuk,
415 F.3d 606, 608 (7th Cir. 2005). In Paladino, we explained that where the district
court concludes that it would have imposed the same sentence under a discretionary
system and provides an appropriate explanation, this court “will affirm the original
sentence against a plain-error challenge provided that the sentence is reasonable,
the standard of appellate review prescribed by Booker.” Paladino, 401 F.3d at 484.
Here, the district court applied the factors of 18 U.S.C. § 3553(a) on remand
and explained that “[t]he amount of drugs for which I found him responsible was a
very conservative estimate of his dealing over the years.” The judge cited to a
number of Springen’s activities which indicated that he was not motivated to
refrain from criminal activity: Springen was “a long-time large scale drug dealer;”
he continued to deal drugs even after one of his customers died of an overdose; he
approached an undercover police officer and offered to sell her Oxycontin while he
was on supervised release; and he threatened the wife of the deceased drug dealer.
Accordingly, the district court concluded that a lengthy sentence of 160 months was
necessary to reflect the seriousness of the offense, to protect the public from further
criminal activity by Springen, and to provide him an opportunity for drug
treatment.
No. 04-2062 Page 3
Because the district court would have imposed the same sentence post-
Booker and his sentence is reasonable, Springen has failed to establish plain error.
We therefore AFFIRM the judgment of the district court.