United States v. Gonzalez, Luis ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
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Nos. 05-2555, 05-2646
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LUIS GONZALEZ and SANDRA HERNANDEZ,
Defendants-Appellants.
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Appeals from the United States District Court
for the Northern District of Illinois, Western Division.
No. 04 CR 50019—Philip G. Reinhard, Judge.
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ARGUED AUGUST 9, 2006—DECIDED SEPTEMBER 11, 2006
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Before POSNER, COFFEY, and EASTERBROOK, Circuit Judges.
POSNER, Circuit Judge. Luis Gonzalez pleaded guilty to
conspiring to possess with intent to sell 100 or more kilo-
grams of marijuana. He conceded that because he had two
prior convictions for felony drug offenses (also involving
marijuana), he was eligible to be sentenced as a career
offender. His guidelines range was 262 to 327 months in
prison. The district judge sentenced him to 276 months.
He does not question the accuracy of the judge’s guide-
lines computation. But he challenges the sentence as be-
ing nevertheless unreasonably long because his previous
2 Nos. 05-2555, 05-2646
offenses were nonviolent and involved only marijuana
rather than a more dangerous drug, because he provided
substantial assistance to the government, because he will be
in his late sixties when he is released from prison, and
because he was (he claims) coerced into committing the
offense of conviction by his partners in a previous drug
enterprise, to whom he owed $500,000.
These are exceedingly poor reasons for questioning the
reasonableness of his sentence. In depreciating crimes that
involve marijuana and are not violent, Gonzalez is quarrel-
ing with Congress’s judgment that nonviolent offenses
involving marijuana are serious crimes. A judge cannot
properly exercise lenience because he disagrees with a
legislative judgment. United States v. Miller, 450 F.3d 270,
275 (7th Cir. 2006). This includes a legislative judgment
made by the Sentencing Commission as Congress’s dele-
gate. United States v. Wallace, No. 05-3675, 2006 WL 2338021,
at *6 (7th Cir. Aug. 14, 2006). True, the judge is not required
to give a guidelines sentence (unless that sentence is
prescribed by a statute), but he is not permitted to say, “I
believe the Commission selected the wrong sentencing
range for marijuana dealers and so I am not going to
sentence the defendant within that range.” Instead what he
can say is that he is exercising his discretion to impose a
sentence that is outside the guidelines range but consistent
(as it must be) with the sentencing criteria found in 18
U.S.C. § 3553(a). Although the judge is not required to
follow the guidelines, he is required to consider them; “the
district courts, while not bound to apply the Guidelines,
must consult those Guidelines and take them into account
when sentencing.” United States v. Booker, 543 U.S. 220, 264
(2005). He cannot refuse to consider them on the ground
that he would have drafted them differently from how
the Sentencing Commission drafted them.
Nos. 05-2555, 05-2646 3
Gonzalez committed the offense of conviction less than
two months after being released from prison upon comple-
tion of a 94-month sentence for a major drug offense—a
sentence that would have been twice as long had he not
rendered substantial assistance to the government—and it
is predictable that if he received a similar discount in this
case he would be back in the drug business as soon as he
completed his sentence. His defense of coercion is based on
that same prior offense—it was the disruption of the drug
dealings involved in that offense by his arrest that left him
with a debt to his partners in crime. He would like to lever
substantial assistance and what he calls “imperfect” coer-
cion into a steep sentencing discount (his lawyer told us that
a sentence of 100 to 125 months would be reasonable,
implying that anything higher than 125 months would be
unreasonable), a discount that would shorten his sentence
to the point at which his sojourn in prison would merely
interrupt rather than terminate his career as a drug dealer.
Imprisoning him until retirement age may be the minimum
sentence that will prevent him from resuming his criminal
career—or so at least the district judge could find without
being thought to have been unreasonably harsh.
All these points would hardly be worth repeating in an
opinion were it not for our concern lest criminal defendants
confuse a debatable sentence with an unreasonable one and
as a result waste their time and ours by filing frivolous
appeals. (On the meaning of “unreasonable” in this context,
see our recent, extended discussion in United States v.
Wallace, supra.) A sentence of 276 months is long, and since
it is not a statutory minimum and the sentencing criteria
in 18 U.S.C. § 3553(a) are vague, the judge would not
have been acting unreasonably had he given Gonzalez a
shorter sentence, though this would depend on how
much shorter and on the judge’s explanation for the sen-
4 Nos. 05-2555, 05-2646
tence. But because the criteria are vague, a sentence that is
within the guidelines range and thus coincides with the
judgment of the Sentencing Commission not only is pre-
sumptively reasonable, as the cases say, e.g., United States v.
Demaree, 2006 WL 2328665, at *3 (7th Cir. Aug. 11, 2006);
United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005),
but, as this formula implies, will very rarely be upset on
appeal.
By the same token, a sentencing judge who, as he is
required to do, deals conscientiously with the defendant’s
principal arguments for a sentence, below the guidelines
range, that is based on the statutory criteria, as in United
States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005);
United States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir.
2006); United States v. Cooper, 437 F.3d 324, 329 (3d Cir.
2006), will be reversed only in a very exceptional case.
United States v. Wallace, No. 05-3675, 2006 WL 2338021, at *5
(7th Cir. Aug. 14, 2006); United States v. Vaughn, 433 F.3d
917, 924 (7th Cir. 2006); United States v. Williams, 425 F.3d
478, 481 (7th Cir. 2005). The present case, rather than being
exceptional, is routine. The factors that the defendant points
to as mitigating his guilt are the normal incidents of a career
in the illegal drug trade, a career to which the defendant has
demonstrated a commitment unshaken by the experience of
protracted imprisonment. His sentence was reasonable.
The lawyer for Gonzalez’s accomplice and codefendant
Hernandez has quite rightly filed an Anders brief explaining
why his client has no nonfrivolous grounds of appeal. We
dismiss Hernandez’s appeal and discharge her lawyer; and
we affirm the judgment in Gonzalez’s case.
Nos. 05-2555, 05-2646 5
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-11-06