Calvin Bruce was charged by
indictment with one count of possession with intent to
distribute fifty grams or more of cocaine base (crack
cocaine) in violation of 21 U.S.C. § 841(a)(1). He entered a
plea of not guilty, but was convicted after a jury trial. The
district court sentenced him to 360 months’ imprisonment
followed by 10 years of supervised release. Mr. Bruce
appeals both his conviction and his sentence. For the
reasons set forth in this opinion, we affirm Mr. Bruce’s
conviction and remand this case for resentencing in light of
the Supreme Court’s decision in Kimbrough v. United States,
___ U.S. ____, 128 S. Ct. 558 (2007).
I
BACKGROUND
A. Facts
On the afternoon of March 28, 2007, Calvin Bruce was
a passenger in a car that was stopped by officers of the
Dane County (Wisconsin) Narcotics and Gang Task Force.
During the stop, the police discovered an outstanding
warrant for Mr. Bruce’s arrest and took him into custody.
Mr. Bruce used his cell phone to call his girlfriend, Endia
Matthews, who drove to the scene of the traffic stop. After
Matthews arrived, the police learned that she was
on probation and had driven to the scene on a revoked
driver’s license. The police did not arrest her, but asked for
consent to search her house. Matthews consented. The
police obtained the keys to the house from Mr. Bruce, who
was then taken to a police station for questioning.
Madison Police Detective Dorothy Rietzler, Officer
Denise Markham and Officer Jason Baumgart went to
Matthews’ house to conduct the search and to interview
Matthews. At the house, they found $2,580 in cash in a
jacket belonging to Mr. Bruce. They also found a bag
containing crack cocaine and pepper in the engine compartment
of a van parked in the garage. Other drug
paraphernalia were found throughout the house.
Matthews denied any knowledge about the drugs or the
money.
After completing the search, the police officers went to
the station to interview Mr. Bruce. Detective Rietzler led
the interview, portions of which also were attended by
Officers Markham and Baumgart. Before the interview
began, Detective Rietzler turned on an audio recorder. Mr.
Bruce initially denied any knowledge about the drugs and
the money. Eventually, however, he admitted that the
money belonged to him and also admitted that there were
“about two ounces” of crack in the van. R.75 at 26. Detective
Rietzler offered Mr. Bruce “a chance to help [him]self”
by working with police to incriminate “the big fish”—that
is, other drug dealers who sold larger amounts of drugs.
R.75 at 20, 21. Mr. Bruce agreed to assist the police and
began by telling them the name and location of one of the
dealers from whom he bought drugs. Detective Rietzler
then turned off the audio recorder but continued the
interview for twenty more minutes.
Mr. Bruce was released from custody after the interview.
He ultimately failed to make good on his promise of
cooperation, however, and, in April 2007, he was indicted
in the United States District Court for the Western District
of Wisconsin on one count of possession with intent to
distribute 50 grams or more of a mixture or substance
containing cocaine base (crack cocaine) in violation of 21
U.S.C. § 841(a)(1).
B. Trial
Mr. Bruce’s jury trial was held in August 2007. At a pretrial
hearing, Mr. Bruce alleged that Detective Rietzler had
violated Wisconsin law by continuing to interrogate him
after turning off the audio recorder. Wisconsin Statute
§ 968.073 provides, in relevant part: “It is the policy of this
state to make an audio or audio and visual recording of a
custodial interrogation of a person suspected of committing
a felony unless . . . good cause is shown.” Wis. Stat.
§ 968.073(2). Mr. Bruce re
quested a jury instruction stating
that the law requires recording of interrogations by police
and instructing the jury that “unrecorded oral statements
made by a defendant out of court to a law enforcement
officer should be viewed with caution.” R.60 at 2. The
district court declined to give the proposed instruction
because it agreed with the prosecution that any violation of
state law by the police was irrelevant to Mr. Bruce’s guilt
or innocence under federal law.
At trial, the Government presented the recovered money,
the crack cocaine found in the van, the drug paraphernalia
found in the house and garage, and mail addressed to Mr.
Bruce at Matthews’ address. Detective Rietzler, Officer
Markham and Officer Baumgart testified about the recorded
part of the interview, portions of which were
played for the jury. Detective Rietzler and Officer
Markham testified that, after the recorder was turned off,
Mr. Bruce continued to be relaxed and cooperative. They
also testified that Mr. Bruce dated and initialed a photo of
another dealer from whom he had purchased crack in the
past. This photo was admitted as evidence.
Mr. Bruce’s counsel was permitted to cross-examine the
officers about the content of the interview and the circumstances
surrounding it, including the fact that Detective
Rietzler had stopped the recording. His counsel was not,
however, allowed to mention the Wisconsin statute
regarding the recording of custodial interrogations.
At the end of the trial, the court gave a model jury
instruction instead of Mr. Bruce’s proposed instruction on
the recording of interrogations. The jury convicted Mr.
Bruce on the sole count of the indictment.
C. Sentencing
Mr. Bruce was sentenced on October 31, 2007. The court
determined that Mr. Bruce’s past criminal record qualified
him as a career offender under Section 4B1.1 of the United
States Sentencing Guidelines. Accordingly, the court
calculated his base offense level under both the drug
quantity table Guideline, § 2D1.1(c), and the career offender
Guideline, § 4B1.1(b). The court found that Mr.
Bruce’s offense, including relevant conduct, involved 3.28
kilograms of crack cocaine, resulting in a base offense level
of 38 under Section 2D1.1(c). Mr. Bruce’s base offense level
under Section 4B1.1(b) was 37 because the maximum
statutory sentence for his offense was life in prison.
Because the drug quantity table’s offense level of 38 was
the higher of the two, the court used this latter offense level
to determine Mr. Bruce’s sentencing range under the
Guidelines. The court also determined that Mr. Bruce’s
prior convictions placed him in Criminal History Category
VI. The Guidelines sentencing range for level 38 in Category
VI is 360 months to life.
Mr. Bruce’s counsel pointed out to the court that
amended Guidelines were expected to take effect the next
day (November 1, 2007) that would reduce the offense level
for someone in Mr. Bruce’s position from 38 to 36. Counsel
acknowledged, however, that this reduction would have no
effect on Mr. Bruce’s sentencing range because he then
would be sentenced at the career offender offense level of
37, which also prescribes a range of 360 months to life for
offenders in Criminal History Category VI. The court
sentenced Mr. Bruce to 360 months’ imprisonment, to be
followed by 10 years of supervised release.
The next day, the 2007 Sentencing Guidelines took effect.
The new Guidelines reduced the Section 2D1.1 offense
level by two levels for all crack offenses. The United States
Sentencing Commission subsequently decided that this
reduction should be retroactive.
Mr. Bruce timely appealed his conviction and sentence.
II
DISCUSSION
Mr. Bruce submits that the district court’s exclusion of
any mention of the Wisconsin recording statute violated
his right to a fair trial. He also contends that the Supreme
Court’s decision in Kimbrough v. United States, ___ U.S.
____, 128 S. Ct. 558 (2007), entitles him to a remand for
resentencing. We consider these arguments in turn.
1 The requested instruction read as follows:
The law requires law enforcement officers, when questioning
a person who may be charged with a crime, to record all
oral statements made by that person. The failure of a law
enforcement officer to follow this law results in less than a
full and accurate record of the actual statement made by the
defendant, and denies a defendant the ability to present
recorded evidence that may be favorable to his or her case.
You have heard evidence that the defendant made a statement
to law enforcement officers after they stopped the
recording device. You are the exclusive judge as to whether
the defendant made the statement, and as to what was
actually said. If you find that the defendant did not make
such a statement after the recording device was stopped,
you must disregard the evidence of the statement and not
consider it for any purpose.
If you find that the defendant did make a statement after the
recording device was stopped, you must view the statement
as reported with caution, because unrecorded oral statements
made by a defendant out of court to a law enforcement
officer should be viewed with caution.
R.60 at 2.
A. Jury Instruction
Mr. Bruce’s first basis for appeal is that he was deprived
of the right to a fair trial by the district court’s refusal to
give his proposed jury instruction, which stated that the
police violated Wisconsin law by failing to record the
entirety of his interrogation.1 The district court instead
gave a model jury instruction that directed the jurors to
consider all of the evidence when weighing Mr. Bruce’s
2 The court gave the following instruction:
You have received evidence of statements made by the
defendant to Detective Dorothy Rietzler and Denise
Markham. You must decide what weight, if any, you believe
the statements deserve. In making this decision you should
consider all matters in evidence having to do with the
statements and the circumstances under which the statements
have been made.
R.89 at 156 (quoting Pattern Criminal Federal Jury Instructions
for the Seventh Circuit § 3.02).
statements to the police.2 Mr. Bruce submits that the court’s
refusal to give his instruction hindered his ability to
present his theory of defense, which was lack of proof. We
review de novo a district court’s decision not to give a
requested jury instruction. United States v. Prude, 489 F.3d
873, 882 (7th Cir. 2007).
Mr. Bruce contends that he was entitled to have his
proposed instruction read to the jury because it satisfied
the four requirements that we have set forth for instructions
on a defendant’s theory of defense. We have said:
A defendant is entitled to a jury instruction as to his or
her particular theory of defense provided: (1) the
instruction represents an accurate statement of the law;
(2) the instruction reflects a theory that is supported by
the evidence; (3) the instruction reflects a theory which
is not already part of the charge; and (4) the failure to
include the instruction would deny the appellant a fair
trial.
United States v. Eberhart, 467 F.3d 659, 666 (7th Cir. 2006)
(quoting United States v. Buchmeier, 255 F.3d 415, 426 (7th
Cir. 2001)). Mr. Bruce submits that his proposed instruction
satisfied each of these requirements and that therefore
it was error for the court to refuse to give it.
Mr. Bruce’s theory of defense was that the Government
could not prove its case beyond a reasonable doubt. We
agree that he was entitled to have the jury instructed on
this theory, and in fact the jury was so instructed. Specifically,
the court instructed the jury that Mr. Bruce was
entitled to a presumption of innocence that “is not overcome
unless from all the evidence in the case you are
convinced beyond a reasonable doubt that the defendant
is guilty as charged.” R.89 at 159. Regarding the reliability
of Mr. Bruce’s unrecorded statements—the subject of Mr.
Bruce’s proposed instruction—the jury was instructed that
it must decide what weight, if any, to give them. The jury
clearly was instructed that the Government had the
burden of proof and that it must acquit Mr. Bruce if the
Government failed to present enough proof to meet its
burden.
Mr. Bruce was not, however, entitled to an instruction of
his own choosing. “We defer to the substantial discretion
of the district court for the specific wording of the instructions,
and in rejecting a proposed instruction, so long as the
essential points are covered by the instructions given.”
United States v. Scott, 19 F.3d 1238, 1245 (7th Cir. 1994)
(internal quotations omitted). Mr. Bruce argues, in essence,
that the Wisconsin state law concerning the recording of
interrogations was an “essential point” that was not
covered by the instruction the court gave. We disagree.
Assuming that Detective Rietzler violated state law by
turning off the recorder, that violation was irrelevant in
this federal case. Federal law, not state law, governs the
admissibility of evidence in federal criminal trials, see, e.g.,
United States v. Wilderness, 160 F.3d 1173, 1175 (7th Cir.
1998), and there is no federal requirement that criminal
interrogations be recorded. Mr. Bruce nevertheless submits
that the purported violation was relevant here because it
casts doubt on the reliability of his unrecorded statements.
However, any relevance the absence of a recording might
have stems from the fact that Detective Rietzler chose to
stop recording the interview—of which the jury was made
aware—not from the presence or absence of a state law
governing recordings.
Mr. Bruce points to our decision in United States v.
Wilderness, 160 F.3d 1173 (7th Cir. 1998), in which we wrote
that “[a]lthough federal courts do not enforce state rules
for evidence gathering, a state law may identify factors that
affect a confession’s voluntariness and reliability and
therefore matter under federal law.” Id. at 1176. However,
Wilderness does not bear on the circumstances before us
today. The issue in that case was the admissibility of the
defendant’s confession at his federal carjacking trial. The
defendant was under the age of eighteen when he confessed.
Under Indiana state law, his confession would have
been inadmissible because it was made outside the presence
of a parent or an attorney. Federal law imposes no
such limitation, however, and therefore we affirmed the
admission of the confession in Wilderness’ federal criminal
trial. As Mr. Bruce points out, we did note that state
evidence laws may have some relevance in the context of
confessions, and we explained how the state law might be
relevant in Wilderness’ case: “It is easier to overbear the
will of a juvenile than of a parent or attorney, so in marginal
cases—when it appears the officer or agent has
attempted to take advantage of the suspect’s youth or
mental shortcomings—lack of parental or legal advice
could tip the balance against admission.” Id. In other
words, state law might indicate factors to which a federal
judge should pay respectful attention when deciding
whether a confession is admissible. But Wilderness does not
say, or even imply, that federal juries must be allowed
to consider the existence of a state law in determining
how much weight to give to a confession that has been
admitted.
B. Cross-Examination
Mr. Bruce also submits that the district court erred in
preventing him from mentioning the state law during his
cross-examination of Detective Rietzler. We review a trial
court’s limitation of cross-examination for abuse of
discretion. United States v. Neely, 980 F.2d 1074, 1080 (7th
Cir. 1992). As we have explained, the state law was
irrelevant in this federal criminal case. Defendants are not
entitled to cross-examine witnesses on irrelevant matters.
United States v. Jackson, 540 F.3d 578, 591 (7th Cir. 2008)
(“A district judge has wide discretion to impose reasonable
limits on cross-examination, and may do so based on
concerns about, inter alia, prejudice, confusion of the
issues, or questioning that is only marginally relevant.”
(citation omitted)). Notably, Mr. Bruce was free to—and
did—fully and freely cross-examine Detective Rietzler
12 No. 07-3675
We also note that it is far 3 from clear whether Detective
Rietzler actually violated the law in the first place. The language
of the statute describes recording as a “policy” rather than a
mandate. Wis. Stat. § 968.073(2). Arguably the Wisconsin
legislature knows how to require recording of interrogations
when it wants to, and it did not do so here. See, e.g., Wis. Stat.
§ 938.195(2)(a) (“A law enforcement agency shall make an audio
or audio and visual recording of any custodial interrogation of
a juvenile that is conducted at a place of detention . . . .”
(emphasis added)). Wisconsin’s own courts appear to be unclear
on this question. Compare State v. Townsend, 746 N.W.2d 493, 494
(Wis. Ct. App. 2008) (“Wisconsin law . . . presently encourages
electronic recording of custodial interviews.”) with State v.
Stefan, 756 N.W.2d 809 (Wis. Ct. App. 2008) ([T]he legislature
enacted legislation mandating the recording of custodial
interrogations.”). But even if the statute does impose a general
recording requirement, the statute also includes six specific
circumstances to which the policy does not apply, see Wis. Stat.
§§ 972.115(2)(a)(1)-(6), as well as a general exception for “good
cause.” Mr. Bruce’s position would require the judge either to
hold a mini-trial on the alleged state law violation, or to allow
the parties to submit sufficient evidence to allow the jury to
weigh whether there was such a violation. We do not believe
that the court was obligated to go so far afield from the central
issues in the case. Accordingly, we hold that the district court’s
rejection of Mr. Bruce’s proposed instruction was proper.
about her decision to turn off the recorder, and to argue to
the jury that this decision rendered Mr. Bruce’s confession
unreliable. The district court did not abuse its discretion by
preventing him from also mentioning the state law.3
4 18 U.S.C. § 3553(a) directs the courts to impose sentences
“sufficient, but no longer than necessary”:
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant;
and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner.
Id.
C. Sentencing
On December 10, 2007—roughly a month after Mr.
Bruce’s sentencing—the Supreme Court of the United
States announced its decision in Kimbrough v. United States,
___ U.S. ____, 128 S. Ct. 558 (2007). In Kimbrough, the Court
held that a district court may sentence crack offenders to a
term below the Guidelines range if it believes that the
disparity between the Guidelines sentence for a given
amount of crack and the sentence for an equivalent amount
of powder cocaine (often referred to as the “100:1 ratio” or
the “100:1 disparity”) leads to sentences for crack offenders
that fail to “accomplish the purposes of sentencing set forth
in 18 U.S.C. § 3553(a)4.” Id. at 565. Prior to Kimbrough, we
had held that district courts could not depart from the
Guidelines based on a disagreement with the 100:1 disparity.
See United States v. Miller, 450 F.3d 270, 273-76 (7th Cir.
2006), abrogated by Kimbrough, 128 S. Ct. at 574-75. Thus, the
district court could not have known when it sentenced Mr.
Bruce that it could impose a below-guideline sentence if it
disagreed with the application of the 100:1 disparity in his
case. Mr. Bruce submits that his case should be remanded
for resentencing in light of Kimbrough.
The central question in our review of Mr. Bruce’s sentence
is whether he adequately raised the crack-powder
disparity issue with the trial court at sentencing. If he did,
then our review is for abuse of discretion, and we have
held in such cases that the defendant is entitled to a full
remand for resentencing. See United States v. Clanton, 538
F.3d 652, 659 (7th Cir. 2008). If Mr. Bruce did not adequately
raise the issue, however, then our review is for
plain error. Under plain error review, Mr. Bruce would be
entitled only to a limited remand for purposes of determining
whether the district court would be inclined to
resentence him in light of Kimbrough. See United States v.
Taylor, 520 F.3d 746 (7th Cir. 2008).
Upon examination of the record, we conclude that Mr.
Bruce raised the crack issue sufficiently to merit a full
remand and resentencing. It is true that Mr. Bruce did not
cite specifically the 100:1 disparity as a basis for the trial
court to give him a shorter sentence. To do so, however,
would have been fruitless under the law of the Seventh
Circuit at the time. Recognizing this, we have held in a
similar case that explicit mention of the disparity is not a
prerequisite to resentencing. See United States v. Padilla, 520
F.3d 766, 774 (7th Cir. 2008). The defendant in Padilla, like
Mr. Bruce, was sentenced under Section 2D1.1’s drug
quantity tables for a crack offense. Padilla disputed
whether the drugs he possessed qualified as crack, but he
did not ask the court to consider the appropriateness of the
100:1 disparity in determining his sentence. Noting that he
“[would not] have stood on sound legal footing in so doing
prior to Kimbrough,” we held that this omission was not
fatal to his request for resentencing:
Padilla did contest before the district court and again
on appeal whether the drugs in question were crack.
We can presume that Padilla’s primary purpose in
disputing the drug type was to avoid the harsh effects
of the crack sentencing disparity, since no other logical
inference exists. In so doing, Padilla preserved the
issue, however obliquely, of whether the district court
could consider the 100:1 sentencing disparity in sentencing.
Id. (emphasis added). The same approach is appropriate
here. Although Mr. Bruce’s counsel did not specifically
mention the crack-powder disparity at the sentencing
hearing, he did invite the court’s attention to the planned
change in the 2007 Guidelines that reduced crack sentences
by two levels. Counsel told the court: “[I]t makes no
difference to the sentencing range but I do want to preserve
the crack issue simply to allow further review if that
becomes necessary.” R.102 at 2-3. As the Supreme Court
recognized in Kimbrough, the 2007 amendment was a part
of the Sentencing Commission’s ongoing efforts to
“ameliorat[e]” the 100:1 disparity by bringing crack
sentences closer to sentences for powder cocaine. 128 S. Ct.
at 569. In light of this, it is clear to us that Mr. Bruce’s
purpose in mentioning the crack sentencing issue was “to
The Government argues 5 that our decision in United States v.
Thomas, 520 F.3d 729, 737 (7th Cir. 2007), establishes that Mr.
Bruce waived his right to argue for a Kimbrough remand by
failing to make that argument before the district court. In
Thomas, however, we declined to consider a Kimbrough remand
because the defendant never asked for one, either before the trial
court or on appeal. Because Mr. Bruce explicitly asked for a
Kimbrough remand in his appellate brief, Thomas is inapposite
here.
avoid the harsh effects of the crack sentence disparity,”
Padilla, 520 F.3d at 774. Consequently, we hold that he
adequately preserved the issue before the district court and
is now entitled to a full remand for resentencing.5
The Government submits that a remand for resentencing
is inappropriate here. The 2007 amendment to the Guidelines
decreased the offense level for Mr. Bruce’s crime
from level 38 to level 36. The Government argues that,
because the Commission has declared the amendment
retroactive, Mr. Bruce’s new sentence would be based on
the career offender Guideline level of 37, which would
then be higher than the offense level prescribed by the
drug quantity table. For an offender in Mr. Bruce’s criminal
history category, the Guidelines range for offense level
37 is the same as the range for level 38: 360 months to life.
The Government contends that Mr. Bruce can derive no
benefit from a remand because his offense level on
resentencing would be the same. The Government also
submits that he would not be eligible for a departure
based on the 100:1 disparity because we have held that
Kimbrough does not apply to sentences imposed under the
career offender Guideline, U.S.S.G. § 4B1.1(b). See United
States v. Harris, 536 F.3d 798, 812-13 (7th Cir. 2008); Clanton,
538 F.3d at 660.
The Government’s premise that Mr. Bruce necessarily
will be resentenced under the career offender Guideline is
not self-evident. When Mr. Bruce is resentenced, his
offense level and Guidelines range will be determined by
the Guidelines in effect at the time of his original sentencing.
18 U.S.C. § 3742(g)(1); United States v. Tanner, 544 F.3d
793, 797 (7th Cir. 2008). While it is true that the Sentencing
Commission made the 2007 amendments retroactive, the
decision to apply the retroactivity in any individual case
lies within the sound discretion of the district court. 18
U.S.C. § 3582(c)(2); United States v. Lloyd, 398 F.3d 978, 979
(7th Cir. 2005) (Section 3582(c)(2) “permits” the district
court to reduce a defendant’s sentence “when the Sentencing
Commission has reduced the applicable Guidelines
range and made the change retroactive.”). We have no way
of knowing whether the district court will decide to apply
the 2007 amendments retroactively when it resentences Mr.
Bruce. It is the province of the district court to determine,
in the first instance, the proper Guidelines range and the
appropriate sentence for Mr. Bruce. Our task at this stage
is merely to decide whether Mr. Bruce’s original sentence
was imposed erroneously. We conclude that it was.
Conclusion
For the foregoing reasons, Mr. Bruce’s conviction is
affirmed, but his sentence is vacated and his case is
remanded to the district court for resentencing.
AFFIRMED in part, VACATED and REMANDED in part
Chicago Criminal Lawyer - Robert J Callahan
Thursday, April 23, 2009
U.S. vs. Bruce J. Rhodes
Bruce Rhodes pled guilty to
knowingly possessing a computer hard drive containing
video depictions of a minor engaging in sexually
explicit conduct, in violation of 18 U.S.C. § 2252(a)(4). The
court sentenced Rhodes to a ten-year term of imprisonment
followed by a life term of supervised release. The
court imposed several special conditions of supervised
release, and Rhodes now challenges just a portion of one
condition—penile plethysmograph testing (known as
“PPG” in medical circles)—which he finds particularly
invasive for reasons that will be evident when this procedure
is described below.
I. Background
In January 2007, Rhodes’s then-girlfriend reported to
police that she had discovered videos on Rhodes’s computer
that she thought contained child pornography. Police
obtained a warrant and seized Rhodes’s computer. Forensic
examination of the computer revealed pictures and
videos containing children engaged in sexually explicit
acts. Rhodes admitted to downloading and viewing child
pornography. A grand jury returned a single-count indictment
of knowingly possessing a computer hard drive
containing video depictions of a minor engaging in sexually
explicit conduct, to which Rhodes pled guilty.
In sentencing Rhodes, the district court noted that
Rhodes had a prior conviction for third-degree sexual
assault. The conviction arose from his having sexual
intercourse with a thirteen-year-old girl, a charge to
which he pled no-contest in a Wisconsin state court in
2000. Based on that conviction, the court found that the
mandatory statutory enhancement under 18 U.S.C.
§ 2252(b)(2) applied, which set the minimum term of
imprisonment at ten years and the maximum at twenty
years. The court also calculated the advisory sentencing
range under the U.S. Sentencing Guidelines. Rhodes had
an offense level of 26 and a criminal history category of
IV, which placed him in the advisory range of 92 to 115
months’ imprisonment. The court noted that the statute
mandated a minimum sentence that was greater than the
advisory range and sentenced Rhodes to ten years’ imprisonment,
which was to run consecutively to the sentence
imposed in the Wisconsin state court for the violation of
his term of extended supervision. The imprisonment was
to be followed by a life term of supervised release
subject to the mandatory and standard conditions. See
U.S.S.G. § 5D1.3. The court also found that nine special
conditions were appropriate. The condition at issue
stated that Rhodes was to “undergo a psychosexual
evaluation and participate in an outpatient sex offender
counseling program if recommended by the evaluator
which may involve use of polygraph and plethysmograph
examinations.” Rhodes’s attorney made a brief and unadorned
objection to this condition on general Fifth
Amendment grounds.
In explaining the propriety of the sentence, the court
expressed that, in light of Rhodes’s previous conviction,
his possession of more than 150 images and videos containing
child pornography suggested that he had a
“dangerous attraction to children.” The court noted that
his possession of a computer was in violation of a condition
of his state supervision. He also previously had the
opportunity to participate in treatment while under state
supervision, but he admitted that his attitude had interfered
with treatment. The court found that his actions
created a risk that he would commit additional criminal
acts, placing the community—especially children—in
jeopardy. Rhodes now appeals the above-mentioned
special condition.
II. Discussion
Penile plethysmograph testing is a procedure that
“involves placing a pressure-sensitive device around a
man’s penis, presenting him with an array of sexually
stimulating images, and determining his level of sexual
attraction by measuring minute changes in his erectile
responses.” Jason R. Odeshoo, Of Penology and Perversity:
The Use of Penile Plethysmography on Convicted Child Sex
Offenders, 14 TEMP. POL. & CIV. RTS. L. REV. 1, 2 (2004). The
use of PPG testing “has become rather routine in adult
sexual offender treatment programs,” United States v.
Weber, 451 F.3d 552, 562 (9th Cir. 2006), and courts have
upheld conditions requiring offenders to undergo PPG
testing under various legal challenges. See Odeshoo, supra,
at 20 n.151-52 (collecting cases).
Though the use of PPG is not uncommon, experts
disagree as to its effectiveness. “The reliability and validity
of this procedure in clinical assessment have not been
well established, and clinical experience suggests that
subjects can simulate response by manipulating
mental images.” AM. PSYCHIATRIC ASS’N., DIAGNOSTIC AND
STATISTICAL MANUAL OF MENTAL DISORDERS 567 (4th ed.,
text revision 2000); see also Dean Tong, The Penile
Plethysmograph, Abel Assessment for Sexual Interest, and
MSI-II: Are They Speaking the Same Language?, 35 AM. J.
OF FAM. THERAPY, 187, 190 (2007) (“The PPG, when administered
properly, represents a direct and objective
measurement of a man’s level of sexual arousal to normal
versus sexualized stimuli. Since there is a strong relationship
between an individual’s pattern of sexual arousal
and the probability that he may or will act upon that
arousal, an important first step in gauging one’s propensity
to sexual deviancy is to obtain an accurate assessment
of that person’s sexual arousal patterns, which is
precisely what the PPG does.”); James M. Peters, Assessment
and Treatment of Sex Offenders: What Attorneys Need
to Know, ADVOCATE, Dec. 1999, at 23 (1999) (PPG “is
invaluable in the evaluation, treatment and management
of known sexual offenders.”); John Matthew Fabian, The
Risky Business of Conducting Risk Assessments for Those
Already Civilly Committed as Sexually Violent Predators, 32
WM. MITCHELL L. REV. 81, 101 (2005) (“[S]ome evaluators
believe that polygraph and [PPG] testing are unreliable
and invalid, and thus should be prohibited because such
data may lead to false positives, suggesting that an offender
will reoffend when he ultimately does not.”);
Odeshoo, supra, at 43 (“Why, given the fact that PPG
is more expensive, more time-consuming, more intrusive
and degrading, and not demonstrably more reliable
than the polygraph, would authorities nonetheless insist
that sex offenders submit to PPG examinations?”).
The district court imposed a special condition of supervised
release that first requires a psychosexual evaluation,
which could then lead to mandatory participation in a
sex offender treatment program. As part of such a program,
Rhodes could be required to undergo polygraph
and PPG testing. Rhodes objected “for the record” on Fifth
Amendment grounds without elaboration. On appeal,
he argues that because PPG testing implicates a
significant liberty interest, the district court should be
required to state that the condition “involves no greater
deprivation of liberty than is reasonably necessary.” 18
U.S.C. § 3583(d)(2). Rhodes concedes that our standard
of review at this stage is from the narrow perspective of
plain error because he did not object to the condition on
the same grounds that he raises in this appeal. United
States v. Schalk, 515 F.3d 768, 776 (7th Cir. 2008).
A district court has the discretion to impose special
conditions of supervised release if the condition: (1) is
reasonably related to the nature and circumstances of the
offense, the history and characteristics of the defendant,
and the need to provide adequate deterrence to criminal
conduct, protect the public, and rehabilitate the
defendant; (2) involves no greater deprivation of liberty
than is reasonably necessary for the purposes of deterrence,
public protection, and rehabilitation; and (3) is
consistent with any pertinent policy statements issued by
the Sentencing Commission. 18 U.S.C. §§ 3553(a), 3583(d).
When crafting a defendant’s sentence, the district court is
not required to address each factor “in checklist fashion,
explicitly articulating its conclusion for each factor,” as
long as the court’s statement of reasons is adequate and
consistent with the factors. United States v. Panaigua-
Verdugo, 537 F.3d 722, 728 (7th Cir. 2008). Because PPG
testing is mentally and physically intrusive, Rhodes
urges us to follow the Ninth Circuit’s approach in
United States v. Weber, 451 F.3d 552 (9th Cir. 2006) and
require the district court to state precisely why the PPG
testing is no greater deprivation of liberty than is reasonably
necessary. In determining that a special procedure
is warranted before PPG testing can be imposed, the
Ninth Circuit noted that a number of less intrusive alter
natives exist for treating sex offenders. Id. at 567-68.
The court declined to say “categorically that . . .
plethysmograph testing can never reasonably promote at
least one, if not all three, of the relevant goals laid out in
§ 3553(a)(2)—namely, deterrence, public protection, and
rehabilitation.” Id. at 566.
The government, on the other hand, asks that we
follow the Sixth Circuit’s approach in United States v.
Lee, 502 F.3d 447 (6th Cir. 2007) and dismiss the claim as
unripe. In Lee, the district court imposed the condition
that upon release, the defendant “must participate in a
specialized sex offender treatment program that may
include the use of plethysmograph or polygraph.” Id. at
449. The Sixth Circuit held the claim was not ripe for
two reasons. First, the condition only potentially required
the defendant to have PPG testing. Id. at 450. The
defendant would not be released from prison for
fourteen years, and the court could not predict whether
the probation office would, in fact, find the testing necessary
for the defendant’s treatment at that time. Id.
“[G]iven that the occasion may never arise, Lee’s contention
that he will actually be subject to penile
plethysmograph testing is mere conjecture.” Id. Second,
the court noted that it was unclear whether PPG testing
would still be used for evaluation or treatment by the
time the defendant was released from prison, since PPG
testing “implicates significant liberty interests, and
further, its reliability is questionable.” Id.
We find the Sixth Circuit’s reasoning persuasive and
consistent with our approach in United States v. Schoenborn,
4 F.3d 1424 (7th Cir. 1993). In Schoenborn, the defendant
was sentenced to imprisonment for five years, the
statutory maximum term, followed by supervised release
for three years, also the statutory maximum term. The
defendant argued that any violation of his supervised
release, “say for missing an appointment with his probation
officer or for drinking a beer,” could result in additional
jail time exceeding the statutory maximum. Id. at
1434. We held that the claim was not ripe. Id. “One
who invokes the jurisdiction of a federal court must
establish, before all else, that he has suffered a concrete
and particularized injury; a conjectural one will not do.” Id.
As in Lee and Schoenborn, Rhodes’s claim is based on a
number of contingencies. He was sentenced to ten years
of imprisonment, consecutive to the term imposed by
the state court due to Rhodes’s violation of extended
supervision for his 2000 conviction. His term of supervision
will begin only after his release from imprisonment
(which could not be sooner than eight and one-half
years after he enters the federal prison system upon the
completion of his Wisconsin sentence, assuming that he
gains full credit for satisfactory behavior pursuant to
18 U.S.C. § 3624(b)). Only then could an evaluator recommend
that he participate in an outpatient sex offender
counseling program. And even if the evaluator were to
recommend a treatment program, PPG testing will not
necessarily be required. Perhaps the counselor and the
Probation Officer responsible for this case may determine
that testing would not be efficient, effective, economical,
or necessary, or perhaps they would be satisfied with
polygraph testing alone, which is not unusual. As the
condition is stated, there is a fair amount of discretion
regarding the techniques to be utilized. In the meantime,
the development of science or the law may render the
PPG testing irrelevant or even illegal, or maybe the movement
will be in a different direction altogether—a lot can
happen in the better part of a decade. Were we to
instead move at this time to follow Weber and hold that
the district court had to state why PPG was preferable to
less intrusive methods for this particular defendant, we
would be addressing a question full of contingency and
abstraction founded in an evolving scientific field, perhaps
to the detriment of the defendant’s rehabilitation—and
doing so with an undeveloped trial court record. Experts
already disagree as to which evaluation and treatment
methods are the most effective, and we would do well to
await a more concrete presentation of this issue.
Regardless, Rhodes can later petition the district court to
modify the condition. Lee, 502 F.3d at 451; 18 U.S.C.
§ 3583(e)(2); see also Fed. R. Crim. P. 32.1(c). Through
such a petition, he could initially present the district court
with the up-to-date scientific and legal criticisms of PPG,
rather than saving such a presentation for an appellate
brief. We acknowledge Rhodes’s concern, as he colorfully
describes it, that if the district court created a condition
that he go over Niagara Falls in a barrel, he should be
permitted to challenge it before he plummets over the
edge. Indeed, if Rhodes were to be ordered to undergo
PPG testing, he could be faced with undergoing the
testing (or the alternative of violating the condition of
supervised release) before his request to modify was
considered by the district court. We think under those
circumstances, Rhodes should be permitted to have the
district court consider his request to modify the condition
before he is required to undergo the testing. But he is
nowhere near such a crest in the supervised release
process.
This is not to say that a defendant can never
immediately appeal a condition of supervised release
after sentencing. We have entertained such appeals on
countless occasions. A few examples—in United States v.
Ross, 475 F.3d 871, 875 (7th Cir. 2007), we considered a
defendant’s appeal of a supervised release condition
that he participate in sex offender evaluation and treatment.
In United States v. Holm, 326 F.3d 872, 877 (7th
Cir. 2003), we addressed a defendant’s appeal of a supervised
release condition prohibiting him from using the
Internet entirely. In United States v. Paul, 542 F.3d 596,
600-01 (7th Cir. 2008), we considered a defendant’s
appeal of a supervised release condition that he submit to
drug testing. In United States v. Schave, 186 F.3d 839, 841-43
(7th Cir. 1999), we considered the defendant’s appeal of
supervised release conditions prohibiting him from
drinking alcohol and associating with white supremacy
groups.
In each of these cases, the defendant was sentenced
to several years’ imprisonment before the challenged
terms of supervision commenced, yet we analyzed the
propriety of the challenged supervised release conditions
at the front end of those sentences. The conditions
in each of those cases were determinate, however: Ross
was required to participate in sex offender evaluation
and treatment, Paul was subject to drug testing, Schave
could not drink alcohol or associate with white
supremacy groups, and Holm could not use the Internet—
all with unqualified certainty. Rhodes, on the other hand,
may only be affected by the condition after a string of
contingencies—he must complete his prison terms, his
evaluator must recommend that he undergo a sex
offender counseling program, and the program must
include PPG testing. Therein lies the difference.
III. Conclusion
Because Rhodes’s special condition will only become
effective after he serves more than ten years’ imprisonment
and several other conditions are met, we DISMISS his
claim without prejudice as unripe.
Chicago Criminal Lawyer - Robert J Callahan
knowingly possessing a computer hard drive containing
video depictions of a minor engaging in sexually
explicit conduct, in violation of 18 U.S.C. § 2252(a)(4). The
court sentenced Rhodes to a ten-year term of imprisonment
followed by a life term of supervised release. The
court imposed several special conditions of supervised
release, and Rhodes now challenges just a portion of one
condition—penile plethysmograph testing (known as
“PPG” in medical circles)—which he finds particularly
invasive for reasons that will be evident when this procedure
is described below.
I. Background
In January 2007, Rhodes’s then-girlfriend reported to
police that she had discovered videos on Rhodes’s computer
that she thought contained child pornography. Police
obtained a warrant and seized Rhodes’s computer. Forensic
examination of the computer revealed pictures and
videos containing children engaged in sexually explicit
acts. Rhodes admitted to downloading and viewing child
pornography. A grand jury returned a single-count indictment
of knowingly possessing a computer hard drive
containing video depictions of a minor engaging in sexually
explicit conduct, to which Rhodes pled guilty.
In sentencing Rhodes, the district court noted that
Rhodes had a prior conviction for third-degree sexual
assault. The conviction arose from his having sexual
intercourse with a thirteen-year-old girl, a charge to
which he pled no-contest in a Wisconsin state court in
2000. Based on that conviction, the court found that the
mandatory statutory enhancement under 18 U.S.C.
§ 2252(b)(2) applied, which set the minimum term of
imprisonment at ten years and the maximum at twenty
years. The court also calculated the advisory sentencing
range under the U.S. Sentencing Guidelines. Rhodes had
an offense level of 26 and a criminal history category of
IV, which placed him in the advisory range of 92 to 115
months’ imprisonment. The court noted that the statute
mandated a minimum sentence that was greater than the
advisory range and sentenced Rhodes to ten years’ imprisonment,
which was to run consecutively to the sentence
imposed in the Wisconsin state court for the violation of
his term of extended supervision. The imprisonment was
to be followed by a life term of supervised release
subject to the mandatory and standard conditions. See
U.S.S.G. § 5D1.3. The court also found that nine special
conditions were appropriate. The condition at issue
stated that Rhodes was to “undergo a psychosexual
evaluation and participate in an outpatient sex offender
counseling program if recommended by the evaluator
which may involve use of polygraph and plethysmograph
examinations.” Rhodes’s attorney made a brief and unadorned
objection to this condition on general Fifth
Amendment grounds.
In explaining the propriety of the sentence, the court
expressed that, in light of Rhodes’s previous conviction,
his possession of more than 150 images and videos containing
child pornography suggested that he had a
“dangerous attraction to children.” The court noted that
his possession of a computer was in violation of a condition
of his state supervision. He also previously had the
opportunity to participate in treatment while under state
supervision, but he admitted that his attitude had interfered
with treatment. The court found that his actions
created a risk that he would commit additional criminal
acts, placing the community—especially children—in
jeopardy. Rhodes now appeals the above-mentioned
special condition.
II. Discussion
Penile plethysmograph testing is a procedure that
“involves placing a pressure-sensitive device around a
man’s penis, presenting him with an array of sexually
stimulating images, and determining his level of sexual
attraction by measuring minute changes in his erectile
responses.” Jason R. Odeshoo, Of Penology and Perversity:
The Use of Penile Plethysmography on Convicted Child Sex
Offenders, 14 TEMP. POL. & CIV. RTS. L. REV. 1, 2 (2004). The
use of PPG testing “has become rather routine in adult
sexual offender treatment programs,” United States v.
Weber, 451 F.3d 552, 562 (9th Cir. 2006), and courts have
upheld conditions requiring offenders to undergo PPG
testing under various legal challenges. See Odeshoo, supra,
at 20 n.151-52 (collecting cases).
Though the use of PPG is not uncommon, experts
disagree as to its effectiveness. “The reliability and validity
of this procedure in clinical assessment have not been
well established, and clinical experience suggests that
subjects can simulate response by manipulating
mental images.” AM. PSYCHIATRIC ASS’N., DIAGNOSTIC AND
STATISTICAL MANUAL OF MENTAL DISORDERS 567 (4th ed.,
text revision 2000); see also Dean Tong, The Penile
Plethysmograph, Abel Assessment for Sexual Interest, and
MSI-II: Are They Speaking the Same Language?, 35 AM. J.
OF FAM. THERAPY, 187, 190 (2007) (“The PPG, when administered
properly, represents a direct and objective
measurement of a man’s level of sexual arousal to normal
versus sexualized stimuli. Since there is a strong relationship
between an individual’s pattern of sexual arousal
and the probability that he may or will act upon that
arousal, an important first step in gauging one’s propensity
to sexual deviancy is to obtain an accurate assessment
of that person’s sexual arousal patterns, which is
precisely what the PPG does.”); James M. Peters, Assessment
and Treatment of Sex Offenders: What Attorneys Need
to Know, ADVOCATE, Dec. 1999, at 23 (1999) (PPG “is
invaluable in the evaluation, treatment and management
of known sexual offenders.”); John Matthew Fabian, The
Risky Business of Conducting Risk Assessments for Those
Already Civilly Committed as Sexually Violent Predators, 32
WM. MITCHELL L. REV. 81, 101 (2005) (“[S]ome evaluators
believe that polygraph and [PPG] testing are unreliable
and invalid, and thus should be prohibited because such
data may lead to false positives, suggesting that an offender
will reoffend when he ultimately does not.”);
Odeshoo, supra, at 43 (“Why, given the fact that PPG
is more expensive, more time-consuming, more intrusive
and degrading, and not demonstrably more reliable
than the polygraph, would authorities nonetheless insist
that sex offenders submit to PPG examinations?”).
The district court imposed a special condition of supervised
release that first requires a psychosexual evaluation,
which could then lead to mandatory participation in a
sex offender treatment program. As part of such a program,
Rhodes could be required to undergo polygraph
and PPG testing. Rhodes objected “for the record” on Fifth
Amendment grounds without elaboration. On appeal,
he argues that because PPG testing implicates a
significant liberty interest, the district court should be
required to state that the condition “involves no greater
deprivation of liberty than is reasonably necessary.” 18
U.S.C. § 3583(d)(2). Rhodes concedes that our standard
of review at this stage is from the narrow perspective of
plain error because he did not object to the condition on
the same grounds that he raises in this appeal. United
States v. Schalk, 515 F.3d 768, 776 (7th Cir. 2008).
A district court has the discretion to impose special
conditions of supervised release if the condition: (1) is
reasonably related to the nature and circumstances of the
offense, the history and characteristics of the defendant,
and the need to provide adequate deterrence to criminal
conduct, protect the public, and rehabilitate the
defendant; (2) involves no greater deprivation of liberty
than is reasonably necessary for the purposes of deterrence,
public protection, and rehabilitation; and (3) is
consistent with any pertinent policy statements issued by
the Sentencing Commission. 18 U.S.C. §§ 3553(a), 3583(d).
When crafting a defendant’s sentence, the district court is
not required to address each factor “in checklist fashion,
explicitly articulating its conclusion for each factor,” as
long as the court’s statement of reasons is adequate and
consistent with the factors. United States v. Panaigua-
Verdugo, 537 F.3d 722, 728 (7th Cir. 2008). Because PPG
testing is mentally and physically intrusive, Rhodes
urges us to follow the Ninth Circuit’s approach in
United States v. Weber, 451 F.3d 552 (9th Cir. 2006) and
require the district court to state precisely why the PPG
testing is no greater deprivation of liberty than is reasonably
necessary. In determining that a special procedure
is warranted before PPG testing can be imposed, the
Ninth Circuit noted that a number of less intrusive alter
natives exist for treating sex offenders. Id. at 567-68.
The court declined to say “categorically that . . .
plethysmograph testing can never reasonably promote at
least one, if not all three, of the relevant goals laid out in
§ 3553(a)(2)—namely, deterrence, public protection, and
rehabilitation.” Id. at 566.
The government, on the other hand, asks that we
follow the Sixth Circuit’s approach in United States v.
Lee, 502 F.3d 447 (6th Cir. 2007) and dismiss the claim as
unripe. In Lee, the district court imposed the condition
that upon release, the defendant “must participate in a
specialized sex offender treatment program that may
include the use of plethysmograph or polygraph.” Id. at
449. The Sixth Circuit held the claim was not ripe for
two reasons. First, the condition only potentially required
the defendant to have PPG testing. Id. at 450. The
defendant would not be released from prison for
fourteen years, and the court could not predict whether
the probation office would, in fact, find the testing necessary
for the defendant’s treatment at that time. Id.
“[G]iven that the occasion may never arise, Lee’s contention
that he will actually be subject to penile
plethysmograph testing is mere conjecture.” Id. Second,
the court noted that it was unclear whether PPG testing
would still be used for evaluation or treatment by the
time the defendant was released from prison, since PPG
testing “implicates significant liberty interests, and
further, its reliability is questionable.” Id.
We find the Sixth Circuit’s reasoning persuasive and
consistent with our approach in United States v. Schoenborn,
4 F.3d 1424 (7th Cir. 1993). In Schoenborn, the defendant
was sentenced to imprisonment for five years, the
statutory maximum term, followed by supervised release
for three years, also the statutory maximum term. The
defendant argued that any violation of his supervised
release, “say for missing an appointment with his probation
officer or for drinking a beer,” could result in additional
jail time exceeding the statutory maximum. Id. at
1434. We held that the claim was not ripe. Id. “One
who invokes the jurisdiction of a federal court must
establish, before all else, that he has suffered a concrete
and particularized injury; a conjectural one will not do.” Id.
As in Lee and Schoenborn, Rhodes’s claim is based on a
number of contingencies. He was sentenced to ten years
of imprisonment, consecutive to the term imposed by
the state court due to Rhodes’s violation of extended
supervision for his 2000 conviction. His term of supervision
will begin only after his release from imprisonment
(which could not be sooner than eight and one-half
years after he enters the federal prison system upon the
completion of his Wisconsin sentence, assuming that he
gains full credit for satisfactory behavior pursuant to
18 U.S.C. § 3624(b)). Only then could an evaluator recommend
that he participate in an outpatient sex offender
counseling program. And even if the evaluator were to
recommend a treatment program, PPG testing will not
necessarily be required. Perhaps the counselor and the
Probation Officer responsible for this case may determine
that testing would not be efficient, effective, economical,
or necessary, or perhaps they would be satisfied with
polygraph testing alone, which is not unusual. As the
condition is stated, there is a fair amount of discretion
regarding the techniques to be utilized. In the meantime,
the development of science or the law may render the
PPG testing irrelevant or even illegal, or maybe the movement
will be in a different direction altogether—a lot can
happen in the better part of a decade. Were we to
instead move at this time to follow Weber and hold that
the district court had to state why PPG was preferable to
less intrusive methods for this particular defendant, we
would be addressing a question full of contingency and
abstraction founded in an evolving scientific field, perhaps
to the detriment of the defendant’s rehabilitation—and
doing so with an undeveloped trial court record. Experts
already disagree as to which evaluation and treatment
methods are the most effective, and we would do well to
await a more concrete presentation of this issue.
Regardless, Rhodes can later petition the district court to
modify the condition. Lee, 502 F.3d at 451; 18 U.S.C.
§ 3583(e)(2); see also Fed. R. Crim. P. 32.1(c). Through
such a petition, he could initially present the district court
with the up-to-date scientific and legal criticisms of PPG,
rather than saving such a presentation for an appellate
brief. We acknowledge Rhodes’s concern, as he colorfully
describes it, that if the district court created a condition
that he go over Niagara Falls in a barrel, he should be
permitted to challenge it before he plummets over the
edge. Indeed, if Rhodes were to be ordered to undergo
PPG testing, he could be faced with undergoing the
testing (or the alternative of violating the condition of
supervised release) before his request to modify was
considered by the district court. We think under those
circumstances, Rhodes should be permitted to have the
district court consider his request to modify the condition
before he is required to undergo the testing. But he is
nowhere near such a crest in the supervised release
process.
This is not to say that a defendant can never
immediately appeal a condition of supervised release
after sentencing. We have entertained such appeals on
countless occasions. A few examples—in United States v.
Ross, 475 F.3d 871, 875 (7th Cir. 2007), we considered a
defendant’s appeal of a supervised release condition
that he participate in sex offender evaluation and treatment.
In United States v. Holm, 326 F.3d 872, 877 (7th
Cir. 2003), we addressed a defendant’s appeal of a supervised
release condition prohibiting him from using the
Internet entirely. In United States v. Paul, 542 F.3d 596,
600-01 (7th Cir. 2008), we considered a defendant’s
appeal of a supervised release condition that he submit to
drug testing. In United States v. Schave, 186 F.3d 839, 841-43
(7th Cir. 1999), we considered the defendant’s appeal of
supervised release conditions prohibiting him from
drinking alcohol and associating with white supremacy
groups.
In each of these cases, the defendant was sentenced
to several years’ imprisonment before the challenged
terms of supervision commenced, yet we analyzed the
propriety of the challenged supervised release conditions
at the front end of those sentences. The conditions
in each of those cases were determinate, however: Ross
was required to participate in sex offender evaluation
and treatment, Paul was subject to drug testing, Schave
could not drink alcohol or associate with white
supremacy groups, and Holm could not use the Internet—
all with unqualified certainty. Rhodes, on the other hand,
may only be affected by the condition after a string of
contingencies—he must complete his prison terms, his
evaluator must recommend that he undergo a sex
offender counseling program, and the program must
include PPG testing. Therein lies the difference.
III. Conclusion
Because Rhodes’s special condition will only become
effective after he serves more than ten years’ imprisonment
and several other conditions are met, we DISMISS his
claim without prejudice as unripe.
Chicago Criminal Lawyer - Robert J Callahan
U.S. vs. Adonis House
A federal jury convicted Adonis
House of two counts of distribution of crack cocaine, and
the district court sentenced him to 188 months in prison,
followed by five years of supervised release. On appeal,
House raises three challenges to his sentence. First, he
contends that the district court improperly made a twopoint
adjustment to his base offense level under the
United States Sentencing Guidelines for obstruction of
justice. Second, he contends that the district court failed
to consider the disparity in sentences between crack
cocaine and powder cocaine under the sentencing guidelines.
Third, he contends that the district court did not
correctly apply the sentencing factors in U.S.S.G. § 3553(a).
For the following reasons, we affirm the conviction
and sentence of the district court.
I. Background
Adonis House was arrested and prosecuted as part of
a broader federal narcotics investigation in Chicago.
House’s involvement began in February 2005, when he
met with Sylvester Avery, a man who claimed that he
was looking to get into the cocaine trafficking business, at
a barber shop on Madison Street on the west side of
Chicago. Avery asked House if he knew of anyone who
could sell him narcotics, and House apparently told
Avery that he would try to find out who could supply
him. What House did not know at this time was that Avery
was working as a government informant pursuant to a
cooperation agreement. Later, in March 2005, Avery
introduced House to John D. Morton, supposedly a highlevel
dealer from Madison, Wisconsin, but in fact the
undercover identity of Mark Horton, a Supervisory
Special Agent with the FBI. During the course of the
next month, Avery and House talked numerous times
over the phone and met at the barber shop; eventually,
they agreed that House would sell Avery and Horton
four-and-one-half ounces of crack cocaine for $2600 to
$2700.
On April 5, 2005, Horton and Avery caught up with
House at the barbershop for a prearranged meeting.
Horton gave House $2700 in cash to purchase four-and-ahalf
ounces of crack cocaine. House and Avery then
drove to another location where they met with LaPriest
Gary, who was supplying the crack cocaine. Gary, Avery,
and House then went to a third location, where Gary
obtained about four ounces of crack, which he exchanged
for $2350 from House and Avery. Gary then drove
Avery and House back to the barbershop, where House
gave Avery a white bag filled with crack cocaine. Avery
waited for Horton to leave the barbershop, and the two
then drove away in Horton’s undercover car (the crack
cocaine was seized by the FBI at that time). Later, House
met Avery and gave him $200 for setting up the deal.
On April 11, 2005, Avery called House about setting
up a second drug deal. House told Avery that he had
another source for crack cocaine, but that the price
would be higher. On May 20, 2005, Avery, Horton, and
House met at the barbershop on Madison Street and
discussed buying four-and-a-half ounces of crack. House
told Avery and Horton that his source had that much
available for purchase, and that he would only need to
drive over to the supplier in order to get it. Horton then
gave Avery $2900 for the purchase. When House told
Avery and Horton he would need to take the money with
him, Avery decided to go to the supplier’s location as well.
House, Avery, and a third man, Frederick Young, then
drove away from the barbershop. Avery gave House the
$2900, and while Avery apparently did not witness an
exchange between House and his supplier, House and
Avery returned to the barbershop with crack cocaine,
which was then turned over to Horton. Later that same
day, House met Avery and gave him $250 for setting up
the second deal.
Horton and House apparently spoke twice more, and
they discussed the possibility of House supplying drugs
for Horton’s operation. According to trial testimony,
House speculated on the price for as much as nine ounces
or a quarter kilogram of crack at a time. However, those
discussions and agreements were not part of the
charges brought in this case.
On August 31, 2006, a grand jury in the Northern
District of Illinois returned an indictment charging
House with two counts of knowingly and intentionally
distributing cocaine in the form of crack cocaine in violation
of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. A jury trial
in House’s case began on June 5, 2007, and on June 7, the
jury found House guilty on both counts. Sentencing in
the case was originally scheduled for August 29, 2007,
but was continued twice, first until September 24, and
then for November 13. Immediately before the November
13 sentencing hearing, however, House moved to
continue sentencing because he was also charged in a
separate indictment before Judge Matthew Kennelly in
the Northern District of Illinois, and House wanted the
district court in this case to consider the pending charges
as part of his relevant conduct for sentencing. The district
court granted House’s motion, and held a sentencing
hearing on December 13, 2007. The jury verdict in House’s
trial included a special jury form to include a determination
of drug amounts, and based on the amounts in the
present case as well as the separate indictment, the
district court calculated a base offense level of 34. The
district court then imposed a two-level enhancement
for obstruction of justice under U.S.S.G. § 3C1.1, finding
that House had improperly attempted to influence
Avery’s testimony in the case. Working from the new base
offense level of 36, the district court sentenced House to
188 months in prison, followed by five years of supervised
release. This appeal followed.
II. Discussion
House raises three issues in his appeal. First, he claims
that the district court should not have imposed a two-level
sentencing enhancement for obstruction of justice, as
House only intended to confirm that Avery would testify
at trial, rather than to obstruct justice by persuading Avery
not to appear. Second, he seeks a remand so that the
district court can consider the disparity between sentences
for crack cocaine and powder cocaine offenses in
the sentencing guidelines. Third, House argues that his
sentence was unreasonable, given that he has no criminal
history, is not a threat to re-offend, and does not present
a danger to his community.
A. Whether the district court properly applied a twolevel
enhancement for obstruction of justice under
U.S.S.G. § 3C1.1.
House first argues that the district court improperly
granted a two-level enhancement to his base offense level
for obstruction of justice in violation of U.S.S.G. § 3C1.1.
That portion of the sentencing guidelines instructs
judges that:
If (A) the defendant willfully obstructed or impeded,
or attempted to obstruct or impede, the administration
of justice with respect to the investigation, prosecution,
or sentencing of the instant offense of conviction,
and (B) the obstructive conduct related to (i) the
defendant’s offense of conviction and any relevant
conduct; or (ii) a closely related offense, increase
the offense level by 2 levels.
U.S.S.G. § 3C1.1. The section requires, first, a finding that
the defendant endeavored to obstruct or impede the
administration of justice, and that the obstructive
conduct related to the offense of conviction or a closely
related offense. We review de novo whether the
district court made adequate findings to support an
enhancement for obstruction of justice, while we review
the underlying factual findings for clear error. United
States v. Carrera, 259 F.3d 818, 831 (7th Cir. 2001); see
also United States v. Gage, 183 F.3d 711, 715 (7th Cir. 1999).
The district court first learned of the alleged obstructive
conduct in this case on the first day of trial, when the
government informed the court that House had contacted
Avery through Mary Brown, a friend of House’s
from his neighborhood. A few months before House’s
trial, he had learned through discovery documents that
Avery was a cooperating witness with the government
and was supposed to testify against him at trial. Sometime
after that, Brown and her brothers encountered Avery at
the scene of a traffic accident on Western Avenue in
The parties argue inconclusively about the plausibility of this
second explanation for the confrontation. The government
argues that Avery’s identity was firmly established in discovery
documents and that this confrontation occurred shortly
before trial when it was clear that Avery would testify. House
argues that the time of the confrontation has never been established
and so the confrontation occurred at a point when House
was still identifying the government’s primary witnesses.
(continued...)
Chicago. According to the testimony of Anita Dunn, an
FBI agent who investigated the incident after Avery
reported it to the government in this case, Brown approached
Avery at the scene of the accident, asked if he
was planning on testifying against House, and asked him
not to testify. Dunn also claims that she spoke to Brown,
who gave a similar account of events: “She said she
confronted [Avery]. She asked him about testifying and, I
believe, not to testify against Mr. House.” Sen. Tr. at 19.
According to Dunn, this was all done at House’s instruction:
Brown approached Avery because “Mr. House
asked her to locate Mr. Avery and ask him not to testify
against him.” Id.
House disputes this version of events, claiming that he
only asked Brown to speak to Avery about whether he
would testify because Brown herself was skeptical
about Avery’s cooperation, and House believed that
Brown could tell from Avery’s reaction to her question
whether or not he really intended to appear in court. He
also claims that his intent was only to confirm that Avery
would in fact be testifying at his trial.1 On appeal, he first
Regardless of the timing of the confrontation, we conclude
that the district court had adequate evidence at the sentencing
hearing to support a sentence enhancement.
questions the reliability of the government’s evidence
supporting the enhancement, as it was made on the
basis of hearsay testimony from Dunn and neither Avery
nor Brown appeared at the sentencing hearing to
explain what happened. He next argues that the testimony
on its own is insufficient to establish that he had
the intent to obstruct justice. In support of this argument,
House points out that Dunn stated during her
direct examination that Brown did not “believe that
[House] wanted her to intimidate Mr. Avery,” Sen. Tr. at
20-21, and during her cross-examination that Brown did
not say that House asked her to speak with Avery in
order to intimidate him.
House’s first objection is misplaced. While it is true that
Dunn’s recollection of her interviews with Brown and
Avery was hearsay testimony, sentencing courts are
allowed to consider hearsay testimony. United States v.
Roche, 415 F.3d 614, 618 (7th Cir. 2005) (citing Williams v.
New York, 337 U.S. 241 (1949)). Hearsay testimony is
proper as long as it has “sufficient indicia of reliability to
support its probable accuracy.” United States v. Otero, 495
F.3d 393, 402 n.5 (7th Cir. 2007). House is left to argue
that while the testimony was properly admissible, it
was presumptively unreliable. He claims that this circuit
has previously held that “a very strong presumption of
2 This line of cases that House cites is not on point, however.
Jones, which cited United States v. Ochoa, 229 F.3d 631, 637 (7th
Cir. 2000), involved a co-conspirator’s hearsay statement
admitted at trial, and which thus implicated the Confrontation
Clause. Jones, 371 F.3d at 369. Ochoa involved the same set of
facts. Ochoa, 229 F.3d at 637. The determination of presumptive
unreliability is premised on the right of confrontation and upon
the fact that it is a co-conspirator’s statement, given in a context
in which the conspirator would be tempted to shift blame.
However, this case is different both because Brown’s testimony
was not a classic co-conspirator’s statement, and because the
relevant standard for sentencing proceedings is not the Confrontation
Clause, but rather due process. We thus take
House’s point that we should question the reliability of the
statement, without attaching any presumptions of unreliability.
unreliability attaches to statements that are: (1) given
with government involvement; (2) describe past events;
(3) have not been subjected to adversarial testing.” United
States v. Jones, 371 F.3d 363, 369 (7th Cir. 2004).2 Dunn’s
interviews with Avery and Brown, House argues, meet
all three characteristics and thus are not sufficiently
reliable to form a basis for the sentencing enhancement.
House next argues that even if this court finds that
Dunn’s testimony was sufficiently reliable, it was insufficient
to establish his intent to obstruct justice. This
circuit’s opinions on the intent requirements of § 3C1.1
“make clear . . . that the burden is on the Government to
establish that the defendant acted with specific intent to
obstruct justice.” United States v. Dale, 498 F.3d 604, 609 n.4
(7th Cir. 2007). Making any sort of statement to a wit
ness is not enough; rather, a defendant must make the
statement intending for it to affect whether or not the
witness will appear at trial. At the same time, this
circuit’s cases hold that a mere attempt to influence a
witness is enough, regardless of whether it succeeds.
United States v. Wright, 37 F.3d 358, 362 (7th Cir. 1994).
Moreover, the court will use an objective standard to
determine whether a given action is an attempt to
obstruct justice, rather than evaluating the subjective
intent of the defendant. See United States v. Chatmon, 324
F.3d 889, 893 (7th Cir. 2003).
House’s best argument in this respect is that Dunn’s
testimony indicated at two points that Brown did not
approach Avery with the intent to intimidate him, and
that Brown did not believe that House wanted her to
intimidate Avery. (He claims instead that he was
simply determining whether he was going to testify, and
that he was only trying to give his attorney accurate
information about the witnesses in the case.) The sentencing
guideline does not make attempts to “intimidate”
the basis for an enhancement, however, but rather
attempts to “obstruct or impede.” This is because the
obstruction of justice enhancement is designed “not just to
prevent miscarriages of justice but also to reduce the
burden on the justice system.” United States v. Buckley, 192
F.3d 708, 710 (7th Cir. 1999). The enhancement thus
covers not only threats or intimidation but also “otherwise
unlawfully influencing” a witness. United States v. Johnson,
46 F.3d 636, 638 (7th Cir. 1995). This circuit has previously
held that “unlawfully influencing” a witness means
intentionally engaging in conduct “having a natural
tendency to suppress or interfere with the discovery of
truth.” Wright, 37 F.3d at 362.
Thus, House could be liable for an obstruction of justice
enhancement merely because Brown asked Avery not to
testify against House, provided the evidence established
that House intended to have Brown ask Avery not
to appear. The bare attempt to persuade a witness not
to offer otherwise truthful testimony would indeed be an
attempt to unlawfully influence the outcome of the proceeding.
The government emphasizes this aspect of
Dunn’s testimony in their briefs to this court. The district
court, in imposing the enhancement, likewise found that
“just the attempt to influence or the attempt to persuade
another to act in a certain way” was sufficient. Sen. Tr.
at 26.
This court’s review of the sentencing enhancement
thus boils down to the question of whether House intended
for Brown to ask Avery not to testify, which itself boils
down to the ancillary question of whether the district
court had sufficiently reliable evidence of House’s intent
to justify imposing the sentencing enhancement. This is
a factual question that this court reviews only for clear
error. We note that the evidence of House’s intent was
rather thin. According to Dunn’s testimony, when
House spoke to Brown about Avery he asked her to ask
Avery not to testify. Or at the risk of offering a more
confusing formulation, Dunn said she believed that
House asked Brown to ask that. There is thus only hearsay
testimony from a single witness, and not the strongest
hearsay testimony, on the crucial question of House’s
intent. Nor was Dunn’s testimony, which the district
court decided to credit, the strongest case that the government
could have put on, given that it was hearsay
testimony taken without giving the defense a chance to
cross-examine either Brown or Avery about the encounter
or, crucially, to cross-examine Brown about House’s
intent with respect to that encounter. Nevertheless, this
court will only disturb the district court’s factual
findings when it is “left with the definite and firm conviction
that a mistake has been committed.” United States
v. Christ, 513 F.3d 762, 775 (7th Cir. 2008). While this
may not have been the strongest possible case for a sentencing
enhancement, this court will not reverse the
district court on clear error review merely because it may
disagree with its decision. There is evidence from the
sentencing hearing that Brown approached Avery at the
behest of the defendant and asked him not to testify; and
while there may not have been an attempt to intimidate
Avery (nobody, at this point, argues that there was) there
was an attempt to unlawfully influence his testimony.
House presents no reason to question the accuracy of
Dunn’s testimony aside from the weaknesses inherent in
hearsay testimony. During a sentencing hearing, however,
the judge only needs to find that the evidence is reliable;
in this case, the district court found Agent Dunn’s testimony
to be credible and used her report to conclude
that House attempted to persuade Avery not to testify at
trial. There was, consequently, an adequate factual basis
for the sentencing enhancement.
B. Whether the case should be remanded to the district
court to apply its discretion under Kimbrough v.
United States to consider the 100:1 disparity in the
sentencing guidelines for crack and powder cocaine.
House’s next contention is that the district court did not
exercise the discretion that the Supreme Court granted to
district courts in sentencing proceedings to adjust the
calculation of a defendant’s sentencing range in Kimbrough
v. United States, 128 S. Ct. 558 (2007). The Court’s decision
in Kimbrough acknowledged the sentencing guidelines
contained a disparity between sentences of persons
charged with trafficking powder cocaine and those
charged with trafficking crack cocaine: “a trafficker
dealing in crack cocaine is subject to the same sentence as
one dealing in 100 times more powder cocaine.” Id. at 564.
Concluding that district courts did not need to reflect
this disparity in their sentencing decisions, the Court
held that “it would not be an abuse of discretion for a
district court to conclude when sentencing a particular
defendant that the crack/powder disparity yields a sentence
‘greater than necessary’ to achieve § 3553(a)’s
purposes, even in a mine-run case.” Id. at 575.
In evaluating the district court’s sentencing decision,
this court reviews “both findings of fact and applications
of the Sentencing Guidelines for clear error.” United States
v. Stitman, 472 F.3d 983, 986 (7th Cir. 2007). When a defendant
alleges that the district court made a procedural
error in sentencing, such as a legal error in interpreting
the guidelines or a failure to appreciate the advisory
nature of sentencing guidelines, this court reviews the
sentencing procedure de novo. Id.
The district court held the sentencing hearing in this
case shortly after the Supreme Court handed down its
decision in Kimbrough. Before imposing sentence, the
district court acknowledged its authority to adjust
House’s sentencing range because of his conviction for
trafficking crack cocaine. “And I’m sure you’re both
aware of the Supreme Court case law that came down in
the last two days . . . which enables me to take into
account all the different characteristics under 3553 to
move lower than these crack guidelines, if necessary.” Sen.
Tr. at 34. House argues, however, that this statement from
the district court was inadequate because it did not consider
the 100:1 disparity between the guideline sentences
for crack cocaine and powder cocaine offenses, and
thus was not a proper application of the core holding of
Kimbrough.
In support of his argument that this court should remand
the case to the district court for resentencing, House cites
several cases that this circuit remanded to the district court
for resentencing because Kimbrough might have affected the
district court’s sentencing decision. See United States v.
Adefumi, 279 Fed. Appx. 401 (7th Cir. 2008); United States v.
Padilla, 520 F.3d 706 (7th Cir. 2008); United States v. Smith,
276 Fed. Appx. 497 (7th Cir. 2008). The sentencing proceedings
in those cases, however, occurred before the Supreme
Court issued its opinion in Kimbrough, and the district
court was thus unaware of its new discretion. This circuit
established a procedure for remanding sentencing decisions
in light of Kimbrough in United States v. Taylor, 520
F.3d 746 (7th Cir. 2008). In Taylor, this court determined
that a limited remand would be appropriate where an
appeal from a sentencing decision was pending when
Kimbrough was decided and the district court did not
have an opportunity to consider its holding. Id. at 747.
Taylor also holds, however, that remand is not appropriate
where the district court was aware of its power
under Kimbrough but simply chose not to apply it. Id.
at 747-48.
The government argues that the district court’s statement
during the sentencing hearing indicated an awareness
of its authority under Kimbrough to consider a lower
sentencing range, but that the district court declined to
exercise this discretion when imposing the sentence. This
is correct. While the district court could have gone into
more detail about Kimbrough, the statement from the
record shows that it was aware of its discretion in light of
that decision. The district court followed the correct
sentencing procedure, and thus House’s sentence will
be overturned only if the decision not to adjust the sentencing
range downward was clear error. Because the
sentence that the district court imposed is ultimately
within the guidelines range and the court acknowledged
its discretion to impose a lower sentence if it chose to do
so, it was not clear error for the district court to decline
to exercise that discretion.
C. Whether House’s 188 month sentence is unreasonable
in light of the § 3553(a) sentencing factors.
House finally argues that his 188-month sentence is
unreasonable in light of the factors contained in § 3553(a)
of the sentencing guidelines. A properly calculated, within16
guidelines sentence is entitled to a presumption of reasonableness,
and this court reviews such a sentence
deferentially. United States v. Hurn, 496 F.3d 784, 790 (7th
Cir. 2007) (citing Rita v. United States, 127 S. Ct. 2456, 2462
(2007)). Section 3553(a) requires a district court, before imposing
a sentence, to consider among other factors the
nature and circumstances of the offense and the criminal
history of the defendant, the need for deterrence, public
protection, and rehabilitation of the defendant, and the
need to avoid unwarranted sentence disparities.
House cites four factors that justified a sentence below
the guidelines range: his non-existent criminal record, his
low risk of recidivism, his low need for deterrence, and
his lack of danger to the community. With respect to the
first of those four factors, the nature of the offense,
House argues that the district court considered only the
impact that drug dealing as a whole had on his neighborhood,
rather than the circumstances of his specific offense.
House also argues that he has positive personal
characteristics, such as his lack of a criminal history, that
the district court did not adequately consider. He also
cites the fact that he is a young father as a reason why
he does not need a long sentence to be deterred from a
life of crime, and as a reason why he does not present a
danger to his community.
It appears from the record that the district court considered
the factors in § 3553(a) before imposing sentence.
The court noted four letters written on House’s behalf
by family members and friends. Sen. Tr. 30-31. Before
imposing a 188-month sentence (the bottom of the ap
plicable guideline range) the district court also considered
House’s culpability in both of the drug dealing
transactions. While the court did discuss the impact of
drug trafficking as a whole on House’s community, it
related that discussion back to the nature and circumstances
of House’s convictions. “[I]t’s not just your role in
brokering a deal or moving one drug to another. It is your
role in setting that image that permeates your community
and really robs the youth of your community of any
role models to move forward and to break out of the chains
of this poverty, this violence, and this drug dealing.” Sen.
Tr. at 47. Further, the government’s evidence at trial
indicated that House was highly culpable for the two
offenses. “[W]hat [the evidence] presented was not a
confused somebody who just happened to stumble
upon drug dealing. It’s somebody who’s been a part of
this fabric that’s ruining this community and keeping
young men down in that community . . . .” Sen. Tr. at 48-49.
The district court likewise noted the possibility of
House’s rehabilitation in prison, his lack of criminal
history, and the fact that he was not a threat to re-offend.
See Sen. Tr. at 49. The district court thus considered the
factors that House now stresses on appeal. They did not
lead the district court to impose a sentence below the
guidelines range, as he had hoped. Nevertheless, while
House may argue that a lighter sentence may have
been justified, all things considered, the district court
did not err by sentencing House to a term at the low end
of the applicable guidelines range.
III. Conclusion
For the foregoing reasons, the conviction and sentence
of the district court are AFFIRMED.
Chicago Criminal Lawyer - Robert J Callahan
House of two counts of distribution of crack cocaine, and
the district court sentenced him to 188 months in prison,
followed by five years of supervised release. On appeal,
House raises three challenges to his sentence. First, he
contends that the district court improperly made a twopoint
adjustment to his base offense level under the
United States Sentencing Guidelines for obstruction of
justice. Second, he contends that the district court failed
to consider the disparity in sentences between crack
cocaine and powder cocaine under the sentencing guidelines.
Third, he contends that the district court did not
correctly apply the sentencing factors in U.S.S.G. § 3553(a).
For the following reasons, we affirm the conviction
and sentence of the district court.
I. Background
Adonis House was arrested and prosecuted as part of
a broader federal narcotics investigation in Chicago.
House’s involvement began in February 2005, when he
met with Sylvester Avery, a man who claimed that he
was looking to get into the cocaine trafficking business, at
a barber shop on Madison Street on the west side of
Chicago. Avery asked House if he knew of anyone who
could sell him narcotics, and House apparently told
Avery that he would try to find out who could supply
him. What House did not know at this time was that Avery
was working as a government informant pursuant to a
cooperation agreement. Later, in March 2005, Avery
introduced House to John D. Morton, supposedly a highlevel
dealer from Madison, Wisconsin, but in fact the
undercover identity of Mark Horton, a Supervisory
Special Agent with the FBI. During the course of the
next month, Avery and House talked numerous times
over the phone and met at the barber shop; eventually,
they agreed that House would sell Avery and Horton
four-and-one-half ounces of crack cocaine for $2600 to
$2700.
On April 5, 2005, Horton and Avery caught up with
House at the barbershop for a prearranged meeting.
Horton gave House $2700 in cash to purchase four-and-ahalf
ounces of crack cocaine. House and Avery then
drove to another location where they met with LaPriest
Gary, who was supplying the crack cocaine. Gary, Avery,
and House then went to a third location, where Gary
obtained about four ounces of crack, which he exchanged
for $2350 from House and Avery. Gary then drove
Avery and House back to the barbershop, where House
gave Avery a white bag filled with crack cocaine. Avery
waited for Horton to leave the barbershop, and the two
then drove away in Horton’s undercover car (the crack
cocaine was seized by the FBI at that time). Later, House
met Avery and gave him $200 for setting up the deal.
On April 11, 2005, Avery called House about setting
up a second drug deal. House told Avery that he had
another source for crack cocaine, but that the price
would be higher. On May 20, 2005, Avery, Horton, and
House met at the barbershop on Madison Street and
discussed buying four-and-a-half ounces of crack. House
told Avery and Horton that his source had that much
available for purchase, and that he would only need to
drive over to the supplier in order to get it. Horton then
gave Avery $2900 for the purchase. When House told
Avery and Horton he would need to take the money with
him, Avery decided to go to the supplier’s location as well.
House, Avery, and a third man, Frederick Young, then
drove away from the barbershop. Avery gave House the
$2900, and while Avery apparently did not witness an
exchange between House and his supplier, House and
Avery returned to the barbershop with crack cocaine,
which was then turned over to Horton. Later that same
day, House met Avery and gave him $250 for setting up
the second deal.
Horton and House apparently spoke twice more, and
they discussed the possibility of House supplying drugs
for Horton’s operation. According to trial testimony,
House speculated on the price for as much as nine ounces
or a quarter kilogram of crack at a time. However, those
discussions and agreements were not part of the
charges brought in this case.
On August 31, 2006, a grand jury in the Northern
District of Illinois returned an indictment charging
House with two counts of knowingly and intentionally
distributing cocaine in the form of crack cocaine in violation
of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. A jury trial
in House’s case began on June 5, 2007, and on June 7, the
jury found House guilty on both counts. Sentencing in
the case was originally scheduled for August 29, 2007,
but was continued twice, first until September 24, and
then for November 13. Immediately before the November
13 sentencing hearing, however, House moved to
continue sentencing because he was also charged in a
separate indictment before Judge Matthew Kennelly in
the Northern District of Illinois, and House wanted the
district court in this case to consider the pending charges
as part of his relevant conduct for sentencing. The district
court granted House’s motion, and held a sentencing
hearing on December 13, 2007. The jury verdict in House’s
trial included a special jury form to include a determination
of drug amounts, and based on the amounts in the
present case as well as the separate indictment, the
district court calculated a base offense level of 34. The
district court then imposed a two-level enhancement
for obstruction of justice under U.S.S.G. § 3C1.1, finding
that House had improperly attempted to influence
Avery’s testimony in the case. Working from the new base
offense level of 36, the district court sentenced House to
188 months in prison, followed by five years of supervised
release. This appeal followed.
II. Discussion
House raises three issues in his appeal. First, he claims
that the district court should not have imposed a two-level
sentencing enhancement for obstruction of justice, as
House only intended to confirm that Avery would testify
at trial, rather than to obstruct justice by persuading Avery
not to appear. Second, he seeks a remand so that the
district court can consider the disparity between sentences
for crack cocaine and powder cocaine offenses in
the sentencing guidelines. Third, House argues that his
sentence was unreasonable, given that he has no criminal
history, is not a threat to re-offend, and does not present
a danger to his community.
A. Whether the district court properly applied a twolevel
enhancement for obstruction of justice under
U.S.S.G. § 3C1.1.
House first argues that the district court improperly
granted a two-level enhancement to his base offense level
for obstruction of justice in violation of U.S.S.G. § 3C1.1.
That portion of the sentencing guidelines instructs
judges that:
If (A) the defendant willfully obstructed or impeded,
or attempted to obstruct or impede, the administration
of justice with respect to the investigation, prosecution,
or sentencing of the instant offense of conviction,
and (B) the obstructive conduct related to (i) the
defendant’s offense of conviction and any relevant
conduct; or (ii) a closely related offense, increase
the offense level by 2 levels.
U.S.S.G. § 3C1.1. The section requires, first, a finding that
the defendant endeavored to obstruct or impede the
administration of justice, and that the obstructive
conduct related to the offense of conviction or a closely
related offense. We review de novo whether the
district court made adequate findings to support an
enhancement for obstruction of justice, while we review
the underlying factual findings for clear error. United
States v. Carrera, 259 F.3d 818, 831 (7th Cir. 2001); see
also United States v. Gage, 183 F.3d 711, 715 (7th Cir. 1999).
The district court first learned of the alleged obstructive
conduct in this case on the first day of trial, when the
government informed the court that House had contacted
Avery through Mary Brown, a friend of House’s
from his neighborhood. A few months before House’s
trial, he had learned through discovery documents that
Avery was a cooperating witness with the government
and was supposed to testify against him at trial. Sometime
after that, Brown and her brothers encountered Avery at
the scene of a traffic accident on Western Avenue in
The parties argue inconclusively about the plausibility of this
second explanation for the confrontation. The government
argues that Avery’s identity was firmly established in discovery
documents and that this confrontation occurred shortly
before trial when it was clear that Avery would testify. House
argues that the time of the confrontation has never been established
and so the confrontation occurred at a point when House
was still identifying the government’s primary witnesses.
(continued...)
Chicago. According to the testimony of Anita Dunn, an
FBI agent who investigated the incident after Avery
reported it to the government in this case, Brown approached
Avery at the scene of the accident, asked if he
was planning on testifying against House, and asked him
not to testify. Dunn also claims that she spoke to Brown,
who gave a similar account of events: “She said she
confronted [Avery]. She asked him about testifying and, I
believe, not to testify against Mr. House.” Sen. Tr. at 19.
According to Dunn, this was all done at House’s instruction:
Brown approached Avery because “Mr. House
asked her to locate Mr. Avery and ask him not to testify
against him.” Id.
House disputes this version of events, claiming that he
only asked Brown to speak to Avery about whether he
would testify because Brown herself was skeptical
about Avery’s cooperation, and House believed that
Brown could tell from Avery’s reaction to her question
whether or not he really intended to appear in court. He
also claims that his intent was only to confirm that Avery
would in fact be testifying at his trial.1 On appeal, he first
Regardless of the timing of the confrontation, we conclude
that the district court had adequate evidence at the sentencing
hearing to support a sentence enhancement.
questions the reliability of the government’s evidence
supporting the enhancement, as it was made on the
basis of hearsay testimony from Dunn and neither Avery
nor Brown appeared at the sentencing hearing to
explain what happened. He next argues that the testimony
on its own is insufficient to establish that he had
the intent to obstruct justice. In support of this argument,
House points out that Dunn stated during her
direct examination that Brown did not “believe that
[House] wanted her to intimidate Mr. Avery,” Sen. Tr. at
20-21, and during her cross-examination that Brown did
not say that House asked her to speak with Avery in
order to intimidate him.
House’s first objection is misplaced. While it is true that
Dunn’s recollection of her interviews with Brown and
Avery was hearsay testimony, sentencing courts are
allowed to consider hearsay testimony. United States v.
Roche, 415 F.3d 614, 618 (7th Cir. 2005) (citing Williams v.
New York, 337 U.S. 241 (1949)). Hearsay testimony is
proper as long as it has “sufficient indicia of reliability to
support its probable accuracy.” United States v. Otero, 495
F.3d 393, 402 n.5 (7th Cir. 2007). House is left to argue
that while the testimony was properly admissible, it
was presumptively unreliable. He claims that this circuit
has previously held that “a very strong presumption of
2 This line of cases that House cites is not on point, however.
Jones, which cited United States v. Ochoa, 229 F.3d 631, 637 (7th
Cir. 2000), involved a co-conspirator’s hearsay statement
admitted at trial, and which thus implicated the Confrontation
Clause. Jones, 371 F.3d at 369. Ochoa involved the same set of
facts. Ochoa, 229 F.3d at 637. The determination of presumptive
unreliability is premised on the right of confrontation and upon
the fact that it is a co-conspirator’s statement, given in a context
in which the conspirator would be tempted to shift blame.
However, this case is different both because Brown’s testimony
was not a classic co-conspirator’s statement, and because the
relevant standard for sentencing proceedings is not the Confrontation
Clause, but rather due process. We thus take
House’s point that we should question the reliability of the
statement, without attaching any presumptions of unreliability.
unreliability attaches to statements that are: (1) given
with government involvement; (2) describe past events;
(3) have not been subjected to adversarial testing.” United
States v. Jones, 371 F.3d 363, 369 (7th Cir. 2004).2 Dunn’s
interviews with Avery and Brown, House argues, meet
all three characteristics and thus are not sufficiently
reliable to form a basis for the sentencing enhancement.
House next argues that even if this court finds that
Dunn’s testimony was sufficiently reliable, it was insufficient
to establish his intent to obstruct justice. This
circuit’s opinions on the intent requirements of § 3C1.1
“make clear . . . that the burden is on the Government to
establish that the defendant acted with specific intent to
obstruct justice.” United States v. Dale, 498 F.3d 604, 609 n.4
(7th Cir. 2007). Making any sort of statement to a wit
ness is not enough; rather, a defendant must make the
statement intending for it to affect whether or not the
witness will appear at trial. At the same time, this
circuit’s cases hold that a mere attempt to influence a
witness is enough, regardless of whether it succeeds.
United States v. Wright, 37 F.3d 358, 362 (7th Cir. 1994).
Moreover, the court will use an objective standard to
determine whether a given action is an attempt to
obstruct justice, rather than evaluating the subjective
intent of the defendant. See United States v. Chatmon, 324
F.3d 889, 893 (7th Cir. 2003).
House’s best argument in this respect is that Dunn’s
testimony indicated at two points that Brown did not
approach Avery with the intent to intimidate him, and
that Brown did not believe that House wanted her to
intimidate Avery. (He claims instead that he was
simply determining whether he was going to testify, and
that he was only trying to give his attorney accurate
information about the witnesses in the case.) The sentencing
guideline does not make attempts to “intimidate”
the basis for an enhancement, however, but rather
attempts to “obstruct or impede.” This is because the
obstruction of justice enhancement is designed “not just to
prevent miscarriages of justice but also to reduce the
burden on the justice system.” United States v. Buckley, 192
F.3d 708, 710 (7th Cir. 1999). The enhancement thus
covers not only threats or intimidation but also “otherwise
unlawfully influencing” a witness. United States v. Johnson,
46 F.3d 636, 638 (7th Cir. 1995). This circuit has previously
held that “unlawfully influencing” a witness means
intentionally engaging in conduct “having a natural
tendency to suppress or interfere with the discovery of
truth.” Wright, 37 F.3d at 362.
Thus, House could be liable for an obstruction of justice
enhancement merely because Brown asked Avery not to
testify against House, provided the evidence established
that House intended to have Brown ask Avery not
to appear. The bare attempt to persuade a witness not
to offer otherwise truthful testimony would indeed be an
attempt to unlawfully influence the outcome of the proceeding.
The government emphasizes this aspect of
Dunn’s testimony in their briefs to this court. The district
court, in imposing the enhancement, likewise found that
“just the attempt to influence or the attempt to persuade
another to act in a certain way” was sufficient. Sen. Tr.
at 26.
This court’s review of the sentencing enhancement
thus boils down to the question of whether House intended
for Brown to ask Avery not to testify, which itself boils
down to the ancillary question of whether the district
court had sufficiently reliable evidence of House’s intent
to justify imposing the sentencing enhancement. This is
a factual question that this court reviews only for clear
error. We note that the evidence of House’s intent was
rather thin. According to Dunn’s testimony, when
House spoke to Brown about Avery he asked her to ask
Avery not to testify. Or at the risk of offering a more
confusing formulation, Dunn said she believed that
House asked Brown to ask that. There is thus only hearsay
testimony from a single witness, and not the strongest
hearsay testimony, on the crucial question of House’s
intent. Nor was Dunn’s testimony, which the district
court decided to credit, the strongest case that the government
could have put on, given that it was hearsay
testimony taken without giving the defense a chance to
cross-examine either Brown or Avery about the encounter
or, crucially, to cross-examine Brown about House’s
intent with respect to that encounter. Nevertheless, this
court will only disturb the district court’s factual
findings when it is “left with the definite and firm conviction
that a mistake has been committed.” United States
v. Christ, 513 F.3d 762, 775 (7th Cir. 2008). While this
may not have been the strongest possible case for a sentencing
enhancement, this court will not reverse the
district court on clear error review merely because it may
disagree with its decision. There is evidence from the
sentencing hearing that Brown approached Avery at the
behest of the defendant and asked him not to testify; and
while there may not have been an attempt to intimidate
Avery (nobody, at this point, argues that there was) there
was an attempt to unlawfully influence his testimony.
House presents no reason to question the accuracy of
Dunn’s testimony aside from the weaknesses inherent in
hearsay testimony. During a sentencing hearing, however,
the judge only needs to find that the evidence is reliable;
in this case, the district court found Agent Dunn’s testimony
to be credible and used her report to conclude
that House attempted to persuade Avery not to testify at
trial. There was, consequently, an adequate factual basis
for the sentencing enhancement.
B. Whether the case should be remanded to the district
court to apply its discretion under Kimbrough v.
United States to consider the 100:1 disparity in the
sentencing guidelines for crack and powder cocaine.
House’s next contention is that the district court did not
exercise the discretion that the Supreme Court granted to
district courts in sentencing proceedings to adjust the
calculation of a defendant’s sentencing range in Kimbrough
v. United States, 128 S. Ct. 558 (2007). The Court’s decision
in Kimbrough acknowledged the sentencing guidelines
contained a disparity between sentences of persons
charged with trafficking powder cocaine and those
charged with trafficking crack cocaine: “a trafficker
dealing in crack cocaine is subject to the same sentence as
one dealing in 100 times more powder cocaine.” Id. at 564.
Concluding that district courts did not need to reflect
this disparity in their sentencing decisions, the Court
held that “it would not be an abuse of discretion for a
district court to conclude when sentencing a particular
defendant that the crack/powder disparity yields a sentence
‘greater than necessary’ to achieve § 3553(a)’s
purposes, even in a mine-run case.” Id. at 575.
In evaluating the district court’s sentencing decision,
this court reviews “both findings of fact and applications
of the Sentencing Guidelines for clear error.” United States
v. Stitman, 472 F.3d 983, 986 (7th Cir. 2007). When a defendant
alleges that the district court made a procedural
error in sentencing, such as a legal error in interpreting
the guidelines or a failure to appreciate the advisory
nature of sentencing guidelines, this court reviews the
sentencing procedure de novo. Id.
The district court held the sentencing hearing in this
case shortly after the Supreme Court handed down its
decision in Kimbrough. Before imposing sentence, the
district court acknowledged its authority to adjust
House’s sentencing range because of his conviction for
trafficking crack cocaine. “And I’m sure you’re both
aware of the Supreme Court case law that came down in
the last two days . . . which enables me to take into
account all the different characteristics under 3553 to
move lower than these crack guidelines, if necessary.” Sen.
Tr. at 34. House argues, however, that this statement from
the district court was inadequate because it did not consider
the 100:1 disparity between the guideline sentences
for crack cocaine and powder cocaine offenses, and
thus was not a proper application of the core holding of
Kimbrough.
In support of his argument that this court should remand
the case to the district court for resentencing, House cites
several cases that this circuit remanded to the district court
for resentencing because Kimbrough might have affected the
district court’s sentencing decision. See United States v.
Adefumi, 279 Fed. Appx. 401 (7th Cir. 2008); United States v.
Padilla, 520 F.3d 706 (7th Cir. 2008); United States v. Smith,
276 Fed. Appx. 497 (7th Cir. 2008). The sentencing proceedings
in those cases, however, occurred before the Supreme
Court issued its opinion in Kimbrough, and the district
court was thus unaware of its new discretion. This circuit
established a procedure for remanding sentencing decisions
in light of Kimbrough in United States v. Taylor, 520
F.3d 746 (7th Cir. 2008). In Taylor, this court determined
that a limited remand would be appropriate where an
appeal from a sentencing decision was pending when
Kimbrough was decided and the district court did not
have an opportunity to consider its holding. Id. at 747.
Taylor also holds, however, that remand is not appropriate
where the district court was aware of its power
under Kimbrough but simply chose not to apply it. Id.
at 747-48.
The government argues that the district court’s statement
during the sentencing hearing indicated an awareness
of its authority under Kimbrough to consider a lower
sentencing range, but that the district court declined to
exercise this discretion when imposing the sentence. This
is correct. While the district court could have gone into
more detail about Kimbrough, the statement from the
record shows that it was aware of its discretion in light of
that decision. The district court followed the correct
sentencing procedure, and thus House’s sentence will
be overturned only if the decision not to adjust the sentencing
range downward was clear error. Because the
sentence that the district court imposed is ultimately
within the guidelines range and the court acknowledged
its discretion to impose a lower sentence if it chose to do
so, it was not clear error for the district court to decline
to exercise that discretion.
C. Whether House’s 188 month sentence is unreasonable
in light of the § 3553(a) sentencing factors.
House finally argues that his 188-month sentence is
unreasonable in light of the factors contained in § 3553(a)
of the sentencing guidelines. A properly calculated, within16
guidelines sentence is entitled to a presumption of reasonableness,
and this court reviews such a sentence
deferentially. United States v. Hurn, 496 F.3d 784, 790 (7th
Cir. 2007) (citing Rita v. United States, 127 S. Ct. 2456, 2462
(2007)). Section 3553(a) requires a district court, before imposing
a sentence, to consider among other factors the
nature and circumstances of the offense and the criminal
history of the defendant, the need for deterrence, public
protection, and rehabilitation of the defendant, and the
need to avoid unwarranted sentence disparities.
House cites four factors that justified a sentence below
the guidelines range: his non-existent criminal record, his
low risk of recidivism, his low need for deterrence, and
his lack of danger to the community. With respect to the
first of those four factors, the nature of the offense,
House argues that the district court considered only the
impact that drug dealing as a whole had on his neighborhood,
rather than the circumstances of his specific offense.
House also argues that he has positive personal
characteristics, such as his lack of a criminal history, that
the district court did not adequately consider. He also
cites the fact that he is a young father as a reason why
he does not need a long sentence to be deterred from a
life of crime, and as a reason why he does not present a
danger to his community.
It appears from the record that the district court considered
the factors in § 3553(a) before imposing sentence.
The court noted four letters written on House’s behalf
by family members and friends. Sen. Tr. 30-31. Before
imposing a 188-month sentence (the bottom of the ap
plicable guideline range) the district court also considered
House’s culpability in both of the drug dealing
transactions. While the court did discuss the impact of
drug trafficking as a whole on House’s community, it
related that discussion back to the nature and circumstances
of House’s convictions. “[I]t’s not just your role in
brokering a deal or moving one drug to another. It is your
role in setting that image that permeates your community
and really robs the youth of your community of any
role models to move forward and to break out of the chains
of this poverty, this violence, and this drug dealing.” Sen.
Tr. at 47. Further, the government’s evidence at trial
indicated that House was highly culpable for the two
offenses. “[W]hat [the evidence] presented was not a
confused somebody who just happened to stumble
upon drug dealing. It’s somebody who’s been a part of
this fabric that’s ruining this community and keeping
young men down in that community . . . .” Sen. Tr. at 48-49.
The district court likewise noted the possibility of
House’s rehabilitation in prison, his lack of criminal
history, and the fact that he was not a threat to re-offend.
See Sen. Tr. at 49. The district court thus considered the
factors that House now stresses on appeal. They did not
lead the district court to impose a sentence below the
guidelines range, as he had hoped. Nevertheless, while
House may argue that a lighter sentence may have
been justified, all things considered, the district court
did not err by sentencing House to a term at the low end
of the applicable guidelines range.
III. Conclusion
For the foregoing reasons, the conviction and sentence
of the district court are AFFIRMED.
Chicago Criminal Lawyer - Robert J Callahan
U.S. vs. Derek Cunningham & Norman Thomas
This case presents the consolidated
appeals of Derek Cunningham and Norman
Thomas. Their appeals arise from the same prosecution
and raise the same purely legal issue: whether a district
court, in reducing a defendant’s sentence pursuant to
18 U.S.C. § 3582(c)(2), has authority under United States
v. Booker, 543 U.S. 220 (2005) to reduce a defendant’s
sentence beyond the retroactive Guidelines amendment
range. For the reasons explained below, we hold that a
district court does not have authority to do so and therefore
affirm the judgment of the district court.
I. Background
Because this appeal presents a purely legal question, the
facts of defendants’ convictions need not be explored
at length. Suffice to say, in the original prosecution,
co-defendants Thomas and Cunningham both pled guilty
to conspiring to distribute crack cocaine in violation of
21 U.S.C. § 846. On January 31, 2006, the district court
sentenced Thomas to 108 months in prison and
Cunningham to 87 months in prison. Both sentences were
at the low end of the advisory Sentencing Guidelines
range applicable to the respective defendants.
In June 2008, the defendants filed section 3582(c)(2)
motions to reduce their sentences based on the retroactive
amendments to the crack cocaine Guidelines. Based on
the change in the crack quantities and corresponding
offense levels, each of the defendants’ base offense
levels were reduced by two levels. The defendants thus
requested that their sentences be reduced two levels in
light of the amendment. However, they also asserted
that the district court had the authority to consider granting
them further sentence reductions, resulting in terms
of imprisonment below their respective amended Guideline
ranges. With regard to this second point, defendants
argued that the district court had authority to reduce
their sentences below the amended Guideline ranges
because Booker made the Sentencing Guidelines advisory.
On July 17, 2008, the district court reduced the defendants’
sentences but declined to decrease their sentences
below the two level reduction authorized by the retroactive
amendment. The district court held that Booker
was not implicated because “Booker concerns constitutional
limitations on increasing a sentence beyond what is
considered the prescribed maximum without a jury
finding, not, as in this case, to [sic] decreasing a sentence.
Section 3582(c)(2) concerns only sentence reductions
and thus does not implicate Booker or the constitutional
limitations upon which that decision was premised.”
Defendants have appealed.
II. Discussion
We review the district court’s determination of questions
of law de novo. United States v. Ryerson, 545 F.3d 483, 487
(7th Cir. 2008).
Title 18 U.S.C. § 3582(c)(2) provides that
[I]n the case of a defendant who has been sentenced to
a term of imprisonment based on a sentencing range
that has subsequently been lowered by the Sentencing
Commission pursuant to 28 U.S.C. 944(o) . . . the
court may reduce the term of imprisonment, after
considering the factors set forth in § 3553(a) to the
extent they are applicable, if such a reduction is consistent
with applicable policy statements issued by
the Sentencing Commission.
The policy statements relevant to this case are found
in Sentencing Guidelines sections 1B1.10(a)(3) and
1 Section 1B1.10(b)(2)(B) provides an exception for defendants
who were originally sentenced to below-Guidelines terms
of imprisonment. For such defendants, “a reduction
comparably less than the amended guideline range . . . may be
appropriate.”
1B1.10(b)(2)(A). Section 1B1.10(a)(3) states that “proceedings
under 18 U.S.C. § 3582(c)(2) and this policy
statement do not constitute a full resentencing of the
defendant.” Section 1B1.10(b)(2)(A) provides that “the
court shall not reduce the defendant’s term of imprisonment
under 18 U.S.C. § 3582(c)(2) and this policy statement
to a term that is less than the minimum of the
amended guideline range determined under subdivision
(1) of this subsection.”1
The basic question in this case is whether these policy
statements regarding section 3582(c)(2) resentencings—
first, that section 3582(c)(2) reductions do not constitute
full resentencings, and second, that a court shall nor
reduce a defendant’s imprisonment to less than the
minimum of the amended guideline range—conflict with
Booker’s general rule that the Sentencing Guidelines are
advisory. That is, whether or not district courts have
the authority, in making section 3582(c)(2) sentence
modifications, to treat the amended Guideline range as
advisory despite the Commission’s policy statements to
the contrary.
Defendants advance four arguments to support their
contention that a district court can reduce a defendant’s
sentence beyond the retroactive Guidelines amendment
range. First, they argue that Booker expressly rejected
the notion that the Guidelines are advisory in some
contexts but mandatory in others. In other words, they
disagree that the Guidelines could be advisory during
a defendant’s initial sentencing but mandatory in section
3582(c)(2) proceedings. Second, and to some degree
in the alternative, they argue that the Commission’s
policy statements themselves are advisory and thus are
not truly inconsistent with a below-guidelines sentence.
Third, they claim that if the Commission’s policy statements
were given full effect, they would strip courts
of their traditional sentencing discretion by constraining
their consideration of the section 3553(a) factors to the extent
they are applicable—consideration that is mandated
under the terms of section 3582(c)(2). Finally, they argue
that since the Supreme Court has held that district courts
have discretion to depart from the Guidelines even
based on disagreements with the Guideline’s policy
statements, see, e.g., Spears v. United States, __ U.S. __, __
S.Ct. __, 2009 WL 129044 *2 (Jan. 21, 2009), the enactment
of the Guideline amendment and its policy statements
cannot strip the sentencing courts of their discretion by
mandating the strict application of a two level departure.
The Ninth Circuit adopted many of the defendants’
views in United States v. Hicks, 472 F.3d 1167 (9th Cir. 2007).
In Hicks, the Ninth Circuit concluded that limiting the
extent of a section 3582(c)(2) reduction to that prescribed
by the Sentencing Commission amounts to a mandatory
application of the Sentencing Guidelines that is prohibited
by Booker. While the court conceded that Booker itself
does not create the authority for reopening sentencing
under section 3582(c)(2), the court reasoned that once
such proceedings were initiated, the district court has
discretion to impose a non-Guidelines sentence. Id. at
1171 (“Because a ‘mandatory system is no longer an
open choice,’ district courts are necessarily endowed
with the discretion to depart from the Guidelines when
issuing new sentences under § 3582(c)(2).”) (quoting Booker,
543 U.S. at 263). The Ninth Circuit also rejected the government’s
argument that because a § 3582(c)(2) proceeding
is not a “full resentencing,” but merely a modification
of the defendant’s sentence, Booker was inapplicable.
See id. at 1167 (“The dichotomy drawn by the government,
where full re-sentencings are performed under an
advisory system while ‘reduction proceeding’ or ‘modifications’
rely on a mandatory Guideline system, is false. . . .
Mandatory Guidelines no longer exist, in this context or
in any other.”).
The government urges us to decline to follow Hicks.
They present three main arguments in support of affirming
the district court. First, they note that 28 U.S.C. § 944(u)
gives the Sentencing Commission the exclusive power
to decide under “what circumstances and by what
amounts the sentences of prisoners . . . may be reduced.”
See 28 U.S.C. § 944(u); see also Braxton v. United States, 500
U.S. 344, 348 (1991) (emphasis omitted) (Congress has
given the Sentencing Commission “the unusual and
explicit power to decide whether and to what extent
its amendments . . . will be given retroactive effect.”)
(emphasis omitted) (citing 28 U.S.C. § 944(u)). Thus, they
reason, the Commission’s policy statements that implement
the Commission’s authorization of retroactive
sentence reductions are binding because they are an
exercise of that statutory authority. Second, they focus
on the Commission’s policy statement in U.S.S.G.
§ 1B1.10(a)(3) which states that under section 3582(c)(2),
defendants do not receive “a full resentencing.” They cite
several pre-Booker cases holding, as the Eleventh Circuit
did, for example, that section 3582(c)(2) “do[es] not
contemplate a full de novo resentencing” and “all original
sentencing determinations remain unchanged with the
sole exception of the guideline range that has been
amended since the original sentencing.” United States v.
Bravo, 203 F.3d 778, 781 (11th Cir. 2000) (emphasis in
original) (internal quotation and citation omitted). Finally,
the government argues that Booker does not apply to
section 3582(c)(2) proceedings because Booker does not
apply to sentence reductions.
Several recent circuit court decisions support the government’s
position. See United States v. Rhodes, 549 F.3d
833 (10th Cir. 2008); United States v. Dunphy, ___ F.3d ___,
2009 WL 19139 (4th Cir. Jan. 5, 2009); United States v.
Starks, ___ F.3d ___, 2009 WL 66115 (8th Cir. Jan. 13, 2009).
A number of district courts from around the country
have also come to this conclusion. See United States v.
Speights, 561 F. Supp. 2d 1277, 1281 (S.D. Ala. 2008) (citing
eleven other district court decisions from around the
country that have held that Booker has no impact on
section 3582(c)(2) reductions).
In our analysis, the best place to start is Booker itself. In
Booker’s substantive opinion, the Supreme Court held
that the federal sentencing system as it then existed,
under which the sentencing court rather than the jury
found facts that established the mandatory guideline
range, violated the Sixth Amendment as construed in
Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v.
Washington, 542 U.S. 296 (2004). The constitutional
problem that Booker addressed was that “any fact that
increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Booker, 543 U.S. at
231 (quoting Apprendi, 530 U.S. at 490). The Court found
that a sentencing system in which such judicial factfinding
was mandatory violated the Sixth Amendment.
However, as the district court recognized, in section
3582(c)(2) proceedings, a district court can only decrease a
defendant’s sentence. Thus, the constitutional defect
addressed by Booker is simply not implicated. Moreover,
a section 3582(c)(2) modification is discretionary, even
for a defendant whose Guideline range has been retroactively
lowered. See 18 U.S.C. § 3582(c)(2) (identifying
circumstances in which “the court may reduce the term
of imprisonment”) (emphasis added). Thus, to frame a
section 3582(c)(2) reduction as a mandatory undertaking
that triggers the Sixth Amendment or Booker is incorrect.
It is admittedly a bit harder to reconcile the language
of Booker’s remedial opinion, however. In its remedial
portion, Booker eliminated the constitutional defect identified
above by severing and excising the provisions of the
Guidelines that made them mandatory, along with any
statutory provisions that depended upon the Guidelines’
mandatory nature. Booker, 543 U.S. at 245-46. The
remedial majority determined that this was what
As an initial matter, 2 it bears noting that because section
3582(c)(2) did not cross-reference any provisions excised by
Booker, and because Booker did not directly address section
3582(c)(2) proceedings, section 3582(c)(2) remained intact.
Congress would have intended in light of the court’s
constitutional holding. Id. at 246. The Court went on to
state that it did “not see how it was possible” to leave the
Guidelines as binding in some cases but not in others. Id.
at 266. The Court explicitly rejected the government’s
proposal, which would have “impose[d] mandatory
Guidelines-type limits upon a judge’s ability to reduce
sentences, but it would not impose those limits upon a
judge’s ability to increase sentences.” Id. As the Court
stated, “[w]e do not believe that such ‘one way lever[s]’ are
compatible with Congress’ intent.”
Despite this broad language, we do not believe that
the Booker remedy renders the limits set by the Sentencing
Commission for section 3582(c)(2) proceedings
advisory.2 First, unlike a full sentencing or resentencing,
Congress clearly intended section 3582(c)(2) proceedings
to be a one way lever. Section 3582(c)(2) allows the
district court to leave a sentence alone or reduce it, but
it does not permit the district court to increase a sentence.
Second, and more generally, while Booker’s remedial
opinion stated that “we believe that Congress would not
have authorized a mandatory system in some cases and a
nonmandatory system in others” due to the possible
“administrative complexities” of such a system, it seems
to us that allowing (or requiring) district courts to essen10
3 This is a point we (and other courts) feel the Hicks court
failed to appreciate. See Rhodes, 549 F.3d at 840-41; Starks, 2009
WL 66115 at *3.
tially conduct a full resentencing upon a section 3582(c)(2)
motion would create more administrative complexity, not
less. See Dunphy, 2009 WL 19139 at *5. Finally, Booker’s
remedial opinion focused on Congressional intent. The
text of section 3582(c)(2) makes clear that Congress intended
section 3582(c)(2) modifications to comport with
the Commission’s policy statements, an impossibility if
we were to adopt the defendants’ position that Booker
rendered the Guidelines wholly advisory in the context
of sentence modifications (as distinguished from full
sentencing proceedings).
This last point bears elaboration, as it is the most important
basis for our decision today. Original sentencing
proceedings and sentence modification proceedings are
legally distinct from one another. Original proceedings
are governed by 18 U.S.C. § 3553 (a statute that was
partially excised in Booker), while sentence modification
proceedings are governed by 18 U.S.C. § 3582(c)(2).3
Contrary to the defendants’ contention, there is no “inherent
authority” for a district court to modify a sentence as
it pleases; indeed a district court’s discretion to modify
a sentence is an exception to the statute’s general rule
that “the court may not modify a term of imprisonment
once it has been imposed.” See 18 U.S.C. § 3582(c). When
Congress granted district courts discretion to modify
sentences in section 3582(c)(2), it explicitly incorporated
the Sentencing Commission’s policy statements limiting
reductions. See United States v. Walsh, 26 F.3d 75, 77 (8th
Cir. 1994) (“Congress has made the policy statements
set forth in Section 1B1.10 the applicable law for determining
whether a district court has the authority to
reduce a sentence in this situation.”). Thus, the Commission’s
policy statements should for all intents and
purposes be viewed as part of the statute. The policy
statements make clear that section 3582(c)(2) proceedings
are not full resentencings and may not result in a sentence
lower than the amended guideline range (unless the
defendant’s original sentence was lower than the guideline
range). See U.S.S.G. §§ 1B1.10(a)(3), 1B1.10(b)(2)(A)
This limitation of the district court’s power is not constitutionally
suspect. Having chosen to create a modification
mechanism, Booker does not require Congress to
grant the district courts unfettered discretion in
applying it. Indeed, mandatory minimum sentences—
which cabin the district courts’ discretion with regard to
section 3553(a) factors—have been upheld as constitutional.
See Harris v. United States, 536 U.S. 545, 565-68
(2002); United States v. Franklin, 547 F.3d 726, 735 (7th
Cir. 2008) (rejecting defendant’s argument that the
district court had authority to depart from the mandatory
minimum and consider the factors set forth in 18 U.S.C.
§ 3553 to impose a lesser sentence) (citing Chapman v.
United States, 500 U.S. 453 (1991)).
Section 3582(c)(2)’s direction that courts “shall consider
the factors in Section 3553(a) to the extent they are applicable”
does not undermine our conclusion. It is true
that one of the factors in section 3553(a) is the Guidelines
range, which Booker made advisory. However, section
3582(c)(2) states that a district court considers the
section 3553(a) factors in making a reduction “consistent
with the applicable policy statements issued by the Sentencing
Commission.” There need not be a conflict: the
statute can be viewed as requiring district courts to
consider the section 3553(a) factors in deciding whether
and to what extent to grant a sentence reduction, but only
within the limits of the applicable policy statements. See
Dunphy, 2009 WL 19139 at *7. (In this case, the limit is the
bottom of the amended Guideline range, as stated in
U.S.S.G. § 1B1.10.)
In concluding that district courts do not have authority
to grant sentence reductions pursuant to section 3582(c)(2)
below the amended Guideline range, we are mindful
of two final points. As the government points out, Booker
has not been made a basis for post-conviction collateral
review under 28 U.S.C. § 2255. It would thus be incongruous
if courts interpreted section 3582(c)(2), which provides
for more limited relief than section 2255, as triggering
a full Booker resentencing. On a related note,
Booker does not apply to the scores of defendants whose
sentences were final when Booker was handed down. It
would be unfair to allow a full Booker resentencing to
only a subset of defendants whose sentences were
lowered by a retroactive amendment.
III. Conclusion
We side with the majority of courts and hold that district
courts, in reducing a defendant’s sentence pursuant to
Nos. 08-2901 & 08-2931 13
18 U.S.C. § 3582(c)(2), do not have authority to reduce
the defendant’s sentence beyond the retroactive Guidelines
amendment range. We thus AFFIRM the judgment of
the district court.
Chicago Criminal Lawyer - Robert J Callahan
appeals of Derek Cunningham and Norman
Thomas. Their appeals arise from the same prosecution
and raise the same purely legal issue: whether a district
court, in reducing a defendant’s sentence pursuant to
18 U.S.C. § 3582(c)(2), has authority under United States
v. Booker, 543 U.S. 220 (2005) to reduce a defendant’s
sentence beyond the retroactive Guidelines amendment
range. For the reasons explained below, we hold that a
district court does not have authority to do so and therefore
affirm the judgment of the district court.
I. Background
Because this appeal presents a purely legal question, the
facts of defendants’ convictions need not be explored
at length. Suffice to say, in the original prosecution,
co-defendants Thomas and Cunningham both pled guilty
to conspiring to distribute crack cocaine in violation of
21 U.S.C. § 846. On January 31, 2006, the district court
sentenced Thomas to 108 months in prison and
Cunningham to 87 months in prison. Both sentences were
at the low end of the advisory Sentencing Guidelines
range applicable to the respective defendants.
In June 2008, the defendants filed section 3582(c)(2)
motions to reduce their sentences based on the retroactive
amendments to the crack cocaine Guidelines. Based on
the change in the crack quantities and corresponding
offense levels, each of the defendants’ base offense
levels were reduced by two levels. The defendants thus
requested that their sentences be reduced two levels in
light of the amendment. However, they also asserted
that the district court had the authority to consider granting
them further sentence reductions, resulting in terms
of imprisonment below their respective amended Guideline
ranges. With regard to this second point, defendants
argued that the district court had authority to reduce
their sentences below the amended Guideline ranges
because Booker made the Sentencing Guidelines advisory.
On July 17, 2008, the district court reduced the defendants’
sentences but declined to decrease their sentences
below the two level reduction authorized by the retroactive
amendment. The district court held that Booker
was not implicated because “Booker concerns constitutional
limitations on increasing a sentence beyond what is
considered the prescribed maximum without a jury
finding, not, as in this case, to [sic] decreasing a sentence.
Section 3582(c)(2) concerns only sentence reductions
and thus does not implicate Booker or the constitutional
limitations upon which that decision was premised.”
Defendants have appealed.
II. Discussion
We review the district court’s determination of questions
of law de novo. United States v. Ryerson, 545 F.3d 483, 487
(7th Cir. 2008).
Title 18 U.S.C. § 3582(c)(2) provides that
[I]n the case of a defendant who has been sentenced to
a term of imprisonment based on a sentencing range
that has subsequently been lowered by the Sentencing
Commission pursuant to 28 U.S.C. 944(o) . . . the
court may reduce the term of imprisonment, after
considering the factors set forth in § 3553(a) to the
extent they are applicable, if such a reduction is consistent
with applicable policy statements issued by
the Sentencing Commission.
The policy statements relevant to this case are found
in Sentencing Guidelines sections 1B1.10(a)(3) and
1 Section 1B1.10(b)(2)(B) provides an exception for defendants
who were originally sentenced to below-Guidelines terms
of imprisonment. For such defendants, “a reduction
comparably less than the amended guideline range . . . may be
appropriate.”
1B1.10(b)(2)(A). Section 1B1.10(a)(3) states that “proceedings
under 18 U.S.C. § 3582(c)(2) and this policy
statement do not constitute a full resentencing of the
defendant.” Section 1B1.10(b)(2)(A) provides that “the
court shall not reduce the defendant’s term of imprisonment
under 18 U.S.C. § 3582(c)(2) and this policy statement
to a term that is less than the minimum of the
amended guideline range determined under subdivision
(1) of this subsection.”1
The basic question in this case is whether these policy
statements regarding section 3582(c)(2) resentencings—
first, that section 3582(c)(2) reductions do not constitute
full resentencings, and second, that a court shall nor
reduce a defendant’s imprisonment to less than the
minimum of the amended guideline range—conflict with
Booker’s general rule that the Sentencing Guidelines are
advisory. That is, whether or not district courts have
the authority, in making section 3582(c)(2) sentence
modifications, to treat the amended Guideline range as
advisory despite the Commission’s policy statements to
the contrary.
Defendants advance four arguments to support their
contention that a district court can reduce a defendant’s
sentence beyond the retroactive Guidelines amendment
range. First, they argue that Booker expressly rejected
the notion that the Guidelines are advisory in some
contexts but mandatory in others. In other words, they
disagree that the Guidelines could be advisory during
a defendant’s initial sentencing but mandatory in section
3582(c)(2) proceedings. Second, and to some degree
in the alternative, they argue that the Commission’s
policy statements themselves are advisory and thus are
not truly inconsistent with a below-guidelines sentence.
Third, they claim that if the Commission’s policy statements
were given full effect, they would strip courts
of their traditional sentencing discretion by constraining
their consideration of the section 3553(a) factors to the extent
they are applicable—consideration that is mandated
under the terms of section 3582(c)(2). Finally, they argue
that since the Supreme Court has held that district courts
have discretion to depart from the Guidelines even
based on disagreements with the Guideline’s policy
statements, see, e.g., Spears v. United States, __ U.S. __, __
S.Ct. __, 2009 WL 129044 *2 (Jan. 21, 2009), the enactment
of the Guideline amendment and its policy statements
cannot strip the sentencing courts of their discretion by
mandating the strict application of a two level departure.
The Ninth Circuit adopted many of the defendants’
views in United States v. Hicks, 472 F.3d 1167 (9th Cir. 2007).
In Hicks, the Ninth Circuit concluded that limiting the
extent of a section 3582(c)(2) reduction to that prescribed
by the Sentencing Commission amounts to a mandatory
application of the Sentencing Guidelines that is prohibited
by Booker. While the court conceded that Booker itself
does not create the authority for reopening sentencing
under section 3582(c)(2), the court reasoned that once
such proceedings were initiated, the district court has
discretion to impose a non-Guidelines sentence. Id. at
1171 (“Because a ‘mandatory system is no longer an
open choice,’ district courts are necessarily endowed
with the discretion to depart from the Guidelines when
issuing new sentences under § 3582(c)(2).”) (quoting Booker,
543 U.S. at 263). The Ninth Circuit also rejected the government’s
argument that because a § 3582(c)(2) proceeding
is not a “full resentencing,” but merely a modification
of the defendant’s sentence, Booker was inapplicable.
See id. at 1167 (“The dichotomy drawn by the government,
where full re-sentencings are performed under an
advisory system while ‘reduction proceeding’ or ‘modifications’
rely on a mandatory Guideline system, is false. . . .
Mandatory Guidelines no longer exist, in this context or
in any other.”).
The government urges us to decline to follow Hicks.
They present three main arguments in support of affirming
the district court. First, they note that 28 U.S.C. § 944(u)
gives the Sentencing Commission the exclusive power
to decide under “what circumstances and by what
amounts the sentences of prisoners . . . may be reduced.”
See 28 U.S.C. § 944(u); see also Braxton v. United States, 500
U.S. 344, 348 (1991) (emphasis omitted) (Congress has
given the Sentencing Commission “the unusual and
explicit power to decide whether and to what extent
its amendments . . . will be given retroactive effect.”)
(emphasis omitted) (citing 28 U.S.C. § 944(u)). Thus, they
reason, the Commission’s policy statements that implement
the Commission’s authorization of retroactive
sentence reductions are binding because they are an
exercise of that statutory authority. Second, they focus
on the Commission’s policy statement in U.S.S.G.
§ 1B1.10(a)(3) which states that under section 3582(c)(2),
defendants do not receive “a full resentencing.” They cite
several pre-Booker cases holding, as the Eleventh Circuit
did, for example, that section 3582(c)(2) “do[es] not
contemplate a full de novo resentencing” and “all original
sentencing determinations remain unchanged with the
sole exception of the guideline range that has been
amended since the original sentencing.” United States v.
Bravo, 203 F.3d 778, 781 (11th Cir. 2000) (emphasis in
original) (internal quotation and citation omitted). Finally,
the government argues that Booker does not apply to
section 3582(c)(2) proceedings because Booker does not
apply to sentence reductions.
Several recent circuit court decisions support the government’s
position. See United States v. Rhodes, 549 F.3d
833 (10th Cir. 2008); United States v. Dunphy, ___ F.3d ___,
2009 WL 19139 (4th Cir. Jan. 5, 2009); United States v.
Starks, ___ F.3d ___, 2009 WL 66115 (8th Cir. Jan. 13, 2009).
A number of district courts from around the country
have also come to this conclusion. See United States v.
Speights, 561 F. Supp. 2d 1277, 1281 (S.D. Ala. 2008) (citing
eleven other district court decisions from around the
country that have held that Booker has no impact on
section 3582(c)(2) reductions).
In our analysis, the best place to start is Booker itself. In
Booker’s substantive opinion, the Supreme Court held
that the federal sentencing system as it then existed,
under which the sentencing court rather than the jury
found facts that established the mandatory guideline
range, violated the Sixth Amendment as construed in
Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v.
Washington, 542 U.S. 296 (2004). The constitutional
problem that Booker addressed was that “any fact that
increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Booker, 543 U.S. at
231 (quoting Apprendi, 530 U.S. at 490). The Court found
that a sentencing system in which such judicial factfinding
was mandatory violated the Sixth Amendment.
However, as the district court recognized, in section
3582(c)(2) proceedings, a district court can only decrease a
defendant’s sentence. Thus, the constitutional defect
addressed by Booker is simply not implicated. Moreover,
a section 3582(c)(2) modification is discretionary, even
for a defendant whose Guideline range has been retroactively
lowered. See 18 U.S.C. § 3582(c)(2) (identifying
circumstances in which “the court may reduce the term
of imprisonment”) (emphasis added). Thus, to frame a
section 3582(c)(2) reduction as a mandatory undertaking
that triggers the Sixth Amendment or Booker is incorrect.
It is admittedly a bit harder to reconcile the language
of Booker’s remedial opinion, however. In its remedial
portion, Booker eliminated the constitutional defect identified
above by severing and excising the provisions of the
Guidelines that made them mandatory, along with any
statutory provisions that depended upon the Guidelines’
mandatory nature. Booker, 543 U.S. at 245-46. The
remedial majority determined that this was what
As an initial matter, 2 it bears noting that because section
3582(c)(2) did not cross-reference any provisions excised by
Booker, and because Booker did not directly address section
3582(c)(2) proceedings, section 3582(c)(2) remained intact.
Congress would have intended in light of the court’s
constitutional holding. Id. at 246. The Court went on to
state that it did “not see how it was possible” to leave the
Guidelines as binding in some cases but not in others. Id.
at 266. The Court explicitly rejected the government’s
proposal, which would have “impose[d] mandatory
Guidelines-type limits upon a judge’s ability to reduce
sentences, but it would not impose those limits upon a
judge’s ability to increase sentences.” Id. As the Court
stated, “[w]e do not believe that such ‘one way lever[s]’ are
compatible with Congress’ intent.”
Despite this broad language, we do not believe that
the Booker remedy renders the limits set by the Sentencing
Commission for section 3582(c)(2) proceedings
advisory.2 First, unlike a full sentencing or resentencing,
Congress clearly intended section 3582(c)(2) proceedings
to be a one way lever. Section 3582(c)(2) allows the
district court to leave a sentence alone or reduce it, but
it does not permit the district court to increase a sentence.
Second, and more generally, while Booker’s remedial
opinion stated that “we believe that Congress would not
have authorized a mandatory system in some cases and a
nonmandatory system in others” due to the possible
“administrative complexities” of such a system, it seems
to us that allowing (or requiring) district courts to essen10
3 This is a point we (and other courts) feel the Hicks court
failed to appreciate. See Rhodes, 549 F.3d at 840-41; Starks, 2009
WL 66115 at *3.
tially conduct a full resentencing upon a section 3582(c)(2)
motion would create more administrative complexity, not
less. See Dunphy, 2009 WL 19139 at *5. Finally, Booker’s
remedial opinion focused on Congressional intent. The
text of section 3582(c)(2) makes clear that Congress intended
section 3582(c)(2) modifications to comport with
the Commission’s policy statements, an impossibility if
we were to adopt the defendants’ position that Booker
rendered the Guidelines wholly advisory in the context
of sentence modifications (as distinguished from full
sentencing proceedings).
This last point bears elaboration, as it is the most important
basis for our decision today. Original sentencing
proceedings and sentence modification proceedings are
legally distinct from one another. Original proceedings
are governed by 18 U.S.C. § 3553 (a statute that was
partially excised in Booker), while sentence modification
proceedings are governed by 18 U.S.C. § 3582(c)(2).3
Contrary to the defendants’ contention, there is no “inherent
authority” for a district court to modify a sentence as
it pleases; indeed a district court’s discretion to modify
a sentence is an exception to the statute’s general rule
that “the court may not modify a term of imprisonment
once it has been imposed.” See 18 U.S.C. § 3582(c). When
Congress granted district courts discretion to modify
sentences in section 3582(c)(2), it explicitly incorporated
the Sentencing Commission’s policy statements limiting
reductions. See United States v. Walsh, 26 F.3d 75, 77 (8th
Cir. 1994) (“Congress has made the policy statements
set forth in Section 1B1.10 the applicable law for determining
whether a district court has the authority to
reduce a sentence in this situation.”). Thus, the Commission’s
policy statements should for all intents and
purposes be viewed as part of the statute. The policy
statements make clear that section 3582(c)(2) proceedings
are not full resentencings and may not result in a sentence
lower than the amended guideline range (unless the
defendant’s original sentence was lower than the guideline
range). See U.S.S.G. §§ 1B1.10(a)(3), 1B1.10(b)(2)(A)
This limitation of the district court’s power is not constitutionally
suspect. Having chosen to create a modification
mechanism, Booker does not require Congress to
grant the district courts unfettered discretion in
applying it. Indeed, mandatory minimum sentences—
which cabin the district courts’ discretion with regard to
section 3553(a) factors—have been upheld as constitutional.
See Harris v. United States, 536 U.S. 545, 565-68
(2002); United States v. Franklin, 547 F.3d 726, 735 (7th
Cir. 2008) (rejecting defendant’s argument that the
district court had authority to depart from the mandatory
minimum and consider the factors set forth in 18 U.S.C.
§ 3553 to impose a lesser sentence) (citing Chapman v.
United States, 500 U.S. 453 (1991)).
Section 3582(c)(2)’s direction that courts “shall consider
the factors in Section 3553(a) to the extent they are applicable”
does not undermine our conclusion. It is true
that one of the factors in section 3553(a) is the Guidelines
range, which Booker made advisory. However, section
3582(c)(2) states that a district court considers the
section 3553(a) factors in making a reduction “consistent
with the applicable policy statements issued by the Sentencing
Commission.” There need not be a conflict: the
statute can be viewed as requiring district courts to
consider the section 3553(a) factors in deciding whether
and to what extent to grant a sentence reduction, but only
within the limits of the applicable policy statements. See
Dunphy, 2009 WL 19139 at *7. (In this case, the limit is the
bottom of the amended Guideline range, as stated in
U.S.S.G. § 1B1.10.)
In concluding that district courts do not have authority
to grant sentence reductions pursuant to section 3582(c)(2)
below the amended Guideline range, we are mindful
of two final points. As the government points out, Booker
has not been made a basis for post-conviction collateral
review under 28 U.S.C. § 2255. It would thus be incongruous
if courts interpreted section 3582(c)(2), which provides
for more limited relief than section 2255, as triggering
a full Booker resentencing. On a related note,
Booker does not apply to the scores of defendants whose
sentences were final when Booker was handed down. It
would be unfair to allow a full Booker resentencing to
only a subset of defendants whose sentences were
lowered by a retroactive amendment.
III. Conclusion
We side with the majority of courts and hold that district
courts, in reducing a defendant’s sentence pursuant to
Nos. 08-2901 & 08-2931 13
18 U.S.C. § 3582(c)(2), do not have authority to reduce
the defendant’s sentence beyond the retroactive Guidelines
amendment range. We thus AFFIRM the judgment of
the district court.
Chicago Criminal Lawyer - Robert J Callahan
U.S. vs. Calvin Watson
The defendant appeals from
his conviction for illegal possession of guns and ammunition,
for which he was sentenced to six years in prison.
The only question is the legality of the seizure of the
weapons, which were essential evidence of his guilt.
A police officer received an anonymous tip that a black
man was dealing guns out of the trunk of a maroon
Dodge Intrepid driven by a white woman. The word “tip”
is a misnomer, since the tipster, who claimed to have
actually witnessed the criminal activity, had talked to
the police officer by phone for an hour, giving a wealth
of detail about the car and its occupants. He refused to
give his name on the ground that he feared retaliation
by the criminal community (which, he said, had happened
to him once before), but he gave his phone
number and other information that would have made it
a cinch for the police to identify him. The police located
a maroon Dodge Intrepid driven by a white woman
with a black male passenger (the defendant) and
ordered the driver to stop, which she did. Six police
officers approached the car with guns pointed at the
occupants, whom they ordered to leave the car and walk
backwards toward them. The driver consented to a
search of the car, which the police knew from a computer
check of the license plate was hers, and they
found the weapons in the trunk.
Anonymous tips have often been held to be an insufficient
basis by themselves for a finding of reasonable
suspicion that would justify a stop. E.g., Florida v. J.L.,
529 U.S. 266 (2000); United States v. Robinson, 537 F.3d
798, 802 (7th Cir. 2008); United States v. Brown, 401 F.3d
588, 595-96 (4th Cir. 2005). But there is no flat rule that
such a tip can never provide a valid basis for such a
finding, especially since the fact that a tipster gives a
name doesn’t negate the possibility that the tip is anonymous;
the name may be a fake. United States v. Wooden,
551 F.3d 647, 649 (7th Cir. 2008). The tip in this case,
moreover, was only quasi-anonymous, since the police
could easily have identified the tipster—and that is important.
Edwards v. Cabrera, 58 F.3d 290, 294 (7th Cir. 1995);
United States v. Andrade, 551 F.3d 103, 110 (1st Cir. 2008)
(per curiam); United States v. Casper, 536 F.3d 409, 414-15
(5th Cir. 2008). A tip i s less likely to be malicious
or irresponsible if the tipster knows that the police can
find him, United States v. Kent, 531 F.3d 642, 648-49 (8th
Cir. 2008), though there is always the possibility that
the identifying details are fake.
And the amount of detail the tipster gave the police,
much of which they were able to corroborate, was
evidence that the tipster had indeed seen the car and its
occupants. See United States v. Torres, 534 F.3d 207, 210-11
(3d Cir. 2008). It remained conceivable that he could
have fabricated his witnessing of gun dealing, but that
was not so likely as to deprive the police of reasonable
suspicion that the car contained weapons, see United
States v. Hicks, 531 F.3d 555, 560-61 (7th Cir. 2008); United
States v. Vongkaysone, 434 F.3d 68, 74 (1st Cir. 2006); United
States v. Johnson, 364 F.3d 1185, 1191 (10th Cir. 2004);
compare United States v. Monteiro, 447 F.3d 39, 46 (1st Cir.
2006)—as of course it did.
The icing on the cake is that the police did not stop the
car until they observed a violation—the rear license
plate was not illuminated, as state law required—which
gave them a legal basis for stopping the car. That they
would not have stopped it had they not suspected a
more serious violation—as they obviously did, or they
would not have approached with drawn and pointed
guns—is of no moment. Arkansas v. Sullivan, 532 U.S. 769,
771-72 (2001); Whren v. United States, 517 U.S. 806, 813
(1996); United States v. Franklin, 547 F.3d 726, 733 (7th Cir.
2008); United States v. Stachowiak, 521 F.3d 852, 855 (8th
Cir. 2008). And for further icing we note that the driver
consented to the search, as she had every right to do
because it was her car.
The defendant argues that even if the police could
lawfully stop and lawfully search the car, they had no
right to frighten him by pointing their guns at him. There
are cases in which, although the police have every right
to conduct a search or arrest a person or seize property,
the manner in which they do so violates the Fourth
Amendment. The usual case is that of the use of excessive
physical force to effect an arrest. E.g., Graham v.
Connor, 490 U.S. 386 (1989); Walker v. Sheahan, 526 F.3d 973,
978-79 (7th Cir. 2008); Parker v. Gerrish, 547 F.3d 1, 4-5 (1st
Cir. 2008); Gill v. Maciejewski, 546 F.3d 557, 561 (8th Cir.
2008). But the “excess” might consist of threats that put
the arrested (or stopped) person in fear of bodily harm.
Dorsey v. Barber, 517 F.3d 389, 401-02 (6th Cir. 2008).
The defendant’s case is weak; since the police had
reasonable suspicion to think they were approaching an
illegal seller of guns, who had guns in the car (and not
necessarily just in the trunk of the car), they were
entitled for their own protection to approach as they did.
E.g., United States v. Hensley, 469 U.S. 221, 235 (1985);
United States v. Askew, 403 F.3d 496, 507 (7th Cir. 2005);
United States v. Fisher, 364 F.3d 970, 973 (8th Cir. 2004). But
in any event, had they used excessive force his
remedy would be a suit for damages under 42 U.S.C.
§ 1983 (or state law) rather than the exclusion from
his criminal trial of evidence that had been seized in an
otherwise lawful search. Christopher Slobogin, “Why
Liberals Should Chuck the Exclusionary Rule,” 1999 U.
Ill. L. Rev. 363, 401-02 (1999); cf. William J. Stuntz, “Privacy’s
Problem and the Law of Criminal Procedure,” 93
Mich. L. Rev. 1016, 1072 (1995). As in Hudson v. Michigan,
547 U.S. 586 (2006), where the Supreme Court ruled that
a violation of the rule that (where feasible) the police
must “knock and announce” their presence before
breaking into a house that they are authorized to search
does not justify suppression of the evidence found in
the (otherwise lawful) search, there is no causal connection
between the manner in which the police approached
the defendant in this case and the search of
the car that disclosed the weapons used in evidence
against him. Had they said or done nothing to him,
drawn and pointed no guns, but merely asked the driver
for consent to search the car, the evidence would have
been discovered.
Even closer is United States v. Ramirez, 523 U.S. 65, 71
(1998), where we read that “excessive or unnecessary
destruction of property in the course of a search may
violate the Fourth Amendment, even though the entry
itself is lawful and the fruits of the search are not subject to
suppression” (emphasis added). We thus disagree with
the dictum in United States v. Ankeny, 502 F.3d 829, 836
(9th Cir. 2007), which flies in the face of Ramirez, that the
use of excessive force in the course of a search can
require suppression of the evidence seized it.
This is not even a case of inevitable discovery, as
where the police obtain evidence by means of an illegal
search but if they hadn’t violated the law they would
have obtained the evidence lawfully, and on that
ground the evidence is admitted. E.g., Nix v. Williams,
467 U.S. 431, 444 (1984); United States v. Tejada, 524 F.3d
809, 813-14 (7th Cir. 2008). There was no causal connection
in this case between the alleged police conduct
and the obtaining of the evidence that the defendant asks
us to suppress. The police didn’t obtain the evidence
by pointing their guns at the defendant, but by obtaining
the consent of the driver. And even if the police obtained
her consent by intimidation (a question we need
not and do not address), the defendant cannot object.
He was just a passenger; he claims neither a property
nor a possessory interest in the car, so even an illegal
search of it would not have infringed his Fourth Amendment
rights. Rakas v. Illinois, 439 U.S. 128, 133-34 (1978).
Application of the exclusionary rule would be particularly
gratuitous in this case because the defendant has
an adequate remedy by way of a civil action—a remedy
better calibrated to the actual harm done the defendant
than the exclusionary rule would be. United States v.
Sims, 553 F.3d 580, 583-84 (7th Cir. 2009). If he was frightened
by police officers’ using excessive force (the force
wasn’t excessive, but for completeness of analysis we
are assuming for the moment that it was), a jury will
assess the damages that are required to compensate
him and deter the police from future such misconduct.
To exclude the evidence on which his conviction was
based would return a gun dealer to his life of crime, and
the cost to society might well exceed the damages that
a jury or judge would award him for his fright. In
short, when evidence is lawfully seized, police misconduct
collateral to the seizure does not trigger the application
of the exclusionary rule. For “the fact that a
Fourth Amendment violation occurred . . . does not necessarily
mean that the exclusionary rule applies.” Herring
v. United States, 129 S. Ct. 695, 700 (2009).
The judgment is therefore
AFFIRMED.
Chicago Criminal Lawyer - Robert J Callahan
his conviction for illegal possession of guns and ammunition,
for which he was sentenced to six years in prison.
The only question is the legality of the seizure of the
weapons, which were essential evidence of his guilt.
A police officer received an anonymous tip that a black
man was dealing guns out of the trunk of a maroon
Dodge Intrepid driven by a white woman. The word “tip”
is a misnomer, since the tipster, who claimed to have
actually witnessed the criminal activity, had talked to
the police officer by phone for an hour, giving a wealth
of detail about the car and its occupants. He refused to
give his name on the ground that he feared retaliation
by the criminal community (which, he said, had happened
to him once before), but he gave his phone
number and other information that would have made it
a cinch for the police to identify him. The police located
a maroon Dodge Intrepid driven by a white woman
with a black male passenger (the defendant) and
ordered the driver to stop, which she did. Six police
officers approached the car with guns pointed at the
occupants, whom they ordered to leave the car and walk
backwards toward them. The driver consented to a
search of the car, which the police knew from a computer
check of the license plate was hers, and they
found the weapons in the trunk.
Anonymous tips have often been held to be an insufficient
basis by themselves for a finding of reasonable
suspicion that would justify a stop. E.g., Florida v. J.L.,
529 U.S. 266 (2000); United States v. Robinson, 537 F.3d
798, 802 (7th Cir. 2008); United States v. Brown, 401 F.3d
588, 595-96 (4th Cir. 2005). But there is no flat rule that
such a tip can never provide a valid basis for such a
finding, especially since the fact that a tipster gives a
name doesn’t negate the possibility that the tip is anonymous;
the name may be a fake. United States v. Wooden,
551 F.3d 647, 649 (7th Cir. 2008). The tip in this case,
moreover, was only quasi-anonymous, since the police
could easily have identified the tipster—and that is important.
Edwards v. Cabrera, 58 F.3d 290, 294 (7th Cir. 1995);
United States v. Andrade, 551 F.3d 103, 110 (1st Cir. 2008)
(per curiam); United States v. Casper, 536 F.3d 409, 414-15
(5th Cir. 2008). A tip i s less likely to be malicious
or irresponsible if the tipster knows that the police can
find him, United States v. Kent, 531 F.3d 642, 648-49 (8th
Cir. 2008), though there is always the possibility that
the identifying details are fake.
And the amount of detail the tipster gave the police,
much of which they were able to corroborate, was
evidence that the tipster had indeed seen the car and its
occupants. See United States v. Torres, 534 F.3d 207, 210-11
(3d Cir. 2008). It remained conceivable that he could
have fabricated his witnessing of gun dealing, but that
was not so likely as to deprive the police of reasonable
suspicion that the car contained weapons, see United
States v. Hicks, 531 F.3d 555, 560-61 (7th Cir. 2008); United
States v. Vongkaysone, 434 F.3d 68, 74 (1st Cir. 2006); United
States v. Johnson, 364 F.3d 1185, 1191 (10th Cir. 2004);
compare United States v. Monteiro, 447 F.3d 39, 46 (1st Cir.
2006)—as of course it did.
The icing on the cake is that the police did not stop the
car until they observed a violation—the rear license
plate was not illuminated, as state law required—which
gave them a legal basis for stopping the car. That they
would not have stopped it had they not suspected a
more serious violation—as they obviously did, or they
would not have approached with drawn and pointed
guns—is of no moment. Arkansas v. Sullivan, 532 U.S. 769,
771-72 (2001); Whren v. United States, 517 U.S. 806, 813
(1996); United States v. Franklin, 547 F.3d 726, 733 (7th Cir.
2008); United States v. Stachowiak, 521 F.3d 852, 855 (8th
Cir. 2008). And for further icing we note that the driver
consented to the search, as she had every right to do
because it was her car.
The defendant argues that even if the police could
lawfully stop and lawfully search the car, they had no
right to frighten him by pointing their guns at him. There
are cases in which, although the police have every right
to conduct a search or arrest a person or seize property,
the manner in which they do so violates the Fourth
Amendment. The usual case is that of the use of excessive
physical force to effect an arrest. E.g., Graham v.
Connor, 490 U.S. 386 (1989); Walker v. Sheahan, 526 F.3d 973,
978-79 (7th Cir. 2008); Parker v. Gerrish, 547 F.3d 1, 4-5 (1st
Cir. 2008); Gill v. Maciejewski, 546 F.3d 557, 561 (8th Cir.
2008). But the “excess” might consist of threats that put
the arrested (or stopped) person in fear of bodily harm.
Dorsey v. Barber, 517 F.3d 389, 401-02 (6th Cir. 2008).
The defendant’s case is weak; since the police had
reasonable suspicion to think they were approaching an
illegal seller of guns, who had guns in the car (and not
necessarily just in the trunk of the car), they were
entitled for their own protection to approach as they did.
E.g., United States v. Hensley, 469 U.S. 221, 235 (1985);
United States v. Askew, 403 F.3d 496, 507 (7th Cir. 2005);
United States v. Fisher, 364 F.3d 970, 973 (8th Cir. 2004). But
in any event, had they used excessive force his
remedy would be a suit for damages under 42 U.S.C.
§ 1983 (or state law) rather than the exclusion from
his criminal trial of evidence that had been seized in an
otherwise lawful search. Christopher Slobogin, “Why
Liberals Should Chuck the Exclusionary Rule,” 1999 U.
Ill. L. Rev. 363, 401-02 (1999); cf. William J. Stuntz, “Privacy’s
Problem and the Law of Criminal Procedure,” 93
Mich. L. Rev. 1016, 1072 (1995). As in Hudson v. Michigan,
547 U.S. 586 (2006), where the Supreme Court ruled that
a violation of the rule that (where feasible) the police
must “knock and announce” their presence before
breaking into a house that they are authorized to search
does not justify suppression of the evidence found in
the (otherwise lawful) search, there is no causal connection
between the manner in which the police approached
the defendant in this case and the search of
the car that disclosed the weapons used in evidence
against him. Had they said or done nothing to him,
drawn and pointed no guns, but merely asked the driver
for consent to search the car, the evidence would have
been discovered.
Even closer is United States v. Ramirez, 523 U.S. 65, 71
(1998), where we read that “excessive or unnecessary
destruction of property in the course of a search may
violate the Fourth Amendment, even though the entry
itself is lawful and the fruits of the search are not subject to
suppression” (emphasis added). We thus disagree with
the dictum in United States v. Ankeny, 502 F.3d 829, 836
(9th Cir. 2007), which flies in the face of Ramirez, that the
use of excessive force in the course of a search can
require suppression of the evidence seized it.
This is not even a case of inevitable discovery, as
where the police obtain evidence by means of an illegal
search but if they hadn’t violated the law they would
have obtained the evidence lawfully, and on that
ground the evidence is admitted. E.g., Nix v. Williams,
467 U.S. 431, 444 (1984); United States v. Tejada, 524 F.3d
809, 813-14 (7th Cir. 2008). There was no causal connection
in this case between the alleged police conduct
and the obtaining of the evidence that the defendant asks
us to suppress. The police didn’t obtain the evidence
by pointing their guns at the defendant, but by obtaining
the consent of the driver. And even if the police obtained
her consent by intimidation (a question we need
not and do not address), the defendant cannot object.
He was just a passenger; he claims neither a property
nor a possessory interest in the car, so even an illegal
search of it would not have infringed his Fourth Amendment
rights. Rakas v. Illinois, 439 U.S. 128, 133-34 (1978).
Application of the exclusionary rule would be particularly
gratuitous in this case because the defendant has
an adequate remedy by way of a civil action—a remedy
better calibrated to the actual harm done the defendant
than the exclusionary rule would be. United States v.
Sims, 553 F.3d 580, 583-84 (7th Cir. 2009). If he was frightened
by police officers’ using excessive force (the force
wasn’t excessive, but for completeness of analysis we
are assuming for the moment that it was), a jury will
assess the damages that are required to compensate
him and deter the police from future such misconduct.
To exclude the evidence on which his conviction was
based would return a gun dealer to his life of crime, and
the cost to society might well exceed the damages that
a jury or judge would award him for his fright. In
short, when evidence is lawfully seized, police misconduct
collateral to the seizure does not trigger the application
of the exclusionary rule. For “the fact that a
Fourth Amendment violation occurred . . . does not necessarily
mean that the exclusionary rule applies.” Herring
v. United States, 129 S. Ct. 695, 700 (2009).
The judgment is therefore
AFFIRMED.
Chicago Criminal Lawyer - Robert J Callahan
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