U.S. vs. Douglas

This is a sentencing appeal. On
February 6, 2008, the defendant, Bernard Douglas, pled
guilty to conspiring to distribute more than five kilograms
of cocaine and more than fifty grams of crack in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Douglas
was serving a three-year term of supervised release for
a prior offense, the terms of which Douglas violated by
his role in the conspiracy. On June 27, 2008, the district
court sentenced Douglas to a total of 258 months in
prison: 240 months for the conspiracy and eighteen
months for the supervised release violation, the two
sentences to be served consecutively. Douglas now challenges
both components of his sentence.

We turn first to his sentence on the drug conspiracy
charge. At sentencing, Douglas objected to the offense
level calculation contained within his Presentence Investigation
Report. Specifically, Douglas questioned two
upward adjustments recommended in the report: the
first for Douglas’s purported leadership role in the conspiracy,
see U.S. Sentencing Guidelines Manual (“U.S.S.G.”)
§ 3B1.1(c); the second for his alleged obstruction of justice,
see id. § 3C1.1. The report recommended an upward
adjustment of two points on each ground, see id.
§§ 3B1.1(c), 3C1.1, for a total adjustment of four points.
After adding these four points to Douglas’s base offense
level of thirty-four, and subtracting three points for
Douglas’s acceptance of responsibility, the report recommended
a total offense level of thirty-five.

The court adopted the recommended enhancements
over Douglas’s objection. An offense level of thirty-five,
combined with Douglas’s category V criminal history,
placed his Guidelines sentencing range between 262 and
327 months in prison. The court, however, went below
the Guidelines range to sentence Douglas to the
statutory minimum of 240 months for his role in the drug
conspiracy.

On appeal, Douglas argues that the district court erred
in applying the leadership and obstruction of justice
enhancements. We need not delve into the details of his
arguments, however, because even assuming that there
were errors, there is nothing we could do to change the
imposed sentence, which the court rendered pursuant to
a statutory minimum. Under these facts, any potential
error was harmless.

Because Douglas had a prior felony drug conviction in
Illinois state court, 240 months was the minimum prison
sentence permitted by statute. See 21 U.S.C. § 841(b)(1)(A)
(“If any person commits such a violation after a prior
conviction for a felony drug offense has become final,
such person shall be sentenced to a term of imprisonment
which may not be less than 20 years . . . .”). As we
have stated, “[a]djustments . . . matter to the Guidelines’
sentencing range but do not affect statutory minimum
sentences.” United States v. Rivera, 411 F.3d 864, 866 (7th
Cir. 2005). Thus, even if we were to remand for
resentencing based on an error in calculating the Guidelines
range, the statutory minimum would still control,
meaning that Douglas’s new sentence could not possibly
be less than his first. See id.; see also U.S.S.G. § 5G1.1(b)
(“Where a statutorily required minimum sentence is
greater than the maximum of the applicable guideline
range, the statutorily required minimum sentence shall
be the guideline sentence.”).

Any error, therefore, would be harmless by definition, a
fact that we have recognized repeatedly. See, e.g., Rivera,
411 F.3d at 867 (“Booker does not confer on district judges
any discretion to give sentences below statutory floors.
Any error the district judge may have made in
resolving factual disputes in order to apply the Guidelines
was harmless.”); United States v. Giacometti, 28 F.3d
698, 704 (7th Cir. 1994) (“In certain cases we know the
error is harmless: when, for example, the district court . . .
erred on the high side but the sentence could not have
been any lower because of a statutory minimum.”);
United States v. Kozinski, 16 F.3d 795, 812 (7th Cir. 1994)
(finding a sentencing error harmless and refusing to
remand for resentencing when “the district court was
obligated to impose the sentence it did”); see also United
States v. Lee, 399 F.3d 864, 866 (7th Cir. 2005) (“Nothing
in Booker gives a judge any discretion to disregard a
mandatory minimum, so there [is] no need to speculate
about prejudice.”). This outcome renders superfluous
any further analysis of Douglas’s attack on his conspiracy
sentence.

We next turn to Douglas’s challenge to his eighteenmonth
prison sentence for violating the terms of his
supervised release. This argument borders on frivolity,
and we reject it out of hand. Douglas does not argue
that the district court miscalculated the appropriate
Guidelines range, which was eighteen to twenty-four
months. See U.S.S.G. § 7B1.4. Nor does he suggest that the
two sentences were not to run consecutively. See id.
§ 7B1.3(f). In fact, aside from the heading in his brief, he
does not appear to contest the eighteen-month portion
of his sentence at all.

Instead, he focuses on a comment made in passing by
the district judge after handing down both sentences:
“[The combined sentence of 258 months] is actually less
than the bottom of the guideline range on the original
sentence [of 262 months on the conspiracy charge alone].”
Douglas tries to cloak this statement in procedural robes,
which would trigger de novo review. See United States v.
Mendoza, 510 F.3d 749, 754 (7th Cir. 2007). But the court’s
commentary was more a mathematical truism—akin to
one plus one is less than five—than a rung in the ladder
of sentencing procedure. Simply characterizing the statement
one way or another does not change its nature.

In essence, Douglas’s challenge, ostensibly to the
“procedure” used to sentence him for violating the
terms of his supervised release, is an attempt at backdoor
review of the conspiracy sentence. If the district court
had correctly calculated the Guidelines range on the
conspiracy charge, Douglas argues, the aforementioned
statement would have been incorrect. But we have
already discarded Douglas’s challenge to the conspiracy
sentence. Douglas’s nonexistent “challenge” to the
eighteen-month sentence fails.1
Douglas’s sentence is AFFIRMED.

Chicago Criminal Lawyer - Robert J Callahan