U.S. vs. Turner

Richard Turner was a drug
dealer operating in Chicago Heights, Illinois. He engaged
in two drug sales in 2004 that formed the basis of his
subsequent indictment, conviction, and sentence. The
first occurred on September 30, when, in exchange for
$800, Turner sold approximately 25.4 grams of crack
cocaine to a government informant. The second sale was on
October 7, when Turner sold the same individual approximately
26.4 grams of crack cocaine, again for $800.
Combined, Turner sold a total of slightly less than fiftytwo
grams of crack cocaine to the government informant.

On May 16, 2007, a federal grand jury returned a twocount
indictment charging Turner with knowingly and
intentionally distributing five grams or more of a mixture
or substance containing crack cocaine, in violation of
21 U.S.C. § 841(a)(1). On January 10, 2008, Turner pled
guilty to Count One of the indictment pursuant to a
written plea agreement and admitted the facts contained
in Count Two. The district court later sentenced Turner
to 136 months’ imprisonment and five years’ supervised
release.

On appeal, Turner contends that the district court erred
by not considering various mitigating factors when calculating
his sentence. The list of suggested errors is long
but not particularly impressive. It includes, inter alia,
claims of sentencing manipulation, sentencing entrapment,
disproportionate sentencing, poor conditions of
presentencing confinement, and an overall misapplication
of Turner’s circumstances to the factors established
in 18 U.S.C. § 3553(a).

Our review of sentencing decisions typically proceeds
in two steps. See United States v. Jackson, 547 F.3d 786, 792
(7th Cir. 2008). First, we ensure that the district court did
not commit any “significant procedural error,” examples
of which include failing to calculate, or improperly calculating,
the applicable Guidelines range; treating the
Guidelines as mandatory; or failing to consider the
§ 3553(a) factors. Id.; see also Gall v. United States, 128 S. Ct.
586, 597 (2007) (explaining the procedures a court must
follow during sentencing). Once convinced that the
sentencing judge followed correct procedure, we then
consider the reasonableness of the sentence. Jackson,
547 F.3d at 792.

Turner does not raise any challenges to the procedural
soundness of his sentencing proceedings, nor does our
review of the record reveal any procedural irregularities.
Turner frames his arguments in terms of the court’s
failure to grant “downward departures,” which one
could construe as a procedural challenge, i.e., that the
district court improperly calculated the applicable Guidelines
range. But it is well established that after
United States v. Booker, 543 U.S. 220 (2005), which rendered
the Sentencing Guidelines advisory, “downward departures,”
per se, have become obsolete. United States v.
Simmons, 485 F.3d 951, 955 (7th Cir. 2007) (quoting
United States v. Spano, 476 F.3d 476, 480 (7th Cir. 2007)).
Instead, such arguments should be placed in the context
of the § 3553(a) factors, which a sentencing court must
consider in determining a sentence. See Gall, 128 S. Ct. at
596; see also 18 U.S.C. § 3553(a); cf. United States v. Schroeder,
536 F.3d 746, 755-56 (7th Cir. 2008) (instructing, in the
context of U.S.S.G. § 5H1.6, that a court “ ‘may apply
[obsolete] departure guidelines by way of analogy in
analyzing the section 3553(a) factors’ ” (quoting United
States v. Miranda, 505 F.3d 785, 792 (7th Cir. 2007))).

One claim merits additional explanation regarding the
procedural/substantive distinction. As we will discuss
below, Turner raises a claim based on § 4A1.3(b) of the
Sentencing Guidelines: a “downward departure” provision
that grants sentencing judges the discretion to use a
lower criminal history category to effectuate a lower
sentence when the judge concludes that a defendant’s
otherwise applicable criminal history category “substantially
over-represents” his past transgressions. See also
U.S.S.G. § 1B1.1 cmt. n.1(E). But that is a discretionary
decision that has nothing to do with “correct” Guidelines
calculation. For that reason, it is not a procedural error,
but rather a substantive decision that we will review
for reasonableness.

Thus, we construe all of Turner’s arguments as challenges
to the substantive reasonableness of the imposed
sentence. When, as here, the district court followed
proper procedures in determining a sentence within
the applicable Guidelines range, we presume that the
sentence was reasonable and review only for an abuse
of discretion. See Gall, 128 S. Ct. at 597 (“Regardless of
whether the sentence imposed is inside or outside the
Guidelines range, the appellate court must review the
sentence under an abuse-of-discretion standard.”); Rita v.
United States, 551 U.S. 338, 346 (2007) (concluding that
appellate courts may apply a “presumption of reasonableness”
to “within-Guidelines” sentences); see also
Booker, 543 U.S. at 260-63 (discussing the “reasonableness”
standard under which appellate courts must review
sentences imposed under the now-advisory Sentencing
Guidelines). In conducting this deferential review, we
will set aside factual findings underlying the sentence
only if they are clearly erroneous, United States v. Bothun,
424 F.3d 582, 586 (7th Cir. 2005), and we review questions
of law de novo, United States v. Bonanno, 146 F.3d 502, 510
(7th Cir. 1998). Bearing these issues in mind, we now
turn to the substance of Turner’s arguments, beginning
with his claims under the related doctrines of sentencing
manipulation and sentencing entrapment.

In United States v. Garcia, 79 F.3d 74 (7th Cir. 1996), we
distinguished claims of sentencing manipulation from
those of sentencing entrapment. Sentencing manipulation
arises “when the government engages in improper
conduct that has the effect of increasing a defendant’s
sentence.” Id. at 75. Sentencing entrapment, meanwhile,
“occurs when the government causes a defendant
initially predisposed to commit a lesser crime to commit
a more serious offense.” Id.

In support of his sentencing manipulation claim, Turner
states that the government had enough evidence to
convict him after the first controlled drug buy on September
30, and that the purpose of the second controlled drug
buy was merely to increase his sentence. Turner’s sentencing
entrapment claim is based on his self-proclaimed
status as a small-time, “dime-bag” dealer who was not
predisposed to sell the quantity of drugs requested by
the informant.

We dispatch first with Turner’s sentencing manipulation
claim. As the district judge acknowledged, our
circuit does not recognize the sentencing manipulation
doctrine. Id. at 76; see also United States v. White, 519
F.3d 342, 346 (7th Cir. 2008); United States v. Veazey, 491
F.3d 700, 710 (7th Cir. 2007). Turner concedes this precedent
but encourages us to reconsider the court’s position,
pointing to other circuits that have reached the opposite
conclusion. See, e.g., United States v. Ciszkowski, 492
F.3d 1264, 1270 (11th Cir. 2007) (recognizing sentencing
manipulation as “a viable defense”); United States v. Rizzo,
121 F.3d 794, 801 & n.11 (1st Cir. 1997). We decline Turner’s
invitation. There is no constitutional right to be arrested
at the exact moment that police acquire probable cause.
Garcia, 79 F.3d at 76. We will defer to the discretion of law
enforcement to conduct its investigations as it deems
necessary for any number of reasons, including, for
example, to ensure that there is sufficient evidence to
obtain a conviction, to obtain a “greater understanding of
the nature of the criminal enterprise,” and to ensnare coconspirators.
Id.

Turner’s sentencing entrapment argument suffers the
same fate, albeit for different reasons. Unlike sentencing
manipulation, sentencing entrapment is a doctrine that
our court does recognize. To succeed on such a claim,
however, a defendant must pass a high bar, which Turner
fails to do. The defendant must show (1) that he lacked a
predisposition to commit the crime, and (2) that his will
was overcome by “unrelenting government persistence.”
United States v. Gutierrez-Herrera, 293 F.3d 373, 377 (7th Cir.
2002) (quotations omitted). The government may rebut
such claims by demonstrating that the defendant was
predisposed to violate the law without “ ‘extraordinary
inducements.’ ” White, 519 F.3d at 347 (quoting Veazey,
491 F.3d at 710).

In White, the defendant, Juan White, was the subject of a
drug investigation and sold 57.2 grams of crack to a repeat
customer who, unbeknownst to White, was cooperating
with the government. Id. at 344. On appeal, White argued
that the government instructed the informant to buy a
large amount of cocaine only to trigger a higher sentence.
Id. at 346. We refused to grant relief, stating: “In spite of the
fact that the purchase was a departure from [the informant’s]
previous buying patterns with White, the fact that
White, a drug dealer with a history of dealing crack,
readily acceded to [the informant’s] request undercuts
any possible theory of sentence entrapment in this case.”
Id. at 347.

We see no notable distinctions between this case and
White. Turner has a history of selling crack, which he
has admitted to doing for a number of years prior to his
arrest. He presents no evidence that the government was
unrelenting in its attempts to purchase higher quantities
of drugs than he usually sold or engaged in inducements
that were otherwise extraordinary. In his brief, Turner
offers only that he was “surprised” to receive such a
large order, but surprise is certainly no substitute for a
lack of predisposition. And at oral argument, Turner’s
counsel conceded that there were no examples of extraordinary
inducement or unrelenting pressure. As a result,
we find no merit in Turner’s claims for sentencing entrapment.

Turner’s complaints regarding the conditions of his
presentencing confinement are no more successful. Turner
was housed in the Kankakee County Jail, a county correctional
facility that contracts with the United States
Marshals Service to house federal prisoners. Turner claims,
inter alia, that he was not given nutritious food, reasonable
medical care, clothing, educational classes, or sanitary
conditions in which to live. The district judge found
that none of these conditions rose to a level warranting
sentencing relief. We agree.

Our prior decisions make clear that conditions of
presentencing confinement are not considered as part of
the § 3553(a) factors. See United States v. Campos,
541 F.3d 735, 751 (7th Cir. 2008); United States v. Martinez,
520 F.3d 749, 752-53 (7th Cir. 2008); United States v. Ramirez-
Gutierrez, 503 F.3d 643, 645-46 (7th Cir. 2007).1 And, although
we have not determined whether “extraordinarily
harsh conditions of confinement” could justify a reduced
sentence, Campos, 541 F.3d at 751, we need not make
such a decision here.

Turner has not supported his claims of poor
presentencing confinement with any evidence. See id.
(“[E]ven if unduly harsh conditions could justify a
lower sentence, [the defendant] has not supported his
claims of his pretrial conditions with any evidence.”). And
his claims are similar to those that we have previously
found not to be “unusually harsh.” See Ramirez-Gutierrez,
503 F.3d at 646 (concluding that conditions at Kankakee
County Jail did not merit relief when defendant complained
of lack of medical attention for a broken tooth,
lived in poorly ventilated quarters, and was given inadequate
opportunity to exercise). Even if we accept Turner’s
claims as true, they do not rise to the “truly egregious”
level that would cause us to consider whether sentencing
relief could be an appropriate remedy in such
circumstances. See id. (discussing two examples of what
might be egregious enough to warrant consideration for
sentencing relief). We refuse to grant Turner any relief
based upon his conditions of presentencing confinement.

Next, Turner argues that being placed in criminal
history category VI “substantially over-represent[ed] the
seriousness of the defendant’s criminal history,” quoting
the policy statement in U.S.S.G. § 4A1.3(b)(1). In such
situations, the Guidelines grant sentencing judges the
discretion to utilize a lower criminal history category
than would otherwise be appropriate as a means “to
effect a sentence outside the applicable guideline range.”
Id. § 1B1.1 cmt. n.1(E); see also id. § 4A1.3(b)(1) (specifying
that in appropriate circumstances a downward departure
“may be warranted” (emphasis added)). As an example,
the Guidelines state that “two minor misdemeanor convictions
close to ten years prior to the instant offense [with]
no other evidence of prior criminal behavior in the intervening
period” might over-represent the defendant’s
criminal history and therefore warrant such a reduction.
See id. § 4A1.3(b)(1) cmt. n.3.

The transcript of the sentencing hearing makes it clear
that there was no abuse of discretion here. The judge
discussed Turner’s argument at length and decided
against assigning a lower criminal history category,
commenting on Turner’s “extensive criminal history as
an adult that has indicated a complete disregard for the
law in the past.” Indeed, the record demonstrates that
Turner had thirty-four adult convictions for an array of
offenses, including at least one per year from 2001 to 2006.
Fifteen of these convictions were used for purposes of
calculating Turner’s criminal history points. As the
judge said:

Illegal drug trade causes untold harm to society
and defendant’s participation in that drug trade
even as a buyer or recipient contributed to that
harm. Defendant has also been arrested of drinking
in public, criminal trespass to real property, disorderly
conduct, driving under the influence of
alcohol. In addition to the criminal convictions, the
defendant has numerous other arrests. These
include the manufacture and delivery of controlled
substance, gambling, operating an uninsured
motor vehicle, possession of controlled substance,
violation of bail bond, domestic battery, criminal
trespass to land, delivery of cocaine near school or
public housing. Some of these arrests involve
charges of violence on the part of the defendant.

The judge then proceeded through a lengthy and detailed
discussion of Turner’s criminal history, which is a far cry
from the Guidelines’ example of two misdemeanors ten
years prior to the present offense. See id. § 4A1.3(b)(1)
cmt. n.3; see also United States v. Bradford, 78 F.3d 1216, 1223-
24 (7th Cir. 1996) (“The example makes clear that
the Sentencing Commission considered a departure
warranted only in those instances where defendants had
steered clear of crime for a substantial period of time
and whose prior offenses were relatively minor in terms
of violence or danger to the community.”). The judge
was well within his discretion to decide that Turner’s
criminal history deservedly placed him in category VI.
The district judge went through the remainder of the
issues that Turner now raises on appeal in a similarly
methodical way, discussing and disposing of each in a
lengthy and thorough discourse. In succession, the judge
discussed Turner’s lack of education; his desire to
improve his life, receive education and training, and
obtain meaningful employment; his addiction to drugs
and alcohol; and the remorse he had expressed over his
past actions. The judge expressly considered each of the
issues in the context of the § 3553(a) factors before
reaching what he believed to be an appropriate sentence
within the applicable Guidelines range. We fail to see
how such a deliberate decision could be an abuse of
discretion. There is certainly nothing in the record to
disturb the presumption of reasonableness that we
accord such a decision.
For the foregoing reasons, we AFFIRM Turner’s sentence.

Chicago Criminal Lawyer - Robert J Callahan