United States v. William Hible ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2574
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
W ILLIAM R. H IBLE,
also known as B ILLY H IBLE,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 2:10-cr-20015-MPM-DGB-1—Michael P. McCuskey, Judge.
A RGUED S EPTEMBER 20, 2012—D ECIDED N OVEMBER 8, 2012
Before E ASTERBROOK, Chief Judge, and M ANION and
T INDER, Circuit Judges.
T INDER, Circuit Judge. William R. Hible appeals his
sentence, arguing that he should have been sentenced
consistent with the more lenient penalties of the Fair
Sentencing Act of 2010 (the Act or FSA), Pub. L. No. 111-
220, 124 Stat. 2372. Although under Dorsey v. United
States, ___ U.S. ___, 132 S. Ct. 2321 (2012), the FSA’s more
2 No. 11-2574
lenient penalties apply to pre-Act offenders who were
sentenced after the Act took effect, we agree with the
government that Hible has waived any right to argue
that he should have been sentenced under the FSA.
I
Hible was charged in a three-count indictment with
criminal drug conspiracy involving the distribution of
cocaine and crack cocaine from May 2008 through
February 2010 and with the distribution of cocaine
in October 2009 and distribution of crack cocaine in
December 2009 in violation of 21 U.S.C. §§ 841 and 846.
In June 2010, the government filed notice pursuant to
21 U.S.C. § 851 that it would seek an enhanced sentence
due to Hible’s prior felony drug conviction. The law in
effect at the time had a mandatory minimum penalty
of 10 years’ imprisonment and a maximum penalty of
life imprisonment for a defendant who distributed
5 grams or more of crack cocaine and had a prior felony
drug conviction. See 21 U.S.C. § 841(b)(1)(B)(iii) (2006).
On January 12, 2011, a magistrate judge held a change
of plea hearing. The government stated its intent to
dismiss Counts 1 and 2 at sentencing, and Hible pleaded
guilty to Count 3, charging him with distributing 5 grams
or more of crack cocaine. The magistrate judge advised
Hible of the potential penalties and asked him if he
had any questions about them. Hible asserted that he
should be sentenced under the new law, the Fair Sen-
tencing Act of 2010. The FSA increased the threshold
amount of crack cocaine for certain penalties and as
No. 11-2574 3
a result lowered the penalty for offenses involving
crack. Under the FSA, a defendant who distributed
12.8 grams of crack and had a prior felony drug con-
viction faced no mandatory minimum term of imprison-
ment and a maximum term of imprisonment of not
more than 30 years. See 21 U.S.C. § 841(b)(1)(B)(iii), (C)
(2006 & Supp. IV).
The magistrate judge said he did not know the sen-
tencing judge’s position on the applicability of the FSA
to defendants such as Hible who committed an offense
prior to the change in the law but who would be sen-
tenced afterwards, but advised Hible that he could
appeal the decision to sentence him under the “old law,”
if that was the judge’s decision. The prosecutor stated
that the Seventh Circuit had rejected Hible’s argument
that the FSA applies to offense conduct occurring before
the law’s enactment on August 3, 2010 (presumably
referring to United States v. Bell, 624 F.3d 803, 814-15
(7th Cir. 2010), cert. denied, 131 S. Ct. 2121 (2011), and
others), but noted that “the defendant will preserve the
right to make that argument.” Hible agreed to the
factual basis for his plea, including that on December 3,
2009, he sold 12.8 grams of crack cocaine to an infor-
mant. Hible pled guilty to the charge of distributing
5 grams or more of crack cocaine. The magistrate judge
found that there was a factual basis for the plea, that
the plea was knowing and voluntary, and that Hible
was guilty as charged in Count 3.
A presentence report was prepared prior to sen-
tencing. The report calculated Hible’s base offense level
4 No. 11-2574
under the drug quantity guideline, U.S.S.G. § 2D1.1,
resulting in a base offense level of 36, based in part on
relevant conduct, and after adjustments, a total offense
level of 39. The report also calculated Hible’s offense level
under the career offender guideline, id. § 4B1.1, assuming
the FSA did not apply, which resulted in a career offender
level of 37 and after adjustments, a total offense level of
34. If the FSA applied, however, the career offender
guideline total offense level would have been 31. Hible
had nine criminal history points, which would put him
in criminal history category IV. But under the career
offender guideline, every offender is in category VI. Id.
Using the drug quantity guideline, offense level 39 and
criminal history category VI, Hible’s advisory guide-
line range was 360 months to life. Under the career of-
fender guideline, offense level 34 and criminal history
category VI, the advisory guideline range was 262 to
327 months. The recommended offense level was the
higher of the two levels, that is, the one under the drug
quantity guideline (39). See U.S.S.G. § 4B1.1(b) (“[I]f the
offense level for a career offender from the table in
this subsection is greater than the offense level other-
wise applicable, the offense level from the table in this
subsection shall apply.”). Thus, the presentence report
recommended a guideline range of 360 months to life.
Prior to sentencing, Hible objected to the paragraphs
of the presentence report detailing his relevant conduct,
which greatly increased the drug quantity for which
Hible could be held accountable. His objections did not
mention the FSA. In response to the objections, the gov-
ernment said that it “believed . . . a sentence that is suffi-
No. 11-2574 5
cient but not greater than necessary to achieve the sen-
tencing purposes of Section 3553(a) can be found within
the advisory career offender range” of 262 to 327 months
of imprisonment. Although the government agreed with
the presentence report’s relevant conduct findings, it
said that a ruling on Hible’s relevant conduct objec-
tions was unnecessary.
At sentencing on July 7, 2011, the district court said
that it had reviewed the presentence report and noted
there were objections “that boil[ed] down to” what the
advisory guideline range should be. The court noted
that the presentence report recommended an offense
level of 39, criminal history category VI, and an ad-
visory guideline range of 360 months to life. The court
confirmed that Hible had “no objection to the career
offender [guideline], which would put [his] advisory
guideline range at 262 to 327” months. The court also
confirmed that the government and probation had no
objection to using the career offender advisory guide-
line range of 262 to 327 months as “our starting point.”
Then the court asked defense counsel, “So, . . . if I agree
that our starting point is the career offender advisory
guideline range of 262 to 327[,] . . . would that mean
that there would be no objections to the presentence
report?” Counsel answered, “That’s correct,” and the
prosecutor and probation officer stated that they had no
objection to that “starting point.” The court said that
“[t]he career offender advisory guideline range would
start at offense level 34,” after factoring acceptance
of responsibility, and both the prosecutor and Hible’s
counsel agreed. Accordingly, the court found “that the
6 No. 11-2574
starting point in this case under the advisory guidelines,
by agreement of counsel and Probation, is that this is
an offense level 34/criminal history category VI and
that the advisory guideline range is 262 to 327.”
The court reconfirmed with Hible, through counsel
and with Hible directly, that he withdrew his objections
“with the agreement that the Court start at the offense
level 34/criminal history category VI/advisory guideline
range 262 to 327, instead of 360 to life.” The court
found “that all objections have been withdrawn” and
“the parties agree that “William Hible is a career of-
fender[,] . . . is a criminal history category VI, and . . . has
an advisory guideline range of 262 to 327 months be-
cause he is an offense level 34 as adjusted.” Then the
court adopted the presentence report’s findings, as
amended by the parties’ agreement.
Hible offered mitigation evidence, which included
evidence to mitigate his career offender status—testimony
that although he was convicted of a crime of violence
occurring in 2005, he did not actually commit the
crime, but pled guilty for other reasons. The govern-
ment requested a within-guideline sentence of 25 years
(300 months). Hible’s attorney recommended a below-
guideline sentence of 15 years (180 months). The district
court gave Hible a “final break” and considered him
to have a criminal history category IV, which provided
an advisory guideline range of 210 to 262 months. The
court determined that “the appropriate and reasonable”
sentence was 240 months.
No. 11-2574 7
II
Hible appeals his sentence, arguing that the district
court should have sentenced him consistent with the
more lenient penalties under the FSA. The government
argues that Hible has waived his right to appeal this
issue. Hible responds that he preserved the issue for
review by objecting, at his plea hearing, to being sen-
tenced under the old law and asserting that he should
be sentenced under the FSA. He does not, however,
argue that he asserted any right to be sentenced under
the FSA at his sentencing. We agree with the govern-
ment that Hible has waived the right to argue that he
should have been sentenced under the FSA.
“[W]aiver occurs when a defendant intentionally relin-
quishes or abandons a known right.” United States v.
Gaona, ___ F.3d ___, No. 12-2039, 2012 WL 4747196, at *3
(7th Cir. Oct. 5, 2012) (internal quotation marks omit-
ted). We will find waiver when a defendant “[f]or
strategic reasons . . . elect[s] to pursue one argument
while foregoing another.” United States v. Farmer, 543
F.3d 363, 371 (7th Cir. 2008); see also United States v. Jaimes-
Jaimes, 406 F.3d 845, 848 (7th Cir. 2005) (“[W]hen the
defendant selects [from among arguments] as a matter
of strategy, he also waives those arguments he decided
not to present.” (citation omitted)). Waiver precludes
appellate review. United States v. Doyle, 693 F.3d 769, 771
(7th Cir. 2012).
Hible knew of the FSA; at his plea hearing, he asked to
be sentenced under it. Yet at his sentencing, he did not
assert a right to be sentenced under the FSA. Instead, he
8 No. 11-2574
affirmatively withdrew all objections to the presentence
report and agreed that in sentencing (he had not objected
that the presentence report did not utilize the FSA in
projecting his sentence), the district court should use as a
“starting point” an offense level of 34, criminal history
category VI, and the career offender advisory guideline
range of 262 to 327 months. That this was a conscious,
strategic decision is inescapable.
By agreeing to the career offender guideline range,
Hible avoided a hearing on relevant conduct and the
potentially higher offense level calculated under the drug
quantity guideline based on that relevant conduct. He
also argued for mitigation of his career offender status.
Hible had little to gain in arguing for application of the
FSA with no mandatory minimum and a maximum
sentence of 30 years when he faced an advisory guide-
line range of 360 months to life and his counsel recom-
mended a 15-year sentence. Hible’s strategic decision
paid off: the district court applied the career offender
guideline with its lower offense level and considered
Hible to have a criminal history category of IV.
Hible argues that he preserved the issue by raising it
at his change of plea hearing. As the prosecutor noted at
the plea hearing, Hible would “preserve the right to
make” the argument to be sentenced under the FSA. But
Hible never made the argument at sentencing. Instead,
he chose to agree with the government that he was a
career offender and that the “starting point” was offense
level 34, criminal history category VI, and the career
offender guideline range of 262 to 327 months. This
No. 11-2574 9
amounts to waiver. See United States v. Harris, 230 F.3d
1054, 1059 (7th Cir. 2000) (holding that defendant
waived any right to a downward departure under the
safety-valve provision where the issue was raised in
the plea agreement, but the presentence report did not
mention the safety-valve provision, and when questioned
by the district court, both the defendant and his counsel
stated they had no objections to the presentence report
other than another, different objection). As noted, the
district court gave Hible a “final break” and sentenced
him as if he was in criminal history category IV to
240 months.
III
We A FFIRM Hible’s sentence and the district court’s
judgment.
11-8-12