NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 27, 2010
Decided June 3, 2010
Before
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 09‐3621
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 3:08‐CR‐30225‐001‐DRH
LOUIS E. HOPKINS, David R. Herndon,
Defendant‐Appellant. Chief Judge.
O R D E R
A jury found Louis Hopkins guilty of possessing a firearm after a felony conviction,
18 U.S.C. § 922(g)(1); distributing crack,
21 U.S.C. § 841(a); and witness tampering,
18 U.S.C.
§ 1512(b)(1), (3). The district court calculated a guidelines imprisonment range of 46 to 57
months, but imposed a sentence of 108 months. On appeal, Hopkins argues that 108
months is unreasonable. We disagree, and affirm the judgment of the district court.
Hopkins sold a small quantity of crack to an informant on three occasions in late
January and early February 2008. Authorities executed a search warrant at his home on
February 8 and found three guns—one with an obliterated serial number—and five digital
scales. (They also found nine grams of powder cocaine in the home, but it was apparently
concealed in a jacket belonging to Hopkins’s adult son.) Hopkins was charged in federal
No. 09‐3621 Page 2
court in November 2008 and detained pending trial. From jail he tried to persuade his then‐
wife, LaShonda Campbell, to avoid law‐enforcement officers before trial and to testify that
the guns did not belong to him. He had previously tried to get Campbell to sign an
affidavit stating that she was responsible for the guns and the cocaine found in the home.
In January 2009 the government obtained a superseding indictment charging Hopkins with
one count of violating § 922(g)(1), three counts of distributing crack, and two counts of
witness tampering.
After Hopkins was found guilty on all counts, the probation officer issued a
presentence investigation report calculating a total offense level of 22 and 3 criminal‐history
points, which placed Hopkins in criminal‐history category II. The probation officer
grouped the six crimes together as if they were one, see U.S.S.G. §§ 3D1.1 to 3D1.4, and
calculated the offense level using the Chapter 2 guideline applicable to the gun count
because that guideline produced the highest total offense level, see U.S.S.G. §§ 2K2.1, 3D1.3.
The total offense level of 22 resulted from a base offense level of 14, U.S.S.G. § 2K2.1(a)(6), a
2‐level increase due to the number of guns, id. § 2K2.1(b)(1)(A), a 4‐level increase because
the serial number on one of the guns was obliterated, id. § 2K2.1(b)(4)(B), and a 2‐level
increase for obstruction of justice, see id. § 3C1.1. Hopkins, who is 48 years old, had 9 prior
convictions as an adult, but those convictions yielded only 1 criminal‐history point due to
their age. Five of the prior convictions had involved a gun, but none of those 5 resulted in a
jail sentence longer than 13 days. (In 1989, for example, Hopkins pleaded guilty to reckless
conduct—after being charged with firing a pistol in the presence of a state trooper—and
spent 13 days in jail. In 2006, after he and his son were charged with committing armed
robbery, Hopkins pleaded guilty to aggravated unlawful use of a weapon by a felon and
received 5 days in jail.) Hopkins received 2 more criminal‐history points because he was on
probation when he committed the federal crimes, see U.S.S.G. § 4A1.1(d), which gave him 3
points total and put him in criminal‐history category II. His resulting imprisonment range
was 46 to 57 months. The district court adopted the probation officer’s calculations.
At sentencing the government argued that Hopkins had not been punished
adequately in the past and urged the district court to give him 120 months. A prison term
within the guidelines range, in the government’s view, would not deter Hopkins or protect
the public from future crimes. The government also contended that Hopkins had no respect
for the law, as evidenced by his attempts to obstruct the prosecution and by Campbell’s
testimony that he always carried a gun despite knowing that his status as a felon was
disqualifying. Hopkins had drafted the affidavit for Campbell to falsely claim ownership of
the guns, and he told her to hide and avoid talking to law‐enforcement agents until his trial
was over. He also told other family members and neighbors to lie about where he lived. In
addition, the government presented evidence of witness tampering for which Hopkins was
not charged. An agent from the Bureau of Alcohol, Tobacco, Firearms and Explosives
No. 09‐3621 Page 3
testified that Campbell had told him she and her sister were carjacked by Hopkins’s
nephew—who said he was acting on orders from Hopkins—and another time she was
chased by the nephew and threatened with death if she did not help her husband. The
agent testified that Campbell believed Hopkins was behind the second incident.
The agent addressed Hopkins’s involvement in other criminal conduct as well.
Hopkins, he recounted, was the prime suspect in the ongoing investigation of the 2006
murder of Jamal Williams, a friend of Campbell’s. Campbell had told the agent that
Hopkins accused her of having an affair with Williams. According to the agent, state
investigators believed that Williams had been speaking on the telephone when Hopkins
confronted and shot him after an argument that the other party to the phone call overheard.
The agent added that Campbell had also said she was told by Hopkins not to worry about
the guns found in the home because “none of them had any murders on them.”
Hopkins, who did not testify or present any evidence at the sentencing hearing,
argued that the guidelines range adequately took into account his criminal history and that
57 months would be an appropriate sentence. That was long enough, according to Hopkins,
because the drug counts involved only 0.3 grams of crack in total, there was no evidence
that he used the seized guns while selling crack or to threaten anyone, and—he
insisted—there was insufficient evidence that his obstructive conduct involved threats.
The district court concluded that 108 months—almost twice the upper end of the
guidelines range—was appropriate for Hopkins. In evaluating the nature and
circumstances of the counts of conviction, see
18 U.S.C. § 3553(a)(1), the court observed that
Hopkins had committed three “very serious” types of crimes which, because of the
grouping rules, would not be adequately punished by a guidelines sentence. In the court’s
opinion, the inclusion of all six counts into a single group meant that Hopkins wasn’t being
punished at all for selling crack and was getting nothing but a 2‐level increase under
U.S.S.G. § 3C1.1 for obstruction of justice. The district court thought it particularly
inappropriate that the incremental punishment Hopkins faced for his obstruction was so
low relative to the guidelines range for possessing a gun with an obliterated serial number,
especially because the witness tampering might cause Campbell to fear for her life “now
and in the future.” The court found, by a preponderance of the evidence, that Hopkins had
ordered the carjacking and death threat to discourage Campbell from cooperating with
investigators. Thus the guidelines range, according to the court, did not account for the
“extreme” witness tampering in this case.
The district court evaluated Hopkins’ history and characteristics, see
18 U.S.C.
§ 3553(a)(1), and observed that his criminal behavior had escalated since his first conviction,
for theft, at age 18. His subsequent convictions included drug crimes, and several involved
No. 09‐3621 Page 4
firearms. Most of Hopkins’s convictions did not count toward his criminal‐history score,
which in the court’s view meant that the guidelines understated his propensity for criminal
behavior. The court found by a preponderance of the evidence that Hopkins had
committed the murder of Jamal Williams, and although the court noted that the murder
would make “no difference” in its choice of sentence, the court did say that the murder
“certainly confirms the Court’s conclusion that the defendant is a habitual criminal.”
The district court imposed a 48‐month term for the § 922(g) count; three concurrent
terms of 24 months for the crack distribution (but consecutive to the gun count), and
concurrent 36‐month terms for the witness‐tampering offenses (but consecutive to
everything else) for a total of 108 months. The court explained that, if each of the three
types of crimes was considered independently, the imprisonment range for the gun count
would be 37 to 46 months, the range for the drug offenses would be 12 to 18 months, and
the range for the witness tampering would be 18 to 24 months. The court observed that its
sentences, relative to these putative ranges, represented a sentence within the range for the
firearm conviction, a 6‐month increase above the range for the drug convictions, and a 12‐
month increase above the range for witness tampering. (The court appears to have made a
small error: The 48‐month sentence for the gun crimes is actually two months above the
corresponding standalone range.)
On appeal Hopkins argues that the district court acted unreasonably by imposing a
total term of imprisonment above the guidelines range. He does not make an argument
about the court’s calculation of the guidelines range or its application of the § 3553(a)
factors, nor does he take issue with the court’s methodology or any of its reasons for going
above the range calculated by the probation officer and adopted by the court. Instead,
Hopkins’s argument to us is simply a disagreement with the district court’s exercise of its
sentencing discretion. As he did in the district court, Hopkins emphasizes that his crack
sales were small, and although he admits encouraging Campbell and others to lie for him
and duck law enforcement, he continues to insist that he never threatened to harm
Campbell. And despite his admittedly “significant history of possessing firearms,”
Hopkins contends that his many uncounted convictions and low criminal‐history score
weigh against an above‐range sentence.
We review a sentence—even a sentence outside the guidelines range—for
reasonableness. See Gall v. United States,
552 U.S. 38, 56 (2007); United States v. Mays,
593
F.3d 603, 609 (7th Cir. 2010). Hopkins contends that the district court should have adhered
to the range produced by the court’s application of the grouping rules, but he is incorrect to
suggest that the facts of his case had to be out of the ordinary to allow the district court to
deviate from the guidelines; to the contrary, the court was free to reject the grouping rules
so long as it acted reasonably in sentencing him. See Spears v. United States,
129 S. Ct. 840,
No. 09‐3621 Page 5
843‐44 (2009); United States v. Corner,
598 F.3d 411, 415 (7th Cir. 2010) (en banc). The district
court plainly disagrees with the grouping rules, but after United States v. Booker,
543 U.S. 220
(2005), that is the court’s prerogative. The court evaluated the § 3553(a) factors and
concluded that a sentence above the guidelines range was justified, and that determination
is entitled to deference. United States v. Wise,
556 F.3d 629, 632‐33 (7th Cir. 2009). The court
adequately explained why it chose 108 months as an appropriate term of imprisonment.
Hopkins’s unhappiness with the sentence does not make that sentence unreasonable.
To the extent that Hopkins is challenging the district court’s finding that he directed
the carjacking and the death threat against Campbell, we will uphold that factual
determination unless it is clearly erroneous; it is not. See Mays,
593 F.3d at 609. Although at
trial Campbell testified that she did not know if Hopkins was behind the carjacking, she also
testified that Hopkins’s nephew had said Hopkins ordered the carjacking. The ATF agent
testified at sentencing that Campbell said that the nephew put a gun to her head during the
carjacking and explained to her that Hopkins had ordered him to do so. The agent also
testified that Campbell and her sister both told him in interviews that they believed
Hopkins was behind the death threat. A sentencing court may consider hearsay testimony
as long as it bears sufficient indicia of reliability and the defendant has an opportunity to
rebut it. See United States v. Mendoza,
576 F.3d 711, 717 (7th Cir. 2009). Hopkins was able to
cross‐examine Campbell during the trial and the ATF agent at sentencing, but the court
nevertheless found that he orchestrated the carjacking and death threat. Given the
evidence, we cannot conclude that the district court’s finding was clearly erroneous.
Accordingly, we AFFIRM the judgment of the district court.
