United States v. Lopez, Richardini ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2432
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICHARDINI LOPEZ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 568—David H. Coar, Judge.
____________
ARGUED NOVEMBER 10, 2005—DECIDED DECEMBER 6, 2005
____________
Before FLAUM, Chief Judge, and RIPPLE and SYKES,
Circuit Judges.
FLAUM, Chief Judge. On January 25, 2005, Richardini
Lopez pled guilty to bank robbery and to carrying and
brandishing a firearm during and in relation to a crime
of violence, in violation of 18 U.S.C. § 2113(a) and 18 U.S.C.
§ 924(c)(1)(A). Pursuant to the plea agreement, the govern-
ment dropped charges of carjacking and one count of
brandishing a firearm during and in relation to a crime of
violence, although Lopez stipulated to having committed
those offenses. On April 20, 2005, the district court sen-
tenced Lopez to 168 months imprisonment for bank robbery
and a consecutive sentence of 84 months imprisonment for
carrying and brandishing a weapon during a bank robbery,
2 No. 05-2432
a total sentence of 21 years. Lopez now appeals that
sentence. For the reasons stated herein, we affirm.
I. Background
On June 10, 2004, Lopez approached Victim A. He falsely
identified himself as a police officer. When Victim A stated
he did not believe Lopez, Lopez displayed a black .25 caliber
Berreta that he had received from his 16-year-old nephew
(who was also present and waiting in Lopez’s car during the
carjacking) and stated, “Give me the keys.” Victim A began
to yell, “carjacking, carjacking.” In response, Lopez punched
him in the mouth and nose, resulting in Victim A falling
backwards and injuring his head on the curb. While Victim
A lay bleeding, Lopez grabbed his keys and took his car.
Lopez drove to the TCF Bank. While his nephew re-
mained by the entrance as a lookout, Lopez approached
the tellers. He stated, “[P]ut the money in the bag. Hurry
up, put the money in the bag. Give me all of it.” While
making these statements, Lopez was pointing a .25 caliber
Beretta handgun at the first teller’s chest. Lopez repeated
this process with a second teller. The robbery netted
approximately $5,856.48 from the bank. Later that day, the
FBI arrested Lopez, at which time he confessed to the
carjacking and bank robbery. He also confessed to carry-
ing and brandishing a gun during both offenses.
The government indicted Lopez on four separate counts.
Pursuant to a plea agreement, Lopez pled guilty to Count
Three (bank robbery) and Count Four (brandishing a
firearm during and in relation to a crime of violence). In
addition, Lopez stipulated to having committed Count One
(carjacking) and Count Two (brandishing a firearm during
and in relation to a crime of violence). This plea agreement
allowed Lopez to avoid 18 U.S.C. § 924(c)(1)(C), which
would have required a minimum term of 25 years for
having committed two crimes involving the use of a firearm.
No. 05-2432 3
The plea agreement, which the defendant signed, con-
tained a preliminary sentencing calculation. The agreed
upon calculation contained a total offense level of 26 and a
criminal history category of VI, yielding a sentencing range
of 120-150 months imprisonment on Count Three. In
addition, the plea agreement stated, “At the time of sen-
tencing, both parties will recommend a sentence within the
applicable advisory Guideline range as to Count Three and
a sentence of seven years as to Count Four to be imposed
consecutive to the sentence on Count Three.”
The plea agreement contained language explicitly not-
ing that the Probation Department and the Court would
make their own guideline calculations and that “the validity
of [the] Plea Agreement is not contingent upon the Proba-
tion Department’s or the Court’s concurrence with the
[calculations in the agreement].”
The presentence report found several errors in the plea
agreement’s guideline calculation. As a result, both the
presentence report and the district court found the ap-
propriate offense level to be 30, not 26. This yielded a
sentence of 168-210 months on Count Three.
At the April 20, 2005, sentencing hearing, the district
court allowed each party an opportunity to object to the
sentencing report. Neither party did. The district court
reviewed the calculation differences between the sentencing
report and plea agreement. Lopez told the court
he understood the differences. Lopez and his lawyer
both accepted the validity of the sentencing report.
The district court accepted the presentence report and
sentenced the defendant to the lowest sentence within the
sentencing guidelines, 168 months for Count Three plus
a mandatory consecutive term of 84 months for Count Four;
this yielded a total sentence of 252 months or 21 years.
During sentencing, the district court commented that Lopez
did not “belong on the scrap heap” due to his cooperation,
4 No. 05-2432
the related nature of the offenses, his drug problem, and his
supportive family, but that the nature of his crimes “just
cr[ies] out for a severe punishment.”
II. Discussion
In reviewing a district court sentence, this Court must
evaluate whether the sentence imposed by the district court
was reasonable. United States v. Booker, 125 S.Ct. 738, 767
(2005). “[A]ny sentence that is properly calculated under
the Guidelines is entitled to a rebuttable presumption of
reasonableness.” United States v. Mykytiuk, 415 F.3d 606,
608 (7th Cir. 2005). Appellate courts are guided by the
factors in 18 U.S.C. § 3553(a) when deciding whether a
particular sentence is reasonable. Id. (citing Booker, 125
S.Ct. at 766).
Provided a district court considers the factors in section
3553(a) and calculates the guideline range accurately, it
is unnecessary to discuss every section 3553(a) factor
individually. See United States v. Dean, 414 F.3d 725, 729
(7th Cir. 2005); see also United States v. George, 403 F.3d
470, 473 (7th Cir. 2005) (“[I]t is enough to calculate the
range accurately and explain why (if the sentence lies
outside it) this defendant deserves more or less.”).
In this case, the district court imposed a sentence with-
in the properly calculated guideline range. The sentenc-
ing guideline range in the presentence report was cor-
rect, and the sentencing guideline calculation in the plea
agreement was incorrect.
Although Lopez argues that his sentence fails to account
for the lower sentence originally calculated in the plea
agreement, the agreement’s guideline calculation was
always preliminary. The plea agreement specifically stated
that it would be unaffected by “corrections [to the guideline
calculation], and the defendant shall not have a right to
No. 05-2432 5
withdraw his plea on the basis of such corrections.” A
correction to a preliminary guideline calculation is not a
valid factor for consideration under 18 U.S.C. § 3553(a).
The district court adequately discussed the factors
included in section 3553(a). The district court discussed the
nature of the offense, the characteristics of the defendant,
the need to impose a sentence that recognizes
the seriousness of the offense, and the need for the defen-
dant to receive drug treatment. The district court also
discussed the range of sentences available. While this
discussion did not specifically reference every factor
named in section 3553(a), such a checklist is unnecessary.
Dean, 414 F.3dat 729.
Lopez argues that his sentence is excessive because a
sentence within the guideline range found in the original
plea agreement would have been sufficient to achieve the
goals of 18 U.S.C. § 3553(a)(2). It is not relevant to this
Court’s review whether the sentence found in the plea
agreement calculation would also have been reasonable.
The role of this Court is not to choose between possible
sentences, but rather to review the reasonableness of the
sentence imposed by the district court. The sentence
imposed in this case was within the advisory range of the
sentencing guidelines, based upon the factors in section
3553(a), and reflects significant consideration of the com-
peting goals of sentencing. After a thorough discussion of
the sentencing factors, the district court found that the
guidelines captured the appropriate penalty in this case. By
sentencing Lopez to the lowest sentence within the guide-
line range, the district court properly balanced its desire to
avoid unreasonably prolonged incarceration, while recogniz-
ing the seriousness of the offenses committed. The sentence
imposed by the district court was reasonable.
6 No. 05-2432
III. Conclusion
For the reasons stated above, we AFFIRM the sentence
of the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-6-05