United States v. Laufle, Jeffrey ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3978
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JEFFERY LAUFLE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 04 CR 92—John C. Shabaz, Judge.
____________
ARGUED SEPTEMBER 14, 2005—DECIDED JANUARY 11, 2006
____________
Before EASTERBROOK, ROVNER, and SYKES, Circuit
Judges.
ROVNER, Circuit Judge. After defendant Jeffery Laufle
pleaded guilty to a marijuana-trafficking conspiracy, the
district court ordered him to serve a prison term of 76
months, a sentence within the range specified by the United
States Sentencing Guidelines. Anticipating the Supreme
Court’s decision in United States v. Booker, 543 U.S. 220,
125 S. Ct. 738 (2005), the court indicated that it would
impose the identical sentence if the Guidelines were treated
as advisory, which in the wake of Booker they now are.
Laufle appeals, contending that the district court, in
calculating the Guidelines range, improperly denied him a
favorable adjustment to his offense level for being a minor
2 No. 04-3978
participant in the conspiracy and that the court also erred
in denying the prosecutor’s request for a downward depar-
ture for providing substantial assistance to the government.
We see no error in the calculation of the Guidelines sentenc-
ing range, nor do we find the sentence imposed unreason-
able. We therefore affirm Laufle’s sentence.
I.
Beginning in or around 1998, Ralph Villegas caused
multi-kilogram quantities of marijuana to be shipped from
Texas to co-conspirator Gale Kleman in the LaCrosse,
Wisconsin area. Kleman distributed marijuana in the
Minneapolis-St. Paul region, and Villegas had a connec-
tion in Texas who could obtain the marijuana for him.
(Villegas actually had begun distributing marijuana to
Kleman in 1995, but during the first few years of their
business relationship, Kleman had taken possession of
the marijuana in Texas.) Between 1998 and September
2003, when the conspiracy among Villegas, Kleman, and
their associates was exposed, at least 1,433 kilograms of
marijuana was dropped off in the LaCrosse area for for-
warding to Kleman in Minneapolis.
Laufle owned an industrial coating and painting company
that maintained its office and warehouse in Holmen,
Wisconsin, near LaCrosse. After he began receiving mari-
juana in LaCrosse, Kleman recruited Laufle to permit the
use of the warehouse as an occasional drop-off point for
marijuana shipments. Laufle would later admit that he
received and stored two to three shipments annually at
the warehouse for a period of four or five years. Laufle
arranged for an acquaintance, Steven Lee, to receive and
help unload shipments at the warehouse when Laufle
was not available to do so. Typically the marijuana
was stored at Laufle’s warehouse for only a short period
of time before someone retrieved and transported it to its
No. 04-3978 3
final destination in Minneapolis. Laufle indicated that he
drove roughly half of these shipments to Minneapolis
himself. Depending on the size of the shipment, Laufle
was paid between $5,000 and $7,000 for receiving and
storing the marijuana; and he was given another $1,000 for
each load that he drove to Minnesota.
In June 2004, the government filed an information
charging Laufle with conspiring to possess with the in-
tent to distribute in excess of 50 kilograms of marijuana, in
violation of 21 U.S.C. § 841(a)(1). Pursuant to a written plea
agreement with the government, Laufle waived indictment
and pleaded guilty to the charge. Also pursuant to the plea
agreement, the government agreed to move for a downward
departure for substantial assistance in the event Laufle
cooperated to a sufficient extent.
Laufle appeared for sentencing on November 3, 2004.
Employing the November 2003 version of the Guidelines,
the probation officer proposed a total offense level of 27 that
reflected a base offense level of 32 for a narcotics offense
involving 1,000 to 3,000 kilograms of marijuana, see
U.S.S.G. § 2D1.1(c)(4), a two-level reduction pursuant to the
safety-value provisions of §§ 2D1.1(b)(6) and 5C1.2, and a
three-level reduction for timely acceptance of responsibility,
see § 3E1.1. Coupled with a criminal history category of I,
the adjusted offense level called for a sentence in the range
of 70 to 87 months. The district court adopted these calcula-
tions.
The court rejected Laufle’s contention that he was
entitled to an additional two-level reduction in the of-
fense level for having been a minor participant in the
conspiracy. See U.S.S.G. § 3B1.2(b). The court pointed out
that Laufle had allowed marijuana to be stored in his
warehouse, that he had helped unload the marijuana for
storage, that he had transported some of the marijuana to
Minnesota, and that he had recruited Lee to provide
4 No. 04-3978
assistance in receiving the marijuana. R. 24 at 10. The
court agreed with Laufle that his role in the offense “was
certainly less than that of Kleman and Villegas[,] who
appear to be regional middlemen with the large scale
suppliers and the local dealers.” Id. at 11. But the court
disagreed with Laufle that his lesser role as compared to
the two people who organized the conspiracy was insuffi-
cient to qualify him as a minor participant.
You don’t look at the two key players and say, Oh, gee,
he was less culpable than were the bosses and accord-
ingly he is then a minor participant. It isn’t the way
it works. It looks to all of those who were involved in
the offense . . . and [Laufle] was not substantially less
culpable than the average participant.
Id. at 11-12. On comparing Laufle with the entire set of
individuals identified as co-conspirators in this case, the
court found that his involvement with the conspiracy was
“certainly much more substantial” than the complicity
of others and that Laufle “was not substantially less
culpable than the average participant.” Id. at 12.
The court also denied the government’s section 5K1.1
motion for a downward departure based on the assistance
Laufle had provided to the government. The government
represented that Laufle’s cooperation had made it less
difficult to establish the full extent of the conspiracy, had
corroborated the information provided by informants, and
had helped tie together the government’s case. However,
the court was not persuaded that Laufle’s assistance was so
substantial as to warrant a downward departure. R. 24 at
12-13. The court subsequently added that although Laufle
had been “cooperative” and “helpful,” the convictions of
neither Villegas nor Kleman (who were charged separately)
could be attributed to Laufle’s assistance. Id. at 14-15.
Faced with a Guidelines range of 70 to 87 months, the
court elected to impose a sentence of 76 months. The
No. 04-3978 5
court noted that Laufle’s criminal conduct “wasn’t a one-
time deal. It wasn’t aberrant. It wasn’t anywhere close to
that.” R. 24 at 19. The court also pointed out that in
contrast to many defendants, Laufle was not someone
who had led a deprived life or who had lacked opportunities
to succeed in legitimate ways, but rather had succumbed to
greed when presented with a chance to make a substantial
amount of money in narcotics trafficking. Id. at 19-20.
Finally, the court observed that Laufle, at age 50, was a
mature individual who “knows better.” Id. at 19.
The court also considered what sentence it might im-
pose if the Sentencing Guidelines were held unconstitu-
tional by the Supreme Court. (By the time Laufle was
sentenced, this court had held in United States v. Booker,
375 F.3d 508 (7th Cir. 2004), that Blakely v. Washington,
542 U.S. 296, 124 S. Ct. 2531 (2004), barred a sentenc-
ing judge from making findings of fact that increased a
defendant’s offense level under the Guidelines (and the
corresponding sentencing range). The district court noted
that Laufle’s offense level was based solely on conduct
to which he had stipulated in his plea agreement. R. 24 at
4-5, 13. Nonetheless, the court correctly anticipated the
possibility that the Supreme Court, whose own decision
in Booker was still two months off, might declare manda-
tory application of the Guidelines unconstitutional even
in such a case.) Taking into consideration “all relevant
facts” and treating the Guidelines not as binding but rather
as “a reliable indicator” of what an appropriate sentence
would be, the court concluded that a sentence of 76 months
was called for. Id. at 21-22.
[The Court has] considered the substantial amount of
marijuana which was a part of this offense. It has
considered the fact that there is responsibility demon-
strated by the defendant for his failure to follow the law
in this matter. There is also the fact that the transac-
tions occurred over a lengthy period of time and numer-
6 No. 04-3978
ous instances were involved. And having considered all
relevant facts and circumstances . . . the Court then
imposes the same sentence as previously announced.
Id.
II.
We begin our review with a few words about the Supreme
Court’s decision in Booker, which establishes the scope of
our review and sets the stage for the particular arguments
that Laufle is making in this appeal. Booker, of course,
deemed the Sentencing Guidelines inconsistent with the
Sixth Amendment insofar as they mandated sentences
within specified ranges that frequently (although not
always) turned on factual findings rendered by the sentenc-
ing judge rather than a jury. 125 S. Ct. at 749-51, 755-56.
The Supreme Court remedied the constitutional problem by
severing and excising the statutory provisions that (with
narrow exceptions) compelled district judges to sentence
within the specified Guidelines range and that provided for
appellate review to ensure, inter alia, that the lower courts
did so. Id. at 764-65. As a result, district courts, though
they remain obliged to ascertain and consult the sentencing
range called for by the Guidelines, are no longer obliged to
impose a sentence within that range. E.g., United States v.
Julian, 427 F.3d 471, 490 (7th Cir. 2005). And this court,
although it still considers whether the district court
properly calculated the Guidelines sentencing range,
ultimately reviews the sentence imposed to determine
whether it is reasonable. See Booker, 125 S. Ct. at 765-66;
United States v. Paladino, 401 F.3d 471, 484 (7th Cir.), cert.
denied, 126 S. Ct. 106 (2005).
When it sentenced Laufle, the district court did so in the
first instance treating the sentencing range specified by
Guidelines as mandatory. In calculating the Guidelines
No. 04-3978 7
range, the court had made no factual findings that boosted
Laufle’s offense level and the resulting sentencing range.
Accordingly, under this court’s 2004 decision in Booker,
application of the Guidelines did not impinge on Laufle’s
Sixth Amendment right to a jury trial. 375 F.3d at 515.
However, the Supreme Court’s Booker decision, which chose
to remedy the Sixth Amendment problem by excising the
statutory provision that bound the courts to follow the
Guidelines, renders the Guidelines advisory in all cases. In
retrospect, then, it was error for the district court to
consider itself obligated to sentence within the Guidelines
range. See United States v. White, 406 F.3d 827, 835 (7th
Cir. 2005) (“the mere mandatory application of the
Guidelines—the district court’s belief that it was required
to impose a Guidelines sentence—constitutes error”).
Nonetheless, the alternative sentence that the district
court announced makes clear that Laufle was not preju-
diced by the Booker error. Anticipating that the Supreme
Court might find the Guidelines unconstitutional, the court
considered what sentence it would impose if it considered
the Guidelines “merely as a reliable indicator” of an
appropriate sentence—in other words, treating the Guide-
lines as advisory rather than binding. R. 24 at 22. Taking
into account “all relevant facts and circumstances,” the
court concluded that it would still impose a sentence of 76
months. Id. This is not a case, then, that raises any doubt
as to whether the district court might have imposed a
sentence outside the Guidelines range if the court had
known that it had the discretion to do so. See Paladino, 401
F.3d at 482-83; United States v. Lee, 399 F.3d 864, 866 (7th
Cir. 2005). The court’s alternative sentence makes clear
that the court would not have sentenced Laufle differently.
See United States v. George, 403 F.3d 470, 472-73 (7th Cir.),
cert. denied, 126 S. Ct. 636 (2005).
Although sentencing judges enjoy much broader discre-
tion after Booker, they remain obliged to consult the
8 No. 04-3978
Guidelines in determining an appropriate sentence, and we
must therefore consider whether the district court properly
calculated the (advisory) Guidelines sentencing range. E.g.,
Julian, 427 F.3d at 488. Laufle contends that the district
court made two errors that resulted in a higher Guidelines
offense level and sentencing range than should have
applied. Specifically, Laufle argues that the court errone-
ously denied him a downward adjustment pursuant to
section 3B1.2(b) for being a minor participant in the offense
and denied the government’s motion for a downward
departure pursuant to section 5K1.1 for providing substan-
tial assistance to the government.
As for whether Laufle should have been given credit
for being a minor participant in the conspiracy, we discern
no clear error in the district court’s determination that
he was not. See United States v. Parra, 402 F.3d 752, 762-63
(7th Cir. 2005) (decisions as to adjustment for lesser role in
offense still reviewed for clear error after Booker), pet. for
cert. filed (U.S. Dec. 16, 2005) (No. 05-8230). Section 3B1.2
provides a range of adjustments for a defendant whose
limited role in the offense renders him “substantially less
culpable than the average participant.” U.S.S.G. § 3B1.2,
comment. (n.3(A)). The two-level adjustment for being a
“minor” participant is intended for the defendant “who is
less culpable than most other participants, but whose role
could not be described as minimal.” Id., comment. (n.5).
Laufle undoubtedly played a lesser role in the charged
conspiracy than did Villegas and Kleman, as the district
court expressly recognized. R. 24 at 11. But Villegas and
Kleman were not the only other members of the conspiracy.
A number of other [identified] individuals (the probation
officer identified at least seven) were involved in a variety
of ways, including sourcing the marijuana, transporting the
marijuana and arranging that transportation, and unload-
ing it at Laufle’s warehouse. R. 22 at 4-8. One could
reasonably think of those persons as typifying the “average”
No. 04-3978 9
participant in this conspiracy, and the district judge
reasonably concluded that Laufle was not less culpable than
those individuals, let alone substantially less culpable. On
the contrary, Laufle participated in the conspiracy for a
period of between four and five years, he accepted and
stored two to three shipments of marijuana annually at his
warehouse over that period of time, he drove half of those
shipments to Minnesota himself, and he acknowledged
being paid tens of thousands of dollars for his assistance.
Under these circumstances, the district court committed no
clear error in refusing to characterize Laufle’s role in the
conspiracy as “minor.” Cf. United States v. Gonzalez, 319
F.3d 291, 300 (7th Cir.) (no clear error in denying mitigat-
ing role adjustment to defendant who “executed
the important task of securing the warehouse for delivery”
of cocaine), cert. denied, 539 U.S. 921, 123 S. Ct. 2289(2003).
Laufle also contends that the district judge improp-
erly conditioned a downward departure for substantial
assistance on proof that his cooperation with the gov-
ernment was responsible for the conviction of another
individual. The way in which Laufle has framed this
argument reflects an attempt to fit it within the narrow
review framework for departures that we employed prior to
the Supreme Court’s decision in Booker. Within that
framework, a district court’s refusal to depart downward
was not reviewable so long as the district court under-
stood its authority to depart and denied the departure
request in the exercise of its discretion. See, e.g., United
States v. Winston, 34 F.3d 574, 581 (7th Cir. 1994). Only
when the court mistakenly believed that it lacked the
authority to depart or committed some legal error in
denying the request might we intervene. See id. Thus,
Laufle posits that the district court, in looking for proof that
he had helped the government obtain the conviction of a co-
defendant, engrafted a requirement for the departure that
the Guidelines themselves do not impose. The premise of
10 No. 04-3978
Laufle’s argument strikes us as inaccurate: The district
court noted the absence of proof that Laufle had helped
secure someone else’s conviction as an afterthought, R. 24
at 15, after it had already denied the departure motion; the
central reason that the court cited for its decision was its
perception that Laufle’s assistance could not be character-
ized as substantial, id. at 13. In any event, in view of the
substantial change that Booker has worked on federal
sentencing, this is an unnecessary diversion.
In the wake of Booker, we have concluded that discus-
sion of a district court’s departure decisions has been
rendered “obsolete”. United States v. Arnaout, ___ F.3d ___,
2005 WL 3242213, at *7 (7th Cir. Dec. 2, 2005) (citing
United States v. Johnson, 427 F.3d 423, 426 (7th Cir.
2005)); see also United States v. Long, 425 F.3d 482, 487-88
(7th Cir. 2005); United States v. Castro-Juarez, 425 F.3d
430, 436 (7th Cir. 2005). Before Booker, departures were the
principal means of sentencing outside of the range specified
by the Guidelines. Now that Booker has rendered the
Guidelines advisory and district courts have much broader
authority to sentence outside the recommended range,
departures are beside the point. The district court’s obliga-
tion in every instance is to consult the Guidelines and,
taking into account the sentencing factors set forth
in section 3553(a), to impose a reasonable sentence. Our
obligation, in turn, is to determine whether the sentence
imposed, be it within or without the Guidelines range, is
reasonable. E.g., Johnson, 427 F.3d at 426-27.
Thus, Laufle’s contention that the district court imposed
an erroneous standard in denying the government’s mo-
tion for a downward departure is a non-starter. The ques-
tion instead is whether his sentence is reasonable. Depar-
tures aside, the nature and degree of his assistance to the
government is of course a relevant sentencing factor, and
we shall address Laufle’s cooperation below.
No. 04-3978 11
There being no error in the calculation of Laufle’s offense
level and sentencing range, what remains for us to deter-
mine is whether the sentence that the district court im-
posed is reasonable. In selecting a sentence, a district court
is obliged to consider the sentencing factors identified in 18
U.S.C. § 3553(a). United States v. Dean, 414 F.3d 725, 728
(7th Cir. 2005). That is not to say that the court must
discuss and make findings as to each of these factors.
George, 403 F.3d at 472-73 (“[j]udges need not rehearse on
the record all of the considerations that 18 U.S.C. § 3553(a)
lists”). It is enough that the record confirms meaningful
consideration of the types of factors that section 3553(a)
identifies. United States v. Williams, 425 F.3d 478, 480 (7th
Cir. 2005), pet. for cert. filed (U.S. Dec. 21, 2005) (No. 05-
8241). A concise statement of the factors that caused the
judge to arrive at a particular sentence, consistent with
section 3553(a), will normally suffice. Dean, 414 F.3d at
729. This is particularly so when the court imposes a
sentence within the Guidelines range, because such a
sentence is presumptively reasonable. United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).
The district court’s sentencing decision comports with
these criteria. This is not, in the first instance, a case in
which the court gave little or no rationale for its decision.
Cf. United States v. Cunningham, 429 F.3d 673, 677 (7th
Cir. 2005). The court articulated a number of reasons for its
decision to impose a sentence within the Guidelines range,
and these statements reflect consideration of the types of
factors identified in section 3553(a)—including the nature
and circumstances of the offense, the history and character
of the defendant, and the need for a sentence that accounts
for the gravity of the offense, promotes respect for the law,
and provides for just punishment. The court noted, among
other things, that Laufle’s criminal activity took place over
a lengthy period of time and involved a substantial quantity
of marijuana; that Laufle, despite being a successful, 50
year-old business and family man who knew better, had
12 No. 04-3978
willingly involved himself in a narcotics conspiracy, appar-
ently out of greed; that Laufle’s conduct, if not appropri-
ately punished, would send a signal to others that they too
could resort to crime as a way to make easy money and get
away with it; and (on the other hand) that Laufle had
accepted responsibility for his crime. R. 24 at 18-20, 21-22.
Thus, although the court did not cite section 3553(a), its
reasoning was entirely consistent with the factors set forth
in that statutory provision. See United States v. Rodriguez-
Alvarez, 425 F.3d 1041, 1047 (7th Cir. 2005) (citing United
States v. Alburay, 415 F.3d 782, 787 (7th Cir. 2005))
(district court’s sentencing rationale was adequate although
district court did not cite any specific section 3553(a) factor
in support of its sentence).
The record of the sentencing proceeding also con-
firms that the parties had a full opportunity to highlight
circumstances that might call for a different sentence than
the one that the court ultimately chose—including a
sentence outside of the Guidelines range—and that the
district court took these factors into consideration. See
Cunningham, 429 F.3d at 676, 679. Laufle contends that
the court essentially overlooked two factors, namely
Laufle’s “positive personal history and character” (Laufle
Br. at 16)—including his lack of a prior criminal history, his
successful (legitimate) business, and his devotion to
his family, church, and community—and Laufle’s coopera-
tion with the government. However, the court in fact
addressed both factors at sentencing. The court reasoned
that Laufle’s background, character, and accomplish-
ments did not warrant a lesser sentence, as they simply
demonstrated that he had socio-economic advantages
that other defendants did not. R. 24 at 19-20. The court also
acknowledged that Laufle had been helpful to the govern-
ment but, as we have noted, deemed his assistance insuffi-
ciently extraordinary to merit a sentence outside of the
Guidelines range. Id. at 12-13, 14-15.
No. 04-3978 13
Granting due deference to the district judge’s discretion
in sentencing, we cannot say that Laufle has rebutted the
presumption of reasonableness that attaches to a sentence
within the advisory Guidelines range. The court imposed
the sentence it did for reasons that “are logical and consis-
tent with the factors set forth in section 3553(a).” Williams,
425 F.3d at 481. Although Laufle may have otherwise led a
law-abiding, even commendable life, he nonetheless lent
important support to a narcotics conspiracy over a substan-
tial period of time, apparently for the easy money. And
although he did cooperate fully with the government, we
cannot say that his assistance was so significant as to
compel the district court to give him more credit for his
cooperation than it did. (We point out that Laufle did
receive the maximum possible reduction in his offense level
for acceptance of responsibility.) It is possible that a
different sentencing judge might have given more weight to
the factors Laufle has emphasized. But disagreement with
this judge’s assessment of the relevant sentencing factors
does not by itself warrant reversal, for “[t]he question is not
how we ourselves would have resolved the factors identified
as relevant by section 3553(a) . . . nor what sentence we
ourselves ultimately might have decided to impose on the
defendant.” Williams, 425 F.3d at 481; see also United
States v. Newsom, 428 F.3d 685, 686-87 (7th Cir. 2005). Our
task is confined to determining whether the district court
considered the appropriate range of factors and arrived at
a reasonable sentence. We can say with assurance that this
is not one of the rare cases in which one or more mitigating
factors demand a sentence below the Guidelines range. See
Mykytiuk, 415 F.3d at 608.
III.
The error in treating the Sentencing Guidelines as
mandatory was harmless, given the district court’s determi-
14 No. 04-3978
nation that it would impose the same sentence even if the
Guidelines were deemed advisory rather than mandatory.
As the sentence imposed is within the Guidelines range, it
is presumptively reasonable, and Laufle has not rebutted
that presumption. The district court articulated a rationale
for the sentence that is consistent with 18 U.S.C. § 3553(a),
and the court neither overlooked nor improperly discounted
any mitigating factor that warranted a sentence outside of
the Guidelines range.
AFFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-11-06