United States v. Cannon, Thomas L. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-1841 & 05-1842
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Cross-Appellant,
v.
THOMAS L. CANNON,
Defendant-Appellant,
Cross-Appellee.
____________
Appeals from the United States District Court
for the Central District of Illinois.
No. 03-20085-001—Harold A. Baker, Judge.
____________
ARGUED NOVEMBER 7, 2005—DECIDED NOVEMBER 29, 2005
____________
Before POSNER, EASTERBROOK, and WOOD, Circuit Judges.
EASTERBROOK, Circuit Judge. Convicted of possessing
cocaine base with intent to distribute, Thomas Cannon
contends that 21 U.S.C. §841 is unconstitutional because it
does not treat the quantity of drug as an element of the
offense. We have held otherwise, see United States v.
Brough, 243 F.3d 1078 (7th Cir. 2001), and do not per-
ceive a reason to revisit that decision. Nor was there
any problem in the trial. Although Cannon contends that
the jury instructions were vague about the meaning of
“cocaine base”—which, we have held, means “crack” rather
than other kinds of alkaline cocaine, see United States v.
2 Nos. 05-1841 & 05-1842
Edwards, 397 F.3d 570 (7th Cir. 2005)—he did not object or
ask for an explicit definition. Only plain error could lead to
relief now, and there is none because the jury did not need
more guidance: Cannon stipulated that the police seized
about 60 grams of “cocaine base (crack)” from the car he had
occupied immediately before his arrest (though he denied
intending to distribute that drug). His appellate lawyer
says that Cannon and trial counsel may not have appreci-
ated that there are varieties of cocaine base other than
crack, but Cannon surely knew whether his own inventory
was “crack.” This concession brought the substance within
the definition of “cocaine base.”
The prosecutor’s cross-appeal raises more substantial
issues. A person who distributes more than 50 grams of
crack “after two or more prior convictions for a felony drug
offense have become final” must be sentenced to life
imprisonment. 21 U.S.C. §841(b)(1)(A). Cannon has two
drug-felony convictions in Illinois, each for possessing less
than 15 grams of cocaine. (The exact amount does not
appear in the indictments or judgments.) But the dis-
trict judge declined to impose the statutory penalty. He
gave two reasons. First, he stated that, because each
episode involved small amounts, treating Cannon as having
two convictions would overstate the seriousness of his
criminal history. Second, the judge opined that United
States v. Booker, 125 S. Ct. 738 (2005), gives him discretion
“to decide what should be counted as a prior felony drug
conviction”—and though both offenses are felonies under
state law, they were not serious enough in the federal
judge’s eyes to count as drug felonies. Cannon received a
sentence of 20 years’ imprisonment, the minimum allowed
for someone who distributes more than 50 grams of crack
but has just one prior drug felony.
Neither of the district judge’s reasons holds water. Booker
has nothing to do with recidivist sentencing, as its own
Nos. 05-1841 & 05-1842 3
statement of the holding demonstrates: “Any fact (other
than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a
reasonable doubt.” 125 S. Ct. at 756 (emphasis added).
Indeed, Booker has nothing to do with minimum sentences.
The Court did not disturb Harris v. United States, 536 U.S.
545 (2002), which holds that the sixth amendment does not
require the jury to determine facts that establish floors
under criminal penalties. Booker and its precursors, back to
Apprendi v. New Jersey, 530 U.S. 466 (2000), are about who
decides (judge or jury?) under what burden (preponderance
or reasonable doubt?). They do not change legal rules that
prescribe available sentencing ranges or alter the terms of
recidivist laws. See, e.g., United States v. Duncan, 413 F.3d
680, 683 (7th Cir. 2005); United States v. Rivera, 411 F.3d
864, 866-67 (7th Cir. 2005); United States v. Lee, 399 F.3d
864, 866 (7th Cir. 2005); McReynolds v. United States, 397
F.3d 479, 481 (7th Cir. 2005).
Prior convictions that affect minimum sentences are not
treated like “criminal history” under the Sentencing
Guidelines, which both before and after Booker affects
the presumptive sentencing range without establishing
a floor. Recidivist provisions do set floors, and judges must
implement the legislative decision whether or not they
deem the defendant’s criminal record serious enough; the
point of such statutes is to limit judicial discretion rather
than appeal to the court’s sense of justice.
Thus in United States v. Vega-Montano, 341 F.3d 615,
619-20 (7th Cir. 2003), we held that a court may not de-
part from a mandatory minimum sentence by declaring that
the defendant’s criminal history overstates the seriousness
of his record. The technical question in Vega-Montano was
whether a court could disregard a limitation on the safety-
valve statute, which permits a sentence below an applicable
4 Nos. 05-1841 & 05-1842
statutory minimum if (among other things) the defendant
does not have more than one criminal history point. 18
U.S.C. §3553(f)(1). The district court concluded that Vega-
Montano, who had 3 criminal history points, should be
treated as if he had only 1, because (in the judge’s view) 3
points overstated the seriousness of his record. We held,
however, that the statutory question is how many points
the defendant had accumulated, not how serious the crimes
were in the judge’s estimation. Just so with §841(b)(1)(A).
Cannon had two drug-felony convictions; the district judge
was not free to deprecate their seriousness and disregard
Cannon’s actual criminal record. The statute speaks of any
drug felony, not just of those that entail large quantities.
Cannon suggests that the two offenses should be treated
as one, even though they were committed 14 months
apart, because sentencing occurred in a single proceeding.
He has in mind the standard of U.S.S.G. §4A1.2(a)(2) and
Application Note 3, which merges “related” cases for the
purpose of calculating criminal history points. Section
841(b)(1)(A) does not contain such a proviso. Cf. United
States v. Hudspeth, 42 F.3d 1015 (7th Cir. 1994) (en banc)
(discussing the way separate convictions are assessed under
the Armed Career Criminal statute). Language in the
Guidelines cannot be used to modify statutes. See, e.g., Neal
v. United States, 516 U.S. 284 (1996).
Even if §841(b)(1)(A) were treated like the criminal-
history guideline, Cannon could not benefit. Application
Note 3 says that prior sentences are not related if the
defendant was arrested for the first crime before com-
mitting the second. That describes Cannon’s behavior. He
was arrested on September 14, 1995, while in possession of
less than 15 grams of cocaine and was released pending
resolution of that charge. On November 11, 1996, he
was arrested again for possessing cocaine. He pleaded guilty
to both charges on December 1, 1997. Application Note 3
would require these convictions to be counted separately
Nos. 05-1841 & 05-1842 5
when calculating criminal history. They must be counted
separately under §841(b)(1)(A) as well.
Whether this recidivist provision is wise, and whether life
imprisonment is the best way to deal with repeat offenders
who peddle retail rather than wholesale quantities, is open
to doubt, but Booker does not permit courts to make
independent decisions about the wisdom of legislation.
Mandatory recidivist enhancements are compatible with the
eighth amendment. See Lockyer v. Andrade, 538 U.S. 63
(2003). Accordingly, although the conviction is affirmed,
Cannon’s sentence is vacated, and the case is remanded
with instructions to impose a sentence of life imprisonment.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-29-05