United States v. Thomas, Kendrick ( 2007 )

NONPRECEDENTIAL DISPOSITION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
Argued April 17, 2007
Decided April 25, 2007
Before
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-3209
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Eastern Division
v. No. 04 CR 965-1
KENDRICK THOMAS, Mark R. Filip,
Defendant-Appellant. Judge.
ORDER
After Kendrick Thomas pleaded guilty to possessing cocaine base with intent
to distribute, 21 U.S.C. § 841(a)(1), the district court sentenced him to 188 months
imprisonment, the bottom of his properly calculated guidelines range. He argues
that his sentence is unreasonable because most of his prior offenses were
misdemeanors and traffic violations, yet when added up they put him in criminal-
history Category VI. He also contends that affording a presumption of
reasonableness to a sentence within the guidelines range creates a “de facto binding
guidelines regime” in contravention of United States v. Booker, 543 U.S. 220 (2005).
No. 06-3209 Page 2
In 2003 a Drug Enforcement Administration task force investigated crack
dealing by the Gangster Disciples street gang in Elgin, Illinois. During the
investigation an informant bought crack from Thomas on two occasions. The first
transaction involved 53 grams and the second, 115 grams. Thomas was charged
with two counts of possessing crack (cocaine base) with intent to distribute, 21
U.S.C. § 841(a)(1), and he pleaded guilty to both counts. The quantity of crack
triggered ten-year mandatory minimums by statute, id. § 841(b)(1)(A)(iii), and a
total offense level of 31 under the sentencing guidelines. U.S.S.G. §§ 2D1.1(c)(3);
3E1.1.
The district court counted 13 criminal history points, which placed Thomas
in Category VI. Thomas was convicted of reckless conduct in 1995, resisting a
peace officer and contributing to the delinquency of a minor in 1996, attempted
aggravated battery in 1997, criminal trespass and aggravated battery in 1999, and
possession of cannabis in 2002. He also was convicted ten times between 1995 and
2002 of driving without a license or while his license was suspended. Thomas
conceded that he was correctly classified as Category VI, but he argued that the
district court should sentence him below the guidelines range because his criminal
history consisted of “petty misdemeanor[s]” rather than crimes of violence or drug
dealing. The district court acknowledged that some of Thomas’s convictions were
for minor offenses, and offered that as a reason for selecting a sentence of 188
months, the bottom of Thomas’s guidelines range. The court declined to go lower
because some of Thomas’s convictions were for crimes of violence, and because the
sheer number of convictions was “extraordinary.”
On appeal Thomas primarily argues—somewhat anachronistically—that
he is “entitled” to a one-level “departure” in his criminal history category because,
in his view, placement in Category VI substantially over-represents both the
seriousness of his criminal history and the likelihood that he will commit other
crimes. If a defendant is able to persuade a sentencing court of such contentions,
U.S.S.G. § 4A1.3(b)(1) encourages the court to downwardly “depart” from the
guidelines in imposing sentence. But arguing whether Thomas qualifies for a
downward “departure” is a needless complication after United States v. Booker,
543 U.S. 220 (2005). See United States v. Spano, 476 F.3d 476, 480 (7th Cir. 2007)
(noting obsolescence of “departures” post-Booker).
The real question on appeal is whether the district court considered the
factors set forth in 18 U.S.C. § 3553(a) and imposed a sentence that is reasonable.
United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006). Here, the district court
considered Thomas’s argument that his relatively modest criminal history militated
for a below-range sentence but ultimately rejected it, noting that Thomas “has been
shown leniency repeatedly and then nonetheless has chosen to continue to break
No. 06-3209 Page 3
the law.” The court also described the impact of Thomas’s crime on the Elgin
community where, according to a task force officer who testified at sentencing,
“open-air drug markets” forced children off the streets. The court cited the need
to generally deter such crimes as well as a need to specifically deter Thomas as
justification for the 188-month sentence; the court was required to do no more.
See United States v. Nitch, 477 F.3d 933, 937 (7th Cir. 2007); United States v. Dean,
414 F.3d 725, 729 (7th Cir. 2005).
Although the district court refused to sentence Thomas below his guidelines
range, it cited, as we have noted, Thomas’s criminal-history argument as the
primary reason for selecting 188 months, the bottom of the range. Thomas is not
satisfied with that concession, maintaining on appeal that his sentence is unduly
severe because it is driven by his “minor offense and traffic violations.” But in truth
the quantity of crack Thomas dealt, not his criminal history, largely determined his
sentence. Only three of Thomas’s ten convictions for driving without a valid license
were counted in his criminal history score. If they had been left out of the equation
entirely, his criminal history score would drop to a Category IV, but his 188-month
sentence would still be within the guidelines range. Cf. United States v. Stitman,
472 F.3d 983, 989 (7th Cir. 2007) (noting that even if defendant prevailed on
argument to lower his properly calculated criminal-history category, his actual
sentence would still be within the new guidelines range). Nor is Thomas’s sentence
unreasonable, as he urges, simply because many of his prior crimes were
misdemeanors. See United States v. Garner, 454 F.3d 743, 751 (7th Cir. 2006)
(upholding Category VI designation and sentence at high end of guidelines range
although defendant’s criminal past consisted solely of misdemeanors).
Thomas also asserts that the presumption of reasonableness afforded on
appeal to sentences within a properly calculated guidelines range, see, e.g., United
States v. Gama-Gonzalez, 469 F.3d 1109, 1110-11 (7th Cir. 2006); United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005), “virtually reinstates the previous
mandatory sentencing regime” because district courts “refuse to apply below-
[g]uidelines sentences unless there are glaring extraordinary circumstances
present.” He argues that the presumption caused the district court to select a
sentence based on “strict [g]uideline calculations without adequate consideration
being given to [his] individual circumstances, history and characteristics.” But as
already discussed, the district court in fact explicitly considered the § 3553(a)
factors and articulated point-by-point responses to each argument advanced by
Thomas in favor of a lower sentence. Thomas cites to the Supreme Court’s decision
to grant certiorari in United States v. Rita, No. 05-4674, 177 F. App’x 357 (4th Cir.
May 1, 2006), cert. granted, 127 S. Ct. 551 (U.S. Nov. 3, 2006) (No. 06-5754), and
United States v. Claiborne, 439 F.3d 479 (8th Cir. 2006), cert. granted, 127 S. Ct.
551 (U.S. Nov. 3, 2006) (No. 06-5618), but the citations are perfunctory; he does not
explain how the potential resolution of either case might bear on his sentence.
No. 06-3209 Page 4
Accordingly, the judgment of the district court is AFFIRMED.