United States v. Dennis Weathers ( 2018 )

NONPRECEDENTIAL DISPOSITION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 November 15, 2018
Decided December 7, 2018
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 17-3518
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 16 CR 732-1
DENNIS WEATHERS,
Defendant-Appellant. Charles P. Kocoras,
Judge.
ORDER
Dennis Weathers, a convicted felon, shot Allante Elmore 11 times. Elmore
survived, and Weathers pleaded guilty to unlawfully possessing a firearm. See 18 U.S.C.
§ 922(g)(1). The guidelines imprisonment range was 78–97 months, but the district court
imposed a 120-month term, the statutory maximum. See 18 U.S.C. § 924(a)(2). On
appeal, Weathers argues that his sentence is unreasonable because the court over-relied
on his uncharged offense-related conduct (the shooting) and over-emphasized general
deterrence. Because the court appropriately considered both, we affirm.
No. 17-3518 Page 2
Background
Weathers shot Elmore 11 times with a handgun, causing him to sustain 20 entry
and exit wounds. Weathers admitted that he intended to rob Elmore and shot him after
the two struggled over Weathers’s gun. Given his criminal history, Weathers pleaded
guilty to the unlawful possession of a firearm by a felon under § 922(g)(1). The district
court sentenced Weathers to the statutory maximum of 10 years’ imprisonment.
See § 924(a)(2). It calculated an offense level of 26 and a criminal history category of III,
yielding a guidelines range of 78–97 months’ imprisonment. See U.S.S.G. ch. 5, pt. A.
This calculation included a four-level enhancement because Weathers possessed the
gun in connection with aggravated battery. See U.S.S.G. § 2K2.1(b)(6)(B). The court then
turned to the statutory sentencing factors, see 18 U.S.C. § 3553(a), and varied upward
from the guidelines range.
In doing so, the court considered Weathers’s difficult childhood and his attempt
in court to distinguish the underlying shooting from the actual elements of the gun-
possession offense. Acknowledging that Weathers’s tough childhood may have played
a role in his choices, the court nevertheless concluded it could not “divorce” Weathers’s
possession of the gun from how he used it. Calling Weathers’s conduct “the most
egregious” § 922(g) case it had ever assessed, the district court had “no doubt” that
Weathers “intended to kill” Elmore, based on the forensic evidence. The court also
emphasized the need for deterrence and to make “an example” of Weathers in light of
increased gun violence in Chicago.
Analysis
Weathers challenges his sentence as unreasonable. This court reviews the
sentence for an abuse of discretion. See Gall v. United States, 552 U.S. 38, 46 (2007);
United States v. Adams, 879 F.3d 826, 829 (7th Cir. 2018). An above-guidelines sentence
will be upheld “so long as the district court offered an adequate statement of its reasons,
consistent with 18 U.S.C. § 3553(a).” United States v. Wade, 890 F.3d 629, 633 (7th Cir.
2018) (per curiam) (citation omitted).
Weathers first argues that the court erred by relying on his uncharged offense-
related conduct; he cites Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne
v. United States, 570 U.S. 99 (2013), to argue that sentencing courts cannot use uncharged
conduct as the “primary” basis for a sentence. Apprendi and Alleyne, however, hold only
that a court may not increase statutory maximum or minimum penalties based on
No. 17-3518 Page 3
findings related to uncharged or acquitted conduct made under a preponderance
standard. Apprendi, 530 U.S. at 490; Alleyne, 570 U.S. at 116. That does not mean a
sentencing court must disregard uncharged conduct in selecting a sentence within the
statutory range. See Alleyne, 570 U.S. at 116 (“Our ruling today does not mean that any
fact that influences judicial discretion must be found by a jury.”). To the contrary, a
district court may consider relevant conduct at sentencing if proved by a
preponderance of evidence. See, e.g. United States v. Watts, 519 U.S. 148, 156–57
(1997); United States v. Musgraves, 883 F.3d 709, 713 (7th Cir. 2018); United States v. Ranjel,
872 F.3d 815, 820 (7th Cir. 2017).
Here, the court found that Weathers committed aggravated battery by a
preponderance of evidence. Indeed, it had “no doubt” that Weathers “intended to kill”
Elmore based on the forensic evidence. Thus, the judge did not err by sentencing
Weathers to the statutory maximum.
Weathers next contends that the district court over-emphasized general
deterrence because some academic studies suggest that longer sentences for certain
defendants do not deter others from committing similar crimes. Sentencing law,
however, requires sentencing courts to reckon with deterrence, see § 3553(a)(2)(B), so
there is no abuse of discretion in considering it among other § 3553(a) factors,
see United States v. Sunmola, 887 F.3d 830, 841–42 (7th Cir. 2018); see also United States
v. Flores-Machicote, 706 F.3d 16, 23 (1st Cir. 2013) (sentencing judges “need not afford
equal weight to each factor”). Here, the district court did just that: it emphasized that
this case was the “most egregious” § 922(g) matter it had ever assessed, and concluded
Weathers was to be “an example.” This shows that the court based Weathers’s sentence
not only on general deterrence, but also on Weathers’s individual circumstances under
§ 3553(a)(2)(A).
Of course, in selecting an above-guidelines sentence, the court had to “explain
and support the magnitude of the variance.” United States v. Warner, 792 F.3d 847, 855
(7th Cir. 2015). The court’s explanation, however, is reasonable in light of our decisions
to affirm above-guidelines sentences based on similar considerations of uncharged
violent conduct. See, e.g. United States v. Mejia, 859 F.3d 475, 478–79 (7th Cir. 2017)
(30 months above guidelines range for felon-in-possession conviction with related, but
uncharged, aggravated assault); United States v. Gill, 824 F.3d 653, 657, 659, 665–666
(7th Cir. 2016) (33 months above guidelines range for heroin distribution conspiracy
involving uncharged violent activity); United States v. Abebe, 651 F.3d 653, 655–57
No. 17-3518 Page 4
(7th Cir. 2011) (75 months above guidelines range for armed robbery conviction
involving uncharged shooting of a bystander).
Finally, Weathers cites United States v. Presley, 790 F.3d 699, 700–04 (7th Cir.
2015), in which this court remanded a 37-year sentence for reconsideration in light of
academic studies suggesting that lengthy sentences are ineffective for specific
deterrence. Presley is inapplicable, however, because the court here considered general,
not specific deterrence.
AFFIRMED.