United States v. Damon Lindsey ( 2009 )

NONPRECEDENTIAL DISPOSITION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 December 10, 2008
Decided June 12, 2009
Before
RICHARD A. POSNER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 08-2995
UNITED STATES OF AMERICA, ] Appeal from the United
] States District Court for
Plaintiff-Appellee, ] the Southern District of
] Indiana, Indianapolis Division
v. ]
] No. 98 CR 00095
DAMON W. LINDSEY, ]
] Sarah Evans Barker,
Defendant-Appellant. ] Judge.
ORDER
In January, 1999, Damon Lindsey pled guilty to possession with intent to distribute
cocaine base in violation of 21 U.S.C. § 841(a)(1) and was sentenced to 135 months’
imprisonment followed by 5 years of supervised release. After Amendment 706 of the
Guidelines reduced the base offense levels for crack cocaine offenses, Lindsey sought and
obtained a sentence reduction under 18 U.S.C. § 3582(c). See U.S.S.G., Supp. to App. C
226-31 (2008)(“Amendment 706”). His sentence was reduced to time served effective
No. 08-2995 2
March 13, 2008, and he embarked upon his five-year term of supervised release. One
condition of that supervised release was that he not commit another federal, state or local
crime.
Within two weeks, Lindsey had another encounter with the criminal legal system.
On March 27, 2008, he was arrested and charged in state court with burglary resulting in
bodily injury, armed robbery, and battery by means of a deadly weapon. Those charges
stemmed from an incident in which approximately four men including Lindsey drove to
the victim’s house, broke down the door and beat him in an apparent attempt to steal
drugs believed to be at the house. The men left with $2000 in cash, as wells as the victim’s
coat, wallet and necklace. Within approximately six minutes, Lindsey and his accomplices
were arrested two blocks away. Lindsey was wearing the stolen necklace, and he and two
other men arrested each possessed between $500 and $510 in cash on them.
A petition to revoke Lindsey’s supervised release was then filed. After a hearing the
magistrate judge found Lindsey to be in violation of the terms of supervised release, and
recommended revocation of that release and a term of incarceration of 60 months. The
district court adopted that report and recommendation, and Lindsey appeals. On appeal,
Lindsey does not argue that the evidence was insufficient to support the court’s
determination that he committed the above offenses. His only contention on appeal is that
the court failed to consider the § 3553 factors when imposing a sentence that was 23 months
longer than the upper Guideline range. See 18 U.S.C. § 3553.
Pursuant to 18 U.S.C. § 3583(e), a court may revoke a defendant’s supervised release
and impose a sentence after considering the factors set forth in 18 U.S.C. § 3553(a). There is
no requirement that the court explicitly identify and discuss each factor; it is sufficient if
the court properly calculates the Guidelines range, and provides reasons for its departure
that reflect the factors set forth in § 3553. United States v. Tockes, 530 F.3d 628, 634 (7th Cir.
2008); United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005); United States v. Williams, 425
F.3d 478, 480 (7th Cir. 2005). That standard was met here. In deciding to depart from the
Guidelines range, the court noted that Lindsey had committed crimes of violence that
resulted in physical injury to the victim, and declared that because of the nature of the
committed offenses and because he had only been released from custody for two weeks
when he committed those violent crimes, a departure was appropriate.
Those considerations that formed the basis for the departure reflect a number of the
§ 3553 factors, including consideration of the nature and circumstances of the offense, the
history and characteristics of the defendant, the need for the sentence to reflect the
seriousness of the offense and promote respect for the law, the need to provide adequate
deterrence, and the protection of the public. The court focused on the violent nature of the
No. 08-2995 3
crime which placed the victim in fear for his life and resulted in physical injuries, and the
extremely short window between his release and his commission of those violent offenses.
Those factors are relevant under the factors listed above, in that they address the nature
and seriousness of the offense, the need to deter such conduct and promote respect for the
law, and the danger posed to the public. Certainly, it was reasonable for the court to
determine that a defendant who would commit such a serious and violent offense within
weeks of his release posed a special danger and warranted a more severe sentence.
Because the factors identified by the court to support the sentence were the proper
considerations under § 3553, Lindsey has failed to demonstrate error in the sentence. The
decision of the district court is AFFIRMED.