United States v. Julius Statham ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2676
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JULIUS S TATHAM,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 CR 92—Virginia M. Kendall, Judge.
A RGUED M AY 6, 2009—D ECIDED S EPTEMBER 10, 2009
Before E ASTERBROOK, Chief Judge, and P OSNER and
W OOD , Circuit Judges.
W OOD , Circuit Judge. Julius Statham and eight others
were caught running guns from Mississippi to Chicago.
Statham pleaded guilty to his part in the conspiracy
and was sentenced to 60 months in prison. He now ap-
peals, arguing that the district court clearly erred when
it calculated his sentence under the U.S. Sentencing
Guidelines and abused its discretion by imposing an
2 No. 08-2676
unreasonable sentence. He takes issue with the district
court’s findings that his offense involved more than
24 weapons, that some of the weapons’ serial numbers
were obliterated, and that his prior offenses warranted
his placement in the Guidelines’ highest criminal
history category. In addition, he contends that the court
should not have given him a prison term longer than
the terms given to his co-defendants, nor, in his view,
was the court justified in deciding that his sentence
should run consecutively to an undischarged term of
imprisonment that he had received for a different crime.
Many of Statham’s arguments would be better suited
for a sentencing hearing before a district court. Federal
criminal sentencing relies on factual determinations and
discretionary decisions made by district judges. Our role
is to review those determinations to ensure that the
district court applied the correct legal standards, did not
clearly err in its factual determinations, and chose a
reasonable sentence. Because Statham has not identified
reversible error under any of those standards, we affirm.
I
Statham and two of his cousins, Roy Christopher
Brunt (“Christopher”) and Arness Brunt (“Arness”), took
part in a scheme to buy guns in Mississippi and transport
them for sale on the streets of Chicago. Christopher and
Arness obtained the weapons in Mississippi, where they
lived, and then drove them to Chicago, selling them to
Statham and others. Because Christopher was a con-
victed felon, he could not legally purchase firearms
No. 08-2676 3
himself, and so he recruited others to help. One recruit
was his stepbrother, Sylvester Rice. Like the others, Rice
bought weapons for Christopher in Mississippi and
accompanied Christopher to Chicago from time to time.
The scheme lasted from 1999 until 2005, when nine
people—including Statham, Christopher, Arness, and
Rice—were indicted for conspiring to distribute guns
illegally, in violation of 18 U.S.C. § 371. On March 5,
2008, without reaching an agreement with the govern-
ment, Statham pleaded guilty. Two months later, he
was sentenced to the statutory maximum of 60 months’
imprisonment.
At Statham’s sentencing hearing, the government and
Statham disagreed about how many guns were involved
in his crime. Statham admitted in a plea declaration that
he had asked his relatives to bring firearms to
Chicago; in that document, he estimated that somewhere
between three and seven firearms had been involved. By
the time the sentencing hearing began, Statham was
willing to admit that he actually had purchased some-
where in the neighborhood of eight to 24 guns. The gov-
ernment thought that this was still too low and presented
testimony from two cooperating witnesses—Christopher
and Rice—in support of its position.
Rice testified that he traveled to Chicago with Christo-
pher three or four times, bringing two guns for sale on
each occasion. Fearing the weapons might be traced
back to him, he scratched the serial numbers off all of
the guns that he bought. (Christopher corroborated
Rice’s testimony about removing serial numbers and
4 No. 08-2676
added that this was a common practice among all of the
people he recruited.) Rice also testified that Christopher
brought additional guns to sell on these trips, though
he did not know how many. Rice said that on the first
trip, he and Christopher checked into a hotel, where
Statham came to meet them. Christopher gave Statham
a bag, which Rice assumed included the two weapons
that Rice had brought along. On his second trip to
Chicago, Rice recounted, a similar transaction took place.
This time, however, it was at the home of Christopher’s
sister; Rice remained indoors while Christopher and
Statham traded guns for money outside of the house.
Christopher’s testimony contradicted Rice’s on a
number of points. Christopher described the deal at the
hotel differently, recalling that the exchange with
Statham occurred out of Rice’s view and earshot.
Perhaps more importantly, Christopher testified that Rice
accompanied him to Chicago only once, and that he
provided only one gun on that trip. Christopher also
testified that he took approximately 20 trips to Chicago
in all, selling Statham 25 firearms of his own as well as
10 that he had transported on behalf of others. (There
were other conflicts in the testimony that did not
concern the number of weapons involved, except insofar
as they bore on credibility generally.)
After hearing this testimony and argument from both
sides, the district court adopted all of the recommenda-
tions in the Presentence Investigation Report (“PSR”).
Using the 2004 Guidelines Manual (because a different
judge had sentenced Statham’s co-defendants under that
No. 08-2676 5
version—technically it should have used the manual in
force at the time of sentencing, see U.S.S.G. § 1B1.11(a),
but Statham said nothing about this on appeal, and so
neither do we), the district court calculated a Guidelines
range of 63 to 78 months. Statham’s base offense level
was 14. The district court added six levels to that based
on its finding that Statham’s offense involved more than
24 firearms, and another two levels because at least one
of those guns had an obliterated serial number, for a
total of 22 points. It then subtracted three levels for ac-
ceptance of responsibility, which yielded a final offense
level of 19. Statham fell in criminal history category VI.
The district court took a conservative approach in
calculating the number of weapons Statham moved. It
found that Christopher and Rice were credible and that
their testimony was not wholly divergent. Based on their
information, the court decided that Christopher had sold
20 guns to Statham while Rice had provided two. In
addition, the court took into account Arness’s plea agree-
ment, in which Arness admitted selling Statham some-
where between 12 and 15 guns. Finding this admission
credible as well, the court concluded that Arness had
provided Statham at least an additional seven weapons,
resulting in a total of 29. (It is worth noting just how
conservative this estimate was: if the district court
had relied on the maximum number of guns that each
of the sources admitted selling Statham, it easily might
have found that the offense involved between 50 and
60 weapons.)
To calculate Statham’s criminal history category, the
district court started with 15 criminal history points
6 No. 08-2676
tallied from Statham’s seven prior convictions and
added three points because Statham committed his
offense while on parole and within two years of release
from prison. The total of 18 criminal history points
placed Statham easily in criminal history category VI. In
the end, the court chose a sentence of 60 months, which
is the statutory maximum under 18 U.S.C. § 371 and just
below Statham’s minimum Guidelines sentence. The
district court ordered the sentence to run consecutively
to an undischarged term of imprisonment that had been
imposed by a different judge two months earlier, after
Statham pleaded guilty to charges related to a drug
trafficking conspiracy.
II
A
Statham argues that the district court committed clear
error in calculating his Guidelines range. He advances
three theories in support of this argument. First, he
asserts that the district court erred when it found that
his offense involved 29 firearms, which caused it to
increase his offense level by six under U.S.S.G.
§ 2K2.1(b)(1) (calling for such an increase if an offense
involves between 25 and 99 weapons). Second, he con-
tends that the district court erred by adding two offense
levels under U.S.S.G. § 2K2.1(b)(4) because the guns had
obliterated serial numbers. Finally, he challenges his
placement in criminal history category VI. We con-
sider these points in turn.
No. 08-2676 7
Statham admitted that he bought between eight and
24 guns, and so, for the § 2K2.1(b)(1) increase to apply,
the court needed to find that only one more gun was
involved. Statham argues that the court should not have
relied on the testimony of Christopher and Rice, as well
as Arness’s plea agreement, to find that last gun. In
support of that point, Statham urges that the divergence
between Christopher’s and Rice’s testimony reveals
that the information they provided lacked sufficient
indicia of reliability and so the district court’s reliance on
that information was clear error. Insofar as he acknowl-
edges that the formal rules of evidence applied in
criminal trials do not govern sentencing, he is correct. See
United States v. Taylor, 72 F.3d 533, 543 (7th Cir. 1995).
As he also may be conceding, we require only
that the information considered has sufficient indicia of
reliability to support its probable accuracy. See id.,
U.S.S.G. § 6A1.3(a). In addition, the defendant must
have—and Statham did have—an opportunity to rebut
any evidence that is presented. See United States v. Omole,
523 F.3d 691, 701-02 (7th Cir. 2008).
After hearing testimony (including cross-examination)
and argument about the reliability of that testimony,
the district court found that the accounts of the wit-
nesses were not “drastically divergent,” that what “one
might read as lack of credibility” on Rice’s part was
simply “lack of intelligence in understanding the ques-
tion,” and that “the testimony of Mr. Rice is credible [and]
the testimony of Mr. Roy Christopher Brunt was credible
as far as his description of how many firearms he’s
brought.” The district court’s credibility determination
was not clearly erroneous.
8 No. 08-2676
Statham’s attack on the court’s use of Arness’s plea
agreement runs into problems as well. Statham argues
that the statements in Arness’s plea agreement could not
be relied upon because they were not subject to cross-
examination and the plea agreement itself lacked suf-
ficient indicia of reliability. Hearsay, however, is admissi-
ble at sentencing and no constitutional provision is of-
fended when statements used to make sentencing deter-
minations are not subjected to cross-examination. See
United States v. Roche, 415 F.3d 614, 618 (7th Cir. 2005). In
addition, a plea agreement need not be corroborated by
testimony or other evidence to be reliable; some plea
agreements may possess sufficient indicia of reliability
in and of themselves. Cf. United States v. Mendoza, No. 08-
2403, slip op. at 12 (7th Cir. Aug. 12, 2009) (“We do not
require that the testimony of a biased witness be corrobo-
rated by other evidence to justify the district court’s
reliance on such testimony.”). In this case, nothing about
Arness’s plea agreement gives us reason to doubt the
district court’s judgment that it was reliable. In addition,
Statham’s admission in his own plea declaration that
he “asked his cousin Arness Brunt . . . to purchase
firearms on his behalf” surely would suffice. There is
no reason to upset the credibility determinations of the
district court; the information on which it depended
was reliable; and it did not commit clear error when it
applied a six-level increase to Statham’s offense level.
Statham’s second argument attacks the district court’s
enhancement based on the obliterated serial numbers.
Section 2K2.1(b)(4) of the Guidelines directs a district
court to impose a two-level increase if a gun involved
No. 08-2676 9
in the offense “had an altered or obliterated serial num-
ber.” Statham need not have known that serial numbers
had been removed from the weapons. See United States
v. Schnell, 982 F.2d 216, 217 (7th Cir. 1992) (holding that
the absence of a scienter element in § 2K2.1(b)(4) does not
violate substantive due process). Instead, the court
needed to find only that one of the guns involved in
Statham’s crime was in fact missing a serial number. Both
Rice and Christopher admitted that much. The court
decided that, “based upon [its] finding of credibility on
the part of Mr. Rice . . . . Statham knew or reasonably
should have known that those weapons had obliterated
serial numbers.” The district court’s finding that Statham
actually knew about the obliterated serial numbers may
have been unnecessary, but there is no evidence in the
record to undermine its credibility finding, its resulting
factual finding, or the ultimate offense level increase
that it imposed.
Statham’s final argument addresses the district court’s
decision to put him in criminal history category VI. He
offers two reasons why this was error. First, he presents
a curious argument that seems to confuse the case now
before us with another case of his pending in this court.
Statham says that it was error for the district court to
add “two [criminal history] points for allegedly commit-
ting an offense within two years of release from custody
on parole.” The problem, he continues, is that “[h]e was
charged with the sale of cocaine on January 31, 2005 . . . .
two years and two days after release from custody on
parole.” Whether this argument is ultimately persuasive
in United States v. Are, No. 07-3246 (7th Cir. argued Apr. 1,
10 No. 08-2676
2009), in which Statham challenges the sentence he re-
ceived after pleading guilty to his unrelated drug
offense, it makes no sense here. In the case before us, the
district court added three—not two—criminal history
points in its calculation of Statham’s criminal history
category: two because Statham committed the crime
while on parole, U.S.S.G. § 4A1.1(d), and one more
because the offense took place less than two years after
Statham got out of prison, § 4A1.1(e). Statham presents
no reason for us to conclude that these enhancements
were wrong.
Statham’s more comprehensible argument is that it
was error for the district court to treat three of his seven
prior convictions as separate offenses when it calculated
his criminal history category. Under § 4A1.1 of the Guide-
lines, criminal history points are assigned for each
prior sentence that a defendant has received. Thus, a
defendant may benefit if nominally distinct prior cases
are treated as a single conviction when criminal history
is calculated. Prior to Amendment 709 of the Guidelines,
which took effect on November 1, 2007, such “functional
consolidation” of cases could occur if a defendant showed
that the court that imposed sentences in the past “con-
sidered the cases sufficiently related for consolidation
and effectively entered one sentence for multiple con-
victions.” United States v. Vallejo, 373 F.3d 855, 858 (7th
Cir. 2004). (Section 4A1.2(a)(2) now provides that
multiple sentences should be regarded as one if they
were imposed on the same day, unless there was an
intervening arrest.) The district court’s determination
whether the defendant established functional consoli-
No. 08-2676 11
dation “is a matter of fact, to be reviewed deferentially
by the court of appeals.” United States v. Buford, 201
F.3d 937, 942 (7th Cir. 2000), aff’d, 532 U.S. 59 (2001).
On August 6, 1996 (actually August 6 and August 7, but
both parties treat the sentencing as if it had occurred on
one day), Statham was sentenced for three crimes: a
February 1989 burglary (upon the revocation of his
initial sentence of probation), theft and unlawful use of
a firearm by a felon in December 1995, and possession of
a controlled substance in February 1996. Statham argues
that the district court should have regarded these cases
as functionally consolidated because they were sen-
tenced on the “same” day and “the apparent intent of
the state judge was that a concurrent sentence was ap-
propriate punishment for all three convictions.” The
record does not support his argument. The apparent
intent of the state judge was that two of Statham’s sen-
tences were to run concurrently, while the sentence for
possession of a controlled substance was to run consecu-
tively to those other two. Even if this were not the case, the
district court found that functional consolidation was
inappropriate because each offense was separated by
an intervening arrest and the events and victims
involved in the three cases were completely different.
In the past, this court has relied on Application Note 3
to § 4A1.2 when evaluating the relatedness of prior sen-
tences. Relying on that Note, United States v. Best, held
that “[p]rior sentences are not considered related if they
were for offenses that were separated by an intervening
arrest.” 250 F.3d 1084, 1094 (7th Cir. 2001). While the
12 No. 08-2676
Sentencing Commission revised Application Note 3 in
Amendment 709, the logic of Best remains compelling. The
district court followed that logic, and its finding that
intervening arrests preclude consolidation of cases was
correct. Statham’s three crimes were entirely unrelated,
and he thus cannot meet his burden of showing functional
consolidation just because the sentences were imposed
at approximately the same time.
B
Our last task is straightforward: given our conclusion
that the district court correctly calculated the Guidelines
range, we review the resulting sentence for reasonable-
ness. Rita v. United States, 551 U.S. 338, 341 (2007); United
States v. McKinney, 543 F.3d 911, 913 (7th Cir. 2008).
Statham presents two arguments that the district court
abused its discretion and imposed an unreasonable
sentence. Neither one is persuasive.
Statham first argues that the district court abused its
discretion by ordering that his 60-month sentence run
consecutively to a 125-month sentence that was imposed
by a different judge in Statham’s unrelated drug conspir-
acy case (the one we noted earlier). He says that
the resulting combined term of imprisonment is unrea-
sonably harsh. The question for us is whether the district
court abused its discretion. United States v. Bangsengthong,
550 F.3d 681, 682 (7th Cir. 2008) (noting that, after United
States v. Booker, 543 U.S. 220 (2005), “a debate about how
much discretion the Guidelines themselves confer has the
air of the scholastic”). At sentencing, the district court
No. 08-2676 13
discussed Statham’s other case and explained why it
was choosing to impose a consecutive sentence:
That case involved the distribution of drugs, and it
had nothing to do with the sale of firearms to the
people here in the streets of Chicago. Those are com-
pletely separate offenses. . . . They take place at differ-
ent times. They involve different goals of a conspiracy,
and they involve different defendants, different
coconspirators. . . . [B]ased upon the fact that over
the course of the years, you have violated probations
and supervised release, I don’t see any reason why
you should get a benefit to having this sentence run
concurrently. . . . I do find it persuasive that there
would be no sentence for this gun trafficking if
I were to have it run concurrently.
While Statham is correct that the Guidelines seek to
avoid “the possibility that the fortuity of two separate
prosecutions will grossly increase a defendant’s sen-
tence,” Witte v. United States, 515 U.S. 389, 405 (1995)
(discussing U.S.S.G. § 5G1.3), there is nothing fortuitous
about the separation of his two prosecutions. They are
entirely unrelated, as the district court observed, and so
the court acted well within its discretion when it
decided that Statham’s sentence should run consecu-
tively. See 18 U.S.C. § 3584; U.S.S.G. § 5G1.3(c).
Finally, Statham contends that the disparity between
his sentence and those of his co-defendants makes his
sentence unreasonable. He stresses that 18 U.S.C.
§ 3553(a)(6) requires a sentencing court to “avoid unwar-
ranted sentence disparities among defendants with
14 No. 08-2676
similar records who have been found guilty of similar
conduct.” Nothing in that provision, however, suggests
that the district court abused its discretion or imposed
an unreasonable sentence when it imposed a term of
imprisonment different from that received by Statham’s co-
defendants.
In coming to that conclusion, we are not relying on
any presumption that a sentencing disparity is prob-
lematic only if it is between the defendant’s sentence
and the sentences imposed on other similarly situated
defendants nationwide. See generally United States v.
Woods, 556 F.3d 616, 623 (7th Cir. 2009); Omole, 523 F.3d at
700-01. Such a categorical rule is now foreclosed by Gall
v. United States, which endorsed a district court’s con-
sideration of the need to “avoid unwarranted disparities,
but also unwarranted similarities among other co-conspira-
tors” when calculating a reasonable sentence. 128 S. Ct.
586, 599-600 (2007). But even after Gall, § 3553(a)(6) does
not require that defendants in a single case be sentenced
to identical prison terms. To the contrary, that provision
seeks only to avoid “unwarranted” sentencing dispar-
ities. United States v. Bartlett, 567 F.3d 901, 908 (7th Cir.
2009). If a district court has correctly calculated a Guide-
lines range, we assume that significant consideration
has been given to avoiding unwarranted disparities
between sentences. Gall, 128 S. Ct. at 599; Bartlett, 567
F.3d at 908. And logically it is more likely that an unwar-
ranted discrepancy might be present if the court has
chosen sentences outside the Guidelines range. We are
therefore open in all cases to an argument that a defen-
dant’s sentence is unreasonable because of a disparity
No. 08-2676 15
with the sentence of a co-defendant, but such an argu-
ment will have more force when a judge departs from
a correctly calculated Guidelines range to impose the
sentence. Statham’s case does not fit that bill.
In Statham’s case, the different members of the conspir-
acy were not similarly situated; there is thus nothing
unreasonable about the fact that the sentences they re-
ceived were also different. Statham’s co-defendants
entered plea agreements with the government, cooperated
in the investigation, and had less-extensive criminal
histories. The district court was entitled to take these
facts into account when it chose each person’s sentence.
We conclude that Statham’s below-Guidelines, statutory
maximum sentence, was a reasonable one, in light of all
the relevant circumstances.
* * *
The district court’s judgment is A FFIRMED.
9-10-09