United States v. Felipe Padilla ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1896
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
F ELIPE P ADILLA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:04-cr-00784-2—Samuel Der-Yeghiayan, Judge.
A RGUED JULY 8, 2010—D ECIDED A UGUST 19, 2010
Before B AUER, R IPPLE, and W ILLIAMS, Circuit Judges.
P ER C URIAM. Felipe Padilla pleaded guilty to dis-
tributing crack cocaine. See 21 U.S.C. § 841(a)(1). He faced
a statutory minimum sentence of 240 months because
previously he had been convicted of a felony drug
offense. See id. § 841(b)(1)(A). Explaining that Padilla
had an “atrocious” criminal history and represented a
“significant danger to the public,” the district court
sentenced him to 327 months’ imprisonment. Padilla ap-
2 No. 09-1896
peals, but because his sentence is reasonable, we affirm
the judgment.
Padilla was indicted after selling crack cocaine to an
undercover agent. See United States v. Padilla, 520 F.3d
766, 768 (7th Cir. 2008). He pleaded guilty, and a
probation officer calculated a Guidelines range of 151 to
188 months’ imprisonment. Id. at 769, 772. But Padilla
faced a statutory minimum of 240 months’ imprison-
ment under 21 U.S.C. § 841(b)(1)(A) because previously
he had been convicted of a felony drug offense, so the
officer applied U.S.S.G. § 5G1.1(b) and determined that
the Guideline sentence was also 240 months. Id. at 772.
The district court sentenced Padilla to an above-
Guidelines term of 327 months’ imprisonment. Id. at 772-
73. We vacated the judgment and remanded for resen-
tencing because it was not possible to say whether the
district court would have imposed the same term of
imprisonment had it known about its discretion under
Kimbrough v. United States, 552 U.S. 85, 109-10 (2007), to
consider “the harsh effects of the crack sentencing dis-
parity.” Padilla, 520 F.3d at 774. Aside from agreeing
that Padilla’s Guideline range was indeed 240 months,
we reserved decision on all other sentencing issues. Id.
at 773.
On remand a probation officer alerted the district
court that, since his first sentencing, Padilla had been
involved in two prison incidents. According to prison
officials, Padilla solicited the murder of an inmate who
cooperated with the government; Padilla admitted
writing to a fellow gang member a note that commanded
No. 09-1896 3
“take care of it” but denied providing a homemade
weapon to use in the attack. Prison officials also re-
ported that, a few weeks later, Padilla attacked the
same inmate whose murder he had allegedly solicited,
repeatedly smashing his handcuffs against his victim’s
head.
At sentencing Padilla did not address “the harsh effects
of the crack sentencing disparity,” the very issue that
had prompted our remand. Instead he argued that the
statutory minimum sentence of 240 months was “more
than sufficient punishment.” In addition he requested
that his sentence run concurrent to three undischarged
terms of imprisonment he faced on unrelated state
charges. He insisted that, as demonstrated by his partic-
ipation in several prison self-improvement programs,
he had changed his ways. By the time he had served
the mandatory minimum sentence, he emphasized, he
would be an “old man unlikely to recidivate.” As for the
suggestion that he had tried to solicit the murder of a
fellow inmate, he noted that he had never been charged
and that those allegations had not been proven in court.
The district court again sentenced Padilla to 327 months’
imprisonment. Emphasizing Padilla’s “remarkably ex-
tensive criminal history,” the “serious infractions” he
had committed in prison, and his repeated failure “to
turn his life around and to show his respect for the
law,” the court enumerated a total of 10 justifications
for its above-Guidelines sentence:
(1) [T]he large number of prior criminal convictions
for this defendant, (2) the violent nature of many
of the[] defendant’s prior criminal convictions, (3) the
4 No. 09-1896
fact that defendant has a history of unlawful use of
a dangerous weapon[], (4) the fact that prior prison
sentences have had no effect on deterring the defen-
dant or providing in this defendant a respect for
the law, (5) the fact that the defendant has an undeni-
able affiliation with a violent street gang, (6) the
fact that the defendant’s criminal history category
dramatically understates this defendant’s prior crimi-
nal conduct, (7) the fact that the instant crime
was serious to the extent that it involved a large
and sophisticated drug transaction in the form of
crack cocaine, (8) the fact that the instant offense
was committed close in time to the defendant’s
release from a prior offense and in fact while the
defendant was still on parole for that offense, (9) the
fact that the defendant has engaged in serious in-
fractions at his institution of incarceration during
the time since his first sentence in this case, and
(10) the fact that the defendant clearly represents a
significant danger to the public . . . .
The court further noted that Padilla had accumulated
27 criminal-history points, which placed him in Cate-
gory VI. Because a mere 13 criminal-history points are
sufficient to place a defendant in Category VI, the
district court explained, Padilla “could have committed
half of the number of crimes that he has committed and
would still be in the . . . category . . . that is reserved for
the offenders with the [worst] criminal history.” Plus, the
court continued, six of the felonies that Padilla had com-
mitted were crimes of violence. The district court also
ordered that Padilla’s sentence run consecutive to his
No. 09-1896 5
undischarged state sentences, focusing in particular on
the need to protect the public. Padilla’s “criminal
history, his gang activities, his violent crimes and vio-
lent behavior, and his involvement with the distribution
of large quantities of drugs are all factors that make [him]
a danger,” the court concluded. Finally the court noted
that, although neither party had addressed “the harsh
effects of the crack sentencing disparity,” it had never-
theless considered this element in reaching an appro-
priate sentence.
On appeal Padilla contends that his above-Guidelines
sentence is unreasonable. He argues that, although the
district court recited the sentencing factors enumerated
in 18 U.S.C. § 3553(a), “it never connected these pur-
poses to the need to impose such an excessive sen-
tence.” But that simply is not true. In considering
Padilla’s history and characteristics, see 18 U.S.C.
§ 3553(a)(1), for example, the court highlighted his “re-
markably extensive” criminal record before concluding
that he was a “perpetual offender” who had not been
deterred by previous stints in jail. And in considering
the need to promote respect for the law, see id.§ 3553(a)(2)(A), the court described Padilla as an “incorri-
gible offender” who repeatedly “had the opportunity
to turn his life around and to show his respect for the
law and in every case he failed to do so.” Finally, citing
Padilla’s history of violence and recidivism, the court
identified a significant need both to deter him from
engaging in future criminal activity and to protect the
public. See id. § 3553(a)(2)(B), (C). The district court’s
thorough and thoughtful application of the statutory
6 No. 09-1896
factors to the facts of Padilla’s case produced a sentence
firmly anchored to the considerations required by
§ 3553(a). And the court’s explanation for imposing an
above-range sentence is sufficiently compelling to
justify the degree of departure from the Guidelines. See
Gall v. United States, 552 U.S. 38, 50 (2007); United States
v. Angle, 598 F.3d 352, 359 (7th Cir. 2010).
Next Padilla assails the district court’s “blind” conclu-
sion that his criminal-history category underrepre-
sented his record. Although he does not dispute his
27 criminal-history points, he insists that, in determining
the degree to which his sentence departed from the
Guidelines, the court should have employed the “incre-
mental analysis” outlined in U.S.S.G. § 4A1.3(a)(4)(B).
Section 4A1.3(a)(4)(B) provides that, if a defendant’s
criminal history is underrepresented by Category VI,
“the court should structure the departure by moving
incrementally down the sentencing table to the next
higher offense level in Criminal History Category VI until
it finds a guideline range appropriate to the case.” See
generally United States v. Cross, 289 F.3d 476, 478 (7th Cir.
2002) (discussing several ways to fulfill § 4A1.3(a)(4)(B)’s
mandate). But Padilla fails to acknowledge that, as a
consequence of United States v. Booker, 543 U.S. 220 (2005),
the court was not required to follow § 4A1.3; it need
articulate its sentence only with reference to the § 3553(a)
factors. See United States v. Jackson, 547 F.3d 786, 793 (7th
Cir. 2008); United States v. Castro-Juarez, 425 F.3d 430, 436
(7th Cir. 2005). And as we explained above, that is pre-
cisely what the district court did.
No. 09-1896 7
Padilla also urges that the district court misapplied 18
U.S.C. § 3553(a)(2)(C) because it “made no attempt to
reconcile the need to protect the public with its belief
that Padilla at least was trying to change.” But as the
court made clear, while it hoped that Padilla indeed
had learned from his mistakes, it could not ignore his
high risk of recidivism. Nor could the court reconcile
Padilla’s assertion that he had changed his ways with
the “serious infractions” he had committed in prison.
Padilla next charges that the district court’s reasoning
on remand was “no more thorough or considered” than
its explanation at his first sentencing. He insists that
the court “basically repeated” the same reasons it articu-
lated the first time around. But although we previously
characterized the court’s explanation for Padilla’s sen-
tence as “slim at best,” we did not instruct the court to
find different justifications for its above-Guidelines sen-
tence; rather we told the court to expound upon those
justifications it had already provided and anchor them
to the § 3553(a) factors. Padilla, 520 F.3d at 775. And
indeed the court extensively considered the § 3553(a)
sentencing factors in an analysis that spans five pages
of the sentencing transcript.
Finally Padilla contends that, by ordering his sentence
to run consecutive to his undischarged state sentences,
the district court ran afoul of U.S.S.G. § 5G1.3(b), which
requires concurrent sentences under certain circum-
stances. But § 5G1.3(b) does not apply because Padilla’s
undischarged sentences do not encompass “relevant
conduct . . . that was the basis for an increase in the
8 No. 09-1896
offense level for the instant offense.” And, contrary to
Padilla’s suggestion, the fact that the court considered
these undischarged sentences in assessing his criminal
history is insufficient to bring them within the ambit of
§ 5G1.3(b). Therefore the decision whether to order
Padilla’s federal sentence to run consecutive or concur-
rent to his undischarged state sentences was entrusted
to the court’s discretion, guided by the § 3553(a) sen-
tencing factors. See 18 U.S.C. § 3584(a), (b); U.S.S.G.
§ 5G1.3(c); United States v. Bangsengthong, 550 F.3d 681, 683-
84 (7th Cir. 2008). Because the court conducted an intelli-
gent and exhaustive analysis of the § 3553(a) factors,
its decision to impose a consecutive sentence was rea-
sonable.
A FFIRMED.
8-19-10