United States v. Thomas Trammell , 312 F. App'x 816 ( 2008 )

NONPRECEDENTIAL DISPOSITION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 August 5, 2008
Decided August 21, 2008
Before
RICHARD A. POSNER, Circuit Judge
JOHN L. COFFEY, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 08-1008
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of
Wisconsin.
v.
No. 07 CR 90
THOMAS TRAMMELL,
Defendant-Appellant. John C. Shabaz,
Judge.
ORDER
Thomas Trammell pleaded guilty to one count of armed bank robbery. See 18 U.S.C.
§ 2113(a), (d). The district court imposed a 200-month sentence to run consecutively to a
federal sentence Trammell was already serving for a different bank robbery. Trammell
appeals, arguing that the district court abused its discretion by declining to impose a
concurrent sentence. The district court was entitled to impose a consecutive sentence in
order “to achieve a reasonable punishment” for the offense, 18 U.S.C. § 3584; U.S.S.G.
§ 5G1.3(c), and it articulated legitimate reasons for doing so at sentencing. Therefore, we
affirm.
08-1008 Page 2
On July 8, 2005, Trammell entered a bank in Hudson, Wisconsin, handed the teller a
note demanding money, displayed the handle of a gun, and fled the bank with $2,101. He
was not apprehended until six months later, after he robbed another bank in Forest Lake,
Minnesota. He pleaded guilty to the Minnesota robbery and was sentenced by the United
States District Court for the District of Minnesota to 133 months’ imprisonment, United
States v. Trammell, No. 06-30 (ADM/JSM) (D. Minn. July 13, 2006), 18 months below his
advisory guidelines range, United States v. Trammell, 227 Fed. App’x 529, 530 (8th Cir. July 3,
2007). During the Minnesota proceedings, Trammell was never given an opportunity to
stipulate to the armed bank robbery he had committed in Wisconsin. See U.S.S.G.
§ 1B1.2(c). If he had been given that opportunity and availed himself of it, Trammell—a
career offender, see U.S.S.G. § 4B1.1—would have faced a combined guidelines range of 188
to 235 months for both offenses, the same range he later faced for the Wisconsin offense
alone.
Almost a year after the Minnesota sentence was imposed, Trammell was indicted
for the Wisconsin bank robbery. In exchange for his guilty plea, the government
recommended that the district court impose a within-guidelines sentence to run
concurrently with his undischarged sentence for the Minnesota heist.
At sentencing the district court invited the prosecutor to comment on the fact that
Trammell was not given a chance to stipulate to the Wisconsin crime when he was before
the district court in Minnesota. The prosecutor noted that Trammell had received a below-
guidelines sentence for the Minnesota robbery and then observed that her office would
probably not have recommended a “downward variance in this type of case.” She said that
that is why her office “do[es]n’t typically care to allow our crimes to be sentenced in other
courts.” The district court replied, “Particularly Minnesota.” After explaining to the
district court that if Trammell had been given an opportunity to stipulate, his guidelines
range for both crimes would have been the same as his guidelines range for the Wisconsin
crime alone, the prosecutor suggested that a within-guidelines concurrent sentence would
be reasonable.
Defense counsel likewise requested a concurrent sentence, arguing that Trammell
had not pulled a weapon during the robbery and had voluntarily participated in
counseling programs while in prison. Defense counsel also pointed out that just before he
robbed the bank in Wisconsin, Trammell stopped taking medication for his bipolar
disorder because he could no longer afford it.
The district court reviewed a letter from Trammell’s wife describing him as
wonderful husband and explaining that he would be missed terribly by his children while
in prison. The court also considered an impact statement submitted by the teller at the
08-1008 Page 3
Wisconsin bank, which stated that after the robbery she suffered from panic attacks at work
and nightmares. The teller said that it made her happy to know that Trammell was behind
bars and that “for all she cares, he can stay locked up for life.” The court also reviewed
Trammell’s criminal history, which included two robberies, burglary of a motor vehicle,
theft, and possession of marijuana.
The district court stated that after reviewing U.S.S.G. § 5G1.3—the guideline that
addresses sentencing a defendant who is subject to an undischarged sentence—the court
was “not persuaded that a concurrent sentence is a responsible and reasonable sentence
that is not greater than necessary in this particular case.” The court acknowledged
Trammell’s troubled childhood and history of alcohol abuse, but it also commented on his
extensive criminal history, his history of adjusting poorly to incarceration, and the fact that
he robbed the Wisconsin bank only five months after being released from prison. “Prior
terms of imprisonment,” the court concluded, “have had little impact on his criminal
thinking.” Believing it likely that Trammel would, if given the opportunity, continue to
commit crimes and present a danger to the community, the district court found that a 200-
month consecutive sentence “is reasonable and necessary to satisfy the statutory purposes
of sentencing.” This sentence, the court said, would “hold this defendant accountable for a
serious crime of violence,” “protect the community from further criminal activity,” “serve
as a deterrent not to him but to others,” “achieve parity with the sentences of similarly
situated offenders,” and afford Trammell rehabilitative opportunities.
On appeal Trammel argues that the district court erred by imposing his sentence
to run consecutively to his Minnesota sentence and that the resulting sentence is therefore
unreasonable. A within-guidelines sentence is presumptively reasonable on appeal, see,
e.g., United States v. Tahzib, 513 F.3d 692, 694 (7th Cir. 2008), and the burden to overcome
that presumption is Trammell’s, see, e.g., United States v. Harvey, 516 F.3d 553, 556 (7th Cir.
2008). The district court, charged with selecting an appropriate punishment for Trammell’s
crime, had broad discretion to choose whether to impose a concurrent or a consecutive
sentence. See 18 U.S.C. § 3584; U.S.S.G. § 5G1.3(c). In exercising that discretion, the court
was required to consider the factors set forth in 18 U.S.C. § 3553(a), such as the nature of
the offense, the history and characteristics of the defendant, the need to punish and deter
criminal activity, and the possibility of providing the defendant with rehabilitative services.
See 18 U.S.C. §§ 3553(a), 3584; see also United States v. Tockes, No. 07-3294, 2008 WL 2550733,
at *3-4 (7th Cir. June 27, 2008). We review the sentence the district court imposed for an
abuse of discretion. See Tockes, 2008 WL 2550733, at *3.
Trammell concedes that the district court commented on several of the § 3553(a)
factors at sentencing, but he argues that the district court nevertheless abused its discretion
by failing to analyze a different set of factors, those contained in U.S.S.G. § 5G1.3
08-1008 Page 4
Application Note 3. Application Note 3 offers a nonexhaustive list of factors that a district
court should consider when deciding whether to impose a consecutive or concurrent
sentence—such as the type and length of the undischarged sentence, the time likely to be
served on that sentence before release, and which court imposed the other sentence, as well
as the usual § 3553(a) factors. Trammell maintains that the district court did not
adequately address the factors contained in the application note, but even he acknowledges
that it was not mandatory for the court to do so. It was mandatory for the court to consider
the § 3553(a) factors, 18 U.S.C. § 3584, and the transcript of the sentencing hearing makes
clear that it did. Although Trammell correctly points out that the district court did not
explain how every one of the statutory factors it listed was served by the sentence it
imposed, such an exercise was not necessary: “[A] district court judge need not apply all
§ 3553(a) factors in a systematic or ‘checklist fashion.’” United States v. Johnson, No. 06-3812,
2008 WL 2778929, at *4 (7th Cir. July 18, 2008). The district court explained which statutory
factors guided its decision to impose a 200-month consecutive sentence; nothing more was
required. See id.; United States v. Nitch, 477 F.3d 933, 937 (7th Cir.2007); United States v. Dean,
414 F.3d 725, 729 (7th Cir. 2005).
Trammell also alludes to the exchange between the prosecutor and the district court
concerning the below-guidelines sentence Trammell received for the Minnesota bank
robbery. He argues that the district court’s comments “demonstrated a disfavor” with that
sentence, but that reading is a stretch. The prosecutor said that her office generally seeks to
avoid having crimes committed in its jurisdiction tried and sentenced elsewhere; the
district court replied, “[p]articularly Minnesota.” Taken in context, the remark suggests
that the court may view the District Court for the District of Minnesota as more apt to be
lenient than the District Court for the Western District of Wisconsin. But it does not
suggest that the district court was dissatisfied with or second-guessed the reasonableness
of Trammell’s prior sentence.
Accordingly, we AFFIRM.