NONPRECEDENTIAL DISPOSITION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 11, 2012
Decided January 30, 2013
Before
WILLIAM J. BAUER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 12‐2638
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 11‐CR‐30164‐MJR
CASEY M. RIGSBY, Michael J. Reagan,
Defendant‐Appellant. Judge.
O R D E R
Casey Rigsby was sentenced to 10 years in prison for possessing a gun after a felony
conviction, the statutory maximum for that crime. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). That
sentence is significantly above the guidelines imprisonment range as calculated by the
district court, and Rigsby argues that the term is unreasonably long. We conclude that the
court likely understated the applicable range, but even if Rigsby’s prison sentence is above
the properly calculated range, the court adequately explained its decision to impose the
maximum term. We thus uphold the sentence.
Rigsby incurred 8 convictions between the ages of 13 and 18. These crimes included
battery, aggravated assault with a deadly weapon, aggravated unlawful use of a weapon,
and possession of cannabis. Then at age 19, while on conditional release for his unlawful‐
use conviction, Rigsby was charged with criminal trespass to a vehicle. He also was found
with a handgun during an unrelated traffic stop in Centreville, Illinois.
No. 12‐2638 Page 2
The discovery of that gun led federal authorities to charge Rigsby with possession of
a firearm by a felon. He was in state custody when the federal indictment was returned, but
in early October 2011 he appeared in federal court on a writ of habeas corpus
ad prosequendum. Initially he was detained pending trial, but the government engineered
his release so that he could work as an informant for the Bureau of Alcohol, Tobacco,
Firearms and Explosives. Chief Judge Herndon, who approved the government’s request to
use Rigsby as an informant, had misgivings:
As a judge, when I see convictions for—multiple convictions for battery,
aggravated assault with a deadly weapon, aggravated unlawful use of a
weapon a couple of times, and other crimes, I see a person on paper that
looks to be a danger to society. So as a judge I’m just hesitant to say, “Oh
yeah let’s let this guy out of jail and let’s let him work with a federal agency
to try to catch other criminals.” Just doesn’t, at first blush, make sense to me.
For that reason the chief judge personally addressed Rigsby and warned that release on
bond was not a license to commit more crimes:
I look at this record and it’s like committing crimes is a habit with you. Just
like I get up in the morning and first thing I do is have a cup of coffee. Now,
that’s a habit, maybe an addiction. But committing crimes can no longer be
your addiction. It can no longer be your habit. You’re done. You got it?
Rigsby agreed and was released, but within a week the government declared him to be an
absconder, after he failed to report to his probation office.
Rigsby soon was caught and pled guilty to the charged violation of § 922(g)(1). His
presentence report recounts a childhood marked by frequent changes in residence because
his mother could not find affordable housing after leaving his abusive stepfather. This
instability led Rigsby to quit high school in the ninth grade and run away from home. He
has never held a legitimate job and has committed additional crimes that did not result in
convictions. According to the presentence report, Rigsby confessed to an ATF agent that in
2010 he had beaten and robbed a drug dealer, striking the dealer in the head more than a
dozen times with the butt of a gun. Rigsby also had confessed to possessing 10 different
handguns since age 17 and using one of them in a gunfight on a public street. The probation
officer calculated a guideline imprisonment range of 27 to 33 months based on a total
offense level of 16 and a criminal history category of III.
At sentencing before Judge Reagan, Rigsby conceded that the presentence report is
factually accurate. The government supplemented that report with testimony from an FBI
agent who previously had been assigned to a task force targeting violent crime in Rigsby’s
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hometown of East St. Louis, Illinois. The agent said that Rigsby was notorious in that
community and had been implicated in several crimes, including yet another gunfight that
wounded a young girl hit by a stray bullet. The agent added that he personally had warned
Rigsby more than a year before his arrest on the § 922(g)(1) charge that a federal prosecution
was inevitable if he kept committing crimes. In addition, an ATF agent testified at
sentencing that Rigsby had confessed to being a founding member of a small gang that had
aspired to sell drugs but ultimately specialized in armed robberies. The agent recounted
also that Rigsby had confessed to stealing a gun and boasted that, when the police caught
him with the loaded firearm underlying the § 922(g)(1) indictment, he and his companions
had been on their way to confront a man who shot a member of their gang.
For reasons not explained in the record, prosecutors made no effort to connect any of
this information to guidelines adjustments affecting Rigsby’s offense level. In the plea
agreement the government had promised to tell the district court that Rigsby’s total offense
level appeared to be 20, but in that agreement the government also disclosed that it would
be advocating a sentence of 96 months. The government thus accepted the probation
officer’s guidelines calculations, but, as it said it would do, argued for an above‐range
sentence of 96 months. A term of that length, the government argued, was justified by
Rigsby’s flight, his general disinterest in improving himself or his community, the large
number of guns he had possessed over the previous three years, and his commission of
several serious crimes in quick succession (many of which were not represented in his
criminal history score). Rigsby’s lawyer countered that a sentence at the high end of the
guideline range, 33 months, would be adequate; he asserted that Rigsby’s difficult
childhood might make him more amenable to rehabilitation. The lawyer further
characterized Rigsby’s violation of § 922(g)(1) as a garden‐variety case that did not merit an
above‐range prison sentence.
During his argument for a within‐range sentence, Rigsby’s lawyer commended the
probation officer for presenting “a very balanced” presentence report that includes both
“the good and the bad.” Upon hearing that statement, Judge Reagan confessed to difficulty
seeing the “good” in Rigsby’s background and pressed defense counsel to identify what he
saw in the presentence report that was helpful. Counsel offered that Rigsby had not beaten
his girlfriend and had played a role in raising their child.
After Rigsby allocuted, the judge responded to the lawyer’s argument that Rigsby’s
federal gun crime had been relatively innocuous:
You don’t have—I don’t want to deprecate the seriousness of the other felon
in possession cases, but you don’t have the garden variety generic felon in
possession case. You have one of the most senior Assistant U.S. Attorneys
possible, you got an FBI agent—and I don’t get FBI anymore in here. . . . You
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got a senior officer from the ATF and Illinois State Trooper here and U.S.
Attorney in the back. You got me looking at you and telling you with
impunity that in 38 years in the legal business from when I first started as a
probationary policeman until now, I have never had a more dangerous
20‐year old stand in front of me or that I represented or prosecuted in 38
years. You are the most dangerous 20‐year old I have ever encountered.
The judge asked Rigsby directly if he had made any positive contributions to society.
Rigsby offered that, before dropping out of school, he had gotten good grades, played
basketball, and participated in spelling bees. He added that he had helped his girlfriend
raise their son.
In deciding that 10 years was the appropriate sentence, Judge Reagan opted not to
consider Rigsby’s uncharged crimes. The judge commented that, although the government
might be angry that Rigsby had fled after agreeing to cooperate, the court would not take
into account that displeasure. Still, the court said, other factors in 18 U.S.C. § 3553(a)
warranted a term at the statutory maximum. The judge recounted Rigsby’s background and
criminal history and noted that the § 922(g)(1) violation had occurred while Rigsby was on
conditional discharge from an earlier conviction. The court also found that Rigsby would
have used the gun underlying this case if not for the intervening traffic stop that led to his
arrest. See 18 U.S.C. § 3553(a)(1). A lengthy sentence was needed, the judge reasoned, to
protect the public from Rigsby. Indeed, in the judge’s estimation, Rigsby’s criminal history
showed that he posed a greater recidivism risk than a typical murderer.
See id. § 3553(a)(2)(C). The judge observed that Rigsby had been warned, both by the chief
judge and the FBI agent, that he must stop committing crimes but had disregarded those
warnings. The judge also noted that as a repeat offender Rigsby would need more
deterrence than a first‐time offender. See id. § 3553(a)(2)(B). The judge again noted Rigsbyʹs
failure to make a positive contribution to society.
Rigsby now appeals, citing four purported errors by Judge Reagan. He first argues
that the judge impermissibly counted against him as an aggravating factor his lack of
positive qualities. But that is not what the judge did; the court sentenced Rigsby based on
his numerous negative qualities after giving Rigsby an opportunity to identify positive
factors. The judge invited Rigsby’s lawyer to identify those positive attributes only after
the lawyer had asserted that Rigsby’s presentence report includes evidence of both positive
and negative traits.
Rigsby next argues that the district judge improperly considered as aggravating
factors the presence at sentencing of the United States Attorney and the assignment of this
prosecution to a senior assistant United States Attorney. Rigsby rests this argument entirely
on an Eighth Circuit decision stating the unremarkable proposition that sentencing judges
No. 12‐2638 Page 5
should not rely on “irrelevant or improper” factors. See United States v. Growden, 663 F.3d
982, 984 (8th Cir. 2011). The contention is meritless; the judge did not mention the presence
of the United States Attorney or the involvement of his seasoned prosecutor while
reviewing the factors listed in § 3553. Rather, the court explicitly stated that Rigsby’s
sentence would not reflect the government’s apparent displeasure that Rigsby had
absconded after prosecutors had gone to bat to secure his release from pretrial detention.
Rigsby next argues, this time without citing any authority, that the judge engaged in
“inexplicable hyperbole” requiring reversal by describing him as the “most dangerous”
20‐year‐old the judge had ever encountered and observing a murderer would be less likely
to recidivate. But Rigsby has not alerted us to any case where Judge Reagan represented or
sentenced a more dangerous 20‐year‐old and offers no information about the recidivism
rates of murderers. Rigsby’s habitual lawbreaking is plain from the presentence report, and
Judge Reagan was not alone in seeing Rigsby’s recidivist tendencies; Chief Judge Herndon
likened Rigsby’s lawbreaking to an “addiction” and concluded that he poses a danger to
society. Given Rigsby’s disregard for the law and his history of gun crimes, Judge Reagan’s
assessment of Rigsby’s dangerousness was hardly “inexplicable hyperbole.”
Rigsby also argues that the district court erred by basing his sentence, in part, on the
fact that he had ignored the warnings of Chief Judge Herndon and the FBI agent. Ignoring
that advice, Rigsby argues, was an unintended consequence of his flight, and the two‐level
increase in offense level for obstruction of justice already accounts for that flight.
See U.S.S.G. § 3C1.1. This argument is illogical; Rigsby concedes that the guidelines are
advisory, and the judge’s rationale—that it will take greater punishment to deter a
defendant who commits another crime after being warned against committing more
crimes—is commonsensical.
Rigsby last asserts that his prison sentence is substantively unreasonable. A district
court is free to impose an above‐range prison sentence so long as the judge explains why the
chosen term is appropriate under § 3553(a). United States v. Vaughn, 314 F.3d 412, 414–15
(7th Cir. 2010). And here the court discussed how the § 3553(a) factors apply to Rigsby and
explained at length its basis for imposing a maximum sentence. Rigsby does not challenge
the judge’s discussion as inadequate, nor does he identify any mitigating argument that the
court ignored.
That is enough to uphold the sentence, but for completeness we note that the degree
to which Rigsby’s prison sentence exceeds the guidelines range is greatly exaggerated
because the government inexplicably agreed to an artificially low calculation of Rigsby’s
total offense level. See United States v. Henzel, 668 F.3d 972, 977 (7th Cir. 2012). The
government’s agreement with Rigsby to accept a total offense level of 20 was not binding on
the district court, see U.S.S.G. § 6B1.4(d); United States v. Martin, 287 F.3d 609, 621 (7th Cir.
No. 12‐2638 Page 6
2002); United States v. Mankiewicz, 122 F.3d 399, 402 (7th Cir. 1997), but apparently the
probation officer gave great weight to the plea agreement in applying the guidelines. Rigsby
committed a crime during his release—bail jumping, in violation of 18 U.S.C. § 3146—but
the government apparently overlooked the three‐level increase that should have resulted.
See U.S.S.G. § 3C1.3; United States v. Dison, 573 F.3d 204, 210 (5th Cir. 2009) (applying
§ 3C1.3 for violation of § 3146); United States v. Fitzgerald, 435 F.3d 484 (4th Cir. 2006) (same,
though applying § 2J1.7, the predecessor of § 3C1.3); United States v. Benson, 134 F.3d 787,
788 (6th Cir. 1998) (same, applying § 2J1.7). Nor is there any discussion in the record about
why Rigsby’s admission that he sometimes sold guns to make money would not mandate a
4‐level increase for trafficking. See U.S.S.G. § 2K2.1(b)(5) (“If the defendant engaged in the
trafficking of firearms, increase by 4 levels.”). The government also failed to advocate for a
2‐level increase based on the ATF agent’s undisputed testimony that Rigsby had confessed
to obtaining the gun in this case from his cousin by trading another gun that he had stolen.
See U.S.S.G. § 2K2.1(b)(4)(A) (“If any firearm . . . was stolen, increase by 2 levels.”). And
even though the district court concluded that Rigsby had intended to use the gun to
retaliate against an enemy of his gang, the government did not press for a 4‐level increase
under § 2K2.1(b)(6). See id. (“If the defendant . . . possessed . . . any firearm with knowledge,
intent, or reason to believe that it would be used or possessed in connection with another
felony offense, increase by 4 levels.”).
If the government had not lowballed Rigsby’s total offense level and instead brought
these upward adjustments to the attention of the probation officer and the district court,
Judge Reagan might have calculated a total offense level of 29, rather than 16. At that higher
level, Rigsby’s 120‐month prison sentence would fall, not above, but within the resulting
guidelines range of 108 to 135 months. And, of course, a prison sentence within the range
would be presumed reasonable on appeal. See Rita v. United States, 551 U.S. 338, 347 (2007);
United States v. Chapman, 694 F.3d 908, 916 (7th Cir. 2012). “Thus, we are presented with an
avoidable debate about the reasonableness of a prison term that, in reality, is probably
exactly what the Sentencing Commission intended.” Henzel, 668 F.3d at 978. An ounce of
attention to the applicable guidelines provisions could have prevented a pound of appeal.
AFFIRMED.
