United States v. Wurzinger, Richard C ( 2006 )


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  •                            In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 05-3803
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    RICHARD C. WURZINGER,
    Defendant-Appellant.
    ____________
    Appeal from the United States District Court
    for the Western District of Wisconsin.
    No. 05 CR 52—John C. Shabaz, Judge.
    ____________
    ARGUED SEPTEMBER 8, 2006—DECIDED OCTOBER 30, 2006
    ____________
    Before CUDAHY, EASTERBROOK, and MANION, Circuit
    Judges.
    CUDAHY, Circuit Judge. Richard Wurzinger, age fifty-
    eight, was sentenced to 262 months in prison, the longest
    sentence within the range indicated by the Sentencing
    Guidelines for his role at the center of a conspiracy to
    manufacture methamphetamine. Given his age and his
    failing health, he will likely die in prison. He appeals his
    sentence, arguing that the district court did not follow
    proper sentencing procedure and that his sentence is
    unreasonably long. We affirm.
    Wurzinger first used methamphetamine in the summer
    of 2000, when he was fifty-two years old. Two years later he
    2                                                 No. 05-3803
    arranged to have Justin Rzentkowski teach him and his
    daughter-in-law, Colleen Wurzinger, how to move on to
    manufacture the drug themselves. Their first attempt
    burned down Colleen’s barn, but Wurzinger and Colleen
    were soon “cooking” methamphetamine regularly. Over
    the next two years Wurzinger was at the center of a loose
    methamphetamine manufacturing conspiracy, whose
    members were primarily his family—his daughter-in-law
    Colleen, his wife Penny Wurzinger, his daughter Kole
    Lipski and her husband Jeff Lipski. The co-conspirators
    occupied various roles. Jeff Lipski distributed Wurzinger’s
    methamphetamine, both the Lipskis and Colleen helped
    Wurzinger cook the stuff at various times and almost
    everyone collected Sudafed and other over-the-counter
    drugs containing pseudoephedrine, a chemical used in
    the production of methamphetamine.
    Police arrested Wurzinger on December 8, 2004. On July
    13, 2005, he pleaded guilty to one count of conspiring
    to manufacture a controlled substance prohibited by 21
    U.S.C. § 841(a)(1). He agreed with a modified presentence
    report that assigned him an adjusted offense level of thirty-
    five and a criminal history category of III, resulting in a
    Sentencing Guidelines-recommended range of 210 to 262
    months in prison. Nonetheless, he argued that he was
    entitled to a below-guidelines sentence under 18 U.S.C. §
    3553(a) for a number of reasons, among them his age, his
    diabetes and the difference between his sentence and those
    of his co-conspirators, some of whom had not been prose-
    cuted and many of whom had received shorter sentences in
    state court. To put it mildly, the district court did not agree.
    It imposed a sentence of 262 months, the top of the guide-
    lines range.
    Wurzinger now appeals, arguing both that the district
    court improperly presumed that an appropriate sentence for
    him falls within the guidelines range and that his sentence
    is unreasonably long. The first claim stumbles coming out
    No. 05-3803                                                   3
    of the gate. Just prior to oral argument, this court decided
    that a presumption in favor of a guidelines sentence is
    appropriate and that a court need only consider a non-
    guidelines sentence when a defendant provides “cogent
    reasons” for one. United States v. Hankton, 
    463 F.3d 626
    ,
    629 (7th Cir. 2006).
    This leaves Wurzinger’s claim that his sentence is
    unreasonably long in light of the sentencing goals and
    factors enumerated in 18 U.S.C. § 3553(a). United States v.
    Booker, 
    543 U.S. 220
    , 261 (2005). He requires particularly
    compelling arguments to succeed, since a sentence within
    the range recommended by the Sentencing Guidelines
    carries a rebuttable presumption of reasonableness. United
    States v. Gonzalez, 
    462 F.3d 754
    , 756 (7th Cir. 2006); United
    States v. Mykytiuk, 
    415 F.3d 606
    , 608 (7th Cir. 2005).
    Wurzinger spends a good portion of his brief arguing that
    this established feature of circuit law improperly makes the
    guidelines mandatory, but he does not offer the “compelling
    reasons” necessary for us to revisit our own precedent.
    Goshtasby v. Bd. of Trs. of the Univ. of Ill., 
    141 F.3d 761
    ,
    766 (7th Cir. 1998), overruled on other grounds by Kimel v.
    Fla. Bd. of Regents, 
    528 U.S. 62
    , 92 (2000). Other courts
    have disagreed with our view, believing that courts may
    come to treat the rebuttable presumption as effectively
    irrebuttable. See, e.g., United States v. Jimenez-Beltre, 
    440 F.3d 514
    , 518 (1st Cir.), petition for cert. filed, ___ U.S.L.W.
    ___ (U.S. Aug. 4, 2006) (No. 06-5727). This may be a valid
    concern but we believe that courts are familiar with the
    concept of rebuttable presumption and capable of applying
    it. 
    Hankton, 463 F.3d at 630
    n.5; see also United States v.
    Zavala, 
    443 F.3d 1165
    , 1169 (9th Cir.) (distinguishing
    between “bursting bubble,” mandatory conclusive and
    mandatory rebuttable presumptions), reh’g en banc granted
    sub nom. United States v. Carty, 
    462 F.3d 1066
    (9th Cir.
    2006). Wurzinger’s arguments must be strong enough to
    rebut the presumption that his sentence, at the top of the
    4                                                    No. 05-3803
    recommended guidelines range but still within it, is reason-
    able.
    His strongest argument that his sentence is unreasonable
    is that his diabetes will kill him before he is free. Wurzinger
    was diagnosed with diabetes forty years ago; it is severe
    enough to require medication. He does not claim that the
    federal prison system will be unable to treat his condition,1
    but he does argue that it leaves him with a life expectancy
    of “116.4 to 176.4 months,” well short of his sentence’s
    duration. His life expectancy statistics seem to be flawed,2
    1
    In the district court, Wurzinger claimed that he was not
    receiving necessary diabetes medication in jail. We, of course, are
    concerned that the Bureau of Prisons provide him with all
    necessary treatment for his condition.
    2
    Wurzinger avoids the first mistake of the defendant in United
    States v. Bullion, No. 06-1523, 
    2006 WL 2979398
    , at *2 (7th Cir.
    Oct. 19, 2006), and seeks out the life expectancy not of a new-
    born child but of the average fifty-eight year old American male,
    which he locates at 24.7 years (though it appears actually to
    be 22.9 years). Elizabeth Arias, Ctrs. for Disease Control,
    United States Life Tables, 2003, National Vital Statistics Reports,
    Apr. 19, 2006, at 1, 16 table 5, available at http://www.cdc.gov/
    nchs/data/nvsr/nvsr54/nvsr54_14.pdf. But like the Bullion
    defendant he still attempts to rely on the average reduction in life
    expectancy caused by diabetes, without regard to the age at which
    he acquired the disease or the reduction in life expectancy that
    accrues to a person of his age. Cf. Bullion, 
    2006 WL 2979398
    , at
    *2. It is not enough to rely on the average reduction in life
    expectancy for all diabetics because since older people are closer
    to death and have shorter life expectancies, life-threatening
    conditions may cause a smaller drop in life expectancy for them,
    simply because they have less life to lose. Take, for example, a
    twenty year old with a fifty year life expectancy and a fifty year
    old with a twenty year life expectancy, both of whom acquire a
    horrible disease that kills anyone afflicted within five years. The
    (continued...)
    No. 05-3803                                                                  5
    but the government does not dispute them, and he is
    already experiencing disturbing complications of his
    disease. Wurzinger has lost sensation in his hands and feet,
    an effect of diabetes in older people that like the similar
    loss of sensation in leprosy can lead to untreated infections
    and even amputations. Nat’l Inst. of Diabetes & Digestive
    & Kidney Diseases, Diabetic Neuropathies: The Nerve
    Damage of Diabetes 3 (2002), available at http://diabetes.niddk.nih.gov/dm/pubs/
    neuropathies/neuropathies.pdf. At sentencing, Wurzinger
    had an infected sore on his foot which he said was related
    to his diabetes. If science is the standard, it is unlikely
    that Wurzinger will live out his sentence.
    There is a worthy tradition that death in prison is not
    to be ordered lightly, and the probability that a convict
    will not live out his sentence should certainly give pause
    to a sentencing court. United States v. Crickon, 
    240 F.3d 652
    , 656 (7th Cir. 2001); United States v. Jackson, 
    835 F.2d 1195
    , 1200 (7th Cir. 1988) (Posner, J., concurring);
    United States v. Watson, 
    385 F. Supp. 2d 534
    , 538 (E.D.
    Pa. 2005); United States v. Gigante, 
    989 F. Supp. 436
    , 441-
    43 (E.D.N.Y. 1998); United States v. Baron, 
    914 F. Supp. 660
    , 662 (D. Mass. 1995); United States v. Maltese, No. 90
    CR 87-19, 
    1993 WL 222350
    , at *10 (N.D. Ill. June 22,
    1993); United States v. Garrett, 
    712 F. Supp. 1327
    , 1335
    (N.D. Ill. 1989); United States v. Gomez, 
    742 F. Supp. 407
    ,
    411-12 (E.D. Mich. 1989); see also Kathleen Dean Moore,
    Pardons: Justice, Mercy, and the Public Interest 166-67,
    173-74 (1989) (describing the tradition of “deathbed
    2
    (...continued)
    twenty year old experiences a forty-five year drop in life expec-
    tancy, the fifty year old only a fifteen year drop; the “average”
    would be somewhere in between. In this case, Wurzinger’s drop in
    life expectancy from diabetes may similarly be less than the
    “average” drop.
    We regret this somewhat ghoulish aside.
    6                                               No. 05-3803
    pardons”). Wurzinger’s key argument is not the nonstarter
    that “age per se is a mitigating factor” (though he does
    attempt that argument as well), United States v. Bullion,
    No. 06-1523, 
    2006 WL 2979398
    , at *2 (7th Cir. Oct. 19,
    2006), but that a sentence of death in prison is notably
    harsher than a sentence that stops even a short period
    before. Death is by universal consensus a uniquely trau-
    matic experience, and prison often deprives defendants of
    the ability to be with their families or to otherwise control
    the circumstances of death. John A. Beck, Compassionate
    Release from New York State Prisons: Why Are So Few
    Getting Out? 27 J.L. Med. & Ethics 216, 223-24 (1999);
    Jason S. Ornduff, Releasing the Elderly Inmate: A Solution
    to Prison Overcrowding, 4 Elder L.J. 173, 192 (1996); see
    also Sasha Abramsky, Prisoner’s Dilemma: Lifers, Legal
    Aff., Apr. 2004, at 40, 41, 43 (describing death at Angola
    Prison in Louisiana). A sentence that forces this experience
    on a prisoner is quantitatively more severe than a sentence
    that does not consume the entirety of a defendant’s life,
    inflicting greater punishment and creating a stronger
    deterrent effect. See, e.g., United States v. Patriarca, 
    948 F.2d 789
    , 793 (1st Cir. 1991) (holding that an increase in
    penalty that ensured death in prison would likely deter bail
    jumping); Elizabeth Rapaport, Retribution and Redemption
    in the Operation of Executive Clemency, 74 Chi.-Kent L.
    Rev. 1501, 1521 (2000). Additionally, of course, the physical
    constraints of a dying illness will incapacitate some defen-
    dants as effectively as imprisonment, making such a long
    sentence unnecessary. 
    Beck, supra, at 224
    .
    But to the extent that Wurzinger seeks a sentence that
    will expire before he is likely to, he argues for a sentence
    below the recommended guidelines range, and on what
    was under the mandatory guidelines regime a discouraged
    ground. U.S.S.G. § 5H1.1; see also 
    id. § 5H1.4;
    Moore,
    supra, at 174
    . A court may now impose such a sentence, but
    only with a “very good explanation” rooted in the circum-
    No. 05-3803                                                   7
    stances of the case, United States v. Wallace, 
    458 F.3d 606
    ,
    608 (7th Cir. 2006). Wurzinger must argue, in the face of
    the presumption that his sentence is reasonable, that it was
    unreasonable for the district court not to impose such an
    exceptional sentence, or at least a shorter sentence within
    the guidelines range that he would be more likely to
    survive.
    As this court recently observed in affirming the above-
    guidelines, likely de facto life sentence of another fifty-eight
    year old insulin-dependent diabetic, this type of argument
    rarely succeeds. United States v. Bullion, No. 06-1523, 
    2006 WL 2979398
    , at *2 (7th Cir. Oct. 19, 2006). While the
    present case is a less compelling candidate for a severe
    sentence—though he shared Wurzinger’s age and disease,
    Bullion was additionally a serial armed robber, serial
    kidnapper and serial rapist sentenced for the attempted
    shotgun-murder of the person he somehow persuaded to
    marry him, 
    id. at 2—Wurzinger’s
    argument is another
    failure. The district court reasonably concluded that
    Wurzinger’s sentence was necessary to punish his crime of
    not merely manufacturing methamphetamine, but
    corrupting his extended family to manufacture most of the
    methamphetamine available in his region of Wisconsin.
    (See, e.g., Sentencing Tr. at 16 (“[I]f indeed he is in ill
    health, you can think of the thousands that he may have
    affected in his major drug dealing who are perhaps in that
    same position were it not for him being on the drug
    scene.”).) The court also reasonably thought a long sentence
    was necessary to keep Wurzinger from cooking more
    methamphetamine. Wurzinger argues that older offenders
    are generally less likely to commit crime, but as we recently
    observed what matters is whether the court reasonably
    concluded that Wurzinger in particular is a risk for further
    crimes. Bullion, 
    2006 WL 2979398
    , at *3. Here it was not
    unreasonable to think Wurzinger had an above-average
    tendency to crime in his old age; he was fifty-two when he
    8                                               No. 05-3803
    embarked upon what is to all appearances his most serious
    offense.
    While we say nothing about whether a lower sentence
    would have been equally reasonable, age and illness do not,
    in the face of the circumstances presented here, make
    Wurzinger’s sentence unreasonable. While some of the
    district court’s comments were a mite strange—most
    notably the claim that Wurzinger, at fifty-eight, was “a
    pretty young guy” (Sentencing Tr. at 15)—on the whole, it
    offered a reasonable explanation of why Wurzinger’s
    conduct justified a sentence at the top of the recom-
    mended guidelines range.
    Wurzinger urges three additional grounds for a shorter
    sentence, none of which come as near as his age and ill-
    ness to outweighing the need to punish and incapacitate
    him. The first is that it was unreasonable to sentence him
    to 262 months when some of his co-conspirators pros-
    ecuted in Wisconsin state court received sentences far
    shorter than what they would probably have received in
    federal court. He focuses on his daughter-in-law Colleen,
    sentenced to thirty-six months in state prison for conduct he
    argues was not significantly different from his own under
    the Sentencing Guidelines.
    Courts should reduce “unwarranted sentence dis-
    parities among defendants with similar records who have
    been found guilty of similar conduct,” 18 U.S.C.
    § 3553(a)(6), but in most cases “disparities are at their
    ebb when the Guidelines are followed,” United States v.
    Boscarino, 
    437 F.3d 634
    , 638 (7th Cir. 2006), petition for
    cert. filed, 
    74 U.S.L.W. 3629
    (U.S. Apr. 27, 2006) (No. 05-
    1379). Reducing a federal prisoner’s sentence to accord with
    that of a similarly situated state convict may decrease one
    sentencing disparity but simultaneously enlarges another:
    that between the federal convict and all similarly situated
    federal convicts. 
    Id. Because penalties
    vary from state to
    No. 05-3803                                               9
    state, sentence reductions to approach state penalties
    similarly vary with the state in which the federal sentenc-
    ing court sits, unjustifiably creating disparities among
    federal convicts. See United States v. Branson, 
    463 F.3d 1110
    , 1112 (10th Cir. 2006); United States v. Williams, 
    282 F.3d 679
    , 681-82 (9th Cir. 2002). We cannot say that the
    court’s failure to narrow the gap between Wurzinger and
    his co-conspirators was unreasonable.
    Next, Wurzinger argues that a shorter sentence was
    required because his criminal history has been largely
    caused by alcoholism and methamphetamine addiction.
    Substance dependency was a discouraged ground for
    departure, U.S.S.G. § 5H1.4, and mere addiction, without
    more, does not compel a below-guidelines sentence, United
    States v. Hankton, 
    463 F.3d 626
    , 630 (7th Cir. 2006). Nor is
    a sentence at the top of the guidelines range unreasonable.
    The most persuasive case Wurzinger cites permits shorter
    sentences when a defendant makes an extraordinary effort
    to overcome drug addiction that might be sabotaged by a
    long prison stay. United States v. Maier, 
    975 F.2d 944
    , 946-
    48 (2d Cir. 1992). But as far as the record reveals,
    Wurzinger has made no efforts to defeat an addiction. At
    the time of sentencing he did not think he needed treatment
    for substance abuse and did not believe he was physically
    addicted to methamphetamine.
    Finally, Wurzinger argues that his sentence was
    unreasonable because of the “gross disparity” between it
    and any of the prior sentences he received. The disparity is
    reasonable: Wurzinger has committed a crime more seri-
    ous than any of those he has previously committed, such
    as burglarizing a grocery store for a few cases of beer or
    drunkenly firing a gun. In fact, though Wurzinger’s
    argument is made in terms of length of sentence rather
    than seriousness of prior crimes, it is arguably a disguised
    disagreement with the Sentencing Commission’s
    determination regarding the seriousness of his criminal
    10                                               No. 05-3803
    history and the implications of that history for an appropri-
    ate sentence. United States v. Gonzalez, 
    462 F.3d 754
    , 755
    (7th Cir. 2006).
    Wurzinger could still argue that a sentence shorter
    than the guidelines would recommend is required in his
    case, and he cites cases dealing with the guidelines
    policy statement authorizing downward departures
    when a criminal history calculation overstates the seri-
    ousness of a defendant’s past crimes. See U.S.S.G.
    § 4A1.3(b)(1). Wurzinger’s calculation does not overstate the
    seriousness of his history; his many crimes committed
    before the year 2003 earned him no criminal history points.
    His score was based entirely on a recent conviction for
    carrying a switchblade knife and his commission of the
    present crime while on probation for that offense.
    He presents no reason to believe that this truncated history
    overstates his tendency to serious criminality. See United
    States v. Carrasco, 
    313 F.3d 750
    , 757-58 (2d Cir. 2002) (“[I]t
    would be unusual for a [criminal history calculation] based
    on one prior offense to overstate the seriousness of a
    criminal record.”).
    The penalty imposed upon Wurzinger was harsh but his
    crime was very serious. We do not encourage de facto life
    sentences but here the decision can be regarded as
    reasonable and we affirm it.
    No. 05-3803                                         11
    A true Copy:
    Teste:
    ________________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—10-30-06