United States v. Stevens, James ( 2007 )

NONPRECEDENTIAL DISPOSITION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
Submitted October 2, 2007*
Decided October 12, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 07-1466 Appeal from the United
States District Court for the
UNITED STATES OF AMERICA, Western District of Wiscon-
Plaintiff-Appellee, sin.
v.
No. 06-CR-157-C
JAMES STEVENS, Barbara B. Crabb, Chief
Defendant-Appellant. Judge.
Order
James Stevens distributed crack cocaine and pleaded guilty to violating 21
U.S.C. §§ 841(a)(1) and 846. He was sentenced to 200 months’ imprisonment as a
career offender. See U.S.S.G. §4B1.1, implementing 28 U.S.C. §994(h). The sen-
tence, which is within the range recommended by the Guidelines, is presumed rea-
sonable on appeal. Rita v. United States, 127 S. Ct. 2456 (2007).
Stevens contends that crack cocaine should not count for 100 times the weight of
cocaine hydrochloride. Although the Supreme Court has a similar argument under
consideration in Kimbrough v. United States, No. 06-6330 (argued October 2, 2007),
Stevens could not benefit no matter what happens there. First, the argument that
Kimbrough has made is that a district judge may use a different ratio if the judge
thinks it appropriate; here the district judge did not express any dissatisfaction
* Appellant waived oral argument in this appeal.
No. 07-1466 Page 2
with the ratio. See United States v. McMahan, 495 F.3d 410, 424 (7th Cir. 2007). No
one contends in Kimbrough that district judges must use a different ratio. Second,
Stevens’s sentence is within the range calculated for a career offender under §4B1.1
without regard to the crack/powder ratio. The career-offender guideline, not the
weight of defendant’s sales, is what led to his sentence.
United States v. Booker, 543 U.S. 220 (2005), does not disturb §994(h) or §4B1.1.
See United States v. Woodard, 408 F.3d 396 (7th Cir. 2005). And although Stevens
argues that he is not as bad as his criminal history implies, the district judge did
not commit clear error in concluding that with 23 criminal history points (only one
short of his age) Stevens is a career criminal who specializes in drugs and violence.
The judge stated that Stevens has a “horrendous criminal history” and is “pretty
much out of control”. One of his prior crimes, which Stevens calls “minor,” was hit-
ting a man over the head with a bottle; another was punching a person in the head
four times and causing a substantial laceration. Both offenses are “crimes of vio-
lence” under the categorical approach used by the Guidelines. See U.S.S.G.
§4B1.2(a)(1); United States v. Peters, 462 F.3d 716, 720 (7th Cir. 2006). The career-
offender enhancement is designed for incorrigible offenders such as Stevens.
AFFIRMED