United States v. Howard, Turvell V. , 258 F. App'x 896 ( 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NONPRECEDENTIAL DISPOSITION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
Argued December 12, 2007
Decided December 21, 2007
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 07-1927
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Western
District of Wisconsin.
v.
No. 07 CR 12
TURVELL HOWARD,
Defendant-Appellant. John C. Shabaz,
Judge.
ORDER
Turvell Howard pleaded guilty to possessing ammunition as a felon, see 18
U.S.C. § 922(g)(1), and the district court sentenced him to 87 months’ imprisonment.
On appeal Howard argues that (1) this court’s decision in United States v. Miller, 450
F.3d 270 (7th Cir. 2006), has created a de facto mandatory sentencing guidelines
scheme, (2) the sentence imposed by the district court was greater than necessary to
comply with the purposes of federal sentencing and was thus unreasonable, and (3) the
presumption of reasonableness given to a within-guidelines sentence conflicts with
both the Sixth Amendment and 18 U.S.C. § 3553(a). Howard misreads our opinion in
Miller, which specifies that the guidelines are advisory, not mandatory. Additionally,
as is clear from the Supreme Court’s decisions in United States v. Booker, 543 U.S. 220
(2005), and Rita v. United States, 127 S. Ct. 2456 (2007), district courts are required
No. 07-1927 Page 2
to consult the guidelines and the § 3553(a) factors when fashioning a sentence and,
once the district court has done so, appellate courts are permitted to presume that a
sentence with a properly calculated guidelines range is reasonable. That is precisely
what occurred in this case, and Howard has not mentioned any factor that the district
court should have considered. We therefore affirm.
I. Background
Police officers in Madison, Wisconsin, were warned that someone was selling
cocaine and also using marijuana in Howard’s apartment, so they obtained a search
warrant for the residence. In December 2006 officers executed the warrant and found
bullets and drug paraphernalia, among other items, in Howard’s bedroom. Officers
arrested Howard a few days later.
In February 2007, the government charged Howard with possessing ammunition
as a felon, in violation of § 922(g)(1). He immediately pleaded guilty. Howard’s total
offense level was calculated at 21, but his previous convictions resulted in a criminal
history category V, which yielded a guidelines imprisonment range of 70 to 87 months.
At sentencing when the district court invited allocution, Howard’s counsel simply
replied that Howard “asks the court to consider him as a human being and sentence
him accordingly.” Howard himself said nothing. The district court noted that Howard
has a history of drug offenses going back to age 19 (he is 29), and that he had not
been deterred by his “medical difficulties.” A shooting in October 2003 left Howard
paralyzed from the chest down, and he has experienced many complications including
bed sores, ulcers, and blood and bone infections. The court declared that Howard was
a threat to the community, and that the nature of the offense and characteristics that
he exhibited suggested that a sentence at the high end of the advisory guidelines range
was necessary. The district judge emphasized that the sentence was meant to protect
the community from further criminality, achieve parity with similarly situated
defendants, and give Howard the opportunity to participate in substance-abuse
treatment. The court sentenced Howard to 87 months’ imprisonment.
II. Analysis
On appeal Howard does not challenge his guilty plea or the district court’s
calculation of the advisory guidelines range. He instead contends that our decision in
Miller “send[s] a strong message to district courts and attorneys alike that the
guideline scheme enacted by Congress is mandatory despite the Sixth Amendment to
the United States Constitution and the Supreme Court’s holding in Booker.” This
argument is frivolous. In Miller the defendant argued that his sentence was
unreasonably high because the district court did not discount for the difference
in treatment between crack and powder cocaine. See id., 450 F.3d at 274-75.
We explained that, although district judges have more discretion in determining
No. 07-1927 Page 3
sentences post-Booker, they are not permitted to disregard legislative decisions. See
id. at 275-76. We also made clear that differing sentences that are caused by legal
rules, such as the existence of fast-track programs in some districts, cannot be said to
create unwarranted disparities. See id. Howard asserts that Miller holds “that all
sentences within the guideline range are reasonable,” but he simply misunderstands
the opinion.
Howard also claims that the district court did not follow the “parsimony
provision” of § 3553(a), which states that “[t]he court shall impose a sentence sufficient,
but not greater than necessary,” to comply with the goals of sentencing. We review
sentences imposed by the district court for reasonableness. See United States v. Dale,
498 F.3d 604, 608 (7th Cir. 2007); United States v. Jung, 473 F.3d 837, 844-45 (7th Cir.
2007). A sentence that is reasonable is entirely consistent with the parsimony
provision. See United States v. Ministro-Tapia, 470 F.3d 137, 141-42 (2d Cir. 2006).
Here the district court focused primarily on the need to reflect the seriousness of the
offense, to deter future criminal conduct, to protect the community, and to provide
Howard with treatment for his substance addictions. See 18 U.S.C. § 3553(a)(2)(A),
(B), (C), (D). Howard argues that “[a]t no time during Mr. Howard’s sentencing
hearings did the sentencing court explain why a sentence outside of the ‘presumptive
sentencing guideline scheme’ might be meet [sic] the requirements of 18 U.S.C.
§ 3553(a),” but district judges are not required to discuss each sentencing factor
individually or explain why the court did not select a different sentence. See United
States v. Gonzalez, 462 F.3d 754, 755-56 (7th Cir. 2006); United States v. Lopez, 430
F.3d 854, 857 (7th Cir. 2005).
Howard’s final argument is that the presumption of reasonableness given to a
within-guidelines sentence conflicts with both the Sixth Amendment and § 3553(a).
This claim has been foreclosed by the Supreme Court’s decision in Rita. Howard filed
his opening brief roughly two weeks before Rita was decided, but he chose not to
acknowledge Rita in his reply brief. We previously have warned against this sort of
“ostrich-like” behavior. See Larimer v. IBM, 370 F.3d 698, 703 (7th Cir. 2004); Monroe
v. Children’s Home Assoc. of Ill., 128 F.3d 591, 594 (7th Cir. 1997).
AFFIRMED.