United States v. Wade Bonk ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1948
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WADE BONK,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 1:17-cr-10061-JES-JEH-1 — James E. Shadid, Judge.
____________________
ARGUED JUNE 1, 2020 — DECIDED JULY 24, 2020
____________________
Before RIPPLE, WOOD, and SCUDDER, Circuit Judges.
RIPPLE, Circuit Judge. A grand jury returned a supersed-
ing indictment charging Wade Bonk and his two codefend-
ants, Darcy Kampas and Timothy Wood, with conspiracy to
possess methamphetamine with intent to distribute, in viola-
tion of 21 U.S.C. §§ 846 and 841(b)(1)(A), and with posses-
sion of methamphetamine with intent to distribute, in viola-
tion of 21 U.S.C. § 841(a)(1) and (b)(1)(A).
2 No. 19-1948
Wood and Kampas pleaded guilty to the conspiracy
count in accordance with their plea agreements. Mr. Bonk
also pleaded guilty to the conspiracy count, but without the
benefit of a cooperation plea agreement. He was sentenced
1
to 262 months’ imprisonment. Final judgment was entered,
2
and Mr. Bonk timely filed a notice of appeal.
I
BACKGROUND
A.
From May until September 2017, Mr. Bonk conspired
with Kampas and Wood to distribute ice methampheta-
3
mine. Some of the 1.5 kilograms of ice methamphetamine
for which Mr. Bonk was held responsible was allegedly for
4
his personal consumption. Mr. Bonk fronted and sold the
rest in varying quantities to distributors.
Mr. Bonk was arrested on September 13, 2017, on an out-
5
standing warrant. The conspiracy ended two days later,
1 The district court’s jurisdiction is premised on 18 U.S.C. § 3231.
2 Our jurisdiction to review Mr. Bonk’s sentencing claim is secure under
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
3 Note (C) to the drug quantity table, in U.S.S.G. § 2D1.1, defines “[i]ce”
as the weight of “a mixture or substance containing d-methamphetamine
hydrochloride of at least 80% purity.”
4 R.156 at 96 (“Mr. Bonk reported that up towards 44 percent of that was
for personal use.”).
5 R.133 ¶ 16.
No. 19-1948 3
when Kampas and Wood, who were under surveillance for
suspected drug trafficking, were stopped for speeding. After
seeing suspected methamphetamine in plain view, the of-
ficer conducted searches of the vehicle, of both Wood’s and
Kampas’s persons, and of Kampas’s purse. The searches re-
sulted in the seizure of about 111 grams of ice methamphet-
amine.
In addition to the federal drug conviction that is central
to this appeal, Mr. Bonk has numerous other previous
convictions, many of them violent in nature. Namely, he has
two felony convictions for battery; two convictions for
bodily-harm domestic battery; and convictions for a hate
crime, unlawful restraint, aggravated driving under the
influence, obstruction of justice, theft of a motor vehicle,
driving on a revoked license two separate times, violation of
bail bond, and unlawful possession of a firearm by a
6
convicted felon.
Indeed, his Presentence Investigation Report (“PSR”) re-
flected thirty-four criminal history points, which is almost
three times the minimum criminal history points required to
7
trigger the criminal history category of VI. His final total of-
fense level of thirty-five, combined with his criminal history
category of VI, resulted in an guidelines range of 292 to 365
8
months’ imprisonment. Because Mr. Bonk’s criminal history
6 Id. ¶¶ 40, 44, 46–47, 49, 51–52, 54–56, 58–60.
7 Id. ¶ 62; see also U.S.S.G. Sentencing Table.
8 R.133 ¶ 120.
4 No. 19-1948
did not include a prior felony drug offense, he faced a man-
9
datory minimum sentence of ten years in prison.
At the sentencing hearing, defense counsel submitted
that the guidelines range for methamphetamine mixture
should be used, a range of 188 to 235 months, instead of the
10
higher guidelines range for ice methamphetamine. He not-
ed mitigating factors, including that the conspiracy was rela-
tively short in duration; that Mr. Bonk personally consumed
up to one-third of the drugs; and that Mr. Bonk was a
first-time drug offender. He further contested the unfairness
of the sentencing differences between ice methamphetamine
and a methamphetamine mixture and contended that the
career-offender guideline is not based on empirical evi-
11
dence.
The Guidelines distinguish between a methamphetamine
mixture that is less pure and ice methamphetamine, a
higher-purity methamphetamine. Mr. Bonk noted that the
recommended sentence for a defendant in possession of ice
methamphetamine is longer than the recommended
sentence for a defendant in possession of a
methamphetamine mixture because “[t]he fact that a
defendant is in possession of unusually pure narcotics may
indicate a prominent role in the criminal enterprise and
9 Id. ¶ 119.
10 R.156 at 110.
11 Id. at 98–104.
No. 19-1948 5
12
proximity to the source of drugs.” He contended, however,
that “it is not unusual anymore for anybody to have pure
meth in their possession. So what the courts have started to
do is they have taken this into consideration, and that’s why
you are seeing more and more sentences of meth offenders
13
come in below the guideline range.” The Government, in
contrast, asked the court to view the conspiracy “through
the lens of [Mr. Bonk’s] criminal history” that included “13
14
felony convictions,” “[m]any of them violent in nature.”
The Government also noted that Mr. Bonk’s extensive
criminal history and the large amount of drugs that he
trafficked resulted in a “very rare” scenario where the
guidelines calculations resulted in a higher adjusted offense
level than the level required by the career-offender
15
guideline.
The district court sentenced Mr. Bonk to 262 months’ im-
prisonment followed by five years of supervised release. The
court entered final judgment, and Mr. Bonk filed a timely
notice of appeal.
B.
On August 15, 2019, we appointed counsel for Mr. Bonk.
On September 1, 2019, counsel filed an emergency motion
with the district court requesting access to all sealed docu-
12 Id. at 98 (citing U.S.S.G. § 2D1.1, Application Note 27(C)).
13 Id. at 100.
14 Id. at 77–78.
15 Id. at 78.
6 No. 19-1948
ments for Mr. Bonk and both of his codefendants. He stated
that he required access to all the sealed documents “for the
crucial purpose of analyzing, or ruling-out, whether dispari-
ty and/or excessiveness of sentencing was committed by the
trial court in separately sentencing the three defendants, up-
16
on their pleas.” The district court called counsel to inform
him that he had access to the sealed documents that had
17
been available to Mr. Bonk’s counsel in the district court.
On this call, counsel confirmed that he was requesting “ac-
18
cess to each and every sealed document in this case.”
The district court granted the motion in part and denied
the motion in part. Because the Pretrial Services Report had
been disclosed to trial counsel, the district court ordered the
Clerk’s Office to make the Pretrial Services Report available
to counsel. The district court further noted that counsel’s re-
quest for the Presentence Investigation Reports for Mr. Bonk
was moot because he already had access to them. Although
counsel made no specific request for it, the district court or-
dered the Clerk’s Office to make the Third Revised Presen-
tence Investigation Report available to counsel if he lacked
access.
The court denied access to documents such as the Sen-
tencing Recommendations for Mr. Bonk because they “are
confidential and are not disclosed unless otherwise ordered
16 R.162 at 2.
17 R.163 at 2.
18 Id.
No. 19-1948 7
19
by the presiding judge.” With respect to a handful of the
sealed documents relating to Kampas and Wood, the court
explained that “[m]any of the requested documents are
simply original signed versions of publicly available docu-
20
ments.” With respect to the remaining documents relating
to Kampas and Wood, the court ruled that counsel had
failed to “‘make a specific showing of need for access to the
21
document[s].’”
On September 7, 2019, counsel filed an amended emer-
22
gency motion with the district court. He reiterated that it
was “imperative and beyond question that [he] requires ac-
cess to all sealed documents for the two co-defendants’ ac-
tions … for the crucial purpose of analyzing, or ruling-out,
whether disparity and/or excessiveness of sentencing was
committed by the trial court in separately sentencing the
23
three defendants.” He submitted, “[t]hat specific need can-
24
not and need not be explicated with ‘more specificity.’” The
district court denied the motion with respect to every re-
quest except the request for the plea agreements and accom-
panying exhibits for Kampas and Wood; because counsel
19 Id. at 3.
20 Id. at 4.
21 Id. (quoting United States v. Corbitt, 879 F.2d 224, 228 (7th Cir. 1989)).
22 R.165.
23 Id. at 1–2.
24 Id. at 2.
8 No. 19-1948
would have had access to these documents if he had pro-
ceeded to trial, the court directed the Clerk’s Office to make
25
them available. In denying the rest of the requests, the dis-
trict court explained that it did
not believe [counsel’s] cursory argument—that
access is needed to all sealed documents
relating to codefendants Kampas and Wood so
counsel can analyze whether the sentence
imposed on Defendant Bonk was disparate or
excessive compared to the sentences of his
codefendants—raises to the level of a
“compelling, particularized need for
26
disclosure.”
Mr. Bonk renewed his request by motion in this court. After
the Government responded and Mr. Bonk replied, one of our
colleagues, sitting as motions judge for that period, denied
27
Mr. Bonk’s motion.
II
DISCUSSION
A.
We first examine whether we have jurisdiction to consid-
er whether the district court erred in denying counsel access
to all sealed documents in Mr. Bonk’s case and the cases of
25 R.168 at 4–5, 9.
26 Id. at 9 (quoting Corbitt, 879 F.2d at 239).
27 See App. R.25.
No. 19-1948 9
his codefendants. The answer to this question is straightfor-
ward: we do not have jurisdiction.
We begin by setting forth the principles that must guide
our inquiry. Federal Rule of Appellate Procedure 3 provides
in relevant part that “[a]n appeal permitted by law as of
right from a district court to a court of appeals may be taken
only by filing a notice of appeal” and that the notice “must
… designate the judgment, order, or part thereof being
appealed … .” Fed. R. App. P. 3(a)(1), (c)(1)(B). Rule
4(b)(1)(A)(i) of the Federal Rules of Appellate Procedure
provides in relevant part that, “[i]n a criminal case, a
defendant’s notice of appeal must be filed in the district
court within 14 days after … the entry of either the judgment or
the order being appealed.” Fed. R. App. P. 4(b)(1)(A)(i)
(emphasis added); see also Manrique v. United States, 137 S. Ct.
1266, 1270 (2017). Thus, “[t]o secure appellate review of a
judgment or order, a party must file a notice of appeal from
that judgment or order.” Manrique, 137 S. Ct. at 1271.
The Supreme Court has stated that “a notice [of appeal]
and its contents are jurisdictional prerequisites.” Gonzalez v.
28
Thaler, 565 U.S. 134, 147 (2012). Mr. Bonk filed his notice of
28 The Supreme Court has warned us not to make non-jurisdictional is-
sues jurisdictional. See Henderson v. Shinseki, 562 U.S. 428, 435 (2011).
Even if we were not convinced that the requirement to file a notice of
appeal is jurisdictional in nature, it is at least a mandatory
claim-processing rule. Mandatory claim-processing rules are not jurisdic-
tional. They “seek to promote the orderly progress of litigation by requir-
ing that the parties take certain procedural steps at certain specified
times.” Id. at 435. The Supreme Court held that, where “[t]he Govern-
ment timely raised petitioner’s failure to file a notice of appeal … [,] ‘the
court’s duty to dismiss the appeal was mandatory.’” Manrique v. United
(continued … )
10 No. 19-1948
appeal on May 17, 2019, “from the conviction, judgment, and
order of the district court … entered on May 15, 2019, sen-
29
tencing the Defendant … .” This notice therefore brought to
this court all matters occurring on or before the date of final
judgment. The district court’s September 5, 2019, order
denying the emergency motion to gain access to sealed doc-
30
uments is therefore not included in his notice of appeal.
We liberally construe the rules of procedure, including
Federal Rule of Appellate Procedure 3. Smith v. Barry, 502
U.S. 244, 248 (1992); Badger Pharmacal, Inc. v.
Colgate-Palmolive Co., 1 F.3d 621, 624 (7th Cir. 1993). “Thus, if
a litigant files papers in a fashion that is technically at
variance with the letter of a procedural rule, a court may
nonetheless find that the litigant has complied with the rule
if the litigant’s action is the functional equivalent of what the
rule requires.” Badger Pharmacal, Inc., 1 F.3d at 624 (quoting
Torres v. Oakland Scavenger Co., 487 U.S. 312, 316–17 (1988)).
( … continued)
States, 137 S. Ct. 1266, 1272 (2017) (quoting Eberhart v. United States, 546
U.S. 12, 18 (2005)). Here, we are satisfied that filing a notice of appeal
from the district court’s order denying Mr. Bonk’s emergency motion is a
jurisdictional requirement.
29 R.137 at 1.
30 There is no doubt that, after Mr. Bonk filed his notice of appeal, the
district court retained jurisdiction to decide ancillary matters such as
whether the appellate counsel was entitled to view the sealed record
documents. See Henry v. Farmer City State Bank, 808 F.2d 1228, 1240 (7th
Cir. 1986) (explaining that the district court retains jurisdiction to decide
issues “in aid of the appeal”); see also United States v. Ramer, 787 F.3d 837,
838 (7th Cir. 2015) (per curiam) (collecting cases).
No. 19-1948 11
That is, a deficient notice of appeal will not deprive us of
jurisdiction where “the intent to appeal from the contested
judgment may be inferred from the notice [of appeal].”
31
United States v. Dowell, 257 F.3d 694, 698 (7th Cir. 2001).
We have held that the intent to appeal from a particular
judgment may be inferred where the judgment occurred be-
fore the notice of appeal was filed or where the judgment is
obviously related to the judgment that is mentioned in the
notice of appeal. See, e.g., Moran Foods, Inc. v. Mid-Atlantic
Market Dev., 476 F.3d 436, 440–41 (7th Cir. 2007) (holding
that jurisdiction existed because the notice of appeal men-
tioned the district court’s order that, in effect, brought up for
review the court’s earlier quasi-interlocutory order (emphasis
added)); see also United States v. Taylor, 628 F.3d 420, 424 (7th
Cir. 2010) (holding that the defendant’s “intent to appeal
from both components of his sentencing package may fairly
be inferred from his notice of appeal, despite the fact that he
only included one case number” where “[b]oth sentences
arose from the same set of facts” (emphasis added)). Neither
of these exceptions are applicable here; Mr. Bonk seeks to
appeal from an order that was issued after he filed his notice
of appeal, and, the order, which addresses appellate coun-
sel’s emergency request for access to all documents, is not
obviously related to the sentencing order from which he ap-
peals.
31 We also have held that jurisdiction exists despite a technical failure to
comply with Rule 3 where the notice of appeal does not mislead or oth-
erwise prejudice the appellee. Harvey v. Town of Merrillville, 649 F.3d 526,
528–29 (7th Cir. 2011).
12 No. 19-1948
We would have jurisdiction over this order only if
Mr. Bonk had filed a second notice of appeal in conformity
with Rules 3 and 4 that included the district court’s ruling on
the emergency motion. Alternatively, he could have amend-
ed the original notice of appeal to include this emergency
motion. Although “[t]he court of appeals may, in its discre-
tion, overlook defects in a notice of appeal other than the
failure to timely file a notice,” “[i]t may not overlook the
failure to file a notice of appeal at all.” Manrique, 137 S. Ct. at
1274. Mr. Bonk “did not file a defective notice of appeal … ,
but rather failed altogether to file a notice of appeal … .” Id.Mr. Bonk was required to—but did not—file a separate
notice of appeal regarding the district court’s order denying
his request to access all the documents in his case and in the
cases of his codefendants. “Rule 3’s dictates are jurisdictional
in nature, and their satisfaction is a prerequisite to appellate
review.” Smith, 502 U.S. at 248. “[N]oncompliance is fatal to
an appeal.” Id. We do not have jurisdiction to review the dis-
32
trict court’s denial of Mr. Bonk’s request.
B.
Finally, we conclude that there is no merit to Mr. Bonk’s
complaint about the reasonableness of his sentence.
32 As noted above, one of our colleagues, sitting as a motions judge for
that period, denied Mr. Bonk’s motion. See App. R.25. Mr. Bonk has
waived review of our colleague’s decision because he does not ask us to
review it. See Appellant’s Br. 10 (“[T]he assignment of errors herein are
from the district court, not the circuit court.”); see Fed. R. App. P. 27(c)
(“The court may review the action of a single judge.”).
No. 19-1948 13
We review the substantive reasonableness of the sentence
for an abuse of discretion. United States v. Smith, 860 F.3d
508, 514 (7th Cir. 2017). Our review of the reasonableness of
the sentence “is limited; we are to ensure that ‘the district
judge imposed the sentence for reasons that are logical and
consistent with the § 3553(a) factors.’” United States v.
Wachowiak, 496 F.3d 744, 754 (7th Cir. 2007), abrogated on other
grounds by Nelson v. United States, 555 U.S. 350 (2009) (quot-
ing United States v. Williams, 425 F.3d 478, 481 (7th Cir.
2005)). We will “uphold a sentence so long as the judge of-
fers an adequate statement of his reasons consistent with the
sentencing factors enumerated in 18 U.S.C. § 3553(a).” United
States v. Porraz, 943 F.3d 1099, 1104 (7th Cir. 2019); see United
States v. Fogle, 825 F.3d 354, 358 (7th Cir. 2016) (explaining
that the sentencing court’s “explanation need not be exhaus-
tive” (citation omitted) (internal quotation marks omitted)).
Because Mr. Bonk’s sentence falls below the guidelines
range, we presume that his sentence is substantively reason-
able. United States v. Patel, 921 F.3d 663, 672 (7th Cir. 2019)
(“[W]e presume that a within-Guidelines sentence is reason-
able: ‘it follows that a sentence below the range also is pre-
sumptively not too high.’” (citation omitted)). This presump-
tion is rebuttable, but only if the defendant “show[s] that the
sentence does not comport with the factors outlined in 18
U.S.C. § 3553(a).” Id. at 672 (citation omitted).
In his opening brief, Mr. Bonk contends that the district
court erred by “not granting [him] a downward departure”
from the guidelines range, and he urges us “to remand … for
33
re-sentencing” for that reason. The district court, however,
33 Appellant’s Br. 11, 39.
14 No. 19-1948
imposed a sentence that was below the guidelines range.
The Guidelines provided a suggested range of 292 to 365
34
months’ imprisonment; the district court sentenced him to
35
262 months’ imprisonment.
In his reply brief, Mr. Bonk clarifies that he meant to state
“that the district court erred in not sentencing [him] to a
greater downward departure, the requested 15 ½ years to 19
36
½ years.” Thus, on appeal, Mr. Bonk’s argument appears to
be that the district court erred in not adopting the range of
188 to 235 months’ imprisonment as requested by defense
37
counsel at sentencing.
The district court, in explaining its sentencing decision,
provided an adequate explanation that permits meaningful
appellate review and promotes the perception of fair sen-
tencing. See United States v. Scott, 555 F.3d 605, 608 (7th Cir.
2009). Before imposing the sentence, the district court
acknowledged that the conspiracy did not last long, “but it
38
moved a lot of drugs in the process.” The court character-
ized Mr. Bonk’s upbringing as “bad,” but it noted that
Mr. Bonk had been provided with resources in the past and
he had been “either unable or unwilling to take advantage of
34 R.133 ¶ 120.
35 R.156 at 119.
36 Reply Br. 5–6 (emphasis added).
37 R.156 at 110 (“Your Honor, we are asking you to adopt the guideline
range for meth mixture, which is 188 to 235 months.”).
38 Id. at 116.
No. 19-1948 15
39
them.” The court said that because of his criminal history,
Mr. Bonk “didn’t give [his attorney] much to work with” in
40
asking for “a much lower sentence.” “[Y]our criminal activ-
ity,” the court observed, “doesn’t just consist of drugs or a
gun case but also consists of much violence. The violence
consists of punching and beating people, generally in a do-
mestic relationship situation, pushing and hitting females[,]
as well as hitting someone in a bar” because of the victim’s
41
race.
Ultimately, the court explained that it was imposing a
sentence of 262 months’ imprisonment, less than the guide-
lines range but more than what Mr. Bonk had requested, due
to the nature and extent of Mr. Bonk’s past criminal conduct,
combined with the nature of the offense of conviction. There
is nothing substantively unreasonable about this sentence.
Conclusion
We affirm the judgment of the district court.
AFFIRMED
39 Id. at 117.
40 Id.
41 Id. at 117–18.