United States v. Hakeem Smith

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1401
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
H AKEEM L. S MITH,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 12-CR-30173—David R. Herndon, Chief Judge.
A RGUED JUNE 13, 2013—D ECIDED JULY 15, 2013
Before M ANION, S YKES, and T INDER, Circuit Judges.
P ER C URIAM. Hakeem Smith pleaded guilty to distri-
buting, and possessing with intent to distribute, crack
cocaine. See 21 U.S.C. § 841(a)(1). The district court sen-
tenced Smith as a career offender, see U.S.S.G. § 4B1.1, to
151 months’ imprisonment, the bottom of the guidelines
range. On appeal Smith offers two reasons that he has
rebutted the presumption that his within-guidelines
sentence is reasonable: First, the Sentencing Commission
2 No. 13-1401
did not develop the career-offender guidelines using
its standard empirical approach; rather it followed con-
gressional mandate. Second, the nature of his offense
and his personal characteristics make the sentence sub-
stantively unreasonable. Because a congressionally man-
dated guideline is entitled to a presumption of reasonable-
ness, and because the sentence is otherwise reasonable,
we affirm the judgment of the district court.
Background
The facts of Smith’s crimes are straightforward. In
April 2012, police officers stopped a car in which Smith,
then 22 years old, was a passenger. Smith fled on foot,
but when police captured him, they found him with a
clear plastic bag containing 9.9 grams of crack. About
two weeks later, Smith sold $60 worth of crack (0.3 grams)
to a confidential police source in a hand-to-hand transac-
tion. He pleaded guilty to distribution and possession
with intent to distribute crack.
Given the amount of crack attributed to him (10.2 grams),
Smith’s base offense level would have been 18, see
U.S.S.G. § 2D1.1(c)(11), and his prior convictions would
have placed him in criminal history category III. But
Smith’s two prior convictions for aggravated fleeing
from police (a felony), see 625 ILCS § 5/11-204.1, qualified
as crimes of violence, see U.S.S.G. § 4B1.2(a); Welch v.
United States, 604 F.3d 408, 425 (7th Cir. 2010); United
States v. Spells, 537 F.3d 743, 754 (7th Cir. 2008), and
because in this case he pleaded guilty to controlled sub-
stance offenses, see U.S.S.G. § 4B1.2(b), the probation
No. 13-1401 3
officer classified him as a career offender. This classifica-
tion resulted (after a three-level reduction for acceptance
of responsibility, see id. § 3E1.1(a), (b)) in a total offense
level of 29 and a category VI criminal history. See id. at
§ 4B1.1(a), (b). Smith’s guidelines range as a career
offender was 151 to 188 months (as opposed to the
range of 24 to 30 months that would have applied
without the career-offender label).
Smith did not object to the probation officer’s guide-
lines calculations, but he argued for a below-guidelines
sentence of 60 months’ imprisonment. He criticized
the career-offender guidelines because they were not
produced through the Sentencing Commission’s
traditional empirical method, and he also argued that
his guidelines range “greatly overstates the seriousness
of . . . [his] instant drug offense and predicate fleeing
offenses” because his current offense involved only
small quantities of drugs and his predicate offenses
did not involve the use of a weapon or the type of delib-
erate violence of the crimes enumerated in U.S.S.G.
§ 4B1.2(a). He also contended that his “personal history
and characteristics support a below guidelines sen-
tence.” He pointed specifically to his youth, troubled
childhood, and history of mental illness (including
his diagnoses of depression, bipolar disorder, and “op-
positional defiant disorder”).
The district court adopted the findings and guidelines
calculations from the presentence report and ultimately
sentenced Smith to 151 months’ imprisonment. The
court explained that, contrary to Smith’s arguments that
4 No. 13-1401
he was not a dangerous criminal, at age 22 he already
had been convicted of drug offenses and a domestic
battery in which he choked a woman and kicked her in
the head. These were serious offenses that, even though
he did not use a weapon, still threatened family and
community. His criminal history also demonstrated
a pattern of twice attempting to escape and elude
police, both by car, which put the public at “extraordinary
risk” and, in this case, on foot, showing disrespect for
the law. In addition, the court observed that, although
Smith experienced mental health issues that may have
diminished his capacity, he refuses to take prescribed
medication and generally disdains authority. Therefore,
the court concluded, a within-guidelines sentence
was necessary to, among other things, protect the public
and promote respect for the law.
Analysis
On appeal Smith challenges the substantive reason-
ableness of his sentence. Because Smith’s sentence is
within the guidelines range, we apply a presumption of
reasonableness. See Rita v. United States, 551 U.S. 338,
347 (2007); United States v. Baker, 655 F.3d 677, 683 (7th
Cir. 2011). But Smith first contends that this presump-
tion is rebutted because the career-offender guidelines
were developed, not by using the Sentencing Commis-
sion’s traditional empirical approach (including the
study of thousands of presentence reports), but by con-
gressional mandate in 18 U.S.C. § 994(h). Smith points
out that the court in Rita allowed a presumption of rea-
No. 13-1401 5
sonableness because, when the Commission uses its
empirical approach, “it is fair to assume that the Guide-
lines, insofar as practicable, reflect a rough approxima-
tion of a sentence that might achieve 18 U.S.C § 3553(a)’s
objectives.” 551 U.S. at 350. Thus, Smith asserts,
“the absence of such an empirical basis for a particular
guideline results in the absence of the inference that
it produces” a reasonable sentence.
We have not yet addressed Smith’s argument that,
because the career-offender guideline is not empirically
based, Rita’s deference to the Commission’s judgment
does not apply and, therefore, no presumption of rea-
sonableness arises. But in the context of the child-pornog-
raphy guidelines, we have rejected the similar argu-
ment that the presumption vanishes if the guideline is
not based on empirical research. See, e.g., United States
v. Schuster, 706 F.3d 800, 808-09 (7th Cir. 2013); United
States v. Reibel, 688 F.3d 868, 870-71 (7th Cir. 2012).
Other circuits have, however, considered Smith’s specific
argument about the rationale of Rita. They have con-
cluded that the presumption applies even to sentences
based on guidelines developed through congressional
mandates because a sentence that agrees with the judg-
ment of Congress is likely reasonable as well. See
United States v. Coleman, 635 F.3d 380, 382 (8th Cir.
2011); United States v. Kiderlen, 569 F.3d 358, 369 (8th
Cir. 2009); United States v. Mondragon-Santiago, 564 F.3d
357, 366-67 (5th Cir. 2009); United States v. Kirchhof, 505 F.3d
409, 414 (6th Cir. 2007). The Fourth and Tenth Circuits
have reached the same conclusion, albeit only in
nonprecedential dispositions. See, e.g., United States v.
6 No. 13-1401
Carrera-Diaz, No 12-2098, 2013 WL 518527 at *2 (10th Cir.
Feb. 13, 2013); United States v. v. Mendoza-Mendoza,
413 F.App’x 600, 602 (4th Cir. 2011).
We follow the course laid out by our sister circuits.
Smith does not explain why this court should accord
less deference to a guideline based on Congress’s judg-
ment concerning the statutory maximums and the def-
inition of violent felonies—to which the career-offender
guidelines and their definition of crimes of violence
are tied—rather than the Commission’s own studies.
Absent a strong reason to reject congressional judg-
ments about sentencing, courts traditionally respect
them as valid. See Schuster, 706 F.3d at 808 (noting
when rejecting a reasonableness challenge to a child-
pornography-guideline sentence that “Congress itself
may have studied the problem of child pornography”);
Kiderlen, 569 F.3d at 369 (“in the real-world circumstance
where a sentencing judge agrees with Congress, then
the resulting sentence is also probably within the range
of reasonableness”); Kirchhof, 505 F.3d at 414 (reasoning
that, though a guideline may not “reflect the expertise
of the Sentencing Commission,” an argument chal-
lenging the presumption on that basis “fails to recognize
that it is the prerogative of Congress to fix the sentence
for a federal crime” and “it is not the court’s role to sec-
ond-guess the legislative determination of appropriate
sentences”).
Finally, the Sentencing Commission did, in fact, lend
its expertise to developing the career-offender guide-
lines. Although the Commission tied the career-
No. 13-1401 7
offender guidelines to the statutory maximums for
drug and violent crimes as Congress directed in § 944(h),
it also conducted research and amended those guide-
lines “to focus more precisely on the class of recidivist
offenders for whom a lengthy term of imprisonment is
appropriate.” U.S.S.G. § 4B1.1 background; see also
James v. United States, 550 U.S. 192, 206 (2007) (Commis-
sion’s decision to include attempt offenses as crimes
of violence “was based on the Commission’s review of
empirical sentencing data and presumably reflects
an assessment that attempt crimes often pose a similar
risk of injury as completed offenses”). Accordingly,
the way in which the Commission developed the ca-
reer-offender guidelines does not rebut a presump-
tion on appeal that a within-guideline sentence is rea-
sonable.
Smith argues alternatively that the presumption that
his within-guidelines sentence is reasonable is rebutted
by the specific nature of his offense and character. As
he did in the district court, he cites his youth and im-
maturity, his history of mental illness (including his
diagnoses of depression, bipolar disorder, and oppositional
defiant disorder), and his prior convictions involving
no “deliberate violence.”
The district court weighed these arguments when
considering the 18 U.S.C. § 3553(a) factors and did so
reasonably. Even if it assigned more weight than
Smith prefers to the need to protect the public from
Smith’s propensities for violence and impulsive
behavior, and less weight to his mental health problems
8 No. 13-1401
and youth, the district court enjoys discretion in
assigning those weights. See United States v. Coopman, 602
F.3d 814, 818-19 (7th Cir. 2010); United States v. Beier, 490
F.3d 572, 574 (7th Cir. 2007). True, the weighting of the
§ 3553(a) factors must fall “within the bounds of reason,”
but those bounds “are wide,” United States v. Busara,
551 F.3d 669, 674 (7th Cir. 2008) (internal citation and
quotation marks omitted). Smith’s criminal record in
his young life stretches over almost 10 years and is
varied, violent, and puts the public at serious risk. Such
behavior does not display personal circumstances that
place his offense outside the heartland of cases war-
ranting the admittedly harsh penalties associated with
drug offenses and the career-offender classification. Cf.
United States v. Freeman, 691 F.3d 893, 902-03 (7th Cir.
2012) (30-year, within-guidelines sentence reasonable
despite defendant’s argument that he was only a “ ‘small
time, small quantity’ dealer”); United States v. Curtis,
645 F.3d 937, 943 (7th Cir. 2011) (defendant’s within-
guidelines sentence of 262 months reasonable even
though he was a low-level distributor given his history
of run-ins with the law dating back to the age of 12);
United States v. Jackson, 547 F.3d 786, 794-96 (7th Cir.
2008) (above-guidelines sentence reasonable even
though defendant was only 25 in part because of defen-
dant’s extensive criminal history and failure to reform
himself).
A FFIRMED.
7-15-13