United States v. Victor Banks

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3527
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
VICTOR G. BANKS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 12-CR-244 — Rudolph T. Randa, Judge.
____________________
ARGUED MAY 28, 2014 — DECIDED AUGUST 20, 2014
____________________
Before RIPPLE, WILLIAMS, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Victor Banks played a small role
in the sale of two guns to undercover federal agents and
pled guilty to possessing a firearm as a convicted felon. He
appeals his sentence of three years in prison and three years
of supervised release. Banks argues that the district court
failed to calculate the applicable Sentencing Guidelines
range, did not address his main mitigation argument, and
2 No. 13-3527
imposed a substantively unreasonable sentence. We find no
error and thus affirm.
In July 2012, Banks took part in the sale of two guns to a
federal agent who was posing as an employee of a store in
Milwaukee that was in fact an undercover operation run by
the Bureau of Alcohol, Tobacco, Firearms, and Explosives.
On the way into the store, Banks’s associate James Warren
asked him to hold a revolver. Banks put it in his waistband.
Once inside, Warren negotiated the sale of the guns for
$1,000. He took back the revolver from Banks and handed it
to the buyer.
Banks and Warren then offered to sell the agent some
crack cocaine. The agent said he had money only for the
guns but that he would gladly purchase the crack the next
day. Banks and Warren duly returned a day later and sold
the agent one ounce of what turned out to be fake crack co-
caine. (Banks was not charged for this sale, but it played a
role in his sentencing, as explained below.) Based on his brief
custody of the revolver in his waistband before the sale,
Banks was charged with possessing a firearm as a convicted
felon in violation of 18 U.S.C. § 922(g)(1). He pled guilty and
now appeals his sentence. We discuss Banks’s three argu-
ments in turn.
1. Banks first claims that the district court committed a
reversible error by failing to calculate his Sentencing Guide-
lines range. He bases this argument on two facts. One is that
his initial presentence report said that his guideline range
was 41 to 51 months when in fact it was 30 to 37 months. The
report correctly calculated that Banks had an offense level of
17 and a criminal history category of III. (Unlawfully pos-
sessing a firearm after an earlier felony drug conviction gave
No. 13-3527 3
Banks a base offense level of 20, U.S.S.G. § 2K2.1(a)(4)(A),
which was reduced three levels for acceptance of responsi-
bility under § 3E1.1(b).) But for unknown reasons the initial
report misstated the resulting guideline range. The second
fact on which Banks relies is that the district judge never ex-
plicitly stated the correct range at sentencing.
The Supreme Court has made clear that a district court
must begin sentencing by calculating the applicable guide-
line range. See Peugh v. United States, 133 S. Ct. 2072, 2080
(2013), citing Gall v. United States, 552 U.S. 38, 49 (2007); see
also United States v. Garcia, 754 F.3d 460, 483 (7th Cir. 2014).
Failure to do so is a significant procedural error. Peugh, 133
S. Ct. at 2080.
In this case, however, it is abundantly clear that the dis-
trict judge did calculate the correct range. Although the pro-
bation officer initially submitted a presentence report stating
the wrong range, she filed a correction with the court and
the parties several days before sentencing. The addendum
called attention to the error and explained that the correct
range was 30 to 37 months. The recalculated range was not
in dispute, and neither party objected to any facts in the cor-
rected report. In case any confusion remained, defense coun-
sel again pointed out the mistake at the sentencing hearing
and stated the correct range. Both the prosecutor and the
judge made reference to the actual sentence of 36 months as
being within the guideline range. Those statements were ob-
viously inconsistent with any belief that the range was 41 to
51 months. Finally, the district judge recorded the correct
guideline range in the court’s written statement of reasons
filed the day of sentencing. The judge’s failure to state the
guideline range affirmatively at sentencing was not reversi-
4 No. 13-3527
ble error where there could be no mistake that the judge and
all parties were well aware of the proper range.
2. Banks argues next that the district judge failed to con-
sider his main mitigation argument under 18 U.S.C.
§ 3553(a)(1): that the guideline range did not adequately ac-
count for his limited role in the offense. In support of this
argument, Banks’s sentencing memorandum said that he did
not arrange or profit from the sale of the guns. He possessed
one gun for only the short time it was in his waistband. The
gun did not belong to him, it was not loaded, and it may not
even have worked. He contends that his violation of § 922(g)
was essentially a technical one.
A sentencing judge is obliged to “address all of a defend-
ant’s principal arguments that are not so weak as to not mer-
it discussion.” United States v. Villegas-Miranda, 579 F.3d 798,
801 (7th Cir. 2009) (internal quotation marks omitted). A
judge who fails to do so is likely to have erred. United States
v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). We have
called this “[p]erhaps the most frequently argued issue on
our docket in recent years.” United States v. Castaldi, 743 F.3d
589, 595 (7th Cir. 2014) (collecting cases). It is not always
clear which arguments are “principal” or which ones require
comment, and there is no bright line showing when a judge
has said enough.
Although the judge could have been clearer, the tran-
script of Banks’s sentencing hearing shows that the judge
considered his mitigation argument but found it was out-
weighed by the seriousness of the offense and Banks’s crimi-
nal history. The district judge began his discussion of the fac-
tors under § 3553(a) by explaining that the Sentencing
Guidelines must be fitted to each defendant’s particular case.
No. 13-3527 5
Turning to “the nature of this offense first,” the judge dis-
cussed the seriousness of gun crimes. Some of his comments
were quite general and, standing alone, might not reflect the
individualized assessment required at sentencing. See United
States v. Washington, 739 F.3d 1080, 1081 (7th Cir. 2014) (“the
court’s reference to the seriousness of drug crimes in general
did nothing to explain” reasons for particular defendant’s
sentence).
Other statements showed, though, that the judge was fo-
cused on Banks’s role in this particular gun sale. The judge
noted that although selling guns to undercover agents did
not result in putting weapons on the streets where they
could enable violence, that was the exact danger the sting
operation was meant to address. The judge also took into ac-
count the dangerous combination of guns and drugs in
Banks’s business dealings.
Although there is no bright-line rule for when a sentenc-
ing judge has sufficiently addressed a defendant’s mitigation
argument, see Castaldi, 743 F.3d at 595, the judge’s explana-
tion was clear enough in this case. The judge listened to
Banks’s attorney reiterate his client’s limited role in the gun
transaction and was well aware of these particulars even if
he did not repeat them himself. Nevertheless, the judge
clearly felt that even brief possession of a gun by a felon can
be a serious offense when done in furtherance of drug- and
gun-dealing. The judge explained his reasoning in terms of
Banks’s particular criminal conduct and his criminal history,
which included state court convictions for possessing and
selling drugs, as well as for felony firearm possession. The
judge did not abuse his discretion in concluding that the de-
tails of Banks’s crime—along with the additional need for
6 No. 13-3527
deterrence suggested by Banks’s recidivism—actually
weighed against him in this case.
3. Finally, Banks challenges his sentence as substantively
unreasonable. He faces an uphill climb on this point, as the
“substantive reasonableness of a sentence is reviewed for an
abuse of discretion and a correctly calculated, within-
Guidelines sentence is entitled to a presumption of reasona-
bleness.” United States v. Pulley, 601 F.3d 660, 664 (7th Cir.
2010). Appellate decisions finding a within-guideline sen-
tence unreasonable are exceedingly rare.
Banks’s objection is based on the district judge’s com-
ments about Banks’s drug use and about the relatively light
sentences he received in state court for earlier crimes. The
judge made clear his disapproval of Banks’s daily marijuana
use and speculated that the only way Banks could have sup-
ported his habit without a job was through criminal activity.
He also said four times during the relatively short hearing
that he thought Banks had “caught a break” in state court by
being charged with lesser crimes than his conduct could
have supported. Banks concludes from these comments that
his sentence was based not on the factors in 18 U.S.C.
§ 3553(a) but by a desire to make up for past sentences the
district court judge disagreed with.
Although perhaps ill-advised and certainly not necessary,
the judge’s speculation falls short of providing a basis for be-
lieving that the guideline sentence he imposed was substan-
tively unreasonable. Viewed in context, the comments were
a response to defense counsel’s arguments that the judge
should impose a sentence below the guideline range. The
judge explained that Banks’s marijuana use and continued
involvement with guns and drugs were part of a troubling
No. 13-3527 7
pattern of poor choices in his life and peer group. The judge
explicitly noted that he could not and was not imposing a
sentence to make up for the light sentences Banks received in
state court. But he believed Banks’s record did not fully re-
flect his past relevant conduct. That conclusion and the sen-
tence based on it did not amount to an abuse of discretion.
Accordingly, the judgment is AFFIRMED.