United States v. Robert Presley

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2704
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT PRESLEY,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 10 CR 50078-3 — Frederick J. Kapala, Judge.
____________________
ARGUED APRIL 27, 2015 — DECIDED JUNE 11, 2015
____________________
Before POSNER, WILLIAMS, and TINDER, Circuit Judges.
POSNER, Circuit Judge. Robert Presley, the defendant in a
trial lasting eight days, was convicted by a jury of heroin and
related gun offenses and also of being a felon in possession
of a gun. See 18 U.S.C. §§ 922(g)(1), 924(c)(1)(A)(i); 21 U.S.C.
§ 846. We affirmed the convictions and sentences of two of
his codefendants in United States v. Cooper, 767 F.3d 721 (7th
Cir. 2014), an opinion that contains a full description of the
crimes of the defendants, including Presley. The judge sen-
2 No. 14-2704
tenced him to 440 months (36.67 years) in prison and im-
posed 17 conditions of supervised release. The appeal chal-
lenges the conviction and the prison sentence.
The principal challenge to the conviction concerns a
fourth codefendant, Norman Breedlove, who testified
against Presley pursuant to a plea agreement. Shortly after
the trial, Presley, who was housed in a cell near Breedlove’s
cell, moved for a new trial on the ground that he had over-
heard Breedlove saying things that suggested that his testi-
mony had been “false and perjurious.” Shortly before
Presley filed his motion, the district judge at the request of
Breedlove’s lawyer had ordered Breedlove examined to de-
termine his mental competency. On the basis of the results of
the examination the judge ruled that Breedlove was suffer-
ing “from a mental disease or defect rendering him … un-
able to understand the nature and consequences of the pro-
ceedings against him or assist properly in his defense.” The
judge ordered him committed for “a reasonable period of
time … to determine whether there is a substantial probabil-
ity that in the foreseeable future” he would “attain the ca-
pacity to permit the proceedings [against him, pursuant to
his plea agreement] to go forward.”
A guard at the jail in which Breedlove was held submit-
ted an affidavit stating that Breedlove had admitted to the
guard that he had testified falsely against Presley—
explaining that he had made a plea deal with the govern-
ment (requiring him to testify against Presley) because one
of his heroin customers had died of an overdose and he was
afraid of being charged with murder if he didn’t do what-
ever the government wanted him to do. Presley argued that
he was entitled to a new trial because Breedlove had either
No. 14-2704 3
given perjured testimony or had not been competent to tes-
tify.
The judge denied Presley’s motion for a new trial. He
said that it was unclear whether Breedlove had been men-
tally incompetent at the time of the trial and whether if so
this would have made him incapable of testifying truthfully,
and that in any event any error in allowing Breedlove to tes-
tify had to have been harmless because of the overwhelming
other evidence of Presley’s guilt, evidence recounted in our
previous opinion. The judge’s rulings on the Breedlove mat-
ter were sound.
Presley also questions the amount of heroin that the
judge determined the conspiracy to which Presley belonged
to have been responsible for while he was a member: at least
1 kilogram a month. For purposes of determining Presley’s
sentence the judge assumed that he had been responsible in
toto for only 1 kilogram—a safe assumption, amply sup-
ported by the evidence.
The only questionable feature of the judgment is the
length of the sentence—almost 37 years, though it is within
the applicable guidelines range because of Presley’s very
lengthy criminal history. Presley was 34 years old when sen-
tenced and the Bureau of Prisons has calculated his release
date as 28.5 years after sentencing. The Bureau calculates re-
lease dates by subtracting from the sentence (1) credit for the
defendant’s pretrial custody, a known period, and (2) the
maximum possible credit that the defendant might earn for
good behavior in prison, which is merely a possibility. If
Presley earns the maximum possible good-time credit he’ll
be almost 64 years old when released. If he earns no good
time he’ll be almost 69. And after release he’ll undergo five
4 No. 14-2704
years of supervised release, which like parole is a form of
custody because it imposes significant restrictions on the su-
pervisee. Yet all that Presley’s briefs say about the length of
his sentence (besides the challenge to the drug quantity) is
that “this amount of incarceration far exceeded a sentence
under 18 U.S.C. § 3553(a) that was sufficient, but no greater
than necessary to achieve the sentencing goals set forth
therein.” Without elaboration—and there is none—this per-
functory argument fails to establish a basis for resentencing.
Nevertheless we have an independent responsibility to
make sure that the sentencing judge justified the imposition
of a sentence of such length. The judge pointed out that Pres-
ley is a career offender, that he began his criminal career
when he was 16, that he was a large-scale heroin dealer, and
that he had committed disciplinary violations in previous
incarcerations. What the judge failed to consider was the ap-
propriateness of incarcerating Presley for so long that he
would be elderly when released. Criminals, especially ones
engaged in dangerous activities such as heroin dealing, tend
to have what economists call a “high discount rate”—that is,
they weight future consequences less heavily than a normal,
sensible, law-abiding person would. John Bronsteen et al.,
“Happiness and Punishment,” 76 U. Chi. L. Rev. 1037, 1060 n.
115 (2009); Yair Listokin, “Crime and (with a Lag) Punish-
ment: The Implications of Discounting for Equitable Sentenc-
ing,” 44 Am. Crim. L. Rev. 115, 124 (2007); Stephanos Bibas,
“Plea Bargaining Outside the Shadow of Trial,” 117 Harv. L.
Rev. 2463, 2504–06 (2004). Just as $1000 to be received 30
years from today is worth less to a person than $1000 re-
ceived today (at an annual discount rate of 10 percent its
present value is only $57), so the prospect of being in prison
at age 60 is less worrisome to a 30 year old than the prospect
No. 14-2704 5
of being in prison today—and the higher his discount rate,
the less worrisome the prospect. The length of a sentence
therefore has less of a deterrent effect on such a person than
the likelihood that he’ll be caught, convicted, and impris-
oned. A. Mitchell Polinsky & Steven Shavell, “On the Dis-
utility and Discounting of Imprisonment and the Theory of
Deterrence,” 28 J. Legal Studies 1, 4–6 (1999); see also Paul H.
Robinson & John M. Darley, “The Role of Deterrence in the
Formulation of Criminal Law Rules: At Its Worst When Do-
ing Its Best,” 91 Geo. L.J. 949, 954–55 (2003). An increase in
the length of a sentence may therefore add little additional
deterrence, since every sentence increment is an increment in
future, not present, punishment. Linda S. Beres & Thomas D.
Griffith, “Habitual Offender Statutes and Criminal Deter-
rence,” 34 Conn. L. Rev. 55, 62–65 (2001).
The sentencing judge in this case did not refer to any of
this literature, and in any event gave no reason to think that
imposing a 37-year sentence on Presley would have a greater
deterrent effect on current or prospective heroin dealers than
a 20-year or perhaps even a 10-year sentence, or that inca-
pacitating him into his sixties is necessary to prevent his re-
suming his criminal activities at that advanced age. Sentenc-
ing judges need to consider the phenomenon of aging out of
risky occupations. Violent crime, which can include traffick-
ing in heroin, is generally a young man’s game. Elderly peo-
ple tend to be cautious, often indeed timid, and averse to
physical danger. Violent crime is far less common among
persons over 40, let alone over 60, than among younger per-
sons. According to Bureau of Justice Statistics, “Prisoners
Entering Federal Prison,” www.bjs.gov/fjsrc/var.cfm?
ttype=one_variable&agency=BOP&db_type=Prisoners&saf=I
N, only 1.18 percent of persons entering federal prisons in
6 No. 14-2704
2012 for drug crimes were in the 61 to 70 age group. That is
another reason to doubt that very long sentences reduce vio-
lent crime significantly.
There needs finally to be considered the cost of impris-
onment to the government, which is not trivial. The U.S.
prison population is enormous by world standards—about 1
percent of the nation’s entire population—and prisons are
costly to operate because of their building materials (steel
especially is very expensive) and large staffs. If the deterrent
or incapacitative effect on criminal propensities fades
sharply with time, the expenses incurred in the incarceration
of elderly persons may be a social waste. The Bureau of Pris-
ons reports that 17.5 percent of the federal prison population
is over the age of 50, 2.7 percent between 61 and 65, and 2.2
percent older than 65. Federal Bureau of Prisons, Inmate Sta-
tistics: Inmate Age, www.bop.gov/about/statistics/statistics
_inmate_age.jsp.
“Aging prisoners,” defined as prisoners 50 years old or
older, cost the federal prison system about 8 percent more
than younger prisoners, and these excess costs, mainly med-
ical, rise with age. See Office of the Inspector General, U.S.
Dept. of Justice, “The Impact of an Aging Inmate Population
on the Federal Bureau of Prisons,” May 2015, https://oig.
justice.gov/reports/2015/e1505.pdf. The Inspector General’s
study also finds that only 8 percent of inmates aged 60 to 64
who were released between 2006 and 2010 were rearrested
for new crimes within three years, compared to 19 percent
who were 50 to 54.
We are not suggesting that sentencing judges (or counsel,
or the probation service) should conduct a cost-benefit anal-
ysis to determine how long a prison sentence to give. But the
No. 14-2704 7
considerations that we’ve listed should be part of the knowl-
edge base that judges, lawyers, and probation officers con-
sult in deciding on the length of sentences to recommend or
impose. There is no indication that these considerations re-
ceived any attention in this case. We do not criticize the dis-
trict judge and the lawyers and probation officers for the
oversight; recognition of the downside of long sentences is
recent and is just beginning to dawn on the correctional au-
thorities and criminal lawyers. Neither the Justice Depart-
ment nor the defendant’s lawyer (or the probation service)
evinced awareness in this case of the problem of the elderly
prison inmate. Some judges, however, have drawn attention
to the problem in their opinions. See, e.g., United States v.
Johnson, 685 F.3d 660, 661–62 (7th Cir. 2012); United States v.
Bullion, 466 F.3d 574, 577 (7th Cir. 2006); United States v.
Howard, 773 F.3d 519, 532–33 (4th Cir. 2014); United States v.
Payton, 754 F.3d 375, 378–79 (6th Cir. 2014); United States v.
Craig, 703 F.3d 1001, 1002–04 (7th Cir. 2012) (concurring
opinion). It is time we all awakened to it.
There is much that federal sentencing judges are required
to consider in deciding on a sentence to impose—maybe too
much: the guidelines, the statutory sentencing factors, the
statutory and regulatory provisions relating to conditions of
supervised release, presentence reports, briefs and argu-
ments of counsel, statements by defendants and others at
sentencing hearings. But in thinking about the optimal sen-
tence in relation to the problem of the elderly prisoner,
probably the judge’s primary focus should be on the tradi-
tional triad of sentencing considerations: incapacitation,
which prevents the defendant from committing crimes (at
least crimes against persons other than prison personnel and
other prisoners) until he is released, general deterrence (the
8 No. 14-2704
effect of the sentence in deterring other persons from com-
mitting crimes), and specific deterrence (its effect in deter-
ring the defendant from committing crimes after he’s re-
leased). A sentence long enough to keep the defendant in
prison until he enters the age range at which the type of
criminal activity in which he has engaged is rare should
achieve the aims of incapacitation and specific deterrence,
while lengthening the sentence is unlikely to increase gen-
eral deterrence significantly if the persons engaged in the
criminal activity for which the defendant is being sentenced
have a high discount rate; for beyond a point reached by a
not very long sentence, such persons tend not to react to in-
creases in sentence length by abandoning their criminal ca-
reers.
There will be cases in which the heinousness of the de-
fendant’s crime or other factors argue compellingly for a
sentence longer that needed to achieve the goals served by
incapacitation and general and specific deterrence. But in
run of the mine cases consideration of those goals is likely to
argue for a relatively lenient sentence.
Nevertheless we are not disposed to reverse Presley’s
sentence, given that it is within the guidelines range and that
the defendant has made only the most perfunctory argument
(really an assertion rather than an argument) for reducing it.
But we invite the district judge to consider resentencing the
defendant in light of the concerns that we’ve expressed in
this opinion about the elderly-prisoner problem. We are
mindful that the judge may already have concluded that
Presley’s record requires incapacitation and specific deter-
rence well into his 60s. Apart from his many convictions,
Presley told his probation officer that he’d been shot ten dif-
No. 14-2704 9
ferent times since he was 16 years old—and those were just
the shootings when he was on the losing side of a fight. He
was still using a gun for criminal purposes at age 32 and be-
tween the ages of 16 and 32 had held no job other than that
of dealer in illegal drugs. The judge may have concluded not
without reason that Presley is one of the outliers who will
still be dangerous when released in his (early or late) 60s.
But it is at least possible that were the judge to reexamine in
light of this opinion the sentence that he imposed, he would
shorten it. And he’ll surely want to reexamine the conditions
of supervised release that he imposed, in light of recent deci-
sions of this court questioning a number of them. See United
States v. Kappes, 782 F.3d 828 (7th Cir. 2015), and cases cited
there.
AFFIRMED.