United States v. Cunningham, Karl

In the
United States Court of Appeals
For the Seventh Circuit
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No. 05-1774
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KARL CUNNINGHAM,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 352—Ruben Castillo, Judge.
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ARGUED SEPTEMBER 27, 2005—DECIDED NOVEMBER 14, 2005
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Before CUDAHY, POSNER, and EASTERBROOK, Circuit Judges.
POSNER, Circuit Judge. The defendant pleaded guilty to
one count of conspiring to possess, with intent to distribute,
more than five grams of a mixture or substance containing
crack cocaine. 21 U.S.C. § 846. The judge sentenced him to
57 months in prison, which was at the bottom of the guide-
lines range for the defendant’s offense. The sentence was
imposed after the Supreme Court, in United States v. Booker,
125 S. Ct. 738 (2005), had held that the federal sentencing
guidelines are advisory. Booker, and cases interpreting it,
such as United States v. Mykytiuk, 415 F.3d 606, 607-08 (7th
Cir. 2005); United States v. Dean, 414 F.3d 725, 727 (7th Cir.
2 No. 05-1774
2005); United States v. George, 403 F.3d 470, 472-73 (7th Cir.
2005); and United States v. Crawford, 407 F.3d 1174, 1178-
79 (11th Cir. 2005), instruct the sentencing judge to compute
the applicable guidelines sentencing range, just as he would
have had to do under the pre-Booker regime; only after
doing so does he decide whether to impose a sentence
within the range or a different sentence. 127 S. Ct. at 767. If
he imposes a sentence within the range, it is presumed to be
reasonable, United States v. Mykytiuk, supra, 415 F.3d at 608,
though the defendant can try at the sentencing hearing
to rebut the presumption by showing that a guidelines
sentence is unreasonable in the particular circumstances
of the case.
Whether a sentence is reasonable depends on its con-
formity to the sentencing factors set forth in 18 U.S.C.
§ 3553(a)(2). United States v. Booker, supra, 125 S. Ct. at 765-
66 (2005); United States v. Alburay, 415 F.3d 782, 786 (7th Cir.
2005). Although the factors are intended to guide the
Sentencing Commission in its formulation of sentencing
guidelines, 28 U.S.C. §§ 991(b)(1)(A), 994(b), (g), (m);
United States v. Scott, 2005 WL 2351020, at *5 n. 5 (11th
Cir. Sept. 27, 2005); United States v. Frank, 864 F.2d 992,
1011 (3d Cir. 1988), the statute is also a directive to the
sentencing court. Thus, as we said in Dean, the sentencing
judge may not rest on the guidelines alone, but must, if
asked by either party, consider whether the guidelines
sentence actually conforms, in the circumstances, to the
statutory factors. 414 F.3d at 730-31; see also United States v.
Williams, 2005 WL 2455110, at *1-2 (7th Cir. Oct. 6, 2005);
United States v. Mykytiuk, supra, 415 F.3d at 608. He can-
not treat all sentences that would fall within the guidelines
sentencing range as reasonable per se. Id.; United States
v. Winters, 416 F.3d 856, 860-61 (8th Cir. 2005); United States
v. Webb, 403 F.3d 373, 385 n. 9 (6th Cir. 2005).
No. 05-1774 3
But what if any duty has the judge to explain his rea-
soning in imposing a guidelines sentence when the de-
fendant contends that such a sentence would be unreason-
able? The government’s lawyer answered none; as long as
the judge states that he has considered the statutory sentenc-
ing factors, no further explanation of the sen-
tence is required. The judge could have a stamp that said “I
have considered the statutory factors,” which he placed on
every guidelines sentence that he imposed—that would be
okay, the government’s lawyer said. The defendant in this
case had argued that in his particular circumstances a
sentence even at the bottom of the guidelines range would
be unreasonably harsh. The judge brushed aside his argu-
ment. Can we say as we did in United States v. Williams,
supra, at *2, that “it is enough that the record confirms that
the judge has given meaningful consideration to the section
3553(a) factors, and the record supplies us with that assurance
here” (emphasis added); see also United States v. Baretz, 411
F.3d 867, 878 n. 11 (7th Cir. 2005); United States v. Engler, 422
F.3d 692, 696-97 (8th Cir. 2005)? Or are we left in serious
doubt whether the judge connected the facts relating to the
statutory factors to the sentence he imposed?
Until his arrest, Cunningham, age 49 and a Vietnam
combat veteran, had worked for the postal service for 24
years. He was a good family man and had no criminal
record. He was, however, a habitual smoker of marijuana.
His supplier was a man named Andre Means. A former
coworker of Cunningham’s at the post office, who had
become a confidential informant for the government and
was doubtless aware of Cunningham’s connection with
Means and may have been asked by the government to
“get” Means, approached Cunningham and asked him for
help in obtaining crack. Cunningham agreed and intro-
duced the informant to Means, who on nine occasions,
4 No. 05-1774
with Cunningham present but not participating in the
transaction, sold crack to the informant. All that Cunning-
ham got out of performing this brokerage service (barely
that) were payments of $10 to $20 from the informant on
eight of the nine occasions, for a grand total of $100. He
used the money to buy marijuana for his personal consump-
tion from Means, receiving no discount or other benefit in
exchange for helping with the crack transactions. (He has
never, so far as appears, bought or used crack himself.)
Means pleaded guilty to his leading role in the conspiracy
and was given a 188-month prison sentence.
Cunningham has a long history of psychiatric illness,
coupled with alcohol abuse as well as his marijuana
habit. The year before his go-between activity he had
attempted suicide and had been hospitalized and diagnosed
as suffering from clinical depression, acute and chronic
anxiety, and compulsive disorder. In arguing to the judge
for a below-guidelines sentence, Cunningham’s lawyer
presented extensive documentation of her client’s psychiat-
ric history. She also argued that the high guidelines offense
level produced by the amount of crack in the transactions
overstated Cunningham’s culpability. The lawyer noted
how meager Cunningham’s earnings from his role in the
transactions had been—a role that obviously both the
informant and Means had thought trivial. The lawyer noted
further that the informant not only had approached
Cunningham in the first place but had asked him to stay
close during his transactions with Means, and Cunningham
had agreed because the transactions would be taking place
in a rough neighborhood and the informant—his (false)
friend—might be in danger in carrying on his person first
the purchase money and then the crack that he’d be buying
from Means with the money.
No. 05-1774 5
At the sentencing hearing the government’s lawyer urged
a sentence in the guidelines range, noting that Cunningham
was a government employee and adding that he “did not
come forward to cooperate when he could have against the
co-defendant [Means] and come in earlier. That case
ultimately ended up in a plea, but we did ask him to come
in earlier, and the decision was made not to do that until it
was too late.” Cunningham’s lawyer argued that a guide-
lines sentence would be inappropriate because of the
psychiatric and other factors summarized above.
The judge’s response was terse:
I understand that you’re a broker [the judge is address-
ing Cunningham, of course, not the lawyer], but
you’re a broker of crack cocaine transactions on nine
separate offense—nine separate occasions. Despite
strong submissions by [Cunningham’s lawyer], both
in writing and here orally, I cannot see that a sentence
within the guidelines is not appropriate, given all of the
factors that I have to adhere to. Therefore, looking at
you, knowing that you’re not all bad, knowing that you
made tremendous mistakes in this case to get involved
in this number of times, and I will tell you quite hon-
estly, if you had done this once or maybe twice, I would
rethink, using my sentencing discretion; but nine
different times and the fact that you, out of loyalty, I
think misguided[,] to Mr. Means, decided not to cooper-
ate against him, and I will get to Mr. Means, taking all
these things into consideration, I’m going to sentence
you to a 57-month sentence within the Bureau of
Prisons, and place you on five years of supervised
release.
If we were to subject this passage to the kind of scrutiny
to which we and the other courts of appeals subject
6 No. 05-1774
the decisions of administrative agencies, e.g., Highway J
Citizens Group v. Mineta, 349 F.3d 938, 952-53 (7th Cir. 2003);
Howard Young Medical Center, Inc. v. Shalala, 207 F.3d 437,
441-42 (7th Cir. 2000); GTE Midwest, Inc. v. F.C.C., 233 F.3d
341, 344-45 (6th Cir. 2000), it would not pass muster. There
are two problems. The first is the reference to Cunningham’s
having “decided not to cooperate against” Means. This
contention had first been made, without elaboration
or substantiation, in the brief passage that we quoted from
the government lawyer’s statement at the sentencing
hearing; there is no confirmation elsewhere in the rec-
ord, including the report of the presentence investiga-
tion. The judge should not have run with this particular ball
without some inquiry into the cause and significance of
Cunningham’s decision not to cooperate. The government
has never contested the evidence of Cunningham’s severe
psychiatric illnesses. Not that depression or anxiety or
compulsive disorder, or indeed all together, need preclude
cooperation. But they do suggest a need to ask the simple
question why Cunningham did not cooperate. Maybe he
couldn’t.
The second problem is the judge’s failure to mention
Cunningham’s psychiatric problems and substance abuse,
which Cunningham’s lawyer wove into a pattern suggestive
of entrapment not as a defense but as a mitigating factor not
reflected in the guidelines and also as a basis for
Cunningham’s being given a sentence different from a
straight prison sentence. 18 U.S.C. §§ 3553(a)(2)(D), (a)(3).
The two problems are related, undermining our confidence
in the sentence. Cunningham possibly has a good argument
that the judge ignored (the psychiatric history) and the
government has a poor (vague, belated, unsubstantiated)
argument to which the judge gave substantial weight
(Cunningham’s alleged failure to cooperate).
No. 05-1774 7
So far as appears, the informant had picked on
Cunningham only because he knew that as a user of
marijuana Cunningham would know a drug dealer. The
informant had no reason to think that Cunningham was
engaged in, or likely without the informant’s prod to engage
in, drug dealing; Cunningham had known Means for many
years without ever moving from being a consumer of
marijuana to becoming a dealer in any illegal drug, or even
a user of crack. His psychiatric problems and substance
abuse may have made him far more susceptible to the
informant’s blandishments than the average person invited
to commit serious crimes.
Interpreting the judge’s reference to “factors that I have to
adhere to” as a reference to the statutory sentencing factors,
the government argues that the judge must have given due
consideration to the circumstances related in the preceding
paragraph. That would be a good argument if those circum-
stances made only a weak case for a sentence below the
guidelines range. A sentencing judge has no more duty than
we appellate judges do to discuss every argument made by
a litigant; arguments clearly without merit can, and for the
sake of judicial economy should, be passed over in silence.
E.g., United States v. Spano, 421 F.3d 599, 602 (7th Cir. 2005);
Thomas v. United States, 328 F.3d 305, 309 (7th Cir. 2003);
United States v. Hale, 107 F.3d 526, 530 (7th Cir. 1997).
This is true even though Rule 32(i)(3)(B) of the Federal
Rules of Criminal Procedure states that “at sentenc-
ing . . . the court must—for any disputed portion of the
presentence report or other controverted matter—rule on
the dispute or determine that a ruling is unnecessary
either because the matter will not affect sentencing, or
because the court will not consider the matter in sentenc-
ing.” The rule may be limited to factual disputes. The
8 No. 05-1774
cases so assume, without so stating outright. United States v.
Roy, 2005 WL 2033686, at *4-5 (10th Cir. Aug. 24, 2005);
United States v. Ameline, 400 F.3d 646, 657 (9th Cir. 2005);
United States v. Nelson, 356 F.3d 719, 722-23 (6th Cir. 2004);
United States v. Lucania, 379 F. Supp. 2d 288, 293 (E.D.N.Y.
2005). That limitation was explicit in its predecessor, Fed. R.
Crim. P. 32(c)(3)(D), which confined the duty to allegations
of “any factual inaccuracy in the presentence investigation
report.” See United States v. McKinney, 98 F.3d 974, 981-
82 (7th Cir. 1996); United States v. Johnson, 903 F.2d 1084,
1092 (7th Cir. 1990); United States v. Lindholm, 24 F.3d 1078,
1085 n. 7 (9th Cir. 1994); United States v. Aleman, 832 F.2d
142, 144-45 (11th Cir. 1987). The advisory committee’s note
on the change to the wording of the new rule explains that
the intention was to narrow, not broaden, the rule’s scope,
to matters actually controverted. But see United States v.
Angelos, 345 F. Supp. 2d 1227, 1238 (D. Utah 2004).
We hesitate to read the rule so broadly that the judge
is obliged to address every argument that a defendant
makes at the sentencing hearing. But whatever the precise
scope of the rule, the judge’s failure to discuss an immaterial
or insubstantial dispute relating to the proper sentence
would be at worst a harmless error. United States v. Slaugh-
ter, 900 F.2d 1119, 1123 (7th Cir. 1990); United States v.
Darwich, 337 F.3d 645, 666 (6th Cir. 2003). It would not
require resentencing.
Rule 32 to one side, whenever a district judge is required
to make a discretionary ruling that is subject to appellate
review, we have to satisfy ourselves, before we can conclude
that the judge did not abuse his discretion, that he exercised
his discretion, that is, that he considered the factors relevant
to that exercise. Carr v. O’Leary, 167 F.3d 1124, 1127 (7th Cir.
1999) (“a discretionary ruling . . . cannot be upheld when
No. 05-1774 9
there is no indication that the judge exercised discretion”);
United States v. Hale, supra, 107 F.3d at 530; Vergara-Molina
v. INS, 956 F.2d 682, 685 (7th Cir. 1992); United States v.
Hadash, 408 F.3d 1080, 1083-84 (8th Cir. 2005); Rarogal v. INS,
42 F.3d 570, 572 (9th Cir. 1994). A rote statement that the
judge considered all relevant factors will not always suffice;
the temptation to a busy judge to impose the guidelines
sentence and be done with it, without wading into the
vague and prolix statutory factors, cannot be ignored.
We cannot have much confidence in the judge’s con-
sidered attention to the factors in this case, when he
passed over in silence the principal argument made by the
defendant even though the argument was not so weak as
not to merit discussion, as it would have been if anyone
acquainted with the facts would have known without being
told why the judge had not accepted the argument. Dimin-
ished mental capacity is a ground stated in the sentencing
guidelines themselves for a lower sentence. U.S.S.G.
§ 5K2.13. A judge who fails to mention a ground of recog-
nized legal merit (provided it has a factual basis) is likely to
have committed an error or oversight.
There is also the judge’s precipitate reliance on the
government’s unexplained, unsubstantiated reference to
Cunningham’s supposed failure to cooperate, to undermine
our confidence that the judge paid attention to the defen-
dant’s case for a lighter sentence. “[W]e will not infer a
reasoned exercise of discretion from a record that suggests
otherwise or is silent.” United States v. Dalton, 404 F.3d 1029,
1033 (8th Cir. 2005).
Not that a judge’s silence prevents the defendant from
arguing that the sentence is unreasonable given the stat-
utory factors. But reasonableness is a range, not a point.
If the judge could, without abusing his discretion, have
10 No. 05-1774
ruled in the defendant’s favor, the defendant is entitled
to insist that the judge exercise discretion, though he cannot
complain if the exercise goes against him. See, e.g., United
States v. Schlifer, 403 F.3d 849, 855 (7th Cir. 2005); United
States v. Barnett, 398 F.3d 516, 528 (6th Cir. 2005).
The government argues that after the judge completed his
sentencing, Cunningham’s lawyer should have taken
exception to the judge’s failure to explore Cunningham’s
alleged lack of cooperation in the prosecution of Means
and to articulate his reasons for rejecting the argument for a
lighter sentence on the basis of Cunningham’s psychiatric
problems and alcohol abuse. That might indeed have been
a desirable thing for the lawyer to do—we might have been
spared this appeal had she done so. But a lawyer in federal
court is not required to except to rulings by the trial judge.
Fed. R. Crim. P. 51(a); United States v. Rashad, 396 F.3d 398,
401 (D.C. Cir. 2005).
The judgment must be vacated and the case remanded for
resentencing. We express no view on the proper sentence.
Given the gravity with which Congress regards the sale of
crack, and (depending on the reason) Cunningham’s failure
to cooperate in the prosecution of Means, the judge’s
“bottom line”—a guidelines sentence far less severe than
that of the leading conspirator—may be reasonable. And he
may decide to reimpose it after considering the factors
urged by Cunningham’s lawyer. All that remains for the
future. The inadequate explanation for the sen-
tence precludes our affirmance.
VACATED AND REMANDED FOR RESENTENCING.
A true Copy:
Teste:
No. 05-1774 11
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-14-05