United States v. Theodore Cavett

NONPRECEDENTIAL
DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 22, 2007
Decided June 19, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-4102
Appeal from the United States
UNITED STATES OF AMERICA, District Court for the
Plaintiff-Appellee, Western District of Wisconsin.
v. No. 06 CR 108
THEODORE M. CAVETT, Barbara B. Crabb,
Defendant-Appellant. Chief Judge.
ORDER
Theodore Cavett was charged, along with two codefendants, with four counts
of distributing crack in violation of 21 U.S.C. § 841(a)(1). Cavett pleaded guilty to
count four, which charged him with distributing 50 or more grams. Prior to
sentencing, the government filed a substantial assistance motion under
U.S.S.G. § 5K1.1 to reduce Cavett’s advisory guidelines imprisonment range based
on Cavett’s early cooperation and partial role in convincing a codefendant to turn
himself in to authorities. The district court denied this motion, stating “I am not
persuaded that your assistance is sufficient to warrant a downward departure,
although it does warrant giving you a sentence at the lower end of the Guideline
range.” The district court proceeded to sentence Cavett to 272 months’
imprisonment (which did in fact fall on the low end of the advisory guidelines
No. 06-4102 Page 2
range).
Cavett appeals his sentence, alleging the district court improperly considered
the factors set forth in 18 U.S.C. § 3553(a) and challenging the district court’s
denial of the government’s substantial assistance motion.1 Cavett also argues that
any presumption of reasonableness is inconsistent with United States v. Booker,
543 U.S. 220 (2005).
Because Cavett’s sentence falls within a properly calculated guidelines range,
it is presumed reasonable under United States v. Mykytiuk, 415 F.3d 606, 608 (7th
Cir. 2005). We are mindful that the Supreme Court will soon decide whether it is
consistent with Booker to afford a presumption of reasonableness to a sentence
within the guidelines range. See United States v. Rita, 177 F. App’x 357 (4th Cir.
2006), cert. granted, 127 S. Ct. 551 (U.S. Nov. 3, 2006) (No. 06-5754). The resolution
of that question, however, would not affect our conclusion that Cavett’s sentence is
reasonable (and that any challenge to his sentence would be frivolous).
After giving due consideration to the arguments made by government and
defense counsel, United States v. Cunningham, 429 F.3d 673, 678 (7th Cir. 2005),
the district court consulted the relevant § 3553(a) factors and identified those
having a significant effect on its choice of sentence. United States v. Nitch, 477 F.3d
933, 937 (7th Cir. 2007); United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005).
Specifically, the court noted that Cavett had “a very difficult childhood,”
experienced “some horrible losses in . . . life,” and had difficulties finding
employment. 18 U.S.C. § 3553(a)(1). However, after the court considered that
Cavett had engaged in criminal conduct for more than fifteen years, had a history of
violent crime, and is a gang member and a chronic drug user, id., it concluded that
a sentence of 272 months was necessary to “protect the community from . . . [his]
violent criminal conduct” and to reflect the seriousness of the conduct. Based on the
district court’s consideration of the § 3553(a) factors, and regardless of any
presumption, we are unable to say that Cavett’s 272-month sentence is
unreasonable. Dean, 414 F.3d at 729.
Accordingly, we AFFIRM the sentence entered by the district court.
1
Post-Booker, we do not review the propriety of the district court’s denial of the
government’s motion for a downward departure but, rather, consider whether the
overall sentence imposed is reasonable. United States v. Laufle, 433 F.3d 981, 987 (7th
Cir. 2006).