United States v. Ledcke, Shawn

NONPRECEDENTIAL DISPOSITION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 July 11, 2007
Decided July 23, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-4145
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 06 CR 58-1
SHAWN LEDCKE,
Defendant-Appellant. Matthew F. Kennelly,
Judge.
ORDER
Shawn Ledcke was indicted on one count of conspiracy to deal firearms, most
with obliterated serial numbers, to out-of-state residents, 18 U.S.C. §§ 371,
922(a)(5), 922(k), and two counts of possessing firearms after having been convicted
of a felony, id. § 922(g)(1). After he pleaded guilty to the charges, the district court
sentenced him to a total of 120 months’ imprisonment, the bottom of the calculated
guidelines range. Ledcke challenges that sentence on appeal. We affirm.
I. Background
Ledcke was indicted on the firearms charges after a coconspirator informed
federal agents that he and Ledcke purchased approximately 43 firearms in Ohio
and sold them in Chicago to reputed members of street gangs and the Mexican
No. 06-4145 Page 2
mafia. Ledcke pleaded guilty to the charges, and the probation officer subsequently
prepared a presentence investigation report (“PSR”). In the PSR the officer
determined that Ledcke’s base offense level was 24 because he had two prior Illinois
felony convictions for “crimes of violence”—a 1996 conviction for aggravated battery,
and a conviction in 2000 for reckless homicide, see U.S.S.G. §§ 2K2.1(a)(2),
4B1.2(a)(2). To this the officer added six levels because Ledcke possessed and sold
between 25 and 99 firearms, § 2K2.1(b)(1)(C), two levels because he removed the
serial numbers from the guns, § 2K2.1(b)(4), and four levels because he knew of at
least one instance when the firearms would be used in connection with another
felony offense, § 2K2.1(b)(5). The probation officer then subtracted three levels for
acceptance of responsibility, § 3E1.1(a)-(b). The total offense level of 33, combined
with Ledcke’s Criminal History Category of VI, yielded a guidelines imprisonment
range of 235 to 293 months.
Ledcke objected to the probation officer’s calculations on two grounds. First,
he argued that the officer incorrectly selected a base offense level of 24.
Specifically, Ledcke contended that reckless homicide is not a “crime of violence” as
defined by U.S.S.G. § 4B1.2(a)(2), which, as pertinent here, is defined to include
“conduct that presents a serious potential risk of physical injury to another.”
Relying on the Supreme Court’s decision in Leocal v. Ashcroft, 543 U.S. 1 (2004),
Ledcke argued that to qualify as a “crime of violence,” a predicate offense must have
as an element “a higher mens rea than merely accidental or negligent conduct.”
Illinois criminal law provides that a person acts recklessly when he or she
“consciously disregards a substantial and unjustifiable risk that circumstances exist
or that a result will follow . . . and such disregard constitutes a gross deviation from
the standard of care which a reasonable person would exercise in the situation.”
720 ILL. COMP. STAT. 5/4-6. Ledcke argued that this definition encompasses “only
merely accidental conduct,” and thus he contended that his conviction for reckless
homicide did not include the necessary level of intent to be a “crime of violence.”
Therefore, Ledcke asserted, because he had only one conviction for a “crime of
violence,” his correct total offense level was 20. U.S.S.G. § 2K2.1(a)(4). Ledcke
alternatively challenged the probation officer’s determination that the total offense
level was 33. He argued that under U.S.S.G. § 2K2.1(b) his cumulative offense level
could not exceed 29, which, in turn, yielded a total offense level of 26 after
accounting for the downward adjustment for acceptance of responsibility.
At sentencing the district court rejected Ledcke’s challenge to the probation
officer’s selection of a base offense level of 24. The court concluded that the
indictment underlying Ledcke’s reckless homicide conviction sufficiently established
that the offense was a “crime of violence,” reasoning that the indictment satisfied
§ 4B1.2(a)(2) by “quite clearly requir[ing] recklessness.” Leocal did not affect this
determination, the court stated, because the Supreme Court in that case
“specifically excluded from its consideration cases or offenses that require proof of
No. 06-4145 Page 3
‘reckless use of force against a person or property of another.’” However, the court
agreed with Ledcke that under § 2K2.1(b) his offense level could not be upwardly
adjusted beyond 29, accordingly adopted a total offense level of 26, and recalculated
a guidelines imprisonment range of 120 to 150 months.
After the court recalculated the guidelines range, it heard from both parties
regarding the length of sentence to impose. The government advocated for a
sentence within the range based on the seriousness of Ledcke’s firearms offenses
and his substantial criminal history. Ledcke, in turn, urged the court to impose a
sentence of seven years—36 months below the guidelines range—based on his
difficult upbringing, loyalty to his family and friends, recent cessation of his gang
membership, and cooperation with federal authorities. Ledcke acknowledged that
his criminal history “is frightening on paper,” which gave credence to the
government’s argument that the public must be protected from him. But, Ledcke
continued, any concern the court had for protecting the public would be quelled “by
the simple virtue of the fact that [he would] be on a term of supervised release when
he is done with his sentence.”
After considering the parties’ arguments, the district court decided that a
120-month sentence was appropriate. The court noted that “there’s plenty of
positive things in Mr. Ledcke’s background,” but stated that these attributes were
overshadowed by the fact that he continued to commit crimes even after
purportedly ending his gang affiliation. Even more, the court continued, Ledcke’s
continuing illegal activity resulted in numerous convictions for dealing drugs and
violent crimes—particularly, unlawful use of a firearm, aggravated and domestic
battery, and reckless homicide—and that this history of recidivism required the
court “to take into account deterring further crimes and protecting the public from
further crimes.” Finally, the court’s concern for public safety led it to reject
Ledcke’s assurance that the public would be protected adequately if he were placed
on supervised release.
II. Discussion
On appeal Ledcke makes three challenges to his 120-month sentence. First,
he renews his argument that the district court incorrectly determined that his base
offense level was 24 because under Leocal, his reckless homicide conviction is not a
“crime of violence” as defined by § 4B1.2(a)(2). He concedes, however, that this
argument is meritless and presents it solely to preserve it for possible further
review. Ledcke is right to so concede. Not only have we rejected the argument that
Leocal requires a predicate offense to have as an element a mens rea higher than
recklessness for it to fall under § 4B1.2(a)(2), see United States v. Sperberg, 432 F.3d
706, 708-09 (7th Cir. 2005), but we recently have held that Illinois’s statutory
definition of criminal recklessness alone describes a “crime of violence” by requiring
No. 06-4145 Page 4
“a conscious disregard of a substantial and unjustifiable risk” of “the bodily safety of
an individual,” United States v. Newbern, 479 F.3d 506, 509-10 (7th Cir 2007)
(internal quotation marks and citation omitted); see also United States v.
Rutherford, 54 F.3d 370, 373-74 (7th Cir. 1995) (“[R]eckless and negligent acts are
analyzed under the ‘otherwise’ clause in [§ 4B1.2(a)(1)].”); cf. Sperberg, 432 F.3d at
708 (holding that drunk driving under Wisconsin law constitutes “crime of violence”
because drunk driving “poses serious risks to other motorists and pedestrians”);
United States v. Jackson, 177 F.3d 628, 633 (7th Cir. 1999) (holding that felony
criminal recklessness under Indiana law is “crime of violence” because it requires
showing that defendant “recklessly, knowingly, or intentionally . . . inflict[ed]
serious bodily injury on another person”).
Ledcke next contends that because the indictment underlying his reckless
homicide conviction “recited no facts” explaining how he acted recklessly when
committing the homicide, the district court had no basis upon which to conclude
that his conviction qualified as a “crime of violence.” We review Ledcke’s argument
de novo, see Jackson, 177 F.3d at 632, but the argument misses the point: no factual
development was needed because, as we explained earlier, criminal recklessness
under Illinois law alone describes a “crime of violence,” see Newbern, 479 F.3d at
509-10 (“Because the statute itself makes clear that reckless discharge of a firearm
qualifies as a crime of violence, the factual detail in the charging document is
irrelevant to this case.”); Sperberg, 432 F.3d at 708 (“True it is that recidivist
enhancements depend on what the person stands convicted of and not what he did
in fact. Usually this means sticking with the text of the statute.” (internal citation
omitted)).
But that aside, Ledcke’s argument fails in any event. Contrary to what
Ledcke’s attorney asserted at oral argument, sentencing courts are not allowed to
undertake what essentially is a collateral review of the facts underlying a predicate
conviction when determining whether that conviction was for a “crime of violence”;
rather, courts are to examine the facts presented in the charging documents only.
See U.S.S.G. § 4B1.2 cmt. n.2; United States v. Vargas-Garnica, 332 F.3d 471, 474-
75 (7th Cir. 2003); United States v. Shannon, 110 F.3d 382, 384 (7th Cir. 1997).
And that is what the district court did here—it looked to the indictment to which
Ledcke pleaded guilty and determined that it charged a “crime of violence” by
alleging that he “recklessly performed acts in such a manner as were likely to cause
death or great bodily harm to some individual and such acts caused the death of
[one individual].” No more was required, nor permitted. See U.S.S.G. § 4B1.2 cmt.
n.2; Vargas-Garnica, 332 F.3d at 474-75; Shannon, 110 F.3d at 384.
Finally, Ledcke argues that his 120-month prison sentence is unreasonable
under United States v. Booker, 543 U.S. 220 (2005); specifically, he asserts that the
district court imposed that sentence only after impermissibly presuming that it was
No. 06-4145 Page 5
reasonable because it fell within the guidelines range. Ledcke contends that the
court “revealed” this presumption of reasonableness when it stated: “‘The primary
factor in this case is Mr. Ledcke’s background and the need to protect the public and
deter adequately. That said, the positive things in Mr. Ledcke’s background I think
are sufficient to warrant a sentence at the low end of the guideline[s] range but not
below the guideline[s] range.’” These comments, according to Ledcke, demonstrate
“the court’s belief that [he] needed to do something more to show an exceptional
reason as to why the court should go below the guidelines range.”
Although Ledcke is correct that a sentencing court may not presume that any
sentence it imposes within the guidelines range is reasonable, see Rita v. United
States, 127 S. Ct. 2456, 2465 (2007); United States v. Gama-Gonzalez, 469 F.3d
1109, 1110 (7th Cir. 2006), he incorrectly interpolates into the district court’s
statements a presumption of reasonableness. At sentencing the court never stated
that it presumed a sentence within the guidelines range was reasonable, nor did the
court state that Ledcke needed to point to “an exceptional reason” supporting a
sentence below the range. A fair reading of the court’s comments instead reveals
them to be an explanation as to how the court weighed the parties’ competing
arguments and applied those arguments to the sentencing factors outlined in
18 U.S.C. § 3553(a). Thus, the most that the court’s statements can show is that
the court acknowledged its authority to impose a sentence below the guidelines
range, but simply declined to do so. In short, Ledcke’s claim that the district court
presumed his sentence was reasonable is baseless.
With that said, Ledcke’s reasonableness challenge fails. His 120-month
sentence falls within the properly calculated guidelines range of 120 to 150 months.
We therefore presume that the sentence is reasonable, see Rita, 127 S. Ct. 2462, and
Ledcke can rebut that presumption only by showing that the district court failed to
consider the § 3553(a) sentencing factors adequately, see Gama-Gonzalez, 469 F.3d
at 1111; United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Ledcke
contends that the court’s failure to consider the sentencing factors is evident from
its rejection of his request to impose a sentence below the guidelines range. He
asserts that the court “never responded to [his] request aimed towards a sufficient
but not greater than necessary sentence” as required by § 3553(a), and in so doing,
refused guidance from “all of the factors listed under section 3553 rather than just
some of them.”
Our review of the record shows otherwise; the district court discussed the
§ 3553(a) factors at length before imposing sentence, although, as we repeatedly
have asserted, it was not required to. See, e.g., United States v. Nitch, 477 F.3d 933,
937 (7th Cir. 2007); United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005).
Moreover, the court did, in fact, respond to Ledcke’s request to impose a sentence
“sufficient but not greater than necessary” when it stated that a sentence within the
No. 06-4145 Page 6
guidelines range would best protect the public. Simply because the court disagreed
with Ledcke’s assertion that a sentence below the range would be “sufficient but not
greater than necessary” does not render the 120-month sentence unreasonable. See
Nitch, 477 F.3d at 937; United States v. Laufle, 433 F.3d 981, 988 (7th Cir. 2006)
(“[D]isagreement with [the] judge’s assessment of the relevant sentencing factors
does not by itself warrant reversal.”).
AFFIRMED.