United States v. Wurzinger, Richard C

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3803
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICHARD C. WURZINGER,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 05 CR 52—John C. Shabaz, Judge.
____________
ARGUED SEPTEMBER 8, 2006—DECIDED OCTOBER 30, 2006
____________
Before CUDAHY, EASTERBROOK, and MANION, Circuit
Judges.
CUDAHY, Circuit Judge. Richard Wurzinger, age fifty-
eight, was sentenced to 262 months in prison, the longest
sentence within the range indicated by the Sentencing
Guidelines for his role at the center of a conspiracy to
manufacture methamphetamine. Given his age and his
failing health, he will likely die in prison. He appeals his
sentence, arguing that the district court did not follow
proper sentencing procedure and that his sentence is
unreasonably long. We affirm.
Wurzinger first used methamphetamine in the summer
of 2000, when he was fifty-two years old. Two years later he
2 No. 05-3803
arranged to have Justin Rzentkowski teach him and his
daughter-in-law, Colleen Wurzinger, how to move on to
manufacture the drug themselves. Their first attempt
burned down Colleen’s barn, but Wurzinger and Colleen
were soon “cooking” methamphetamine regularly. Over
the next two years Wurzinger was at the center of a loose
methamphetamine manufacturing conspiracy, whose
members were primarily his family—his daughter-in-law
Colleen, his wife Penny Wurzinger, his daughter Kole
Lipski and her husband Jeff Lipski. The co-conspirators
occupied various roles. Jeff Lipski distributed Wurzinger’s
methamphetamine, both the Lipskis and Colleen helped
Wurzinger cook the stuff at various times and almost
everyone collected Sudafed and other over-the-counter
drugs containing pseudoephedrine, a chemical used in
the production of methamphetamine.
Police arrested Wurzinger on December 8, 2004. On July
13, 2005, he pleaded guilty to one count of conspiring
to manufacture a controlled substance prohibited by 21
U.S.C. § 841(a)(1). He agreed with a modified presentence
report that assigned him an adjusted offense level of thirty-
five and a criminal history category of III, resulting in a
Sentencing Guidelines-recommended range of 210 to 262
months in prison. Nonetheless, he argued that he was
entitled to a below-guidelines sentence under 18 U.S.C. §
3553(a) for a number of reasons, among them his age, his
diabetes and the difference between his sentence and those
of his co-conspirators, some of whom had not been prose-
cuted and many of whom had received shorter sentences in
state court. To put it mildly, the district court did not agree.
It imposed a sentence of 262 months, the top of the guide-
lines range.
Wurzinger now appeals, arguing both that the district
court improperly presumed that an appropriate sentence for
him falls within the guidelines range and that his sentence
is unreasonably long. The first claim stumbles coming out
No. 05-3803 3
of the gate. Just prior to oral argument, this court decided
that a presumption in favor of a guidelines sentence is
appropriate and that a court need only consider a non-
guidelines sentence when a defendant provides “cogent
reasons” for one. United States v. Hankton, 463 F.3d 626,
629 (7th Cir. 2006).
This leaves Wurzinger’s claim that his sentence is
unreasonably long in light of the sentencing goals and
factors enumerated in 18 U.S.C. § 3553(a). United States v.
Booker, 543 U.S. 220, 261 (2005). He requires particularly
compelling arguments to succeed, since a sentence within
the range recommended by the Sentencing Guidelines
carries a rebuttable presumption of reasonableness. United
States v. Gonzalez, 462 F.3d 754, 756 (7th Cir. 2006); United
States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).
Wurzinger spends a good portion of his brief arguing that
this established feature of circuit law improperly makes the
guidelines mandatory, but he does not offer the “compelling
reasons” necessary for us to revisit our own precedent.
Goshtasby v. Bd. of Trs. of the Univ. of Ill., 141 F.3d 761,
766 (7th Cir. 1998), overruled on other grounds by Kimel v.
Fla. Bd. of Regents, 528 U.S. 62, 92 (2000). Other courts
have disagreed with our view, believing that courts may
come to treat the rebuttable presumption as effectively
irrebuttable. See, e.g., United States v. Jimenez-Beltre, 440
F.3d 514, 518 (1st Cir.), petition for cert. filed, ___ U.S.L.W.
___ (U.S. Aug. 4, 2006) (No. 06-5727). This may be a valid
concern but we believe that courts are familiar with the
concept of rebuttable presumption and capable of applying
it. Hankton, 463 F.3d at 630 n.5; see also United States v.
Zavala, 443 F.3d 1165, 1169 (9th Cir.) (distinguishing
between “bursting bubble,” mandatory conclusive and
mandatory rebuttable presumptions), reh’g en banc granted
sub nom. United States v. Carty, 462 F.3d 1066 (9th Cir.
2006). Wurzinger’s arguments must be strong enough to
rebut the presumption that his sentence, at the top of the
4 No. 05-3803
recommended guidelines range but still within it, is reason-
able.
His strongest argument that his sentence is unreasonable
is that his diabetes will kill him before he is free. Wurzinger
was diagnosed with diabetes forty years ago; it is severe
enough to require medication. He does not claim that the
federal prison system will be unable to treat his condition,1
but he does argue that it leaves him with a life expectancy
of “116.4 to 176.4 months,” well short of his sentence’s
duration. His life expectancy statistics seem to be flawed,2
1
In the district court, Wurzinger claimed that he was not
receiving necessary diabetes medication in jail. We, of course, are
concerned that the Bureau of Prisons provide him with all
necessary treatment for his condition.
2
Wurzinger avoids the first mistake of the defendant in United
States v. Bullion, No. 06-1523, 2006 WL 2979398, at *2 (7th Cir.
Oct. 19, 2006), and seeks out the life expectancy not of a new-
born child but of the average fifty-eight year old American male,
which he locates at 24.7 years (though it appears actually to
be 22.9 years). Elizabeth Arias, Ctrs. for Disease Control,
United States Life Tables, 2003, National Vital Statistics Reports,
Apr. 19, 2006, at 1, 16 table 5, available at http://www.cdc.gov/
nchs/data/nvsr/nvsr54/nvsr54_14.pdf. But like the Bullion
defendant he still attempts to rely on the average reduction in life
expectancy caused by diabetes, without regard to the age at which
he acquired the disease or the reduction in life expectancy that
accrues to a person of his age. Cf. Bullion, 2006 WL 2979398, at
*2. It is not enough to rely on the average reduction in life
expectancy for all diabetics because since older people are closer
to death and have shorter life expectancies, life-threatening
conditions may cause a smaller drop in life expectancy for them,
simply because they have less life to lose. Take, for example, a
twenty year old with a fifty year life expectancy and a fifty year
old with a twenty year life expectancy, both of whom acquire a
horrible disease that kills anyone afflicted within five years. The
(continued...)
No. 05-3803 5
but the government does not dispute them, and he is
already experiencing disturbing complications of his
disease. Wurzinger has lost sensation in his hands and feet,
an effect of diabetes in older people that like the similar
loss of sensation in leprosy can lead to untreated infections
and even amputations. Nat’l Inst. of Diabetes & Digestive
& Kidney Diseases, Diabetic Neuropathies: The Nerve
Damage of Diabetes 3 (2002), available at http://diabetes.niddk.nih.gov/dm/pubs/
neuropathies/neuropathies.pdf. At sentencing, Wurzinger
had an infected sore on his foot which he said was related
to his diabetes. If science is the standard, it is unlikely
that Wurzinger will live out his sentence.
There is a worthy tradition that death in prison is not
to be ordered lightly, and the probability that a convict
will not live out his sentence should certainly give pause
to a sentencing court. United States v. Crickon, 240 F.3d
652, 656 (7th Cir. 2001); United States v. Jackson, 835
F.2d 1195, 1200 (7th Cir. 1988) (Posner, J., concurring);
United States v. Watson, 385 F. Supp. 2d 534, 538 (E.D.
Pa. 2005); United States v. Gigante, 989 F. Supp. 436, 441-
43 (E.D.N.Y. 1998); United States v. Baron, 914 F. Supp.
660, 662 (D. Mass. 1995); United States v. Maltese, No. 90
CR 87-19, 1993 WL 222350, at *10 (N.D. Ill. June 22,
1993); United States v. Garrett, 712 F. Supp. 1327, 1335
(N.D. Ill. 1989); United States v. Gomez, 742 F. Supp. 407,
411-12 (E.D. Mich. 1989); see also Kathleen Dean Moore,
Pardons: Justice, Mercy, and the Public Interest 166-67,
173-74 (1989) (describing the tradition of “deathbed
2
(...continued)
twenty year old experiences a forty-five year drop in life expec-
tancy, the fifty year old only a fifteen year drop; the “average”
would be somewhere in between. In this case, Wurzinger’s drop in
life expectancy from diabetes may similarly be less than the
“average” drop.
We regret this somewhat ghoulish aside.
6 No. 05-3803
pardons”). Wurzinger’s key argument is not the nonstarter
that “age per se is a mitigating factor” (though he does
attempt that argument as well), United States v. Bullion,
No. 06-1523, 2006 WL 2979398, at *2 (7th Cir. Oct. 19,
2006), but that a sentence of death in prison is notably
harsher than a sentence that stops even a short period
before. Death is by universal consensus a uniquely trau-
matic experience, and prison often deprives defendants of
the ability to be with their families or to otherwise control
the circumstances of death. John A. Beck, Compassionate
Release from New York State Prisons: Why Are So Few
Getting Out? 27 J.L. Med. & Ethics 216, 223-24 (1999);
Jason S. Ornduff, Releasing the Elderly Inmate: A Solution
to Prison Overcrowding, 4 Elder L.J. 173, 192 (1996); see
also Sasha Abramsky, Prisoner’s Dilemma: Lifers, Legal
Aff., Apr. 2004, at 40, 41, 43 (describing death at Angola
Prison in Louisiana). A sentence that forces this experience
on a prisoner is quantitatively more severe than a sentence
that does not consume the entirety of a defendant’s life,
inflicting greater punishment and creating a stronger
deterrent effect. See, e.g., United States v. Patriarca, 948
F.2d 789, 793 (1st Cir. 1991) (holding that an increase in
penalty that ensured death in prison would likely deter bail
jumping); Elizabeth Rapaport, Retribution and Redemption
in the Operation of Executive Clemency, 74 Chi.-Kent L.
Rev. 1501, 1521 (2000). Additionally, of course, the physical
constraints of a dying illness will incapacitate some defen-
dants as effectively as imprisonment, making such a long
sentence unnecessary. Beck, supra, at 224.
But to the extent that Wurzinger seeks a sentence that
will expire before he is likely to, he argues for a sentence
below the recommended guidelines range, and on what
was under the mandatory guidelines regime a discouraged
ground. U.S.S.G. § 5H1.1; see also id. § 5H1.4; Moore,
supra, at 174. A court may now impose such a sentence, but
only with a “very good explanation” rooted in the circum-
No. 05-3803 7
stances of the case, United States v. Wallace, 458 F.3d 606,
608 (7th Cir. 2006). Wurzinger must argue, in the face of
the presumption that his sentence is reasonable, that it was
unreasonable for the district court not to impose such an
exceptional sentence, or at least a shorter sentence within
the guidelines range that he would be more likely to
survive.
As this court recently observed in affirming the above-
guidelines, likely de facto life sentence of another fifty-eight
year old insulin-dependent diabetic, this type of argument
rarely succeeds. United States v. Bullion, No. 06-1523, 2006
WL 2979398, at *2 (7th Cir. Oct. 19, 2006). While the
present case is a less compelling candidate for a severe
sentence—though he shared Wurzinger’s age and disease,
Bullion was additionally a serial armed robber, serial
kidnapper and serial rapist sentenced for the attempted
shotgun-murder of the person he somehow persuaded to
marry him, id. at 2—Wurzinger’s argument is another
failure. The district court reasonably concluded that
Wurzinger’s sentence was necessary to punish his crime of
not merely manufacturing methamphetamine, but
corrupting his extended family to manufacture most of the
methamphetamine available in his region of Wisconsin.
(See, e.g., Sentencing Tr. at 16 (“[I]f indeed he is in ill
health, you can think of the thousands that he may have
affected in his major drug dealing who are perhaps in that
same position were it not for him being on the drug
scene.”).) The court also reasonably thought a long sentence
was necessary to keep Wurzinger from cooking more
methamphetamine. Wurzinger argues that older offenders
are generally less likely to commit crime, but as we recently
observed what matters is whether the court reasonably
concluded that Wurzinger in particular is a risk for further
crimes. Bullion, 2006 WL 2979398, at *3. Here it was not
unreasonable to think Wurzinger had an above-average
tendency to crime in his old age; he was fifty-two when he
8 No. 05-3803
embarked upon what is to all appearances his most serious
offense.
While we say nothing about whether a lower sentence
would have been equally reasonable, age and illness do not,
in the face of the circumstances presented here, make
Wurzinger’s sentence unreasonable. While some of the
district court’s comments were a mite strange—most
notably the claim that Wurzinger, at fifty-eight, was “a
pretty young guy” (Sentencing Tr. at 15)—on the whole, it
offered a reasonable explanation of why Wurzinger’s
conduct justified a sentence at the top of the recom-
mended guidelines range.
Wurzinger urges three additional grounds for a shorter
sentence, none of which come as near as his age and ill-
ness to outweighing the need to punish and incapacitate
him. The first is that it was unreasonable to sentence him
to 262 months when some of his co-conspirators pros-
ecuted in Wisconsin state court received sentences far
shorter than what they would probably have received in
federal court. He focuses on his daughter-in-law Colleen,
sentenced to thirty-six months in state prison for conduct he
argues was not significantly different from his own under
the Sentencing Guidelines.
Courts should reduce “unwarranted sentence dis-
parities among defendants with similar records who have
been found guilty of similar conduct,” 18 U.S.C.
§ 3553(a)(6), but in most cases “disparities are at their
ebb when the Guidelines are followed,” United States v.
Boscarino, 437 F.3d 634, 638 (7th Cir. 2006), petition for
cert. filed, 74 U.S.L.W. 3629 (U.S. Apr. 27, 2006) (No. 05-
1379). Reducing a federal prisoner’s sentence to accord with
that of a similarly situated state convict may decrease one
sentencing disparity but simultaneously enlarges another:
that between the federal convict and all similarly situated
federal convicts. Id. Because penalties vary from state to
No. 05-3803 9
state, sentence reductions to approach state penalties
similarly vary with the state in which the federal sentenc-
ing court sits, unjustifiably creating disparities among
federal convicts. See United States v. Branson, 463 F.3d
1110, 1112 (10th Cir. 2006); United States v. Williams, 282
F.3d 679, 681-82 (9th Cir. 2002). We cannot say that the
court’s failure to narrow the gap between Wurzinger and
his co-conspirators was unreasonable.
Next, Wurzinger argues that a shorter sentence was
required because his criminal history has been largely
caused by alcoholism and methamphetamine addiction.
Substance dependency was a discouraged ground for
departure, U.S.S.G. § 5H1.4, and mere addiction, without
more, does not compel a below-guidelines sentence, United
States v. Hankton, 463 F.3d 626, 630 (7th Cir. 2006). Nor is
a sentence at the top of the guidelines range unreasonable.
The most persuasive case Wurzinger cites permits shorter
sentences when a defendant makes an extraordinary effort
to overcome drug addiction that might be sabotaged by a
long prison stay. United States v. Maier, 975 F.2d 944, 946-
48 (2d Cir. 1992). But as far as the record reveals,
Wurzinger has made no efforts to defeat an addiction. At
the time of sentencing he did not think he needed treatment
for substance abuse and did not believe he was physically
addicted to methamphetamine.
Finally, Wurzinger argues that his sentence was
unreasonable because of the “gross disparity” between it
and any of the prior sentences he received. The disparity is
reasonable: Wurzinger has committed a crime more seri-
ous than any of those he has previously committed, such
as burglarizing a grocery store for a few cases of beer or
drunkenly firing a gun. In fact, though Wurzinger’s
argument is made in terms of length of sentence rather
than seriousness of prior crimes, it is arguably a disguised
disagreement with the Sentencing Commission’s
determination regarding the seriousness of his criminal
10 No. 05-3803
history and the implications of that history for an appropri-
ate sentence. United States v. Gonzalez, 462 F.3d 754, 755
(7th Cir. 2006).
Wurzinger could still argue that a sentence shorter
than the guidelines would recommend is required in his
case, and he cites cases dealing with the guidelines
policy statement authorizing downward departures
when a criminal history calculation overstates the seri-
ousness of a defendant’s past crimes. See U.S.S.G.
§ 4A1.3(b)(1). Wurzinger’s calculation does not overstate the
seriousness of his history; his many crimes committed
before the year 2003 earned him no criminal history points.
His score was based entirely on a recent conviction for
carrying a switchblade knife and his commission of the
present crime while on probation for that offense.
He presents no reason to believe that this truncated history
overstates his tendency to serious criminality. See United
States v. Carrasco, 313 F.3d 750, 757-58 (2d Cir. 2002) (“[I]t
would be unusual for a [criminal history calculation] based
on one prior offense to overstate the seriousness of a
criminal record.”).
The penalty imposed upon Wurzinger was harsh but his
crime was very serious. We do not encourage de facto life
sentences but here the decision can be regarded as
reasonable and we affirm it.
No. 05-3803 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-30-06