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- ilnd;;1:04-cr-00038_de257 RegisterActionDate "2010-03-01" @default.
- ilnd;;1:04-cr-00038_de257 RegisterActionDescriptionText "ORDER of USCA (certified copy) as to 8EAEFC5 regarding notice of appeal 233 : 8EAEFC5 was indicted in June 2004 on three counts of violating the drug laws,see 21 U.S.C. § 841, two firearms offenses, see 18 U.S.C. §§ 922(g) and 924(c), and a chargeof making counterfeit currency in violation of 18 U.S.C. § 471. He was convicted on all sixcounts after a trial and received a sentence of 360 months imprisonment, to be followedby three years supervised release on Counts 1-3 (the drug charges) and Count 6, and fiveyears supervised release on Counts 4 and 5 (the firearms charges), to run concurrently; thecourt imposed a $600 special assessment for the six counts. He appealed only hiscounterfeiting conviction to this court. United States v. 8EAEFC5, 499 F.3d 729 (7th Cir. 2007).We agreed that certain evidentiary errors relating to the counterfeiting charge hadprejudiced 8EAEFC5 at the trial, and we thus vacated that conviction and remanded for a newtrial on that count. We emphasized that our judgment did not have any effect on theconvictions for the remaining charges. On remand, the district court dismissed the counterfeiting charge, thereby obviatingthe need for a new trial. It then resentenced 8EAEFC5 to the same 360-month term ofimprisonment, to be followed by the same three-year supervised release term for Counts1-3 and five-year supervised release term for Counts 4 and 5, running concurrently; thecourt adjusted the special assessment to $500. 8EAEFC5 now appeals from his new sentence.8EAEFC5 argues first that the district court failed to calculate his advisory guidelinesentence and that this procedural error alone requires us to vacate and remand once again,this time for re-sentencing. He also asserts that in any event the district court failed to givemeaningful consideration to the factors set forth in 18 U.S.C. § 3553(a). We take these pointsin turn.The Probation Office had prepared a full presentence investigation report (PSR) inconjunction with Cantys original sentencing proceeding; at re-sentencing, it updated theoriginal PSR and supplemented the revised version with an Addendum to the PresentenceReport. The critical fact for our purposes is that both the original and updated PSRsconcluded that 8EAEFC5 was a career offender under U.S.S.G. § 4B1.1 and an armed careercriminal under U.S.S.G. § 4B1.5. As of the time of his conviction, 8EAEFC5 was at least 18 yearsof age and had at least two prior convictions for controlled substance offenses: (1) a 1992conviction for distribution of a controlled substance, and (2) a 1996 conviction for acontrolled substance offense in the second degree. In addition, one of the counts ofconviction was for a violation of 18 U.S.C. § 922(g), and 8EAEFC5 had at least three priorconvictions for a violent offense or a serious drug offense (the two just mentioned plus a1979 conviction for aggravated battery). Cantys criminal history placed him in CategoryVI independently of his career criminal status. Based on §§ 4B1.1 and 4B1.4, the ProbationOffice concluded both times around that Cantys advisory guideline range was 360 monthsto life imprisonment.At the sentencing hearing on March 25, 2009, the district court stated on the recordthat it had considered the entire sentencing record up to that time, and in particular it hadread the PSR, the updated PSR, and the Addendum. It had also read the letters and othermaterials that 8EAEFC5 submitted in support of his § 3553(a) arguments. The court thenturned to defense counsel and asked whether he was still objecting to the determinationin the updated PSR that 8EAEFC5 was an armed career criminal and a career offender; counselreplied in the negative. Summarizing, the court then noted that under the updated PSR andthe Addendum, putting the career offender status to one side, Cantys offense level was 28and his criminal history category was VI. The government lawyer pointed out that therehad been a last-minute correction to the offense level, and that it should have been 26. But,the government was quick to say, this modification made no difference because of the effectof §§ 4B1.1 and 4B1.4. Defense counsel then objected to the use of the career offenderguidelines, because career criminal as a guideline status is simply advisory. The courtcorrectly recognized, however, that there is nothing advisory about the way in which theguideline ranges are calculated. It is the final result that is advisory: the district court mustproceed on the basis of a correct guideline range, and then, using § 3553(a), decide on anappropriate sentence.8EAEFC5 does not argue that the district court erred in concluding that he is a careeroffender, nor does he take issue with the fact that under U.S.S.G. § 4B1.1(c)(3) his advisorysentencing range is 360 months to life, even without the counterfeiting charge. The districtcourt chose a sentence at the bottom of that range: 360 months. The court recognized thefull measure of its own discretion in choosing a proper sentence, and on appeal, we areentitled to give an in-range sentence a presumption of reasonableness. See Rita v. UnitedStates, 551 U.S. 338, 347 (2007); United States v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005).Cantys efforts to convince us that the court proceeded on the basis of the wrong drugquantities are unavailing, given his career offender and armed career criminal status. Thecourt evaluated the personal information that he submitted and weighed it for what it wasworth. We see nothing that justifies upsetting the conclusion that this was a reasonablesentence.The judgment of the district court is therefore AFFIRMED(yap, ) (Entered: 03/02/2010)" @default.
- ilnd;;1:04-cr-00038_de257 AdministrativeID "252" @default.
- ilnd;;1:04-cr-00038_de257 OntologyLabel dispositive @default.
- ilnd;;1:04-cr-00038_de257 OntologyLabel sentence @default.
- ilnd;;1:04-cr-00038_de257 hasReferenceToOtherEntry ilnd;;1:04-cr-00038_de239 @default.