7th Circuit Criminal Law Alert

Boilerplate Sentencing Law Post Rita and Gall

USA v. Ralph Shannon, 07-2794.  Ralph Shannon pleaded guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4). The district court sentenced Shannon to 46 months' imprisonment and a life term of supervised release. On appeal, he argues that (1) the federal sentencing scheme approved in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) violates the Fifth and Sixth Amendments; and (2) his sentence was unreasonable. For the following reasons, we affirm.

The presentencing investigation report ("PSR"), which the district court adopted, stated that based on Shannon's criminal history category (I) and the offense level (twenty-three), the guidelines range was forty-six to fifty-seven months' imprisonment with a range of two years to life of supervised release. The PSR recommended a sentence of 57 months' imprisonment with a life term of supervised release.

Shannon raises two issues on appeal, the first of which we can dispose of in haste. Shannon argues (as far as we can discern) that his sentence was unconstitutional under the Fifth Amendment and the Sixth Amendment as interpreted by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) because the post-Booker guidelines scheme impermissibly allows district court judges to find facts that affect federal sentences. Because Shannon failed to raise this issue before the trial court, it is forfeited, and our review is for plain error. United States v. Matthews,505 F.3d 698, 707 (7th Cir. 2007).

We have considered similar arguments on multiple occasions, and have rejected them. See United States v. Roti, 484 F.3d 934, 937 (7th Cir. 2007); United States v. Savage, 505 F.3d 754, 764 (7th Cir. 2007); United States v. Hollins, 498 F.3d 622, 633 (7th Cir. 2007); United States v. White, 472 F.3d 458, 464-65 (7th Cir. 2006).

District court judges do not violate the Constitution when they find facts by a preponderance of the evidence for purposes of calculating a guideline range, as long as the guidelines remain advisory and the ultimate decision is based on consideration of the § 3553(a) factors. Hollins, 498 F.3d at 633.

In his other argument on appeal, Shannon also contends that the district court failed to adequately articulate the reasons for her decision to sentence Shannon to the guidelines recommendation of lifetime supervision. We review sentences for reasonableness, using an abuse of discretion standard. United States v. Sura, 511 F.3d 654, 664 (7th Cir. 2007).

A sentence is reasonable if the district court gives meaningful consideration to the factors enumerated in 18 U.S.C. § 3553(a), including the advisory sentencing guidelines, and arrives at a sentence that is objectively reasonable in light of the statutory factors and the individual circumstances of the case. Gall v. United States, 552 U.S. ___, 128 S.Ct. 586, 596-97, 169 L.Ed.2d 445 (2007); United States v. Wachowiak, 496 F.3d 744, 748 (7th Cir. 2007). The court need not address every § 3553(a) factor in checklist fashion, explicitly articulating its conclusions regarding each one. United States v. Brock, 433 F.3d 931, 934-36 (7th Cir. 2006); United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005). Instead the court may simply give an adequate statement of reasons, consistent with § 3553(a), for thinking the sentence it selects is appropriate. United States v. Harris, 490 F.3d 589, 597 (7th Cir. 2007).

A sentence within a properly calculated guideline range is presumed reasonable. United States v. Haskins, 511 F.3d 688, 695 (7th Cir. 2007) (citing Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005) (adopting a rebuttable presumption of reasonableness for within-guidelines sentences).

In this case, the district court sufficiently explained Shannon's sentence, including the life term of supervised release. The court took into consideration: (1) Shannon's limited criminal history, see § 3553(a)(1); (2) the serious nature of the offense, see id.; (3) the fact that Shannon's interest in child pornography demonstrated a "substantial need to protect the public," see § 3553(a)(2)(C); and (4) Shannon's need for sex offender treatment and supervision, see § 3553(a)(2)(D).

After explaining these factors, the court found that a sentence at the low end of the guidelines range for imprisonment and at the high end of the range for supervised release was required in this case. The court adequately addressed the objections raised by Shannon, and demonstrated nothing short of a thorough and thoughtful analysis of Shannon's case. Shannon presents nothing to disturb the rebuttable presumption of reasonableness of his within-guidelines sentence.

Accordingly, we AFFIRM Shannon's sentence.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

Relevant Conduct Calculation Found Beyond Realm of Permissable Calculations

USA v. GERALD E. ANDERSON, 06-2205.  In December 2004, Anderson and Meisch were indicted on charges of bribery and wire and honest services fraud. The two men had been caught offering a $10,000 bribe to the Aurora Director of Public Works in order to smooth the way for Anderson's latest development project. Meisch pleaded guilty and testified against Anderson at trial. Anderson was ultimately convicted on two counts.

He now appeals and argues that the district judge improperly calculated his sentencing range under the U.S. Sentencing Guidelines by overestimating the net benefit he received from his wrongdoing.

We agree that the district court improperly calculated the Guidelines range but we find that the error was harmless. We AFFIRM.

Anderson's appeal focuses largely on sentencing issues.  A fourteen-point enhancement was added because the "benefit received" from the bribe was more than $400,000 but less than $1,000,000. See U.S.S.G. § 2B1.1(b)(1)(H) (2003).

We now turn to the most hotly contested issue in this case, which is the proper calculation of the "benefit received" in return for the bribe. See U.S.S.G. § 2C1.1(b)(2) (2003).  Both parties agree that the value of the "benefit received or to be received" is the proper measure in this case, but they disagree on how it should be calculated.

Basically, the dispute in this case is over whether Anderson's offense conduct should include convicted conduct, relevant conduct or both.  The Government is correct here, at least in theory.

It is well settled that the sentencing judge may consider not only the conduct that formed the basis of the conviction but also "relevant conduct." See U.S.S.G. § 1B1.3(a)(2) (2003). Relevant conduct may include "uncharged conduct and even conduct that formed the basis of an acquittal," as long as the judge makes factual findings based on the preponderance of the evidence. United States v. Schaefer, 291 F.3d 932, 938 (7th Cir. 2002) (citations omitted).

The judge, however, must make sure that the conduct forms a part of the "same course of conduct" or "ongoing series of offenses." U.S.S.G. § 1B1.3 cmt. n.9(B) (2003). Further, we have cautioned that when the benefit calculation is based largely on conduct for which the defendant was not convicted, the district court must be careful to explain exactly how the conduct factors into the benefit calculus. See Schaefer, 291 F.3d at 939.

We are aware that benefit calculations cannot always be precise, and so we accept reasonable estimates based on the information available in the record. See U.S.S.G. 2B1.1(b)(1), cmt. n.3(c) (2003). To be rejected, a district court's calculation must not only be "inaccurate but outside the realm of permissible computations." United States v. Peterson-Knox, 471 F.3d 816, 822 (7th Cir. 2006).

Because more than 90% of the district court's net benefit figure reflects benefits derived from relevant conduct, we will scrutinize the numbers more closely. See Schaefer, 291 F.3d at 939.  In the end, there has been no reasonable basis presented for calculating the value of Misty Creek on the basis of a discount. This is a rare occasion in which the district court's calculation is "outside the realm of permissible calculations." Peterson-Knox, 471 F.3d at 822.

Before we remand the case, however, we must determine whether the error was harmless. See e.g., United States v. Saunders, 129 F.3d 925, 932-33 (7th Cir. 1997). An error is harmless if it "did not affect the district court's selection of the sentence imposed." Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992).

So, knowing what we now know, would the district court have selected the same sentence? There is no need for speculation here. The district court stated explicitly at the sentencing hearing that it believed that seventy-two months was the reasonable sentence under § 3553(a), even if its benefit calculations were incorrect.  Because it has clearly stated its intention to do so, any error in the calculation of the sentencing range was harmless.

AFFIRMED

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .