U.S. v. Cunningham, 05-1774.

Citation429 F.3d 673
Decision Date14 November 2005
Docket NumberNo. 05-1774.,05-1774.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Karl CUNNINGHAM, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Scott Drury (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Helen J. Kim (argued), Office of the Federal Defender Program, Chicago, IL, for Defendant-Appellant.

Before CUDAHY, POSNER, and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge.

The defendant pleaded guilty to one count of conspiring to possess, with intent to distribute, more than five grams of a mixture or substance containing crack cocaine. 21 U.S.C. § 846. The judge sentenced him to 57 months in prison, which was at the bottom of the guidelines range for the defendant's offense. The sentence was imposed after the Supreme Court, in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), had held that the federal sentencing guidelines are advisory. Booker, and cases interpreting it, such as United States v. Mykytiuk, 415 F.3d 606, 607-08 (7th Cir.2005); United States v. Dean, 414 F.3d 725, 727 (7th Cir.2005); United States v. George, 403 F.3d 470, 472-73 (7th Cir.2005); and United States v. Crawford, 407 F.3d 1174, 1178-79 (11th Cir.2005), instruct the sentencing judge to compute the applicable guidelines sentencing range, just as he would have had to do under the pre-Booker regime; only after doing so does he decide whether to impose a sentence within the range or a different sentence. 125 S.Ct. at 767. If he imposes a sentence within the range, it is presumed to be reasonable, United States v. Mykytiuk, supra, 415 F.3d at 608, though the defendant can try at the sentencing hearing to rebut the presumption by showing that a guidelines sentence is unreasonable in the particular circumstances of the case.

Whether a sentence is reasonable depends on its conformity to the sentencing factors set forth in 18 U.S.C. § 3553(a)(2). United States v. Booker, supra, 125 S.Ct. at 765-66 (2005); United States v. Alburay, 415 F.3d 782, 786 (7th Cir.2005). Although the factors are intended to guide the Sentencing Commission in its formulation of sentencing guidelines, 28 U.S.C. §§ 991(b)(1)(A), 994(b), (g), (m); United States v. Scott, 426 F.3d 1324 1330 n. 5 (11th Cir.2005); United States v. Frank, 864 F.2d 992, 1011 (3d Cir.1988), the statute is also a directive to the sentencing court. Thus, as we said in Dean, the sentencing judge may not rest on the guidelines alone, but must, if asked by either party, consider whether the guidelines sentence actually conforms, in the circumstances, to the statutory factors. 414 F.3d at 730-31; see also United States v. Williams, 425 F.3d 478, 479 (7th Cir.2005); United States v. Mykytiuk, supra, 415 F.3d at 608. He cannot treat all sentences that would fall within the guidelines sentencing range as reasonable per se. Id.; United States v. Winters, 416 F.3d 856, 860-61 (8th Cir.2005); United States v. Webb, 403 F.3d 373, 385 n. 9 (6th Cir.2005).

But what if any duty has the judge to explain his reasoning in imposing a guidelines sentence when the defendant contends that such a sentence would be unreasonable? The government's lawyer answered none; as long as the judge states that he has considered the statutory sentencing factors, no further explanation of the sentence is required. The judge could have a stamp that said "I have considered the statutory factors," which he placed on every guidelines sentence that he imposed — that would be okay, the government's lawyer said. The defendant in this case had argued that in his particular circumstances a sentence even at the bottom of the guidelines range would be unreasonably harsh. The judge brushed aside his argument. Can we say as we did in United States v. Williams, supra, at 479, that "it is enough that the record confirms that the judge has given meaningful consideration to the section 3553(a) factors, and the record supplies us with that assurance here" (emphasis added); see also United States v. Baretz, 411 F.3d 867, 878 n. 11 (7th Cir.2005); United States v. Engler, 422 F.3d 692, 696-97 (8th Cir.2005)? Or are we left in serious doubt whether the judge connected the facts relating to the statutory factors to the sentence he imposed?

Until his arrest, Cunningham, age 49 and a Vietnam combat veteran, had worked for the postal service for 24 years. He was a good family man and had no criminal record. He was, however, a habitual smoker of marijuana. His supplier was a man named Andre Means. A former coworker of Cunningham's at the post office, who had become a confidential informant for the government and was doubtless aware of Cunningham's connection with Means and may have been asked by the government to "get" Means, approached Cunningham and asked him for help in obtaining crack. Cunningham agreed and introduced the informant to Means, who on nine occasions, with Cunningham present but not participating in the transaction, sold crack to the informant. All that Cunningham got out of performing this brokerage service (barely that) were payments of $10 to $20 from the informant on eight of the nine occasions, for a grand total of $100. He used the money to buy marijuana for his personal consumption from Means, receiving no discount or other benefit in exchange for helping with the crack transactions. (He has never, so far as appears, bought or used crack himself.) Means pleaded guilty to his leading role in the conspiracy and was given a 188-month prison sentence.

Cunningham has a long history of psychiatric illness, coupled with alcohol abuse as well as his marijuana habit. The year before his go-between activity he had attempted suicide and had been hospitalized and diagnosed as suffering from clinical depression, acute and chronic anxiety, and compulsive disorder. In arguing to the judge for a below-guidelines sentence Cunningham's lawyer presented extensive documentation of her client's psychiatric history. She also argued that the high guidelines offense level produced by the amount of crack in the transactions overstated Cunningham's culpability. The lawyer noted how meager Cunningham's earnings from his role in the transactions had been — a role that obviously both the informant and Means had thought trivial. The lawyer noted further that the informant not only had approached Cunningham in the first place but had asked him to stay close during his transactions with Means, and Cunningham had agreed because the transactions would be taking place in a rough neighborhood and the informant — his (false) friend — might be in danger in carrying on his person first the purchase money and then the crack that he'd be buying from Means with the money.

At the sentencing hearing the government's lawyer urged a sentence in the guidelines range, noting that Cunningham was a government employee and adding that he "did not come forward to cooperate when he could have against the co-defendant [Means] and come in earlier. That case ultimately ended up in a plea, but we did ask him to come in earlier, and the decision was made not to do that until it was too late." Cunningham's lawyer argued that a guidelines sentence would be inappropriate because of the psychiatric and other factors summarized above.

The judge's response was terse:

I understand that you're a broker [the judge is addressing Cunningham, of course, not the lawyer], but you're a broker of crack cocaine transactions on nine separate offense — nine separate occasions. Despite strong submissions by [Cunningham's lawyer], both in writing and here orally, I cannot see that a sentence within the guidelines is not appropriate, given all of the factors that I have to adhere to. Therefore, looking at you, knowing that you're not all bad, knowing that you made tremendous mistakes in this case to get involved in this number of times, and I will tell you quite honestly, if you had done this once or maybe twice, I would rethink, using my sentencing discretion; but nine different times and the fact that you, out of loyalty, I think misguided[,] to Mr. Means, decided not to cooperate against him, and I will get to Mr. Means, taking all these things into consideration, I'm going to sentence you to a 57-month sentence within the Bureau of Prisons, and place you on five years of supervised release.

If we were to subject this passage to the kind of scrutiny to which we and the other courts of appeals subject the decisions of administrative agencies, e.g., Highway J Citizens Group v. Mineta, 349 F.3d 938, 952-53 (7th Cir.2003); Howard Young Medical Center, Inc. v. Shalala, 207 F.3d 437, 441-42 (7th Cir.2000); GTE Midwest, Inc. v. F.C.C., 233 F.3d 341, 344-45 (6th Cir.2000), it would not pass muster. There are two problems. The first is the reference to Cunningham's having "decided not to cooperate against" Means. This contention had first been made, without elaboration or substantiation, in the brief passage that we quoted from the government lawyer's statement at the sentencing hearing; there is no confirmation elsewhere in the record, including the report of the presentence investigation. The judge should not have run with this particular ball without some inquiry into the cause and significance of Cunningham's decision not to cooperate. The government has never contested the evidence of Cunningham's severe psychiatric illnesses. Not that depression or anxiety or compulsive disorder, or indeed all together, need preclude cooperation. But they do suggest a need to ask the simple question why Cunningham did not cooperate. Maybe he couldn't.

The second problem is the judge's failure to mention Cunningham's psychiatric problems and substance abuse, which Cunningham's lawyer wove into a pattern suggestive of entrapment not as a defense but as a mitigating factor not reflected in the guidelines and also as a basis for...

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