U.S. v. Liddell

• Decision Date: 10 September 2008
• Docket Number: No. 07-3373.,07-3373.
• Citation: 543 F.3d 877
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joshua M. LIDDELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

543 F.3d 877

UNITED STATES of America, Plaintiff-Appellee, v. Joshua M. LIDDELL, Defendant-Appellant.

No. 07-3373.

United States Court of Appeals, Seventh Circuit.

Argued May 8, 2008.

Decided September 10, 2008.

Stephen B. Clark (argued), Office of the United States Attorney, Fairview Heights, IL, George A. Norwood, Office of the United States Attorney, Benton, IL, for Plaintiff-Appellee.

Melissa A. Day (argued), Federal Public Defender's Office, Benton, IL, for Defendant-Appellant.

Before MANION, EVANS, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Defendant Joshua Liddell pled guilty to two federal drug charges and was sentenced to 240 months in prison as a career offender. He claims the district court erred by not grouping these two charges together when it calculated his sentencing guideline range. Liddell also contends that resentencing is necessary in light of the Supreme Court's decision in Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), and he claims that his sentence is unreasonable. We conclude Kimbrough does not affect Liddell's sentence on count one and the district court did not err in issuing this sentence. Pursuant to the parties' stipulation, we issue a limited remand on count two in light of Kimbrough.

I. BACKGROUND

This is the second time we have encountered this case. Because we already discussed the underlying facts in some detail in our previous opinion, we will only mention the facts necessary to resolve this appeal. See United States v. Liddell, 492 F.3d 920 (7th Cir.2007).

On May 4, 2006, Liddell pled guilty to two counts of possession with the intent to distribute five grams or more of a mixture or substance containing cocaine base. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B). The charges were based on incidents occurring on May 9, 2003 (count two) and November 22, 2005 (count one).

In between these two incidents, Liddell was convicted in Illinois state court of two other felonies—possession with intent to distribute cocaine and aggravated domestic battery—for which he served 60 days' imprisonment. For count one of the federal charges (corresponding to the last drug transaction), the district court had to decide whether the two prior state convictions qualified Liddell for sentencing as a career offender. See United States Sentencing Commission Guidelines Manual (U.S.S.G.) § 4B1.1 (2006) (to be eligible for career offender sentencing, a defendant must have "at least two prior felony convictions of either a crime of violence¹ or a controlled substance offense"). Adopting the probation office's recommendation, the court concluded that the state conviction for cocaine possession was related to the conduct charged in count one and did not count toward career offender status. So the court did not apply the career offender guidelines and sentenced Liddell to the statutory minimum of 120 months' imprisonment on count one, and 105 months' imprisonment on count two, with the sentences to run concurrently.

The government appealed the district court's sentence. We vacated the sentence and remanded, concluding that the state cocaine conviction was not related to the charged conduct and so the court should have applied the career offender guidelines when sentencing Liddell on count one. See Liddell, 492 F.3d at 922-24 (citing United States v. Hernandez, 330 F.3d 964, 987 (7th Cir.2003)). On remand, the district court computed the sentencing guideline range for each count separately (rather than grouping the two counts and calculating a single range) and determined that the career offender provisions yielded a range of 262-327 months' imprisonment on count one. The court then sentenced Liddell to a below-guideline term of 240 months' imprisonment on count one, and 87 months' imprisonment on count two, to run concurrently. Liddell then filed this appeal.

II. ANALYSIS

A. The district court properly declined to group counts one and two.

Liddell claims the district court should have grouped counts one and two together before determining whether he was a career offender. We review the court's decision not to group these counts de novo. United States v. Alcala, 352 F.3d 1153, 1156 (7th Cir.2003); United States v. Sherman, 268 F.3d 539, 545 (7th Cir.2001). Liddell seems to believe (but doesn't explicitly argue) that if the counts are grouped, his two intervening state convictions would no longer be "prior felony convictions" because they would occur after the earlier of the two grouped offenses, and so Liddell could not be sentenced as a career offender. We do not agree, however, that grouping the two counts would change Liddell's career offender status. Even if the two counts were grouped, we would use the date of the later offense in the group in determining whether the unrelated state felony convictions were "prior" to the group. See United States v. Belton, 890 F.2d 9, 10 (7th Cir.1989) ("Nothing in the guidelines' definition of a career offender requires . . . that every act constitutive of the offense underlying his current conviction have been committed after the prior conviction, and we can think of no reason for such a requirement."). We have suggested that an unrelated felony conviction is "prior" to a conspiracy for purposes of the career offender guidelines when the conspiracy begins before the conviction and continues afterward. Id. at 10-11; see also United States v. Garecht, 183 F.3d 671, 675 (7th Cir.1999) (modifying Belton by holding that a felony conviction that occurs during an ongoing conspiracy can be a "prior" conviction only if it is unrelated to the conspiracy).

Similarly, it makes sense that an unrelated felony conviction is prior to a "group" of offenses if the conviction occurs before at least one of the offenses in the group. To hold otherwise would lead to a nonsensical result—Liddell would be better off because he was charged with two grouped offenses that straddled his unrelated state felony convictions than if he had been charged on just count one (which involved the later-occurring offense in the group). See Belton, 890 F.2d at 10-11 (noting that "[t]he only practical effect" of a similar argument in the drug conspiracy context "would be to give the government an incentive to seek conviction for only so much of the defendant's participation in the continuing conspiracy as postdated his prior conviction").

At any rate, we already explained why count one and count two are unrelated and should not be grouped together:

Liddell's state incarceration separated the conduct charged in Count One from the conduct charged in both his state conviction and in Count Two, [so] we find that those earlier offenses are not related to Count One....

The guidelines explicitly state that district courts should compute sentencing guideline ranges on a count-by-count basis. See U.S.S.G. § 1B1.1(d); see also United States v. De la Torre, 327 F.3d 605, 609 (7th Cir.2003).... Liddell [should have been] sentenced as a career offender for [count one] and not [count two]. To hold otherwise not only would conflict with the guidelines, but it would strain judicial resources by forcing the government to bring multiple, separate indictments against defendants like Liddell to ensure that such defendants do not get a more lenient sentence simply because all of their offenses are consolidated in a single indictment.

Liddell, 492 F.3d at 924. Although Liddell claims the "law of the case" doctrine doesn't preclude us from changing this decision, he hasn't provided a good reason for us to revisit the issue. And the two federal drug charges—which are based on incidents separated by more than two-and-a-half years—do not involve the same victim or the same transaction, and do not seem to be otherwise related. See U.S.S.G. § 3D1.2. Therefore, we conclude the district court correctly determined that the counts should not be grouped.

B. The Supreme Court's decision in Kimbrough v. United States does not require us to remand for resentencing.

At oral argument, we asked the parties whether the Supreme Court's recent decision in Kimbrough, 128 S.Ct. at 564, had any effect on this case. The parties filed supplemental memoranda addressing this issue. They stipulated to a limited remand on count two (corresponding to the earlier incident) pursuant to the procedure set forth in United States v. Taylor, 520 F.3d 746, 748-49 (7th Cir.2008). However, the government opposed any remand on count one (corresponding to the later incident).

When Liddell was sentenced, U.S.S.G. § 2D1.1 stated that individuals who deal in cocaine base (including crack)² are subject to the same guideline range as those who deal in 100 times as much powder cocaine. This 100-to-1 (or "crack/powder") disparity is also part of the federal controlled substances statute. 21 U.S.C. § 841(b)(1).

After the Supreme Court decided that the federal sentencing guidelines were merely advisory, see United States v. Booker, 543 U.S. 220, 264-65, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), some district courts began correcting for the 100-to-1 disparity by sentencing crack defendants below their guideline range. We concluded, however, that district courts could not issue below-guideline sentences merely because they disagreed with the policy underlying this disparity. See, e.g., United States v. Miller, 450 F.3d 270, 275-76 (7th Cir.2006). The Supreme Court reversed us in Kimbrough, concluding that because "the cocaine Guidelines, like all other Guidelines, are advisory only," district courts may consider the crack/powder disparity in fashioning an appropriate sentence that is not "greater than necessary" to serve the objectives of sentencing. See 128 S.Ct. at 564 (citing 18 U.S.C. § 3553(a)). We subsequently held that a limited remand and resentencing might be appropriate when a defendant makes, for the first time on appeal, an argument based on Kimbrough. See Taylor, 520 F.3d at 746-47 (citing United States...