U.S. v. Wurzinger

• Decision Date: 30 October 2006
• Docket Number: No. 05-3803.,05-3803.
• Citation: 467 F.3d 649
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard C. WURZINGER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

467 F.3d 649

UNITED STATES of America, Plaintiff-Appellee, v. Richard C. WURZINGER, Defendant-Appellant.

No. 05-3803.

United States Court of Appeals, Seventh Circuit.

Argued September 8, 2006.

Decided October 30, 2006.

Rehearing and Suggestion for Rehearing En Banc Denied November 29, 2006.

Elizabeth Altman (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Richard H. Parsons, Kent V. Anderson (argued), Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

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 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 prosecuted 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 guidelines 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 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, 125 S.Ct. 738, 160 L.Ed.2d 621 (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, 120 S.Ct. 631, 145 L.Ed.2d 522 (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 recommended guidelines range but still within it, is reasonable.

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 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 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, 466 F.3d 574, 576 (7th Cir.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 traumatic 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 defendants 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 circumstances 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. Bullion, 466 F.3d at 576-77. While the present case is a less...