United States v. Clark

• Decision Date: 18 October 2018
• Docket Number: No. 18-1083,18-1083
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael CLARK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

906 F.3d 667

UNITED STATES of America, Plaintiff-Appellee,
v.
Michael CLARK, Defendant-Appellant.

No. 18-1083

United States Court of Appeals, Seventh Circuit.

Argued September 20, 2018
Decided October 18, 2018
Rehearing and Rehearing En Banc Denied November 16, 2018

Vikas Kumar Didwania, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL, for Plaintiff-Appellee.

Daniel J. Hillis, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Springfield, IL, Thomas W. Patton, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Peoria, IL, for Defendant-Appellant.

Before Manion, Hamilton, and Scudder, Circuit Judges.

Manion, Circuit Judge.

Michael Clark pleaded guilty to distributing fentanyl. The district court sentenced him to 71 months’ imprisonment and 5 years of supervised release. Clark appeals that sentence, arguing the district court improperly calculated his criminal history category and inadequately justified the length of the term of supervised release. We affirm the district court.

I.

This is not Clark’s first encounter with the criminal justice system. In 2007, he was convicted of criminal trespass to a vehicle. In 2008, he was convicted of battery. That same year, he was convicted of reckless conduct. In 2010, he received a federal conviction in the District of Minnesota for conspiring to distribute controlled substances, a crime for which he was sentenced to 60 months’ imprisonment. While he was on supervised release for that conviction, he committed the instant offense of distributing fentanyl. He was indicted for that crime on July 6, 2016, and pleaded guilty in the Northern District of Illinois on March 1, 2017.

Before Clark’s September 7, 2017, sentencing hearing, the Probation Office counted up Clark’s convictions to determine his criminal history category. The Probation Office gave Clark three points for the 2007 and 2008 state convictions (one point each), three points for the 2010 federal conviction, and two points for the fentanyl conviction. These eight points placed Clark in criminal history category IV. With an offense level of 21, Clark’s Guidelines range was 57 to 71 months’ imprisonment. The Guidelines also recommended 3 years of supervised release.

Clark objected to the inclusion of his 2007 conviction for criminal trespass and his 2008 conviction for reckless conduct in his criminal history calculation. He asserted those convictions fell under the exception for certain misdemeanor convictions found in § 4A1.2(c) of the Sentencing Guidelines. If these convictions did not receive points, Clark’s criminal history category would drop to III and his Guidelines range would reduce to 46 to 57 months’ imprisonment.

The government conceded the 2007 conviction for trespass to a vehicle should not be counted, see generally U.S.S.G. § 4A1.2(c)(1) (excluding from the criminal history calculation misdemeanor convictions for "[t]respassing" under certain circumstances), but maintained the 2008 conviction for reckless conduct was properly included in the calculation.

The debate over the 2008 conviction was the initial focus of the sentencing hearing. In addition to arguing that his 2008 conviction fell within § 4A1.2(c) ’s exclusion, Clark also brought up that the district court in Minnesota had not counted the

906 F.3d 670

2008 conviction when it calculated his criminal history before his 2010 sentencing. Clark’s counsel stated, "We like the [c]ourt to be consistent ... in its approaches to these defendants." The government responded to this argument by urging the court to focus on the situation currently before it.

Without mentioning the Minnesota sentencing, the district court agreed with the government that the 2008 conviction did not fall within the exclusion. Therefore, Clark’s criminal history category remained IV, and his Guidelines range remained 57 to 71 months. The parties then made their arguments for their requested sentences. Clark asked for a 41-month sentence, citing his difficult childhood and his young child. The government asked for a 108-month sentence, citing Clark’s failure to take advantage of the benefits of supervised release after his last conviction and the harm fentanyl causes to the community. The government also requested a 5-year term of supervised release.

The district court then announced its sentence. The court observed Clark had been selling fentanyl and heroin in Chicago, northwestern Wisconsin, and other places "from at least 2014 to 2016 ... even though he was on supervised release for" the 2010 conviction. Further, the court remarked on what it had earlier described as the "boastful and cavalier" way Clark had conducted his drug operations. Clark had bragged about his crime and boasted about how people were overdosing and dying after taking the drugs he was distributing. The court found Clark’s conduct evidenced "a blatant disregard for ... life, for the law, and complete disdain for the lives of others."

The court went on to note that Clark’s earlier 60-month sentence had not deterred him from going back to distributing drugs when he was released. What is more, the court noted Clark had been selling drugs since 2002, with the only meaningful break being his time spent in federal custody (and perhaps a few months from November 2014 to January 2015 "when he says he was working for a company called American Auto Tires"). The court concluded Clark presented "a significant risk of recidivism."

Given all these considerations, the court sentenced Clark to 71 months’ imprisonment. Referencing back to the criminal history calculation, the court stated that even if it had agreed with Clark about the 2008 conviction, it still would have imposed the 71-month sentence because the 60-month sentence for Clark’s prior conviction had not been sufficient and because of "the seriousness and extensiveness and callousness" with which Clark had carried on his criminal activities. The court also imposed the government-requested 5 years of supervised release. The court stated it...