United States v. Dickerson

• Decision Date: 02 August 2022
• Docket Number: 21-3093
• Citation: 42 F.4th 799
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael E. DICKERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

42 F.4th 799

UNITED STATES of America, Plaintiff-Appellee,

v.Michael E. DICKERSON, Defendant-Appellant.

No. 21-3093

United States Court of Appeals, Seventh Circuit.

Argued May 25, 2022

Decided August 2, 2022

W. Scott Simpson, Attorney, Office of the United States Attorney, Springfield, 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 Ripple, Rovner, and Jackson-Akiwumi, Circuit Judges.

Ripple, Circuit Judge.

Michael Dickerson was charged with, and pleaded guilty to, being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Both the Government and Mr. Dickerson agree that the district court correctly calculated his offense level and criminal history category, which together yielded a Guidelines range of 51 to 64 months' imprisonment. After considering the sentencing factors set forth in 18 U.S.C. § 3553(a), however, the district court imposed an above-Guidelines sentence of 84 months.

Mr. Dickerson claims that the district court committed both procedural and substantive error in imposing his sentence. Finding no reversible error, we affirm the district court's judgment.

I BACKGROUND

A. Facts

On October 3, 2019, the Rock Island 9-1-1 operator received a call reporting that an individual had been threatened with a gun on 13^th Street. The gunman then got into a red Cadillac Eldorado driven by another individual and left the scene.

Officer Brieanne Lonergan of the Rock Island Police Department was in the area and responded. She saw a red Cadillac pulling out of a driveway just around the corner from where the incident had been reported. Officer Lonergan pulled behind the Cadillac, and Mr. Dickerson, who had been driving the Cadillac, stepped out of the car. As he did so, he dropped "a black magazine to a semiautomatic handgun."¹ He tried to pick up the magazine, but Officer Lonergan ordered him to get back in the car; Mr. Dickerson then tried to kick it.

Officer Lonergan recognized Mr. Dickerson and knew that he was a convicted felon. She handcuffed and searched him. The search uncovered another magazine loaded with several nine-millimeter rounds, an empty magazine, and a knife. Other officers arrived at the scene and placed Mr. Dickerson and his female passenger in separate squad cars. The male passenger, who had threatened the victim, apparently had fled when the police approached.

While other officers finished the search of the Cadillac, Officer Lonergan went to the scene of the 9-1-1 call and spoke to the victim, Nicholas Bartke. Bartke related that he and his fiancée were walking from their residence to their car when they saw a red Cadillac parked at the end of the street. As they moved toward their vehicle, the Cadillac's passenger began walking toward them yelling something like "Who are you ?"² The driver, later identified as Mr. Dickerson, drove the Cadillac in reverse alongside the passenger. Mr. Dickerson backed up until he was parallel with Bartke's car, thus preventing Bartke from escaping on foot. Mr. Dickerson's passenger then pulled out a semiautomatic handgun, pointed it at Bartke's face, and said, "This is not a game. "³ He then asked Bartke if he had "come from Russ's or Ross's house. "⁴ Seeing Bartke at closer range, Mr. Dickerson informed his passenger that Bartke was "not our guy. "⁵ The passenger then got back into the Cadillac, and Mr. Dickerson drove off. At that point, Bartke called 9-1-1.

After interviewing Bartke, Officer Lonergan took him to the location where Mr. Dickerson had been apprehended. Bartke positively identified the Cadillac as the car involved in the encounter and Mr. Dickerson as its driver.

The search of the Cadillac uncovered a black or dark blue nine-millimeter handgun under the driver's seat, a rifle, a bulletproof vest, and a sickle. Officers also found other items that appeared to be the proceeds of a recent burglary, including a coin collection, amplifiers, power drills, and subwoofers.

Later, while in custody, Mr. Dickerson used a jail phone to call his male passenger. Mr. Dickerson left a voicemail stating: "Hey Bro I told you I'm only in here because they were ... looking for me and you on that s---. For that robbery."⁶

B. District Court Proceedings

A grand jury indicted Mr. Dickerson with being a felon in possession of firearms and ammunition in violation of 18 U.S.C. § 922(g)(1). Mr. Dickerson moved to suppress both the evidence recovered at the scene as well as Bartke's identification. Following the denial of the motion, Mr. Dickerson entered a guilty plea.

The Probation Office prepared a presentence report ("PSR"), which set Mr. Dickerson's base offense level at 20. It then applied a four-level enhancement under Sentencing Guideline § 2K2.1(b)(6)(B)⁷ because Mr. Dickerson possessed the weapon in connection with another felony offense. After receiving a three-level reduction for acceptance of responsibility, the PSR calculated Mr. Dickerson's total offense level to be 21. Mr. Dickerson's criminal history subtotal was 14, to which two points were added because he committed the instant offense while on parole for another conviction. Mr. Dickerson's offense level of 21 and criminal history category of VI resulted in an advisory Guidelines range of 77 to 96 months' imprisonment.

At the sentencing hearing, the district court determined that the Government failed to prove facts supporting the four-level enhancement under § 2K2.1(b)(6)(B). According to the court, the Government had not proffered sufficient evidence to show that there was a "common scheme ... to commit a robbery."⁸ The court did believe that Mr. Dickerson had possessed the firearm "during the course and commission of ... aggravated assault."⁹ However, aggravated assault was not a felony in Illinois and therefore could not support the enhancement. The court recalculated Mr. Dickerson's new offense level to be 17, which yielded a new advisory Guidelines range of 51 to 63 months' imprisonment.

Although the district court did not believe there was sufficient evidence to support the enhancement, it noted that it could "consider this evidence in terms of the 3553(a) factors regarding the seriousness of the offense conduct or any other relevant sentencing factor that the parties ... argue[d] to the Court."¹⁰ Turning to those factors, the court observed that on the night of the offense, Mr. Dickerson was driving around with a car full of guns and ammunition. When his passenger threatened Bartke, Mr. Dickerson's response—that Bartke was not the person they were looking for—indicated that Mr. Dickerson "knew exactly what [they] intended to do that night if [they] found the right guy."¹¹ Thus, the court believed that Mr. Dickerson's sentence needed to reflect the fact that it was more serious than if "somebody ... just ha[d] a firearm as a felon maybe in their closet at home."¹²

The district court also found Mr. Dickerson's personal history and characteristics "indicate[d] a very, very high likelihood of risk to recidivate."¹³ The court explained that Mr. Dickerson's criminal history score did not reflect the seriousness of Mr. Dickerson's crimes or the extent of his criminal history. The district court observed that, whereas "it takes 13 or more [points] to get to a Category VI,"¹⁴ Mr. Dickerson had amassed 16 criminal history points. Additionally, Mr. Dickerson had an "almost uninterrupted pattern" of violent criminal conduct from the time he was seventeen,¹⁵ and prior interventions had not deterred his criminal behavior.

The district court concluded that "an upward variance from the advisory guideline range [wa]s needed to protect the public" from Mr. Dickerson and to "provide a specific deterrence for – to address the seriousness of the offense conduct and also to better and more adequately capture" what the court believed was "an extreme risk to recidivate in a manner that puts the public in harm's way."¹⁶ The district court therefore sentenced Mr. Dickerson to 84 months' imprisonment.

II

On appeal, Mr. Dickerson asks us to review both procedural and substantive aspects of his sentence. First, he claims that the district court committed procedural error by speculating that he knowingly joined his passenger's plan to hold Bartke at gunpoint. Second, he maintains that the district court procedurally erred in failing to address whether his above-Guidelines sentence would result in unwarranted sentencing disparities. Finally, he maintains that the sentence imposed by the district court was substantively unreasonable because it reflected an idiosyncratic view of his crime and overemphasized particular § 3553(a) factors. We will address each of these contentions.

A. Procedural Error

To determine whether the district court committed significant procedural error

we examine whether the district court: i) properly calculated the Guidelines range; ii) recognized that the Guidelines range was not mandatory; iii) considered the sentencing factors in 18 U.S.C. § 3553(a) ; iv) selected a sentence based on facts that were not clearly erroneous; and v) adequately explained the chosen sentence including an explanation for any deviation from the Guidelines range.

United States v. Lockwood , 840 F.3d 896, 900 (7th Cir. 2016). "We review the judge's application of the sentencing guidelines for procedural error de novo , and we review factual findings for clear error." United States v. Wallace , 991 F.3d 810, 814 (7th Cir.), cert. denied , ––– U.S. ––––, 142 S. Ct. 362, 211 L.Ed.2d 194 (2021). A finding is "clearly erroneous only when, ‘after considering all of the evidence, the reviewing court is left with the definite and firm conviction that a mistake has been made.’ " United States v. Cruz-Rea , 626 F.3d 929, 938 (7th Cir. 2010) (quoting United States v. Wyatt , 102 F.3d 241, 246 (7th Cir. 1996) ). Our "task on appeal," therefore "is not to see...