USA v. Royce Spann
Filing
Filed opinion of the court by Judge Posner. REVERSED and REMANDED. Diane P. Wood, Chief Judge; Richard A. Posner, Circuit Judge and Diane S. Sykes, Circuit Judge. [6587608-1] [6587608] [14-1013]
Case: 14-1013
Document: 33
Filed: 07/03/2014
Pages: 7
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐1013
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
ROYCE SPANN,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:13‐CR‐30131‐WDS‐1 — William D. Stiehl, Judge.
____________________
ARGUED JUNE 11, 2014— DECIDED JULY 3, 2014
____________________
Before WOOD, Chief Judge, and POSNER and SYKES, Circuit
Judges.
POSNER, Circuit Judge. The defendant was charged with
possession of more than 100 grams of heroin with intent to
distribute it, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(i).
He pleaded guilty and was sentenced to 97 months in pris‐
on. His only challenge on appeal is to the sentence.
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The sentence was at the top of the guidelines range of 78
to 97 months’ imprisonment. But at the sentencing hearing
the government had argued for an above‐guidelines sen‐
tence of 180 months, on the ground that the 753.2 grams of
heroin that the defendant had possessed was of higher than
average purity (39.7 percent versus an average of 36.6 per‐
cent in the Southern District of Illinois) and therefore more
dangerous to the user, and that in 2012 heroin had caused 30
deaths in the Southern District’s two largest counties (Madi‐
son and St. Clair). But the defendant’s lawyer pointed out
without contradiction that the average purity level of heroin
for the nation as a whole is 59 percent, and that the govern‐
ment had presented no evidence of the number of heroin
deaths in the Southern District relative to either the popula‐
tion or to the number of deaths caused by other drugs, and
had offered no comparison of the heroin death rate in the
Southern District to that in the nation as a whole. There was
no evidence that any of the defendant’s customers had died
as a result of ingesting the heroin that they had bought from
him.
The judge rejected the government’s proposal for a 180‐
month sentence. The 97‐month sentence that the judge im‐
posed instead was as we said the top of the guidelines range,
and the reasons he gave for going to the top of the range
were terse. He said that trafficking in heroin “is a very seri‐
ous crime … for what it does to the people who use … hero‐
in. The Defendant himself has become an addict of several
narcotics and he sees now where that has brought him. …
What he was doing was helping to injure people all over the
area. This [97‐month sentence] will give him time to try to
obtain while he is in prison some skills that will help him
when he gets out of prison.”
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After the judge had finished reading the sentence (in‐
cluding conditions of supervised release, not contested in the
appeal), the defendant’s lawyer said—in response to the
judge’s invitation “now do counsel know of any reason why
[the] sentence should not be imposed as stated?”—that he
had “a question. The Court has elected to sentence [the de‐
fendant] to the high end of the guideline range. And what I
hear the Court say is that the offense is serious because of
heroin. I’m curious why the high end rather than the low
end.” It was an ingenious question. All, really, the judge had
said in justifying the sentence, besides the fact that the de‐
fendant needed time in prison to learn lawful work skills
(but 97 months to learn such skills?)—and in basing his sen‐
tence even in part on that consideration he was violating the
rule of Tapia v. United States, 131 S. Ct. 2382, 2391 (2011), that
rehabilitation, while relevant to determining conditions of
supervised release, is not to be used to affect the length of a
defendant’s prison term—was that trafficking in heroin is a
serious crime. That certainly justified a sentence within ra‐
ther than below the applicable guidelines range. But the
judge had said nothing to suggest that the defendant was
deserving of a harsher punishment than any other heroin
trafficker in the same guidelines range. The logical implica‐
tion of that omission, though not necessarily intended by the
judge, was that he thinks every such trafficker should be
sentenced at the top of the range, or at least every trafficker
who cannot show unusual circumstances justifying a sen‐
tencing reduction. The government’s lawyer had taken the
same approach. He had based his request for a 180‐month
sentence not on any respect in which the defendant might
deserve heavier punishment than other heroin dealers in his
guidelines range but on the respects in which the defendant
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was indistinguishable from other heroin dealers; for the
government’s lawyer just mentioned averages.
Maybe the judge was misled by the lawyer’s failure to
particularize the defendant’s criminal activity; but whatever
the cause, the judge failed to justify the sentence he meted
out to the defendant. He said nothing, for example, about
the quantity of heroin that the defendant had distributed or
the actual consequences for any of the defendant’s custom‐
ers. A federal judge is not permitted to pick a point in a
guidelines range arbitrarily. He cannot just say: “Whenever I
have to sentence anyone, I calculate his guidelines range and
sentence him at the top of it. That saves me so much time
and thought!” The judge must justify, by reference to the
sentencing factors in 18 U.S.C. § 3553(a), the sentence he im‐
poses—and must do so whether it is inside or outside the
applicable guidelines range. Gall v. United States, 552 U.S. 38,
49–50 (2007); United States v. Washington, 739 F.3d 1080,
1081–82 (7th Cir. 2014).
One might have expected the judge to do that in response
to the pointed question put to him by the defendant’s law‐
yer. He did not. He seems to have been startled by the ques‐
tion. He had invited it, but the invitation seems to have been
intended as a last chance for the lawyers to make their rec‐
ord; the judge did not expect that he would be asked to
make his record. He said: “this is the first time in my life an‐
yone has asked me why I imposed a penalty at any point.
I’m sure they have those thoughts. But I was not prepared
for your question. And the reason I imposed that penalty
[the 97‐month sentence] was that the Defendant had earned
it. He had conducted [sic—this was probably the court re‐
porter’s mistaken transcription of “committed”] a very seri‐
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ous crime, one that not only has injured him by causing his
incarceration, but would have caused injury to other people
by the use of that drug. And it was my view that that was
the appropriate sentence to impose.” The lawyer came back
at the judge by repeating: “That would be true of all offend‐
ers charged just like him.” To which the judge replied: “I
don’t intend to engage in a debate with you today about the
sentence I imposed. … If you are not satisfied, you may take
an appeal.” And he did.
Under the regime of Booker, a judge can have his own pe‐
nal theory, as long as it is consistent with the sentencing fac‐
tors in 18 U.S.C. § 3553(a); and we can imagine a judge offer‐
ing a reasoned basis for sentencing heroin dealers at the top
of the applicable guidelines range. But neither in this case
nor, so far as we are able to discover, in any other case has
Judge Stiehl articulated such a theory. And while we cannot
find any recent sentences that he’s imposed on heroin deal‐
ers, we have found 14 sentences imposed by him on cocaine
dealers since 2010, and in only two did he impose the guide‐
lines maximum.
We reversed one of his cocaine sentences several months
ago, explaining that
the district court did not meaningfully explain why 97
months was an appropriate sentence for [the defend‐
ant]. The courtʹs summary assertion that it had “con‐
sidered all the factors of 18 U.S.C. § 3553(a)” is proce‐
durally insufficient. See, e.g., United States v. Cunning‐
ham, 429 F.3d 673, 679 (7th Cir. 2005). And the court’s
reference to the seriousness of drug crimes in general
did nothing to explain why, in the context of [the de‐
fendant’s] particular offense, the court settled on a sen‐
tence of 97 months. True, the judge expressed hope
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that, while incarcerated, [the defendant] would take
advantage of rehabilitation programs, but rehabilita‐
tive programming is an inappropriate basis for impos‐
ing a prison sentence. See 18 U.S.C. § 3582(a); Tapia v.
United States, 131 S. Ct. 2382, 2391 (2011). And, in any
event, the court does not appear to have relied on the
availability of rehabilitation to justify [the defend‐
ant’s] term of incarceration. In short, the court’s terse
remarks do not reflect “an individualized assessment
based on the facts presented,” Gall [v. United States, su‐
pra], 552 U.S. at 50; the record is simply too thin for
meaningful review.
United States v. Washington, 739 F.3d 1080, 1081–82 (7th Cir.
2014).
In fairness to the judge, until his contretemps with the
defendant’s lawyer over the 97‐month sentence that the
judge had decided to impose in this case, the sentencing
hearing had focused almost exclusively on the government’s
request for an above‐guidelines sentence of 180 months. The
focus was understandable. A prison term of that length—
nearly double the top of the guidelines range—was a heavy
lift for the government and was vigorously opposed by the
defense. It’s not surprising that the arguments for and
against the government’s recommendation consume nearly
40 pages of the 49‐page sentencing transcript. The defense
attorney’s argument was almost entirely concerned with de‐
feating the prosecutor’s request for 180 months. The attorney
did offer his own recommendation—a sentence at the low
end of the guidelines range—but this part of his argument
occupies less than a page of transcript.
The judge summarily rejected the government’s recom‐
mendation (and the government has not appealed that rejec‐
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tion), but said very little to justify a 97‐month sentence, and
what he did say was in the nature of a conclusion rather than
a reason. Perhaps he can be forgiven for being caught off
guard by the defense attorney’s question, everyone’s atten‐
tion having been focused up to then on whether 180 months
was an appropriate sentence. Still, the 97‐month sentence
was unexplained and therefore must be vacated and the case
remanded for resentencing. (The resentencing will be before
a different judge because Judge Stiehl has retired.)
REVERSED AND REMANDED.
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