USA v. Patrick Armand

Filing

Filed opinion of the court by Judge Bauer. AFFIRMED. William J. Bauer, Circuit Judge; Richard A. Posner, Circuit Judge and David F. Hamilton, Circuit Judge. [6842069-1] [6842069] [16-2991]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 16-2991
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PATRICK ARMAND,
Defendant-Appellant.

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CR 400 — James B. Zagel, Judge.

ARGUED APRIL 19, 2017 — DECIDED MAY 18, 2017

Before BAUER, POSNER, and HAMILTON, Circuit Judges.
BAUER, Circuit Judge. Patrick Armand pleaded guilty to
distributing crack and powder cocaine, in violation of 21 U.S.C.
§ 841(a)(1), and was sentenced to 108 months' imprisonment,
and a five-year term of supervised release subject to certain
special conditions. On appeal we reversed, finding that the
district court imposed unconstitutionally vague conditions of

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supervised release and failed to justify the discretionary
conditions and the length of supervision. We remanded the
case for a full resentencing. See United States v. Armand, 638 F.
App’x 504 (7th Cir. 2016). Armand was resentenced to 104
months’ imprisonment and a three-year term of supervised
release. He again appeals, contending that the district court
committed a host of procedural and substantive errors. For the
reasons that follow, we affirm.
I. BACKGROUND
We assume familiarity with the facts as noted in our earlier
order and add only what we consider necessary for resolving
the present appeal. Prior to Armand’s original sentencing, the
probation officer initially calculated a Guidelines range of 100
to 125 months using the 2013 United States Sentencing Commission Guidelines, based on a total offense level of 25 and a
criminal-history category of V. However, the parties later
agreed that Amendment 782 applied, see U.S.S.G. § 2D1.1,
amend. 782, which decreased the total offense level to 23 with
the Guidelines range of 84 to 105 months.
At his original sentencing hearing, the court accepted the
probation officer’s revised Guidelines range calculation.
Armand acknowledged multiple times during the hearing that
the applicable Guidelines range was 84 to 105 months. He
contended that the court should depart downward to impose
a sentence that would apply if the crack and powder cocaine
Guidelines reflected a one-to-one ratio, rather than the
eighteen-to-one ratio currently used; the court declined to do
so. Ultimately, the court imposed a sentence of 108 months’
imprisonment and five years of supervised release.

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On remand, the government’s resentencing memorandum
calculated the Guidelines range as 84 to 105 months based
upon the November 2015 Guidelines. Armand’s resentencing
memorandum did not dispute the applicable Guidelines range,
but reiterated his argument regarding the sentencing disparity
between crack and powder cocaine. He also raised arguments
regarding the length and proposed conditions of his supervised release, an issue he does not raise in this appeal. Finally,
he contended that the district court failed to consider mitigating factors, such as his background and mental health issues.
At the resentencing hearing, Armand’s counsel reiterated
his mitigation arguments, and also contended that his age put
him at a lower risk for recidivism. His counsel also highlighted
affirmative steps he had taken in prison to improve himself,
such as enrolling in classes related to employment, substance
abuse, and anger management. Finally, his counsel asked the
court to depart downward from the crack cocaine Guidelines
due to the disparity with powder cocaine Guidelines. In
response, the government challenged the correlation between
Armand’s long criminal history and his unsubstantiated claim
of mental illness. It also rejected his contention that he presented a low risk of recidivism.
The court discussed the sentencing factors set forth in 18
U.S.C. § 3553(a). Specifically, the court addressed Armand’s
history and characteristics, as well as the need for the sentence
imposed to afford adequate deterrence to criminal conduct,
promote respect for the law, and provide correctional treatment. Prior to imposing Armand’s sentence, the government
stated that the applicable Guidelines range was 84 to 105
months, and that Armand’s vacated sentence was 108 months.

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The court sentenced Armand to 104 months’ imprisonment
and three years of supervised release, explaining that it was
reducing his sentence by a few months in recognition of the
effort Armand undertook to improve his life while imprisoned.
The court addressed Armand’s mitigation arguments,
expressing skepticism that mental health treatment and his age
would lower his risk of recidivism. The court also stated that
its position on the crack cocaine Guidelines had not changed
since the original sentencing hearing, and declined to decrease
the ratio. The court then confirmed that the applicable Guidelines range was 84 to 105 months. Armand’s counsel acknowledged that the court had addressed all his principal mitigation
arguments. The court then entered final judgment, and
Armand timely appealed.
II. DISCUSSION
Armand contends that the district court failed to calculate
the advisory Guidelines range and treated the Guidelines as
presumptively reasonable. Finally, he argues that the court
gave inadequate consideration to his arguments in mitigation.
We address each argument in turn.
Because Armand did not object to the claimed error at the
sentencing hearing, plain error is the standard of review. To
demonstrate plain error, a defendant must show that (1) the
court committed error; (2) it was plain; (3) it affected the
defendant’s “substantial rights”; and (4) the court “should
exercise its discretion to correct the error because it seriously
affected the fairness, integrity, or public reputation of the
judicial proceedings.” United States v. Durham, 645 F.3d 883, 890
(7th Cir. 2011) (citation omitted).

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The Supreme Court recently set forth the procedure
sentencing courts must employ in Molina-Martinez v. United
States:
At the outset of the sentencing proceedings, the
district court must determine the applicable
Guidelines range. To do so, the court considers
the presentence report as well as any objections
the parties might have. The court then entertains
the parties’ arguments regarding an appropriate
sentence, including whether the sentence should
be within the Guidelines range or not. Although
the district court has discretion to depart from
the Guidelines, the court “must consult those
Guidelines and take them into account when
sentencing.”
136 S. Ct. 1338, 1342 (2016) (citations omitted).
At Armand’s original sentencing, the court accepted the
probation officer’s calculation of Armand’s base offense level
to be 23 with a criminal history of category V, resulting in a
Guidelines range of 84 to 105 months. The court confirmed the
parties’ agreement with the revised calculation and applicable
Guidelines range. Armand acknowledged that the applicable
Guidelines range was 84 to 105 months in his sentencing
memorandum and multiple times during sentencing.
At resentencing, the court confirmed twice that the parties
were still in agreement that the applicable Guidelines range
was 84 to 105 months.

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The government argues that under these circumstances,
there was no need for the court to rehash the calculations set
forth in the supplemental PSR, which the parties agreed to
during the original sentencing and on remand. We agree. We
have held that “the record that was compiled during a prior
sentencing hearing is still valid, and the district court at a later
sentencing hearing may continue to rely on it.” United States v.
Mobley, 833 F.3d 797, 802 (7th Cir. 2016). The record demonstrates that the parties and the court were in agreement as to
the appropriate Guidelines range since December 2014. It is
clear that the district judge relied on the record from the
previous sentencing hearing, as well as the probation officer’s
recommendation. Absent an objection from Armand, the court
did not err in declining to recalculate the Guidelines.
Seeking to avoid this result, Armand argues that the court
also erred by failing to determine the quantity of drugs
involved. This argument suffers from the same defect as the
previous one. While we have found that sentencing courts
must make an explicit drug-quantity finding, we have also
held that “a court’s adoption of the PSR findings would be
enough to satisfy us that the district court rendered a specific
determination of the amount of drugs involved.” United States
v. Claybrooks, 729 F.3d 699, 706 (7th Cir. 2013) (citation omitted).
Here, during Armand’s original sentencing the court
accepted the probation officer’s revised calculation. As discussed above, neither party challenged this finding at any
point. The court was entitled to rely upon the record established at the original sentencing regarding the applicable
Guidelines range.

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Armand next argues that the district court erred by treating
the Sentencing Guidelines as presumptively reasonable. A
district court “may not presume that a within-Guidelines
sentence is reasonable.” United States v. Johnson, 635 F.3d 983,
988 (7th Cir. 2011) (citation omitted). To guard against this
presumption, a reviewing court “must be able to infer that the
court, in exercising its discretion, determined that the sentence
conformed with the parsimony principle of § 3553(a)[.]” We
have held that “when statements made during sentencing call
into question whether the district court appreciated the
advisory nature of the Guidelines, we can resolve doubts in
favor of the court when its application of the § 3553(a) factors
assures us that the sentence was imposed in conformity with
the parsimony clause.” Id.
Armand relies on two comments made by the court as
evidence of an improper presumption of reasonableness. First,
the court confirmed the applicable Guidelines range was 84 to
105 months just before it sentenced Armand to a withinGuidelines range sentence of 104 months’ imprisonment.
Secondly, the court referenced making a slight adjustment to
Armand’s sentence on remand based on the relevant “bracket”
of time. Armand contends that these stray remarks are evidence that the court treated the Guidelines range as presumptively reasonable. We do not agree.
The Supreme Court has told sentencing courts that while
they may not presume that the Guidelines range is reasonable,
“the Guidelines should be the starting point and the initial
benchmark” when calculating a term of imprisonment. Gall v.
United States, 552 U.S. 38, 49 (2007). We view the sentencing
court’s comments as simply establishing the initial benchmark

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before imposing a sentenced tailored to Armand. We are
confident that the court tailored its sentence to Armand’s
specific circumstances based on its discussion of the § 3553(a)
factors. The court discussed Armand’s history and characteristics, as well as the need for the sentence imposed to afford
adequate deterrence to criminal conduct, promote respect for
the law, and provide correctional treatment. This discussion is
sufficient to comply with the parsimony provision, and to
demonstrate that the court did not presume the Guidelines
range reasonable.
Briefly, we address Armand’s related argument that the
court did not discuss sufficiently the § 3553(a) factors. We have
found that “[i]t is simply not required that the sentencing judge
tick off every possible sentencing factor … to find that the
sentence was proper.” United States v. Collins, 640 F.3d 265, 271
(7th Cir. 2011) (citation omitted). “Indeed, sentencing judges
must only demonstrate meaningful consideration of § 3553(a)
factors.” United States v. Paige, 611 F.3d 397, 398 (7th Cir. 2010)
(citation omitted). Based on the foregoing discussion, we
conclude that the court has shown a “meaningful consideration” of the sentencing factors.
Armand’s final procedural argument is that the court failed
to give meaningful consideration to his arguments in mitigation of his sentence. Specifically, he contends that his age and
intensive mental health treatment would reduce his risk of
recidivism. The government counters that Armand has waived
this argument on appeal. We agree.
A district court must consider all of a defendant’s principal,
non-frivolous arguments in sentencing. United States v. Rosales,

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813 F.3d 634, 637 (7th Cir. 2016). We encourage sentencing
courts to ask defense counsel whether he or she is satisfied
that the court has adequately addressed the main arguments
in mitigation and that if counsel replies in the affirmative, a
contention on appeal that the district court failed to address a
principal argument in mitigation would be deemed waived. In
this case, the district court followed this practice, and
Armand’s counsel replied in the affirmative.
Finding the court’s sentencing procedures sound, we turn
to the substantive reasonableness of Armand’s sentence. We
can dispense with these arguments in short order. Armand
essentially recycles his procedural arguments, contending that
the district court failed to consider both his principal mitigation
arguments and the § 3553(a) sentencing factors. We have
already concluded that Armand waived his first argument, and
we rejected his second argument. We are entitled to presume
Armand’s sentence within the Guidelines range is reasonable.
Rita v. United States, 551 U.S. 338, 347 (2007). Armand has not
offered any persuasive justification to disrupt that presumption. See, e.g., United States v. Campos, 541 F.3d 735, 750–51 (7th
Cir. 2008) (citation omitted). Therefore, we find that Armand’s
sentence is substantively reasonable.
III. CONCLUSION
We AFFIRM Armand’s sentence.