USA v. Derrick Bell

Filing

Filed opinion of the court by Judge Bauer. AFFIRMED. William J. Bauer, Circuit Judge; Joel M. Flaum, Circuit Judge and Daniel A. Manion, Circuit Judge. [6916872-1] [6916872] [17-2307]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 17-2307
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DERRICK D. BELL, also known as
ROCK,
Defendant-Appellant.

Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 3:16-cr-50011-1 — Frederick J. Kapala, Judge.

ARGUED MARCH 29, 2018 — DECIDED APRIL 10, 2018

Before BAUER, FLAUM, and MANION, Circuit Judges.
BAUER, Circuit Judge. During the execution of a search
warrant on January 15, 2016, ATF agents found Derrick Bell in
possession of a .40 caliber pistol. Bell was charged with being
a felon in possession of a firearm on March 1, 2016, in violation

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of 18 U.S.C. § 922(g)(1), and on February 6, 2017, he pleaded
guilty pursuant to a plea agreement.
In the Presentence Investigation Report (PSR), the Probation Officer calculated Bell’s total offense level as 23, with a
criminal history category of VI, for a Sentencing Guideline
range of 92 to 115 months. The PSR stated that “the [G]uideline
range for a term of supervised release is 1 year to 3 years.” See
U.S.S.G. § 5D1.2(a)(2). The Probation Officer also filed a
separate sentencing recommendation, which provided a chart
breaking down the statutory and Guideline ranges for supervised release. Finally, the government filed a “Notice of
Agreement Regarding Supervised Release,” which stated that
the government recommended a term of supervised release
within the Guidelines range of one to three years.
The district court sentenced Bell to 98 months’ imprisonment, to be followed by three years of supervised release. On
appeal, Bell raises three procedural challenges to his sentence.
Since we conclude that the district court did not commit any
errors, we affirm.
I. DISCUSSION
A. Failure to Calculate the Guidelines Range for Supervised Release
Bell first argues that the district court procedurally erred
when it failed to explicitly make a Guidelines calculation for
his term of supervised release on the record. We review
procedural errors at sentencing de novo. United States v. Gibbs,
578 F.3d 694, 695 (7th Cir. 2009). However, we have previously
reviewed a district court’s failure to calculate the supervised

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release Guidelines range for plain error. United States v. Oliver,
873 F.3d 601, 610 (7th Cir. 2017). Even under de novo review, we
find no error.
The Supreme Court has said that “a district court should
begin all sentencing proceedings by correctly calculating the
applicable Guidelines range.” Gall v. United States, 552 U.S. 38,
49 (2007). Failing to calculate the Guidelines range is a “significant procedural error.” Id. at 51. While the Guidelines have
separate calculations for a custodial sentence and supervised
release, they both form the overall sentence. See United States
v. Kappes, 782 F.3d 828, 837 (7th Cir. 2015) (“Any term of
supervised release is considered part of the overall sentence.”).
However, we have previously held that “‘an explicit
announcement of the [G]uidelines recommendation’ for
supervised release, although helpful for purposes of appellate
review, is not required.” Oliver, 873 F.3d at 610 (quoting United
States v. Anderson, 604 F.3d 997, 1004 (7th Cir. 2010). “Rather,
the critical inquiry is whether the district court was aware of
and understood the Guidelines recommendation for supervised release.” Id. In examining whether the district court
understood the Guidelines calculation for supervised release,
we examine whether the court imposed a within-Guidelines
sentence, and whether the court explicitly referenced the PSR
during the sentencing. See id. at 610–11; Anderson, 604 F.3d at
1004.
In Gibbs, we remanded for resentencing because the district
court imposed a term of supervised release twice as long as the
Guidelines range, while only acknowledging the statutory
range. Gibbs, 578 F.3d at 695. Thus, we could not conclude “that

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the district court correctly calculated the advisory Guideline
range.” Id. at 695–96. However, the district court here, like in
Oliver and Anderson, imposed a term of supervised release
within the Guidelines range. See Oliver, 873 F.3d at 606;
Anderson, 604 F.3d at 1000. The court also made numerous
references to the PSR, the Probation Officer’s sentencing
recommendation, and the separately filed “Notice of Agreement Regarding Supervised Release,” all of which contained
the Guidelines calculation for supervised release. Moreover,
we are confident the court was aware of the contents of these
documents because it explicitly adopted the Guidelines
calculation contained in the PSR for the term of imprisonment,
as well as the agreed modifications to the PSR’s recommended
conditions of supervised release. Accordingly, the court did
not err in imposing a three-year term of supervised release
without making a specific Guidelines calculation on the record.
B. Consideration of Departure Provisions in the Sentencing Guidelines
Next, Bell argues that the district court procedurally erred
when it considered the Guidelines’ departure provisions as
“controlling authority” during its 18 U.S.C. § 3553(a) analysis.
Our review of the record does not support this conclusion.
When the Guidelines were mandatory, a district court
could impose a sentence outside the Guidelines range only
through the departure provisions. United States v. Brown, 732
F.3d 781, 786 (7th Cir. 2013). After the Guidelines became
advisory in United States v. Booker, 543 U.S. 220 (2005), the
departure provisions were rendered obsolete. United States v.
Lucas, 670 F.3d 784, 791 (7th Cir. 2012). However, we have

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stressed that “district courts can still take guidance from the
departure provisions … and apply them by way of analogy
when assessing the § 3553(a) factors.” Id. Accordingly, we have
never held that the departure provisions “are irrelevant to the
sentencing process.” United States v. Pankow, 884 F.3d 785, 794
(7th Cir. 2018). In fact, § 3553(a)(5) contemplates that a district
court will consider “any pertinent policy statements” contained
in the Guidelines.
During the district court’s § 3553(a) analysis of Bell’s
arguments in favor of a below-Guidelines sentence, the court
correctly relied on our precedent regarding the departure
provisions and policy statements. The court acknowledged that
while the formal departure analysis is obsolete, the departure
provisions could be used as “guidance” and applied “by way
of analogy.” As the court analyzed each of Bell’s mitigation
arguments in the course of its § 3553(a) analysis, it referenced,
“by way of analogy,” a particular policy statement regarding
specific offender characteristics. See, e.g., U.S.S.G. § 5H1.3
(mental and emotional conditions); § 5H1.6 (family ties and
responsibilities); § 5H1.12 (lack of guidance as a youth and
similar circumstances). The court did not treat the policy
statements as controlling authority; rather, it appropriately
considered them as part of the entire § 3553(a) analysis in
finding that a below-Guidelines sentence was not warranted.
C. Consideration of Bell’s History and Characteristics
Finally, Bell argues that the district court did not consider
his history and characteristics in their totality during the
§ 3553(a) analysis. Once again, our review of the record leads
us to conclude otherwise.

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The district court began its § 3553(a) analysis by noting
Bell’s arguments in mitigation: his difficult upbringing; his
supportive family and their circumstances; his history of
depression, a learning disability, and substance abuse; and his
remorse. The court also discussed arguments in aggravation:
Bell’s lengthy criminal history; his failure to comply with courtordered supervision; and his possession of a loaded gun. Each
of Bell’s arguments in mitigation were then dealt with thoroughly, in turn, with the court noting countervailing arguments in aggravation. The court concluded that “in sum,” none
of the arguments in mitigation warranted a below-Guidelines
sentence, although it would “give due mitigating consideration
to the points raised by the defense.” Clearly, the court considered Bell’s arguments in mitigation as a whole—it simply was
not persuaded they justified a below-Guidelines sentence.
II. CONCLUSION
For the foregoing reasons, the sentence is AFFIRMED.