Case Information
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Before F LAUM M ANION B ARRETT , Circuit Judges . F LAUM Circuit Judge . Gregory pleaded guilty unlawful by felon. announced within months’ im prisonment. On appeal, argues commi tt ed procedural error considering request variance given overrepresented seriousness ense. For reasons below, we rm.
I. Background On November 29, 2017, while police were on vehicle patrol Rock Island, Illinois, they maneuvered behind a white Chevrolet Impala and observed car accelerate and come to an abrupt stop. Then, police saw Terronez exit car run through a residential neighborhood. After a foot chase, Terronez surrendered police. He told o ffi cers he ran because believed he had an outstanding arrest warrant. The police recovered a fi rearm, Terronez confessed po lice threw gun while running. one count indict ment charged Terronez unlawful fi rearm as felon violation U.S.C. § 922(g)(1). On May 16, Terronez indicated his intent plead guilty, June accepted plea. Probation O ffi ce led Presentence
vestigation Report (“PSR”) calculated Sen tencing range. Since had two Illinois tra ffi cking convictions, each which subjected him over year prison, violation § 922(g) was “subse quent sustaining least two felony convictions con trolled substance ense,” as result, o ff ense level was 24. U.S.S.G. § 2K2.1(a)(2); see id. § 4B1.2(b) (de ning “controlled ense” tra cking ense “punishable imprisonment term exceeding year”). PSR suggested four level enhancement cause had “obliterated serial number,” id. 2K2.1(b)(4)(B), three level reduction accepted responsibility, id. 3E1.1. As such, total 25. ‐ criminal history category VI he ‐ ceived criminal history points for two prior drug tra ck ‐ ing convictions, as well as two drug convictions, an aggravated assault conviction, and two driving on a sus ‐ pended license convictions. Combining a total of and a criminal history category of VI, while accounting 922(g)’s ten ‐ year statutory maximum, Guidelines rec ‐ ommended a ‐ ‐ month term imprisonment. Terro ‐ nez not object PSR’s Guidelines calculation, he led a sentencing memorandum seeking a below ‐ Guidelines sentence.
On September held a sentencing hear ‐ ing. government asked within Guidelines sentence, noting resumed selling drugs upon release prison May and had lengthy criminal history, tory abuse, and self reported anger issues. It highlighted inherent danger posed by dealer pos sessing rearm. requested month sentence. As relevant here, he argued “all prior controlled sub stance enses equal though they are treated equally sentencing guidelines.” He emphasized had no “record violence or record using rearms,” prior enses were “medium level” “did con cern use weapon any violence.” Therefore, serted “his characteristics show … [he] threat weapon perhaps typical person with two controlled substances enses would be.” adopted PSR calculation dicated would its recom mendation, parties’ memoranda, parties’ arguments hearing, U.S.C. factors. The then explained its concern that Terronez’s posses sion of fi rearm, given drug convictions, dan gerous: “The mixture of drugs[,] … even smaller amounts your Rock Island cases seem to be, [and] possessing … guns is danger to you, others drug trade, … public ….” acknowledged, but found unavail ing, argument that deserved lower due to lack of violent past:
I recognize that you have limited of vi olence … I’m considering whether you do or not, to tell you truth. And I realize that you said to me that you’re violent per son, I don’t have reason to doubt that except there is really only reason possess that trade either small dealing or large dealing. And is some point you’re going use it, whether you believe you’re protecting yourself whether you are embroiled some kind dispute. interrupted, stating “I would never use arm.” responded:
There is just no basis possessing it if you weren’t going use it. You prohibited from using starters. And my review your history, that’s reasonable inference be drawn…. I appreciate request months [defense counsel], I don’t con sider be request out line may justi ed some gun cases all gun cases aren’t same.
Then, the issued the sentence:
I think under the circumstances, when all characteristics evaluated: the nature and cir cumstances of the ense; the and char acteristics of you; the need for the sentence to ect the seriousness of the ense; promote respect the law; provide just punishment; af ford adequate deterrence criminal conduct, which applies in your case; protect the public from further crimes, which apply your case; all of them apply your case; as well as providing you with educational voca tional training recommended, I believe sen tence months the Bureau Prisons appropriate sentence. So it will months. At conclusion hearing, asked defense counsel if it “addressed all objections, factors, oth erwise arguments you believe should have been made Mr. Terronez’s behalf.” Defense counsel said “didn’t hear Court address arguments variance guideline were memo,” including “that ense overstated seriousness Mr. convictions were vi olent.” response, stated, “Well, I believe I did address them maybe speci cally. I factor them your arguments appreciated your arguments said some circumstances maybe variance *6 6 18 3169 months might be appropriate not this case.” [1] This ap ‐ peal followed.
II. Discussion sentencing court must address defendant’s nonfrivo ‐ lous mitigation arguments. Rita v. United States , 551 U.S. 338, 357 (2007); see United States v. Kappes , 782 F.3d 828, 864 (7th Cir. 2015). explanation need not be exhaustive. Kappes , 782 F.3d at 864. Indeed, may consider mitigation ar ‐ guments “implicitly imprecisely.” United States v. Davis , 764 F.3d 690, 694 (7th Cir. 2014) (quoting United States v. Spiller , 732 F.3d 767, 769 (7th Cir. 2013)). short, explana tion su ces so long it makes clear reviewing “that judge [gave] meaningful consideration section factors parties’ arguments de termining how long defendant’s sentence should be.” Kappes , 782 F.3d at 864 (quoting United States v. Schmi tz , 717 F.3d 536, (7th Cir. 2013)).
Often, defendant’s mitigation argument “takes form challenge Guidelines themselves.” United States v. Rosales , F.3d (7th Cir. 2016). Of course, after United States v. Booker U.S. (2005), advisory. Still, they “re ect rough approximation sen tences might achieve 3553(a)’s objectives.” Kimbrough U.S. (2007) (quoting Rita U.S. ‐ 3169 7 350). Thus, district may “disagree either with a partic ‐ ular provision Sentencing Guidelines or sentencing range that results from application Guidelines as whole … impose non Guidelines sentence that, in [its] judgment, is more consistent statutory sentencing factors set out in U.S.C. § 3553(a).” Rosales , F.3d at (citations omi tt ed); see Corner , F.3d (7th Cir. 2010) (en banc) (“[D]istrict judges at liberty reject Guideline policy grounds—though they must act reasonably when using power.”). defendant can seek downward variance Guidelines arguing, example, do “re fl ect § con siderations,” “re ect unsound judgment,” “do treat certain defendant characteristics in proper way.” Rita U.S. at 357. While “may pass over silence blanket policy challenge” Guidelines, must address nonfrivolous “as applied challenge.” Rosales F.3d at 637–38. We review court’s sentencing proce dure, including whether adequately explained its responded mitigation arguments, de novo. Kappes F.3d 864.
There no dispute PSR properly calculated Ter ronez’s more speci cally, properly ap plied 2K2.1(a)(2) determine base ense level 24. commi tt ed instant ense after sustaining two “controlled ense” convic tions; noted above, has two felony tra cking con victions Illinois, each which subjected him term imprisonment greater than year. sought downward variance, however, arguing 2K2.1(a)(2)’s creased resulted greater than necessary range. He emphasized predicate felony controlled substance o ff enses involved only moderate amounts cocaine and did not include any violence, threats violence, or the presence rearms. Additionally, he stressed had never been charged with using or possessing a rearm. He therefore claimed did not present a threat with weapon. In other words, maintained § 2K2.1(a)(2) the resulting did not treat personal characteristics fairly, did not ect the § factors, did result sound judgment. theory relied almost entirely on the court’s rea soning Fogle F. Supp. 2d (E.D. Wis. 2010). that case, like here, the defendant violated § 922(g) was subject to increased base o ff ense level under § 2K2.1(a) due prior felony controlled ense conviction. Id. at 1017. But the defendant’s predicate conviction “a relatively minor ense involving no weap ons or violence,” court imposed below sen tence. Id. court explained 2K2.1(a) “appears rely on theory level should increased propor tionate perceived threat felon poses with gun,” questioned why controlled substances ense conviction— which “need involve violence, weapons, sort ag gressive behavior”—should “denote greater threat with gun.” Id. Therefore, court held where “the increased … based minor, cases, 2K2.1(a) may overstate risk defendant felon poses with gun.” Id. 1018.
On appeal, insists failed adequately respond concern. He claims while “district considered general threat associated pos sessing distributing drugs, ‐ consider whether Guidelines’ resulted in sentence greater than necessary given Terronez’s history characteristics.” Rather, according Terronez, court only considered “factors that present for defendant who is convicted possessing subsequent sus ‐ taining conviction controlled ense.” We disagree. court adequately performed required “individu
alized” inquiry, see United States v. Miranda F.3d 785, (7th Cir. 2007), appropriately addressed Terronez’s miti gation argument. explaining sentence, court dis cussed Terronez’s criminal history; speci cally, it emphasized was recently released prison after fourth ‐ related conviction. court expressly acknowledged Terronez’s contention that should be entitled below based “limited history violence” fact “may not be major dealer,” it agreed that some felon cases, downward variance might justi ed. Yet court determined, by ap plying factors Terronez’s unique circum stances, this those cases.
While could have engaged pre cise argument more detail—the reference Fogle consider Sentencing Commission’s motivation creating 2K2.1(a)—a need “delve into guideline so [it] can satisfy [it]self process produced it was adequate produce good guideline.” United States v. Moreno Padilla F.3d (7th Cir. 2010) (alterations original) (quoting Aguilar Huerta F.3d (7th Cir. 2009)). And stating “not considering whether” had “limited violence,” the court implicitly re jected the notion 2K2.1(a)(2)’s higher improper based the fact did have violent history, instead endorsing the reasoning behind the Guideline. In other words, the court did believe 2K2.1(a) ects an “unsound judgment,” Rita U.S. at when applied individuals without violent past. Rather, the court concluded the Sentencing Commission made prudent policy decision. As court explained, combination drugs gun possession is danger defendant, people drug trade, “most important,” public “there is really only reason possess [a] trade either small dealing large dealing[:] [T]o use it.” sum, especially given imposed within sentence, its explanation why lieve overstated seriousness Terronez’s felon conviction is su ffi cient. See Kappes F.3d (“[L]ess explanation [in response defendant’s argument mitigation] typically needed when sen tences within advisory guidelines range.” (quoting Curby F.3d (7th Cir. 2010) (per curiam))). We conclude adequately addressed miti gation argument rm month sentence.
III. Conclusion
For foregoing reasons, we FFIRM .
[1] explained why did find persuasive Ter ronez’s arguments should receive below cause know serial number obliterated Guide lines double counted felony convictions. does ap peal court’s rejection those arguments.