UNITED STATES of America, Plaintiff-Appellee, v. Richard C. WURZINGER, Defendant-Appellant.
No. 05-3803.
United States Court of Appeals, Seventh Circuit.
Decided Oct. 30, 2006.
Rehearing and Suggestion for Rehearing En Banc Denied Nov. 29, 2006.
467 F.3d 649
Argued Sept. 8, 2006.
Richard H. Parsons, Kent V. Andersson (argued), Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.
Before CUDAHY, EASTERBROOK, and MANION, Circuit Judges.
CUDAHY, Circuit Judge.
Richard Wurzinger, age fifty-eight, was sentenced to 262 months in prison, the longest sentence within the range indicated by the Sentencing Guidelines for his role at the center of a conspiracy to manufacture methamphetamine. Given his age and his failing health, he will likely die in prison. He appeals his sentence, arguing that the district court did not follow proper sentencing procedure and that his sentence is unreasonably long. We affirm.
Wurzinger first used methamphetamine in the summer of 2000, when he was fifty-two years old. Two years later he arranged to have Justin Rzentkowski teach him and his daughter-in-law, Colleen Wurzinger, how to move on to manufacture the drug themselves. Their first attempt burned down Colleen‘s barn, but Wurzinger and Colleen were soon “cooking” methamphetamine regularly. Over the next two years Wurzinger was at the center of a loose methamphetamine manufacturing conspiracy, whose members were primarily his family—his daughter-in-law Colleen, his wife Penny Wurzinger, his daughter Kole Lipski and her husband Jeff Lipski. The co-conspirators occupied various roles. Jeff Lipski distributed Wurzinger‘s methamphetamine, both the Lipskis and Colleen helped Wurzinger cook the stuff at various times and almost everyone collected Sudafed and other over-the-counter drugs containing pseudoephedrine, a chemical used in the production of methamphetamine.
Police arrested Wurzinger on December 8, 2004. On July 13, 2005, he pleaded guilty to one count of conspiring to manufacture a controlled substance prohibited by
Wurzinger now appeals, arguing both that the district court improperly presumed that an appropriate sentence for him falls within the guidelines range and that his sentence is unreasonably long. The first claim stumbles coming out of the gate. Just prior to oral argument, this court decided that a presumption in favor of a guidelines sentence is appropriate and that a court need only consider a non-guidelines sentence when a defendant provides “cogent reasons” for one. United States v. Hankton, 463 F.3d 626, 629 (7th Cir. 2006).
This leaves Wurzinger‘s claim that his sentence is unreasonably long in light of the sentencing goals and factors enumerated in
His strongest argument that his sentence is unreasonable is that his diabetes will kill him before he is free. Wurzinger was diagnosed with diabetes forty years ago; it is severe enough to require medication. He does not claim that the federal prison system will be unable to treat his condition,1 but he does argue that it leaves him with a life expectancy of “116.4 to 176.4 months,” well short of his sentence‘s duration. His life expectancy statistics seem to be flawed,2 but the government
There is a worthy tradition that death in prison is not to be ordered lightly, and the probability that a convict will not live out his sentence should certainly give pause to a sentencing court. United States v. Crickon, 240 F.3d 652, 656 (7th Cir. 2001); United States v. Jackson, 835 F.2d 1195, 1200 (7th Cir. 1988) (Posner, J., concurring); United States v. Watson, 385 F.Supp.2d 534, 538 (E.D.Pa. 2005); United States v. Gigante, 989 F.Supp. 436, 441-43 (E.D.N.Y. 1998); United States v. Baron, 914 F.Supp. 660, 662 (D.Mass. 1995); United States v. Maltese, No. 90 CR 87-19, 1993 WL 222350, at *10 (N.D.Ill. June 22, 1993); United States v. Garrett, 712 F.Supp. 1327, 1335 (N.D.Ill. 1989); United States v. Gomez, 742 F.Supp. 407, 411-12 (E.D.Mich. 1989); see also Kathleen Dean Moore, Pardons: Justice, Mercy, and the Public Interest 166-67, 173-74 (1989) (describing the tradition of “deathbed pardons“). Wurzinger‘s key argument is not the nonstarter that “age per se is a mitigating factor” (though he does attempt that argument as well), United States v. Bullion, 466 F.3d 574, 576 (7th Cir. 2006), but that a sentence of death in prison is notably harsher than a sentence that stops even a short period before. Death is by universal consensus a uniquely traumatic experience, and prison often deprives defendants of the ability to be with their families or to otherwise control the circumstances of death. John A. Beck, Compassionate Release from New York State Prisons: Why Are So Few Getting Out? 27 J.L. Med. & Ethics 216, 223-24 (1999); Jason S. Ornduff, Releasing the Elderly Inmate: A Solution to Prison Overcrowding, 4 Elder L.J. 173, 192 (1996); see also Sasha Abramsky, Prisoner‘s Dilemma: Lifers, Legal Aff., Apr. 2004, at 40, 41, 43 (describing death at Angola Prison in Louisiana). A sentence that forces this experience on a prisoner is quantitatively more severe than a sentence that does not consume the entirety of a defendant‘s life, inflicting greater punishment and creating a stronger deterrent effect. See, e.g., United States v. Patriarca, 948 F.2d 789, 793 (1st Cir. 1991) (holding that an increase in penalty that ensured death in prison would likely deter bail jumping); Elizabeth Rapaport, Retribution and Redemption in the Operation of Executive Clemency, 74 Chi.-Kent L.Rev. 1501, 1521 (2000). Additionally, of course, the physical constraints of a dying illness will incapacitate some defendants as effectively as imprisonment, making such a long sentence unnecessary. Beck, supra, at 224.
But to the extent that Wurzinger seeks a sentence that will expire before he is likely to, he argues for a sentence below
As this court recently observed in affirming the above-guidelines, likely de facto life sentence of another fifty-eight year old insulin-dependent diabetic, this type of argument rarely succeeds. Bullion, 466 F.3d at 576-77. While the present case is a less compelling candidate for a severe sentence—though he shared Wurzinger‘s age and disease, Bullion was additionally a serial armed robber, serial kidnapper and serial rapist sentenced for the attempted shotgun-murder of the person he somehow persuaded to marry him, id. at 575-76—Wurzinger‘s argument is another failure. The district court reasonably concluded that Wurzinger‘s sentence was necessary to punish his crime of not merely manufacturing methamphetamine, but corrupting his extended family to manufacture most of the methamphetamine available in his region of Wisconsin. (See, e.g., Sentencing Tr. at 16 (“[I]f indeed he is in ill health, you can think of the thousands that he may have affected in his major drug dealing who are perhaps in that same position were it not for him being on the drug scene.“).) The court also reasonably thought a long sentence was necessary to keep Wurzinger from cooking more methamphetamine. Wurzinger argues that older offenders are generally less likely to commit crime, but as we recently observed what matters is whether the court reasonably concluded that Wurzinger in particular is a risk for further crimes. Bullion, 466 F.3d at 577. Here it was not unreasonable to think Wurzinger had an above-average tendency to crime in his old age; he was fifty-two when he embarked upon what is to all appearances his most serious offense.
While we say nothing about whether a lower sentence would have been equally reasonable, age and illness do not, in the face of the circumstances presented here, make Wurzinger‘s sentence unreasonable. While some of the district court‘s comments were a mite strange—most notably the claim that Wurzinger, at fifty-eight, was “a pretty young guy” (Sentencing Tr. at 15)—on the whole, it offered a reasonable explanation of why Wurzinger‘s conduct justified a sentence at the top of the recommended guidelines range.
Wurzinger urges three additional grounds for a shorter sentence, none of which come as near as his age and illness to outweighing the need to punish and incapacitate him. The first is that it was unreasonable to sentence him to 262 months when some of his co-conspirators prosecuted in Wisconsin state court received sentences far shorter than what they would probably have received in federal court. He focuses on his daughter-in-law Colleen, sentenced to thirty-six months in state prison for conduct he argues was not significantly different from his own under the Sentencing Guidelines.
Courts should reduce “unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,”
Next, Wurzinger argues that a shorter sentence was required because his criminal history has been largely caused by alcoholism and methamphetamine addiction. Substance dependency was a discouraged ground for departure,
Finally, Wurzinger argues that his sentence was unreasonable because of the “gross disparity” between it and any of the prior sentences he received. The disparity is reasonable: Wurzinger has committed a crime more serious than any of those he has previously committed, such as burglarizing a grocery store for a few cases of beer or drunkenly firing a gun. In fact, though Wurzinger‘s argument is made in terms of length of sentence rather than seriousness of prior crimes, it is arguably a disguised disagreement with the Sentencing Commission‘s determination regarding the seriousness of his criminal history and the implications of that history for an appropriate sentence. United States v. Gonzalez, 462 F.3d 754, 755 (7th Cir. 2006).
Wurzinger could still argue that a sentence shorter than the guidelines would recommend is required in his case, and he cites cases dealing with the guidelines policy statement authorizing downward departures when a criminal history calculation overstates the seriousness of a defendant‘s past crimes. See
The penalty imposed upon Wurzinger was harsh but his crime was very serious. We do not encourage de facto life sentences
CUDAHY
CIRCUIT JUDGE