United States v. Akins

427 F. App'x 534
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 31, 2011
DocketNo. 11-1303
StatusPublished
Cited by1 cases

This text of 427 F. App'x 534 (United States v. Akins) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Akins, 427 F. App'x 534 (7th Cir. 2011).

Opinion

ORDER

Timothy Akins twice sold heroin to an informant in May 2010. Agents then obtained a warrant to search his home. They found 19.5 grams of heroin, drug paraphernalia, a handgun, and cash. Akins was arrested and charged with possessing heroin with intent to distribute, 21 U.S.C. § 841(a)(1), and the government filed an enhancement information, which raised the maximum prison term for this offense to 30 years, id. §§ 841(b)(1)(C), 851. Akins pleaded guilty and was sentenced within the guidelines range to 188 months. On appeal Akins argues that the district court applied an impermissible presumption of reasonableness to a sentence within the guidelines range. He additionally contends that the court failed to consider his arguments in mitigation. Because the record does not support Akins’s claims of procedural error, we affirm the judgment.

At sentencing the district court concluded that Akins is a career offender, see U.S.S.G. § 4Bl.l(a), based on two Illinois convictions for a crime of violence and a third Illinois conviction for a controlled substance offense. Akins had pleaded guilty to robbery in 1992 and to aggravated discharge of a firearm in 1993. He served time and was on parole for both offenses when he violated the terms of his parole and was reimprisoned; the sentence for each conviction was fully discharged in 1996. Since that time Akins has been convicted of four drug offenses, as well as domestic battery, aggravated battery, trespass, and unlawful use of a weapon. Even apart from his status as a career offender, Akins’s extensive criminal history places him in Category VI. With his total offense level of 31, Akins faced an imprisonment range of 188 to 235 months.

The district court noted that it had reviewed a handwritten letter from Akins and the sentencing memorandum filed by his lawyer and then listened to both parties’ views about the appropriate sentence. Defense counsel argued for a prison term of 144 months on the premise that Akins’s convictions from 1992 and 1993 “barely counted as part of his criminal history because of their age. Without those convictions, said counsel, the career-offender guideline would not apply and Akins’s range would be 41 to 51 months. Counsel also observed that Akins’s statutory maxi[536]*536mum under § 841(b)(1)(C) and his corresponding guidelines range would have been lower if the government had not filed the § 851 enhancement, which, counsel argued, caused a sentencing disparity among Akins and other defendants convicted of drug crimes. The government replied that a sentence within the guidelines range was necessary to account for Akins’s extensive criminal history, but argued for a term at the bottom of that range.

After listening to the parties, the court explained its conclusion that a guidelines sentence was appropriate in this case:

Mr. Akins, the record that you have amassed is certainly an impressive one. That is your criminal history. Now, there’s no doubt that you have a criminal history number of points at 24. This is almost double a Category VI. Almost double. It’s 13, so that would be 26, you’re just two points off of a double Category VI.
Now, the guidelines are just that, guidelines for the sentencing judges. And the record cannot be ignored.
Normally we begin at the middle of the guideline range, go up further if there are aggravating factors, or if there are mitigating factors we go down. So we’re talking a spread here of 188 months to 235. That’s a 47 month spread. And the Government has asked for the minimum under the guidelines, 188. And Mr. Wilmouth on your behalf has asked for 144. That’s 44 months difference.
But we simply cannot ignore your background and the criminal history you have presented to us. It can’t be ignored.
So I’m going to sentence you to the minimum number under the guidelines, 188 months. And that is giving you credit for having entered a plea of guilty here. And not put the Government through the expense or the time, or the Court, to a trial.

The court imposed a sentence of 188 months, and in its written statement of reasons listed “punishment and deterrence” as further explanation.

Akins argues on appeal that the district court’s reference to starting “at the middle of the guidelines range” evidences that the court applied an impermissible presumption of reasonableness to that range. Additionally, Akins insists that the court failed to consider his contentions that the convictions making him a career offender are “stale” and that the § 851 enhancement created a sentencing disparity between him and other similar defendants. Neither of these appellate claims is substantiated by the record.

As to the first, the record as a whole suggests that the district judge followed the Supreme Court’s admonishment that “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, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The district court “must first calculate the Guidelines range, and then consider what sentence is appropriate for the individual defendant in light of the statutory sentencing factors, 18 U.S.C. § 3553(a).” Nelson v. United States, 555 U.S. 350, 129 S.Ct. 890, 891-92, 172 L.Ed.2d 719 (2009). In making this determination, a district court “may not presume that the guidelines range is reasonable,” Gall, 552 U.S. at 49-50, 128 S.Ct. 586, but “the judge will use the Guidelines range as the starting point in the analysis,” Freeman v. United States, — U.S. -, -, 131 S.Ct. 2685, 2691, 180 L.Ed.2d 519 (2011).

Despite the district court’s statement that “[njormally we begin at the middle of the guideline range,” the rest of the tran[537]*537script shows that the court did not give undue weight to the guidelines. The court stated that it understood “the guidelines are just that, guidelines for the sentencing judges.” After calculating the imprisonment range, the court addressed Akins’s request for a sentence that was 44 months below the low end. The court expressed concern about the extent of Akins’s criminal history; if anything, a Category VI criminal history understates Akins’s past crimes, since he had amassed almost double the criminal history points needed to reach Category VI. The court concluded that “we simply cannot ignore your background and the criminal history you have presented to us,” and then imposed a sentence at the bottom of the range. This explanation shows that the court did not mechanically start in the middle of the range — if it had, the court would have increased Akins’s sentence from the midpoint based on his extensive criminal history. Instead, the court simply showed awareness of the guidelines range as it weighed but rejected Akins’s arguments for a sentence below that range. See United States v. Kirkpatrick, 589 F.3d 414, 416 (7th Cir.2009) (explaining that, before district court exercises discretion to reject Sentencing Commission’s recommendation, “the judge should know what that recommendation is, and thus how [defendant’s] sentence will compare with the punishment of similar persons elsewhere”).

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Bluebook (online)
427 F. App'x 534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-akins-ca7-2011.