United States v. David Curby

• Court: Court of Appeals for the Seventh Circuit
• Decided: February 26, 2010
• Docket: 09-2853
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit

No. 09-2853

U NITED S TATES OF A MERICA, Plaintiff-Appellee, v.

D AVID C URBY, Defendant-Appellant.

Appeal from the United States District Court for the Western District of Wisconsin. No. 3:08-cr-00173-JTM-01—James T. Moody, Judge.

A RGUED JANUARY 26, 2010—D ECIDED F EBRUARY 26, 2010

Before B AUER, P OSNER and K ANNE, Circuit Judges. P ER C URIAM. David Curby pleaded guilty to distrib- uting cocaine, 21 U.S.C. § 841(a)(1), and was sentenced to 151 months’ imprisonment, the bottom of the guidelines range. He appeals only his sentence and argues that the district court failed to adequately evaluate his principal argument in mitigation. We reject this contention and affirm the judgment. Curby’s conviction stems from a number of cocaine sales to an informant in February 2008. After he was 2 No. 09-2853

indicted on three counts of distributing cocaine, he pleaded guilty to the third count, which corresponded to the largest of the buys at approximately 2 ounces. This was not Curby’s first conviction. As detailed in the presentence investigation report, Curby, who was 41 years old at the time of sentencing, has an extensive criminal history including convictions for burglary in 1987 and 1991; a conviction for theft in 2001; convictions in 1991, 1995, and 1998 for possessing or trafficking marijuana; a 1995 conviction for evading a police officer; and a 2006 conviction for DUI. He was on state extended supervi- sion—he was considered a “maximum supervision” case—when he committed this federal crime, which resulted in revocation and further imprisonment in state custody. In addition, the addendum to the presentence report details a history of non-compliance with super- vision and the terms of probation as a result of Curby “using, possessing and delivering marijuana . . . using cocaine, failing to report to his probation agent, lying to his probation agent, providing a false name to law en- forcement and violating no-contact orders.” Curby has also failed to comply with programs offered as alter- natives to revocation. The probation officer concluded that Curby qualified as a career offender based on his convictions for distributing marijuana, see U.S.S.G. § 4B1.1, and recommended a guidelines imprisonment range of 151 to 188 months. Curby did not object to the presentence report, but he argued that mental illness and the role it played in his criminal activity warranted a below-range sentence of No. 09-2853 3

115 months. In addressing Curby’s mental health in the presentence report, the probation officer discusses allegations by Curby that he was diagnosed as bipolar while in the custody of the Wisconsin Department of Corrections and was sexually abused as a child by two uncles and an older neighbor boy. At sentencing, Curby explained that his bipolar disorder and the sexual abuse and untreated trauma from that abuse were the underlying causes of his criminal activity and social maladjustment. In support of his argument, he sub- mitted a sentencing memorandum as well as a two- page report from a psychologist, Thomas Moran, who evaluated him at the request of his attorney. The psychologist met with Curby once and reviewed “over 75 pages of Department of Corrections logs, Alcohol and Other Drug Abuse (AODA) reports, psychological assess- ments, and psychiatric reports.” The psychologist con- cluded that Curby has “polysubstance dependency which is complicated by a co-existing Bipolar Disorder and symptoms consistent with PTSD” stemming from the reported sexual abuse. The psychologist’s report was completed after the probation officer had prepared and released the presentence report. At the sentencing hearing the district court listened to the presentation of Curby’s attorney, Curby’s allocution, and the government’s argument focusing on Curby’s criminal history and his history of non-compliance with conditions of supervision and related treatment programs. The court noted that it had studied Curby’s sentencing memorandum and Dr. Moran’s report but rejected Curby’s arguments. The court stated that it had 4 No. 09-2853

considered “the mitigating circumstances which are set forth in the defendant’s sentencing memorandum and Dr. Moran’s report” but concluded that, in light of Curby’s “extensive criminal record” and the factors under 18 U.S.C. § 3553, Curby’s requested sentence was not appropriate. Accordingly, the court sentenced Curby to 151 months’ imprisonment. Curby argues that the district court committed pro- cedural error by not giving due consideration to the mitigating evidence concerning his mental health and history of sexual abuse. Whether the district court followed proper sentencing procedure is a question of law we review de novo. United States v. Mendoza, 510 F.3d 749, 754 (7th Cir. 2007). The district court “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the percep- tion of fair sentencing.” Gall v. United States, 552 U.S. 38, 50 (2007). “A judge who fails to mention a ground of recognized legal merit (provided it has a factual basis) is likely to have committed an error or oversight.” United States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). Curby asserts that “the district court failed to provide any explanation as to why it found Dr. Moran’s report and the defendant’s Sentencing Memorandum unpersuasive.” But it is apparent from the record that the court rejected Curby’s argument because of his ex- tensive criminal history. Curby said at sentencing that he had turned over a new leaf because he now under- stood the bases for his actions—the sexual abuse and bipolar disorder—and could now adequately address No. 09-2853 5

them. The district court didn’t buy it. In rejecting Curby’s argument the district court explained: Considering the seriousness of this crime, the defen- dant’s personal history and characteristics, his—it’s an extensive criminal record, and all of the relevant factors set forth in Title 18 of the United States Code, Sec. 3553, and the mitigating circumstances which are set forth in the defendant’s sentencing memoran- dum and Dr. Moran’s report, and the request for a sentence below the applicable guideline sentencing range that’s been made by defense counsel, I do find that the defendant’s request for a sentence of [115] months of imprisonment is not persuasive. I choose not to do that because I believe strongly that that type of a sentence is just not warranted under the facts and circumstances of this case. The defendant is very articulate. His allocution state- ment, his statement here today, he’s a very bright young man. He’s not young anymore. But his crim- inal history is just the opposite of what he’s trying to tell me. Hopefully what he says today is true, but looking at his history, it’s hard to believe that you are what you say you are or in your own mind. You’re kind of a contradiction. This discussion of the effect of Curby’s criminal history on his argument for mitigation is not lengthy, but was enough. The amount of explanation needed in any par- ticular case depends on the circumstances, United States v. Harris, 567 F.3d 846, 853 (7th Cir. 2009), United States v. Poetz, 582 F.3d 835, 838 (7th Cir. 2009), and “[l]ess 6 No. 09-2853

explanation is typically needed when a district court sentences within an advisory guidelines range,” Harris, 567 F.3d at 854. Here, the district court sentenced Curby at the very bottom of the range. Accordingly, extensive discussion was unnecessary. Curby relies on a line of cases from this circuit where we remanded for resentencing. But the cited decisions do not support his argument. In Cunningham, the de- fendant argued at sentencing—like Curby—that his psychiatric problems (and substance abuse) warranted a below-guidelines sentence, but the district court did not mention those impairments when it imposed a sentence at the bottom of the recommended range. Cunningham, 429 F.3d at 678. We explained: We cannot have much confidence in the judge’s con- sidered attention to the factors in this case, when he passed over in silence the principal argument made by the defendant even though the argument was not so weak as not to merit discussion, as it would have been if anyone acquainted with the facts would have known without being told why the judge had not accepted the argument. Diminished mental capacity is a ground stated in the sentencing guidelines them- selves for a lower sentence. U.S.S.G. § 5K2.13. A judge who fails to mention a ground of recognized legal merit (provided it has a factual basis) is likely to have committed an error or oversight. Cunningham, 429 F.3d at 679 (emphasis added). Unlike in Cunningham, here, the district court did not pass over in silence, or fail to mention, Curby’s argument. The No. 09-2853 7

district court specifically noted that it had considered “the mitigating circumstances which are set forth in the defen- dant’s sentencing memorandum and Dr. Moran’s re- port.” Our opinion in Cunningham does not help Curby because in Cunningham the point of inquiry was whether or not the district court had considered the defendant’s arguments—whether the judge had “exercised his dis- cretion.” Cunningham, 429 F.3d at 679. We remanded because we could not tell whether the district court had exercised its discretion given that the court had said nothing about the defendant’s argument in mitigation. Here, there is no doubt that the district court considered Curby’s argument—the district court explicitly said so, citing the psychologist’s report. Curby also relies heavily on an unpublished decision, United States v. Hopkins, 338 F. App’x 528 (7th Cir. 2009), which involved the same district judge. In Hopkins the defendant had pleaded guilty to one count of receiving child pornography, and the guidelines impris- onment range was 210 to 262 months. Id. at 529. The defendant argued for a below-guidelines sen- tence and presented the testimony of a psychologist who opined that he was amenable to treatment and that long-term incarceration would be counterproduc- tive to rehabilitation. Id. The psychologist recommended 5 years (the statutory minimum) with lifetime super- vised release, and the government conceded that the statutory minimum would be appropriate. Id. Despite the psychologist’s testimony and the government’s con- cession, however, the district court imposed a prison term of 210 months. Id. The district court made “no men- 8 No. 09-2853

tion at all” of the psychologist’s testimony and said only that the defendant’s request for a lower sentence was “not persuasive” and “not warranted under the facts and circumstances of this case.” Id. Curby’s reliance on Hopkins is to no avail. We remanded for resentencing because the district court—like the district judge in Cunningham—offered “no assurance that the court actually exercised its discretion” by con- sidering the defendant’s argument or the psychologist’s testimony. Hopkins, 338 F. App’x at 530. Unlike in Hopkins, here, the district court explicitly stated at the sentencing hearing that it had “studied” and “consider[ed]” Curby’s sentencing memorandum and, more importantly, “the psychological evaluation of the defendant which was prepared by Dr. Thomas J. Moran.” In addition, unlike in Hopkins where the district court dismissed the defendant’s argument with no explana- tion save “not persuasive” and “not warranted,” id., here, the district court specifically cited Curby’s criminal history when it rejected the below-guidelines request. Furthermore, the psychologist in Hopkins linked the de- fendant’s mental health and rehabilitation to a mini- mum sentence of 5 years. Hopkins, 338 F. App’x at 529. Here, in contrast, Moran’s report does not conclude, and offers no opinion, that a lesser sentence would be helpful to rehabilitation or decrease the likelihood of recidivism. The other cases relied on by Curby are unhelpful for the same reason that Cunningham and Hopkins are inapposite: the district court was either silent about the defendant’s argument or else explained the sentence No. 09-2853 9

with nothing more than a rote statement that the court had considered the relevant sentencing factors. See, e.g., United States v. Villegas-Miranda, 579 F.3d 798, 801-02 (7th Cir. 2009) (remanding for resentencing where district court passed over in silence defendant’s argument for credit for time served in state prison); Harris, 567 F.3d at 853-55 (remanding for resentencing where there was no indication that district court had considered de- fendant’s argument in mitigation based on his diabetes). Here, the district court’s discussion showed that it had considered Curby’s argument and provided a basis for rejecting it. Under the totality of the circumstances— Curby’s extensive criminal history and a psychologist’s report that offered no opinion on sentencing—this was enough. A FFIRMED.

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