United States v. Dawson

494 F. App'x 624
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 5, 2012
DocketNo. 12-1573
StatusPublished
Cited by1 cases

This text of 494 F. App'x 624 (United States v. Dawson) 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. Dawson, 494 F. App'x 624 (7th Cir. 2012).

Opinion

ORDER

Henry Dawson pleaded guilty to being a felon in possession of a gun. The district court sentenced him to four years’ imprisonment — twice the applicable guidelines range. Dawson appeals, arguing that his sentence was unreasonable. We affirm.

In September 2010, a police officer on patrol in East St. Louis saw Dawson standing behind his car with the trunk open. Dawson closed the trunk when he saw the officer. This piqued the officer’s suspicion, so he checked the car’s registration and discovered that the driver’s license of the car’s owner had been suspended. Circling around the block, the officer found Dawson driving away. When Dawson made two right turns without signaling, the officer pulled him over, patted him down, and discovered a small amount of marijuana in his pocket. After arresting Dawson for the marijuana, the officer searched his car. In a black plastic bag in the trunk, he discovered a loaded revolver and 1.8 grams of crack divided among three plastic bags. Dawson was 62 years old at the time of his arrest.

Dawson, who had a prior felony conviction, pleaded guilty to unlawfully possessing a firearm. See 18 U.S.C. § 922(g)(1). A probation officer calculated a sentencing range of 18 to 24 months, based on a total offense level of 15 (base offense level of 14, [626]*626plus 4 levels for possessing the revolver in connection with another felony offense (crack possession), see U.S.S.G. § 2K2.1(b)(6)(B), minus 3 levels for accepting responsibility, see U.S.S.G. § BEl.l(a), (b)) and a category I criminal history (based on a single criminal history point for a 2005 crack conviction but excluding more than a dozen earlier convictions over 35 years that were deemed too old — including armed robbery, battery, unlawful use of a weapon, possession of crack, and delivery and possession of cannabis). See U.S.S.G. § 4A1.2(e). The PSR acknowledged that Dawson had described a difficult childhood but identified no factors warranting a departure from this range.

The district court agreed with the PSR’s guidelines calculations, but decided that the guidelines underrepresented Dawson’s criminal history. Despite his advanced age, Dawson showed “no sign of slowing down from his lawless lifestyle” and posed a significant danger to the public. The court gave little credit to Dawson’s assertion that he had tried his best to stay out of trouble, finding instead that Dawson had “a terrible resume of crimes against the public,” was “a de facto career criminal,” and had “no respect for the law,” as demonstrated by his steady and lengthy criminal history — including a recent incident in which he was pulled over for a traffic stop, ignored the officer’s request to produce his driver’s license, and continued to talk on his cellular phone until he was removed from his vehicle. Concluding that a within-guidelines sentence would be insufficient to protect the public, see 18 U.S.C. § 3553(a)(2)(C), or deter Dawson from committing future crimes, see id. § 3553(a)(2)(B), the court sentenced him to 48 months — a sentence that corresponds to criminal history category VI, based on the 15 criminal history points that would have applied if all of Dawson’s 13 earlier convictions had been assigned points.

Dawson appeals, arguing that his above-guidelines sentence is unreasonably high. He first asserts that the district court miscalculated his criminal history category when computing the guidelines range that would apply if all of his prior convictions were counted. The court, he says, overlooked a provision of the sentencing guidelines — U.S.S.G. § 4Al.l(c)— under which no more than 4 total criminal history points may be imposed for all sentences of less than 60 days. If the district court had applied § 4Al.l(c)’s 4-point limit, Dawson contends, 5 of his convictions would have been excluded and he would have received only 10 criminal history points, resulting in a category V criminal history and an advisory sentence of only 37 to 46 months.

This argument is unpersuasive in light of the district court’s concern that the number of Dawson’s prior offenses demonstrated a pattern of lawlessness unaccounted for by the guidelines. Section 4A1.3(a)(2)(A) of the guidelines expressly authorizes courts to consider prior sentences not used in computing a defendant’s criminal history category as the basis for an upward departure:

§ 4A1.3. Departures Based on Inadequacy of Criminal History Category (Policy Statement)
(a) Upward Departures.—
(1) Standard for Upward Departure. — If reliable information indicates that the defendant’s criminal history category substantially under-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes, an upward departure may be warranted.
(2) Types of Information Forming the Basis for Upward Departure. — The information described in subsection (a) may include information concerning the following:
[627]*627(A) Prior sentence(s) not used in computing the criminal history category (e.g., sentences for foreign and tribal offenses).

As the Fourth Circuit has noted, this guideline applies to sentences that are excluded by § 4Al.l(c)’s four-point limit. See United States v. Wilson, 913 F.2d 136, 139 (4th Cir.1990); see also United States v. Leonard, 50 Fed.Appx. 949, 952 (10th Cir.2002) (“The guidelines ... plainly contemplate that a defendant’s criminal history category may be increased based on the district court’s consideration of convictions not counted due to the four point limitation of Section 4Al.l(c).”). Although the district court did not specifically address § 4Al.l(c) at sentencing, in explaining its decision to impose an above-guidelines sentence, the court noted that “[i]f one were to ... award points for all those crimes that do not get awarded points, we would be looking here at a sentence somewhere in the range of ... 41 to 51 months.” (emphasis added) We can infer, based on this rationale, that the district court’s failure to apply § 4Al.l(c) was not an oversight but an extension of its decision to treat Dawson’s entire criminal history as relevant — a decision that would have been frustrated by excluding from consideration many of the less serious offenses that the court nevertheless saw as evidence of a pattern of lawlessness.

Dawson also argues that the record does not support the district court’s finding that his criminal history was underrepresented because many of his prior convictions are temporally remote or do not otherwise suggest likely recidivism. Dawson notes that the guidelines allow district courts to depart on the basis of uncounted convictions only if “reliable information indicates that the defendant’s criminal history category substantially under-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3(a)(l). Although he acknowledges that courts no longer need to adhere to § 4A1.3 when imposing above-guidelines sentences based on defendants’ criminal histories, Dawson points out that courts must still consider the policy judgments embodied in the guidelines.

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Bluebook (online)
494 F. App'x 624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dawson-ca7-2012.