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United States v. Brock

January 9, 2006

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
DAVID C. BROCK, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 02 CR 79 Larry J. McKinney, Chief Judge.

The opinion of the court was delivered by: Flaum, Chief Judge.

SUBMITTED DECEMBER 7, 2005

Before FLAUM, Chief Judge, and BAUER and WOOD, Circuit Judges.

Following a jury trial, Defendant David C. Brock ("Brock") was found guilty of two counts of possession with intent to distribute 500 grams or more of methamphetamine; two counts of possession with intent to distribute cocaine (500 grams and an unspecified amount); and two counts of felon in possession of a firearm. The district court sentenced Brock to 360 months imprisonment on the drug counts and 120 months, to be served concurrently, on the felon-in-possession counts.

Brock appealed, challenging his conviction and sentence. See United States v. Brock, 417 F.3d 692 (7th Cir. 2005). We affirmed Brock's conviction, but found that Brock's sentence violated the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005). We remanded to the district court, pursuant to United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), to allow the sentencing judge to determine whether, if required to resentence under the now-advisory sentencing guidelines regime, he would reimpose Brock's original sentence.

On remand, the district court stated that it would have given Brock the same sentence had the sentencing guidelines been advisory at the time it sentenced him. Brock now appeals from the district court's order on remand. For the following reasons, we affirm the order of the district court.

I. Background

The central issues in this appeal are whether the district court's order on remand is sufficient to demonstrate that the district court gave meaningful consideration to the sentencing factors set forth in 18 U.S.C. § 3553(a), whether Brock's sentence was reasonable, and whether this Court should reconsider the limited remand approach it adopted in Paladino, 401 F.3d 471. Because these issues do not require us to examine all of the facts leading up to Brock's arrest and conviction, we refer readers to the Court's earlier decision in this case, Brock, 417 F.3d 692, for a more detailed discussion of the case's background.

During Brock's trial, the government introduced evidence seized during searches of Brocks' residence and a house next door to the residence (in which Brock rented a room to use as a "stash house"), including 8.42 kilo-grams of methamphetamine, 1.037 kilograms of cocaine, and 21 firearms. The government also presented the testimony of two witnesses, Joel Dyer and Scott Lewis, who testified that they had engaged in methamphetamine transactions with Brock, involving an additional 7.22 kilograms of the drug.

The jury returned a guilty verdict on all six counts. The jury did not make a specific finding that Brock possessed any amount of methamphetamine and cocaine above the 1.5 kilograms expressly charged in the indictment.

At sentencing, the district court determined that, based on the amount of drugs found at Brock's residence and the residence next door, Brock's base offense level under the federal sentencing guidelines was 36. The district court added a 2-level enhancement because Brock possessed firearms during the commission of his offenses. Additionally, the district court added a 2-level enhancement for "relevant conduct," see U.S.S.G. § 1B1.3(a)(2), based on Dyer and Lewis's testimony that Brock had transacted business involving an additional 7.22 kilograms of methamphetamine. These enhancements produced a base offense level of 40. Based on Brock's criminal history category II, the guidelines yielded a sentencing range of 324 to 405 months imprisonment on the drug counts. After considering the seriousness of the offense, the quantity of drugs, the number of guns involved (21), Brock's criminal history, and Brock's age, the district court imposed a sentence of 360 months imprisonment on the drug counts and 120 months, to be served concurrently, on the felon-in-possession counts.

Brock appealed his conviction and sentence. See United States v. Brock, 417 F.3d 692 (2005). We affirmed Brock's conviction. However, we found that, under United States v. Booker, 543 U.S. 220 (2005), Brock's sentence violated the Sixth Amendment because the elevated sentencing range used by the district court was based on facts, regarding the quantity of drugs, which were not found by a jury and proved beyond a reasonable doubt. We therefore ordered a limited remand to the district court, pursuant to United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), "to permit the sentencing judge to determine whether he would (if required to resentence) reimpose his original sentence." Id. at 484.

On remand, the district court indicated that it would have imposed the same sentence had the sentencing guidelines been advisory at the time it sentenced Brock. Brock appealed.

II. Discussion

Brock now raises three challenges to his sentence. First, Brock maintains that the district court's "cursory ruling on remand fails to provide adequate assurance that the district court gave meaningful consideration" to the ...


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