Appeal from the United States District Court for the Western District of Wisconsin. No. 07 CR 23-John C. Shabaz, Judge.
The opinion of the court was delivered by: Williams, Circuit Judge.
Before RIPPLE, KANNE, and WILLIAMS, Circuit Judges.
Stanley F. Jackson pled guilty to one count of possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1). Jackson was on probation and supervised release when he committed the charged offense so he received a four-year sentence from the state court for violating the terms of his release. The district court then sentenced Jackson to 170 months' imprisonment for the drug offense and imposed its sentence to run consecutively to that state sentence.
Jackson challenges the consecutive nature of his sentence, arguing that because the state sentence was imposed in part for conduct that was taken into consideration by the district court in calculating his Guidelines range, he was punished excessively for one course of conduct. Although the district court had the discretion to impose a consecutive sentence in this case pursuant to Section 5G1.3(c) of the United States Sentencing Guidelines ("U.S.S.G."), we are not confident that the district court considered the relevant factors before doing so. Therefore, we must remand for resentencing.
On August 18 and 19, 2006, a confidential informant cooperating with law enforcement purchased .6 gram and .3 gram quantities of heroin from Jackson at a gas station in Madison, Wisconsin. Based on these sales, the state authorities searched Jackson's residence on August 26, 2006, and found more heroin.
At this time, Jackson was on probation for several bail jumping convictions and extended supervision with electronic monitoring for a 2001 felony crack cocaine distribution conviction, both of which were imposed by a Wisconsin state court. The state court revoked Jackson's probation and supervised release and sentenced him to four years in prison.
Jackson subsequently pled guilty in federal court to one count of knowingly and intentionally possessing heroin with the intent to distribute. A probation officer prepared a presentence investigation report ("PSR") using the November 2006 Sentencing Guidelines. The probation officer concluded that Jackson was a career offender under U.S.S.G. § 4B1.1 because he had two prior felony convictions for controlled substance offenses. One was the 2001 state felony crack cocaine conviction and the other was a 2000 state court conviction for cocaine distribution. As a career offender, Jackson was assigned a base offense level of 32 and a criminal history category of VI. The probation officer subtracted three levels for acceptance of responsibility, which resulted in a total offense level of 29. Based on these calculations, the PSR suggested a sentencing range of 151-188 months' imprisonment. The probation officer noted in the PSR that the Wisconsin state court had revoked Jackson's supervised release and sentenced him to a four-year term of imprisonment that he had begun serving.
Jackson did not object to the PSR. At sentencing, Jackson requested that the district court sentence him on the low end of the Guidelines range and concurrently to his four-year state sentence, noting that had he not qualified as a career offender, his sentencing range would have been 51 to 63 months' imprisonment.
The district court sentenced Jackson to 170 months' imprisonment, which is in the middle of the advisory Guidelines range, and stated that the sentence should be served consecutively to Jackson's four-year state sentence. It also imposed three years' supervised release to follow the term of imprisonment. Before pronouncing the sentence, the district court considered the factors set forth in 18 U.S.C. § 3553(a) and then stated, "Given the nature of the offense, the quantities of controlled substance and the history and characteristics of this defendant, a sentence at the middle of the guidelines range may be sufficient, it's certainly reasonable, it may even be sufficient to satisfy the statutory purposes of sentencing." After pronouncing the sentence term, the court stated that it would run consecutively to his undis-charged state sentence in accordance with U.S.S.G. § 5G1.3. This meant Jackson faced an overall sentence (when combining the state sentence with the federal sentence) of 218 months' imprisonment.
Jackson challenges his sentence on appeal, claiming that the district court erred in imposing a consecutive sentence. In reviewing sentences, we first look at whether the lower court committed any procedural error, such as improperly calculating the Guidelines range, failing to adequately explain the chosen sentence, treating the Guidelines as mandatory, or failing to consider the § 3553(a) factors. Gall v. United States, 128 S.Ct. 586, 597 (2007); United States v. Broadnax, No. 07-1985, ___ F.3d ___, 2008 WL 2955575, at *7 (7th Cir. Aug. 4, 2008). Then we consider whether the court's sentence is reasonable. Broadnax, 2008 WL 2955575, at *7.
A. The District Court had Discretion to Impose a Consecutive Sentence
Jackson does not dispute that the district court imposed a sentence within the properly calculated Guidelines range. However, he contends that the district court erred in imposing ...