Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 07 CR 92-Virginia M. Kendall, Judge.
The opinion of the court was delivered by: Wood, Circuit Judge.
Before EASTERBROOK, Chief Judge, and POSNER and WOOD, Circuit Judges.
Julius Statham and eight others were caught running guns from Mississippi to Chicago. Statham pleaded guilty to his part in the conspiracy and was sentenced to 60 months in prison. He now appeals, arguing that the district court clearly erred when it calculated his sentence under the U.S. Sentencing Guidelines and abused its discretion by imposing an unreasonable sentence. He takes issue with the district court's findings that his offense involved more than 24 weapons, that some of the weapons' serial numbers were obliterated, and that his prior offenses warranted his placement in the Guidelines' highest criminal history category. In addition, he contends that the court should not have given him a prison term longer than the terms given to his co-defendants, nor, in his view, was the court justified in deciding that his sentence should run consecutively to an undischarged term of imprisonment that he had received for a different crime.
Many of Statham's arguments would be better suited for a sentencing hearing before a district court. Federal criminal sentencing relies on factual determinations and discretionary decisions made by district judges. Our role is to review those determinations to ensure that the district court applied the correct legal standards, did not clearly err in its factual determinations, and chose a reasonable sentence. Because Statham has not identified reversible error under any of those standards, we affirm.
Statham and two of his cousins, Roy Christopher Brunt ("Christopher") and Arness Brunt ("Arness"), took part in a scheme to buy guns in Mississippi and transport them for sale on the streets of Chicago. Christopher and Arness obtained the weapons in Mississippi, where they lived, and then drove them to Chicago, selling them to Statham and others. Because Christopher was a convicted felon, he could not legally purchase firearms himself, and so he recruited others to help. One recruit was his stepbrother, Sylvester Rice. Like the others, Rice bought weapons for Christopher in Mississippi and accompanied Christopher to Chicago from time to time. The scheme lasted from 1999 until 2005, when nine people-including Statham, Christopher, Arness, and Rice-were indicted for conspiring to distribute guns illegally, in violation of 18 U.S.C. § 371. On March 5, 2008, without reaching an agreement with the government, Statham pleaded guilty. Two months later, he was sentenced to the statutory maximum of 60 months' imprisonment.
At Statham's sentencing hearing, the government and Statham disagreed about how many guns were involved in his crime. Statham admitted in a plea declaration that he had asked his relatives to bring firearms to Chicago; in that document, he estimated that somewhere between three and seven firearms had been involved. By the time the sentencing hearing began, Statham was willing to admit that he actually had purchased somewhere in the neighborhood of eight to 24 guns. The government thought that this was still too low and presented testimony from two cooperating witnesses-Christopher and Rice-in support of its position.
Rice testified that he traveled to Chicago with Christopher three or four times, bringing two guns for sale on each occasion. Fearing the weapons might be traced back to him, he scratched the serial numbers off all of the guns that he bought. (Christopher corroborated Rice's testimony about removing serial numbers and added that this was a common practice among all of the people he recruited.) Rice also testified that Christopher brought additional guns to sell on these trips, though he did not know how many. Rice said that on the first trip, he and Christopher checked into a hotel, where Statham came to meet them. Christopher gave Statham a bag, which Rice assumed included the two weapons that Rice had brought along. On his second trip to Chicago, Rice recounted, a similar transaction took place. This time, however, it was at the home of Christopher's sister; Rice remained indoors while Christopher and Statham traded guns for money outside of the house.
Christopher's testimony contradicted Rice's on a number of points. Christopher described the deal at the hotel differently, recalling that the exchange with Statham occurred out of Rice's view and earshot. Perhaps more importantly, Christopher testified that Rice accompanied him to Chicago only once, and that he provided only one gun on that trip. Christopher also testified that he took approximately 20 trips to Chicago in all, selling Statham 25 firearms of his own as well as 10 that he had transported on behalf of others. (There were other conflicts in the testimony that did not concern the number of weapons involved, except insofar as they bore on credibility generally.)
After hearing this testimony and argument from both sides, the district court adopted all of the recommendations in the Presentence Investigation Report ("PSR"). Using the 2004 Guidelines Manual (because a different judge had sentenced Statham's co-defendants under that version-technically it should have used the manual in force at the time of sentencing, see U.S.S.G. § 1B1.11(a), but Statham said nothing about this on appeal, and so neither do we), the district court calculated a Guidelines range of 63 to 78 months. Statham's base offense level was 14. The district court added six levels to that based on its finding that Statham's offense involved more than 24 firearms, and another two levels because at least one of those guns had an obliterated serial number, for a total of 22 points. It then subtracted three levels for acceptance of responsibility, which yielded a final offense level of 19. Statham fell in criminal history category VI.
The district court took a conservative approach in calculating the number of weapons Statham moved. It found that Christopher and Rice were credible and that their testimony was not wholly divergent. Based on their information, the court decided that Christopher had sold 20 guns to Statham while Rice had provided two. In addition, the court took into account Arness's plea agreement, in which Arness admitted selling Statham some-where between 12 and 15 guns. Finding this admission credible as well, the court concluded that Arness had provided Statham at least an additional seven weapons, resulting in a total of 29. (It is worth noting just how conservative this estimate was: if the district court had relied on the maximum number of guns that each of the sources admitted selling Statham, it easily might have found that the offense involved between 50 and 60 weapons.)
To calculate Statham's criminal history category, the district court started with 15 criminal history points tallied from Statham's seven prior convictions and added three points because Statham committed his offense while on parole and within two years of release from prison. The total of 18 criminal history points placed Statham easily in criminal history category VI. In the end, the court chose a sentence of 60 months, which is the statutory maximum under 18 U.S.C. § 371 and just below Statham's minimum Guidelines sentence. The district court ordered the sentence to run consecutively to an undischarged term of ...