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United States v. Curby

February 26, 2010


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

Per curiam.


Before BAUER, POSNER and KANNE, Circuit Judges.

David Curby pleaded guilty to distributing 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 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 supervision-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 supervision 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 enforcement and violating no-contact orders." Curby has also failed to comply with programs offered as alternatives 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 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 submitted 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 assessments, and psychiatric reports." The psychologist concluded 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 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 procedural 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 perception 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 extensive 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 them. The district court didn't buy it. In rejecting Curby's argument the district court explained:

Considering the seriousness of this crime, the defendant'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 memorandum 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 statement, his statement here today, he's a very bright young man. He's not young anymore. But his criminal 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 particular 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 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 defendant 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 ...

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