Appeal from the United States District Court for the Southern District of Illinois. No. 3:08-cr-30023-DRH-PMF-1-David R. Herndon, Chief Judge.
The opinion of the court was delivered by: Ripple, Circuit Judge.
Before BAUER, RIPPLE and KANNE, Circuit Judges.
After a three-day jury trial, Anthony Womack was convicted of distributing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). The district court calculated Mr. Womack's guidelines sentence by including the career offender enhancement and sentenced Mr. Womack to 360 months' imprison-ment. Mr. Womack now appeals the application of the career offender enhancement and contends that the district court should have been free to depart from the resultant guidelines range. For the reasons set forth herein, we conclude that the enhancement was properly applied; however, we remand for resentencing in light of United States v. Corner, 598 F.3d 411, 415-16 (7th Cir. 2010) (en banc).
On December 13, 2007, in Madison County, Illinois, Mr. Womack distributed cocaine base. He was tried and convicted. The Probation Department prepared a Presentence Investigation Report ("PSR") calculating Mr. Womack's base offense level and criminal history points, but ultimately recommended that Mr. Womack be sentenced as a career offender pursuant to the Sentencing Guidelines' career offender enhancement, U.S.S.G. § 4B1.1.*fn1 The Probation Department concluded that Mr. Womack's prior felony convictions qualified as predicate convictions for purposes of applying the career offender enhancement: a 1994 Illinois controlled substance conviction and a 2005 Illinois conviction under 625 ILCS 5/11-204.1(a)(1) for aggravated fleeing.*fn2
Mr. Womack objected, contending that the 1994 controlled substance conviction was too old to qualify as a predicate offense and that the 2005 aggravated fleeing conviction was not a crime of violence. The district court overruled Mr. Womack's objections and accepted the findings and calculations of the PSR. With the application of the career offender enhancement, Mr. Womack's base offense level was 37 and his criminal history category was VI, producing a guidelines range of 360 months' to life imprisonment. After commenting that the "crack powder disparity argument [was] taken away" in this case, the district court sentenced Mr. Womack to 360 months' imprisonment, at the lower end of the guidelines range.*fn3
Mr. Womack now appeals the application of the career offender enhancement in the calculation of his guidelines sentence. He also maintains that the district court should have been free to disagree with, and depart from, the guidelines range.
We review de novo whether a prior conviction qualifies as a predicate conviction for purposes of applying the career offender enhancement. See United States v. Woods, 576 F.3d 400, 408 (7th Cir. 2009). We review sentences for reasonableness and presume that a sentence within a correctly calculated guidelines range is reasonable. Gall v. United States, 552 U.S. 38, 46-47 (2007); United States v. Panaigua-Verdugo, 537 F.3d 722, 727 (7th Cir. 2008). The career offender enhancement applies to any defendant who is at least eighteen years old at the time he committed the offense of conviction, whose offense of conviction is a "crime of violence or a controlled substance offense," and who has at least two prior felony convictions of either a crime of violence or a controlled substance offense-i.e., two predicate offenses. See U.S.S.G. § 4B1.1(a). Application of the career offender provision subjects a defendant to an enhanced base offense level and an automatic criminal history category of VI. Id. § 4B1.1(b).
We begin with Mr. Womack's 1994 controlled substance conviction and consider whether it is too old to qualify as a predicate conviction. The career offender provision generally excludes as predicate convictions those that are older than ten years; however, if a prior conviction is within fifteen years of the commencement of the offense of conviction, and if the offender received a sentence of imprisonment in excess of thirteen months for the prior conviction, the prior conviction is included. See U.S.S.G. §§ 4A1.2(e), 4B1.2 n.3. Mr. Womack's 1994 controlled substance conviction occurred more than ten years, but fewer than fifteen years, prior to his commencement of distributing cocaine base. Thus, if Mr. Womack received a sentence of imprisonment in excess of thirteen months for his 1994 controlled substance conviction, it qualifies as a predicate conviction.
Mr. Womack received a sentence of five years' imprisonment for his 1994 conviction. However, he contends that his actual period of incarceration was much less than five years. He explains that he participated in Illinois's Impact Incarceration Program, a boot camp rehabilitation program, for 121 days; after service in this program, he was released from custody. In United States v. Gajdik, 292 F.3d 555, 558 (7th Cir. 2002), we held that the period of imprisonment imposed, not the period served in the Illinois Impact Incarceration Program, shall be considered in determining whether a prior sentence of imprisonment exceeded thirteen months.*fn4 As such, it would appear that the 1994 conviction indeed received a sentence of imprisonment well in excess of thirteen months and thus qualifies as a ...