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United States v. Spiller

United States Court of Appeals, Seventh Circuit

October 10, 2013

UNITED STATES of America, Plaintiff-Appellee,
v.
Gilbert SPILLER, Defendant-Appellant.

Argued Sept. 27, 2013.

Page 768

Matthew B. Burke, Office of the Federal Defender Program, Chicago, IL, for Plaintiff-Appellee.

Carol A Brook, MiAngel C. Cody, Office of the Federal Defender Program, Chicago, IL, for Defendant-Appellant.

Matthew B. Burke, Attorney, Office Of The United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Carol A. Brook, Attorney, Miangel C. Cody, Attorney, Office Of The Federal Defender Program, Chicago, IL, for Defendant-Appellant.

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

BAUER, Circuit Judge.

Gilbert Spiller was charged with two counts of distributing cocaine base, and one count of selling a firearm to a felon. He pleaded guilty. The government sought enhanced punishment under 21 U.S.C. § 851 due to Spiller's prior felony drug convictions. At sentencing, neither side objected to the calculated Guidelines range of 262 to 327 months. Spiller's counsel, however, argued for a below-Guidelines sentence, contending that the § 851 enhancement created an unwarranted sentencing disparity. The district court imposed a sentence of 240 months. Spiller now appeals the sentence to this Court, contending the district court failed to adequately consider his argument concerning the § 851 enhancement. We affirm the sentence imposed by the district court.

I. BACKGROUND

Spiller has a lengthy criminal history. He was first charged in 1989 at age 13 and found to be a delinquent for attempted criminal sexual assault. In 1995, he was convicted as an adult of two counts of aggravated battery with a firearm and one count of aggravated discharge of a firearm. He was sentenced to 20 years' imprisonment, and was released in 2004. In 2005, while on parole, Spiller was convicted of aggravated battery of a police officer. In 2006, he was convicted of possession of heroin, and was convicted for possession of a controlled substance stemming from two separate arrests in 2007.

On November 17, 2011, a grand jury returned an indictment charging Spiller in two counts with distributing more than 28 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) and one count of selling a loaded firearm to a felon in violation of 18 U.S.C. § 922(d)(1). On November 18, 2011, the government filed a notice seeking increased punishment pursuant to § 851(a), since Spiller had three prior felony drug convictions. On September 12, 2012, Spiller pleaded guilty to all three counts. The presentence investigation report determined that Spiller was a career

Page 769

offender and so applied the career offender Guidelines § 4B1.1(b). Together with the § 851 recidivism enhancement, the report determined the appropriate Sentencing Guidelines range to be 262 to 327 months' imprisonment.

At sentencing, both sides agreed that the Guidelines range was correctly calculated. Spiller's counsel, however, argued that the § 851 enhancement unreasonably inflated the Guidelines range, resulting in an unwarranted sentencing disparity. After weighing the § 3553(a) factors, the district court sentenced Spiller to 240 months' imprisonment, as well as an eight-year term of supervised release. After the sentence was imposed, Spiller's counsel asked the court for his position concerning § 851 and its impact on the Guidelines range. The district court acknowledged the effect of the § 851 enhancement on Spiller's sentence, stating, " I am not saying it does not impact [the sentence], but ...


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