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United States v. Henshaw

United States Court of Appeals, Seventh Circuit

January 18, 2018

United States of America, Plaintiff-Appellant,
v.
Skylar D. Henshaw, Defendant-Appellee.

          Argued December 8, 2017

         Appeal from the United States District Court for the Southern District of Illinois Division. No.16 CR 30049 - Staci M. Yandle, Judge.

          Before Kanne and ROVNER, Circuit Judges, and Durkin, District Judge. [*]

          PER CURIAM

         The district court sentenced Skylar D. Hen-shaw, a career offender, to five years' probation-a sentence 151 months lower than the bottom end of his guidelines range and 57 months lower than the sentence recommended by Henshaw's counsel. Because we find this departure substantively unreasonable, we vacate Henshaw's sentence and remand for resentencing.

         I. BACKGROUND

         In July 2015, at the direction of the Drug Enforcement Agency ("DEA"), a confidential source arranged for the purchase of a kilogram of cocaine by Henshaw and his friend Corey Pryor. When the DEA arrested Henshaw during the purchase on July 14, 2015, he had $3, 174 in cash on his person. Agents subsequently entered Henshaw's residence pursuant to a search warrant and found $55, 090 in cash, 750 grams of marijuana, and five ecstasy pills.

         In statements at the time of his arrest and the following day, Henshaw acknowledged that he was a marijuana dealer, that Pryor was Henshaw's recent source for marijuana, and that Henshaw owed Pryor $30, 000 for 30 pounds of marijuana. But Henshaw represented that he attended the cocaine purchase merely to test the cocaine for Pryor. Because Pryor died before the return of Henshaw's indictment, the government could not obtain testimony from him corroborating his prior statement to the confidential source regarding the extent of Henshaw's involvement in the cocaine transaction.

         At the time of his arrest, Henshaw was subject to a four-year felony conditional discharge sentence imposed in Jackson County, Illinois in August 2012 for selling two pounds of marijuana. He also was subject to a second four-year felony conditional discharge sentence imposed in Williamson County, Illinois in August 2012 for possessing with intent to deliver over 500 grams of marijuana.

         Henshaw pleaded guilty to aiding and abetting Pryor in attempted possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), & 846 (Count 1), and possession with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(C) (Count 2). Henshaw did not contest the determination in the presentence investigation report ("PSR") that he qualified as a "career offender" under U.S.S.G. § 4B1.1 et seq. based on his two prior felony controlled substance offenses.

         Henshaw had other prior convictions as well, including a 2006 felony conviction for possession of cannabis and a 2004 misdemeanor conviction for assault. For the misdemeanor assault conviction, Henshaw was sentenced to two years' probation and eight days in jail. His probation was revoked twice in that case-once in March 2005 for testing positive for marijuana and cocaine, and once in July 2006 for unlawfully possessing 231 grams of marijuana.

         Based on Henshaw's criminal history, the PSR calculated an advisory sentencing range of 151 to 188 months. Henshaw's sentencing memorandum cited policy disagreements with the severity of career-offender enhancements as applied to offenders with prior drug trafficking (as opposed to violent) offenses. The memorandum explained that without the career-offender designation, Henshaw's guidelines range would be 57 to 71 months. The memorandum also represented that Henshaw had minimal involvement in the underlying cocaine transaction. Lastly, the memorandum described Henshaw's personal history and characteristics, including his family history of drug abuse, physical abuse, and verbal abuse. It stated that Henshaw was a loving father to three children and had remained substance free since his arrest. Henshaw's sentencing memorandum requested a sentence of 57 months. The government did not file a sentencing memorandum.

         At the February 2017 sentencing, the district court adopted a revised version of the PSR without change, including the PSR's finding that Henshaw was a career offender with a guidelines range of 151 to 188 months. The district court then said it would entertain arguments under 18 U.S.C. § 3553(a).

         The government recommended a sentence of the low end of the guidelines range (151 months). The entirety of the government's argument in aggravation was as follows:

Your Honor, I have [no] information that would take [Henshaw] outside of the guidelines according to the 3553(a) factors and, therefore, I would recommend, because this defendant has been relatively cooperative and he's been released on bond and has been fairly compliant as far as I know, the Government would recommend the low end of the guideline range of 151 months, three years supervised ...

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