June 6, 2018
from the United States District Court for the Central
District of Illinois. No. 17-10015-001 - James E. Shadid,
Wood, Chief Judge, and Kanne and Scudder, Circuit Judges.
judges ordinarily "group" counts of conviction when
they involve "substantially the same harm."
U.S.S.G. § 3D1.2. In United States v. Sinclair,
770 F.3d 1148 (7th Cir. 2014), we ruled that when facing a
particular combination of counts-the same combination in this
case-a judge may not group them. Aaron Lamon pleaded
guilty to three counts: (1) possessing cocaine with intent to
distribute, 21 U.S.C. § 841(a)(1); (2) possessing a
firearm in furtherance of that crime, 18 U.S.C. §
924(c)(1)(A); and (3) possessing a firearm as a felon,
id. § 922(g)(1). Following Sinclair,
at sentencing the judge did not group Lamon's first and
third counts-his drug-trafficking conviction and
felon-in-possession conviction. Because Lamon has not
provided any valid basis for overturning Sinclair,
we affirm the judgment.
and at sentencing, the parties debated whether the district
court should group Lamon's drug and felon-in-pos-session
offenses under Section 3D1.2(c) of the Sentencing Guidelines.
That section states that two counts should be grouped
"[w]hen one of the counts embodies conduct that is
treated as a specific offense characteristic in, or other
adjustment to, the guideline applicable to another of the
counts." U.S.S.G. § 3D1.2(c).
parties disagreed over the continuing vitality of
Sinclair. In Sinclair, we concluded that a
drug-trafficking count under § 841(a) and a
felon-in-possession count under § 922(g) cannot be
grouped when accompanied by a § 924(c) offense for using
a firearm to further a felony. 770 F.3d at 1157-58.
Sinclair observed that when a defendant is convicted
under § 924(c), the Guidelines direct courts
not to apply any offense- characteristic enhancement
for firearm possession to the drug count. Id. at
1158; see U.S.S.G. § 2K2.4, cmt. 4. The reason
is that the § 924(c) conviction itself enlarges the
sentence based on the defendant's use of a weapon to
further a felony by requiring a 60-month consecutive
mandatory minimum sentence. Sinclair, 770 F.3d at
1158. Thus, in these circumstances, the felon-in-possession
count has no impact on the guideline range for the underlying
drug count, thereby eliminating the rationale for grouping.
See U.S.S.G. § 3D1.2(c); Sinclair, 770
F.3d at 1158. Lamon responded that United States v.
Cherry, 855 F.3d 813 (7th Cir. 2017) implicitly
overruled Sinclair, so his § 841(a) and §
922(g) offenses must be grouped. The government insisted that
Sinclair remains good law.
district judge rejected Lamon's objection and did not
group the counts. The judge calculated guidelines ranges of
30 to 37 months for the § 841(a) and § 922(g)
counts, based on a total offense level of 17 and Lamon's
criminal history category of III. He sentenced Lamon to
below-guidelines concurrent terms of 24 months'
imprisonment on each of these counts, followed by the
statutory minimum consecutive term of five years for the
§ 924(c) count, resulting in a total sentence of 84
months' imprisonment. Had the judge grouped the §
841(a) and § 922(g) counts, Lamon's total offense
level would have been 15, resulting in a guidelines range of
24 to 30 months for each charge. See U.S.S.G. Ch. 5,
now renews his argument that the district judge should have
grouped his § 841(a) and § 922(g) counts at
sentencing. Acknowledging that Sinclair forecloses
this argument, he argues our court has already overturned or
should now overturn that decision.
argues unpersuasively that we implicitly overruled
Sinclair in United States v. Cherry, 855
F.3d 813 (7th Cir. 2017). He points out that when reciting
the procedural history in Cherry, we noted that the
§ 841(a) and § 922(g) charges were grouped
"[c]onsistent with the sentencing guidelines, "
Cherry, 855 F.3d at 815, even though Cherry faced a
§ 924(c) conviction. But Sinclair and
"grouping" were irrelevant to the sentencing issue
decided in Cherry. Indeed Sinclair was not
even mentioned. Because the grouping issue was not part of
the ruling in Cherry, any variance from
Sinclair is not binding in later cases. See Tate
v. Snowboat Marina Casino P'ship, 431 F.3d 580, 582
(7th Cir. 2005).
Lamon contends that we should now overturn Sinclair
to rectify a circuit split and ensure uniform application of
the Sentencing Guidelines. But the mere existence of a
circuit split does not justify overturning precedent.
United States v. Waters, 823 F.3d 1062, 1065 (7th
Cir. 2016). This is especially true here, because in
Sinclair we knew that we were creating the
split, and in doing so weighed the impact that our contrary
decision would have on uniformity among the circuits. See
Sinclair, 770 F.3d at 1158 n.2 (noting that opinion was
circulated to full court because it created split with
United States v. Bell, 477 F.3d 607 (8th Cir.
2007)); see Santos v. United States, 461 F.3d 886,
894 (7th Cir. 2006) (explaining that it is better to
"stay the course" when court has "already
considered and duly decided the issue"). Although
superseding changes in the law may justify deviating from
precedent, Planned Parenthood of Se. Pa. v. Casey,
505 U.S. 833, 854-55 (1992), no such developments are present
here. The only post-Sinclair case Lamon cites
directly addressing this issue is United States v.
Fonseca, 2018 WL 1180656 (11th Cir. 2018). That case at
most reiterates the Eleventh Circuit's non-precedential
position predating Sinclair. See United States
v. King, 201 Fed.Appx. 715, 717 (11th Cir. 2006).
Lamon's argument thus amounts to nothing more than asking
us to reconsider our prior analysis.
disagreement with a prior holding is an inadequate basis to
overturn precedent. Lamon stresses that Sinclair was
wrongly decided. But if believing a prior decision is
in-correct were sufficient grounds to overrule it then stare
decisis would be meaningless, "because no doctrine of
deference to precedent is needed to induce a court to follow
the precedents that it agrees with." Tate, 431
F.3d at 582. Nor may we reevaluate Sinclair simply
because, as Lamon contends, it may result in long sentences
for some defendants. See Santos, 461 F.3d at 893
(finding sentencing consequences insufficient ...