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United States v. Terronez

United States Court of Appeals, Seventh Circuit

June 7, 2019

United States of America, Plaintiff-Appellee,
v.
Gregory M. Terronez, Defendant-Appellant.

          Argued May 30, 2019

          Appeal from the United States District Court for the Central District of Illinois. No. 18-cr-40005 - James E. Shadid, Judge.

          Before Flaum, Manion, and Barrett, Circuit Judges.

          FLAUM, CIRCUIT JUDGE.

         Gregory Terronez pleaded guilty to unlawful possession of a firearm by a felon. The district court announced a within-Guidelines sentence of 110 months' imprisonment. On appeal, Terronez argues the court committed procedural error by not considering his request for a variance from the Guidelines range given that the base offense level overrepresented the seriousness of his offense. For the reasons below, we affirm.

          I. Background

         On November 29, 2017, while police were on vehicle patrol in Rock Island, Illinois, they maneuvered behind a white Chevrolet Impala and observed the car accelerate and come to an abrupt stop. Then, police saw Terronez exit the car and run through a residential neighborhood. After a foot chase, Terronez surrendered to the police. He told the officers he ran because he believed he had an outstanding arrest warrant. The police recovered a firearm, and Terronez confessed to police that he threw the gun while running. A one-count indictment charged Terronez with unlawful possession of a firearm as a felon in violation of 18 U.S.C. § 922(g)(1). On May 16, 2018, Terronez indicated his intent to plead guilty, and on June 4, the district court accepted the plea.

         The United States Probation Office filed a Presentence Investigation Report ("PSR") that calculated Terronez's Sentencing Guidelines range. Since Terronez had two Illinois drug trafficking convictions, each of which subjected him to over a year in prison, his violation of § 922(g) was "subsequent to sustaining at least two felony convictions of ... a controlled substance offense," and as a result, his base offense level was 24. U.S.S.G. § 2K2.1(a)(2); see id. § 4B1.2(b) (defining "controlled substance offense" as a drug trafficking offense "punishable by imprisonment for a term exceeding one year"). The PSR also suggested a four-level enhancement because the firearm had an "obliterated serial number," id. § 2K2.1(b)(4)(B), and a three-level reduction because Terronez accepted responsibility, id. § 3E1.1. As such, the total offense level was 25.

          Terronez's criminal history category was VI because he received criminal history points for the two prior drug trafficking convictions, as well as two drug possession convictions, an aggravated assault conviction, and two driving on a suspended license convictions. Combining a total offense level of 25 and a criminal history category of VI, while accounting for § 922(g)'s ten-year statutory maximum, the Guidelines recommended a 110- to 120-month term of imprisonment. Terronez did not object to the PSR's Guidelines calculation, but he filed a sentencing memorandum seeking a below-Guidelines sentence.

         On September 26, 2018, the court held a sentencing hearing. The government asked for a within-Guidelines sentence, noting Terronez resumed selling drugs upon release from prison in May 2017 and had a lengthy criminal history, a history of substance abuse, and self-reported anger issues. It also highlighted the inherent danger posed by a drug dealer possessing a firearm. Terronez requested an 84-month sentence. As relevant here, he argued that "all prior controlled substance offenses are not equal even though they are treated equally by the sentencing guidelines." He emphasized he had no "record of violence or a record of using firearms," and his prior drug offenses were "medium-level" and "did not concern any use of a weapon or any violence." Therefore, he asserted "his history and characteristics show that... [he] is not a threat with a weapon that perhaps a typical ... person with two prior controlled substances offenses would be."

         The court adopted the PSR Guidelines calculation and indicated it would base its sentence on the Guidelines recommendation, the parties' sentencing memoranda, the parties' arguments at the hearing, and the 18 U.S.C. § 3553(a) factors. The court then explained its concern that Terronez's possession of a firearm, given his prior drug convictions, was dangerous: "The mixture of drugs[, ] ... even the smaller amounts as your Rock Island cases seem to be, [and] possessing ... guns is a danger to you, others in the drug trade, and ... the public ...." The court also acknowledged, but found unavailing, Terronez's argument that he deserved a lower sentence due to his lack of a violent past:

I recognize that you have a limited history of violence ... and I'm not even considering whether you do or not, to tell you the truth. And I realize that you said to me that you're not a violent person, and I don't have any reason to doubt that except there is really only one reason to possess that firearm in the trade of either small drug dealing or large drug dealing. And that is at some point you're going to use it, whether you believe you're protecting yourself or whether you are embroiled in some kind of dispute.

         Terronez interrupted, stating "I would never use that firearm." The court responded:

There is just no basis for possessing it if you weren't going to use it. You are prohibited from using it for starters. And from my review of your history, that's the reasonable inference to be drawn.... I appreciate the request of 84 months by [defense counsel], and I don't consider that to be a request that is out of line ... and ...

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