In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2500
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D AVID E NGLAND,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 04 CR 50068—Philip G. Reinhard, Judge.
A RGUED F EBRUARY 19, 2010—D ECIDED M AY 6, 2010
Before P OSNER, F LAUM, and W OOD , Circuit Judges.
F LAUM, Circuit Judge. This is the third time we con-
sider David England’s appeal of his sentence from his
January 6, 2006 conviction. In 2006, England was con-
victed of possession of a firearm as a felon in violation of
18 U.S.C. § 922(g)(1) (Count I), attempting to persuade
a witness to provide a false alibi for him in violation of
18 U.S.C. § 1512(b)(1) (Count II), attempting to cause
a witness to conceal evidence in violation of 18 U.S.C.
2 No. 09-2500
§ 1512(b)(2)(B) (Count III), and threatening physical force
against a witness to influence his testimony in violation
of 18 U.S.C. § 1512(a)(2) (Count IV). We have reversed
England’s sentence for Count IV on procedural errors
twice. Because the third sentencing hearing did not
suffer from the same procedural errors as the prior two,
and because England’s sentence is substantively rea-
sonable, we now affirm.
Initially, England was charged with being a felon in
possession of a firearm when he allegedly broke a car
window with the butt of a gun on September 15,
2004. After the initial incident, England engaged in a
series of behaviors that earned him three more charges,
all relating to obstruction of justice. First, while in
custody on the initial charge, England called his sister,
Dawn Bull, and asked her to move and cover the car
involved in the incident. Then, he called Dawn’s
husband, Robert Bull, and told Bull to not let anyone
use the car. On September 26, 2004, after moving the car,
England’s mother and Dawn found a blue duffel bag in
the engine compartment. They flagged down a police
officer who removed the bag and found a bloodied gun
inside. The DNA on the gun matched England. When
England learned of the discovery of the gun, he became
concerned that his mother and sister were cooperating
with the police. England called Robert Bull and told him
to make sure that his sister and mother “don’t get out
o’ hand” and to “control them women.” Later, England
asked his sister to corroborate his alibi, saying that he
did not “understand why a . . . couple of my family
members can’t . . . recognize that they were up there at
No. 09-2500 3
the Barnes and Noble that particular day, and they seen
me up there.” Dawn refused and England’s behavior
escalated even further. On December 15, 2004, England
learned that Robert Bull was cooperating with the po-
lice. England could not call Robert directly because
Robert had blocked his calls. To circumvent this block,
England called his father and told his father that he
would “put some bullets in somebody’s head” and
asked his father to talk to Robert “man to man.” On
December 27, 2004, England asked his father to relay a
message to Robert Bull that if he “shows up to court,
when I walk outta prison in fifteen years, I’m ‘onna
fuckin’ murder his motherfuckin’ ass.”
England represented himself during his three-day trial.
With respect to Count IV, threatening physical force
against a witness in order to influence his testimony,
England’s father testified that he never relayed the
threats to Robert Bull. Robert Bull also testified that
England never directly threatened him and that he only
learned of the threats through the government. On
January 6, 2006, the jury convicted England on all four
counts.
At the initial sentencing, Count IV emerged as the
main contested issue because it was not clear which
guideline section applied to the charge of threatening
physical force against a witness. The presentence inves-
tigation report recommended that the district court
apply U.S.S.G. § 2A2.1, which covers “Assault with In-
tent to Commit Murder; Attempted Murder” and carries
a base offense level of 33. The district court asked the
4 No. 09-2500
parties to brief the question of whether U.S.S.G. § 2J1.2,
which addresses “Obstruction of Justice” and carries a
base offense level of 22, was a better fit with the
conduct charged in Count IV. After both parties briefed
the issue, the district court, relying on the statutory
index in Appendix A of the Guidelines, found that § 2A2.1
was the appropriate guideline because the Appendix
did not list § 2J1.2 as a possible guideline for a violation
of 18 U.S.C. § 1512(a). The district court acknowledged
that the conduct generally covered by § 2A2.1 did not
align with the conduct involved in Count IV. However, it
found that our holding in United States v. Lanas, 324
F.3d 894, 904 (7th Cir. 2003), required it to “apply the
offense guidelines referenced in the statutory index to
the statute of conviction” unless the case fell within a
limited exception, which it did not. England’s total advi-
sory guideline range using § 2A2.1 for Count IV
was 210 months to 262 months. At the sentencing
hearing, England presented evidence in an effort to
persuade the district court that a shorter sentence was
warranted. Nevertheless, the court sentenced England
to 262 months, the upper limit of the advisory guideline
range.
England appealed his conviction and sentence. We
affirmed England’s conviction and vacated his sentence.
We remanded for resentencing because we found that
the absence of guideline § 2J1.2 from the statutory
index was likely the result of a “pernicious scrivener’s
error.” United States v. England, 507 F.3d 581, 591 (7th Cir.
2007) (England I ). Considering the legislative history of
18 U.S.C. § 1512(a), we reasoned that the error likely
No. 09-2500 5
occurred because the Sentencing Commission did not
amend the guidelines to match the statutory amend-
ments Congress had made to 18 U.S.C. § 1512(a) in 2002.
Id. at 591-92. In our instructions for remand, we held
that the district court was correct to apply guideline
§ 2A2.1 because “[r]ather than tinker with the Guide-
lines sections listed in the statutory index, the district
court must typically begin with the offense guideline
referenced in the Statutory Index for the statute of con-
viction.” Id. at 590. However, we found that this
scrivener’s error might lead to a disparity among defen-
dants with similar records who have been found guilty
of similar behavior because this scheme punished a
threat at the same level as an attempted murder. Id.
at 592. Because the district court did not consider this
possible disparity in its initial § 3553(a)(6) analysis, we
remanded for resentencing so the district court could
properly take this disparity into account. We did not
pass any judgment on the reasonableness of the sentence.
Following our decision in England I, the United States
Sentencing Commission proposed a technical amend-
ment adding guideline § 2J1.2 to the statutory index for
convictions under § 1512(a). See Sentencing Guidelines
for United States Courts, 73 Fed. Reg. 4936 (Jan. 28, 2008).
Congress approved these guidelines in May 2008. See
Sentencing Guidelines for the United States Courts, 73
Fed. Reg. 26,924, 26,936 (May 9, 2008). The Sentencing
Commission explained that this amendment “adds a
reference to § 2J1.2 (Obstruction of Justice) for a viola-
tion of 18 U.S.C. § 1512(a) to reflect the broad range of
6 No. 09-2500
obstructive conduct, including the use of physical force
against a witness, covered by the subsection.” Id.
At the re-sentencing hearing following England I, the
district court properly applied § 2A2.1 in calculating
the advisory guideline range and then turned to a recon-
sideration of the § 3553(a) factors, with a special focus on
subsection (a)(6). In the new § 3553(a) analysis, the district
court considered all the evidence and argument from the
original sentencing hearing and the Sentencing Com-
mission’s proposed amendment to the statutory index.
The district court found that nature and circumstances
of the offense were aggravated due to the violent nature
of the conduct charged in Count I and England’s obstruc-
tive behavior. Then, based on findings of a forensic psy-
chologist that the government presented for sentencing
purposes, the district court also found that England
would likely remain violent and confrontational. In
conjunction with the psychological finding, the court
found that England was “a person who can be dangerous,
especially if angry,” and a person willing to go “beyond
mere threats.” Taking these factors together, the
district court concluded that England needed a sub-
stantial sentence to deter him from letting his anger get
the best of him and because the public needed to be
protected from England. Turning to the § 3553(a)(6)
analysis, the district court made it clear that it was bal-
ancing its consideration of unwarranted sentencing
disparity under subsection (a)(6) with the other factors
listed in § 3553(a). It also stated that it could not conduct
a full subsection (a)(6) analysis because the parties
did not submit evidence of what sentences defendants
No. 09-2500 7
convicted of similar crimes received. Conducting what
subsection (a)(6) analysis it could, the district court
found that, in light of the seriousness of the England’s
conduct, as well as his psychological characteristics and
violent past, the defendant was “more in line with a person
who might attempt to murder someone” than the typical
offender who obstructs justice. The court expressed the
view that, had England been out on bond, he would
have tried to harm a witness and he would have used
whatever degree of force was necessary to avoid the
charges against him. Balancing all of the § 3553(a) factors,
including subsection (a)(6), the court determined that a
sentence within the advisory guideline range of 210 to
262 months was reasonable and just. The court also
stated that if the lower guideline range under § 2J1.2
was applicable, the court would be inclined to vary
his sentence upward. Accordingly, the court sentenced
England to a total sentence of imprisonment of 210
months, the low end of the advisory range under § 2A2.1.
England appealed the district court’s sentence for a
second time on the ground that the sentence was sub-
stantively unreasonable. We vacated the sentence for a
second time based on a procedural error. United States v.
England, 555 F.3d 616 (7th Cir. 2009) (England II ). In
England II, we found that the district court’s analysis of
the § 3553(a) factors was more than adequate. Id. at 621.
We also agreed with the district court’s statement that
it could not conduct a full subsection (a)(6) analysis
because the parties had not submitted evidence of sen-
tences received by defendants with similar records who
had been found guilty of similar conduct. Id. However, we
remanded for re-sentencing based on the court’s factual
8 No. 09-2500
finding that England was “more in line with a person who
might attempt to murder someone” than the typical
offender who obstructs justice. We held that this finding of
the district court was not supported by reliable evidence.
In reversing, we provided the district court with clear
instructions that it “need not repeat [the § 3553(a)] analysis
at resentencing; it can adopt the § 3553(a) findings
arrived at during the June 2, 2008 hearing. We only
require that the district court make its sentencing deter-
mination without reliance on a finding that England
would have attempted murder if out on bond unless
further evidence is adduced which would justify such a
conclusion.” Id. at 623.
At the third sentencing hearing, which is at issue in
this appeal, the district court did precisely what we
instructed in England II. The district court followed our
instruction and adopted the § 3553(a) analysis from the
second sentencing hearing completely for the purpose of
the third sentencing hearing. Then, the district court
turned to the issue of whether it could conclude that
England would have attempted murder if out on bond.
Because the government did not present additional evi-
dence on this point, the district court found that it
could not determine that England would have
attempted murder. Without relying on this finding from
the second sentencing hearing, the district court still
determined that a sentence of 210 months was appro-
priate in this case. In coming to this conclusion, the
district court focused on England’s violent temper, as
documented by the report of the forensic psychologist,
his history of violent assaults, and the violent nature of
No. 09-2500 9
the conduct for which he was convicted in Count I (bran-
dishing the weapon and smashing a car window with
the weapon).
We review a district court’s sentencing decision for
reasonableness under an abuse of discretion standard.
United States v. Omole, 523 F.3d 691, 696 (7th Cir. 2008).
First, we address whether the court made a procedural
error, then we turn to consider the substantive reason-
ableness of the sentence. United States v. Carter, 530 F.3d
565, 577 (7th Cir. 2008). We have never reached the sub-
stantive reasonableness of England’s sentence. In
England II, we explicitly stated that we were not passing
judgment on the reasonableness of the sentence, which
we said “very well may be reasonable.” 555 F.3d at 623. In
the third sentencing hearing, the district court cor-
rected the procedural errors from the first two sen-
tencing hearings. Now we are left only to consider
the substantive reasonableness of the sentence.
The sentence imposed by the district court is lengthy,
but it is not substantively unreasonable. The district
court properly calculated the guideline range at the time
of sentencing. The district court then considered the
sentencing disparities that could arise from the possible
scrivener’s error that equated violations of 18 U.S.C.
§ 1512(a) only with the attempted-murder guideline
rather than the obstruction-of-justice guideline. Although
there was confusion in the second sentencing hearing
about the district court’s reliance on a finding that
England would have attempted murder had he not been
incarcerated, the district court cleared up that issue at
10 No. 09-2500
the third sentencing hearing by explicitly stating that
it was not relying on that finding. The district court
carefully considered all of the sentencing factors under
§ 3553(a), including England’s conduct and demeanor
through the trial and three sentencing hearings. Taking
all of these factors together, the district court determined
that England’s conduct warranted the substantial sen-
tence of 210 months. Our review of the reasonableness
of a sentence is necessarily a deferential one. Finding
no procedural error and no abuse of discretion, we
find that this sentence was reasonable and A FFIRM
the district court’s decision to sentence England to
210 months.
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