NONPRECEDENTIAL DISPOSITION
To be cited only in accordance
with Fed. R. App. R. 32
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 12, 2010*
Decided May 26, 2010
Before
RICHARD D. CUDAHY, Circuit Judge
JOHN L. COFFEY, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 09-4000
Appeal from the United States District
UNITED STATES OF AMERICA, Court for the Western District of
Plaintiff-Appellee Wisconsin
v. No. 06-CR-174-C
GREGORY J. BURKS, Barbara B. Crabb,
Defendant-Appellant Judge
ORDER
On October 9, 2009, we concluded that the district court erred in sentencing Gregory
Burks when it relied upon the modified categorical approach in determining whether his
prior conviction for escape in violation of Wis. Stat.§ 946.42(3) constituted a crime of
violence in light of United States v. Woods, 576 F.3d 400, 405 (7th Cir. 2009), which held that
“the [Wisconsin escape] statute is not divisible in the sense called for by the modified
categorical approach.” We remanded the case for resentencing. United States v. Burks, 09-
*
This appeal is successive and has been submitted to the original panel under Operating
Procedure 6(b). After examining the briefs and the record, we have concluded that oral
argument is unnecessary. See Fed. R. App. P. 34(a)(2)(C).
No. 09-4000 Page 2
1642 (7th Cir. Oct. 9, 2009). At Burks’ resentencing on December 3, 2009, the trial judge
determined that Burks’ previous escape conviction was not a crime of violence and thus he
was no longer classified as a career offender. The judge proceeded to calculate a new
guideline range of 110-137 months based on Burks being responsible for distributing 46.58
grams of crack cocaine in violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 2 and imposed a
sentence of 132 months. Burks, one never to give up, again appeals his most recently
imposed sentence claiming that the district court committed a procedural error when
failing to consider his argument that the crack/powder disparity in the sentencing
guidelines warranted a below guideline sentence relying on Kimbrough v United States, 552
U.S. 85, 90 (2007) (holding that a “judge may consider the disparity between the Guidelines'
treatment of crack and powder cocaine offenses” when imposing a below guideline
sentence.) We disagree.**
We review de novo whether a district court committed any procedural error such as
failing to consider the section 3553(a) factors or failing to adequately explain the chosen
sentence. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Scott, 555 F.3d 605, 608
(7th Cir. 2007). Although “[w]e understand Kimbrough and [Spears v. United States, 129 S.
Ct. 840 (2009)] to mean that district judges are at liberty to reject any Guideline on policy
grounds,” United States v. Corner, 598 F.3d 411, 415 (7th Cir. 2010), we have also noted that
the guidelines for crack offenses have remained valid even after Kimbrough and “[j]udges
are not required to disagree with them; [thus,] a within-guidelines sentence for a crack
offense may be reasonable.” United States v. Huffstatler, 571 F.3d 620, 623 (7th Cir. 2009); see
United States v. Robertson, 571 F.3d 990, 995 (8th Cir. 2008) (holding that a district court does
not “act[] unreasonably, abuse[] its discretion, or otherwise commits error if it does not
consider the crack/powder sentencing disparity.”). “When a defendant challenges a
within-guidelines sentence as unreasonable, the judge must explain why the sentence
imposed is appropriate in light of the section 3553(a) factors.” United States v. Miranda, 505
F.3d 785, 792 (7th Cir. 2007). If the sentencing court addresses the specific section 3553(a)
factors such as the defendants criminal history and the need to achieve parity with
similarly-situated offenders in deciding upon a sentence, then the court does not commit
procedural error if it does not specifically address the crack/powder disparity argument.
Scott, 555 F.3d at 609.
At Burks’ resentencing hearing on December 3, 2009, the trial judge acknowledged
the advisory nature of the guidelines and went on to observe that Burks criminal conduct
began at the early age of nine and by the time he reached the age 22, he had amassed 20
criminal history points. The court noted that many of these prior crimes included violence,
drugs, or alcohol and specified that on six different occasions Burks had either fought or
attempted to flee from law enforcement officers. Even though Burks is no longer classified
as a career offender, the judge concluded that his lengthy history of violent criminal
No. 09-4000 Page 3
conduct mitigates against issuing a lesser sentence. The court proceeded to impose a 132
month sentence to protect the public at large and attempted to achieve parity with a
similarly situated co-defendant. “When sentencing a defendant, ‘a judge may
appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of
information he may consider, or the source from which it may come.’” United States v.
Taylor, 72 F.3d 533, 543 (7th Cir. 1995) (quoting United States v. Harty, 930 F.2d 1257, 1268
(7th Cir. 1991). “[A] sentencing judge can and must consider a defendant’s entire history in
order that he might make an informed decision as to the proper punishment.” United States
v. Coonce, 961 F.2d 1268, 1275 (7th Cir. 1992). It is evident from the record presented to the
court that the trial judge determined Burks did not warrant a below guideline sentence due
to his lengthy violent criminal record. Although the district court did not specifically
address the disparity in the sentencing guidelines between crack and powder cocaine
offenses, it is clear that the court addressed the relevant section 3553(a) factors when it
imposed this within guideline sentence.
AFFIRMED