United States v. William Kirkpatrick

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604

Submitted July 9, 2010∗
Decided July 20, 2010

Before

FRANK H. EASTERBROOK , Chief Judge

ILANA DIAMOND ROVNER, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 10-1718 Appeal from the United
States District Court for the
UNITED STATES OF AMERICA, Southern District of Illinois.
Plaintiff-Appellee,
No. 08-cr-30257-1-DRH
v. David R. Herndon,
Chief Judge.
WILLIAM S. KIRKPATRICK ,
Defendant-Appellant.

Order

Our prior opinion concluded that, before giving an above-Guideline sentence,
the district court should first determine what sentence the Guidelines would
recommend if the defendant had been convicted of the additional criminal conduct that
led the judge to think a higher sentence appropriate. 598 F.3d 414 (2009).

On remand, the district court sentenced Kirkpatrick to 78 months’ imprisonment.
(The original sentence had been 108 months.) Kirkpatrick has appealed again,

∗ This successive appeal 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); Cir. R. 34(f).
No. 10-1718 Page 2

contending that the new sentence is unreasonably high. But the sentence is within the
Guideline range calculated by the district court using the methodology of our opinion,
and an in-range sentence is presumed reasonable. See Rita v. United States, 551 U.S. 338
(2007); United States v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005). We do not see any reason
to think this sentence unreasonable, provided that the Guideline calculation is correct.

Kirkpatrick says that it is not and points to an illustration in our opinion. We
constructed a Guideline range that assigned Kirkpatrick an offense level of 24, which
produced a recommended sentence of 57 to 71 months. We added that there are “some
other ways of classifying the additional acts that might produce higher ranges, but level
24 seems most likely.” We did not discuss any of those other ways or suggest that they
would be erroneous. On remand, the district court concluded that Kirkpatrick should be
in offense level 26, which implies a suggested range of 70 to 87 months. The critical step
in that calculation was the court’s conclusion that Kirkpatrick’s lies (he said that he had
committed four murders and had put out a contract on a federal agent’s life; the district
judge concluded that he had been bragging) had substantially disrupted governmental
functions by leading law-enforcement agencies to waste 200 person-hours on an
unnecessary investigation. The judge therefore added four levels under U.S.S.G.
§2A6.1(b)(4), while not adding two levels that our opinion had suggested. (The judge
viewed these two adjustments as alternates that should not be applied cumulatively.)
This is the step that Kirkpatrick says is erroneous.

How much disruption of governmental activity is “substantial” is a matter of
degree. Leading an agency to waste 2,000 hours (one person-year of work) would be
substantial; wasting 20 hours would not be; 200 wasted hours is somewhere in
between. District judges have discretion about how to handle open-ended concepts
such as “substantial”—especially given the conclusion in United States v. Booker, 543 U.S.
220 (2005), that the Guidelines are not binding in the end. It makes little sense to confine
sentencing judges’ discretion to interpret words such as “substantial” only to say that,
once the range has been calculated, judges may use their personal understandings of
wise sentencing policies to vary from the results. When the Guidelines themselves build
in discretion, which words such as “substantial” do, district judges must be allowed
leeway.

Kirkpatrick also contends that the district judge erred in imposing a fine of
$1,000; the original fine had been $360. Our remand did not mention fines and
therefore, Kirkpatrick insists, the district judge had to stick with the original. True, our
remand did not mention fines, but we vacated the entire sentence. That is our norm.
When resentencing a defendant, the district judge is entitled to reconstruct the whole
sentence package in order to satisfy the Guidelines and the statutory criteria. There is a
tradeoff between fines and imprisonment. A fine of $1,000 remains below the Guideline
range (which for Kirkpatrick is $7,500 to $75,000), and there is no basis for upsetting this
below-range fine.

AFFIRMED