In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1896
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C HARLES S TATES,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 cr 464-6—Ronald A. Guzman, Judge.
A RGUED M ARCH 30, 2011—D ECIDED JULY 19, 2011
Before F LAUM, W OOD , and T INDER, Circuit Judges.
F LAUM, Circuit Judge. Charles States was a member of
the Carman Brothers Crew, a group comprised of
members and former members of the Latin Kings and Vice
Lords gangs. Along with other defendants, States was
convicted of a host of criminal charges in relation to the
crew’s activities. The racketeering charges netted him
three life terms of incarceration. On appeal, States argues
that he is entitled to a new trial because certain self-
2 No. 10-1896
incriminating statements he made were elicited in vio-
lation of the Fifth and Sixth Amendments to the
United States Constitution. He also urges that he suffered
prejudice when all of the counts with which he was
charged were tried before a single jury. As a fallback,
he asks for re-sentencing. We affirm.
I. Background
Charles States was a member of the Carman Brothers
Crew. The group trafficked in illegal narcotics and was
formed (among other reasons) to obtain drugs, money,
and other property by force. The means they adopted to
accomplish these ends included violent kidnappings,
robbery, and extortion. For example, sometime around
July 2001, the crew abducted a drug dealer and stole
illegal narcotics and firearms from him. During that
incident, States forced the victim into a car, striking
him with the butt of a handgun as he did so. The victim
was subsequently bound and tied to a metal pole
during the kidnapping, and States stood watch. For his
involvement, he reaped a payment of approximately
one kilogram of cocaine, which he ultimately sold for
approximately $21,000. The next month, States par-
ticipated in three more kidnappings, part of an effort
to recover drugs that had been stolen from the crew.
The crew threatened one of the victims with murder,
held him for seven days handcuffed to a bed frame,
and stole his Rolex watch. States shot and killed the vic-
tim’s dog and was paid for his involvement with the
hijacked timepiece.
No. 10-1896 3
In May 2002, the government filed a criminal
complaint with a federal magistrate judge in order to
obtain an arrest warrant for States and five other
members of the Carman Brothers Crew. See Fed. R. Crim.
P. 3 & 4 (describing the complaint and its function in
establishing probable cause for one or more arrest war-
rants). The magistrate judge issued arrest warrants for
States and five others.
Five months later, in October 2002, two federal agents
and three Chicago police officers attempted to take
States into custody. They showed up at his apartment,
knocked, and announced their presence. States re-
sponded with a hail of gunfire through the door. (Of the
five rounds he discharged, one struck a police officer in
the hand.) The agents and officers responded in kind
and States quickly gave himself up. He was taken
into custody. Several hours after his arrest, States was
questioned. The statements he made, admitted at trial
through the testimony of an FBI agent who participated
in the interrogation, proved self-incriminating. Ac-
cording to the agent, States received Miranda warnings
and waived his right to counsel. He then admitted to
and described his participation in kidnappings. The goal
of the abductions was to obtain drugs from rival drug
organizations. In addition, States admitted to cooking
up—that is, manufacturing—crack cocaine. As for the
circumstances surrounding his arrest, States tried to
explain that after hearing loud knocks at his door, he
peered out a window and did not see any police cars.
Apparently concerned that his security was being threat-
ened, he grabbed a weapon, aimed it at the door, and
4 No. 10-1896
fired several rounds through the door. Only after fire
was returned, States told the agent, did he hear the
officers make their affiliation with law enforcement
known to him.
After his arrest, a grand jury returned an indictment
and then a superseding indictment in the case. The
lengthy charging document named States in 12 of 28
counts. Ten of the counts related to States’s conduct
prior to his arrest: racketeering, in violation of 18 U.S.C.
§ 1962(c); conspiring to commit racketeering, in violation
of 18 U.S.C. § 1962(d); conspiring to possess a controlled
substance with intent to distribute it, in violation of
21 U.S.C. § 846; two counts of possessing a controlled
substance with intent to distribute it, in violation of
21 U.S.C. § 841(a)(1); committing extortion, in violation
of 18 U.S.C. § 1951; three counts of possessing a firearm
in relation to drug offenses or crimes of violence, in
violation of 18 U.S.C. § 924(c)(1)(A); and possessing
firearms with obliterated serial numbers, in violation of
18 U.S.C. § 922(k). Two counts were based on the fact
that States did not go gently into federal custody: he
was charged with attempting to kill a federal agent, in
violation of 18 U.S.C. § 1114, and with the federal
analogue to resisting arrest, in violation of 18 U.S.C.
§ 111(a)(1) & (b).
Prior to trial, States moved to suppress the post-
arrest statements he made to law enforcement, arguing
that his statements were elicited in violation of his
Fifth Amendment right against self-incrimination and
his Sixth Amendment right to counsel. The district court
No. 10-1896 5
rejected States’s Sixth Amendment argument outright,
ruling that the right to counsel was not triggered by
his arrest and interrogation. States’s Fifth Amendment
argument, which was that he invoked (but was denied)
his right to counsel prior to making self-incriminating
statements, was referred to a magistrate judge for an
evidentiary hearing. The magistrate judge recommended
denying the suppression motion; he believed the testi-
mony of several law enforcement officers who said that
States never requested a lawyer. The district court
adopted the report and recommendation.
The case went to a jury, and States was convicted of each
of the 12 counts with which he was charged. States filed
a post-trial motion with the district court seeking a
new trial, arguing for the first time that the charges
related to his racketeering and drug trafficking activities
should not have been joined with the charges related
to his arrest and possessing firearms with obliterated
serial numbers. The district court denied the motion
along with one other motion not implicated in this ap-
peal. Thereafter, the district court ordered that States
be given a top-of-the-guidelines sentence of three con-
current life terms in prison. In addition, and by opera-
tion of statute, States was sentenced to a consecutive
term of imprisonment of 57 years for his violations of 18
U.S.C. § 924(c)(1)(A), using a firearm in relation to a
drug trafficking offense or crime of violence.
II. Discussion
On appeal, States argues that the district court erred by
refusing to suppress the post-arrest statements he made
6 No. 10-1896
to police, statements which he says were elicited in viola-
tion of the Fifth and Sixth Amendments to the United
States Constitution. He also maintains that he is entitled
to a new trial because the counts against him were
misjoined or because joinder was prejudicial. At a mini-
mum, he urges that he should be re-sentenced because
the judge improperly ordered part of his sentence to
run consecutively with his life terms of imprisonment
and failed adequately to consider statutory sentencing
factors. We take up each argument in turn.
A. Suppression of Post-Arrest Statements
When reviewing a district court’s ruling on a motion
to suppress evidence, we review conclusions of law
de novo and findings of fact for clear error. United States
v. Vasquez, 635 F.3d 889, 894 (7th Cir. 2011). The Sixth
Amendment challenge he makes raises a pure issue of
law. The particular Fifth Amendment challenge he
makes, however, turns on whether States invoked
his Miranda rights when he was subjected to custodial
interrogation. That is a largely fact-driven inquiry.
United States v. Salyers, 160 F.3d 1152, 1159 (7th Cir. 1998)
(teaching that whether a custodial interrogation oc-
curred is reviewed de novo but that “historical” facts are
reviewed for clear error). “A factual finding is clearly
erroneous only if, after considering all the evidence, we
cannot avoid or ignore a definite and firm conviction
that a mistake has been made.” United States v. Jackson,
598 F.3d 340, 344 (7th Cir. 2010) (quotation marks omitted).
In addition, we are particularly reticent to call into ques-
No. 10-1896 7
tion a lower court’s credibility determinations, formed
as they were after the opportunity to listen to testimony
and observe witnesses. E.g., United States v. Villalpando,
588 F.3d 1124, 1127 (7th Cir. 2009); United States v. Groves,
530 F.3d 506, 510 (7th Cir. 2008).
1. Fifth Amendment
The Fifth Amendment to the United States Constitution
provides that “[n]o person . . . shall be compelled in any
criminal case to be a witness against himself.” States’s
chief contention is that his confession was taken in viola-
tion of the prophylactic constitutional rule announced
in Miranda v. Arizona, 384 U.S. 436 (1966). When a
person is subject to custodial interrogation, law enforce-
ment must first provide that case’s familiar, eponymous
warnings. Thereafter, questioning must cease if the
person indicates that he wishes to remain silent or desires
an attorney’s presence. Maryland v. Shatzer, 130 S. Ct. 1213,
1219 (2010). States contends that he was taken into
custody, subjected to interrogation, and invoked his
right to remain silent. Because questioning did not cease,
the statements he made should be suppressed. His argu-
ment is theoretically sound, but is undermined by the
finding that States’s testimony at the suppression
hearing was not credible. Although States maintains
that the finding was clear error, he does not explain why.
Indeed, States’s brief devotes itself primarily to re-
counting the version of events as supplied by his testimony
at the suppression hearing. Here is the testimony: After
being handcuffed, he says he was kicked in the head one
8 No. 10-1896
or more times by the officer he shot (or by another offi-
cer). Then, while in a police car at the arrest scene,
States had to fend off two attempts to ask him questions
about the shooting. He invoked his right to remain silent.
After he was brought to the police station, the FBI and
police subjected him to various strong-arm tactics. He
was denied access to a bathroom and was forced to
urinate in the room to which he was confined. When
FBI agents first asked him if he was “ready” to talk, States
said he needed a lawyer. Undaunted, agents kept ques-
tioning him. Only later, he says, were Miranda warnings
read to him. The problem for States is two-fold. First,
the testimony of numerous law enforcement officers
varied markedly from States’s version. Simply put, they
said that no one kicked States or questioned him at the
arrest scene, that States never asked for a lawyer, and
that they did not put the screws to him at any time.
More serious than the testimony by law enforcement,
of course, is the magistrate judge’s acceptance of it. Criti-
cally, the magistrate judge concluded that the testimony
of the law enforcement officers was credible and that
States’s testimony was not. The thorough report and
recommendation, which reviewed the evidence offered
at the suppression hearing and which was subsequently
adopted by the district court, concluded that no
one interrogated States before he was given Miranda
warnings.
In his brief to us, States does not present meaningful
argument about why the credibility determinations
and weighing of the evidence amounted to clear error.
Instead, he presupposes the truth of his own version
No. 10-1896 9
of events; that does nothing to explain why the
evidence should leave us with the “definite and firm
conviction that a mistake has been made.” Jackson,
598 F.3d at 344. The extensive treatment in States’
brief—rehearsing his version of events and expounding
upon the importance of Miranda—is inadequate to the
challenging task of establishing clear error. See United
States v. Terry, 572 F.3d 430, 434 (7th Cir. 2009) (“We do
not second-guess the judge’s credibility determinations
because he or she has had the best opportunity to
observe the subject’s facial expressions, attitudes, tone
of voice, eye contact, posture and body movements.”)
(alterations omitted). We will not upset a credibility
determination unless it is “completely without founda-
tion.” E.g., United States v. Huebner, 356 F.3d 807, 812
(7th Cir. 2004). States does not meet that standard.
In addition to his argument that his statements were
elicited in violation of Miranda, States contends for the
first time on appeal that the statements were not volun-
tary. Specifically, he maintains that the statements were
not voluntary because he was kicked in the head
and questioned by law enforcement at the scene at a
time when he was surrounded by numerous law enforce-
ment officers. Because States did not raise the argument
in the district court, it is subject to plain error review.
See Fed. R. Crim. P. 52(b). In order to establish plain
error, a defendant must show (1) that there was an error
or defect that was not intentionally relinquished or aban-
doned; (2) the error was clear or obvious, “rather
than subject to legal dispute”; and (3) the error affected
10 No. 10-1896
the defendant’s substantial rights (generally, the out-
come). Puckett v. United States, 129 S. Ct. 1423, 1429 (2009)
(citing United States v. Olano, 507 U.S. 725 (1993)). When
all three prongs are established, we have “the discretion
to remedy the error—discretion which ought to be ex-
ercised only if the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.”
Id. (quotation marks and alterations omitted); United
States v. Tanner, 628 F.3d 890, 898 (7th Cir. 2010).
States cannot get past the first prong of plain error
review for the same reason his Miranda-based argument
fails—the twin findings that States’s testimony was not
credible and that the testimony of law enforcement
officers was credible. To be sure, a confession that is not
obtained voluntarily violates the Fifth Amendment’s
guarantee that no person shall be compelled in any crimi-
nal case to be a witness against himself. Dickerson v.
United States, 530 U.S. 428, 433 (2000) (recounting the
common-law roots and constitutional bases of the volun-
tariness test); Schneckloth v. Bustamonte, 412 U.S. 218, 226-
28 (1973) (inquiry is “whether a defendant’s will was
overborne in a particular case” and turns on the totality
of the circumstances). However, the primary reason
States advances for concluding that his confession was not
voluntary—the kick or kicks he said he endured
when being taken into custody—is an event that the
magistrate judge determined did not take place. Like-
wise, the magistrate judge rejected States’s contention
that two officers attempted to question States while still
at the arrest scene and concluded that no interrogation
took place until after States was provided with Miranda
No. 10-1896 11
warnings. And insofar as he argues that the presence
of numerous officers on the scene rendered involuntary
any subsequent confession, the argument gains little
traction. Make no mistake, the concern that States
identifies informed the Court’s holding in Miranda. “An
individual swept from familiar surroundings into
police custody, surrounded by antagonistic forces, and
subjected to . . . techniques of persuasion . . . cannot be
otherwise than under compulsion to speak.” Miranda,
384 U.S. at 461. Yet, crediting the finding that no ques-
tioning occurred until after warnings were pro-
vided—again, States advances no good reason to cast
the finding aside—leads only to the conclusion that
law enforcement took the steps designed to ensure that
States’s statements to law enforcement were voluntary.
Id. at 468 (“[T]he warning will show the individual that
his interrogators are prepared to recognize his privilege
should he choose to exercise it.”). States has not con-
tended that any waiver of his Miranda rights was not
knowing or voluntary, see Moran v. Burbine, 475 U.S. 412,
421 (1986), and on these facts the argument would not
succeed. In sum, this is not the sort of extremely rare
case, e.g., Puckett, 129 S. Ct. at 1429 (quoting United States
v. Dominguez Benitez, 542 U.S. 74, 83 n.9 (2004)), that
satisfies the plain error standard.
2. Sixth Amendment
Prior to his October 2002 arrest, the government filed a
criminal complaint charging States with multiple viola-
tions of federal criminal law. States contends that the
12 No. 10-1896
complaint constituted formal judicial proceedings such
that Sixth Amendment protections come into play. There-
fore, his statements should be suppressed whether or
not coerced or Miranda-compliant. All of our sister cir-
cuits to have examined the issue have concluded that
the mere filing of a federal criminal complaint does not
trigger the right to counsel. See United States v. Boskic, 545
F.3d 69, 83 (1st Cir. 2008)); United States v. Duvall, 537
F.2d 15, 22 (2d Cir. 1976) (Friendly, J.); United States v.
Alvarado, 440 F.3d 191, 200 (4th Cir. 2006); United States v.
Moore, 122 F.3d 1154, 1156 (8th Cir. 1997); United States v.
Pace, 833 F.3d 1307, 1310-12 (9th Cir. 1987); United States
v. Langley, 848 F.2d 152, 153 (11th Cir. 1988) (per curiam).
A recent ruling by the Supreme Court removes any
doubt about whether those cases were rightly decided.
The Sixth Amendment to the United States Constitution
provides: “In all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for
his defence.” The amendment embodies “a realistic
recognition of the obvious truth that the average
defendant does not have the professional legal skill to
protect himself.” Maine v. Moulton, 474 U.S. 159, 169 (1985)
(quoting Johnson v. Zerbst, 304 U.S. 458, 462-63 (1938)).
After the right attaches, an accused has the right to
counsel at “critical stages” in the proceedings against
him. Iowa v. Tovar, 541 U.S. 77, 80 (2004). The Supreme
Court has explained that the right to counsel “attaches
only at or after the initiation of adversary judicial pro-
ceedings against the defendant.” United States v. Gouveia,
467 U.S. 180, 187 (1984). The question is whether filing
a criminal complaint under Rule 3 of the Federal Rules
No. 10-1896 13
of Criminal Procedure constitutes the initiation of adver-
sary judicial proceedings. The Supreme Court’s holding
in Rothgery v. Gillespie County, Texas, 554 U.S. 191 (2008),
answers the question: “[A] criminal defendant’s initial
appearance before a judicial officer, where he learns
the charge against him and his liberty is subject to re-
striction, marks the start of adversary judicial proceedings
that trigger attachment of the Sixth Amendment right
to counsel.” Id. at 213 (emphasis added). Thus, in the
federal system, the initial appearance, Fed. R. Crim. P. 5,
marks the point at which interrogations by law enforce-
ment cease to be controlled by the Fifth Amendment
and begin to be governed by the Sixth Amendment. States
did not enjoy the latter amendment’s protections at
the time of his interrogation.
Of course, even if States’s legal position were the law,
his case would still be undermined by the facts. The
Supreme Court recently reminded us that “the Sixth
Amendment right to counsel may be waived . . . whether
or not [the defendant] is already represented by
counsel . . . . And when a defendant is read his Miranda
rights (which include the right to have counsel present
during interrogation) and agrees to waive those rights,
that typically does the trick.” Montejo v. Louisiana, 129
S. Ct. 2079, 2085 (2009). The ineffectively assailed facts
here are that States never asserted his right to counsel
or his right to remain silent and that, when questioned
for the first time, States was given Miranda warnings
and then made self-incriminating statements. To para-
phrase Montejo, that would have “done the trick.” In
sum, we agree with the district court that States’s Sixth
14 No. 10-1896
Amendment rights were not violated and his state-
ments should not have been suppressed.
B. Joinder of Offenses
States’s next argument is that the counts related to
possessing firearms with obliterated serial numbers and
the circumstances surrounding his arrest—his decision
not to go quietly—were misjoined with the other gun-
related, drug-related, and racketeering offenses. He
also argues that joinder was prejudicial. Normally, we
review a claim of misjoinder de novo and review a
claim that joinder was prejudicial for abuse of discretion.
United States v. Ross, 510 F.3d 702, 710 (7th Cir. 2007).
In this case, however, both arguments have been waived
(rather than forfeited), precluding appellate review. See
United States v. Pineda-Buenaventura, 622 F.3d 761, 766 n.2
(7th Cir. 2010) (explaining that forfeited issues are
those “not raised negligently or accidentally”); United
States v. Taylor, 637 F.3d 812, 816 (7th Cir. 2011) (for-
feited claims are reviewed for plain error). However,
the distinction between waiver versus forfeiture by refer-
ence to litigation conduct in the district court—the
chief dispute between the parties—matters little. States
waived his misjoinder argument with us by arguing in
his opening brief only that joinder was prejudicial. See
United States v. Dabney, 498 F.3d 455, 460 (7th Cir. 2007).
As to prejudicial joinder, States falls far short of the
showing we require before a new trial is warranted.
Under Federal Rule of Criminal Procedure 8(a), an
indictment or information may charge multiple offenses
No. 10-1896 15
if they are “of the same or similar character, or are
based on the same act or transaction, or are connected
with or constitute parts of a common scheme or plan.” 1
We look to the face of the indictment in determining
whether joinder was proper and we construe the rule
broadly, “in the interest of conserving judicial resources
and avoiding costly, duplicative trials.” United States
v. Blanchard, 542 F.3d 1133, 1141 (7th Cir. 2008). While
Rule 8(a) speaks to whether joinder of charges is proper,
a defendant may nonetheless move to sever charges if
combining them would prejudice him. Fed. R. Crim.
P. 14(a); United States v. Rollins, 301 F.3d 511, 517 (7th
Cir. 2002). Still, a defendant cannot challenge the
decision to try multiple counts together whenever he so
chooses. Under Rule 12(b)(3), certain motions must be
filed prior to trial. Among them are motions alleging
a defect in the indictment (e.g., misjoinder) and motions
to sever charges under Rule 14. See Fed. R. Crim.
P. 12(b)(3)(B), (b)(3)(D). If a defendant does not comply
with Rule 12(b)(3), the motion is waived unless good
cause can be shown. Fed. R. Crim. P. 12(e).
In this case, there is little question that States waived,
rather than forfeited, his arguments. Prior to trial, he
moved to sever his co-defendants under Rules 8 and 14.
Both of those rules discuss joinder and severance based
1
The government has not argued that Rule 8(a) does not
apply because this was a multi-party case. See Ross, 510 F.3d
at 710 n.2. We take up the issue of waiver only as it has
been argued to us.
16 No. 10-1896
on defendants and charges. Moving to sever on one
ground but not the other suggests that the decision
was intentional. The conclusion is bolstered here
because one of States’s co-defendants did file a motion
to sever charges. And in ruling on the motion, the district
court noted that States had not moved to sever on that
basis. States made no response to the district court at
that time. Having had the issue of severing charges
brought to his attention, States did not seek to have the
charges severed at the close of trial before the jury
returned a verdict. See United States v. Plato, 629 F.3d 646,
650 (7th Cir. 2010) (failure to renew a motion to sever
generally results in waiver). The rule that parties
generally waive severance arguments by failing to renew
their motions has the salutary “effect of discouraging
strategic choices by criminal defendants who would
prefer to wait for a verdict before renewing their
severance arguments.” Rollins, 301 F.3d at 518. The
concern that informs our waiver rule is implicated on
these facts. Although States had not moved to sever
prior to trial, he was aware of the tactic by the time of
the close of evidence; he made no effort to have the
charges severed until after the verdict. By keeping
his powder dry, States waived both his misjoinder and
prejudicial joinder arguments.
Our conclusion disposes of the issue. Nonetheless,
we note that States would not prevail even if he had,
through his conduct in the district court, preserved the
issue. His opening brief with us develops an argument
only with respect to prejudicial joinder. Therefore, the
misjoinder argument would have been waived a second
No. 10-1896 17
time. Dabney, 498 F.3d at 460. And a plain error standard,
States’s best-case scenario, would do little to help his
prejudicial joinder argument. Contending that the “cir-
cumstances relating to [the counts at issue] were
separate, distinct, and unrelated to” the other counts
does little work on his behalf. If the evidence of the
crimes was distinct, then there is little risk that the
jury used evidence of one crime as evidence of another.
United States v. Coleman, 22 F.3d 126, 135 (7th Cir. 1994)
(upholding a decision not to sever charges where
“[t]he incidents were discrete as was the proof offered at
trial”). The more serious contention, in the abstract, is
that the jury might have been prejudiced against States
on the drug-related and racketeering counts by the al-
legation that States attempted the murder of a federal
agent. On these facts, at least, we are unpersuaded,
because States offers little more than the assertion that he
was prejudiced. The proposition is far from self-evident.
To obtain a new trial for prejudicial joinder under
Rule 14, a “defendant must be able to show that the
denial of severance ‘caused him actual prejudice in that
it prevented him from receiving a fair trial; it is not
enough that separate trials may have provided him a
better opportunity for an acquittal.’ ” United States v.
Quilling, 261 F.3d 707, 715 (7th Cir. 2001) (quoting United
States v. Alexander, 135 F.3d 470, 477 (7th Cir. 1998)). The
claim that a charge of attempted murder by itself
resulted in prejudicial spillover with respect to the other
charges is the sort of “garden variety side effect” present
in every case in which multiple counts are joined. See
United States v. Boulanger, 444 F.3d 76, 88 (1st Cir. 2006).
18 No. 10-1896
Although States does not present extensive argument
on the matter, we perceive little basis for concluding
that he was deprived of a fair trial. First, the jury was
instructed to consider each count separately, and we
presume that the jury did so. United States v. Lewis, 567
F.3d 322, 328 (7th Cir. 2009) (absent evidence to the con-
trary “we presume that the jury limited its consideration
of the testimony in accordance with the court’s instruc-
tion”) (quoting United States v. Mallett, 496 F.3d 798,
802 (7th Cir. 2007)). The presumption can be overcome,
but this is not a case where, for example, the jury might
have been unable or unwilling to follow instructions
because unrelated non-violent charges were joined with
violent ones, such that the jury might have reached the
conclusion that the defendant “was a bad and dangerous
person.” Cf. United States v. Holloway, 1 F.3d 307, 312 (5th
Cir. 1993). The racketeering charges alleged numerous
incidents of violent conduct—including States’s use of
violence in effecting a kidnapping and his killing of a
victim’s dog. What is more, the evidence appears to have
been overwhelming. See United States v. Jones, 482 F.3d
60, 78 (2d Cir. 2006) (insufficient showing of prejudice
where allegation of murder “while inflammatory, was
not substantially more so than some of the other evi-
dence”). Nor does this appear to be a case where a
dearth of evidence on one or more joined counts created
a risk of conviction based on evidence related only to
other counts. See Ross, 510 F.3d at 711 (prejudice unlikely
where evidence of guilt “was simply overwhelming”); cf.
also Schaffer v. United States, 362 U.S. 511, 516 (1960) (noting
that a trial judge should be “particularly sensitive” to the
No. 10-1896 19
possibility that prejudice will result when it turns out
that a joined charge lacks support in evidence).
Had plain error applied, States would have had to
overcome a significant hurdle in establishing that he
was denied a fair trial. The matter has been waived,
of course, but his mere contention that joinder was prej-
udicial, without more, would have been insufficient
to meet his burden.
C. Sentencing
The sentencing arguments that States makes do not
merit extensive discussion. States argues first that 7 years
of his sentence should run consecutively with his three
concurrent life sentences. He bases his argument on the
meaning of the so-called “except” clause of 18 U.S.C.
§ 924(c)(1)(A), a sentencing proviso lately the subject of a
circuit-split. See 18 U.S.C. § 924(c)(1)(A) (imposing
a mandatory term of imprisonment “[e]xcept to the
extent that a greater minimum sentence is otherwise
provided by [§ 924(c)] or by any other provision of law”).
The argument is that, because one of his convictions
was for using or carrying a firearm in relation to a drug
trafficking crime with a higher mandatory minimum
than the gun offense, the sentence for the drug crime
effectively erases the sentence for the gun offense (in-
cluding its consecutive nature). He concedes that he
would still be subject to two consecutive sentences of
25 years each for his other § 924(c)(1)(A) convictions.
There is a circuit-split no longer, as the Supreme Court
foreclosed the argument States makes in Abbott v. United
20 No. 10-1896
States, 131 S. Ct. 18, 23-24 (2010). The case was decided
after States filed his opening brief, and it is dispositive
of the issue. The district court properly concluded that
all of the 57 years from his § 924(c)(1)(A) convictions
should run consecutively with his three (concurrent)
life terms of imprisonment.
Finally, States argues that the district court failed to
consider one of his non-frivolous sentencing arguments
and failed adequately to consider the statutory sen-
tencing factors spelled out in 18 U.S.C. § 3553(a). Failure
to do either would constitute procedural error. E.g.,
United States v. Scott, 631 F.3d 401, 409 (7th Cir. 2011). The
problem for States is that his contentions are belied
by the record. States requested that the district court
consider his difficult upbringing in meting out his sen-
tence. The district court did precisely that. Addressing
a letter that the judge received from States’s mother, the
judge said that the letter contained “a depressing descrip-
tion of a difficult and hard life . . . and I take that
into consideration as well.” However, the judge
concluded that States lacked that capacity to empathize
with other human beings or comply with society’s rules.
In sentencing terms, the district court considered the
argument States offered against others of the statutory
sentencing factors that district courts are required to
consider. See 18 U.S.C. § 3553(a)(2)(C) (protection of
public from further crimes), (a)(2)(B) (adequacy of sen-
tence as means of deterrence). States may not like the
outcome of the district court’s consideration of his argu-
ments, but the quality of analysis satisfies that which
we require of district courts. There was no error here.
No. 10-1896 21
III. Conclusion
For the reasons set forth above, the judgment of the
district court is A FFIRMED.
7-19-11