In the
United States Court of Appeals
For the Seventh Circuit
No. 13‐1256
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DARIUS R. HOWARD,
Defendant‐Appellant.
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 12‐CR‐83‐BBC — Barbara B. Crabb, Judge.
ARGUED MAY 28, 2013 — DECIDED AUGUST 30, 2013
Before EASTERBROOK, Chief Judge, and WILLIAMS and
HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Appellant Darius Howard pled
guilty to unlawful possession of a firearm by a felon, 18 U.S.C.
§ 922(g)(1), and possession of crack cocaine with intent to
distribute, 21 U.S.C. § 841(a)(1), but he reserved his right to
appeal the district court’s denial of his motion to suppress
evidence. On appeal Howard challenges both the denial of his
motion to suppress and his sentence.
2 No. 13‐1256
We affirm both the denial of the motion to suppress and the
sentence. The police had sufficient reason to stop Howard
briefly in the course of making a potentially dangerous arrest
of Howard’s associate on suspicion of violent, armed crimes.
Once Howard was stopped, the discovery of the drugs in his
pocket became inevitable. Police officers noticed that he and
his associates had bloodstains on their clothes. The police then
quickly found a gun wrapped in a bloody shirt in their vehicle.
Within moments, Howard and his associates were identified as
suspects in a very recent armed robbery and were arrested.
Because we affirm the drug conviction, Howard’s challenge to
the Sentencing Guideline calculation on his firearm conviction
is moot. His below‐guideline sentence on the drug charge was
reasonable.
I. The Motion to Suppress
A. Factual and Procedural Background
Police Detective Matthew Wiza was staking out a parking
lot looking for Marcus Johnson in Fitchburg, Wisconsin, when
a van known to be associated with Johnson arrived. Detective
Wiza had probable cause to arrest Johnson for pistol‐whipping
a man at a bar one week earlier. Johnson was also a suspect in
a recent shooting. As the van parked, Detective Wiza radioed
for backup and drove toward the van.
Johnson exited the vehicle with another man, later identi‐
fied as Christopher Carthans, and walked toward an apart‐
ment building. Detective Wiza exited his vehicle and drew his
gun, believing that Johnson could be armed and dangerous.
When Wiza was 15 to 20 feet from Johnson, he was surprised
when two more men, defendant Darius Howard and Ari
No. 13‐1256 3
Williams, exited the same van.1 Until that moment, Detective
Wiza had believed that only two men had been in the van. He
suddenly felt that he was “kind of in a bad situation because I
was in between two groups of individuals and I was outnum‐
bered.” Detective Wiza turned his gun toward Howard and
Williams, who were closer to him, and ordered all four men to
the ground to control the situation until other officers arrived.
Officer Mike O’Keefe arrived on the scene moments later.
He approached Johnson and Carthans while Wiza kept his
attention on Howard and Williams. Officer O’Keefe proceeded
to arrest Johnson. Johnson, however, made it difficult for
O’Keefe to handcuff him. Carthans took advantage of this
distraction and fled the scene. (He was later captured.) After
successfully arresting Johnson, Officer O’Keefe searched him
incident to arrest and found 11 grams of crack cocaine in a
sandwich bag in his pocket. He also noticed that Johnson had
bloodstains on his jeans and shoes. Officer O’Keefe then
secured Johnson in his patrol car.
As Officer O’Keefe was arresting Johnson, Detective Wiza
continued to detain Howard and Williams. Wiza testified that
Howard had complied with his commands, was not acting
“suspiciously in any way,” and was not “making any [furtive]
movements.” Additionally, Carthans had not yet fled at this
point. Nevertheless, Detective Wiza decided to place Howard
in handcuffs and frisk him for weapons for the officers’ safety.
1
In its recitation of the facts, the government refers to Howard and
Williams as “two more black males.” We do not understand how the race
of these men is relevant to the issues on appeal. We trust this was just
careless drafting on the part of the government.
4 No. 13‐1256
Because Detective Wiza had only one pair of handcuffs, he
frisked Howard with only one hand, keeping his gun trained
on Williams with the other.
After placing Johnson in his patrol car, Officer O’Keefe
came to help Detective Wiza. As he approached Howard and
Williams, Officer O’Keefe noticed that both, like Johnson, had
blood on their clothing. O’Keefe handcuffed Williams and then
frisked both Williams and Howard for weapons. He believed
a weapons frisk was necessary “[b]ecause of the incident that
had occurred, because of the high‐risk stop and because of the
circumstances that were taking place at our contact.” The
district court found as a fact that when Officer O’Keefe frisked
Howard, he did not know that Detective Wiza had already
given Howard a brief, one‐handed frisk. (Howard contends
that the district court’s factual determination was an error. As
explained below, this disputed point does not matter.)
Officer O’Keefe’s frisk of Howard was more thorough.
While moving his hand over Howard’s pocket, O’Keefe felt
what he believed to be a sandwich bag. O’Keefe testified that
he suspected there were drugs in the bag because he had found
a sandwich bag with drugs in Johnson’s pocket moments
earlier. O’Keefe tested this suspicion by squeezing the object
between his fingers until he felt a hard substance. He then
reached into Howard’s pocket and pulled out a sandwich bag
that contained half an ounce of crack cocaine.
At that moment, Howard and Williams were both
handcuffed, Johnson was handcuffed and in the patrol car, and
Carthans was still at large. Detective Wiza began to investigate
the reason all the men had blood on their clothes. He briefly
No. 13‐1256 5
searched the van and found a baseball bat and a gun wrapped
in a bloody shirt.2 Soon after, City of Madison police arrived
and said that the men were suspects in an armed robbery that
had occurred in Madison less than an hour earlier. (Howard
later told the police that he used the shirt to wipe the robbery
victim’s blood off the gun at Johnson’s request. This was the
basis for Howard’s federal conviction for possession of a
firearm.) Howard, Williams, and Carthans were arrested by
Madison police for the armed robbery.
Howard was also charged in federal court with the firearm
and drug offenses, and he moved to suppress the crack cocaine
and the statements he made to police following his arrest. He
argued that his detention and the second frisk that found the
drugs violated the Fourth Amendment because the police had
no basis to stop and frisk him. The district judge referred the
matter to a magistrate judge to conduct a suppression hearing.
The magistrate judge concluded that both the stop and the frisk
were reasonable measures to protect the police officers during
an unexpectedly chaotic encounter. See United States v. Howard,
12‐CR‐83‐BBC, 2012 WL 5389673 (W.D. Wis. Oct. 22, 2012).
Howard objected to the report. The district judge reviewed the
motion and reached the same result. Howard then pled guilty
but reserved his right to appeal the suppression ruling.
We review the district court’s legal conclusions de novo and
its factual determinations for clear error. United States v.
2
The magistrate judge found that Officer O’Keefe had seen the bloody shirt
when he first arrived on the scene. The district judge chose not to rely on
that finding, and we follow suit, but that finding would create a stronger
case for the stop earlier on.
6 No. 13‐1256
Clinton, 591 F.3d 968, 971 (7th Cir. 2010). Under clear error
review, “we will not overturn the district court’s factual
findings unless we are left with a definite and firm conviction
that the district court was mistaken.” Id. (quotation omitted).
We review de novo mixed questions of law and fact, such as
whether the stop and frisk were constitutional. United States v.
Burnside, 588 F.3d 511, 517 (7th Cir. 2009).
We consider separately whether first the stop and then the
frisk were constitutional. See Terry v. Ohio, 392 U.S. 1, 19–20
(1968); United States v. Brown, 188 F.3d 860, 864 (7th Cir. 1999).
We affirm the denial of the motion to suppress because (1) the
Terry stop of Howard was reasonable, and (2) regardless of
whether the frisk was constitutional at the moment it occurred,
the evidence Howard seeks to suppress inevitably would have
been discovered lawfully and independently of any arguable
constitutional violation. See Nix v. Williams, 467 U.S. 431, 444
(1984); United States v. Marrocco, 578 F.3d 627, 637‐38 (7th Cir.
2009). We begin with the stop of Howard.
B. The Terry Stop
The Fourth Amendment guarantees “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures … .”
Generally, a seizure is “‘reasonable’ only if based on probable
cause.” See Bailey v. United States, 133 S. Ct. 1031, 1037 (2013),
quoting Dunaway v. New York, 442 U.S. 200, 213 (1979). The
Supreme Court has long recognized, however, that police may
briefly stop people on reasonable suspicion that is less than
probable cause. To determine whether such intrusions are
constitutional, courts balance the intrusion on personal liberty
No. 13‐1256 7
with the governmental interest in making the seizure. See
Terry, 392 U.S. at 20–21; see also Bailey, 133 S. Ct. at 1037
(recognizing line of cases holding police intrusions based on
less than probable cause lawful where “the intrusion on the
citizen’s privacy was so much less severe than that involved in
a traditional arrest that the opposing interests in crime preven‐
tion and detection and in the police officer’s safety could
support the seizure as reasonable”) (quotations omitted).
Applying this interest‐balancing approach to the question
of reasonableness, the Supreme Court has recognized limited
situations at the scene of police activity in which it may be
reasonable for police to detain people not suspected of criminal
activity themselves, so long as the additional intrusion on
individual liberty is marginal and is outweighed by the
governmental interest in conducting legitimate police activities
safely and free from interference. See, e.g., Muehler v. Mena,
544 U.S. 93, 98 (2005) (police may detain anyone on residential
premises being searched pursuant to lawful search warrant,
regardless of individual suspicion); Maryland v. Wilson, 519
U.S. 408, 413–15 (1997) (police may order passenger out of
stopped car without suspicion; “risk of harm to both the police
and the occupants is minimized if the officers routinely
exercise unquestioned command of the situation”), quoting
Michigan v. Summers, 452 U.S. 692, 702–03 (1981); see also
Brendlin v. California, 551 U.S. 249, 258 (2007) (“It is also
reasonable for passengers to expect that a police officer at the
scene of a crime, arrest, or investigation will not let people
move around in ways that could jeopardize his safety.”).
In this case, it was reasonable for the police to stop Howard
in the course of arresting Johnson. The police were attempting
8 No. 13‐1256
to make a dangerous arrest based on probable cause. They had
a substantial interest in making the arrest safely and without
interference. Police officers executing searches for weapons,
supported by probable cause, have a legitimate interest in
securing the premises they enter. See Los Angeles County v.
Rettele, 550 U.S. 609, 613 (2007) (per curiam); Muehler, 544 U.S.
at 100. A similar interest was present here.
Detective Wiza was alone and was attempting to arrest
Johnson for a violent crime involving a gun. He was surprised
when Johnson’s associates exited the same van. He reasonably
concluded that they presented a potential threat to his ability
to arrest Johnson safely. Though Detective Wiza did not have
any particular reason at that moment to believe Howard,
Williams, or Carthans was dangerous, he was justified in at
least being cautious of those accompanying Johnson. By
ordering Howard, Williams, and Carthans to the ground,
Detective Wiza was able to control the movement of those at
the scene, to ensure that there was no interference, and to keep
them out of any potential lines of fire. This step increased the
likelihood that Johnson would be arrested safely.
We recognize that this intrusion on Howard’s liberty was
substantial. See Terry, 392 U.S. at 16–17. Being ordered to the
ground at gunpoint is a substantial infringement on individual
liberty under any circumstances. Howard was not only denied
freedom of movement but could reasonably have been terrified
by a firearm aimed at him. Anyone watching the scene might
well have believed that he was under arrest. The seizure was
significant but still did not amount to a full arrest and therefore
did not need to be supported by probable cause. See United
States v. Weaver, 8 F.3d 1240, 1244 (7th Cir. 1993) (measured use
No. 13‐1256 9
of force does not turn seizure into arrest). On these facts, the
governmental interest in ensuring that the police could safely
arrest Johnson without worrying about those who had just
exited the same vehicle with him outweighs this brief but
significant intrusion on Howard’s liberty. Essential to this
conclusion are the facts that the police had probable cause to
believe Johnson had committed a crime of violence with a gun,
and that the other men had been riding with him in the same
van. These facts are critical because they made the concern for
officer safety specific and strong. It was reasonable for Detec‐
tive Wiza to seize Howard briefly in the course of arresting
Johnson.
These limits on our reasoning are important. We have
previously held that similar detentions of bystanders violated
the Fourth Amendment when the police did not have probable
cause to believe the target of the arrest or search had commit‐
ted a violent crime or was otherwise dangerous. See Baird v.
Renbarger, 576 F.3d 340, 344–45 (7th Cir. 2009) (unreasonable
for police officer to point submachine gun at compliant
bystanders when executing search warrant involving non‐
violent crime where there was no known threat to safety and
no one tried to resist or flee; distinguishing cases finding such
conduct reasonable when danger to police was supported by
probable cause); Jacobs v. City of Chicago, 215 F.3d 758, 773–74
(7th Cir. 2000). The specific reasons to think Johnson may have
been armed and dangerous in this case distinguish these and
other similar cases.
The duration of the seizure also fit this justification.
Howard was seized—on this precautionary basis—for only a
few minutes until Johnson was arrested. Then Officer O’Keefe
10 No. 13‐1256
came over and almost immediately noticed facts that gave the
police particularized suspicion to continue to keep Howard on
the scene. Johnson, Howard, and Williams all had blood on
their clothing, clearly justifying further inquiry. The suspicion
quickly rose higher when the police discovered a bloody gun
in the van where Howard had just been riding and then
learned that he and the others were potential suspects in a very
recent armed robbery. These facts all provided reasonable
suspicion for the officers to keep Howard at the scene to
investigate the bloodstains and the bloody gun after the
justification for the initial seizure (the need to arrest Johnson
safely) ended. See Terry, 392 U.S. at 30.
Further, it is still imperative that the police not take
shortcuts that leave them in dangerous situations requiring
greater uses of force. If police were to wait for a suspect to be
in a crowd when there was a clear opportunity to arrest him
alone, a seizure of others in the area might well be found
unreasonable. Any arguable necessity for those seizures would
have been created by the actions of the police and not the
necessities inherent in ordinary police work. See United
States v. Johnson, 170 F.3d 708, 721 (7th Cir. 1999) (Evans, J.,
concurring) (“If the police use a shortcut and a need to protect
themselves arises, they run the risk of not being able to use, in
court, evidence they stumble on.”).
Regarding the seizure, Howard also argues that the use of
handcuffs was not justified and made his seizure unreasonable.
Handcuffs in a Terry stop and frisk are not and should not be
the norm. See Rabin v. Flynn, — F.3d —, 2013 WL 3455689, at *4
(7th Cir. 2013); id. at *8–*10 (Rovner, J., concurring); Ramos v.
City of Chicago, 716 F.3d 1013, 1018 (7th Cir. 2013) (“The
No. 13‐1256 11
proliferation of cases in this court in which ‘Terry’ stops
involve handcuffs … is disturbing, and we would caution law
enforcement officers that the acceptability of handcuffs in some
cases does not signal that the restraint is not a significant
consideration in determining the nature of the stop.”). Their
use is not always unconstitutional, though, at least where
police officers can point to specific reasons for believing that
handcuffing the particular person during the stop was needed
for safety or to prevent flight. See Rabin, — F.3d at —, 2013 WL
3455689, at *8–*10 (Rovner, J. concurring) (reviewing case law);
United States v. Stewart, 388 F.3d 1079, 1084–85 (7th Cir. 2004)
(approving handcuffing and seating person suspected of
armed bank robbery in back of police car); United States v.
Smith, 3 F.3d 1088, 1095–96 (7th Cir. 1993) (approving
handcuffing persons suspected of drug trafficking where
officer based action on safety concerns, the time of night, the
general environment, and the nature of the offenses); see
generally Muehler, 544 U.S. at 100 (“safety risk inherent in
executing a search warrant for weapons was sufficient to
justify the use of handcuffs, the need to detain multiple
occupants made the use of handcuffs all the more reasonable”).
On the other hand, when particularized suspicion is lacking,
restrictive means of detention generally run afoul of the Fourth
Amendment. See, e.g., Baird, 576 F.3d at 344–45; Jacobs, 215 F.3d
at 773–74.
Detective Wiza handcuffed Howard moments after
ordering him to the ground. At that time Wiza had no specific
reason to believe that Howard was involved in criminal
conduct or a threat. Howard was lying on the ground and was
compliant before he was handcuffed, and according to Wiza’s
12 No. 13‐1256
testimony, Carthans had not yet fled. The application of
handcuffs without any particularized suspicion that Howard
was a threat made the seizure much more intrusive.
But even if the use of handcuffs might have been unconsti‐
tutional, that would not require suppression of the evidence.
The application of handcuffs increased the severity of the
seizure but did not prolong it or permit the discovery of
evidence that would not have been discovered otherwise. With
or without handcuffs, the brief detention of Howard was
lawful and remained so through the time that police saw the
blood on him and found the gun in the car. The discovery of
the blood and the gun justified his continued detention. If the
application of handcuffs had been clearly unconstitutional, the
proper remedy would have been a suit against the officers
under 42 U.S.C. § 1983, not suppression of the evidence. See
Rabin, — F.3d at —, 2013 WL 3455689 at *4 (affirming qualified
immunity for officers who handcuffed subject in Terry stop to
investigate whether his possession of firearm was lawful);
Baird v. Renbarger, 576 F.3d 340, 344 (7th Cir. 2009) (affirming
denial of qualified immunity where officer pointed subma‐
chine gun at cooperative persons present at execution of search
warrant regarding non‐violent crime); El‐Ghazzawy v.
Berthiaume, 636 F.3d 452, 459–60 (8th Cir. 2011) (denying
qualified immunity for the use of handcuffs during a Terry
stop); Bowden v. Town of Speedway, 539 F. Supp. 2d 1092, 1101
(S.D. Ind. 2008) (granting detainee’s motion for summary
judgment where he was kept handcuffed in police car long
after basis for Terry stop had been resolved).
No. 13‐1256 13
C. The Second Frisk
Howard does not challenge the first frisk, which yielded no
evidence. We turn to whether the second frisk was reasonable.
The power to conduct a Terry stop does not automatically give
police the power to frisk the subject for weapons. Terry,
392 U.S. at 27. There must be a separate inquiry into whether
the frisk was constitutional, see United States v. Brown, 188 F.3d
860, 864 (7th Cir. 1999), which depends on whether the police
had a reasonable belief that the person was armed and danger‐
ous. Terry, 392 U.S. at 27. Such suspicion must be specific to the
person being searched and may not arise from mere proximity
to criminal conduct. See Ybarra v. Illinois, 444 U.S. 85, 94 (1979)
(“The ‘narrow scope’ of the Terry exception does not permit a
frisk for weapons on less than reasonable belief or suspicion
directed at the person to be frisked, even though that person
happens to be on premises where an authorized narcotics
search is taking place.”); see also Maryland v. Buie, 494 U.S. 325,
334 n.2 (1990) (“Even in high crime areas, where the possibility
that any given individual is armed is significant, Terry requires
reasonable, individualized suspicion before a frisk for weapons
can be conducted.”).
Howard’s primary argument is that it was unreasonable for
Officer O’Keefe to frisk him because O’Keefe knew that
Detective Wiza had already frisked him. The district court
found as a fact that O’Keefe did not know about the prior frisk
by Wiza. We see no error of fact or law on this issue. The
district court’s finding of fact was reasonable and certainly not
clearly erroneous. And even if the factual finding had been
erroneous, it is not necessarily unreasonable for police to frisk
a person more than once when he has been seized on the
14 No. 13‐1256
rapidly evolving scene of police activity. See United States v.
Robinson, 615 F.3d 804, 806‐08 (7th Cir. 2010) (not unreasonable
for officer to frisk defendant a second time at a chaotic scene).
The proper inquiry is whether the frisk was reasonable on
the facts known to the officer at the relevant moment. There are
many cases where a first frisk misses a hidden weapon,
sometimes with consequences that are serious or worse. Even
if Officer O’Keefe had known that Detective Wiza had given
Howard a brief frisk, it would have been reasonable to frisk
him a second time as long as he had a credible reason to
believe that Wiza might have missed a dangerous weapon. The
propriety of the second frisk turns on whether Officer O’Keefe
had reasonable suspicion to believe that Howard, at the
moment he frisked him, was a threat to officer safety.
When Officer O’Keefe searched Howard, Johnson had been
successfully arrested, and Howard was lying handcuffed on
the ground. Neither Detective Wiza nor Officer O’Keefe
articulated any specific reason for believing that Howard was
then a threat to their safety. Detective Wiza testified that he
had no reason to suspect that Howard was dangerous. Officer
O’Keefe justified the frisk “[b]ecause of the incident that had
occurred, because of the high‐risk stop and because of the
circumstances that were taking place at our contact.” True,
Carthans had fled by this point and the police investigation
was ongoing, but a frisk for weapons requires particularized
suspicion to justify the intrusion. It is difficult for us to see any
particularized suspicion that Howard was armed and danger‐
ous at that moment.
No. 13‐1256 15
In the end, though, we need not decide conclusively
whether the search exceeded the constitutional limits on Terry
frisks. Even if the frisk was unconstitutional, suppression
would not be justified as a remedy. The police would have
discovered the evidence independent of the potential constitu‐
tional violation, bringing this case within the inevitable
discovery doctrine.
D. Inevitable Discovery
The inevitable discovery doctrine permits the government
to introduce evidence seized in violation of the Fourth Amend‐
ment “if the Government can prove, by a preponderance of the
evidence, that the officers ‘ultimately or inevitably would have
… discovered [the challenged evidence] by lawful means.’”
United States v. Marrocco, 578 F.3d 627, 637 (7th Cir. 2009),
quoting Nix v. Williams, 467 U.S. 431, 444 (1984). To meet this
burden, the government must demonstrate both (1) that “it
had, or would have obtained, an independent, legal justifica‐
tion for conducting a search that would have led to the
discovery of the evidence” and (2) “that it would have con‐
ducted a lawful search absent the challenged conduct.” Id. at
637–38. Both requirements are met in this case.
While Howard was still being lawfully detained, the police
discovered bloodstains on his and the other men’s clothing,
and then found the gun in the bloody shirt in the van. These
discoveries allowed the police to extend the detention of
Howard while they investigated the source of the blood.
Within minutes, the police discovered that the blood was
probably from the victim of a recent armed robbery in which
Howard and the others were suspects. The Madison police
16 No. 13‐1256
arrived quickly, confirmed that Howard matched the descrip‐
tion of one of the suspects, and arrested him. Thus, independ‐
ent of the frisk by Officer O’Keefe, Howard would have been
searched lawfully incident to that arrest. See Davis v. United
States, 131 S. Ct. 2419, 2424 (2011) (recognizing rule that
“officer who makes a lawful arrest may conduct a warrantless
search of the arrestee’s person”). The crack would have been
discovered then, independent of any arguable violation
involved in the second frisk.
No step in that hypothetical sequence would have violated
the Fourth Amendment or depended on any Fourth Amend‐
ment violation. The two aspects of the actual events that raise
the most serious constitutional questions—the handcuffing and
the frisk—are independent of this chain of events. The hand‐
cuffs did not prolong the seizure, and the police discovered the
bloodstains, gun, and bloody shirt so quickly that arrest and a
search incident to arrest were inevitable. Even if the second
frisk was not lawful, the motion to suppress was properly
denied.
II. Sentencing
The district court sentenced Howard to concurrent prison
sentences of 120 months for the gun offense and 180 months
for the drug offense. Howard raises two challenges to his
sentence: (1) that the district court improperly applied an
armed robbery cross‐reference when calculating the guideline
range for the gun offense, and (2) that his below‐guideline 180‐
month sentence for the drug offense was unreasonable. Neither
argument is persuasive.
No. 13‐1256 17
A. Armed Robbery Cross‐Reference
Howard first argues that the district court incorrectly
calculated his offense level for the gun offense by erroneously
applying an armed robbery cross‐reference for his involvement
in the earlier armed robbery. The guideline for unlawful
possession of a firearm instructs the court to use the offense
level for another offense in the guideline calculation, here
armed robbery, if the defendant possessed the firearm during
the other offense and the offense level for the other crime
would be greater. U.S.S.G. § 2K2.1(c)(1)(A). Howard argues
that the cross‐reference should not apply because he did not
possess the gun during the robbery itself but only afterward.
The cross‐reference raised the base offense level for Howard’s
gun offense from 24 to 33. Howard’s base offense level for the
drug offense, however, was 34, meaning the guideline range
for the drug offense was greater than for the gun offense.
Howard raised this argument to preserve it in the event
that the drug conviction was overturned, but counsel correctly
noted at oral argument that the issue would not matter if we
affirm the denial of the motion to suppress because the 120‐
month sentence for the firearm offense runs concurrently with
the longer 180‐month sentence for the drug offense. Regardless
of whether the cross‐reference was correctly applied, the length
of Howard’s sentence remains the same: 180 months. We need
not decide whether the cross‐reference was properly applied
in this case.
B. Reasonableness of the 180‐Month Sentence
Howard also argues that his 180‐month sentence was
erroneous because the district judge (1) did not comment on
18 No. 13‐1256
his arguments that prosecutorial heavy‐handedness was the
real reason he was a career offender and that the federal
sentence should run concurrently with any state‐imposed
sentence, and (2) imposed a substantively unreasonable
sentence. We review de novo the procedural argument that the
court failed to consider Howard’s arguments, see United
States v. Marin‐Castano, 688 F.3d 899, 902 (7th Cir. 2012), and
we review the substantive reasonableness of a sentence for
abuse of discretion, see Gall v. United States, 552 U.S. 38, 46
(2007). The district court must show that it exercised its
discretion by commenting on a defendant’s principal argu‐
ments that are “not so weak as not to merit discussion,” United
States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005), but
“little explanation is necessary when a court decides to impose
a sentence within the Guidelines range.” United States v. Tyra,
454 F.3d 686, 688 (7th Cir. 2006). Howard’s 180‐month sentence
was below the correctly calculated guideline range of 188 to
235 months and is presumed reasonable in an appeal by the
defendant. See United States v. Poetz, 582 F.3d 835, 837 (7th Cir.
2009).
The district court adequately considered Howard’s argu‐
ments. The judge considered and rejected Howard’s argument
that a more lenient sentence would have been appropriate
because he qualified as a career offender only because of
prosecutorial heavy‐handedness. The judge rejected the
premise of the argument, explaining that Howard was “so
close to aging out that either he was—either he was waived
into adult court or he wouldn’t have any kind of a sentence to
serve at all in response to a crime that involved someone
having eight stitches.” The judge then went on to explain why
No. 13‐1256 19
the 180‐month sentence was reasonable based on the particular
circumstances of the case: Howard had been involved in
criminal activity since he was thirteen years old, had shown no
sign of stopping, continued to possess firearms after being
convicted of a felony, and posed a continuing threat to the
community. This response shows that the judge considered
and rejected Howard’s argument that the guideline range did
not accurately reflect his criminal history. See Poetz, 582 F.3d at
838 (noting that a full “[e]xplanation is not necessary where
anyone acquainted with the facts would have known without
being told why the judge had not accepted the argument”)
(quotations omitted).
The judge also acknowledged and rejected the argument
that the sentence should run concurrently with any state‐
imposed sentence. District judges now have discretion to order
a federal sentence to run concurrently with or consecutively to
an anticipated state sentence. Setser v. United States, 132 S. Ct.
1463, 1473 (2012). The judge expressly declined to order
concurrent state and federal sentences. The judge said she had
spent a lot of time thinking about the sentence and had
ultimately decided to reject a sentence concurrent with a state
sentence, believing it was important that Howard serve a 15‐
year federal sentence. This explanation was minimal but
sufficient to show that the judge exercised her discretion by
considering Howard’s argument. See United States v. Curby,
595 F.3d 794, 797 (7th Cir. 2010) (per curiam) (general state‐
ment that judge considered argument is a sufficient exercise of
discretion; distinguishing previous cases requiring remand on
ground that they involved unaddressed arguments).
20 No. 13‐1256
Finally, the 180‐month sentence is substantively reasonable.
It was below the applicable guideline range and therefore is
presumed reasonable on an appeal by the defendant. See, e.g.,
Poetz, 582 F.3d at 837. The district judge considered the
statutory factors under 18 U.S.C. § 3553(a). She discussed the
nature and circumstances of the offense and Howard’s
personal characteristics, and she explained the need for a long
sentence to protect the public, to promote respect for the law,
and to provide Howard with correctional programming. The
judge also expressed regret that there was not an alternative to
a prison sentence and discussed Howard’s mitigating argu‐
ments concerning his difficult childhood. The judge gave this
case serious consideration and settled on a reasonable below‐
guideline sentence.
The judgment of the district court is AFFIRMED.