NONPRECEDENTIAL DISPOSITION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 26, 2013
Decided August 13, 2013
Before
FRANK H. EASTERBROOK, Chief Judge
WILLIAM J. BAUER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 12-3856
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Western Division.
v.
No. 05 CR 50018
REGINALD D. PURVIS,
Defendant-Appellant. Philip G. Reinhard,
Judge.
ORDER
This case has been up and down the federal court system three times and is now before
this Court for the fourth time. It originates from Reginald D. Purvis’ decision in February
2006 to plead guilty to a single charge of conspiracy to possess and distribute at least 50
grams of crack cocaine, see 21 U.S.C. § 846, and the district court’s imposition of a 264-
month prison sentence on that charge in June 2006. Between then and now, the case has
No. 12-3856 Page 2
developed a fairly complex procedural posture, most of which is not directly relevant to
the issue we are deciding here. (See United States v. Purvis (Purvis I), 207 Fed. App’x 691
(7th Cir. 2006) (unpublished), Purvis v. United States, No. 09-1994 (7th Cir. Nov. 19, 2009)
(unpublished), and Purvis v. United States (Purvis II), 662 F.3d 939 (7th Cir. 2011) for a more
thorough understanding of the case’s background.) But in short, in Purvis II we remanded
the case for resentencing.
The main issue during resentencing was the calculation of the relevant Guidelines
range, which is also the cynosure of this appeal. Complicating this case, after Purvis
pleaded guilty to the underlying offense and was originally sentenced in June 2006, there
was a change in his “criminal history.” We take a moment to explain the change.
The original sentence in this case was imposed based on the following criminal history:
on January 11, 1993, Purvis was arrested and charged in Winnebago County, Illinois, with,
among other things, possession with intent to deliver cocaine (Case No. 93 CF 57).
Seventeen days later, on January 28, Purvis was arrested and again charged in Winnebago
County with, among other things, possession with intent to deliver cocaine (Case No. 93
CF 212). Then, on July 27, 1993, Purvis and numerous other co-conspirators were indicted
in the Northern District of Illinois for conspiracy with intent to possess and distribute crack
cocaine from at least 1989 until July 1993 (Case No. 93 CR 20024). (We refer to the cases as
Case Nos. 57, 212, and 20024, respectively.)
Looking to the state cases, Purvis pleaded guilty to Case No. 57 on April 23, 1993, and
on March 20, 1995, was sentenced to 4 years’ imprisonment. Case No. 212 was dismissed
on April 23, 1993, along with Purvis’ guilty plea in Case No. 57. Purvis also pleaded guilty
in his federal case, Case No. 20024, on March 15, 1994, and the district court sentenced him
to 70 months’ imprisonment on September 14, 1994. These cases and convictions
contributed to Purvis being assessed 12 criminal history points, which led to a criminal
history category V at his June 2006 sentencing—he was not assessed any points for Case
No. 212 because of the dismissal. The V was subsequently increased to a VI because Purvis
was deemed to be a career offender pursuant to U.S.S.G. § 4B1.1.
Here is the changed history: after Purvis received his sentence in June 2006, and as
pertinent to Purvis II, Purvis sought to vacate his state conviction and withdraw his guilty
plea in Case No. 57. Purvis II, 662 F.3d at 942-45. On June 30, 2009, the state court granted
Purvis’ motion to withdraw his guilty plea and vacated the conviction; this also negated
Purvis’ career-offender status. See id. at 945. In response, the State re-indicted Purvis on
No. 12-3856 Page 3
January 7, 2011, for the conduct underlying Case Nos. 57 and 212. Purvis then negotiated
a plea deal and, in turn, pleaded guilty to a single count in each case, Nos. 57 and
212—possession of less than 15 grams of cocaine, a felony. Purvis was sentenced to a 3-
year term of imprisonment on each count, the terms to run concurrently; previous time
served was applied.
In response to this change, the probation office prepared a new PSR on August 21,
2012, for Purvis’ sentencing on remand after Purvis II. The probation office used the 2011
edition of the Guidelines Manual and, in doing so, determined that Purvis’ base offense
level was 30. Two levels were added to that number because Purvis possessed a firearm
during the commission of the offense, see U.S.S.G. § 2D1.1(b)(1); three levels were then
deducted from the total for acceptance of responsibility. See § 3E1.1. Purvis’ total offense
level was thus 29. The probation office also determined that Purvis was a criminal history
category VI based on a total of 15 criminal points. As relevant to this appeal, 3 points were
assessed for Case No. 57; 3 points for Case No. 212; and 3 points for Case No. 20024.
A sentencing hearing was held on December 14, 2012. The Government argued that
the 2005 edition of the Guidelines Manual applied rather than the 2011 edition; the district
judge agreed. The parties were then given an opportunity to discuss their other objections
to the new PSR. Purvis’ challenges were primarily to the criminal history category, which
he contended should have been a V instead of a VI. This contention was based on five
arguments. First, Purvis argued that the convictions for Case Nos. 57 and 212 were
imposed pursuant to the same order on the same day, so they should have only counted
as 3 points instead of 6. See § 4A1.2(a)(2). Second, Purvis claimed that the assigning of 3
additional points as a result of Case No. 20024 was an error because it “overstated the
seriousness [Purvis’] criminal history, since that case was a part of the same conduct as
Case [Nos.] 57 and 212.” See § 4A1.1.(b) Third, Purvis argued that the November 2011
sentences for Case Nos. 57 and 212 were actually to a time-served term of 10 months, rather
than 3 years, so only 2 points should have been added for each case instead of 3 per case.
Fourth, citing § 4A1.2(e)(2), Purvis argued that the points discussed in his third contention
should no longer count because they were not imposed within 10 years of the
commencement of Purvis’ conduct in the underlying case. Finally, Purvis maintained that
the sentences in Case Nos. 57 and 212 could not be “prior sentences” because they were
imposed after Purvis’ initial sentencing hearing in June 2006. See § 4A1.2(a)(1).
The district judge rejected Purvis’ arguments and, in using the 2005 edition of the
Guidelines Manual, calculated Purvis’ offense level as 29 and his criminal history category
No. 12-3856 Page 4
as VI. This led to an applicable Guidelines range of 151 to 188 months of prison time. The
district judge then explained his analysis of the 18 U.S.C. § 3553(a) factors and sentenced
Purvis to 160 months in prison, followed by a 5-year term of supervised release.
Purvis filed a timely appeal of that sentence on December 18, 2012, in which he raises
essentially the same challenges to the criminal history category that he made in the district
court. But Purvis’ challenges are like a storm in a teacup: we will only remand a case for
resentencing if there is an error and we are not “certain” the judge would have imposed the
same sentence but for the procedural error. See United States v. Gulley, No. 11-3411, 2013
U.S. App. LEXIS 12147, at *26-27 (7th Cir. June 17, 2013). In other words, regardless of
whether the district judge somehow erred in his calculation of Purvis’ criminal history, if
he was clear that he would impose the same sentence on remand and that sentence would
still be reasonable, any error will be deemed harmless. Compare United States v. Anderson,
517 F.3d 953, 965 (7th Cir. 2008) (concluding that the sentencing error was harmless because
the district court “stated explicitly” that he believed the sentence imposed was reasonable
even if the Guidelines calculation was incorrect); with United States v. Tovar-Pina, 713 F.3d
1143, 1148 (7th Cir. 2013) (remanding the case because the court had “no way of knowing
whether the judge would have imposed the same sentence but for the procedural error”).
That situation is what we have here.
The district judge stated:
Now, because there may be an issue as to my calculation of the [G]uidelines that
could be raised on appeal, and in the event that I’m wrong, I’m going to make the
following statement, that I would further find that even if your criminal history
category was below six, that it was either to a four or a five . . . [,] I find that there
are adequate facts to support an upward variance from those [G]uideline ranges,
and I would sentence you -- I think the appropriate sentence, based upon all the
sentencing factors that I’ve spent time elaborating on, I think there would be an
upward variance to the 160-month sentence that I am imposing.
....
And just because technically some points may not be counted does not detract
from the seriousness and the continued criminal conduct of [Purvis] in those
convictions, which in my judgment would justify a 160-month sentence, even if the
criminal history was lower.
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Accordingly, we are not required to speculate as to what the judge would do on remand:
he would impose the exact same sentence. Cf. United States v. Zahursky, 580 F.3d 515, 528
(7th Cir. 2009). And as the Government points out, and as Purvis concedes, a change from
category VI to category V would result in a new Guidelines range of 140 to 175 months.
Thus, the same 160-month sentence would still fall in the middle of the Guidelines range
and be accorded a presumption of reasonableness. See United States v. Rivera, 463 F.3d 598,
602 (7th Cir. 2006) (“A sentence . . . that falls within a properly calculated Guidelines range
is entitled to a rebuttable presumption of reasonableness.”). This fact, coupled with the
district judge’s clear explanation of the § 3553(a) factors, the judge’s decade-long familiarity
with Purvis, and Purvis’ concession that the judge’s sentencing comments were
“undoubtedly sincere,” leads us to believe that any alleged error was harmless. See United
States v. Abbas, 560 F.3d 660, 668 (7th Cir. 2009) (“Where, as here, the judge has made a
searching evaluation of a defendant’s case, applied the statutorily mandated factors to the
sentence and clearly articulated why the given defendant warrants a sentence that would
be a departure from the correct range, the sentence is reasonable.”). Win or lose, Purvis
faces the same fate; we need not elaborate further.
We AFFIRM.