NONPRECEDENTIAL DISPOSITION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
Argued May 19, 2010
Decided June 1, 2010
Before
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 10‐1235
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District
of Wisconsin
v.
No. 09‐cr‐115‐bbc‐3
JOSE H. JIMENEZ‐BETANCOURT,
Defendant‐Appellant. Barbara B. Crabb,
Chief Judge.
O R D E R
In April 2009, Jose Jimenez‐Betancourt was arrested in Kentucky for cashing stolen
payroll checks. He pled guilty in state court to crimes of fraud and theft and was sentenced on
September 15, 2009, to three years in Kentucky state prison. While awaiting his state sentence,
Jimenez‐Betancourt was also indicted in federal court in the Western District of Wisconsin for
cashing stolen checks in that state. There, he pled guilty to two counts of bank fraud. Having
already served nearly nine months in Kentucky, he was sentenced on January 15, 2010, to
fourteen months in federal prison, to run concurrently with the remainder of his state sentence.
He now appeals that federal sentence. We affirm.
The district court properly calculated Jimenez‐Betancourt’s guideline sentence range.
No. 10‐1235 Page 2
His base offense level was seven. Jimenez‐Betancourt’s intended loss in Wisconsin was
$43,292.63; adding the intended loss in Kentucky increased the figure to $61,070.66. Both
numbers called for the district court to apply the six‐level enhancement for intended losses
greater than $30,000 but less than $70,000. Subtracting two levels for acceptance of
responsibility, the court came to a total offense level of eleven. Jimenez‐Betancourt does not
dispute that this calculation was proper. He also concedes that he was ineligible for a
time‐served credit under U.S.S.G. § 5G1.3(b) because adding his intended loss from his
Kentucky crimes to his intended loss from his Wisconsin crimes did not change his offense
level.
Nevertheless, Jimenez‐Betancourt argues that the district court was unreasonable in
failing to exercise its discretion under 18 U.S.C. § 3553(a) to give him credit for time served
anyway. He cites United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005), for the proposition
that a district court must explain why it declined to exercise its discretion to vary from the
guidelines range, and argues that the district court’s explanation here was insufficient.
We disagree. To begin with, Jimenez‐Betancourt’s argument for a variance was not
particularly compelling. His objections to the presentence report essentially argued that the
district court should read out of the guideline the requirement that his offense level went up
because of his Kentucky conduct, but offered no reason why it would be unfair in this case to
follow the guideline. Nor did he argue that the guideline is facially unreasonable and would
be unfair in any case.
At the sentencing hearing, Chief Judge Crabb considered and rejected Jimenez‐
Betancourt’s argument: “I know that you think you should be given credit for the time you
have spent in state custody . . . . Your conviction in Kentucky accounts for only a portion of the
scheme in which you were involved, however.” We might hope for a more thorough
explanation, and the fact that the court went on to mention the guideline calculation again
muddies the water a bit. Still, we are confident that the district court understood well that it
had the discretion to impose a sentence outside the properly calculated guidelines range and
declined to exercise that discretion. Its decision not to subtract the time served was neither an
oversight nor a “rote statement,” but rather a case‐specific conclusion that Jimenez‐Betancourt’s
Wisconsin conduct was distinct enough to justify a separate term in federal prison regardless
of time served in Kentucky. That due consideration is all that we require. See Cunningham, 429
F.3d at 679.
The defendant’s sentence is AFFIRMED.