NONPRECEDENTIAL DISPOSITION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 August 15, 2018*
Decided August 16, 2018
Before
MICHAEL S. KANNE, Circuit Judge
AMY C. BARRETT, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 18‐1512
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff‐Appellee, District Court for the Southern District
of Illinois.
v.
No. 16‐CR‐30119‐NJR‐01
WILLIAM C. COSBY,
Defendant‐Appellant. Nancy J. Rosenstengel,
Judge.
O R D E R
William Cosby pleaded guilty to drug and firearm charges and was sentenced to
15 years in prison. He argues on appeal that the district court procedurally erred in
determining the sentence and that it is substantively unreasonable. We disagree with
both contentions, so we affirm the judgment.
* This case was set for oral argument, but Cosby waived his right to participate.
Accordingly, we submit the case for decision on the briefs and record.
See FED. R. APP. P. 34(f).
No. 18‐1512 Page 2
A police officer caught Cosby sitting in a car with two plastic bags of crack
cocaine in his jacket pocket and a gun on the floor. Cosby explained that he was acting
as a “middle man” in a drug transaction and that he had bought the gun, later found to
be stolen, from a “crack head” three months earlier. He was charged with and pleaded
guilty to possessing a gun as a felon, 18 U.S.C. § 922(g)(1); possessing crack cocaine with
intent to distribute it, 21 U.S.C. § 841(a)(1); and carrying a gun in furtherance of a drug
trafficking crime, 18 U.S.C. § 924(c)(1)(A).
Before sentencing, the government argued that a 20‐year sentence was
appropriate. Among other aggravating factors, the government focused on one part of
Cosby’s criminal history—his conviction for, and later acquittal of, first‐degree murder
in Illinois. Cosby had been found guilty, but he was granted a new trial after the
presiding judge was indicted on federal criminal charges. At the second trial, the jury
credited Cosby’s testimony that he had shot the victim in self‐defense and acquitted
him. In this case, though, the government argued that the district court could find by a
preponderance of the evidence that Cosby committed the murder and consider it in
determining the sentence. And the government maintained that even if the court did
not make that finding, it should consider Cosby’s testimony at the murder trial that he
had carried a gun with him for “years” despite being a felon.
Cosby countered by requesting a 7‐year sentence and arguing against
consideration of the murder case in determining the sentence. He contended that, after
hearing the evidence, the state jury had found that he had acted in self‐defense, so the
court should not substitute its own views. Cosby also argued that his difficult life,
including having a drug‐addicted mother, untreated ADHD, drug and alcohol
addictions, and financial difficulties, warranted a below‐guideline sentence. And he
argued that a 7‐year sentence, the longest he had ever faced, was sufficient to
specifically deter him from reoffending but that generally the length of the sentence,
according to certain studies, did not have a significant effect on deterrence.
At the sentencing hearing, the district court first calculated the guideline range,
which the parties agreed was 57 to 71 months for the felon‐in‐possession and
drug‐possession counts and 60 months for the § 924(c) count, for a total range of
117 to 131 months. Then the government called an Illinois police officer to testify about
Cosby’s prosecution for murder. As relevant here, the officer confirmed that Cosby had
testified at his trial that he carried a gun “all the time.”
No. 18‐1512 Page 3
After listening to the parties’ arguments, the court concluded that an
above‐guideline sentence was warranted, though not one of 20 years. First, it
acknowledged that Cosby had a rough childhood by reiterating the circumstances he
had identified. Next, the court extensively reviewed Cosby’s criminal history; it noted
that he began committing crimes at age 14, had 24 adult convictions and numerous
other arrests, had committed new crimes while serving other sentences, and had his
parole revoked. The court was “hesitant” and did not place “a lot of weight” on the
murder case, remarking that it could not “second‐guess what went on with that jury.”
But the court did consider undisputed facts “surrounding” the murder: that Cosby had
a gun, shot someone, and testified that he “regularly carried a loaded firearm” despite
being a felon.
The court discussed a number of other factors it viewed as aggravating. Cosby
had been convicted of unlawfully possessing a firearm before, but did it again. Plus, the
gun was stolen, had an extended magazine, and had a laser sight, which the judge said
made the gun “look[ ] pretty bad.” He also was transporting crack cocaine. To promote
respect for the law, protect the public, and deter Cosby and others, the court thought a
lengthy sentence was needed because Cosby had repeatedly flouted the law and had
not yet been deterred, even after he avoided a long sentence for the murder charge.
The court determined that an upward variance was appropriate because Cosby’s
lengthy criminal history was not sufficiently accounted for. See U.S.S.G. § 2K2.4 n.2(B).
The court “kept coming back to 15 years in light of Mr. Cosby’s history and
characteristics.” So it imposed a within‐guideline sentence of 60 months for the
felon‐in‐possession and drug‐possession counts to run consecutively with a sentence of
120 months—double the default 60‐month term—for the § 924(c) count.
On appeal, Cosby first argues that the court improperly took into account the
murder of which he was acquitted without finding by a preponderance of the evidence
that he committed the crime; he said the killing “should have had no bearing” on his
sentence. But Cosby misconstrues what the court did. It did not, as Cosby says, decide
his criminal culpability—expressly seeking to avoid “second‐guess[ing]” “that
jury”— but it considered that Cosby possessed a gun despite being a felon and that he
wasted his freedom after narrowly missing a long sentence for the murder conviction
by committing these crimes less than two years later. Those uncontested details
influenced the court’s analysis of the 18 U.S.C. § 3553(a) factors, including the need to
promote respect for the law, to deter Cosby, and to protect the public.
No. 18‐1512 Page 4
Cosby’s remaining three arguments overlap and essentially ask us to review
whether the district court adequately explained and chose a reasonable sentence. First,
he faults the court for its “failure to properly weigh mitigating factors.” To the
government’s assertion of waiver, he responds that telling the district court at the
hearing that he was “satisfied that [it] addressed [his] mitigating arguments” did not
waive his argument on appeal. Arguments about the “merits or reasonableness of the
court’s treatment” of mitigating factors are not waived by a defendant affirming that
the court had addressed those factors. United States v. Garcia‐Segura, 717 F.3d 566, 569
(7th Cir. 2012). So Cosby preserved an argument that the court did not appropriately
“weigh” the mitigating factors— but this is a substantive, not procedural, challenge to
the sentence, despite his characterization. See United States v. Ferguson, 889 F.3d 314, 318
(7th Cir. 2018); United States v. Warner, 792 F.3d 847, 856 (7th Cir. 2015).
And here, although the district court could have said more about how it
considered Cosby’s turbulent childhood, mental health, poverty, and addictions in
determining the sentence, it twice acknowledged those mitigating factors. Moreover,
during discussion of the other § 3553(a) factors, the court implicitly decided that the
aggravating factors weighed more heavily. We cannot say that more was required,
especially since a difficult childhood “unfortunately do[es] not meaningfully
distinguish [him] from so many other criminal defendants.” United States v. Hall,
608 F.3d 340, 347 (7th Cir. 2010).
This ties into Cosby’s next contention that, as a procedural matter, the court did
not sufficiently explain the above‐guideline sentence, including how he was different
from “other similarly situated defendants.” The government again asserts that Cosby
waived this argument by declining, after the sentence was announced, any “further
elaboration” of the judge’s “consideration of the statutory factors.” But Cosby was not
required to object again and make the same arguments. See FED. R. CRIM. P. 51(a);
United States v. Bartlett, 567 F.3d 901, 910 (7th Cir. 2009). In any case, the purported
procedural defect is nonexistent. “We will uphold an above‐guideline sentence as long
as the district court adequately explained the chosen sentence consistently with the
factors in 18 U.S.C. § 3553(a).” United States v. Mejia, 859 F.3d 475, 479 (7th Cir. 2017).
This includes explaining “any deviation from the Guidelines range.” Gall
v. United States, 552 U.S. 38, 51 (2007).
Cosby argues that the § 924(c) sentence is not sufficiently justified, but his
piecemeal approach is wrong. The court could—and did—consider the interaction of
the concurrent sentences for the drug‐possession and felon‐in‐possession counts and
No. 18‐1512 Page 5
the consecutive sentence for the § 924(c) count in fashioning one overall sentence.
See Dean v. United States, 137 S. Ct. 1170, 1176–77 (2017). The court’s methodology was
plain: it adjusted the § 924(c) term so that the total sentence would amount to the
15 years that the court “kept coming back to” as the appropriate sentence.
Further, the district court did not act arbitrarily; it had a solid basis for upwardly
adjusting the § 924(c) sentence. It relied upon Application Note 2(B) to U.S.S.G. § 2K2.4,
which provides for an “upward departure” from the mandatory minimum for the
§ 924(c) conviction to account for the seriousness of the defendant’s criminal history.
See United States v. Bell, 887 F.3d 795, 798 (7th Cir. 2018) (recognizing that although
departures are obsolete, district courts can “apply them by way of analogy when
assessing the § 3553(a) factors”), cert. denied, 138 S. Ct. 2593 (2018). The court thought
that a longer sentence on that count was needed because of Cosby’s extensive criminal
history for a person his age, which the court described at length. That record, the court
concluded, also demonstrated a need for specific deterrence, to promote respect for the
law, and to protect the public from him. As the court remarked, nothing, not even
escaping a long sentence on the murder charge, had stopped Cosby from committing
new crimes. Moreover, the district court also based its sentence on the seriousness of the
offense: the gun was stolen, had an extended magazine and laser sight, and was carried
while he was distributing cocaine. The district court’s explanation, which addressed
Cosby’s individual circumstances, sufficed to justify the longer sentence.
Last, Cosby argues that the sentence is substantively unreasonable, but this is
resolved by what we already have said. The district court had considerable discretion to
fashion an appropriate sentence as long as it was consistent with the § 3553(a) factors.
See United States v. Gill, 824 F.3d 653, 665 (7th Cir. 2016). Its tailored explanation
supports its choice of 15 years as a reasonable sentence. Therefore, we AFFIRM the
judgment.