NONPRECEDENTIAL DISPOSITION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 January 25, 2012
Decided February 10, 2012
Before
WILLIAM J. BAUER, Circuit Judge
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVER, Circuit Judge
No. 11‐2753
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 3:10‐cr‐30053‐‐MJR‐5
TERRILL CLARK, Michael J. Reagan,
Defendant‐Appellant. Judge.
O R D E R
Terrill Clark pleaded guilty to conspiracy to engage in dogfighting, see 18 U.S.C. § 371;
7 U.S.C. § 2156(a)(1), (b), and was sentenced to a term of imprisonment of 12 months and 1 day.
Clark argues that the sentencing court committed procedural error because the Guidelines
imprisonment range was 6 to 12 months, yet the court repeatedly stated that the sentence
imposed is within the Guidelines range. Clark also argues that his prison sentence is
substantively unreasonable. Because the district court’s procedural error was harmless and the
court sufficiently explained the chosen sentence, we affirm the judgment.
Clark and six coconspirators organized and promoted dog fights in Missouri and
southern Illinois. When the seven men were arrested, authorities seized more than 400 pit
bulls. Clark’s involvement included breeding, training, and selling fighting dogs, as well as
No. 11‐2753 Page 2
handling dogs during fights. On one occasion he actively participated in a match by fighting
one of his dogs for a $100 bet against a dog owned by an undercover agent; on another occasion
he paid $20 to attend one fight for money and one “roll” fight. (A “roll” fight is a controlled
sparring match that is meant to determine the potential of fighting dogs rather than an outright
winner and loser. See United States v. Courtland, 642 F.3d 545, 548 n.1 (7th Cir. 2011).) Clark also
attended several other roll fights and sold two of his dogs to an undercover agent for $700.
Clark was sentenced at the same time as four of his coconspirators. Before imposing
individual sentences, the district court explained that in dogfighting cases it deems the most‐
important sentencing factors to be the needs to promote deterrence and respect for the law. See
18 U.S.C. § 3553(a)(2)(A), (B). The court also opined that the Guideline corresponding to
violations of 7 U.S.C. § 2156, see U.S.S.G. § 2E3.1, lacks sufficient detail because it does not
include adjustments for factors the court believes are significant in dogfighting cases, including
whether the defendant facilitated fights, the number of dogs and fights that can be tied to the
defendant, and how long the defendant participated in a dogfighting conspiracy. In Courtland
we concluded that each of these factors could properly be considered as part of the “nature and
circumstances of the offense” under 18 U.S.C. § 3553(a)(1). 642 F.3d at 553.
In sentencing Clark, the district court adopted without objection the factual findings and
the Guidelines calculations in the presentence investigation report, which included an
imprisonment range of 6 to 12 months. The government argued for a sentence of either
10 months’ imprisonment or 12 months and 1 day, which the prosecutor said without any
explanation would yield “about the same sentence.” Clark countered that he should receive
probation because he was connected only to a few of the dogs and fights, lacked a leadership
role in the conspiracy, and participated in the conspiracy for only a brief time. The district
court recounted Clark’s involvement in the conspiracy and explicitly declined to impose an
adjustment for extraordinary cruelty to an animal. See U.S.S.G. § 2E3.1 cmt. n.2. The court then
stated:
This is a case where I don’t believe the court, in order to promote respect for the
law and deter others, needs to depart above the guidelines. I think an
appropriate sentence in this case is that of one that will give incentive for good
behavior while incarcerated. I am going to sentence him to one year and one
day, which is within the guideline sentence.
Later, in declining to stay execution of Clark’s sentence, the court again referred to the prison
term as within the Guidelines range.
No. 11‐2753 Page 3
Clark first argues that the district court committed procedural error because the court
misstated that his prison sentence of 12 months and 1 day is within the Guidelines range.
Although this sort of mistake has not been specifically identified by the Supreme Court as a
significant procedural error, see Gall v. United States, 552 U.S. 38, 51 (2007), we have determined
that “[a] sentence is procedurally unreasonable if the judge thinks it within the range, but it
isn’t—either because the range was not determined accurately in the district court, or because
the judge misunderstood what the range was.” United States v. Bartlett, 567 F.3d 901, 909–10
(7th Cir. 2009); see also United States v. Alldredge, 551 F.3d 645, 647 (7th Cir. 2008) (“A judge must
correctly understand what the Guidelines recommend.”).
The government counters that the district court imposed a sentence one day above the
Guidelines range so that Clark could earn “good‐time” credits, which are not given to inmates
serving prison terms of one year or less. See 18 U.S.C. § 3624(b)(1). That explains the
prosecutor’s statement at sentencing that a term of 12 months and 1 day would be “about the
same” as a 10‐month term. See White v. Scibana, 390 F.3d 997, 1000 & n.1 (7th Cir. 2004)
(calculating 319 days as actual amount of time to be served by defendant sentenced to 366 days
who earns maximum amount of good‐time credits). Due to the effect of good‐time credits,
the government argues, no procedural error occurred because a sentence of 12 months and
1 day is “for all practical purposes . . . less than or equal to” a sentence of 12 months. The
government also argues that, even if the court did commit procedural error, the error was
harmless because the court’s statements show that it would impose the same sentence on
remand.
We conclude that the district court did commit procedural error because it said at three
different times that Clark’s prison sentence is within the Guidelines range and never expressed
a different understanding. We recognize that a federal prisoner with a year‐and‐a‐day sentence
usually will serve less time than an inmate with a 12‐month sentence. See United States v. Polak,
573 F.3d 428, 430 n.1 (7th Cir. 2009). We also acknowledge that other cases in which we have
found similar procedural errors have involved much larger discrepancies than a single day.
See Bartlett, 567 F.3d at 910 (remanding because judge appeared to believe that sentence 20
months above Guidelines range was at top of range); United States v. Hann, 407 F. App’x 953,
954–55 (7th Cir. 2011) (nonprecedential decision) (remanding because judge appeared to believe
that sentence 6 months above Guidelines range was within range); United States v. James, 388
F. App’x 548, 548–49 (7th Cir. 2010) (nonprecedential decision) (remanding because judge
stated he would impose sentence at bottom of Guidelines range but imposed a term 6 months
higher). Nevertheless, the record shows that the court misunderstood where the top of Clark’s
imprisonment range fell.
No. 11‐2753 Page 4
Yet despite the district court’s mistake, a remand for resentencing is not necessary
because the error was harmless. Procedural error at sentencing is harmless if the government
can show that the error did not affect the court’s selection of a sentence. United States v. Hill,
645 F.3d 900, 906, 912 (7th Cir. 2011); United States v. Abbas, 560 F.3d 660, 667 (7th Cir. 2009).
That burden is met here because the district court said that it wanted to give Clark an incentive
to engage in good behavior while incarcerated, and any sentence shorter than 1 year and 1 day
would remove Clark’s eligibility for good‐time credits. See 18 U.S.C. § 3624(b)(1). At oral
argument Clark conceded that the court’s goal was to allow him to earn good‐time credits, but
he argues that he might not qualify for those credits and that other sentencing alternatives
within the Guidelines range could have satisfied the court’s goal. Clark’s premise that he might
not behave well enough in prison to earn credits misunderstands the point of an incentive. And
his suggestion that the district court could have given him incentive to maintain good conduct
by imposing a shorter term of imprisonment coupled with a longer term of supervised release
fails to appreciate that the court’s stated goal was to encourage good behavior while he is
incarcerated. Thus, although the district court has not said explicitly that it would have
imposed the same sentence even had it realized that a year and a day was outside Clark’s
Guidelines range, see, e.g., Hill, 645 F.3d at 912–13, we are confident of that outcome because the
existing record reflects the court’s clear intention to enable Clark to earn good‐time credits.
Clark also argues that his prison sentence is substantively unreasonable because, he
says, proper application of the factors we approved in Courtland to the facts of his case should
have resulted in a lower sentence. But in Courtland we stated that in dogfighting cases district
courts may consider factors not covered by § 2E3.1 as part of the “nature and circumstances of
the offense” under § 3553(a)(1); nothing in that decision requires judges to impose a below‐
range sentence if evaluation of those factors appears to favor the defendant. See Courtland, 642
F.3d at 553. Clark’s sentence, although one day above the Guidelines range, is reasonable as
long as the court justified its decision as measured against the § 3553 factors. United States v.
Vaughn, 614 F.3d 412, 414–15 (7th Cir. 2010); see also Gall, 522 U.S. at 51 (permitting court of
appeals to consider extent of deviation of an above‐Guidelines sentence when reviewing for
reasonableness). The court did that here by discussing Clark’s involvement in the conspiracy
and his previous convictions, explaining the need to promote deterrence and respect for the
law, and stating its desire to impose a prison sentence that would give Clark an incentive to
behave while incarcerated.
AFFIRMED.