In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-3130, 10-3505 & 11-1395
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
P ATRICK JONES, D ESHAUN G ERMANY
and IVORY W ATSON,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:08-cr-00401—James B. Zagel, Judge.
A RGUED O CTOBER 21, 2011—D ECIDED S EPTEMBER 5, 2012
Before B AUER and T INDER, Circuit Judges, and
M AGNUS-STINSON, District Judge.
B AUER, Circuit Judge. This is a consolidated appeal
by three defendants convicted of assorted drug offenses.
The Honorable Jane E. Magnus-Stinson, District Judge of
the United States District Court for the Southern District of
Indiana, sitting by designation.
2 Nos. 10-3130, 10-3505 & 11-1395
They contend, inter alia, that the district court erred in
determining their sentences. We affirm the district
court’s sentences with respect to petitioners Patrick Jones
and Deshaun Germany and we remand Ivory Watson’s
case for re-sentencing.
I. BACKGROUND
Near the intersection of West 54th Street and South
Hoyne Avenue, in Chicago, a faction of the Gangster
Disciples Nation, headed by Isaiha Hicks, operated a
drug organization that controlled the retail street sales
of crack cocaine. The organization created charming
nicknames for its employees, and like a legitimate
business, adhered to the sound economic principle
of division of labor; Deshaun Germany, also known
as “Big Sin” (“Germany”), was one of several “distribu-
tors” for the organization; Ivory Watson, also known as
“Bird” (“Watson”), functioned as a “runner,” meaning
he collected money from, and delivered drugs to, the
organization’s customers; and Patrick Jones, also known
as “Hog” (“Jones”) was a customer. The organization
also utilized “brokers” who arranged drug transactions
for a commission fee.
After a lengthy federal investigation—code-named
“Operation Dead Eye”—into Hicks’ drug organization, a
grand jury, on August 21, 2008, charged 29 defendants
with drug-related offenses. Jones, Germany, and Watson
were 3 of the 29 defendants indicted. On March 5,
2010, Jones pleaded guilty to Count 9 of the indictment:
possession with intent to distribute 50 grams or more of
Nos. 10-3130, 10-3505 & 11-1395 3
crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and
18 U.S.C. § 2. The district court sentenced Jones to
180 months’ imprisonment on August 31, 2010.
A jury trial began on March 23, 2010, in the charges
against Germany and other co-defendants pertaining to
a superseding indictment issued on March 2, 2010. After
a mistrial, but shortly before the case was to be retried,
Germany and the Government reached an agreement;
Germany pleaded guilty to one count in the super-
seding indictment: using a communication facility in
furtherance of a drug offense, in violation of 21 U.S.C.
§§ 841(a)(1) and 843(b). The district court sentenced
Germany to 48 months’ imprisonment to be served con-
secutively to the term of imprisonment imposed by
the Superior Court of Lake County, Indiana.1
On March 10, 2010, Watson pleaded guilty to both
counts in the superseding indictment of March 2, 2010
that applied to him: (1) conspiracy to distribute crack
cocaine in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2;
and (2) knowingly and intentionally distributing crack
cocaine on or about March 13, 2008, in violation of
21 U.S.C. § 841(a) and 18 U.S.C. § 2. Watson was sen-
tenced to 180 months’ imprisonment and 5 years of super-
vised release.
Jones, Germany, and Watson appeal their sentences.
Watson’s attorney seeks to withdraw as counsel and has
1
While released on bond, Germany was arrested on March 9,
2009, in Lake County, Indiana and charged with dealing
cocaine. On September 3, 2010, he pleaded guilty in the
Superior Court of Lake County, Indiana.
4 Nos. 10-3130, 10-3505 & 11-1395
filed an Anders brief contending that there are no
non-frivolous grounds for appeal. In accordance with
Circuit Rule 51(a), Watson was informed of his
attorney’s motion and took advantage of the oppor-
tunity to respond.
II. DISCUSSION
All three cases in this consolidated appeal involve
petitioners who committed crimes before enactment of
the Fair Sentencing Act, but who were sentenced after
the Act’s effective date.
Federal drug statutes that impose mandatory
minimum sentences for federal drug crimes determine
the length of a minimum sentence based upon the kind
and amount of the drug involved. Generally, drug
crimes involving crack cocaine, as opposed to powder
cocaine, carry harsher sentences. In other words, it takes
a lesser amount of crack cocaine than it does powder
cocaine to trigger a longer minimum sentence. Before
enacting the Fair Sentencing Act, Congress had adopted
a ten-year mandatory minimum sentence that was trig-
gered by 5,000 grams of powder cocaine or 50 grams
of crack cocaine, and a five-year mandatory sentence
that was triggered by 500 grams of powder cocaine
or 5 grams of crack cocaine. The FSA reduced the crack-to-
powder cocaine disparity from 100-to-1 to 18-to-1. Specif-
ically, the FSA increased the crack cocaine threshold
needed to trigger the five-year minimum mandatory
sentence from 5 grams to 28 grams and the ten-
year minimum mandatory sentence from 50 grams to
280 grams.
Nos. 10-3130, 10-3505 & 11-1395 5
The FSA went into effect on August 3, 2010, and the
issue arose as to whether the FSA would apply to
offenders who committed a crack cocaine crime before
the FSA’s effective date but were not sentenced until
after that date. We had held that it did not—and that
was the law of this Circuit at the time when each
petitioner was sentenced. See United States v. Fisher, 635
F.3d 336, 340 (7th Cir. 2011). But in Dorsey v. United
States, 132 S. Ct. 2321 (2012), the Supreme Court held that
the FSA does apply retroactively to defendants whose
offenses predated the Act’s effective date. So in light
of Dorsey, we review each petitioner’s appeal in turn.
A. Patrick Jones
Jones makes two arguments. He first argues that the
district court erred in not applying the new, more lenient
crack cocaine threshold under the Fair Sentencing Act.
The record, however, suggests that the district court did
apply the 18-to-1 ratio under the FSA. During Jones’
sentencing hearing, the Government recommended that
the district court “impose a sentence within what is
not technically the guideline applicable but what would
be the guideline applicable if the 18 to 1 ratio were in
play.” Applying an 18-to-1 ratio, Jones’ Guidelines sen-
tence range was 210 to 262 months. The district court
agreed with the Government that an 18-to-1 ratio “is
within the realm of reason” and sentenced Jones to 180
months’ imprisonment—a sentence well below the mini-
mum under the FSA. We therefore find that the district
court did not err by failing to apply the crack cocaine
thresholds required under the FSA.
6 Nos. 10-3130, 10-3505 & 11-1395
Jones next argues that the district court’s sentence
violated the Eighth Amendment’s Cruel and Unusual
Punishment Clause because it was grossly disproportion-
ate to the crime he committed. We presume the district
court’s imposition of a below-Guidelines sentence to
be reasonable and review it for abuse of discretion.
United States v. Poetz, 582 F.3d 835, 837 (7th Cir.
2009). We review de novo its procedures during sen-
tencing, including the court’s consideration of the § 3553
factors. Id.
Jones contends that the disparity between his sen-
tence and that of his co-conspirators violated the
Eighth Amendment’s prohibition against cruel and un-
usual punishment. Jones received a sentence of
180 months’ imprisonment while one of his co-
conspirators was sentenced to 80 months’ imprisonment,
and another co-conspirator, at the time of Jones’ sen-
tencing, was facing 171 months’ imprisonment.
We reject Jones’ cruel and unusual punishment argu-
ment. If the sentence is within the statutory limits, a
claim of cruel and unusual punishment is normally
without merit. See United States v. Gray, 611 F.2d 194,
197 n.2 (7th Cir. 1979). Moreover, if a district court has
correctly calculated the Guidelines range, we assume
that significant consideration has been given to avoid
unwarranted disparities between sentences. United
States v. Statham, 581 F.3d 548, 556 (7th Cir. 2009). In
Jones’ case, the presentence report recommended a Sen-
tencing Guidelines range of 262 to 327 months’ imprison-
ment. The district court correctly determined the Guide-
Nos. 10-3130, 10-3505 & 11-1395 7
lines range, accepting the probation office’s recommenda-
tion, but then in its discretion, sentenced Jones below
the minimum.
Section 3553 requires the judge to consider, among
other things, whether a particular sentence would
create unwarranted disparities with other defendants,
but only among defendants with “similar records who
have been found guilty of similar conduct.” 18 U.S.C.
§ 3553(a)(6). The district court indicated that it con-
sidered the disparity Jones complains of but found it
warranted in light of the seriousness of the offenses, Jones’
history, and the fact that he, unlike his co-defendants,
had little to offer the Government in terms of cooperation.
For instance, the district court stated, “Partly my sen-
tence in this case is influenced by my views of the
relative culpability of this defendant in connection with
other defendants . . . . And due to . . . my view of the
severity of this individual’s offense which I do regard as
severe . . . .” The district court thus adequately con-
sidered any disparity between Jones’ sentence and those
of his co-defendants; and in any event, the record
indicates that Jones’ conduct, level of cooperation with
the Government, and history warranted such a disparity.
See United States v. Statham, 581 F.3d 548, 556 (7th Cir.
2009) (holding that the district court was entitled to
consider the co-defendants’ cooperation with the Gov-
ernment in choosing their sentences). The district court
did not abuse its discretion; Jones’ sentence will stand.
8 Nos. 10-3130, 10-3505 & 11-1395
B. Deshaun Germany
On appeal, Germany brings several procedural and
substantive challenges to the reasonableness of his sen-
tence. Again, we presume the district court’s imposition
of a within-Guidelines sentence to be reasonable and
review it for abuse of discretion. United States v. Poetz,
582 F.3d 835, 837 (7th Cir. 2009). We review de novo
its procedures during sentencing, including the court’s
consideration of the § 3553 factors. Id.
Germany argues that the district court failed to
follow the proper procedure in determining his sentence
because the court relied on his arrest record and did
not adequately consider the mitigating factors that he
presented at sentencing.
A sentencing court must first correctly calculate
the advisory Guidelines range. United States v. Rodri-
guez-Alvarez, 425 F.3d 1041, 1046 (7th Cir. 2005). Next, the
defendant must be given the opportunity to bring to
the court’s attention any factors under § 3553(a) that
might warrant a sentence below the Guidelines range.
United States v. Dean, 414 F.3d 725, 730 (7th Cir. 2005).
The court must consider those factors in selecting an
appropriate sentence, although it need not expressly
address all of them. United States v. Williams, 425 F.3d
478, 480 (7th Cir. 2005). When the court selects a
sentence within the Guidelines range, it is enough that
“the record confirms that the judge has given
meaningful consideration to the section § 3553(a) fac-
tors.” Id.
Nos. 10-3130, 10-3505 & 11-1395 9
The district court completed the required steps in this
case. First, there is no dispute that the district court
correctly determined that, because the statutory maxi-
mum—48 months—was less than the applicable
Guidelines range—135 to 168 months—the statutory
maximum became the Guidelines sentence.2 The
district court found that Germany was accountable for
280 grams of crack cocaine. Based on the 18-to-1 ratio
under the FSA, that amount of crack cocaine is
equivalent to a little over five kilograms of powder
cocaine. Under the current Guidelines, five kilograms
results in a base offense level of 32, which, when
combined with Criminal History Category II, results in
a Guidelines range of 135 to 168 months. After the correct
Guidelines range was determined, Germany was
allowed to argue the § 3553(a) sentencing factors
in his sentencing memorandum and at the sentencing
hearing. The district court then considered the statutory
factors in § 3553(a), including the nature of the
offense, Germany’s criminal history, and his characteris-
tics.
Germany argues that the district court “overlooked”
and failed to address significant mitigating factors;
namely, the disparity in sentences between powder co-
caine and crack cocaine or the disparity in his sentence
with that of other persons convicted of the same offense.
But the district court is not required to address each
factor under § 3553(a). Williams, 425 F.3d at 480. It bears
2
See U.S.S.G. § 5G1.1(a).
10 Nos. 10-3130, 10-3505 & 11-1395
repeating that Germany’s sentence is within a correct
Guidelines range; and the record here provides
sufficient support to conclude that the district court
meaningfully considered the § 3553(a) factors after Ger-
many was given an opportunity to make his argument
for probation or a sentence at the bottom of the
statutory maximum. The district court was not required
to discuss Germany’s disparity arguments at length.
For the sake of thoroughness, however, we will address
Germany’s contention that the district court’s consider-
ation of those factors was somehow inadequate.
Germany argues that, had the district court accepted
one of his alternative Guidelines calculations, his
sentence would have been less than the statutory maxi-
mum. Germany objected to the Probation Office’s Guide-
lines calculation of 135 to 168 months, arguing three
alternative calculations, which together ranged from 12
to 63 months, depending on the amount and type of
cocaine— i.e., crack or powder—and whether a 100-to-1
or 18-to-1 powder to crack ratio applied. The district
court, over Germany’s objection, accepted the Probation
Office’s calculation, which Germany argues improperly
influenced the district court’s decision to impose the
statutory maximum. Here again, the district court
followed proper procedure; the judge heard the
evidence presented at trial and ultimately agreed with
the recommended Guidelines range, which was based
on an offense involving 280 grams of crack. See Edwards
v. United States, 523 U.S. 511, 513-14 (1998).
We also reject Germany’s argument that the district
court failed to address the disparity in his sentence
Nos. 10-3130, 10-3505 & 11-1395 11
with other defendants’ sentences. We have said that
sentences within the Guidelines range, like Germany’s,
“cannot be treated as unreasonable by reference to
§ 3553(a)(6).” United States v. Boscarino, 473 F.3d 634, 638
(7th Cir. 2006). “Sentencing disparities are at their ebb
when the Guidelines are followed, for the ranges
are themselves designed to treat similar offenders simi-
larly.” Id.
Finally, we disagree with Germany’s assertion that
the district court improperly based its sentence on his
arrest record, which according to Germany overstates
his criminal history. First, the record here does not
suggest that the district court relied on Germany’s arrest
record itself; instead, it indicates that the district court
properly considered the underlying conduct. See United
States v. Guajardo-Martinez, 635 F.3d 1056, 1059 (7th Cir.
2011) (a sentencing judge may not rely on the arrest
record itself in deciding a sentence). Second, the
conduct considered in the arrest record was supported
by sufficiently-detailed information in the presentence
report which specified his arrest and conviction in
Indiana for selling rock-like cocaine. See id. (noting
that the court may consider the underlying conduct
detailed in arrest records where there is a sufficient
factual basis for the court to conclude that the conduct
actually occurred).
Germany asks us to now re-balance the § 3553(a)
factors and disagree with the district court’s determina-
tion of that balance. We decline to do this. The record
provides sufficient support to conclude that the district
12 Nos. 10-3130, 10-3505 & 11-1395
court did not err procedurally or otherwise. We
affirm Germany’s sentence.
C. Anders Brief
We come at last to the Anders brief submitted by
the attorney for Watson. The brief argues that there are
no non-frivolous grounds for appeal and seeks permis-
sion for the attorney to withdraw. Since the Anders brief
is sufficient on its face, we consider only those issues
raised in the brief and the response to the brief. United
States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
Having carefully reviewed all the materials submitted,
we would, if it were not for Dorsey v. United States, 132
S. Ct. 2321 (2012), agree with the attorney that there are
no non-frivolous grounds for appeal as to Watson. But
Under Dorsey, we must remand this case for sentencing
in accord with the FSA. See id. Unlike the other cases in
this consolidated appeal, there is no evidence that the
district court applied the 18-to-1 ratio under the FSA
or that the petitioner’s sentence would have been the
same had the district court applied the FSA’s 18-to-1 ratio.
In Watson’s case, the district court stated that it was
not bound by the FSA and that the correct Guidelines
range was 210 to 262 months, a range based on the 100-to-1
ratio. Even though the district court departed down-
ward to the FSA’s sentencing range of 168 to 210
months, that departure was “based on Mr. Watson’s
character, in general.” The FSA range should have been
the starting point range, not the end point range based
on a downward departure after considering the § 3553(a)
factors.
Nos. 10-3130, 10-3505 & 11-1395 13
As is our practice, we decline to consider the
ineffective assistance of counsel claims on direct appeal
since determination of such claims requires evidence
that is outside the trial record. United States v. Brooks,
125 F.3d 484, 495 (7th Cir. 1997).
III. CONCLUSION
For the foregoing reasons, we A FFIRM the district
court’s judgment in all respects as to petitioners Jones
and Germany. We R EMAND Watson’s case for sen-
tencing consistent with this opinion and deny the
motion of his attorney to withdraw.
9-5-12