United States of America v. Alfonso Hayden

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1812
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A LFONSO H AYDEN ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 12-CR-30143 — Michael J. Reagan, Chief Judge.
____________________
A RGUED NOVEMBER 19, 2014 — DECIDED D ECEMBER 30, 2014
____________________
Before WOOD, Chief Judge, and K ANNE and TINDER , Circuit
Judges.
PER C URIAM . Alfonso Hayden pleaded guilty to conspir-
ing to possess and distribute marijuana, 21 U.S.C. §§ 846,
841(a)(1), and attempted money laundering, 18 U.S.C.
§ 1956. He was sentenced above the guidelines range to a to-
tal of 46 months’ imprisonment and 10 years’ supervised re-
lease. Hayden appeals, principally arguing that the district
court did not adequately address his arguments in mitiga-

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2 No. 14-1812
tion or justify the sentence imposed. We disagree and affirm
the sentence.
Hayden, a resident of California, obtained a medical mar-
ijuana card that he used to purchase high-grade marijuana in
that state. He mailed the marijuana to himself in St. Louis,
Missouri, where he gave it to a coconspirator who then sold
it in Illinois. On June 1, 2010, while surveilling Hayden as
part of a larger investigation, DEA agents followed him to
four different Bank of America branches where he ex-
changed $18,000 worth of $20 bills for $100 bills. Afterward
the agents followed Hayden to the apartment where he was
staying. They executed a warrant to search that apartment
and arrested him after finding 995 grams of marijuana and
$80,892 in currency.
During his plea colloquy Hayden admitted distributing
over 20 pounds (about 9 kilograms) of marijuana. At sen-
tencing, the district court concluded that Hayden’s relevant
conduct included a total of 151/4 kilograms of marijuana
(though not any cocaine, which the government initially had
tried to pin on Hayden). The district court calculated a total
offense level of 15: a base offense level of 16 because the of-
fense involved 10 to 20 kilograms of marijuana, U.S.S.G.
§§ 2S1.1(a)(1), 2D1.1(c)(12) (2013); a 2-level increase for mon-
ey laundering, id. § 2S1.1(b)(2)(B); and a 3-level reduction for
acceptance of responsibility, id. § 3E1.1(a), (b). The district
court calculated a criminal history category of III because
Hayden had committed the crimes while on supervised re-
lease, see U.S.S.G. § 4A1.1(d), and also had a prior drug con-
viction for which he received 15 years’ imprisonment, see id.
§ 4A1.1(a). The resulting imprisonment range was 24 to 30
months.

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No. 14-1812 3
The government argued for a sentence of 30 months, and
Hayden argued for time served: the 15 months he had been
incarcerated since his arrest. Hayden maintained that his
family circumstances—a son with health issues who lived
with Hayden’s mother—warranted leniency. Hayden also
argued that a below-guidelines sentence was warranted be-
cause of Amendment 782 to the sentencing guidelines,
which had not yet taken effect but would lower by 2 levels
the base offense level for this type of drug crime. Hayden
was sentenced on April 10, 2013, the same day the United
States Sentencing Commission approved that amendment
and sent it to Congress for review. That amendment had an
effective date of November 1, 2014. Hayden further asserted
that a below-guidelines sentence was necessary to avoid sen-
tencing disparities with unidentified defendants in other ju-
risdictions who were purportedly receiving lower sentences
based on the upcoming amendment.
The district court rejected Hayden’s plea for a lower sen-
tence and instead, as noted, imposed a 46-month term, 16
months above the high end of his imprisonment range. The
district court reasoned that Hayden was unlikely to care for
his son because so far he had been absent from the boy’s life,
and that not giving Hayden a below-guidelines sentence
would not result in a sentencing disparity. Indeed, the dis-
trict judge continued, an above-guidelines sentence was ap-
propriate because of Hayden’s high likelihood of recidivism,
the seriousness of the crimes, and the fact that the crimes
were committed while Hayden was on supervised release.
On appeal, Hayden doesn’t challenge the district court’s
application of the guidelines and instead contends that his
above-guidelines sentence was imposed in a procedurally

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4 No. 14-1812
unreasonable manner and, as a result, is too long. Mostly
this contention rests on the stated proposition that the dis-
trict judge never fully considered Hayden’s arguments in
mitigation or explained why a sentence above the guidelines
range was necessary. Yet before the sentencing hearing con-
cluded, the district court had asked if Hayden’s lawyer
wanted amplification of the court’s application of the sen-
tencing factors in 18 U.S.C. § 3553(a) or the court’s reasons
for rejecting Hayden’s arguments in mitigation. The attor-
ney’s response that he wanted no further elaboration should
have put to rest any argument that the district court failed to
adequately explain the sentence. See United States v. Donelli,
747 F.3d 936, 940–41 (7th Cir. 2014); United States v. Garcia-
Segura, 717 F.3d 566, 568–69 (7th Cir. 2013). The government
does not press the point, however, so we proceed to consider
Hayden’s arguments.
Hayden first takes issue with the district court’s state-
ment that an above-guidelines sentence was warranted be-
cause he had committed the crimes while on supervised re-
lease and, in the court’s view, the two criminal history points
assessed as a result were not enough to account for his like-
lihood of recidivism. This explanation is clear enough but, in
Hayden’s view, not good enough. Without citing any relevant
authority, he simply insists that it was improper for the dis-
trict court to rely on the violation of supervised release as a
reason to sentence him above the guidelines range because,
as Hayden sees things, that violation already was accounted
for by the criminal history calculation.
This argument is a nonstarter. As long as the sentencing
judge gives an adequate justification, the judge may impose
a sentence above the guidelines range if he believes the

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No. 14-1812 5
range is too lenient. See Gall v. United States, 552 U.S. 38,
49–50 (2007); United States v. Perez-Molina, 627 F.3d 1049,
1050–51 (7th Cir. 2010); United States v. McIntyre, 531 F.3d
481, 483–84 (7th Cir. 2008); United States v. McKinney, 543
F.3d 911, 913–14 (7th Cir. 2008). Here, the judge explained
that he was giving an above-guidelines sentence for a num-
ber of acceptable reasons, including that the 2-point increase
in Hayden’s criminal history score for committing these new
crimes while on supervised release was inadequate to pro-
vide for just punishment. This was especially so because
Hayden’s new crimes were not prosecuted until after the
term of supervised release had ended, and thus his obvious
violation of the conditions of supervised release did not lead
to reimprisonment. See 18 U.S.C. § 3553(a)(2)(A); United
States v. Valle, 458 F.3d 652, 657 (7th Cir. 2006); United States
v. Smith, 505 F.3d 463, 470–71 (6th Cir. 2007); United States v.
Collier, 413 F.3d 858, 860 (8th Cir. 2005). The judge also ex-
pressed concern that Hayden’s recently completed, 15-year
sentence for a drug crime had not deterred him from unlaw-
ful activity, see 18 U.S.C. § 3553(a)(1), (a)(2)(B), in particular
trafficking in drugs, a serious crime having a detrimental
impact on the community, see id. § 3553(a)(2)(A), (C). While
some of this already was accounted for in the guidelines cal-
culation, that did not bar the sentencing court from weigh-
ing the information differently than the Sentencing Commis-
sion. See United States v. Reyes-Hernandez, 624 F.3d 405, 415
(7th Cir. 2010); United States v. Corner, 598 F.3d 411, 415
(7th Cir. 2010) (en banc); United States v. Aljabari, 626 F.3d
940, 951 (7th Cir. 2010), cert. denied, 131 S. Ct. 2164 (2011);
United States v. Tockes, 530 F.3d 628, 633 (7th Cir. 2008).
Hayden next argues, in the same vein, that the district
court erred in refusing to give him, as a matter of discretion,

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6 No. 14-1812
the benefit of Amendment 782. Here again, Hayden’s real
complaint seems to be that he did not get what he wanted,
not that the district court didn’t consider the request. Al-
though a sentencing judge may grant a variance from the
guidelines range as a way of recognizing the likely effect of a
pending amendment to the guidelines, the judge is not re-
quired to do so. See United States v. Lua-Guizar, 656 F.3d 563,
567 (7th Cir. 2011); United States v. Deloney, 578 F.3d 690,
693–94 (7th Cir. 2009); United States v. Allebach, 526 F.3d 385,
389 (8th Cir. 2008). And a district court is not permitted to
delay a defendant’s sentencing simply to assure that he or
she will benefit from a forthcoming amendment. See United
States v. Alexander, 553 F.3d 591, 593 (7th Cir. 2009); United
States v. Tanner, 544 F.3d 793, 795–97 (7th Cir. 2008).
After Hayden filed this appeal, Amendment 782 took ef-
fect. The revision is retroactive, see U.S.S.G. § 1B1.10(d), (e)(1)
(2014), making him potentially eligible for a future sentenc-
ing reduction. See 18 U.S.C. § 3582(c)(2).1
Our handling of
Hayden’s direct appeal is not changed, however, by
Amendment 782 having taken effect. See 18 U.S.C.
§ 3742(g)(1); Deloney, 578 F.3d at 693–94. Hayden may ask
the district court for a sentence reduction based on Amend-
ment 782, see 18 U.S.C. § 3582(c)(2), but he has not yet done
so and we do not consider that argument here.
1 Amendment 782 became effective immediately for defendants sen-
tenced on or after November 1, 2014, but it will not have retroactive ef-
fect until November 2015 for defendants, like Hayden, who were sen-
tenced before its effective date. U.S.S.G. § 1B1.10(e)(1) (2014). A district
court may accept motions seeking retroactive application before Novem-
ber 1, 2015, provided that any order granting a sentence reduction may
not take effect until that date. Id. § 1B1.10 cmt. n.6.

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No. 14-1812 7
Hayden takes a different tack when he contends that the
district court’s refusal to give him the benefit of Amendment
782 created an unwarranted sentencing disparity.
See 18 U.S.C. § 3553(a)(6). The judge must inquire, as this
judge did, into the specific characteristics of the defendant
and the offense when crafting a sentence. See United States v.
Martinez, 650 F.3d 667, 672–73 (7th Cir. 2011); United States v.
Favara, 615 F.3d 824, 830–31 (7th Cir. 2010); United States v.
Statham, 581 F.3d 548, 556 (7th Cir. 2009); United States v.
Newsom, 428 F.3d 685, 688–89 (7th Cir. 2005). Here, the dis-
trict judge considered whether his decision to not take the
amendment into account created a sentencing disparity and
concluded that it did not. Hayden cannot possibly quibble
with that conclusion because he did not identify even one
concrete example of a similarly situated defendant who re-
ceived a lower sentence based on the not-yet-effective
amendment. See United States v. Anderson, 580 F.3d 639,
652–53 (7th Cir. 2009); Newsom, 428 F.3d at 688–89; see also
United States v. Ramirez, 675 F.3d 634, 640–41 (7th Cir. 2011)
(explaining that defendant could not establish claim of “fast
track” disparity without showing that in fast-track district he
would have qualified for leniency).
Hayden next questions the district court’s choice not to
impose a lower sentence because of what the defendant
characterizes as exceptional family circumstances: Hayden
has a son with health issues, who lives with Hayden’s moth-
er. As with Hayden’s other arguments, this one really is
about the result, not the process. The district judge discussed
the son’s condition and the challenges faced by Hayden’s
family in caring for him. The judge nonetheless declined to
impose a lower sentence on that basis because, given
Hayden’s past absence from his son’s life, the judge did not

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8 No. 14-1812
believe that Hayden would be present to care for his son
even if he was not incarcerated. Plainly, the district court
considered Hayden’s family ties and circumstances, and the
court’s disagreement with this argument in mitigation does
not make the resulting sentence unreasonable. See United
States v. Diekemper, 604 F.3d 345, 355 (7th Cir. 2010); United
States v. Poetz, 582 F.3d 835, 839–40 (7th Cir. 2009).
Finally, Hayden argues that the district court erred by
failing to give notice that a sentence above the guidelines
range was contemplated. Hayden is wrong. A sentencing
court is not required to give advance notice of a sentence
above the guidelines range. See Irizarry v. United States,
128 S. Ct. 2198, 2202–04 (2008). Because the guidelines no
longer are mandatory, United States v. Booker, 543 U.S. 220,
263–64 (2005), the notice requirement imposed by Federal
Rule of Criminal Procedure 32(h) for upward departures is
obsolete. See Irizarry, 128 S. Ct. at 2202–04; United States v.
Brown, 732 F.3d 781, 783 (7th Cir. 2013).
A FFIRMED.

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