United States of America v. Minor R. Rivera

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2788
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
M INOR R. R IVERA ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 28—Robert W. Gettleman, Judge.
____________
A RGUED A PRIL 6, 2006—D ECIDED S EPTEMBER 6, 2006
____________
Before B AUER , W OOD , and S YKES , Circuit Judges.
B AUER , Circuit Judge. Minor R. Rivera, possessed of a
long and checkered criminal career, escaped from a Salva-
tion Army halfway house on October 7, 2004. Within
twenty-four hours of the escape, however, he realized the
error of his decision and voluntarily returned to the facility.
Rivera was indicted by a grand jury under 18 U.S.C.
§ 751(a), and he pleaded guilty without a plea agreement.
At sentencing, the district court held Rivera to be a career
offender and, after properly calculating his Guidelines
range, sentenced him to 37 months’ imprisonment. Rivera
argues on appeal that this sentence is unreasonable; that
the judge failed to adequately consider the circumstances of
his “walk-away.” We affirm.

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2 No. 05-2788
Having arrived on October 4, 2004, Rivera’s tenure at the
Salvation Army Community Correctional Center lasted only
four days. On October 6, he received permission from the
Center’s staff to leave the facility in order to obtain
a medicine prescription from the Veterans Administra-
tion Hospital. Later that day, he was returned to the Center
by Chicago police officers. The officers informed the staff
that they suspected him of having either used, or been in
possession of, heroin. Based on this information, the
Salvation Army personnel conducted a drug test on Rivera’s
urine. The test indicated the presence of heroin. The Cen-
ter’s staff then placed him on “no movement” status until
further notice. In fear of being returned to a penal institu-
tion, Rivera fled the halfway house on October 7. He
returned the following day, October 8, 2004, and was taken
into custody by U.S. Marshals.
Because our holding turns on the detailed analysis the
district court gave each issue at sentencing, we review the
hearing in detail. To start, we note that Rivera’s sentencing
hearing was conducted on May 12, 2005, exactly four
months after the Supreme Court issued its opinion in
United States v. Booker, 543 U.S. 220 (2005). The district
court followed the proper post-Booker sentencing pro-
cedure of first calculating the defendant’s Guideline range,
considering the commentary and policy statements, and
then looking to 18 U.S.C. § 3553(a). But this was no
simple task.
When Rivera was transferred to the halfway house it was
to complete a sentence for having violated his supervised
release on a bank robbery conviction. The probation officer
initially calculated his sentence under U.S.S.G. § 2P1.1.
This gave him a base offense level of 8, with a subsequent
four-level reduction for voluntarily returning within 96
hours without committing a crime in the interim period. He
also received a two-level reduction for acceptance of respon-
sibility, § 3E1.1. Rivera, however, was a career offender and

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No. 05-2788 3
1 U.S.S.G. § 4B1.1, Career Offender, states, in relevant part:
(a) A defendant is a career offender if (1) the defendant was
at least eighteen years old at the time the defendant commit-
ted the instant offense of conviction; (2) the instant offense of
conviction is a felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant has at
least two prior felony convictions of either a crime of violence
or a controlled substance offense.
(b) . . . if the offense level for a career offender from the
table in this subsection is greater than the offense level
otherwise applicable, the offense level from the table in this
(continued...)
subject to sentencing under § 4B1.1. The district court
calculated his base offense level at 17 and gave him a
§ 3E1.1 three-level reduction. Section 4B1.1 automatically
pegged his criminal history category at VI. These factors
yielded a suggested range of 37 to 46 months.
But Rivera challenged his career offender status and the
application § 4B1.1. His escape from the halfway house, he
argued, was not a crime of violence. Relying on our decision
in United States v. Bryant, the district court rejected this
claim, took notice of Rivera’s two prior convictions for
crimes of violence (both for bank robbery), and reaffirmed
the career offender classification. 310 F.3d 550, 554 (7th
Cir. 2002) (holding that, where appellant failed to return to
halfway house, the “crime of escape, as a category, is a
crime of violence for purposes of the federal sentencing
guidelines”). In reasoning through this calculation the court
noted that “to go below 6 as a criminal history category, I
would have to basically throw out 4B1.1. I suppose I could
do that under Booker if I wanted to, but, very frankly, I’m
not inclined to do that.” Sent. Tr. at 14.
Rivera also argued that the Guidelines contained an error
in that § 4B1.1 1 did not allow for a four point offense level

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4 No. 05-2788
1 (...continued)
subsection shall apply. A career offender’s criminal history
category in every case under this subsection shall be Category
VI.
(Emphasis added). Where the offense statutory maximum is 5
years or more, but less than 10, as is the case with 18 U.S.C.
§ 751(a), the Offense Level is 17. Subsection (b) then explicitly
states that “[i]f an adjustment from § 3E1.1 (Acceptance of
Responsibility) applies, decrease the offense level by the num-
ber of levels corresponding to that adjustment.”
reduction for a voluntary return under § 2P1.1(b)(2). The
Sentencing Commission, he submitted, made a mistake.
The district court was initially concerned with this applica-
tion and reasoned that if they applied the career offender
guideline “without giving any credit for the fact that he
turned himself in, then we’re saying there is no difference
between somebody who turns themselves in within a short
period of time and someone who doesn’t, and I don’t think
that makes sense to me.” Id. at 15. The government coun-
tered, arguing that the language of § 4B1.1(b) is plain, and
that it dictates the application of the higher offense level
regardless of the crime, criminal conduct, or specific offense
characteristics such as §2P1.1(b). This, the government
posited, “is one of the reasons why the career offender
statute has the teeth it does. . . .” Id. at 18. After hearing
defense counsel’s counter-argument, the court agreed with
the government and stated “my concern was probably
incorrect, and I reluctantly make that conclusion. But it
sounds right to me.” Id. at 19.
The district court then heard argument from the govern-
ment and defense counsel on the circumstances of the
crime, and a statement from the defendant. The govern-
ment stressed Rivera’s 26 prior convictions and noted that
his escape occurred while he was completing a term for
violating his supervised release on one of his bank robbery

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No. 05-2788 5
convictions. Defense counsel opened by stressing the
advisory nature of the Guidelines post-Booker. Counsel
continued to argue that Rivera’s problem was with drugs,
that further incarceration would do little good, and that
what he needed was to be secured in a facility where he
could receive drug treatment. In his statement to the court,
Rivera pleaded for leniency, admitting he made a mistake,
and stressed his desire to be placed in a treatment program
and to better his life. The district court then made its
finding.
Judge Gettleman opened his remarks by noting that it
was his duty to “determine whether the . . . guidelines
sentence here is a reasonable sentence and whether there
is another reasonable sentence that I would prefer to
impose.” Id. at 27. He then reflected on Rivera’s plea for
leniency, stating that he believed the defendant was
sincere, and that the court had considered granting a
reduced sentence. This expression, however, was immedi-
ately followed by the statements below:
But, very frankly, with the record that you have, and I
think a very strong expression in the guidelines by the
sentencing commission, which I don’t find to be unrea-
sonable at all, someone with a career offense level as
extensive as yours, you did make a mistake, and you
did correct the mistake, and you’re being given credit
for it in the sense that I’m going to consider the very
lowest end of an appropriate guideline range.
And you are given, of course, the three points for
acceptance of responsibility. . . .
Well, the offense level here is 14, and the criminal
history is 6. And I don’t think that the sentence called
for by that is unreasonable by any means considering
the fact that we do, I think [the Assistant United States
Attorney] put his finger on something that’s very

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6 No. 05-2788
important here that really can’t be overlooked, when we
put people in these halfway houses for treatment, we’re
imposing a lot of trust on those people. If that system
doesn’t work, we’re not going to have a halfway house
system for anybody. . . .
People who violate those conditions as you did, even if
it was only temporary, even if you caught yourself in
time—and I commend you for that, I really do. And I’m
going to make sure that that’s in the order that I enter.
But just by having violated those conditions puts the
entire system in jeopardy right now. . . .
So I think the guidelines sentence here is a reasonable
sentence. And I’m going to impose the lowest sentence
of 37 months. I’m going to recommend the comprehen-
sive drug treatment and aftercare in the strongest
possible terms.
Id. at 28-30.
Despite this thorough consideration of the Sentencing
Guidelines policy and reasoning on deterrence, Rivera
argues now that the district court erred in imposing the
Guidelines sentence. In making this argument, he does
not claim error in finding he was a Career Offender or in
calculating his Guidelines range. Instead, Rivera argues
that the Guidelines sentence itself was unreasonable as
applied. He claims that the district court failed to consider
the circumstances of his escape under § 3553(a)(1), and that
37 months is simply too long a punishment in light of his
voluntary return.
We review the district court’s criminal sentence to ensure
that it is not unreasonable. United States v. George, 403
F.3d 470, 473 (7th Cir. 2005). As noted above, the court
must first calculate the Guidelines’ range and then consider
the factors contained within 18 U.S.C. § 3553(a). See, e.g.
United States v. Walker, 447 F.3d 999, 1007 (7th Cir. 2006).
A sentence, such as this, that falls within a properly

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No. 05-2788 7
calculated Guidelines’ range is entitled to a rebuttable
presumption of reasonableness. United States v. Mykytiuk,
415 F.3d 606, 608 (7th Cir. 2005). When reviewing a
challenge to this presumption, our standard is not de novo;
it is one of great deference. United States v. Wallace, 2006
WL 2338021, No. 05-3675, slip op. at 10 (7th Cir. Aug. 14,
2006). And while a defendant’s sentence is to be measured
against the § 3553(a) factors, “it will be a rare Guidelines
sentence that is unreasonable.” Mykytiuk, 415 F.3d at 608.
This is because the Guidelines represent eighteen years of
“careful consideration of the proper sentences for federal
offenses” and “remain an essential tool in creating a fair
and uniform sentencing regime across the country.” Id. at
607-08.
Section 3553(a) instructs the district court to consider, in
part, “the nature and circumstances of the offense and the
history and characteristics of the defendants,” § 3553(a)(1),
as well as the need for the sentence to “reflect the serious-
ness of the offense,” “provide just punishment,” “afford
adequate deterrence to criminal conduct,” and “protect the
public from further crimes of the defendant,”
§ 3553(a)(2)(A)-(C). While a review of this section is manda-
tory, the court need not analyze each factor in a point-by-
point manner on the record. George, 403 F.3d 472-73.
Instead, we look to see if the district judge provided an
“ ‘adequate statement’ of his reasoning that a particular
sentence is appropriate for the defendant.” United States v.
Lister, 432 F.3d 754, 761 (7th Cir. 2005) (quoting United
States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005)). Judge
Gettleman’s statement on the consequences of Rivera’s
escape from the halfway house system as a whole was more
than adequate to satisfy this review. After listening to
argument from both Rivera and the government, the court
reflected on the policy behind Rivera’s offense level and
criminal history category, and the impact of his escape,
concluding that “when we put people in these halfway

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8 No. 05-2788
houses for treatment, we’re imposing a lot trust on those
people. If that system doesn’t work, we’re not going to have
a halfway house system for anybody.” Sent. Tr. at 29.
Further, the district court provided ample opportunity for
Rivera to direct its attention to factors contained in
§ 3553(a) that possibly warranted a sentence different than
that suggested by the Guidelines. See Wallace, slip op. at 7;
Dean, 414 F.3d at 730-31. In doing so, the court heard both
defense counsel’s argument and Rivera’s personal state-
ment that the escape was a simple mistake, and that what
he needed was not imprisonment, but drug-treatment. The
court explicitly considered and rejected this plea, reasoning
that, given Rivera’s criminal record and the strong policy
expression in the Guidelines, the 37- 46 months’ range was,
indeed, appropriate. And, despite Rivera’s claim to the
contrary, the district court did accommodate the non-violent
nature and circumstances of his offense: “you did make a
mistake, and you did correct the mistake, and you’re being
given credit for it in the sense that I’m going to consider the
very lowest end of an appropriate guideline range.” Id. at
28.
But Rivera presents something of a collateral attack
against this reasoning on appeal, arguing that while the
district court’s consideration of his record was not techni-
cally incorrect, it overstated the nature of his criminal past.
The majority of his 26 convictions, he points out, were for
the petty thefts of meat. These convictions, however, did not
exist in a vacuum. Paired with the majority of the seven-
teen theft convictions is a note in the Pre-Sentence Investi-
gation Report that the defendant was either in possession
or under the influence of narcotics at the time of the
offense. Moreover, after one of the arrests Rivera admitted
that he stole the meat to support his heroin addiction—the
same addiction that he blames for his two bank robbery
convictions and the instant escape. In light of these facts,
the district court’s characterization of Rivera’s record and

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No. 05-2788 9
career offense level as “extensive,” and thus deserving of a
37 month sentence, is wholly reasonable. Sent. Tr. at 28.
Rivera next argues that the length of his sentence reduces
the incentive for future escapees to return without incident,
and that this is implicitly contrary to § 3553(a)(2)(B). But
this subsection speaks on the first order of deterrence: “to
afford adequate deterrence to criminal conduct.” Generally,
the threat of a penal sentence is intended to discourage the
commission of the crime, i.e., Rivera’s escape, in the first
place. Once Rivera walked out of the halfway house without
permission, that crime was already committed, and as the
district court noted, it threatened the halfway house system
and other alternative means of punishment. To view the
court’s sentence as punishment for returning is to ignore
the fact that Rivera chose to commit the crime. It is not the
court or the penal system that has placed him in this
predicament, it is the exercise of his own free will. Further,
the district court did reward Rivera for returning volun-
tarily by sentencing him at the bottom of the Guidelines
range.
Finally, Rivera argues that his sentence is unreasonable
because it is the same or greater than sentences meted
out to other defendants in our Circuit who escaped prison
under conditions he characterizes as more egregious than
his. Of the three cases Rivera cites as anecdotal evidence,
however, two did not involve the application of the career
offender statute and are thus inapposite in terms of the
explicit policy considerations set forth by Congress. See
United States v. King, 338 F.3d 794 (7th Cir. 2003); United
States v. Stalbaum, 63 F.3d 537 (7th Cir. 1995). In the third
case, United States v. Waagner, the appellant did
not challenge the length of his term, but the district
court’s findings of relevant conduct, instead. See 319 F.3d
962, 966 (7th Cir. 2003) (upholding finding that defendant
possessed firearms “in connection with” crimes of violence).

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10 No. 05-2788
These cases provide a poor foundation upon which to build a
challenge to the reasonableness of his sentence.
While Judge Gettleman’s thorough consideration of each
issue at sentencing did yield seemingly contradictory
language in the record, his findings in support of the
properly calculated 37-month term were unequivocal.
Rivera’s appeal fails to demonstrate unreasonableness, and
thus, his sentence is A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-6-06

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