United States of America v. John Dunn

*After examining the briefs and the records, we have concluded that oral argument is
unnecessary. Thus, the appeals are submitted on the briefs and the record. See FED. R. A PP.
P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 21, 2009*
Decided June 8, 2009
Before
WILLIAM J. BAUER, Circuit Judge
JOHN L. COFFEY, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 08‐1034
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JOHN DUNN,
Defendant‐Appellant.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 07‐cr‐117‐jcs‐1
John C. Shabaz,
Judge.
O R D E R
John Dunn (Dunn) is appealing his 130 month prison sentence for his conviction of
one count of conspiracy to possess crack with intent to distribute in violation of 21 U.S.C. §§
846, 841(a) claiming that he is entitled to a limited remand to determine if the district court
would have issued the same sentence in light of Kimbrough v. United States, 128 S. Ct. 558
(2007). In Kimbrough, the Supreme Court held that the 100 to 1 crack/powder disparity in
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08‐1034 Page 2
the sentencing guidelines was advisory and that the district court “may consider the
disparity between the [sentencing guidelines’] treatment of crack and powder offense” if the
district judge issues a sentence below the guideline range. Kimbrough v. United States, 128 S.
Ct. 558, 564 (2007). In response to the Kimbrough opinion, “this [C]ourt determined that a
limited remand would be appropriate where an appeal from a sentencing decision was
pending when Kimbrough was decided and the district court did not have an opportunity to
consider its holding.” United States v. House, 551 F.3d 694, 701 (7th Cir. 2008) (Citing United
States v. Taylor, 520 F.3d 746, 747‐748 (7th Cir. 2008). However, we have declined to remand
a case when the sentencing hearing occurred after Kimbrough and the judge made a
statement on the record that it was aware of its discretion. Id. Although Dunn’s sentencing
hearing occurred nine days after Kimbrough, Dunn asserts that he is still entitled to a limited
remand under Taylor because the trial judge did not mention his discretionary authority in
light of Kimbrough during his sentencing hearing. This argument is erroneous.
At Dunn’s sentencing hearing on December 19, 2007, the district court properly
calculated a guideline imprisonment range of 108 to 135 months. Dunn argued for a below
guideline sentence claiming that the amount crack attributable to him was relatively low,
that he cooperated with law enforcement officers after he was implicated in the conspiracy
and that treatment for his drug addiction would be a more appropriate sentence. The trial
judge rejected these arguments and sentenced Dunn to 130 months. During Dunn’s
sentencing hearing, the court referred to the § 3553(a) factors including the nature and
circumstances of the offense, the history and characteristics of the defendant, specifically
referring to the length of time Dunn was involved in the conspiracy, and the amount crack
attributable to him.
After review of the record and application of the case law, it is clear that Dunn is not
entitled to a limited remand under Taylor. This court would only order a limited remand
had Dunn’s sentencing been complete and pending appeal before the Kimbrough opinion
was released. Taylor, 520 F.3d at 747. Here, Dunn’s sentencing hearing occurred nine days
after the Kimbrough decision. Thus, he is not entitled to a limited remand under Taylor.
Furthermore, Dunn’s argument that the court was obligated to mention its
discretionary authority during sentencing is incorrect. “[A] claim that a seasoned judge . . .
didn’t understand his discretion will rarely, if ever, be successful when built merely upon
inferences. Article III judges are presumed to know the law . . .” United States v. Atkinson,
259 F.3d 648, 653 (7th Cir. 2001) (internal quotations and citations omitted). It is clear that
the district judge considered the arguments raised by Dunn and the factors set forth in
§ 3553(a) on the record before issuing a within guidelines sentence. Even though the trial
judge did not mention Kimbrough at sentencing, this was not an error. Taylor, 520 F.3d at

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No. 08‐1034 Page 3
747. If Dunn wanted a specific ruling based on Kimbrough, it should have been brought to
the attention of the trial court during the sentencing hearing. When a district judge issues a
sentence that is within the calculated guidelines, he is entitled to a presumption of
reasonableness that can only be rebutted by demonstrating that the “sentence was
unreasonable when measured against the factors set forth in § 3553(a).” United States v.
Myktiuk, 415 F.3d 606, 608 (7th Cir. 2005). In as much as the defendant failed to rebut this
presumption, Dunn “cannot complain on appeal that [his] sentence should have been
reduced based upon § 3553(a) factors that were never brought to the attention of the district
court.” United States v. Fillipiak, 466 F.3d 582, 584 (7th Cir. 2006). Dunn has failed to
demonstrate that the district court was unaware of its discretion during his sentencing
hearing. Thus, we conclude the sentencing judge exercised his discretion properly when
sentencing Dunn to 130 months and AFFIRM the judgement of the district court.

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