# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued May 19, 2010

Decided June 1, 2010

Before

JOEL M. FLAUM, Circuit Judge

DANIEL A. MANION, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 10

‐ 1235

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

JOSE H. JIMENEZ

‐ BETANCOURT,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Western District

of Wisconsin

No. 09

‐ cr

‐ 115

‐ bbc

‐ 3

Barbara B. Crabb,

Chief Judge

.

O R D E R

In April 2009, Jose Jimenez

‐ Betancourt was arrested in Kentucky for cashing stolen

payroll checks. He pled guilty in state court to crimes of fraud and theft and was sentenced on

September 15, 2009, to three years in Kentucky state prison. While awaiting his state sentence,

Jimenez

‐ Betancourt was also indicted in federal court in the Western District of Wisconsin for

cashing stolen checks in that state. There, he pled guilty to two counts of bank fraud. Having

already served nearly nine months in Kentucky, he was sentenced on January 15, 2010, to

fourteen months in federal prison, to run concurrently with the remainder of his state sentence.

He now appeals that federal sentence. We affirm.

The district court properly calculated Jimenez

‐ Betancourt’s guideline sentence range. 

### NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 10

‐ 1235 Page 2

His base offense level was seven. Jimenez

‐ Betancourt’s intended loss in Wisconsin was

$43,292.63; adding the intended loss in Kentucky increased the figure to $61,070.66. Both

numbers called for the district court to apply the six

‐ level enhancement for intended losses

greater than $30,000 but less than $70,000. Subtracting two levels for acceptance of

responsibility, the court came to a total offense level of eleven. Jimenez

‐ Betancourt does not

dispute that this calculation was proper. He also concedes that he was ineligible for a

time

‐ served credit under U.S.S.G. § 5G1.3(b) because adding his intended loss from his

Kentucky crimes to his intended loss from his Wisconsin crimes did not change his offense

level.

Nevertheless, Jimenez

‐ Betancourt argues that the district court was unreasonable in

failing to exercise its discretion under 18 U.S.C. § 3553(a) to give him credit for time served

anyway. He cites United States v. Cunningham

, 429 F.3d 673 (7th Cir. 2005), for the proposition

that a district court must explain why it declined to exercise its discretion to vary from the

guidelines range, and argues that the district court’s explanation here was insufficient.

We disagree. To begin with, Jimenez

‐ Betancourt’s argument for a variance was not

particularly compelling. His objections to the presentence report essentially argued that the

district court should read out of the guideline the requirement that his offense level went up

because of his Kentucky conduct, but offered no reason why it would be unfair in this case to

follow the guideline. Nor did he argue that the guideline is facially unreasonable and would

be unfair in any case.

At the sentencing hearing, Chief Judge Crabb considered and rejected Jimenez

‐

Betancourt’s argument: “I know that you think you should be given credit for the time you

have spent in state custody

. . . . Your conviction in Kentucky accounts for only a portion of the

scheme in which you were involved, however.” We might hope for a more thorough

explanation, and the fact that the court went on to mention the guideline calculation again

muddies the water a bit. Still, we are confident that the district court understood well that it

had the discretion to impose a sentence outside the properly calculated guidelines range and

declined to exercise that discretion. Its decision not to subtract the time served was neither an

oversight nor a “rote statement,” but rather a case

‐ specific conclusion that Jimenez

‐ Betancourt’s

Wisconsin conduct was distinct enough to justify a separate term in federal prison regardless

of time served in Kentucky. That due consideration is all that we require. See Cunningham

, 429

F.3d at 679.

The defendant’s sentence is AFFIRMED.