United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued April 17, 2007

Decided April 25, 2007

Before

 Hon. MICHAEL S. KANNE, Circuit Judge

 Hon. DIANE P. WOOD, Circuit Judge

 Hon. TERENCE T. EVANS, Circuit Judge

No. 06-3209

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KENDRICK THOMAS,

Defendant-Appellant.

Appeal from the United States

District Court for the Northern

District of Illinois, Eastern Division

No. 04 CR 965-1

Mark R. Filip,

Judge.

O R D E R

After Kendrick Thomas pleaded guilty to possessing cocaine base with intent

to distribute, 21 U.S.C. § 841(a)(1), the district court sentenced him to 188 months

imprisonment, the bottom of his properly calculated guidelines range. He argues

that his sentence is unreasonable because most of his prior offenses were

misdemeanors and traffic violations, yet when added up they put him in criminalhistory Category VI. He also contends that affording a presumption of

reasonableness to a sentence within the guidelines range creates a “de facto binding

guidelines regime” in contravention of United States v. Booker, 543 U.S. 220 (2005).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with 

Fed. R. App. P. 32.1
No. 06-3209 Page 2

In 2003 a Drug Enforcement Administration task force investigated crack

dealing by the Gangster Disciples street gang in Elgin, Illinois. During the

investigation an informant bought crack from Thomas on two occasions. The first

transaction involved 53 grams and the second, 115 grams. Thomas was charged

with two counts of possessing crack (cocaine base) with intent to distribute, 21

U.S.C. § 841(a)(1), and he pleaded guilty to both counts. The quantity of crack

triggered ten-year mandatory minimums by statute, id. § 841(b)(1)(A)(iii), and a

total offense level of 31 under the sentencing guidelines. U.S.S.G. §§ 2D1.1(c)(3);

3E1.1.

The district court counted 13 criminal history points, which placed Thomas

in Category VI. Thomas was convicted of reckless conduct in 1995, resisting a

peace officer and contributing to the delinquency of a minor in 1996, attempted

aggravated battery in 1997, criminal trespass and aggravated battery in 1999, and

possession of cannabis in 2002. He also was convicted ten times between 1995 and

2002 of driving without a license or while his license was suspended. Thomas

conceded that he was correctly classified as Category VI, but he argued that the

district court should sentence him below the guidelines range because his criminal

history consisted of “petty misdemeanor[s]” rather than crimes of violence or drug

dealing. The district court acknowledged that some of Thomas’s convictions were

for minor offenses, and offered that as a reason for selecting a sentence of 188

months, the bottom of Thomas’s guidelines range. The court declined to go lower

because some of Thomas’s convictions were for crimes of violence, and because the

sheer number of convictions was “extraordinary.”

On appeal Thomas primarily argues—somewhat anachronistically—that

he is “entitled” to a one-level “departure” in his criminal history category because,

in his view, placement in Category VI substantially over-represents both the

seriousness of his criminal history and the likelihood that he will commit other

crimes. If a defendant is able to persuade a sentencing court of such contentions,

U.S.S.G. § 4A1.3(b)(1) encourages the court to downwardly “depart” from the

guidelines in imposing sentence. But arguing whether Thomas qualifies for a

downward “departure” is a needless complication after United States v. Booker,

543 U.S. 220 (2005). See United States v. Spano, 476 F.3d 476, 480 (7th Cir. 2007)

(noting obsolescence of “departures” post-Booker).

The real question on appeal is whether the district court considered the

factors set forth in 18 U.S.C. § 3553(a) and imposed a sentence that is reasonable. 

United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006). Here, the district court

considered Thomas’s argument that his relatively modest criminal history militated

for a below-range sentence but ultimately rejected it, noting that Thomas “has been

shown leniency repeatedly and then nonetheless has chosen to continue to break
No. 06-3209 Page 3

the law.” The court also described the impact of Thomas’s crime on the Elgin

community where, according to a task force officer who testified at sentencing,

“open-air drug markets” forced children off the streets. The court cited the need

to generally deter such crimes as well as a need to specifically deter Thomas as

justification for the 188-month sentence; the court was required to do no more. 

See United States v. Nitch, 477 F.3d 933, 937 (7th Cir. 2007); United States v. Dean,

414 F.3d 725, 729 (7th Cir. 2005).

Although the district court refused to sentence Thomas below his guidelines

range, it cited, as we have noted, Thomas’s criminal-history argument as the

primary reason for selecting 188 months, the bottom of the range. Thomas is not

satisfied with that concession, maintaining on appeal that his sentence is unduly

severe because it is driven by his “minor offense and traffic violations.” But in truth

the quantity of crack Thomas dealt, not his criminal history, largely determined his

sentence. Only three of Thomas’s ten convictions for driving without a valid license

were counted in his criminal history score. If they had been left out of the equation

entirely, his criminal history score would drop to a Category IV, but his 188-month

sentence would still be within the guidelines range. Cf. United States v. Stitman,

472 F.3d 983, 989 (7th Cir. 2007) (noting that even if defendant prevailed on

argument to lower his properly calculated criminal-history category, his actual

sentence would still be within the new guidelines range). Nor is Thomas’s sentence

unreasonable, as he urges, simply because many of his prior crimes were

misdemeanors. See United States v. Garner, 454 F.3d 743, 751 (7th Cir. 2006)

(upholding Category VI designation and sentence at high end of guidelines range

although defendant’s criminal past consisted solely of misdemeanors).

Thomas also asserts that the presumption of reasonableness afforded on

appeal to sentences within a properly calculated guidelines range, see, e.g., United

States v. Gama-Gonzalez, 469 F.3d 1109, 1110-11 (7th Cir. 2006); United States v.

Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005), “virtually reinstates the previous

mandatory sentencing regime” because district courts “refuse to apply below-

[g]uidelines sentences unless there are glaring extraordinary circumstances

present.” He argues that the presumption caused the district court to select a

sentence based on “strict [g]uideline calculations without adequate consideration

being given to [his] individual circumstances, history and characteristics.” But as

already discussed, the district court in fact explicitly considered the § 3553(a)

factors and articulated point-by-point responses to each argument advanced by

Thomas in favor of a lower sentence. Thomas cites to the Supreme Court’s decision

to grant certiorari in United States v. Rita, No. 05-4674, 177 F. App’x 357 (4th Cir.

May 1, 2006), cert. granted, 127 S. Ct. 551 (U.S. Nov. 3, 2006) (No. 06-5754), and

United States v. Claiborne, 439 F.3d 479 (8th Cir. 2006), cert. granted, 127 S. Ct.

551 (U.S. Nov. 3, 2006) (No. 06-5618), but the citations are perfunctory; he does not

explain how the potential resolution of either case might bear on his sentence.
No. 06-3209 Page 4

Accordingly, the judgment of the district court is AFFIRMED.