In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3240

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LARRY S. GOODEN, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 3:07-cr-30015-DRH-1—David R. Herndon, Chief Judge.

ARGUED APRIL 21, 2009—DECIDED MAY 7, 2009

Before BAUER, EVANS and WILLIAMS, Circuit Judges.

PER CURIAM. Larry Gooden pleaded guilty to conspiring to kidnap and using a firearm during a crime of

violence. In a proffer agreement, Gooden admitted to

participating in a six-day crime spree that involved

robbing several people at gunpoint, abducting a victim

and holding him captive in the trunk of his car for

several days, and attempting to rape another victim. A

probation officer calculated the guidelines range to be

444 to 525 months’ imprisonment, and the district court

sentenced him to 600 months based on the brutality of
2 No. 08-3240

his offense and his recidivism. Gooden appeals, arguing

that his sentence is unreasonably high. Because the sentence is reasonable, we affirm.

Gooden and his co-conspirator, Barry Williams, began

their crime spree by robbing a laundromat in Cahokia,

Illinois. Armed with a sawed-off shotgun, they entered

the laundromat and forced a patron at gunpoint into

the bathroom and robbed him. After hitting the victim

and threatening to kill him, they abducted him and stole

his car, forcing him to ride and sleep in the trunk for

four days. They periodically withdrew money from his

bank account using his ATM card, and, at one point, forced

him again at gunpoint to go to a drive-through teller

window at a bank and withdraw $2,000. The victim was

held in the trunk while Gooden and Williams drove

around Missouri and Illinois, and they allowed him out

of the trunk only to eat and to use the bathroom. On one

occasion, after he was allowed out of the trunk, Gooden

told him, “I want to kill you so bad my dick is hard.” The

victim would sometimes use an emergency latch inside

the trunk to look outside for an opportunity to escape,

but feared that if they caught him trying, Gooden and

Williams would kill him. The victim finally found a

fortuitous moment when he recognized his surroundings and managed to flee on foot to his parents’

home.

Gooden and Williams then drove the victim’s car onwards to St. Louis, Missouri, where they held up two

truck drivers outside a restaurant at gunpoint; in a scuffle

that ensued, the drivers were both injured.
No. 08-3240 3

Later that day, Gooden and Williams approached a

woman who was exiting a restaurant in Berkeley, Missouri,

put a sawed-off shotgun to her back, and forced her

into her car. Williams drove, while Gooden followed in

the car they stole from the Cahokia victim. They drove

to the back of a large parking lot where Williams told

Gooden to “watch his back” while he attempted to rape

the woman. The victim struggled with Williams, who

threatened to hit her with the sawed-off shotgun, which

in turn discharged into the dashboard of her car. Williams

then tried to start the car but it would not start, and the

two men dragged the victim out of her car towards the

other car.

A police officer then showed up on the scene, and

Gooden and Williams fled on foot. Gooden soon returned

to the stolen car he had been driving. He sped off, and

the police chased him at speeds over 100 miles per hour.

The chase ended with Gooden crashing the car, appropriately, near a police station in Sauget, Illinois. The police

arrested Gooden and found evidence from the crime

spree: the sawed-off shotgun; a work shirt (worn by

Gooden) bearing the Cahokia victim’s name embroidered on the front; and the wallet of one of the truckdriver victims.

Gooden entered a proffer agreement and plea agreement and pleaded guilty to conspiracy to commit kidnapping, 18 U.S.C. § 1201(a)(1) and (c), and possession

of a firearm in furtherance of a crime of violence,

18 U.S.C. § 924(c)(1)(A) and (c)(1)(B)(I). The plea agreement required that Gooden give complete information

about crimes committed during the crime spree. A proba-
4 No. 08-3240

tion officer calculated Gooden’s guidelines range for the

kidnapping count to be 324 to 405 months’ imprisonment

and, adding the firearm count’s required consecutive

minimum of 120 months’ imprisonment, a total guidelines range of 444 to 525 months. See U.S.S.G. § 5G1.2.

Gooden asked for a psychological examination to determine whether he was competent to stand trial. Bureau of

Prisons psychologists diagnosed him with a “Mood

Disorder Not Otherwise Specified,” finding that,

although he did not meet the full criteria for depressive

or bipolar disorder, he exhibited some symptoms of a

mood disorder including mild depression, irritability,

“racing thoughts at times,” and mild sleep disturbances;

they concluded that he did not have a mental defect

nor was he incompetent to stand trial.

About a week before the district judge was to sentence

Gooden, the government sought a finding that Gooden

had breached the plea agreement by failing to provide complete information about the crimes he had committed. It turned out that Gooden’s DNA matched evidence found during an investigation of an unsolved rape

of a 16-year-old girl that had occurred during Gooden’s

six-day crime spree, and the victim had identified

Gooden and Williams in a photographic lineup. Gooden

chose not to contest the government’s motion and entered

a guilty plea without a plea agreement.

At the sentencing hearing, Gooden argued that he

had been manipulated by Williams, and that he needed

mental health care and should receive a reduced sentence

because of diminished capacity. Gooden also argued that

he was no more culpable than Williams, who had received
No. 08-3240 5

a within-guidelines sentence of 40 years. Williams, however, as Gooden acknowledged, entered his plea agreement before the rape of the 16-year-old had been discovered; thus the government did not learn until after his

sentencing that Williams had breached the plea agreement by not disclosing that crime.

The judge rejected Gooden’s argument that he had

diminished capacity, noting that the psychological evaluation concluded that he did not have a mental defect. The

judge also noted that diminished capacity was not

reflected by the nature of Gooden’s threats to his victims,

including his expression of a physical desire to kill his

kidnapping victim. And even if he were to conclude that

Gooden did suffer from diminished capacity, the judge

added, he would not be eligible for a reduction because

the guidelines do not provide for one when specific

deterrence is an overriding concern. See U.S.S.G. § 5K2.13.

The government, citing the brutality of Gooden’s crimes,

the multiple times that the shotgun was brandished, and

the number of victims of his violence, sought an aboveguidelines sentence of 576 months. The judge, however,

went further and sentenced Gooden to 600 months’

imprisonment, reasoning that the crime spree, involving

armed violence, robbery, abduction, and sexual assault,

called for a longer sentence to protect society from

Gooden. The judge pointed out that a 10-year minimum

sentence would be imposed for one use of a firearm even

if it were never fired, and Gooden had brandished the

sawed-off shotgun four times, and it had been discharged

once. The judge rejected Gooden’s argument that he was

simply led by others, finding instead that Gooden was a
6 No. 08-3240

“full partner in a six-day crime spree.” The judge also

noted Gooden’s extensive criminal history, including

crimes that were not reflected in Gooden’s criminal

history score.

The district judge followed up his exemplary sentencing discussion with a 22-page sentencing memorandum that detailed his reasons for imposing the 50-year

sentence, and referred to all of the factors in § 3553(a).

On appeal, Gooden argues that his sentence is unreasonable. He maintains that the district judge failed “to point

out how these crimes and the defendant’s role were not

adequately taken into consideration” by the guidelines,

and that a variance with the guidelines was not justified

with reference to 18 U.S.C. § 3553(a) and the grounds

for increases listed in U.S.S.G. § 5K2.0. He also argues

that his 50-year sentence creates an unwarranted sentencing disparity with Williams’s 40-year sentence and

thus strays afoul of § 3553(a)(6).

Sentences that are outside the guidelines range are

reasonable if they conform to the sentencing factors in

18 U.S.C. § 3553(a), United States v. Simmons, 485 F.3d 951,

953 (7th Cir. 2007), and a sentencing judge should support an above-guidelines sentence with “compelling

justifications,” United States v. Gordon, 513 F.3d 659, 666

(7th Cir. 2008). Here, the judge gave extensive justifications for imposing a 50-year sentence on Gooden. The

judge noted Gooden’s extensive criminal history, see

18 U.S.C. § 3553(a)(1), specifically pointing out that

Gooden had committed crimes shortly after being

released from prison, and concluded that Gooden was a

recalcitrant “brutal criminal” who was trying to manipu-
No. 08-3240 7

late the system “by relying on some sort of mental issue,”

the same way he manipulates his victims. The judge also

pointed out the need to protect society from Gooden, see

18 U.S.C. § 3553(a)(2)(C), reasoning that Gooden was an

“extraordinary danger to society” who had shown no

remorse. The judge considered the need for general

deterrence, see 18 U.S.C. § 3553(a)(2)(B), noting the importance of warning “persons like the defendant” that “they

will be removed from society for a very long period of

time if they pursue this kind of activity.”

Gooden characterizes the district judge’s justifications

for increasing his sentence on the basis of his role in the

offense, see 18 U.S.C. § 3553(a)(1)-(2), as “conclusory.” He

argues that it was Williams, not Gooden, who put the

shotgun to the back of the woman whom he then attempted to rape, and that it is unclear who injured the

truck drivers. We disagree. The judge noted that Gooden

was a full partner in Williams’s crimes, and that the

guidelines range for the firearm charge was the

statutory minimum, and did not take into consideration the multiple times the shotgun was used, the fact

that it was discharged, or the overall violent nature of

the six-day crime spree.

Gooden’s argument that his sentence is unreasonable

in comparison to Williams’s 40-year sentence is similarly unpersuasive. See 18 U.S.C. § 3553(a)(6). We do not

view the “discrepancy between sentences of co-defendants

as a basis for challenging a sentence” and will disturb a

sentence only if it creates an unwarranted sentence disparity between similar defendants nationwide. See United

States v. Omole, 523 F.3d 691, 700 (7th Cir. 2008). Gooden
8 No. 08-3240

does not point to any similar sentences in other cases

that would show that his sentence creates an “unjustified

difference across judges (or districts).” See United States v.

Boscarino, 437 F.3d 634, 638 (7th Cir. 2006). Moreover, as

the government points out, Williams was sentenced (by

the same judge) under the terms of a plea agreement

where the government recommended the low-end of

Williams’s 480-months to life-imprisonment range. As the

judge noted, Williams benefitted from the fact that his

involvement in the rape of the sixteen-year-old girl

was unknown at the time of his sentencing, and the government was unaware that Williams had breached the

terms of the plea agreement.

Finally, Gooden argues that he was not notified of the

district court’s intention to give an above-guidelines

sentence, in violation of Federal Rule of Criminal Procedure 32(h). We have cast doubt on the continued applicability of Rule 32(h) post-Booker. See United States v.

Walker, 447 F.3d 999, 1007 (7th Cir. 2006). In any event, Rule

32(h) requires notice before a court can give an aboveguidelines sentence based on information that is not in

the presentence report, and Gooden had “full knowledge

of all the facts on which the district court relied for its

§ 3553(a) analysis” because the judge based the sentence

entirely on information in the presentence report. Id.

at 1007.

Accordingly, we AFFIRM Gooden’s sentence.

5-7-09