In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-3812

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

THOMAS JOHNSON,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 CR 785—David H. Coar, Judge.

____________

ARGUED FEBRUARY 22, 2008—DECIDED JULY 18, 2008

____________

Before EASTERBROOK, Chief Judge, and BAUER and

POSNER, Circuit Judges.

BAUER, Circuit Judge. For a third time, Thomas Johnson

requests that we review his sentence. In 2000, a jury

convicted Thomas Johnson of conspiracy to defraud

the United States in violation of 18 U.S.C. § 371, and

two counts of producing fraudulent Social Security cards

in violation of 18 U.S.C. §§ 1028(a)(1) and (2). The district

court sentenced Johnson to 60 months’ imprisonment on

Count 1 and 78 months’ imprisonment on Counts 2 and 3,

to run concurrently. On Johnson’s first appeal, we remanded the case for resentencing, finding that the dis-
2 No. 06-3812

1 Johnson’s representation issues dated back to August of 2000,

when Johnson was unhappy with his trial attorney and requested a new one. Johnson was represented by another

attorney on his second appeal. On May 11, 2004, Judge Coar

granted that attorney’s motion to withdraw, and appointed

a public defender to represent Johnson on his second appeal.

That public defender moved to withdraw on June 15, 2005,

which brings us to the events on August 24, 2005.

trict court had used the incorrect definition of “relevant

conduct” under U.S.S.G. § 1B1.3(a)(2)) in reaching Johnson’s sentence. See United States v. Johnson, 347 F.3d

635, 638-40 (7th Cir. 2003). After applying the correct

definition of “relevant conduct” on remand, Judge Coar

imposed the same sentence. On Johnson’s second appeal,

we ordered a limited remand so that Judge Coar could

inform us whether he considered the sentence to be

appropriate, given that the Sentencing Guidelines are no

longer mandatory. See United States v. Booker, 543 U.S. 220,

125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v.

Paladino, 401 F.3d 471, 483-85 (7th Cir. 2005). Judge Coar

answered in the affirmative, and Johnson appeals.

I. BACKGROUND

Pursuant to our limited Paladino remand, on August 24,

2005, Judge Coar held an initial status hearing to set

briefing deadlines and discuss representation issues.1

Johnson’s attorney from his second appeal and a federal public defender were present. The following colloquy took place:

The Court: So, Mr. Johnson, is it your wish that [your

current attorney] not represent you?
No. 06-3812 3

Johnson: That’s absolutely correct.

The Court: All right. And [the public defender] is

appointed to represent you—

Johnson: No, I don’t want Mr.—I don’t need representation.

The Court: You don’t have a choice.

Johnson: I do have a choice. I don’t have to have him

represent me.

The Court: You want to represent yourself?

Johnson: Yes, absolutely.

The Court: Yes sir. You can represent yourself.

Johnson proceeded pro se during the following months.

On October 5, 2005, Judge Coar appointed stand-by counsel to assist Johnson. On July 11, 2006, Johnson filed a

sentencing memorandum, arguing that Booker was unconstitutional because it imposed ex post facto punishment,

and therefore Judge Coar was entitled only to sentence

Johnson under the mandatory Guidelines. Johnson also

argued that his sentence of 78 months was greater than

necessary under the 18 U.S.C. § 3553(a) factors, due to

his admission of guilt, his employment history (in the

marketing and sales industry), and his health. The PreSentencing Report confirmed Johnson’s employment

experience, and detailed his educational background

(master’s degree in finance and economics) and criminal

history that spanned over four decades.

Johnson’s third resentencing hearing took place on

July 12, 2006. By that time, Johnson had been incarcerated

since October of 1999, and had already served over
4 No. 06-3812

2 Due to a conviction in a separate case for bank fraud in

February of 2004, Johnson’s release was not imminent because

his sentence for the latter case (78 months) was to run consecutive to his sentence for his 2000 convictions.

80 months in prison.2 Judge Coar construed Johnson’s

arguments as objections to the PSR’s findings as well as

its prior Guidelines calculations, and he overruled both.

Then, “in a nonmandatory regime consistent with Booker,”

he sentenced Johnson to 60 months on Count 1 and

80 months on Count 2 and 3, all to run concurrently.

II. DISCUSSION

A. Right to Counsel

The first issue is whether Johnson waived his Sixth

Amendment right to counsel. Johnson argues that

Judge Coar failed to conduct the appropriate colloquy

before he proceeded pro se, and therefore without the

court’s warnings about the dangers of representing himself, Johnson’s decision to forego counsel could not have

been knowing and intelligent. Johnson requests that he

be resentenced, arguing that if he receives a lesser sentence, he would receive credit for time served toward

his current sentence for his February 2004 conviction.

“[T]he Sixth Amendment guarantees the right to counsel at all critical stages of the prosecution,” and this

right is applicable during sentencing hearings. United

States v. Irorere, 228 F.3d 816, 826 (7th Cir. 2000) (internal

citations omitted). A criminal defendant may waive

his right of assistance to counsel and proceed pro se, so

long as he does so knowingly and intelligently. Faretta v.
No. 06-3812 5

California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562

(1975); United States v. Hoskins, 243 F.3d 407, 410 (7th Cir.

2001). A defendant should be made aware of the

dangers and disadvantages of self-representation, so

that the record will establish that “he knows what he

is doing and his choice is made with eyes open.” United

States v. Avery, 208 F.3d 597, 601 (7th Cir. 2000) (citing

Faretta, 422 U.S. at 835, 95 S.Ct. 2525).

We review a defendant’s waiver of his right to counsel for an abuse of discretion, inquiring whether the record as a whole demonstrates that the defendant knowingly and intentionally waived his right to counsel. Avery,

208 F.3d at 601. To determine whether a defendant’s

decision to proceed pro se was knowing and informed,

we consider four factors: “(1) whether and to what

extent the district court conducted a formal hearing into

the defendant’s decision to represent himself; (2) other

evidence in the record that establishes whether the defendant understood the dangers and disadvantages of

self-representation; (3) the background and experience

of the defendant; and (4) the context of the defendant’s

decision to waive his right to counsel.” United States v.

Alden, 527 F.3d 653, 660 (7th Cir. 2008).

First, we consider whether Judge Coar made a formal

inquiry into Johnson’s decision to proceed pro se. While

we reject the rigidity implicit in a formal inquiry, the

inquiry must be sufficient to indicate that a defendant

understands the dangers involved in self-representation.

United States v. Bell, 901 F.2d 574, 576-77 (7th Cir. 1990).

We find the exchange between Judge Coar and Johnson

was less than adequate, where the court merely confirmed Johnson’s request to proceed pro se. The court

should have cautioned Johnson of the risks and dangers
6 No. 06-3812

associated with self-representation. See United States v.

Todd, 424 F.3d 525, 531 (7th Cir. 2005) (“[T]he court must

impress upon the defendant the disadvantages of selfrepresentation.”). The district court’s failure to conduct

an adequate inquiry weighs against a finding of a

knowing and intelligent waiver.

While the district court failed to sufficiently inform

Johnson of the dangers of self-representation, “failure to

conduct a full inquiry is not fatal, for the ultimate question is not what was said or not said to the defendant but

rather whether he in fact made a knowing and informed

waiver of counsel.” Todd, 424 F.3d at 531 (citation and

internal quotations omitted). Other evidence in the

record, along with Johnson’s background and experience,

establish that Johnson understood the dangers of selfrepresentation and made an intelligent waiver. A defendant need not have the experience of a lawyer in order

to intelligently choose to represent himself, Faretta, 422

U.S. at 835, 95 S.Ct. 2525; rather we examine the background and experience of the defendant merely to gauge

whether he appreciated the gravity of his waiver. United

States v. England, 507 F.3d 581, 587 (7th Cir. 2007). We

consider a defendant’s educational achievements and

prior experience with the legal system. United States v.

Sandles, 23 F.3d 1121, 1128 (7th Cir. 1994).

Johnson acknowledged that he understood the charges

against him and the maximum penalties they carried at

his October 26, 1999 preliminary hearing. See Todd, 424

F.3d at 533. Johnson has a master’s degree in finance and

economics, and an extensive history of arrests and convictions over the last forty years. While the record is

unclear (and the parties dispute) whether or not Johnson

represented himself in a prior criminal proceeding,
No. 06-3812 7

we believe that, due to his extensive criminal history,

he nonetheless understood the serious nature of the

charges against him. See Todd, 424 F.3d at 533 (holding

that despite lack of evidence that the defendant represented himself in his prior criminal proceedings, his

prior experience with the judicial system tends to show

that he understood that the charge against him was

serious and that he was accepting a risk by representing

himself). There is no evidence that Johnson believed

he was at a disadvantage representing himself.

We also consider the context of Johnson’s decision to

proceed pro se. A waiver is likely knowing and voluntary

if the defendant gave it for strategic reasons or after

repeatedly rejecting the assistance of counsel. United States

v. Egwaoje, 335 F.3d 579, 586 (7th Cir. 2003). Throughout

his trial, two sentencing hearings, and two appeals,

Johnson was represented by three different attorneys, all

of whom withdrew either at Johnson’s request or of

their own accord. Judge Coar offered to appoint a federal defender to represent Johnson for his third sentencing hearing, but he emphatically declined the offer,

stating that he did not need representation, and that it

was his “choice” and that he “absolutely” wanted to

represent himself. See Todd, 424 F.3d at 533 (finding a

defendant waived his right to counsel for strategic reasons when he stated on the record that he did not trust

his court-appointed attorneys). Further, Judge Coar was

in a better position to evaluate Johnson’s motives than

we are, as he witnessed Johnson’s representation issues

throughout the various proceedings. See United States v.

Best, 426 F.3d 937, 944 (7th Cir. 2005) (“The judge’s conclusion that [the defendant] had knowingly and intelligently opted for the lesser of two evils—self-representation
8 No. 06-3812

as opposed to the lawyers he so disliked— was a reasonable one.”). Evaluating this record as a whole, we conclude that Johnson’s waiver of his right to counsel was

knowing and intelligent.

B. Sentencing

Johnson also argues that Judge Coar failed to consider the factors under 18 U.S.C. § 3553(a), because he

did not specifically refer to those factors when he imposed Johnson’s sentence. Johnson misstates the proper

standard of review, arguing that we should review his

sentence under a “reasonableness” standard. We review

procedural errors, such as whether the district court followed proper post-Booker sentencing procedures, under

a non-deferential standard of review. United States v.

Rodriguez-Alvarez, 425 F.3d 1041, 1046 (7th Cir. 2005). It

is true that Judge Coar did not make definite findings as

to each of the § 3553(a) factors, and that more explanation on the record is always better than less; however

a district court judge need not apply all § 3553(a) factors

in a systematic or “checklist fashion.” Alden, 527 F.3d at

662. We find Judge Coar’s explanation to be sufficient,

considering the sentence he imposed was well within

the Guidelines. See United States v. Dean, 414 F.3d 725,

729 (7th Cir. 2005) (“Judges need not rehearse on the record all of the considerations that 18 U.S.C. § 3553(a) lists;

it is enough to calculate the range accurately and explain

why (if the sentence lies outside it) this defendant

deserves more or less.”) (citation omitted).

In addition, on a limited Paladino remand, a judge need

not employ a full-fledged methodology for measuring

the reasonableness of the Guidelines sentence against
No. 06-3812 9

§ 3553(a). United States v. Spano, 447 F.3d 517, 519 (7th

Cir. 2006). Judge Coar was familiar with Johnson and his

case, sentencing him for a third time in six years. The

record reveals that Judge Coar gave Johnson plenty of

opportunity to “draw [his] attention to any factor listed

in § 3553(a) that might warrant a sentence different from

the guidelines sentence.” Rodriguez-Alvarez, 425 F.3d at

1046 (citing Dean, 414 F.3d at 730). Johnson had the opportunity to object to the PSR’s findings (which he did),

submit his sentencing memo, and present arguments at

the final sentencing hearing. Judge Coar reviewed Johnson’s sentencing memorandum—in which Johnson

argued that Booker violates the ex post facto clause by

exposing a defendant to a longer maximum sentence—and

addressed the factors set forth in § 3553(a), such as his

forty-year criminal history that involved only two violent offenses, his long employment history in marketing

and finance, his age, and his failing physical health.

Judge Coar heard arguments from the government on

many § 3553(a) factors, including the nature of Johnson’s

financial crimes, his criminal history, and the need to

protect the public from potential crimes by Johnson in

the future. We are unconvinced that Johnson made any

novel arguments the third time around.

Johnson also spoke at his sentencing hearing, addressing only his Booker argument, which was promptly

and accurately rejected by Judge Coar. See United States

v. Swanson, 483 F.3d 509, 516 (7th Cir. 2007) (rejecting

the same ex post facto argument); United States v. Jamison,

416 F.3d 538, 539 (7th Cir. 2005) (same). Judge Coar then

asked Johnson if he was finished, and Johnson replied

“Yes, sir.” When a judge is not presented with much,

he need not explain much. Spano, 447 F.3d at 519 (“[T]he

need for a judge to explain in detail his consideration of
10 No. 06-3812

the § 3553(a) factors when choosing to stick with the

Guidelines sentence is proportional to the arguments

made by the defendant[].”). Judge Coar’s explanation

was sufficient for purposes of the limited Paladino remand

and proportionate to the arguments that Johnson raised.

Johnson also fails to persuade us that his sentence is

unreasonable. A sentence within the Guidelines is presumptively reasonable, Rita v. United States, ___ U.S. ___,

127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (2007); United States

v. Bustamente, 493 F.3d 879, 891 (7th Cir. 2007), and a

defendant must rebut the presumption by demonstrating

that his sentence is unreasonable when measured against

the factors set forth in § 3553(a). United States v. Brock,

433 F.3d 931, 938 (7th Cir. 2006). Johnson’s only argument is that Judge Coar’s sentence was unreasonable due

to his serious health issues and “consequences of incarceration.” Given his extensive criminal history and blatant

disregard for the law, we would be hard-pressed to say

that Judge Coar was unreasonable to believe a sentence

of 80 months was necessary to deter him from future

crimes and to protect the public.

III. CONCLUSION

For the foregoing reasons, we AFFIRM Johnson’s sentence.

USCA-02-C-0072—7-18-08