# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued October 14, 2009

Decided November 10, 2009

Before

JOHN L. COFFEY, Circuit Judge

TERENCE T. EVANS, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 09

‐ 2103

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

v.

RICHARD SWEITZER,

Defendant

‐ Appellant Appeal from the United States District

Court for the Eastern District of

Wisconsin.

No. 2:08

‐ cr

‐ 243

‐ 3

Charles N. Clevert,

Chief Judge

O R D E R

The defendant appellant Richard Sweitzer pleaded guilty to conspiring to distribute

more than 100 grams of heroin, see 21 U.S.C. §§ 846, 841(a)(1), and received a within

‐ guidelines range sentence of 46 months’ imprisonment. On appeal Sweitzer argues that the

district court failed to consider his arguments for a below

‐ range sentence and erroneously

presumed the reasonableness of the guidelines sentence. We affirm the sentence imposed

by the district court as we are convinced after review that the court properly considered the

§ 3553(a) factors and that there is no evidence in the record substantiating that the court

presumed that the guidelines were reasonable. 

### NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 09

‐ 2103 Page 2

I. Background

Sweitzer, an admitted heroin dealer, was engaged in facilitating the transfer of

heroin totaling at least 400 grams but no more than 700 grams between a Milwaukee dealer

and a buyer in Chicago. He admitted to engaging in approximately twenty

‐ five such

transactions, beginning in 2007. His role as the middle

‐ man consisted of Sweitzer’s

acceptance of the cash wire transfers from his Chicago buyer and receiving the drugs from

his dealer at a designated location in Milwaukee. He would then meet his Chicago buyer to

arrange for the delivery of the heroin. After being implicated by his Milwaukee accomplice,

Sweitzer was arrested in Milwaukee. At the time of his arrest, Sweitzer decided to

cooperate with the officers and assisted in the arrest of his Chicago accomplice and shared

pertinent information with the Milwaukee authorities covering the nature of their

relationship. At this time, Sweitzer pleaded guilty to conspiring to distribute more than 100

grams of heroin. See 21 U.S.C. §§ 846, 841(a)(1). The Probation Officer’s presentence

investigation report concluded that based on the quantity of heroin, Sweitzer had a base

offense level of 28 and proposed a two

‐ level reduction pursuant to U.S.S.G. § 2D1.1(b)(11),

he qualified for the safety

‐ valve exception, and a three

‐ level reduction pursuant to U.S.S.G.

§ 3E1.1 for acceptance of responsibility. Thus, Sweitzer’s offense level of 23 and his

Category I criminal history produced a guideline range of 46 to 57 months imprisonment.

The district court imposed a within

‐ guideline sentence of 46 months imprisonment

followed by three years of supervised release. At sentencing, the court discussed the lethal

effects of heroin use and trafficking and the need for more adequate deterrence. The court

also discussed several of Sweitzer’s personal characteristics that were considered in the

decision

‐ making process, including Sweitzer’s family, anger problems, drug addiction, and

need for counseling at sentencing. The court also referred to Sweitzer’s opportunity to take

advantage of the safety valve exception, his lack of criminal history, his cooperation with

the police and was satisfied and persuaded “that in this particular case the defendant will

be justly punished and deterred, and the public will certainly be fully advised of this

Court’s view of

. . . dealing” with heroin.

II. Analysis

A. Sweitzer’s Arguments for a Below

‐ Range Sentence.

On appeal, Sweitzer insists that the court erroneously failed to consider his non

‐

frivolous arguments for a below

‐ range sentence. Initially, Sweitzer argues that the court

ignored his argument that quantity

‐ driven drug sentencing is inherently flawed and

furthermore that the court must disregard quantity

‐ driven drug sentencing because it is notNo. 09

‐ 2103 Page 3

the product of careful study based on empirical evidence derived from individual

sentencing decisions.

“[W]e do not think a judge is required to consider...an argument that a guideline is

unworthy of application in any case because it was promulgated without adequate

deliberation.” United States v. Aguilar

‐ Huerta, 576 F.3d 365, 367

‐ 68 (7th Cir. 2009) (emphasis

original); see also United States v. Huffstatler, 571 F.3d 620, 623

‐ 24 (7th Cir. 2009) (stating that

district courts may impose a sentence below the child

‐ pornography guidelines based on a

disagreement with them, but district courts are not required to do so). In Aguilar

‐ Huerta,

this court reasoned that if a judge is required to delve into the history of a guideline to

satisfy himself that the process that produced it was adequate, sentencing hearings will

become unmanageable and shift the focus from the defendant’s conduct to the legislative

history of the guidelines. Aguilar

‐ Huerta, 576 F.3d at 368. Thus, the court was not required

to consider this argument.

Next, Sweitzer argues that the court committed procedural error when it failed to

consider his mitigating circumstances under 18 U.S.C. § 3553(a) that distinguished his case

from comparable drug cases. He contends, for example, that his case differs from

comparable drug cases for three reasons: (1) he had only one customer who personally

consumed the heroin; (2) neither he, nor any of the other known participants in the drug

ring, used, attempted, or threatened violence or were connected to any firearm or other

weapon; and (3) he faced considerable economic pressure as a heroin addict and he was

offered a premium to deliver drugs.

Sweitzer argues that the district court failed to consider the § 3553(a) factors during

his sentencing. We disagree. The district judge is not required to apply each of the §

3553(a) factors mechanically or in a “checklist fashion, but instead in the form of an

adequate statement of the judge’s reasons, consistent with § 3553(a), for thinking the

sentence that he has selected is indeed appropriate for the particular defendant. ” United

States v. Dean

, 414 F.3d 725, 729 (7th Cir.2005). The judge did just that here. He certainly

considered the nature and circumstances of the offense, § 3553(a)(1), when he observed that

heroin trafficking was a serious crime and that Sweitzer’s involvement contributed to the

growing demand for the drug. He also considered Sweitizer’s personal history and

characteristics, § 3553(a)(1), when he acknowledged that Sweitzer can take advantage of the

safety valve exception, had lifelong issues of drug abuse, family problems, and suffered

from depression. He added that Sweitzer would benefit from counseling as part of

supervision. See also § 3553(a)(2)(D). And he concluded that the 46

‐ month sentence was

necessary to protect the public and provide deterrence.

B. Presuming the Reasonableness of the Guidelines.No. 09

‐ 2103 Page 4

Sweitzer next asserts that the court improperly applied a presumption of

reasonableness to the guidelines. At sentencing, the court made generic statements about

the dangers of heroin and the need for more effective deterrence in drug cases. These

generic statements, according to Sweitzer, demonstrate the court’s belief that cases

involving heroin distribution must be decided according to the guidelines.

The district court did not apply a presumption of reasonableness to the guidelines.

See United States v. Allday, 542 F.3d 571, 572

‐ 73 (7th Cir. 2008). As Sweitzer concedes,

“nothing about the district court’s remarks upon imposition of [the] sentence include an

expressed belief that the guidelines are presumptively reasonable

. . .” Indeed, the

sentencing transcript establishes that the court did not apply a presumption of

reasonableness. The court commented on the need for deterrence not in the context of the

guidelines, but in responding to Sweitzer’s general request for leniency in drug sentencing.

Moreover, the judge ʹ s stated explanation for the sentence shows that he was well aware and

appreciated the advisory nature of the guidelines: he considered and referred to Sweitzer’s

drug involvement as a young man, his family life, emotional difficulties, lack of a criminal

history, decision to cooperate, and the general need for deterrence. See, e.g., 18 U.S.C. §

3553(a)(2)(B); United States v. Gooden, 564 F.3d 887, 891 (7th Cir. 2009). Such consideration

confirms that the court sentenced Sweitzer on the basis of the § 3553(a) factors, and not a

presumption of reasonableness.

Conclusion

We affirm the decision of the district court.