In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2862

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KEITH A. GARY,

Defendant-Appellant.

Appeal from the United States District Court 

for the Southern District of Illinois.

No. 3:08-CR-30169-001-MJR—Michael J. Reagan, Judge.

ARGUED JUNE 9, 2010—DECIDED JULY 28, 2010

Before POSNER, WOOD, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. Keith Gary appeals from

his sentence for bankruptcy fraud, arguing that the

district court failed to give sufficient consideration to

his family circumstances. See United States v. Schroeder,

536 F.3d 746, 755-56 (7th Cir. 2008) (remanding for further consideration of defendant’s extraordinary family

circumstances). We conclude that the district court gave

the family issue sufficient consideration, as shown by
2 No. 09-2862

its efforts to arrange for Gary and his ex-wife to serve

staggered prison sentences for their joint crimes. We

affirm Gary’s sentence.

I. The Facts

Keith Gary and his ex-wife Stacie Gary divorced in

2002, but both remained in the same house taking care

of their two children. The Garys’ legal troubles began

in March 2007, when they filed a joint Chapter 13 bankruptcy petition. Stacie had received a substantial monetary settlement for a workers’ compensation claim

just days before filing for bankruptcy. The Garys failed

to disclose the award in their bankruptcy petition and

lied about it while testifying under oath at a later creditors’ meeting. After the fraud came to light, both of the

Garys were indicted on multiple counts of bankruptcy fraud. Keith pled guilty to three counts for

making false statements and taking a false oath.

See 18 U.S.C. § 152(2) & (3). Stacie pled guilty to five

counts.

In a joint sentencing hearing, the district court sentenced Keith at the bottom of his guideline range to a

total of 12 months and 1 day in prison. Stacie had a significant criminal history, and the court sentenced her at

the top of her higher guideline range to 21 months in

prison. Out of concern for the Garys’ two children, who

faced separation from both parents, the district court

tried to ensure that the two defendants would serve

their prison terms in sequence.
No. 09-2862 3

In the sentencing hearing, Keith argued for a belowguideline sentence, either limited to probation with a

condition of home confinement or a split sentence combining no more than five months in prison followed

by five months of home confinement. He argued that he

was less culpable than Stacie, who had controlled most

of the settlement money and had taken steps to hide

it in different bank accounts. His primary argument for a

below-guideline sentence in the district court was based

on his recent employment history. He argued that he

had demonstrated his commitment to addressing the

financial problems that motivated the bankruptcy fraud,

and that his family responsibilities meant he was less

likely to commit new crimes.

As might be expected when both parents of young

children are facing prison sentences, the defendants’

family circumstances were one focus of the sentencing

hearing. Keith claimed that his arrest served as a much

needed wake-up call to begin to turn things around

for himself and his children. Despite earlier struggles

with depression and a recent suicide attempt, he said

he had tried to make up for his mistakes while he

awaited sentencing. He had taken on two jobs to

provide for the children, to pay off family debts, and to

establish some financial stability. He hoped the district

court would recognize his efforts.

Keith acknowledged that, if both he and Stacie were

imprisoned, other family members could care for their

children. Nevertheless, his attorney asserted in a sentencing memorandum that his absence would take an
4 No. 09-2862

“extreme” toll on the family because his children would

lose the “financial and emotional support” that he was

providing as the “sole breadwinner.” Keith also urged

that, if he was going to be sent to prison, the court should

stay the execution of his sentence until Stacie was

released from prison so that their children would have

continued parental stability.

Keith Gary’s applicable guideline range was 12 to

18 months in prison based on a total offense level of 13

and a criminal history category of I. The court addressed

the sentencing factors in 18 U.S.C. § 3553(a). The court

explained that bankruptcy fraud occurs often but is

rarely discovered or prosecuted, and the court expressed the hope that the prison sentence for a firsttime offender would serve to deter other potential offenders. Recognizing that a felony conviction by itself is

a significant punishment for a first-time offender like

Gary, the court reasoned that a low-end sentence was

sufficient “to send a message, to promote respect for

the law, and to avoid unwarranted disparity among

similarly situated defendants.”

In summarizing the aggravating factors influencing

Keith’s sentence, the court noted that both defendants

had refused to turn over the proceeds from Stacie’s

workers’ compensation award even after a motion to

compel had been filed in the bankruptcy court, and that

Keith had a pending state charge for stealing money

from his employer. In mitigation, the court acknowledged his history of depression and “poor coping

skills.” At that point in the combined hearing, however,
No. 09-2862 5

The additional day means that Keith is eligible for the fifteen 1

percent good-time credit available under 18 U.S.C. § 3624(b)

for federal prisoners serving “a term of imprisonment of more

than 1 year.”

the district court made no mention of Keith’s family

circumstances. The court then imposed a prison term of

12 months and 1 day.1

The district court listened with greater skepticism to

Stacie’s arguments and allocution because of her long

history of fraudulent behavior, which included convictions for mail fraud, credit-card fraud, and deceptive

practices. She expressed regret for her actions and the

harm that she had caused her children. Unconvinced

by her display of remorse, the court responded: “You are

a deceptive thief, so crying about your kids isn’t going

to cut it with me. I am interested in anything you want

to say, but that cord doesn’t ring.” Based on her criminal history, her higher risk of recidivism, and the fact

that the court found her more culpable than Keith,

the court sentenced Stacie at the top of her applicable

guidelines range to 21 months in prison. The court then

noted the concern expressed by both defendants for

their children and agreed to stagger their prison terms

so that their children could maintain parental continuity.

The court and the parties then spent considerable time

discussing the logistics and procedure to execute

these sentences.

After the sentences had been pronounced and explained, as the sentencing hearing was concluding, Keith’s
6 No. 09-2862

lawyer said that the court had addressed the family

circumstances when addressing Stacie’s sentence but had

not done so when addressing Keith’s sentence. Keith’s

lawyer asked the court to address more specifically

how it had considered the family circumstances when

deciding his sentence. In response the district judge

stated: “I take that into consideration as well as everything

in the PSR. . . . I consider the fact of the kids in this case.

I don’t think I am required to assign a value to it as part

of 3553(a).” The judge then summarized again his

reasons for both defendants’ sentences. Keith appeals his

sentence. (Stacie has dismissed her appeal voluntarily.)

II. Analysis

Keith Gary argues that the district court erred by

failing to consider sufficiently his argument in mitigation

based on the effect a prison sentence would have on his

children. In the wake of United States v. Booker, 543 U.S. 220

(2005), we may review a district court’s sentence for

procedural correctness and for substantial reasonableness. E.g., United States v. England, 604 F.3d 460, 464

(7th Cir. 2010). Keith concedes that the court was not

required to reduce his sentence based on the family

circumstances argument, but he argues that more

explicit consideration was required, especially in view

of the court’s comment that it was not “required to

assign a value to it as part of 3553(a).”

A sentencing court “must adequately explain the

chosen sentence to allow for meaningful appellate review

and to promote the perception of fair sentencing.” Gall v.
No. 09-2862 7

United States, 552 U.S. 38, 50 (2007). We have ordered

resentencing in a number of cases where district courts

failed to address a defendant’s substantial argument in

mitigation. E.g., United States v. Cunningham, 429 F.3d 673,

679 (7th Cir. 2005) (remanding where district court

“passed over in silence” the defendant’s principal argument in mitigation); United States v. Villegas-Miranda, 579

F.3d 798, 801-02 (7th Cir. 2009) (same).

At the same time, when considering such challenges

to sentencing explanations, we try to take careful note

of context and the practical realities of a sentencing

hearing. District judges need not belabor the obvious.

The judge need not be explicit where “anyone acquainted with the facts would have known without

being told why the judge had not accepted the argument,” United States v. Cunningham, 429 F.3d at 679, and

“stock” arguments in mitigation often can be rejected

with little or even no explanation. For example, we said

in United States v. Tahzib, 513 F.3d 692, 695 (7th Cir.

2008), that the sentencing court was free to reject without

discussion “stock arguments” in mitigation that sentencing courts see routinely, including a routine familyties argument. Accord, e.g., United States v. Poetz, 582

F.3d 835, 839 (7th Cir. 2009) (no error where totality of

record showed that district court implicitly considered

argument based on family circumstances); United States

v. Mendoza, 576 F.3d 711, 722 (7th Cir. 2009) (district court

sufficiently considered stock argument that sentence

would lead to deportation and family separation); United

States v. Millet, 510 F.3d 668, 680 (7th Cir. 2007) (district

court provided adequate discussion of reasons for sen-
8 No. 09-2862

tence). A court is not required to touch upon every

§ 3553(a) factor in its explanation as long as “the record

confirms meaningful consideration of the types of factors

that section 3553(a) identifies.” United States v. Laufle,

433 F.3d 981, 987 (7th Cir. 2006).

In this case, Keith bases his argument on United States

v. Schroeder, 536 F.3d 746, 755-56 (7th Cir. 2008), in which

we remanded for resentencing where the district court

had rejected the defendant’s argument for a lower sentence based on extraordinary family circumstances. See

also U.S.S.G. § 5H1.6 (family ties and responsibilities

are “not ordinarily relevant” in deciding whether to

depart below a guideline sentence, but notes authorize

departures for extraordinary family circumstances). The

defendant in Schroeder was the primary caregiver for a

young daughter whose significant medical problems

left her with a compromised immune system and made

it risky to send her to daycare where she would be

exposed to disease and infection. 536 F.3d at 750-51. In

his absence, the defendant argued, it would be almost

impossible to make appropriate arrangements for his

daughter’s care. Id. at 756. To demonstrate the seriousness of the situation, the defendant submitted

a letter from the daughter’s pediatrician warning of

the dangers of daycare and testimony from his wife describing their unsuccessful efforts to make alternative

arrangements. Id. at 751, 756.

After hearing this evidence, the district court in

Schroeder had rejected the defendant’s argument and

commented that his daughter’s welfare should not
No. 09-2862 9

mitigate the defendant’s sentence because he had chosen

to engage in criminal conduct and thus caused the

family’s hardship. Id. at 756. We concluded that a remand

was necessary. Without further explanation from the

district judge, it was impossible to say whether the

judge had disagreed that the defendant’s family circumstances were extraordinary or simply had refused to

give any consideration at all to the argument.

Keith Gary’s case is readily distinguishable from

Schroeder. He did not provide evidence of unusual effects

that even approached the serious medical problems

that were present in Schroeder. He did not argue that his

imprisonment would affect his children to a degree

beyond the effects that any child must suffer when a

parent is imprisoned, and he did not present evidence

of any exceptional circumstances.

Most families suffer emotional and financial harm

when a parent is imprisoned. Any experienced district

judge has heard about those effects many times and

must recognize that those effects are consequences of the

parent’s crime, not the sentence imposed. During the

Garys’ joint sentencing hearing, Judge Reagan made

that clear in responding to Stacie Gary’s family-ties argument in mitigation. Mitigating arguments about such

general hardships typically do not require any discussion

at all. See, e.g., United States v. Young, 590 F.3d 467, 474

(7th Cir. 2009); United States v. Mendoza, 576 F.3d at 722;

United States v. Tahzib, 513 F.3d at 695.

 The only unusual feature of this case is that both

parents were facing prison. Judge Reagan plainly gave
10 No. 09-2862

that circumstance close attention. He did all he could

to ensure that the two parents would serve their

prison terms in sequence so that one would always be

available to care for the children. We are satisfied that

the district court adequately addressed Keith’s argument

in mitigation.

Keith focuses on the district judge’s statement that

he was not “required to assign a value” to the family

circumstances argument under section 3553(a). Keith

contends that the district court’s comment conflicts

with the instruction in Schroeder: “The court was required to consider Schroeder’s family circumstances

argument and provide an adequate analysis of how

much weight, if any, it should command.” 536 F.3d at 756.

We agree that the district court was required to consider the family circumstances, but its treatment of the

issue was consistent with Schroeder. When read in conjunction with other cases involving family circumstances

arguments, see United States v. Diekemper, 604 F.3d 345,

355 (7th Cir. 2010), and United States v. Poetz, 582 F.3d

at 839, our opinion in Schroeder stands for the proposition

that a sentencing court cannot summarily disregard a

defendant’s potentially meritorious argument as it

relates to extraordinary family circumstances. Neither

Schroeder nor any of our other decisions required the

district court to give any particular weight to Keith’s

family circumstances. The district court was required

only to consider the argument, at least to the extent it

pointed to anything unusual about Keith’s family circumstances, and to provide a sufficient explanation of

its treatment of the issue. The court did so here. It re-
No. 09-2862 11

sponded in a way that addressed the problems but was

not as lenient as Keith had hoped.

To the extent that Keith’s family obligations could be

considered unusual because the children’s mother also

faced prison, Schroeder does not require a remand when

the record demonstrates, as it does here, that the district

court responded to the defendant’s argument for mitigation. See Diekemper, 604 F.3d at 355; Poetz, 582 F.3d at

839. Unlike the one comment that the judge made in

Schroeder, the record here is replete with references to

the court’s concerns for the Gary family. Much of the

sentencing hearing was spent discussing how to ensure

that the two parents would serve their prison sentences

in sequence so that one parent would always be available to care for the children. See Poetz, 582 F.3d at 839

(affirming where district court’s sentencing remarks

were “peppered with references to [the defendant’s]

family” and the record as a whole established the court

implicitly considered defendant’s family circumstances

argument).

Finally, we note that Keith Gary also argues that the

district court failed to address sufficiently his argument

that his recent work history—working two jobs to support his children while awaiting sentencing—justified a

below-guideline sentence. This circumstance was not

so unusual as to have required much discussion, and

we are satisfied that the district court gave the matter

sufficient consideration. See, e.g., United States v. Castaldi,

547 F.3d 669, 706 (7th Cir. 2008) (finding brief explanation of within-guideline sentence sufficient where judge

indicated he had considered the defense arguments).
12 No. 09-2862

The judgment of the district court against Keith Gary

is AFFIRMED.

7-28-10