In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-3236

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

KENDEL W. MCKINNEY,

Defendant-Appellant.

____________

Appeal from the United States District Court 

for the Southern District of Illinois.

No. 4:07-CR-40018-JPG—J. Phil Gilbert, Judge.

____________

ARGUED FEBRUARY 27, 2008—DECIDED SEPTEMBER 11, 2008

____________

Before EASTERBROOK, Chief Judge, and POSNER and

WOOD, Circuit Judges.

WOOD, Circuit Judge. Kendel McKinney is no stranger

to the penal system. He has three drug convictions and

one conviction for aggravated robbery, plus nine pending

charges in state court and twenty-one traffic violations.

Although he was sentenced to eight years in prison on one

of his drug convictions, he served 18 months in a “boot

camp” program before he found himself facing the cur-
2 No. 07-3236

rent federal charges for distribution of crack cocaine. As

the Government tirelessly points out, by the time he

faced sentencing in this case, McKinney had accumulated

twice the number of convictions he needed for career

criminal status—and he did it all by the age of 24.

On April 12, 2007, McKinney pleaded guilty to two

counts of crack distribution in violation of 21 U.S.C.

§§ 841(a)(1) & 841(b)(1)(C). Relying on the rap sheet we

have just summarized, the presentence report (PSR)

concluded that McKinney was a career offender subject

to a sentence enhancement under U.S.S.G. § 4B1.1. Taking

into account a downward adjustment for acceptance of

responsibility, the PSR recommended a Guidelines

range of 188 to 235 months.

At the sentencing hearing, the Government introduced

into evidence a DVD depicting one of the vehicle chases

involving McKinney that had been recorded on the police

car’s video camera. The video shows that when the

officer signaled that McKinney should pull over, McKinney

instead drove through a neighbor’s yard, just missing a

tree stump, zoomed through a residential area, ran a

stop sign, and pulled into his mother’s driveway. He

then fled on foot, with the police in pursuit, while family

members removed items from his car. McKinney did not

have much to say for himself when the district court

invited him to speak: he said only “I never knew it

would come to this.”

In pronouncing its sentence, the district court commented that every single factor mentioned in 18 U.S.C.

§ 3553(a) “calls for a lengthy incarceration to protect the
No. 07-3236 3

public.” The court addressed some of the arguments in

mitigation that McKinney had offered, including his

claim that he has a learning disability, but it found that

this did not excuse McKinney’s behavior. The district

court then invoked its discretion under United States v.

Booker, 543 U.S. 220 (2005), and United States v. Rita, 127

S.Ct. 2456 (2007), and went well beyond the advisory

Guidelines range of 188 to 235 months, choosing instead a

sentence of 293 months. Before this court, McKinney

challenges only his sentence; we affirm.

McKinney recognizes that he must persuade us that

his final sentence was unreasonable. The only reason he

offers in support of such a finding is that the district

court did not provide an adequate justification for how it

arrived at its “upward departure.” The use of pre-Booker,

pre-Rita vocabulary gives away the game: McKinney is

overlooking the discretion that district courts now

possess to choose a sentence outside the applicable Guidelines range.

If the Guidelines are properly calculated, this court

reviews a criminal sentence for reasonableness. Rita, 127

S.Ct. at 2459. McKinney raises no specific objection to

the calculation or application of his sentence, only to the

failure of the district court to explain more fully why it

chose 293 months. Although neither Kimbrough v. United

States, 128 S.Ct. 558 (2007), nor Gall v. United States, 128

S.Ct. 586 (2007), had been handed down as of the date

when McKinney filed his opening brief, they provide

the starting point for our resolution of this appeal. In

Kimbrough, the Court held that trial courts were per-
4 No. 07-3236

mitted to deviate from the 100-one ratio between crack and

powder cocaine sentences, 128 S.Ct. at 573-74. This flexibility is of no use to McKinney, however, because the

ratio loses its importance if the defendant is sentenced as

a career offender, as McKinney was. Indeed, counsel

conceded that the crack/powder ratio did not play a role

in McKinney’s sentence for that reason.

Gall has more bearing on McKinney’s case. It said that

“a district judge must give serious consideration to the

extent of any departure from the Guidelines and must

explain his conclusion that an unusually lenient or an

unusually harsh sentence is appropriate in a particular

case with sufficient justifications.” 128 S.Ct. at 594. But the

Court rejected any rigid rule that would require a direct

relation between the degree of variance from the recommended Guideline sentence and the thoroughness of the

judge’s explanation:

In reviewing the reasonableness of a sentence outside

the Guidelines range, appellate courts may therefore

take the degree of variance into account and consider

the extent of a deviation from the Guidelines. We

reject, however, an appellate rule that requires “extraordinary” circumstances to justify a sentence outside the Guidelines range. We also reject the use of a

rigid mathematical formula that uses the percentage

of a departure as the standard for determining the

strength of the justifications required for a specific

sentence.

Id. at 594-95.

Taking these two passages from Gall together, we

deduce that we must simply satisfy ourselves that the
No. 07-3236 5

district court (1) calculated the advisory Guidelines range

correctly (something that is not in dispute here), (2) gave

serious consideration to sentences both within and

outside that recommended range, and (3) explained why

it selected “an unusually lenient or unusually harsh

sentence,” if it did so. The Court did not change the

rule that we have followed since Booker, under which

“the fact that the district court did not establish a

precise link between the degree of the departure and the

structure of the Guidelines, as was required pre-Booker, is

not a basis for disturbing the district court’s sentence.”

United States v. Valle, 458 F.3d 652, 658 (7th Cir. 2006); see

also United States v. Castro-Juarez, 425 F.3d 430, 436 (7th Cir.

2005) (“All that is necessary now to sustain a sentence

above the guideline range is an adequate statement of the

judge’s reasons, consistent with section 3553(a), for thinking the sentence that he has selected is indeed appropriate

for the particular defendant.”). Rather than speaking of

each marginal month over or under the Guidelines range,

Gall speaks only of “the degree of variance” and “the

extent of a deviation.” We are no longer in a world where

the district courts must justify each marginal month over

the Guidelines; our review for reasonableness goes forward with a greater focus on the final sentence chosen

and the quality of the justification for it.

Seen in this light, the district court’s explanation is

adequate. The court considered both sentences within

the advisory Guidelines range and sentences outside the

range, and it explained why it thought that a significantly

harsher sentence was needed for someone with as deplorable a record as McKinney. The district court explained
6 No. 07-3236

that McKinney’s history did not bode well for his future

prospects, and that the public would be safer with him

off the streets. In the end, it concluded that it “[wa]s not

sure that [McKinney was] ever going to be able to adjust

to the rules and laws of society.” The district court then

explicitly found that a within-Guidelines sentence would

not suffice to punish McKinney and deter future crimes.

That was enough under both Gall and Booker.

We find nothing unreasonable in the sentence the district court chose for McKinney. As Gall confirmed, we

cannot put a “thumb on the scale favoring a guideline

sentence,” United States v. Sachsenmaier, 491 F.3d 680, 685

(7th Cir. 2007), by requiring that district courts sentencing

above the range give more or better reasons than those

sentencing within the range. The sentence here fits the

crime, and is therefore

AFFIRMED.

9-11-08