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A man’s above-guidelines sentence for being a felon in possession of a firearm was not inappropriate given his criminal history, the 7th Circuit Court of Appeals ruled Tuesday.
Defendant-appellant Delvarez Long was arrested by Indianapolis police officers for an outstanding warrant for domestic battery. They found a stolen firearm in his waistband and cocaine in plain view when he was arrested.
Long was subsequently charged with possessing a firearm as a convicted felon under 18 U.S.C. § 922(g)(1).
He pleaded guilty, and at his sentencing hearing, the Indiana Southern District Court said it intended to impose an above-guideline sentence of 51 months in prison, to be followed by three years of supervised release with conditions of drug testing and treatment.
The court noted that Long had four felony convictions and several other convictions, and that the guideline calculation of 33 to 41 months understated his criminal history. It also noted that he was abusing cocaine regularly, possessed fentanyl and was experimenting with both ecstasy and Adderall. Additionally, Long owed about $80,000 in child support.
“So the Court is ordering this sentence to promote respect for the law and provide just punishment, and it is a long enough time that the defendant can participate in prison industries, as well as learn some job skills so that — that he can use upon his release,” the district court stated at sentencing.
The court asked counsel if they had any reasons why sentencing shouldn’t be imposed as stated, and the answer was no. The court then recommended to the Bureau of Prisons that Long be allowed to participate in a drug treatment program.
On appeal, Long argued that the district court plainly erred by imposing a prison term in part to rehabilitate him, contrary to 18 U.S.C. § 3582(a) as construed in Tapia v. United States, 564 U.S. 319 (2011).
Upholding his sentence, the 7th Circuit held, “(I)n explaining the entire sentencing package, which aims to serve multiple goals, it can be easy for even the most conscientious judge to refer to rehabilitation goals without making unmistakably clear that those goals did not affect the length of the prison term.”
The appellate court noted Tapia prevents a court only from imposing a prison term primarily based on rehabilitation.
In its opinion, the court concluded Tapia wasn’t violated in Long’s because the district court also considered his criminal history and domestic violence offenses.
“References to rehabilitative programs in prison in passing or when describing opportunities available while serving a sentence selected for permissible reasons will not lead us to find error, let alone plain error,” Senior Judge David Hamilton wrote. “At the same time, it might be helpful for a sentencing court to include a candid and explicit disclaimer to the effect that rehabilitation goals did not affect whether a prison term was imposed or how long it would be.”
The case is United States of America v. Delvarez Long, 22-2275.
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