United States v. Renard R. Butler

In the

United States Court of Appeals

For the Seventh Circuit

No. 14-2770

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RENARD R. BUTLER,

Defendant-Appellant.

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 2:14-cr-00022-RTR-1 — Rudolph T. Randa, Judge.

ARGUED DECEMBER 8, 2014 — DECIDED JANUARY 15, 2015

Before BAUER and HAMILTON, Circuit Judges, and ELLIS,

District Judge.*

BAUER, Circuit Judge. Defendant-Appellant, Renard R.

Butler (“Butler”), was convicted on two counts of violating 18

U.S.C. § 472 and sentenced to 24 months’ imprisonment. On

appeal, he argues that the district court erred in calculating

*

The Honorable Sara Lee Ellis, of the United States District Court for the

Northern District of Illinois, sitting by designation.

2 No. 14-2770

his sentence by improperly assigning two criminal history

points to a prior state conviction for forgery. Butler contends

that the conduct underlying this prior conviction is part of the

instant offense and, as such, should be considered relevant

conduct under U.S.S.G. § 1B1.3 instead. We affirm.

I. BACKGROUND

On August 20, 2012, Butler was detained following a traffic

stop in Milwaukee, Wisconsin, and arrested after the police

detected marijuana. Upon searching Butler, the officers

discovered several counterfeit federal reserve notes of varying

denominations in Butler’s pockets. A subsequent investigation

by the United States Secret Service revealed that Butler and

two others had been manufacturing counterfeit notes earlier

that day in a Milwaukee residence. Agents searched the

residence and found a color printer along with a bag contain-

ing numerous misprints of counterfeit notes. Butler admitted

to agents that he had purchased resume paper earlier that day

to manufacture counterfeit currency and had sold the counter-

feit notes to others. However, he was released from custody

and not charged.

Several months later, in January 2013, Butler became a

suspect in a series of counterfeit transactions involving vehicle

purchases in the Milwaukee area. The first of these transactions

occurred on January 9, 2013, when Butler contacted a vehicle

seller, T.V., who had listed a Cadillac Eldorado for sale online.

At a meeting later that day, Butler passed T.V. an envelope

containing $1,400 in exchange for the car. After the transaction,

T.V. discovered that the money he had received was counter-

feit and contacted the police. When the police showed T.V. a

No. 14-2770 3

photo array of potential suspects, T.V. identified Butler as the

buyer.

The second transaction occurred on January 20, 2013, when

Butler contacted the seller of another vehicle, A.G., who had

listed a Buick Roadmaster for sale online. They arranged a

meeting for later that day, at which Butler passed A.G. an

envelope containing $1,500 in exchange for the vehicle. Similar

to the seller in the first transaction, A.G. discovered later

that the money contained in the envelope was counterfeit

and contacted the police. Upon viewing a photo array of

potential suspects, A.G. identified the buyer as Butler. Police

also recovered Butler’s fingerprints from the envelope.

The third and final transaction occurred on January 23,

2013, when Butler contacted a seller, J.D., who had listed a

Buick Regency for sale online. At a subsequent meeting later

that day, Butler paid J.D. $1,100 in exchange for the vehicle.

Shortly thereafter, J.D. suspected that the money that he had

received was counterfeit and contacted the police. J.D. re-

viewed a photo array of potential suspects and identified

Butler as the person who purchased his vehicle.

Over a year later, in February 2014, a grand jury returned

a four-count indictment charging Butler with various viola-

tions of 18 U.S.C. § 472. At the time of his arraignment, Butler

was serving a 90-day state sentence in Wisconsin for forgery.

This conviction stemmed from an August 2013 arrest in Green

Bay, Wisconsin. According to the complaint in that case, Butler

had started printing counterfeit currency in Green Bay, which

he used to purchase large amounts of marijuana, and then

helped others make and obtain counterfeit currency.

4 No. 14-2770

Upon his release from state custody, Butler appeared before

the district court, pleaded guilty, and was convicted of Counts

One and Three of the federal indictment. Count One, posses-

sion of counterfeit securities of the United States, flowed from

the August 2012 traffic stop in Milwaukee. Count Three,

utterance of counterfeit securities of the United States, flowed

from the transaction with A.G. on January 20, 2013, during

which he passed counterfeit notes in exchange for a vehicle.

In connection with Butler’s sentencing, the presentence

report (“PSR”) assigned Butler nine points as a base offense

level. U.S.S.G. § 2B5.1(a). Due to the amount of counterfeit

currency found on Butler following his August 2012 traffic stop

arrest, as well as the total amount of counterfeit money

exchanged during the three vehicle transactions in January

2013, the PSR held Butler responsible for the possession,

distribution or utterance of $4,186 in counterfeit notes and

assigned a one-level increase based on that total. U.S.S.G.

§ 2B5.1(b)(1)(A) (providing a one-level increase where the face

value of the counterfeit items “exceeded $2,000 but did not

exceed $5,000”). Pursuant to § 2B5.1(b)(2)(A) and (b)(3) of the

Guidelines, Butler received an additional three-level increase

because he assisted in the production of counterfeit notes and

possessed a counterfeiting device. U.S.S.G. § 2B5.1(b)(2)(A)

(providing a two-level increase if a defendant “manufactured

or produced any counterfeit obligation or security of the

United States, or possessed or had custody of or control over

a counterfeiting device or materials used for counterfeiting”);

U.S.S.G. § 2B5.1(b)(3) (providing that “if (b)(2)(A) applies, and

the offense level determined under that subsection is less than

level 15, increase to level 15”). Factoring in a two-level decrease

No. 14-2770 5

for acceptance of responsibility, the PSR assigned Butler a total

offense level of 13 points.

Butler also received eight criminal history points, placing

him in Criminal History Category IV. Included among Butler’s

prior offenses was the state forgery conviction for which Butler

had served a 90-day sentence prior to the instant conviction.

Under the Guidelines, the combination of Butler’s total offense

level of 13 and Category IV produces a range of 24–30 months.

Prior to sentencing, Butler’s counsel submitted a detailed

sentencing memorandum in which he advocated for a sentence

of 30 days’ imprisonment. In addition to providing the court

with information about Butler’s upbringing and personal life,

Butler’s counsel argued that adhering to the Guidelines range

“properly calculated” by the PSR “produces a sentence greater

than necessary to meet the goals of sentencing.” In support

of this position, defense counsel raised several arguments

under § 3553(a). Specifically, he contested the application of

§ 2B5.1(b)(2)(A) and (b)(3), arguing that Butler’s means of

manufacturing counterfeit currency did not rise to the level of

sophistication and planning intended by the Guidelines.

Defense counsel also argued that several of Butler’s criminal

history points were “improperly assigned” and that Butler’s

2013 state conviction for forgery “should be viewed as part of

the instant offense, not as criminal history.” As to the latter

argument, defense counsel contended that the conduct that

gave rise to the state forgery conviction was part and parcel of

the behavior that led to the instant offense. As such, “under

§ 3553(a), the two criminal history points assigned by the

guidelines for the [state] conviction [should be] disregarded.”

Relatedly, he also argued that Butler should receive time

6 No. 14-2770

served credit for the 90 days that he spent in custody for the

state forgery conviction.

At sentencing, neither party raised objections to the factual

statements contained in the PSR. When invited to present

arguments in favor of his sentencing recommendation of 30

days, defense counsel expounded on the arguments set forth

in his sentencing memorandum. Ultimately, the court adopted

the within-Guidelines sentence recommended by the govern-

ment and sentenced Butler to 24 months’ imprisonment. This

appeal followed.

II. ANALYSIS

The threshold issue in Butler’s appeal is whether he fully

waived or merely forfeited his right to appeal his Guidelines

calculation. The government argues that Butler waived any

claim of error in the calculation of his sentence because he did

not affirmatively object to the PSR. Butler concedes that he did

not directly challenge his Guidelines calculation but argues

that he merely forfeited the right to challenge it on appeal

because his failure to affirmatively object to the PSR at sentenc-

ing was due to negligence.

The distinction between waiver and forfeiture carries great

weight. Under Federal Rule of Criminal Procedure 52(b),

courts of appeals have “a limited power to correct errors that

were forfeited because not timely raised in district court.”

United States v. Olano, 507 U.S. 725, 731 (1993).“Mere forfeiture,

as opposed to waiver, does not extinguish an ‘error’ under

Rule 52(b),” but permits review for plain error. Id. at 733.

However, determining whether a defendant has waived or

forfeited his legal rights is not always an easy exercise, as “the

No. 14-2770 7

line between waiver and forfeiture is often blurry.” United

States v. Garcia, 580 F.3d 528, 541 (7th Cir. 2009). To distinguish

between the two, “we examine a party’s state of mind at the

time that an objection could have been raised.” United States v.

Anderson, 604 F.3d 997, 1001 (7th Cir. 2010). Waiver is the

intentional relinquishment of a known right. Olano, 507 U.S. at

733; United States v. Jaimes-Jaimes, 406 F.3d 845, 847 (7th Cir.

2005). By contrast, forfeiture is “the failure to make the timely

assertion of a right.” Olano, 507 U.S. at 733. Forfeiture occurs by

accident or neglect, rather than through the manifestation of an

intentional choice not to assert a right. United States v. Cooper,

243 F.3d 411, 416 (7th Cir. 2001); United States v. Staples, 202

F.3d 992, 995 (7th Cir. 2000).

Waiver principles are construed liberally in favor of the

defendant. Anderson, 604 F.3d at 1002. There is no rigid rule for

finding waiver; rather, we evaluate each omission individually

to determine whether, as a matter of strategy, the defendant

made a calculated choice to stay silent on a particular issue,

thereby waiving his right to challenge that matter on appeal.

Id. at 1001; Jaimes-Jaimes, 406 F.3d at 848 (“There may be sound

strategic reasons why a criminal defendant will elect to pursue

one sentencing argument while also choosing to forego [sic]

another, and when the defendant selects as a matter of strat-

egy, he also waives those arguments he decided not to pres-

ent.”). Thus, while we have found waiver where either a

defendant or his lawyer expressly declined to press a right or

to make an objection to a sentencing enhancement, see Garcia,

580 F.3d at 542; Staples, 202 F.3d at 995; United States v. Redding,

104 F.3d 96, 99 (7th Cir. 1996), “we do not read our cases as

establishing an inflexible rule that every objection not raised at

8 No. 14-2770

a sentencing hearing is waived.” Jaimes-Jaimes, 406 F.3d at 848.

See also Anderson, 604 F.3d at 1001; United States v. Allen, 529

F.3d 390, 395 (7th Cir. 2008). In order to determine whether the

defendant intended to forgo a legal argument, we must draw

inferences from the record and the surrounding circumstances.

See Garcia, 580 F.3d at 542 (holding that this inquiry requires

some “conjecture” and an evaluation of the record as a whole).

Applying these standards, we find that Butler forfeited his

legal right to challenge the district court’s calculation of the

Guidelines. Although neither Butler nor his counsel affirma-

tively objected to the Guidelines calculation, the record

indicates that this omission was due to defense counsel’s

oversight, rather than the result of a deliberate and strategic

choice to pursue one sentencing argument while forgoing

another. Defense counsel clearly objected in both a detailed

sentencing memorandum and his argument at the sentencing

hearing to the inclusion of the state forgery offense within

Butler’s criminal history, and argued that the two points

attributable to that offense should be disregarded by the court.

Undoubtedly, defense counsel should have articulated this

objection as a challenge to the Guidelines calculation, rather

than advancing it to support a downward variance under

§ 3553(a). However, doing so would not have prevented

defense counsel from also presenting a mitigation argument.

Because the government offers no strategic reason for why

Butler would have opted to bypass a direct challenge to the

Guidelines calculation, and we cannot conceive of one, Butler’s

failure to properly raise this objection constitutes forfeiture. See

Jaimes-Jaimes, 406 F.3d at 848.

No. 14-2770 9

Nevertheless, Butler’s appeal fails because he cannot satisfy

the “remarkably demanding” plain error test. Anderson, 604

F.3d at 1002 (quoting United States v. Salazar, 453 F.3d 911, 913

(7th Cir. 2006)). Under plain error review, the defendant has

the burden of showing: (1) an error or defect that (2) is clear or

obvious and (3) affects the defendant’s substantial rights.

Olano, 507 U.S. at 736. Even if the defendant can meet this

burden, this court is not required to order a correction of the

error, but may exercise its discretion to do so if the error

seriously impugns the fairness, integrity or public reputation

of the judicial proceedings. Id. at 736. Under the facts presented

in the instant appeal, Butler cannot show that the district

court’s failure to consider his state conviction for forgery as

relevant conduct under U.S.S.G. § 1B1.3 meets the standard for

plain error.

Section 4A1.2 of the Guidelines provides that “[t]he term

‘prior sentence’ means any sentence previously imposed upon

adjudication of guilt, whether by plea, trial, or plea of nolo

contendere, for conduct not part of the instant offense.” U.S.S.G.

§ 4A1.2. The Application Notes to § 4A1.2 provide that “a

sentence imposed after the defendant’s commencement of the

instant offense, but prior to sentencing on the instant offense,

is a prior sentence if it was for conduct other than conduct that

was part of the instant offense.” U.S.S.G. § 4A1.2 cmt. n.1.

Further, “[c]onduct that is part of the instant offense means

conduct that is relevant conduct to the instant offense under

the provisions of § 1B1.3.” Id. Under § 1B1.3, relevant conduct

includes “all acts and omissions committed … by the

defendant … that occurred during the commission of the

offense of conviction … .” U.S.S.G. § 1B1.3(a)(1)(A). Since

10 No. 14-2770

Butler’s offenses under § 2D5.1 were properly grouped

together pursuant to § 3D1.2(d), relevant conduct also includes

all acts “that were part of the same course of conduct or

common scheme or plan as the offense of conviction.” U.S.S.G.

§ 1B1.3(a)(2).

It is undisputed that Butler’s 90-day sentence for forgery

was imposed after the conduct underlying the instant offense,

but prior to sentencing on the instant offense. Butler maintains,

however, that the offense conduct associated with the forgery

conviction does not fall within the ambit of § 4A1.2 because

that conviction was the last in an unabated series of counter-

feiting offenses that culminated in the instant conviction. We

disagree. While it is “well established that in determining a

defendant’s sentence a court may consider a broad range of

information,” United States v. Valenti, 121 F.3d 327, 334 (7th Cir.

1997), with respect to whether a defendant’s prior conduct

should be considered relevant conduct under § 1B1.3, the court

looks to the “similarity, regularity, and temporal proximity of

the uncharged acts to the offense of conviction.” United States

v. Sykes, 7 F.3d 1331, 1336 (7th Cir. 1993). If one of those three

factors is not present, the court must look for “a stronger

presence of at least one of the other factors.” U.S.S.G. § 1B1.3

cmt. n.9(B). In Butler’s case, the similarities between the instant

offense and the state forgery conviction are minimal. The fact

that both offenses involve counterfeit currency does not,

independently, demonstrate that they are part of the same

course of conduct. The Guidelines compel us to conduct a

more searching inquiry to determine whether there are

distinctive similarities between the offense of conviction and

the prior conduct that indicate that they are not isolated,

No. 14-2770 11

unrelated events that happen only to be similar in kind. Where,

as here, the prior conduct takes place over one hundred miles

away from the conduct underlying the instant offense, is

relatively remote temporally, and involves entirely different

victims, means, and purposes, we cannot say that it is suffi-

ciently connected to the instant offense to qualify as part of the

same course of conduct for the purposes of § 1B1.3.

Furthermore, even assuming, arguendo, that this prior

conduct should have been considered relevant conduct, Butler

cannot show that such an error affected his substantial rights.

Butler argues that he was prejudiced by the district court’s

assignment of two extra points to his criminal history score

because his Criminal History Category increased from III to IV.

While it is true that, had Butler been placed in Category III

instead of IV, his corresponding Guidelines range would have

decreased from 24–30 to 18–24 months, Butler has not

shown—and the record does not compel us to find—that the

district court would have imposed a lower sentence. See Olano,

507 U.S. at 734 (holding that the requirement that a plain error

“affects substantial rights” means that the error must have

affected the outcome of the district court proceedings).

The district court sentenced Butler to 24 months’ imprison-

ment, which corresponds to the low end of the Guidelines

range accepted by the district court at sentencing and the high

end of the Guidelines range proposed by Butler on appeal.

“We have held that ‘where two Guidelines ranges overlap …

the technical dispute over which range to apply may be left

unresolved … [a]s long as it is reasonable to conclude that the

same sentence would have been imposed regardless of the

outcome of the dispute over which range to apply.’” Emezeo v.

12 No. 14-2770

United States, 357 F.3d 703, 711 (7th Cir. 2004) (quoting United

States v. Howard, 179 F.3d 539, 545 (7th Cir. 1999)). Here, it

appears from the record that the district court would have

imposed the same sentence of 24 months, regardless of

whether it was at the top or bottom of the applicable Guide-

lines range. According to the transcript from the sentencing

hearing, the district court determined that 24 months was

an appropriate sentence by considering the offense conduct,

the history and characteristics of the defendant, and related

factors under § 3553(a), in addition to acknowledging that “the

guidelines got it right.” The district court also frequently

referenced Butler’s extensive criminal history, which, even

excluding the forgery offense, indicated to the court a disre-

spect for the law. From all of this, we conclude that the district

court engaged in a “thoughtful and meaningful review of the

facts … in determining an appropriate sentence,” United States

v. Hill, 645 F.3d 900, 912 (7th Cir. 2011), and have no reason to

believe that the court would have imposed a sentence lower

than 24 months if given the opportunity to do so. Accordingly,

even if the district court erred in its calculation of the Guide-

lines, such error does not affect Butler’s substantial rights.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.