United States v. Loizzi, James

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued September 22, 2006

Decided October 6, 2006

Before

Hon. RICHARD A. POSNER, Circuit Judge

Hon. ILANA DIAMOND ROVNER, Circuit Judge

Hon. TERENCE T. EVANS, Circuit Judge

No. 06-1239

UNITED STATES OF AMERICA, Appeal from the United States District

Plaintiff-Appellee, Court for the Northern District of

Illinois, Eastern Division

v.

No. 04 CR 1085-1

JAMES LOIZZI,

Defendant-Appellant. Samuel Der-Yeghiayan,

Judge.

ORDER

James Loizzi pleaded guilty to two counts of possession with intent to

distribute a controlled substance. See 21 U.S.C. § 841(a)(1). After concluding that

two of his prior convictions were for controlled substance offenses, the district court

sentenced him under the guidelines as a career offender. See U.S.S.G. § 4B1.1.

Loizzi argues that one of those convictions—a 1990 Illinois conviction for possession

with intent to deliver cocaine—cannot be counted as a controlled substance offense.

A warrant was issued for Loizzi’s arrest charging him with violating the

conditions of his federal supervised release. When police officers arrived at Loizzi’s

hotel room, they discovered just over a gram each of marijuana and cocaine. A

subsequent search of his car turned up more than a kilogram of cocaine and

No. 06-1239 Page 2

approximately eight kilograms of marijuana, along with cash, baggies, scales,

and a pager. Loizzi was then charged with two counts of possession with intent

to distribute. He pled guilty to both counts without a written plea agreement.

In a presentence investigation report, the probation officer recommended that

the district court sentence Loizzi as a career offender under U.S.S.G. § 4B1.1 based

on two of his prior convictions. The first is a 1990 federal conviction for conspiracy

to distribute cocaine. See 21 U.S.C. §§ 846, 841(a)(1). The second is also a 1990

conviction, this one under Illinois law, for possession with intent to deliver cocaine.

See ILL. REV. STAT., CH. 56 1/2 1401 (1990) (current version at 720 ILL. COMP. STAT.

570/401). As evidence of the convictions, the government introduced a copy of the

1990 federal judgment and a “certified statement of conviction” for the Illinois

violation. The probation officer concluded that, because both convictions involved

an intent to distribute, and not just simple possession, Loizzi had the requisite

number of controlled substance convictions for sentencing as a career offender. See

U.S.S.G. §§ 4B1.1, 4B1.2(b); United States v. Jackson, 103 F.3d 561, 570 (7th Cir.

1996) (noting that simple drug possession is not a controlled substance offense

under the career-offender guideline).

Loizzi objected to characterizing his state conviction as a controlled substance

offense and argued that the underlying facts establish that the offense involved only

simple possession. The statute of conviction—which Loizzi admits he pleaded guilty

to—makes it unlawful for “any person knowingly to manufacture or deliver, or

possess with intent to manufacture or deliver, a controlled substance.” ILL. REV.

STAT., CH. 56 1/2 1401 (current version at 720 ILL. COMP. STAT. 570/401). Despite

this language, Loizzi argued that a police report evidences that he was arrested

with 55 grams of cocaine, an amount that he says is too small from which to infer

an intent to deliver. Thus, Loizzi argued that he committed only one prior

controlled substance offense and the district court should not sentence him as a

career offender.

The district court rejected this argument and refused to look at the

underlying facts of the offense, reasoning that Loizzi admittedly pleaded guilty to

an offense involving the intent to distribute drugs. Accordingly, the district court

accepted the probation officer’s calculation and found Loizzi’s total offense level to

be 31 (after a 3-level reduction for acceptance of responsibility). With a criminal

history category of VI, Loizzi’s corresponding guidelines imprisonment range was

188 to 235 months. The district court considered the relevant sentencing factors

under 18 U.S.C. § 3553(a)(2), including the supportive testimony received from his

family during the hearing, evidence of his gainful employment, and his prior

criminal history. The court then imposed concurrent sentences of 211 months

imprisonment and five years supervised release on the first count, and 60 months

imprisonment and three years supervised release on the second.

No. 06-1239 Page 3

Discussion

On appeal, Loizzi attacks his sentence on two grounds. First, he reframes

his challenge to the career offender guideline by arguing now that the “certified

statement of conviction” inadequately proves that his 1990 Illinois conviction is a

controlled substance offense. He also contends that his sentence is unreasonable

because the district court refused to give a below-range sentence.

To successfully argue that his prison sentence is based on an incorrect

guidelines range, Loizzi must show that the district court relied on inaccurate

information in scoring his Illinois conviction. See United States v. Hankton, 423

F.3d 779, 790 (7th Cir. 2005). Here, the district court relied on the presentence

report and the “certified statement of conviction,” which reference the statute

contravened, the charging document, his guilty plea, and the judgment of the

Illinois court. See United States v. Lewis, 405 F.3d 511, 514-15 (7th Cir. 2005).

The district court was not required to do anything more. See United States v.

Peters, No. 05-2554, 2006 WL 2485837, at *2 (7th Cir. Aug. 30, 2006) (explaining

that presentence report was satisfactory evidence of prior conviction). Thus, Loizzi

has little room to contest the district court’s finding that his Illinois conviction was

a countable controlled substance offense.

Nonetheless, based on United States v. Hernandez, 218 F.3d 272 (3d Cir.

2000), Loizzi argues that in his case the presentence report and the certified

statement of conviction were not enough. In Hernandez, the Third Circuit

overturned a career offender sentence because the district court, relying solely

on “certificates of disposition” from a New York state court, concluded that the

defendant previously was convicted of possessing drugs with intent to sell, even

though the underlying plea colloquy suggested that he pleaded to simple posses-

sion. Id. at 279. The Third Circuit reasoned that the hand-written “certificates of

disposition,” issued by clerks from the state courts, were not judgments of

conviction and thus could not conclusively prove the defendant’s prior convictions.

Id. at 278. Loizzi argues that the district court likewise should have looked beyond

the Illinois certified statement of conviction and examined the underlying police

report because the certified statement is, like its New York counterpart, a clerk’s

record and not a copy of the judgment.

Loizzi is correct to a point. His certified statement of conviction, though

computerized, is akin to Hernandez’s “certificate of disposition”; it was prepared by

a state-court clerk years after the actual state court proceeding. Id. at 278-279.

And while we have upheld the use of an Illinois certified statement of conviction to

prove a prior conviction for purposes of imposing an enhanced sentence under the

Armed Career Criminal Act, see United States v. Howell, 37 F.3d 1197, 1207 (7th

Cir. 1994), we have also recognized that a certified statement of conviction is not

conclusive proof of the underlying judgment, see Dashto v. INS, 59 F.3d 697, 701-02

No. 06-1239 Page 4

(7th Cir. 1995) (holding that Illinois certified statement of conviction that conflicted

with court records was insufficient evidence of firearms conviction for immigration

purposes). As we explained in Dashto, a “certified statement of conviction is

nothing more than the Clerk of Court’s representation as to what the underlying

court records—including the indictment, judgment of conviction, and sentence—

reveal about the nature of the conviction,” and thus if the statement is inconsistent

with the underlying documents, “it is the records themselves that control, not the

clerk’s characterization of them.” Id. at 701.

But the Hernandez case is clearly distinguishable. The Third Circuit

authorized looking beyond the New York “certificates of disposition” because their

accuracy was “seriously called into question.” Hernandez, 218 F.3d at 279. That is

not the case here. Loizzi admits that the Illinois certified statement of conviction is

accurate; thus, the district court had no reason to look behind it. Because Loizzi

admitted at sentencing that he pleaded guilty to possession with intent to deliver

cocaine, the district court properly considered his conviction for career offender

purposes. See United States v. Kindle, 453 F.3d 438, 441-42 (7th Cir. 2006) (hold-

ing that in-court admission is proper evidence of prior conviction for sentencing

purposes). What’s more, by admitting a conviction for possession with intent to

deliver, Loizzi necessarily admitted the intent-to-deliver element. See United States

v. Wallace, 280 F.3d 781, 784 (7th Cir. 2002) (reasoning that by pleading guilty

defendant admits each element of the substantive crime); United States v. Warneke,

310 F.3d 542, 550 (7th Cir. 2002) (“An admission is even better than a jury’s finding

beyond a reasonable doubt; it removes all contest from the case.”).

In fact, a sentencing court cannot look behind the statute and judgment

when the nature of the conviction categorically qualifies for recidivism sentencing

consideration under the guidelines. See Taylor v. United States, 495 U.S. 575, 599,

602 (1990) (holding that if state crime necessarily fits within predicate offense,

sentencing courts should look only to the conviction and statutory definition to

determine whether defendant qualifies for statutory enhancement); United States

v. Shannon, 110 F.3d 382, 384 (7th Cir. 1997) (same for sentencing guidelines).

The sentencing guidelines define a controlled substance offense as “an offense

under federal or state law, punishable by imprisonment for a term exceeding one

year, that prohibits . . . the possession of a controlled substance (or a counterfeit

substance) with intent to manufacture, import, export, distribute or dispense.”

U.S.S.G. § 4B1.2(b). Along with admitting that he pleaded guilty to possession

with intent to deliver cocaine, Loizzi rightly concedes that this crime categorically

qualifies as a controlled substance offense under the guidelines. The district court,

presented with Loizzi’s own admission that he pleaded guilty to a controlled

substance offense, as well as a presentence report and a certified statement of

conviction corroborating his admission, properly found that this conviction qualified

No. 06-1239 Page 5

as a controlled substance offenses. And so, it was entirely appropriate for the court

to treat him as a career offender.

That is enough to decide this case. But even if Loizzi had offered a

persuasive justification for looking beyond the presentence report and the certified

statement of conviction, there would still be no basis for examining, as he suggests,

the police report concerning his arrest. Loizzi insists that the district court should

have looked at the report, but he provides no supporting authority for that

argument, and for good reason. Hernandez authorized a sentencing court to look

at a plea colloquy, not a police report. 218 F.3d at 279. The Supreme Court and

this court have both rejected reliance on police reports in determining the nature

of a prior conviction. Sentencing courts are limited to “‘examining the statutory

definition, charging document, written plea agreement, transcript of plea colloquy,

and any explicit factual findings made by the trial judge to which the defendant

assented.’” Lewis, 405 F.3d at 514-15 (quoting Shepard v. United States, 544 U.S.

13, 16 (2005)). See also United States v. McGee, 408 F.3d 966, 989 (7th Cir. 2005)

(remanding career offender sentence because of, inter alia, sentencing court’s

possible reliance on police report).

Ultimately, Loizzi is trying to collaterally attack his prior Illinois conviction

by arguing that the facts did not support a conviction for possession with the intent

to deliver. However, federal sentencing courts are not the place to collaterally

attack prior state court convictions, Custis v. United States, 511 U.S. 485, 497

(1994); United States v. Dahler, 171 F.3d 441, 443 (7th Cir. 1999), or to investigate

the facts behind prior convictions, Lewis, 405 F.3d at 515 (“What matters is the fact

of conviction, rather than the facts behind the conviction.” (emphasis in original)).

Loizzi also challenges the reasonableness of his sentence, arguing that the

court should have exercised its discretion to impose a below-guidelines sentence.

Since the district court appropriately concluded that Loizzi was a career offender,

his sentence falls within the properly calculated guidelines range and therefore is

presumed reasonable. See United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.

2005). In the district court, Loizzi argued that a within-range sentence would be

unreasonable based on his purportedly overstated criminal history, his efforts at

drug rehabilitation, his gainful employment, and the support of family members

who testified on his behalf. The district court considered these arguments,

pursuant to § 3553(a)(2), and selected a sentence within the guidelines range.

The sentence is not, based on this record, unreasonable. See United States v.

Juarez, 454 F.3d 717, 721 (7th Cir. 2006).

The judgment of the district court is AFFIRMED.