Judges: Per Curiam
Filed: Aug. 29, 2016
Latest Update: Mar. 03, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued July 7, 2016 Decided August 29, 2016 Before DIANE P. WOOD, Chief Judge WILLIAM J. BAUER, Circuit Judge MICHAEL S. KANNE, Circuit Judge No. 16-1328 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Southern District of Illinois. v. No. 4:15-CR-40044-SMY WILLIAM FULLER III, Staci M
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued July 7, 2016 Decided August 29, 2016 Before DIANE P. WOOD, Chief Judge WILLIAM J. BAUER, Circuit Judge MICHAEL S. KANNE, Circuit Judge No. 16-1328 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Southern District of Illinois. v. No. 4:15-CR-40044-SMY WILLIAM FULLER III, Staci M...
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 7, 2016
Decided August 29, 2016
Before
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 16‐1328
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 4:15‐CR‐40044‐SMY
WILLIAM FULLER III, Staci M. Yandle,
Defendant‐Appellant. Judge.
ORDER
While incarcerated in the Marion federal penitentiary, William Fuller attacked
another inmate. He pleaded guilty to possession of a weapon by an inmate and assault
with a dangerous weapon and was sentenced to 77 months’ imprisonment, the bottom of
his guidelines range. He now appeals his sentence, contending that the district court did
not adequately consider his arguments in mitigation.
At the time of the incident, Fuller was serving a 262‐month sentence for two drug
offenses. Approaching the victim from behind, Fuller swung a sock filled with rocks into
the victim’s head. The blow shattered the victim’s bulky headphones and lacerated his
face. The victim fled and Fuller gave chase, swinging a metal combination lock attached
No. 16‐1328 Page 2
to a lanyard until prison staff intervened. The attack was captured on the prison’s video
system.
Fuller was charged with two counts of possession of a weapon by an inmate (one for
the sock and one for the lock), see 18 U.S.C. §§ 1791(a)(2), and one count of assault with a
dangerous weapon, see id. § 113(a)(3). He pleaded guilty without a plea agreement to all
three counts.
In calculating the guidelines imprisonment range, a probation officer identified an
offense level of 24 and a criminal history category of VI, because Fuller is a career
offender, see 18 U.S.C. § 113(a)(3); U.S.S.G. §§ 4B1.1(b), (b)(5), yielding a guidelines
imprisonment range of 77 to 96 months. The probation officer noted the Sentencing
Commission’s view that the new sentence should run consecutively to Fuller’s
undischarged sentence, see U.S.S.G. § 5G1.3(a). Fuller did not object to the proposed
guidelines range.
Fuller’s lawyer argued for a total sentence of 77 months’ imprisonment, most of it to
run concurrently with his client’s undischarged sentence. Counsel asserted that Fuller
already had been punished for his crimes by spending 10 months in solitary confinement
and losing administrative privileges. Counsel also asserted that Fuller, as a prison inmate,
must—in counsel’s words—live by the “unwritten rules of those confined by the Bureau”
and that prison guards would not be able to protect him from all violent confrontations.
Fuller did not present evidence at sentencing, but he said during his unsworn allocution
that the victim had three or four times “tried to go to blows” with him and had shown
him a weapon, and that he felt scared and knew the guards might not help him if he was
attacked.
The district judge sentenced Fuller at the bottom of the guidelines range to a term of
77 months’ imprisonment, to run consecutively to Fuller’s undischarged sentence. The
judge explained that she would not “relitigate” any “administrative actions and
decisions” by the Bureau of Prisons because that is “not for [her] to judge.” The judge
told Fuller she understood his argument that he did what he thought necessary given
prison culture, but she added that the only evidence she had received about the assault
had come from the presentence report. And in any event, the judge continued, Fuller had
violated the law and must be held accountable. The judge discussed the sentencing
factors in 18 U.S.C. §§ 3553(a) and stated that she had “consider[ed] everything.”
Fuller’s sole argument on appeal is that the district court did not adequately consider
his arguments in mitigation and thus committed procedural error. Fuller’s within‐
guidelines sentence is presumptively reasonable and required minimal explanation.
See United States v. Dachman, 743 F.3d 254, 263 (7th Cir. 2014). He argues nonetheless that
No. 16‐1328 Page 3
the district judge’s statement that she would not “relitigate” administrative penalties
indicates that she did not consider or respond to his argument about solitary
confinement. Fuller also contends that the judge’s emphasis on the absence of evidence
of provocation by his victim shows that she did not think she was entitled to consider his
assertion that the victim previously had threatened him.
But the contention that Fuller’s arguments in mitigation were not addressed is
meritless; the district judge did consider them and rejected them. The judge acknowledged
Fuller’s contention about the harshness of solitary confinement but explained that she
was not going to rethink the BOP’s determination of the appropriate administrative
penalties for Fuller’s misconduct. She reasonably concluded that administrative sanctions
and criminal sentences serve different purposes, and thus the former is not a substitute
for the latter. See United States v. Newby, 11 F.3d 1143, 1148–49 (3rd Cir. 1993).
The court had two reasons—both of them sound—for rejecting Fuller’s contention
that going on the attack was the only way to protect himself. First, although
acknowledging that prisons are generally dangerous places, the court noted that the sole
evidence about Fuller’s crime comes from the presentence report, which says nothing at
all about Fuller’s having been provoked or feeling threatened. Fuller’s unsworn
allocution was not evidence, and it is well within a district judge’s discretion to reject
arguments in mitigation that are factually unsupported. See United States v. Chapman,
694 F.3d 908, 913–14 (7th Cir. 2012) (explaining that district courts “should disregard”
arguments in mitigation that lack factual foundation); United States v. Ramirez, 675 F.3d
634, 641 (7th Cir. 2011) (“[E]very defendant who asserts that his or her personal
circumstances warrant leniency is compelled to supply a factual predicate for the
contention.”); United States v. Diaz, 533 F.3d 574, 578 (7th Cir. 2008) (same). And
assertions made by defense counsel or unsworn statements made by the defendant
during allocution are not evidence. See Diaz, 533 F.3d at 578 (“Counsel’s unsupported
statements are, of course, not evidence.”); United States v. Krankel, 164 F.3d 1046, 1055
(7th Cir. 1998) (explaining that unverified declarations from the defendant are not
evidence that can refute a presentence report); United States v. Anderson, 632 F.3d 1264,
1270–71 (D.C. Cir. 2011) (noting that district court need not assign any weight to
defendant’s unsworn statements during allocution).
Second, in rejecting Fuller’s assertion that he was compelled to assault his victim, the
district judge explained that Fuller still had to be held accountable for his violent act, even
if he felt threatened. Otherwise, the judge explained, prison would be an even more
“unmanageable situation.” We have previously noted that this type of anticipatory self‐
defense argument based on prison culture is sensibly rejected. See United States v. Tokash,
282 F.3d 962, 971–72 (7th Cir. 2002) (“The possession of weapons by inmates … does
No. 16‐1328 Page 4
not … lessen the danger and violence of penitentiaries, but instead contributes to it.”);
United States v. Haynes, 143 F.3d 1089, 1090 (7th Cir. 1998) (“Under the law of the jungle a
good offense may be the best defense. But although prisons are nasty places, they are not
jungles and it is the law of the United States rather than Hobbes’ states of nature that
regulates inmates’ conduct.”)
In any event, the district court was required only to consider Fuller’s arguments, not
to agree with them, and its explanations for rejecting these two arguments suffice to
provide a “reasoned basis” for its decision. See United States v. Davis, 764 F.3d 690, 694
(7th Cir. 2014); Dachman, 743 F.3d at 262; United States v. Haskins, 511 F.3d 688, 696
(7th Cir. 2007). Fuller’s real complaint is about the court’s refusal to accept his arguments
in mitigation. It committed no legal error in making the choice it did, and so Fuller’s
sentence is AFFIRMED.