In the

United States Court of Appeals
              For the Seventh Circuit

No. 09-2853

U NITED S TATES OF A MERICA,
                                             Plaintiff-Appellee,
                               v.

D AVID C URBY,
                                         Defendant-Appellant.


           Appeal from the United States District Court
               for the Western District of Wisconsin.
        No. 3:08-cr-00173-JTM-01—James T. Moody, Judge.



   A RGUED JANUARY 26, 2010—D ECIDED F EBRUARY 26, 2010




 Before B AUER, P OSNER and K ANNE, Circuit Judges.
  P ER C URIAM. David Curby pleaded guilty to distrib-
uting cocaine, 21 U.S.C. § 841(a)(1), and was sentenced to
151 months’ imprisonment, the bottom of the guidelines
range. He appeals only his sentence and argues that the
district court failed to adequately evaluate his principal
argument in mitigation. We reject this contention and
affirm the judgment.
  Curby’s conviction stems from a number of cocaine
sales to an informant in February 2008. After he was
2                                               No. 09-2853

indicted on three counts of distributing cocaine, he
pleaded guilty to the third count, which corresponded
to the largest of the buys at approximately 2 ounces.
  This was not Curby’s first conviction. As detailed in the
presentence investigation report, Curby, who was 41 years
old at the time of sentencing, has an extensive criminal
history including convictions for burglary in 1987 and
1991; a conviction for theft in 2001; convictions in 1991,
1995, and 1998 for possessing or trafficking marijuana; a
1995 conviction for evading a police officer; and a 2006
conviction for DUI. He was on state extended supervi-
sion—he was considered a “maximum supervision”
case—when he committed this federal crime, which
resulted in revocation and further imprisonment in state
custody. In addition, the addendum to the presentence
report details a history of non-compliance with super-
vision and the terms of probation as a result of Curby
“using, possessing and delivering marijuana . . . using
cocaine, failing to report to his probation agent, lying to
his probation agent, providing a false name to law en-
forcement and violating no-contact orders.” Curby has
also failed to comply with programs offered as alter-
natives to revocation. The probation officer concluded
that Curby qualified as a career offender based on his
convictions for distributing marijuana, see U.S.S.G. § 4B1.1,
and recommended a guidelines imprisonment range of
151 to 188 months.
  Curby did not object to the presentence report, but he
argued that mental illness and the role it played in his
criminal activity warranted a below-range sentence of
No. 09-2853                                             3

115 months. In addressing Curby’s mental health in
the presentence report, the probation officer discusses
allegations by Curby that he was diagnosed as bipolar
while in the custody of the Wisconsin Department of
Corrections and was sexually abused as a child by two
uncles and an older neighbor boy. At sentencing, Curby
explained that his bipolar disorder and the sexual
abuse and untreated trauma from that abuse were the
underlying causes of his criminal activity and social
maladjustment. In support of his argument, he sub-
mitted a sentencing memorandum as well as a two-
page report from a psychologist, Thomas Moran,
who evaluated him at the request of his attorney. The
psychologist met with Curby once and reviewed “over
75 pages of Department of Corrections logs, Alcohol and
Other Drug Abuse (AODA) reports, psychological assess-
ments, and psychiatric reports.” The psychologist con-
cluded that Curby has “polysubstance dependency
which is complicated by a co-existing Bipolar Disorder
and symptoms consistent with PTSD” stemming from
the reported sexual abuse. The psychologist’s report was
completed after the probation officer had prepared and
released the presentence report.
  At the sentencing hearing the district court listened to
the presentation of Curby’s attorney, Curby’s allocution,
and the government’s argument focusing on Curby’s
criminal history and his history of non-compliance
with conditions of supervision and related treatment
programs. The court noted that it had studied Curby’s
sentencing memorandum and Dr. Moran’s report but
rejected Curby’s arguments. The court stated that it had
4                                               No. 09-2853

considered “the mitigating circumstances which are set
forth in the defendant’s sentencing memorandum and
Dr. Moran’s report” but concluded that, in light of
Curby’s “extensive criminal record” and the factors
under 18 U.S.C. § 3553, Curby’s requested sentence
was not appropriate. Accordingly, the court sentenced
Curby to 151 months’ imprisonment.
  Curby argues that the district court committed pro-
cedural error by not giving due consideration to the
mitigating evidence concerning his mental health and
history of sexual abuse. Whether the district court
followed proper sentencing procedure is a question of
law we review de novo. United States v. Mendoza, 

, 754 (7th Cir. 2007). The district court “must
adequately explain the chosen sentence to allow for
meaningful appellate review and to promote the percep-
tion of fair sentencing.” Gall v. United States, 

,
50 (2007). “A judge who fails to mention a ground of
recognized legal merit (provided it has a factual basis) is
likely to have committed an error or oversight.” United
States v. Cunningham, 

, 679 (7th Cir. 2005).
  Curby asserts that “the district court failed to provide
any explanation as to why it found Dr. Moran’s
report and the defendant’s Sentencing Memorandum
unpersuasive.” But it is apparent from the record that
the court rejected Curby’s argument because of his ex-
tensive criminal history. Curby said at sentencing that
he had turned over a new leaf because he now under-
stood the bases for his actions—the sexual abuse and
bipolar disorder—and could now adequately address
No. 09-2853                                               5

them. The district court didn’t buy it. In rejecting Curby’s
argument the district court explained:
    Considering the seriousness of this crime, the defen-
    dant’s personal history and characteristics, his—it’s
    an extensive criminal record, and all of the relevant
    factors set forth in Title 18 of the United States Code,
    Sec. 3553, and the mitigating circumstances which
    are set forth in the defendant’s sentencing memoran-
    dum and Dr. Moran’s report, and the request for a
    sentence below the applicable guideline sentencing
    range that’s been made by defense counsel, I do find
    that the defendant’s request for a sentence of [115]
    months of imprisonment is not persuasive. I choose
    not to do that because I believe strongly that that
    type of a sentence is just not warranted under the
    facts and circumstances of this case.
    The defendant is very articulate. His allocution state-
    ment, his statement here today, he’s a very bright
    young man. He’s not young anymore. But his crim-
    inal history is just the opposite of what he’s trying to
    tell me. Hopefully what he says today is true, but
    looking at his history, it’s hard to believe that you
    are what you say you are or in your own mind.
    You’re kind of a contradiction.
This discussion of the effect of Curby’s criminal history on
his argument for mitigation is not lengthy, but was
enough. The amount of explanation needed in any par-
ticular case depends on the circumstances, United States
v. Harris, 

, 853 (7th Cir. 2009), United States
v. Poetz, 

, 838 (7th Cir. 2009), and “[l]ess
6                                              No. 09-2853

explanation is typically needed when a district court
sentences within an advisory guidelines range,” 

. Here, the district court sentenced Curby
at the very bottom of the range. Accordingly, extensive
discussion was unnecessary.
  Curby relies on a line of cases from this circuit where
we remanded for resentencing. But the cited decisions
do not support his argument. In Cunningham, the de-
fendant argued at sentencing—like Curby—that his
psychiatric problems (and substance abuse) warranted a
below-guidelines sentence, but the district court did not
mention those impairments when it imposed a sentence
at the bottom of the recommended range. 

. We explained:
    We cannot have much confidence in the judge’s con-
    sidered attention to the factors in this case, when he
    passed over in silence the principal argument made
    by the defendant even though the argument was not
    so weak as not to merit discussion, as it would have
    been if anyone acquainted with the facts would have
    known without being told why the judge had not
    accepted the argument. Diminished mental capacity
    is a ground stated in the sentencing guidelines them-
    selves for a lower sentence. U.S.S.G. § 5K2.13. A judge
    who fails to mention a ground of recognized legal
    merit (provided it has a factual basis) is likely to
    have committed an error or oversight.

(emphasis added). Unlike in
Cunningham, here, the district court did not pass over in
silence, or fail to mention, Curby’s argument. The
No. 09-2853                                                7

district court specifically noted that it had considered “the
mitigating circumstances which are set forth in the defen-
dant’s sentencing memorandum and Dr. Moran’s re-
port.” Our opinion in Cunningham does not help Curby
because in Cunningham the point of inquiry was whether
or not the district court had considered the defendant’s
arguments—whether the judge had “exercised his dis-
cretion.” 

. We remanded
because we could not tell whether the district court had
exercised its discretion given that the court had said
nothing about the defendant’s argument in mitigation.
Here, there is no doubt that the district court considered
Curby’s argument—the district court explicitly said so,
citing the psychologist’s report.
  Curby also relies heavily on an unpublished decision,
United States v. Hopkins, 338 F. App’x 528 (7th Cir. 2009),
which involved the same district judge. In Hopkins
the defendant had pleaded guilty to one count of
receiving child pornography, and the guidelines impris-
onment range was 210 to 262 months. 

The defendant argued for a below-guidelines sen-
tence and presented the testimony of a psychologist
who opined that he was amenable to treatment and
that long-term incarceration would be counterproduc-
tive to rehabilitation. 

recommended
5 years (the statutory minimum) with lifetime super-
vised release, and the government conceded that the
statutory minimum would be appropriate. 

psychologist’s testimony and the government’s con-
cession, however, the district court imposed a prison
term of 210 months. 

court made “no men-
8                                               No. 09-2853

tion at all” of the psychologist’s testimony and said only
that the defendant’s request for a lower sentence was “not
persuasive” and “not warranted under the facts and
circumstances of this case.” 

on Hopkins is to no avail. We
remanded for resentencing because the district court—like
the district judge in Cunningham—offered “no assurance
that the court actually exercised its discretion” by con-
sidering the defendant’s argument or the psychologist’s
testimony. Hopkins, 338 F. App’x at 530. Unlike in
Hopkins, here, the district court explicitly stated at the
sentencing hearing that it had “studied” and
“consider[ed]” Curby’s sentencing memorandum and,
more importantly, “the psychological evaluation of the
defendant which was prepared by Dr. Thomas J. Moran.”
In addition, unlike in Hopkins where the district court
dismissed the defendant’s argument with no explana-
tion save “not persuasive” and “not warranted,” 

district court specifically cited Curby’s criminal
history when it rejected the below-guidelines request.
Furthermore, the psychologist in Hopkins linked the de-
fendant’s mental health and rehabilitation to a mini-
mum sentence of 5 years. Hopkins, 338 F. App’x at 529.
Here, in contrast, Moran’s report does not conclude, and
offers no opinion, that a lesser sentence would be helpful
to rehabilitation or decrease the likelihood of recidivism.
  The other cases relied on by Curby are unhelpful for
the same reason that Cunningham and Hopkins are
inapposite: the district court was either silent about the
defendant’s argument or else explained the sentence
No. 09-2853                                               9

with nothing more than a rote statement that the court
had considered the relevant sentencing factors. See, e.g.,
United States v. Villegas-Miranda, 

, 801-02 (7th
Cir. 2009) (remanding for resentencing where district
court passed over in silence defendant’s argument for
credit for time served in state prison); 

(remanding for resentencing where there
was no indication that district court had considered de-
fendant’s argument in mitigation based on his diabetes).
  Here, the district court’s discussion showed that it had
considered Curby’s argument and provided a basis
for rejecting it. Under the totality of the circumstances—
Curby’s extensive criminal history and a psychologist’s
report that offered no opinion on sentencing—this was
enough.
                                                 A FFIRMED.




                           2-26-10