                            In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-3240

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

L ARRY S. G OODEN , JR.,
                                           Defendant-Appellant.


             Appeal from the United States District Court
                  for the Southern District of Illinois.
      No. 3:07-cr-30015-DRH-1—David R. Herndon, Chief Judge.


        A RGUED A PRIL 21, 2009—D ECIDED M AY 7, 2009




  Before B AUER, E VANS and W ILLIAMS, Circuit Judges.
  P ER C URIAM. Larry Gooden pleaded guilty to con-
spiring to kidnap and using a firearm during a crime of
violence. In a proffer agreement, Gooden admitted to
participating in a six-day crime spree that involved
robbing several people at gunpoint, abducting a victim
and holding him captive in the trunk of his car for
several days, and attempting to rape another victim. A
probation officer calculated the guidelines range to be
444 to 525 months’ imprisonment, and the district court
sentenced him to 600 months based on the brutality of
2                                               No. 08-3240

his offense and his recidivism. Gooden appeals, arguing
that his sentence is unreasonably high. Because the sen-
tence is reasonable, we affirm.
   Gooden and his co-conspirator, Barry Williams, began
their crime spree by robbing a laundromat in Cahokia,
Illinois. Armed with a sawed-off shotgun, they entered
the laundromat and forced a patron at gunpoint into
the bathroom and robbed him. After hitting the victim
and threatening to kill him, they abducted him and stole
his car, forcing him to ride and sleep in the trunk for
four days. They periodically withdrew money from his
bank account using his ATM card, and, at one point, forced
him again at gunpoint to go to a drive-through teller
window at a bank and withdraw $2,000. The victim was
held in the trunk while Gooden and Williams drove
around Missouri and Illinois, and they allowed him out
of the trunk only to eat and to use the bathroom. On one
occasion, after he was allowed out of the trunk, Gooden
told him, “I want to kill you so bad my dick is hard.” The
victim would sometimes use an emergency latch inside
the trunk to look outside for an opportunity to escape,
but feared that if they caught him trying, Gooden and
Williams would kill him. The victim finally found a
fortuitous moment when he recognized his sur-
roundings and managed to flee on foot to his parents’
home.
  Gooden and Williams then drove the victim’s car on-
wards to St. Louis, Missouri, where they held up two
truck drivers outside a restaurant at gunpoint; in a scuffle
that ensued, the drivers were both injured.
No. 08-3240                                                  3

  Later that day, Gooden and Williams approached a
woman who was exiting a restaurant in Berkeley, Missouri,
put a sawed-off shotgun to her back, and forced her
into her car. Williams drove, while Gooden followed in
the car they stole from the Cahokia victim. They drove
to the back of a large parking lot where Williams told
Gooden to “watch his back” while he attempted to rape
the woman. The victim struggled with Williams, who
threatened to hit her with the sawed-off shotgun, which
in turn discharged into the dashboard of her car. Williams
then tried to start the car but it would not start, and the
two men dragged the victim out of her car towards the
other car.
  A police officer then showed up on the scene, and
Gooden and Williams fled on foot. Gooden soon returned
to the stolen car he had been driving. He sped off, and
the police chased him at speeds over 100 miles per hour.
The chase ended with Gooden crashing the car, appro-
priately, near a police station in Sauget, Illinois. The police
arrested Gooden and found evidence from the crime
spree: the sawed-off shotgun; a work shirt (worn by
Gooden) bearing the Cahokia victim’s name em-
broidered on the front; and the wallet of one of the truck-
driver victims.
  Gooden entered a proffer agreement and plea agree-
ment and pleaded guilty to conspiracy to commit kid-
napping, 18 U.S.C. § 1201(a)(1) and (c), and possession
of a firearm in furtherance of a crime of violence,
18 U.S.C. § 924(c)(1)(A) and (c)(1)(B)(I). The plea agree-
ment required that Gooden give complete information
about crimes committed during the crime spree. A proba-
4                                            No. 08-3240

tion officer calculated Gooden’s guidelines range for the
kidnapping count to be 324 to 405 months’ imprisonment
and, adding the firearm count’s required consecutive
minimum of 120 months’ imprisonment, a total guide-
lines range of 444 to 525 months. See U.S.S.G. § 5G1.2.
  Gooden asked for a psychological examination to deter-
mine whether he was competent to stand trial. Bureau of
Prisons psychologists diagnosed him with a “Mood
Disorder Not Otherwise Specified,” finding that,
although he did not meet the full criteria for depressive
or bipolar disorder, he exhibited some symptoms of a
mood disorder including mild depression, irritability,
“racing thoughts at times,” and mild sleep disturbances;
they concluded that he did not have a mental defect
nor was he incompetent to stand trial.
  About a week before the district judge was to sentence
Gooden, the government sought a finding that Gooden
had breached the plea agreement by failing to pro-
vide complete information about the crimes he had com-
mitted. It turned out that Gooden’s DNA matched evi-
dence found during an investigation of an unsolved rape
of a 16-year-old girl that had occurred during Gooden’s
six-day crime spree, and the victim had identified
Gooden and Williams in a photographic lineup. Gooden
chose not to contest the government’s motion and entered
a guilty plea without a plea agreement.
  At the sentencing hearing, Gooden argued that he
had been manipulated by Williams, and that he needed
mental health care and should receive a reduced sentence
because of diminished capacity. Gooden also argued that
he was no more culpable than Williams, who had received
No. 08-3240                                              5

a within-guidelines sentence of 40 years. Williams, how-
ever, as Gooden acknowledged, entered his plea agree-
ment before the rape of the 16-year-old had been discov-
ered; thus the government did not learn until after his
sentencing that Williams had breached the plea agree-
ment by not disclosing that crime.
  The judge rejected Gooden’s argument that he had
diminished capacity, noting that the psychological evalua-
tion concluded that he did not have a mental defect. The
judge also noted that diminished capacity was not
reflected by the nature of Gooden’s threats to his victims,
including his expression of a physical desire to kill his
kidnapping victim. And even if he were to conclude that
Gooden did suffer from diminished capacity, the judge
added, he would not be eligible for a reduction because
the guidelines do not provide for one when specific
deterrence is an overriding concern. See U.S.S.G. § 5K2.13.
   The government, citing the brutality of Gooden’s crimes,
the multiple times that the shotgun was brandished, and
the number of victims of his violence, sought an above-
guidelines sentence of 576 months. The judge, however,
went further and sentenced Gooden to 600 months’
imprisonment, reasoning that the crime spree, involving
armed violence, robbery, abduction, and sexual assault,
called for a longer sentence to protect society from
Gooden. The judge pointed out that a 10-year minimum
sentence would be imposed for one use of a firearm even
if it were never fired, and Gooden had brandished the
sawed-off shotgun four times, and it had been discharged
once. The judge rejected Gooden’s argument that he was
simply led by others, finding instead that Gooden was a
6                                               No. 08-3240

“full partner in a six-day crime spree.” The judge also
noted Gooden’s extensive criminal history, including
crimes that were not reflected in Gooden’s criminal
history score.
  The district judge followed up his exemplary sen-
tencing discussion with a 22-page sentencing memoran-
dum that detailed his reasons for imposing the 50-year
sentence, and referred to all of the factors in § 3553(a).
  On appeal, Gooden argues that his sentence is unreason-
able. He maintains that the district judge failed “to point
out how these crimes and the defendant’s role were not
adequately taken into consideration” by the guidelines,
and that a variance with the guidelines was not justified
with reference to 18 U.S.C. § 3553(a) and the grounds
for increases listed in U.S.S.G. § 5K2.0. He also argues
that his 50-year sentence creates an unwarranted sen-
tencing disparity with Williams’s 40-year sentence and
thus strays afoul of § 3553(a)(6).
  Sentences that are outside the guidelines range are
reasonable if they conform to the sentencing factors in
18 U.S.C. § 3553(a), United States v. Simmons, 485 F.3d 951,
953 (7th Cir. 2007), and a sentencing judge should sup-
port an above-guidelines sentence with “compelling
justifications,” United States v. Gordon, 513 F.3d 659, 666
(7th Cir. 2008). Here, the judge gave extensive justifica-
tions for imposing a 50-year sentence on Gooden. The
judge noted Gooden’s extensive criminal history, see
18 U.S.C. § 3553(a)(1), specifically pointing out that
Gooden had committed crimes shortly after being
released from prison, and concluded that Gooden was a
recalcitrant “brutal criminal” who was trying to manipu-
No. 08-3240                                               7

late the system “by relying on some sort of mental issue,”
the same way he manipulates his victims. The judge also
pointed out the need to protect society from Gooden, see
18 U.S.C. § 3553(a)(2)(C), reasoning that Gooden was an
“extraordinary danger to society” who had shown no
remorse. The judge considered the need for general
deterrence, see 18 U.S.C. § 3553(a)(2)(B), noting the impor-
tance of warning “persons like the defendant” that “they
will be removed from society for a very long period of
time if they pursue this kind of activity.”
  Gooden characterizes the district judge’s justifications
for increasing his sentence on the basis of his role in the
offense, see 18 U.S.C. § 3553(a)(1)-(2), as “conclusory.” He
argues that it was Williams, not Gooden, who put the
shotgun to the back of the woman whom he then at-
tempted to rape, and that it is unclear who injured the
truck drivers. We disagree. The judge noted that Gooden
was a full partner in Williams’s crimes, and that the
guidelines range for the firearm charge was the
statutory minimum, and did not take into considera-
tion the multiple times the shotgun was used, the fact
that it was discharged, or the overall violent nature of
the six-day crime spree.
   Gooden’s argument that his sentence is unreasonable
in comparison to Williams’s 40-year sentence is sim-
ilarly unpersuasive. See 18 U.S.C. § 3553(a)(6). We do not
view the “discrepancy between sentences of co-defendants
as a basis for challenging a sentence” and will disturb a
sentence only if it creates an unwarranted sentence dis-
parity between similar defendants nationwide. See United
States v. Omole, 523 F.3d 691, 700 (7th Cir. 2008). Gooden
8                                                No. 08-3240

does not point to any similar sentences in other cases
that would show that his sentence creates an “unjustified
difference across judges (or districts).” See United States v.
Boscarino, 437 F.3d 634, 638 (7th Cir. 2006). Moreover, as
the government points out, Williams was sentenced (by
the same judge) under the terms of a plea agreement
where the government recommended the low-end of
Williams’s 480-months to life-imprisonment range. As the
judge noted, Williams benefitted from the fact that his
involvement in the rape of the sixteen-year-old girl
was unknown at the time of his sentencing, and the gov-
ernment was unaware that Williams had breached the
terms of the plea agreement.
  Finally, Gooden argues that he was not notified of the
district court’s intention to give an above-guidelines
sentence, in violation of Federal Rule of Criminal Pro-
cedure 32(h). We have cast doubt on the continued ap-
plicability of Rule 32(h) post-Booker. See United States v.
Walker, 447 F.3d 999, 1007 (7th Cir. 2006). In any event, Rule
32(h) requires notice before a court can give an above-
guidelines sentence based on information that is not in
the presentence report, and Gooden had “full knowledge
of all the facts on which the district court relied for its
§ 3553(a) analysis” because the judge based the sentence
entirely on information in the presentence report. Id.
at 1007.
    Accordingly, we A FFIRM Gooden’s sentence.



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