                             NONPRECEDENTIAL DISPOSITION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 May 15, 2019
                                   Decided May 16, 2019



                                           Before

                           DIANE P. WOOD, Chief Judge

                           FRANK H. EASTERBROOK, Circuit Judge

                           DAVID F. HAMILTON, Circuit Judge



Nos. 18-1024 & 18-1089                                       Appeals from the United
                                                             States District Court for the
UNITED STATES OF AMERICA,                                    Southern District of Indiana,
      Plaintiff-Appellee,
                                                             Terre Haute Division.
             v.
                                                             No. 2:15CR00019
ROBERT L. MALONE and DONTA HENDERSON,                        Jane E. Magnus-Stinson, Chief
     Defendants-Appellants.                                  Judge.


                                            Order

    For roughly three years a criminal organization imported about four pounds of pure
methamphetamine weekly into Vincennes, Indiana. The total substantially exceeded 100
kilograms, and the sentences are correspondingly high.

    Robert Malone has been sentenced to 264 months’ imprisonment for his role. His
statutory floor was 240 months under the version of 21 U.S.C. §841 then in force, and he
contends on appeal that any sentence exceeding 240 months is unreasonably high. See
Gall v. United States, 552 U.S. 38 (2007). The range recommended by the Sentencing
Guidelines, however, was 292–365 months, and we have never held that a below-range
Nos. 18-1024 & 18-1089                                                                 Page 2


sentence is illegally high. Malone insists that anything over 240 months is not “neces-
sary”, 18 U.S.C. §3553(a), to punish him and deter others similarly situated. Yet how
much deterrence is needed, and which deserts are just, are subjects committed to the
sentencing judge, subject to appellate review only to the extent needed to catch errors of
law and prevent unreasonable assessments. There’s nothing unreasonable about this
below-range sentence.

    Four times during sentencing the district judge mentioned Malone’s criminal histo-
ry, emphasizing that he committed the current crimes while on probation. Malone con-
tends that four is double counting twice over. Yet how often a judge mentions each con-
sideration reflects its importance in the judge’s estimation, not some form of multiple
counting. The sentencing judge made clear that she thought that Malone is incorrigible.
Nothing in the statute or Guidelines sets a cap on the number of times a judge may
mention a consideration she deems important to selecting the right sentence.

    Donta Henderson contends that the district judge should have given a buyer-seller
instruction drawn from §5.10(A) of this circuit’s pattern criminal jury instructions. This
instruction asks the jury to distinguish buying drugs with an intent to resell (a substan-
tive offense) from buying drugs as part of an agreement to engage in other similar
transactions (a conspiracy). This instruction is appropriate only if the evidence might
support an inference that the transactions did not imply an agreement beyond the im-
mediate sales.

   In the district court Henderson did not ask for a buyer-seller instruction. Instead he
asked the judge to modify the instruction to refer to a “buyer-deliverer” relation. The
evidence showed that Henderson was a middleman, receiving drugs from some mem-
bers of the conspiracy and passing them on to others. That is a conspiratorial relation,
see United States v. Cruse, 805 F.3d 796, 816 (7th Cir. 2015), so the district judge sensibly
declined to give the modified instruction.

   On appeal Henderson abandons his request for a “buyer-deliverer” instruction and
contends that the judge should have given a standard buyer-seller instruction. Yet he
did not ask the district judge to do so. True, he asserted that he would be prejudiced if
the judge gave such an instruction for some defendants but not others, but he did not
contend in the district court (and does not argue on appeal) that the evidence shows
him to be similarly situated to anyone who received a buyer-seller instruction. A judge
must match instructions to the evidence and the theory of defense defendant by de-
fendant; there’s no rule that all instructions in a single trial must apply to all defend-
ants.
Nos. 18-1024 & 18-1089                                                                 Page 3


    Henderson was a middleman in a conspiratorial chain of distribution, not a buyer
for retail sales. Whether or not the evidence might have been parsed to permit a buyer-
seller instruction, it does not compel a district judge to give such an instruction in the ab-
sence of an argument at trial that the conditions for giving such an instruction had been
met. Henderson stood on a demand for a “buyer-deliverer” instruction, and that re-
quest was rightly refused.

   Other arguments have been considered but do not require discussion.

                                                                                    AFFIRMED
