                         NONPRECEDENTIAL DISPOSITION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 8, 2008
                                   Decided August 21, 2008

                                            Before

                              WILLIAM J. BAUER, Circuit Judge

                               JOHN L. COFFEY, Circuit Judge

                         ILANA DIAMOND ROVNER, Circuit Judge

No. 07-2697

UNITED STATES OF AMERICA,                         United States District Court for the
     Plaintiff-Appellee,                          Northern District of Indiana,
                                                  Hammond Division.
       v.
                                                  No. 06 CR 142
TYRONE FUNCHESS, also known as
JUNIOR,                                           Rudy Lozano,
     Defendant-Appellant.                           Judge.

                                          ORDER

    Tyrone Funchess pleaded guilty to distributing crack cocaine, see 21 U.S.C. § 841(a)(1), and
was sentenced to 151 months’ imprisonment. In challenging his sentence Funchess essentially
argues that the district court refused to give sufficient weight to a proposed amendment that
would have lowered his guidelines range. The record establishes, though, that the court gave
extensive consideration to Funchess’s argument. Accordingly, we affirm the judgment of the
district court.

   By the time he committed the drug offense at issue here, Funchess already had seven
juvenile convictions, ten adult misdemeanor convictions (at least two of them involving violent
No. 07-2697                                                                               Page 2


conduct), and two state felony convictions, one for aggravated battery and one for criminal
recklessness. The battery was committed on August 2, 1992, when Funchess shot Myron
Morris in the leg and then, while he was lying on the ground, in the back. An arrest warrant
was issued for Funchess on August 5, 1992. That warrant was still outstanding a few weeks
later on August 31 when Funchess drove past Morris who was standing in a crowd and tried
to shoot him again. The second incident gave rise to the conviction for criminal recklessness.
Funchess was sentenced for both crimes on the same day.

    During the sentencing proceedings for this drug offense in the summer of 2007, defense
counsel acknowledged that the two felony convictions would count separately under the
existing guidelines and would thus qualify Funchess as a career offender, see U.S.S.G.
§§ 4A1.2(a)(2), 4B1.1(a), 4B1.2(a), but counsel argued that proposed Amendment 709 (which
took effect last November) would result in the convictions counting as a single offense.1 The
amendment, therefore, would have taken Funchess out of the career-offender category, and
reduced his imprisonment range (after a credit for acceptance of responsibility) from between
151 and 188 months to between 110 and 137 months. Funchess asked the district court to apply
the proposed amendment, or postpone his sentencing until after it had taken effect, or at least
consider the amendment in applying the factors under 18 U.S.C. § 3553(a). (Had the district
court chosen to delay sentencing until after Amendment 709 became effective on November 1,
2007, Funchess also would have benefitted from the lower imprisonment ranges for certain
crack offenses that took effect that day, see U.S.S.G. App. C, Supp. 2007, amend. 706, pp. 226-30,
and his imprisonment range would have dropped even further to 92 to 115 months.) The
government argued that there was no legal basis for delaying Funchess’s sentencing, that
Congress might still reject the proposed amendment before it took effect, and that a sentence
in the new range would in any event underrepresent Funchess’s criminal history. The district
court declined to apply Amendment 709 or to postpone sentencing until it took effect. Instead,




       1
          Amendment 709 revised U.S.S.G. § 4A1.2(a)(2), which controls whether prior
convictions are “counted separately” under U.S.S.G. § 4B1.2(c) and, in turn, whether a
defendant is a “career offender” under U.S.S.G. § 4B1.1. See U.S.S.G. App. C, Supp. 2007,
amend. 709, pp. 235-36. Prior to the amendment, § 4A1.2(a)(2) and its commentary provided
that prior offenses were to be counted separately unless they “(A) occurred on the same
occasion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial
or sentencing.” U.S.S.G. § 4A1.2 cmt. n.3 (2006). The revised language provides that prior
sentences are counted separately unless they were charged together in the same document or
were sentenced on the same day. U.S.S.G. § 4A1.2(a)(2) (2007). Additionally, both versions
state that offenses separated by an “intervening arrest” are always counted separately.
No. 07-2697                                                                              Page 3


the court stated that it would apply the 2006 guidelines, since Congress might disapprove of
the proposed amendment.

    The district court concluded that, under the 2006 version of § 4A1.2(a)(2), Funchess was a
career offender. The court reasoned that the intervening arrest warrant—though not
technically an “intervening arrest”—was still enough to make the two assaults on Morris count
separately, and, if it wasn’t, then the crimes were still unrelated because they occurred on
different days, were not part of the same scheme or plan, and were not consolidated for
sentencing even though both sentencings took place on the same day. The court then stated
that it had “calculated and looked at the different aspects of the proposals” from Funchess and
had concluded that, if Amendment 709 had been applicable, the court “probably would listen
to the government’s recommendation regarding the underrepresentation of the criminal
history in this case.” The court stated it had to consider “what would be a deterrent,” its “duty
toward society,” and “getting [Funchess] back to society as an asset.” At the same time, the
court acknowledged Funchess’s extensive criminal history and noted that his crime, dealing
crack cocaine, was especially serious. The court concluded that a sentence within the range
provided by the 2006 guidelines was fair and reasonable, but added that, in order “to take into
account some of the changes, I have come to accept that you should get a sentence at the
minimum of those Guidelines.” The court then sentenced Funchess to 151 months’
imprisonment.

    Funchess contends that the district court did not “meaningfully address” his argument that
Amendment 709 should have been taken into account in applying the § 3553(a) factors, and
thus, he says, his prison sentence is unreasonable. The district court, he explains, “placed
undue emphasis on the guideline determination to the erroneous exclusion of the overall
purpose of sentencing” under § 3553(a) and, in effect, “presumed” that a prison term within
the 2006 guidelines range was the appropriate sentence. Finally, Funchess argues that he is
entitled to the benefit of Amendment 709 even now, since it became effective while his direct
appeal has been pending.

   As a preliminary matter, we must address whether both of Funchess’s prior felony
convictions would have counted under the new version of § 4A1.2(a)(2). If both would have
counted, then Funchess would have been a career offender even under the 2007 guidelines,
and this appeal would be frivolous. Both the old and new versions of § 4A1.2(a)(2) provide
that prior sentences imposed for distinct offenses count separately if the crimes were separated
by an “intervening arrest.” U.S.S.G. § 4A1.2(a)(2) (2007); § 4A1.2(a)(2) cmt. n.3 (2006). There
was no intervening arrest in this case, but there was an intervening arrest warrant. The district
court reasoned that the issuance of the arrest warrant in the days between Funchess’s two
assaults on Morris showed that the offenses were separate. But the district court erred on this
No. 07-2697                                                                                  Page 4


point, because we have declined to extend the “intervening arrest” language to the mere
issuance of a warrant. See United States v. Joseph, 50 F. 3d 401, 403 (7th Cir. 1995). A defendant
who has not been deterred by an arrest between crimes is less likely to change his ways later,
and so is treated more harshly by the guidelines. See United States v. Springs, 17 F.3d 192, 195-
96 (7th Cir. 1994). But nothing suggests that Funchess was even aware of the arrest warrant,
and so there was no chance for deterrence. Consequently, under the new version of
§ 4A1.2(a)(2), the two convictions would have counted as a single offense because “the
sentences were imposed on the same day.” U.S.S.G. § 4A1.2(a)(2) (2007). The government
concedes that, had the amended guideline applied, Funchess’s 1992 convictions for aggravated
battery and criminal recklessness would have been counted together, and thus he would not
have been eligible for sentencing as a career offender.

    The district court’s belief that the arrest warrant was relevant carried over to its application
of the 2006 version of § 4A1.2(a)(2), but that mistake was harmless because the court also
identified the correct reason for counting the offenses separately. Under Application Note 3
of the prior version of § 4A1.2(a)(2), crimes were considered related if they “(A) occurred on
the same occasion, (B) were part of a single common scheme or plan, or (C) were consolidated
for trial or sentencing.” U.S.S.G. § 4A1.2 cmt. n.3 (2006). The district court found that the prior
offenses did not occur on the same occasion, were not part of a common scheme or plan, and
were not “consolidated” for sentencing even though both crimes were sentenced on the same
day. Funchess does not challenge these determinations on appeal, nor could he. See United
States v. Vallejo, 373 F.3d 855, 858-59 (7th Cir. 2004); United States v. Brown, 209 F.3d 1020, 1023-
24 (7th Cir. 2000).

    Turning to the merits of Funchess’s argument, we review sentences for reasonableness in
light of the statutory factors provided by 18 U.S.C. § 3553(a). Gall v. United States, 128 S.Ct. 586,
597 (2007); United States v. Padilla, 520 F.3d 766, 771 (7th Cir. 2008). We presume that a sentence
within a correctly calculated guidelines range is reasonable. Rita v. United States, 127 S.Ct.
2456, 2462 (2007); United States v. Nitch, 477 F.3d 933, 937 (7th Cir. 2007). But that presumption
is an appellate presumption only, and it is error for a district court to presume that a guidelines
sentence is the appropriate sentence. See Gall, 128 S.Ct. at 596-97; United States v. Ross, 501 F.3d
851, 853 (7th Cir. 2007). In considering what would be a reasonable sentence, the district court
must give “meaningful consideration” to nonfrivolous sentencing arguments. See, e.g., United
States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005).

    Funchess’s argument that the district court did not meaningfully consider Amendment 709
is not supported by the record. The court did not go into great detail when it gave its reasons
for its sentence, but it did give meaningful consideration to Funchess’s arguments, and it did
not say anything to suggest that it was presuming a term within the guidelines range to be the
No. 07-2697                                                                                  Page 5


appropriate sentence. The district court twice entertained oral arguments on the relevance of
Amendment 709 and even interrupted the sentencing hearing and ordered a two-week
continuance so that the parties could brief the question. Only after all of this did the court
announce that it would not apply the pending amendment and that, if it had decided
otherwise, it probably would conclude that the imprisonment range under the new version of
§ 4A1.2(a)(2) would underrepresent Funchess’s criminal history. Moreover, even then the
court gave some weight to Amendment 709 in deciding what sentence would be fair and
reasonable, and selected a term at the bottom of the range “to take into account some of the
changes” in the guidelines. Funchess, of course, would have liked the district court to give
Amendment 709 more weight; indeed, what he’s really arguing is that any sentence imposed
without giving it full effect would have been unreasonable. But district courts have wide
latitude in assigning the relative weight of factors considered under § 3553(a), and nothing in
the record suggests that the district court stepped outside its bounds. See United States v.
Johnson, 471 F.3d 764, 766 (7th Cir. 2006). And though it is always possible to say more, a
sentencing court is not required to give as much explanation when it sentences within the
guidelines as when it sentences outside them. See United States v. Wachowiak, 496 F.3d 744, 748
(7th Cir. 2007); United States v. Laufle, 433 F.3d 981, 987 (7th Cir. 2006).

    The Sentencing Commission’s reason for adopting Amendment 709 supports the district
court’s exercise of discretion. Funchess has not shown the change to § 4A1.2(a)(2) was
motivated by a concern that too few prior convictions were being counted as “related.” Rather,
the Commission stated that the related-case rules were “too complex and lead to confusion,“
and that the old version of the guideline was generating a significant amount of litigation and
even circuit splits. See U.S.S.G. App. C, Supp. 2007, amend. 709, p.238. If the district court had
sentenced Funchess under a guideline that the Commission was replacing for a reason other
than administrative convenience, maybe the district court’s reasoning would not be enough.
But the court merely sentenced Funchess—who shot a man and then in the same month tried
to shoot him again—without giving him the benefit of a change made for judicial convenience.
In that context, the district court adequately justified its sentence within the guidelines in effect
at the time of sentencing.

   Finally, Funchess argues that he should be resentenced using § 4A.1.2(a)(2) because
Amendment 709 became effective while his case has been on direct appeal. He reasons that
appellate courts apply the law in effect at the time of direct appeal, and that United States v.
Booker, 543 U.S. 220 (2005), did away with limits on the retroactivity of the guidelines. This
argument is frivolous. The guidelines in effect at the time of sentencing are to be applied.
U.S.S.G. § 1B1.11(a); see also United States v. Demaree, 459 F.3d 791, 794-95 (7th Cir. 2006).
Furthermore, 18 U.S.C. § 3742(g)(1) provides that if we were to remand the case, the guidelines
No. 07-2697                                                                             Page 6


in effect at the time of the original sentencing would still apply. United States v. Romero, 528
F.3d 980, 981 (7th Cir. 2008); United States v. Sriram, 482 F.3d 956, 961 (7th Cir. 2007).

   Accordingly, the judgment of the district court is AFFIRMED.
