                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 12-3326

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

R ONALD T OWNSEND ,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
               No. 11 CR 488—John F. Grady, Judge.



        A RGUED JULY 9, 2013—D ECIDED JULY 26, 2013




 Before E ASTERBROOK, Chief Judge, and P OSNER and
W ILLIAMS, Circuit Judges.
  E ASTERBROOK, Chief Judge. At age 43 Ronald Townsend
robbed a bank. Thirty-six days later he robbed a payday
lender. The first time he put the victims in fear by pre-
tending to have a gun and threatening to use it. The
second time he carried a gun. He pleaded guilty to vio-
lating 18 U.S.C. §2113(a) and was sentenced to 41 months’
imprisonment, the low end of the range calculated
under the Sentencing Guidelines.
2                                             No. 12-3326

  Townsend asked the district judge to give him a
sentence below the range. His argument was based on
U.S.S.G. §5K2.20, which says that a judge may “depart”
from a range when the defendant’s behavior was aber-
rant. Townsend had lived a law-abiding life until he got
into financial distress that he wanted to hide from his
family. He acknowledged that coping with reverses by
robbing banks was a terrible choice but asked the judge to
deem his crimes aberrant. The judge said that he under-
stood why Townsend had committed the crimes but
observed that it is essential to enforce the criminal law
in order to deter people from dealing with economic
hardship by turning to bank robbery. The judge
explained that §5K2.20 is limited to persons who
commit solitary crimes; Townsend robbed two financial
institutions, more than a month apart, and so was
outside the escape hatch created by §5K2.20.
   Policy statement 5K2.20(b) says that departure may
be appropriate for a defendant who “committed a single
criminal occurrence or single criminal transaction” that
was a “marked deviation” from his prior law-abiding
life. Townsend wants us to read “single criminal transac-
tion” as equivalent to “multiple crimes with a single
motivation.” That would be pushing things, to say the
least. Application Note 2 provides that a fraudulent
scheme does not qualify, because it entails multiple
crimes—and the district judge sensibly observed that
people who conduct fraudulent schemes usually do so
with a single plan and a single motive. We held in
United States v. Hudspeth, 42 F.3d 1015 (7th Cir. 1994)
(en banc), that three robberies committed on a single day
No. 12-3326                                                  3

were on “occasions different from one another” for the
purpose of the Armed Career Criminal Act, 18 U.S.C.
§924(e)(1), because the perpetrator could have stopped
after the first crime. Robberies 36 days apart are even
harder to describe as a “single criminal transaction”.
  But we need not decide, because the answer does not
matter. Policy statement 5K2.20 deals with departures
from the Guidelines, and United States v. Booker, 543 U.S.
220 (2005), made departures obsolete. The Guidelines
are no longer binding; judges can use their own penal
philosophies. See Spears v. United States, 555 U.S. 261 (2009);
Kimbrough v. United States, 552 U.S. 85 (2007); United
States v. Corner, 598 F.3d 411 (7th Cir. 2010) (en banc).
Judges must start by correctly calculating the Sentencing
Commission’s recommended range. See Rita v. United
States, 551 U.S. 338, 351 (2007); Gall v. United States,
552 U.S. 38, 49 (2007). This benchmark helps to prevent
unwarranted disparities. 18 U.S.C. §3553(a)(6). Once the
range has been determined, the sentence depends on
the judge’s reasonable application of the criteria in
§3553(a), not on the Sentencing Commission’s recom-
mendations about departures in the pre-Booker world.
See United States v. Reyes-Medina, 683 F.3d 837, 841–42
(7th Cir. 2012); United States v. Moreno-Padilla, 602 F.3d 802,
811 (7th Cir. 2010); United States v. Vaughn, 433 F.3d 917,
923–24 (7th Cir. 2006). See also, e.g., United States v.
Diosdado-Star, 630 F.3d 359, 364–66 (4th Cir. 2011); United
States v. Gutierrez, 635 F.3d 148, 153 (5th Cir. 2011). There
is no point spending time on the fine details of the out-
dated rules limiting departures.
4                                               No. 12-3326

  We can imagine situations in which a judicial error
related to one of the policy statements in the §5K2 range
would be a ground of reversal after Booker. There would
be a problem, for example, if a district judge thought
that, because a defendant does not qualify for a
departure under a policy statement, the judge is for-
bidden to consider that circumstance. That would treat a
policy statement as mandatory, in violation of Booker
and later decisions such as Spears and Corner.
  Similarly there would be a problem if the judge
refused to entertain an argument based on one of the
Commission’s policy statements. Many of these elaborate
on considerations pertinent to application of §3553(a). A
district judge must listen to the defendant’s position
and explain, if he disagrees with it, why a serious argu-
ment has been rejected. See, e.g., United States v. Grigsby,
692 F.3d 778 (7th Cir. 2012) (distinguishing serious from
routine or boilerplate arguments). That a defendant’s
argument rests on a policy statement does not mean
that a judge can ignore it.
  There would also be a problem if the judge believed
that the grounds of departure in Chapter 5 exhaust the
circumstances potentially relevant to variance from the
Guidelines; that would violate Booker’s holding that
§3553(a), and not the Guidelines, supplies the legally
controlling list of considerations.
  Townsend does not contend that the district judge
made any of these blunders. His sole contention is that
the judge misunderstood the meaning of “single
criminal transaction” in §5K2.20.
No. 12-3326                                             5

  The sentencing transcript shows that the judge gave
thoughtful consideration not only to §5K2.20 but also to
the possibility, independent of §5K2.20, that Townsend’s
crimes were aberrational. The judge remarked on
Townsend’s “lifetime of rectitude and hard work, devo-
tion to family and a course of conduct that can really
only be described as exemplary.” The judge thought
deterrence of others to be the most important of the
criteria in §3553(a), a permissible assessment, and stated
that he selected the low end of the range because “I think
[this] will take account of the previous law-abiding life
of the defendant”. The district judge’s sentence was
reasonable and his approach free from legal error.
                                                A FFIRMED




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