                            NONPRECEDENTIAL DISPOSITION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 March 3, 2010
                                     Decided March 18, 2010

                                              Before

                           FRANK H. EASTERBROOK, Chief Judge

                           DANIEL A. MANION, Circuit Judge

                           TERENCE T. EVANS, Circuit Judge

No. 09-3185

UNITED STATES OF AMERICA,                              Appeal from the United States District
     Plaintiff-Appellee,                               Court for the Eastern District of Wisconsin.

       v.                                              No. 08-Cr-188

ALLEN CHARLES HELTON,                                  Rudolph T. Randa,
     Defendant-Appellant.                              Judge.


                                            ORDER

         Allen Helton pleaded guilty to conspiring to transport stolen motor vehicles in interstate
commerce. The advisory guidelines range, which is not challenged on appeal (Helton, however,
did argue for a lower range in the district court), called for a sentence of 30 to 37 months. The
district court, relying primarily on Helton’s atrocious criminal record, moved beyond the top of
the advisory range and imposed the statutory maximum sentence of 60 months. On appeal
Helton argues that the sentence was unreasonable and that the court failed to explain why it was
imposed.

         The defendant and his brothers, Danny and Albert Helton, were charged with conspiring
together and with unnamed others to transport stolen vehicles from Wisconsin to Illinois. The
single conspiracy count alleges among other overt acts that the defendant and Danny stole two
all-terrain vehicles (“ATVs”) from a Wisconsin retailer in September 2007 and sold them in
No. 09-3185                                                                                 Page 2


Illinois. In October 2007, the indictment continues, the defendant and Danny stole three more
ATVs and took them to Illinois, where they were sold. The indictment does not mention the
defendant in connection with the remaining vehicle thefts: Danny and Albert are accused of
stealing a motorcycle in July and a sixth ATV in November 2007, both of which Danny sold in
Illinois.

         The written factual basis incorporated into the defendant’s plea agreement states that
Danny and other coconspirators stole the two ATVs in September and transported them to
Illinois. The defendant followed behind in another vehicle and, once in Illinois, sold one of
those ATVs for approximately $5,500 and shared in the proceeds. The factual basis also states
that members of the conspiracy stole and sold the other four ATVs and the motorcycle, but the
defendant’s name is not specifically linked with those thefts.

        The probation officer calculated a total offense level of 12, reflecting a base offense
level of 6, see U.S.S.G. § 2B1.1(a)(2), a 6-level increase for the loss amount of $33,614, see id.
§ 2B1.1(b)(1)(D), a 2-level increase because the offense involved an organized scheme to steal
vehicles, see id. § 2B1.1(b)(12)(A), and a 2-level decrease for acceptance of responsibility, see
id. § 3E1.1(a). Although the probation officer counted 20 criminal-history points, the parties
apparently agreed that 19 was the correct figure. Either total was well above the 13 points
needed to place the defendant in criminal-history Category VI.

         The defendant raised three objections to the presentence report, each of which the district
court rejected. The defendant first argued that he should be accountable only for the $16,253
loss attributed to his conduct in September, which would have decreased his offense level by 2.
The court agreed with the probation officer, however, and found that all of the vehicle thefts
were part of the conspirators’ “jointly undertaken criminal activity.” The defendant also
disputed that he was part of an organized scheme to steal vehicles, but the court ruled that the 2-
level increase applied because the defendant was accountable for the others’ conduct as well as
his own. Finally, the defendant argued that he was a lesser participant in the criminal activity
and deserved a downward adjustment under U.S.S.G. § 3B1.2. But the court perceived no
difference between the defendant and other participants and adopted the analysis of the probation
officer, who reasoned that the defendant knew the scope and structure of the plan and the
activities of others involved and was not “substantially less culpable” than the others. The court
thus accepted the probation officer’s calculations, which yielded an imprisonment range of 30 to
37 months.

        The government recommended a sentence of 37 months. The prosecutor noted that the
defendant had 21 convictions--ncluding 10 for theft or conversion, one for burglary, and another
for receipt of stolen motor vehicles–which placed him in Category VI by a wide margin, even
though 12 of those convictions were too old to count. The government also argued that the
defendant had received significant sentences for some of his prior convictions and that a lighter
sentence in this case thus would be unlikely to have a deterrent effect.
No. 09-3185                                                                                   Page 3


         The defendant made his case for a sentence significantly less than 30 months, or at least
at the low end of the range. He contended that his role was not as serious as Danny’s and that
he benefitted little from the crime. The defendant asserted that he did not recruit people in
Wisconsin to help the brothers, as Danny had, and that his primary role was to assist Danny.
(The district court had already sentenced Danny to 51 months--after a credit of 9 months for state
time--despite the government’s recommendation of 37 months. The court had emphasized
Danny’s lengthy criminal history, manifested in 19 criminal-history points.) Ultimately, the
defendant acknowledged that his criminal record looked bad but argued that a below-guidelines
sentence was appropriate, primarily because his “actual participation” was less than that of other
people involved, including his brothers.

        The district court disagreed, putting a heavy emphasis on the defendant’s history and
characteristics, see 18 U.S.C. § 3553(a)(1), and on his criminal record specifically. The
defendant had been in constant contact with the law and had committed several crimes soon after
his release for other offenses. The defendant’s record, according to the court, established that he
was a menace to society. The court explained:

       I noticed on some of these earlier things back in Tennessee--was it Tennessee?
       No, it was Indiana where you were shoplifting from the Wal-Marts. Then you
       were shoplifting from Meijer’s. And the disposition there said a fine, a suspended
       sentence, and then with the admonition from the Judge that you don’t show up at
       Wal-Mart anymore. You don’t show up at Meijer’s anymore. I mean, that Judge
       is smoking something when he looks at a record like that and says now don’t go
       near that store again. Because it’s my record that people who commit burglaries,
       people who lift ATVs, people who shoplift--if you see one of those on a person’s
       record, they’ve done at least 20 of them. That they haven’t been caught at. This
       record is just the tip of the iceberg, which reflects to me that you are a menace to
       society. Unless you change your ways.

         The defendant’s record, the district court concluded, justified a sentence above the
guidelines range. In explaining that decision, the court remarked that the defendant--who was 36
at the time of sentencing--had accumulated many more criminal-history points than necessary to
be in Category VI: “[The prosecutor] has pointed out that you’re 150 percent above the points
necessary to meet the highest criminal history on the sentencing guidelines.” The court also
observed that the defendant had not been employed, had drug and alcohol problems, and had
“continual contacts with law enforcement, in multiple jurisdictions.” The court concluded that it
was necessary to do “the same thing that I did with Danny” and sentenced the defendant to 60
months.

       When reviewing sentences, we first examine whether the district court committed
procedural error and then consider whether the sentence is substantively reasonable. Gall v.
United States, 552 U.S. 38, 51 (2007); United States v. Are, 590 F.3d 499, 530 (7th Cir. 2009).
No. 09-3185                                                                                 Page 4


We review sentences--even those outside the guidelines range--for an abuse of discretion. Gall,
552 U.S. at 51; Are, 590 F.3d at 530.

        The defendant argues that the district court erred by not adequately explaining why the
statutory-maximum sentence was necessary and not providing an incremental analysis of its
decision to impose a term above the guidelines range. Although incrementally linking
departures from the guidelines range to the structure of the guidelines was required when the
guidelines were mandatory, see United States v. Cross, 289 F.3d 476, 478 (7th Cir. 2002), it is
not now that the guidelines are advisory. It is enough if a court uses the guidelines as a
benchmark and then explains why its sentence is appropriate under 18 U.S.C. § 3553(a). See
United States v. Bartlett, 567 F.3d 901, 909 (7th Cir. 2009).

        In this case, the district court examined the nature and circumstances of the offense, see
18 U.S.C. § 3553(a)(1), noting the financial impact the crime had on the retailer from whom
several ATVs were stolen and the personal impact on an individual victim. The court then
extensively discussed the defendant’s history and characteristics. See 18 U.S.C. § 3553(a)(1).
In the course of that discussion, the court remarked on the defendant’s continual troubles with
the law, noting that on several occasions he committed crimes soon after serving time for other
crimes, and that he presented a high risk of recidivism. The court also criticized as too short the
amount of time the defendant had spent in prison for some of his past crimes and specifically
mentioned the deterrent effect that a prison term would have. See 18 U.S.C. § 3553(a)(2). The
court’s thorough application of the statutory factors provided a sufficient explanation of the
sentence and a compelling justification for its decision to go above the guidelines range. See
United States v. Abbas, 560 F.3d 660, 668 (7th Cir. 2009).

        The defendant also argues that his prison sentence is unreasonable because it ignores
the consideration he was due for pleading guilty, which spared the government a trial, and for
accepting responsibility, which earned him a 2-level decrease in his offense level. We have
declined to rule that a maximum sentence is per se unreasonable when a defendant has accepted
responsibility. See United States v. LePage, 477 F.3d 485, 491-92 (7th Cir. 2007). The
defendant distinguishes LePage, in which the statutory-maximum sentence imposed was within
the guidelines range and thus presumed reasonable. But we do not presume that a sentence is
unreasonable merely because it falls outside the guidelines range, and given the defendant’s
criminal history, the district court reasonably determined that the maximum sentence was
necessary. See United States v. Jackson, 576 F.3d 465, 470 (7th Cir. 2009). It was not an abuse
of discretion to conclude that, in spite of the defendant’s acceptance of responsibility, the
sentencing factors on balance warranted a term of 60 months. Cf. LePage, 477 F.3d at 491-92
(affirming sentence when district court believed sentence above statutory limit would have been
appropriate, defendant benefitted from cooperation with authorities and from operation of
statutory limit, but benefits were offset by “numerous factors that counseled a higher sentence”).

         Two of the defendant’s other arguments stem from his contention that he played a lesser
role in the conspiracy, particularly in relation to Danny. The defendant argues that the district
No. 09-3185                                                                                  Page 5


court erred in finding no difference in their roles, asserting that he was not implicated in every
theft and that, unlike Danny, he did not recruit people in Wisconsin to assist in the scheme.
Although the record does suggest that Danny was the central figure in the conspiracy, both
Danny and the defendant pleaded guilty to participating in the same conspiracy, and thus both
could be held liable for reasonably foreseeable crimes committed by other members in
furtherance of the conspiracy. See United States v. Colon, 549 F.3d 565, 572 (7th Cir. 2008);
United States v. Hach, 162 F.3d 937, 951 (7th Cir. 1998).

        The defendant’s related argument--that the district court violated its duty under
§ 3553(a)(6) to avoid unwarranted similarities in sentences for dissimilar defendants--is also
unavailing. Danny and the defendant were not dissimilar. In addition to sharing accountability
for the conspiracy, each had 19 criminal-history points, and the court observed at their respective
sentencing hearings that they had no education, no significant employment history, and problems
with drugs and alcohol. Giving 60-month sentences to both1 of them was reasonable. Cf. United
States v. Statham, 581 F.3d 548, 556 (7th Cir. 2009) (holding that imposing different sentences
on members of conspiracy who were not similarly situated was not unreasonable).

       Finally, the defendant argues that the district court committed “procedural error” by
erroneously finding that (1) his 19 criminal-history points were “150 percent above” the 13
needed for placement in Category VI, when in fact 19 points is only about 50 percent above the
requirement; and (2) he committed 20 unpunished property crimes for each conviction.

        The argument is frivolous. It is clear that the district court simply misspoke while
emphasizing the government’s observation that the defendant’s point total was “more than 150
percent of the total points necessary” for Category VI. As for the second “finding,” the court did
not say that the defendant committed 20 other crimes for each conviction on his record. Instead,
the court said that, in the court’s experience, a person with one theft conviction on his record
typically has committed at least 20 others thefts. Not everything a sentencing judge says can be
labeled a factual finding; much of what is said “consists of observations and assessments that
form the basis of the judge’s consideration” of the sentencing factors in § 3553(a). United States
v. Orozco-Vasquez, 469 F.3d 1101, 1107 (7th Cir. 2006). The court made the statement here as
it expressed its view that the defendant’s past sentences had been too light to deter him from
crime, and that he is a menace to society. The remark reflects consideration of the defendant’s
characteristics, see § 3553(a)(1), and the need to impose a proper sentence and protect the public
from him, see § 3553(a)(2). It is not a factual finding. See Orozco-Vasquez, 469 F.3d at 1107.

       Accordingly, we AFFIRM the district court’s judgment.




       1
         Again, Danny got a 51-month sentence only after the court gave him a 9-month credit
for some state time.
