United States of America v. Korry M. Armstong

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 5, 2021
Decided October 12, 2021
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 20-2774
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KORRY M. ARMSTONG,
Defendant-Appellant.
Appeal from the United States District
Court for the Central District of Illinois.
No. 19-40028-001
James E. Shadid,
Judge.
ORDER
Korry Armstrong appeals his above-guidelines sentence for unlawful possession
of a firearm. He contends that his sentence is unreasonable and that the district court
did not consider his history of mental health issues and childhood abuse. But the
district court adequately explained why an upward variance was warranted, and
Armstrong waived any argument that the court failed to address his mitigation
arguments. Accordingly, we affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

-- 1 of 4 --

No. 20-2774 Page 2
I. Background
Police tracked Armstrong to a residence in rural Illinois, where they sought to
execute several arrest warrants. When the police arrived, Armstrong pointed a handgun
at his chest and threatened to kill himself. After a three-hour standoff, he shot himself
and was rushed to a hospital. Because he had multiple prior felony convictions, his
possession of the firearm was unlawful under 18 U.S.C. § 922(g)(1). He pleaded guilty
to one count under that statute, but he did not have a plea agreement with the
government.
A probation officer calculated a range of 77 to 96 months’ imprisonment under
the Sentencing Guidelines, based on an offense level of 21 and a criminal-history score
of 32 (Category VI). The report noted more than three dozen prior criminal convictions,
many of which Armstrong committed while on probation or supervision for other
offenses. The district court adopted the officer’s findings and guidelines calculation
without objection.
The government requested the statutory maximum of 120 months’
imprisonment, contending that the guidelines range did not adequately reflect
Armstrong’s criminal history. The guidelines’ sentencing table does not account for
criminal histories as extensive as Armstrong’s, the government continued, and
Armstrong would have had the same criminal-history category (and thus the same
guidelines range) with even half as many criminal-history points. See U.S.S.G. Ch. 5,
pt. A (Sentencing Table). Counsel further highlighted several convictions for which
Armstrong received no criminal-history points, mainly because the convictions were
too old. See U.S.S.G. § 4A1.2(d)(2), (e). These included four prior firearm convictions,
and several convictions for violent offenses such as battery, all from the 1990s and early
2000s.
Armstrong, in contrast, asked for a within-guidelines sentence. As mitigating
factors, he pointed to his history of mental health issues and childhood abuse. This
argument was backed up by the presentence report, which outlined his mother’s drug
addiction, his stepmother’s physical and mental abuse of him, and his own history of
mental-health treatment and suicide attempts. He argued that an upward variance was
unnecessary because the “practical difference between 96 months and 120 months is not
very long” and the extra two years would not make “a huge difference” for his
rehabilitation.

-- 2 of 4 --

No. 20-2774 Page 3
After weighing the factors under 18 U.S.C. § 3553(a), the district court imposed a
sentence of 106 months’ imprisonment, 10 months over the top of the guidelines range.
It explained that it had considered Armstrong’s mitigation arguments, including the
information in the presentence report about his “difficult childhood” and “mental
health issues.” But it weighed those arguments against Armstrong’s “history of violence
and unbroken criminal conduct.” The court reasoned that because no previous sentence
had deterred Armstrong, and because he had demonstrated a likelihood of reoffending,
an upward variance was necessary to protect the public and deter future offenses. After
imposing its sentence, the court asked Armstrong’s counsel if it had “addressed all of
your issues that you wished in mitigation,” and counsel confirmed that it had.
II. Discussion
On appeal, Armstrong contends that (1) the district court procedurally erred
because it failed to consider his abusive childhood and history of mental health issues
or provide an explanation for an upward variance from the guidelines range; and (2) his
sentence is substantively unreasonable. Neither argument is fully developed; both are
meritless.
First, Armstrong waived any argument that the district court failed to address
his mitigation arguments when his counsel affirmatively stated that it had “addressed
all of [his] issues that [he] wished in mitigation.” See United States v. Brown, 932 F.3d
1011, 1019–20 (7th Cir. 2019) (collecting cases). And when asked during oral argument
to explain why we should consider this argument despite the waiver, counsel offered
no explanation other than that his client had directed him to raise it. But counsel should
not pursue frivolous arguments just because his client asked him to. Indeed, a lawyer
has an ethical duty to not make frivolous arguments. See McCoy v. Ct. of Appeals of Wis.,
Dist. 1, 486 U.S. 429, 438 (1988); United States v. Bullion, 466 F.3d 574, 575 (7th Cir. 2006)
(collecting cases). In any event, even if Armstrong had not waived the argument, the
district court adequately considered Armstrong’s arguments and explained its reasons
for rejecting them after weighing the relevant sentencing factors. See Gall v. United
States, 552 U.S. 38, 49–50 (2007). Armstrong’s presentence report documented more than
40 criminal offenses within the past 25 years, and the court emphasized that his
mitigation arguments were outweighed by this “unbroken” criminal record.
Second, Armstrong has not persuaded us that his sentence is substantively
unreasonable. There is no presumption that a sentence outside the guidelines range is
unreasonable. United States v. Kuczora, 910 F.3d 904, 909 (7th Cir. 2018). And as long as a

-- 3 of 4 --

No. 20-2774 Page 4
district court provides adequate justification, it has discretion to impose a sentence
above the guidelines range. Gall, 552 U.S. at 49–50. As the government pointed out at
sentencing, only a fraction of Armstrong’s prior criminal conduct factored into the
guidelines calculation. And the court adequately explained that a longer sentence was
necessary for deterrence and to protect the public because, despite Armstrong’s
extensive criminal history, no prior sentence had deterred him. See 18 U.S.C.
§ 3553(a)(2)(B), (C). The court also noted his history of “violent and unbroken conduct.”
Given these circumstances, the court did not abuse its discretion when it concluded that
an above-guidelines sentence was necessary. See United States v. Vasquez-Abarca, 946
F.3d 990, 994–95 (7th Cir. 2020) (affirming upward variance when guidelines did not
fully reflect criminal history and previous sentences had not deterred defendant).
III. Conclusion
For the above reasons, we AFFIRM the judgment of the district court.

-- 4 of 4 --