United States of America v. DeANGELO D. FOSTER

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 30, 2022*
Decided September 8, 2022
Before
DIANE S. SYKES, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 21-2807
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DeANGELO D. FOSTER,
Defendant-Appellant.
Appeal from the United States District
Court for the Central District of Illinois.
No. 21-CR-10006-001
James E. Shadid,
Judge.
O R D E R
The district judge sentenced DeAngelo Foster to 84 months’ imprisonment for
unlawfully possessing a firearm and ordered the federal sentence to run consecutive to
anticipated state sentences for multiple unrelated charges. Foster argues that the judge
did not adequately explain the partially consecutive sentence, but the explanation for
the length of the sentence also justified its consecutive nature, and so we affirm.
* We granted the parties’ joint motion to waive oral argument, and the appeal is
therefore submitted on the briefs and the record. F ED. R. A PP . P. 34(a)(2)(C), (f).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 21-2807 Page 2
In February 2021, Foster—who was on probation and had two previous felony
convictions and multiple pending state charges—drove a stolen car in a hazardous
manner, crashed it, and fled from police officers before arrest. The arresting officers
found a loaded, stolen firearm in Foster’s possession when they caught him. For this
conduct, Foster incurred more state charges (including reckless driving), and he
pleaded guilty in federal court to one count of being a felon in possession of a firearm
under 18 U.S.C. § 922(g).
After Foster’s conviction, neither side filed sentencing memoranda or objections
to the presentence investigation report, which, as relevant here, suggested concurrent
sentences for related cases in Peoria County and noted that the judge had discretion to
run the federal sentence concurrently or consecutively with the other anticipated state
sentences. At the sentencing hearing, the parties agreed that the applicable range of
imprisonment under the Sentencing Guidelines was 63 to 78 months.
Foster presented several arguments for a shorter sentence. He discussed his
young age (24 at the time of the incident), lack of education, difficult upbringing, and
mental-health struggles. He further argued that his criminal-history score of VI was
overstated because several prior offenses were nonviolent and traffic-related. Foster’s
lawyer asked for a sentence of time served, emphasizing that “the amount of time that
this Court sentences him to in light of 13 other pending cases ranging in seriousness is
not likely to have any positive impact upon him … [o]r on society.” The judge
responded that he would not consider the pending state charges because he could not
assume that sentences would be imposed in those cases. Foster then agreed that the
pending cases should not be used as “aggravation” and revised his suggested sentence
to “the low end of the Guidelines … to run concurrently with his yet-undisposed cases.”
Foster provided no additional arguments for a concurrent sentence, highlighting
instead his need for mental-health, educational, and vocational programs in prison.
The judge proceeded to weigh the factors under 18 U.S.C. § 3553(a). Starting with
Foster’s history and characteristics, the judge acknowledged that traffic violations
represented much of Foster’s criminal history, but further observed that “none of the
penalties that were imposed on those cases were sufficient to deter continued criminal
conduct.” As for the current federal offense, the judge identified several aggravating
factors: (1) Foster’s dangerous driving of a stolen vehicle; (2) the stolen handgun; and
(3) the fact that the gun had been used in a burglary and a shooting before it came into
Foster’s possession. Given those factors, and the government’s arguments for a longer
sentence up to the statutory maximum of 120 months, the judge rejected Foster’s

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No. 21-2807 Page 3
argument that a longer sentence would not have a positive impact on him or on society.
Instead, he decided that a slight upward variance from the Guidelines was warranted
and selected a sentence of 84 months’ imprisonment and 3 years’ supervised release. He
explained that this sentence would be sufficient but not greater than necessary to
further the purposes of federal sentencing.
Immediately after, the judge ran through the pending state cases and said that
Foster would serve his federal sentence consecutively with state sentences for unrelated
offenses but concurrent to any future state sentence for the same conduct. Finally, as
Foster requested, the judge recommended a facility that would allow him to participate
in mental-health, substance-abuse, vocational, and educational programs.
On appeal, Foster argues that the judge erred by not explaining the partially
consecutive sentence. District judges have discretion to decide whether a federal
sentence should run consecutively or concurrently with an anticipated state sentence.
Setser v. United States, 566 U.S. 231, 244 (2012) (discussing 18 U.S.C. § 3584(a)). In making
this decision, they must consider factors in 18 U.S.C. § 3553(a), respond to the
defendant’s principal mitigation arguments, and explain the choice enough to enable
meaningful appellate review. See 18 U.S.C. § 3584(b); United States v. Nania, 724 F.3d
824, 838 (7th Cir. 2013). We apply de novo review to assertions of procedural errors,
such as omitting these steps. United States v. Sandidge, 784 F.3d 1055, 1065 (7th Cir. 2015).
The record shows no procedural error because the judge’s analysis of Foster’s
mitigation arguments and the statutory sentencing factors applied to the sentence’s
length as well as its partially consecutive nature. Judges are not required to provide a
“second full explanation” of the § 3553(a) factors to justify a consecutive sentence.
United States v. Sanchez, 814 F.3d 844, 849 (7th Cir. 2016). Rather, the explanations for the
length of the sentence can carry over to the consecutive-versus-concurrent question if
the judge so intends. See Sandidge, 784 F.3d at 1066. Here, the judge rejected Foster’s
argument that a longer sentence would have no positive impact when he imposed an
above-guidelines sentence. No separate explanation was needed for simultaneously
rejecting the passing request for a concurrent sentence, which also would have reduced
Foster’s overall time in prison. See id. The timing further shows that the judge’s
explanation applied broadly; he said the term of imprisonment would run
consecutively just after announcing its overall length. See id. (announcing length and
consecutive run in same sentence).
Finally, Foster argues that United States v. Jackson, 546 F.3d 465 (7th Cir. 2008),
requires remand when a judge does not expressly justify a consecutive sentence. But the

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No. 21-2807 Page 4
court in Jackson remanded because the judge did not address a principal mitigation
argument in favor of a concurrent sentence. See id. at 470–72. In contrast, Foster
provided no arguments for a concurrent sentence beyond those he raised in support of
a shorter sentence generally. See Sandidge, 784 F.3d at 1066. Indeed, the suggestion of
fully concurrent sentences was conclusory enough not to warrant much response; there
were no written arguments and only counsel’s single request for concurrent sentences.
See United States v. Kappes, 782 F.3d 828, 846–47 (7th Cir. 2015) (a single, passing request
for a shorter term of supervised release is not a principal argument requiring discussion
by the sentencing judge). Although we do not suggest that Foster waived the argument,
the judge reasonably focused on the overall length of the sentence, just as Foster did.
AFFIRMED

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