UNITED STATES of America, Plaintiff-Appellee, v. Richard TURNER, Defendant-Appellant.

No. 08-2413.

Richard Turner was a drug dealer operating in Chicago Heights, Illinois. He engaged in two drug sales in 2004 that formed the basis of his subsequent indictment, conviction, and sentence.

The first occurred on September 30, when, in exchange for $800, Turner sold approximately 25.4 grams of crack cocaine to a government informant. The second sale was on October 7, when Turner sold the same individual approximately 26.4 grams of crack cocaine, again for $800. Combined, Turner sold a total of slightly less than fifty-two grams of crack cocaine to the government informant.

On May 16, 2007, a federal grand jury returned a two-count indictment charging Turner with knowingly and intentionally distributing five grams or more of a mixture or substance containing crack cocaine, in violation of 21 U.S.C. § 841(a)(1).

On January 10, 2008, Turner pled guilty to Count One of the indictment pursuant to a written plea agreement and admitted the facts contained in Count Two. The district court later sentenced Turner to 136 months' imprisonment and five years' supervised release.

On appeal, Turner contends that the district court erred by not considering various mitigating factors when calculating his sentence. The list of suggested errors is long but not particularly impressive. It includes poor conditions of presentencing confinement (at the Kankakee County Jail).

Our review of sentencing decisions typically proceeds in two steps. See United States v. Jackson, 547 F.3d 786, 792 (7th Cir.2008). First, we ensure that the district court did not commit any "significant procedural error," examples of which include failing to calculate, or improperly calculating, the applicable Guidelines range; treating the Guidelines as mandatory; or failing to consider the § 3553(a) factors. Id. Once convinced that the sentencing judge followed correct procedure, we then consider the reasonableness of the sentence. Jackson, 547 F.3d at 792.

Turner does not raise any challenges to the procedural soundness of his sentencing proceedings, nor does our review of the record reveal any procedural irregularities. Turner frames his arguments in terms of the court's failure to grant "downward departures," which one could construe as a procedural challenge, i.e., that the district court improperly calculated the applicable Guidelines range. But it is well established that after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which rendered the Sentencing Guidelines advisory, "downward departures," per se, have become obsolete. United States v. Simmons, 485 F.3d 951, 955 (7th Cir.2007) .

Thus, we construe all of Turner's arguments as challenges to the substantive reasonableness of the imposed sentence.

When, as here, the district court followed proper procedures in determining a sentence within the applicable Guidelines range, we presume that the sentence was reasonable and review only for an abuse of discretion. See Gall v. United States, 128 S.Ct. 586, 597 ("Regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of-discretion standard.")

Turner's complaints regarding the conditions of his presentencing confinement are no more successful.

Turner was housed in the Kankakee County Jail, a county correctional facility that contracts with the United States Marshals Service to house federal prisoners. Turner claims, inter alia, that he was not given nutritious food, reasonable medical care, clothing, educational classes, or sanitary conditions in which to live.

The district judge found that none of these conditions rose to a level warranting sentencing relief. We agree.

Our prior decisions make clear that conditions of presentencing confinement are not considered as part of the § 3553(a) factors. See United States v. Campos, 541 F.3d 735, 751 (7th Cir.2008). And, although we have not determined whether "extraordinarily harsh conditions of confinement" could justify a reduced sentence, Campos, 541 F.3d at 751, we need not make such a decision here.

Turner has not supported his claims of poor presentencing confinement with any evidence. See id. ("[E]ven if unduly harsh conditions could justify a lower sentence, [the defendant] has not supported his claims of his pretrial conditions with any evidence.").

And his claims are similar to those that we have previously found not to be "unusually harsh." See Ramirez-Gutierrez, 503 F.3d 643, 646 (concluding that conditions at Kankakee County Jail did not merit relief when defendant complained of lack of medical attention for a broken tooth, lived in poorly ventilated quarters, and was given inadequate opportunity to exercise).

Even if we accept Turner's claims as true, they do not rise to the "truly egregious" level that would cause us to consider whether sentencing relief could be an appropriate remedy in such circumstances. See id. (discussing two examples of what might be egregious enough to warrant consideration for sentencing relief).

We refuse to grant Turner any relief based upon his conditions of presentencing confinement.

For the foregoing reasons, we AFFIRM Turner's sentence.

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