United States v. Terry Smith, 860 F.3d 508

Background

Terry Joe Smith, a former Putnam County deputy, was convicted of two counts under 18 U.S.C. § 242 for using excessive force against arrestees who were under control and not resisting (one punched in the face; another thrown face-first and kneed, causing injuries and incontinence).
The Sentencing Guidelines range was 33–41 months; the district court sentenced Smith to 14 months (well below the range) at initial sentencing and again at resentencing after this court vacated the first sentence for inadequate explanation.
At both sentencings the district court cited: defendant’s history/characteristics, nature and circumstances of the offense, an apparent acceptance of responsibility, anger-management treatment and family/employment disruption as bases for a downward variance; it also misstated U.S.S.G. § 5K2.1 (apparently meaning § 5K2.10).
The appellate court previously vacated the first sentence because the district court failed to give cogent reasons for such a large variance; on remand the court again gave largely the same justifications and again provided insufficient explanation.
The Seventh Circuit held that the district court procedurally erred by (1) failing to adequately explain the significant below-guidelines variance, (2) improperly relying on an unsupported application of § 5K2.10 (and misreferencing § 5K2.1), and (3) crediting purported acceptance of responsibility without record support. The sentence was vacated and remanded for full resentencing.

Issues

Issue	Government's Argument	Smith's Argument	Held
Whether the district court adequately explained and justified a large below‑guidelines sentence	Court failed to provide cogent, record‑based reasons for sentencing less than half the guideline bottom; procedural error	The below‑guidelines sentence was justified by defendant’s rehabilitation, family/employment disruption, and anger‑management needs	Vacated: court committed procedural error by not giving adequate, specific reasons for such a large variance
Whether Smith was entitled to credit for acceptance of responsibility	No — Smith denied essential elements at trial, only later purported to accept responsibility; record lacks clear acceptance	Smith now accepts responsibility and showed post‑release rehabilitation warranting leniency	Vacated: district court improperly relied on unsupported acceptance‑of‑responsibility; reduction not justified by the record
Whether the court permissibly relied on U.S.S.G. § 5K2.10 (victim provocation) or § 5K2.1 reference	No — record contains no factual basis to find victim provocation; the court misstated the guideline number and made no 5K2.10 findings	Any reference to provocation was inadvertent or could be supported by facts the court considered	Vacated: no basis in record to apply § 5K2.10 and the misreference undermines the stated justification
Whether the variance creates an unwarranted sentencing disparity / substantive unreasonableness	The large variance is substantively unreasonable and disparate given similar excessive‑force cases received higher sentences	The sentence is appropriate given rehabilitation, disruption to family/job, and short anger‑management course	Not reached on substantive reasonableness because procedural errors require remand; but court emphasized disparity concerns and need for cogent reasons if judge departs far below guidelines

Key Cases Cited

Gall v. United States, 552 U.S. 38 (2007) (district court must consider guidelines, 3553(a) factors, and adequately explain significant variances)
United States v. Booker, 543 U.S. 220 (2005) (Guidelines advisory; courts must provide reasoned sentences under 3553(a))
Kimbrough v. United States, 552 U.S. 85 (2007) (district courts may disagree with guideline policy judgments)
Pepper v. United States, 562 U.S. 476 (2011) (post‑sentencing rehabilitation may support a downward variance at resentencing)
United States v. Christian, 342 F.3d 744 (7th Cir.) (excessive‑force sentencing comparison used by district court)
United States v. Bartlett, 567 F.3d 901 (7th Cir.) (comparison of officer‑use‑of‑force sentences; cited to assess relative severity)
United States v. Warner, 792 F.3d 847 (7th Cir.) (§ 3553(c) and requirement to state reasons in court)
United States v. McLaughlin, 760 F.3d 699 (7th Cir.) (abuse‑of‑discretion standard for substantive review of sentences)
United States v. Cunningham, 429 F.3d 673 (7th Cir.) (appellate review requires district court to have actually exercised discretion)
United States v. Mendoza, 510 F.3d 749 (7th Cir.) (de novo review whether court followed Booker procedures)
United States v. DeLeon, 603 F.3d 397 (7th Cir.) (defendant bears burden to prove entitlement to acceptance‑of‑responsibility reduction)