UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JERRY J. JONES, Defendant-Appellant.
No. 19-1644
United States Court of Appeals For the Seventh Circuit
Decided June 19, 2020
ARGUED JUNE 10, 2020
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division.
No. 97-cr-00118 — Richard L. Young, Judge.
Before FLAUM, BARRETT, and ST. EVE, Circuit Judges.
I. Background
In September 1997, Jerry Jones and two others robbed a bank in central Indiana. As part of their plan, they first confronted a UPS driver at gunpoint, took his uniform, and hijacked his truck. The men then restrained the driver with plastic handcuffs in the back of the truck.
Upon arriving at the bank, one of them posed as the UPS driver and pretended to make a delivery to distract the bank manager from the heist. The supposed UPS driver then tied the manager‘s ankles tоgether. Meanwhile, Jones brandished his firearm, ordered everyone in the bank to the floor, and demanded that someone open the vault. Jones emptied the vault, and with his gun drawn, took additional cash from a teller station. The thieves loaded over $105,000 into their getaway car and sped off, leaving the real UPS driver handcuffed in the back of the truck.
Witnesses soon spotted the
That evening, the daughter entered her bedroom and noticed her closet door was ajar. When she opened it, a man she did not know pointed a gun in her face. The daughter screamed and her parents ran toward her. Before they could reach her, the two other men grabbed them, and at gunpoint, ordered them to sit down in the hallway. The intruders eventually corralled the entire family into the daughter‘s bedroom and tied them up. The three men then coerced the father of the family to drive them back to Indianapolis. Jones told the mother that, if she called the police, he and the others would kill her husband.
The father drоve the robbers in his pickup truck to Indianapolis. Jones rode in the cab of the car, training his gun on the father and directing him where to go. The other two rode in the truck‘s covered bed. After letting all three out, the father returned home to his wife and daughter. Tragically, the memories of these events have haunted the family. The father has stated that “it goes through my mind ...
A federal grand jury indicted Jones for one count of armed bank robbery in violation of
In 2018, Jones petitioned thе district court for a writ of habeas corpus under
The government initially recommended a 480-month sentence; however, upon learning that the carjacking and robbery counts could run consecutively, the government changed its recommendation to 840 months. The government and the district court both may have mistakenly thought that this was a lower sentence than Jones originally received. As it happens, Jones‘s first sentence was 840 months.
The court next considered the relevаnt sentencing factors under
The defendant put the victims in great fear, threatened ... violence to members of the victims’ family, tied them up, pointed guns at them, shotgun -- fired the firearms in the house during one of the break-ins in the victims’ homes after the bank robbery.
Some of that statement was inaccurate. Jones did not use a shotgun, did not discharge any firearm, and broke into only one home after the robbery.
Still, the court “believe[d] the statutory maximum sentence” was appropriate. The court stressed three morе factors that bolstered its conclusion: (1) Jones “would be a risk of serious criminal activity based on his prior criminal history“; (2) Jones‘s co-defendants, “with similar records [and] similar conduct,” had received sentences of 675 months and 728 months under the
Adding the prison terms up count-by-count, the court concluded that the “total is 675 months.” That was a mathematical error. The probation officer informed the court that the total was 840 months. The court recalculated and reached the same result. In doing so, the court reiterated its “intention ... to give the statutory maximum on Counts 1, 3, аnd 5.” The court confirmed that 840 months “reflects the Court‘s intention and its discretion here.”
This timely appeal followed.
II. Discussion
Jones argues that the district court procedurally erred when it: (1) failed to justify the extent of its 450-month deviation from the Guidelines; (2) relied on inaccurate information regarding Jones‘s offense conduct; and (3) neglected to adhere to the paradigm that a sentencе must be sufficient, but not greater than necessary, to comply with the general purposes of sentencing. We review these alleged procedural errors at sentencing de novo. See, e.g., United States v. Griffith, 913 F.3d 683, 687 (7th Cir. 2019).
A. Explanation of Sentence
A district court must adequately explain its sentence, including any deviation from the Guidelines. See United States v. Ballard, 950 F.3d 434, 436–37 (7th Cir. 2020). In other words, a deviating court “must consider the extent of thе deviation from that range and satisfy [it]self that there is a compelling justification for it.” United States v. Vallone, 752 F.3d 690, 693 (7th Cir. 2014). The further a sentence deviates from the Guidelines, “the more detailed the district court‘s explanation must be.” United States v. Padilla, 520 F.3d 766, 775 (7th Cir. 2008).
In this case, the effective Guidelines range was 348–390 months and the district court sentenced Jones to 840 months in prison. That is a 450-month, or 215%, deviation from the high end of the Guidеlines range. A deviation of such magnitude is significant. See Ballard, 950 F.3d at 437 (calling a 67-month, 160% deviation “abnormally extreme“); United States v. Henshaw, 880 F.3d 392, 396 (7th Cir. 2018) (describing a 151-month, 100% deviation as “major“); United States v. Ferguson, 831 F.3d 850, 854, 855 n.2 (7th Cir. 2016) (referring to a 372-month, ~176% deviation as “unusually large” and “dramatic“); United States v. Taylor, 701 F.3d 1166, 1175 (7th Cir. 2012) (explaining that a sentence 153 months, or ~46%, above the upper end of the Guidelines range is “undoubtedly a harsh sentence“); see also United States v. Snyder, 865 F.3d 490, 502 (7th Cir. 2017) (reasoning that a court may use the full statutory range only in “an unusual case“).
A significant deviation, like this one, requires an especially compelling justification. See United States v. Lockwood, 789 F.3d 773, 781–82 (7th Cir. 2015) (stating that district courts must carefully explain significant deviations that are “multiple times above the Guidelines“). The district court did not provide the necessary analysis here. For instance, there is nothing in the record demonstrating that the district court gave “respectful consideration tо the judgment embodied in the guidelines range that [it] compute[d].” United States v. Bradley, 675 F.3d 1021, 1024 (7th Cir. 2012) (citation omitted). “[T]he court need[ed] to understand the relation between the guidelines and the ultimate sentence.” Id. at 1028 (citation and internal quotation marks omitted). There is no evidence showing that the court made that connection.
The court‘s omission of its reason(s) not to apply the Guidelines leaves unaddressed “the disparity—i.e., why this defendant deserves a significantly higher sentence than others who commit the same offense.” Lockwood, 789 F.3d at 782. A sentence close to or at “the statutory maximum creates a risk of unwarranted disparity with how similar offenders fare elsewhere.” United States v. Kirkpatrick, 589 F.3d 414, 415 (7th Cir. 2009). The Guidelines “reflect (among other things) the goal of avoiding unwarranted disparities in how different judges treat equivalent offenses and offendеrs.” Henshaw, 880 F.3d at 398 (quoting United States v. Corner, 598 F.3d 411, 416 (7th Cir. 2010) (en banc)).
Here, the district court acknowledged the need to avoid unwarranted sentence disparities, noting that Jones‘s co-defendants—“with similar records [and] similar conduct“—had received sentences of 675 months and 728 months. Notwithstanding the three defendants’ similar records and similar conduct, Jones received a sentence 165 months longer than one cо-defendant and 112 months longer than the other. The court did not explain why it singled Jones out for different treatment. Quite the contrary, it synthesized the offenders and their offenses, observing they had “similar records [and] similar conduct.” It was therefore incumbent on the court to specify what warranted Jones‘s sentence disparity. See
The court also supported its sentence by relying on the circumstances of Jones‘s offenses and his personal characteristics. The court‘s discussion of these factors spans about a page in the sentencing transcript. The court accurately characterized Jones‘s offenses as “horrific crimes of violence and threatening individuals.” Similarly, it recounted his “history as a violent predatory individual“; however, “[t]he problem with this rationale is that it provides little more than what is implicit in the instant offense.” Bradley, 675 F.3d at 1025. The district court needed to specify “the reasons why [Jones] is different from the vast majority of defendants—many of whom also have criminal histories, are dangerous, and must be incapacitated to protect society ....” Lockwood, 789 F.3d at 782.
On appeal, we presume the Guidelines are reasonable, “and it would be odd if that presumption might be undermined merely by reference to one of the two factors (offense level and, here, the defendant‘s criminal history) that the guidelines take into account in every case.” United States v. Tanner, 628 F.3d 890, 909 (7th Cir. 2010). We recently highlighted that “emphasizing the defendant‘s criminal history alone does not adequately explain” a
In this case, the critical fact that the Guidelines did not entirely account for was, admittedly, a serious one: the break-in to the farmhouse. The district court was free to conclude that that action aggravated the offenses; however; it does not appear that the district court made that determination.
Accordingly, the record here leaves us with the impression that the district court aрparently selected the statutory maximum as the correct sentence for three of the six counts of conviction. Our caselaw, though, underscores that courts should reserve the statutory maximum for “unusual case[s].” Snyder, 865 F.3d at 502. Otherwise, we “leave[ ] little room for the marginal deterrence of persons whose additional deeds are more serious ....” Kirkpatrick, 589 F.3d at 415. Thе record does not indicate one way or the other why any figure between 390 and 840 months would not be a “sufficient, but not greater than necessary” sentence for Jones.
We in no way quеstion the gravity of Jones‘s offenses and his criminal history. The Guidelines may well fail to account for the devastating effects Jones‘s crimes had on his victims. If the district court decides that the Guidelines underrepresent reality, it should so state and clarify how it uses those findings to calculate Jones‘s sentence. See United States v. Johnson, 612 F.3d 889, 897 (7th Cir. 2010). Indeed, absent a substantive reasonablеness challenge, it is not for us to say whether a Guidelines sentence is sufficient punishment or not for Jones and his convictions. It is well within the district court‘s discretion to determine whether the range is too lenient. That said, if it concludes as much, the court must explain why its sentence serves the considerations it cites. See United States v. Garcia, 754 F.3d 460, 483–84 (7th Cir. 2014).
To assist district courts in this process, we hаve pointed out that there are two ways to gauge the magnitude of a deviation from the Guidelines: (1) calculate the percentage deviation from the top of the Guidelines range to the ultimate sentence; or (2) increase the number of offense levels until arriving at an appropriate Guidelines range. See Ballard, 950 F.3d at 437–38; see also United States v. Castillo, 695 F.3d 672, 674–75 (7th Cir. 2012) (outlining these two mеthods to assess propriety of any degree of deviation). Perhaps the district court will choose to apply one or both approaches on remand. For now, it is enough for us to resolve this dispute to say that the district court procedurally erred by not providing an adequate explanation for its upward deviation from the Guidelines.
B. Remaining Issues
Because the district court‘s sentencing explanation is lacking, we need not reach Jones‘s additional arguments on appeal. Nonetheless, we add two final observations that will hopefully streamline matters on remand. First, we have some concern about the district court‘s misstatement at sentencing that Jones wielded a shotgun, fired it (or some other gun), and broke into multiple homes following the bank robbery. Standing alone, and particularly in this case, such an error might be harmless. But considered in context, it reinforces the need for remand because the court stated that it “believe[d] the statutory maximum sentence will reflect the seriousness of the offense.” Even if the court based its deviation only in part on its misapprehension of the nature and circumstances of the offense,
Second, and as an alternative ground for affirmance, the government contends that the district court erred when it held that the First Step Act applied to Jones. We agree with Jones, however, that what the government is asking for is not affirmance but the аlternative relief of vacatur and remand to enlarge Jones‘s sentence. This is an inappropriate request in a response brief; the government needed to maintain its own cross-appeal, and by dismissing the one it filed, “it has accepted the district court‘s opinion as the law of the case.” United States v. One 1987 Mercedes Benz Roadster 560 SEC, VIN WDBBA48D3HA064462, 2 F.3d 241, 243 (7th Cir. 1993); see also United States v. Taylor, 777 F.3d 434, 444 (7th Cir. 2015) (concluding that, in the absence of а cross-appeal from the government, we cannot review an adverse ruling to it that has the potential to extend the defendant‘s sentence beyond what the judgment prescribes). Having done so, the government placed the First Step Act question outside the scope of our remand order. See, e.g., United States v. Husband, 312 F.3d 247, 251 n.3 (7th Cir. 2002) (recognizing that the law-of-the-case doctrine confines the scope of a remand).
III. Conclusion
For the reasons stated above, we VACATE the district court‘s judgment and REMAND FOR RESENTENCING.