UNITED STATES OF AMERICA, Plаintiff-Appellee, v. KOBE HENDRIX, Defendant-Appellant.
No. 21-3287
United States Court of Appeals For the Seventh Circuit
ARGUED DECEMBER 2, 2022 — DECIDED JULY 25, 2023
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:20-cr-760 — Ronald A. Guzmán, Judge.
LEE, Circuit Judge. After pleading guilty to one count of possessing a firearm as a felon in violation of
A. Offense, Indictment, and Guilty Plea
On the Fourth of July of 2020, Hendrix was selling marijuana out of his car in a busy commercial and residential arеa in Chicago. He had a loaded gun with him at the time, with a live round in the chamber. He kept it in the center console of his car, but at one point he picked it up to show to someone outside the car.
For reasons unknown, Hendrix did all of this in plain view of a police surveillance camera. He was promptly arrested, and police found the gun and $320 in cash inside his car. Hendrix also attempted to discard some marijuana while he was riding inside the squad car to the police station, which was later found.
This was not Hendrix‘s first run-in with the law or his first offense involving a firearm. In 2015, he was convicted of battery after he, along with two other assailants, punched and kicked a victim who was lying on the ground. And in 2017, he pleaded guilty to aggravated discharge of a firearm after he had walked into a public street and fired several shots at a passing vehicle. Hendrix was released on parole for this latter crime on September 13, 2019, about ten months before he was arrested for the instant offense.
By indictment dated October 27, 2020, Hendrix was charged with possessing a firearm as a felon in violation of
B. Sentencing
The district court conducted the sentencing hearing on November 30, 2021. At the hearing, the government requested a sentence within the guidelines range. In so doing, it argued that Hendrix‘s drug-trafficking activities made his firearm possession that much more dangerous. The government reasoned that guns are “tools of the drug trade,” used to protect dealers from robbery. Had someone attempted to rob Hendrix, the government argued, he would have used his firearm, endangering anyone in the surrounding area.
The government contended that the risk created by Hendrix‘s actions was particularly grave, since he was selling drugs in broad daylight, outside an open grocery store, in a well-populated commercial and residential district. The government also noted that Hendrix had committed the instant offense a mere ten months after he had been pаroled for his aggravated-discharge conviction. This short span of time, in the government‘s view, showed that Hendrix was “undeterred or unreformed” by the prior conviction and sentence. In the end, however, the government did not seek an above-guidelines sentence due to Hendrix‘s “challenging upbringing” and struggle with “mental health issues.”
Defense counsel requested a sentence of time served (approximately seventeen months) with supervised release. In his view, Hendrix‘s activities, while illegal, were substantially harmless. He noted that Hendrix had only sold “little
Hendrix‘s counsel also argued that his client was entitled to a reduced sentence due to his difficult personal history. Hendrix‘s mother was a sex worker and was often absent when he was growing up. She had had many boyfriends, who exposed Hendrix to drugs, violence, and abuse at an early age. As a result of these difficult circumstances, counsel argued, Hendrix has experienсed severe psychological problems. He has attempted suicide on three separate occasions and has been in and out of psychiatric facilities. He has also suffered from substance abuse issues, having first consumed alcohol at eight and marijuana at fourteen.
In a personal statement to the court, Hendrix added that he had been trying to better himself and learn marketable skills. He told the court that he had recently become a father and that he wanted to be there for his son since his father had not been there for him.
When stating the sеntence, the district court acknowledged the parties’ arguments and Hendrix‘s statement and stated that it had taken into account the “presentence investigation report, the submissions of the attorneys, and the defendant‘s written submission.” In explaining its sentence, the court began with Hendrix‘s mitigating factors. The court acknowledged that Hendrix had had a difficult upbringing as “one of eight children in a single-parent household,” with a mother who was only occasionally present and a father who was never around. The court noted that Hendrix‘s family
But the court found these mitigating factors to be outweighed significantly by numerous aggravating factors. It noted that, although Hendrix was only twenty-three, he had already racked up a substantial criminal history, including a prior conviction involving a firearm. The court observed that Hendrix‘s prior convictions and sentences had failed to deter him from further crime, given that he had been paroled from his most recent conviction less than a year before the instant offense.
The court also took issue with defense counsel‘s characterization of Hendrix‘s conduct as being “innocent.” “[T]here‘s nothing innocent about selling drugs on the streets of the city of Chicago,” the court stated. “Selling drugs is one of the factors which enables people like this defendant and others to purchase guns illegally[.]” Additionally, the court found it troubling that Hendrix, despite being unemployed and having “no visible means of support,” had a car and was arrested with a large amount of cash. The court inferred from this evidence that Hendrix was making a living as a drug dealer, which it found to be an additional aggravating factor.
The district court then went on at some length about the “pandemic of gun violence” in Chicago. Because these remarks form the primary grounds of Hendrix‘s appeal, we recount them in full.
Now I don‘t think I have to paint a detailed picture for anyone here of the pandemic of gun
violence that is going on in the city of Chicago. Murders by gun fire are at the highest they‘ve ever been. Victims of gun fire are at a rate higher than any other prior year. The victims most of the time, it appears, arе innocent people who include children and infants, infants in car seats, children playing in front of their homes. Bullets being fired through windows into people‘s homes while they‘re watching television. Hardly a day goes by that we don‘t see a parent or sister or a brother of someone killed by gun fire from an illegal gun, such as the one this defendant had and has previously used. Chicago is particularly vulnerable to gun violence because of the large number of weapons that find themselves on our streets. These weapons come from many different places. Over 50 perсent of the weapons recovered by the Chicago Police Department generally come from other states, states like Indiana, Missouri, Wisconsin, all of whom have very lenient gun laws.
Because of that, the number of guns on the streets of Chicago is extremely high and the amount of gun violence that follows from it is extremely high. Chicago‘s murder by gun fire rate is higher than that of New York or Los Angeles, both of which have significantly larger populations.
Even our expressways today find themselves to be venues for gun violence, drive-by shootings, so much so that the Illinois State Highway
Patrol has determined to reassign highway patrol officers from other areas in the state to Chicago and its surrounding[] areas because of the large increase in shootings that are occurring on our interstates, our expressways almost on a daily basis. The Department of Justice has seen it necessary to assign task forces, special task forces to reduce gun violence in areas like Chicago, specifically targeting Chicago as one of those areas.
The amount of harm being done to the neighborhoods of the city of Chicago and the surrounding areas, to the people who are forced to live in some of the neighborhoods, forced to get up in the morning and go to work in fear, forced to drive on expressways where shootings are occurring in fear, forced to walk their children to school through special safe routes so that they won‘t be harmed, these things can and do cause havoc with neighborhoods and can and do result in the disintegration of—degeneration—I‘m sorry—of neighborhoods as such.
Now, the guidelines are generally helpful to this court in determining the appropriate sentence in a case. But for all of the reasons I‘ve just given and have spoken about in prior sentencings, statistics that anyone can look up, it‘s apparent to me that the guidelines fail to take into account the magnitude of the need to reduce the number of illegal guns on the streets of the city of Chicago and its surrounding areas. They simply
don‘t address what‘s going on in our communities today.
Ultimately, the court, after “taking into account all the factors of the defendant‘s background, as well as his criminal history,” imposed an above-guidelines sentence of 78 months in prison.
II. ANALYSIS
A. Legal Standard and Standard of Review
Hendrix raises both procedural and substantive challenges to his sentence. These challenges are governed by different legal frameworks.
As to the first, a sentence may not stand if it was the product of a “significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [sentencing factors found at
A sentence may also be vacated if it is substantively unreasоnable, that is to say, excessively harsh. Jackson, 547 F.3d at 792. A guidelines-range sentence is presumptively reasonable, but an above-guidelines sentence is not presumptively unreasonable. Morgan, 987 F.3d at 632. We review a sentence‘s substantive reasonableness using the abuse of discretion standard. Id.
We start with procedure. Hendrix claims that his sentence was the product of various procedural errors. None of Hendrix‘s arguments have merit.
1. § 3553(a) Factors
First, Hendrix contends that the district court did not adequately assess the
Not only must a district court consider the
This is so even where, as here, the district court imposes an above-guidelines sentence. It is enough that the court considers the
Under these standards, the district court‘s explanation of Hendrix‘s sentence was more than adequate. The court discussed and applied multiple
The court also discussed the “nature and circumstances of the offense.”
Hendrix insists that the court did not give meaningful consideration to “all” the
Hendrix also complains that the district court held his young age against him, when it should have viewed it as a mitigating factor. But, again, this is a challenge to the district court‘s weighing of the evidence. In short, Hendrix has not identified any reversible procedural error in the court‘s discussion of the
Next, Hendrix argues that the district court did not give adequate considеration to his key mitigation arguments. A district court commits procedural error when it fails to address a defendant‘s mitigating arguments that are not “so weak as not to merit discussion.” Steele, 2022 WL 3334533, at *3 (quoting United States v. Sanchez, 989 F.3d 523, 540 (7th Cir. 2021)). As with the
Hendrix points to several mitigating circumstances that, he believes, the district court failed to consider, including his “early childhood trauma, history of mental illness, lifelong struggle with suicide, his genuine show of remorse, the non-violent nature of the offense, and the significant change in his family status as his first child was born while he was incarcerated.”
Turning first to Hendrix‘s “early childhood trauma, history of mental illness, [and] lifelong struggle with suicide,” the district court acknowledged these circumstances, recognizing that Hendrix‘s difficult upbringing “undoubtedly affected [his] development as a human being and as an adult.” Admittedly, the court never incanted specific terms like “childhood trauma,” “mental illness,” or “suicide,” but the
Second, having apologized for his actions at sentencing, Hendrix contends that the district court should have explicitly acknowledged his remorse. But, as we have said elsewhere, remorse is among the “stock” arguments common to most defendants that a district court may, but is not required to, address expressly. United States v. Chapman, 694 F.3d 908, 916 (7th Cir. 2012). We find no error in the district court‘s passing over it here.
Third, Hendrix emphasizes the “non-violent nature of the offense.” While it is truе that Hendrix did not physically harm anyone, the district court found his offense to be serious nonetheless because of his criminal history and possession of a firearm in connection with drug trafficking. Because the court considered Hendrix‘s arguments regarding the severity of his offense, no procedural error occurred. United States v. Trujillo-Castillon, 692 F.3d 575, 578 (7th Cir. 2012) (finding no procedural error where court considered mitigating argument “but simply assigned it lesser weight than the defendant would have liked“).
Lastly, Hendrix believes that the district court should have explicitly mentioned the birth of his son. “[A] defendant‘s family circumstances may be a lеgitimate basis for a below-guidelines sentence if the district court finds ‘that a defendant‘s family ties and responsibilities … are so unusual that they may be characterized as extraordinary.‘” United States v. Graham, 915 F.3d 456, 459 (7th Cir. 2019) (quoting United States v. Schroeder, 536 F.3d 746, 755–56 (7th Cir. 2008)). But the mere fact that a defendant has a family, without more, is not “enough to warrant specific discussion.”
3. Comments About Gun Violence in Chicago
Turning, finally, to Hendrix‘s main argument, Hendrix contends that his sentence was tainted by the district court‘s lengthy commentary on the general prevalence of gun violence in Chicаgo. A district court commits procedural error when it makes “extraneous and inflammatory comments during the sentencing hearing” that cast “doubt on the validity of the sentence” imposed. Robinson, 829 F.3d at 880 (quoting United States v. Figueroa, 622 F.3d 739, 741 (7th Cir. 2010)). For instance, we have said that a district court should not “blame” the defendant for “issues of broad local, national, and international scope that only tangentially relate to his underlying conduct.” United States v. Smith, 400 F. App‘x 96, 99 (7th Cir. 2010) (non-precedential) (citing Figueroa, 622 F.3d at 743–44).
On the other hand, district courts may consider locality-based factors in gauging the impact a particular offense has on the community in which it was committed, and these factors may inform а court‘s decision to impose an above-
For his part, Hendrix attacks the district court‘s analysis on numerous grounds, but none are persuasive. Principally, he contends that the court‘s discussion raised circumstances irrelevant to the case at hand. For instance, Hendrix points out that the district court mentioned gun deaths, even though no one died in this case. Similarly, Hendrix faults the court for discussing shootings of children, shootings of people watching television in their homes, and shootings on expressways: obviously, none of those things happened here. But we have never demanded an exact correspondence between locality-based factors and the facts of a particular case; a reasonable nexus is enough. See United States v. Saldana-Gonzalez, 70 F.4th 981, 984–85 (7th Cir. 2023). And, here, the court‘s comments focused on the scourge of gun violence in Chicago, which is plainly relevant to Hendrix‘s illegal possession of a gun in Chicago. See Hatch, 909 F.3d at 874 (affirming sentence in which district court discussed shootings of children, even though defendant had been convicted only of gun trafficking).
Hendrix identifies some more alleged inaccuracies for the first time in his reply brief: for instance, he disagrees with the district court‘s assertion that “[v]ictims of gun fire are at a rate higher than in any prior year.” But Hendrix waived these additional points by failing to include them in his opening brief. White v. United States, 8 F.4th 547, 552 (7th Cir. 2021) (“[A]rguments raised for the first time in [a] reply brief are waived becausе they leave no chance to respond.“). And even if the district court did make some factual misstatements, Hendrix has not attempted to show that it actually relied on any inaccurate information in imposing sentence. The main point the district court was making in its discussion of locality-based factors was that gun violence is a serious problem in Chicago, a premise Hendrix has not disputed. It was this overarching reality, rather than any particular data point, that drove the court toward an above-guidelines sentence.
Finally, Hendrix argues that he was not given a chance to respond to the district court‘s discussion of gun violence at the sentencing hearing because the court did not alert the
C. Substantive Reasonableness
Finally, Hendrix argues that his sentence was substantively unreasonable. Again, we review the substantive reasonableness of a sentence for abuse of discretion, and we will not presume a sentence to be unreasonable merely becausе it exceeds the guidelines range. Morgan, 987 F.3d at 632. Nor will we substitute our sentencing judgment for that of the district court, which heard the evidence and the parties’ arguments firsthand and is in the best position to impose an appropriate sentence. United States v. Porraz, 943 F.3d 1099, 1104 (7th Cir. 2019).
When a district court departs from the guidelines range, we “take the degree of variance into account and consider the extent of [the] deviation,” requiring more of an explanation the greater the deviation. United States v. Gonzalez, 3 F.4th 963, 966 (7th Cir. 2021) (quoting Gall, 552 U.S. at 47). In explaining the deviation, however, the district court may rely on the
Here, Hendrix contends that the district court‘s sentence was unreasonable because it was based solely on general deterrence and community-based factors, rather than any individualized considerations. This is simply not the case. As described above, the district court considered and applied numerous
Hendrix also suggests that his offense was not serious, and that his mitigating circumstances, including his traumatic upbringing, required a lighter sentence. But the district court reasonably found otherwise. Given Hendrix‘s criminal history, his possession of a firearm in connection with drug trafficking, the severity of gun violence in Chicago, and other factors, it was not an abuse of discretion for the court to conclude that an above-guidelines sentence was warranted. We decline to second-guess the district court‘s weighing of the information at its disposal, a task committed to its sound discretion. Wood, 31 F.4th at 600. Thus, we conclude that the sentence was substantively reasonable.3
III. CONCLUSION
We have considered Hendrix‘s remaining arguments, and none have merit. For the reasons stated above, we AFFIRM the sentence imposed by the district court.