Judges: Hamilton
Filed: Aug. 03, 2016
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 15-3753 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GROVER COLEMAN FERGUSON, Defendant-Appellant. _ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 15-Cr-81 — Rudolph T. Randa, Judge. _ ARGUED MAY 26, 2016 — DECIDED AUGUST 3, 2016 _ Before WOOD, Chief Judge, and MANION and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge. Defendant Grover Ferguson ap- peals his sentence. He was seven
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 15-3753 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GROVER COLEMAN FERGUSON, Defendant-Appellant. _ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 15-Cr-81 — Rudolph T. Randa, Judge. _ ARGUED MAY 26, 2016 — DECIDED AUGUST 3, 2016 _ Before WOOD, Chief Judge, and MANION and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge. Defendant Grover Ferguson ap- peals his sentence. He was sevent..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐3753
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
GROVER COLEMAN FERGUSON,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 15‐Cr‐81 — Rudolph T. Randa, Judge.
____________________
ARGUED MAY 26, 2016 — DECIDED AUGUST 3, 2016
____________________
Before WOOD, Chief Judge, and MANION and HAMILTON,
Circuit Judges.
HAMILTON, Circuit Judge. Defendant Grover Ferguson ap‐
peals his sentence. He was seventeen years old when he shot
a woman three times during a carjacking, permanently disa‐
bling her. The high end of the guideline range for his crime
was 217 months in prison. The government recommended a
240‐month above‐guideline sentence based on the severity of
2 No. 15‐3753
Ferguson’s violent actions. The district court, however, im‐
posed a sentence of 600 months (50 years) in prison, or more
than 31 years longer than the top of the guideline range.
We vacate the sentence and remand for re‐sentencing. The
Sentencing Guidelines are, of course, advisory. A judge is free
to exercise his or her judgment to depart from them. Such a
dramatic variance from a guideline range, however, requires
a substantial explanation. Gall v. United States, 552 U.S. 38, 50
(2007). The explanation given here does not support a sen‐
tence that is more than 31 years and more than two and a half
times longer than the top of the guideline range.
I. Ferguson’s Crime and Sentence
On April 21, 2015, Ferguson was seventeen years old. He
was drunk and high. He wanted a car. He approached a
woman on the street as she was getting into her car. He
opened the passenger door, pointed a gun at the woman, and
demanded her keys. She hesitated, thinking Ferguson was
joking.
Ferguson demanded the keys again, and he then shot the
woman three times at point‐blank range, including one shot
to her face. Ferguson walked over to the woman, got her keys,
and started the car. The woman somehow managed to drag
herself to the curb to avoid being run over as Ferguson drove
off. Police arrested Ferguson the next day driving the stolen
car, but only after a high‐speed chase.
Ferguson’s crimes had a devastating effect on the woman
he shot. She lost sight in one eye and has nerve damage to her
ear and face. She suffers pain daily. She cannot drive anymore
and depends on others for transportation. She has not been
able to work since the attack. Ferguson’s attack left her with
No. 15‐3753 3
psychological injuries. She has nightmares about the robbery,
has become scared of her surroundings, and panics when she
sees young men outside her home.
Ferguson pled guilty to vehicular robbery by force, 18
U.S.C. § 2119(2), and discharge of a firearm in relation to a
crime of violence, 18 U.S.C. § 924(c)(1)(A)(iii). The statutory
range for the carjacking is up to 25 years (300 months) in
prison. The statutory range for discharging the firearm is a
mandatory minimum ten years (120 months) up to life, which
must be consecutive to the sentence for the carjacking.
There is no dispute about the Sentencing Guideline calcu‐
lation here. The guideline range for the carjacking was 78 to
97 months, and the guideline sentence for the firearm count
was 120 months, consecutive to the carjacking sentence. The
total guideline range was thus 198 to 217 months (sixteen and
a half years to a little over eighteen years).
At the sentencing hearing, the government requested an
above‐guideline 20‐year sentence due to the senselessly vio‐
lent nature of Ferguson’s crime. The victim exercised her right
to be heard under the Crime Victims’ Rights Act, 18 U.S.C.
§ 3771, and urged the court to impose the maximum possible
sentence. The defense proposed a fifteen‐year sentence. The
district court sentenced Ferguson to 50 years: eight years for
the carjacking and 42 years for firing the gun.
II. The Delayed Supervised Release Conditions
Before addressing Ferguson’s arguments, we first address
some procedural confusion in the case. The district court sen‐
tenced Ferguson orally on December 3, 2015 and entered its
written judgment of conviction on December 9, 2015. The sen‐
tence at that time was not complete, though, because the
4 No. 15‐3753
judge had not yet announced the conditions of supervised re‐
lease that he intended to impose, nor had he decided the
amount of restitution. On December 11, 2015, Ferguson filed
his notice of appeal. More than three months later, on March
22, 2016, the district court issued an amended judgment of
conviction that included conditions of supervised release and
ordered restitution of just over $23,000. Ferguson did not file
a new notice of appeal.
The district court erred by failing to impose conditions of
supervised release at the time of the sentencing hearing and
in the original written judgment of conviction. “Conditions of
supervised release are part of a defendant’s sentence.” United
States v. Neal, 810 F.3d 512, 516 (7th Cir. 2016). If the district
court imposes a term of supervised release, the court must im‐
pose certain conditions. Courts usually impose additional
standard recommended conditions and sometimes impose
additional special conditions. See 18 U.S.C. § 3583(d); U.S.S.G.
§ 5D1.3. The court should announce those conditions and pro‐
vide any needed explanations at the sentencing hearing, sub‐
ject to a defendant’s possible waiver of the full recitation or
explanation if there is no controversy about them. See United
States v. Orlando, No. 15‐2092, — F.3d —, —, 2016 WL 3027527,
at *4–5 (7th Cir. May 25, 2016) (error to delay imposing man‐
datory term and conditions of supervised release; suggesting
caution about delaying imposition of discretionary and spe‐
cial conditions); United States v. Lewis, No. 14‐3635, — F.3d —
, —, 2016 WL 3004435, at *5 (7th Cir. May 24, 2016) (elucidat‐
ing waiver); United States v. Thompson, 777 F.3d 368, 376 (7th
Cir. 2015) (error to omit from judge’s oral sentencing state‐
ment a condition of supervised release that was included in
the written judgment).
No. 15‐3753 5
A district court may, of course, modify the conditions of
supervised release after sentencing. 18 U.S.C. § 3583(e)(2). At
the time the district court acted here, we had held that a dis‐
trict court could modify conditions after a defendant had filed
a notice of appeal. See United States v. Ramer, 787 F.3d 837, 838–
39 (7th Cir. 2015). Recently, however, we overruled that aspect
of Ramer and now require parties and district courts to use the
process under Seventh Circuit Rule 57 to modify terms of su‐
pervised release while an appeal is pending. United States v.
Ray, Nos. 14‐3799 & 15‐3193, — F.3d —, —, 2016 WL 4011168,
at *5 (7th Cir. July 27, 2016). We remand for a full re‐sentenc‐
ing on other grounds, though, so we need not base our deci‐
sion on this procedural bobble.1
III. Explaining the Above‐Guideline Sentence
The Sentencing Guidelines have been advisory since
United States v. Booker, 543 U.S. 220 (2005), but the Supreme
Court’s decisions since Booker make clear that the advice from
the Guidelines is important and that non‐guideline sentences
1 The district court’s failure to enter a complete judgment of convic‐
tion in December 2015 does not deprive us of appellate jurisdiction. A
judgment of conviction that includes a sentence of imprisonment is a “fi‐
nal judgment.” 18 U.S.C. § 3582(b); see also Dolan v. United States, 560 U.S.
605, 617–18 (2010) (discussing finality of judgment ordering imprison‐
ment).
In contrast to the treatment of supervised release conditions, the dis‐
trict court’s delay in determining the amount of restitution was expressly
authorized by statute. See 18 U.S.C. § 3664(d)(5) (allowing 90‐day delay
after sentencing to determine amount); Dolan, 560 U.S. at 607–08 (district
court did not lose jurisdiction to determine restitution after 90 days after
sentencing, at least where court had earlier indicated its intent to order
some amount of restitution).
6 No. 15‐3753
call for explanations sufficient to support meaningful appel‐
late review. The Guidelines were intended to reduce unjusti‐
fied sentencing disparities, so that similar crimes by similar
defendants would result in similar sentences. See Peugh v.
United States, 569 U.S. —, —, 133 S. Ct. 2072, 2079 (2013);
Booker, 543 U.S. at 250. Even after Booker, the district judge
must begin the sentencing process by calculating the applica‐
ble guideline range even if she does not intend to stay within
that range. Gall v. United States, 552 U.S. 38, 49–50 & n.6 (2007);
see also Peugh, 569 U.S. at —, 133 S. Ct. at 2083 (“The post‐
Booker federal sentencing scheme aims to achieve uniformity
by ensuring that sentencing decisions are anchored by the
Guidelines and that they remain a meaningful benchmark
through the process of appellate review.”).
Under the post‐Booker sentencing scheme, a sentencing
judge remains free to disagree with the broad philosophies
underlying the Guidelines or with specific provisions. Gall,
552 U.S. at 49–50; Kimbrough v. United States, 552 U.S. 85, 101–
02 (2007). And even when the Guidelines were mandatory, a
judge’s power to sentence outside the guideline range was an
essential part of the guideline system. The Sentencing Com‐
mission and advocates of the Guidelines have never claimed
that guideline sentences were appropriate in every case.
Booker, 543 U.S. at 234 (“The Guidelines permit departures
from the prescribed sentencing range in cases in which the
judge ‘finds that there exists an aggravating or mitigating cir‐
cumstance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating
the guidelines that should result in a sentence different from
that described.’”), quoting 18 U.S.C. § 3553(b) (2000); see also
U.S.S.G. § 1B1.4, cmt., background (2004). But two corner‐
stones of the Sentencing Reform Act that have survived Booker
No. 15‐3753 7
are that appellate review of sentences must be meaningful
and that sentencing judges must provide enough of an expla‐
nation to allow meaningful appellate review. Peugh, 569 U.S.
at —, 133 S. Ct. at 2083–84; Gall, 552 U.S. at 50–51.
Among the Supreme Court’s post‐Booker cases, most rele‐
vant for this case is Gall, which teaches that a sentencing judge
“must give serious consideration to the extent of any depar‐
ture from the Guidelines and must explain his conclusion that
an unusually lenient or an unusually harsh sentence is appro‐
priate in a particular case with sufficient justifications.” 552
U.S. at 46. If a judge “decides that an outside‐Guidelines sen‐
tence is warranted, he must consider the extent of the devia‐
tion and ensure that the justification is sufficiently compelling
to support the degree of the variance.” Id. at 50. The Supreme
Court found it “uncontroversial that a major departure
should be supported by a more significant justification than a
minor one.” Id. A district court’s explanation must be ade‐
quate to “allow for meaningful appellate review and to pro‐
mote the perception of fair sentencing.” Id.
Here, the variance from the Sentencing Guidelines was
unusually large: 31 years, and more than two and a half times,
longer than the upper end of the guideline range. We
acknowledge that such a large variance, even from an already
high guideline range, may be justified in an unusual case. Fol‐
lowing the reasoning of Gall, however, such a large variance
requires a compelling justification. The district court did not
provide one.
In explaining the sentence, the judge recognized that Fer‐
guson’s youth made him “more reckless, thoughtless, more
impetuous, compulsive than adults” and that “medical stud‐
ies show that the human brain isn’t fully formed until about
8 No. 15‐3753
age 26” (although the judge’s remark about the immaturity of
the juvenile brain was in relation to the effects of marijuana
on juveniles). The judge also described Ferguson’s senselessly
violent crime as “flat out evil” and like a “terrorist attack.” He
noted the need to protect the public from future crimes. And
he noted Ferguson’s expression of remorse, his youth, his
drug use, his criminal history, and his family characteristics.
The judge said that the 50‐year sentence “takes into account
and reflects the seriousness of this evil, terrorist act. Serious‐
ness of the offense. Promotes respect for the law. Hopefully
that message will get out. Creates a just punishment. Provides
adequate deterrence, and protects the public from further
crime.” The judge told Ferguson: “Every day that you spend
in prison should be a reminder to you that I’m atoning for this
evil act. And that will be good for you, believe it or not.”
All of those statements are perfectly understandable given
the nature of Ferguson’s crimes, but the judge did not explain
in the hearing why he found the guideline range so inade‐
quate as punishment as to impose a sentence more than 31
years higher.2
2 The written statement of reasons did not add a lot: “The victim’s
mental pain and suffering along with her loss of independence is not con‐
sidered by the guidelines. The offense occurred when the defendant was
17 years old and only two months after he was discharged from a lengthy
juvenile conviction. He failed at every attempt given him in the juvenile
system including group homes, residential placements, and counseling.
At the time of the offense he was drinking, using marijuana, and taking
pills. He has a fascination with guns and an explosive temper which
makes him dangerous.” Those are valid reasons for imposing an above‐
guideline sentence, but they provide no additional insight why such a dra‐
matic variance from the guideline range was needed.
No. 15‐3753 9
By statute a judge must impose “a sentence sufficient, but
not greater than necessary,” to serve the purposes of sentenc‐
ing. 18 U.S.C. § 3553(a). Here, the court did not explain why
50 years was “sufficient, but not greater than necessary.” The
government requested an above‐guideline sentence of 20
years. That recommendation did not bind the court, of course,
but we are unable to tell from the district court’s stated rea‐
soning why 20 or 30 or 40 years would have been insufficient
to serve the purposes of sentencing mandated in 18 U.S.C.
§ 3553(a). The district court’s explanation does not “allow for
meaningful appellate review” of why the judge deemed 50
years appropriate, and not any shorter sentence. Gall, 552 U.S.
at 50.
We do not mean to overstate the district court’s duty of
providing an explanation. Nor do we intend to imply that
there is only one reasonable sentence in this or any other case,
or that sentencing is an exact science. We have upheld other
above‐guideline sentences that district courts did not justify
in great detail, but those cases did not present circumstances
as dramatic as this one.
For example, in United States v. Castaldi, 743 F.3d 589, 591
(7th Cir. 2014), we upheld a 23‐year sentence that was about
50 percent longer than the high end of the guideline range,
based on the extraordinary harm the defendant’s Ponzi
scheme inflicted on his victims. We found the judge’s expla‐
nation was clear enough that there was no need for a remand,
though one judge dissented from that conclusion. Id. at 596–
97, 600; see also United States v. Stinefast, 724 F.3d 925, 931 (7th
Cir. 2013) (affirming 216‐month sentence, more than five years
above 151‐month high end of guideline range, because
“court’s discussion, while brief, reflects its consideration and
10 No. 15‐3753
rejection of” argument in mitigation); United States v. Perez‐
Molina, 627 F.3d 1049, 1051 (7th Cir. 2010) (34‐month sentence
for unlawful entry into the United States that was more than
twice the upper end of the guideline range adequately justi‐
fied by judge’s consideration of “the other circumstances
drawing Perez‐Molina to the United States, along with the
need to deter him from reentry and crime”); United States v.
Jackson, 547 F.3d 786, 796 (7th Cir. 2008) (upholding 96‐month
sentence, which was eighteen months above guideline range,
because, among other reasons, “although it might have been
better for the district court judge to articulate his reason for
rejecting” an underdeveloped argument in mitigation, it was
not procedural error not to address it).
In Ferguson’s case, the variance from the guideline range
was more than 31 years, and it was proportionally about three
times larger than the variance in Castaldi. As horrific as Fer‐
guson’s crime was, and as devastating as it has been for the
victim, we conclude that more of an explanation is necessary
to justify Ferguson’s sentence. See Gall, 552 U.S. at 50 (“We
find it uncontroversial that a major departure should be sup‐
ported by a more significant justification than a minor one.”);
see also Graham v. Florida, 560 U.S. 48, 70 (2010) (noting that
life without parole is “especially harsh punishment for a juve‐
nile” because “a juvenile offender will on average serve more
years and a greater percentage of his life in prison than an
adult offender”). The magnitude of the deviation from the
Sentencing Guidelines in this case and the gravity of the im‐
pact on both the victim and the defendant required a fuller
explanation of why the sentence was necessary to achieve the
goals of punishment.
No. 15‐3753 11
At the sentencing hearing, the judge also strayed into
some subjects that seem at best tangentially related to the sen‐
tencing. The judge alluded to the 1965 Moynihan Report
(more formally, “The Negro Family: The Case for National
Action,” by Daniel Patrick Moynihan) and mentioned the
“destruction of the family.” The judge also cited the use of
child soldiers in the Tet Offensive during the Vietnam War as
a case study for juvenile blameworthiness. He mentioned
how, back in the 1950s or 1960s, he had dated a girl from the
same neighborhood as Ferguson’s victim and did not have to
worry about being carjacked then.
The judge’s comments at sentencing about the Tet Offen‐
sive and dating a girl from Ferguson’s victim’s neighborhood
in the 1950s or 1960s did not rise to the level of the same
judge’s comments that caused us to remand for resentencing
in United States v. Robinson, No. 15‐2019, — F.3d —, 2016 WL
3947808 (7th Cir. July 22, 2016), and United States v. Figueroa,
622 F.3d 739 (7th Cir. 2010). Yet the comments still give us
pause. In Robinson and Figueroa, troubling discourses on mat‐
ters irrelevant to sentencing left us with “‘no way of knowing’
whether ‘these irrelevant considerations affected’ the sen‐
tence.” Robinson, — F.3d at —, 2016 WL 3947808, at *1, quoting
Figueroa, 622 F.3d at 741. We do not remand on that ground
here, but the facts that the judge dated someone from Fergu‐
son’s victim’s neighborhood 50 years ago or encountered child
soldiers in the Vietnam War should have no bearing on Fer‐
guson’s sentence. The court should not risk giving parties and
observers the impression that they might.
We remand because of a procedural error, so we do not
reach the substantive reasonableness of the sentence. We also
do not decide whether Ferguson’s sentence complies with the
12 No. 15‐3753
Eighth Amendment. Ferguson’s crime was horrific and sense‐
less. It was due to grace, good luck, and the skill of Milwau‐
kee’s first responders that Ferguson did not kill his victim.
We also do not hold or mean to imply that an above‐guide‐
line sentence is unreasonable in this case. In particular, the
Guidelines’ six‐level increase for “permanent or life‐threaten‐
ing bodily injury” under § 2B3.1(b)(3)(C), which applies only
to the carjacking guideline and not to the discharge of a fire‐
arm guideline, may well fail to account sufficiently for the
devastating effects on Ferguson’s victim.
The six‐level increase can apply to a very wide range of
physical effects on a victim and may not account for psycho‐
logical injury or effects on day‐to‐day life. The Guidelines de‐
fine “permanent or life‐threatening bodily injury” as “injury
involving a substantial risk of death; loss or substantial im‐
pairment of the function of a bodily member, organ, or mental
faculty that is likely to be permanent; or an obvious disfigure‐
ment that is likely to be permanent.” U.S.S.G. § 1B1.1 app.
note 1(J). It is easy to imagine that injuries less disabling than
Ferguson’s victim’s loss of sight in one eye and daily pain
would warrant the same six‐level increase. Taken literally, this
same six‐level increase would apply to both the loss of a toe
or finger and to Ferguson’s victim’s loss of sight in one eye,
loss of peace of mind, and loss of her ability to live pain‐free
and independently. Also, under § 2K2.4(b), the guideline
range for Ferguson’s discharge of a firearm, 18 U.S.C.
§ 924(c)(1)(A)(iii), is the same as the statutory minimum, ten
years in prison, in all cases.
These points merely emphasize that the Guidelines are
guidelines. Their application is not and never has been in‐
tended to be a substitute for individualized judgment. It
No. 15‐3753 13
would not be unreasonable to think that the statutory mini‐
mum on the firearm charge is not appropriate in every case.
We need not say more about the substantive issues. The sen‐
tence is VACATED and the case is REMANDED to the district
court for re‐sentencing, where all substantive issues may be
addressed by the parties and then by the district judge.