Judges: Feinerman
Filed: Dec. 13, 2016
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 16-2087 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALEXANDER KLUBALL, Defendant-Appellant. _ Appeal from the United States District Court for the Western District of Wisconsin. No. 15-cr-124 — James D. Peterson, Judge. _ ARGUED NOVEMBER 7, 2016 — DECIDED DECEMBER 13, 2016 _ Before EASTERBROOK and WILLIAMS, Circuit Judges, and FEINERMAN, District Judge.* FEINERMAN, District Judge. Alexander Kluball was sen- tenced to 120 mo
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 16-2087 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALEXANDER KLUBALL, Defendant-Appellant. _ Appeal from the United States District Court for the Western District of Wisconsin. No. 15-cr-124 — James D. Peterson, Judge. _ ARGUED NOVEMBER 7, 2016 — DECIDED DECEMBER 13, 2016 _ Before EASTERBROOK and WILLIAMS, Circuit Judges, and FEINERMAN, District Judge.* FEINERMAN, District Judge. Alexander Kluball was sen- tenced to 120 mon..
More
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐2087
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
ALEXANDER KLUBALL,
Defendant‐Appellant.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 15‐cr‐124 — James D. Peterson, Judge.
____________________
ARGUED NOVEMBER 7, 2016 — DECIDED DECEMBER 13, 2016
____________________
Before EASTERBROOK and WILLIAMS, Circuit Judges, and
FEINERMAN, District Judge.*
FEINERMAN, District Judge. Alexander Kluball was sen‐
tenced to 120 months’ imprisonment for transporting a 17‐
year‐old girl across state lines with the intent that she engage
in prostitution, in violation of 18 U.S.C. § 2421. The only issue
* Of the Northern District of Illinois, sitting by designation.
2 No. 16‐2087
on appeal is whether the district court violated Kluball’s due
process right to be sentenced based on accurate information
by finding that his mental health history suggested that fur‐
ther treatment would be unlikely to have a “lasting impact”
on his ability to refrain from further criminal conduct. There
was no due process violation, and so the district court’s judg‐
ment is affirmed.
In pleading guilty, Kluball admitted that he drove to Ten‐
nessee to pick up a 17‐year‐old girl he had met on Facebook,
brought her to his apartment in Wisconsin, advertised her
online for sex acts, and escorted her to several prostitution en‐
gagements in the Madison area. The probation office calcu‐
lated an advisory guidelines range of 121 to 151 months’ im‐
prisonment, but because the statutory maximum under
§ 2421 is ten years, Kluball’s advisory guidelines term became
120 months. See U.S.S.G. § 5G1.1(a) (“Where the statutorily
authorized maximum sentence is less than the minimum of
the applicable guideline range, the statutorily authorized
maximum sentence shall be the guideline sentence.”).
The presentence investigation report provided the only
factual information before the district court regarding
Kluball’s mental health history. The report chronicled
Kluball’s struggle with mental illness and associated behav‐
ioral problems since early childhood. His diagnoses included
oppositional defiant disorder, attention deficit hyperactivity
disorder, bipolar disorder, posttraumatic stress disorder, and
depression. Kluball received counseling and was hospitalized
several times, and he was treated with an array of drugs, in‐
cluding Adderall, Depakote, Eskalith, Fluoxetine, lithium,
Prozac, Remeron, Ritalin, Seroquel, Strattera, Valium, Zoloft,
Zydis, and Zyprexa. None of the treatments succeeded, at
No. 16‐2087 3
least for very long. Kluball was kicked out of twenty‐one day‐
care facilities as a child, expelled from high school, discharged
from the military with an other‐than‐honorable discharge due
to misconduct, and fired from multiple jobs due to various
transgressions. Kluball threatened to kill his parents with a
baseball bat as a child, threatened to stab his foster parents
and to attack his foster brother with a meat cleaver as a teen‐
ager, and threatened others with a concealed weapon as an
adult.
Kluball did not object to the presentence report’s descrip‐
tion of his mental health history or offer evidence to under‐
mine or augment it. The district court adopted the report’s
findings at sentencing, as it was entitled to do. See United
States v. Sonsalla, 241 F.3d 904, 907 (7th Cir. 2001). The court
imposed the guidelines term of 120 months. In so doing, the
court remarked:
I think the bottom line here is that when I
look at the records of Mr. Kluball’s troubles,
there is no diagnosis of a mental illness here that
really relieves Mr. Kluball of responsibility. He
is a person who is upsettable, is sometimes vio‐
lent. He’s defiant. And all of these things are dif‐
ficulties and maybe things that are amenable to
some kind of treatment, but I don’t see any di‐
agnosis here that really makes me feel like I
should consider Mr. Kluball’s culpability for
this very calculating kind of criminal act that he
committed here to be alleviated. He’s responsi‐
ble for what he did despite the fact that he has a
history of problems that may involve mental
health issues.
4 No. 16‐2087
The bottom line here is that Mr. Kluball has
proven himself to be very dangerous. Even after
these things came to light, he’s posting pictures
on Facebook showing his guns. He’s manifestly
at risk of self‐harm. But if we were to look at this
pattern here and find Mr. Kluball’s fascination
with guns and his defiant behavior, I think
you’d have to conclude, as I do, that he really is
a dangerous person and that the protection of
the public is a factor that has to drive the sen‐
tence in a significant way.
… [T]he bottom line here is that not only is
he dangerous, I think his history suggests that
there is no structure or treatment that realisti‐
cally suggests that it’s going to have any … last‐
ing impact on Mr. Kluball’s ability to conform
himself to, let alone lawful behavior, just safe
behavior. I think that—I’m left only with the
conclusion that there is only incarceration
which provides the kind of level of structure
that Mr. Kluball can succeed in and that keeps
the public safe.
As Kluball acknowledges, a sentencing judge may con‐
sider whether mental health treatment will succeed in reduc‐
ing the defendant’s dangerousness or propensity to commit
further crimes. The governing statute, in fact, requires the
judge to consider “the need for the sentence imposed … to
protect the public from further crimes of the defendant.” 18
U.S.C. § 3553(a)(2)(C). As we have explained, “incapacitation
(physically preventing the defendant from committing crimes
on ‘the outside,’ by imprisoning him) is an authorized factor
No. 16‐2087 5
for a judge to consider in determining the length of a prison
sentence.” United States v. Kubeczko, 660 F.3d 260, 262 (7th Cir.
2011) (citing § 3553(a)(2)(C)). This is so even if the defendant’s
difficulties refraining from criminal conduct result from men‐
tal illness. See ibid. (rejecting the proposition that “there is any
impropriety in lengthening a sentence because of concern—
whether based on mental illness, addiction, or anything else
that may weaken a person’s inhibitions against committing
crimes—that the defendant is likely to commit further crimes
upon release”); United States v. Miranda, 505 F.3d 785, 793 (7th
Cir. 2007) (“In this case, there is evidence that [the defendant]
was being treated for mental illness at the time he committed
his crimes, and so the court may determine that the only way
to truly incapacitate [the defendant] is a heavy prison sen‐
tence.”). True, a sentencing judge may find a defendant’s
mental illness to be a mitigating rather than an aggravating
factor, or both mitigating and aggravating. See United States
v. Annoreno, 713 F.3d 352, 358 (7th Cir. 2013); Miranda, 505 F.3d
at 792. But the degree to which mental illness is deemed miti‐
gating or aggravating, and the weight accorded that factor,
lies within the sentencing judge’s broad discretion. See United
States v. Warner, 792 F.3d 847, 855 (7th Cir. 2015) (“Ultimately,
it falls on the district court to weigh and balance the various
factors and to make an individualized assessment based on
the facts presented.”) (internal quotation marks omitted);
United States v. Beier, 490 F.3d 572, 574 (7th Cir. 2007) (“The
statute does not attach weights to these factors, thus leaving
the sentencing judge with enormous latitude … .”).
Although Kluball does not dispute these principles, he
contends that the record at sentencing did not permit the dis‐
trict court to conclude that “his history suggests that there is
no structure or treatment that realistically suggests that it’s
6 No. 16‐2087
going to have any … lasting impact on [his] ability to conform
himself to … lawful behavior … .” This flaw in the district
court’s reasoning, Kluball says, violated his due process
rights.
“A convicted defendant has a due process right to be sen‐
tenced on the basis of accurate information.” United States v.
Melendez, 819 F.3d 1006, 1012 (7th Cir. 2016). Additionally,
“due process requires that sentencing determinations be
based on reliable evidence, not speculation or unfounded al‐
legations.” United States v. Bradley, 628 F.3d 394, 400 (7th Cir.
2010); see also United States v. England, 555 F.3d 616, 622 (7th
Cir. 2009). To show a violation of this right, “a defendant must
demonstrate that the information before the court was inac‐
curate and that the court relied on this inaccurate infor‐
mation.” United States v. Katalinich, 113 F.3d 1475, 1484 (7th
Cir. 1997).
Kluball does not and cannot make that showing. The facts
set forth in the presentence report amply support the district
court’s conclusion that treatment is unlikely to have a “lasting
impact” on Kluball’s ability to refrain from criminal conduct.
Kluball has been hospitalized every few years throughout his
life and treated with various medications; he has received
counseling; and he has spent time in various structured envi‐
ronments, including special education classes, juvenile deten‐
tion, and the military. Despite these many medical and envi‐
ronmental interventions, Kluball has consistently engaged in
dangerous and unlawful behavior. It was well within rea‐
son—and certainly not an abuse of discretion—for the district
court to take Kluball’s history into account and draw the con‐
clusion that further mental health treatment is unlikely to suc‐
ceed in enabling him to conform to societal norms.
No. 16‐2087 7
Kluball is wrong to liken this case to Bradley and England,
where the district judges engaged in impermissible specula‐
tion when imposing sentence. In Bradley, the sentencing judge
“made a prediction about future conduct based on rank spec‐
ulation about other, multiple instances of deviant behavior”
of which there was no record evidence. 628 F.3d at 401. In Eng‐
land, the sentencing judge’s “unsupported speculation” was
that the defendant would have committed the crime of at‐
tempted murder had he been released on bond. 555 F.3d at
623.
The district court here engaged in no such speculation. To
the contrary, the court’s finding that treatment was unlikely
to have a “lasting impact” on Kluball was reasonably based
on the fact, which he does not dispute, that he has throughout
his life suffered from mental illness, endangered those around
him, and engaged in criminal conduct, notwithstanding his
being afforded mental health treatment and placed in struc‐
tured environments. Sentencing routinely requires the judge
to make predictions about the defendant’s future conduct
and, in particular, his ability to lead a law‐abiding life. See
United States v. Boroczk, 705 F.3d 616, 622 (7th Cir. 2013) (“Nei‐
ther the district court nor the various doctors who testified or
provided input at sentencing were blessed with a crystal ball
to predict [the defendant’s] future behavior. In the absence of
such certainty, the district court simply weighed the evidence
before it and concluded that the risk of future crimes was a
factor in favor of a lengthy sentence.”); United States v. Neary,
552 F.2d 1184, 1193 (7th Cir. 1977) (noting that “evaluation of
the character of the defendant and a prediction of future con‐
duct [are] matters which are traditionally left to wide discre‐
tion of a sentencing court”). Such predictions do not violate
8 No. 16‐2087
due process where, as here, they reasonably follow from ac‐
curate information in the sentencing record. See United States
v. Lucas, 670 F.3d 784, 792–93 (7th Cir. 2012) (rejecting a due
process claim comparable to the claim brought here); United
States v. Morales, 655 F.3d 608, 646–47 (7th Cir. 2011) (same).
AFFIRMED