United States v. Brown

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1028

U NITED S TATES OF A MERICA,

Plaintiff-Appellant,

v.

R ODNEY B ROWN,

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of Illinois.

No. 07-CR-20080—Joe Billy McDade, Judge.

A RGUED O CTOBER 29, 2009—D ECIDED JUNE 22, 2010

Before F LAUM, M ANION, and W OOD , Circuit Judges.

W OOD , Circuit Judge. When Rodney Brown pleaded

guilty to distributing more than five grams of crack

cocaine, it looked as if he was about to go to prison for

a long time. Brown had a prior drug conviction, and so

he faced a mandatory minimum sentence of 120

months’ imprisonment. To make matters worse, his

two previous convictions for aggravated assault quali-

fied him as a career offender for purposes of § 4B1.1

2 No. 09-1028

of the U.S. Sentencing Guidelines, and this bumped up

his recommended guidelines sentence to 262-327 months’

imprisonment.

At the sentencing hearing, the district court limited

itself to making a few negative remarks about Brown’s

character and capacity for change. It then surprised the

parties by sentencing Brown to the lowest possible point

available to it, the 120-month mandatory minimum, a

full 142 months below the low end of the guidelines

range. In its terse explanation of the sentence, the

district court mentioned only Brown’s age (40 years old),

the short length of his previous state sentences, and

the conditions of his upbringing.

The government has appealed the sentence. Although a

sentence so far below the recommended guidelines

range lies within the court’s power, and may even

have been justified in this case, the record is too spare

to support that conclusion at this point. We therefore

vacate Brown’s sentence and remand for resentencing.

I

In the spring of 2007, the Champaign (Illinois) Police

Department enlisted the services of a confidential infor-

mant to help it go after the local drug dealers. After the

informant tipped the authorities to Brown’s dealings

in cocaine, officers had the informant engage in a con-

trolled purchase of crack cocaine from Brown. Video and

audio recording devices captured Brown handing over

13.3 grams of crack in exchange for $400 in pre-recorded

currency.

No. 09-1028 3

On August 7, 2007, a grand jury indicted Brown on

two charges: distributing five grams or more of crack

cocaine and possession with intent to distribute crack

cocaine. See 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and (b)(1)(C).

A few months later, Brown entered into a written plea

agreement with the government and pleaded guilty to

the distribution count. The Probation Office prepared a

presentence report (PSR) that placed Brown’s guidelines

range between 262 and 327 months of imprisonment,

based on an offense level of 34 and a criminal history

category of VI. Brown faced such a lengthy sentence

largely because of his considerable rap sheet, which

qualified him as a career offender. (Indeed, without the

career offender enhancement, his criminal history would

have remained at VI, but his offense level would have

dropped to 21.) The district court adopted the PSR’s

calculation of the guidelines range.

The PSR also furnished some details about Brown’s

life, which had been a difficult one. Brown grew up in a

fatherless household, living for most of his youth with

his mother and maternal half-sisters. He began abusing

alcohol and smoking marijuana at age 12 or 13. By the

time he was 14 years old, he had been convicted of theft.

Brown reported that he had been abused as a child by

his mother and bullied by other neighborhood kids.

While his mother acknowledged that she disciplined

Brown, she maintained that the “discipline never hurt

anybody.” She did admit, however, that on one occasion

she “had to beat the shit out of him,” but she asserted

that the beating did not inflict permanent physical harm

on Brown.

4 No. 09-1028

At the sentencing hearing, Brown reiterated the dif-

ficulties he had experienced growing up and he

touched upon the extenuating circumstances associated

with his past crimes. During his allocution, Brown also

emphasized his commitment to change his ways upon

his release from prison. In addition, Brown offered letters

that family members had written attesting to his positive

traits.

After listening to Brown, the district court expressed

deep skepticism about Brown’s sincerity. The court

noted, “I don’t believe that right now you take full respon-

sibility of what you are and what you have done. I don’t

believe you have a commitment that from this day for-

ward, I am going to change my life and lead a different

life.” The judge went on to observe that the rosy image

of Brown set forth in his family members’ letters was

inconsistent with the story sketched out in the PSR. The

court added, “I think that you are trying to run a con

now to say what you feel is necessary to get a reduced

sentence. . . . I think that you still see yourself as a victim

who has the right to do anything you do because you

are the victim. I don’t think you’re a role model.”

When it came time to sentence Brown, however, the

district court inexplicably took a different direction.

Despite its stern lecture, it announced a sentence of 120

months’ imprisonment, the statutory mandatory mini-

mum. Its explanation for this sentence was as follows, in

its entirety:

Based on the fact that you are 40 years old now, the

longest period of imprisonment you spent prior to

No. 09-1028 5

now has been more or less two years in prison on one

or two occasion and given the history and circum-

stances of your upbringing, I feel that a sentence to

the mandatory minimum sentence would be suf-

ficient but not more than what’s necessary to serve

the purpose of sentencing.

Later, in its written statement of reasons for imposing

a below-guidelines sentence, the court repeated that the

sentence imposed was “sufficient to meet all of the

relevant sentencing goals set forth in 18 U.S.C. § 3553(a).”

The government has appealed.

II

In assessing the reasonableness of a sentence, we

engage in a two-step inquiry. See United States v. Jackson,

547 F.3d 786, 792 (7th Cir. 2008). First, we determine

whether the district court made a procedural mistake in

formulating its sentence. Id. To ensure the procedural

reasonableness of a sentence, a district court judge

must “properly calculate[] the guidelines range; analyze[]

the factors set forth in § 3553(a); base[] the sentence

on accurate facts; and explain[] the sentence and the

justifications for an above- or below-guidelines sen-

tence.” United States v. Omole, 523 F.3d 691, 697 (7th

Cir. 2008). Once we are satisfied that the sentence is pro-

cedurally sound, we consider whether it is substantively

reasonable. Jackson, 547 F.3d at 792. Our review of the

latter point is deferential. Gall v. United States, 128 S. Ct.

586, 597 (2007). While an appellate court may treat a

sentence within the guidelines range as presumptively

6 No. 09-1028

reasonable, the converse is not true: there is no “pre-

sumption of unreasonableness for sentences outside the

Guidelines range.” Id. at 595; United States v. Parr, 545

F.3d 491, 505 (7th Cir. 2008) (explaining that appel-

late “review of a nonguideline sentence is extremely

deferential”).

On appeal, the government has focused its efforts on

challenging the procedural reasonableness of Brown’s

sentence. It has no trouble conceding that the district

court properly calculated the guidelines range, but

it vigorously objects to the adequacy of the court’s ex-

planation for deviating so drastically from that range.

Brown counters that the court appropriately relied upon

three valid sentencing considerations to support its

decision to impose the mandatory minimum sentence.

The governing law is well settled. While the district

court must explain its decision to impose a sentence

outside the guidelines range, it need not give an “extraor-

dinary” justification. Gall, 128 S. Ct. at 597 (noting that

the district court must “adequately explain the chosen

sentence to allow for meaningful appellate review and

to promote the perception of fair sentencing”). A district

court judge that imposes an “unusually lenient or

harsh” sentence must give the departure from the guide-

lines “serious consideration” and provide “sufficient

justifications” to support her sentencing determination.

Id. “[A] major departure should be supported by a

more significant justification than a minor one.” Id. Yet

the strength of the justification required for a particular

departure cannot be dictated by a mechanical calcula-

No. 09-1028 7

tion of the percentage of the departure from the ap-

plicable guidelines range. Id.

While the district court invoked several relevant sen-

tencing factors, its brief explanation for departing from

the guidelines fell far short of what Gall requires. In

justifying the 120-month sentence, the district court

began by citing the fact that Brown was 40 years old as

something that supported a lower sentence. Yet the

court never made any attempt to explain how Brown’s

age was pertinent to any legitimate sentencing consider-

ation. See 18 U.S.C. § 3553(a). We find it pointless to

speculate about the judge’s reasons. If the district

court fails to explain itself sufficiently, the rationale for

deferential appellate review is weakened because this

court cannot tell how particular facts influenced the

district court’s assessment of the totality of the circum-

stances. Gall, 128 S. Ct. at 595.

The district court did not make matters any clearer

when it referred to the relatively short length of Brown’s

previous stints in state prison. Perhaps the judge was

willing to accept defense counsel’s argument that al-

though Brown had not been deterred by his previous

sentences, which had never lasted more than two years,

nothing more than a jump to a ten-year sentence was

required to deter Brown from committing another crime.

The government, however, suggests that the court in-

stead may have felt that a lengthy federal sentence

would have created an unwarranted sentencing disparity

in light of Brown’s short state sentences; this, it argues,

would be a misinterpretation of the concept of unwar-

8 No. 09-1028

ranted disparities for purposes of federal sentencing. The

government is correct: the reference in § 3553(a)(6) to

“unwarranted sentence disparities” does not invite a

comparison between the defendant’s earlier sentences

and the present one; it requires a comparison to the

way this offender is treated as compared to similarly

situated persons in other federal courts, when they are

being sentenced for the same crime. We cannot tell

whether the district court had in mind the latter rationale

or the former one.

We are also left without any guidance about how the

court was weighing “the history and circumstances of

[Brown’s] upbringing.” Most importantly, the court never

clarified the severity of Brown’s childhood abuse. Al-

though Brown claimed to have been beaten by his

mother, his testimony at the sentencing hearing was

equivocal at best, and his mother confessed to only one

serious beating. Putting aside these allegations of

abuse, there is relatively little in Brown’s background

that would support a 142-month departure from the

guidelines.

The district court not only failed adequately to explain

its rationale for its sentencing decision; it also offered a

significant number of observations that would have

made more sense as justifications for a lengthier sen-

tence. The court criticized Brown for continually

claiming to be a victim and failing to take responsibility

for what he had done. The court expressed open skep-

ticism about Brown’s chances for rehabilitation, when

it stated that it did not believe that Brown had made a

No. 09-1028 9

commitment to change his life and become a different

person.

The contrast between the tone of the court’s words and

the ultimate sentence imposed is reminiscent of our

decision in Omole, 523 F.3d at 697. In that case, the

district court sentenced the defendant to 12 months of

imprisonment, which was 51 months below the mini-

mum advised by the guidelines. Id. at 694. In justifying

the sentence, the district court cited the defendant’s

young age, his insubstantial criminal record, his success

in school, his upbringing, and his rehabilitative potential.

Id. at 700. Yet during the hearing, the court “severely

chastised” the defendant on a number of grounds. Id. at

698 (explaining that the district court “commented on

the defendant’s extreme arrogance, his contempt for the

court, and his utter lack of feeling for other human be-

ings”). In concluding that the defendant’s sentence

was unreasonable, we dismissed the district court’s

justifications as insufficient and emphasized that the

judge had failed to explain the “irreconcilable pictures”

it painted of the defendant. Id. at 699-700.

We find little in this case to distinguish it from Omole.

In fact, the district court in that case provided a more

elaborate explanation to justify a substantially smaller

deviation from the guidelines. Id. at 694, 700. Thus, we

have no trouble concluding that the district court failed

here to articulate the necessary justification for such a

sizable departure from the guidelines. Gall, 128 S. Ct. at

597. In reaching this decision, we make no comment on

the substantive reasonableness of the sentence imposed,

10 No. 09-1028

which is a matter that we leave open for the court on

remand.

* * *

We V ACATE Brown’s sentence and R EMAND for

resentencing in accordance with this opinion.

6-22-10