United States v. Lloyd Lockwood

In the

United States Court of Appeals

For the Seventh Circuit

No. 14-1809

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LLOYD B. LOCKWOOD,

Defendant-Appellant.

Appeal from the United States District Court for the

Central District of Illinois.

No. 12-CR-20070— Harold A. Baker, Judge.

ARGUED APRIL 2, 2015 — DECIDED JUNE 16, 2015

Before BAUER, POSNER, and MANION, Circuit Judges.

MANION, Circuit Judge. Lloyd Lockwood was charged with

possession of a destructive device and with being a felon in

possession of a firearm—in this case, a pipe bomb. Before trial,

he stipulated to the fact that the object he was charged with

delivering into the victims’ family mailbox was a destructive

device as defined by federal law. At trial, his theory was that

he did not know that the package he delivered contained a

destructive device, so he lacked the mens rea to be convicted of

2 No. 14-1809

these crimes. The jury disagreed, and convicted him. Lock-

wood’s sentencing range was 33 to 41 months’ imprisonment

on each count. However, the district court sentenced him to

concurrent terms of 120 months’ imprisonment.

On appeal, Lockwood argues that the object he stipulated

to possessing was not a “destructive device” because it lacked

a power supply and thus could not actually explode. Addition-

ally, Lockwood challenges the federal jurisdiction for this

prosecution by arguing that the object’s end caps lack a

sufficient nexus to interstate commerce. Finally, Lockwood

challenges the procedural and substantive reasonableness of

his sentence. We affirm Lockwood’s convictions, but vacate his

sentence and remand for resentencing.

I. Background

In the late 1980s, Lloyd Lockwood was convicted of a

number of felonies.1 After Lockwood served his time, he found

success through his ownership and operation of an automotive

repair and towing business that employed fourteen people. All

signs suggested that he had abandoned the reckless criminal

lifestyle that plagued his youth. Or so it seemed.

1

The exact number of felonies Lockwood has committed is unclear. The

parties’ stipulations state that Lockwood had three prior felony convictions

for: unlawful restraint, aggravated arson, and possession of a controlled

substance. Appendix 11 at ¶ 11. However, the government’s brief contends

that Lockwood was also convicted of felonies in 1986 for “unlawful

discharge of a weapon” and in 1988 for theft. Gov’t Br. 14. For purposes of

this appeal, the exact number is immaterial because the magic number is

one.

No. 14-1809 3

On March 29, 2011, Lockwood’s problems returned when

an old friend, Susie Curtis, approached him upset that her

brother had initiated charges against her for ripping off their

elderly parents to the tune of $160,000. Curtis surmised that

she could avoid having to go to court on March 31 to face the

music if her brother were also in trouble, so she asked Lock-

wood to place a package inside her brother’s truck and then to

call 911 and report that the package contained a bomb. Lock-

wood agreed and on March 30, 2011, he drove the package to

Decatur, Illinois, and placed it in the brother’s mailbox instead

of his truck because he did not see the truck. Lockwood then

called 911. This exchange followed:

OPERATOR:

“Decatur and Macon County 911, where’s your

emergency?”

LOCKWOOD:

“At 1836 Ferris Drive. The guy’s name is Bobby, he

drive a black truck. The motherfucker talking about

blowing up his job up today. And he got the bomb.”

When the authorities arrived at the brother’s home, they

did not find a bomb. However, the next morning the brother’s

wife found an object that appeared to be a pipe bomb in the

family mailbox. The authorities were called again, and the

bomb squad arrived with a robot. The bomb squad used the

robot to knock off one of the pipe bomb-shaped object’s end

caps. Then the robot picked up what remained of the pipe

bomb-shaped object, poured its black powder into an evidence

can, and then knocked off the other end cap. A photograph of

4 No. 14-1809

the pipe bomb-shaped object (absent the removed end caps) is

reproduced below:

The deconstructed pipe bomb-shaped object consisted of an

initiator, black wires, and black tape, and was surrounded by

insulation and a plastic bag.

A. The federal investigation of Lockwood

Several months later, federal agents became interested in

Lockwood after examining Curtis’s cell phone records and, in

November 2011, two federal agents interviewed him. Lock-

wood initially denied that he knew anything about the incident

or the 911 call, but after one of the agents played a recording of

the call, Lockwood admitted that he made it. Lockwood then

described the package he delivered, but denied knowing what

No. 14-1809 5

was in it. When one of the agents asked why he told the 911

operator that “Bobby had a bomb” if he did not know what

was in the package, Lockwood said he told the operator that

there was a bomb because that was what Curtis told him to

say. Lockwood then agreed to call Curtis while the agents

listened in. During two phone calls to Curtis (which the agents

recorded) Lockwood repeatedly asked her if the bomb was

real. Curtis did not answer the questions and said that they

should not text and should speak on different phones.

B. Proceedings in the district court

On October 4, 2012, the grand jury returned an indictment

against Lockwood, charging him with one count of violating 26

U.S.C. § 5861(d), which states that “[i]t shall be unlawful for

any person to receive or possess a firearm which is not regis-

tered to him in the National Firearms Registration and Transfer

Record,” and one count of violating 18 U.S.C. § 922(g)(1),

which states that “[i]t shall be unlawful for any person who has

been convicted in any court of, a crime punishable by impris-

onment for a term exceeding one year to ... possess in or

affecting commerce, any firearm or ammunition; or to receive

any firearm or ammunition which has been shipped or

transported in interstate or foreign commerce.” He pleaded not

guilty and proceeded to trial by a jury.

1. Trial

The parties stipulated to all material facts except Lock-

wood’s knowledge of the contents of the package. Of particular

relevance to this appeal are two stipulations which read: “[t]he

United States of America and the defendant, Lloyd B. Lock-

wood, stipulate and agree:

6 No. 14-1809

***

The Parties’ Second Stipulation

A qualified explosives enforcement officer from the

Bureau of Alcohol, Tobacco, Firearms, and Explo-

sives examined the device, marked as government’s

group exhibit 2. The explosives enforcement officer

determined that the device is consistent with an

improvised explosive device, commonly known as

a pipe bomb, and would be properly identified as an

explosive bomb. Explosive bombs are destructive

devices as that term is defined in 26 U.S.C. § 5845(f)

and are required to be registered with the National

Firearms Registration and Transfer Record under 26

U.S.C. § 5841(a). Government’s group exhibit 2 is

admitted into evidence.

***

The Parties’ Fourth Stipulation

The end caps of the device, marked as government’s

exhibit 2, were made in China.

Lockwood’s stipulations to these facts were consistent with

his theory of defense at trial, which centered on one element

common to each offense: knowing possession of the pipe

bomb. In her opening statement, Lockwood’s attorney told the

jury:

It is a very simple and also a very difficult question

for you to answer. It’s simple because it’s one thing:

Did he or did he not know that it was a functional

pipe bomb in that package before he dropped it off?

No. 14-1809 7

That is the only issue in this case. Because nobody is

disputing that it was a pipe bomb. I’m not going to

get up here and argue that it wasn’t what they say it

was, or that he didn’t put it in the mailbox, or that

he didn’t call 911, or anything that happened during

the course of the investigation. Because all of that

did happen.

In closing argument, Lockwood’s attorney reiterated,

“There is still just the one issue for you to decide, which is: Did

he know before he placed the package into the [] mailbox—did

he know what it was?” Lockwood’s attorney then acknowl-

edged that:

[The prosecutor] did a very pretty job of arranging

all of the other elements for you and showing you

that those elements have already been established;

and as I told you in the very beginning when I first

got up here, I am not arguing with any of that. We

are not arguing with that. The device ended up

being a pipe bomb. The device was not registered.

All of those things are true.

“All of those things were stipulated to,” she further

explained, because if the prosecutor “had brought in evidence

and shown those things, dragged some ATF agent from

Washington, D.C., to prove the pipe bomb was a pipe bomb,

that would have been a waste of everybody’s time. We’re not

going to fight the things that are just plainly true.”

The district court held a preliminary jury instruction

conference at the close of the first day of trial. During the

conference, the court asked defense counsel if there was any

8 No. 14-1809

objection to Government Instruction No. 23, which read, in

part:

This requirement [“in or affecting commerce” and

“interstate or foreign commerce”] is satisfied if a

component of the destructive device traveled in

interstate or foreign commerce prior to the defen-

dant’s possession of it. A component has traveled in

interstate or foreign commerce if it has traveled

between one state and any other state or country, or

across a state or national boundary line.

Lockwood’s attorney answered, “No.” At the close of the

government’s case, Lockwood moved for a judgment of

acquittal under Rule 29. The motion was denied. Then, at the

conclusion of all the evidence, Lockwood renewed his Rule 29

motion for acquittal. Again, it was denied. At that point, the

district court reiterated knowing possession as “the issue here”

because the other elements were proven by the parties’

stipulations. After a two-day trial, the jury returned a verdict

of guilty on both counts. Lockwood filed post-trial motions,

but they were dismissed as untimely filed. The presiding judge

then retired, and a new judge was assigned to the case for

sentencing.

2. Sentencing

On April 10, 2014, District Judge Baker held Lockwood’s

sentencing hearing. Due to the staleness of Lockwood’s

previous felony convictions, the government withdrew its

initial recommendation that Lockwood be sentenced as a

career criminal. The district court accepted the PSR’s amended

No. 14-1809 9

recitation of Lockwood’s criminal history, and assessed him a

criminal history of category I.

The relevant portion of the amended PSR ultimately

considered by the sentencing court calculated a base offense

level of 18 under U.S.S.G. § 2K2.1 and added a two-point

enhancement pursuant to § 2K2.1(3)(B) because the offense

involved a destructive device, for a total offense level of 20. In

light of Lockwood’s amended criminal history category of I,

this yielded an imprisonment guideline range of 33 to 41

months.

The court proceeded to hear testimony from the victims,

consisting of Curtis’s brother who was the initial target and his

wife, who discovered the pipe bomb-shaped object in the

family mailbox. The government argued for a sentence of 120

months’ imprisonment. Lockwood’s attorney argued for a

sentence of 33 months in light of his assistance with the

authorities’ investigation of Curtis. Finally, Lockwood apolo-

gized profusely to the victims, but maintained his story that he

did not know what was in the package he delivered. After

Lockwood completed his remarks, the court explained its

thinking as follows:

THE COURT: I don’t believe anything you told me.

I believe you worked with this woman, Susie, and

you knew, or at least you’ve—in the phone call you

made, you said you knew it was a bomb, and it

turns out that the bomb was capable of detonation.

It was detonated.

DEFENDANT LOCKWOOD: No, it wasn’t.

10 No. 14-1809

THE COURT: Now—you’re done. You had your

right of allocution, and I’m trying to tell you my

thinking and my reasoning. I have the unfortunate

duty now of making a final disposition in this case.

You have a, an extensive criminal record. You have

an occasion where you’ve discharged firearms at

people, all the other things that are in the record. I

don’t need to repeat them all. They’re extensive.

You’re not—you’re not an armed career criminal. I’ll

accept that. And it’s not in the case. But I’ve—I’ve

come to the conclusion, not out of revenge or pun-

ishment or anything, that you’re a person who needs

to be incapacitated. I need to protect society and put

you away from society because of the violent nature

of your history with the discharge of the firearms;

that you’re willing to participate in putting a bomb,

an explosive device, in somebody’s mailbox or

whatever they were going to do with it. And the fact

is that the device really was an explosive device, and

it was exploded. And so for reasons of incapacita-

tion, to take you away from society, it’s the judg-

ment of the Court that you be committed to the

custody of the Attorney General, or his authorized

representative, for the term of 120 months, which is

the maximum I can give under the statute. Because

I can only repeat myself. I think you need to be

taken away from society.

The district court then entered a sentence of 120 months’

imprisonment followed by three years of supervised release.

No. 14-1809 11

Following sentencing, the court issued a statement of reasons

for the sentence imposed. The court’s justification for imposing

an above-guidelines sentence mirrored those offered by the

court during the hearing and consisted of two sentences.

Lockwood timely appealed his convictions and sentence.

II. Analysis

A. Lockwood’s stipulation to his possession of a

“destructive device”

Lockwood was convicted of possession of a destructive

device. To prove that an object is a “destructive device” under

26 U.S.C. § 5845(f) and 18 U.S.C. § 921(a)(4), the government

must prove that an object which the government alleges to be

a “destructive device” was fully assembled and could deto-

nate, pursuant to subpart (f)(1), or that the defendant had

ready access to all necessary components to readily assemble

an object that could detonate, pursuant to subpart (f)(3). See

United States v. Johnson, 152 F.3d 618, 623 (7th Cir. 1998); see

also, United States v. Strache, 202 F.3d 980, 986–87 (7th Cir. 2000)

(affirming imposition of “destructive device” enhancement

because although objects that appeared to be hand grenades

lacked a “plug” necessary to be operational, defendant could

readily convert them into operational destructive devices with

minimal labor).

Lockwood argues that since he lacked an immediate power

supply, he did not possess a “destructive device” as that

phrase is defined in 26 U.S.C. § 5845(f) and 18 U.S.C.

§ 921(a)(4). Lockwood’s argument might have persuaded the

district court if he had presented it in a motion to dismiss the

indictment, but in his pretrial submissions, Lockwood stipu-

12 No. 14-1809

lated that he possessed an explosive bomb and that the

explosive bomb he possessed was a destructive device as that

phrase is defined in 26 U.S.C. § 5845(f).

Despite this stipulation, Lockwood asserts that no rational

jury could have found the essential elements of the crime to be

present beyond a reasonable doubt. See United States v. Johnson,

592 F.3d 749, 754 (7th Cir. 2010). Lockwood supports this

argument by directing our attention to the ATF agent’s trial

testimony, in which he identified all of the components he

recovered from the pipe bomb-shaped object from the family

mailbox, but failed to list a power supply among them.

We also reject this argument because Lockwood stipulated

to the fact that the pipe bomb-shaped object he placed in the

family mailbox was a destructive device. Lockwood cannot

now escape the parties’ stipulation by challenging his convic-

tion based on a lack of evidence after he conceded the fact in a

stipulation.

The record is clear and consistent that Lockwood elected to

enter into this stipulation on the basis of his strategic decision

to focus the jury’s attention on the issue of whether he know-

ingly possessed an object alleged to be a pipe bomb. By making

the strategic decision to enter into a stipulation with the

government, Lockwood abandoned his ability to challenge the

contents of that stipulation later at trial or on appeal. See United

States v. Fluker, 698 F.3d 988, 998 (7th Cir. 2012); see also, United

States v. Muse, 83 F.3d 672, 679 (4th Cir. 1996) (“[A] defendant

may not argue at trial or on appeal that the stipulation is

insufficient to prove beyond a reasonable doubt the facts or

elements to which he has stipulated.”). Fluker treats abandoned

No. 14-1809 13

issues as waived, 698 F.3d at 998, and waived issues are

unreviewable. United States v. Walton, 255 F.3d 437, 441 (7th

Cir. 2001). Lockwood is bound by his stipulation.

B. Nexus to interstate commerce

The government also charged Lockwood with being a felon

in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

A pipe bomb qualifies as a firearm within the meaning of the

statute. The statute, though, also requires the government to

prove that the pipe bomb-shaped object Lockwood allegedly

possessed was “in or affecting interstate commerce.” 18 U.S.C.

§ 922(g). The parties’ fourth stipulation reads that “[t]he end

caps of the device, marked as government’s exhibit 2, were

made in China.” Because China is outside of Illinois, by

implication the parties stipulated to the legal conclusion that

the pipe bomb-shaped object’s two end caps traveled in

interstate commerce.

In response, Lockwood contends that a conviction under

§ 922(g) requires proof that more than one component of the

object traveled in interstate commerce. The Fourth Circuit

previously rejected this argument under the exact same

circumstances in United States v. Verna, 113 F.3d 499 (4th Cir.

1997), where the parties had stipulated that one component of

the destructive device had traveled in interstate commerce (in

that case, gun powder). In Verna, the court said that “it is

simply not necessary, in order to satisfy the statute, that each

and every individual part of the bomb itself have traveled

across state lines.” Id. at 503. And while our recent decision in

United States v. Foley, 740 F.3d 1079 (7th Cir. 2014), did not

involve a stipulation or a firearm, there we rejected the

14 No. 14-1809

defendant’s sufficiency of the evidence argument and held that

a computer hard-drive made in China “could satisfy the

government’s burden to prove the commerce element”

necessary to convict a child pornographer. Id. at 1086. How-

ever, we need not decide whether to adopt the rationale of

those authorities today because even if we treat the two end

caps as one element for interstate commerce purposes, Lock-

wood waived this argument.

Prior to trial, Lockwood stipulated that a component of the

object traveled in interstate commerce by stipulating that the

ends caps were made in China.2 Then, at trial, he stated that he

had no objection to Government Instruction No. 23, which

instructed the jury that the interstate nexus requirement of 18

U.S.C. § 922(g) “is satisfied if a component of the destructive

device traveled in interstate or foreign commerce prior to the

defendant’s possession of it” (emphasis added).

On these bases, Lockwood is bound by his stipulation and

waived any challenge to the interstate commerce element.

United States v. Gonzalez, 319 F.3d 291, 298 (7th Cir. 2003) (“This

challenge has been waived because the defendants accepted

the relevant instructions—they affirmatively stated in court,

‘No objection.’”). Because Lockwood stipulated that the

2

Although Lockwood reasserts the same insufficiency of the evidence

argument that he made in his earlier challenge to the parties’ second

stipulation, we reject it again for the same reason—we will not entertain

sufficiency of the evidence arguments on appeal when the parties’

stipulations eliminate the need for the government to introduce evidence

related to those issues at trial. Fluker, 698 F.3d at 998; Muse, 83 F.3d at 679.

No. 14-1809 15

elements of convictions he now challenges on appeal were met,

we affirm his convictions.

C. Lockwood’s sentencing hearing

Finally, Lockwood contests the procedural soundness and

substantive reasonableness of his sentence.

1. Procedural soundness

We review Lockwood’s procedural challenge to his

sentence de novo. United States v. Dachman, 743 F.3d 254, 261

(7th Cir. 2014). “A sentencing court commits procedural error

by not adequately explaining its choice of sentence.” United

States v. Lyons, 733 F.3d 777, 784 (7th Cir. 2013). To ensure that

the sentencing judge did not commit any “significant proce-

dural error,” Gall v. United States, 552 U.S. 38, 53 (2008), we

examine whether it: i) properly calculated the Guideline range;

ii) recognized that the Guideline range was not mandatory; iii)

considered the sentencing factors in 18 U.S.C. § 3553(a); iv)

selected a sentence based on facts that were not clearly

erroneous; and, v) adequately explained the chosen sentence

including an explanation for any deviation from the Guidelines

range. United States v. Jackson, 547 F.3d 786, 792 (7th Cir. 2008).

Lockwood argues that the district court committed significant

procedural error at sentencing by failing the last three criteria.

Under the Supreme Court’s teachings:

If [the sentencing court] decides that an outside-

Guidelines sentence is warranted, he must consider

the extent of the deviation and ensure that the

justification is sufficiently compelling to support the

degree of variance. We find it uncontroversial that a

16 No. 14-1809

major departure should be supported by a more

significant justification than a minor one. After

settling on the appropriate sentence, he must ade-

quately explain the chosen sentence to allow for

meaningful appellate review and to promote the

perception of fair sentencing.

Gall, 552 U.S. at 50.

Based on Gall, Lockwood argues the sentencing court failed

the fifth Jackson factor—which requires that it “adequately

explain ... any deviation from the Guidelines range.” 547 F.3d

at 792. We stress that the question is not whether 120 months

could be a reasonable sentence, but whether the sentencing

court’s “articulated reasons ... are sufficiently compelling on

this record to satisfy us that the term imposed is reasonable.”

United States v. Castro-Juarez, 425 F.3d 430, 433 (7th Cir. 2005).

For Lockwood, the district court’s 120-month sentence was

nearly three times the high end of the Guideline sentencing

range.

“A departure from the Guidelines, especially a significant

one, must be carefully explained.” United States v. Snyder, 635

F.3d 956, 961 (7th Cir. 2011). Yet, the court’s explanation in this

case totals one full page of the sentencing transcript. We do not

mean to suggest that one page of transcript may never supply

an adequate justification for a sentence. However, here, the

court made no explicit reference to 18 U.S.C.§ 3553, it failed to

explain how it balanced those factors, and it made no reference

to the advisory Guideline range at all. Snyder, 635 F.3d at 962

(“A failure to altogether consider the Guidelines is not

harmless.”).

No. 14-1809 17

Presumably in an attempt to satisfy § 3553(a)(1) (the history

and characteristics of the defendant), the sentencing court

observed that Lockwood had “an extensive criminal record”

and mentioned “an occasion where [he] discharged firearms at

people.” But the facts of his criminal history are already taken

into account by Lockwood’s criminal history level—category

I—which was integral to the Guidelines recommendation of 33

to 41 months. The district court’s allusion to the obvious fails

to prove the “compelling justification” Gall deems necessary to

impose an above-Guidelines sentence of nearly three times the

high end of the Guidelines.

The court also referenced its need to “incapacitate[]”

Lockwood “to protect society and put [him] away from society

because of the violent nature of [his] history.” While these

statements promote § 3553(a)(2)(B)’s goal of affording ade-

quate deterrence to criminal conduct and § 3553(a)(2)(C)’s goal

of protecting the public from further crimes of the defendant,

these brief remarks do not explain with particularity the

reasons why Lockwood is different from the vast majority of

defendants—many of whom also have criminal histories, are

dangerous, and must be incapacitated to protect society—but

who are not sentenced to terms of imprisonment nearly three

times above the high end of the Guidelines.

When a district court imposes an sentence that is multiple

times above the Guidelines, it must explain why that particular

defendant requires a more severe punishment than most

defendants. See United States v. Higdon, 531 F.3d 561, 564 (7th

Cir. 2008) (vacating sentence more than two-and-a half-times

the high end of the Guidelines for, inter alia, failing to explain

why the defendant must be punished more severely than most

18 No. 14-1809

defendants who receive within-Guidelines sentences). In other

words, the facts recounted by the court must address the

disparity—i.e., why this defendant deserves a significantly

higher sentence than others who commit the same offense.

In addition to Higdon, this case is also reminiscent of United

States v. Castro-Juarez, 425 F.3d 430 (7th Cir. 2005). In Castro-

Juarez, the defendant pleaded guilty to being present in the

United States unlawfully after his removal following a felony

conviction. Id. at 431. The high end of the Guidelines recom-

mended a sentence of 21 months’ imprisonment, but the court

imposed a sentence of over twice that—48 months. Id. Castro-

Juarez appealed his sentence, and we vacated and remanded

it for resentencing because the district court did not sufficiently

justify the imposition of a sentence more than double the high

end of the Guideline range, even though its commentary had

focused on Castro-Juarez’s “repeated cycles of unlawful entry

and deportation, the ‘horrible’ criminal record he incurred

living in the United States, and his history of violent acts

affecting the women and children in his life.” Id. at 432.

In vacating Castro-Juarez’s sentence, we noted that the

sentencing court incorrectly focused exclusively on his criminal

history. Id. Likewise, the district court here also focused almost

exclusively on Lockwood’s previous criminal history, but

sprinkled in a mention of his current offense and two com-

ments about the need to incapacitate him. Yet the thrust of the

problem in both cases is the same. In order for us to uphold a

sentence that is nearly three-times the Guideline recommenda-

tion, the sentencing court must provide a compelling justifica-

tion, Gall, 552 U.S. at 50; United States v. Dean, 414 F.3d 725, 729

(7th Cir. 2005), “adequately explain ... its deviation from the

No. 14-1809 19

Guidelines range,” and provide the reasons that the sentencing

court believes the defendant is deserving of extraordinary

punishment. Jackson, 547 F.3d at 792; Castro-Juarez, 425 F.3d at

437. In this case, the sentencing court’s truncated reference to

the defendant’s criminal history, a mention of the current

offense, and two comments about incapacitation, fail to

adequately satisfy the procedural conditions necessary for us

to sustain a sentence that is nearly three times above the

Guideline recommendation.

Finally, the court made no mention of mitigation at sentenc-

ing until Lockwood’s attorney inquired after the fact if the

court had considered his arguments in mitigation. “District

courts must consider a defendant’s principal, nonfrivolous

arguments in mitigation when selecting an appropriate

sentence for a defendant,” and they must do so on the record

before imposing a sentence. United States v. Poulin, 745 F.3d

796, 800 (7th Cir. 2014). This procedural rule is important

because it “promote[s] the perception of fair sentencing.” Gall,

552 U.S. at 50. Lockwood only raised two arguments in

mitigation—that he had assisted the authorities with their

investigation of Curtis and had run a successful business.

While not likely to be found compelling, these arguments are

not frivolous. Although the court confirmed that it considered

these arguments in mitigation, it did not make this acknowl-

edgment until prompted by counsel after it imposed its

sentence and it did not mention Lockwood’s assistance with

the authorities’ investigation of Curtis at all.3 The totality of

3

We also note that the court remarked at one point in the proceeding that

(continued...)

20 No. 14-1809

these procedural missteps leaves us unable to meaningfully

review Lockwood’s sentence. United States v. Washington, 739

F.3d 1080, 1082 (7th Cir. 2014). Accordingly, we vacate

Lockwood’s sentence, and remand for resentencing.4

2. Substantive reasonableness

Lockwood also challenges the substantive reasonableness

of his sentence. Because we conclude that the district court’s

sentence was procedurally insufficient, we need not decide

whether his sentence is substantively reasonable. Snyder, 635

F.3d at 962. We express no view on whether—with the benefit

of a sufficient explanation—a sentence of 120 months’ impris-

onment would be substantively reasonable under these

circumstances.5

3

(...continued)

it hadn’t sentenced a defendant in sixteen years. While the court made this

remark only in passing, sentencing courts must be cautious of extraneous

comments that hinder, rather than “promote the perception of fair

sentencing.” Gall, 552 U.S. at 50.

4

Although Lockwood argues that the sentencing court clearly erred by

twice stating that the object exploded during the authorities’ investigation,

this argument is moot because our conclusion that the sentencing court

committed procedural error under § 3553(a) is based on the undisputed

commentary in the sentencing transcript. On remand, if the parties

determine that there is some dispute over whether the pipe bomb-shaped

object “exploded,” they should present their positions to the court before

resentencing so that it is adequately apprised.

5

Still, it appears from the sentencing judge’s comments that he based

Lockwood’s sentence primarily on two facts: 1) that Lockwood has misused

(continued...)

No. 14-1809 21

III. Conclusion

Lockwood stipulated to the fact that he possessed a

destructive device. He also stipulated to the fact that the two

end caps on the destructive device that he possessed were

made in China, which means they had a sufficient nexus to

interstate commerce to confer federal jurisdiction on this

prosecution. Accordingly, we AFFIRM Lockwood’s convic-

tions. However, because Lockwood’s sentence was procedur-

ally unsound, we VACATE his sentence, and REMAND this

case to the district court for resentencing consistent with this

opinion.

5

(...continued)

firearms, and; 2) that he is the type of person who is “willing to participate

in putting a bomb, an explosive device, in somebody’s mailbox.” By these

comments, the judge appeared to reason that Lockwood needed to be

incapacitated because he is likely to harm others with firearms and bombs.

However, the facts do not support this conclusion. First, Lockwood’s

successful business enterprise is evidence that he has moved on from the

gun crimes of his past. Second, the facts do not suggest that Lockwood

intended to harm anyone with the device that he possessed. He only

intended to use the device to frame Curtis’s brother—which is why he

called 911 immediately after he placed it in the family’s mailbox. That the

device remained in the family’s mailbox only to be discovered the next day

was not the result of Lockwood’s malice, but his inability to anticipate that

the authorities would not search the mailbox based on his report that

“Bobby had a bomb.” The best evidence of this reality is the face of the

indictment: Lockwood was charged with possession of a destructive device,

not attempted terrorism.