United States v. Lloyd B. Lockwood

In the

United States Court of Appeals

For the Seventh Circuit

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No. 15-3856

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. 2:12-cr-20070 — Harold A. Baker, Judge.

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ARGUED SEPTEMBER 22, 2016 — DECIDED NOVEMBER 1, 2016

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Before BAUER, POSNER, and MANION, Circuit Judges.

MANION, Circuit Judge. This case returns for a second time.

Lloyd Lockwood appeals his 120-month sentence for posses-

sion of a destructive device. Previously, we vacated Lock-

wood’s first sentence of the same length. This time, for the rea-

sons set forth below, we affirm.

2 No. 15-3856

I. Background

A. Conviction and First Sentencing 1

In an attempt to gain an advantage in a family dispute,

Susie Curtis asked her longtime friend Lloyd Lockwood to

place a package in her brother’s truck and then report to the

police that it contained a bomb. Lockwood agreed to do it, but

upon arrival at the brother’s house, he failed to locate the

truck. As a result, Lockwood decided to place the bomb in the

brother’s mailbox. He then immediately called the police and

reported that the brother had a bomb and planned to blow up

his office. An initial bomb-squad search turned up nothing,

but Curtis’s sister-in-law discovered the package in the cou-

ple’s mailbox later that day. Authorities determined that the

package contained a pipe bomb that was incapable of detona-

tion because it was not connected to a power source.

After reviewing Curtis’s phone records, federal agents ze-

roed in on Lockwood. The government eventually charged

him with possession of a destructive device. Before trial,

Lockwood stipulated that the pipe bomb qualified as a de-

structive device under federal law. As a result, he necessarily

staked his entire defense at trial on his supposed ignorance

that the package contained a bomb. The jury was uncon-

vinced and convicted him. 2

1 A more detailed recitation of the facts relating to Lockwood’s con-

viction is set forth in our initial decision in this case. United States v. Lock-

wood, 789 F.3d 773 (7th Cir. 2015) (Lockwood I). We present a brief summary

here for the sake of clarity.

2 The presiding district judge retired after the trial. Judge Baker was

assigned to the case for sentencing.

No. 15-3856 3

The district court sentenced Lockwood to the statutory

maximum 120 months’ imprisonment, well above the Guide-

lines range of 33–41 months. The court concluded that Lock-

wood had to be incapacitated, but it based that finding on

only a short, non-detailed description of Lockwood’s criminal

history and a cursory discussion of the crime of conviction.

See Lockwood I, 789 F.3d at 778–79.

On appeal, we affirmed his conviction but vacated his sen-

tence. We held that the district court did not explain ade-

quately “why Lockwood is different from the vast majority of

defendants” who receive within-Guidelines sentences. Id. at

782. In short, the district court’s description of Lockwood’s

crime and brief notation of his “extensive criminal record”

was insufficient to show why Lockwood should receive a sen-

tence nearly three times the top of the Guidelines range. Id.

B. Resentencing

On remand, the district court again imposed a 120-month

sentence. This time, however, it detailed its justification in a

lengthy sentencing order. The court recounted testimony

from Lockwood’s ex-wife and her sister, both of whom spoke

about Lockwood’s propensity for violence that continued

even while he was on pretrial release in this case. Although

Lockwood’s criminal history category was I, the court found

that “his Guideline criminal history and criminal history cat-

egory do not reflect the full magnitude of his criminal con-

duct.” It extensively detailed his troubling history, which in-

cludes several domestic incidents wherein he threatened to

kill women, one of which resulted in a conviction for aggra-

vated arson when he burned down a girlfriend’s apartment

building. See People v. Lockwood, 608 N.E.2d 132 (Ill. Ct. App.

1992).

4 No. 15-3856

Ultimately, the district court concluded that Lockwood

should be incapacitated for a significant time to protect the

public and those closest to him. Based on the evidence and

Lockwood’s demeanor, the court deemed Lockwood a “soci-

opath” who showed little remorse for his actions and had

made a lifetime of excuses for criminal behavior. Since the

court held “very little hope for Lockwood’s rehabilitation or

behavior modification,” it sentenced him to the ten-year max-

imum. Again, Lockwood timely appealed.

II. Discussion

A. Procedural Soundness

We review Lockwood’s procedural challenge de novo. Lock-

wood I, 789 F.3d at 781. “A sentencing court commits proce-

dural error by not adequately explaining its choice of sen-

tence.” Id. (quoting United States v. Lyons, 733 F.3d 777, 784 (7th

Cir. 2013)). To ensure that the sentencing judge did not com-

mit any “significant procedural error,” Gall v. United States,

552 U.S. 38, 53 (2008), we examine whether the district court:

i) properly calculated the Guidelines range; ii) recognized that

the Guidelines range was not mandatory; iii) considered the

sentencing factors in 18 U.S.C. § 3553(a); iv) selected a sen-

tence based on facts that were not clearly erroneous; and v)

adequately explained the chosen sentence including an expla-

nation for any deviation from the Guidelines range. Lockwood

I, 789 F.3d at 781.

If the sentencing court decides that an above-Guidelines

sentence is warranted, it must “consider the extent of the de-

viation and ensure that the justification is sufficiently compel-

ling to support the degree of variance.” Gall, 552 U.S. at 50.

No. 15-3856 5

The court must “adequately explain the chosen sentence to al-

low for meaningful appellate review and to promote the per-

ception of fair sentencing.” Id. The sentencing judge also must

address a defendant’s “principal arguments in mitigation un-

less they are too weak to merit discussion.” United States v.

Garcia-Segura, 717 F.3d 566, 568 (7th Cir. 2013). The ultimate

question is not whether the sentence imposed could be a rea-

sonable one, but whether the reasons given are sufficiently

compelling to support the upward departure. Lockwood I, 789

F.3d at 781.

In this case, the district court properly calculated the

Guidelines range, acknowledged that the range was manda-

tory, and considered the Section 3553(a) factors. Thus, only

the final two, somewhat related procedural requirements are

at issue. Lockwood contends that the district court relied on

erroneous facts and failed to explain adequately the upward

departure. According to Lockwood, the court made four spe-

cific errors: (1) it improperly credited the testimony of his ex-

wife and former sister-in-law to establish his propensity for

violence; (2) it improperly inferred that the pipe bomb he de-

posited was capable of harm; (3) it relied too heavily on his

criminal history despite the age of his convictions; and (4) it

failed to sufficiently address his mitigation arguments. Lock-

wood’s first two arguments allege that the district court relied

on clearly erroneous facts, while the third alleges a failure to

explain the chosen sentence adequately. We consider and re-

ject these arguments in turn.

1. Sisters’ Testimony

Lockwood contends that the district court should have

disregarded some of Crystal Jarvis’s testimony. He says that

Jarvis, his former sister-in-law, was clearly biased and that

6 No. 15-3856

part of her testimony was fatally inconsistent. Lockwood par-

ticularly takes issue with Jarvis’s claim at the hearing that

Lockwood had a gun when he threatened her while on release

in this case. That testimony contradicts what she told police

when she first reported the incident in 2012. The district court

credited her in-court testimony and found that Lockwood

pointed a gun at her and threatened to kill her.

“[D]eterminations of witness credibility are entitled to

great deference and ‘can virtually never be clear error.’”

United States v. Ortiz, 431 F.3d 1035, 1039 (7th Cir. 2005) (quot-

ing United States v. Blalock, 321 F.3d 686, 690 (7th Cir. 2003)).

Unless a witness’s testimony describes events that are impos-

sible, either physically or under the laws of nature, the district

court is within its discretion to credit that testimony. Id. Incon-

sistencies in a witness’s testimony are not enough to meet this

standard. See id. at 1040. Nor is potential bias. Indeed, a dis-

trict court “may credit testimony that is ‘totally uncorrobo-

rated and comes from an admitted liar, convicted felon, or

large scale drug-dealing, paid government informant.’”

United States v. White, 360 F.3d 718, 720 (7th Cir. 2004) (quoting

Blalock, 321 F.3d at 690). The court’s decision to credit Jarvis’s

testimony was not clear error.

Next, Lockwood takes issue with the district court’s reci-

tation of certain testimony from his ex-wife, Tonya Sexton.

Specifically, the court recounted that “Sexton spoke of evi-

dence of fires (a charred paper towel stuffed into her car’s fuel

tank filler neck, and a fire smouldering upstairs in their house

after Lockwood left the house one morning).” It cautioned

that Sexton “could not be sure Lockwood had anything to do

with either occurrence,” but noted that “Lockwood is no

stranger to fire as a means of intimidation.”

No. 15-3856 7

Lockwood claims that the district court improperly in-

ferred that he was involved in those incidents. The text of the

sentencing order says otherwise. The court credited Sexton’s

testimony that the incidents occurred, but also her uncer-

tainty about Lockwood’s involvement. It also alluded to Lock-

wood’s past arson conviction. That is not equivalent to a fac-

tual finding that Lockwood was involved in the incidents

with Sexton. The court did not rely on any clearly erroneous

facts with respect to her testimony.

2. The Bomb’s Ability to Cause Harm

Lockwood next contends that the district court improperly

inferred that the bomb he possessed was capable of harm. The

sentencing order does say that Lockwood’s placement of the

bomb in the mailbox “expos[ed] the mail carrier to harm.” But

this is little more than a stray remark. The footnote attached

to it dispels any concern that the court relied on a clearly er-

roneous fact. 3 The court knew that the bomb was not capable

of detonation, so it could not possibly have relied on the fact

that it was so capable. 4

3 The footnote recognizes that “[t]he bomb was not attached to an en-

ergy source.”

4 Even if the use of the word “harm” was perhaps a poor choice, it was

at most harmless error. Error is harmless when it “did not affect the dis-

trict court’s selection of the sentence imposed.” United States v. Glosser, 623

F.3d 413, 419 (7th Cir. 2010) (quoting Williams v. United States, 503 U.S. 193,

203 (1992)). The district court’s stray statement that Lockwood’s actions

“expos[ed] the mail carrier to harm” did not affect the court’s overall anal-

ysis and choice of sentence. That sentence was instead based on the evi-

dence of Lockwood’s propensity for violence and his failure to show any

remorse or accept responsibility for his actions.

8 No. 15-3856

3. Reliance on Lockwood’s Criminal History

Lockwood contends that the district court did not ade-

quately explain its upward departure because it again focused

too heavily on his criminal history. In Lockwood I, we held that

the district court erred when it “focused almost exclusively on

Lockwood’s previous criminal history, but sprinkled in a men-

tion of his current offense and two comments about the need

to incapacitate him.” Lockwood I, 789 F.3d at 782–83. We found

that insufficient to justify a sentence almost three times the

upper Guideline. According to Lockwood, the district court

has repeated its error.

The sentencing order on remand bears little resemblance

to the brief comments the judge made at Lockwood’s first sen-

tencing hearing. We described the court’s justification for

Lockwood’s first sentence as merely a “truncated reference to

[his] criminal history, a mention of the current offense, and

two comments about incapacitation.” Id. at 783. At resentenc-

ing, the court significantly expanded on its discussion of

Lockwood’s dangerous history. It also credited the testimony

of Jarvis and Sexton that described Lockwood’s propensity for

violence against women and showed that it was not behind

him. In short, the court provided much more than a truncated

reference to Lockwood’s history.

Moreover, the district court specifically addressed the ne-

cessity of an upward departure in Lockwood’s case. The sen-

tencing order explained in detail how his criminal history cat-

egory (I) does “not reflect the full magnitude of his criminal

conduct.” In United States v. McIntyre, 531 F.3d 481 (7th Cir.

2008) (per curiam), we recognized that an upward departure

may be appropriate when a defendant’s criminal history cate-

gory underrepresents his actual criminal history. There, the

No. 15-3856 9

defendant had engaged in a life of crime and would have been

sentenced as a career offender “had it not been for a quirk in

Massachusetts law.” Id. at 484. We affirmed his 144-month

sentence for bank robbery although the top of the Guidelines

range was just 46 months. Id. at 482. This case is quite similar.

The district court adequately explained that Lockwood would

have been sentenced as an Armed Career Criminal but for our

decision in Buchmeier v. United States, 581 F.3d 561 (7th Cir.

2009). This was sufficient justification for the upward depar-

ture.

Finally, the court made some other observations that dis-

tinguish Lockwood from the run-of-the-mill offender. Specif-

ically, the court focused on Lockwood’s refusal to take respon-

sibility for his actions. It labeled his statement in allocution a

“denial of reality” and found that his actions exhibited a “total

lack of concern for the results of his conduct.” That is why the

court thought Lockwood a “sociopath” with “very little hope”

of rehabilitation. This explanation, coupled with the Guide-

lines’ underrepresentation of Lockwood’s criminal history,

was not reversible error.

4. Lockwood’s Mitigation Arguments

As Lockwood correctly points out, sentencing courts

“must address a defendant’s principal arguments in mitiga-

tion unless they are too weak to merit discussion.” Garcia-Se-

gura, 717 F.3d at 568. However, the sentencing order did reject

all three mitigation arguments raised in Lockwood’s brief.

The first two—Lockwood’s supposed expression of remorse

and the staleness of his criminal history—require little further

explanation. As discussed above, the district court simply did

not believe that Lockwood was remorseful and thought his

criminal history category significantly undersold the nature

10 No. 15-3856

of his past. The court also rejected Lockwood’s final argument

that he had been operating a legitimate car repair business for

several years since he had been out of prison, finding instead

that the business had operated at a loss. In sum, the district

court satisfied the procedural requirement that it address all

of Lockwood’s principal mitigation arguments.

5. Overall Procedural Soundness

Having rejected Lockwood’s objections to the sentencing

order, we conclude that the district court adequately ex-

plained its choice of sentence and did not rely on any errone-

ous facts in the sentencing order. Therefore, Lockwood’s re-

sentencing was free from procedural error.

B. Substantive Reasonableness

We review the substantive reasonableness of a sentence

only for abuse of discretion. United States v. Aldridge, 642 F.3d

537, 544 (7th Cir. 2011). We will affirm the sentence “so long

as the district court offered an adequate statement of its rea-

sons, consistent with 18 U.S.C. § 3553(a), for imposing such a

sentence.” McIntyre, 531 F.3d at 483. “There is no presumption

that a sentence outside the guidelines’ range is unreasonable.”

Aldridge, 642 F.3d at 544 (citing Gall, 552 U.S. at 51).

Lockwood proffers just one further argument. He con-

tends that a statutory maximum sentence is unreasonable be-

cause many offenders receive less severe sentences for

“worse” conduct, such as possession of a pipe bomb capable

of detonation. Lockwood reasons that his sentence leaves no

room for more culpable offenders to be sentenced more se-

verely. He says that his sentence creates a significant risk of

unwarranted sentencing disparities between defendants.

No. 15-3856 11

Lockwood relies on United States v. Kirkpatrick, 589 F.3d 414

(7th Cir. 2009), and United States v. Snyder, 635 F.3d 956 (7th

Cir. 2011). Kirkpatrick involved a felon-in-possession defend-

ant who was sentenced to 108 months’ imprisonment despite

a Guidelines range of 37–46 months. The defendant had

caused federal agents to waste 200 hours of investigatory time

when he lied about killing four people and placing a contract

hit on the federal agent investigating his case. Kirkpatrick, 589

F.3d at 415. We vacated the sentence because the district judge

had “proceeded as if any sentence within the statutory maxi-

mum (10 years) needs no explanation beyond the conclusion

that something more than the top of the Guidelines’ range is

in order.” Id. In other words, the court failed to explain why

such a significant departure was warranted. The sentence ap-

peared to have been “chosen arbitrarily.” Id.

In Snyder, we vacated a statutory-maximum two-year sen-

tence because the district court had failed to consider the

Guidelines range at all. 635 F.3d at 961. Because of that failure,

we were not certain that the district court had “considered

whether imposing what it believed to be the harshest possible

sentence would lead to unwarranted disparities among simi-

larly situated defendants.” Id. Indeed, we clarified that “[h]ad

the district court correctly calculated and carefully reviewed

the Guidelines range, we would be more confident that it also

considered the need to avoid unwarranted disparities.” Id.

The district court’s failure to consider the Guidelines range

doomed the sentence.

Neither case helps Lockwood. Kirkpatrick stands for the

proposition that sentencing judges must carefully explain sig-

nificant upward departures from the Guidelines range. We af-

12 No. 15-3856

ford significant deference to carefully explained upward de-

partures. Kirkpatrick, 589 F.3d at 415. And Snyder holds only

that district courts must carefully consider the Guidelines

range before imposing an above-Guidelines sentence. Indeed,

the Supreme Court has said that once a district judge does

this, “he necessarily [gives] significant weight and considera-

tion to the need to avoid unwarranted disparities.” Gall, 552

U.S. at 54.

In this case, the district court provided a careful, lengthy

explanation for Lockwood’s statutory-maximum sentence

and the upward departure from the Guidelines. It explained

that Lockwood’s propensity for violence and lack of remorse

warranted a much harsher sentence than Curtis received for

the same crime. The simple fact that Lockwood received a

harsher sentence than some defendants convicted of similar

crimes does not establish an unwarranted disparity. In our le-

gal tradition, each defendant is treated as a unique individual

and “every case as a unique study in the human failings that

sometimes mitigate, sometimes magnify, the crime and the

punishment to ensue.” Id. at 52. We hold that the district court

did not abuse its discretion in sentencing Lockwood to 120

months’ imprisonment.

III. Conclusion

The sentencing order on remand adequately explains the

district court’s decision to sentence Lockwood to the statutory

maximum of 120 months. We find no procedural error and

conclude that his sentence is within the bounds of substantive

reasonableness.

AFFIRMED.