United States v. Jerry J. Jones

• Court: Court of Appeals for the Seventh Circuit
• Decided: June 19, 2020
• Docket: 19-1644
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 19-1644 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

JERRY J. JONES, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 97-cr-00118 — Richard L. Young, Judge. ____________________

ARGUED JUNE 10, 2020 — DECIDED JUNE 19, 2020 ____________________

Before FLAUM, BARRETT, and ST. EVE, Circuit Judges. FLAUM, Circuit Judge. In 1998, a federal jury convicted Jerry Jones of two carjackings, an armed bank robbery, and using firearms during those crimes of violence. The district court sentenced him to 840 months in prison. Twenty years later, the district court vacated its original sentence and ordered re- sentencing because Jones no longer qualified as a career of- fender under the federal Sentencing Guidelines. 2 No. 19-1644

At resentencing, Jones’s effective Guidelines range was 348–390 months. The district court deviated from the Guide- lines and once again sentenced Jones to 840 months in prison. That was an increase of 450 months, approximately 215% above the high end of Jones’s Guidelines range. Jones now ap- peals his sentence. Because the district court did not suffi- ciently justify the extent of its deviation from the Guidelines, we vacate its judgment and remand for resentencing. I. Background In September 1997, Jerry Jones and two others robbed a bank in central Indiana. As part of their plan, they first con- fronted a UPS driver at gunpoint, took his uniform, and hi- jacked his truck. The men then restrained the driver with plas- tic handcuffs in the back of the truck. Upon arriving at the bank, one of them posed as the UPS driver and pretended to make a delivery to distract the bank manager from the heist. The supposed UPS driver then tied the manager’s ankles together. Meanwhile, Jones brandished his firearm, ordered everyone in the bank to the floor, and de- manded that someone open the vault. Jones emptied the vault, and with his gun drawn, took additional cash from a teller station. The thieves loaded over $105,000 into their get- away car and sped off, leaving the real UPS driver handcuffed in the back of the truck. Witnesses soon spotted the robbers in their 1991 red Oldsmobile Toronado. From these reports, law enforcement received the relevant description and accordingly positioned themselves on the nearest interstate. Upon seeing Jones and his crew, state troopers tried to stop the car; instead of stop- ping, however, the car crossed a median and lanes of No. 19-1644 3

oncoming traffic, ending up in a ditch. Jones and the others, still armed, fled on foot. They crossed through a cornfield where the police lost track of them. Coming across a farm- house, the bandits snuck inside while the owners (a married couple) were working outside and their 18-year-old daughter was still at school. Jones and the others hid in the house for nearly six hours; one of them stashed himself in the daugh- ter’s closet. That evening, the daughter entered her bedroom and no- ticed her closet door was ajar. When she opened it, a man she did not know pointed a gun in her face. The daughter screamed and her parents ran toward her. Before they could reach her, the two other men grabbed them, and at gunpoint, ordered them to sit down in the hallway. The intruders even- tually corralled the entire family into the daughter’s bedroom and tied them up. The three men then coerced the father of the family to drive them back to Indianapolis. Jones told the mother that, if she called the police, he and the others would kill her husband. The father drove the robbers in his pickup truck to Indian- apolis. Jones rode in the cab of the car, training his gun on the father and directing him where to go. The other two rode in the truck’s covered bed. After letting all three out, the father returned home to his wife and daughter. Tragically, the mem- ories of these events have haunted the family. The father has stated that “it goes through my mind … two, three times a week.” He has further explained that, on the day it all hap- pened, “the first thing … if I can remember right, I heard my daughter scream.” His wife has recalled that “it was torture” and that “I’ll never be the same.” She has gone on to say that her daughter “was so devastated that she never recuperated.” 4 No. 19-1644

A federal grand jury indicted Jones for one count of armed bank robbery in violation of 18 U.S.C. § 2113(a), (d); two counts of carjacking in violation of 18 U.S.C. § 2119; and three counts of using a firearm during a crime of violence in viola- tion of 18 U.S.C. § 924(c). A trial jury convicted Jones of all those charges. Based on his two prior convictions for breaking and entering and armed robbery (during which Jones dis- charged his weapon), Jones qualified as a career offender un- der Sentencing Guideline § 4B1.1. The district court’s 300- month sentence on the bank robbery and carjacking counts reflected that enhancement. Additionally, the three § 924(c) counts imposed a cumulative mandatory-minimum sentence of 540 months that had to run consecutively to the 300 months on the other counts. The district court therefore sentenced Jones to 840 months in prison. In 2018, Jones petitioned the district court for a writ of ha- beas corpus under 28 U.S.C. § 2241, arguing he was no longer a career offender based on intervening Supreme Court prece- dents. The district court agreed, vacated Jones’s sentence, and ordered resentencing. At resentencing, Jones’s Guidelines range was 168–210 months on the three counts of bank rob- bery and carjacking. As to the three firearms counts, the gov- ernment and the probation office both contended the same ag- gregate 540-month mandatory minimum sentenced applied. But Jones, invoking the First Step Act, asserted that the man- datory minimum was 180 months now. Reading the plain lan- guage of the statute, the district court decided that the change in the law applies “to any offense that was committed before” December 2018 “if a sentence for the offense has not been im- posed” as of December 2018. That included Jones, the court found, overruling the government’s objection. Accordingly, No. 19-1644 5

Jones’s effective Guidelines range was 348–390 months in prison. The government initially recommended a 480-month sen- tence; however, upon learning that the carjacking and robbery counts could run consecutively, the government changed its recommendation to 840 months. The government and the dis- trict court both may have mistakenly thought that this was a lower sentence than Jones originally received. As it happens, Jones’s first sentence was 840 months. The court next considered the relevant sentencing factors under 18 U.S.C. § 3553(a). The court explained that Jones had a “history as a violent predatory individual” and the offenses were “horrific crimes of violence.” Recounting Jones’s con- duct, the court maintained: The defendant put the victims in great fear, threatened … violence to members of the vic- tims’ family, tied them up, pointed guns at them, shotgun -- fired the firearms in the house during one of the break-ins in the victims’ homes after the bank robbery. Some of that statement was inaccurate. Jones did not use a shotgun, did not discharge any firearm, and broke into only one home after the robbery. Still, the court “believe[d] the statutory maximum sen- tence” was appropriate. The court stressed three more factors that bolstered its conclusion: (1) Jones “would be a risk of se- rious criminal activity based on his prior criminal history”; (2) Jones’s co-defendants, “with similar records [and] similar conduct,” had received sentences of 675 months and 728 months under the mandatory Guidelines regime; and (3) after 6 No. 19-1644

his original federal sentencing, Jones received a 273-year sen- tence in Indiana for murder and robbery. Adding the prison terms up count-by-count, the court con- cluded that the “total is 675 months.” That was a mathemati- cal error. The probation officer informed the court that the to- tal was 840 months. The court recalculated and reached the same result. In doing so, the court reiterated its “intention … to give the statutory maximum on Counts 1, 3, and 5.” The court confirmed that 840 months “reflects the Court’s inten- tion and its discretion here.” This timely appeal followed. II. Discussion Jones argues that the district court procedurally erred when it: (1) failed to justify the extent of its 450-month devia- tion from the Guidelines; (2) relied on inaccurate information regarding Jones’s offense conduct; and (3) neglected to adhere to the paradigm that a sentence must be sufficient, but not greater than necessary, to comply with the general purposes of sentencing. We review these alleged procedural errors at sentencing de novo. See, e.g., United States v. Griffith, 913 F.3d 683, 687 (7th Cir. 2019). A. Explanation of Sentence A district court must adequately explain its sentence, in- cluding any deviation from the Guidelines. See United States v. Ballard, 950 F.3d 434, 436–37 (7th Cir. 2020). In other words, a deviating court “must consider the extent of the deviation from that range and satisfy [it]self that there is a compelling justification for it.” United States v. Vallone, 752 F.3d 690, 693 (7th Cir. 2014). The further a sentence deviates from the Guidelines, “the more detailed the district court’s explanation No. 19-1644 7

must be.” United States v. Padilla, 520 F.3d 766, 775 (7th Cir. 2008). In this case, the effective Guidelines range was 348–390 months and the district court sentenced Jones to 840 months in prison. That is a 450-month, or 215%, deviation from the high end of the Guidelines range. A deviation of such magni- tude is significant. See Ballard, 950 F.3d at 437 (calling a 67- month, 160% deviation “abnormally extreme”); United States v. Henshaw, 880 F.3d 392, 396 (7th Cir. 2018) (describing a 151- month, 100% deviation as “major”); United States v. Ferguson, 831 F.3d 850, 854, 855 n.2 (7th Cir. 2016) (referring to a 372- month, ~176% deviation as “unusually large” and “dra- matic”); United States v. Taylor, 701 F.3d 1166, 1175 (7th Cir. 2012) (explaining that a sentence 153 months, or ~46%, above the upper end of the Guidelines range is “undoubtedly a harsh sentence”); see also United States v. Snyder, 865 F.3d 490, 502 (7th Cir. 2017) (reasoning that a court may use the full statutory range only in “an unusual case”). A significant deviation, like this one, requires an especially compelling justification. See United States v. Lockwood, 789 F.3d 773, 781–82 (7th Cir. 2015) (stating that district courts must carefully explain significant deviations that are “multiple times above the Guidelines”). The district court did not pro- vide the necessary analysis here. For instance, there is nothing in the record demonstrating that the district court gave “re- spectful consideration to the judgment embodied in the guidelines range that [it] compute[d].” United States v. Bradley, 675 F.3d 1021, 1024 (7th Cir. 2012) (citation omitted). “[T]he court … need[ed] to understand the relation between the guidelines and the ultimate sentence.” Id. at 1028 (citation and 8 No. 19-1644

internal quotation marks omitted). There is no evidence showing that the court made that connection. To be sure, “the sentencing court need not frame its expla- nation of a sentence in terms of a departure from the guide- lines range.” United States v. Vasquez-Abarca, 946 F.3d 990, 994 (7th Cir. 2020) (citation omitted). But the court certainly “must explain why the higher sentence is appropriate,” United States v. Kuczora, 910 F.3d 904, 908 (7th Cir. 2018), meaning why any one defendant deserves a more severe punishment than oth- ers. Put another way, while a court need not identify specific Guidelines factors and articulate why they individually or cu- mulatively fail to account for the nature of both offender and offense, it must “give a reason, however brief, for ignoring [the Sentencing Commission’s] recommendations, which the [court] in this case did not do.” United States v. Robertson, 648 F.3d 858, 860 (7th Cir. 2011). The court’s omission of its reason(s) not to apply the Guidelines leaves unaddressed “the disparity—i.e., why this defendant deserves a significantly higher sentence than oth- ers who commit the same offense.” Lockwood, 789 F.3d at 782. A sentence close to or at “the statutory maximum creates a risk of unwarranted disparity with how similar offenders fare elsewhere.” United States v. Kirkpatrick, 589 F.3d 414, 415 (7th Cir. 2009). The Guidelines “reflect (among other things) the goal of avoiding unwarranted disparities in how different judges treat equivalent offenses and offenders.” Henshaw, 880 F.3d at 398 (quoting United States v. Corner, 598 F.3d 411, 416 (7th Cir. 2010) (en banc)). Here, the district court acknowledged the need to avoid unwarranted sentence disparities, noting that Jones’s co-de- fendants—“with similar records [and] similar conduct”—had No. 19-1644 9

received sentences of 675 months and 728 months. Notwith- standing the three defendants’ similar records and similar conduct, Jones received a sentence 165 months longer than one co-defendant and 112 months longer than the other. The court did not explain why it singled Jones out for different treatment. Quite the contrary, it synthesized the offenders and their offenses, observing they had “similar records [and] similar conduct.” It was therefore incumbent on the court to specify what warranted Jones’s sentence disparity. See 18 U.S.C. § 3553(a)(6). Without such a justification, and because the court did not sentence Jones within the Guidelines range, we cannot assure ourselves that the court sufficiently consid- ered the interest in consistency between similarly situated de- fendants. The court also supported its sentence by relying on the cir- cumstances of Jones’s offenses and his personal characteris- tics. The court’s discussion of these factors spans about a page in the sentencing transcript. The court accurately character- ized Jones’s offenses as “horrific crimes of violence and threatening individuals.” Similarly, it recounted his “history as a violent predatory individual”; however, “[t]he problem with this rationale is that it provides little more than what is implicit in the instant offense.” Bradley, 675 F.3d at 1025. The district court needed to specify “the reasons why [Jones] is different from the vast majority of defendants—many of whom also have criminal histories, are dangerous, and must be incapacitated to protect society ….” Lockwood, 789 F.3d at 782. On appeal, we presume the Guidelines are reasonable, “and it would be odd if that presumption might be under- mined merely by reference to one of the two factors (offense 10 No. 19-1644

level and, here, the defendant’s criminal history) that the guidelines take into account in every case.” United States v. Tanner, 628 F.3d 890, 909 (7th Cir. 2010). We recently high- lighted that “emphasizing the defendant’s criminal history alone does not adequately explain” a deviation as extreme as this one. Ballard, 950 F.3d at 438. In this case, the critical fact that the Guidelines did not en- tirely account for was, admittedly, a serious one: the break-in to the farmhouse. The district court was free to conclude that that action aggravated the offenses; however; it does not ap- pear that the district court made that determination. Accordingly, the record here leaves us with the impres- sion that the district court apparently selected the statutory maximum as the correct sentence for three of the six counts of conviction. Our caselaw, though, underscores that courts should reserve the statutory maximum for “unusual case[s].” Snyder, 865 F.3d at 502. Otherwise, we “leave[ ] little room for the marginal deterrence of persons whose additional deeds are more serious ….” Kirkpatrick, 589 F.3d at 415. The record does not indicate one way or the other why any figure be- tween 390 and 840 months would not be a “sufficient, but not greater than necessary” sentence for Jones. 18 U.S.C. § 3553(a). Instead, we are left to speculate whether the court fully appreciated that it was adding 450 months to the range and why it thought it was appropriate to do so. We in no way question the gravity of Jones’s offenses and his criminal history. The Guidelines may well fail to account for the devastating effects Jones’s crimes had on his victims. If the district court decides that the Guidelines underrepre- sent reality, it should so state and clarify how it uses those findings to calculate Jones’s sentence. See United States v. No. 19-1644 11

Johnson, 612 F.3d 889, 897 (7th Cir. 2010). Indeed, absent a sub- stantive reasonableness challenge, it is not for us to say whether a Guidelines sentence is sufficient punishment or not for Jones and his convictions. It is well within the district court’s discretion to determine whether the range is too leni- ent. That said, if it concludes as much, the court must explain why its sentence serves the considerations it cites. See United States v. Garcia, 754 F.3d 460, 483–84 (7th Cir. 2014). To assist district courts in this process, we have pointed out that there are two ways to gauge the magnitude of a devi- ation from the Guidelines: (1) calculate the percentage devia- tion from the top of the Guidelines range to the ultimate sen- tence; or (2) increase the number of offense levels until arriv- ing at an appropriate Guidelines range. See Ballard, 950 F.3d at 437–38; see also United States v. Castillo, 695 F.3d 672, 674–75 (7th Cir. 2012) (outlining these two methods to assess propri- ety of any degree of deviation). Perhaps the district court will choose to apply one or both approaches on remand. For now, it is enough for us to resolve this dispute to say that the dis- trict court procedurally erred by not providing an adequate explanation for its upward deviation from the Guidelines. B. Remaining Issues Because the district court’s sentencing explanation is lack- ing, we need not reach Jones’s additional arguments on ap- peal. Nonetheless, we add two final observations that will hopefully streamline matters on remand. First, we have some concern about the district court’s misstatement at sentencing that Jones wielded a shotgun, fired it (or some other gun), and broke into multiple homes following the bank robbery. Stand- ing alone, and particularly in this case, such an error might be harmless. But considered in context, it reinforces the need for 12 No. 19-1644

remand because the court stated that it “believe[d] the statu- tory maximum sentence will reflect the seriousness of the of- fense.” Even if the court based its deviation only in part on its misapprehension of the nature and circumstances of the of- fense, the prudent disposition is resentencing. Second, and as an alternative ground for affirmance, the government contends that the district court erred when it held that the First Step Act applied to Jones. We agree with Jones, however, that what the government is asking for is not affirmance but the alternative relief of vacatur and remand to enlarge Jones’s sentence. This is an inappropriate request in a response brief; the government needed to maintain its own cross-appeal, and by dismissing the one it filed, “it has ac- cepted the district court’s opinion as the law of the case.” United States v. One 1987 Mercedes Benz Roadster 560 SEC, VIN WDBBA48D3HA064462, 2 F.3d 241, 243 (7th Cir. 1993); see also United States v. Taylor, 777 F.3d 434, 444 (7th Cir. 2015) (con- cluding that, in the absence of a cross-appeal from the gov- ernment, we cannot review an adverse ruling to it that has the potential to extend the defendant’s sentence beyond what the judgment prescribes). Having done so, the government placed the First Step Act question outside the scope of our re- mand order. See, e.g., United States v. Husband, 312 F.3d 247, 251 n.3 (7th Cir. 2002) (recognizing that the law-of-the-case doctrine confines the scope of a remand). III. Conclusion For the reasons stated above, we VACATE the district court’s judgment and REMAND FOR RESENTENCING.