United States v. Terry Smith , 860 F.3d 508 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 16-2035
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
TERRY JOE SMITH,
Defendant-Appellee.
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:14-cr-00006-WTL-CMM-1 — William T. Lawrence, Judge.
ARGUED APRIL 12, 2017 — DECIDED JUNE 19, 2017
Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. A jury convicted Terry Joe Smith, a
police officer, of violating 18 U.S.C. § 242, by subjecting two
men to the intentional use of unreasonable and excessive force,
and violating their civil right to be free of such abuse. The
district court sentenced Smith to fourteen months’ imprison-
ment, less than half the low end of the applicable guidelines
range. In the first appeal of the case, we affirmed Smith’s
2 No. 16-2035
conviction but vacated the sentence and remanded for full
resentencing, concluding that the court had failed to justify the
below-guidelines sentence. United States v. Smith, 811 F.3d 907(7th Cir. 2016). On remand, the court again sentenced Smith to
fourteen months’ imprisonment and once more failed to
adequately explain or justify the below-guidelines sentence.
We again vacate and remand for a complete re-sentencing.
I.
Smith was a police officer employed by the Putnam County
Sheriff’s Department. In two separate incidents, Smith vio-
lently assaulted arrestees who were already under control and
not actively resisting arrest. At trial, Smith’s fellow police
officers testified against him, describing the unwarranted
attacks. In the first incident, Smith punched the arrestee in the
face with a closed fist, causing bleeding and swelling on his
face. Two officers testified that the blow made the sound of a
tomato hitting a concrete wall. At the time, the arrestee was
fully under the control of four other officers, and the arrestee
posed no danger to Smith. A fellow officer testified that he had
been trained to refrain from striking anyone in the head with
a closed fist unless he was in a “deadly force” situation because
such a blow could be lethal. After that incident, Smith bragged
about his behavior to other officers and mocked those who
objected to his unjustified attack. The arrestee had to be
removed from the scene in an ambulance.
Several months later, in the second attack, Smith and other
officers arrested an intoxicated man accused of battering a
woman during a domestic dispute. Smith led the handcuffed
arrestee to a patrol car. On reaching the car, Smith raised the
No. 16-2035 3
man into the air, threw him face-first onto the ground and
drove his knee into the man’s back with such force that the
man defecated on himself.1 The man suffered injuries to his
back and ribs. Smith later bragged that this was not the first
time he had made someone defecate on himself. Again, Smith’s
fellow officers testified that the arrestee was not actively
resisting in any manner and that the use of force was unjusti-
fied and excessive.
Smith’s guidelines range was thirty-three to forty-one
months’ imprisonment. Smith was in Criminal History
Category I, based on one prior conviction for misdemeanor
battery of a three-year-old child and the child’s mother, who
was then Smith’s wife. The trial judge began the first sentenc-
ing hearing by considering the nature and circumstances of the
offenses of conviction, noting only that he would rely on his
memory of the trial and paragraphs four through seven of the
presentence investigation report. The court noted difficulties in
Smith’s childhood. His young, troubled parents were unable to
care for him but all four grandparents stepped in to raise him.
His sister was killed by a drunk driver, leading Smith to
participate in “victim impact panels” with the non-profit
organization Mothers Against Drunk Driving. The court
credited his work history, describing Smith as “indeed a
person who does not shy away from work.” R. 93, at 30. Smith
had also served as an elected public official and a volunteer
coach in local leagues and schools. He had the support of his
community and family, including his surviving grandparents,
1
Smith is six feet three inches tall and, at the time of his probation report,
weighed 270 pounds.
4 No. 16-2035
and his fourth wife. He had custody of his son and guardian-
ship of the daughter of a friend who was incarcerated.
On the other hand, Smith had not taken responsibility for
his actions, had “unaddressed anger control issues,” and had
engaged in other misconduct that had not resulted in criminal
charges. R. 93, at 33. In particular, he had assaulted two
juveniles at a facility where he was working as a correctional
officer, and then lied to cover up his conduct. At a different
facility, he had removed an inmate from the jail, supplied
tobacco products to that inmate, and improperly recorded the
conversations of other inmates. He had also engaged in “ghost
employment.”2 The court remarked that, if Smith addressed his
anger control issues, his risk of re-offending was “slight.” R. 93,
at 34. Noting that there was no excuse for punching or abusing
persons who are handcuffed, the court compared the sentences
of other officers who had been convicted of engaging in similar
conduct. The district court then sentenced Smith to a fourteen-
month term, less than half the bottom end of the guidelines
range. In explaining the below-guidelines sentence, the court
2
There is some irony in the court crediting Smith as someone who “does
not shy away from work” given that Smith was fired from the Putnam
County Sheriff’s Department for mistreating prisoners and giving an inmate
tobacco; fired from the Plainfield Juvenile Correctional Facility where he
assaulted two juveniles and falsified reports; fired from a job with Putnam
County and from a private employer for clocking in at both of those jobs at
the same time (the “ghost employment” incident); and finally fired again
by the Putnam County Sheriff for the unlawful conduct at the core of this
case. Although Smith does “not shy away from work,” he also does not shy
away from inappropriate and unlawful conduct at work, losing five
separate jobs because of his behavior.
No. 16-2035 5
said only, “This sentence is a downward variance based upon
the history and characteristics that Mr. Smith presents as well
as the nature and circumstances of this offense.” R. 93, at 38.
Smith appealed his conviction, and the government cross-
appealed his sentence. We affirmed the conviction but vacated
and remanded for a complete re-sentencing. Smith, 811 F.3d at
909–10. We noted that, although a sentence that low need not
be unreasonable, the farther a judge strays from the guidelines
range, “the more important it is that he give cogent reasons for
rejecting the thinking of the Sentencing Commission.” 811 F.3d
at 910. We took issue with the court’s conclusion that Smith
was unlikely to re-offend if he addressed his anger manage-
ment issues. Nothing in the record described the anger
management program that Smith was required to undergo as
a condition of supervised release and there was reason to
question the efficacy of such an undefined program in light of
Smith’s history of violence and bizarre conduct towards the
victims of his offenses of conviction.
As for the district court’s efforts to compare Smith’s
offenses to those in other cases, we noted that in the majority
of the cases, the conduct was either similar to or not as egre-
gious as Smith’s crimes and yet the sentences were much
higher than the sentence meted out to Smith:
Apart from the judge’s reference to anger manage-
ment and comments on Smith’s minor good works
in the community, no reason for the light sentence
he imposed can be found in the transcript of the
sentencing hearing.
6 No. 16-2035
811 F.3d at 911. We therefore vacated and remanded for
resentencing.
Coincidentally, Smith was released from prison on the day
our opinion issued. By the time he came to the court for
resentencing, there was only slightly more information for the
court to consider in setting his sentence. A large part of the
second sentencing transcript tracks the first, virtually word for
word. Since the first sentencing, Smith had served his time in
prison without conduct violations. He completed fourteen
hours of educational programming and worked in prison in
plumbing and as a compound orderly. After his release and
before resentencing, he secured employment, first as a car
salesman and then as finance manager at the same dealership.
He had paid his fine in full as well as the special assessment
imposed at the first sentencing. He was enrolled in an eight-
week anger management class, and was living with his wife,
son and ward. His probation officer reported that Smith told
her that he “had time to think about the victims of his offenses,
and he is taking ownership of his actions. He is preparing a
letter to the Court addressing this topic.” R. 127, at 5.
Smith did make a statement at his second sentencing
hearing but it is difficult to find mention of his victims or much
of a sense of ownership of his actions in his remarks. We
reproduce in full the letter he read aloud:
Your Honor, as you may know, it is very dangerous
being an ex-police officer in prison; but yet, there are
little to no secrets in prison. Most inmates know
why you are there before they even ask you. I had
guys that hated me, not for being me but for my ex-
No. 16-2035 7
profession. I made it clear I was no longer a sheriff’s
deputy, and I was an inmate just like them; and I
was there to better myself, just as they were.
As I took classes, worked, prayed and went to
church next to these inmates, I learned that not all
but most of them were just like me, people who
made mistakes and were trying to better themselves.
I witnessed guys getting GEDs, furthermore, getting
trades in plumbing, heating and cooling, sewing,
music and many other skills.
Many of these inmates had never once been in
trouble while being incarcerated. They were role
model inmates and doing everything they could to
better themselves. One guy in particular named Paul
was sentenced to 15 years. He spent most of his five
years learning how to read and write. He finally
obtained his GED. He then took the next year
enrolling in a heating and cooling class where he
completed it in four years. He had never been
disciplined, yet, had several years to just sit and wait
for his sentence to run out. He was just sitting there
waiting for his out date.
Why do I tell you this? I tell you this because you
made the right decision when it came to sentencing
me. I want to be an example to other judges, prose-
cutors that not every man that makes a mistake
needs a long sentence and that when you have done
everything to better yourself and when you have
years left to serve – to sit and wait for your sentence
8 No. 16-2035
to run out and the only thing you’re waiting for is an
out date, it is the family, children and communities
that are serving the sentence.
I don’t stand before you and say that I have a for-
mula to fix the sentencing. I just—I have been on
both sides; and while I once would say lock them up
and throw away the key, I now say I was unedu-
cated and so wrong.
While being incarcerated, I met doctors, politicians,
pilots, cooks and even drug dealers. I now know
that each case is special in its own way, and not
everyone needs such a long sentence. I must say of
all people, you understand that.
I can say that because of the sentence you handed
me. You knew exactly what I needed to get back on
track and I thank you. I hope my actions during and
after my incarceration have validated your sentenc-
ing choice for me. I thank you for the opportunity
you’ve given me. Thank you.
R. 135, at 12–14.
Despite the lack of any mention of his victims in the
statement that was to explain his new-found “ownership” of
his actions, the district court found it “telling” that Smith was
now referring to his victims as victims when speaking to his
probation officer. R. 135, at 31. The court then mentioned
guideline section 3E1.1(a), which allows for a reduction in
offense level for defendants who have accepted responsibility
for their crimes. Noting that neither side proposed or discussed
No. 16-2035 9
a two-level reduction, the court nevertheless remarked that it
was aware of the reduction as Smith appeared “to now be
accepting responsibility for” his actions. R. 135, at 31. The court
rejected Smith’s argument that the deterrent effect of a sen-
tence of imprisonment is speculative, and noted that Smith
may continue to have “unaddressed anger control issues,” as
evidenced by his conviction for battering a three-year-old
child. R. 135, at 32. The court mentioned Smith’s other trou-
bling acts that the government had again described, acts for
which Smith suffered little or no consequences. Noting Smith’s
lack of conduct violations and his efforts toward education and
work in prison, the court said that Smith’s incarceration “may
indeed have been helpful,” and that Smith “probably [had]
shown insightfulness in regards to the incarceration that [he]
sustained.” R. 135, at 34. The court found that Smith’s enroll-
ment in an eight-week anger management program was a
“good start” that would be helpful going forward. The court
recommended that the program director evaluate Smith at the
end of that program, that the assessment be shared with his
probation officer and that Smith should work with the proba-
tion officer for follow-up counseling. R. 135, at 34–35.
The court then discussed the need to avoid unwarranted
sentencing disparities, discussing again some of the same cases
it had considered at the first sentencing but going into more
detail on the facts of each. In particular, the court considered
United States v. Christian, 342 F.3d 744 (7th Cir. 2003). The court
distinguished Christian on the ground that the officer was not
involved in an arrest situation at the time he attacked an
arrestee. The court was also reluctant to compare the cases
because the court did not know Christian’s background. The
10 No. 16-2035
court also addressed United States v. Bartlett, 567 F.3d 901 (7th
Cir. 2009), a case that the court found involved conduct far
beyond what Smith had done.
The court then sentenced Smith once again to a term of
fourteen months’ imprisonment, and two years of supervised
release, giving him credit for the time already served in prison.
The court noted:
This sentence is a departure based upon Section
5K2.1, as well as a variance based upon the history
and circumstances of this defendant as well as the
nature and circumstances of this offense.
I do not see any benefit in reincarcerating Mr. Smith.
His anger control counseling would be interrupted.
He will lose his job again. He will also disrupt the
stability of his children, whom I assume have now
adopted [sic] to having him back in the home.
R. 135, at 44. In addressing the need to promote respect for the
law and deter others from committing similar crimes, the court
mentioned that Smith had incurred two felony convictions, lost
his job as a police officer, resigned his position on the city
council, and lost his reputation within the community.3 The
government objected to the sentence on grounds of procedural
and substantive unreasonableness, and has once again ap-
pealed from the sentence.
3
Losing one’s job and reputation are the normal consequences of commit-
ting a felony at work. It is unclear how these naturally occurring repercus-
sions that are not part of any sentence would promote respect for the law
and deter others from committing similar crimes.
No. 16-2035 11
II.
On appeal, the government contends that the court proce-
durally erred by failing to adequately explain why Smith
received a considerably below-guidelines sentence, and by
crediting Smith for acceptance of responsibility. The govern-
ment also argues that the sentence is substantively unreason-
able in light of the court’s failure to justify it and because it
creates an unwarranted disparity in comparison to similar
cases nationwide. Our review of sentencing decisions is limited
to whether they are reasonable, applying the abuse of discre-
tion standard. Gall v. United States, 552 U.S. 38, 46 (2007); United
States v. McLaughlin, 760 F.3d 699, 703 (7th Cir. 2014). We first
must ensure that the district court committed no significant
procedural error, such as incorrectly calculating the guidelines
range, failing to consider the section 3553(a) factors, selecting
a sentence based on clearly erroneous facts, or failing to
explain adequately the chosen sentence. Gall, 552 U.S. at 51.
Whether the district court followed the proper procedures after
United States v. Booker, 543 U.S. 220 (2005), in imposing sentence
is a question of law we review de novo. United States v. Mendoza,
510 F.3d 749, 754 (7th Cir. 2007).
If the sentencing decision is procedurally sound, we then
consider the substantive reasonableness of the sentence under
the abuse-of-discretion standard, taking into account the
totality of the circumstances, including the extent of any
variance from the guidelines range. Id. Moreover, the Supreme
Court found that it is:
uncontroversial that a major departure should be
supported by a more significant justification than a
12 No. 16-2035
minor one. After settling on the appropriate sen-
tence, [the judge] must adequately explain the
chosen sentence to allow for meaningful appellate
review and to promote the perception of fair sen-
tencing.
Gall, 552 U.S. at 50. See also United States v. Warner, 792 F.3d
847, 855 (7th Cir. 2015) (noting that section 3553(c) requires the
district judge to state in open court the reasons for imposing a
particular sentence).
The parties agree that the district court correctly calculated
the guidelines range, which was thirty-three to forty-one
months. See Gall, 552 U.S. at 49 (a district court should begin all
sentencing proceedings by correctly calculating the applicable
guidelines range). The district court then substantially de-
parted from the guidelines range, giving Smith a sentence that
is less than half of the bottom of the range. When a judge
decides to sentence outside the guidelines range, he or she
“must consider the extent of the deviation and ensure that the
justification is sufficiently compelling to support the degree of
the variance.” Id.We agree with the government that the court erred proce-
durally by failing to adequately explain or justify the signifi-
cantly below-guidelines sentence that it rendered. In justifying
the sentence here, the court cited: (1) guidelines section 5K2.1;
(2) the history and characteristics of the defendant; and (3) the
nature and circumstances of the offense. We assume that the
reference to guidelines section 5K2.1 was either a typographi-
cal error or a simple misstatement. Section 5K2.1 allows a court
to increase a sentence above the guidelines range if death
No. 16-2035 13
resulted. Presumably, the court meant to refer to guidelines
section 5K2.10, which the probation officer had cited in her
recommendation for setting Smith’s sentence. That provision
allows a court to reduce a sentence below the guidelines range
if “the victim's wrongful conduct contributed significantly to
provoking the offense behavior.” U.S.S.G. § 5K2.10. But the
district court made no finding that either of Smith’s victims did
anything to provoke Smith’s attacks. Moreover, the probation
officer offered no evidence of provocation in the presentence
investigation report and Smith cites no evidence that supports
a conclusion that the victims provoked his attacks. Nor did the
court consider the factors set forth in the guidelines policy
statement, such as the relative size and strength of the victim
compared to the defendant, the persistence of the victim’s
conduct, efforts by the defendant to prevent the confrontation,
and the proportionality and reasonableness of the defendant’s
response to the victim’s provocation, among other things.
Nothing in the sentencing transcript or presentence investiga-
tion report would warrant application of section 5K2.10 in
these circumstances. Because there was no discussion of
guideline 5K2.10 (except for the brief, erroneous reference to
section 5K2.1), we cannot be sure if the court meant to use it to
justify the reduction in Smith’s sentence. Because we are
remanding for resentencing, we note that, if the court in fact
relied on section 5K2.10, nothing in the record as it stands
justifies application of that provision.
The sentencing judge also invoked the nature and circum-
stances of the offense as a reason to sentence below the
guidelines. But the judge’s only mention of the nature and
circumstances of the offense came when he said that he would
14 No. 16-2035
rely on his memory of the trial and certain paragraphs of the
presentence investigation report for his consideration of this
factor. A review of the cited paragraphs of the presentence
investigation report as well as the trial transcript shows that
Smith twice violently attacked arrestees who were already
under control and were not actively resisting arrest. These
were typical excessive-force crimes. No mitigating circum-
stances are apparent from the record and the court cited none.
See e.g., Warner, 792 F.3d at 859 (noting as mitigating factors for
the nature and circumstances of an offense that the defendant’s
crime was isolated and uncharacteristic, that the defendant was
elderly and had no prior criminal history, that he posed no
danger to society, and that he attempted to come forward and
rectify his crime before he knew that he was under investiga-
tion). In fact, a court might consider it an aggravating factor
that Smith was convicted of two counts of excessive force
arising from separate incidents, each in circumstances that
could not be explained by the heat of the moment. Moreover,
he later bragged about his behavior and mocked his fellow
officers when they questioned his actions. Before we can
conclude that a court did not abuse its discretion, we have to
satisfy ourselves that the court exercised its discretion, that is,
that the court considered the factors relevant to that exercise.
United States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005).
The court’s brief mention of the nature and circumstances of
the offense affords no basis to review that exercise of discre-
tion.
We turn to the history and characteristics of the defendant.
The government first asserts that the court committed proce-
dural error in crediting Smith for acceptance of responsibility.
No. 16-2035 15
Section 3E1.1(a) of the guidelines provides, “If the defendant
clearly demonstrates acceptance of responsibility for his
offense, decrease the offense level by 2 levels.” The provision
generally applies to defendants who truthfully admit the
conduct comprising the offense of conviction:
This adjustment is not intended to apply to a defen-
dant who puts the government to its burden of
proof at trial by denying the essential factual ele-
ments of guilt, is convicted, and only then admits
guilt and expresses remorse. Conviction by trial,
however, does not automatically preclude a defen-
dant from consideration for such a reduction. In rare
situations a defendant may clearly demonstrate an
acceptance of responsibility for his criminal conduct
even though he exercises his constitutional right to
a trial. This may occur, for example, where a defen-
dant goes to trial to assert and preserve issues that
do not relate to factual guilt (e.g., to make a constitu-
tional challenge to a statute or a challenge to the
applicability of a statute to his conduct). In each such
instance, however, a determination that a defendant
has accepted responsibility will be based primarily
upon pre-trial statements and conduct.
U.S.S.G. § 3E1.1, Commentary, Application Notes 1 & 2. It is
clear from this language that Smith is not the type of defendant
for whom the guideline was drafted. Smith has never truth-
fully admitted the conduct comprising the offense of convic-
tion. Moreover, Smith put the government to its burden of
proof at trial, denied the essential factual elements of guilt, was
convicted, and served a period of incarceration before ever
16 No. 16-2035
uttering any words that could be construed as remorseful.
Even a defendant who pleads guilty is not entitled to an
adjustment for acceptance of responsibility as a matter of right.
U.S.S.G. § 3E1.1, Commentary, Application Note 3; United
States v. Booker, 248 F.3d 683, 690 (7th Cir. 2001). Rather, the
defendant bears the burden of demonstrating to the district
court that he accepts moral responsibility for his offense and is
entitled to a reduction. United States v. DeLeon, 603 F.3d 397,
408 (7th Cir. 2010); Booker, 248 F.3d at 690.
The district court did not formally apply the two-level
guideline reduction, instead noting only that the court was
aware of the guideline and that Smith appeared now to be
accepting responsibility. Presumably, then, the court meant
that it would take Smith’s purported acceptance of responsibil-
ity into account not as a guidelines factor but rather as a
statutory matter under section 3553(a). The government asserts
that it would be improper to import into the 3553(a) analysis a
consideration that the guidelines expressly exclude. But after
United States v. Booker, 543 U.S. 220 (2005), a sentencing judge
has the discretion to disagree with a particular provision of the
guidelines and to impose a non-guidelines sentence that, in his
or her judgment, is more consistent with the statutory sentenc-
ing factors set out in section 3553(a). Kimbrough v. United States,
552 U.S. 85 (2007); United States v. Rosales, 813 F.3d 634, 637 (7th
Cir. 2016).
In principle, therefore, a court could disagree with the
provisions set forth in guideline section 3E1.1 and instead
account for remorse as part of the section 3553(a) factors. In
practice, though, there are two problems with the court’s use
No. 16-2035 17
of Smith’s remorse to reduce his sentence. First, it is entirely
unclear from the record whether the court meant to do what
we have just proposed. That is, it is unclear whether the court
actually disagreed with the provisions of guideline 3E1.1 and
meant to override the guideline with its own analysis. Second,
and more importantly, the record is devoid of any actual
expression of acceptance of responsibility or remorse by Smith.
At most, Smith told his probation officer that he was ready to
“take ownership” of his crimes, and would write a letter
expounding on that ownership to the court. He also began to
refer to his victims as victims. But Smith’s statement to the
court contained, at most, an acknowledgment that some—but
not all—of his fellow prisoners were people like him, who had
made mistakes and were seeking to better themselves. He also
expressed his new-found belief that not all defendants required
lengthy sentences, a principle he hoped the court would apply
to him. He never mentioned his victims or his crimes unless
one generously infers that the “mistake” to which he referred
was senselessly beating arrestees who were already under
control and posed no danger to him. He did not concede the
facts of his offenses of conviction and he did not express regret
for anything other than the length of a possible new sentence.
It is certainly admirable that he learned in prison that prisoners
are human beings like himself, but that is a far cry from an
expression of remorse for the harms he caused or acceptance
of responsibility for his crimes. There is nothing resembling the
promised “ownership” in Smith’s remarks to the court.
Because the record does not reveal either a factual or a legal
basis to support the reduction, it was procedural error to
reduce Smith’s sentence for acceptance of responsibility.
18 No. 16-2035
As for the remaining considerations relevant to the history
and characteristics of the defendant, we noted in the first
appeal that the judge had offered “no reason for the light
sentence” imposed apart from a reference to anger manage-
ment and Smith’s minor good works in the community. Smith,
811 F.3d at 911. The government points out that little changed
between the first and second sentencing proceedings, citing
five additional considerations the court used to justify the
sentence. The government contends that only one was proper
and that it was inadequate to justify the sentence.
First, the court again referred to the benefits of an anger
management course in reducing Smith’s risk of re-offending.
At the time of resentencing, Smith had started an eight-week
class, which the court called a “good start.” No doubt the class
was a good start but the court did not address the essence of
our concern, namely, whether such a program would in fact be
effective in Smith’s case, especially in light of his extensive
history of violence against vulnerable persons and his bizarre
conduct against the victims here. Smith, 811 F.3d at 910. It may
be true that Smith is unlikely to re-offend if he learns to control
his anger. But in light of his prior conduct and the lack of
evidence that the contemplated program would effectively
resolve his anger issues, there is no basis in the record as it
stands to reduce Smith’s sentence on the ground that he is
unlikely to re-offend.
We have already considered and rejected the second factor
on which the court relied in discounting Smith’s sentence,
whether he had accepted responsibility for his crimes. As the
third consideration, the court cited the disruption to Smith’s
life, including the burden on his family, the loss of his job and
No. 16-2035 19
the interruption of his anger management program. But in
sentencing a defendant, “family ties and responsibilities are not
ordinarily relevant in determining whether a departure may be
warranted.” U.S.S.G. § 5H1.6. Mitigation arguments that rely
on the effects of incarceration on the defendant’s children must
identify consequences that go beyond those that any child
would suffer when a parent is imprisoned. United States v.
Gary, 613 F.3d 706, 710 (7th Cir. 2010). Extraordinary family
circumstances may constitute a legitimate basis for imposing a
below-guidelines sentence, under either guidelines provision
5H1.6 or under section 3553(a). United States v. Schroeder, 536
F.3d 746, 755–56 (7th Cir. 2008). But the court cited nothing
unusual in Smith’s family circumstances such as loss of care-
taking or financial support that exceeds the harm ordinarily
incident to incarceration for a similarly situated defendant. See
U.S.S.G. § 5H1.6, Commentary, Application Note 1(B).
The court also declined to sentence Smith to further
incarceration because an additional term of imprisonment
would interrupt his anger management class. Although the
guidelines provide that a downward departure may be
appropriate to accomplish a specific treatment purpose if the
defendant suffers from a mental or emotional condition, the
court found that Smith has no history of mental health prob-
lems, no alcohol or substance abuse problems, was not under
the care of a physician and was not taking any medications. See
U.S.S.G. §§ 5C1.1, Commentary, Application Note 6 and 5H1.3;
R. 135, at 28. Other than his apparent difficulties in controlling
his anger, there is no record of a diagnosed mental health
problem. Under these circumstances, it is difficult to justify a
significant sentence reduction in order to avoid interrupting an
20 No. 16-2035
eight-week anger management class. Similarly, disruption of
employment is an ordinary consequence of incarceration, and
in Smith’s case, a consequence that he visited upon himself at
least five other times by engaging in misconduct at work.
These are thin rationales for a significantly below-guidelines
sentence, especially because these factors would apply to most
defendants.
The court’s fourth consideration in support of Smith’s
sentence was a comparison of the circumstances in similar,
instructive cases. In our first remand, we found that the court’s
attempts to distinguish Smith’s case from five similar cases was
insufficient to justify the light sentence the court ordered for
Smith. Smith, 811 F.3d at 910–11. This time, the court addressed
two of the five cases that it previously discussed, going into
greater detail about the facts of those cases. The court found
that the officers’ conduct in United States v. Bartlett, 567 F.3d
901 (7th Cir. 2009), was far more egregious than Smith’s
conduct. But we agreed that the conduct in that case was more
abhorrent than Smith’s acts here, and the defendants there
were sentenced much more severely than Smith, with at least
one defendant in that case receiving a sentence of 208 months,
roughly fifteen times Smith’s sentence. 811 F.3d at 911. The
question we posed, though, remains unanswered: Were
Smith’s crimes so slight a fraction of theirs? The other cases,
including United States v. Christian, 342 F.3d 744 (7th Cir. 2003),
which the court discussed in more depth this time, similarly do
not reveal a basis for the extent of the discount that the judge
applied to Smith’s sentence. In short, nothing in the court’s
discussion of those cases justifies Smith’s sentence.
No. 16-2035 21
The government agrees that the fifth and final issue that the
court considered was an appropriate factor as a general matter:
rehabilitation. In Pepper v. United States, 562 U.S. 476, 480
(2011), the Supreme Court held that “when a defendant's
sentence has been set aside on appeal, a district court at
resentencing may consider evidence of the defendant's
postsentencing rehabilitation and that such evidence may, in
appropriate cases, support a downward variance from the
now-advisory Federal Sentencing Guidelines range.” On
release from prison, Smith reunited with his family, which
continues to support him. He once again became employed,
and began an anger management program. He completed his
sentence without conduct violations. These are laudable,
positive signs but Smith still has not admitted the conduct
underlying his conviction or expressed remorse for the harms
he caused. This relatively minor evidence of rehabilitation
must be assessed in light of Smith’s history and characteristics.
The government’s accounting of Smith’s appalling history
includes an attack on a three-year-old child that left the child
bruised and bleeding; an attack on that child’s mother when
she tried to intervene to protect the child; unprovoked,
premeditated beatings of two juveniles in custody followed by
lies about the incident in the official record; other abuses of
power over inmates at another facility; and the dishonest
behavior of clocking in at two jobs at the same time. At the first
sentencing, the court acknowledged that these prior incidents
brought to light by the government came in “uncontroverted.”
22 No. 16-2035
R. 93, at 33.4 Smith has not challenged the government’s
description of his history of violence and dishonesty. If there is
a rationale to support a sentence that is less than half the low
end of the guidelines, it is not apparent in the record here.
In light of these procedural errors, we must again vacate
the sentence and remand for full resentencing. There is no
reason to address the question of substantive reasonableness
at this juncture. As we noted in our prior opinion, a sentence
this far below the bottom of the guidelines range “need not be
unreasonable,” but “the farther down the judge goes the more
important it is that he give cogent reasons for rejecting the
thinking of the Sentencing Commission.” Smith, 811 F.3d at
910. Circuit Rule 36 shall apply on remand.
4
After characterizing the government’s account of Smith’s past as
“unconroverted,” (R. 93, at 33), the court then seemed to doubt (at both
sentencing hearings) the veracity of some of the most serious charges
against Smith, the beatings of two juveniles in custody. See R. 93, at 34 (“If
true, this incident would involve an assault upon two juveniles …”); R. 135,
at 33 (“If true, this incident would involve an assault upon two juveniles
…”). The government presented the results of a Plainfield Juvenile
Correctional Facility internal affairs investigation into the incident, which
concluded that two counts of battery and one count of making a false report
had been substantiated against Smith. The incident was also investigated by
Indiana’s Family & Social Services Administration which concluded that
allegations of physical abuse by Smith against two detainees of the Juvenile
Correctional Facility had been substantiated. Although the investigations
resulted in a recommendation for prosecution of Smith, that recommenda-
tion was apparently set aside for unknown reasons and Smith was simply
terminated from his job. If there is a reason to doubt the veracity of the
government’s account of Smith’s history, the normal course would be to
hold a hearing before dismissing such serious allegations.
No. 16-2035 23
VACATED AND REMANDED.