United States v. Jesse J. Ballard ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2103
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JESSE J. BALLARD,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 17-cr-40079 — J. Phil Gilbert, Judge.
____________________
ARGUED JANUARY 16, 2020 — DECIDED FEBRUARY 14, 2020
____________________
Before FLAUM, MANION, and KANNE, Circuit Judges.
MANION, Circuit Judge. Jesse Ballard has an extraordinarily
long history of criminal conduct, which the sentencing judge
described as “probably one of the worst criminal histories
[he’d] seen in 30 years” of experience. From 1985 until 2017,
Ballard accrued over 30 convictions for crimes such as at-
tempted residential burglary, kidnapping, battery, aggra-
vated assault (amended from rape), possession of a firearm as
a felon, and multiple convictions for driving with a
2 No. 19-2103
suspended or revoked driver’s license. Ballard also accrued a
multitude of parole violations and committed several infrac-
tions while in prison.
Ballard was arrested once again in December 2017 after he
possessed a gun purchased by his girlfriend. Ballard pleaded
guilty on May 9, 2018, to possessing a firearm as a felon, in
violation of 18 U.S.C. § 922(g)(1). This was his first conviction
in federal court. The court initially imposed an enhancement
on Ballard as an armed career criminal under 18 U.S.C.
§ 924(e), resulting in a Guidelines range of 180 to 210 months’
imprisonment. At sentencing, the district court considered
Ballard’s extensive criminal history, including old offenses for
which the Guidelines did not assess criminal history points.
The court noted this extensive history showed a pattern of
lawlessness, a disrespect for the law, an inability to lead a law-
abiding life, and a failure of prior sentences to deter Ballard
from criminal behavior. Citing the § 3553 factors of the de-
fendant’s history and characteristics, promoting respect for
the law, deterrence, and the need to protect the public from
Ballard’s future crimes, the court imposed a sentence of 232
months, a 10 percent upward departure from the high end of
his Guidelines range.
Ballard appealed the court’s application of the Armed Ca-
reer Criminal Act (ACCA) enhancement. On appeal, the gov-
ernment filed a confession of error and motion for remand,
taking the position that Ballard’s two Illinois attempted bur-
glary convictions could not qualify as violent felonies under
the ACCA. Accordingly, we vacated the sentence and re-
manded the case to the district court for resentencing. United
States v. Ballard, No. 18-3294 (7th Cir. Feb. 4, 2019) (order
granting motion for remand).
No. 19-2103 3
At resentencing, the revised presentence report assigned
Ballard offense level 13 and criminal history category VI (the
highest category possible). This resulted in a new Guidelines
range of 33 to 41 months, with a statutory maximum of 120
months. The district court again pointed to Ballard’s extensive
criminal history, which it found demonstrated a disrespect for
the law and an inability to live a law-abiding life, and again
cited the § 3553 factors of the defendant’s history and charac-
teristics, promoting respect for the law, deterrence, and the
need to protect the public. The court imposed a new sentence
of 108 months’ imprisonment: an approximately 160 percent
increase from the high end of Ballard’s revised Guidelines
range. The district court did not articulate why the same fac-
tors that justified a 22-month, 10 percent upward departure in
the first sentencing now justified a 67-month, 160 percent de-
parture at resentencing. Ballard appeals the new sentence.
Ballard argues that the district judge committed proce-
dural error by failing to adequately explain the 160 percent
upward departure from the high end of the calculated Guide-
lines range, and that the 108 months’ sentence was substan-
tively unreasonable as well.1 We review de novo a procedural
challenge to a defendant’s sentence. United States v. Lockwood,
789 F.3d 773, 781 (7th Cir. 2015). If we find no procedural er-
ror, we review the substantive reasonableness of the sentence
1 Initially, Ballard also sought to vacate his conviction, arguing the in-
dictment and factual basis for his plea were deficient under Rehaif v. United
States, 139 S. Ct. 2191 (2019), for failing to include knowledge of his status
as a felon as an element of the crime. However, Ballard conceded at oral
argument that this argument was untenable in light of our recent decision
in United States v. Williams, 946 F.3d 968, 973–74 (7th Cir. 2020). Based on
that concession, we address only Ballard’s challenges to his sentence.
4 No. 19-2103
for abuse of discretion. United States v. Faulkner, 885 F.3d 488,
498 (7th Cir. 2018).
Because the Guidelines are advisory, district judges have
discretion to sentence a defendant outside the calculated
Guidelines range. However, when doing so, the judge “must
consider the extent of the deviation and ensure that the justi-
fication is sufficiently compelling to support the degree of var-
iance.” United States v. Miller, 601 F.3d 734, 739 (7th Cir. 2010)
(quoting Gall v. United States, 552 U.S. 38, 50 (2007)). The
judge’s explanation of the deviation must “articulate[] and
justif[y] the magnitude of the variance.” United States v. Cona-
way, 713 F.3d 897, 904 (7th Cir. 2013). It follows that more sig-
nificant justification is necessary for more substantial depar-
tures. United States v. Castillo, 695 F.3d 672, 673 (7th Cir. 2012);
Miller, 601 F.3d at 739. Failing to adequately explain a chosen
sentence, including an explanation for deviation from the
Guidelines range, is a procedural error. Faulkner, 885 F.3d at
498. In United States v. Johns, in the context of a resentencing
where the defendant faced a reduced Guidelines range on re-
mand, we cautioned: “[r]egardless of whether the judge gave
a sufficient explanation for [an upward departure at the orig-
inal sentencing], a more substantial departure from a lower
guidelines range on resentencing should be supported by a
more significant justification.” 732 F.3d 736, 742 (7th Cir.
2013).
We conclude that the district court committed procedural
error by not providing an adequate explanation for the major
upward departure from the Guidelines range on resentenc-
ing. First, the district court failed to provide a justification that
explains the extreme difference between the upward depar-
ture of the second sentence versus that of the original
No. 19-2103 5
sentence. To justify a sentence that was 67 months above the
Guidelines range (a 160 percent upward departure), the court
referred to the history and characteristics of the defendant
and the goals of promoting respect for the law, deterrence,
and protecting the public from future crimes. These are ap-
propriate factors to consider under § 3553. However, these
were the same factors cited and discussed at the original sen-
tencing, resulting in a sentence only 22 months above the orig-
inal Guidelines range (a 10 percent upward departure). The
court provided no explanation for why consideration of the
same factors warranted a much greater departure on resen-
tencing. The district court’s explanation of its departure from
the Guidelines upon resentencing does not “articulate[] and
justif[y] the magnitude of the variance” where the explana-
tion is essentially identical to the explanation provided for a
much less extreme departure in the original sentence.
The government argues that the goal of protecting the
public from Ballard’s continued criminal behavior, a legiti-
mate factor of consideration under § 3553, logically requires a
greater departure from a lower Guidelines sentence than from
a higher one. That may very well be true. But the district court
did not invoke that rationale in its explanation of the sentence
or the magnitude of the departure, and our precedent re-
quires it to do so. Otherwise, the appellate court has no basis
to assess whether the new sentence was a reasonable depar-
ture from the revised Guidelines range or an improper at-
tempt to impose a sentence resembling the original one. C.f.
Castillo, 695 F.3d at 673 (noting the purpose of requiring more
compelling justifications for more substantial departures is to
“enable the court of appeals to assess the reasonableness of
the sentence imposed”).
6 No. 19-2103
Furthermore, regardless of the proportional difference be-
tween the first and second sentencing departures, a 160 per-
cent increase is an abnormally extreme departure from the
Guidelines recommendation. Although the Supreme Court
has rejected “the use of a rigid mathematical formula that uses
the percentage of a departure as the standard for determining
the strength of the justifications required,” courts of appeals
are entitled to “take the degree of variance into account and
consider the extent of a deviation from the Guidelines.” Gall,
552 U.S. at 47; see also Castillo, 695 F.3d at 674.
An alternative way to judge the magnitude of a departure
from the Guidelines is to use the “number of offense levels
rather than percentage deviations.” Castillo, 695 F.3d at 675.
This is in line with the Sentencing Commission’s guidance to
a district judge when considering an upward departure based
on the criminal history of a defendant already placed in the
highest criminal history category (which is exactly the case
here). See U.S.S.G. § 4A1.3(a)(4)(B). That provision suggests
“the court should structure the departure by moving incre-
mentally down the sentencing table to the next higher offense
level in Criminal History Category VI until it finds a guideline
range appropriate to the case.” Id. Looking to the sentencing
table as our guide, Ballard’s 108-month sentence only comes
within range by moving down to offense level 23, a full 10
offense levels higher than Ballard’s assigned offense level of
13. By this measure, too, the departure is extreme. Accord-
ingly, the district court owed a significant justification for that
departure. Castillo, 695 F.3d at 673 (stating a departure “far
above the top” of the Guidelines range requires more justifi-
cation than an incremental departure).
No. 19-2103 7
In discussing aggravating factors not taken into account
by the Guidelines, the district court focused almost exclu-
sively on Ballard’s extensive criminal history and hardly at all
on the circumstances and nature of the current offense. Alt-
hough the Guidelines do account for criminal history, see
United States v. Tanner, 628 F.3d 890, 908–09 (7th Cir. 2010), a
district court is “entitled to consider the defendant’s full crim-
inal history and to impose a sentence tailored to his record”
where the Guidelines do not fully reflect that history. United
States v. Vasquez-Abarca, 946 F.3d 990, 994–95 (7th Cir. 2020)
(holding district court properly considered defendant’s crim-
inal history to justify an upward departure where Guidelines
did not include an offense never charged and two offenses
older than fifteen years); see also U.S.S.G. § 4A1.3(a)(1). A dis-
trict judge is also at liberty to disagree with the Commission’s
judgment either categorically or in a particular case. United
States v. Corner, 598 F.3d 411, 416 (7th Cir. 2010). However,
emphasizing the defendant’s criminal history alone does not
adequately explain a departure as extreme as the one in this
case. C.f. Tanner, 628 F.3d at 908–09 (noting “it would be odd”
for a Guidelines sentence to be deemed unreasonable “merely
by reference to one of the two factors (offense level and, here,
the defendant’s criminal history) that the guidelines take into
account in every case”).
Neither party has pointed us to a similar case within our
circuit involving such an extreme upward departure justified
by criminal history alone, and we have found none. Instead,
we find cases with much less extreme departures supported
by more thorough explanations. See, e.g., United States v.
Vasquez-Abarca, 946 F.3d at 994–95 (upholding a 95 percent up-
ward departure where the district judge considered the de-
fendant’s full criminal history and the failure of a previous
8 No. 19-2103
shorter sentence for the same offense to deter the defendant,
and explained the specific danger posed to the public by the
defendant’s current offense); United States v. Jordan, 435 F.3d
693, 697 (7th Cir. 2006) (upholding a 75 percent upward de-
parture where the district judge “described … at length the
many facts and circumstances … that were pertinent to [the
judge’s] evaluation of § 3553(a) factors,” emphasizing the se-
verity of the offense and risk of recidivism, and providing “at
least ten specific areas of concern” regarding the nature of the
defendant’s offense, his lack of remorse, and his specific plans
for continuing his offense conduct in the future); United States
v. Walker, 98 F.3d 944, 947 (7th Cir. 1996) (upholding an in-
crease of a Category VI defendant’s sentencing range from of-
fense level 10 to offense level 12 to account for extreme crimi-
nal history we described as “a one-man crime wave,” span-
ning 21 years and including 13 convictions, mainly felonies,
for crimes as diverse as armed robbery, forgery, and pimp-
ing).
We recognize that even though we are sending Ballard
back to the district court to be sentenced a third time, we can-
not place absolute parameters on the district court’s selection
of a new sentence. See Koon v. United States, 518 U.S. 81, 98
(1996) (“A district court’s decision to depart from the Guide-
lines … embodies the traditional exercise of discretion by a
sentencing court.”). However, we recommend the district
court align Ballard’s sentence more closely to the Guidelines
by moving incrementally down the Category VI column of
the sentencing table until it finds an appropriate Guidelines
range, as suggested in U.S.S.G. § 4A1.3(a)(4)(B).
Because the district court did not provide an adequate ex-
planation for the extreme upward departure from Ballard’s
No. 19-2103 9
recommended Guidelines range, we hold that it committed
procedural error. Accordingly, we VACATE the sentence and
REMAND for resentencing.